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

Senate Bill 115 (SB 115) that would legalize recreational marijuana in New Mexico passed the Senate Public Affairs Committee along party lines with all Democrats voting yes and all Republicans voting no. The Senate Bill is sponsored by State Senator Gerald Ortiz y Pino and Representative Javier Martínez, both Albuquerque Democrats. Governor Michelle Lujan Grisham has endorsed the legislation and added it to the 30-day session agenda.

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”.

https://nmpoliticalreport.com/2020/01/29/cannabis-legalization-bill-passes-first-committee-on-party-lines/

The bill still has a long way to go and it will have to be passed by two more state Senate committees, the Judiciary Committee and the Finance Committee, before the full legislative body takes it up for a vote. Although the New Mexico Senate is overwhelmingly Democratic with 26 members out of a total of 42, several prominent senators from that party have indicated that they are resistant to legalizing marijuana for recreational use.

Last year, it was the House that started the process of enacting legalization of recreational cannabis with a bill that narrowly passed the state House but stalled in the Senate in the final days. That proposal called for state-run cannabis stores. Senate Bill 115 does not. The approach this year is to have the Senate start the process in that it is the more conservative Senate that rejected last year’s efforts by the house.

https://www.koat.com/article/bill-to-legalize-pot-clears-key-committee/30695403

https://www.abqjournal.com/1414396/capitol-launches-into-marijuana-debate.html

In interviews, the Governor has acknowledged that winning approval of the marijuana legalization plan will be difficult. She believes the Senate will be the biggest hurdle and she had this to say:

“I think cannabis [recreational legalization] is going to be really hard [and] it should be. That is not something to run into without being really clear. … If I have it on the call, I’m serious about getting it passed”

https://www.koat.com/article/will-recreational-pot-be-legal-in-new-mexico-in-2020/30301730

https://www.abqjournal.com/1402676/governor-finishing-legislative-agenda.html

WHAT SENATE BILL 115 WILL DO

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/politics-government/gov-lujan-grisham-unveils-recreational-marijuana-legalization-proposal/

PROS AND CONS ARGUED

Supporters of the bill said legalization will help address uneven law enforcement. According to Senator Jacob Candelaria, D-Albuquerque, who presented the legislation to the committee:

“The criminalization of cannabis disproportionately harms young people and people of color”.

Candelaria, an attorney, also argued the lack of an accepted cannabis breath test such as that to what’s available for alcohol is not a barrier to law enforcement. Police officers already are trained to detect impairment, and drivers can be convicted, for example, without a specific breath alcohol test.

Opponents argued it is not said the right time for the bill. They said one major problem is the lack of technology available to quickly determine intoxication levels similar to a breath test for alcohol. Opponents also argue it would erode employers’ right to maintain a drug-free workplace, make it more difficult to keep impaired drivers off the road and increase crime.

AREAS OF CONCERN AND UNANSWERED QUESTIONS

In a February 5, 2020 Editorial, Albuquerque Journal pointed out a number of areas of concern and unanswered questions with Senate Bill 115. In a nutshell, and edited, those can be summarized as follows:

On January 1, 2021, if the law passes, 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 won’t go away. A new Department of Justice report says state-level legalization actually gives criminal drug trafficking organizations cover for large grow operations.

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 statistics will no doubt be used again by opponents of the legislation. Impaired driving is still a major concern. AAA says the number of traffic fatalities in which drivers tested positive for marijuana doubled in Washington state after legalization.

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

There are mentions of health risks in the law as written, but only for minors and in the medical section. Cannabis use, especially in chronic users, has been linked to schizophrenia, anxiety, depression, suicide, significant abnormalities in brain function and structure, and lower IQ.

Legalization of recreational cannabis will not raise that much tax money, and it’s already taken. “The bill’s Fiscal Impact Report says the 9% excise tax on recreational pot is expected to raise $24.5 million for the state in fiscal 2024 – all earmarked to seven funds directed at community grants, patient subsidies, substance abuse treatment, law enforcement, cannabis startups, workforce training and DWI education. Gross receipts taxes are projected to bring in $9.37 million to the general fund that year. Municipalities and counties are allowed to impose up to a 4% excise tax. Medical pot will be exempt from state excise tax and GRT.”

For the full, unedited Journal Editorial see:

https://www.abqjournal.com/1417076/haze-of-unknowns-clouds-legislation-on-recreational-cannabis.html

COMMENTARY AND ANALYSIS

The 2020 New Mexico Legislative session is now at 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 an a final House Vote.

At this point in time, and with so many areas of concern, it is more likely than not that Senate Bill 115 will fail or not make it through both the Senate and House during the 30-Day session. As an alternative plan, the New Mexico Legislature needs to put the issue of legalization of recreational marijuana 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.

For a related blog article see:

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

A Few Tears Worth A Thousand Words; Washington Post Fact Check’s Trump’s 2020 State Of The Union

President Trump’s speech was not a State of the Union Address but more of a campaign stump speech for reelection. Upon taking the podium, Trump declined to shake Speaker Pelosi’s hand, which shows just how arrogant the orange buffoon really is. Trump’s speech was a check list of push button conservative issues offered as “red meat” to his cult like supporters who belief all of his lies.

Trump talked about appointing conservative federal judges, many unqualified an not approved by the American Bar Association and bragged about having many more where they came from. He praised his appointments of Neil M. Gorsuch and Brett M. Kavanaugh to the Supreme Court, two justices who are Republican, right wing ideologs that are hell bent on interfering with a woman’s right to choose, setting aside hard fought battles for equal rights, equal pay, and embrace the concept that corporations are people entitled to contribute millions to political elections, and making sure that any one and every one can buy guns of their choosing.

Trump touched on and bragged about building his wall along the border of Mexico proclaiming 500 miles of the wall will be completed by next year, the same wall Trump said Mexico would pay for and that he is using to divide families and stopping those who are seeking asylum. Trump went on the offensive against socialism and left-wing policies, an obvious slap to Bernie Sanders, drawing groans from Democrats in attendance and prompting a furious Pelosi to make dramatic gesture.

The speech took on the feel of a “game show” or talk show when he made awards of scholarships and recognizing people in the Gallery. The most offensive recognition was when he gave conservative talk show host Rush Limbaugh the “Medal of Freedom”, the highest medal of honor awarded to a private citizen, thereby degrading the honor as never before. Trump went out of his way to note Limbaugh’s diagnosis of stage 4 lung cancer as if that qualified him to receive the honor, while ignoring the thousands of those with Stage 4 cancer dying every year in this country. Trump’s “Price Is Right” looking model First Lady draped the medal around Limbaugh’s neck as the Congress watched on as if being awarded the metal was not enough.

There is no doubt that the highlight and best part of the speech and that what will be remembered more than anything Trump said was when Speaker of the House Nancy Pelosi while standing behind Trump tore up page after page of Trump’s speech to the shock of all the newscasters. Vice President Mike Pence admitted on FOX NEWS AND FRIENDS that he did not see her tearing up the speech, no doubt fixated on Trump’s back at the time and using his tongue to take Trump’s pulse. Vice President Pence did react to house speaker Nancy Pelosi’s ripping up her copy of the speech by saying “I think it was a new low.”

Not surprising, Trump and his cult supporters went on a “twitter rampage” to blast Speaker Pelosi for tearing up his speech. T rump called it a “rampage”, yet the Speaker did not utter one single word. It is obvious Trump was deeply affected by the Speaker’s actions knowing full well that her one act of defiance overshadowed all that he said and he was upstaged beyond his comprehension, and by a woman.

https://www.nydailynews.com/news/politics/ny-trump-pelosi-20200205-cwetwlghwbafxm23nl3pi4q4py-story.html

https://talkingpointsmemo.com/news/trump-goes-on-twitter-tear-over-pelosi-ripping-up-his-speech

Asked about the moment by Fox News afterward, Speaker of the House Nancy Pelosi said she tore up Trump’s speech “because it was the courteous thing to do considering the alternatives” and she was “trying to find one page with truth on it” but “couldn’t.” It is Nancy Pelosi that should be awarded the Medal Of Freedom by the Democratic President elected on November 3, 2020.

WASHINGTON POST FACT CHECK’S TRUMP’S 2020 STATE OF THE UNION

On February 5, 2020, within hours after President Trump gave his State of the Union address before the United States Congress and the American People, the Washington Post published a “Fact Check” of many of the statements he made.

Below is the article followed by the link:

“President Trump’s State of the Union speech once again was chock-full of stretched facts and dubious figures. Many of these claims have been fact-checked repeatedly, yet the president persists in using them. Here, in the order in which he made them, are 31 statements by the president.

“I am thrilled to report to you tonight that our economy is the best it has ever been.”

The president can certainly brag about the state of the economy, but he runs into trouble when he repeatedly makes a play for the history books. Our database of Trump claims shows he has made a variation of this claim some 260 times. There are several metrics one could look at, but the current economy falls short, according to experts we consulted. The unemployment rate reached a low of 3.5 percent under Trump, but it was as low as 2.5 percent in 1953. Trump has never achieved an annual growth rate above 3 percent, but in 1997, 1998 and 1999, the gross domestic product grew 4.5 percent, 4.5 percent and 4.7 percent, respectively. But even that period paled against the 1950s and 1960s. Growth between 1962 and 1966 ranged from 4.4 percent to 6.6 percent. In 1950 and 1951, it was 8.7 percent and 8 percent, respectively.

“From the instant I took office, I moved rapidly to revive the U.S. economy … enacting historic and record-setting tax cuts.”

Trump constantly claims he passed the biggest tax cut in U.S. history, but [that’s] false. The best way to compare tax cuts (or spending plans) over time is to measure them as a percentage of the national economy. The Trump tax cut, according to Treasury Department data, is nearly 0.9 percent of GDP — compared with 2.89 percent of GDP for Ronald Reagan’s 1981 tax cut, the actual largest tax cut. When measured as a share of the U.S. economy, Trump’s tax cut is the eighth-largest in the past century.

“Since my election, we have created 7 million new jobs.”

Trump often inflates the number of jobs created under his presidency by counting from Election Day, rather than when he took the oath of office. There have been almost 6.7 million jobs created since February 2017, according to the Bureau of Labor Statistics.
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Job creation under President Barack Obama’s last three years, 227,000 a month, still exceeds the monthly average of 191,000 a month under Trump.

“Incredibly, the average unemployment rate under my administration is lower than any administration in the history of our country.”

This is ingenious and worth fact-checking because the average over three years is hardly comparable to a four- or eight-year average for other presidents. For example, the unemployment rate average was lower in Lyndon B. Johnson’s second term than it has been under Trump. But when Johnson’s first term is factored in, Trump gains the edge.

“The unemployment rate for disabled Americans has reached an all-time low.”

The Bureau of Labor Statistics has reported this rate since 2008, so it’s a big stretch to call it an “all-time low.” The rate was 7 percent in December.

“Under my administration, 7 million Americans have come off of food stamps.”

About 6 million people (not 7 million) have stopped receiving food stamps since February 2017, according to the latest data. (An earlier version of this article offered an out of date number.) But experts say the improvement in the economy may not be the only reason for the decline. Several states have rolled back recession-era waivers that allowed some adults to keep their benefits for longer periods of time without employment. Reports have also suggested immigrant families with citizen children have dropped out of the program, fearing the administration’s immigration policies. Moreover, the number of people collecting benefits has been declining since fiscal year 2014.

“In eight years under the last administration, over 300,000 working-age people dropped out of the workforce. In just three years of my administration, 3.5 million people, working-age people, have joined the workforce.”

Trump never seems to remember — or prefers to forget — that Obama took office during the worst economic crisis since the Great Depression, when 800,000 jobs a month were being shed. The labor force participation rate fell, sharply, as millions of jobs were eliminated and people had trouble finding work. In January 2009, the labor force participation rate was 65.7 percent, and it fell to 62.8 percent by the time Obama left office. It has since inched up a bit, to 63.2 percent, under Trump, but it is still not back to pre-recession levels of 66 percent.

As for Trump’s math here, we’re not able to replicate it. Over the course of Obama’s two terms, labor force participation times the working-age population gets you a gain of about 5.5 million under Obama and nearly 5 million under Trump.

“This is a blue-collar boom.”

In the past year, things have gotten grimmer for many blue-collar workers. The manufacturing sector is in a technical recession, and only 9,000 manufacturing jobs have been gained since June, compared with the 460,000 in the first 2½ years of Trump’s presidency. Job growth has slowed in many “blue-collar” sectors such as transportation, construction and mining.

“Since my election, the net worth of the bottom half of wage earners has increased by 47 percent — three times faster than the increase for the top 1 percent.”

Trump is just spinning here. Net worth for the bottom half has gone up, but it was from such a low base that it’s pretty silly to call it a boom. People in the bottom half have essentially no wealth — just 1.6 percent of the nation’s wealth — as debts cancel out whatever assets they might have. The top 5 percent hold more than 70 percent of all net worth in the United States.

“Everybody said that criminal justice reform couldn’t be done, but I got it done and the people in this room got it done.”

Trump signed the First Step Act in 2018. One of the biggest pieces of the First Step Act — a provision that reduced sentences for crack cocaine offenses — was an extension of Obama’s efforts in 2010.

We gave Three Pinocchios to Trump for claiming that he accomplished what Obama could not. In his speech …, Trump didn’t mention Obama when discussing the criminal justice law.

“All of those millions of people with 401(k)s and pensions are doing far better than they have ever done before with increases of 60, 70, 80, 90 and even 100 percent.”

Trump often boasts that the value of 401(k) retirement accounts has skyrocketed during his presidency, even though there’s no evidence of such huge gains and even though the Census Bureau reports only 32 percent of Americans are saving for retirement with such plans. An analysis by Fidelity Investments showed the average 401(k) balance increased less than 1 percent when comparing the first quarters of 2018 and 2019.

“Thanks to our bold regulatory reduction campaign, the United States has become the number one producer of oil and natural gas in the world, by far.”

The notion that a revolution in energy began under the Trump administration is wrong. The United States has led the world in natural gas production since 2009. Crude oil production has been increasing rapidly since 2010. The United States was the top producer in 2013. In September 2018, the United States once again passed both Russia and Saudi Arabia to become the largest global crude oil producer. But the energy revolution he takes credit for began under Obama.

“With the tremendous progress we have made over the past three years, America is now energy independent.”

This is false. The United States continues to import energy. “In 2018, the United States imported about 9.94 million barrels per day (MMb/d) of petroleum from nearly 90 countries,” according to an Energy Information Agency report, with 43 percent coming from Canada and 16 percent from Persian Gulf countries.

“After losing 60,000 factories under the previous two administrations, America has now gained 12,000 new factories under my administration, with thousands upon thousands of plants and factories being planned or built.”

“Factories” conjures up images of smokestacks and production lines, but the data set Trump cited is not really about factories.

Trump is using a Bureau of Labor Statistics database set known as the Quarterly Census of Employment and Wages. The data show that United States gained nearly 12,000 additional “manufacturing establishments” between the first quarter of 2017 through the second quarter of 2019. There was also a gain of 10,000 in Obama’s second term.

But more than 80 percent of these “manufacturing establishments” employ five or fewer people. If those sound like pretty small factories, that’s because many are not “factories.” The BLS counts any establishment “engaged in the mechanical, physical, or chemical transformation of materials, substances, or components into new products,” so that also includes businesses “that transform materials or substances into new products by hand or in the worker’s home and those engaged in selling to the general public products made on the same premises from which they are sold, such as bakeries, candy stores, and custom tailors.”

“Following NAFTA’s adoption, our nation lost one in four manufacturing jobs.”

This is misleading, as Trump attributes all manufacturing lost to the North American Free Trade Agreement (NAFTA) when many other factors were responsible, such as automation and China’s entry into the World Trade Organization.

“Many politicians came and went, pledging to change or replace NAFTA — only to do so and then absolutely nothing happened. But unlike so many who came before me, I keep my promises. We did our job. Six days ago, I replaced NAFTA and signed the brand new United States-Mexico-Canada Agreement (USMCA) into law.”

The USMCA is a modest reworking of NAFTA launched in 1994, with about 85 to 90 percent the same as the deal Trump repeatedly trashed as terrible.
The U.S. International Trade Commission, which is tasked with evaluating the impact of trade agreements, calculated the new deal would have a relatively minor impact: The USMCA would raise U.S. real gross domestic product by $68.2 billion (0.35 percent) and U.S. employment by 176,000 jobs (0.12 percent).

“The USMCA will create nearly 100,000 new high-paying American auto jobs.”

This is an invented figure. The USITC report said the agreement would create about 28,000 jobs in the auto sector.

“To safeguard American liberty, we have invested a record-breaking $2.2 trillion in the United States military.”

Trump is just talking about three years of defense funding added up together. On an inflation-adjusted basis, not one year of Trump’s defense budgets has exceeded the high point in 2010 under Obama.

“I have raised contributions from the other NATO members by more than $400 billion, and the number of allies meeting their minimum obligations has more than doubled.”

Trump gives himself too much credit. Since 2006, each NATO member has had a guideline of spending at least 2 percent of gross domestic product on defense spending. Defense expenditures for NATO countries other than the United States have been going up — in a consistent slope — since 2014. That’s when NATO decided to boost spending in response to Russia’s seizure of Ukraine’s Crimea region. NATO estimates that its European members and Canada will add $130 billion in cumulative defense spending through 2020, in 2015 dollars, as an increase over 2016 spending. NATO also estimates the cumulative figure will rise to $400 billion through 2024.

“Before I took office, health insurance premiums had more than doubled in just five years. I moved quickly to provide affordable alternatives. Our new plans are up to 60 percent less expensive.”

Trump often makes this claim, but we have not been able to verify the claim of a 60 percent reduction in costs. The new short-term health plans authorized by the Trump administration are less expensive for a reason: They offer skimpier coverage and thus provide less protection. As for the doubling in health insurance premiums, that claim is based on a White House report that made some questionable methodological choices.

“We will always protect patients with preexisting conditions.”

In an ongoing court case, the Trump administration is supporting a total repeal of the Affordable Care Act — including its guarantee that patients can’t be denied coverage for preexisting conditions. Republicans in Congress tried for years to repeal the whole law. Trump has not presented a plan to cover the gaps in case the court challenge is successful. Moreover, he has promoted short-term plans (which he touted in his speech) that are not required to cover preexisting conditions.

“Through our Pledge to American Workers, over 400 companies will also provide new jobs and education opportunities to almost 15 million Americans.”

Trump usually describes this as jobs already created, but apparently his language was tamed by a teleprompter. These are not new jobs but training opportunities. Moreover, the numbers reflect pledges over a five-year period, not something already achieved. Many companies signed up by offering training programs that already existed.

“I was pleased to announce last year that, for the first time in 51 years, the cost of prescription drugs actually went down.”

The consumer price index for prescription drugs in 2018 fell for the first time in 46 years. But that’s only when measuring calendar years from January to December, which is somewhat arbitrary. The president’s record shrinks to 5½ years when measuring non-calendar years. (The CPI had last declined in the 12-month period ended July 2013.)
Experts say the CPI for prescription drugs fails to account for rebates, which can be substantial, and may be giving a skewed picture because of recent market shifts toward generics and electronic payments by third parties. Studies we found show drug prices have not declined, especially when it comes to branded drugs.

“As we speak, a long, tall, and very powerful wall is being built. We have now completed over 100 miles and have over 500 miles fully completed in a very short period of time. Early next year, we will have substantially more than 500 miles completed.”

Trump doubled down on a promise for 500 miles of new border fencing by “early next year,” which would require the current pace of construction to more than double. Department of Homeland Security officials have been trying to lower expectations lately, saying they will have that much built or “under construction.”

He also exaggerates the barrier’s sturdiness. The Washington Post has reported that the steel-and-concrete bollard fence can be cut through with a souped-up power saw and that a series of large floodgates “must be left open for months every summer during ‘monsoon season’ in the desert.”

“With unyielding commitment, we are curbing the opioid epidemic. Drug overdose deaths declined for the first time in nearly 30 years.”

Overall, drug overdose deaths fell in 2018 for the first time in 28 years, according to data from the Centers for Disease Control and Prevention. But fentanyl overdose deaths increased 10 percent.

“Last year, our brave ICE officers arrested more than 120,000 criminal aliens charged with nearly 10,000 burglaries, 5,000 sexual assaults, 45,000 violent assaults and 2,000 murders.”

Many of the “criminal aliens” Trump is describing are immigrants who were convicted of immigration or nonviolent offenses. He quickly switched from the total for ICE arrests (120,000) to a different number that includes all the different charges. It’s a misleading, apples-and-oranges comparison because one individual may face multiple charges — and not all arrests result in convictions.

“Before I came into office, if you showed up illegally on our southern border and were arrested, you were simply released and allowed into our country, never to be seen again. My administration has ended catch-and-release. If you come illegally, you will now be promptly removed from our country. Very importantly, we entered into historic cooperation agreements with the governments of Mexico, Honduras, El Salvador and Guatemala. As a result of our unprecedented efforts, illegal crossings are down 75 percent since May — dropping eight straight months in a row. And as the wall rapidly goes up, drug seizures rise, and border crossings are going down.”

The Trump administration has tried but has not ended catch-and-release, the policy of releasing asylum seekers and refugees — many of them women and children — into the country while they await a hearing in the clogged U.S. immigration court system. Immigrants continue to be released.

Southwest border apprehensions dropped 75 percent when measuring from May to December, but when looking at all of Trump’s presidency, the gains are almost negligible: 42,359 apprehensions in January 2017, and 40,620 in December 2019.

“In the Senate, we have confirmed a record number of 187 new federal judges.”

It’s not a record. Trump has a long way to go to have appointed the most federal judges. Reagan has the record, with 383, followed by Bill Clinton with 378 and then Obama with 329. Through Jan. 18, 187 judges nominated by Trump have been confirmed by the Senate.

“Forty million American families have an average $2,200 extra thanks to our child tax credit.”

This is an example of Trump using correct numbers, but he gives too much credit to himself and his Republican colleagues. The child tax credit has existed since 1997, and it has been expanded since then, including in the recent tax law. In 2016, under Obama, 35 million American families took the tax credit, with an average benefit of over $1,500 a year, according to the Treasury Department. So there’s only been a modest increase (in part because of inflation).

“Three years ago, the barbarians of ISIS held over 20,000 square miles of territory in Iraq and Syria. Today, the ISIS territorial caliphate has been 100 percent destroyed, and the founder and leader of ISIS — the bloodthirsty killer known as Al Baghdadi — is dead!”

The U.S. military warned, in a report issued the day Trump spoke, that the Islamic State remained a dangerous threat and that the killing of Abu Bakr al-Baghdadi did not degrade the group’s capabilities. “USCENTCOM told the DoD OIG [Office of the Inspector General] that following the death of ISIS leader Abu Bakr al-Baghdadi, the group’s capabilities in Syria remained the same,” the report said. “USCENTCOM said that ISIS remained cohesive, with an intact command and control structure, urban clandestine networks, and an insurgent presence in much of rural Syria.”

“Qasem Soleimani … directed the December assault and went on to assault U.S. forces in Iraq, and was actively planning new attacks.”

Other than Trump’s assertion, there is no publicly available evidence that Iranian Maj. Gen. Qasem Soleimani directed the December attacks or that any possible attack was imminent.

You can read the Washington Post column at the below link:

https://www.washingtonpost.com/politics/2020/02/04/fact-checking-president-trumps-2020-state-union-address/

Ethics Commission Funding In Doubt From Those It Oversees; Create Formula Funding Source From State Agencies; Empower Commission To Suspend Or Remove

On November 5, 2018, New Mexico voters, with a 75% majority, voted for a constitutional amendment to establish an independent statewide ethics commission with subpoena power. New Mexico was one of only 6 states without an independent ethics commission.

On March 15, 2019, state lawmakers reached a compromise on creating a new, independent ethics commission. The enacted legislation signed into law by the Governor creates an ethics commission that is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor, the lieutenant governor, attorney general, secretary of state, public land commissioner and state auditor, or candidates for those offices, to those prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session. However, the ethics commission has no authority over school board members and local officials such elected Mayors or City Councilors.

A seven-member commission was created and is empowered to fine public officials if they are found by the commission to have violated civil provisions of state laws. There is no authority to suspend or remove from office elected officials. The Ethics Commission has been empowered to issue advisory opinions to officials as well as to educate officials regarding what is and is not permitted conduct.

AGENCY UP AND RUNNING

On January 4, 2020, a little more than 10 months since the NM Legislature enacted the creation of the Ethics Commission, it was reported that the Ethics Commission is fully operational and accepting complaints to investigate.

The state agency is led by a seven-member board and State law authorized the commission to begin accepting ethics complaints on January 1, 2020. It needs to add staff for that work after hiring an executive director in September.

The Commission plans to meet every other month, although it can meet as often as it wants depending on the volume of complaints and related work, including issuing rules and regulations.

The Commission has established a website and according to news reports, it may issue its first advisory opinion next month. The commission has office and meeting space in Albuquerque, although it has held meetings in other parts of the state.

The New Mexico Legislature funded the ethics commission with $500,000 in the state budget for the fiscal year that began on July 1, 2019. The commission is seeking a supplemental appropriation of $385,000 to $400,000. For the 2020-2021 fiscal year, the agency is requesting a little over $1.1 million.

https://www.abqjournal.com/1406564/new-state-watchdog-ready-to-investigate-ethics-complaints.html

FEARS OF INADEQUATE FUNDING

Fears are beginning to mount that the 2020 New Mexico Legislature now under way will not be getting enough funding to carry out its work. The ethics commission is in the awkward position of having to ask lawmakers, elected officials it has jurisdiction to investigate individually, for more funding to operate.

Democrat State Representative Daymon Ely from Corrales helped craft 2019 legislation outlining the commission’s procedures and power. He said he is “hopeful” the agency will get the necessary money this year but that he is “nervous” about the funding . House Appropriations and Finance Committee is still crafting a final budget for the commission that will have to be approved by both the State House and Senate.

Ely expressed concerns about the funding by saying:

“I do think going forward, this poses a problem. … You don’t want the ethics commission that’s going to oversee the Legislature having to get out the tin cup every year – that’s a potential conflict in the system.”

The current House budget for the Ethics Commission concentrates on spending for this year and next year. The commission received $500,000 in this year’s budget to begin operations. A problem is that legislative analysts projected it would require close to $1 million to operate the commission for a full year.

The State Ethics Commission requested a $385,000 “supplemental appropriation” to help carry out its work this year and the request is backed by Governor Michelle Lujan Grisham. The budget proposal under consideration by the House Appropriations Committee does not provide for any of the “supplemental appropriation” for this fiscal year that ends June 30.

Next year’s budget is also under consideration this session. For the fiscal year starting July 1, the State Ethics Commission is requesting a little over $1.1 million in funding. The governor is recommending slightly more at $1.2 million. The budget under consideration in the House provides for about $986,000 based on a recommendation by the Legislative Finance Committee.

According to State Ethics Commission Executive Director Jeremy Farris, the agency will have a very difficult time handling ethics complaints through the end of the fiscal year which ends on June 30, with the new budget starting July 1, if it is not given the $385,000 “supplemental appropriation” . According to Farris, denying the supplemental appropriation will delay the launch and creation of the agency. The agency has startup costs, such as purchase of furniture and has work to do including developing training materials and issuing advisory opinions.

A February 3, update from the State Ethics Commission revealed that the House Appropriations and Finance Committee (HAFC) has increased the amount of supplemental funds the Commission is set to receive for FY 20 to $200,000 which is up from the Legislative Finance Committees (LFC’s) recommendation of a $0 allocation. Currently, House Bill 2 still has the Commission set to receive the Legislative Finance recommended amount of $985,000 for FY 21 which is approximately $155,000 less than the Commission’s request.

COALITION SUPPORTS FULL FUNDING

A coalition of civic groups and activists, many that worked for the last 40 years and pushed for establishment of the commission, including Common Cause New Mexico, New Mexico Ethics Watch, the New Mexico Foundation for Open Government and the League of Women Voters announced their support for fully funding the State Ethics Commission. According to Executive Director of Common Cause:

“It is an investment in good government which will pay off in many ways – increased public trust and even economic development. ”

SOURCE OF THE CONFLICT IN FUNDING

Governor Lujan Grisham wants to give the state’s independent Ethics Commission significantly more operating money than lawmakers. She is recommending the full $385,000 supplemental appropriation request to help the commission get up and running in its first few months of operation. The Legislature’s is proposing giving only half the amount. The Governor is also recommending a quarter million more for the agency in its first-full year of operation than is the Legislature, $1.24 million compared to the Legislatures $985,000 recommendation.
(Sources:

Executive Budget Summary at https://www.governor.state.nm.us/wp-content/uploads/2020/01/FY21-Executive-Budget-Recommendation-1.pdf , pages 18 and 49 and

House budget bill at https://www.nmlegis.gov/Sessions/20%20Regular/bills/house/HB0189.pdf pages at 43-44.)

Heather Ferguson, director of Common Cause New Mexico, had this to say about the funding conflict:

“The Legislature doesn’t want to come up with the funds to ensure that [the Ethics Commission] can fully do its job.”

Political observers and commentators believe that the major source of friction between the Ethics Commission, the Governor and the Legislature is the mission of the commission itself. Simply put, the commission’s mission it to investigate ethics complaints against elected and government officials. Many of today’s state lawmakers over the years have repeatedly opposed the creation of the commission for fear of attacks prior to elections. A critical part of ethics complaint investigations are staff hearing officers that must be hired be hired with the requested funding. The hearing offices will assume investigations in in the first months prior to the June primary election.

The competing budget proposals between the Commission, the Governor and the Legislature should not come as any surprise. Such conflicts have been problematic in other states that already have ethics commissions. Some state legislatures with ethics commissions have underfunded the agencies in order to hamper their mission or to even shut the agencies down completely with lack of funding.

According to the on line news agency “New Mexico In Depth”, a coalition of organizations that support a strong ethics commission is exploring the creation of a funding source divorced from the Legislature’s budget making authority. Such a funding source would prevent budget cuts that could easily come on a whim initiated any legislator upset with the commission and severely undermine the commission’s effectiveness.

http://nmindepth.com/2020/01/31/governor-lawmakers-tussle-over-funding-for-ethics-commission/

AUTHORITY TO SET SALARY FOR LEGISLATORS PROPOSED FOR ETHICS COMMISSION

Senate Joint Resolution 7 would make the State Ethics Commission the sole authority to set the salaries of hundreds of state and county elected officials. It is proposed constitutional amendment if approved by lawmakers would go before voters on the November 5, 2020 general election ballot. Senate Joint Resolution 7 cleared the Senate Rules Committee on a 6-4 vote and has been referred to the Senate Judiciary Committee.

Albuquerque Democrat State Senator Daniel Ivey-Soto, a co-sponsor of the proposal, said it would be a way to “de-politicize” the setting of salaries and said:

“The only way for salaries to not be political is for us to be out of the salary business altogether. ”

Democrat State Senator Clemente Sanchez, Grants, objects to the proposal describing it as a “backdoor” way to create salaries for legislators, and questions whether the State Ethics Commission is the right agency for the work by saying:

“I have a problem with an outside group that’s not elected by anyone making a decision on appropriations. ”

https://www.abqjournal.com/1415310/lawmakers-debate-funding-for-ethics-commission.html

ANALYSIS AND COMMENTARY

There is clearly a major conflict of interest or a built-in threat to the continuing functioning of a viable Ethics Commission when it is forced every year to ask for funding to continue with its existence and its work. A major guarantee for the continuation of the Ethics Commission is that it was created by a constitutional amendment with a 75% majority vote by taxpayers. Legislators cannot unilaterally repeal the amendment and as such legislators have no choice to fund it to allow it to carry out its mission.

AGENCY FORMULA FUNDING SOURCE PROPOSED

There is an urgent need for a funding source separate or independent from the Legislature’s budget making authority to prevent commission budget cuts. Given the legislature’s duties and authority over all appropriations for agencies, it will be difficult to set up such a funding source without conflict, at least not without a court challenge, but it can be done.

One option would be enacting funding legislation that would provide for ongoing and pre-approved budgets with a formula mandating a small fraction of 1% of each state approved agency budget. As each agency’s budget is approved by the legislature it would automatically approve the funding of the ethics commission without decreases or increases The financing amounts from each agency would be dedicated strictly for the Ethics Commission and would not be subject to annual review or appropriation modifications by the legislature.

Any funding not spent or in excess of what is needed would revert back to the states general fund. Such a funding formula would be similar to the principal used in development programs that mandate a certain percentage of a developments and financing be dedicated for projects that are to be used by the general populace. An amendment to this year’s budget could be added to provide the funding formula for the Ethics Commission.

LEGISLATURE SHOULD REJECT GIVING ETHICS COMMISSION AUTHORITY TO SET SALARIES

The New Mexico Legislature is one of 14 State Legislatures in the Country that is considered “part time” and with low pay. New Mexico is one of only a few states that do not pay lawmakers an annual salary. New Mexico legislators receive a $161 stipend each day they are at the Capitol or attending committee meetings. Many legislators are retired or work in careers or are self-employed that allow them to serve in Santa each year for the session.

Every year during a session almost like clock work, an attempt is made to establish salaries for the legislature. Senate Joint Resolution 7 is this years version and it calls for a voter approved constitutional amendment that would make the State Ethics Commission the sole authority to set the salaries of hundreds of state and county elected officials. The bill is shortsighted and would be a major mistake. Such authority will create conflict with virtually all legislators and elected officials who could easily harbor grudges if they feel they are not being paid enough.

What will also be problematic is that not only salaries would have to be paid, but funding for the legislators retirement fund. The truth be know, New Mexico has out grown a citizens legislature and is in need of a full time legislature, but trying to establish a pay system on the backs of newly created agency is ill advised and will be considered sneaky by the general public.

CREATION OF ETHICS COMMISSION LONG OVERDUE

When it comes to the creation of Ethics Commission, it was long overdue for decades. New Mexico has had more than its fair share of public corruption scandals over the years.

A rogue’s gallery of unethical conduct, fraud, theft and abuse of power and influence in New Mexico politics includes Former Democrat State Senator Manny Aragon, two former Democrat State Treasurers, Michael Montoya and Robert Vigil, former Republican Secretary of State Dianna Duran, former Democrat State Senator Phil Griego, former Republican State Senator Monica Youngblood, former Republican New Mexico Taxation, and Revenue Secretary Demesia Padilla. Most recently, on December 7, New Mexico State Senator Richard Martinez, after a two-day bench trial, was found guilty of aggravated drunken driving and reckless driving. He was sentenced on January 7, 2020 to 5 days in jail, which he served and was released in time for the 2020 session. Senator Martinez refused to resign from the Senate, voluntarily resigned as Chairman of the Senate Judiciary Committee and he is seeking reelection.

Unproven allegations of “pay to play” plagued the 8-year tenure of Democrat Governor Bill Richardson with a federal grand jury investigation resulting in no indictments and no finding of “pay to play”. Then Republican United States Attorney for the District of New Mexico Gregg Forate, with an obvious strong Republican partisan bias, released a scathing letter of condemnation that accused the Richardson administration of “corrupting” the government contract award process. Former Governor Richardson withdrew his nomination to serve in President Obama’s Cabinet because of the federal investigation.

During the 8-year tenure of former Republican Governor “She-Who-Must-Not-Be-Named”, allegations of unethical conduct and undue influence with the award of the billion-dollar, 20-year Downs Race Track Lease, dubbed the “Dirty Downs Deal”, occurred. What also occurred was a federal grand jury investigation of the Republican Governor’s number one political consultant and campaign manager relating to misuse of her inauguration funding.

EMPOWER COMMISSION WITH AUTHORITY TO SUSPEND OR REMOVE

One area that merits serious consideration by the New Mexico Legislature is to empower the Ethics Commission with the authority to suspend or remove a public official or give the Commission the authority to seek from a District Court or Supreme Court the suspension or removal from office elected officials who have been found to have engaged in nefarious or unethical conduct. Further, the Ethics Commission should be given authority over local elected officials such as Mayors and City Councilors.

The statewide Ethics Commission should eventually help rebuild trust in a state government that has experienced way too much corruption throughout the decades. However, it will be able to do so only if it is empowered with real authority to suspend or remove someone for nefarious or unethical conduct. Otherwise, the Commission will be an exercise in futility to hold nefarious and unethical officials actually accountable for their actions short of criminal prosecution, forced resignations or hoping that they will be voted out of office.

Governor Lujan Grisham Catches “Tough On Crime” Virus From Her Predecessor; Warehousing Will Not Bringing Down Crime; Concentrate On Root Causes Of Crime, Not Increased Penalties

For 16 years prior to becoming the first female Hispanic Republican Governor in New Mexico, “She Who Must Not Be Named” served as the elected Dona Ana County District Attorney. It was during the time she served as a prosecutor she contracted a serious case of the “Tough on Crime Virus”, and much like the corona virus, she never fully recovered from it. In fact she spread the virus to get elected Governor to gin up support from her conservative Republican base.

The Former Governor Republican was known during her entire 8 years in office of rolling out year, after year, after year, “tough on crime legislation” she knew would not pass, even during the 30-day short sessions, which are supposed to deal with budgetary matters. The former Republican Governor wanted to toughen criminal sentences for a number of offenses ignoring the root causes of crime.

During the 2018 thirty-day legislative session, the former Republican Governor wanted to reinstate the death penalty, wanted a bill to toughen penalties for people who commit crimes while on probation or parole and wanted to restore the death penalty for people convicted of murdering children and law enforcement. She also wanted a three-strikes proposal that would require life sentences for repeat offenders convicted of a third violent felony. According to the former Republican Governor, the laws would have targeted “the worst of the worst.”

It has become worrisome to Democratic political observers that the Former Republican Governor and her political hatchet man left the “Tough on Crime” virus in the Governor’s Office. During this year’s 2020 legislative session, Governor Michelle Lujan Grisham has allowed to be placed on the agenda 3 “tough-on-crime” bills currently making their way through the Legislature. To many of her supporters, Democratic Governor Michelle Lujan Grisham is showing signs of “get tough on crime” fever by supporting Republican sponsored legislation.

TOUGH ON CRIME LEGISLATION

The three bills placed on the 2020 legislative agenda by Democrat Governor Lujan Grisham are House Bills sponsored by Republican State Representative Bill Rehm. The bills are House Bill 35, House Bill 113 and House Bill 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.

A historical note of the one-year enhancement for using a gun to commit a crime is when former District Judge Gene Franchini, who later became a New Mexico Supreme Court Justice, resigned over the one-year firearm enhancement. Judge Franchini chose to resigned from the district court bench rather than impose the mandatory jail sentence for use of a fire arm in a crime. The Defendant was convicted of aggravated assault with a gun when he brandished a gun during a heated argument at a traffic stop, and threatened someone, but did not discharge the firearm. Judge Franchini announce his resignation at the defendant’s sentencing, refused to sentence the man and said he could not live with his conscience and a law that required a mandatory jail sentence of one year.

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. Under House Bill 18, the definition of a “felon” 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.

EDITORS NOTE: The postscript below to this blog article contains a discussion of the current penalties and sentencings for conviction of felonies under the New Mexico Criminal code.

RATIONALE FOR INCREASING PENALTIES

State Representative Bill Rehm, R-Albuquerque, the sponsor of all three bills, said he “hopes” the laws will curb the high violent rates crime rates in Albuquerque. Rehm also said he believes the bills would make criminals “think twice” about getting a gun or using one during a crime.

According to Rehm:

“We have violence all across the state, but in particular in Albuquerque right now. …What we’re trying to do in a bipartisan way… is push these bills to get them on through to try to address some of the violence we see. We know that being a criminal, you make bad decisions. … If you’re in possession of a firearm and you’re already making a bad decision … this is going to go ahead and say, ‘Don’t have a firearm with you.’ “

Governor Michelle Lujan Grisham said her administration is taking an “all-of-the-above” approach to battling high crime rates in Albuquerque and other parts of the state and said:

“[These measures are] smart on crime by targeting the “worst of the worst” and said the approach includes more substance abuse and mental health treatment programs and she added “I’m trying to do all of that. … I don’t know when those things became mutually exclusive.”

Tripp Stelnicki, the governor’s spokesman, in a statement said:

“The bills would pave the way for judges to impose longer prison sentences for violent criminals, and that would keep our communities safer. … And while no law can deter all crime, these bills certainly would prevent some crime by keeping violent felons off our streets for longer periods of time.”

OPPOSITION VOICED

Civil rights advocates, community groups and defense lawyers oppose all 3 bills arguing increasing criminal penalties and mandating more time in prison are not the answer to the State’s high crime rates. They argue that more severe sentences do little to deter crime or make communities safer in the long run.

New Mexico SAFE is a coalition of more than 30 faith-based, nonprofit or community organizations representing the homeless, women, Native Americans, immigrants and others. The coalition analyzed the 3 house bills on whether it would make the community safer and whether it’s apolitical, fiscally responsible and evidence-based. NM Safe graded all three bills and did not award any of the bills higher than a “C” grade.

New Mexico SAFE pointed out that drug trafficking is already a second-degree felony for a first offense and carries a basic sentence of nine years. The mandatory enhancement bill, House Bill 35, would create a new crime with an additional three-year sentence, and a person could be charged with it regardless of whether a gun was used, fired or even shown.

Under House Bill 35, each count a person is charged with could be separately enhanced. For example, if a person is charge with the commission of 3 felonies in one crime event (ie: possession of a controlled substance, aggravated assault, conspiracy to commit a felony) and it is a first-time offender, that person could receive an additional 10 to 15 years added to the basic sentences for each crime committed. The mandatory enhancement could have the dramatic effect of significantly increasing the number of people in New Mexico prisons.

Jennifer Burrill, vice president of the New Mexico Criminal Defense Lawyers Association had this to say about the 3 bills:

“[The bills are] “failed tough-on-crime policies … I think it’s a backwards movement in terms of trying to address the root causes of crime in our communities. … I don’t think that this is going to solve anything. If the goal is to reduce crime, [these bills] won’t do it. This will only incarcerate and warehouse people. … [The mandatory enhancement] makes us lose sight of humanity, that people grow and change. … One of the things we see with just a simple felon in possession of a firearm is that, let’s say, someone moves back in with their parents and their dad has a gun in the house, they can still be charged with felon in possession of a firearm because it was within their household.”

Steven Robert Allen, policy director at the American Civil Liberties Union of New Mexico, believes a better use of resources would be to invest in substance abuse treatment and programs and had this to say:

“If one thing is for certain, it’s that the war on drugs and the resultant mass incarceration crisis that’s been caused over the past several decades hasn’t done anything to increase public safety in our communities.”

https://www.abqjournal.com/1415714/gov-backs-tough-on-crime-bills.html

1980 NEW MEXICO PRISON RIOT BEST EXAMPLE OF HOW WRONG WAREHOUSING “WORST OF THE WORST” FELONS

Over 40 years ago, on Feb. 2, 1980, New Mexico’s and the nation’s bloodiest prison riot in US history occurred when inmates seized the state penitentiary south of Santa Fe and holding 12 correction officers hostage. The riot lasted 36 hours. One inmate was beheaded, another inmate’s face was burned off with an acetylene torch, other inmates were beaten to death with pipes or killed with a tear gas gun. A piece of rebar was driven through one inmate’s head ear to ear. The reasons for the brutal murder of “inmate on inmate” included that those who were killed were “snitches” or informants.

Investigation of the prison riot primary cause revealed it was prison overcrowding, or warehousing of prisoners, poor prison conditions and the prison’s disciplinary system. The Santa Fe prison was built in the 1950s. The prison was designed to hold 900 inmates but on the night the riot began, it held 1,157 inmates. Thirteen grand jury reports in the years before the riot were critical of inmate living conditions, overcrowding and the prison’s disciplinary system which were also found to have contributed to the riot.

The 1980 prison riot ultimately lead to the state entering into what is called the Duran Consent Decree for federal court oversight of the state’s prison system that governed the way the state ran prisons and treated inmates. It took 20 years before a federal court found the state was in substantial compliance with the decree except in the area of mental health. It took another two years for the state to meet the mental health care standards for inmates.

BERNALILO COUNTY DISTRICT ATTORNEY 65% DISMISSAL, MISTRIAL AND ACQUITAL RATES

On May 22, 2019, State District Court Judges Stan Whitaker and Charles Brown wrote to the New Mexico Supreme Court that statistics revealed an alarmingly high mistrial rate, acquittal rate, dismissal rate in cases where the District Attorney tried cases charged by grand jury versus those cases charged by preliminary hearings. Statistics presented by the District court showed that overcharging and a failure to screen cases by the District Attorney’s Office is contributing to the high mistrial and acquittal rates.

Out of 378 charged cases in the 10-month period of July, 2018 to April, 2019, there were 128 convictions from guilty verdicts and guilty plea agreements, 174 acquittals from not guilty verdicts, DA dismissals, directed verdicts and other types of dismissals and 72 mistrials. Translated to percentage numbers, of the 378 cases charged, 34.92% were convictions, 46.03% were acquittals and 19.05% were mistrials. In other words, of the 378 charged cases resulted in either a mistrial or acquittal when presented to a jury.

https://www.petedinelli.com/2019/05/28/district-court-exposes-da-torrez-65-dismissal-mistrial-and-acquittal-rates-mayor-keller-tries-to-bail-out-da-torrez-from-preliminary-hearings/

COMMENTARY AND ANALYSIS

The 1980 New Mexico prison riot needs to be remembered as a tragic lesson learned the hard way that warehousing the “worst of the worst” felons does not solve much. “Get tough on crime” and imprisoning the “worst of the worst” are political slogans and popular words that help win elections but are, at best, only an attempt to treat the symptoms of very deep cultural problems. “Lock- em up and throw away the key” does not solve the underlying causes of crime. It never has and it never will.

HOUSE BILLS 35, 113 AND 114 ARE MISPLACED, WILL NOT REDUCE CRIME AND SHOULD BE REJECTED BY THE LEGISLATURE

Virtually every argument being made in support of the 3 bills have been heard before. Increased and mandatory sentencing has proven ineffective in reducing 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 as Representative Rehm says. No doubt Representative Rehm has sincere intentions, but his philosophy has long been discredited. 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.

MANDATORY ENHANCEMENTS USED AS BARGAINING CHIPS

Citizens, voters and elected officials who want longer prison sentences always forget that a sentence to prison is at the very end of the criminal justice process. Before a sentence can be imposed, a case but be investigated by law enforcement, sufficient evidence must be secured to ensure a conviction, a person must be arrested, the person must be charged and then tried and convicted. It is the District Attorney’s Office that decides what felonies are to be charged, it’s a jury that decides guilt or innocence, unless a defendant pleads guilty, and it’s a judge that imposes the prison sentence time.

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 as was already reported above. 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.

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.

TRANSFORMING JUDGES INTO SENTENCING ROBOTS

The primary reason for the separation of powers doctrine is to prevent the 3 branches of government from interfering with each other’s functions, duties and powers. Mandatory sentencing enhancement is nothing more than the legislature usurping the power and authority of the courts. Under the law and the code of judicial conduct, judges are required to be fair and impartial, seek justice, protect the public and honor the constitutional rights of an individual defendant.

Judges must do their very best to follow the law and see to it justice is served. Mandatory enhanced sentencing provisions strip judges from any and all discretion as to sentencing. Mandatory and enhance sentencing relegate Judges to the function of unthinking and uncaring sentencing robots totally disregarding the facts and circumstances of a crime, ignoring the background of a person to be sentenced and ignoring pre-sentence reports and recommendations.

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. This is not how the criminal justice system is suppose to work.

GOVERNOR’S BUDGET PRIORITIES BEST APPROACH TO REDUCING ROOT CAUSES OF CRIME

The root causes of crime in New Mexico are painfully obvious. They include poverty, drug addiction, lack of education, untreated mental health problems and failed social intervention. The Governor’s 2020 proposed budget is a major step to address all of the root causes of crime.

New Mexico’s children are the number 1 priority for Governor Lujan Grisham in her Executive Budget for the 2020 session. Nearly half of the state spending increase proposed will go toward education programs, from early childhood through higher education. The Governor’s budget requests full funding of the “Early Childhood Department” that will focus state resources on children from birth to 5 years of age. A major goal of the new department, coupled with other investments, will be more New Mexico children growing up to secure gainful employment as adults who don’t require government services.

The Governor’s 2020 Budget seeks funds the multi-agency Behavioral Health Initiative (BHI) for $28.7 million. The $28.7 million increase includes funding to build a new behavioral health network, including community-based health services, to effectively address substance use disorders, and addressing the behavioral needs of individuals in the criminal justice system.

The Governor’s 2020 budget contains a continuation of critical investments in economic development to create well-paying jobs and successes in diversifying and expanding the economy. The 2020 proposed Executive Budget contains funding to continue the successful investments made using the Local Economic Development Act (LEDA) program of $40 million. $10 million will be used for rural infrastructure projects. The LEDA program has successfully encouraged businesses to come to New Mexico to stimulate economic growth in the state and leveraged $2.3 billion in private investments over the last six years. The goal is to create 2,500 jobs in the 2020 fiscal year.

PUBLIC SAFETY

There are 33 duly elected County Sheriffs in New Mexico and upwards of 150 municipal police departments, each with their own jurisdiction, philosophy on law enforcement and priorities. The same goes for the duly elected District Attorneys and virtually all the Courts in the criminal justice system. No Governor has any authority over them and their priorities. Any increase in penalties and mandatory enhancements will be subject to how the criminal justice system handles those enacted by the legislature.

The only authority that a Governor has over law enforcement is with the New Mexico State Police and the Department of Homeland Security. The Governor at this point is doing the most she can when it comes to public safety with her Executive Budget including funding for the Department of Public Safety budget at $163.9 million, which will provide for a total of 60 new State Police officers, including equipment and training. Additional funding is included for ten new staff for forensic labs, including six new forensic scientists and a new data-sharing system that will address gaps in inter-agency communication, as well as $6.3 million for state police recruitment and retention initiatives.

DOMESTIC VIOLENCE AND THE NEED FOR RED FLAG LAW

Rather than concentrating on trying to increase criminal penalties and taking an “all-of-the-above” approach as the Governor has said to battling high crime rates, she should concentrate on areas that she can truly influence in reducing our murder rates. The proposed Red Flag law is one such area.

Domestic violence cases are some of the most common cases involving the use of a handgun. According to an annual study published by the Violence Policy Center, women are more likely to be killed by men in New Mexico than nearly any other state. New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade. Current statistics are 1 in 3 New Mexico women will experience domestic violence in their lifetime. 18,000 domestic violence calls were made in 2017 with 8,000 calls made in Albuquerque.

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. You never hear from violence crime defendants at time of being sentenced “I was going to use a gun but instead used a bat to crush the skull because I did not want to do the time on a mandatory enhancement for using a gun.”

If the New Mexico legislature is truly interested in bringing down the states violent crime and murder rates, rather enacting enhancement penalties, they should enact the Red Flag law pending and supported by the Governor. Under the proposed red flag law, family members or law enforcement can petition a state court to order the temporary removal of firearms from a gun owner or a person in possession of a gun who may present a danger to themselves or others.

The action is civil in nature and it is not a criminal action nor a civil commitment proceeding to determine mental competency but a request for an “extreme-risk protection order”. It will require a sworn affidavit explaining in detail the facts and circumstance as to why the order is needed against a person. 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.

For more see:

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

https://www.womenshealth.gov/relationships-and-safety/domestic-violence/effects-domestic-violence-children

https://www.unicef.org/media/files/BehindClosedDoors.pdf

CONCLUSION

The New Mexico Legislature needs to spend more time and money building schools, funding mental health care facilities and drug addiction counseling programs and economic development creating jobs that will resolve the root causes of crime as opposed to building jails to warehouse criminals. House Bills 35, 113 AND 114 increasing penalties and mandatory enhancements are misplaced and will have little or no effect on crime. All three bills should be rejected by the New Mexico legislature.

The priorities of Governor Lujan Grisham identified in her submitted budget in the long run, if sustained during all her time as Governor, will reduce our crime rates. In the meantime, the Governor Michelle Lujan Grisham needs to be given a “tough on crime” vaccine to break her fever and her coughing for enactment. The Governor’s offices also needs to be disinfected to get rid of the “tough on crime” virus left by her Republican predecessor “She Who Must Not Be Named”.

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POST SCRIPT

CRIMINAL SENTENCING PENALTIES IN NEW MEXICO AND JUDGE’S DISCRETION

Discussion of the current penalties under the New Mexico Criminal law is in order to understand what is being proposed in three pending New Mexico Legislature house bills.

Under the New Mexico criminal code, felony crimes are categorized into five classes: capital felonies, first, second, third, and fourth-degree felonies. A capital felony is the most serious crime in New Mexico, a first-degree felony is the second most serious felony crime, and second, third and fourth-degree felonies are the least serious felonies.

Capital felonies in New Mexico are premeditated murder, felony murder which is murder committed during the commission or attempted commission of a felony, aggravated criminal sexual penetration, and depraved mind murder. Capital felonies carry the penalty of life in prison

First degree felonies in New Mexico include murder, criminal sexual penetration of a minor and other serious sexual crimes, kidnapping, and robbery while armed with a deadly weapon. First degree felonies carry a prison sentence up to 18 years in prison and up to $15,000 in fines

Second degree felonies include robbery, shooting at or from a motor vehicle, sexual exploitation of a minor, the manufacture of child pornography, and drug trafficking including manufacturing, selling or possession with intent to sell illegal substances. Second degree felonies carry a prison sentence up to 9 years in prison and up to $10,000 in fines

Third degree felonies can include voluntary manslaughter, aggravated battery, some sex crimes, and aggravated stalking. Third degree felonies carry a prison sentence up to three years in prison and up to $5,000 in fines

Fourth degree felonies include involuntary manslaughter, aggravated assault, burglary, graffiti and property damage over $1,000, and shoplifting items with a value between $500 and $2,500. Fourth degree felonies carry a prison sentence of up to 18 months in prison and up to $5,000 in fines.

https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/new-mexico-felony-class.htm

http://www.attorneys.com/felonies/new-mexico/www.nmbar.org/Public/KnowtheLaw/KTLcriminalmatters.html

SENTENCING DISCRETION

“Under New Mexico law, the [District Court] judge in a felony case usually has some discretion to decide what sentence a defendant will receive. Unless the crime carries a mandatory minimum or [mandatory enhancement], such as one, five, ten or twenty years in prison, the judge can sentence the defendant to unsupervised or supervised probation rather than prison, even in a felony case.

Whether the judge allows a defendant in a felony case to serve part or all of his sentence on probation and the length of any prison sentence usually depends on factors such as the defendant’s criminal record, the extent of injury or damage 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 or gang involvement, which may have contributed to the criminal behavior.”

https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/new-mexico-felony-class.htm

For related blog articles see:

Governor Michelle Lujan Grisham Announces Long Anticipated 2020 Legislative Agenda For Session That Begins January 21, 2020; Committee Work Has Already Begun

Governor Michelle Lujan Grisham Proposes $7.68 Billion Dollar Budget; LFC Releases Own Budget; Children And Education Once Again Biggest Priorities

Governor Lujan Grisham’s 2020 Legislative Agenda: Education, Recreational Pot, PERA Solvency, Public Safety, “Red Flag” Law; No Tax Code Overhaul