Because of Albuquerque’s and the State’s rising violent crime rates, strengthening the state’s crime laws and enacting anti-crime legislation became the number one priority of Governor Michell Lujan Grisham and the 2022 New Mexico legislature’s 30 day short session.
On March 9 Governor Michell Lujan Grisham signed into law the crime bill enacted by the 2022 New Mexico legislature. It is a sweeping crime package that was a result of significant compromising. The most controversial provisions in the crime package was the legislatures rejection of the “rebuttable presumption” in pretrial detention and it was replacing it with a 24-hour court monitoring program.
The enacted and now signed into law crime bill mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charged defendant awaiting trial from committing another crime. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices.
Other legislation signed into law by the Governor are:
1. Establish programs to recruit and retain law enforcement officers.
2. Allocate $50 million from the budget to establish an officer recruitment fund.
3. Strengthen penalties for gun crimes, including a felon in possession of a firearm and using a firearm to commit a felony.
4. Create criminal statutes for violent threats, property damage and chop shops.
5. Eliminate the statute of limitations for second-degree murder.
6. Increase to $1 million the death benefits for families of peace officers killed in the line of duty.
7. Establish the Violence Intervention Program Act and allocate $9 million from the budget to establish intervention programs statewide.
8. Allocate crime reduction grants, accompanied by $2 million in the budget for the grants.
Other provisions of the crime bill include:
The crime bill changes law enforcement training by banning choke-holds and teaching de-escalation techniques.
The crime bill bars the use of the “gay panic defense,” which involves defendants asserting the discovery of a person’s gender or sexual orientation caused them to harm the victim.
The bill redefines the role and composition of the Law Enforcement Academy Board and splits the board’s functions into two separate entities.
The legislation also creates new judges for the 2nd, 5th and 13th judicial districts.
In a statement after signing the crime package into law, Lujan Grisham had this to say:
“Every New Mexican deserves to feel safe in their communities – and they are demanding action from their government. … [This bill] expands upon the transformational work we’ve done in previous years, strengthening our state’s public safety system and making streets safer in every New Mexico community.”
Links to quoted news sources are here:
Notwithstanding the enactment of the crime bill, many within the legislature, the general public and prosecutors felt not enough was done to deal with violent crime and especially gun violence. The postscript to this article provides the sobering statics. If reducing violent crime in New Mexico is indeed the ultimate goal, more needs to be done that directly addresses gun violence and violent crime offenders.
FELONY SENTENCING IN NEW MEXICO
A review of the state’s sentencing laws in the context of violent crimes is in order.
New Mexico uses what is referred to as determinate sentencing system. It means that if you’re convicted of a felony, the judge will sentence you to a fixed term in prison, up to the legal maximum for the crime found guilty. The sentencing judge may alter the basic sentence by either decreasing or increasing the basic sentence and can do so by as much as a third if evidence at the sentencing hearing shows that there were mitigating or aggravating circumstances surrounding the crime or in a defendant’s background. Use of a gun in the commission of a crime is an aggravating circumstance and their are aggravating charges when a firearm is used in the commission of a crime.
Pre-sentence reports are prepared by the state’s corrections department, probation and parole division, where detailed reports are prepared on a defendants background and the crime committed and making recommendations to the court for sentencing. The prosecution at the time of a sentencing hearing presents the aggravating evidence or circumstances justifying increasing the basic sentence. The defense at the time of sentencing presents the mitigating evidence or circumstance to reduce the basic sentence and to argue for suspended sentences and no jail time.
In New Mexico, misdemeanors carry potential punishment of less than a year in local jail and fines. Felonies are serious crimes that may be punished by a year or more in prison and fines. For purposes of felony sentencing, New Mexico categorizes felonies into five groups: Capital Felonies, 1st , 2nd , 3rd and 4th degree felonies.
Following is a short summation of New Mexico’s criminal penalty sentencings:
New Mexico law lays out the basic prison sentences for each of the different categories of felonies. Except for capital felonies, these basic sentences are the maximum term of imprisonment for that degree of felony before any sentence enhancements. … The law also specifies the maximum fines that judges may order in addition to a prison sentence.
Convictions for capital felonies, such as first-degree murder, carries a a sentence of life in prison.
First-degree felony convictions carry a basic prison sentence of up to 18 years, plus a possible fine up to $15,000. However, if the felony resulted in the death of a child or was for aggravated criminal sexual penetration, the maximum penalty is life in prison plus a fine of $17,500. Other examples of first-degree felonies include kidnapping and sex trafficking a minor under age 13.
The basic sentence for most second-degree felonies is up to nine years in prison, plus a maximum fine of $10,000. Examples of violent crime second-degree felonies include armed robbery, armed burglary and armed assault with a deadly weapon.
Third-degree felony convictions carry a basic sentence of up to three years in prison and a possible fine of up to $5,000. Examples of third-degree felonies include voluntary manslaughter, residential burglary, distributing marijuana to a minor, and aggravated assault on a healthcare workers.
A fourth degree felony convictions carry a basic sentence of up to 18 months in prison and a fine up to $5,000. The maximum prison sentence is 10 years if the crime involved sexual exploitation of a child. Examples of fourth-degree felonies include larceny , or theft, of property worth more than $500 but no more than $2,500, personal possession of some illegal drugs , including methamphetamine and opiates.
ENHANCED FELONY SENTENCES IN NEW MEXICO
In addition to the alterations in basic sentences for aggravating or mitigating circumstances, New Mexico law requires an increase in those basic sentences in certain situations, including when the defendant has previous felony convictions and when the current offense was a hate crime. Under New Mexico’s habitual offender laws, if someone convicted of a felony, other than a capital felony has previous felony convictions, the basic maximum sentence for the current crime will be increased by the following amounts:
• One year for one prior felony conviction
• Four years for two prior felonies, or
• Eight years for three or more priors.
Other factors that could affect a defendant’s sentence include criminal history and the circumstances surrounding the crime.
The link to quoted source material is here:
FIREARM ENHANCEMENT SENTENCING
Criminal Sentencing becomes complicated when there is a firearm involved with felony charges. New Mexico has also enacted what is referred to as a firearm enhancement provision when it comes to crimes committed. When the defendant is convicted of a felony and a firearm is used, securing deferred jail time or a suspended sentence does not exist.
“Under New Mexico law, it is important to note that a firearm is defined as a weapon “designed to propel an object by an explosion”. There is a significant distinction between a firearm and a deadly weapon. Many objects may be used as deadly weapons. Much of the classification of a deadly weapon depends upon intent. As such, a lamp if used with deadly intent constitutes a deadly weapon. Firearm classification is more restrictive. For instance, a bb gun or even a C-O2 air gun may constitute deadly weapons depending upon the intent and use, but neither are considered firearms.”
The link to quoted source material is here:
It is section 31-18-16 of the New Mexico Statutes that provides for enhance sentences for brandishing of firearm. The statute provides as follows:
“A. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed … shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by one year.
B. For a second or subsequent noncapital felony in which a firearm is brandished, the basic sentence of imprisonment … shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.”
D. As used in this section, “brandished” means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person.”
MURDER OF CHILDREN AT THE HANDS OF CHILDREN
APD is saying they are seeing an increase in violent crime by increasingly younger offenders. All one has to do is look to the headlines in Albuquerque as proof of this fact. Those headlines include the following:
On August 1, 2020, 18-year-old Fedonta “JB” White, a Santa Fe High School basketball star and the state’s most highly recruited athlete was shot and killed at a house party in Chupadero. Authorities charged 16-year-old Estevan Montoya with the first-degree murder of White.
On August 13, 2021 Bennie Hargrove was shot 6 times by fellow classmate 13-year-old Juan Saucedo at lunch time during bullying incident outside Washington Middle. Saucedo was said to have taken his parents gun from home to the school on the day of the killing.
Late November 2021, a violent Halloween weekend left 5 dead around the Albuquerque metro area and left several others injured. A house party on the city’s west side left four people injured. Police say the shooting happened during a large house party on Fountain Court Northwest. Four people were shot in the leg, but police say none of the injuries were life-threatening. APD said a group of 4 young men that included a juvenile showed up at the apartment party and attempted to rob one man of his shoes before gunfire erupted. One of the shooting victims was a juvenile. When a detective asked an 18-year Acee who was one of the group of alleged intruders if it is a “normal thing” for people to be at a party with an AK-47, he reportedly replied, “This is Albuquerque.”
On February 25, 2022 16-year-old West Mesa High junior Andrew Burson was shot and killed just east of campus by a fellow student. Police say Burson and 14-year-old Marco Trejo were arguing over a “ghost gun” Burson had bought on the internet and assembled himself. Burson confronted Trejo near the football field, claiming Trejo had stolen the gun. Prosecutors say Trejo shot Burson with “no appreciation for human life.” On March 1, it was reported that 14-year-old Marco Trejo was charged with murder and tampering with evidence and is being held at the juvenile detention center while awaiting trial.
On March 4, 2021 it was reported that two Albuquerque High School students were shot at Santa Barbara Martineztown. According to the report, an Albuquerque High School student and his friends went to the park during their lunch break when a drive-by shooting broke out. According to APD, a freshman student was jumped by two other students in the parking lot of the school. The students agreed to continue the fight in the park during lunch. The freshman who was jumped brought two of his friends to the park as backup. However, instead of a fight, a silver vehicle with an unknown subject fired several rounds shooting the freshman’s two friends. Nearby schools were ordered to shelter in place after the shooting. Police said both shooting victims are expected to survive and detectives have tracked down and secured the vehicle related to this shooting.
NEW MEXICO CHILDRENS CODE
New Mexico has enacted the New Mexico Children’s Code that deals with the charging and prosecution of children for all crimes, misdemeanor and felony crimes. The children’s code is complicated. It essentially establishes a separate and distinct criminal justice system to charge minors, defined as those under the age of 18, and determining juvenile delinquency with petitions for children in need of supervision and charging a child as a “serious youthful offender”.
The Children’s code provides the process of charging, trying, convicting and sentencing of minors to the juvenile detention facilities and not the adult prison system. Minors do have rights that adults do not have such as criminal records being sealed and not open to the public. The children’s code provides for the process for the determination if a minor should be tried and sentenced as an adult for crimes committed. At the core of the children’s code is what is in the best interest of the child, the child’s family and rehabilitation.
Under the children’s, crimes are defined in terms of a “delinquent act”. Under the children’s code, “delinquent act” means an act committed by a child that would be designated as a crime under the law if committed by an adult. A “delinquent child” means a child who has committed a delinquent act. A “delinquent offender” means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender.
A “youthful offender” means a delinquent child subject to adult or juvenile sanctions who is 14 to 18 years of age at the time of the offense and who is adjudicated and found guilty for any number felonies. Those felonies include and are not limited to second degree murder, assault with intent to commit a violent felony, kidnapping, aggravated battery, shooting at a dwelling or occupied building or shooting at or from a motor vehicle, criminal sexual penetration, robbery, aggravated burglary, aggravated arson, and abuse of a child that results in great bodily harm or death to the child.
COMMENTARY AND ANALYIS
After the 2022 thirty-day New Mexico legislative session, many elected officials, law enforcement and the public quickly expressed disappointment that not enough was done by the New Mexico legislature. The blunt truth is that many of those complaining are of the mistaken belief that the legislature plays the biggest roll in reducing crime, which is simply not the case. Strong criminal laws are only as good as those enforce them, especially by law enforcement and the prosecution.
Enactment of strong crime laws goes only so far. Enhancements and increases in penalties will work to reduce violent crime only if law enforcement and the prosecution do their part. As it stands now, law enforcement and the prosecution are failing miserably, at least when it comes to Albuquerque.
APD statistics for the budget years of 2019 and 2020 reflect that APD 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%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests. APD’s homicide unit has an anemic clearance rate of 36%.
When Raul Torrez ran for DA the first time, he said our criminal justice system was broken. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system” to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court revealed it is the DA’s office dismissing more felony cases for various reasons than the courts. The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.
District Attorney Raul Torrez is also guilty of mismanagement of office personnel and resources despite repeated increases in budget. As of January 11, 2022 Bernalillo County District Attorney Raul Torrez has a $27,778,800 million operating budget, a whopping $6.2 million more than in 2018. Of the $27,228,800, $16,890,059, well over half, is dedicated to salaries. The office employs attorneys, paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance divisions. As of January 11, 2022, the office is budgeted for 332 full time positions with 285 of those positions “active”, meaning filled, and with the office having an alarming 47 vacancies. According to the New Mexico State Government Sunshine Portal, there are 16 vacant attorney positions within the DA’s Office. In addition to the vacant attorney positions, other noteworthy positions fully funded but vacant are investigator positions and legal assistant positions.
CALL SPECIAL SESSION
Governor Mitchell Lujan Grisham needs to call a Special Legislative to deal exclusively with enactment of an “Omnibus Gun Violence And Gun Control Act” to deal with the ever-increasing violent crime crisis in the state. While they are at it, they should deal with citizen militias. The sobering statistics reflecting just how bad things are in the state are in the postscript. The enactment sweeping changes to the criminal code needs to send the strongest message possible to deal with violent crime and to send the clear message gun violence is not tolerated in the state.
The “Omnibus Gun Violence And Gun Control Act” would include the following sweeping legislation to deal with gun control, gun violence and violent crime in the state:
ENHANCEMENT OF SENTENCES
The following increases in enhancements should be enacted:
1.Increase the firearm enhancement penalties provided for brandishing a firearm in the commission of a noncapital felony from 3 years to 10 years for a first offense and for a second or subsequent noncapital felony in which a firearm is brandished 12 years.
2.Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is brandishment of a deadly weapon, defined as an item or object used to inflict mortal or great bodily harm, in the commission of a noncapital felony with enhanced sentences of 5 years for a first offense and for second or subsequent noncapital felony in which a lethal weapon other than a firearm is brandished 8 years.
3.Enact legislation making it a 4th degree felony punishable up to 18 months in jail for failure to secure a firearm. Gun owners would have to keep their firearms in a locked container or otherwise make them inaccessible to anyone but the owner or other authorized users.
GUN CONTROL LEGISLATION
The New Mexico legislature could enact the following gun control measures:
4. Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.
5. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
6. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
7. Review additional bail bond reforms and statutorily empower judges with more authority and more discretion to hold and jail those pending trial who have prior violent crime convictions.
8. Institute mandatory extended waiting periods to a month for all sales and gun purchases.
9. Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
10. Ban the sale in New Mexico of “bump-fire stocks” and other accessories.
11. Provide more resources and treatment for people with mental illness.
12. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.
KEEPING FIREARMS OUT OF THE HANDS OF CHILDREN
Given the severe increase of murders of children at the hands of children, the “Omnibus Gun Violence And Gun Control Act” needs to include provisions directed at keeping firearms out of the hands of children and holding adults owner of guns responsible for their guns. Provisions that should be considered are as follows:
13. Currently, you must be at least 19 years old to legally possess a handgun in New Mexico and there is no minimum age to possess rifles and shotguns. Expand the age limitation of 19 to rifles and shotguns
14. Currently, the unlawful possession of a handgun by someone under age 19 is a misdemeanor carrying a penalty of from 6 months to one year in jail. It should be classified as an aggravated fourth-degree felony mandating a 2-year minimum sentence.
15. Expand the prohibition of deadly weapons from a school campus to school zones.
16. The case of any juvenile arrested possession of a weapon and charged by law enforcement are to be referred the District Attorney for automatic prosecution.
17. Make it a felony, in certain circumstances, if a person recklessly stores a firearm and a minor gains access to it to threaten or harm someone. If a firearm is accessed by a minor and used in the commission of a crime resulting in great bodily harm or death, the person responsible for storing the firearm could be charged with an aggravated fourth-degree felony, carrying a 24 month prison sentence.
If a firearm were accessed by a minor and used in the commission of a lesser crime, the person responsible for keeping or storing the firearm could have been charged with a 4th degree felony punishable by up to a 18 months in jail.
18. Mandate public school systems and higher education institutions to “harden” their facilities with more security doors, security windows, security measures, including metal detectors at single entrances designated and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers. Legislative funding needs to be provided to accomplish the requirement.
ENACT CITIZEN MILITIA REGISTRATION ACT
Citizens militias are becoming an ever-increasing problem not only in New Mexico, but across the country. A number of citizen militia, such as the “Proud Boys”, participated in the January 6, 2021 capital riot to stop the election certification of President Joe Biden.
The New Mexico Civil Guard is a heavily armed self-described militia group that has showed up at several protests around Albuquerque, including a June 2020 protest of the Juan de Oñate statue in Old Town where one protester was seriously injured. The New Mexico Civil Guard shows up to protests fully armed asserting they are there to protect public property and to keep the peace.
Citizen Militias are not regulated in the State of New Mexico and there is no comprehensive federal law that regulates them under the Second Amendment to the US Constitution. Those who take it upon themselves to associate and bear arms calling themselves “citizen militias” take it to the extreme when they attend protests fully armed in military attire proclaiming they are their to assume the responsibility law enforcement to protect people and property. Such attendance amounts to nothing but vigilantism.
As part of an Omnibus Enact legislation that either bans “citizen militias” entirely or regulate all citizens militias. Citizen militias need to be define along similar lines of how “gangs” are defined under federal criminal law or state law.
The link to a related blog article is here:
A “citizens miltia” could be defined as:
“An association of three or more individuals, whose members collectively identify themselves by adopting a group identity employing one or more of the following: a common name, slogan, identifying sign, symbol, flag, uniforms or military apparel or other physical identifying marking, style or color of clothing, whose purpose in part is to engage in the protection of private property and other people. A registered citizens militia may employ rules for joining and operating within the militia and members may meet on a recurring basis.”
A Citizen Militia Registration Act would require citizen militias to:
1. To allow only American Citizens to be members of a citizen militia.
2. Register with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) within the United States Department of Justice.
3. Require members to register their firearms with the ATF.
4. Pay yearly regulation fees and firearm certification fees and carry liability insurance.
5. Identify all their members by name, address and contact information.
6. Prohibit felons from joining.
7. Limit their authority and powers so as to prevent militias to engage in law enforcement activities.
8. Require members to pass criminal background checks and psychological testing.
9. Mandate training and instructions on firearm use and safety.
10. Require all militias and its members to agree to follow all local and federal laws.
11. Failure to register as mandated by federal would be a fourth degree felony.
FUNDING CRITICAL COMPONANT
Funding must be considered a critical part of any ‘ Omnibus Control Gun Control And Violence Act”. To that end, the legislature needs to fund and strengthen diversion programs. This would include funding to expand court ordered treatment programs and increase funding and capacity for specialty courts. Funding should also be provided to the behavioral health system, incentivize new provider services and build peer support programs and increasing addiction treatment services.
It is more likely than not many of the proposals suggested will make more than a few legislators uncomfortable. Until aggressive action is taken to not only change the laws but to enforce and prosecute violations of the laws, the city and the state will see very little reduction in the states violent crime rates and an increase number of body bags and funerals.
The final tally of murders Albuquerque for 2021 is 117. It shattered the previous 2019 record by 36 murders. 97 of the homicides involved guns. The dramatic increase in homicides and robberies is drug related and involves guns.
The link to quoted source material is here:
ALBUQUERQUE CRIME RATES IN A NUTSHELL
According to the 2020 FBI Unified Crime Reports:
Albuquerque has a crime rate of 194% higher than the national average.
Albuquerque’s Violent Crime Index for 2020 is 346% of the national average.
Albuquerque Property Crime Index for 2020 is 256% of the national average.
Albuquerque has made the top 100 list of most dangerous cities 5 years in a row. Neighborhood Scout’s provides comprehensive database of real estate data and compiles a listing of what it considers are the 100 most dangerous cities in the United States based on violent crime rates and population. Over the last 5 years, the city has gone from the low rank of #74 to a rank of #21. Following is Albuquerque’s rankings out of 100:
2021: #21 Ranking
2020: #23 Ranking
2019: #25 Ranking
2018: #50 Ranking
2017: #74 Ranking
NEW MEXICO CRIME RATES
In 2021 and into 2022, New Mexico continues to have a higher-than-average crime rates across the board. New Mexico has the second-highest violent crime rate in the US, behind Alaska with 8.4 incidents per 1,000. In a recent poll of New Mexico residents, 56% of respondents named gun violence as a top safety concern and above the US average of 53%.
The link to news source material is here:
SUICIDE AND HOMICIDE GUN DEATHS
In an average year, 389 people die by guns in New Mexico. with a rate of 18.3 deaths per 100,000 people, New Mexico has the 8th-highest rate of gun deaths in the united states. In New Mexico, 67% of gun deaths are suicides and 27% are homicides. This is compared to 61% and 36% respectively, nationwide.
On December 21, 2021, The New Mexico Department of Health (NMDOH) announced that 481 New Mexico residents died in 2020 from firearm-related injuries. This compares to 472 individuals who died by firearm injuries in 2019. The age-adjusted rate of firearm-related injury deaths in New Mexico in 2020 was 23.1 per 100,000 residents. This means that in 2020, for every 100,000 people in New Mexico, 23 individuals died by firearm. This rate is 3.4% higher than the age-adjusted firearm-related death rate of 22.3 deaths per 100,000 residents reported in 2019. However, compared to a decade ago, this rate is drastically higher. The 2020 rate is 55% higher than the rate from 2010 (14.9 deaths per 100,000 people).