January 14, 2019

New direction, and infusion of money, seen for criminal justice system

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Lawmakers are hopeful that 2019 brings an opportunity to significantly overhaul major parts of the New Mexico criminal justice system, after what one key state senator called a “lost decade” that saw myriad ideas but scant action.

Bills are expected to address chronically high crime rates across the state, with a focus on speedier justice in cases involving violence and more lifeboats for people whose lesser crimes have saddled them with the stigma of a criminal record.

Related: Lawmaker confident about criminal justice reform’s chances of passage

There’s talk of a massive “omnibus” bill that would feature changes to New Mexico’s probation and parole systems, reparations for crime victims, the way law enforcement uses eyewitness testimony to seek convictions and several other laws.

Then there are the reforms that, in years past, have found support from both political parties but ultimately met the veto pen of Gov. Susana Martinez, a former prosecutor who for eight years stuck to her belief that New Mexico needed tougher penalties for lawbreakers, but largely stiff-armed proposals to address systemic injustices.

Those shifts — likely to be proposed in individual bills — would include limiting the use of solitary confinement in the state’s prisons and jails, creating a pathway for some offenders to have their criminal records wiped clean after a period of time and prohibiting private-sector employers from inquiring about job applicants’ past convictions in most instances.

House Speaker Brian Egolf, D-Santa Fe, says lawmakers even plan to propose a bill that would decriminalize personal possession of small amounts of all drugs in New Mexico. That would include drugs such as heroin and cocaine.

The reform discussion has been percolating against a backdrop of legislators’ deep dives into how other states have codified a shift in criminal justice thinking and, perhaps more importantly, $1 billion-plus in “new money” — the largest surplus to flood the Roundhouse in years.

Further, Democrats gained eight seats in the state House, increasing their majority, while maintaining their majority in the Senate. Senators were not up for election in 2018. Democrat Michelle Lujan Grisham won at the polls, too, flipping the governor’s mansion from Republican to Democratic control.

“It’s such a refreshing and hopeful place to be, because this really has been a lost decade for our state on criminal justice,” said Sen. Peter Wirth, D-Santa Fe. “We have new leadership now that wants to work with all sides to keep our state safe and to address what causes many crimes in the first place. And we have the money to do at least some of it. We’re starting from a huge position of strength we haven’t seen since 2007 or 2008.”

Just two years ago, Wirth, an attorney, warned in an interview with NMID that the state was “on the tipping point of a constitutional crisis.” He pointed to chronic underfunding for the courts, prosecutors, public defenders and treatment for people living with drug addiction and mental illness who had been caught up in the system. “The most pressing criminal justice issue right now is having a court system that’s able to address the laws that we’ve asked them to enforce. Nothing gets done before we attend to that.”

New Mexico’s judges are the lowest paid in the nation, according to the National Center for State Courts. In 2016, the state’s chief public defender was held in contempt of court after he told a judge his office couldn’t take on any more new cases if it was to fulfill its constitutional obligation to provide an adequate defense. And district attorneys across New Mexico have struggled keeping staff due to what they pay.

Rep. Antonio “Moe” Maestas, D-Albuquerque, told NMID he expects to see increases for all three proverbial “legs of the stool” holding up New Mexico’s criminal justice system.

But he cautions that legislators shouldn’t eye changes in criminal justice without considering the state’s behavioral health system in the same conversations. That’s because drug addiction, poverty and mental illness often sit at or just below the surface when someone commits a crime.

“That’s maybe where we don’t get all we want” in terms of budget hikes for new treatment centers, more social workers and incentives for behavioral health providers to grow and expand,” Maestas said. “With behavioral health, it’s a very steep climb. The (former) governor   dismantled an already fragile system — she didn’t need to do that, but she did. It will take time to rebuild.”

Still, Maestas, who co-chairs the Legislature’s Courts Corrections and Justice subcommittee with Republican Sen. Sander Rue, said the subcommittee has been working with the nonprofit Council of State Governments to identify funding priorities.

“We have information from other states, we have some data now,” he said. “What’s great about these criminal justice proposals I expect to see is that they will actually save money in both the short and the long term. And bigger picture, we know that every dollar we put into behavioral health saves $2 in criminal justice.”

It may not be quite so simple, however, with powerful fiscal conservatives from both parties calling for saving a large portion of the surplus rather than going on a spending spree.

But New Mexico has not just bucked the national trend in decreasing crime rates. This state also has lagged behind others in how well its criminal justice system functions. That means advocates for reform on issues like education and economic development will be competing for large shares of the “new money” that has come courtesy of an oil boom in the Permian Basin.

Fully funding the state’s education system, in addition to being a well identified, long-standing problem in New Mexico, is also now a judicial mandate after the state lost a seminal lawsuit earlier this year.

Maestas pegs infusing schools with the money they need as the Legislature’s No. 1 priority during the session. He puts criminal justice reform at No. 2.

“But because the pie is so much bigger than it has been in years, we don’t really have to fight over it,” he said. “It’s not competing interests anymore; it’s ensuring that each dollar is well spent.”

Maestas and Wirth said the fickle nature of the oil and gas industry should give legislators at least some pause as they decide what to do with the surplus. But they see the debate shifting from savings vs. spending to how much money should be dedicated for one-time fixes on issues like crime reduction vs. recurring spending on judicial salaries and more.

Maestas said the one-time money should go toward staffing at some of the state’s smaller law enforcement agencies, software integration that would help criminal justice agencies communicate better with one another and tools to collect criminal justice related data.

Missing from the debate this year, Maestas said, will be familiar, pet issues Martinez and her supporters in the Legislature pushed for years. Those include bringing back the death penalty for certain crimes, beefing up the state’s “three-strikes” law and ratcheting up penalties for a wide range of crimes.

But he said the Legislature is likely to significantly overhaul the state’s criminal code — including by increasing penalties for some crimes — during next year’s 30-day session.

It appears criminal justice reform legislation on the radar for this year has some support from Republicans, not just the majority Democrats. Bipartisanship, Wirth said, should help at least some bills get passed relatively quickly during the session.

Legislators from both parties also recognize the need to slash crime rates around the state, he said.

“It really does feel like the focus is finally where it should be: getting dangerous people locked up quickly, getting treatment for people who need it and ensuring we’re allocating money where it will do the most good long-term,” he said.