Three “tough on crime” bills placed on the 2020 legislative agenda by Democrat Governor Lujan Grisham are 3 house House Bills sponsored by Republican State Representative Bill Rehm. The bills are House Bills 18, 35, 113 and 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.
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.
House Bill 18, changes the definition of a “felon” and 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.
CRIME PACKAGE CONSOLIDATES OTHER CRIME LEGISLATION
The original bills, along with a 4th, have now been combined in a House committee and are being offered as an “ anti-crime” packaged. Members of the House Judiciary Committee drafted the anti-crime legislation and consolidated four separate ideas into one bill. The bill is now known as House Bill 6. The House Judiciary Committee voted 13-0 to move the legislation forward, sending it to the full House for a vote. If it passes the House, it will then be forwarded to the Senate for consideration.
The legislation would increase criminal penalties, encourage community policing and make it easier for law enforcement officers to secure treatment for post-traumatic stress disorder. The house legislative crime package is the result of negotiations by Democratic and Republican lawmakers aiming to improve public safety in New Mexico, especially in Albuquerque. Albuquerque has the highest violent crime rate and homicide rate in the state. Last year, the city recorded 82 homicides, a record high. Democrat Governor Michelle Lujan Grisham, like the previous 3 bills, has endorsed the package of legislation. The Governor is also urging Democrats to embrace some of the stiffer criminal penalties sought by Republican legislators.
Democratic Representative Dayan Hochman-Vigil and Republican Representative Bill Rehm, both of Albuquerque, argue that the criminal will attack violent crime on a number of levels. According to both Representatives, on one hand it will encourage the use of community policing to prevent crime and on the other toughen penalties for use of a firearm to commit a crime.
According to Republican Representative Bill Rehm, violent crime is so high in Albuquerque that it resulted in U.S. Attorney General William Barr last year.
“Too many of our communities are seeing repeat offenders in their neighborhoods carrying a firearm. … We’re targeting the most violent and threatening members of our community who use a gun [with this legislation]”
Hochman-Vigil for her part said:
“Crime affects every single of one us in our communities.”
WHAT THE CRIME PACKAGE DOES
The House Judiciary Committees’ Crime Package can be summarized as follows:
1. Like the original House Bill 35, it will increase the criminal penalty for brandishing a firearm in the commission of a crime. The change is that the firearm enhancement would go from 1 year to 3 years for a first offense. Under the original HB 35, a sentencing judge, the sentence would be mandatory and a judge would not have had any discretion to suspend the prison time in favor of probation, no matter the circumstances. Under the new bill proposed, judges would have the option of suspending the extra time and allow probation.
2. Like the original House Bill 113, the crime package will stiffen the penalty for being a felon in possession of a firearm. The offense will go from a fourth-degree felony with a basic sentence of 18 months to a third-degree felony with a basic sentence of three years.
3. The consolidated crime package will allow the state’s law enforcement protection fund to be tapped for training officers in “community-oriented policing” techniques aimed at preventing crime in neighborhoods. Cities and counties could apply for money from the fund to pay for training and recruiting officers to engage in community policing.
4. The consolidated crime package will make it easier for law enforcement officers to get treatment for post-traumatic stress disorder. The bill would add PTSD to the list of conditions presumed to have been caused by their work as officers and require employers to provide medical treatment for it. The “presumption” is a modification of the New Mexico Workers Compensation statute where an injured worker suffering from PTSD is required to establish within a reasonable degree of medical probability that it is work related.
According to Democratic Representative Marian Matthews of Albuquerque, more officers are dying of suicide than in the line of duty. According to Mathews:
“[The goal is to help] people who are on the first line who experience substantial trauma because of the work they do.”
INCREASING CRIMINAL PENALTIES DRAWS MIXED REACTION
Not at all surprising, Paul Haidle, an attorney and senior policy strategist for the American Civil Liberties Union of New Mexico said the passage of tougher penalties may make a statement but it won’t actually improve public safety. Kim Chavez Cook of the Law Offices of the Public Defender had this to say:
“Increasing penalties doesn’t deter crime”.
Supporters said the enhanced penalties contained in the consolidated crime bill are a sensible way to take dangerous people off the streets for a longer period of time.
COMMENTARY AND ANALYSIS
Virtually every argument being made in support of HB 6 increasing criminal penalties have been heard before over the years. Increased sentencing has proven ineffective in reducing violent 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. 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.
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. 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.
A very good thing about consolidated HB 6 is that it drops the mandatory sentencing by a judge taking away a sentencing judge’s discretion to suspend the prison time. 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. Mandatory sentencing by judges is not how the criminal justice system is supposed to work. Under HB 6, sentencing judges would have the option of suspending the extra time and allow probation, which is a very good thing.
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.
Consolidated House Bill 6 is far more acceptable as a result of removal of the “mandatory sentencing” provisions and for that reason it has a far better chance of being enacted by both the House and Senate. Notwithstanding, the New Mexico 30-day legislative session is well over half way done and will adjourn in less than two weeks. It is very likely that HB 6 will fail and not make it through the New Mexico House and Senate unless both Chamber’s fast tracks it and gets it on the agenda sooner rather than later for a final vote.