Scaled back probation, parole reforms advancing in Legislature

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A legislative effort to reform parts of New Mexico’s probation and parole systems is limping along as lawmakers near the halfway mark of this year’s 30-day session.

House Bill 263, with a large group of sponsors from both parties, is meant primarily to decrease the number of people on probation and parole who are sent back to jail or prison for relatively minor infractions, so-called “technical violations.” Those include some failed drug tests and missing appointments with a probation or parole officer.

If passed and signed, the measure would mark the beginning of a shift for the Corrections Department’s Probation and Parole Division — from a punitive approach to a more restorative philosophy. 

That means helping people address the underlying issues that keep them in the criminal justice system instead of trying to ensure public safety with jail cells — particularly when considering people who commit lesser offenses. 

That core purpose of the bill has remained intact over the past year, as legislators have worked on a “compromise” version with state prosecutors and others following a dust-up over the proposed reforms after last year’s legislative session.

The state House and Senate passed a broader set of changes in 2019, but they met Gov. Michelle Lujan Grisham’s veto pen after Attorney General Hector Balderas and all 14 of New Mexico’s district attorneys sent her a letter outlined fatal problems as they saw them.

In her veto message, Lujan Grisham asked sponsors to meet with the prosecutors and iron out their differences. She wanted a new version of the bill ready for 2020.

Rep. Antonio “Moe” Maestas, D-Albuquerque, has led several criminal justice reform efforts in recent years, including for the probation and parole systems. This year, Maestas has a slew of cosponsors, some of whose names don’t often turn up on reform minded criminal justice legislation. 

Rep. Bill Rehm, an Albuquerque Republican and retired Bernalillo County Sheriff’s captain, reminded New Mexico In Depth that he voted against the version of the bill passed last year.

This year, his name is on it.

Rep. Bill Rehm, R-Albuquerque

“The DAs and the AG had a lot of issues with it, a lot of heartache,” Rehm said in an interview last week. “I shared that heartache. But Moe got with them, they gave him a number of amendments, and he accepted them. It may not be 100% the way I want it, but it’s close enough to where I can swallow it.”

Maestas did not respond to messages from NMID, but he said before the session he believes the bill will reduce recidivism and costs while supporting people who need help with substance abuse problems, mental health disorders, chronic poverty or other indicators that lead to certain criminal activities.

The biggest issue last year for prosecutors was a section in the bill that dealt with parole hearings for people who have been sentenced to 30 years to life in prison. Instead of requiring those people to prove why they should be released, that section would have shifted the burden to the state and required the Parole Board to demonstrate why they should remain behind bars.

That section has been stripped this year. 

Prosecutors also raised alarms last year over provisions they saw as stripping authority to rearrest violators from probation and parole officers — and others they believed restricted judges from revoking probation in too many cases.

The 2020 version restores arrest power to officers in some classes of cases, and it gives judges more leeway than they would have had in last year’s bill. 

Balderas said through a spokesman that the new bill addresses the concerns he and other prosecutors raised last year.

“New Mexico’s safety is strengthened when we prioritize victim services, mental health and drug treatment,” he said in a written statement. “We are ultimately hopeful that the Legislature will appropriately balance these interests.”

Among the provisions in this year’s version requires judges to use an evidence-based risk assessment when deciding on conditions of probation. 

Diana Luce, 5th Judicial district attorney and president of the New Mexico Association of DAs, said prosecutors aren’t supporting the bill per se.

Diana Luce, 5th Judicial District Attorney and president of the New Mexico Association of District Attorneys

“We didn’t believe anything needed to be changed at all in probation and parole,” Luce said in an interview. “But the majority of what’s in this bill could be considered a compromise. I believe there will be amendments, and our position will depend on those. In the end, I hope we are in a position to not oppose it.”

Indeed, Maestas offered a handful of amendments in a committee hearing Monday. A new version of the bill is expected to be introduced Friday in the House Judiciary Committee.

The state Public Defender Department has flagged one section of the bill as problematic.

The measure requires “a waiver by the supervisee without access to counsel” in order for the person to be arrested on a technical violation, the public defenders point out in the bill’s fiscal impact report. “A probationer should receive the benefits of due process before being incarcerated and if they are asked to waive [the right to an attorney], they should only be able to do so after receiving advice from counsel. The failure to do so implicates both due process and the right to counsel.”

Meanwhile, Lujan Grisham supports the goals of the measure.

“The administration’s emphasis is and will continue to be finding ways to rehabilitate people and provide them with reintegration opportunities while being smarter and more strategic about public safety and law enforcement resources on the front-end,” Tripp Stelnicki, the governor’s spokesman, wrote in emailed response to NMID questions.

One concern shared by the Lujan Grisham administration and others is that, if passed and signed into law, the bill would cause an influx of people who are under state supervision, but not locked up.

“I wouldn’t say it will increase that population significantly, but I predict it will increase some,” Rehm said. “The turnover rate is high in Probation and Parole, and they already need more staff.”

Stelnicki said the governor doesn’t foresee an uptick “that we couldn’t handle,” but added that if the numbers do go up more than anticipated, the administration could seek a supplemental budget increase to “bolster our staffing needs.”

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