On August 25, it was reported that that the New Mexico court system is launching 4 pilot programs in the state intended to divert people with serious mental illness into treatment who otherwise would face prosecution for minor crimes. The pilot programs will be implemented by the Administrative Office of the Courts and initially will address only people charged with misdemeanor crimes. Candidates for the program are people who previously have had criminal charges dismissed because they were found incompetent to stand trial.
New Mexico Supreme Court Justice Briana Zamora is the chairperson of a court-affiliated working group responsible for proposed legislation that would give judges more options in cases where criminal defendants are deemed incompetent to stand trial. The working group was created 2 years ago. It is made up of various city officials, law enforcement officers, mental health advocates and attorneys. Zamora is a former Albuquerque Metro Court Judge.
Justice Zamora said this:
“This is the first time we’re doing anything with this group of individuals [ who are criminal defendants with severe mental illness]. … It will be challenging because they are high need. … But just being complacent and doing nothing is no longer an option. … My hope is that we create a court-based program to provide individuals the services and behavioral health treatment they need. … And as a result, we reduce recidivism.”
A pilot program was launched on August 16 in the 4th Judicial District in Las Vegas to serve people charged with misdemeanor crimes in San Miguel County Magistrate Court. The 3rd Judicial District in Las Cruces started a similar program 6 months ago. Two additional pilot programs are slated for the 12th Judicial District, serving Otero and Lincoln counties, and a fourth site in the 1st Judicial District in Santa Fe.
Jail personnel will perform an initial screening to determine if the person is severely mentally ill. If all parties agree that a criminal defendant is eligible for the voluntary program, a licensed professional will perform an evaluation to determine the person’s needs.
Needs may include behavioral health treatments and support services, such as housing, food and transportation. The person then is assigned a navigator to devise a treatment plan. The courts have contracts with behavioral health providers to perform evaluations and provide treatments.
Chief Public Defender Bennett Baur said that done correctly, a diversion program for people with severe mental health problems could save money because arresting, prosecuting and incarcerating people is costly. Baur said this about the diversion programs:
“If we see that it’s successful, then we could expand it to possibly nonviolent felonies. … But you want to see whether it works, and you have to build trust and cooperation and then expand from there.”
COURTS, CORRECTIONS AND JUSTICE INTERIM COMMITTEE
It was on August 13 that Justice Briana Zamora testified before the New Mexico Legislature’s Courts, Corrections and Justice Interim Committee on the state’s mental health competency laws as they relate to criminal defendants. The Committee is one of the most influential committees of the legislature and consists of 32 House and Senate members and meets year-round and vets proposed legislation.
Justice Zamora presented a bill drafted that could be debated by lawmakers during the 60-day legislative session that starts on January 21 and ends on March 22, 2025. The bill takes a different approach to criminal competency than the bills backed by Governor Michelle Lujan Grisham that would have required temporarily detaining of criminal defendants who are deemed to be incompetent to stand trial in certain felony cases, so that mandatory treatment orders could be prepared. The Governor’s bills were introduced during the July 18 Special Session she called on public safety, but lawmakers refused to take up and debate any of the proposals during the special session.
The new legislation crafted would allow judges to assign non-violent criminal defendants to outpatient or residential diversion programs, where they could get treatment and counseling for mental health issues or substance abuse treatment. While few such programs exist or are being implemented, a larger-scale effort would require new programs be established in a state already struggling to fill vacant social work and counseling positions.
One problem identified with the proposed legislation is that the changes to the state’s competency laws being proposed will not, on their own, bring about a quick fix. Justice Zamora told the Courts, Corrections and Justice Interim Committee this:
“The statute alone will not be sufficient. …This [legislation] will lay the groundwork to create programs.”
GOVERNOR PROMOTES REFORMS TO THE CRIMINAL COMPETENCY
It was on April 17 that Gov. Michelle Lujan Grisham announced she was calling state legislators into a Special Session on July 18 to focus on addressing public safety proposals. There were two major bills the Governor proposed on mental competency she wanted the legislature to enact during the special session.
The first measure would have made changes to the state’s criminal competency law. This bill involved involuntary civil commitment for criminal 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 have been required to order district attorneys to consider filing “involuntary commitment” proceedings and giving judges the ability to detain a defendant for up to seven days for the petition to be initiated and then mandate long term mental health care. The intent was to prevent mentally incapacitated individuals from harming themselves or the public and simply being released.
Supporters say there are far too many suspects who are arrested, deemed incompetent to stand trial, and then simply 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 and who never go on trial for criminal charges. The legislation was 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 have broadened 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.
During the 3 months before the session, the Court, Corrections and Justice Interim Committee conducted a number of extensive day long hearings on the legislation with the Governor’s Office making presentations and stake holders offering research and analysis. At one point the Governor withdrew legislation and offered substitute legislation.
On July 18 lawmakers started and ended the session without considering the governor’s measure but appropriated $3 million to support competency diversion pilot programs.
SUBSTITUTE BILL ANNOUNCED
On June 26 a substitute proposal was presented to the Court, Corrections and Justice Interim Committee interim legislative committee that would broaden eligibility for someone who could be ordered by a judge into involuntary mental health treatment. Governor Michelle Lujan Grisham’s office announced she scrapped the proposal to expand court-supervised outpatient treatment for people with mental illness for debate during the July 18 Special Session. The bill the governor withdrew was 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. It would have required each of the state’s 13 judicial districts to create a program called Assisted Outpatient Treatment overseen by a civil court judge.
The Governor was proposing to broaden eligibility for involuntary commitment by tweaking definitions in existing law. The existing involuntary commitment law essentially limits commitment to people who are suicidal. The proposed change would broaden the definition of “harm to self” and “harm to others” to cover more people eligible for involuntary treatment.
Under the new definition, “harm to self” would include a person unable “to exercise self-control, judgment and discretion in the conduct of the person’s daily responsibilities and social relations” or “to satisfy the person’s need for nourishment, personal or medical care,” housing and personal safety.
The proposed definition of “harm to others” would cover a person who “has inflicted, attempted to inflict or threatened to inflict serious bodily harm on another” or has taken actions that create “a substantial risk of serious bodily harm to another.” Harm to others could also apply to someone who has engaged in “extreme destruction of property” in the recent past.
ANALYSIS OF COMPETENCY LEGISLATION
On June 26, an analysis of the number of people released back into the community after being found incompetent to stand trial was provided to the Court, Corrections and Justice Interim Committee which held all day hearings for 4 days to consider all 5 of the Governors measures. The analysis was not completed and was unavailable when the competency bill legislation failed in the 2024 legislative session.
Major findings of the analysis are as follows:
- More than 3,200 people charged with crimes since 2017 in New Mexico have been released back to the community after being found incompetent to stand trial, according to an analysis that fueled Gov. Michelle Lujan Grisham’s call for a special session.
- More than 5,350 of the 16,045 dismissed charges were felonies, according to the analysis. The dismissals included those charged with first-degree murder, trafficking controlled substances, kidnapping, and abuse of a child, according to data of the state Administrative Office of the Courts.
- Other defendants charged with lesser crimes have been repeat offenders caught in a cycle of being charged and released only to be arrested again, charged, and let go after court-ordered evaluations showed they cannot participate in their defense and a judge ruled they were mentally incompetent to stand trial.
After seeing the analysis, Lujan Grisham called the number of criminal case dismissals “frankly, shocking.” The Governor said this:
“Some of these have been in court up to 40 times in a year. If we don’t interrupt that, the status quo that you see playing out in our communities every day will stay. … I’m trying to break that cycle [and] focus on the criminal competency loophole. … The notion that we would have 3,200-plus individuals reoffending for another year is more than I think any New Mexican should have to bear”.
COMMENTARY AND ANALYSIS
The New Mexico court system launching 4 pilot programs in 4 separate counties in the state to divert people with serious mental illness into treatment who otherwise would face prosecution for minor crimes is an excellent first start, but far more needs to be done. Warehousing the mentally ill, drug addicted or the unhoused who are mentally ill or drug addicted in jails for crimes committed is not the answer and does not address treatment nor is it much of a solution. The court’s must be looked to as part of the solution.
Governor Michelle Lujan Grisham and the legislature should strengthen and expand the state’s mental health commitment laws coupled with full funding for mental health facilities and the courts. The District Attorney’s Office and the Public Defender’s Office need to be made a part of the solution with the expansion of the state mental health commitment laws with mandatory filing of civil mental health commitments that go beyond the 3-day, 7-day and 30-day commitments that are already allowed by state law.
The 2025 legislature should enact the Governor’s proposal for the involuntary civil commitment of criminal defendants charged with a serious violent offense, a felony involving the use of a firearm, and those defendants who have also been found incompetent to stand trial two or more times in the prior 12 months. Judges should be required to order district attorneys to file “involuntary commitment” proceedings against criminal defendants who are found incompetent to stand trial and who would be released without further criminal prosecution for crimes committed.
The 2025 legislature should also enact the Governor’s proposed bill that will 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 should mandate District Attorneys to initiate involuntary civil commitments and allow judge to mandate out-patient treatment. It should 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.
The legislature during the 2025 regular session should seek to create a 14th Judicial District Court and specialty “Mental Health Treatment Court” functioning as outreach and treatment court for the drug addicted and the mentally ill in a mandatory hospital or counseling settings and not involving jail incarceration. The creation of a new 14th Judicial District Court designated as a Mental Health Court should have 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.
The Assisted Outpatient Treatment program should be consolidated with the Mental Health Court so as to achieve one singular court with statewide jurisdiction. The Administrative Offices of the Courts must play 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.
There is a major need for the construction and staffing of a mental health facilities or hospitals to provide the services needed to the mentally ill or drug addicted. As it stands now, there exists less than adequate facilities where patients can be referred to for civil mental health commitments and treatment.
In other words, there is nowhere for people to go or be placed to get the mental health and drug treatment needed. There is glaring need for a behavioral health hospital and drug rehabilitation treatment facilities. The Bernalillo County Behavioral Health Center and the Las Vegas Mental Health hospital could be expanded to accommodate court referrals and a new behavioral health facility could be constructed in Las Cruces to handle mental health commitments 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. Creation of a new court system must include funding for District Attorneys and Public Defenders with dedicated personnel resources for the filing and defending of civil mental health commitments as prescribed by law.
A statewide mental health court with mandatory civil commitments will get treatment to those who need it the most, help get the unhoused off the streets and help families with loved ones who resist any mental health treatment.
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