On January 25, in an effort at “bipartisanship”, Governor Michelle Lujan Grisham held a high-level news conference with top Democratic and Republican legislators. She called upon them to support a wide range of “solutions” to deal with the state’s violent crime in the form of legislation she wants enacted during the 2023 legislative session. She had Albuquerque Police Chief Harold Medina and her newly appointed Bernalillo County District Attorney Sam Bregman attend the meeting for good measure and show.
The “public safety agenda” Governor Lujan Grisham asked the legislators to enact includes stiffer criminal penalties for organized retail crime and a measure to ban the purchase and delivery of different types of semi-automatic firearms. The top priorities the Governor outlined include:
- Enact Senate Bill 123 to establish “rebuttable presumption” for pretrial detention hearings in cases of defendants accused of certain violent crimes.
- Funnel additional $100 million to existing fund to support hiring and recruitment efforts for law enforcement agencies statewide.
- Close loophole on “straw” purchases of guns that end up in the hands of convicted felons.
- Make organized retail crime a specific offense punishable by felony charges when value of goods stolen exceeds certain threshold.
- Enact House Bill 9 that create criminal penalties for failing to keep firearms safely out of children’s reach.
Governor Lujan Grisham told legislators that previous communication breakdowns between different law enforcement agencies in Bernalillo County hampered efforts to crack down on crime. However, she expressed optimism that those issues have been resolved with a new leadership team that includes new Bernalillo County Sheriff John Allen. She also vowed to continue focusing on ways to reduce crime and she said this:
“It won’t always be easy and it won’t always be pretty, but we’re going to work together until we solve these issues.”
House Republican Minority Leader Ryan Lane, R-Aztec, was 1 of the only 3 House Republicans who attended the January 25 news conference. Lane said New Mexicans are tired of political posturing and he expressed a willingness to work with the governor on bills dealing with retail crime, pretrial detention and keeping guns out of felons’ hands. Lane also said Republicans would likely oppose other gun-related legislation. Lane said this:
“We believe strongly in the Second Amendment, so some of those are going to be challenging for us.”
NEW MEXICO’S HIGH CRIME
The backdrop to the Governor’s public safety agenda is New Mexico’s and Albuquerque’s high crime rates. Every year, the Federal Bureau of Investigation (FBI) compiles data from police agencies across the nation. The data from 2021, with 2022 data yet to be released, showed New Mexico had the nation’s second highest rate of total crimes against persons.
Links to quoted and relied upon news sources are here:
The FBI numbers show New Mexico’s per-population kidnapping and abduction rate was the highest in the nation. New Mexico’s firearm ownership and fatality rate is among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp.
In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping. Given New Mexico’s population, the state’s crime rate against persons per population is the second highest in the nation. FBI data shows for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons in 2021. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.
New Mexico law enforcement agencies reported nearly 25,500 instances of assault in 2021. That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before. Across New Mexico, police reported 193 homicides to the FBI in 2021. That’s 67 more than in 2020. Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.
New Mexico isn’t at the top of the list in all crime categories. While New Mexico law enforcement reported 1,663 instances of sex offenses in 2021, 6 other states had higher rates of sex offenses per population. That includes states like Alaska, Utah, and Montana.
New Mexico law enforcement reported 822 kidnappings and abductions to the FBI in 2021. That puts New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.
The link to quoted news source material is here:
According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries. This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.
ALBUQUERQUE AT FOREFRONT OF CRIME WAVE
Albuquerque is at the forefront of New Mexico’s high violent crime rate. According to legislative data released, the city had about half of the state’s violent crime in 2022 but has just 25% or so of its total population. The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque. The number of homicides in the city have broken all-time records. In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 121 homicides, a historical high.
It has been reported that there have been more APD police officer shootings in 2022 than during any other year before. In 2022, there were 18 APD Police Officer involved shootings,10 of which were fatal. In 2021 there were 10, four of which were fatal.
Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021. These numbers place Albuquerque among America’s most dangerous cities.
All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft. The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.
Links to quoted news sources are:
There are a number of the Governor’s public safety agenda proposals that will likely be absolute no starters. That includes “rebuttable presumption” to keep defendants behind bars until trial and certain gun control laws.
REBUTABLE PRESUMPTION AND PRETRIAL DETENTION
Governor Michelle Lujan Grisham is for a second time advocating major changes to the state’s criminal justice pretrial detention system in the form of enacting “rebuttable presumption” to make it easier to hold defendants accused of violent crimes until trial. The legislation would create a “rebuttable presumption” of dangerousness for defendants charged with violent crimes and that they be held without bond pending trial.
District Attorneys throughout the state have argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. As crime rates increased judges were accused of allowing “catch and release of violent felons”.
Over the last 6 years, prosecutors, law enforcement and elected officials have repeatedly slammed judges and the court system for letting out until trial those accused of violent felonies, particularly when they re-offend. 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.
The aim of rebuttable presumption proposals is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime. Opponents of rebuttable presumption say courts can already keep a defendant behind bars and that reputable presumption shifts the burden of proof to defendants and violates the basic constitutional right of presumption of innocence until proven guilty.
DA SAM BREGMAN SHOULD FIX HIS OWN OFFICE’S “PROCESS”
During the January 5 new conference, Governor appointed Bernalillo County District Attorney Sam Bregman for his part threw his support behind a bill proposed by Senator Linda Lopez and Representative Meredith Dixon, both Albuquerque Democrats, that would shift the burden in pretrial detention hearings from prosecutors to defense attorneys in certain types of cases, including murder and sexual abuse of children. This coming from former high-profile defense attorney Sam Bregman who for decades made a lucrative living defending defendants who were released pending trial, including one former APD police SWAT officer who was charged with killing homeless camper James Boyd.
Bregman cited internal data from the 2nd Judicial District Attorney’s Office showing that about 21% of the roughly 2,845 defendants released after pretrial detention motions were denied under the current system since 2017 were charged with new offenses while their original case was still pending. Bregman said this:
“What we need to is not point the finger at judges, but fix the process.”
At least Governor appointed Bernalillo County District Attorney Sam Bregman is not pointing fingers at the courts as being the cause of our high crime rates which is something his predecessor Raúl Torrez did for the 6 years to embellish his reputation so he could run for Attorney General. District Attorney Sam Bregman would be wise to concentrate on fixing the “process” as he put it within his own office.
DA Bregman needs to deal with the “S… Show” left to him by his predecessor Raúl Torrez. It’s Bregman’s office now, given to him by the Governor, and he needs to deal with its problems first before trying to “fix the process”. What Bregman did not point to is that the Bernalillo County District Attorneys’ Office has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. A report prepared by the Second Judicial District for the New Mexico Supreme Court showed in part how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to the high mistrial and acquittal rates.
As of November 21, 2022, according to the New Mexico State Government Sunshine Portal, the Bernalillo County District Attorney’s Office has a $30,350,800 million operating budget with an adjusted operating budget of $36,680,800 which includes all sources of financing including federal grants. The office is budgeted for 337 full time positions. The office is suppose to employ 102 attorneys who are “at will” but only has 81 filled positions with 21 vacant positions. The 255 other “classified” employees of the office consisting of paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance division personnel who can only be terminated for cause under the state personnel rules and regulations. 276 of the positions are “active” meaning filled. The office has an alarming 61 vacancies. The number of vacancies in the office is larger than most other District Attorney’s offices in the state.
The New Mexico legislature needs to do its “due diligence” during its hearings on the the budget for the Bernalillo County District attorneys office and confront District Attorney Sam Bregman and get to the bottom of why there are so many vacancies and if the funding is appropriate.
LFC REPORT DISCREDITS REBUTABLE PRESUMPTION
Many legislators remain very skeptical of rebuttable presumption. Las Cruces area Democrat Senator Joseph, a highly respected and seasoned trial attorney and the Chairman of the influential Senate Judiciary Committee, said he believes the current system is largely working as intended under a 2016 bail reform constitutional amendment. Cervantes described a rebuttable presumption as a “unconstitutional shortcut.” Cervantes also attended the January 5 news conference and said not all of New Mexico is beset by crime. He cited Sunland Park as one of the state’s safest communities and said this:
“We operate under the same laws as the rest of the state, and we have entirely different outcomes.”
It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.
LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial.
According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report said that while crime rates have increased, arrests and convictions have not. It goes on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.
The LFC memo states in pertinent part:
“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment. … For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.
“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level. … Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”
The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:
“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.
CHIEF JUSTICE URGES LAWMAKERS TO BALANCE PUBLIC SAFETY WITH RIGHTS OF THE ACCUSED
On January 25, New Mexico Supreme Court Justice Shannon Bacon cautioned the legislators on the need to balance the rights of accused persons while protecting the public safety. She noted New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely abolished the system of money bail bonds. She said the old bond system resulted in most criminal defendants being free until trial.
Justice Bacon said told legislators this:
“We all feel deep sorrow and fear when we read about a senseless death and other tragedies as a result of crime, … Yet we must remember why our Constitution protects the rights of every person, including those accused of crime. … With the elimination of money bail, judges now have the ability to assess dangerousness. … In Bernalillo County, this has resulted in the detention of over 3,000 defendants pending trial – something that could not happen before with the bail bond system.”
GUN CONTROL MEASURES SUPPORTED BY GOVERNOR
No legislation generates heated discussion by the legislature more than gun control legislation. Republican lawmakers strenuously oppose any and all gun control bills.
Governor Lujan Grisham announced in her January 17 “State of the State” address she is supporting enactment of gun control measures. She has announced support of the following 4-gun control measures in this year’s 2023 sixty day legislative session:
- Banning the sale of AR-15-style rifles.
- Allowing crime victims to sue gun manufacturers.
- Making it a crime to fail to properly secure a firearm that’s accessible to an unsupervised minor.
- Closing a loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.
GUN CONTROL BILLS INTRODUCED
Lawmakers were allowed to prefile legislation starting January 3 for the 60-day legislative session, which got underway on January 17. Unlike the shorter 30-day sessions held during even-numbered years, bills dealing with any type of subject issue can be proposed without approval from the governor during the longer 60-day sessions. Thus far the following 6 measures have been introduced:
House Bill 9: Create the crime of negligently making a firearm accessible to a minor.
House Bill 50: Prohibit magazines with more than 10 rounds.
House Bill 72: Prohibit possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
House Bill 100: Establish a 14-day waiting period for the purchase of a firearm.
House Bill 101: Prohibit possession of assault weapons – such as certain semiautomatic rifles and pistols – and magazines of 10 rounds or more.
Senate Bill 44: Prohibit carrying a firearm within 100 feet of a polling place during an election.
Senate Bill 116: Raise the minimum age to 21 for purchasing an automatic or semiautomatic firearm.
The links to quoted news source material are here:
ENACT “OMNIBUS VIOLENT CRIME AND GUN CONTROL” ACT
The biggest problem with the Governor’s agenda to deal with crime as well as the legislation that has already been introduced is that it is a “piecemeal approach” which is essentially a vicious cycle of going around and around proposing the same solutions to address crime and getting nowhere fast.
What the Governor and the New Mexico Legislature should seriously consider is a more comprehensive approach to gun violence and control and enact an “Omnibus Violent Crime And Gun Control Act”. Such an act by enacting sweeping legislation to deal with gun control, gun violence and violent crime in the state.
The act would incorporate the legislation the Governor has endorsed with a very modified version of the “rebuttable presumption” standard without shifting the burden of proof to the defendant. The legislature should empower judges with far more discretionary authority to hold and jail those pending trial who they feel pose a threat to the public.
ENHANCEMENT CRIMINAL SENTENCINGS
The following increases in enhancements should be included in the Omnibus Violent Crime And Gun Control Act:
- 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.
- Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment 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.
- 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.
- Increase the penalty of shooting randomly into a crowded area from a petty misdemeanor to a fourth-degree felony.
- Allow firearms used in a drug crime to be charged as a separate crime.
- Make organized retail crime a specific offense punishable by felony charges when value of goods stolen exceeds certain threshold.
GUN CONTROL LEGISLATION
The Omnibus Violent Crime And Gun Control Act should include the following gun control legislation:
- 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.
- Ban the sale of AR-15-style rifles in the state.
- Prohibit the sale of gun magazines with more than 10 rounds. (House Bill 50)
- Prohibit possession of assault weapons, such as certain semiautomatic rifles and pistols, and magazines of 10 rounds or more and making it a 4th degree felony for the first offense and a 3rd degree felony for a second offense. (House Bill 10)
- Prohibit possession of semiautomatic firearm converter that allows the weapon to fire more rapidly. (House Bill 72)
- Prohibit carrying a firearm within 100 feet of a polling place during an election. (Senate Bill 44)
- Establish a 14-day waiting period for the purchase of a firearm. (House Bill 100.)
- Close the loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.
- Allow crime victims to sue gun manufacturers for damages.
- 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.
- Review additional bail bond reforms and statutorily empower judges with more discretionary authority to hold and jail those pending trial who have prior violent crime charges and reported incidents.
- Institute mandatory extended waiting periods to a month for all sales and gun purchases.
- Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
- Ban the sale in New Mexico of “bump-fire stocks” and other accessories.
- Provide more resources and treatment for people with mental illness.
- Limit gun purchases to one gun per month to reduce trafficking and straw purchases.
- 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.
KEEPING FIREARMS OUT OF THE HANDS OF CHILDREN
Given the severe increase of murders of children at the hands of children, the Omnibus Violent Crime 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:
- 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. (Senate Bill 116)
- 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.
- Expand the prohibition of deadly weapons from a school campus to school zones.
- 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.
- 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.
- 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.
ADEAQUATE FUNDING FOR CRIMINAL JUSTICE SYSTEM
The Governor’s proposal to funnel additional $100 million to the existing fund to support hiring and recruitment efforts for law enforcement agencies statewide is a good start as to law enforcement. The Omnibus Violent Crime And Gun Control Act must also include adequate funding for the criminal justice system in general. This would include funding the District Attorney’s Office, the Public Defender’s Office, the Courts and the Corrections Department.
The Governor’s continued support of Rebuttable Presumption for pretrial detention in all likelihood is a real waste time and she needs to turn her attention elsewhere. Her January 25 effort at bipartisanship came across as her saying to legislative leaders “pretty please” given how swiftly it was rejected last year.
The other legislative measures being supported by the Governor are first good steps in the right direction to help curb gun violence, but in all likelihood do not even come close to what is actually needed to have an impact on preventing gun violence. A far more comprehensive approach is what is needed in the form of an Omnibus Violent Crime And Gun Control Act to deal with crime in New Mexico and funding.