The 2024 New Mexico legislative session ended on February 15 at noon. During a news conference immediately after the session ended Governor Michelle Lujan Grisham said she may convene a “special public safety session” to possibly pass more public safety initiatives that did not make it through the legislature.
Lujan Grisham said it was too early to commit to specific bills she’d want to bring up in a special session. However, one of the measures that could be on the table for a potential special session is a move to require behavioral health treatment for people accused of crimes.
The governor said she really wanted lawmakers to approve a bill reworking how the courts address competency and behavioral health treatments. Senate Bill 16 was the criminal competency bill introduced in the 2024 session that would have mandated court-ordered treatment for a defendant deemed dangerous and incompetent to stand trial. Under current laws, individuals found incompetent largely have charges against them dismissed and are given information about services.
The bill never made it to the floor. Lujan Grisham said this:
“We need a tool for folks who are repeat offenders because of these issues — substance abuse, behavioral health, mental health issues — to make sure that they can get the required treatment for more than a minute.”
PROVSIONS FOR VARIOUS DEGREES OF CRIME
The legislation included provisions for the various levels of crimes.
For violent felonies, if the defendant regained competence, the prosecution would continue. If the defendant failed to gain competence, they will remain in the residential facility with intermittent reporting to the court about his progress.
For non-violent felonies only the defendant would be referred to a diversion to treatment program for no longer than 18 months.
Upon completion, charges are dismissed.
If a defendant was unable or refuses to participate once referred, they would be assessed for civil commitment or assisted outpatient treatment.
For misdemeanors, the defendant could be be diverted to treatment and wraparound services for up to 6 months.
SUPPORT FROM PROSECUTION AND DEFENSE
The term “revolving door” is often used to refer to criminals who are arrested, released before trial with conditions, and then arrested again for committing more crimes. During the 2024 legislative session, state lawmakers did approve a bill that addressed to some extent part of the issue, but law enforcement leaders say the revolving door also includes suspects who are arrested, deemed incompetent to stand trial, and then released back on the streets only to be arrested again. It’s a gap in the system that state leaders want to close, but changing state law is only part of the solution.
Bernalillo County District Attorney Sam Bregman said he believed state lawmakers were on the right track with Senate Bill 16 to allow judges to order certain low-level suspects into behavioral health treatments to restore their competency so they’re able to stand trial. Bregman said this:
“Right now we just keep doing the same thing and we’re just having people go through the system with no real help for them, and it’s not good for the community. … A tremendous amount of cases are being dismissed because if someone’s not competent, they can’t help in their defense … and that’s not the way our criminal justice system works.”
Chief Public Defender Bennett Bauer said he agrees the system need to be fixed. Bauer said this:
“It’s important that people know that treatment, instead of incarceration, isn’t just to be nice to the person facing the charge. … It’s really what builds community safety. … We, as a community, need to step in, but much of that is stepping in and providing assistance to lift those folks up.”
Not withstanding Bauer saying the system needs to be fixed, he said it was a good thing Senate Bill 16 died in the Roundhouse because he believes lawmakers and law enforcement leaders need more time to work through those health care capacity issues and a mental health care system that is does not have enough providers nor facilities to do mental health evaluations. Bauer said this:
“Creating the capacity for treatment in the 33 counties in New Mexico, and at the same time, we create a court system that supports that community safety is critical.”
MENTAL HEALTH COURT
It was in 2007 that the Second Judicial Court located in Bernalillo County established the states only specialized Mental Health Court (MHC). It is a state-certified specialty treatment court program specifically for individuals whose involvement with the legal system is directly related to an untreated or unstabilized mental health disorder, indicating a clear need for intervention, treatment and support. The program serves individuals charged and/or convicted of felony level charges within Bernalillo County.
Mission and Goal of Mental Health Court
The Mission and Goal of the Mental Health Court are very straight forward:
Engage individuals with serious mental health diagnosis who are involved in the criminal system. The program strives to improve one’s quality of life through treatment, linkage to community resources, specialized supervision and extensive supportive measures.
The overall goal of the MHC program is to minimize and/or eliminate involvement with the criminal justice system while improving one’s overall mental health and quality of living.
Focus of Mental Health Court
The Mental Health Court has an overall focus on assisting with improving participants’ quality of life, appropriate treatment services and discontinuing involvement with the criminal justice system. The program includes both pre and post plea tracks. The program serves individuals at high levels of risk and need, as assessed. The program duration typically ranges from 18-24 credit earned months. Time in the program is dependent on the severity of risk and need, level of participation and overall progression through the program.
The Mental Health Court (MHC) team members take into special consideration that participants typically have extensive trauma histories, limited support systems and a history of substance abuse, mental health and co-occurring disorders. In addition, participants often lack basic resources such as housing, education and/or employment. In an effort to meet the individualized needs of each participant, MHC provides intensive clinical case management, individual, group, and family treatment services, housing, academic and vocational support through community service providers.
The services provided are unique to the person and are identified through individualized assessments and treatment planning. Each participant is given ample opportunity to receive the needed services to develop the life skills needed to live a life that is substance and criminal justice free.
The program is 100% voluntary, and is an alternative to the standard judicial process. The courts current capacity is 35. The recidivism rate from September 1, 9/1/2017 to 1/1/2023 is 5.5% with a success rate of 94.5%
Pre-Adjudication, Post-Adjudication
Program referrals are accepted from attorneys, judges, treatment providers, community agencies, family members and from individuals involved in the justice system that are interested in participating in jail diversion programs, as an alternative to traditional court processes.
The MHC program accepts both pre-adjudication and post-adjudication referrals:
Pre-Adjudication: Participants can screen for the program pre-adjudication upon a referral to determine eligibility.
Post-Adjudication: Participants enter the program upon the filing of a formal plea agreement or upon a trial conviction. Sentencing is completed upon graduation of the program. Participants are advised appropriately of the possible sentence and penalties they may face, should termination or a voluntary withdrawal occur.
Eligibility For Mental Health Court
There are 4 major eligibility criteria to for the court:
- MHC accepts individuals with a Serious Mental Health Illness (SMI) as a primary diagnosis.
- Participants must have current felony charges-pending in Bernalillo County.
- Participants must have identifiable substance abuse, mental health and/or social service needs, and be willing to participate in treatment for the duration of the program. Treatment services may include psychiatric evaluation, medication management, substance abuse individual and/or group counseling, and other behavioral treatment services as recommended.
- Participants are not excluded from participation in MHC due to lack of residence and/ or stable residence.
All referrals are reviewed and considered on a case-by-case basis and a decision is made if a person is disqualified.
Disqualification Criteria For Mental Health Court
There are 5 areas where a person can be disqualified from court participation:
- Individuals who have pending charges or who have been convicted of capital offenses and/or sex offenses are disqualified.
- Individuals who have been found incompetent, or competency is pending and/or do not have the cognitive capacity to participate in the program are disqualified.
- Individuals who do not engage in completing clinical assessments and who stop showing up for program requirements are disqualified.
- Individuals unwilling to follow treatment recommendations (e.g. medication management, counseling, case management services), are disqualified.
- Individuals with cognitive impairment or learning disabilities that prohibit the ability to advance through the program are disqualified.
Service Delivery For Mental Health Court
Community treatment and case management is provided by many entities in the community. Referrals for clients are based on need and agency availability. Participants complete a therapeutic assessment and develop an individualized treatment plan that focuses on identifying strengths and addressing needs. Services are strength-based and client centered for individuals who are challenged by substance abuse and co-occurring disorders and/or are deemed high-risk to reoffend in the community. Clients are ideally engaged in MHC for a period of 18 to 24 (credit-earned) months by transitioning through four phases, with an ongoing relationship of care in the areas of treatment, case management, housing, medication, stability, job readiness, parenting, and educational referrals.
The link to the quoted source is here:
CIVIL MENTAL HEALTH COMMITMENT HEARINGS
The are laws on that books that deal with when and under what circumstances formal civil commitment hearings can be initiated for 3-day, 7-day and even 30-day observation and diagnostic evaluations for the mentally ill and the drug addicted. All deal with the civil commitment of those who are a danger to themselves and others and provides that the District Attorney can initiate civil mental health commitment actions for evaluations and treatment.
The link to review the applicable New Mexico state statutes NM Statute §43-1-1 (2019), NM Stat § 43-1-1 (2019), NM Stat § 43-1-11 (2020) on civil mental health commitments is here:
NEW MEXICO’S CRIMINAL JUSTICE COURT SYSTEM
There are 13 Judicial District Courts in the State of New Mexico that are courts of general jurisdictions that handle both civil and criminal matters for the 33 counties in the State of New Mexico. Each of the 13 Judicial District Courts have primary jurisdiction over one or more counties based on population.
State District Courts are primary courts of jurisdiction over criminal cases, including felonies and misdemeanor cases. State District Courts have jurisdictions over civil matters with disputes of more than $10,000, domestic relations, mental health and civil commitment cases, appeals from administrative agencies, disputes over real estate, contract disputes, tort actions for personal injury. District Court criminal convictions and criminal matters are appealable to the one New Mexico Court of Appeals and/or the New Mexico Supreme Court.
New Mexico also has a small claims court or Magistrate Court and Metropolitan Court System that are courts of limited jurisdiction that handle civil disputes of up to $10,000 and misdemeanor criminal matters and appeals are to the State District Courts.
An Administrative Office of the Courts (AOC) has been established and is funded by the New Mexico legislature to enable the courts to accomplish their mission by ensuring that the courts have adequate, equitable distributed resources. The AOC ensures that the courts have and use current technology and it provides a statewide human resources system. The AOC is responsible for developing and implementing improved court processes and supporting the courts in their use. The AOC ensures sound financial, budgeting and procurement practices in the management of court resources.
https://www.nmcourts.gov/court-administration/administrative-office-of-the-courts-aoc/
GOVERNOR LUJAN GRISHAM ADVOCATED MANDATORY TREATMENT IN 2022 RELECTION CAMPAIGN
On September 30, 2022, the first debate between Democrat Governor Michelle Lujan Grisham and TV Weatherman personality Republican Mark Ronchetti. Dominating the debate were heated exchanges and disputes on such issues as abortion, crime, the criminal justice system, the economy and public education. Notwithstanding, both the Governor and Ronchetti found common ground on the issue of homelessness. Both said they would crack down on certain activities while expanding services to those willing to utilize them.
Governor Lujan Grisham for her part said she would push for legislation to restrict panhandling and criminal trespassing in the upcoming 2023 legislative session. She said at the time her administration was working to expand substance abuse treatment programs in the state but pointed out some homeless reject treatment options. Lujan Grisham had this to say about those homeless who refuse treatment options:
“We’re going to need to do a little tough love and that’s going to mean probably more options for mandatory treatment. … I plan to propose in the next legislative session restrictions on panhandling and trespass for this population.”
Lujan Grisham said during the debate that more than half of New Mexico’s homeless population are teenagers. Lujan Grisham spokeswoman Nora Meyers Sackett said the governor’s plan is a comprehensive approach to homelessness and said:
“These proposals will seek to build on the work the governor has done to invest in housing and improve and increase access to behavioral health services throughout New Mexico.”
SUBSTANCE ABUSE, MENTAL ILLNESS, HOMELESS BIG PART OF CRIMINAL JUSTICE SYSTEM
On May 22, 2023 the NM Legislative Finance Committee (LFC) released a report on the state’s homeless and the affordable housing shortage which included the preliminary estimates of the 2023 Point In Time (PIT) annual homeless count. The “Point in Time” (PIT) survey is conducted once a year to determine how many people experience homelessness on a given night in communities across New Mexico. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD).
According to the LFC Report on Homelessness and Affordable Housing, New Mexico’s homeless numbers increased 48% in 2023 going from upwards of 2,600 people to 3,842. The increase was driven by an increase in the unsheltered count with 780 more people in Albuquerque and 232 more in the rest of the state. About half the emergency shelter beds available were used indicating overall adequate bed numbers statewide. However, shelter accessibility was reported as significantly lowering utilization rates because some individual emergency shelters are full while others are extremely hard to reach.
According to the LFC report the causes of homelessness points to many risk factors representative of vulnerable situations and populations. The following 7 risk factors for homelessness and housing insecurity were identified:
BEHAVIORAL HEALTH: Over 1-in-5 adults in New Mexico have a mental illness. Nearly 1 in 5 youths had a major depressive episode in the last year. New Mexico ranks 29th for adult mental health disorders and 17th youth mental health disorders in the country.
SUBSTANCE ABUSE: On average, every day five New Mexicans die of alcohol-related causes, and nearly three die from a drug overdose. New Mexico ranks 1st alcohol-related deaths and 2nd in drug overdose deaths in the country.
POVERTY: Nearly 1-in-5 New Mexicans live below the federal poverty line. New Mexico ranks 3rd in the country in poverty
LABOR FORCE PARTICIPATION: In 2022, the labor force participation rate in New Mexico was 55%, compared to 62% nationally. New Mexico ranks 4th in labor force participation.
PHYSICAL HEALTH: Nearly 1-in-10 adults in New Mexico have multiple chronic health conditions.
DOMESTIC VIOLENCE: In New Mexico, over 1-in-3 women experience domestic violence in their lifetime. Nearly 6,000 children suffered maltreatment in New Mexico in 2021. New Mexico ranks 26th in the country for domestic violence and 8th for child maltreatment.
INCARCERATION: New Mexico has a relatively low incarceration rate, with 203 individuals incarcerated per population of 100,000.
According to the LFC report, people experiencing unsheltered homelessness are more likely to exhibit multiple risk factors. These individuals tend to have higher service needs, tend to be more frequent users of community services, such as emergency room visits and inpatient and outpatient treatments, and require more acute care.
The Point In Time data breakdown for the unsheltered for the years 2009 to 2022 reports 46% of the unsheltered suffer from serious mental illness and that 44% of the unsheltered suffer from substance abuse for a staggering 89% combined total. When it comes to the homeless in Albuquerque, 30.19% of the homeless self-reported as having a serious mental illness and 25.5% self-reported as substance abusers.
There is an overlap with homeless suffering both mental illness and substance abuse. In other words, a whopping 55.69% combined total of those surveyed self-reported as having a serious mental illness or were substance abusers. When it comes to the balance of the state homeless numbers, 43% were identified as adults with serious mental illness and 40% were identified as adults with substance use disorders or a staggering 83% combined figure.
The link to the entire 2023 PIT survey is here:
https://www.nmceh.org/_files/ugd/6737c5_4ecb9ab7114a45dcb25f648c6e0b0a30.pdf
COMMENTARY AND ANALYSIS
The enactment of new version of Senate Bill 16 in a Special Session of the legislature for Public Safety would be a good first start in dealing with the states drug addiction and mental health crisis. Any Special Session called by the Governor for public safety must include the statewide expansion of the existing Second Judicial District Mental Health Court to include mental health commitment hearings by district attorneys and public defenders.
The existing Second Judicial District Mental Health Court program is 100% voluntary, and is an alternative to the standard judicial process and that should be changed. It should be made mandatory to function as outreach and treatment court for the drug addicted and the mentally ill in a hospital or counseling setting and not involving jail incarceration.
Much more can and must be done. There is a critical need for a civil mental health and drug commitment court for the homeless suffering from mental illness and/or drug addiction and who pose a threat to themselves, their family or to the general public. Such courts do in fact exist in the other parts of the country and have proven to be highly successful.
CREATE A 14TH JUDICIAL DISTRICT MENTAL HEALTH TREATMENT COURT
Governor Michelle Lujan Grisham should she call a special session of the legislature for public safety, should call for the creation of a new 14th Judicial District Court with 3 separate regional divisions one located in Albuquerque, one in Las Cruces and one in Las Vegas, New Mexico with the creation of at least 3 District Court Judge positions with 6 year terms appointed by the New Mexico Supreme Court. Appointment by the Supreme Court would ensure rapid filling of the new positions and take the elective partisan politics out of the process. The Administrative Offices of the Courts would designated a pivotal role in setting up the new court process, including locating the new Mental Health Treatment Court in existing court houses in all 3 locations.
Governor Michelle Lujan Grisham and the legislature should seek to designate the 14th Judicial District Court a specialty “Mental Health Treatment Court” functioning as outreach and treatment court for the drug addicted and the mentally ill in a hospital or counseling setting and not involving jail incarceration. The existing Second Judicial District Mental Health Court would be consolidated into the Albuquerque District Mental Health Treatment Court.
There is an even bigger need for the construction and staffing of a mental health facilities or hospitals to provide the services needed. As it stands now, there exists less than adequate facilities where patients can be referred to for civil mental health commitments and treatment. There is glaring need for a behavioral health hospital and drug rehabilitation treatment facility. The Bernalillo County Behavioral Health Center and the Las Vegas Mental Health hospital could be expanded to accommodate for court referrals and a new behavioral health facility could be constructed in Las Cruces to handle mental health commitment and treatment.
New Mexico is currently experiencing historical surplus revenues and this past legislative session the legislature had an astonishing $3.6 Billion in surplus revenue. Now is the time to create a statewide Mental Health Court and dedicate funding for the construction of behavioral health hospital and drug rehabilitation treatment facilities the courts can rely upon for referrals.
The legislation for creating such a new court system should include sufficient funding for all District Attorney Offices in the State and the Public Defenders offices so they can dedicate resources in the form of attorneys that will assume the filing and defending of civil mental health commitments as prescribed by law. The New Mexico Public Defender should also be called upon by the Courts to provide a defense where and when it is needed.
Links to related blog articles are here:
Governor MLG Considers Calling Special Session To Deal With Public Safety Issues; It’s About Time!