July 9, 2015

NM swims against criminal justice reform tide

The aftermath of a heinous crime that saw a career criminal kill a Rio Rancho police officer is sparking talk of tougher crime laws.

Jail CellNext week, state lawmakers in the interim Courts, Corrections & Justice Committee will hear testimony on a bill to add crimes to New Mexico’s existing “three strikes” law, which assigns mandatory life in prison sentences to convicts of three violent crimes.

Yet the local legislative doubling down on “tough on crime” laws—two Republican state representatives are proposing changes that would tighten New Mexico’s three strikes law—comes at a time with strong national momentum in the opposite direction.

And it’s Republicans with national ambitions that, in many cases, have been making headlines for this.

“Former [Texas] Gov. Rick Perry is going around the country bragging that he closed three prisons,” said state Rep. Antonio “Moe” Maestas, D-Albuquerque, who supports criminal justice reform.

Likewise, three other Republican candidates for president—Rand Paul, Jeb Bush and Ted Cruz—have been speaking about reforming tough crime laws on the campaign trail. Another GOP presidential contender, Wisconsin Gov. Scott Walker, recently went radio radio silent on his previous record passing tough crime laws as a state assemblyman.

Prominent conservatives like the megadonor Koch brothers and anti-tax activist Grover Norquist are lending their support to the judicial reform cause. And last month, the U.S. Supreme Court dubbed a key clause of the federal three strikes law as “constitutionally vague.”

New Mexico doesn’t seem close to catching onto this trend.

Little criminal justice reform in NM

“We are the last in our region in criminal justice reform,” Maestas said.

Until recently, Maestas co-chaired a legislative subcommittee devoted to criminal justice reform.

Two bills endorsed by the subcommittee passed the Legislature and made their way to the desk of Republican Gov. Susana Martinez during the most recent legislative session. One sought to limit probation periods while the other would have allowed nonviolent convicts to spend their last year of incarceration in a halfway house.

Martinez, a former prosecutor, vetoed both measures.

In a veto message, the former district attorney wrote that one of the bills “fails to recognize the valuable role of judges and probation officers tasked with educating and rehabilitating those convicted of crimes in keeping our communities safe.”

And last week, Martinez told the Associated Press that she supported a tougher three strikes law. Her office didn’t return New Mexico Political Report’s calls and emails for this story.

Maestas blames the lag on a lack of local leadership on criminal justice reform from the top—not just Republican Gov. Susana Martinez but also former Gov. Bill Richardson and former Attorney General Gary King, both Democrats.


State Rep. Antonio “Moe” Maestas

The criminal justice subcommittee disbanded after this year’s regular legislative session. Maestas, however, said he’s not discouraged because criminal justice reform measures will now go before the Courts, Corrections and Justice Committee. He added the success of a measure to end civil forfeiture—or allowing law enforcement to seize personal property from suspects without convictions—constituted one of the biggest criminal justice reform victories in years.

Still, Maestas is wary about pushes to add to the three strikes law.

“The impulse of my colleagues is to go backwards in time and reinvigorate bills from the 20th century,” he said.

Rep. Bill Rehm, R-Albuquerque, is a retired police officer and is seeking to add mandatory life in prison sentences for people convicted of three felony injuries as well as people with two convictions of “unlawfully killing someone.”

Rep. Paul Pacheco is also a Republican from Albuquerque and is also a retired cop. He has proposed to add aggravated burglary and conspiracy to commit murder to the three strikes law.

In a short interview, Pacheco said his bill was still in the first draft phase. Rehm’s bill is scheduled to be heard next week by the interim committee.

Violent or nonviolent offenders?

Rehm is unapologetic about his tough-on-crime stance.

“How many times does someone have to injure someone for us to say, ‘You’re too dangerous for society?” he told New Mexico Political Report. “How many times does someone have to kill for us to say, ‘You’re too dangerous for society?’”

New Mexico may still be the right place for this type of rhetoric. The state’s incarceration rate, at 321 inmates for every 100,000 people, lags the national average by 19 percent.

iStock_000002715910_LargeThe majority of these inmates, 67 percent according to state Corrections Department spokeswoman Alex Tomlin, are behind bars for violent crimes. None are serving for convictions under the state’s current three strikes law.

Still, Maestas contends that too many nonviolent offenders are burdening the system.

Some nonviolent crimes can still net offenders more time behind bars than some violent crimes. Drug possession with the intent to distribute, for example, can result in more prison time in New Mexico than an aggravated battery conviction.

“A defendant who stabs someone is facing three years,” Maestas said, “and a defendant with five rocks of crack is facing nine years.”

Andrew Romero, the career criminal charged with killing Rio Rancho police officer Gregg “Nigel” Benner in May, faced earlier convictions of manslaughter, drug trafficking and aggravated assault, to name a few.

Yet Maestas argued that the state’s judicial system is “overloaded with nonviolent crime” offenders, which led to overlooking Romero’s violent past. He argued that reducing penalties for nonviolent crimes will help prosecutors focus on violent crimes.

Rehm, however, said he doesn’t see “how one is related to the other.”

Others argue that New Mexico’s existing habitual offender law already covers the problem that those seeking a tougher three strikes law are looking to solve.

Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association, said prison sentences can stack up quickly under this existing law.

Under the habitual offender law, convicts who plead guilty to a second felony can get an extra year in prison sentenced to them with each count. Convicts pleading guilty to their third felony can earn four extra years behind bars for each count and eight years per felony count apply to their fourth conviction.

“The reality is people in the system know that that is unsustainable as a way of running a criminal justice system,” Coyte said. “We don’t have big enough jails to sustain that.”


State Rep. Bill Rehm

Coyte warned that a tougher three strikes law would wrongly take discretion away from judges, create overcrowded jails and lead to lawsuits over prison conditions that in the end hurt taxpayers.

“Politicians get elected by beating this drum, but it is a short-sighted way to go,” he said.

Rehm, however, argued that his bill is needed because the habitual offender law only goes back 10 years. In other words, the law doesn’t apply to a repeat offender whose last conviction occurred more than a decade ago.

The state Corrections Department did not provide inmate statistics on habitual offenders before press time.

If enacted into law, Rehm’s bill would most likely lead to more inmates behind bars, which comes with a pricetag. Rehm, however, isn’t sure how much it would cost yet because he doesn’t know how many extra prisoners it would require.

“I don’t, at this time, have that number,” he said. “I’m working on it now.”

Rehm said he doesn’t foresee raising taxes or taking money from other agencies, but he couldn’t explain where the state would find the extra money to pay for more prisoners.

Correction: An earlier version of this story misstated the state’s incarceration rate. We regret the error.