‘Constitutional crisis’ could dominate criminal justice debate

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Charles W. Daniels, chief justice of the New Mexico Supreme Court. Image by Marjorie Childress.

Criminal justice reform will burn up some of the oxygen at the Roundhouse during the 60-day session. But what “reform” means depends on who you talk to.

The problem is repeat criminal offenders who get out of jail and prison too easily and public safety should be the state’s first priority, Republicans say. Democrats respond that for too long legislation has focused on punishment without addressing underlying causes of crime such as poverty, drug addiction and, in some cases, mental illness.

Reform to Republicans appears to mean increased penalties for certain crimes and reinstating the death penalty for people who kill police officers and children after a review of legislation. Republicans also want to expand the number of crimes that earn a person a life sentence after a third conviction.

Not surprisingly, Democrats appear to favor a different definition. Legislation they have filed would prohibit private employers from automatically excluding job applicants for felony convictions and provide legal immunity to people seeking assistance after a drug overdose. Another bill would shift the burden for how parole is decided to the state from some prison inmates. Currently, certain offenders must document why they should be paroled versus the state providing reasons why they should remain behind bars.

The competing approaches to reform can’t escape reality, however: Like every other issue before state lawmakers this year, criminal justice will be debated and decided through the lens of New Mexico’s budget problems.

Sharp decreases in oil and gas revenues have led to nearly across-the-board cuts in state government during the past year, including a recent 3 percent decrease in the budgets for New Mexico’s courts, district attorneys and public defenders.

Sen. Majority Leader Peter Wirth, D-Santa Fe

Sen. Majority Leader Peter Wirth, D-Santa Fe

“As a result, the courts and the criminal justice system are on the tipping point of a constitutional crisis,” Senate Majority Leader Peter Wirth, a Santa Fe Democrat, said in an interview before the session began. “Public safety is very important, and I don’t want to minimize that. So is a true, balanced vision for our system. But 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.”

Chief Justice Charles Daniels reinforced that point Thursday in a speech to a joint session of the New Mexico House and Senate.  

“I wish I could tell you that New Mexico is providing the functioning justice system promised in the constitution that created the ground rules of our government, but I can’t,” Daniels said.

A justice system requires enough money to make it function, Daniels said.

“For year after year, we’ve been penny-pinching in extraordinary ways, in hopes that we were dealing with a temporary crisis, and all would be well next year if we just held on treading water for a little longer,” the chief justice said, sounding the alarm that even the basic constitutional right to a jury trial is in jeopardy in New Mexico’s cash-starved courts.

Fallout from cuts to the criminal justice system — most recently during a special legislative session concluded last fall — has been immediate and striking.

During a legislative committee hearing in November, judges described staffing shortages and other hardships that have been especially tough on the state’s smaller magistrate courts. Reduced budgets also are likely to result in an inability to pay jurors and cuts to specialty court programs aimed at nonviolent drug offenders and people living with mental illness.

Two weeks after that hearing, the state’s chief public defender was held in contempt of court after his office failed to appear on behalf of five clients in Lovington. The office, Chief Public Defender Bennett Baur said at the time, could not effectively represent clients because of financial constraints.

The incident  dramatically illustrated  a constitutional problem: all criminal defendants in America are entitled to legal representation, regardless of their ability to pay.

“Criminal justice reform during this 60-day legislative session — whether you think that’s increasing penalties or addressing the issues in a more balanced, complete way — probably isn’t going to happen,” Wirth said. “Issues like jury trials and representation are right on the edge of collapsing because of these across-the-board cuts. And the courts are getting close to stepping in and saying: ‘Enough’s enough. You have to give us the tools for constitutional mandates to be enforced.’”

Daniels started down that road with his speech on Thursday.

“The inescapable bottom line is that we have to first honor the constitution, then the statutes,” he said. “Then we can divide up what is left among the desirable programs you choose to keep. The constitution absolutely requires those fundamental priorities.”

How these realities fit with the state’s overall budget crisis will play out over the next 50 some-odd days.

Meanwhile, some lawmakers plan to pursue tweaks to the justice system through legislation that isn’t necessarily budget-focused.

Rep. Antonio “Moe” Maestas, D-Albuquerque, said he plans to introduce bills creating a new tier for felony crimes — aimed at ensuring violent criminals are sentenced more harshly than non-violent offenders — and allowing people to have certain offenses expunged from their records.

Rep. Bill Rehm, R-Albuquerque

Rep. Bill Rehm, R-Albuquerque

Still, the top priority for the session, Maestas said, is ensuring the chronically cash-strapped Bernalillo County District Attorney’s Office is fully funded.

Rep. Bill Rehm, an Albuquerque Republican and a former Bernalillo County Sheriff’s captain, said public safety has to come first, even in times of financial difficulty. He pointed to rising crime rates in the state’s largest city.

“I think there are a lot of issues with the overall safety of the community right now,” Rehm said. “And when you look at that, you see that the repeat offender is the problem. My legislation almost all goes to the repeat offender.”

The only way we’re going to make our communities safe again is to put some of these people in jail. Yeah, there’s a cost with that, but I hope we can get some of it passed.”


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