On November 2, 2021 Mayor Tim Keller was elected to a second term by a landslide. Keller was elected to a second term even though he failed to deliver on his promises to increase APD to 1,200 sworn police, bring down high crime rates, and failed to implement the 271 consent decree reforms of APD.

During the 2021 campaign for Mayor, Keller was never held accountable by his opponents for his failed record. Voters did not pass judgement for his failures and his broken promises. Mayor Keller was not elected to a second term because he did such a great job but because his two opponents were so very poor and failed to expose his record.

Second chances in politics because of weak opposition are very few and far between and timing is everything. Mayor Keller has now been given a second chance when it comes to the Albuquerque Police Department (APD) and the Department of Justice Court Approved Settlement Agreement (CASA).

It is critical for Keller to get done what needs to be done with APD and the DOJ consent decree in his first year of his second term. If not, his second chance opportunity will likely be lost forever. APD will continue to spiral out of control and the Federal Monitor will continue to charge millions to audit and never be satisfied with the progress made by APD and the reforms.

FOUR AREAS OF MAJOR CONCENTRATION

There are 4 major areas Mayor Tim Keller should concentrate on and accomplish in the first year of his second term. They are:

1. Reorganize APD, replace APD top management reduce management size and increase the number of patrol officers.

2. Renegotiate Union contract to exclude management.

3. Create APD salary structure and abolish bonuses, overtime and longevity pay.

4. Move to dismiss DOJ consent decree or ask for receivership.

This blog article is deep dive analysis examining all 4 major areas of what can and should be done over the first year of Mayor Tim Keller’s second term.

Review of APD’S budget, staffing levels and arrests are first in order.

APD BUDGET, STAFFFING AND ARRESTS

The Albuquerque Police Department (APD) is the largest budget department in the city. APD’s approved general fund operating 2022 budget is upwards of $222 million, or roughly 4.5% higher than fiscal year 2021 existing levels. Ultimately, the City Council approved nearly all the APD funding the Keller Administration requested in the budget proposal submitted on April 1, 2021.

APD’s funding is for 1,100 sworn positions and 592 civilian support positions for a total of 1,692 full-time positions. It also includes funding for new positions, including 11 investigators to support internal affairs and the department’s reform obligations under the Federal Court Approved Settlement Agreement and two communications staffers. Notwithstanding being fully funded for 1,100 full time sworn police, APD has only 917 full time sworn officers.

STAFFING LEVELS THEN AND NOW

When then New Mexico State Auditor Tim Keller ran for Mayor in 2017, he ran in part on the platform of increasing the size of the Albuquerque Police Department (APD) to 1,200 police, returning to “community-based policing” by the end of his first term and bringing down high crime rates. None of that happened and Keller was a miserable failure bringing down violent crime rates, so much so that the city’s all time record of homicides was broken 3 times during his first term.

According to the 2017-2018 city budget figures and payroll records at the time when Mayor Tim Keller assumed office on December 1, 2017, there were 836 full time sworn police.

During the December 16, 2021 court hearing before Federal Judge James Browning on the Federal Monitor’s 14th Compliance Report for the CASA, APD reported on the “rebuilding” of APD during the past 4 years under Keller. A comparison was made between APD staffing levels on December 7, 2017 and staffing levels on December 6, 2021. Following are the statistics provided to the court by APD:

DECEMBER 7, 2017 APD STAFFING LEVELS

Full Sworn Officer Count: 836

1 APD Chief
1 Assistant Chief
1 Deputy Chief
3 Majors
13 Commanders
33 Lieutenant
105 Sergeants
680 Patrol Officers

Note that the APD high command staff that worked directly out of the Chief’s Office consisted of 6 sworn APD staff: APD Chief, 1 Assistant Chief, 1 Deputy Chief and 3 Majors.

DECEMBER 6, 2021 STAFFING LEVELS

Full Sworn Officer Count: 917

1 APD Chief
1 Superintendent Of Police Reform
1 Deputy Superintendent Of Police Reform
6 Deputy Chiefs
1 Chief of Staff
12 Commanders
14 Deputy Commanders
44 Lieutenants
113 Sergeants
731 Patrol Officers
2 Sworn CSA’s

APD FELONY ARREST DOWN 39.5%, MISDEMEANOR ARRESTS DOWN 15%

The 2022-2023 approved APD budget does not have arrest statistics for the year 2021 in that those statistics have not been fully compiled and released by the FBI. However, the 2022-2023 approved budget does have the statistics for the budget years of 2019 and 2020 and they reflect that APD is not doing its job of investigating and arresting people even with increased resources and staff.

APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.

Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests.

2021 set a new record as the deadliest year in Albuquerque with 117 homicides. As of January 20, 2022, APD had only solved and closed 30% of those cases. Overall for the last two years, APD’s homicide unit has an anemic clearance rate of 37%, its lowest clearance rate in decades.

https://www.koat.com/article/abq-crime-homicide-arrests/38820745

ANALYSIS AND COMMENTARTY

Mayor Tim Keller in the first year of his second 4 year term should make every to concentrate on the 4 major areas that will ultimately turn things around for APD:

1. REPLACE APD CHIEF AND DEPUTY CHIEFS, REDUCE SIZE OF HIGH COMMAND, REORGANIZE APD, INCREASE THE NUMBER OF PATROL OFFICERS

Four years ago under former APD Chief Gordon Eden, the APD high command that worked directly out of the Chief’s Office was 1 Assistant Chief, 1 Deputy Chief, and 3 Majors. Four years later under APD Chief Harold Medinas, the APD Chief high command that works directly out of the Chief’s Office consists of 10 who are the Chief, the Superintendent and Deputy Superintendent Of Police Reform, 6 Deputy Chiefs and the Chief of Staff.

Thirty-seven additional management positions have been created over the last 4 years when the total number of sworn police has increased by an anemic 81 going from 836 in 2018 sworn to 917 sworn in 2022. There is really no justification as to why 3 additional Deputy Chiefs, a Deputy of Superintendent Of Police Reform, 14 Deputy commanders, 11 additional Lieutenants and 8 additional sergeants are needed given APD’s anemic growth of 81 .

Although the Keller Administration abolished the rank of Major that existed 4 years ago, there were only 3, it created the new position of “Deputy Commanders” which there are 14. The 14 Deputy Commanders is a whole new level of bureaucracy and management between Commanders and Lieutenants that is highly questionable as to duties and responsibilities other than “assisting” commanders.

Simply put, the APD Chief office staffing and mid management are bloated, overpaid and inept while sworn police patrolling the streets are dangerously low, underpaid and overworked.

Mayor Keller can and should reorganize APD and implement a Chief High Command staffing of 1 APD Chief, 3 Deputy Chiefs, 13 Commanders and eliminate the 14 Deputy Commanders. The reorganization will allow the reassignment of staff to the specialized units such as the homicide unit and the field services to assign more police to patrol the streets of Albuquerque.

EXPIERENCE FROM WITHIN WILL NOT CHANGE CULTURE OF AGRESSION

Five of the 6 Deputy Chiefs came up through the APD ranks and have a combined 95 years of experience with APD. When you add the additional 24 years of experience APD Chief Harold Medina has with APD, the total years of experience the 6 APD high command have with APD is 119 years. Normally, it would be a cause for great celebration to know that 119 years of law enforcement experience is in charge of running APD. That celebration simply cannot be when it comes to APD under a federal Court Approved Settlement Agreement (CASA).

The settlement mandates 271 reforms that was the result of an 18-month Department of Justice civil rights investigation that found a pattern of “excessive use of force” and “deadly force” and a “culture of aggression” within APD. Simply put, 6 of the 7 APD Chief’s executive staff contributed, should have known or did not stop the culture of aggression within APD. Now the 6 are fully in charge of APD.

There is no doubt that APD Chief Harold Medina was and still is part of the problem with APD’s failure to implement the reforms. Medina has a nefarious past of first killing a 14-year old boy having a psychotic episode and banishing a BB gun in a church. Years later, Medina gave the authorization to use deadly force that resulted in APD’s killing of a veteran threatening suicide having a psychotic episode. A jury verdict of $10 million was awarded in the killing of the veteran with the court finding that the veteran was only a danger to himself and not APD.

What was offensive to those killed and their families is that Medina promoted his nefarious past with the 2 shootings as making him qualified to be Chief saying that he learned the need for constitutional policing practices from the shootings.

APD TOP MANAGEMENT THE PROBLEM AND SHOULD BE REPLACED

It was during an April 15, 2020 hearing when Federal Judge Browning questioned Federal Monitor Ginger what his thoughts were on the appointment of Chief Harold Medina as the new APD Chief. Dr. Ginger thought then, as now, that APD needs an “external chief” or an “outsider”and in his words someone “nationally” with experience in DOJ reforms. Ginger expressed the opinion that such an outside person was needed to “effectuate real change” within APD. Ginger also acknowledge that such a person in all likely could “write their own ticket” and have a high salary requirement but it would be worth it in the long run to turn the department around.

During the December 16, 2021 hearing on the 14th Federal Monitor’s report, Judge Browning asked Ginger “how deep are the leadership problems at APD” and what can be done to solve those problems. Ginger’s response was blunt when stated the problems with APD are “failed leadership”.

According to Ginger the only thing that is going to change things and stop what is going on at APD is removing the existing leadership. Ginger has made it very clear over the last 7 years, he does not have command and control over APD nor of its personnel. Simply put, Ginger says “It’s not my job”, yet the city has paid him and his team of auditors millions over 7 years as he knows what can and should be done.

Ginger told Judge Browning the leadership problems start from the top executive team and goes down through management to the rank file. Ginger testified that 80% of the issues APD is still faced with in the CASA can be dealt with by a change in leadership.

Keller should thank Chief Harold Medina and his appointed 6 Deputy Chiefs for their service and tell them it is time for them to move on as he did with former Chief Michael Geier. Keller needs to replace the entire APD Chief High command and conduct a national search to find a new police chief or for that matter a Superintendent of Police who has actual experience in managing a troubled police department and experience implementing department of justice reforms and allow that person to hire their own management team.

SUPERINTENDENT OF POLICE REFORM NOT NEEDED IF YOU HIRE A COMPETENT CHIEF

On March 9, 2021, Mayor Tim Keller announced that Harold Medina had been selected as the new announced APD Chief and the appointment Sylvester Stanley as “Superintendent of Police Reform and Deputy Chief Administrative Officer, a newly created position. According to the city’s posted job description, the position pays $155,000 to $185,016 annually.

The link to the “Superintendent of Police Reform” Job Description and application is here:

https://www.governmentjobs.com/careers/cabq/jobs/3325568/superintendent-of-police-reform-and-deputy-chief-administrative-officer-un

Mayor Keller said of the Stanley appointment at the time:

“It was simply unrealistic and a real disservice to the realities of crime and reform to think that one leader can solve all of our challenges. … It just simply takes two in this case.”

https://www.krqe.com/news/politics-government/mayor-keller-to-announce-new-leadership-for-apd/

Stanley has a lengthy and distinguished career in law enforcement, but regrettably, has absolutely zero experience in implementing DOJ reforms and constitutional policing practices such as that mandated by the Court Approved Settlement Agreement. On December 1, 2021, after a mere 8 months on the job, Interim Superintendent of Police Reform Sylvester Stanley announced his retirement at year’s end. Once Stanly announced his retirement, Mayor Tim Keller announced he was launching a “national search” for the position. Keller in his announcement had this to say:

“[We are looking for] an experienced professional to lead this cutting-edge position [and] who is dedicated to police reform. … We developed this innovative position to bring about a new era for our police department. … Our Superintendent of Police Reform works hand and hand with our Chief so that each leader can focus on their core duties while supporting one another for the most benefit for the department and the community.”

https://www.abqjournal.com/2450956/interim-superintendent-of-police-reform-to-retire.html

There is absolutely nothing “cutting edge” nor “innovative” about the position of Superintendent of Police Reform. Keller creating the position and then allowing 6 deputy chiefs to be hired essentially admitted Harold Medina is not up to the task of being Chief to implement the DOJ reforms and Keller needed to appoint others to implement the reforms for him.

APD Chief Harold Medina is paid $177,562. The new “Superintendent of Police Reform” will be paid at a minimum $155,000. What this means is that Keller wants to pay $332,562 for the services of 2 people to do the job that historically has been done by the Chief.

If Keller’s history of national searches for an APD Chief is any indication, no one should hope for nor expect an outsider to be appointed to the position Superintendent of Police Reform and Deputy Chief Administrative Officer. It’s likely applicants will be solicited and APD insiders will also apply, the city will go through the sham of interviews and Keller will appoint someone already with APD or who is retired APD and who is willing to come back.

What Keller can do is appoint a new chief or appoint a civilian APD Police Superintendent or Commissioner by conducting a national search and in fact hire an outsider with real experience in police reform and managing a troubled police department. Keller could abolish the position of APD Chief and consolidate those duties and responsibilities with the Superintendent. When combining the salaries of both APD Chief and “Superintendent of Police Reform”, the city could afford upwards of a $300,000 salary.

2. RENEGOTIATE UNION CONTRACT TO EXCLUDE SERGEANT AND LIEUTENANT MANAGEMENT

In 2018, newly elected Mayor Tim Keller was able to negotiate a 2-year city contract with the Albuquerque Police Officers Association (APOA) for the time period of July 7, 2018 to June 30, 2020. The contract expired on July 1, 2020. Because of the pandemic the police union contract negotiations were suspended.

Under the state “collective bargaining act”, and what is referred to as an “evergreen clause”, the terms and conditions of the two-year contract remain in force and effect until a new contract is negotiated. The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:

https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view

Section 10-7E-5 of the New Mexico Public Employees Bargaining Act makes it clear that management employees cannot join unions and states as follows:

“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse any such activities.”

The link to Section 10-7E-5 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-5_Rights%20of%20public%20employees.pdf

It is well settled federal and state labor laws that management personnel are prohibited from joining unions yet the expired police union contract defines the collective bargaining unit to include the management positions of APD sergeants and lieutenants.

It is Section 1.3.1 of the expired union contract that provides:

“The APOA is recognized as the Exclusive Representative for regular full time, non-probationary police officers through the rank of Lieutenants in the APD … .”

The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:

https://www.pelrb.state.nm.us/statute.php

Under state labor law, management are not allowed to join unions. The current police union contract allows the APD management positions of sergeants and lieutenants to be police union members and it violates state law. The police union is a “third party intervenor”to the federal settlement case. The police union from the beginning has consistently obstructed the implementation of the mandated reforms.

On April 27, 2021, it was widely reported that the Albuquerque Police Officers Association (APOA) launched a $70,000 false or misleading political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms were preventing police officers from doing their jobs combating crime offering no proof. APOA Police Union President Shaun Willoughby described the need for the public relations campaign this way:

“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … “

COUNTER CASA EFFECT IDENTIFIED AS APD SERGEANTS AND LIEUTENANTS

The Federal Monitor has found repeatedly it is APD sergeants and lieutenants who are resisting management’s implementation of the DOJ reforms. The problem is sergeants and lieutenants are where the rubber hits the road when it comes implementation of the 271 reforms.

It was on November 1, 2019, Federal Court Appointed Monitor James Ginger in his Federal Monitors 10th audit report where the “Counter CASA” effect was fully identified. According to the Federal Monitor’s 10th report:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

In his 11th Monitors report file on May 4, 2020, Ginger wrote:

[“APD personnel are] still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization. … some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [or walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. … “

Mayor Tim Keller needs to order the immediate commencement of police contract negotiations. At the very start of the negotiations, the Keller Administration should demand that sergeants and lieutenants be removed from the bargaining unit and made at will employees in order to hold them accountable for implementing management policy and the DOJ reforms and eliminate any and all undue influence the police union has on sergeants and lieutenants.

3. ABOLISH APD HOURLY PAY, OVERTIME AND LONGEVITY PAY; CREATE APD SALARY STRUCTURE WITH STEPS AND GRADES

APD hourly pay is some of the best paid in the country. APD’s hourly and total yearly base pay is summarized as follows:

First year probationary officers immediately out of the academy are not covered by the union contract in that they are not union. Starting pay for an APD police officer graduating from the academy and for the officers first year of probation remains the same. They are paid $21.27 an hour for a 40-work week, 52 weeks a year or $44,241.60 yearly. The cost of training each APD cadet is upwards of $60,000.

Police officers with 4 to 14 years of experience are paid $30 an hour or $62,400 yearly.

Senior Police Officers with 15 years or more experience have a base pay rate of $31.50 an hour or $65,520 yearly.

The hourly base pay rate for APD Sergeants is $35 an hour, or $72,800 yearly.

The hourly base pay rate for APD Lieutenants is $40.00 an hour or $83,200.

NEWS UPDATE:

On February 4, it was reported that the Keller Administration negotiated a new union contract that makes APD the best paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5% and creating a whole new category of incentive pay. A link to related blog article giving the schedule of new hourly rates and yearly salary is here:

https://www.petedinelli.com/2022/02/07/city-apd-union-negotiate-new-contract-keller-squanders-another-opportunity-for-apd-police-reform-hourly-pay-increased-8-longevity-pay-increased-5-new-incentive-pay-created-ov/

LONGEVITY PAY BONUSES

In addition to their hourly and yearly pay, APD police officers are paid longevity bonus pay added to their pay at the end of the year. Following are the longevity pay rates:

For 5 years of experience: $100 are paid bi-weekly, or $2,600 yearly
For 6 years of experience: $125 are paid bi-weekly, or $3,250 yearly
For 7 to 9 years of experience: $225 are paid bi-weekly, or $5,800 yearly
For 10 to 12 years of experience: $300 are paid bi-weekly, or $7,800 yearly
For 13 to 15 years o experience: $350 are paid bi-weekly, or $9,100 yearly
For 16 to 17 years or more: $450 are paid bi-weekly, or $11,700 yearly
For 18 or more years of experience: $600 are paid bi-weekly, 15,600 yearly

NEWS UPDATE:

On February 4, it was reported that the Keller Administration negotiated a new union contract that makes APD the best paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5% and creating a whole new category of incentive pay. A link to related blog article giving the schedule of new longevity pay is here:

https://www.petedinelli.com/2022/02/07/city-apd-union-negotiate-new-contract-keller-squanders-another-opportunity-for-apd-police-reform-hourly-pay-increased-8-longevity-pay-increased-5-new-incentive-pay-created-ov/

OVERTIME PAY

In addition to sign on bonuses, hourly pay and longevity pay, APD sworn police can be paid overtime and paid time and a half. APD overtime has been a major source of controversy, including time card fraud, for a number of years resulting in 7 audits performed on APD overtime practices since 2014.

During the last 10 years, the Albuquerque Police Department has consistently gone over its overtime budgets by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers “gaming the system” that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.

https://www.petedinelli.com/2018/03/30/apd-overtime-pay-abuse-and-recruitment-tool/

APD SWORN POLICE TOP CITY HALL WAGE EARNERS

At the beginning of each calendar year, City Hall releases the top 250 wage earners for the previous year. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year. The 2019 and the 2020 city hall 250 highest paid wage earnings shows the extent of excessive overtime paid to APD sworn police. For both the years of 2019 and 2020, 160 of 250 top paid city hall employees were police who were paid between $107,885.47 to $199,666.40.

In 2019, there were 70 APD patrol officers in the list of 250 top paid employees earning pay ranging from $108,167 to $188,844. There were 32 APD lieutenants and 32 APD sergeants in the list of 250 top paid employees earning pay ranging from $108,031 to $164,722 because of overtime.

In 2020, there were 69 patrol officers paid between $110,680 to $176,709, 28 APD Lieutenants and 32 APD Sergeants who were paid between $110,698 to $199,001 in the list of the 250 top paid city hall employees paid between.

PAY SALARIES, NOT HOURLY WAGES

Now that Mayor Tim Keller has secured a second 4-year term, he should direct the city Human Resource Department to rewrite APD sworn police job descriptions and restructure the APD pay system to salary pay system, not hourly wages, with grades and steps. As an alternative to paying overtime and longevity bonus, the city should do away with APD hourly wage and time and a half for overtime for sworn police and implement a salary structure based strictly on steps and years of service and performance and merit. A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented.

A base pay salary system can be implemented for all APD sworn personnel. A base salary system with step increases for length of service should be implemented. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same, but if more time is needed to complete a work load or assignments for the day, the salaried employee would work it for the same salary with no overtime paid and a modification of shift times for court appearances.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at such arraignments.

OFFER $30,000 SIGN ON BONUSES TO NEW RECRUTIES FOR 6 YEAR COMMITMENT EXCLUDING LATERAL HIRES

APD sworn police officers are some of the highest paid law enforcement officers in the country when you add base pay, overtime pay, longevity pay, insurance benefits and the very generous Public Employees Retirement (PERA) program that allows for retirement after 20 to 25 years of service and payment of upwards of a 90% pension for a persons high 3 years of pay. Notwithstanding, the city is still having a problem with recruiting a new generation of younger sworn police and retaining experienced older cops.

APD loses officers at an alarming rate. According to one published report, APD sworn police are leaving APD in droves and either moving on to other departments or just simply retiring. The total number of APD full time sworn police officers dwindled from 998 at the end of March of 2021 to 940 as of July 24, 2021 with the department losing 58 officers in a 4-month span. According to APD spokesperson Rebecca Atkins as of October 27, 2021, APD had 945 sworn police. On December 16, 2021, APD reported to the Federal Court it had 917 full time sworn police.

Over the last 20 years, the Albuquerque Police Departments (APD) attrition rate has been consistently 60 police officers a year. That includes terminations, transfers and police officers who have decided they do not want to be a police officer anymore.

That began to changed dramatically in 2020. For all of 2020, APD had 81 departures. In 2021, halfway through the year, APD had 82 departures. On September 21, 2021, it was reported that the number of APD sworn officers stood at 906 and that APD since January of 2021 had lost 122 sworn police.

Links to quoted sources material are here:

https://www.abqreport.com/single-post/122-officers-have-left-apd-since-january

https://www.petedinelli.com/2021/08/19/apd-personnel-meltdown-continues-staffing-shortages-prompt-15000-recruitment-bonuses-apd-shift-changes-announced/

https://www.abqjournal.com/2441302/city-sets-10k-signing-bonus-for-police-cadets.html

Recruitment of new officers has been so difficult to the point that APD began offering sign on bonuses in August, 2021 worth thousands of dollars. The bonuses are:

$15,000 for lateral police officers (experienced officers transferring from other departments)
$5,000 for cadets or new recruits
$1,500 for police service aides

Many APD police officers who were eligible to retire decided to stay on and continue for a few more years with APD because of the significant increases in hourly pay and longevity pay and increasing their retirement benefits, but they still retired in three years once they attained their high 3 years of service pay.

When you offer $15,000 bonuses to lateral hires, what happens is that those officers are not making a long-term career commitment to stay with APD. What the lateral hires have done is join APD, paid the bonus, hired at a higher salary for 3 years to cap off their retirement pay and then move on as quickly as they can and retire.

This is exactly what happened in the early part of Keller’s first term. APD began a process of raiding other New Mexico law enforcement departments offering higher wages and bonuses. Keller actually called it “poaching”.

Former APD Chief Michael Geier recruited many from the Rio Rancho police department where he retired as Chief to become APD Chief. The first year of lateral hires resulted in 70 lateral transfer hires. Three years later, APD Spokesman Gilbert Gallegos revealed that most of those 70 laterals were no longer employed with APD and retired or moved on. The $15,000 bonus offered to lateral hires should have included a full 6-year commitment of service with APD.

The paying of sign on bonuses of $5,000 to new recruits was an excellent first step in recruitment of a new, younger generation of police officer, but it is not at all likely it will have that much of an impact in the long run for retention. To have a real impact on attracting a new, younger generation of police officer, sign on bonuses to new recruits should be raised to $30,000 in exchange for a minimum commitment of 6 years of service with APD. Keller should order increasing sign on bonus to new recruits excluding all lateral hires.

The new recruit bonus contract would require a pro rata return payment if the 6 years of service are not completed. The $30,000 sign on bonus contract would do far more to ensure that APD retains new officers beginning an wanting a law enforcement career that the city has spent upwards of $50,000 to train each cadet only to have those new officers move on as soon as they can to another law enforcement agency.

4. NEGOTIATE TERMINATION OF THE DOJ CONSENT DECREE OR SEEK APPOINMENT OF A RECIEVER TO TAKE OVER APD

Review of the 14 Federal Independent Monitors Reports and reforms implemented, one conclusion is the spirit and intent of the settlement has been achieved.

On November 16 , 2021, it was a full 7 years that expired since the city entered into the CASA with the DOJ. It was originally agreed that the settlement implementation would be completed within 4 years, but the previous Republican Administration engaged in delay and obstruction tactics found by the Federal Monitor. The Keller administration on a number of levels has also engaged in delay and obstruction tactics.

After 7 full years the following mandated reforms under the CASA have been completed:

1. After a full year of negotiations, new “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.

2. All sworn police officers have received crisis management intervention training.

3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.

5. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.

6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police having received training.

7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.

8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

9. The Repeat Offenders Project, known as ROP, has been abolished.

10. Civilian Police Oversight Agency has been created, funded, fully staffed and a director hired.

11. The Community Policing Counsels (CPCs) have been created in all area commands and the CPCs meet monthly.

12. The Mental Health Advisory Committee has been implemented.

13. The CASA identified that APD was understaffed and APD is continuing with its efforts with recruitment.

14. In the November 12, 2021 IMR-14 report, the most recent report, the Federal Monitor reported the 3 compliance levels after 7 years of APD effort as follows:

Primary Compliance: 100%
Secondary Compliance: 82%, down from a high of 93%
Operational Compliance: 62%, an increase 3% points from 59%, but down from a high of 66%

FLUCTUATING COMPLIANCE LEVELS

Under the terms and conditions of the Court Approved Settlement Agreement (CASA), once APD achieves a 95% compliance rate in the 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to come into compliance by 2018 and the case was to be dismissed in 2020.

The 3 compliance levels can be explained as follows:

PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

It was in 2019 that APD made the most progress in compliance levels with the reforms but for the next two full years thereafter there was a decline in compliance levels. In the May 4, 2020 IMR-11 Report, the Federal Monitor reported the highest compliance levels ever achieved by APD during the settlement as follows:

Primary Compliance: 100%;
Secondary Compliance: 93%
Operational Compliance: 66%.

https://documents.cabq.gov/police/reports/department-of-justice/eleventh-independent-monitors-report.pdf

Comparing the November 1, 2019 IMR 10 Report to the IMR 11 Report the 2 of 3 compliance levels increased as follows:

Primary Compliance: 100%
Secondary Compliance: From 81% in IMR 10 to 93% in IMR 11, a 14.8% plus increase
Operational Compliance: From 64% in IMR 10 to 66% in IMR 11, a 3%. Increase

Page 4, IMR-11 Report

https://documents.cabq.gov/police/reports/department-of-justice/eleventh-independent-monitors-report.pdf

In the May 3, 2021 IMR-13 report, the Federal Monitor reported the compliance levels in 2 categories had dropped as follows:

Primary Compliance: 100%;
Secondary Compliance: 82%, a 9% loss from previous report
Operational Compliance: 59%, a 3% loss from previous report

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-thirteenth-report-may-2021.pdf

PRIMARY CAUSE OF DECLINNG OPERATIONAL COMPLIANCE LEVELS

Albuquerque Police Department’s (APD) Internal Affairs Force Division is the primary cause of the decline in “operational compliance” levels and its failure to address use of force case investigations. The Federal Monitor’s 14th report found that APD failed to assign hundreds of use of-force cases to investigators during the 6 month monitoring period. The federal monitor in his 14th report made the following findings:

“The most important issues affecting APD during the IMR-14 reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership.

All non-force-related misconduct investigations completed by APD … were found to be deficient. A total of 17 misconduct cases, 6 investigated by Internal Affairs and 9 area command investigations were reviewed, including two that were completed by outside agencies.

The only properly investigated case reviewed by the monitoring team this reporting period was completed by an outside agency. In two consecutive reporting periods, a virtual shut down of use of force investigations has occurred in Internal Affairs.

Only seven, or 3%, of the 216 Level 2 cases opened were closed. Only 1 of those 7 was completed within 90 days, or less than one-half of a percent. Only two of 91 Level 3 use of force cases opened during this period were completed by [Internal Affairs Force Division] IFD or 2%. Neither of the 2 cases were completed within the CASA required 90-day period.

We find these failings to be more than notable, given the amount of time the monitoring team spent with APD in the last three reporting periods specifically focused on process improvement processes at [the Internal Affairs Force Division] IAFD. Of the twelve cases reviewed for compliance concerning discipline, only 58% met the requirements for adherence to progressive discipline as outlined in the CASA.

A second backlog of 667 uninvestigated use of force cases, as of the draft of this report, was reported. This second backlog is more than double the initial backlog APD dealt with from 2018-2020 and does not include any of the contemporary cases left uninvestigated by IAFD.

Approximately 83% of these cases are already time-barred for discipline in accordance with the CBA, should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases (as of October 25, 2021). At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”

INTENTIONAL BACKLOG OF NONE COMPLIANCE

The federal monitor continued with the following findings:

“Given the amount of focus on the problems related to [the Internal Affairs Force Division] IAFD investigations in previous monitor’s reports, and the exceptional amounts of technical assistance provided by the monitoring team relating to IAFD processes, we can only conclude that this new backlog was intentional, and yet another canard designed to ensure that officers are not disciplined for known policy violations. We consider this another example of deliberate non-compliance exhibited by APD.

Leadership and supervision, especially in the critical areas of reform listed above, are simply lacking—or in some cases not extant. As such, these findings require direct action by the City and APD leadership to identify the causes of, and to take corrective actions responding to, what can only be described as deliberate failures to comply with existing APD policy and with CASA requirements.

Given the extensive amounts of technical assistance provided by the monitoring team related to misconduct investigations and to workload management, we can only conclude that these jarring failures are deliberate.”

EXTERNAL FORCE INVESTGATION TEAM

To deal with the APD Internal Affairs failures to properly investigate use of force cases, U.S. District Judge James Browning approved a stipulated order creating the External Force Investigation Team (EFIT). The EFIT team is training APD Internal Affairs (IA) investigators on how to properly investigate uses of force instances by APD police officers. The City has agreed to at least 25 force investigators being assigned to the APD Internal Affairs until APD demonstrates that fewer investigators are necessary to timely investigate uses of force by APD Officers. The DOJ is now asking that the EFIT be assigned to clear out APD’s backlog of uses of force cases. The EFIT should be made permanent.

AS GOOD AS ITS GOING TO GET; DISMISS CASA OR ASK FOR RECIVERSHIP

Review of all the Federal Independent Monitors Reports and reforms implemented, one conclusion is the spirit and intent of the settlement has been achieved with new “use of force” and “use of deadly force” policies, extensive training and sweeping mandated changes to APD protocols. Still, APD hovers at around 60% “operational compliance” when 95% is required for two years to dismiss the DOJ consent decree.

After 7 years and millions spent, it is likely things are as good as its going to get with Keller’s current APD management under the consent decree. APD has now reached the point where Keller should order and demand APD management to implement the reforms forthwith or be removed and replaced by Keller with those who can get the work done and without continued monitoring by the court. It’s called assuming responsibility and leadership.

It’s painfully obvious that Keller’s APD high command can not get the job done to the satisfaction of the federal monitor and the court. It’s time for Mayor Keller to ask the court to dismiss the case or appoint a receiver to get the job done and have the Department of Justice do the heavy lifting with implementing the reforms they have demanded.

FINAL COMMENTARY

Second chances in politics because of weak opposition are very few and far between. Tim Keller has had a very charmed political career always being able to prevail against very weak candidates when he ran first for State Senate, State Auditor and now a second term for Mayor.

Keller has now been given a second chance. Only time will tell if Keller has learned anything in office over the last four years other than how to do photo ops, do press conferences, attend heavy metal concerts to introduce the band and act like a high school jock living his glory days.

If Keller fails to act now when it comes to APD he will waste his second chance to make any difference reforming APD.

House Bill 5 (HB5) is the proposed pretrial detention bill and it would create a rebuttable presumption of dangerousness for defendants charged with certain violent crimes. “Rebuttable presumption” shifts the burden of proving dangerousness from the prosecution to the accused defendant of violent crimes to convince the judge that they do not pose a danger to the public and should be released on bond or conditions of release pending their trial on the charges.

HB 5 is a bipartisan bill sponsored by Democratic State Representatives Marian Matthews, Meredith Dixon and Wonda Johnson, and Democrat Senate Majority Whip Linda Lopez and Republican Bill Rehm. Governor Michelle Lujan backs enactment of HB5 as part of her anti-crime legislation. The legislation is a priority of Democrats Governor Michelle Lujan Grisham and 2nd Judicial District Attorney Raúl Torrez.

HB 5 is vigorously opposed by public defenders and others. The state Sentencing Commission has also raised questions about its constitutionality.

VOTED OUT OF COMMITTEE WITH NO RECOMMENDATION

On January 28, after a two-hour hearing, the HB 5 cleared the House Government, Elections and Indian Affairs Committee on a 7 to 2 vote without any recommendation. Just two days before on January 26, Representatives Marian Matthews, one of the sponsors, and after numerous questions were raised regarding the bill’s constitutionality or legality, Mathews decided to pull the bill from consideration. In pulling the bill, Mathews had this to say:

“As I’m listening to the conversation and the questions and so forth, I think there’s a number of issues that have been raised that require some additional thought. … Yeah, pull the bill at this point and let us do a little bit more work and interactions with some of the people who are raising concerns. I think that would probably be the best at this point. …”

During the January 28 second committee hearing, the bill again faced bipartisan skepticism from both Democrats and Republicans. Albuquerque Mayor Tim Keller appeared before the committee and joined police and prosecutors in asking lawmakers for help addressing crime in New Mexico’s largest city and asked for passage of the legislation.

Keller had this to say to the committee:

“We’ve got 900,000 people in the metro, we just want them to listen to those people who are saying loud and clear, we need help fighting crime.”

After the hearing, no member of the House Government, Elections and Indian Affairs Committee fully embraced the proposal but they did express reluctance to reject it outright and rejected tabling the measure. Even those who voted for it expressed strong reservations. Las Cruces State Representative Greg Nibert said this:

“I would really implore the sponsor of this legislation to get a constitutional expert to look at this. … To weigh in on whether or not we need to go back to the people with a constitutional amendment.”

UNM LAW PROFESSOR WEIGHS IN ON CONSTITUTIONALITY OF HB 5

UNM Law Professor Joshua Kastenberg was contacted by KOB Chanel 4 and was asked if he felt HB 5 allowing “rebuttable presumption of dangerousness for defendants” was constitutional and he said:

“My sense of this bill is unless it’s re-written, it’s constitutionally problematic. Not because of the way it was generated, or proposed, but because it does in fact shift a burden onto the defendant. …Although the last section of House Bill 5 states that no burden has shifted to a suspect, or a defendant, in point of fact the bill does just that, it shifts a burden. … In the world of criminal law, the burden is always supposed to be on the government.”

Professor Kastenberg did say that HB5 could be fixed, but it must be done to withstand constitutional review:

“I think you [must include or] have a section that’s added in there that states that the prosecution must produce some evidence that there’s a likelihood of future dangerousness to the community or a flight risk. … It’s a reasonable idea and you know the frustration of the people is very real I don’t discount that. But the people of the state deserve a bill that will withstand the courts too.”

APD LOW ARREST RECORD

APD statistics for the budget years of 2019 and 2020 reflect that APD is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests. APD’s homicide unit has an anemic clearance rate of 36%.

DA TORREZ HAS COMBINED 65% MISTRIAL, ACQUITTAL AND DISMISSAL RATE

When Raul Torrez ran for DA the first time, he said our criminal justice system was broken. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system” to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court revealed it is the DA’s office dismissing more felony cases for various reasons than the courts. The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.

WHERE HB5 GOES FROM HERE

HB 5 is assigned to the House Judiciary Committee where another hearing will be held. Democrat Rep. Marian Matthews said she is willing to consider changes as the proposal moves to its next committee but rejected the contention the proposal is unconstitutional.

Voting in favor of advancing the bill were 4 Democrats and 3 Republicans. The two dissenting votes came from Democrat Representatives Daymon Ely and Gail Chasey both who are attorneys and even married to attorneys.

Chasey is chairwoman of the House Judiciary Committee and will likely excert major influence on the final fate of HB 5. Chasey does have the authority not to schedule the bill for a hearing with only 19 days left in the session.

Chasey noted that a recent Legislative Finance Committee report found that low arrest, prosecution and conviction rates may have contributed more to Bernalillo County’s crime problem than releasing defendants awaiting trial. She said in an interview:

“I just hope we actually have a solution that isn’t ignoring the reality and the data we have now.”

A Legislative Finance Committee Report estimated the bill would result in up to 1,262 additional pretrial detainees a year, at an estimated cost to county jails of $13.8 million. According to the LFC analyst report, the additional detentions could lower the statewide violent crime rate by 1.4%, preventing about 190 crimes each year.

HB 5 has a long journey to go before it becomes law, a journey that is not likely to be accomplished. HB 5 must clear the House Judiciary committee, then pass the full House and then it goes to the Senate for committees hearings and must pass the Senate by the Febraury 17 which is end of the 30-day session.

https://www.krqe.com/news/politics-government/legislature/albuquerque-leaders-push-lawmakers-for-help-addressing-crime/

https://www.abqjournal.com/2465296/pretrial-detention-bill-advances-at-capitol.html

https://www.kob.com/albuquerque-news/albuquerque-mayor-pleads-with-lawmakers-to-help-with-crime/6373043/?cat=500

https://www.abqjournal.com/2465296/pretrial-detention-bill-advances-at-capitol.html

COMMENTARY AND ANALYSIS

Imbedded in our constitution is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence and a finding guilt beyond a reasonable doubt. The corner stone to our criminal justice system is to require prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.

The “rebuttable presumption of being violent ” being advocated takes away the role of a judge to provide due process of law to a defendant. Simply put, “rebuttable presumption of being violent” means if you are charged with a violent crime, you are not entitled to bond or any conditions of release and a judge must order you to sit in jail pending trial, which could be days, weeks, months or even years.

The problem is, with “rebuttable presumption of being violent ” a charged defendant essentially begins a criminal sentence before ever being found guilty of a charge and all too often charges may be dismissed or a defendant is found not guilty by a jury. What you have with “rebuttable presumption of being violent” is that a charged Defendant is presumed guilty until the Defendant proves that they are innocent.

The approach is back assed backwards. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the accused defendant of violent crimes to convince the judge that they do not pose a danger to the public and should be released on bond or conditions of release pending their trial on the charges. “Rebuttable presumption of being violent” undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution which is the presumption of innocence until proven guilty “beyond a reasonable doubt”. Further, in our criminal justice system, both state and federal, it is the prosecution that has the burden of proof to present evidence to convict a person.

If the Governor and the New Mexico legislature truly want to do something and bring down violent crime rates, they should demand more of and hold accountable law enforcement, the prosecution and the courts to do their jobs more effectively and efficient.

Ditto when it comes to Mayor Tim Keller and demanding that APD do its job of arresting and solving crimes for prosecution.

NEWS UPDATE

On January 28, 2022 New Mexico Politcal Report published the following article by Robert Nott, Santa Fe New Mexican:

HEADLINE: Senate Judiciary committee hears crime presentation

“Incarcerating more people won’t cut down on the state’s rising rate of violent crime, a longtime New Mexico trial lawyer told legislators looking for a solution.

Randi McGinn of Albuquerque, who has worked as both a prosecuting attorney and public defender for over 40 years, spoke to the Senate Judiciary Committee on Friday about proposed changes to the state’s pretrial detention system for defendants accused of violent crimes and other measures touted by the governor and Democratic lawmakers who have taken a tough-on-crime stance to tackle what many see as an out-of-control problem.

McGinn instead urged the committee to invest money in New Mexico’s judicial system, which she said is underfunded and understaffed.

As a result, she said, police in the state arrest about 10,000 people a year, but prosecutors charge only 3,000 of them and judges hear only 1,000 cases.

She pointed to the fiscal impact report for a bill that would alter New Mexico’s pretrial detention system — putting the burden on a defendant to prove they aren’t likely to commit further violence if they are released from jail while awaiting trial, rather than requiring prosecutors to prove the defendant poses too high a risk to be released.

The report estimates it would cost $13.8 million annually to detain up to 1,262 more defendants until their trials. McGinn said lawmakers should instead invest that money “in the courts, in the district attorneys and public defenders and the Albuquerque Police Department.”

Sen. Mimi Stewart, D-Albuquerque, said she liked that idea because the judiciary system is “weighed down and overloaded.”

The initial response to handling violent crimes, McGinn said, is “to hit it with a bigger hammer,” such as tougher penalties and detention policies. “We are doing the same thing over and over again without really stopping crime.”

Gov. Michelle Lujan Grisham has made fighting crime a priority of her legislative agenda.

Among the measures she supports during this year’s 30-day legislative session is one that would eliminate the six-year statute of limitations for second-degree murder charges. While that bill — which did not gain traction in previous legislative sessions — has not yet generated controversy, the measure that would change pretrial detention polices has been contentious.

Two recent reports on the pretrial detention system, including one from the Legislative Finance Committee, say few defendants who are released while awaiting trial are rearrested for violent crimes during that period.

But critics of the reports say suspects in several high-profile Albuquerque homicides in recent years were violent offenders who had been released ahead of their trial.

McGinn argued holding more people behind bars before their trial won’t make much of a difference.
She said New Mexico jails 773 out of every 100,000 state residents, compared to a national rate of 664 per 100,000 people. “We jail more people than most states,” she said. “Despite having doing this, it hasn’t made a difference in the crime rate.”

Many of the crime bills the Legislature is considering in the current session “don’t really do anything about crime,” she told the committee. “All they do is allow you to say that you’re doing something that everyone can see … being tough on crime.”

Sen. Greg Baca, R-Belen, disagreed. He said such initiatives are about “making our streets safer.”
“Incarceration has one benefit,” Baca said. “It reduces recidivism by keeping people in jail when they might be out committing crimes.”

But, he added, the “broad step of locking people up while they are awaiting trial is certainly not the right way. I don’t want to go the other way either. There’s got to be some in-between.”

The link to the quoted article is here:

https://nmpoliticalreport.com/2022/01/29/senate-judiciary-committee-hears-crime-presentation/?mc_cid=59f9b573cd&mc_eid=d03b0979c3

On January 24, the Hydrogen Hub Development Act, House Bill 4 was introduced for consideration by the 2022 New Mexico legislature. HB 4 is sponsored by Gallup Democrat Representative Patricia Lundstrom Las Cruces and Democrat Representative Nathan Small sponsoring the bill. Lundstrom is the chairperson of the powerful Legislative Finance Committee (LFC) and House Bill 4. The bill is supported by Governor Michelle Lujan Grisham who has made passage of the bill a major priority in the 30-day short session where she controls the agenda.

House Bill 4 (HB 4) would create a legal framework for hydrogen energy development in the state. Lujan Grisham Administration government officials and the oil and gas industry contend that the development of the state’s hydrogen can provide a tool for the transition to a clean energy economy. They argue that hydrogen has many potential applications as a relatively clean-burning fuel that doesn’t emit carbon dioxide.

The $1.2 trillion federal infrastructure bill, approved by the U.S. Congress and signed into law last year by President Joe Biden, includes $8 billion to build four initial “hydrogen hubs” around the country. It also includes $1 billion in federal assistance for hydrogen-technology research and development.

Governor Lujan Grisham added HB 4 to agenda call for the 30 day short session and promoted the bill as a way to significantly boost efforts to lower carbon emissions in New Mexico while at the same time creating a whole new industry that offers sustainable, high-paying jobs. Supporters argued that the new industry would help northwestern New Mexico where the transition from fossil fuels to renewable fuels is adversely impacting local communities.

A detailed Analysis and Commentary of the Hydrogen Hub Development Act can be found here:

“Hydrogen Hub Development Act Introduced; The Pros and Cons; “Consequences Of Getting It Wrong Are Too Dire”; Hold Special Session On Environmental Issues and HB4 Or Hold Over Until 2023”

https://www.petedinelli.com/2022/01/26/hydrogen-hub-development-act-introduced-the-pros-and-cons-consequences-of-getting-it-wrong-are-too-dire-hold-special-session-on-environmental-issues-and-hb4-or-hold-over-until/

TABLED IN COMMITEE

On January 27, a mere 6 days after introduction and at its very first committee hearing and after 6 hours of discussion and debate, the House Energy, Environment and Natural Resources Committee voted to table the measure 6 to 4. Both Democrats and Republicans voted in opposition to the measure.

The committee hearing attracting considerable interest with upwards of 300 public participants listening on line and dozens of supporters and opponents providing comments on the legislation. Before the committee hearing began in great earnest, Galisteo Democrat Representative Matthew McQueen, the chairman of the committee, conducted a 20-second online poll that showed 73% of respondents opposed the legislation.

Industry leaders, local officials and economic development professionals from rural counties that would benefit from hydrogen development testified in favor of the bill. However, 40 environmentalists and concerned citizens from around the state spoke out against it, citing widespread fear that promoting and accelerating hydrogen development with government incentives would hurt, rather than help, state efforts to combat climate change.

REACTION TO DEFEAT

After the 6-4 vote to table the bill, Las Cruces area Democrat Representative Nathan Small, one of sponsors of the bill, said he was disappointed. Notwithstanding his disappointment, Small expressed hope the HB 4 could still win approval during the legislative session and had this to say:

“I think we need to keep working this session to take in the input. … “I don’t think it’s acceptable to give up and say ‘next session’ or ‘next year.’”

Links to quoted news sources are here:

https://www.krqe.com/…/lawmakers-weigh-bill-that-would…/

https://www.abqjournal.com/2465102/hydrogen-bill-hits-roadblock-in-first-committee-hearing.html

COMMENTARY AND ANALYSIS

It is not at all realistic to think that House Bill 4 will be enacted during the 2020 legislative session. There is very little doubt that the Hydrogen Hub Development Act is one of the most complicated, scientific and technical pieces of legislation to be considered by the legislature in decades. After all, it involves our environment which is why it is generating such fierce debate.

Senate Majority Floor Leader Peter Wirth identified what the real problem is when he said before

“… It’s an extremely complicated question whether carbon sequestration technology is reliable. … We need careful, deliberative analysis to see where we go.”

With 20 days left in the 30 days session that is supposed to be concentrating on budgetary matters, there is simply is not enough time to give “careful, deliberative analysis” to a new industry that may have a detrimental impact on our environment. It is very foolish to believe that part time legislators will have enough time to have a thorough understanding of the Hydrogen Hub Development Act with so much more being considered and be able to make an informed decision.

When Speaker of the House Egolf said of the Hydrogen Hub Development Act “The consequences of getting it wrong are too dire”, the chamber which he leads needs to listen and act accordingly with a memorial calling for a study and deferring the legislation to a later session.

https://www.abqjournal.com/2464248/governor-begins-aggressive-push-on-hydrogen-bill.html

Time is also of the essence given the available funding and the environmental crisis of global warming. The Governor should call a special session dedicated exclusively to environmental issues, the Hydrogen Hub Development Act and New Mexico’s share of President Biden’s $1.2 trillion federal infrastructure bill and the $1 billion in federal assistance for hydrogen-technology research and development.

Otherwise, Hydrogen Hub Development Act should be held over to the 2023 legislative session.

On January 6, Governor Michelle Lujan Grisham and Secretary of State Maggie Toulouse Oliver announced their support for enactment of major changes in the state’s election laws by the 2022 New Mexico legislature. The link to the joint press release “Governor, Secretary of State announce plan to protect right to vote, expand ballot access” is here:

https://www.governor.state.nm.us/2022/01/06/governor-secretary-of-state-announce-plan-to-protect-right-to-vote-expand-ballot-access/

There were 8 major proposals supported by the Governor and the Secretary of State:

1. Giving 16 and 17 years right to vote in local elections, such as for city councils and school boards.

2. Straight-party ballot voting option allowing voters to choose the candidate in one party for every single race on the ballot.

3. Restoring voting rights to felons.

4. Sunday early voting and election day holiday.

5. Creating a permanent absentee voter list.

6. Allow registering on line with Social Security number.

7. Earlier mailing of absentee one week earlier or 35 days before Election Day.

8. Extending ballot acceptance by a full week.

In a statement making the announcement of changes to the state’s voting laws, Lujan Grisham had this to say:

“Protecting voting rights is essential to upholding our democracy and ensuring New Mexicans’ voices are heard.”

Secretary of State Maggie Toulouse Oliver for her part said:

“[This legislation] gives us the chance to pass one of the most powerful voting rights bills in our state’s history.”

SENATE BILL 6

Senate Bill 6 (SB6) is a 250-page bill updating New Mexico election procedure laws. The legislation is jointly sponsored by Albuquerque Democrat Senator Daniel Ivey-Soto and Elephant Butte Republican Senator Crystal Diamond. Passage of the bill is supported by Governor Lujan Grisham, Secretary of State Maggie Toulouse Oliver and county clerks throughout the state.

Some of SB6 provisions would make permanent temporary election provisions started during the pandemic. Those include an 11 p.m. halt to absentee-vote counting on election night, with work resuming the next morning.

There a 3 major exclusions in SB6 that had been originally announced being supported by the Governor and Secretary of State. Those are:

SB6 does strong>not authorize a straight-party voting option.
SB6 does not extend the mail-back deadline for absentee ballots. SB6 does not expand early voting by a day.

SB6 does call for a host of changes to New Mexico’s election laws, including allowing 16 and 17 year-olds to vote in local elections and establishing a permanent absentee voter list.

The major provisions of SB 6 can be summarized as follows:

Allowing 16 and 17 year-olds to vote in local and municipal elections.

Restore the voting rights of felons who are no longer incarcerated.

Establish a permanent absentee voter list, allowing people to sign up once to receive absentee ballots for statewide elections, rather than having to file a new application each time.

Permitting people without an official state identification to register to vote online by using their full social security number.

Designating Election Day as a state holiday.

RULES FOR POLL CHALLENGERS AND PHOTO IDENTIFICATION

A bipartisan election proposal is also moving forward in the 2022 New Mexico Legislative Session that would establish new rules for poll challengers and same-day voter registration. Under the proposal, training would be required for poll watchers and challengers. It would also prohibit someone from serving as a watcher or challenger if they had previously been removed from the role by election officials for violating election rules.

On February 26, the measure resulted in a clash in the Senate Rules Committee over whether a student identification (ID)card should be acceptable as identification when someone registers to vote on election day. State law now requires a photo ID for same-day voter registration. The proposal, would clarify that a driver’s license or other government-issued ID would be required, not simply a student ID.

Albuquerque area Republican Senator Mark Moores won approval for an amendment that would clarify that someone must show a government-issued identification, and not one from school or college, to register and vote on Election Day. The amendment was agreed to by bill sponsor Democrat State Senator Daniel Ivey-Soto.

Notwithstanding Ivey-Soto’s approval, Democrats objected to the provision and said they will try to amend the bill at a future hearing or revise the ID requirement in separate legislation. Some Democrats objected, contending younger voters may not have a driver’s license and that allowing student identifications would protect their right to vote.

Moores for his part accused Democrats of refusing to compromise with Republicans on a bill otherwise positioned to pick up bipartisan support and strengthen confidence in elections. Moores had this to say:

“If you guys don’t want to work with us, don’t even bring us to the table next time.”

Santa Fe Democrat and Senate Majority Leader Peter Wirth said the voter identification provision is a reasonable policy question and that Moores himself had proposed language adjusting the rule. Wirth said:

“There’s legitimate discussion about how to do this.”

The measure cleared the Senate Rules Committee and now will be heard by the Senate Finance Committee. If the bill gets a do pass recommendation in the Senate Finance Committee, it will move on to the full Senate for passage.

DEMOCRAT SUPPORT, REPUBLCAN OPPOSTION

Governor Lujan Grisham supports passage of SB6 and described it as “an important step toward expanding and protecting voting rights.”

Secretary of State Maggie Toulouse Oliver supports passage of SB6 and had this to say:

“Even as we’ve seen attempts around the country to make voting more difficult for eligible voters … here in New Mexico we continue to be a leader in how to balance the demands for voter access with the needs of maintaining our high levels of election security.”

The Democratic majority floor leaders in both chambers, Santa Fe Senator Peter Wirth of Santa Fe and Albuquerque Representative Javier Martínez of Albuquerque, support the measures.

Not at all surprising, many Republicans follow Republican national talking points and say the changes will lead to “fraud and confusion”. Republican Party Chairman Steve Pearce went so far as to say the changes will “damage the security and integrity of New Mexico elections.”

The links to quoted news source material is here:

https://www.abqjournal.com/2464376/democratic-leaders-introduce-nm-elections-bill.html

https://www.abqjournal.com/2464708/lawmakers-clash-over-student-id-for-voting.html

COMMENTARY AND ANALYSIS

Changes to New Mexico’s election laws always generate partisan heated debate and accusations of potential voter fraud. Among recent changes that were controversial occurred with the enactment of the 2019 law that allows New Mexicans to register to vote and cast a ballot on the same day.

GIVING 16 AND 17 YEAR OLDS THE RIGHT TO VOTE

Allowing residents as young as 16 to vote in local elections, such as for city councils and school boards. This makes very little sense. Simply put, the U.S. Constitution does not allow 16 or 17-year-olds to vote in federal elections. The Twenty-Sixth Amendment to the United States Constitution provides “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” The drive to lower the voting age from 21 to 18 grew across the country during the 1960s, driven in part by the military draft held during the Vietnam War. A common slogan of proponents of lowering the voting age at the time was “old enough to fight and die, old enough to vote”.

It is very difficult to understand the rational why now is the time to create a whole new class of voters by giving 16 and 17-years old’s the right to vote, even though it would be only for local elections, such as for city council and school boards. It is dubious to think that 16 and 17 year old’s have the maturity, let alone the understanding, of local municipal and school board issues other than perhaps trying to making their high school teachers and principals miserable.

RESTORING VOTING RIGHTS TO FELONS

Under the law, once a convicted felon has done their time or completed their court-imposed sentence including probation, they have paid their debt to society that should allow them to return and be productive citizen. Automatically restoring voting rights to felons who aren’t incarcerated and make it easier to register online to vote should be a no brainer. Notwithstanding, even if their voting rights are restored, the question is are convicted felons more likely have any interest in voting as is the lack of interest of many non felons.

DESIGNATING ELECTION DAY A HOLIDAY

As to the proposals to designate election day as a state holiday, this proposal is long overdue and should be adopted. Across the country, because of the big lie Trump has promoted that he lost the election and the lie of widespread fraud, red state legislatures are enacting laws to reduce access to the polls. New Mexico already requires employers to grant employees paid time off to vote and making election day a holiday is the logical next step.

CREATING A PERMANENT ABSENTEE VOTER LIST

Creating a permanent absentee voter list allowing people to receive ballots by mail without having to file new requests makes common sense and should be implemented in some form. Being able to cast a ballot should be made as simple as possible, not as hard as possible as Republicans want. Repeatedly requiring a person to make a request for an absentee ballot is an obstacle that should be eliminated.

REGISTERING ON LINE WITH SOCIAL SECUTITY NUMBER

This proposal does not make sense. Allowing people to register to vote online using their full Social Security number could create an environment of identity theft. Years ago, people’s social security numbers were placed on driver’s licenses and that practice had to be abandoned. A much better system to register to vote on line needs to be proposed.

SILLY CLASH OVER STUDENT IDENTIFICATION CARD

Republicans for decades have had a real hang up about mandating photo identification to be able to vote. The clash over whether a student identification card should be acceptable as identification when someone registers to vote on Election Day borders on the absurdity or is downright silly. Student identification cards issued by accredited universities and state higher education institutions are in fact just as reliable on many levels as state driver’s licenses, yet Senator Moores ostensibly believes universities or college are somehow bastions of election fraud and corruption.

WHAT GETS OLD

What gets old is when Republican Der Führer Trump Party Chairman Steve Pearce argues any changes to election laws made by Democrats that make it easier to register to vote and to vote “damage the security and integrity of New Mexico elections”. Der Chairman simply mouths off without offering a scintilla of evidence. The only damage to the security and integrity of our elections is when Republican big mouths like Pierce undermine the credibility of elections with his lies.

Nationally, legislatures controlled by Republicans in red states are making major changes to their election laws to give Republicans in charge of administering election counts the power to merely invalidate election results and votes and making it as difficult as possible to vote in order to suppress voter registrations and invalidate election outcomes.

Republicans on the national level have all bought into Der Führer Trump’s arguments that the 2020 election was rigged or stolen from him. The truth is that 2020 election was the most secured election in United State history.

Federal Courts at all levels, including Trump appointees, threw out court challenges and dismissed cases as quickly filed by Der Führer Trump supporters and finding a failure to offer any evidence of voter fraud. Upwards of 56 federal lawsuits challenging the 2020 Presidential elections, especially in battleground states that Trump lost, were dismissed as being frivolous with no evidence of fraud offered.

Unless Der Führer Trump Party Chairman Pearce can offer legitimate evidence of election fraud, or damage to the security and integrity of our elections he should do us all a favor and just shut up, especially when changes to our election law are bi partisan such as SB6.

On January 13, Governor Michell Lujan held a press where she unveiled what she termed as “tough on crime” proposals for the 2022 New Mexico Legislative session. The crime fighting proposals included increasing penalties for gun and certain violent crimes. The most controversial proposal involves legislation calling for “rebuttable presumption” that a person charged with a violent felony is violent and must be held in jail until trial. The legislation has drawn fierce opposition from the New Mexico Defense Bar.

The Governor wants the courts to put more people in jail pending trial who have been charged with violent crimes. Under the current state law, prosecutors are required to convince a judge in an evidentiary hearing that a charged defendant poses and immediate threat of violence to the public and to hold the defendant in jail pending their until trial and not allow them to post bond.

Governor Michell Lujan’s demand for changes in the states pretrial detention laws is no doubt associated with the dramatic spike in violent crimes. The City of Albuquerque broke an all-time record in homicides in 2021 with 117 homicides. Nine homicides have already been reported in January along with two others in parts of Bernalillo County.

HOUSE BILL 5

House Bill 5 (HB5) is the proposed pretrial detention bill and it would create a rebuttable presumption of dangerousness for defendants charged with certain violent crimes. It is a bipartisan bill sponsored by Democratic State Representatives Marian Matthews, Meredith Dixon and Wonda Johnson and Republican Bill Rehm. Governor Michelle Lujan backs enactment of HB5 as part of her anti-crime legislation.

HB 5 identifies the crimes where “rebuttable presumption” would apply to include first-degree murder, human trafficking, abuse or sexual exploitation of a child, and other serious violent felonies. It will also apply to defendants charged with brandishing or discharging a firearm during a felony offense or inflicting great bodily harm or causing the death of another and where there is probable cause to believe a defendant committed a new felony while awaiting trial, on probation or parole or within five years of having been convicted of a crime listed above.

Under HB 5, if prosecutors file pretrial detention motions in violent crime cases and are able to meet the probable cause standard for the crime, the burden of proof would then shift to the defendants charged with a violent crime who would then have to prove to a judge that they are not violent and that they should not be held in jail until trial under the presumption they pose a “danger to any other person or to the community.”

SPONSOR ASKS HB5 BE “TABLED”

On January 26, Representatives Marian Matthews, one of the sponsors, presented HB 5 before the House Government, Elections, and Indian Affairs Committee for explanation and committee recommendation. After numerous questions were raised regarding the bill’s constitutionality or legality, Mathews decided to pull the bill from consideration. In pulling the bill, Mathews had this to say:

“As I’m listening to the conversation and the questions and so forth, I think there’s a number of issues that have been raised that require some additional thought. … Yeah, pull the bill at this point and let us do a little bit more work and interactions with some of the people who are raising concerns. I think that would probably be the best at this point. … This problem of violence is not going to go away. … We need solutions.”

The committee is scheduled to meet again January 28 and if the bill is re-worked, Matthews can bring it back to the committee for consideration.

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

CONCERNS RAISED BY COMMITTEE MEMBERS

During the committee hearing, Roswell Republican Representative Greg Nibert noted the 2016 constitutional amendment approved by voters on bail bond reform and had this to say:

“All my concerns are constitutional in nature. … The citizens of New Mexico changed the constitution, and so in my view the legislative process is somewhat constrained in this regard because of what the people of New Mexico did in 2016. … In my view, it’s the people of New Mexico who are going to have to make the change.”

During the committee hearing, Corrales Democrat Representative Daymon Ely, who is also an experienced and respected trial attorney, asked Bernalillo County Chief Deputy District Attorney James Grayson questions about the prosecutor’s claim that the Supreme Courts Case Management Order, which imposes deadlines prosecutors must meet, was tying up law enforcement officers and keeping them off the streets.

Ely said the legislation is not well thought-out and would be quickly challenged in court if enacted. Ely also questioned why lawmakers would make changes to New Mexico’s pretrial detention laws after recent reports found low arrest, prosecution and conviction rates have contributed more to Bernalillo County’s crime problem than releasing defendants awaiting trial. Ely had this to say:

“I do not know why we’re not following the data. … None of us wants to have violent offenders on the streets.”

What Ely was referring to was the 14-page memo Legislative Finance Committee analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.

The links to quoted news source material are here:

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

https://www.krqe.com/news/politics-government/legislature/pretrial-detention-proposal-faces-intense-scrutiny/

https://www.abqjournal.com/2464688/pretrial-detention-bills-struggling-for-traction-at-the-roundhouse.html

LEGISLATIVE FINANCE COMMITTEE REPORT

On January 20, the Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. The report was also a status update on crime in Bernalillo County, law enforcement and bail reform.

LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial.

According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report says that while crime rates have increased, arrests and convictions have not. It goes on to say the promise of “swift and certain” justice has a more significant impact on crime rates and that rebuttable presumption does not.

The LFC memo put it this way:

“Research shows the certainty of being caught is a more powerful deterrent to crime than severity of punishment. … For the criminal justice system, this means it is important to prioritize solving crimes and securing convictions, particularly for serious offenses… Neither arrests nor convictions have tracked fluctuations in felony crimes, and in 2020 when felonies began to rise, accountability for those crimes fell.
…
Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.”

The LFC report points out that over the past 10 years, arrests and convictions have lagged behind ever increasing crime rates. According to the LFC report:

“Albuquerque’s violent crime rate rose by 85% from 2012 to 2017 and has since remained stuck at a persistently high level. … Over the same time period, arrests for violent offenses rose by only 20%, resulting in a widening accountability gap for the most serious offenses. Closing this gap should be the key legal goal for APD and the 2nd Judicial District Attorney’s Office.”

“Low conviction rates compromise the certainty of justice and suggest law enforcement agencies and prosecutors need collaborative strategies to improve communication and to build better cases and bring them to swift resolution.”

According to the memo, Albuquerque has an “accountability gap for criminal behavior” where there is little certainty that people will get arrested, prosecuted or convicted if they commit a crime. LFC analysts looked and analyzed crime and arrest data over the past 3 years. The analysts found violent crimes committed by defendants who were released pending trial made up 5% of all violent crimes in which the Albuquerque Police Department has made an arrest.

They also referred to a study by the University of New Mexico’s Institute for Social Research that found that of the people released pending trial, 81.9% did not pick up any new charges, 13.1% were arrested again on a non-violent charge, and 5% were arrested on a new violent charge. Nearly 80% of the defendants showed up to all of their court hearings.

The LFC analysis of HB 5 suggested the proposed change in pretrial detention could lead to 1,262 additional defendants being held until trial per year, at an estimated annual cost to county jails of $13.8 million. The report found that the benefit to detaining those defendants could lower the statewide violent crime rate by 1.4% and prevent an estimated 190 crimes per year, including one homicide, according to the analysis.

UNM LAW PROFESSOR WEIGHS IN ON CONSTITUTIONALITY OF HB 5

UNM Law Professor Joshua Kastenberg was contacted by KOB Chanel 4 and asked him if he felt HB 5 allowing “rebuttable presumption of dangerousness for defendants” was constitutional and he said:

“My sense of this bill is unless it’s re-written, it’s constitutionally problematic. Not because of the way it was generated, or proposed, but because it does in fact shift a burden onto the defendant. …Although the last section of House Bill 5 states that no burden has shifted to a suspect, or a defendant, in point of fact the bill does just that, it shifts a burden. … In the world of criminal law, the burden is always supposed to be on the government.”

Professor Kastenberg did say that HB5 could be fixed, but it must be done to withstand constitutional review:

“I think you [must include or] have a section that’s added in there that states that the prosecution must produce some evidence that there’s a likelihood of future dangerousness to the community or a flight risk. … It’s a reasonable idea and you know the frustration of the people is very real I don’t discount that. But the people of the state deserve a bill that will withstand the courts too.”

The link to the full KOB report is here:

https://www.kob.com/albuquerque-news/bill-expected-to-change-new-mexicos-pretrial-release-conditions-stalls/6370765/?cat=500

COMMENTARY AND ANALYSIS

Imbedded in our constitution is how justice is served, to ensure and to protect all of our constitutional rights of presumption of innocence, due process of law and requiring convictions based on evidence and a finding guilt beyond a reasonable doubt. The corner stone to our criminal justice system is to require prosecutors to prove that a person is guilty beyond a reasonable doubt before a jury and in a court of law.

The “rebuttable presumption of being violent ” being advocated takes away the role of a judge to provide due process of law to a defendant. Simply put, “rebuttable presumption of being violent” means if you are charged with a violent crime, you are not entitled to bond or any conditions of release and a judge must order you to sit in jail pending trial, which could be days, weeks, months or even years. The problem is, with “rebuttable presumption of being violent ” a charged defendant essentially begins a criminal sentence before ever being found guilty of a charge and all too often charges may be dismissed or a defendant is found not guilty by a jury. What you have with “rebuttable presumption of being violent” is that a charged Defendant is presumed guilty until the Defendant proves that they are innocent.

The approach is back assed backwards. The rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the accused defendant of violent crimes to convince the judge that they do not pose a danger to the public and should be released on bond or conditions of release pending their trial on the charges. “Rebuttable presumption of being violent” undermines and is an affront to the most basic constitutional right guaranteed by the United States constitution which is the presumption of innocence until proven guilty “beyond a reasonable doubt”. Further, in our criminal justice system, both state and federal, it is the prosecution that has the burden of proof to present evidence to convict a person.

The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken as many want to say. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance of the criminal justice system or political opportunism at its worst, especially from those running for office such as DA Raul Torrez who is now running for Attorney General.

The 3 major stakeholders in our criminal justice system that are always signaled out when it’s argued that the criminal justice system is broken are law enforcement, the prosecution and the courts. When you examine these 3 major stakeholders in Albuquerque , one conclusion that can be arrived at is that they are not doing their jobs. They also have an extensive history of blaming others for their failures.

LAW ENFORCEMENT

APD statistics for the budget years of 2019 and 2020 reflect that APD is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests. APD’s homicide unit has an anemic clearance rate of 36%.

THE PROSECUTION

When Raul Torrez ran for DA the first time, he said our criminal justice system was broken. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system”to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court revealed it is the DA’s office dismissing more felony cases for various reasons than the courts. The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.

THE COURTS

A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs. The courts need to hold law enforcement’s and prosecutor’s feet to the fire and make it know to them that sloppy work and laziness is no excuse for violating constitutional rights of presumption of innocence.

FINAL COMMENTARY

If the Governor and the New Mexico legislature truly want to do something and bring down violent crime rates, they should demand more of and hold accountable law enforcement, the prosecution and the courts to do their jobs more effectively and efficient.

In the context of “rebuttable presumption of being violent” to hold an accused pending trial, it would be wise to remember the words of Benjamin Franklin:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
______________________

POSTSCRIPT

Public Defender Felony Trial Attorney Jeff Rein issued a statement to New Mexico Politics with Joe Monahan expressing his views on pretrial detention. According to Rein, it is the Bernalillo County District Attorneys Office that is in need of change in order to keep more violent offenders in pretrial detention, not a change in state law. Rein had this to say:

“The vast majority of my cases involve violent felonies. The one factor that doesn’t get attention around bail reform is the actual performance of the D.A.’s office. It is unacceptable that the success rate for preventive detention by this DA’s office is around 50%. This is not a judge problem or a rule problem. The other judicial districts in New Mexico have much higher success rates and do not seem to have the same concerns as DA Raul Torrez.

I believe there are three reasons for this sad record.

1. The State’s motion for preventive detention is prepared and filed by a supervisor based primarily on the charges upon arrest. There is almost no attention given to the unique characteristics of the defendant or the crime such as the number and reliability of any witnesses, date of prior arrests and convictions, job status, family ties, etc. The motion for detention is then passed to another attorney to actually prepare and argue the motion in court.

2. The DA has a real staffing issue. There are few courtroom attorneys with more than 5 years experience in the office. Inexperienced attorneys either don’t have the time or the experience to pull together a compelling presentation to the judge on questionable cases.

3. They almost never bring a witness; not the arresting officer, not the victim, not a bystander. They present a criminal complaint, the defendant’s criminal history if they have one, the risk assessment prepared by pretrial services, and sometimes court documents from prior cases – that may or may not have been dismissed pretrial – to show that the defendant is a terrible person.

Most of the judges want to do the right thing but the DA has to bring a compelling case and prove by clear and convincing evidence that this particular defendant poses a risk to the safety of the community. A live witness can usually make the case more compelling and real for a judge. This really is just an Albuquerque problem that other parts of the state have solved. Raul can’t figure out how to play the game so he wants to change the rules. Wrong approach.”

On Monday, January 24, the Hydrogen Hub Development Act was introduced for consideration by the 2022 New Mexico legislature. It is House Bill 4 (HB 4) and it is sponsored by Gallup Democrat Representative Patricia Lundstrom and Las Cruces Democrat Representative Nathan Small. Lundstrom is the chairs the powerful Legislative Finance Committee (LFC). The bill is supported by Governor Michelle Lujan Grisham who has made passage of the bill a major priority in the 30-day short session where she controls the agenda.

House Bill 4 (HB 4) would create a legal framework for hydrogen energy development in the state. Lujan Grisham Administration government officials and the oil and gas industry contend that the development of the state’s hydrogen can provide a tool for the transition to a clean energy economy. They argue that hydrogen has many potential applications as a relatively clean-burning fuel that doesn’t emit carbon dioxide.

The $1.2 trillion federal infrastructure bill, approved by the U.S. Congress and signed into law last year by President Joe Biden, includes $8 billion to build four initial “hydrogen hubs” around the country. It also includes $1 billion in federal assistance for hydrogen-technology research and development.

CONCERNS ADDRESSED

State officials and legislators have been working on HB 4 for some time. The Lujan Grisham Administration and Senator Lundstrom originally developed two separate bills, but they eventually consolidated them into HB 4. The agreed to bill reflects significant changes based on public feedback.

Environmentalists sharply criticized the original governor’s bill for allowing hydrogen producers to emit up to 9 kilograms of carbon for every 1 kilogram of hydrogen produced when applying for tax credits even though its mandated a drop to just three-to-one over eight years.

Environment Department Secretary James Kenney said the consolidated HB4 overhauls tax incentive eligibility to encourage zero emissions, offering much higher tax breaks now for non-emission, “clean hydrogen,” and even bigger incentives for “carbon-negative” production.

TAX BREAKS AND INCENTIVES TO BUILD HUBS

HB 4 provides for new tax breaks and industry incentives designed to help the industry to develop hydrogen production and distribution facilities across New Mexico. The ultimate goal is to build a market for local and regional hydrogen consumption.

HB 4 will reward with loans and grants the creation of “hydrogen hubs” where public and private entities create partnerships. Those partnerships created will be required to build out “hydrogen infrastructure in designated zones” converting them into industrial parks where companies that consume or market hydrogen-based products and services can locate together.

Environment Department Secretary James Kenney said HB 4 as introduced overhauls tax incentive eligibility to encourage zero emissions, offering much higher tax breaks now for non-emission, “clean hydrogen,” and even bigger incentives for “carbon-negative” production. The bill provides significantly reduced tax breaks for “low-carbon” hydrogen, with the eligibility ratio now starting at only four-to-one.

The actual tax breaks under HB 4 vary and are based on carbon emissions and if the production facility is located inside a “hydrogen hub.”

Under HB 4, all income tax deductions are capped at 17 million kilograms of hydrogen per year. The lowest level of “qualified” hydrogen outside a “hydrogen hub” could receive up to “850,000 per year. The highest level of “carbon negative” production could receive up to $5.1 million a year.

Under HB4, “carbon negative” hydrogen production will receive 30 cents for every kilogram of hydrogen produced and 100% gross receipts tax and compensating tax deductions if located inside a “hydrogen hub” and 15 cents per kilogram outside a “hydrogen hub.”

“Clean”, which means no carbon emitting, hydrogen production will be eligible for 30 cents per kilogram and 66% deductions inside a “hydrogen hub” and 10 cents per kilogram outside a “hydrogen hub.”

“Qualified” hydrogen production, which is a maximum of 4 kilograms of carbon for every 1 kilogram of hydrogen produced, can receive 10 cents per kilogram and 33 cents deductions inside a “hydrogen hub” and 5 cents outside a “hydrogen hub.”

WHAT ADVOCATES ARE SAYING

Advocates, including the Governor, are say building a local hydrogen economy is critical to accelerate efforts to lower or eliminate carbon emissions because hydrogen is a relatively clean-burning fuel that doesn’t emit carbon dioxide. Advocates argue hydrogen can help decarbonize transportation when electric batteries are not viable options, such as long-haul trucking, trains and planes for freight. Proponents also argue that hydrogen development could be used to produce electricity, replacing fossil fuels like coal or natural gas to run turbine generators in power plants.

In her January 18 State of the State Address, Governor Lujan Grisham expressed her support for the development of the hydrogen industry and said:

“…clean hydrogen will support thousands of jobs, especially in rural New Mexico, while helping us sprint toward our net-zero carbon deadlines and decarbonize the transportation sector.”

On January 25, Lujan Grisham said in a statement:

“This is New Mexico’s chance to reap the vast economic and environmental benefits of clean hydrogen, and I urge legislators to think boldly and support [HB4].”

Lundstrom for her part said in a statement:

“This bill creates and protects good, family-supporting jobs for New Mexicans, while reducing emissions and addressing climate change. … the economy in New Mexico is based on energy. I think new Mexico should be the lead on this thing. We should be close to it and we should be leading the pathway. … ”

HB 4 creates a “hard cap” on carbon emissions for hydrogen production that is used to run electric generating facilities, imposing a maximum of 375 pounds of carbon for each megawatt hour of electricity produced. The cap will reduce emissions in hydrogen-based electric generation by at least 50% compared to a new natural gas plant.

Environment Department Secretary James Kenney said HB 4 could make the state’s goal of 45% lower carbon emissions by 2030 and carbon neutrality by 2050 much more achievable. Kenny said:

“This will help us get there. … We hope the Legislature will take the big, bold, brave step needed to approve it.”

WHAT THE OPPOSITION IS SAYING

The hydrogen development plan has major critics. New Mexico environmental groups are highly critical of the Governor over the issue. At issue is hydrogen’s actual ability to lower carbon emissions in the hydrogen-production process and the potential danger of applying hydrogen solutions to decarbonize energy use in areas better served by renewable resources. Upwards of 30 environmental organizations are calling upon the Lujan Grisham Administration to initiate a study of the pros and cons before considering any new hydrogen legislation.

Environmentalists argue that large-scale hydrogen production would do little to lower carbon emissions, perhaps make them worse, because hydrogen is made with natural gas that has a huge amount of carbon dioxide. Environmentalists sharply criticized the original governor’s bill for allowing hydrogen producers to emit up to 9 kilograms of carbon for every 1 kilogram of hydrogen produced when applying for tax credits, although it did mandate a steady drop to just three-to-one over eight years.

Environmentalists fear that methane released in mining and transporting natural gas to hydrogen plants will offset any potential benefits from capturing carbon released during hydrogen production. Environmentalist argue a lot more funding and staffing to monitor and enforce compliance is needed under the bill.

Tom Singer of the Western Environmental Law Center is critical of HB 4 that authorizes third-party verification firms to certify that natural gas used in hydrogen production is “responsibly sourced,” meaning suppliers have reduced upstream methane emissions to a minimum. Singer notes there is no clear definition in the bill what “responsibly sourced gas” means, nor how total carbon reductions will be measured throughout the full “life-cycle” of hydrogen production, from upstream operations to the end user.

Singer put it this way:

“That sounds a lot like a ‘third-party’ hen house being overseen by oil-and-gas-producing foxes who want to claim that their gas is clean.”

Western Environmental Law Center Executive Director Erik Schlenker-Goodrich also expressed concerns and said:

“Methane-based hydrogen production is a very risky investment bet with state resources or private-sector capital … hydrogen may be cost competitive in the short-term, but that could be reversed by 2030 compared with green hydrogen. We could invest billions in New Mexico in a scheme that could be outdated by other technologies in a decade.”

ENVIRONMENTALISTS PREFER “BLUE” VERSUS “GREEN” HYDROGEN

“Blue” hydrogen refers to a process that captures and sequesters carbon emissions released during production. That’s considered to be a step above “gray” hydrogen production, which uses the same process but simply vents those emissions into the atmosphere with no effort to capture and sequester them.

Environmentalists prefer “green hydrogen,” which uses renewable generation from solar or wind to power a process known as electrolysis. That process pulls hydrogen molecules from water, with no carbon emissions. But green production is still too expensive for widespread deployment, and the technology cost isn’t expected to drop enough for large-scale commercialization until the 2030s.

Environmentalists fear the emerging focus on hydrogen could derail the accelerated adoption of renewable energy generation now underway nationwide as policymakers and investors pursue massive hydrogen development rather than pushing full speed ahead on solar, wind and battery-storage technology.”

DEMOCRATIC LEADERSHIP EXPRESS RESERVATIONS

State Senate majority leader Peter Wirth said he is concerned about relying on “carbon capture and sequestration technology”, known as CCS, when producing hydrogen. The industry has said CCS will trap carbon that is then released when pulling hydrogen out of the methane contained in natural gas. The problem is the extraction technology has yet to be proven efficient and economically viable in commercial projects.

Wirth had this to say:

“I have real reservations … It’s an extremely complicated question whether carbon sequestration technology is reliable. … We don’t want the discussion of hydrogen to take us away from [solar, wind and other renewable generation.] … We need careful, deliberative analysis to see where we go.”

Speaker of the House Brian Egolf had this to say about HB4:

“It may not get done in this session. … We don’t want to rush a decision. The consequences of getting it wrong are too dire.”

Links to quoted news source materials are here:

https://www.abqjournal.com/2464248/governor-begins-aggressive-push-on-hydrogen-bill.html

“New Mexico Legislative Guide”, page 14 and 15:

https://abqjournal-nm.newsmemory.com/?special=Special+Section&selDate=20220115

“Ready or not its legislative time”

https://www.abqjournal.com/2461690/ready-or-not-its-legislative-session-time.html

https://www.krqe.com/news/politics-government/legislature/lawmakers-weigh-bill-that-would-get-state-involved-in-hydrogen-hubs/

COMMENTARY AND ANALYSIS

In even number years, the legislature convenes for 30 days, known as a “short session”. The 30-day sessions are dedicated to budget legislation and the agenda is set by the “Governor’s Call”, meaning the Governor dictates was legislation can be considered. In odd number years, the legislature convenes for 60 day sessions and legislators can introduce legislation on any topic or matter they choose and not subject to the Governor’s call.

There is very little doubt that the Hydrogen Hub Development Act is one of the most complicated, scientific and technical pieces of legislation to be considered by the legislature in decades. After all, it involves our environment which is why it is generating such fierce debate.

Senate Majority Floor Leader Peter Wirth identifies what the real problem is when he says “… It’s an extremely complicated question whether carbon sequestration technology is reliable. … We need careful, deliberative analysis to see where we go.”

With 21 days left in the 30 days session that is supposed to be concentrating on budgetary matters, there is simply is not enough time to give “careful, deliberative analysis” to a new industry that may have a detrimental impact on our environment. It is very foolish to believe that part time legislators will have enough time to have a thorough understanding of the Hydrogen Hub Development Act with so much more being considered and be able to make an informed decision.

When Speaker of the House Egolf says of the Hydrogen Hub Development Act “The consequences of getting it wrong are too dire”, the chamber which he leads needs to listen and act accordingly with a memorial calling for a study and deferring the legislation to a later session.

Given the magnitude what is being proposed, there is no doubt that an extensive state-sponsored study of the pros and cons should be conducted before considering any new hydrogen legislation.

Time is also of the essence given the available funding and the environmental crisis of global warming. The Governor should order the withdrawal HB4 from her Governor’s Call of the 2022 legislative agenda and order the study to be a major priority over the next few months.

Further, the Governor should call a special session dedicated exclusively to environmental issues, the Hydrogen Hub Development Act and New Mexico’s share of President Bidens $1.2 trillion federal infrastructure bill and the $1 billion in federal assistance for hydrogen-technology research and development. Otherwise, Hydrogen Hub Development Act should be held over to the 2023 legislative session.

NEWS UPDATE

On January 27, it was reported that after 6 hours of discussion and debate, the House Energy, Environment and Natural Resources Committee voted to table the measure. In the shortened legislative session, it is unlikely the measure will be brought up again.

https://www.krqe.com/news/politics-government/legislature/lawmakers-weigh-bill-that-would-get-state-involved-in-hydrogen-hubs/