On February 12, the New Mexico State Senate passed Senate Bill 72 (SB 72) commonly referred to as the PERA Pension Reform Bill on a 25-15 vote after a mere hour of debate. The Senate Finance Committee previously voted to recommend passage by a vote of 10-2, but only after hours of testimony that was mired in acrimony. SB 72 is aimed at erasing the state pension system’s $6.6 billion unfunded liability aimed at turning around New Mexico’s chronically underfunded retirement system for police, firefighters and other public employees. Senate Bill 72 was passed, but the vote did not fall along party lines with Republicans and Democrats taking both sides. The proposal now heads to the House for approval.

The legislation would require government agencies and their employees to pay more into the pension system. It also substantially revises how retirees’ annual cost-of-living adjustments are calculated. The most controversial provision of the legislation is that it will freeze many retirees cost of living adjustments (COLA) for two years and then move to a “profit-sharing” model with annual raises fluctuating from 0.5% to 3%, depending on investment returns and the financial health of the pension fund. Most retirees now get a 2% raise each year. SB 72 includes an injection of $76 million to help improve the financial health of the pension funds.

The proposal was amended on the Senate floor to leave in place a cap on how much employees can receive in retirement. State workers can now retire at 90% of their final average salaries. A previous version of SB 72 had called for lifting the cap which would have allowed people to retire with pensions exceeding their annual salaries, if they worked long enough. But senators on Tuesday opted to stick with the current 90% cap.

After the Senate vote, Governor Lujan Grisham issued the following statement:

“We have made promises to New Mexico’s current and future retirees and these changes will ensure those promises are kept. A stable and solvent PERA matters to all New Mexico taxpayers.”

The bill must be passed by the House by next Thursday before it can be signed by the Governor to become law.

GOVERNOR’S PRIORITY IS TASK FORCE POORLY ADVISED PRIORITIES

Senate Bill 72 is largely based on recommendations from a task force the Governor appointed last year to come up with pension reform recommendations. The Governor’s PERA Penson reform task task force was essentially packed with public safety union representation none who had any financial background in government pension planning. The chairman of the task force was one of the Governor’s chief of staff, a retired fire fighter and former union president who is now lobbying for enactment of the bill. No woman were appointed. Public Safety Unions are a small fraction of the states work force.

The most controversial recommendations made by her task force involved the 2% cost of living (COLA) currently guaranteed to all retirees. The legislation will establish a “profit-sharing” model for the annual cost-of-living adjustments that most retirees now receive. Rather than an automatic 2% increase in their pensions each year, the actual amount would fluctuate, anywhere from 0.5% to 3%, depending on investment returns.

SUPPORT VOICED

Supporters of the changes argued that while difficult, they are necessary to ensure the Public Employees Retirement Association is healthy enough to withstand an economic downturn. Sen. George Muñoz, a Gallup Democrat and sponsor of the bill had this to say:

“I think the retirees are a little upset but we’re watching after their future. It’s hard to do it in a 30-day session, but it’s going to be even harder when we have to cut benefits to employees in a special session. … We need to act now. We could lose these funds completely.”

Wayne Propst, PERA’s executive director, said the cost-of-living adjustment the system has been paying out greatly exceeded inflation for many years. He also stressed the profit-sharing model would allow the system to only make payments “when we have the resources to do”.

According to Propst:

“For the last 20 years, we’ve been paying [the cost-of-living adjustment] on a credit card. This changes it to paying on a debit card.”

Propst and the Governor’s Office argue the older retirees need not worry about the reform because it actually proposes to increase the cost-of-living adjustment by 0.5 percent for those over 75, which is 30% of the current 41,000 recipients.

https://nmpoliticalreport.com/2020/02/11/pera-solvency-bill-advances-from-key-committee-after-emotional-hearing/

OPPOSITION VOICED

The bill’s opponents were more than just a little upset. Loretta Naranjo Lopez, a member of the Public Employees Retirement Association’s board, during the Senate Committee hearing, accused the pension system’s staff of “embezzlement” and the governor of “undue and unethical influence” on the board. Senator John Arthur Smith, the committee’s chair, slammed his gavel multiple times, demanding Naranjo Lopez speak about the bill itself instead of making accusations.

Opponents that did speak about the bill voiced a number of concerns, particularly about its proposal to move to a profit-sharing model for the annual cost-of-living adjustments retirees receive in their pensions.

Senator John Sapien, D-Corrales, called the part of the cost of living plan “flawed.” He and other senators suggested the annual adjustments should be tied to inflation rather than to investment returns. Under the proposed model, annual raises would range between 0.5 percent and 3 percent, depending on investment returns, rather than then 2 percent annual cost-of-living raises retirees currently get.

Senator Sapien assailed the bill’s changes to the system of annual cost-of-living adjustments. He argued it would ultimately leave retirees’ with smaller annual raises than they get now even after retirees had agreed to other painful changes to the retirement system seven years ago. According to Sapien:

“We’re asking them to give again with promises of profit-sharing that are not going to come to fruition.”

https://www.abqjournal.com/1419892/pension-overhaul-wins-senate-approval.html

WHAT THE FUSS IS ALL ABOUT

Over the last few years, it has been reported that PERA is in serious financial trouble because of long term liabilities of benefits to paid retirees in the future will exceed literally by the billions the funds that are available. PERA’s estimated unfunded liability, which is the gap between future retirement benefits owed and expected future assets on hand, has increased over the past four years from $4.6 billion to $6.6 billion in unfunded liability.

The PERA’s retirement system’s funded ratio, which is the plan’s assets divided by its liabilities, is now at 70%. The PERA governing board has set the goal to reach 100% funding of liabilities by the year 2043. The PERA pension system’s $6.6 billion in unfunded liabilities, or shortfall, has already damaged New Mexico’s credit rating.

Under the proposed legislation, government employers and employees will pay more into the system with a schedule that phases in higher contributions. Other changes will help retirees who are older than 75, disabled or receiving pensions of less than $25,000 a year, despite 25 years of service. With respect to annual cost-of-living adjustments, they would be increased by half a percentage point to 2.5% for retirees who are 75 or older. This was a change made after it was requested by Governor Lujan Grisham.

Under the proposed legislation, many retirees would receive a temporary reduction in their cost-of-living increases. For 3 years, retirees would get an extra check equal to 2% of their pension. Such a “one lump” sum payment in one check would eliminate the compounding effect of having each 2% build on the previous 2% increase.

Under PERA’s current assumption of 7.25% investment returns, Propst has said, the average cost-of-living adjustment would be between 1.61% and 1.65%.

COMMENTARY AND ANALYSIS

During her campaign, candidate for Governor Michelle Lujan Grisham said she would oppose cuts to benefits, including any reduction in the annual inflation-related pension adjustments that retired state workers and teachers receive. According to a campaign spokesperson at the time:

“She does not believe that New Mexico needs to eliminate our defined benefit system for current or future educators and state employees and opposes any reduction in cost-of-living adjustments.”

The PERA solvency plan the Governor supports has alienated some of her strongest supporters that could signal trouble for her in 3 years when see seeks a second term. Governor Lujan Grisham received a significant number of union endorsements and campaign donations especially from state government unions such as AFSME.

The PERA governing board has set the goal to reach 100% funding of liabilities by the year 2043 declaring there is a PERA pension fund “crisis”. The truth is, there is no crisis and the PERA Pension plans are solvent for at least 23, if not more years. The PERA pensions funds have always operated in the red, with investments ebbing and flowing to pay retirement benefits as they incur. It is the funds financial advisers who want a 100% funded program, no doubt motivated by getting their hands on more money to invest and getting hirer investment fees.

The New Mexico PERA pension program has 70% of funded liability in current funding assets to future liability making it one of the strongest pension programs in the country. The two major pension funds that are currently problematic are shortfalls of 7.99% of State General pensions and 13.87% for Municipal Fire Pension programs. Contribution shortfalls of State General and Municipal Fire are up and until 2066. PERA management has failed to articulate in clear terms all the options available to insure PERA will reach a 100% funding ratio by 2043.

PERA pays pensions to more than 40,000 retirees and also has upwards of 50,000 active members who are working and paying into the system. The New Mexico Legislature and the Governor have rushed a pension reform in a 30 session when it should have been taken up in a 60 day session. PERA manages a $15 billion pension fund and income from fund investments that helps pay pensions owed. There is time to address the PERA pension system and the sky is not falling. It has become the mantra of some pension fund administrators, financial consultants that benefit from such schemes and ideological zealots that government pension funds should be 100% funded. These individuals are wrong. A recent report from the highly respected Brookings Institution, “The Sustainability of State and Local Government Pensions: A Public Finance Approach,” debunks this false narrative.

It is not necessary for these funds to achieve 100% funding and there are serious risks in attempting to achieve full pre-funding. Funds attempting to reach full pre-funding generally take more risks in their investment portfolios. Most importantly, trying to achieve full pre-funding, especially over a relatively short period, requires significant sacrifices and financial pain. This includes cuts to retirees’ COLA benefits, increases in contribution rates and significant subsidies from state government, all elements of the governor’s proposal.

Rather than reducing Cost of Living Adjustments to the legislature could make adjustments like increasing age of retirement, change the formula to calculate retirement, make increases in contributions and infuse state funding into the pension funds, but only those that are underfunded which currently are the municipal fire fighters fund and the general worker fund. Better management of the pension funds and increasing returns on investment are always relied upon to pay for benefits.

PERA pays pensions to more than 40,000 retirees and also has upwards of 50,000 active members who are working and paying into the system. Former Governors Bill Richardson and Susana Martinez avoided pension reform knowing the dangers and pitfalls.

With only seven days left in the 2020 Legislative, Senate Bill 72 needs to be rejected by the house and pension reform taken up in a special session or during the 2021 session where there is time to consider pension reform once and for all.

On Saturday, February 8, the New Mexico Senate voted 38-0 to approve Senate Bill 64. The legislation removes all waiting periods required before settlement agreements involving state employees, officials and agencies where the State pays amounts to settled cases can be made public. The legislation will also remove the existing penalty for those who break confidentiality provisions. SB 64 now advances to the House but there is less than two weeks left in the 30-day legislative session.

There is a minimum 180-day waiting period before settlements can be made public and that would be eliminated under SB 64. The legislation mandates that settlement agreements are to be made public once they are signed by the parties to the lawsuit or upon a final judgment resolving the claims, whatever comes first.

https://www.abqjournal.com/1418570/senate-votes-38-0-to-approve-settlement-transparency-bill.html

BCAKGROUND ON NONDISCLOSURE PROVISIONS

The State of New Mexico is a “self-insured” government, generally meaning that it does not carry liability insurance to pay for claims against the state. Civil lawsuit defense and settlements are paid out of risk management funds, which is taxpayer money. The New Mexico Legislature funds each year what is known as the “Public Liability Fund” to pay claims against the state.

The Risk Management Division (RMD) insures state agencies against tort claims, claims alleging civil rights violations, personal injury claims, including Workers Compensation claims filed by state employees who are injured on the job. RMD also provides insurance for some local government bodies. RMD contracts with private attorneys and firms that competitively bid to provide to defend the state. Last fiscal year upwards of $10 Million or more was paid by the state to private law firms to defend the state against claims.

https://www.generalservices.state.nm.us/riskmanagement/

When the State Risk Management Division settles a case, it denies any and all wrongdoing, and demands that the settlement makes it clear the State is agreeing to end the case as a compromise or to avoid further litigation costs. This is standard practice in most civil lawsuit settlements and common even in the private sector. The parties usually agree to avoid disparaging each other or speaking about the terms and conditions of the settlement.

Under the current law, the timeline for mandatory disclosure is not clear and settlement terms, conditions and settlement records cannot be disclosed to the public but must be kept confidential for at least 180 days, or a full 6 months. Because of complicated or conflicting language used in settlements, it is unclear which claims have been settled or when they can be released to the public. Current State law provides that the confidentiality period can start on 4 dates:

1. The date the settlement is signed
2. The date the claim is closed administratively by the state, or
3. The date all litigation is completed or even
4. The date all statutes of limitations have run on a claim.

CATALYST FOR CHANGE IN LAW

On June 23, 2019, it was reported that $7.9M in settlements were paid in 2018 by the state in an 9-month period. Former Republican Governor Susana Martinez’s administration approved the settlements with lengthy gag orders during the final weeks of 2018, Martinez’s final year in office.

Highlights of State litigation settlements provided by the State Risk Management Division revealed the following approved settlements paid during the 9-month period before Marinez left office:

1. New Mexico authorized approximately $7.9 million in settlements of at least $20,000 during a nine-month period.

2. $2.5 million was paid to resolve allegations of sexual harassment and discrimination in the Corrections Department. 6 correctional officers who worked at the state prison in Los Lunas said they endured a “sexualized, violent environment” in which male colleagues exposed themselves, made derogatory comments and inappropriately touched female officers. The suit alleged that female officers were “subject to unthinkable and constant sexually based violence and harassment.”

3. $1.5 million was paid to 1 of 6 developmentally disabled adults entrusted to state care who failed to get the protection from abuse and neglect they were entitled to. Six plaintiffs accused the state Department of Health and others of failing to provide adequate services and violating their constitutional rights. The attorneys in the case participated in an arbitration before arbitrator and retired District Court Judge William Lang to determine how much the state should pay. The range set and agreed to by the parties was at $500,000 to $1.5 million. Lange issued a $7.5 million award in the plaintiffs’ favor. The state paid $1.5 million, the maximum the parties had agreed to before the proceeding began. Former District Court Judge Lang has been recently appointed Chairman of the new Ethics Commission.

4. $775,590 was paid to Otis and Melissa Morehead, who filed a claim with the University of New Mexico Health Sciences Center concerning medical services provided to Melissa and a third family member.

5. $250,000 was paid to plaintiff Damian Horne and his attorney. Horne had worked in the Public Defender’s Office and filed a whistleblower lawsuit in 2016, contending the office had put him on leave and intended to fire him as retaliation for expressing his opinions about problems in the office.

6. $165,000 was paid to Plaintiff Diane Kretschmer to resolve claims against the state Livestock Board and several of its agents.

7. $150,000 was paid to Plaintiff Karl Rougemont, who filed a lawsuit in 2015 alleging he was injured during a defensive tactics demonstration while he was a cadet at the law enforcement academy.

8. $80,000 was paid to settle claims that then Governor Susana Martinez’s security team defamed and assaulted two people who showed up at a political event in Deming. The plaintiffs in that case run a youth ranch and wanted to deliver a petition to the governor. The allegations center on a 2014 incident at a motel in Deming. The plaintiffs said the Republican Party of Luna County had invited them and others to meet the governor that day, but State Police officers improperly threatened them with arrest when they showed up and forced them to leave, they allege. The Plaintiff’s were represented by private attorney Pete Domenici, Jr., the son of longtime New Mexico United State Senator Pete V. Domenici.

9. $25,000 was paid to settle a lawsuit filed by a woman who accused New Mexico State University of refusing to hire her because she is a Christian and heterosexual. According to the plaintiff, the school improperly rescinded an offer to make her an assistant basketball coach. The Plaintiff was a former college basketball star, and alleged she had initially been offered a job as an assistant women’s basketball coach but that the offer was rescinded after the coach saw an online interview, she’d participated in. In an interview, the Plaintiff explained that she gave up same-sex relationships because they conflicted with her Christianity, and she described homosexuality as “wrong” and sports as “evil.”

https://www.petedinelli.com/2019/06/27/32-million-paid-in-state-settlements-department-of-finance-dfa-needs-more-control-over-risk-management-division-rmd-publish-settlements/

Absent from the report on Risk Management settlements is a $1.7 million settlement in a lawsuit alleging that the former New Mexico State Police Chief Pete Kassetas engaged in “blatant, ongoing and systematic discrimination” during his time as New Mexico State Police Chief, including at one time “mooning” his employees. According to the lawsuit, Kassetas described his employees as “dumb [‘efing’] bitches” and he once sent an image of a man’s testicles blocking out the sun to a Deputy Cabinet Secretary in the Department of Public Safety, all allegations Kassetas presumably denied. The case was settled in December, 2018 after two days of negotiations.

https://www.abqjournal.com/1286041/lawsuit-settled-against-nmsp-chief-department-of-public-safety.html

SPECIAL AUDIT REVEALS ABUSE OF POWER TO PROTECT A GOVERNOR

A special audit commissioned last year State Auditor Brian Colón ordered a special audit of State Risk Management settlements and the audit identified $2.7 million in fast-tracked legal settlements. On Monday, November 18, New Mexico State Auditor Brian Colon announced the results of the special audit he had ordered. The audit found $2.7 million in secret settlements involving appointees of former Republican Governor Susana Martinez.

The special audit found settlements of civil rights claims from fiscal year 2015 to the end of the Martinez Administration and the present averaged 607 days and higher. According to the audit, 18 claims were settled before Martinez left office much faster with most under 200 days. The audit also found that in a number of the settlements examined, the confidentiality periods and damages assessed for violating those agreements exceeded what is mandated by state law. The contracted state auditors reviewed the paper trail for each settlement and tried to speak with the outside attorneys hired to defend the state, along with former Risk Management Division officials and plaintiffs’ attorneys.

The settlements lacked proper documentation, transparency, and investigations and were fast tracked according to the audit. Colon proclaimed the settlements an “abuse of power” by former Republican Governor Susana Martinez. According to Colon, the secret settlements were done to save the former Governor from embarrassment, protect her personal reputation, and to protect her political appointees and her political agenda.

On November 18, 2019, New Mexico State Auditor Brain Colon held a press conference to announce the results of the special audit he ordered. Colon strongly condemned the secret settlements by saying:

“This is about an abuse of power. It’s about a lack of transparency, and particularly as it relates to political appointees by our former governor. … We should never settle matters and use taxpayer dollars to protect political interest, political legacies and personal agendas. These are not anomalies that don’t matter … These are anomalies that actually represent secret payouts to protect the [former Gov. Martinez] administration’s reputation. … [W]hat’s truly concerning and what really is disgusting is that $2.7 million of those $5 million in settlements were done in secret without process and without a proper investigation. … There was virtually no proof in the files and in the records as to why these high dollar amounts were approved [by the Martinez administration.]”

https://www.petedinelli.com/2019/11/20/auditor-colon-finds-abuse-of-power-with-secret-settlements-by-former-gov-susana-martinez-gov-mlg-needs-to-empower-dept-of-finance-over-risk-management-to-stop-secret-settlement/

After the Colon press conference, New Mexico Risk Management Division (RMD) issued the following statement saying:

“The Risk Management Division no longer enters into settlements with confidentiality periods that extend beyond those established by state law. … It also no longer threatens claimants with excessive monetary penalties to keep them quiet. … [State settlements] are examined thoroughly, objectively and consistently.”

It was embarrassing that New Mexico State Police Chief Kassetas for his part said about the special audit:

“The Office of the State Auditor validated the information I brought forward in a factual manner that cannot be disputed. This has always been about public corruption and exposing the fraud perpetrated against the New Mexico taxpayers.”

The comments about “exposing” things coming from the former New Mexico State Police Chief who was accused of exposing his rear end to employees is revealing.

https://www.petedinelli.com/2019/11/20/auditor-colon-finds-abuse-of-power-with-secret-settlements-by-former-gov-susana-martinez-gov-mlg-needs-to-empower-dept-of-finance-over-risk-management-to-stop-secret-settlement/

LEGISLATURE’S OUTRAGE

Many New Mexico State Senators, both Democrat and Republican, were outraged by the secret settlement agreements approved by former Risk Management Division officials under the Martinez administration.

Democrat Senator Joseph Cervantes, D-Las Cruces, a prominent trial attorney, had this to say on the Senate floor during debate on the bill:

“There was a fraud perpetrated on New Mexico taxpayers at the end of the last administration. … The worst part of all this is they tried to hide it.”

Republican Senator Sander Rue, R-Albuquerque had this to say on the Senate floor during debate on the bill:

“We have to legislate to bad behaviors. … There are those individuals that find a way to get around these things.”

Cabinet Secretary Ken Ortiz for the General Services Department which Risk Management is a division of, announced last year that the State would automatically publish all state settlement agreements. The legislation mandates that settlement agreements are to be made public once they are signed by the parties to the lawsuit or upon a final judgment resolving the claims, whatever comes first.

ANALYSIS AND COMMENTARY

Six months for the public to have to wait to find out the terms and conditions of a settlement is outrageous. The settlements are taxpayer money being paid as are defense fees paid to private attorneys and taxpayers have the right to know what was paid, why and to whom.

In the interest of full disclosure and transparency, all settlements should be posted within at least 30 days if not sooner from the date the settlement is agreed to by the parties on the state’s sunshine portal. There should be absolutely no confidentiality clauses when it comes to the settlements including attorney fees paid. It is taxpayer money and the legislature need to act in the interest of complete transparency.

Governor Michelle Lujan Grisham and Cabinet Secretary Ken Ortiz supporting the SB 64 is commendable. What is also commendable is posting the settlements on the sunshine poral. What also needs to be posted on the sunshine portal are the names of attorneys or firms awarded state contracts to defend the state, the amounts of the contracts awarded, the term of the contracts, and the hourly rate being charged.

The New Mexico Senate senate voted 38-0 to approve the bill. Senate Bill 64 sends a very strong message that secret settlements must end. The House should send the same message and vote to enact the legislation and send it on to the Governor for her signature.

For a related blog article see:

$32 Million Paid In State Settlements; Department of Finance (DFA) Needs More Control Over Risk Management Division (RMD); Publish Settlements

Three “tough on crime” bills placed on the 2020 legislative agenda by Democrat Governor Lujan Grisham are 3 house House Bills sponsored by Republican State Representative Bill Rehm. The bills are House Bills 18, 35, 113 and 114. All 3 have already cleared one committee. The bills will now be heard in the House Judiciary Committee.

House Bill 35 would increase the sentencing enhancement for using a gun to commit a crime from 1 year to 3 years for a first offense, and from 3 years to 5 years for the second offense. The enhancement time is mandatory prison time. A judge would not have any discretion to suspend the prison time in favor of probation, no matter the circumstances.

House Bill 113 would change the crime of being a “felon in possession of a firearm” from a 4th degree felony to a 3rd degree felony. The basic sentence for the crime would be doubled from 18 months to 3 years.

House Bill 18, changes the definition of a “felon” and would include anyone who has ever been convicted of a felony no matter the time passed. Under the current law, the definition of a felon includes only those who have completed a prison sentence in the previous 10 years from the date of the most current conviction.

House Bill 114 would make it a 3rd degree felony to carry a firearm while trafficking a controlled substance. A 3rd degree felony carries a sentence of three years in prison and up to $5,000 in fines.

CRIME PACKAGE CONSOLIDATES OTHER CRIME LEGISLATION

The original bills, along with a 4th, have now been combined in a House committee and are being offered as an “ anti-crime” packaged. Members of the House Judiciary Committee drafted the anti-crime legislation and consolidated four separate ideas into one bill. The bill is now known as House Bill 6. The House Judiciary Committee voted 13-0 to move the legislation forward, sending it to the full House for a vote. If it passes the House, it will then be forwarded to the Senate for consideration.

The legislation would increase criminal penalties, encourage community policing and make it easier for law enforcement officers to secure treatment for post-traumatic stress disorder. The house legislative crime package is the result of negotiations by Democratic and Republican lawmakers aiming to improve public safety in New Mexico, especially in Albuquerque. Albuquerque has the highest violent crime rate and homicide rate in the state. Last year, the city recorded 82 homicides, a record high. Democrat Governor Michelle Lujan Grisham, like the previous 3 bills, has endorsed the package of legislation. The Governor is also urging Democrats to embrace some of the stiffer criminal penalties sought by Republican legislators.

Democratic Representative Dayan Hochman-Vigil and Republican Representative Bill Rehm, both of Albuquerque, argue that the criminal will attack violent crime on a number of levels. According to both Representatives, on one hand it will encourage the use of community policing to prevent crime and on the other toughen penalties for use of a firearm to commit a crime.
According to Republican Representative Bill Rehm, violent crime is so high in Albuquerque that it resulted in U.S. Attorney General William Barr last year.

“Too many of our communities are seeing repeat offenders in their neighborhoods carrying a firearm. … We’re targeting the most violent and threatening members of our community who use a gun [with this legislation]”

Hochman-Vigil for her part said:

“Crime affects every single of one us in our communities.”

WHAT THE CRIME PACKAGE DOES

The House Judiciary Committees’ Crime Package can be summarized as follows:

1. Like the original House Bill 35, it will increase the criminal penalty for brandishing a firearm in the commission of a crime. The change is that the firearm enhancement would go from 1 year to 3 years for a first offense. Under the original HB 35, a sentencing judge, the sentence would be mandatory and a judge would not have had any discretion to suspend the prison time in favor of probation, no matter the circumstances. Under the new bill proposed, judges would have the option of suspending the extra time and allow probation.

2. Like the original House Bill 113, the crime package will stiffen the penalty for being a felon in possession of a firearm. The offense will go from a fourth-degree felony with a basic sentence of 18 months to a third-degree felony with a basic sentence of three years.

3. The consolidated crime package will allow the state’s law enforcement protection fund to be tapped for training officers in “community-oriented policing” techniques aimed at preventing crime in neighborhoods. Cities and counties could apply for money from the fund to pay for training and recruiting officers to engage in community policing.

4. The consolidated crime package will make it easier for law enforcement officers to get treatment for post-traumatic stress disorder. The bill would add PTSD to the list of conditions presumed to have been caused by their work as officers and require employers to provide medical treatment for it. The “presumption” is a modification of the New Mexico Workers Compensation statute where an injured worker suffering from PTSD is required to establish within a reasonable degree of medical probability that it is work related.

According to Democratic Representative Marian Matthews of Albuquerque, more officers are dying of suicide than in the line of duty. According to Mathews:
“[The goal is to help] people who are on the first line who experience substantial trauma because of the work they do.”

INCREASING CRIMINAL PENALTIES DRAWS MIXED REACTION

Not at all surprising, Paul Haidle, an attorney and senior policy strategist for the American Civil Liberties Union of New Mexico said the passage of tougher penalties may make a statement but it won’t actually improve public safety. Kim Chavez Cook of the Law Offices of the Public Defender had this to say:

“Increasing penalties doesn’t deter crime”.

Supporters said the enhanced penalties contained in the consolidated crime bill are a sensible way to take dangerous people off the streets for a longer period of time.

https://www.abqjournal.com/1418566/lawmakers-prepare-public-safety-package.html

COMMENTARY AND ANALYSIS

Virtually every argument being made in support of HB 6 increasing criminal penalties have been heard before over the years. Increased sentencing has proven ineffective in reducing violent crime. Criminals hell bent on committing any crime with a gun do not sit down with the criminal statutes to figure out what the penalties are for using a gun or the risk they are running at sentencing. Someone who is angry enough to shoot someone dead or who suffers from acute mental illness and wants to kill are not going to “think twice” about committing a crime. Violent criminal intent cannot be rationalized with in any way. The most violent criminals are not going to kill thinking about how long they may be in prison if caught, convicted and sentenced.

Increased sentencing penalties and mandatory enhancement penalties will result in overcharging and a failure to screen cases properly by the District Attorney. Overcharging a case by the Bernalillo County District Attorney’s office is a very common practice. Many mandatory enhancement charges will wind up becoming simply “bargaining chips” to secure a voluntary plea agreement to a lesser included offense and sentencing agreement usually at significantly reduced penalties.

A very good thing about consolidated HB 6 is that it drops the mandatory sentencing by a judge taking away a sentencing judge’s discretion to suspend the prison time. Judges need to be empowered with deciding if a person can be rehabilitated in any meaningful manner and returned to society. Mandatory enhancement provisions do not allow a judge to impose any type of probation or suspension. A defendant’s criminal record, the extent of injury caused, the impact of the crime on the victim or the community, and the extent to which the defendant has addressed life circumstances, such as drug addiction, which may have contributed to the criminal behavior, become totally irrelevant with mandatory sentencing. Mandatory sentencing by judges is not how the criminal justice system is supposed to work. Under HB 6, sentencing judges would have the option of suspending the extra time and allow probation, which is a very good thing.

Another point too often forgotten by the tough on crime advocates is that once you imprison someone for a crime, they become wards of the state. A prisoner’s health, safety, welfare, food and lodging and medical care must be paid for by the taxpayer. It is far too easy for elected officials to say imprison someone, but there must be a willingness on their part to pay and build jails and house and feed those you want behind bars.

Consolidated House Bill 6 is far more acceptable as a result of removal of the “mandatory sentencing” provisions and for that reason it has a far better chance of being enacted by both the House and Senate. Notwithstanding, the New Mexico 30-day legislative session is well over half way done and will adjourn in less than two weeks. It is very likely that HB 6 will fail and not make it through the New Mexico House and Senate unless both Chamber’s fast tracks it and gets it on the agenda sooner rather than later for a final vote.

On February 2, an Albuquerque Journal Poll published an opinion poll it commissioned with Research & Polling Inc. The poll was conducted from January 31 through February 4. According to the Journal report, the poll was based on a scientific, statewide sample of 515 New Mexico adults representative of the age, gender, race and geographical region of the state’s adult population. The poll has a margin of error of plus or minus 4.3 percentage.

The telephone poll found slim majority of adults in New Mexico support a red flag law that would allow for the temporary removal of firearms from individuals deemed a threat to themselves or others with 52% of adults in support of such a the law and 37% opposed with 11% saying they had mixed feelings, said it depends or wouldn’t say.

The question asked was:

“The New Mexico Legislature is considering a bill known as a Red Flag Law. This law will allow enforcement officers to temporarily remove guns from people who have been found by a judge to be a danger to themselves or others.

“Supporters say this bill would reduce gun violence including suicides and lessen the risk of shootings, while opponents say it would deny people their due process and their constitutional right to bear arms, without having committed a crime.
“Do you support or oppose this Red Flag Law?”

Quoting the Albuquerque Journal report:

“The poll showed strikingly different support levels among men and women and by party affiliation. Support for the firearms proposal was 63% among women and 64% among Democrats. Just 41% of men and 30% of Republicans supported the bill.
…
The Journal Poll also shows substantial geographic variation – with support highest in the Albuquerque area and north-central New Mexico, including Santa Fe. Attitudes were more divided on the east side of the state and in the northwest, where more adults opposed the bill than supported it.

The Journal Poll found significant differences in support for the bill among men and women. Support was 63% among women, with just 26% opposed. Among men, 47% were opposed and 41% in favor. Registered voters were about as likely as the broader adult population to support the bill.

Support for the bill among Democrats was 64%, and 60% of Republicans opposed it. Independent voters – or those affiliated with a minor party – had support levels roughly in line with the broader adult population, with 50% in favor and 37% opposed.

Adults in the Albuquerque area were more likely to support the law than people in the state overall. Support was 57% in the Albuquerque area, or about twice the level of opposition.
Opposition to the bill ran higher on the east side of the state, near Texas, where 49% of those surveyed opposed the law and 45% supported it. In northwestern New Mexico – including Farmington and parts of the Navajo Nation – opposition was 49%, with support at 43%.”

You can read the entire Albuquerque Journal Report and analyst here:

https://www.abqjournal.com/1418012/journal-poll-new-mexicans-back-red-flag-bill.html

SENATE BILL 5

Senate Bill 5, entitled the Extreme Risk Firearm Protection Order Act, sometimes called a “red flag” law was pre -filed on January 8 ahead of the 2020 Legislative session. Under the original Senate Bill 5, a relative, household member or law enforcement officer would file a sworn affidavit and petition in state District Court seeking an extreme-risk protection order to prohibit someone from possessing firearms who pose a serious threat to themselves or others. The affidavit provided by a household member or relative would have to provide “ probable cause” to believe someone “poses a significant danger of causing imminent personal injury to self or others.” In terms of the protection order, “probable cause” is evidence presented showing it is more likely than not that that someone “poses a significant danger of causing imminent personal injury to self or others.”

The petitioner would have to disclose whether there’s any other pending legal action between the two parties. A judge could then issue a 15-day emergency order to seize the weapons and ammunition from that person. There would also an option for a one-year firearm prohibition, based on a “preponderance of evidence” to determine if there was a need for a one-year order. When the court order expires, the guns and ammunition would then be returned to the individual.

Once presented with evidence of probable cause, a judge could then issue a 15-day emergency order to seize the weapons and ammunition from that person and would schedule a hearing to determine if there was a need for a one-year order. When the court order expires, the guns and ammunition would then be returned to the individual. Seventeen states have enacted red flag laws.

SENATE PUBLIC AFFAIRS COMMITTEE ACTION

On January 28, after more than two hours of emotional testimony, Senate Bill 5 entitled the “Extreme Risk Firearm Protection Order Act” passed the Senate Public Affairs Committee on a party-line vote of 4 Democrats for and 3 Republicans against. The legislation is sponsored by Senator Joseph Cervantes of Las Cruces, Representative Damon Ely of Corrales and Representative Joy Garratt of Albuquerque. The legislation is backed by Democratic Governor Michelle Lujan Grisham, who added it to the agenda of the 30-day session.

The Senate Public Affairs Committee hearing was held in the Senate chambers to accommodate the audience. In an extraordinary move of caution, the over 200 people who showed up to attend the hearing were screened for weapons upon entering the Senate Gallery.

https://www.kob.com/new-mexico-news/red-flag-law-bill-clears-first-hurdle/5626424/?cat=500

SENATE JUDICIARY COMMITTEE ACTION

On February 5, the Senate Judiciary Committee made a major change to the legislation and narrowed downed who can seek the temporary seizure of firearms. Senate Bill 5 was changed to provide that only law enforcement officers, not family members or coworkers, would be able to file the petition in state court for the court of protection.

Democratic Senator Joseph Cervantes, one of the 3 sponsors, said the new version of the legislation is intended to address criticism leveled by sheriffs and other opponents of the bill. The provision requiring a law enforcement officer to petition the court and not allowing someone else to do it such as a family member was aimed at preventing abuse by an ex-spouse seeking retaliation. A Household member could still request the filing of a petition by law enforcement, but it would be up to a law enforcement officer to determine whether there’s “probable cause” to seek the Extreme Risk Firearm Protection Order.

Opponents of the bill said that the changes still did not go far don’t go far enough and allow someone a chance to contest an order to surrender their firearms.
The amended proposal narrowly cleared the Senate Judiciary on a 6-5 vote and the amended bill was sent to the Senate for a full vote of the chamber.

https://www.abqjournal.com/1417550/revised-firearms-law-heads-to-senate.html

FINAL SENATE ACTION

On February 7, the Senate passed the Extreme Risk Firearm Protection bill by just two votes with a vote of 22-20 avoiding a tie vote with some Democrats crossing party lines and voting with Republicans. Democrats hold a 26-16 edge in the Senate. The 4 Democrats who joined all 16 Republicans to vote no were Senator’s Gabriel Ramos of Silver City, John Arthur Smith of Deming, Richard Martinez of Ojo Caliente, and Clemente Sanchez of Grants. Had the vote been a tie Lt. Governor Howie Morales, who presides over the Senate, would have likely voted in favor of passage. The final vote was cast after hours of tense debate.

Senator Cervantes in arguing the passage of the amended bill on the Senate floor, reminded lawmakers of the mass shooting in El Paso last year in which a gunmen targeted people of Mexican decent and killed 22 people and had this to say:

“In too many of these mass killings and in suicides, we have noticed and we have acknowledged too many times of these individuals telling friends, schoolmates, principals, family members, of their intentions to do harm to others and yet despite that knowledge, too often times nothing is done.”

Senate Bill 5 now goes to the House further action. If it passes the House, Governor Michelle Lujan Grisham says she will sign it whereupon New Mexico will to become the 18th state with a red-flag gun law. The Governor had this to say about the passage of Senate Bill 5 in the Senate:
“We have an obligation to every single New Mexican, every single family, every single child that we do everything in our power that can provide just that additional layer of safety and public support.”

https://www.krqe.com/news/politics-government/red-flag-gun-bill-narrowly-clears-senate/

LAW ENFORCEMENT OPPOSITION

Not at all surprising, and like last year when a Red Flag Law failed, Senate Bill 5 is opposed by many within New Mexico’s law enforcement community. 30 of the state’s 33 county sheriffs oppose the measure. However, State Police Chief Tim Johnson and members of the Albuquerque Police Department upper command support the legislation with APD Deputy Chief Harold Medina testifying during committee hearings in support of it.

Opponents of the bill argue it is unconstitutional, it violates the 2nd Amendment right to bear arms and due process of law, questioning whether it will prevent future tragedies. Governor Lujan Grisham, Senator Cervantes and other supporters expressed confidence in the bill’s constitutionality pointing out it was based on similar laws passed in other states.

SUICICIDES, SCHOOL SHOOTINGS AND MASS MURDERS

Backers of the red flag law say it could prevent school shootings, suicides and mass murder arguments that are immediately credible given New Mexico and the country’s statistics.

NEW MEXICO’S SUICIDE RATE

Most gun deaths in New Mexico are a result of suicide and therefore the state’s suicide rate is a critical part of the debate. Overall, the state suicide rate is 21.9 deaths per 100,000 people, which is more than 50% higher than the national average. Ten counties in New Mexico that are largely rural areas of the state have suicide rates at least twice the national average, which is 14 suicide deaths per 100,000 people. Studies in states that have “red flag laws” and that have “risk-based firearm seizure laws” were associated with reduced suicide rates.

NEW MEXICO’S DOMESTIC VIOLENCE RATE

On September 16, 2017, according to an annual study published by the Violence Policy Center, it was reported women are more likely to be killed by men in New Mexico than nearly any other states.

http://www.santafenewmexican.com/news/local_news/new-mexico-s-rate-of-women-killed-by-men-among/article_eb7e4a2c-273d-5eb6-8007-e5936639b64f.html

The study found the state has the 10th-highest rate of women killed by men, marking the third straight year New Mexico had appeared toward the top of the list, while New Mexico’s overall homicide rate ranked lower.

Current statistics are 1 in 3 New Mexico women will experience domestic violence in thier lifetime. 18,000 domestic violence calls were made in 2017 with 8,000 calls made in Albuquerque. 30% of the calls had a child as a witness. Nationwide 3 women are killed daily from domestic violence.

New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade. The Violence Policy Center promotes gun control and found that each state at the top of the list of women killed by men have a high rate of firearm ownership which no doubt includes New Mexico’s gun culture.

UNITED STATES HISTORY OF MASS SHOOTINGS

Since 1995, the United States has had 95 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States during the last two years.

There is no doubt we have a deadly mass shooting epidemic on our hands.

The mass shooting with guns in the last 10 years include: Orlando, Florida (49 killed, 50 injured), Blacksburg, Va. (32 killed), San Ysidro, Cal (21 killed), San Bernardino, (14 killed), Edmond Oklahoma (14 killed), Fort Hood (13 killed), Binghamton, NY (13 killed) Washington, DC (12 killed), Aurora, Colorado (12 killed), Sandy Hook Elementary School, Newtown, Conn (21 children and 6 adult staff members killed), an ex-employee kills five people when he opened fire at the Miller Coors building in Milwaukee, Wisconsin and then commits suicide, and the largest mass shooting in this country’s history that occurred in Las Vegas, Nevada with at least 59 dead and at least 515 wounded and the Parkland/Stoneridge High School shooting that resulted in 17 children’s deaths. Since 1995, the United States has had 98 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States in the last two years. . There is no doubt we have a deadly mass shooting epidemic on our hands.

COMMENTARY AND ANALYSIS

It is more likely than not that the New Mexico House of Representatives will enact Senate 5 and it should without any reservation because lives could be saved.

NATURAL EXTENSION OF Family Protection Act.

Senate Bill 5 is a natural extension of the 2019 New Mexico Legislature passage of Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. Under the enacted legislation domestic abusers must surrender their firearms to law enforcement. The gun possession prohibition also applies to people convicted of other crimes.

What I learned as the Bernalillo County Chief Deputy District Attorney is that Albuquerque’s dirty little secret is that domestic violence is the number-one reason why a woman is admitted to the emergency room of the University of New Mexico Hospital. Statics in Albuquerque showed that after about the 10th or 11th time there is a call out of the Albuquerque Police Department to a home for domestic violence, it is usually to pick a woman up in a body bag. This fact alone makes I very troubling as to why the elected

Sheriff’s oppose red flag law. Further Domestic violence call outs are some of the most dangerous calls for service law enforcement handle.

PROMOTION OF OWN PRO GUN PHILOSOPHY BY LAW ENFORCEMENT

The elected sheriffs who oppose the meaningful gun control legislation that the red flag law represents ignore their duty and responsibilities to serve and protect the general public that elected them preferring to promote their own “pro-gun” political philosophy and their own personal interpretation of the law. New Mexico’s Domestic Violence cases make up a large share of violent crime cases. The public’s safety and enactment of laws for the protection of those that easily become victims of gun violence, even by family members, should be law enforcement’s number one priority, not enforcing only those laws they feel that conform to their own “pro-gun” philosophy. The enactment of laws is the responsibility of the legislature, not law enforcement. The meaning and interpretation of the laws enacted is the responsibility of the court’s, and not of law enforcement.

NEW MEXICO’S GUN CULTURE

The biggest criticisms against “red flag” laws are that they violate a citizen’s United States Constitution Second amendment right to bear arms. Such an argument resonates with the New Mexico gun culture. Another major criticism is that a person’s constitutional right of due process of law is violated when a court can issue a temporary “ex parte” order to seize guns from people without an evidentiary hearing and without any notice.

Given New Mexico’s high suicide rates, domestic violence killings with guns and the threat of mass shootings, it is shameful that elected county sheriffs are far more concerned about “second amendment rights” that allows almost anyone, including those who pose a harm to themselves and others, to have a firearm of their choosing. The elected sheriff’s hide behind the 2nd Amendment so as not to protect or enforce the rights of others who have the rights of “life, liberty and the pursuit of happiness” just as much guaranteed under the constitution as the right to bear arms.

CONCLUSION

Far more needs to be done by the New Mexico legislature to combat gun violence and to keep the public safe from those who pose a risk to themselves and others. New Mexico Governor Michelle Lujan Grisham and the New Mexico State Legislature are wise to do all they can and enact the red flag law, and if one suicide can be prevented and if just one shooting by a mentally ill person can be prevented by it, it is worth it.

An Albuquerque Journal poll revealed that 61% of adults surveyed said they support New Mexico becoming the 12th state in the nation to legalize recreational use of cannabis, while 33% said they oppose the idea. The remaining either had mixed feelings or declined to answer. “The biggest predictor on New Mexicans’ feelings about marijuana legalization was age, as those ages 18 to 49 were far more likely to support the idea than those ages 50 and older.” The poll was conducted from January 31 through February 4 and was a statewide sample of 515 New Mexico adults that is representative of the age, gender, race and geographical region of the state’s adult population and has a margin of error of 4%.

You can review the entire Albuquerque Journal article with analysis detailing the poll results here:

https://www.abqjournal.com/1418399/journal-poll-new-mexicans-back-legalizing-cannabis.html

SENATE BILL 115

Senate Bill 115 (SB 115) is the legalization of recreational marijuana bill that is pending in the 2020 New Mexico 30 day legislature that is more than halfway over. Governor Michelle Lujan Grisham has endorsed the legislation and added it to the 30-day session agenda. The SB 115 passed the Senate Public Affairs Committee along party lines with all Democrats voting yes and all Republicans voting no.

Senate Bill 115 is 173-pages long and the legislation will legalize use and sale of recreational marijuana for anyone age 21 and older. The 2019 New Mexico Legislature decriminalized possession which is now a $50 civil fine with no jail time. The proposed legislation provides for taxes on recreational pot at roughly 17% to 19% and makes medical marijuana tax-free and entirely subsides medical marijuana for low income patients.

The legislation will regulate both commercial and medical marijuana programs. The legislation avoids a traditional licensing system as is created for full-service alcohol licenses. As written, the recreational cannabis legislation contains no limit on the number of recreational cannabis licenses. Under the proposed legislation, the holder of a recreational cannabis license issued will have no vested property right in the license and the license is deemed property of the state. A license issued pursuant to the Cannabis Regulation Act will not be transferable from person to person, corporation to corporation or corporation to person. The licenses shall not be leased and shall not be considered property subject to execution, attachment, a security transaction, liens, receivership or all other incidents of tangible personal property under the laws of this state.

A Cannabis Control Division of the Regulation and Licensing Division will be created and will have very broad and extensive authority to regulate the industry. The division will have powers to promulgate rules and regulations, including many mandates and limitations on license issuance and quality control. The Cannabis Control Division must be up and running by January 1, 2021, which is a very ambitious deadline given the magnitude of creating the industry.

Medical cannabis providers could sell to recreational users beginning January 1, 2021 if the Department of Health determines it won’t harm the supply for people in the medical program. Broader commercial sales would start a year later, in 2022. The plan calls for food-grade testing of marijuana products. The legislation if passed will require all cannabis products sold in New Mexico to be tested and free from contaminants. Packaging must be clearly labeled with the THC dosage. The legislation also includes restrictions on advertisements that target youth. The legislation requires investments in training that would assist law enforcement officers in identifying impaired driving and not just limited to only cannabis-induced impairment.

The legislation does give local governments some authority to determine where cannabis dispensaries can be located. However, the state’s counties will not be given any authority to be able to prohibit cannabis sales nor prohibit the licensing of stores. In other words, local zoning rules will be able to be used to control the number of stores in an area where they the stores can located. This is identical to zoning restrictions placed on retail stores that sell pornography.

The legalization bill calls for generally a 19% tax rate. Each county and city have varying gross receipts tax rates and the cannabis tax would be added to those sales taxes. The tax is much lower than in other states and it is hoped it will prevent buyers from turning to the black market. The legislation will exempt residents in the medical cannabis program from the tax and would require cannabis growers to serve the medical market before the recreational market.

https://www.krqe.com/news/politic

On January 29, the Cannabis Regulation Act won a narrow victory in state Senate’s Public Affairs Committee making it through the committee on a 4-3 vote that was strictly along party lines, with the Democratic members voting “do pass” and the republicans voting “do not pass”. The 2020 New Mexico Legislative 30- day session is now at more than the halfway point and the cannabis legalization bill still needs to be heard by the Senate Judiciary Committee and, if passed there, move to the Senate Finance Committee. The Senate is the more difficult task because Senate moderate to conservative Democrats are known to vote often with conservative Republicans and vote no on recreational use legislation. If passed by the Senate, it then must be referred to the House for even more committee hearing and a final House Vote.

MAJOR CONCERNS IDENTIFIED

There are many problem areas that have identified about the current legislation including the following:

If Senate Bill 115 passes in its current version, existing medical cannabis retailers can begin selling to recreational consumers. The problem is January 1, 2021 is the same day all the rules and regulations on implementation and issuance of licenses and regulating sales must be in place. Simply put, 10 months is not enough time to promulgate such rules and regulations.

Local governments can’t ban any category of license but can limit activity to one business in each category and set zoning requirements which will likely result in a court challenges by competing businesses.

Licenses can’t be denied solely because someone has done time for “possession, use, manufacture, distribution or dispensing or the possession with the intent to manufacture, distribute or dispense a controlled substance.”

Customers have to be 21, but servers can be 18, and that is in conflict with liquor control laws that require both customers and servers to be 21.

Recreational buyers will be able to buy more cannabis than medical patients. Current law limits medical users to 8 ounces every 90 days while recreational users will be able to buy 2 ounces every transaction. Such a system is likely to result in major shortages for medical users.

Under the law, there is no increase in the number of plants growers are allowed and there is a cap of 500 plants that will lead to shortages.

Recreational use will be totally legal. This bill includes automatic expungement of marijuana arrests and convictions, strikes marijuana from the substances banned from drug-free school zones and says use cannot affect parole or custody cases.

Black-market marijuana sales are not addressed in the bill. A Department of Justice report says state-level legalization gives criminal drug trafficking organizations the ability to undertake large grow operations.

Cannabis use, especially in chronic users, has been linked to schizophrenia, anxiety, depression, suicide, significant abnormalities in brain function and structure, and lower IQ. The fact that the State has some of the highest DWI rates and opioid addiction rates in the country clearly complicates the legalization of recreational cannabis and the existing bill does not address completely what or how those problems will be dealt with.

There is absolutely no mention of drug-free workplaces in the legislation, which is something the Governor’s cannabis task force said it was recommending changes.

COMMENTARY AND ANALYSIS

At this point in time, it is very likely that Senate Bill 115 will fail or not make it through both the New Mexico Senate and House during the 30-Day session. The poll showing that 61% support the legalization of recreational marijuana makes the strongest case yet why the New Mexico Legislature needs to put the issue of legalization on the November, 2020 ballot. If passed by voters, enabling legislation can be enacted in the 2021 legislative 60- day session that will begin in January, 2021 with Senate Bill 115 to be used as a good start for more refined legislation.

For a related blog articles see:

Recreational Cannabis Bill Introduced; Endorsed By Governor MLG; Commentary By John Strong: Bill Does Not Address One Very Big Problem

Recreational Cannabis Bill Clears 1 Senate Committee; Two More To Go; Time Running Out For House; Place On November Ballot As A Back Up

The criminal justice system in the United States is not perfect. Neither is the Impeachment process provided in the United States Constitution. But like it or not, our founding fathers knew what they were doing and knew the justice system they created and the impeachment process they created are not perfect. The recent impeachment, trial and acquittal of President Trump proves that point, and whether we like the outcome or not the system did work and there was “no military coup” or civil war.

REUTERS-IPSOS POLL

According to a Reuters-Ipsos poll of voters released on February 5 on their opinion over the U.S. Senate’s acquittal of President Donald Trump Americans are evenly split, mostly along party lines, even though more respondents than not think he probably did something wrong. According to the national opinion poll, 43% of U.S. adults supported the Republican-led Senate’s decision to keep Trump in office in a case stemming from his dealings with Ukraine and 41% opposed the acquittal with 17% saying they were undecided.

When asked about Trump’s acquittal, 48% of respondents said Trump “is probably guilty of the charges against him, and the Senate is protecting him,” while 39% said the president “is probably innocent of the charges against him, and the Senate made the right decision to acquit.” In other words, some respondents felt that even if Trump did something wrong, it was not enough to warrant his removal from office.

The survey of 1,006 adults was conducted after the Senate voted to acquit Trump of abuse of power and to acquit him of obstructing Congress.

https://www.aol.com/article/news/2020/02/06/poll-43-percent-of-americans-back-trump-acquittal-41-percent-opposed/23920402/

CRIMINAL JUSTICE SYSTEM IN A NUTSHELL

Under the United States Constitution, in criminal jury trials, an accused is presumed innocent until proven guilty “beyond a reasonable doubt” and are entitled to due process of law, no matter how heinous the crime. After a person is charged with a felony, a trial is held before a jury presided over by a judge, and it is at that time prosecutors are entitled to present evidence and witnesses to secure a verdict. A defendant cannot be compelled to testify, has a right to remain silent, and has a right to cross examine the prosecution’s witnesses and present evidence and call witnesses.

To convict in a criminal case, the prosecution must prove their case “beyond a reasonable doubt” which is the highest standard of evidence in the criminal justice system. The test is one of “reasonable doubt” meaning the facts or evidence presented lead the jury to a unanimous vote and only one logical conclusion: that the defendant is guilty as charged.

A common mistake made is the terms “acquittal” and “not guilty” are equated with “innocence”. Under the criminal law, there is a huge difference between being innocent and a verdict of not guilty or acquittal. Being found “not guilty” of a crime or being “acquitted” does not mean that the jury found or believes are innocent innocent of the crime. It means that the prosecution failed and either did not have enough evidence to support their charges or that they did not present sufficient evidence in a compelling enough way to convince the jury to “acquit” or find a person “not guilty”.

INFAMOUS ACQUITTALS IN CRIMINAL JUSTICE SYSTEM

Throughout history many a guilty person has been acquitted for crimes they no doubt committed. If jurors have no doubt as to the defendant’s guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant’s “guilty beyond a reasonable doubt” and the defendant should be pronounced guilty. But sadly, jurors all too often do not have the courage to vote for convictions, do not believe the evidence or who prefer to ignore the evidence presented. Once acquitted of the crimes charged, the prosecution cannot file the charges again and there is no right of appeal.

Some of the more infamous acquittals in recent memory have included many celebrities, mothers, singers and athletes. OJ Simpson was accused of murdering his wife Nicole Brown Simpson and her friend Ronald Goldman and was acquitted by a jury. Casey Anthony killed her two-year-old and was acquitted. R&B singer R. Kelly was charged with having sex with a minor and producing child pornography and was acquitted by a jury. Actor Robert Blake who was charged with conspiracy to murder his wife and was acquitted. George Zimmerman fatally shot 17-year-old high school student Trayvon Martin on the night of February 26, 2012 and on July 13, 2013, a jury acquitted Zimmerman of second-degree murder and of manslaughter charges. In 2003 singer Michael Jackson was arrested on charges of molesting a 13 boy and the jury found the singer not guilty of all charges with many more victims coming forward over the years. None of those listed admitted to doing the crime and demanded a jury trial. OJ Simpson said he was going to find the murderer of his wife after he was acquitted.

IMPEACHING A PRESIDENT

In the Trump Impeachment Trial, he was acquitted by the Senate, but that does not mean he was found “not guilty” as many of his supporters want to believe. The sure volume of evidence presented was more than sufficient to convict Trump “beyond a reasonable doubt”, and some would say it was “clear and convincing evidence”, but the impeachment trial was not a criminal trial, but a political process outlined in the US Constitution. It was the Republican controlled Senate who declined to convict and remove Trump from office.

There are 4 major provisions in the United States Constitution relating to impeachment of a President. Those provisions are as follows:

Article I, Section 2, Clause 5 provides:

“The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Article I, Section 3, Clauses 6 and 7 provides:

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside and no Person shall be convicted without the Concurrence of two-thirds of the Members present.”

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Article II, Section 2 provides:

“[The President] … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Article II, Section 4 provides:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The United States Constitution limits grounds of impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors”, but there is no precise meaning or definition of the phrase “high Crimes and Misdemeanors” contained in constitution. Further, the constitution does not mandate that only criminal conduct can constitute sufficient grounds for impeachment. A “high crimes or misdemeanor” in practice is whatever the House of Representatives chooses to define it and to charge it.

“Articles of Impeachment” passed in the US House of Representatives are analogous to a grand jury felony indictment where a grand jury finds evidence of “probable cause” to charge a Defendant. “Evidence of probable cause” is evidence presented showing it is more likely than not that a crime has been committed and the evidence provides enough grounds to charge but not to convict the accused.

“Articles of Impeachment” are passed by a simple majority vote in the House of Representatives after which the articles are forwarded to the United States Senate for a trial presided over by the Chief Justice of the Supreme Court. There is no level of proof of “preponderance of the evidence” required to convict on Articles Impeachment. However, the constitution is very clear that no person can be convicted of the articles and removed from office without a two-thirds vote of the Unites States Senate.

TRUMP’S ARTICLES OF IMPEACHMENT AND ACQUITTAL

On December 13, 2019, President Trump was charged with two Articles of Impeachment by the United State House of Representative with the required majority vote. The first article charged Trump with abuse of power for pressuring Ukraine to assist him in his re-election campaign by damaging Democratic rivals and passed by a vote of 230-197-1, with one senator voting “present.” The second article charges Trump with obstruction of Congress for blocking testimony and refusing to provide documents in response to House subpoenas in the impeachment inquiry and passed by a margin of 229-198-1.

You can read both articles of impeachment here:

https://www.nytimes.com/interactive/2019/12/10/us/politics/articles-impeachment-document-pdf.html

On January 15, 2020, the House delivered the Article of Impeachment to the Senate. The impeachment trial of Donald Trump began in the U.S. Senate on January 16, and concluded on February 5.

“The Constitution requires Senators sitting as an impeachment tribunal to take a special oath distinct from the oath of office that all Members of Congress must take.  This requirement underscores the unique nature of the role the Senate plays in impeachment trials, at least in comparison to its normal deliberative functions.  The Senate practice … requires each Senator to swear or affirm that he will do impartial justice according to the Constitution and laws. ”

https://constitution.congress.gov/browse/essay/artI_S3_C6_1_3_2/#ALDF_00013795

On January 16, 2020 when Trump’s Impeachment trial began, Supreme Court Chief Justice John Roberts administered the oath to senators, who were standing at their desks on the Senate floor with their right hands raised and Justice Roberts asked them:

“Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you god?” and each Senator responded “I do!” After the oath, Senators walked down to the front of the Senate chamber as their names were called to sign the oath book.

Republican Senator’s Mitch McConnell, the Senate Floor Leader, and South Carolina Senator Lindsay Graham both took the oath do to “impartial justice” even though they both announced they would vote to acquit Trump days and weeks before Trump’s trial began. Had the impeach been a criminal trial, both McConnell and Graham would have been disqualified by a judge for their biasness.

On January 5, 2020 after a 3-week Senate trial, where absolutely no witnesses were allowed to be called, Trump was acquitted of both articles of impeachment. Democrats fell far short of the two thirds majority vote required to remove Trump from Office. Senators voted 52 to 48 to acquit Trump of the abuse of power charge and voted 53-47 to acquit him on the obstruction of Congress charge. Utah Republican US Senator Mitt Romney was the only Republican to vote to convict Trump on the abuse of power charge.

STUNNING DEFENSE BY REPUBLICAN SENATOR LAMAR ALEXANDER

On January 31, 2020 Tennessee Senator Lamar Alexander became the first Republican lawmaker to say President Donald Trump had committed misdeeds with respect to his actions with Ukraine, but that Trump should not be removed for it. The following Sunday on Meet the Press, Alexander said “I think he shouldn’t have done it. I think it was wrong. Inappropriate was the way I’d say — improper, crossing the line. … And then the only question left is who decides what to do about that.”

Alexander further refined his argument saying that Trump’s misconduct may have stemmed from a desire to do the right thing that was marred by his inexperience. Alexander suggested that the fact Trump has been so successful in accomplishing Republican priorities, it outweighs any wrongs Trump has committed. In other words, whatever ends, justify the means, even if it’s illegal.

STUNNING REMARKS BY REPUBLICAN SENATOR MARCO RUBIO

After voting to acquit Republican President Donald Trump of both Articles of Impeachment, Florida Senator Marco Rubio issued a statement explaining why he voted to acquit. The key lines from Rubio’s statement are as follows:

“New witnesses that would testify to the truth of the allegations are not needed for my threshold analysis, which already assumed that all the allegations made are true. … Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office. … I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.”

What is astonishing is that Rubio did not feel that keeping Trump in office will likely “inflict extraordinary and potentially irreparable damage” to our Democracy if he is once again elected with outside interference from the Russians or any other country.

You can read the full statement here:

https://medium.com/@SenatorMarcoRubio/my-statement-on-the-presidents-impeachment-trial-9669e82ccb43

The jaw dropping take away from Marco Rubio’s statement is that Rubio was convinced Trump did the things in regard to Ukraine that were alleged in the Articles of Impeachment, but he still declined to convict Trump proclaiming we have a divided nation.

COMMENTARY AND ANALYSIS

We can now add the name of President Donald Trump to the list of shameful acquittals of guilty persons who have committed serious crimes and offenses. Hell, Trump even had one of OJ Simpson’s attorneys Alan Dershowitz represent him in the impeachment trial before the Senate to make embarrassing constitutional argument.

Trump defense Attorney Alan Dershowitz said:

“Every public official that I know believes that his election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowits no doubt put a smile on Richard Nixon’s face, wherever he is now. Nixon was asked by David Frost: “Would you say that there are certain situations where the president can decide that it’s in the best interests of the nation, and do something illegal? Nixon responded: “Well, when the president does it, that means it is not illegal.”

In the Senate Impeachment Trial, Trump was acquitted, but that does NOT mean he was “not guilty.” The evidence presented by the House Mangers was more than sufficient to convict Trump but the Republican Senators declined. Both Republican Senators Lamar Alexander and Marco Rubio admitted Trump was guilty of what he was charged with, but said Trump’s actions did not justify removal from office.

Trump is a man who did the crime but will not do the time. The big difference with Trump, he will always be known as the first impeached President who was acquitted along party lines while he was running for another term with his own party refusing to allow any witnesses. History will be the final judge of his innocence while in office. Another big difference is that voters have the right of an appeal to vote him out of office come November 6, and to convict him of high crimes and abuse of power.

One major consolation is that New York state prosecutors are still investigating whether the Trump Organization violated state law connected to hush-money payments made to two women who alleged affairs with President Donald Trump. The investigation began after federal prosecutors from the Southern District of New York formally closed their criminal probe into the payments in July. Michael Cohen, Trump’s longtime personal lawyer, pleaded guilty in the federal investigation to several counts of bank fraud, tax evasion, and campaign-finance violations and is now serving a 5-year sentence.

https://www.businessinsider.com/ny-prosecutors-investigating-trump-organization-falsified-business-records-2019-9

There is an old saying that the wheels of Justice turn slowly. In Trumps case, the wheels of Justice are still turning. Trump’s luck of “not doing the time for doing the crime” is sure to run out, either sooner in 10 months if he is voted out of office or later in 5 years when he leaves office and is charged in New York State for crimes. Then again, Trump is 72 and nature and the Almighty will render the ultimate sentence of justice unto him and he will begin his sentence of eternity where he really belongs and be able to have conversations with people he likes and emulates such as Adolf Hitler and Benito Mussolini and so many other dictators in history.

For a related blog article see:

Trump’s Lies, Obstruction And Shakedown Support At Least 5 Articles Of Impeachment