Criminal competency initiatives are a major part of public safety discussions by legislators and other state leaders both before and since the July 18 special session.
The Courts, Corrections and Justice Committee Tuesday meeting included a presentation on the Supreme Court Commission on Mental Health and Competency.
“Competency clients… are typically those that struggle with severe mental illness, have traumatic brain injuries or substance abuse… or they’re unhoused, or they lack family support, so they’re struggling on many different layers and just simply treating someone back to competency,” 2nd Judicial Deputy District Attorney Karl Swanson said.
Swanson, New Mexico Supreme Court Justice Briana Zamora, Administrative Office of the Courts Senior Attorney Alison Pauk and Deputy Chief Jennifer Barela presented an update on the Supreme Court Commission on Mental Health and Competency. They also presented a draft competency statute with notes from the commission.
“I know that criminal competency and how we address severe mental illness in our criminal justice system is complex, and I truly appreciate your willingness to take this up,” Zamora said.
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The panel described ways to improve New Mexico’s criminal competency proceedings, including a more collaborative effort between the three branches of state government.
This includes “collaborating with law enforcement, collaborating with the community services, collaborating with probation and re-entry to create programs that provide a continuum of care,” Zamora said. “If we’re going to have a case manager or forensic navigator that is serving our criminal defendants while they’re in the justice system, then why would they be court employees? Why wouldn’t they be out of a behavioral health center where law enforcement can divert them there? Where probation can divert them there, where the emergency room can divert them there?”
Currently, a defendant found incompetent to stand trial, usually has their case dropped or they are deemed dangerous and sent to the New Mexico Behavioral Health Institute in Las Vegas where they are brought up to competency.
“Under the current statute, that is all we can do,” Swanson said. “Simply treating someone back to competency, all that does is give them a rational understanding of the criminal proceedings before them. It doesn’t address those underlying needs like we need to.”
The proposed legislation presented by the panel includes potential solutions to the problem by offering the possibility for the trial to be stayed while the defendant is undergoing a court-ordered Assisted Outpatient Treatment plan to help the person get behavioral health assistance so long as all sides agree that the AOT is an appropriate next step pending a psychological evaluation.
AOT is already active as pilot programs across the state in Bernalillo and Doña Ana Counties with misdemeanor competency diversion pilot programs planned for Doña Ana, San Miguel and Otero counties.
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Funding for these programs was included in the only legislation the legislature passed during the July 18 special session.
The bill appropriated $3 million toward the AOT programs.
Although the program seems to be working in Las Cruces, Senate Pro Tempore Mimi Stewart, D-Albuquerque, expressed exasperation at the tone of the suggested solutions.
“We don’t have enough assisted outpatient treatment, so instead, we’re going to focus on an outpatient competency restoration,” Stewart said. “It sounds good, but I can’t imagine what it looks like having all this work going into deciding to try to train someone, to educate them to be more rational.”
Stewart added that the patients in these programs need regular psychiatric treatment, housing and other needs to help lift them out of poverty.
“And yet we’re going to focus on making sure they understand that they did a crime and they have to help their attorney to get them either in or out of jail. It just seems backwards and crazy making to think that that’s what we’re going to focus on,” Stewart said.
Zamora responded that the working group agrees with Stewart.
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“Everything that says diversion in here has nothing to do with competency restoration and everything to do with behavioral health treatment, housing services, as well as the option of saying, instead of restoring, instead of utilizing that time and those resources that where there’s an AOT program will do that instead, and that’s not an off ramp that’s created in our current system,” Zamora said.
The Supreme Court Commission on Mental Health and Competency included, but was not limited to, members of judicial, legislative and executive branches of government including the Office of the Public Defender and district attorneys from across the state; it also had participation from the American Civil Liberties Union of New Mexico and National Alliance on Mental Illness New Mexico.
Speaker states his piece
Speaker of the House Javier Martinez, D-Albuquerque, spoke during the meeting about what he called misunderstandings and misinformation being disseminated following the special session.
The session was called to deal with items on the governor’s agenda, including the competency question and the median/pedestrian safety issue.
The issues, which he and his legislative colleagues have addressed, included the timeliness factor and how the bills on the proposed agenda were not properly vetted nor could some of them be enforceable.
“I was in Silver City this weekend, and I saw a group of kids from Silver High fundraising, and I looked at the median… it’s about 18 inches that would have been made illegal (by the proposed pedestrian safety legislation). And I’m wondering, would the local police departments have been enforcing that? I seriously doubt it, because, as they always tell me, they have bigger fish to fry,” Martinez said.
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He also spoke about the public safety funding that was appropriated but not used.
“We heard yesterday, 40 plus percent of funds appropriated by this legislature to deal with these complex public safety issues has gone unspent. We know that my hometown of Albuquerque apparently didn’t apply for law enforcement retention and recruitment funding. That is shameful,” Martinez said. “It takes on average two to three months to get a building permit in this town, and that’s if you pay the expedited process. How are we going to build housing when it takes that long to issue a building permit?”
Martinez added that the public safety issues did not happen overnight and included the 2014 mental health infrastructure that was dismantled by then-Governor Susana Martinez.
“And yes, it’s been 10 years, and yes, it’s been a struggle to rebuild that system,” he said. “If anyone of you in this room has a family member or a friend or a neighbor who calls you right now and tells you ‘I have been abusing drugs and I am ready, help me.’ Good luck finding the supports for that person right now.”
Even with insurance, finding behavioral health and drug rehabilitation facilities is hard, Martinez said.
“The notion that we have the beds to put all these people in, the notion that we have the services to provide all these people, is simply not true,” he said.
Martinez continued stating his frustration that the legislature could appropriate $1 billion to these programs but questioned, “Is it going to be used? Is it going to be spent? Is it going to be executed? Is it going to be implemented? The track record is not very good.”