For 16 years prior to becoming the first female Hispanic Republican Governor in New Mexico, “She Who Must Not Be Named” served as the elected Dona Ana County District Attorney. It was during the time she served as a prosecutor she contracted a serious case of the “Tough on Crime Virus”, and much like the corona virus, she never fully recovered from it. In fact she spread the virus to get elected Governor to gin up support from her conservative Republican base.
The Former Governor Republican was known during her entire 8 years in office of rolling out year, after year, after year, “tough on crime legislation” she knew would not pass, even during the 30-day short sessions, which are supposed to deal with budgetary matters. The former Republican Governor wanted to toughen criminal sentences for a number of offenses ignoring the root causes of crime.
During the 2018 thirty-day legislative session, the former Republican Governor wanted to reinstate the death penalty, wanted a bill to toughen penalties for people who commit crimes while on probation or parole and wanted to restore the death penalty for people convicted of murdering children and law enforcement. She also wanted a three-strikes proposal that would require life sentences for repeat offenders convicted of a third violent felony. According to the former Republican Governor, the laws would have targeted “the worst of the worst.”
It has become worrisome to Democratic political observers that the Former Republican Governor and her political hatchet man left the “Tough on Crime” virus in the Governor’s Office. During this year’s 2020 legislative session, Governor Michelle Lujan Grisham has allowed to be placed on the agenda 3 “tough-on-crime” bills currently making their way through the Legislature. To many of her supporters, Democratic Governor Michelle Lujan Grisham is showing signs of “get tough on crime” fever by supporting Republican sponsored legislation.
TOUGH ON CRIME LEGISLATION
The three bills placed on the 2020 legislative agenda by Democrat Governor Lujan Grisham are House Bills sponsored by Republican State Representative Bill Rehm. The bills are House Bill 35, House Bill 113 and House Bill 114. All 3 have already cleared one committee. The bills will now be heard in the House Judiciary Committee.
House Bill 35 would increase the sentencing enhancement for using a gun to commit a crime from 1 year to 3 years for a first offense, and from 3 years to 5 years for the second offense. The enhancement time is mandatory prison time. A judge would not have any discretion to suspend the prison time in favor of probation, no matter the circumstances.
A historical note of the one-year enhancement for using a gun to commit a crime is when former District Judge Gene Franchini, who later became a New Mexico Supreme Court Justice, resigned over the one-year firearm enhancement. Judge Franchini chose to resigned from the district court bench rather than impose the mandatory jail sentence for use of a fire arm in a crime. The Defendant was convicted of aggravated assault with a gun when he brandished a gun during a heated argument at a traffic stop, and threatened someone, but did not discharge the firearm. Judge Franchini announce his resignation at the defendant’s sentencing, refused to sentence the man and said he could not live with his conscience and a law that required a mandatory jail sentence of one year.
House Bill 113 would change the crime of being a “felon in possession of a firearm” from a 4th degree felony to a 3rd degree felony. The basic sentence for the crime would be doubled from 18 months to 3 years. Under House Bill 18, the definition of a “felon” would include anyone who has ever been convicted of a felony no matter the time passed. Under the current law, the definition of a felon includes only those who have completed a prison sentence in the previous 10 years from the date of the most current conviction.
House Bill 114 would make it a 3rd degree felony to carry a firearm while trafficking a controlled substance. A 3rd degree felony carries a sentence of three years in prison and up to $5,000 in fines.
EDITORS NOTE: The postscript below to this blog article contains a discussion of the current penalties and sentencings for conviction of felonies under the New Mexico Criminal code.
RATIONALE FOR INCREASING PENALTIES
State Representative Bill Rehm, R-Albuquerque, the sponsor of all three bills, said he “hopes” the laws will curb the high violent rates crime rates in Albuquerque. Rehm also said he believes the bills would make criminals “think twice” about getting a gun or using one during a crime.
According to Rehm:
“We have violence all across the state, but in particular in Albuquerque right now. …What we’re trying to do in a bipartisan way… is push these bills to get them on through to try to address some of the violence we see. We know that being a criminal, you make bad decisions. … If you’re in possession of a firearm and you’re already making a bad decision … this is going to go ahead and say, ‘Don’t have a firearm with you.’ “
Governor Michelle Lujan Grisham said her administration is taking an “all-of-the-above” approach to battling high crime rates in Albuquerque and other parts of the state and said:
“[These measures are] smart on crime by targeting the “worst of the worst” and said the approach includes more substance abuse and mental health treatment programs and she added “I’m trying to do all of that. … I don’t know when those things became mutually exclusive.”
Tripp Stelnicki, the governor’s spokesman, in a statement said:
“The bills would pave the way for judges to impose longer prison sentences for violent criminals, and that would keep our communities safer. … And while no law can deter all crime, these bills certainly would prevent some crime by keeping violent felons off our streets for longer periods of time.”
Civil rights advocates, community groups and defense lawyers oppose all 3 bills arguing increasing criminal penalties and mandating more time in prison are not the answer to the State’s high crime rates. They argue that more severe sentences do little to deter crime or make communities safer in the long run.
New Mexico SAFE is a coalition of more than 30 faith-based, nonprofit or community organizations representing the homeless, women, Native Americans, immigrants and others. The coalition analyzed the 3 house bills on whether it would make the community safer and whether it’s apolitical, fiscally responsible and evidence-based. NM Safe graded all three bills and did not award any of the bills higher than a “C” grade.
New Mexico SAFE pointed out that drug trafficking is already a second-degree felony for a first offense and carries a basic sentence of nine years. The mandatory enhancement bill, House Bill 35, would create a new crime with an additional three-year sentence, and a person could be charged with it regardless of whether a gun was used, fired or even shown.
Under House Bill 35, each count a person is charged with could be separately enhanced. For example, if a person is charge with the commission of 3 felonies in one crime event (ie: possession of a controlled substance, aggravated assault, conspiracy to commit a felony) and it is a first-time offender, that person could receive an additional 10 to 15 years added to the basic sentences for each crime committed. The mandatory enhancement could have the dramatic effect of significantly increasing the number of people in New Mexico prisons.
Jennifer Burrill, vice president of the New Mexico Criminal Defense Lawyers Association had this to say about the 3 bills:
“[The bills are] “failed tough-on-crime policies … I think it’s a backwards movement in terms of trying to address the root causes of crime in our communities. … I don’t think that this is going to solve anything. If the goal is to reduce crime, [these bills] won’t do it. This will only incarcerate and warehouse people. … [The mandatory enhancement] makes us lose sight of humanity, that people grow and change. … One of the things we see with just a simple felon in possession of a firearm is that, let’s say, someone moves back in with their parents and their dad has a gun in the house, they can still be charged with felon in possession of a firearm because it was within their household.”
Steven Robert Allen, policy director at the American Civil Liberties Union of New Mexico, believes a better use of resources would be to invest in substance abuse treatment and programs and had this to say:
“If one thing is for certain, it’s that the war on drugs and the resultant mass incarceration crisis that’s been caused over the past several decades hasn’t done anything to increase public safety in our communities.”
1980 NEW MEXICO PRISON RIOT BEST EXAMPLE OF HOW WRONG WAREHOUSING “WORST OF THE WORST” FELONS
Over 40 years ago, on Feb. 2, 1980, New Mexico’s and the nation’s bloodiest prison riot in US history occurred when inmates seized the state penitentiary south of Santa Fe and holding 12 correction officers hostage. The riot lasted 36 hours. One inmate was beheaded, another inmate’s face was burned off with an acetylene torch, other inmates were beaten to death with pipes or killed with a tear gas gun. A piece of rebar was driven through one inmate’s head ear to ear. The reasons for the brutal murder of “inmate on inmate” included that those who were killed were “snitches” or informants.
Investigation of the prison riot primary cause revealed it was prison overcrowding, or warehousing of prisoners, poor prison conditions and the prison’s disciplinary system. The Santa Fe prison was built in the 1950s. The prison was designed to hold 900 inmates but on the night the riot began, it held 1,157 inmates. Thirteen grand jury reports in the years before the riot were critical of inmate living conditions, overcrowding and the prison’s disciplinary system which were also found to have contributed to the riot.
The 1980 prison riot ultimately lead to the state entering into what is called the Duran Consent Decree for federal court oversight of the state’s prison system that governed the way the state ran prisons and treated inmates. It took 20 years before a federal court found the state was in substantial compliance with the decree except in the area of mental health. It took another two years for the state to meet the mental health care standards for inmates.
BERNALILO COUNTY DISTRICT ATTORNEY 65% DISMISSAL, MISTRIAL AND ACQUITAL RATES
On May 22, 2019, State District Court Judges Stan Whitaker and Charles Brown wrote to the New Mexico Supreme Court that statistics revealed an alarmingly high mistrial rate, acquittal rate, dismissal rate in cases where the District Attorney tried cases charged by grand jury versus those cases charged by preliminary hearings. Statistics presented by the District court showed that overcharging and a failure to screen cases by the District Attorney’s Office is contributing to the high mistrial and acquittal rates.
Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.
COMMENTARY AND ANALYSIS
The 1980 New Mexico prison riot needs to be remembered as a tragic lesson learned the hard way that warehousing the “worst of the worst” felons does not solve much. “Get tough on crime” and imprisoning the “worst of the worst” are political slogans and popular words that help win elections but are, at best, only an attempt to treat the symptoms of very deep cultural problems. “Lock- em up and throw away the key” does not solve the underlying causes of crime. It never has and it never will.
HOUSE BILLS 35, 113 AND 114 ARE MISPLACED, WILL NOT REDUCE CRIME AND SHOULD BE REJECTED BY THE LEGISLATURE
Virtually every argument being made in support of the 3 bills have been heard before. Increased and mandatory sentencing has proven ineffective in reducing crime. Criminals hell bent on committing any crime with a gun do not sit down with the criminal statutes to figure out what the penalties are for using a gun or the risk they are running at sentencing. Someone who is angry enough to shoot someone dead or who suffers from acute mental illness and wants to kill are not going to “think twice” about committing a crime as Representative Rehm says. No doubt Representative Rehm has sincere intentions, but his philosophy has long been discredited. Violent criminal intent cannot be rationalized with in any way. The most violent criminals are not going to kill thinking about how long they may be in prison if caught, convicted and sentenced.
MANDATORY ENHANCEMENTS USED AS BARGAINING CHIPS
Citizens, voters and elected officials who want longer prison sentences always forget that a sentence to prison is at the very end of the criminal justice process. Before a sentence can be imposed, a case but be investigated by law enforcement, sufficient evidence must be secured to ensure a conviction, a person must be arrested, the person must be charged and then tried and convicted. It is the District Attorney’s Office that decides what felonies are to be charged, it’s a jury that decides guilt or innocence, unless a defendant pleads guilty, and it’s a judge that imposes the prison sentence time.
Increased sentencing penalties and mandatory enhancement penalties will result in overcharging and a failure to screen cases properly by the District Attorney. Overcharging a case by the Bernalillo County District Attorney’s office is a very common practice as was already reported above. Many mandatory enhancement charges will wind up becoming simply “bargaining chips” to secure a voluntary plea agreement to a lesser included offense and sentencing agreement usually at significantly reduced penalties.
Another point too often forgotten by the tough on crime advocates is that once you imprison someone for a crime, they become wards of the state. A prisoner’s health, safety, welfare, food and lodging and medical care must be paid for by the taxpayer. It is far too easy for elected officials to say imprison someone, but there must be a willingness on their part to pay and build jails and house and feed those you want behind bars.
TRANSFORMING JUDGES INTO SENTENCING ROBOTS
The primary reason for the separation of powers doctrine is to prevent the 3 branches of government from interfering with each other’s functions, duties and powers. Mandatory sentencing enhancement is nothing more than the legislature usurping the power and authority of the courts. Under the law and the code of judicial conduct, judges are required to be fair and impartial, seek justice, protect the public and honor the constitutional rights of an individual defendant.
Judges must do their very best to follow the law and see to it justice is served. Mandatory enhanced sentencing provisions strip judges from any and all discretion as to sentencing. Mandatory and enhance sentencing relegate Judges to the function of unthinking and uncaring sentencing robots totally disregarding the facts and circumstances of a crime, ignoring the background of a person to be sentenced and ignoring pre-sentence reports and recommendations.
Judges need to be empowered with deciding if a person can be rehabilitated in any meaningful manner and returned to society. Mandatory enhancement provisions do not allow a judge to impose any type of probation or suspension. A defendant’s criminal record, the extent of injury caused, the impact of the crime on the victim or the community, and the extent to which the defendant has addressed life circumstances, such as drug addiction, which may have contributed to the criminal behavior, become totally irrelevant with mandatory sentencing. This is not how the criminal justice system is suppose to work.
GOVERNOR’S BUDGET PRIORITIES BEST APPROACH TO REDUCING ROOT CAUSES OF CRIME
The root causes of crime in New Mexico are painfully obvious. They include poverty, drug addiction, lack of education, untreated mental health problems and failed social intervention. The Governor’s 2020 proposed budget is a major step to address all of the root causes of crime.
New Mexico’s children are the number 1 priority for Governor Lujan Grisham in her Executive Budget for the 2020 session. Nearly half of the state spending increase proposed will go toward education programs, from early childhood through higher education. The Governor’s budget requests full funding of the “Early Childhood Department” that will focus state resources on children from birth to 5 years of age. A major goal of the new department, coupled with other investments, will be more New Mexico children growing up to secure gainful employment as adults who don’t require government services.
The Governor’s 2020 Budget seeks funds the multi-agency Behavioral Health Initiative (BHI) for $28.7 million. The $28.7 million increase includes funding to build a new behavioral health network, including community-based health services, to effectively address substance use disorders, and addressing the behavioral needs of individuals in the criminal justice system.
The Governor’s 2020 budget contains a continuation of critical investments in economic development to create well-paying jobs and successes in diversifying and expanding the economy. The 2020 proposed Executive Budget contains funding to continue the successful investments made using the Local Economic Development Act (LEDA) program of $40 million. $10 million will be used for rural infrastructure projects. The LEDA program has successfully encouraged businesses to come to New Mexico to stimulate economic growth in the state and leveraged $2.3 billion in private investments over the last six years. The goal is to create 2,500 jobs in the 2020 fiscal year.
There are 33 duly elected County Sheriffs in New Mexico and upwards of 150 municipal police departments, each with their own jurisdiction, philosophy on law enforcement and priorities. The same goes for the duly elected District Attorneys and virtually all the Courts in the criminal justice system. No Governor has any authority over them and their priorities. Any increase in penalties and mandatory enhancements will be subject to how the criminal justice system handles those enacted by the legislature.
The only authority that a Governor has over law enforcement is with the New Mexico State Police and the Department of Homeland Security. The Governor at this point is doing the most she can when it comes to public safety with her Executive Budget including funding for the Department of Public Safety budget at $163.9 million, which will provide for a total of 60 new State Police officers, including equipment and training. Additional funding is included for ten new staff for forensic labs, including six new forensic scientists and a new data-sharing system that will address gaps in inter-agency communication, as well as $6.3 million for state police recruitment and retention initiatives.
DOMESTIC VIOLENCE AND THE NEED FOR RED FLAG LAW
Rather than concentrating on trying to increase criminal penalties and taking an “all-of-the-above” approach as the Governor has said to battling high crime rates, she should concentrate on areas that she can truly influence in reducing our murder rates. The proposed Red Flag law is one such area.
Domestic violence cases are some of the most common cases involving the use of a handgun. According to an annual study published by the Violence Policy Center, women are more likely to be killed by men in New Mexico than nearly any other state. New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade. Current statistics are 1 in 3 New Mexico women will experience domestic violence in their lifetime. 18,000 domestic violence calls were made in 2017 with 8,000 calls made in Albuquerque.
The Violence Policy Center promotes gun control and found that each state at the top of the list of women killed by men have a high rate of firearm ownership which no doubt includes New Mexico’s gun culture. You never hear from violence crime defendants at time of being sentenced “I was going to use a gun but instead used a bat to crush the skull because I did not want to do the time on a mandatory enhancement for using a gun.”
If the New Mexico legislature is truly interested in bringing down the states violent crime and murder rates, rather enacting enhancement penalties, they should enact the Red Flag law pending and supported by the Governor. Under the proposed red flag law, family members or law enforcement can petition a state court to order the temporary removal of firearms from a gun owner or a person in possession of a gun who may present a danger to themselves or others.
The action is civil in nature and it is not a criminal action nor a civil commitment proceeding to determine mental competency but a request for an “extreme-risk protection order”. It will require a sworn affidavit explaining in detail the facts and circumstance as to why the order is needed against a person. A judge could then issue a 15-day emergency order to seize the weapons and ammunition from that person and would schedule a hearing to determine if there was a need for a one-year order. When the court order expires, the guns and ammunition would then be returned to the individual.
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The New Mexico Legislature needs to spend more time and money building schools, funding mental health care facilities and drug addiction counseling programs and economic development creating jobs that will resolve the root causes of crime as opposed to building jails to warehouse criminals. House Bills 35, 113 AND 114 increasing penalties and mandatory enhancements are misplaced and will have little or no effect on crime. All three bills should be rejected by the New Mexico legislature.
The priorities of Governor Lujan Grisham identified in her submitted budget in the long run, if sustained during all her time as Governor, will reduce our crime rates. In the meantime, the Governor Michelle Lujan Grisham needs to be given a “tough on crime” vaccine to break her fever and her coughing for enactment. The Governor’s offices also needs to be disinfected to get rid of the “tough on crime” virus left by her Republican predecessor “She Who Must Not Be Named”.
CRIMINAL SENTENCING PENALTIES IN NEW MEXICO AND JUDGE’S DISCRETION
Discussion of the current penalties under the New Mexico Criminal law is in order to understand what is being proposed in three pending New Mexico Legislature house bills.
Under the New Mexico criminal code, felony crimes are categorized into five classes: capital felonies, first, second, third, and fourth-degree felonies. A capital felony is the most serious crime in New Mexico, a first-degree felony is the second most serious felony crime, and second, third and fourth-degree felonies are the least serious felonies.
Capital felonies in New Mexico are premeditated murder, felony murder which is murder committed during the commission or attempted commission of a felony, aggravated criminal sexual penetration, and depraved mind murder. Capital felonies carry the penalty of life in prison
First degree felonies in New Mexico include murder, criminal sexual penetration of a minor and other serious sexual crimes, kidnapping, and robbery while armed with a deadly weapon. First degree felonies carry a prison sentence up to 18 years in prison and up to $15,000 in fines
Second degree felonies include robbery, shooting at or from a motor vehicle, sexual exploitation of a minor, the manufacture of child pornography, and drug trafficking including manufacturing, selling or possession with intent to sell illegal substances. Second degree felonies carry a prison sentence up to 9 years in prison and up to $10,000 in fines
Third degree felonies can include voluntary manslaughter, aggravated battery, some sex crimes, and aggravated stalking. Third degree felonies carry a prison sentence up to three years in prison and up to $5,000 in fines
Fourth degree felonies include involuntary manslaughter, aggravated assault, burglary, graffiti and property damage over $1,000, and shoplifting items with a value between $500 and $2,500. Fourth degree felonies carry a prison sentence of up to 18 months in prison and up to $5,000 in fines.
“Under New Mexico law, the [District Court] judge in a felony case usually has some discretion to decide what sentence a defendant will receive. Unless the crime carries a mandatory minimum or [mandatory enhancement], such as one, five, ten or twenty years in prison, the judge can sentence the defendant to unsupervised or supervised probation rather than prison, even in a felony case.
Whether the judge allows a defendant in a felony case to serve part or all of his sentence on probation and the length of any prison sentence usually depends on factors such as the defendant’s criminal record, the extent of injury or damage caused, the impact of the crime on the victim or the community, and the extent to which the defendant has addressed life circumstances, such as drug addiction or gang involvement, which may have contributed to the criminal behavior.”
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