All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.

A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner. (As amended November 4, 1980, November 8, 1988, and November 8, 2016.)

ANNOTATIONS

The 2016 amendment, proposed by S.J.R. No. 1 (Laws 2016) and adopted at the general election held on November 8, 2016, by a vote of 616,903 for and 90,294 against, granted courts new authority to deny release on bail pending trial for dangerous defendants in felony cases while retaining the right to pretrial release for non-dangerous defendants who do not pose a flight risk.

The 1988 amendment, which was proposed by H.J.R No. 1 (Laws 1988) and adopted at the general election held on November 8, 1988, by a vote of 278,909 for and 95,156 against, specified that the provisions for bail apply to defendants prior to conviction; and in the first paragraph, after "All persons shall", added "before conviction".

The 1980 amendment, which was proposed by H.J.R No. 9 (Laws 1979) and adopted at the general election held on November 4, 1980, by a vote of 157,992 for and 88,033 against, provided for the denial of bail in certain instances; and after the first paragraph, added the second paragraph, including Subparagraphs A and B.

Cross references. — See Kearny Bill of Rights, cls. 9 and 10, on NMOneSource.com.

For provisions relating to bail generally, see 31-3-1 NMSA 1978 et seq.

For provisions relating to bail, see Rule 5-401 NMRA.

For provisions relating to bail in magistrate court, see Rule 6-401 NMRA.

For provisions relating to bail in metropolitan court, see Rule 7-401 NMRA.

For provisions relating to bail in municipal court, see Rule 8-401 NMRA.

Comparable provisions in district court. — Idaho Const., art. I, § 6.

Iowa Const., art. I, §§ 12, 17.

Montana Const., art. II, §§ 21, 22.

Oregon Const., art. I, §§ 14, 16.

Utah Const., art. I, §§ 8, 9.

Wyoming Const., art. I, § 14.

I. BAIL.

Constitutional right to bail. — All persons have a right to bail and although there is a presumption that all persons are bailable pending trial, the right to bail is not absolute under all circumstances; the trial court must give proper consideration to all of the factors in determining conditions of release set forth in the rules of criminal procedure and shall set the least restrictive of the bail options and release conditions that will reasonably assure the appearance of the person as required and the safety of any other person and the community. State v. Brown, 2014-NMSC-038.

"Capital offenses" defined.- The term "capital offenses" in Article II, Section 13 of the New Mexico Constitution means offenses for which a statute authorizes imposition of the death penalty. As a result of the 2009 legislative abolition of capital punishment, there are currently no New Mexico capital offenses for which bail may be categorically denied under Article II, Section 13. State v. Ameer, 2018-NMSC-030, overruling State v. Segura, 2014-NMCA-037, 321 P.3d 140.

Where defendant was indicted for first-degree murder, an offense that had been statutorily defined as a capital felony before capital punishment was abolished in New Mexico, and where the district court applied the capital offense exception to the constitutional right to bail and denied defendant any form of pretrial release, the district court erred in denying defendant pretrial release based on the capital offense exception, because following legislative repeal of capital punishment for offenses committed on or after July 1, 2009, there are no New Mexico capital offenses for which bail may be categorically denied under Article II, Section 13 of the New Mexico Constitution. State v. Ameer, 2018-NMSC-030, overruling State v. Segura, 2014-NMCA-037, 321 P.3d 140.

The nature of the evidence required in pretrial detention hearings. — On a writ of superintending control, where petitioner sought guidance on the nature of the evidence required in pretrial detention hearings authorized by the 2016 amendment to Article II, Section 13 of the New Mexico Constitution, the New Mexico supreme court ruled that neither the United States Constitution nor the New Mexico Constitution categorically requires live witness testimony at pretrial detention hearings, and under New Mexico supreme court procedural rules, judges may consider all reasonably reliable information, without regard to strictures of the formal rules of evidence, in considering whether any pretrial release conditions will reasonably protect the safety of any other person or the community. State ex rel. Torrez v. Whitaker, 2018-NMSC-005.

Unlawful use of money to detain. — Setting a money bond that a defendant cannot afford to post is a denial of the constitutional right to be released on bail for those who are not detainable for dangerousness in the new due process procedures under the New Mexico Constitution. If a court finds that a defendant is too dangerous to release under any available conditions, the court should enter a detention order. If the court instead finds that a defendant is entitled to release under this section and 5-409 NMRA, the court must not use a money bond to impose pretrial detention. State ex rel. Torrez v. Whitaker, 2018-NMSC-005.

Pretrial detention based on history of dangerous conduct and failure to abide by requirements of previous release orders. — Where defendant and another man stole a van in Albuquerque and attempted to flee pursuing police officers, driving recklessly at extremely high speeds through residential city streets, and where defendant, shown to be the driver of the stolen van by physical evidence and her post-arrest statements to police, crashed the van into another car at an intersection, killing a teenage girl, fatally injuring the girl’s mother, and breaking the leg of the mother’s three-year-old son, and after the crash, defendant and her cohort jumped out of the stolen van and continued their flight from police, stealing another vehicle and succeeding in eluding police, but leaving behind a number of clues that resulted in defendant’s identification and arrest two days later, the district court did not abuse its discretion in granting the state’s motion for pretrial detention, because the factual information about defendant’s current and previous offenses that was relied on by the district court carried strong indicia of reliability, the information supported the conclusion that defendant had uncontrolled propensities to persist in the commission of unlawful and dangerous conduct, and based on defendant’s record of continued criminal activity and dangerous conduct while on previous conditions of release and pattern of refusal to comply with directions of the court and of police, there was clear and convincing evidence supporting a conclusion that no available conditions a court could impose would protect against defendant’s likely future dangerous conduct. State v. Groves, 2018-NMSC-006.

Intent of section. — This provision is based upon the idea that a person accused of crime shall be admitted to bail until adjudged guilty by the court of last resort to him. However, this right is not absolute under all circumstances. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

Sentence to term. — Sentence of not less than 40 nor more than 90 years is not one of "imprisonment for life" within meaning of bail statute. Welch v. McDonald, 1931-NMSC-067, 36 N.M. 23, 7 P.2d 292.

Presumption that "proof is evident or presumption great". — The charge of a capital offense raises a rebuttable presumption that the proof is evident and the presumption great that the defendant so charged committed the capital offense, and one so accused is not entitled to bail until that presumption is overcome. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

In habeas corpus to be admitted to bail, if proof of capital crime is plain and presumption great, the court will not weigh it as against other facts and circumstances apparently contradictory. Ex parte Wright, 1929-NMSC-093, 34 N.M. 422, 283 P. 53.

The supreme court weighs the evidence in habeas corpus proceedings only to determine whether it would sustain a verdict of guilty. Proof of deliberation in killing must be evident or the presumption great to warrant denial of bail to one charged with murder in the first degree. Ex parte Simpson, 1933-NMSC-065, 37 N.M. 453, 24 P.2d 291.

Sentence to imprisonment for life precludes bail pending appeal. Welch v. McDonald, 1931-NMSC-067, 36 N.M. 23, 7 P.2d 292.

The imposition of a cash-only bond is constitutional. State v. Gutierrez, 2006-NMCA-090, 140 N.M. 157, 140 P.3d 1106, cert. denied, 2006-NMCERT-008, 140 N.M. 422, 143 P.3d 184.

Power to revoke bail. — Since the court had inherent power to revoke bail of a defendant during trial and pending final disposition of the criminal case in order to prevent interference with witnesses or the proper administration of justice, it also had the right to do so before trial. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

The constitution gives to one accused of crime the right to personal liberty pending trial, except under certain circumstances. The supreme court has said that a suspended sentence gives a defendant his right of personal liberty and that due process requires a notice and hearing before such suspension can be revoked. Therefore, due process also requires notice and an opportunity to be heard before bond can be revoked and a defendant remanded to custody. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

Due process right to hearing on revocation of bail. — Where the state alleged that defendant violated the conditions of defendant’s pretrial release by harassing the victim and by using drugs; the district court ordered defendant to submit to a urinalysis test; the pretrial services employee who administered the test reported to the court that defendant had tested positive for opiates; the district judge personally examined the test strip and agreed with findings of the pretrial services employee; based on that evidence, the district court found that defendant had violated the conditions of defendant’s release and revoked bail and remanded defendant back into custody; the district court denied defendant’s request for a full evidentiary hearing; defendant was denied any opportunity to examine witnesses, to present any evidence in opposition to the state’s motion to revoke bail; to show any mitigating circumstances that might continue defendant’s release from custody, or to defend against the revocation of bail; and the district court did not consider any alternatives to incarceration or whether additional conditions of release would adequately protect the community, the state’s witnesses, and assure defendant’s appearance at trial, defendant was denied defendant’s procedural due process right to an adequate hearing prior to revocation of bail and remand into custody. State v. Segura, 2014-NMCA-037.

Post-conviction relief. — Conclusory claims that defendant was held under excessive bail are too vague to provide a basis for post-conviction relief. State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502.

Abuse of discretion by court in determining bail. — Where defendant is entitled to bond pending final determination of his conviction, the determination of what bail is proper to grant is particularly within the trial court's discretion but a demand for a corporate surety with a predetermined exclusion of all other collateral as surety is an abuse of discretion. State v. Lucero, 1970-NMCA-057, 81 N.M. 578, 469 P.2d 727.

An abuse of discretion occurs when the court exceeds the bounds of reason when setting bond with all the circumstances before it being considered. State v. Cebada, 1972-NMCA-140, 84 N.M. 306, 502 P.2d 409.

Where trial court determined that defendant was bailable, and found no facts indicating that defendant would likely commit new crimes, that defendant posed a danger to anyone, or that defendant was unlikely to appear if released, and trial court failed to give proper consideration to all of the factors in determining conditions of release set forth in Rule 5-401 NMRA, and trial court failed to set the least restrictive of the bail options and release conditions, it was an abuse of discretion to continue the imposition of bond. State v. Brown, 2014-NMSC-038.

Pretrial detention pending trial. — The district court may order the detention pending trial of a defendant charged with a felony offense if the prosecutor proves by clear and convincing evidence that the defendant poses a future threat to others or the community, and no conditions of release will reasonably protect the safety of another person or the community. State v. Ferry, 2018-NMSC-004.

Nature and circumstances of defendant’s conduct. — The nature and circumstances of a defendant’s conduct in the underlying charged offenses may be sufficient, despite other evidence, to sustain the state’s burden of proving by clear and convincing evidence that the defendant poses a threat to others or the community. If the state meets this initial burden of proof, the state must still prove by clear and convincing evidence, under Article II, Section 13 of the New Mexico Constitution, that no release conditions will reasonably protect the safety of any other person or the community. State v. Ferry, 2018-NMSC-004.

Where defendant was alleged to have participated in the kidnapping, mutilation, and murder of a person and to have tampered with evidence, and where the state filed a motion for pretrial detention which was denied by the district court judge after an evidentiary hearing, it was not clear from the record whether the district judge believed that he was precluded from finding that reliable evidence of the nature and circumstances of the crime can never, in and of itself, be sufficient for the state to meet its burden of proving a defendant’s future dangerousness, and therefore the case was remanded for clarification. State v. Ferry, 2018-NMSC-004.

Analysis for release-conditions prong of the pretrial detention inquiry. — In considering the release-conditions prong of the pretrial detention analysis, the state must prove by clear and convincing evidence that no release conditions can reasonably protect the public, not that no release conditions can possibly protect the public. The district court must consider patterns in a defendant's past behavior, including the disregard for official directives, and not only whether a defendant is likely to comply with release conditions but also the likely consequences to any person or the community should a defendant fail to comply, and the district court must view these considerations in light of the magnitude of a defendant's dangerousness. State v. Anderson, 2023-NMSC-019.

The trial court abused its discretion in denying pretrial detention. — The trial court abused its discretion when it failed to conclude that no release conditions could reasonably protect the public when it failed to apply the correct analytical framework of Rule 5-409 NMRA and by failing to make individualized findings as to each factor in Rule 5-409(F)(6), and when it found that there were release conditions that could reasonably protect the safety of the public from defendant where the state presented reliable evidence that defendant, charged with first-degree murder, had an extensive criminal history that included crimes of violence, failures to appear, violations of probation, new charges while on probation, committing felonies while incarcerated, knowingly possessing a firearm while a felon, and noncompliance with pretrial services requirements. It was beyond reason, and therefore an abuse of discretion, to conclude that release conditions could reasonably protect the public from defendant's dangerous behavior. State v. Anderson, 2023-NMSC-019.

State failed to meet its evidentiary burden to place defendant on pretrial detention. — Where defendant was charged with one count of residential burglary, one count of unlawful taking of a motor vehicle, and one count of receiving/transferring stolen property, and where, at defendant's pretrial detention hearing, the district court found that the allegations against defendant were inherently dangerous, but that the state failed to prove by clear and convincing evidence that no release conditions would reasonably protect the safety of another person or the community, and where the state brought additional charges against defendant, including larceny, conspiracy to commit residential burglary, unlawful taking of a motor vehicle, two counts of conspiracy to commit a third- or fourth-degree felony, and contributing to the delinquency of a minor, and where at defendant's second pretrial detention hearing, the district court found that the state again failed to present evidence that no conditions or combination of conditions could be imposed to reasonably protect the community if defendant was released, the district court did not err in denying the state's motion for pretrial detention, because the state failed to produce any evidence or make any argument that no release conditions could be imposed to reasonably protect the safety of any other person or the community, but instead focused its argument solely on the dangerousness component of the detention determination. Pretrial detention or release decisions cannot be made to turn on any single factor, be it the nature and circumstances of the charged offense or otherwise. State v. Mascareno-Haidle, 2022-NMSC-015.

II. CRUEL AND UNUSUAL PUNISHMENT.

Inadequate medical care. — Where plaintiff was an inmate of the state prison; plaintiff was placed in leg restraints; and plaintiff brought excessive force and inadequate medical care claims against the defendant who was the medical director of the prison, plaintiff’s allegation that tissue scarring resulted because of a delay in medical treatment of approximately three and one-half hours, by itself, was insufficient to support a constitutional claim of cruel and unusual punishment amounting to inadequate medical care because plaintiff did not identify any substantial harm resulting from the delay in treatment. Griffin v. Penn, 2009-NMCA-066, 146 N.M. 610, 213 P.3d 514.

Waiver of right to appeal conviction and sentence. — Where the defendant, who was seventeen-years of age at the time of the murder, entered a guilty plea to murder in the first degree with a firearm, the plea and disposition agreement contained no agreements as to sentencing; the agreement stated that the maximum penalty for murder in the first degree as a youthful offender is life imprisonment and that the defendant expressly waived the right to appeal the conviction that results from the entry of the plea agreement; and the district court sentenced the defendant to life imprisonment, the defendant waived the defendant’s right to challenge the constitutionality of the defendant’s sentence on appeal, including the right to raise a cruel and unusual punishment claim. State v. Chavarria, 2009-NMSC-020, 146 N.M. 251, 208 P.3d 896.

Multiple term-of-years sentences for juvenile offenders. — The eighth amendment of the United States constitution forbids a multiple term-of-years sentence that deprives a juvenile of a meaningful opportunity to obtain release. Ira v. Janecka, 2018-NMSC-027.

Where petitioner challenged his ninety-one year sentence for his convictions of several counts of criminal sexual penetration and intimidation of a witness, committed when he was fourteen and fifteen years old, claiming that his sentence was unconstitutional because it was the functional equivalent of a life sentence without parole and therefore constituted cruel and unusual punishment, defendant’s sentence was held not to be unconstitutional because it did not deprive him of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, based on the fact that petitioner would be eligible for parole when he was approximately 62 years old if he maintained good behavior while incarcerated. Ira v. Janecka, 2018-NMSC-027.

Serious youthful offender's sentence did not violate cruel and unusual punishment provision where offender was denied an amenability hearing. — Where defendant was charged and convicted of three counts of first-degree, felony murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after defendant and two co-conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional right to be free from cruel and unusual punishment requires an amendability hearing in conjunction with the court's sentencing, the district court did not violate defendant's constitutional right to be free from cruel and unusual punishment by denying defendant's motion for an amenability hearing, because cruel and unusual punishment jurisprudence does not guarantee an amenability hearing to juveniles simply because they are juveniles, and defendant's sentence under the Criminal Sentencing Act does not violate N.M. Const., art. II, § 13 for excluding serious youthful offenders convicted of first-degree, felony murder from receiving an amenability hearing. State v. Ortiz, 2021-NMSC-029.

Proportionality review of criminal sentence in a noncapital case to determine whether an enhanced sentence under the habitual offender statute violates the prohibition against cruel and unusual punishment is permissible, although reversal of a sentence on such grounds should be exceedingly rare. State v. Rueda, 1999-NMCA-033, 126 N.M. 738, 975 P.2d 351, cert. denied, 127 N.M. 391, 981 P.2d 1209.

Cruel and unusual punishment generally. — Defendant’s seven-and-one-half-year sentence for four counts of violating the Remote Financial Services Unit Act and a fifth count of theft of identity did not constitute cruel and unusual punishment. State v. Castillo, 2011-NMCA-046, 149 N.M. 536, 252 P.3d 760, cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.

Although habitual criminality is a status rather than an offense, where defendant was not convicted of being an habitual criminal but of the commission of a criminal act, he was appropriately punished for the commission of that crime by a substituted enhanced sentence as prescribed by statute and his punishment was not cruel and unusual punishment. State v. Gonzales, 1972-NMCA-130, 84 N.M. 27584 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296.

Ordinarily the term "cruel and unusual punishment" implies something inhuman and barbarous. State v. Peters, 1967-NMSC-171, 78 N.M. 224, 430 P.2d 382.

The word "usual" does not appear to either enlarge or restrict the word "cruel," and refers to the nature of the punishment under consideration rather than to the infrequency of its imposition. State ex rel. Serna v. Hodges, 1976-NMSC-033, 89 N.M. 35189 N.M. 351, 552 P.2d 787, overruled by State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688.

The fixing of penalties is a legislative function and what constitutes an adequate punishment is a matter for legislative judgment. The question of whether the punishment for a given crime is too severe and disproportionate to the offense is for the legislature to determine. McCutcheon v. Cox, 1962-NMSC-175, 71 N.M. 274, 377 P.2d 683.

Some personal discomfort, occasioned by being jailed for a few hours awaiting preliminary examination, does not constitute a denial of due process or equal protection, nor can it be said to constitute cruel and unusual punishment. Christie v. Ninth Judicial Dist., 1967-NMSC-236, 78 N.M. 469, 432 P.2d 825.

Cruel and unusual punishment implies a limitation upon the form and character of the punishment and is not a limitation upon the duration. State v. Matthews, 1969-NMSC-009, 79 N.M. 767, 449 P.2d 783; State v. Peters, 1967-NMSC-171, 78 N.M. 224, 430 P.2d 382.

Although excessively long sentences, as well as those that are inherently cruel, are objectionable under this section and U.S. Const., amend. VIII, consecutive sentences of life imprisonment for murder, life imprisonment for act of carnal knowledge, and not more than 20 years imprisonment for kidnapping, were not excessive under facts of case where defendant inflicted these crimes upon five-year-old child. State v. Padilla, 1973-NMSC-049, 85 N.M. 140, 509 P.2d 1335.

Defendant's indeterminate sentence of not less than 10 nor more than 50 years was not cruel and unusual punishment. State v. Deats, 1971-NMCA-136, 83 N.M. 154, 489 P.2d 662.

The objects and purposes of the Indeterminate Sentence Act, which form the basis for fixing the maximum penalty of life imprisonment, in the court's opinion, clearly preclude a determination that cruel and unusual punishment results from the sentence. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309.

Defendant's argument that the application of 30-22-9 NMSA 1978 to escapees from the prison honor farm constituted cruel and unusual punishment because of the difference in facilities at the farm compared with the state penitentiary was without merit, since the prison honor farm was an integral part and parcel of the state penitentiary, and escape therefrom was an escape from the state penitentiary. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974).

Confinement for eight months in county jail, at which time defendant pleaded guilty and for which time defendant has been given full credit against his properly imposed sentence, does not constitute cruel and unusual punishment. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696.

Detention of child awaiting residential treatment is not cruel or unusual. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611.

Sex offender registration. — Because the Albuquerque Sex Offender Registration and Notification Act ordinance is a regulatory scheme that is not punitive in intent or effect, the retroactive application of the ordinance does not violate the cruel and unusual punishment clause. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

New Mexico's Capital Felony Sentencing Act is constitutional. State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708, cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), overruled by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

Life sentence for guilty but mentally ill murderer. — Imposition of a life sentence upon a murder defendant who was found guilty but mentally ill did not constitute cruel and inhuman punishment. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249.

Cruel and unusual punishment provision inapplicable where defendant burned with acid. — The court committed error in relying upon the cruel and unusual punishment provision of this section to dismiss the information, where the defendant, while in the county jail prior to trial, had been doused with some type of acid and severely burned. State v. Smallwood, 1980-NMCA-037, 94 N.M. 225, 608 P.2d 537.

Habitual offender sentence of five-time shoplifting felon proper. — A sentence of eight years' imprisonment, imposed under the habitual offender statute against a defendant convicted for the fifth time on felony shoplifting charges, was not so disproportionate as to require reversal as cruel and unusual punishment under the New Mexico constitution, notwithstanding facts that three of the convictions were over 15 years old, and the latest charge was only $3 over the minimum threshold for felony shoplifting. State v. Rueda, 1999-NMCA-033, 126 N.M. 738, 975 P.2d 351, cert. denied, 127 N.M. 391, 981 P.2d 1209.

Failure to provide medical care. — Although failure to provide needed medical care may constitute punishment that is inherently cruel, a prisoner is not entitled to every medical procedure of his or her private physician's choice. A sentence which does not exhibit a deliberate indifference to a defendant's medical needs is not inherently cruel. State v. Augustus, 1981-NMCA-118, 97 N.M. 100, 637 P.2d 50, cert. denied, 97 N.M. 621, 642 P.2d 607.

Incarceration of defendant with severe asthma was not cruel and unusual punishment since the prison provided custodial treatment, including arrangements for emergency medical care. State v. Arrington, 120 N.M. 54, 897 P.2d 241 (Ct. App. 1995), cert. denied, 119 N.M. 810, 896 P.2d 490 (1995).

Death penalty as cruel and unusual punishment. — The death penalty in and of itself does not amount to cruel and unusual punishment within the prohibition of U.S. Const., amend. VIII or this section, but former 40A-29-2, 1953 Comp., which did not permit the exercise of controlled discretion, but mandated a death sentence upon the conviction of a capital felony, was constitutionally defective. State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688.

The death penalty is not cruel and unusual punishment per se within the prohibition of the eighth and fourteenth amendments of United States constitution or this section. State v. Garcia, 1983-NMSC-008, 99 N.M. 771, 664 P.2d 969, cert. denied, 462 U.S. 1112, 103 S. Ct. 2464, 77 L. Ed. 2d 1341 (1983); State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793; State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, overruled on other grounds by State v. Martinez, 2021-NMSC-002.

Issue of cruel and unusual punishment not raised. — Defendant's claim that he was returned to New Mexico from Texas without extradition proceedings and without a waiver of extradition and that in being so returned he suffered cruel and unjust treatment is not a claim of cruelty in his punishment and does not raise an issue under this section of the constitution or U.S. Const., amend. VIII. State v. Mosley, 1968-NMCA-077, 79 N.M. 514, 445 P.2d 391.

This section does not apply to fugitives held for rendition to a sister state. 1974 Op. Att'y Gen. No. 74-38.

Right of parolee to bail. — Looking at the basic purposes of bail, it is seen that the reasons therefor do not apply where a conviction has been had and that conviction is final. This, of course, is the situation of a parolee. There is no danger that an innocent person may suffer punishment. Guilt has been established. 1957 Op. Att'y Gen. No. 57-33.

A parolee who is being held in jail for investigation of parole violation is not entitled to make bond. 1957 Op. Att'y Gen. No. 57-33.

An out-of-state parolee who is under the parole board's supervision under the terms of the interstate compact is not eligible to make bond when held in jail for investigation of parole violation or after he has been arrested and placed in jail pending clearance with the sending state. 1957 Op. Att'y Gen. No. 57-33.

Right of probationer to bail. — A probationer, arrested in a county other than the county which granted him probation, has a right to be admitted to bail in the county in which he is arrested. 1964 Op. Att'y Gen. No. 64-106.

After conviction, but pending a review of conviction, the right to bail depends upon whether or not a statute creates that right. 1957 Op. Att'y Gen. No. 57-33 (rendered prior to 1988 amendment, inserting "before conviction" in the first sentence).

Law reviews. — For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M. L. Rev. 247 (1974).

For article, "Constitutionality of the New Mexico Capital Punishment Statute," see 11 N.M. L. Rev. 269 (1981).

For article, "The Constitutionality of Pretrial Detention Without Bail in New Mexico," see 12 N.M. L. Rev. 685 (1982).

For comment, "The Constitution Is Constitutional - A Reply to The Constitutionality of Pretrial Detention Without Bail in New Mexico," see 13 N.M. L. Rev. 145 (1983).

For article, "Disability Advocacy and the Death Penalty: The Road from Penry to Atkins", see 33 N.M. L. Rev. 173 (2003).

For article, "Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of Atkins v. Virginia," see 33 N.M. L. Rev. 183 (2003).

For article, "Atkins, Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment", see 33 N.M. L. Rev. 207 (2003).

For article, "Atkins v. Virginia: A Psychiatric Can of Worms," see 33 N.M. L. Rev. 255 (2003).

For article, "What Atkins Could Mean for People with Mental Illness", see 33 N.M. L. Rev. 293 (2003).

For article, "‘Life Is in Mirrors, Death Disappears': Giving Life to Atkins", see 33 N.M. L. Rev. 315 (2003).

For article, "Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins", see 33 N.M. L. Rev. 349 (2003).

For article, "Developing the Eight Amendment for Those 'Least Deserving' of Punishment: Statutory Mandatory Minimums for Non-Capital Offenses Can be 'Cruel and Unusual' When Imposed on Mentally Retarded Offenders", see 34 N.M. L. Rev. 35 (2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 8 Am. Jur. 2d Bail and Recognizance §§ 23 to 41, 63, 73 to 81; 21 Am. Jur. 2d Criminal Law §§ 614, 615, 625 to 631.

Mandamus to compel judge or other officer to grant accused bail or to accept proffered sureties, 23 A.L.R.2d 803.

Statutes relating to sexual psychopaths, 24 A.L.R.2d 350.

Bail jumping after conviction or failure to surrender or appear for sentencing, and the like, as contempt, 34 A.L.R.2d 1100.

Court's power and duty, pending determination of habeas corpus proceeding on merits to admit petitioner to bail, 56 A.L.R.2d 668.

Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.

Upon whom rests burden of proof, where bail is sought before judgment but after indictment in capital case, as to whether proof is evident or the presumption great, 89 A.L.R.2d 355.

Right to apply cash bail to payment of fine, 42 A.L.R.5th 547.

Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 98 A.L.R.2d 966, 3 A.L.R.4th 1057.

Insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment, 33 A.L.R.3d 335.

Prison conditions as amounting to cruel and unusual punishment, 51 A.L.R.3d 111.

Constitutional or statutory provisions regarding release on bail as applicable to children subject to Juvenile Delinquency Act, 53 A.L.R.3d 848.

Sterilization of criminals or mental defectives as cruel and unusual punishment, 53 A.L.R.3d 960.

Capital punishment: effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Sufficiency of access to legal research facilities afforded defendant confined in state prison or local jail, 23 A.L.R.4th 590.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

Propriety of imposing capital punishment on mentally retarded individuals, 20 A.L.R.5th 177.

Propriety of applying cash bail to payment of fine, 42 A.L.R.5th 547.

Imposition of enhanced sentence under recidivist statute as cruel and unusual punishment, 27 A.L.R. Fed. 110.

When does forfeiture of currency, bank account, or cash equivalent violate excessive fines clause of Eight Amendment, 164 A.L.R. Fed. 591.

When does forfeiture of motor vehicle pursuant to federal statute violate excessive fines clause of Eighth Amendment, 169 A.L.R. Fed. 615.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment - post-Austin cases, 168 A.L.R. Fed. 375.

Excessive fines clause of Eighth Amendment - supreme court cases, 172 A.L.R. Fed. 389.

8 C.J.S. Bail §§ 14 to 29, 66 to 72; 24 C.J.S. Criminal Law §§ 1593 to 1609.