On April 17, New Mexico Gov. Michelle Lujan Grisham announced she was calling state legislators into a Special Session starting July 18 with a focus on addressing public safety proposals. There are a total of 5 measures Governor Michelle Lujan Grisham put forward for the July 18 Special Session. The postscript to this blog article provides a summation of the 5 proposals. Since the April 17 announcement of a special session, absolutely no agreement has been hammered out between the Governor’s Office and majority Democrats in the run-up to the special session on any of the legislation.
Some top-ranking lawmakers and advocacy groups say the governor’s proposals have not been thoroughly vetted and were crafted without input from impacted populations. The ACLU of New Mexico and numerous advocates for the homeless and mental health experts have asked the Governor to call off the special legislative session. The Governor and her administration just a few days before the session engaged in an aggressive public relations effort to try and convince lawmakers, local public officials, judges and the public that her recommended legislative changes are vital, will work and can be approved during the July 18 special session on public safety.
GOVERNOR ISSUES SPECIAL SESSION PROCLAMATION
On July 17, Governor Michelle Lujan Grisham issued her proclamation calling lawmakers into Special Session on July 18 commencing at noon. The proclamation authorizes 9 issues for legislative debate during the special session. The list includes emergency aid for damages caused by the South Fork and Salt fires that scorched the Ruidoso area last month, as well as funding to pay for the session, which is expected to cost at least $50,000 per day.
As expected, the special session agenda primarily focuses on crime issues. The proposals include requiring temporary holds for certain criminal defendants deemed incompetent to stand trial, more frequent crime reports from law enforcement and enhanced criminal penalties for individuals with felony convictions who are found with guns. In a surprise move, outgoing Albuquerque Republican Sen. Mark Moores said he had agreed to sponsor most of the bills. As part of the agreement for Moore’s to sponsor the legislation, the Governor added Republican-backed proposals dealing with racketeering and penalties for fentanyl trafficking and possession as part of the back-and-forth discussions.
ORTIZ Y PINO GUEST OPINION COLUMN
On July 17, the Albuquerque Journal published the following 600 word guest opinion column by Progressive Democrat State Senator Gerald Ortiz y Pino entitled “Special Session Can Close The Door For Minor And Nuisance Crimes”:
“Gov. Michelle Lujan Grisham is calling the Legislature into session on Thursday. The substantive issue among the four topics she wants discussed is mandating treatment for people who come before the courts for offenses that were committed under the effect of mental illness or substance use disorder.
I carried Senate Bill 16 in the January session this year, a bill supported by the governor that dealt with this topic. It drew considerable opposition from defense attorneys, civil libertarians and disability advocates. It ultimately was tabled in the Senate Judiciary Committee.
I took careful notes during all the discussions and presentations on SB 16. The objections raised were important — and valid. SB 16 needed considerable work. It was not ready for prime time.
Still, I am of the opinion that until we end the revolving door of impaired individuals who are released by the courts because jail is not where they belong we will not get a handle on our homelessness and petty crime problems.
Several new approaches to revising the competency statute are being worked on. I am worried that a two- or three-day special session is not where a major overhaul of a complex law ought to be tackled.
But that doesn’t mean we can’t do something valuable in the session.
We already have an Assisted Outpatient Treatment statute on the books. It was passed in 2016 after a five-year struggle led by former Senate President Mary Kay Papen.
It uses the “black robe effect” of judicial authority to urge people before the court for a criminal offense to get into treatment instead of going to jail.
It was passed only after we deleted the consequence of jail for those who did not voluntarily go into treatment. After seven years, only Doña Ana County makes much use of the existing AOT law.
Occasionally, I am told, it is used in Bernalillo district courts. The drawback is that after passing the AOT bill, the Legislature failed to ever appropriate money for the services that were to be offered.
Sen. Papen tried in 2019 and again in 2020 to secure funding for AOT. It failed each time.
Thus there are two big problems with AOT that could be dealt with in the special session. First, it is useless to mandate treatment if we don’t have enough treatment services for those who are voluntarily seeking them.
Forming longer waiting lines isn’t going to do any good.
Second, we need to re-focus AOT onto misdemeanor cases and away from felonies. The revolving door is largely spinning out into our streets, parks and alleys those arrested for minor and nuisance crimes.
If AOT was focused on getting them help in the form of housing, medication and case management, we would see a reduction in the homeless population.
The state has financial resources to do this. Sen. Papen knew this. We all do. What we lack is any confidence that spending money on this population will work. Yet it has proven to work in other cities where it has been tried. Miami, for one, is often pointed to as an exemplar for providing service instead of jail as a way to reduce homelessness.
Of course, the Medicaid program could provide, as advocates have urged, a new waiver for those with mental illness and substance use disorder. Other states have done that. It could include supportive housing. That way the federal government would pay 75% of the cost.
Adequate funding for AOT services statewide is something the special session could accomplish. That would be a huge step in reducing the behaviors that can lead to more serious crimes.”
Gerald Ortiz y Pino, D-Albuquerque, represents District 12 in the New Mexico Senate and serves as chair of the Senate Health & Public Affairs Committee. Senator Ortiz y Pino is retiring and is not seeking another term.
SENATE BILL 16 EXPLAINED
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 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.”
Notwithstanding 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.”
ASSISTED OUTPATIENT TREATMENT PROGRAM
One of the governor’s proposals for the Special session is intended to strengthen a 2016 law that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. The program is called the Assisted Outpatient Treatment, or AOT, was approved by lawmakers in 2016.
The court-supervised Assisted Outpatient Treatment program is intended for those who have a history of arrests and hospitalizations and who do not or who are unlikely to voluntarily adhere to prescribed treatments. The law passed in 2016 allows for State District Court Judges to order people into mandatory treatment programs, which includes medication, therapy or drug testing. Participants have to be at least 18 years old, have a mental illness diagnosis and have a history of not following through with treatments ordered. Under the original law passed, cities and counties have to opt into the program to participate. In the eight years since the law was enacted, only Doña Ana County, in the state’s 3rd Judicial District, has implemented a functioning AOT program. The program serves about 40 people a year.
Holly Agajanian, chief general counsel for the Governor’s Office, told members of the House Courts, Corrections and Justice Committee last month that legislation is needed to expand the program statewide. Agajanian told lawmakers:
“Even though jurisdictions are already statutorily allowed to implement these programs, they aren’t doing it.”
COST OF SPECIAL SESSIONS
On July 17, the online news agency New Mexico In Depth publish a story that addressed the cost of a Special Session. The article was written by New Mexico In Depth reporter Trip Jennings. Below are quoted excerpts from the article:
[According to the New Mexico In Depth report], the cost of a special session is often determined by how many days it lasts, plus the daily rate the Legislative Council Service sets for each day state lawmakers are in session. The two factors help to explain why in the past decade special sessions, on average, have been less expensive than in the two decades preceding it.
“The average cost to taxpayers of the last eight special sessions held from 2015 through 2022 was $164,970, according to a review of special session costs 1990 to 2022, the year of the last special session.
From 2002 through 2011 the average price tag of seven special sessions and one extraordinary session was much higher, $309,856. (Special sessions are called by governors, who set the agenda. State lawmakers called themselves into session to override then-Gov. Gary Johnson’s veto of the state budget in 2002.) And that was lower than the prior decade, from 1992 through 2001, when the average cost of six special sessions was $357,641.
In six of the last eight special sessions held from 2015 through 2022, state lawmakers were paid for five days or fewer to conduct the state’s business. In the decade that produced the costliest special session average — 1992 through 2001 — state lawmakers were paid for six days or more in four of the six special sessions.
The Legislative Council Service hasn’t set a daily rate for this week’s special session. But the cost of each day state lawmakers were in special session over the past 30 years has hovered just below $45,000. There have been noticeable deviations. The highest daily rate was recorded in 2022 for that year’s special session — $71,484; the lowest — $28,035 — came in 2007 for that year’s special session.
To summarize, the shorter a special session, the less expensive it is. Or to state the inverse, the longer a special session lasts, the more expensive it is.”
COMMENTARY AND ANALYSIS
It is extremely disappointing that since April 17 when Governor Michelle Lujan Grisham called for a special session, absolutely no consensus was reached on any of the legislation. The failure to reach any consensus is a reflection of failed leadership on both sides. Unless a consensus on any legislation can be arrived at and within a 3 to 4 day session, the Special Session should adjourned as a waste of taxpayer money.
Progressive Democrat State Senator Gerald Ortiz y Pino provides a means for both the Governor and the New Mexico Legislature to safe face and enact meaningful legislations during the Special Session. Specifically, the Special Session should enact a version of Senate Bill 16 that was proposed in this year’s 2024 legislative session and expand and fund Assisted Outpatient Treatment program and mandating that it be a mandatory program in judicial districts an include full funding.
POSTSCRIPT
On June 6, Governor Michelle Lujan Grisham’s Office outlined to the Court, Corrections and Justice Interim Committee five public-safety measures she wants legislators to address during the July 18 special session of the New Mexico legislature. The 5 measures can be summarized as follows:
The first measure would make changes to the state’s criminal competency law. This bill involves involuntary civil commitment for defendants charged with a serious violent offense, a felony involving the use of a firearm, or those defendants who have been found incompetent two or more times in the prior 12 months. Judges would be required to order district attorneys to consider filing for involuntary commitment, giving judges the ability to detain a defendant for up to seven days for the petition to be initiated. The intent is to prevent mentally incapacitated individuals from harming themselves or the public.
Supporters say there are far too many suspects who are arrested, deemed incompetent to stand trial, and then released back on the streets only to commit more crimes. It’s a bill designed to address in part the so-called “revolving door” where defendants are arrested only to be found incompetent to stand trial and then released. The legislation is intended to strengthen a 2016 law and a program originally signed into law by former Governor Susana Martinez that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. It involves a program called the “Assisted Outpatient Treatment” (AOT).
The second measure would broaden the definitions of danger to oneself and danger to others in New Mexico’s involuntary commitment statute that mandates involuntary treatment for people with mental illness. The bill would allow a judge to mandate out-patient treatment,. It would allow individuals, whether first responders, family members or community members who work with mentally ill individuals on the streets to request involuntary out-patient treatment.
There are 3 other measures that the Governor wants the Specials Session to enact apart from the two mental health proposals. All three of those measures are leftovers from the 2024 legislative session. The 3 additional measures proposed by the Governor are ones that cannot be consider as a having a real sense of urgency and for that reason alone she should withdraw those measures. All 3 should be handled in the regular session for the following reasons:
The third measure would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison is one that standing alone will not make that much of a difference. During the Governors tenure, the legislature has in fact increased felony criminal penalties upwards of 6 times.
The fourth measure would prohibit pedestrians from occupying highway medians, on-ramps and exit ramps is directed at the unhoused and panhandling in general and is an exercise in futility. Such laws are difficult to enforce and law enforcement needs to concentrate on far more serious crime. Albuquerque has enacted such an ordinance, as has other communities, and it goes unenforced as panhandlers and the unhoused continue to occupy medians and on ramps and as the ACLU is successfully challenge the laws in court as being unconstitutional.
The fifth measure would require law enforcement agencies to report certain monthly crime incident reports and ballistic information could likely be accomplished by executive orders and does not necessarily need legislation. Better cooperation between law enforcement is what is needed.