On July 17, Bernalillo County District Attorney Sam Bregman testified and gave an update on juvenile crime in Bernalillo County to the Courts, Corrections and Justice Interim Committee. The Committee is one of the most influential committees of the legislature and consists of 36 House and Senate members and meets year round and vets proposed legislation.
Bernalillo County District Attorney Sam Bregman gave very sobering insight into the extent of juvenile crime being committed within New Mexico’s most populated county. Bregman reports that an alarming 19 minors are confined in the Bernalillo County Detention Center on first-degree murder charges. According to Bregman, they are the failed products of a juvenile justice system that has taught them they can be arrested, prosecuted and face little to no consequences. Until the day they kill someone. And then it’s too late.
Bregman reported to the committee that in the past 18 months, the Bernalillo County District Attorney’s office has charged 20 juveniles with murder, 19 of whom are facing first-degree murder charges. He also said a total of 1,221, mostly felony cases involving juveniles, have been referred to his office, of which 319 involved a handgun. Bregman told legislators this:
“I can assure you that this was not the first time these 19 children committed a crime. But rather, it may be the first time there will be consequences for their behavior. And now, the consequences will likely be life in prison. We currently have, as of yesterday, 61 juveniles in the detention center in Bernalillo County. Half are charged with murder. More than 90% are charged with gun crimes. … There’s so many of these young people that end up committing violence that we’ve seen before in our system. … I can tell you overall that I believe the adult criminal justice system is starting to see some progress. … But juvenile crime is going in the absolute wrong direction.”
Bregman presented this scenario to the legislators to highlight the crisis in juvenile crime:
“Today, a 15-year-old can be driving around with his friends in a stolen car with 10 fentanyl pills and an AR-15. … [U]under the current system in Bernalillo County, the way it operates, that juvenile will face little to no consequences. They know you will not spend one single night in detention, you will likely be placed on probation, where there’s not even the requirement under probation that he continue his schooling or that he has a curfew. … [That child will likely continue criminal behavior with] little to no consequences. Not until, and only if, that child commits a crime where a firearm is discharged in the commission of a crime will he spend any time in detention.”
With an increase in the severity of juvenile crimes, the proliferation of firearms, and a short-staffed detention center in Bernalillo County that has to turn away holding minors that officers arrest, Bregman said many young offenders laugh when they are caught and say, “nothing’s going to happen to me.”
To emphasize his point, Bregman recounted that as recently as July 16, he was contacted by a law enforcement agent who detained 3 minors in a stolen car. The juveniles then ran, but were later apprehended. After finally being caught, Bregman said, “One of them was laughing.” Another wouldn’t give his name, and Bregman said the detention center “won’t even consider accepting the person because they don’t [give]… a name.” Bregman told lawmakers that the Bernalillo County Juvenile Detention Center on Second Street NW is so understaffed that officials turn away minors charged with serious crimes. When that happens, law enforcement has little choice but to take them home to their parents.
DA Bregman is former criminal defense attorney. He had harsh words for our juvenile justice system and told lawmakers this:
“[The] pendulum has swung so far, we can never have harsh consequences on children when they commit crimes. … [W]hat we’re left with is that, at the end of the day, they don’t see any consequences until, God forbid, they kill somebody. … I respectfully submit that waiting until that happens is simply too late.
I’m not into locking up children and throwing away the key. I don’t want to charge another child with first-degree murder. … The juvenile system does nothing. ‘Don’t commit another crime; don’t commit another crime.’ That’s what probation is right now. Well, you shouldn’t be committing one to begin with.”
A BROKEN JUVENILE CRIMINAL JUSTICE SYSTEM
Bregman told the Courts, Corrections and Justice interim committee that “The juvenile criminal justice system in New Mexico is broken. I do not say that lightly, nor do I cast blame on anyone or branch of government”. He said the flaws in the juvenile justice system center around laws that have not been updated since 1978. When asked if the current juvenile code is the biggest problem in the justice system, Bregman’s response was “[yes] because of the laws and how it all works right now.”
Bregman told lawmakers many minors escape punishment because the current juvenile code prevents law enforcement from holding a minor in custody. He said minors only face consequences when they commit a violent crime and that has got to change where they face consequences much earlier. Bregman explained it this way:
“It’s not actually until they pull the trigger in a crime that they are accepting them into the D-home [detention center]. … That’s just got to change. … I want to get these children when they first see the criminal justice system. … Get them the help they need, and get them an understanding that what they are doing is unacceptable. If we do that, maybe we are not going to see as many people indicted for first-degree murder at the age of 17.”
PUBLIC DEFENDER DISPUTES BREGMAN
Not at all surprising, the Law Offices of the Public Defender strongly disputed DA Bregman’s assessment the juvenile criminal justice system in New Mexico is broken. Dennica Torres, District Defender for the Law Offices of the Public Defender disputes that kids are not being held accountable and said recidivism in youth is low because they are given services rather than being locked up. Torrez told the Courts, Corrections and Justice interim committee this:
“I do not agree [with DA Bregan]. I think that everybody has to keep in mind that these are children, they’re not adults.”
The public defender’s office did tell legislators they’d like to see some revisions in the children’s code. Torres said one challenge, for example, is the fact that there is no competency facility for the youth in New Mexico. Torrez said this:
“We really need to funnel the money toward education and creating these services that the kids need. … If we can figure out core issues and address those issues, we focus more on the rehabilitation than the punishment, right?”
PROPOSED CHANGES TO THE CHILDRENS CODE
It was on June 11, 2024 that Bernalillo County District Attorney Sam Bregman began calling for reform of the state’s Children Code after APD arrested an 11-year-old boy for a series of violent crimes. APD said at the time the child is a member of a gang calling itself “the Kia Boys.” APD said the 11 year old and at least 3 others were caught on camera crashing into a convenience store and hopping over the counter to steal alcohol and cigarettes. Bregman said this:
“The law doesn’t provide any specific consequences for a judge to be able to hand out to an 11-year-old doing the kinds of things they’re doing. … And in fact, the law basically affirmatively says you can’t incarcerate an 11-year-old. … If there are super young like this 11-year-old alleged offender, then we will continue to be in uncharted territory. If they’re older, they’re 15 and over, we know how to handle those cases. It is a real concern under the children’s code, what we can what we can’t do at the District Attorney’s office, and we’re doing everything possible to focus on the safety of our community, but also the wellbeing of an 11-year-old. … I’m not someone who’s advocating out there throwing the book and throwing the key away on 11-year-olds. But I am saying we have to have some more tools in the toolbox.”
Bregman is asking the New Mexico Legislature to revise the state’s Children’s Code during the upcoming 2025 regular session which is a 60 day session that begins on January 21 and ends on March 22, 2025.
DA Bregman told the Courts, Corrections and Justice Interim Committee of the major changes he’d like to see to the juvenile justice system. One major change is expanding the definition of “serious youthful offender” so more types of crimes could lead to children being tried as adults. Bregman supports expanding the types of offenses for which a juvenile over 15 can be charged as an adult. Right now, that can only happen for first-degree murder. He wants to include crimes like armed robbery with a firearm, and child abuse resulting in death. He’d also like to fix a law that currently allows a teenager to wield an assault rifle, though handguns are still illegal.
Other proposals Bregman is promoting include transferring a child to an adult detention center when they turn 18, unsealing more juvenile records, lengthening supervision of youthful offenders from 21 to 25, and including more firearms like rifles in the law banning from people under 19 from having a gun on them. Bregman said this about his proposed changes:
“I’m not talking about throwing the key away on children. I’m talking about at an early age, showing them some consequence for bad behavior, criminal behaviors, so that they don’t end up facing life in prison because I’ve indicted them for first-degree murder.”
Bregman said of the changes that it’s just not about being tough, but it’s about stopping children from living a life of crime before they kill someone and he said this:
“It’s not that I want to get tough on kids and throw away the key. No, I want to have some consequences just like every one of you had with your parents when you were growing up, ‘If you do this, there’s going to be a consequence.”
The public defender’s office disagrees with the change on expanding the definition of “serious youthful offender” so more types of crimes could lead to kids being tried as adults. The Public Defender argues that’s what grand juries and preliminary examination hearings are for. District Public Defender Dennica Torres put it this way:
“Removing that mechanism and just saying they are accused of first-degree homicide, we’re going to automatically route them to downtown court, adult court is not, they’re taking away protections from them. They have that right to be presented to the grand jury as well.”
District Public Defender Dennica Torres responded to the proposed changes saying this way:
“DA Bregman was thoughtful with these proposed changes and I know that he would welcome all criminal justice partners to come to the table and work together. That’s all we ask.”
Links to relied upon and quoted news sources are here:
https://www.koat.com/article/new-mexico-crime-juvenile-bernalillo-county/61629156
https://www.kob.com/new-mexico/da-sam-bregman-urges-lawmakers-to-reform-juvenile-justice-system/
https://news.yahoo.com/news/bernalillo-county-da-calls-youth-233400526.html
CHILDRENS’S COURT
A Children’s Court is established in each of the 13 Judicial Districts in the state with the Children’s code establishing Court’s known as the Children’s Court. The Children’s Court jurisdiction is not exclusive to criminal charges filed against a child. The court has exclusive original jurisdiction of all proceedings under the Children’s Code in which a person is 18 years of age or older and was a child at the time the alleged act in question was committed or is a child alleged to be:
- A delinquent child;
- A child of a family in need of court-ordered services or a child in need of services.
- A neglected child;
- An abused child;
- A child subject to adoption; or
- A child subject to placement for a developmental disability or a mental disorder.
- The court has exclusive original jurisdiction to emancipate a minor.
PURPOSE OF CHILDREN’S CODE
State law establishes the purpose of the Children’s Code to be as follows:
- “ To provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children’s Code and then to preserve the unity of the family whenever possible. A child’s health and safety shall be the paramount concern. Permanent separation of a child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit;
- To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced;
- To provide a continuum of services for children and their families, from prevention to treatment, considering whenever possible prevention, diversion and early intervention, particularly in the schools;
- To provide children with services that are sensitive to their cultural needs;
- To reduce overrepresentation of minority children and families in the juvenile justice, family services and abuse and neglect systems through early intervention, linkages to community support services and the elimination of discrimination;
- To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of a child victim; and
- To provide continuity for children and families appearing before the children’s court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family.”
CATEGORIES OF CHILD OFFENDERS AND CRIMES
The Children’s code defines an “adult” as a person who is 18 years of age or older and defines a “child” as person who is less than 18 years old and the Children’s Code deals exclusively with the prosecution those who are less than 18 years of age. There is a sperate and distinct legal process from what is done for adults under the Children’s Code to charge a child with crimes.
Petitions are filed charging a child as a “Deliquent Offender” and in need of supervision and once adjudicated delinquent by the court, the child is placed on probation with terms and conditions imposed and enforced by probation authorities.
Petitions or complaints are filed charging a child as “Youthful Offender” or “Serious Youthful Offender” and in such cases the child is afforded all the rights of an adult including representation by and attorney, due process of law and a jury trial with rights of an appeal.
In all cases begun pursuant to the provisions of the Children’s Code, when a child is taken into custody, the child must be released to the child’s parent, guardian or custodian and a child subject to the provisions of the Children’s Code is entitled to the same basic rights as an adult. Arrests of a child are also handled differently as is incarceration.
Children charged with a crime are divided into 3 distinct categories under the Children’s Code according to the crimes committed. Those categories are Delinquent Offender, a Youthful Offender and a Serious Youthful offender.
A “Delinquent Offender” is a delinquent child who has committed a delinquent act and who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender.
A “Delinquent Act” is defined as an act committed by a child that would be designated as a crime under the law if committed by an adult, not including the crime of prostitution (Section 30-9-2 NMSA 1978), and includes the following:
(1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code [66-1-1 NMSA 1978]:
- driving while under the influence of intoxicating liquor or drugs;
- failure to stop in the event of an accident causing death, personal injury or damage to property;
- unlawful taking of a vehicle or motor vehicle;
- receiving or transferring of a stolen vehicle or motor vehicle;
- homicide by vehicle;
- injuring or tampering with a vehicle;
- altering or changing of an engine number or other vehicle identification numbers;
- altering or forging of a driver’s license or permit or any making of a fictitious license or permit;
- (eckless driving;
- driving with a suspended or revoked license; or
- an offense punishable as a felony;
(2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child’s parent, guardian, custodian or adult spouse. … .
(3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;
(4) a violation of the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978];
(5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;
(6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property;
(7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act [Chapter 40, Article 13 NMSA 1978]; or
(8) trafficking cannabis as provided in Section 26-2C-28 NMSA 1978;
(See 32A-2-3. Definitions, Delinquency Act )
A “Youthful Offender” is defined as a delinquent child subject to adult or juvenile sanctions who is 14 to 18 years of age at the time of the offense and who is adjudicated as committing at least one of the following offenses:
- second degree murder, as provided in Section 30-2-1 NMSA 1978;
- assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;
- kidnapping, as provided in Section 30-4-1 NMSA 1978;
- aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;
- aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;
- aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;
- shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;
- dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;
- criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;
- robbery, as provided in Section 30-16-2 NMSA 1978;
- aggravated burglary, as provided in Section 30-16-4 NMSA 1978;
- aggravated arson, as provided in Section 30-17-6 NMSA 1978; or
- abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;
(See 32A-2-3. Definitions, Delinquency Act )
A “Serious Youthful Offender” is a child 15 to 18 years of age who is charged with and indicted or bound over for trial for first degree murder. Note that there are no other crimes other than first degree murder and the child is sentenced as an adult for the crime.
(See 32A-2-3. Definitions, Delinquency Act )
THE DELINQUENCY ACT
The Delinquency Act is part of the Children’s Code. A child subject to the provisions of the Delinquency Act is entitled to the same basic legal rights as an adult. According to the Delinquency Act, its purposes are:
- Consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child’s age, education, mental and physical condition, background and all other relevant factors, and to provide a program of supervision, care and rehabilitation, including rehabilitative restitution by the child to the victims of the child’s delinquent act to the extent that the child is reasonably able to do so
- To provide effective deterrents to acts of juvenile delinquency, including an emphasis on community-based alternatives;
- To strengthen families and to successfully reintegrate children into homes and communities;
- To foster and encourage collaboration between government agencies and communities with regard to juvenile justice policies and procedures;
- To develop juvenile justice policies and procedures that are supported by data;
- To develop objective risk assessment instruments to be used for admission to juvenile detention centers;
- To encourage efficient processing of cases;
- To develop community-based alternatives to detention;
- To eliminate or reduce disparities based upon race or gender;
- To improve conditions of confinement in juvenile detention centers; and
- To achieve reductions in the number of warrants issued, the number of probation violations and the number of youth awaiting placements.
Ultimately, a District Court Judge has the discretion to impose some confinement or juvenile sanctions on a youthful offender, but the court only has jurisdiction over the child until he reaches the age of 18. The children’s court attorney must give notice of intent to invoke and seek an adult sentence. A preliminary hearing by the court or a hearing before a grand jury must be held after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.
The link to review the entire children’s code is here:
JUVENILE CRIME
Crime within the juvenile population has been the subject of recent news reports where it is being said crime among the juvenile population is rising. However, the data that is available doesn’t paint a clear picture one way or another. From 2018 through 2022, there was a steady DECLINE in the number of children referred to juvenile justice services. 80% of those each year were delinquent referrals, meaning it was a crime committed under the law if committed by an adult.
While the trend of juvenile referrals has fallen, so have the number of referrals for detention. In 2018, there were 3,012 children referred for detention. That number fell to 1,185 in 2022. But that doesn’t paint the whole picture. While the total number of referrals has fallen, the percentage of referrals approved for detention has risen.
Despite the downward trend of juvenile justice referrals, crime amongst juveniles was a focus of the governor following the issuance of the public health order in 2023. Since Sept. 2023, 160 juveniles have been detained where a gun was present. Each month since the governor’s directed focus on juvenile crime, the number of juveniles detained has fallen.
The link to the quoted news source is here:
https://www.koat.com/article/new-mexico-crime-stats-town-hall/6051353
PARENTAL RESPONSIBILITY LAWS
Parental responsibility laws are designed to hold parents legally accountable for the actions of their minors. These laws are predicated on the belief that parents have a legal and moral obligation to ensure that their children do not engage in behavior harmful to society.
The Delinquency Act part of the Children’s Code has two separate parental responsibility provisions:
Section 32A-2-27 of the Delinquency Act, entitled “Injury to person or destruction of property; liability; costs and attorney fees; restitution”, and provides as follows:
A. Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action in a court or tribunal of competent jurisdiction from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person or damaged, destroyed or deprived use of property, real or personal, belonging to the person bringing the action.
B. Recovery of damages under this section is limited to the actual damages proved in the action, not to exceed four thousand dollars ($4,000) taxable court costs and, in the discretion of the court, reasonable attorney fees to be fixed by the court or tribunal.
C. Nothing contained in this section limits the discretion of the court to issue an order requiring damages or restitution to be paid by the child when the child has been found to be within the provisions of the Delinquency Act.
D. Nothing contained in this section shall be construed so as to impute liability to any foster parent.
https://law.justia.com/codes/new-mexico/chapter-32a/article-2/section-32a-2-27/
Section 32A-2-28 of the Delinquency Act, entitled “Parental Responsibility” states as follows:
A. In any complaint alleging delinquency, a parent of the child alleged to be delinquent may be made a party in the petition. If a parent is made a party and if a child is adjudicated a delinquent, the court may order the parent or parents to submit to counseling, participate in any probation or other treatment program ordered by the court and, if the child is committed for institutionalization, participate in any institutional treatment or counseling program including attendance at the site of the institution. The court shall order the parent to support the child committed for institutionalization by paying the reasonable costs of support, maintenance and treatment of the child that the parent is financially able to pay. The court may use the child support guidelines set forth in Section 40-4-11.1NMSA 1978 to calculate a reasonable payment.
B. If a fine is imposed against a child by a court of this state, the parent of the child is not liable to pay the fine.
C. The court may enforce any of its orders issued pursuant to this section by use of its contempt power.
https://www.mwl-law.com/wp-content/uploads/2018/02/PARENTAL-
COMMENTARY AND ANALYSIS
It is very disappointing that Bernalillo County District Attorney Sam Bregman would declare “The juvenile criminal justice system in New Mexico is broken.” His conclusion is understandable and no doubt out of frustration given the uptick in the serious violent crimes children are committing. Simply put, New Mexico’s children are committing more and more violent crimes and where guns are involved, but this does not mean the juvenile system is broken. The state’s Children Code and our Juvenile Criminal Justice System has not kept up with changing times to deal with what now can only be considered a crisis. Part of the problem is just how complicated the children’s code really is and its application.
It is very clear that the primary emphasis and purpose of the Children’s Code is not punishment in the form of confinement of child for crimes committed but on rehabilitation, services, counseling and social services with the goal of keeping the family unit intact and what is in the best interest of the child. Such an approach is wise whenever you are dealing with delinquency types of cases and children of tender age.
Under the children’s code there is no mandatory sentencing and confinement when delinquency is found and when it does happen it can only be up and until the child reaches 18. However, things do get very complicated when gun violence is involved and when it comes to sentencing a child as an adult when charges are brought against the child as a “youthful offender” or “serious youthful offender.”
DA Bregman’s proposals to expand the definition of “serious youthful offender” so more types of crimes could lead to children being tried as adults is reasonable. The legislature should expand the types of offenses for which a juvenile over 15 can be charged as an adult. Right now, that can only happen for first-degree murder. What should be included are all violent crimes involving a weapon and should include the crimes of aggravated assault, aggravated battery armed robbery with a firearm, and child abuse resulting in death. The legislature should also fix the law that currently allows a teenager to wield an assault rifle, though handguns are still illegal.
ENFORCE PARENT RESPONSIBILITY STATUTES
The District Attorney should take full advantage of New Mexico’s Parental Responsibility Act. In any complaint alleging delinquency the parent of the child alleged to be delinquent should be made a party in the petition filed by the state. As provided by the statute, if a child is adjudicated a delinquent, the court should order the parent or parents to submit to counseling, participate in any probation or other treatment program ordered by the court. Where the the child is committed for institutionalization, the parent or guardians should be ordered to participate in any institutional treatment or counseling program including attendance at the site of the institution.
Another option that should be considered by the legislature is increasing the amount of damages a victim may recover from the parent of a delinquent for damages from $4,000 to at least $15,000, or all actual or provable damages. Further, such recovery actions for monetary damages against a parent or guardian should be made mandatory and not be discretionary with the filing any Petition for Delinquency
The message must be sent loud and clear to both children and their parents that if a child commits crimes, there will be consequences were both the child and the parent will be held responsible.