New Mexico CRIMINAL DEFENSE LAWYERS ASSOCIATION

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1 New Mexico CRIMINAL DEFENSE LAWYERS ASSOCIATION PO Box 8324 Santa Fe, NM President Barbara Mandel Las Cruces President-Elect Matthew Coyte Albuquerque Vice President Barry Porter Albuquerque Secretary Margaret Strickland Las Cruces Treasurer Angelica Hall Albuquerque Executive Director Cathy Ansheles Santa Fe Legislative Coordinator Susan Saleska Hamilton Santa Fe April 15, 2014 Representative Antonio "Moe" Maestas, Co-Chair Senator Lisa A. Torraco, Co-Chair Representative Gail Chasey, Member Representative Zachary J. Cook, Member Senator Cisco McSorley, Member Senator Bill B. O'Neill, Member Representative Jane E. Powdrell-Culbert, Member Senator Sander Rue, Member Dear Criminal Justice Reform Committee Members: We are grateful for the opportunity your sub-committee presents for the New Mexico Criminal Defense Lawyers Association (NMCDLA) to address concerns with New Mexico s Criminal Justice System. We recognize other organizations will be joining NMCDLA in offering suggestions and we appreciate you considering our highest priorities attached with this letter. We hope that the committee will consider legislation to address these problems and we are available to answer questions or provide more information. Thank you for your commitment, dedication and time. Sincerely, Melissa Hill, Co-Chair, Legislative Committee 1 Lee Hood, Co-Chair, Legislative Committee

2 NMCDLA supports amendments to the Public Defender Act (N.M. Stats. Ann et seq.), to prohibit flat fee contracts in criminal cases and to require payment of reasonable hourly rates no less than Risk Management Attorneys receive, to be determined by the Public Defender Commission. New Mexico contract criminal lawyers presently receive flat fee payments for representation in criminal cases. The current rates vary by Judicial District and class of offense for felony representation and range from a low of a $ flat fee payment for a 4 th Degree felony to a high of $ for a 1 st Degree felony (5 th, 9 th, and 10 th Judicial Districts only). Lawyers appointed to first-degree murder cases and life imprisonment cases receive a flat fee of $5,400, no matter how many hours of work are required. Misdemeanor cases are paid at a flat rate of $180 per case. Juvenile cases are paid at a flat rate of $ per case, except in the 5 th District, which pays $300 per case. (See, Public Defender Department RFP with contract counsel rates: Appendix 1, p. 14.) By contrast, Risk Management lawyers who represent the state in such civil matters as personal injury cases, medical malpractice, employment, and civil rights cases, are paid hourly rates based on the number of years that an individual attorney has practiced law as of the effective date of the contract. Payment rates range from $90.00 per hour for counsel with fewer than two years in practice to $160 per hour for an attorney with ten years or more in practice. There is no reason why the lawyers who represent indigent defendants, whose freedom may be lost and lives ruined by a criminal conviction, should not receive comparable pay. For example, an attorney is not qualified for appointment to a 1 st degree felony without four years of experience actively practicing law. (Appendix 1, p. 12.) Contract criminal attorneys in 1 st degree felony cases [other than first degree murder and life cases] receive only a flat fee of $700 to $750 per case, even if the matter has to go to trial. A Risk Management attorney with the same number of years of experience would receive $ per hour. This makes no sense. In Wilbur v. City of Mt. Vernon, No. C RSL, the ACLU filed a class action lawsuit against the City of Mount Vernon, challenging the cities public defense system for systematically failing to provide meaningful assistance of counsel as required by the United States and Washington Constitutions. In December 2013, the U.S. District Court ruled that the municipality s system was broken to such an extent that the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. (See, Wilbur decision: Appendix 2.) The current penurious system of compensation for contract lawyers similarly jeopardizes New Mexico defendants rights under the Federal and State Constitutions to the meaningful assistance of effective counsel, and is a lawsuit waiting to happen. 2

3 NMCDLA supports an amendment to Section NMSA, to eliminate the mandatory real time GPS monitoring requirement for sex offender parolees. Current law mandates real time GPS monitoring for all sex offender parolees. The problem is that some rural parts of our state don t have the capability to provide real time monitoring due to the absence of the necessary technology. Consequently, some sex offenders who are eligible for parole must spend parole in prison because their home communities cannot provide real time GPS monitoring. This is very costly for the state. In 2011, a bill was introduced to soften, not eliminate, the real time monitoring requirement and return discretion to the Parole Board to release an eligible sex offender on parole notwithstanding the unavailability of real time GPS monitoring in the area where the parolee or his or her family lives. (See, Appendices 1 & 2; House Consumer and Public Affairs Substitute for House Bill 439 (2011); FIR for HB 439.) Had the bill made it through the legislative process, it would have allowed the best available monitoring technology to be used when person eligible for parole is to be released to an area without the technology for real time GPS monitoring. Electronic monitoring of sex offenders would have been required using global positioning system monitoring technology or any technology that would provide reliable information on the sex offender s whereabouts and enable law enforcement and the corrections department to determine the position and movements of a sex offender with a high degree of accuracy. The bill would also have returned discretion to the Parole Board to suspend the real time electronic monitoring requirement for paroled sex offenders who don t really need such monitoring for the entire duration of their parole. We support the passage of a bill substantially similar to HB 439. It would save the state money, and have no negative impact on public safety. In fact, the public will likely be safer if sex offender parolees are released on parole supervision, rather than being released outright without such supervision after serving parole in prison. 3

4 NMCDLA supports the elimination of all mandatory sentencing laws because such laws deprive the criminal courts of discretion to impose shorter sentences even when there are substantial and compelling reasons to do so. Mandatory sentencing laws exist at great cost to the state. Defendants are often subjected to long terms of mandatory imprisonment regardless of the risk they pose to the public and whether the interests of justice require a sentence of such magnitude. A 2011 report by the United States Sentencing Commission found that certain mandatory minimum provisions apply too broadly and are set too high; lead to arbitrary, unduly harsh and disproportionate sentences; can bring about unwarranted sentencing disparities between similarly situated offenders; have a discriminatory impact on racial minorities; and are one of the leading drivers of prison population and costs. (See, Appendix 1; Vera Institute of Justice Policy Report, Playbook for Change? States Reconsider Mandatory Sentences (February 2014).) In 1999, a bill passed both houses of the Legislature that would have amended the Sentencing Standards Act to return discretion to judges to depart from a mandatorily prescribed sentence if the judge makes a specific finding that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed. (See Appendix 2: House Bill 225 (1999 Reg. Session).) This bill did not go far enough because it still left intact presumptions favoring the imposition of mandatory sentences for habitual offenders, and would have given judges very limited discretion to depart. Moreover, the bill was vetoed by Governor Gary Johnson. NMCDLA supports abolition of mandatory sentencing. In the alternative, NMCDLA urges this Committee to at least reconsider the State s mandatory sentencing policies, and to propose amendments to such laws that would give judges broader discretion to depart from mandatory sentences when the facts and circumstances warrant departure. 4

5 NMCDLA supports the adoption of legislation to require the preparation of fiscal impact statements for any legislation that creates a new crime or repeals an existing crime for which imprisonment is authorized for an existing crime, imposes or removes mandatory minimums of imprisonment or modifies the law governing release of inmates in such a way that the time served in prison will increase or decrease. Any such bill should mandate that criminal justice legislation subject to the fiscal impact statement requirement be accompanied by an appropriation equal to the fiscal impact of the bill. Every year, hundreds of criminal justice bills are introduced in the New Mexico Legislature. Changes in the criminal laws often have significant and recurring fiscal impacts on the prison system, county jails, judicial system, and defense and prosecutorial agencies that go unconsidered. (See Appendix 1: Senate Bill 450 (2013 Reg. Session) and Appendix 2: FIR for Senate Bill 450.) The New Mexico Legislature should make important public safety decisions with accurate information regarding the real fiscal impact of its bills. Legislation has been proposed in past legislative sessions to impose just such a requirement. In 2007, a bill requiring fiscal impact statements for all criminal justice legislation was passed by both houses of the Legislature but pocket vetoed by Governor Richardson. (Appendix 3: HB 296 (2007 Reg. Session); Appendix 4: FIR for HB 296.) In 2013, a substantially similar bill was introduced but did not make it through the legislative process. (SB 450 (2013 Reg. Session) Appendix 1.) The New Mexico Sentencing Commission has the capability to conduct the type of fiscal analysis that such potentially costly criminal justice legislation should require. (See, Appendix 2.) In all likelihood, the costs of implementing a fiscal impact statement requirement would be outweighed by the reduced costs to the state that would result if legislators were given the tools necessary to intelligently weigh the costs and benefits of criminal justice bills before they are signed into law. 5

6 NMCDLA supports legislation to create treatment alternatives to incarceration. A) With respect to drug crimes: According to House Memorial 9, passed by the Legislature in 2009 (Appendix 1: HM 9; 2009 Reg. Session), as of that year, an estimated 55,000 New Mexicans needed, but were not receiving, treatment for illicit drug use problems. Additionally, according to the Department of Health, New Mexico s rate of prescription opioid and heroin-related overdose rates are significantly higher than the national average. (Appendix 1.) According to the Rand Corporation, every one-dollar ($1) invested in substance abuse treatment results in a savings to taxpayers of more than seven dollars ($7) through reduced societal costs of crime, violence and loss of productivity. (Appendix 1.) In 2013, the Drug Policy Alliance published An Exit Strategy for the Failed War on Drugs: A Federal Legislative Guide. (Appendix 2.) The guide outlines a roadmap for reform of drug laws at the federal level. Many of the recommendations of the Drug Policy Alliance for reform apply equally at the local level. For example, New Mexico should declare a moratorium on creating new drug crimes, increasing existing drug sentences, or criminalizing the possession and use of more drugs. Mandatory minimum sentencing laws should be repealed for drug offenses, and discretion should be returned to judges. Scarce public resources should be spent on effective drug treatment programs in lieu of incarceration. (See, Appendix 2.) In 2007, both houses of the New Mexico Legislature passed a bill that would have created a twoyear pilot project to provide opiate replacement treatment to fifty women with a history of heroin or other opiate addition who were incarcerated at and are to be released on parole from the New Mexico women s correctional facility in Grants. (Appendix 3: HB 528 (2007 Reg. Session).) Unfortunately, the bill was pocket vetoed by Governor Richardson. The State s failure to implement treatment alternatives to incarceration has consequences. The Albuquerque Journal reported on April 11, 2014, that the Department of Corrections is soliciting private proposals to operate an 850-bed prison facility for women because the state is failing to keep pace with the projected growth in the number of female inmates many of whom are known to be drug addicts. (Appendix 4: Albuquerque Journal, State seeks space for 850 female prisoners. (April 11, 2014).) HB 528 (2007) did not go far enough because its impact would have been limited to 50 women. The bill was a step in the right direction and serves as an example of the type of legislation that is badly needed to address New Mexico s drug addiction problems using alternatives to incarceration. B) With respect to non-drug crimes Treatment alternatives to incarceration are reasonable and also substantially cost-saving in many other areas of the criminal law. Often crimes are charged due to momentary out-of-character acting-out that can be substantially remedied by counseling, anger management, mental health treatment, or other conditions. This is the principle of, for example, the Metro Court Early Intervention Program (EIP) which has strict criteria for admission and strict conditions, including a consultation by staff with the alleged victim. If the defendant can complete certain certified counseling and meet other conditions, including no new criminal charges, for a period of time usually six months, then the charges will be dismissed. This program improves the life of the victim, defendant, their family, and the community, and is significantly less costly than incarceration. Many other types of criminal charges are appropriate for treatment rather than incarceration, and the courts should have more discretion for using such alternatives in appropriate situations. 6

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