On January 12, it was reported in Albuquerque that 2 men were shot dead in separate incidents, and a third person was found lifeless in an alleyway in less than 12 hours. By Thursday afternoon, all three were being investigated as homicides and no arrests had been reported. There were 14 homicides in January 2021, the most of any month of last year, and the annual record was shattered by year’s end, with 117 homicides.
GOVERNOR MLG ANNOUNCES CRIME FIGHTING PROPOSALS FOR 2022 SESSION
On January 13, as if on que to react to the 3 murders reported the day before, standing in the parking lot of a cleaning, alterations and repairs shop on Zuni near San Mateo and in front of a mural dedicated to people lost to gun violence, Governor Michelle Lujan Grisham, both Democrat and Republican legislators, Attorney General Hector Balderas, Bernalillo County District Attorney Raul Torrez, Mayor Tim Keller, New Mexico State Police Chief Tim Johnson and APD Chief Harold Medina unveiled what they termed “tough on crime” proposals for the 2022 New Mexico Legislative session that begins on Tuesday, January 18. The crime fighting proposals include increasing penalties for gun and certain violent crimes, changing the rules to what judges may consider and shifting the burden of proof before letting criminals out of jail ahead of trial and raising state police officers pay along with recruitment of 100 more sworn police.
During the news conference, the Governor said she is well aware New Mexicans are fed up with crime in the state and she, along with lawmakers and state leaders in attendance, said something needs to be done now to change things. They all acknowledge that violence is a problem throughout the state.
Gov. Michelle Lujan Grisham said this:
“This is not just an Albuquerque issue, this is a state issue, this is a neighborhood by neighborhood, community by community issue. … New Mexico can, and will, do better.”
Attorney General Hector Balderas put it this way:
“An officer was shot in Farmington, a baby dumped in a dumpster in Hobbs, three shootings last night and Albuquerque [are examples of the violence.] … This plan targets repeat violent offenders, gun violence, and more importantly, prioritizes victims and their families.”
Bernalillo County District Attorney Raul Torrez was even more aggressive with his comments and said:
“The people of the state, the people of my community, are fed up. They’re sick and tired of violent crime. They’re sick and tired of a criminal justice system that doesn’t protect them, that doesn’t work on their behalf.”
State Representative Marian Matthews (D) Bernalillo County had this to say:
“There are too many people in our city who are dying or being injured because of the violence that is happening in our city.”
Mayor Tim Keller for his part said given Albuquerque’s position in the crossroads of the state, it needs help in addressing its issues and he said:
“[The Albuquerque Police Department] has made a number of changes and we’re doing a lot of things different when it comes to investigations with the DA’s office. … We’re doing a lot of things different when it comes to auto theft and working with our statewide partners, and when it comes to shoplifting with the attorney general. But we also know we need some help from the Legislature. That’s what we’re so excited about here today.”
The New Mexico State House Republicans sent out a statement in response to the Governor’s proposals:
“Hopefully with the governor now taking Republican crime proposals seriously, maybe we can honor and provide justice to the many families and victims of violent crime who have, thus far, been ignored and sidelined by progressive politicians.”
Chief Public Defender Bennett Baur said his office has not seen the actual bills but had this to say anyway:
“I’m concerned that the focus is all on police, prosecutors and punishment, and seems to ignore the effects that the proposals would have on the courts, public defenders, jails and prisons, and on what happens when anyone accused of a crime is eventually released. … The evidence is that people on pretrial release are not a significant cause of the increase in violent crime, and, in fact, incarcerating more people before trial, or with increased penalties, will further harm our communities.”
The links to quoted news coverage is here:
SENATE JUDICIARY COMMITTEE CHAIRMAN REACTS
In order for any of the crime bills to pass, the legislation must first be vetted by the Senate Judiciary Committee. Las Cruces Democrat New Mexico State Senator Joseph Cervantes is the Senate Judiciary Committee Chairman. Cervantes said he has not yet seen the crime-related legislation proposed by the governor and law enforcement officials but did say the measures would be closely scrutinized in the Senate Judiciary Committee.
Cervantes suggested a better-funded state judicial system would do more to address crime rates than hasty changes to sentencing laws. Cervantes pointed out that violent crime rates in some parts of southern New Mexico are much lower than in New Mexico’s largest city and said:
“[Violent crime is] a problem that Albuquerque has largely created for itself. … It’s not really about changing state law.”
Cervantes had this to say about the proposed “rebuttable presumption” law:
“I wouldn’t say I’m on board with it. But I understand the frustration that’s leading to that solution. I don’t know that a “rebuttable presumption” is where we need to be going to solve the problem. But there is a problem – too many individuals are being released when they should be held.”
Links to quoted news sources are here:
DETAILS OF SPECIFIC CHANGES PROPOSED
Governor MLG said the legislative package has 5 major areas of focus:
1. Proposed changes to the rules surrounding pre-trial detention.
2. Tougher penalties for second-degree murder.
3. Increased penalties for crimes where a gun is used.
4. A $100-million dollar fund for public safety resources.
5. A 19% raise for New Mexico State Police officers.
CHANGES TO PRE-TRIAL DETENTION RULES
At the very heart of the proposed changes to the existing pretrial detention process is the current bail reform law approved in 2016. The Governor, and those who attended the press conference, want the courts to have more guidance when it comes to keeping people charged with violent crimes behind bars.
Under the current reform state law, prosecutors are required to convince a judge that a charged defendant poses and immediate threat of violence to the public with an evidentiary hearing in order to hold defendant in jail until trial. A bill sponsored by Democrat State Rep. Marian Matthews of Albuquerque would make it a “rebuttable presumption” that a defendant charged with a violent crime is violent and should be held in jail unless the charged defendant convinces the court the defendant does not pose an immediate threat to the public.
The rebuttable presumption bill essentially shifts the burden of proof from prosecutors, who must prove a case “beyond a reasonable doubt to convict”, to the defendant who would have to show they are not a danger to the public in order to be allowed to be released pending trial. A defendant may feel that they must waive their constitutional right to remain silent and take the stand to show that they are not violent allowing the prosecution to cross examine and solicit testimony that could be used during a trial to get a conviction. The prosecution would still have to file pretrial motions in order for people to be held.
According to the Governor:
“This puts a wedge in this revolving door. … It doesn’t minimize our constitutional responsibilities to every single New Mexican irrespective of their income but it also makes really clear that the constitutional right to be safe in your home and communities is also an area that we must maintain and do something significant about.”
Senate Majority Leader Peter Wirth, D-Santa Fe, who was a primary sponsor of the current bail reform law approved in 2016, said the bail reform law made important strides that included eliminating bond for defendants determined to pose a clear danger to the public. Wirth reacted to the proposed changes by saying he shares in the frustration over rising violent crime rates in Albuquerque and said that he did not understand why some high-profile defendants have been released pending trial. Wirth added that changing the law to force low-income defendants represented by a public defender to convince a judge that they should be released until trial is very problematic and said:
“There are some constitutional safeguards that we have to make sure we don’t just throw aside. … I think we have to be very careful.”
Every since being first elected to his first term as Bernalillo County District Attorney, Raul Torrez has said the criminal justice system is broken and that it’s the courts who fail to jail defendants who are violent repeat offenders pending trial. Torrez has always refused to accept the fact that his office is part of the problem with voluntary dismissals of violent crime cases by his office at record highs. During the January 13 press conference, Torrez said he was hopeful going into the legislative session and urged lawmakers not to waste the opportunity.
District Attorney Raul Torrez said Jacob Montoya is an example of what is happening with the courts. Torrez said Montoya had multiple violent felony charges when he was allowed back on the streets with a GPS monitor last summer. He didn’t show up for court, and the monitor’s battery died. Torrez said Montoya went on a violent crime spree that ended with a shootout with law enforcement.
DEFENSE BAR REACTS TO REBUATTABLE PRSUMPTION LAW
Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association responded to the proposed change in the law and “rebuttable presumption” law by saying the proposal is absurd and she said:
“I think it’s an unconstitutional burden-shifting. … If the state’s going to make the allegations, then they need to be the ones to prove it. … We know that a very few number of cases where people were released, even though a preventative detention motion was filed, a very few number of people have gone out to commit new violent crimes… .”
Burrell said that case law in New Mexico requires the state to prove that a defendant is dangerous to the community. But once many of these cases get into the trial process, prosecutors just don’t work the cases, and so the defendant needlessly sits in jail.
Jonathan Ibarra is the vice president of the New Mexico Criminal Defense Lawyers Association. He has been a public defender for eight years, but before that, he was a prosecutor for about 12 years and a district court judge in Bernalillo County. Ibarra had this to say:
“I don’t think that people who are presumed innocent should have to prove that they should get out of jail. … Shifting the burden onto primarily poor people, primarily people of color, to somehow prove a negative, to prove that they’re not going to do something bad. I don’t know how you prove a negative.”
The link to quoted source material is here:
INCREASING PENALTIES ON GUN VIOLENCE CRIMES
The Governor is proposing two sperate legislative actions to increase the penalties for certain violent crimes.
One proposal would increase sentencing for second-degree murder from 15 years to 18 years in prison and remove the statute of limitations.
The second proposal would increase penalties for gun crimes, including making unlawful possession of a handgun a felony instead of a misdemeanor.
The law change would also make fleeing a law enforcement officer when it results in injury a third-degree felony and a second-degree felony if it results in great bodily harm. A third-degree felony carries a basic sentence of up to 3 years in prison and a possible fine of up to $5,000. The basic sentence for a second-degree felony is up to 9 years in prison, plus a maximum fine of $10,000.
The proposal would also enhance the penalties for brandishing a firearm during a drug transaction.
Lujan Grisham had this to say about the penalty changes:
“If you know you’re going to A) be released or B) it’s a misdemeanor or it’s a fourth-degree felony, the lowest felony with minimal jail time, it’s no real risk for you engaging in this criminal activity. … The signal here is there is risk to you, you’re a risk to us, and we aren’t going to tolerate it anymore.”
Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association responded to the Governor by saying studies have shown that there is no evidence that keeping people in jail for a longer period of time makes them less likely to commit a crime when they are released and said:
“In fact it’s the exact opposite. … The longer people are traumatized and are in prison the more likely they are to be unstable when they come back into the community.”
Senate Judiciary Committee Chairman Joseph Cervantes, who is a respected trial attorney, when asked his opinion on where he stands on the bills to increase prison he had this to say:
“I favor the idea of giving our judges the opportunity to do their job. That means trusting their discretion. Now, again, we’ve got to be holding judges accountable for that. We’ve got to make sure that the judges are doing that job well. But I don’t generally favor tying the hands of judges, because that’s essentially a vote of no confidence.”
The link to the quoted news source is here:
LAW ENFORCEMENT FUND
During the January 13 news conference, Governor Michelle Lujan Grisham again announced her executive budget recommendation of $100 million to be put into a fund to recruit, hire and retain law enforcement and staff in law enforcement departments around the state. It also includes a 19% raise for New Mexico State Police officers. In making the announcement, the Governor had this to say:
“You can’t wait a year for resources to hire police, we can’t go to every legislative session, there has to be a meaningful tool so that we’re not stealing police officers and law enforcement officers from one jurisdiction to another. … We have shortages statewide. This means that we can recruit, retain, do the right training, and send a signal to everyone in this state, and particularly to our men and women who put on a uniform every day: We need you.”
Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association was asked about more money going toward law enforcement and she wondered about the effect more officers would have on the rest of the criminal justice system if it was not staffed up in the same way.
Burrill had this to say:
“The reality is that many more officers without increasing the number of judges, prosecutors and public defenders, will cause the system to come to a grinding halt… When the court can’t handle that many cases because they don’t have the resources to do so, more cases are going to get dismissed.”
The links to quoted news source material are here:
METRO CRIME INITIATIVE
On Thursday, September 23, “Metro Crime Initiative” concluded. It was a series of meetings with law enforcement and community partners to address what all participants called the “broken criminal justice” system. The participants included the Governor office, the Attorney General office, the District Attorney, the Chief Public Defender, Senate and House members, the Mayor, City Council members, Bernalillo County Commissioners, APD, NM State Police, Metro and District Courts and many others.
The program consisted of 5 sessions, each lasting upwards of two hours. Panel discussions with law enforcement, court officials, prosecutors, defense attorneys, and representatives from higher education addressed opportunities for early intervention, detention, diversion and hearings, resources for victims’ advocates and offender reentry, and career pipelines.
The topics of discussion were broken down into 6 major categories. During the September 23 concluding press conference, local leaders admitted they have not been providing enough protection and resources to keep people safe. A list of 40 action items were revealed with the hope that once implemented they will lower Albuquerque’s crime efficiently and quickly. More than 20 departments statewide developed the checklist.
Following are the action items announce in each of the 6 categories:
1. Fully fund public safety agencies
2. Hire more officers
3. Create retention programs for officers
4. Expand crime-fighting technology
5. Crack down on chop shops by enacting a law that makes owning, operating or doing business with a “chop shop” a crime.
6. Extend anti-auto theft & felony warrant partnerships
7. Fund dashboard to track criminal cases
8. Support security infrastructure for businesses
9. Coordinate to identify violent criminals
10. Invest in mobile speed enforcement
REDUCE GUN VIOLENCE
11. Strengthen gun storage laws
12. Detain gun offenders until trial
13. Strengthen gun crime penalties
14. Close loopholes in Red Flag law
15. Urge gun owners to self- record serial numbers
16. Study gun violence as public health issue
CLOSE THE REVOLVING DOOR
17. Fix 24/7 ankle monitoring
18. Increase staffing in courts
19. Use grand juries to protect victims & clear backlogs
20. Limit case management orders to detainees
21. Expand court ordered treatment
22. Increase pre-arrest diversion offers
23. Lower cost barriers to diversion programs
24. Increase number of diversion agreements
25. Increase funding and capacity for specialty courts
REBUILD BEHAVIORAL HEALTH SYSTEM
26. Incentivize new provider services
27. Build peer support programs
28. Create 24/7 sobering center
29. Expand Turquoise Lodge
30. Increase addiction treatment services
31. Develop behavioral health career paths
32. Career training for underserved youth
EXPAND VIOLENCE INTERVENTION PROGRAMS
33. Fund CABQ Violence Intervention Program
34. Expand Violence Intervention Program statewide
35. Bring restorative justice to schools
Identified items added to the to-do list were the following:
36. Bail bond reform with a pre-trial presumption of dangerousness when an offender uses, brandishes, or is in possession of a firearm during a violent, drug or property crime.
37. Invest in “mobile speed enforcement” to free up officers while combating the scourge of dangerous driving”.
38. Create a task force to examine officer retention and lateral recruitment programs for all police agencies in New Mexico.
39. Create restorative justice programs in schools.
40. City funding for indigent copays for drug testing for pre-prosecution diversion programs”
EDITOR’S NOTE: A very detail “check list” pamphlet was produces containing details of each action plan and can be found here:
Links to quoted source material are here:
COMMENTARY AND ANALYSIS
Even if virtually all of the Governor’s proposed legislation passes it will not at all likely have any real impact on reducing violent crime. Way too much emphasis is placed on incarceration and punishment and with false presumptions. The proposed changes in the law announced merely scratch the surface of what needs to be done.
Too many of the 40 action items of the “Metro Crime Initiative” are ignored and not provided for at all in the Governors initiatives such as those action items listed under “Strengthen Diversion”, “Rebuild Behavioral Health System”, “Expand Violence Intervention Programs.” No funding is provided to expand court ordered treatment, to increase pre-arrest diversion offers, to increase addiction treatment services and behavioral health treatment.
The real problem is that the stakeholders who are part of the criminal justice system and who appeared at the January 13 press conference such as the District Attorney Raul Torrez, Mayor Tim Keller and APD Chief Harold Medina are simply not doing their jobs in a competent and effective manner to make a difference.
REBUTTABLE PRESUMPTION OF VIOLENCE TO PREVENT RELEASE
It was in 2016 that New Mexico voters approved a constitutional amendment that largely eliminated the former system of money bail bonds. The change was made to prevent low-level defendants from being kept in jail because they lacked money to post bail. The bond reform also authorizes judges to order defendants held without bail pending trial if prosecutors present evidence at a hearing showing that the charged defendant is an immediate danger to the public and there are no reasonable means to prevent the charged defendant from committing a crime while released pending trial.
Prosecutors and law enforcement officials across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend. They know damn well that judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.
On September 15, the Administrative Office of the Courts issued the results of a report to take sharp issue with recent proposals to change the bail bond system. The study was conducted by the University of New Mexico (UNM). The report supports the proposition that the existing system does not endanger the public. The UNM study reviewed 10,289 Bernalillo County felony cases from July 2017 to March 2020 in which defendants were released from jail while awaiting trial. The statistical findings were decisive and reported as follows:
Of the cases analyzed, only 13 were arrested for a first-degree felony while on pretrial release, or about 0.1% of the total.
19% of felony defendants released from jail pending trial, 1,951 of 10,289, were arrested for new criminal activity during the pretrial period. Most of those arrests were for fourth-degree felonies and misdemeanors, including property, drug and violent crimes.
Fewer than 5% of defendants, or up to 480, released pretrial were arrested for new violent crimes. Of the cases analyzed, 95.3% were not arrested for violent crimes during the pretrial period.
Artie Pepin, director of the Administrative Office of the Courts, had this to say about the study:
“The evidence from research clearly shows that the great majority of people released pending trial are not committing new crimes. … Objective research validates the pretrial justice improvements under way in New Mexico. Blaming judges and courts for crimes highlighted in news accounts does nothing to make anyone safer.”
Not at all surprising is that Jennifer Burrill, president-elect of the New Mexico Criminal Defense Lawyers Association had this to say about the “rebuttable presumption against release”:
“That basically means [the Governor, Keller and Torrez] are sacrificing … constitutional rights for their own political career. … We continue to ask the Legislature to make sure whatever decisions are made are based on evidence and not some kind of knee-jerk reaction, because that does not make the problem better. … That’s the same thing that we need to ask of our leaders on this situation.”
The link to quoted source material is here:
NOT A BROKEN SYSTEM, BUT STAKEHOLDER FAILURE
The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken as the “Metro Crime Initiative” participants would have all believe, especially those that are running for office. Yes, the criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance of the criminal justice system or political opportunism at its worst.
Imbedded in our constitution is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence. The corner stone of our criminal justice system is requiring prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.
When you examine the “check list” of the 40 different proposals that were the result of the Metro Crime Initiative, the proposals are essentially what all the participants have been working on over the past 2 years and include many programs already announced. The list contains nothing new. The items listed are ones that the participants should have been doing in the first place.
The 3 major stakeholders in our criminal justice system that are always signaled out when it’s argued that the criminal justice system is broken are law enforcement, the prosecution and the courts. When you examine these 3 major stakeholders in Albuquerque and Bernalillo County, one conclusion that can be arrived at is that they are not doing their jobs. They also have an extensive history of blaming others for their failures.
APD statistics for the budget years of 2019 and 2020 reflect the department is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51% going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.
In 2019 APD had 924 full time police. In 2020, APD had 1,004 sworn police or 80 more sworn police in 2020 than in 2019, yet arrests went down during the first year of the pandemic. APD’s homicide unit has an anemic clearance rate of 36%. The police union falsely proclaims officer’s hands are tied by the DOJ reforms and are afraid of doing their jobs for fear of being disciplined.
It is a “big lie” that the Department of Justice (DOJ) consent decree reforms are the cause of officer shortages, low morale and high crime rates. The Police Union has gone so far as to spend $70,000 on an ad campaign to disparage the reforms and blaming the consent decree for all of APD’s problems.
The Federal Monitor has documented the reform resistance and the negligent personnel management causing the problems they complain. The Federal Court and the Monitor have no management authority over APD. The departments problems are not caused by the reforms but caused by the way Keller, Medina and his 3 Deputies have implemented the reforms and union sergeant and lieutenant membership obstructing the mandated reforms.
A criminal prosecution cannot occur unless the prosecuting agency, usually the District Attorney, actually charges an offender and brings them to justice. When DA Raul Torrez ran for Bernalillo County District Attorney the first time, he said our criminal justice system was broken, it was in dire need of change and he was the guy to fix it. He is now running for Attorney General.
Within six months after being elected the first time, Torrez had his office prepare a report on the statistics regarding the number of felony cases that were being dismissed by the District Court. Torrez accused the District Court for being responsible for the rise in Albuquerque crime rates and releasing violent offenders pending trial. District Attorney Raul Torrez also accused defense attorneys of “gaming the system” in order to get cases dismissed against their clients.
A subsequent report prepared by the District Court revealed that it was the District Attorney’s office that was in fact voluntarily dismissing far more felony cases for various reasons, including his office not being prepared for trial, the office’s failure to meet discovery deadlines, and prosecutor’s failure to turn evidence over to defense counsel as mandated by law and discovery court orders.
The Bernalillo County District Attorney office currently has the highest voluntary dismissal rate in its history and indicts less than half what it would indict 10 years ago. Plea agreements with low penalties are the norm. Data given to the Supreme Court by the District court revealed overcharging and a failure to screen cases by the District Attorney’s Office contributes to a combined whopping 65% mistrial, acquittal and dismissal rate.
The courts are viewed as part of a broken criminal justice system whether they like it or not. That negative perception is aggravated when individual judges appear to be way too lenient in releasing violent felons and not holding them for trial without bond. The District Court Judges assigned to the criminal division point to the New Mexico Supreme Court’s Case Management Order (CMO), as does the District Attorney, that much of the discretion they had before to hold those charged until trial has been taken away.
Bookings at the Bernalillo County jail have plummeted from 38,349 in 2010 to 17,734 in 2020. It’s common knowledge amongst trial attorneys that Judges are concerned about their disqualification rates and appeal reversals and how they are perceived by attorneys and the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs.
The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. The participants in the city sponsored “Metro Crime Initiative” know what is wrong with the state’s criminal justice system. They know it is not a “broken system” but a “systems failure” caused by their own failures to act and to do their jobs effectively. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.