On Friday, March 6, Governor Michelle Lujan Grisham signed into law bill a supporter proclaimed will reduce crime and take repeat offenders off the streets and keep them behind bars. The legislation allows in part judges to impose stiffer penalties for 2 gun-related crimes. It also expands funding for community policing. The signed legislation provides for funding and requires training in de-escalation techniques for law enforcement officers who work in the public schools.
The legislation represents the consolidation of 3 bills sponsored by Republican State Representative Bill Rehm who introduced them for the 2020 thirty-day legislative session. The Governor placed the bills on the agenda making them major priorities for the 2020 session. The bills were consolidated into one bill by a legislative committee. The law goes into effect on July 1.
When the original 3 bills were introduced, 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 at the time of introduction:
“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.’ “
In a written statement released, the Governor had this to say about the legislation she signed into law:
“We are working both to prevent crime and to hold criminals more accountable. That is the type of smart, coordinated effort that New Mexicans demand and deserve.”
The primary sponsor of the legislation Republican State Representative Bill Rehm had this to say about it:
“We must make criminals understand we will make our communities safe. … 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]”.
Co-sponsors of the legislation Democratic Reps. Dayan Hochman-Vigil and Marian Matthews, both of Albuquerque, had this to say:
“This legislation recognizes that crime doesn’t have just one cause or one solution by enhancing penalties for gun violence and by investing in deterrence through community policing. ”
WHAT THE LEGISLATION DOES
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.
The original 3 bills, along with a 4th, were combined in a House committee and 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 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 legislation increases penalties in two gun-related offenses:
1. Brandishing a firearm in the commission of a crime. For brandishing a firearm, sentencing enhancement goes from one year to three years. Sentencing Judges are given the discretion to suspend the enhancement time based on facts and circumstances and a defendant’s likelihood of rehabilitation.
2. Being a felon in possession of a gun. The basic sentence of one year and six months is doubled to three years.
The legislation broadens how New Mexico can use its law enforcement protection fund. Cities and counties will be allowed to apply for money from the fund to train officers in “community-oriented policing” techniques aimed at preventing crime.
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”.
CONCURRENT SENTENCING AND CONSECUTIVE SENTENCING
Under the New Mexico criminal code, concurrent sentencing and consecutive sentencing is available to sentencing judges when multiple crimes are committed by the same defendant. The postscript to this article lists the sentencing time for the various categories of crimes.
A “concurrent sentence” is a prison sentence imposed for multiple crimes that is equal to the length of the longest sentence. Concurrent sentencing can only occur when a defendant has been sentenced for two or more crimes. The purpose of a concurrent sentence is to allow a defendant to serve all sentences at the same time. A concurrent sentence is more favorable to a defendant convicted of multiple crimes for the reason that the total length of the sentence will be shorter than it would be if the sentences ran consecutively.
An example under New Mexico sentencing law of a concurrent sentence would be where the defendant commits a second degree felony of drug trafficking for manufacturing, selling or possession with intent to sell illegal drugs that carry’s up to a 9 year prison sentence and during a drug sale the defendant also commits third degree voluntary manslaughter that carry’s a 6 year sentence. Under New Mexico law, the defendant could be sentenced to 9 years in prison for the second-degree felony for the drug trafficking and the 6 years in prison for the involuntary manslaughter charge with the defendant to serve the sentences concurrently for a total of 9 years in prison.
The opposite of a concurrent sentence is a “consecutive sentence”. A consecutive sentence requires a defendant to serve two or more sentences back to back with the prison time stacked. In the above example, the defendant’s total sentence, if served consecutively, would be 15 years, 9 years for the drug charge and 6 years for the voluntary manslaughter charge.
COMMENTARY AND ANALYSIS
Virtually every argument being made in support of the legislation increasing criminal penalties have been heard before over the years. Increased sentencing has proven ineffective in reducing violent crime nor do they deter 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, if they are caught and convicted. Someone who is angry enough to shoot someone or who suffers from acute mental illness and wants to kill are not going to “think twice” about committing a crime as Representative Rehm has suggested.
Violent criminal intent cannot be rationalized in any meaning way. The most violent criminals when they kill do not think about how long their sentence may be in prison if caught, convicted and sentenced. It not likely they will even know what the sentences are for the various degrees of crime. The postscript to this blog article outlines the sentences for crimes committed.
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.
MANDATE CONSECUTIVE SENTENCING AND ELIMINATE EARNED GOOD TIME DEDUCTIONS IN VIOLENT CRIME CASES
If the ultimate goal is to keep the most violent criminals behind bars for longer periods of time, the answer is not to increase penalties for the individual violent crimes. A more realistic approach would be to mandate “consecutive sentencing” of defendants convicted of multiple violent crimes to increase time in prison while still allowing the sentencing judge the discretion to suspend time to tailor the sentence to the individual defendant as the need be taking into account the likelihood of successful rehabilitation. The criminal sentences that can be imposed for felony crimes can be found in the postscript to this blog article.
Another example would be a violent defendant commits two 2nd degree felonies with 9 years exposure for each for a total of 18 years and commits two 3rd degree felonies with 6 years exposure for each for 12 years resulting in a total consecutive sentence of 30 years. A pre sentence report recommends less time of 20 years and the judge feels compassion is in order and sentences to 20 years, suspending 10 years of the consecutive sentence. Twenty years is far more than if the judge ran all the sentences concurrent which would result in a 9 year sentence.
Another option is to eliminate earned meritorious deductions or good time credits on all sentences for all violent crime. In other words, if a convicted felon is sentence to 3 years, the convicted felon must serve the full 3 years and the sentence is not reduce. The “Earned Meritorious Deductions” policy is outlined in the postscript to this blog article.
ENACTED LEGISLATION SIGNED INTO LAW
A very good thing about consolidated legislation signed into law by the Governor is that it drops the mandatory sentencing by a judge taking away a sentencing judge’s discretion to suspend the prison time. Under the signed legislation, sentencing judges would have the option of suspending the extra time and allow probation, which is how our criminal justice system should work.
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.
IF YOU WANT THEM TO DO MORE TIME, YOU MUST BE WILLING TO PAY FOR IT
A 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 for longer periods of time, but there must be a willingness on their part to also pay and build jails and house and feed those you want behind bars.
The philosophy of “lock em up and throw away the key” does not solve the underlying causes of crime which are poverty, drug addiction, lack of education, mental health problems and failed social intervention. It is a damn shame when people are far more willing to pay and build jails than schools rather than address the root causes of crime.
The same goes for funding our judicial system that protects and preserves our civil rights and freedoms guaranteed under our constitution that include freedom of speech, right to bear arms, freedom of religion, due process of law, the presumption of innocence, and the right to a jury trial.
The crime package legislation signed by the Governor is a reasonable compromise, but do not expect a dramatic effect on reducing violent crime. Although it made good press passing the legislation and signing the bill into law, the new increased penalties will have little or no impact on reducing crime.
CRIMINAL SENTENCING PENALTIES
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 illegl 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 from 3 to 6 years in prison and up to $5,000 in fine. A third-degree felony resulting in death or a felony sexual offense against a child victim both carry six years in prison and a fine up to $5,000.
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.
EARNED MERITORIOUS DEDUCTIONS (GOOD TIME)
Under New Mexico statutory law, N.M. Stat. ann.§ 33-2-34 (2015), convicted felons are subject to the “Earned Meritorious Deductions” statutory policy that reduces felony sentences on prison time to be served.
Under this policy, offenders convicted of the following “serious violent crimes” as defined by New Mexico statute will receive up to 4 days of credit for 30 days served (4/30):
• second degree murder (first degree murder is not subject to any meritorious deductions)
• voluntary manslaughter
• third degree aggravated battery
• first degree kidnapping • first and second degree criminal sexual penetration
• second and third degree criminal sexual contact of a minor
• first and second-degree robbery
• second degree aggravated arson
• shooting at a dwelling or occupied building
• shooting at or from a motor vehicle
• aggravated battery upon a peace officer
• aggravated assault upon a peace officer
• assault with intent to commit a violent felony upon a peace officer .
The following list of violent offenses are also considered to be “serious violent offenses” when the nature of the offense and the resulting harm are such that the court judges the crime to be so, and are also subject to 4 days of credit for 30 days served (4/30):
• involuntary manslaughter
• fourth degree aggravated assault
• third degree assault with intent to commit a violent felony
• third and fourth degree aggravated stalking
• second degree kidnapping
• second degree abandonment of a child
• first, second, and third degree abuse of a child
• third degree dangerous use of explosives
• third and fourth degree criminal sexual penetration
• fourth degree criminal sexual contact of a minor
• third degree robbery
• third degree homicide by vehicle or great bodily injury by vehicle
• battery upon a peace officer