On January 25, in an effort at “bipartisanship”, Governor Michelle Lujan Grisham held a high-level news conference with top Democratic and Republican legislators.  She called upon them to support a wide range of “solutions” to deal with the state’s violent crime in the form of legislation she wants enacted during the 2023 legislative session.  She had  Albuquerque Police Chief Harold Medina and her newly appointed Bernalillo County District Attorney Sam Bregman attend the meeting for good measure and show.

The “public safety agenda” Governor Lujan Grisham  asked the legislators to enact includes stiffer criminal penalties for organized retail crime and a measure to ban the purchase and delivery of different types of semi-automatic firearms.  The top priorities the Governor outlined include:

• Enact Senate Bill 123 to establish “rebuttable presumption” for pretrial detention hearings in cases of defendants accused of certain violent crimes.
• Funnel additional $100 million to existing fund to support hiring and recruitment efforts for law enforcement agencies statewide.
• Close loophole on “straw” purchases of guns that end up in the hands of convicted felons.
• Make organized retail crime a specific offense punishable by felony charges when value of goods stolen exceeds certain threshold.
• Enact House Bill 9 that create criminal penalties for failing to keep firearms safely out of children’s reach.

Governor Lujan Grisham told legislators that previous communication breakdowns between different law enforcement agencies in Bernalillo County hampered efforts to crack down on crime.  However, she expressed optimism that those issues have been resolved with a new leadership team that includes new Bernalillo County Sheriff John Allen.  She also vowed to continue focusing on ways to reduce crime and she said this:

“It won’t always be easy and it won’t always be pretty, but we’re going to work together until we solve these issues.”

House Republican Minority Leader Ryan Lane, R-Aztec, was 1 of the only 3 House Republicans who attended the January 25 news conference. Lane said New Mexicans are tired of political posturing and he expressed a willingness to work with the governor on bills dealing with retail crime, pretrial detention and keeping guns out of felons’ hands.  Lane also  said Republicans would likely oppose other gun-related legislation. Lane said this:

“We believe strongly in the Second Amendment, so some of those are going to be challenging for us.”

NEW MEXICO’S HIGH CRIME

The backdrop to the Governor’s public safety agenda is New Mexico’s and Albuquerque’s high crime rates.  Every year, the Federal Bureau of Investigation (FBI) compiles data from police agencies across the nation.  The data from 2021,  with 2022  data yet to be released,  showed New Mexico had the nation’s second highest rate of total crimes against persons.

Links to quoted and relied upon news sources are here:

https://www.abqjournal.com/2567672/governor-calls-for-bipartisanship-step-by-step-approach-to-deal-with-nms-high-violent-crime-rate.html

https://apnews.com/article/new-mexico-state-government-michelle-lujan-grisham-albuquerque-crime-554450b5d88bd59a3e1f9c9259159cf3

The FBI  numbers  show New Mexico’s per-population kidnapping and abduction rate was the highest in the nation. New Mexico’s firearm ownership and fatality rate is among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp.

In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping.  Given New Mexico’s population, the state’s crime rate against persons per population is the second highest in the nation. FBI data shows for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons in 2021. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.

New Mexico law enforcement agencies reported nearly 25,500 instances of assault in 2021. That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before. Across New Mexico, police reported 193 homicides to the FBI in 2021. That’s 67 more than in 2020.  Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.

New Mexico isn’t at the top of the list in all crime categories. While New Mexico law enforcement reported 1,663 instances of sex offenses in 2021, 6  other states had higher rates of sex offenses per population. That includes states like Alaska, Utah, and Montana.

New Mexico law enforcement reported 822 kidnappings and abductions to the FBI in 2021. That puts New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.

The link to quoted news source material is here:

https://www.krqe.com/news/fbi-data-new-mexico-ranked-1st-in-nation-for-kidnapping/#:~:text=That%20includes%20crimes%20such%20as,in%202021%2C%20FBI%20data%20shows.

According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries.  This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.

ALBUQUERQUE AT FOREFRONT OF CRIME WAVE

Albuquerque is at the forefront of New Mexico’s high violent crime rate.  According to legislative data released, the city had about half of the state’s violent crime in 2022 but has just 25% or so of its total population.  The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.  In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 121 homicides, a historical high.  

It has been reported that there have been more APD police officer shootings in 2022 than during any other year before.  In 2022, there were 18 APD Police Officer involved shootings,10 of which were fatal.  In 2021 there were 10, four of which were fatal.

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft.  The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.

Links to quoted news sources are:

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

There are a number of the Governor’s public safety agenda proposals that will likely be absolute no starters.  That includes “rebuttable presumption” to keep defendants behind bars until trial and certain gun control laws.

REBUTABLE PRESUMPTION AND PRETRIAL DETENTION

Governor Michelle Lujan Grisham is for a second time  advocating major changes to the state’s  criminal justice pretrial detention system  in the form of enacting “rebuttable presumption” to make it easier to hold defendants accused of violent crimes until trial.  The legislation would create a “rebuttable presumption” of dangerousness for defendants charged with violent crimes and that they be held without bond pending trial.

District Attorneys throughout the state have argued the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. As crime rates increased judges were accused of allowing “catch and release of violent felons”.

Over the last 6 years, prosecutors, law enforcement and elected officials have repeatedly slammed  judges and the court system for letting out until trial those accused of violent felonies, particularly when they re-offend. Judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.

The aim of rebuttable presumption proposals is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime.  Opponents of rebuttable presumption say courts can already keep a defendant behind bars and that reputable presumption shifts the burden of proof to defendants and violates the basic constitutional right of presumption of innocence until proven guilty.

DA SAM BREGMAN SHOULD FIX HIS OWN OFFICE’S “PROCESS”

During the January 25 news conference, Governor appointed Bernalillo County District Attorney Sam Bregman for his part threw his support behind a bill proposed by Senator Linda Lopez and Representative Meredith Dixon, both Albuquerque Democrats, that would shift the burden in pretrial detention hearings from prosecutors to defense attorneys in certain types of cases, including murder and sexual abuse of children. This coming from former high-profile defense attorney Sam Bregman who for decades made a lucrative living defending defendants who were released pending trial, including one former APD police  SWAT officer who was charged with killing homeless camper James Boyd.

Bregman cited internal data from the 2nd Judicial District Attorney’s Office showing that about 21% of the roughly 2,845 defendants released after pretrial detention motions were denied under the current system since 2017 were charged with new offenses while their original case was still pending. Bregman said this:

“What we need to is not point the finger at judges, but fix the process.”

At least Governor appointed Bernalillo County District Attorney Sam Bregman is not pointing fingers at the courts as being the cause of our high crime rates which is something his predecessor Raúl Torrez did for the 6 years to embellish his reputation  so he could run for Attorney General.  District Attorney Sam Bregman would be wise to concentrate on fixing the “process” as he put it within his own office.

DA Bregman needs to deal with the “S… Show” left to him by his predecessor Raúl Torrez. It’s Bregman’s office now, given to him by the Governor,  and he needs to deal with its problems first before trying to “fix the process”. What Bregman did not point to is that the Bernalillo County District Attorneys’ Office has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. A report prepared by the Second Judicial District for the New Mexico Supreme Court showed in part how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to the high mistrial and acquittal rates.

As of November 21, 2022, according to the New Mexico State Government Sunshine Portal, the Bernalillo County District Attorney’s Office has a $30,350,800 million operating budget with an adjusted operating budget of $36,680,800 which includes all sources of financing including federal grants.  The office is budgeted for 337 full time positions. The office is suppose to employ 102 attorneys who are “at will” but only has  81 filled positions with 21 vacant positions.  The 255 other “classified” employees of the office consisting of paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance division personnel who can only be terminated for cause under the state personnel rules and regulations.  276 of the positions are “active” meaning filled. The office has an alarming 61 vacancies. The number of vacancies in the office is larger than most other District Attorney’s offices in the state.

The New Mexico legislature needs to do its “due diligence” during its hearings on the the budget for the Bernalillo County District attorneys office and confront District Attorney Sam Bregman and  get to the bottom of why there are so many vacancies and if the funding is appropriate.

https://www.kob.com/albuquerque-news/da-wants-nm-supreme-court-to-review-grand-jury-changes/5012558/?cat=500

LFC REPORT DISCREDITS REBUTABLE PRESUMPTION

Many legislators remain very skeptical of rebuttable presumption. Las Cruces area Democrat Senator Joseph, a highly respected and seasoned trial attorney and the Chairman of the influential Senate Judiciary Committee, said he believes the current system is largely working as intended under a 2016 bail reform constitutional amendment.  Cervantes described a rebuttable presumption  as a “unconstitutional shortcut.” Cervantes also attended the January 5  news conference and said not all of New Mexico is beset by crime.  He cited Sunland Park as one of the state’s safest communities and said this:

“We operate under the same laws as the rest of the state, and we have entirely different outcomes.”

It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for  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 said  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 that rebuttable presumption does not.

The LFC memo states in pertinent part:

“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.

…
“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.”

The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:

“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.

CHIEF JUSTICE URGES LAWMAKERS TO BALANCE PUBLIC SAFETY WITH RIGHTS OF THE ACCUSED

On January 25, New Mexico Supreme Court Justice Shannon Bacon cautioned the legislators  on the need to balance the rights of accused persons while protecting the public safety. She noted New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely abolished the system of money bail bonds. She said the old bond system resulted in most criminal defendants being free until trial.

Justice Bacon said told legislators this:

“We all feel deep sorrow and fear when we read about a senseless death and other tragedies as a result of crime, … Yet we must remember why our Constitution protects the rights of every person, including those accused of crime. … With the elimination of money bail, judges now have the ability to assess dangerousness. … In Bernalillo County, this has resulted in the detention of over 3,000 defendants pending trial – something that could not happen before with the bail bond system.”

https://www.abqjournal.com/2567402/chief-justice-tells-lawmakers-to-balance-public-safety-with-rights-of-the-accused.html

GUN CONTROL MEASURES SUPPORTED BY GOVERNOR

No legislation generates heated discussion by the legislature more than gun control legislation.  Republican lawmakers strenuously oppose any and all gun control bills.

Governor Lujan Grisham announced in her January 17 “State of the State” address she is supporting enactment of gun control measures.  She has announced support of the following 4-gun control measures in this year’s 2023  sixty  day legislative session:

• Banning the sale of AR-15-style rifles.
• Allowing crime victims to sue gun manufacturers.
• Making it a crime to fail to properly secure a firearm that’s accessible to an unsupervised minor.
• Closing a loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.

GUN CONTROL BILLS INTRODUCED

Lawmakers were allowed to prefile legislation starting January 3 for the 60-day legislative session, which got underway on January 17. Unlike the shorter 30-day sessions held during even-numbered years, bills dealing with any type of subject issue can be proposed without approval from the governor during the longer 60-day sessions.  Thus far the following 6 measures have been introduced:

House Bill 9: Create the crime of negligently making a firearm accessible to a minor.

House Bill 50: Prohibit magazines with more than 10 rounds.

House Bill 72: Prohibit possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.

House Bill 100: Establish a 14-day waiting period for the purchase of a firearm.

House Bill 101: Prohibit possession of assault weapons – such as certain semiautomatic rifles and pistols – and magazines of 10 rounds or more.

Senate Bill 44: Prohibit carrying a firearm within 100 feet of a polling place during an election.

Senate Bill 116: Raise the minimum age to 21 for purchasing an automatic or semiautomatic firearm.

The links to quoted news source material are here:

https://www.abqjournal.com/2567672/governor-calls-for-bipartisanship-step-by-step-approach-to-deal-with-nms-high-violent-crime-rate.html

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

 ENACT “OMNIBUS VIOLENT  CRIME AND GUN CONTROL” ACT

The biggest problem with the Governor’s agenda to deal with crime as well as the legislation that has already been introduced is that it is a “piecemeal approach” which is essentially a vicious cycle of going around and around proposing the same solutions to address crime and getting nowhere fast.

What the Governor and the New Mexico Legislature should seriously consider is a more comprehensive approach to gun violence and  control and enact an “Omnibus Violent Crime And Gun Control Act”.  Such an act by enacting sweeping legislation to deal with gun control, gun violence and violent crime in the state.

The act would incorporate the legislation the Governor has endorsed with a very modified version of the “rebuttable presumption” standard without shifting the burden of proof to the defendant.  The legislature  should empower judges with far more  discretionary authority to hold and jail those pending trial who they feel pose a threat to the public.

ENHANCEMENT CRIMINAL SENTENCINGS

The following increases in enhancements should be included in the Omnibus Violent Crime And Gun Control Act:

1. Increase the firearm enhancement penalties provided for brandishing a firearm in the commission of a noncapital felony from 3 years to 10 years for a first offense and for a second or subsequent noncapital felony in which a firearm is brandished 12 years.
2. Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon, defined as an item or object used to inflict mortal or great bodily harm, in the commission of a noncapital felony with enhanced sentences of 5 years for a first offense and for second or subsequent noncapital felony in which a lethal weapon other than a firearm is brandished 8 years.
3. Enact legislation making it a 4th degree felony punishable up to 18 months in jail for failure to secure a firearm. Gun owners would have to keep their firearms in a locked container or otherwise make them inaccessible to anyone but the owner or other authorized users.
4. Increase the penalty of shooting randomly into a crowded area from a petty misdemeanor to a fourth-degree felony.
5. Allow firearms used in a drug crime to be charged as a separate crime.
6. Make organized retail crime a specific offense punishable by felony charges when value of goods stolen exceeds certain threshold.

GUN CONTROL LEGISLATION

The Omnibus Violent Crime And Gun Control Act should include the following gun control legislation:

1. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
2. Ban the sale of AR-15-style rifles in the state.
3. Prohibit the sale of gun magazines with more than 10 rounds. (House Bill 50)
4. Prohibit possession of assault weapons, such as certain semiautomatic rifles and pistols, and magazines of 10 rounds or more and making it a 4^th degree felony for the first offense and a 3^rd degree felony for a second offense.  (House Bill 10)
5. Prohibit possession of semiautomatic firearm converter that allows the weapon to fire more rapidly. (House Bill 72)
6. Prohibit carrying a firearm within 100 feet of a polling place during an election. (Senate Bill 44)
7. Establish a 14-day waiting period for the purchase of a firearm. (House Bill 100.)
8. Close the  loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.
9. Allow crime victims to sue gun manufacturers for damages.
10. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
11. Review additional bail bond reforms and statutorily empower judges with more discretionary authority to hold and jail those pending trial who have prior violent crime charges and reported incidents.
12. Institute mandatory extended waiting periods to a month for all sales and gun purchases.
13. Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
14. Ban the sale in New Mexico of “bump-fire stocks” and other accessories.
15. Provide more resources and treatment for people with mental illness.
16. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.
17. Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.

KEEPING FIREARMS OUT OF THE HANDS OF CHILDREN

Given the severe increase of murders of children at the hands of children, the Omnibus Violent Crime And Gun Control Act needs to include provisions directed at keeping firearms out of the hands of children and holding adults owner of guns responsible for their guns. Provisions that should be considered are as follows:

1. Currently, you must be at least 19 years old to legally possess a handgun in New Mexico and there is no minimum age to possess rifles and shotguns. Expand the age limitation of 19 to rifles and shotguns. (Senate Bill 116)
2. Currently, the unlawful possession of a handgun by someone under age 19 is a misdemeanor carrying a penalty of from 6 months to one year in jail. It should be classified as an aggravated fourth-degree felony mandating a 2-year minimum sentence.
3. Expand the prohibition of deadly weapons from a school campus to school zones.
4. The case of any juvenile arrested possession of a weapon and charged by law enforcement are to be referred the District Attorney for automatic prosecution.
5. Make it a felony, in certain circumstances, if a person recklessly stores a firearm and a minor gains access to it to threaten or harm someone. If a firearm is accessed by a minor and used in the commission of a crime resulting in great bodily harm or death, the person responsible for storing the firearm could be charged with an aggravated fourth-degree felony, carrying a 24 month prison sentence. If a firearm were accessed by a minor and used in the commission of a lesser crime, the person responsible for keeping or storing the firearm could have been charged with a 4th degree felony punishable by up to a 18 months in jail.
6. Mandate public school systems and higher education institutions to “harden” their facilities with more security doors, security windows, security measures, including metal detectors at single entrances designated and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers. Legislative funding needs to be provided to accomplish the requirement.

ADEAQUATE FUNDING FOR CRIMINAL JUSTICE SYSTEM

The Governor’s proposal to funnel additional $100 million to the  existing fund to support hiring and recruitment efforts for law enforcement agencies statewide is a good start as to law enforcement.  The Omnibus Violent Crime And Gun Control Act must also include adequate funding for the criminal justice system in general. This would include funding the District Attorney’s Office, the Public Defender’s Office, the Courts and the Corrections Department.

FINAL COMMENTARY

The Governor’s continued support of Rebuttable Presumption for pretrial detention in all likelihood is a real waste time and she needs to turn her attention elsewhere.  Her January 25 effort at bipartisanship came across as her saying to legislative leaders “pretty please” given how swiftly it was rejected last year.

The other legislative measures being supported by the Governor are first good steps in the right direction to help curb gun violence, but in all likelihood do not even come close to what is actually needed to have an impact on preventing gun violence.   A far more comprehensive approach is what is needed in the form of an Omnibus Violent Crime And Gun Control Act to deal with crime in New Mexico and funding.

The New Mexico minimum wage was last changed in 2008, when it was raised $5.50 from $6.50 to $12.00. Effective January 1, 2023 New Mexico’s state minimum wage rate is now $12.00 per hour. It was increased to $12 an hour under the final step-up mandated by a 2019 bill enacted by the New Mexico legislature.  New Mexico’s minimum wage  is greater than the Federal Minimum Wage of $7.25.  The minimum wage for tipped employees is $3.00 per hour. If the tips plus the hourly rate do not equal at least $12 per hour, the employer must make up the difference.

LOCAL MINIMUM WAGES

In recent years several cities and municipalities in New Mexico have established their own minimum wage rates. Here is a list of the current rates along with future increases:

• Albuquerque: $12.00,tipped wage is 7.20.
• Santa Fe: $12.95
• Santa Fe county: $12.95, tipped wage is 3.69
• Las Cruces: $12.00, tipped wage is 4.78

All New Mexico employers must display an approved New Mexico minimum wage poster in a prominent place to inform employees about the minimum wage and their worker’s rights under New Mexico labor law.

MIMIMUM WAGE EXEMPTIONS

New Mexico employers may not pay you under $12.00 per hour unless you or your occupation are specifically exempt from the minimum wage under state or federal law.

There are 3 major categories of exemptions:

1. FARM WORKERS, SEASONAL WORKERS, OTHER EXEMPT JOBS

The  Federal Fair Labor Standards Act (FLSA) has declared certain jobs, including farm workers, seasonal workers, newspaper deliverers, “informal” worker, such as  babysitters,  and a variety of others exempt from both state and federal minimum wage law.  These exemptions are intended to allow certain types of business to hire workers for temporary or high-volume positions that they otherwise could not afford to fill, thus helping the economy by creating more jobs.

2. TIPPED EMPLOYEES

Any worker who earns regular tips , specified as earning at least $30 in tips a month by the FLSA,  is eligible for a special tipped minimum wage rate. Employers are permitted to pay tipped employees an hourly cash wage of as little as $2.13 an hour,  however, if this wage and the tips earned during that hour do not add up to at least the applicable minimum wage, the employer must make up the difference in cash. Thus, tipped employees are guaranteed to earn at least minimum wage, and can earn more then minimum wage in tips.

3. MINORS AND YOUNG WORKERS

The “Youth Minimum Wage Program” allows young workers under the age of 20 to be paid a special minimum wage of $4.25 per hour for the first 90 days of employment with any employer. After the first 90 days have passed, or when the employee turns 20, whichever comes first, the employee must be given a raise to the full minimum wage. This exemption is designed to serve as a “training program” for young workers, although many workers and organizations see it as unnecessary and unfair.

Links to relied upon and quoted source material are here:

https://www.minimum-wage.org/new-mexico

https://www.minimum-wage.org/articles/minimum-wage-exemptions

BILLS INTRODUCED INCREASING NEW MEXICO MIMIMUM WAGE

There are two bills that have been introduced so far in the 2023 New Mexico legislature to once again increase New Mexico’s minimum wage.

HOUSE BILL 28

House Bill 28  is sponsored by Albuquerque area Democrat  Representative Miguel Garcia  would tie the minimum wage increases to the cost of living index as set forth by the US Labor Department’s Consumer Price Index.  It would require annual increases to the minimum wage tied to inflation.  Under an amended version of  Bill 28 the inflation-related adjustments would take effect every January, starting next year, and could boost the minimum wage to $15.55 per hour by 2034.   The indexing provision was initially included in the 2019 bill  but was removed as part of a final-hour compromise during the legislative session.

On January 23, a hearing was held by the House Labor, Veterans’ and Military Affairs Committee on Bill 23.  Representative  Garcia told the committee his bill was  “ a win-win solution for both our workers and our businesses. ” Garcia claimed it would benefit workers while also providing certainty for employers by avoiding big wage spikes mandated by lawmakers. After more than three hours of discussion, the  measure was approved on a party-line 7-4 vote.  The 7  Democratic committee members voted  in favor and the 4 Republicans voted  in opposition.

House Bill 28  now advances to its second assigned committee, the House Commerce and Economic Development Committee.

House Bill 25

On January 23,  a hearing was held on House Bill 25 by the House Labor, Veterans’ and Military Affairs Committee.  House Bill 25  is sponsored by Los Alamos area  Democrat Representative Christine Chandler.  It  would also tie hikes to the Consumer Price Index. It would first increase the current   $12 an hour minimum wage to $16 beginning next January 1st.

House Bill 25 is also  tied to  future increases to inflation  starting next year.  Chandler said the proposal was based on New Mexico cost-of-living data and aimed at updating the minimum wage amid a labor market that’s changed since the start of the COVID-19 pandemic. Chandler said during Tuesday’s hearing, while adding that ominous predictions about the impact of the 2019 legislation have not proven accurate. Chandler said that ominous predictions about the impact of the 2019 legislation have not proven accurate.

Representative  Christine Chandler  agreed to revise House Bill 25  after both Democrats and Republicans expressed concern about the size of the proposed jump to $16 an hour.  The $16 an hour wage   would have made New Mexico’s minimum wage among the nation’s highest. California is set to have the highest minimum wage in 2023 at $15.50 an hour.  Under the amended  House Bill 25, the minimum wage would jump to $13.50 per hour starting in 2024, then again to $15.50 an hour in 2025, with future increases tied to inflation.  House Bill 25 was not voted on by the House Labor, Veterans’ and Military Affairs Committee and remains in committee for future hearings.

Chandler said  the increase would be based on what is now considered a living wage in New Mexico.  Chandler said this:

“I think it’s a very reasonable bill. … A minimum wage bill for some reason, that perplexes me, seems to take on a life of its own. Battle lines are drawn that I think are unnecessary. I think we all have the same goal of wanting workers who work full-time, 40 hours a week to be able to pay for their basic necessities and I think that’s our goal and we’re towards getting that to happen and I think it will happen this year. … We have been trying to get workers to come into the state, so what we have done is create competitive advantage for the state of New Mexico and sent the message that this is a desirable place for people to come back”

https://www.ksfr.org/government/2023-01-12/nm-lawmakers-to-consider-minimum-wage-hike

https://www.kob.com/new-mexico/new-mexico-lawmaker-proposes-16-minimum-wage/

USUAL SUSPECTS OPPOSE AND SUPPORT

Not at all surprising, the New Mexico Chamber of Commerce is opposed to increasing the minimum wage.   Rob Black, president and CEO of the New Mexico Chamber of Commerce, believes drastically raising the state’s minimum wage will have negative consequences for the economy. He believes higher wages will force businesses to reevaluate how many employees they can afford as well as what kind of workers they hire. Black argues that businesses understand the pressure to increase wages, but said he is  hopeful state lawmakers will invite businesses leaders to the negotiating table. He says the best policies are often compromises both sides aren’t totally happy with. Black says many businesses are already struggling to keep up with the current increases. Chandler’s proposal would signal an overall $8 increase in just 5 years.

Black said this:

“It would really, really exacerbate youth unemployment. … If you raise that wage from $12 an hour to $16 an hour, they’re not going to hire the teenager who has no experience, they’re going to hire somebody else. That puts that teenager in a disadvantage going forward because their work experience now was pushed off for years. … Those employers that can restructure their business model will, those that can’t, won’t be able to, they’ll have to find cost-cutting other ways, or they won’t be able to continue to operate. … There’s a diversity of opinions from all perspectives. … I think there’s willingness to have that conversation, but $16 an hour is frankly a non-starter for the business community.”

The link to the quoted news source is here:

https://www.kob.com/new-mexico/new-mexico-lawmaker-proposes-16-minimum-wage/

Lobbyists from the New Mexico Chile Association, the New Mexico Restaurant Association and the state’s Cattle Growers’ Association all testified against the legislation, saying it would place an additional burden on employers and lead to higher prices for consumers.

Some of the comments in opposition to the legislation were emotional and highly personal.  George Gundrey, owner of the Tomasita’s restaurants in Santa Fe and Albuquerque, called the proposed  minimum wage increase an “attack on our family-owned businesses” that would ensure New Mexico remains a high-poverty state.

Republican lawmakers carried on a full throttle  attack on the legislation calling it misguided.   Clovis area Republican Representative Andrea Reeb said this:

“To me, this is actually a tax hike and it’s going to raise the cost of food.”

Labor union leaders and representatives from groups that advocate for workers and immigrants spoke in favor of the bills.  They describe  them as essential to ensure low-income workers and families can afford to pay their bills.

GOVERNOR “MUM” ON PASSAGE

In 2019, Democrat Governor Michelle Lujan Grisham signed the 2019 bill increasing New Mexico’s minimum wage from  $6.50 to $12.00 delivering on a 2018 campaign promise to increase the state’s minimum wage.  The Governor has not said whether she would support additional minimum wage hikes.  Last month the Governor’s spokeswoman said the Democratic governor would balance supporting workers with creating a “business-friendly climate” in the state.

https://www.abqjournal.com/2567498/minimum-wage-bills-spark-fierce-debate-ex-committe-advances-one-prop.html

https://www.kob.com/new-mexico/new-mexico-lawmaker-proposes-16-minimum-wage/

NEW MEXICO’S POVERTY RATE

In 2021, New Mexico  had a poverty rate in 2021 of 19.1%.  This is the third highest in the country and well above the national poverty rate of 13.4%, according to the U.S. Census Bureau. The rate is even higher for New Mexico’s children. 28% of children under age 5 live in poverty and 25% of children under age 18 live in poverty. The 2021 Kids Count Data Book for New Mexico shows that 76% of fourth graders and 79% of eighth graders are not proficient in reading, more than 25% of high school students do not graduate on time, and nearly 12% of teenagers are neither in school nor working. Among adults, 29% read at the level of a 5- to 7-year-old.

https://www.abqjournal.com/2518875/low-literacy-linked-to-new-mexicos-poverty.html#:~:text=A%20lack%20of%20education%20can,people%20with%20a%20bachelor’s%20degree.

MINIMUM WAGE VERSUS LIVING WAGE AND POVERTY LEVELS

“Minimum wages have been defined as ‘the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract’ ”.

https://www.ilo.org/global/topics/wages/minimum-wages/definition/WCMS_439072/lang–en/index.htm

A living wage is defined as follows:

“The remuneration received for a standard workweek by a worker in a particular place sufficient to afford a decent standard of living for the worker and her or his family. Elements of a decent standard of living include food, water, housing, education, health care, transportation, clothing, and other essential needs including provision for unexpected events.”

https://www.globallivingwage.org/about/what-is-a-living-wage/

The United Sates 2023 poverty guidelines  in effect as of January 19, 2023  for the 48 contiguous states and the District of Columbia  are as follows:

Persons in family/household                    Poverty guideline

       1                                                                    $14,580

       2                                                                     $19,720

       3                                                                     $24,860

       4                                                                     $30,000

       5                                                                    $35,140

       6                                                                     $40,280

       7                                                                      $45,420

       8                                                                      $50,560

The standard or universal work week for hourly paid employees is 8 hours a day, 5 days a week with 52 work weeks in a year for a total 2,080 hours of work a year.  To place New Mexico’s minimum wage in perspective, a person who  is the  sole wage earner for a family of 3 who is paid the $12.00 minimum wage an hour currently in New Mexico would therefore be paid $24,960 a year  or a mere $100 above the poverty level for a family of 3. This does not take into account inflation on goods and services, living costs for food and housing.

NEW MEXICO UNEMPLOYMENT RATE DROPS TO 3.9%

On January 24, 2023  the New Mexico Department of Workforce Solutions announced that New Mexico’s unemployment rate continues to drop.  According to data released by the department, New Mexico’s the unemployment rate came in at 3.9% in December.  This is a 15 year low and the lowest rate in 2022.  According to Workforce Solutions data,  the last time New Mexico’s unemployment rate stood at 3.9% was  in April 2008. New Mexico’s unemployment rate continues to trend closer to the national average, which was 3.5% last month and had tied for a 53-year low, according to federal data.

The state’s unemployment rate measures the percentage of the labor force that is unemployed and is actively applying for work.  The state’s unemployment rate  dropped each month or remained the same with the exception of October, when the rate had climbed to 4.3% from 4.2% the previous month. The Department of Workforce Solutions data shows December’s unemployment rate is a drop from 4.1% in November and from a high of 5.9% at the beginning of the year.

December’s unemployment number is very different from the rates in 2020  when unemployment had hit a record high during the onset of the COVID-19 pandemic.  Ostensibly that was caused the pandemic when many businesses were closed and people were force out of jobs. At the time, the unemployment rate had reached a high of 9.8% in May 2020.

According to the Department of Workforce Solutions, the  year over year data shows  that some sectors are recovering. Mining and logging  grew by 1,800 jobs. Manufacturing added 700 jobs year over year and construction added 2,500 jobs. Large increases have also come in education and health services.  In the last year, that sector grew by about 6,200 jobs, or 4.4%, the data shows. Leisure and hospitality also grew by about 5,000 jobs – a trend that held for much of last year.

“Non-seasonally adjusted rates for unemployment show that more dense counties which  include  Santa Fe, Doña Ana and Bernalillo,  tend to trend lower than in less populated counties.

Bernalillo County. …  had an unemployment rate of 3% last month, the data shows, while Santa Fe County dropped to 2.8%. Doña Ana County saw its unemployment rate drop from 4% in November to 3.7% in December.

In Eddy and Lea counties, where oil and gas drilling operations reign supreme, the unemployment rate stood at 2.5% and 3.7%, respectively.

Luna County had the highest unemployment rate in the state last month at 11.6%, an increase from 11.1% in November. The lowest rate was in Los Alamos County at 1.5%, according to the data.”

Governor Michelle Lujan Grisham for her par  called the unemployment rate a good sign for New Mexico.  She said this:

“It’s crystal clear — our economic investments are working and jobs are growing”. 

The link to quoted news source material is here:

https://www.abqjournal.com/2567415/new-mexicos-unemployment-rate-hits-lowest-level-since-april-2008.html

https://www.krqe.com/news/unemployment/unemployment-rate-in-new-mexico-drops/#:~:text=NEW%20MEXICO%20(KRQE)%20%E2%80%93%20New,of%20Workforce%20Solutions%20(NMDWS).

NEW MEXICO’S CHANGING WORKFORCE

Reilly White is an associate professor with the University of New Mexico’s Anderson School of Management.  Recently he was interviewed by the Albuquerque Journal and he said New Mexico’s  unemployment rate has followed the same trend as that seen at the national level, for the most part coming in lower each month.

White he said the “nature of the workforce is changing” in New Mexico.  He noted that there are fewer government workers compared to a decade ago and an increase in workers in other areas such as education. That drop in government workers, along with the loss of workers in other industries, coincides with New Mexico’s low labor force participation rate and which stood at 55.7% in December.  White said this about the drop in the state’s workforce numbers:

“This is due to a number of factors, especially increased retirements. …  Despite the oil boom bringing in record revenues to state coffers, employment in the cyclical mining and logging sector is 27% lower than at the end of 2014.”

Governor . Michelle Lujan Grisham called the unemployment rate a good sign for New Mexico.  She said this:

“It’s crystal clear — our economic investments are working and jobs are growing”. 

https://www.abqjournal.com/2567415/new-mexicos-unemployment-rate-hits-lowest-level-since-april-2008.html

COMMENTARY AND ANALYSIS

The New Mexico legislature and the business community needs to come to the realization that New Mexico’s workforce is changing dramatically. With that change must come changes and yes increases to the minimum wage in order to get the state’s  minimum wage to a “living wage” and to make the state competitive.

Simply put, the minimum wage was never meant to be a living wage. A living wage  should be the ultimate goal. Over the years, several attempts to tie the state’s minimum wage to the cost of living index have failed in the state legislature.  The result was that increases in the minimum wages never occurred for a decade and the minimum wage remained stagnant at a mere $7.50 an hour.

Over too many years, several attempts to tie the state’s minimum wage to the cost of living index have failed in the state legislature with Republicans resisting any and all efforts to increase the minimum wage.  Simply put, Republicans believe there should be no government mandated minimum wage and that market forces and profits should dictate the minimum wage.  Republicans  will never support increasing the minimum wage at any time no matter the business conditions.

A Democrat Core Value for decades on the National and State level, and in campaigning, has been to increase the minimum wage in order to make it a living wage.  Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 edge in the Senate and this year’s session is a 60 day session. Democrats would be damn fools not to increase the minimum wage while they have the distinct  advantage.  Tying increases of the minimum wage to cost of living increases is more than a reasonable approach.

Last year during the 2022 New Mexico Legislative session, the Voting Rights bill failed to be enacted by the Senate after passage in the House. It was a 30 day session.  Republican Senator William Sharer, R-Farmington, effectively killed the measure with a filibuster on the Senate floor. In order to run out the clock on the legislative session, Sharer talked about San Juan River fly-fishing, baseball rules, Navajo Code Talkers and the celestial alignment of the sun and moon during his lengthy filler buster on the Senate floor.

Last year’s bill would have done the following:

1.Established a permanent absentee voter list.

2.  Allowed voters to sign up once to receive absentee ballots for every general election, rather than having to apply for one each time.

3. Established a Native American voting rights act.

4. Directed counties to offer two secured, monitored drop boxes for absentee ballots.

5. Made it a crime to threaten or intimidate state and county election officials.

6. Restored the voting rights of people convicted of a felony upon release from incarceration, rather than after they’ve completed probation or parole.

7.  Allowed 16-year-olds to vote in school and city elections. (Later removed by amendment during the session.)

https://www.abqjournal.com/2471195/voting-bill-dies-as-30-day-session-comes-to-an-end.html

2023 VOTING RIGHTS ACT BILL

Democratic lawmakers have announced they intend to introduce a new Voting Rights Act  bill for the 2023 legislative session  and are expecting  to move it forward given that this year’s session is a 60 day session unlike last year’s  30 day 2022 session.  The bill is Senate Bill 180 sponsored by Albuquerque Area Democrat Senator Katy Duhigg, a former Albuquerque city clerk,  and Española areas Senator  Leo Jaramillo.

The new legislation removes some of the more controversial provisions from last year’s bill.  This year’s legislation would phase in automatic voter registration during Motor Vehicle Division transactions, allow voters to sign up only once to get absentee ballots before every election and restore the voting rights of felons when they leave custody rather than after they complete probation or parole.  The bill does not include allowing 16-year-olds to vote in school and city elections which caused intense debate last year and the filibuster that killed the bill.

Democratic leaders and sponsors of the legislation said the bill will  include the following:

     “1.  Phasing in a system of automatic voter registration, such as during MVD               transactions, for citizens who are qualified to vote but aren’t registered.                 Supporters say it would include an opt-out for those who don’t want to                    register, similar to what’s used in Colorado.

        2.  Creation of a permanent absentee voter list. Voters would have the option                of opting in to receive ballots by mail before every election rather than                    having to apply each time.

        3.  Establishing a Native American Voting Rights Act intended to better                         coordinate access to the polls on tribal land and allow the use of tribal                   buildings as a voter-registration address for people without a traditional                 address.

        4.  Automatic restoration of voting rights for inmates exiting prison. Under                  the current system, they must complete probation or parole before                          registering to vote again. There are 21 states that automatically restore                  voting rights after incarceration. Another 16, including  New Mexico,                       require someone convicted of a felony to complete their entire sentence,               including probation and parole, before registering to vote.”

        5. Calling for election day to be a state holiday.

PROTECTIONS FOR NATIVE AMERICAN VOTERS

Ahtza D. Chavez, executive director of NM Native Vote, said the bill includes specific provisions for Native American voters. Some of the “commonsense protections” in the bill include federally mandated language translations during early voting, the use of official tribal buildings as mailing addresses for people who don’t have traditional mailing addresses and “tribal input to accommodate tribal preferences” in redistricting.  Chavez said this:

“New Mexico has been a state since 1912, but our communities, our Native communities, were only granted the right to vote in 1948,” she said. “Native Americans face obstacles at every turn throughout the political process. This bill would increase voter participation and access across the state.”

LEGISLATIVE LEADERSHIP REACT

New Mexico  House Speaker Javier Martínez made it clear that  the protection of voting rights will be a priority. Martínez said this:

“As other states are rolling back voting rights and restricting access to the ballot box, New Mexico will continue to work hard to ensure that we remove unnecessary barriers so that all eligible voters can make their voices heard. … Our government works better when all people, no matter their walk of life, have a voice in who represents them.  [The  bill provisions are] critical to safeguarding our democracy.”

Democrat House Majority Leader Gail Chasey  called the legislation  a “game-changing piece of legislation.” Chasey said this:

“At its core, it modernizes our elections and empowers our voters, making it easier for thousands of New Mexicans to register and to vote. … There’s simply too much at stake for our state and for our country — from reproductive rights to climate change to social justice to our economy — to allow only a portion of our citizens to have a vote.”

Republicans for their part argued they were right to block last year’s voting bill.  However, they expressed willingness to pursue a bipartisan compromise on election security during this year’s legislative session .  Republican Senate Minority Leader Greg Baca said this:

“Election security and integrity are more important than ever, and we will continue to engage in good faith efforts to make needed changes to our Election Code. …  Last year, we followed the lead of our County Clerks and unanimously passed a bipartisan election bill out of the Senate that strengthened voter rights and improved election security. … Unfortunately, that consensus bill was hijacked and derailed in the House by the majority party.”

Democrat Secretary of State Maggie Toulouse Oliver who strenuously promoted last year’s legislation only to see it go down to defeat called this year’s proposal “a strong step forward for New Mexico.”  Toulouse Oliver said this:

“This legislation, I think, is even better because it has really been spearheaded and brought to life by the advocacy community [that wants] to continue to sort of pick up the ball and continue to move it forward on advancing voting rights here in New Mexico.”

The links to quoted news source material are here:  

https://www.santafenewmexican.com/news/local_news/advocacy-groups-resurrect-voting-rights-bill-with-backing-of-democrats/article_684c1094-9bf8-11ed-9083-33e6e9ca61ab.html

https://www.abqjournal.com/2567409/democrats-launch-new-campaign-for-nm-voting-rights-bill.html

https://www.kob.com/new-mexico/lawmakers-advocate-for-proposed-bill-to-expand-voting-rights-in-nm/

COMMENTARY AND ANALYSIS

Last year’s voting rights bill was sponsored by Albuquerque area Democrat Senator Katy Duhigg, a former Albuquerque city clerk in charge of elections, and Corrales Area Democrat Representative Daymon Ely, who is no longer in the house having retired. Governor Michelle Lujan Grisham and Secretary of State Maggie Toulouse Oliver had made passage of last year’s bill a huge priority because of election deniers only to see it go down in defeat as Republicans out maneuvered them.

Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 edge in the Senate and this year’s session is a 60 day session  so there should be ample time to get it enacted.  Contributing to the likely passage is that the most controversial provisions have now been removed including the removal of allowing 16-year-olds to vote in school and city elections.

The one provision in new Voting Rights Act which may prove to be problematic for both Democrats and Republicans alike is calling for election day to be a state holiday. This would require governments to shut down and no doubt place great pressures on the private sector to do the same.

On November 6, two days before the 2022 general election, it was reported that nearly 437,000 people had already cast their ballot or voted absentee in New Mexico. The Secretary of State’s Office said nearly 225,000 early votes came from Democrats, while 152,000 were Republicans.

https://www.krqe.com/news/politics-government/elections/november-6-a-look-at-new-mexicos-early-voting-numbers/

In the 2022 election,  the Secretary of State  reported that 91,104 absentee votes were cast, 353,479 in person votes were cast, with 101,980 election day votes cast with a total of 546,563 votes cast.

https://www.koat.com/article/new-mexico-election-voter-turnout-2022/41900142

Election day voting is no longer mandated.  New Mexico voters have become increasingly reliant on absentee voting and early day voting with two weeks allotted to vote any day before election day. Simply put, it is really not necessary to create another holiday. The proposed election day holiday should be scuttled so as not to jeopardize passage of the overall bill.

During the last 3 legislative sessions, New Mexico lawmakers have passed bills that addressed gun control.  The legislation has included expanding background check requirements for firearm purchases and passage of a “red flag” law that allows guns to be seized from individuals deemed to pose a threat to themselves or others.  More gun safety laws are expected to be introduce during the 2023 legislative session because of the spike in New Mexico firearm-related deaths.

The 2023 New Mexico legislative session is once again emerging as a banner year for more gun control legislation.  The proposed legislation ranges from banning the possession of AR-15-style rifles to requiring gun storage away from children. Other measures include banning firearms at polling places, a 14-day waiting period for all firearm purchases and the legal liability of gun manufacturers.

GOVERNOR LUJAN GRISHAM BACKED MEASURES

Before becoming Governor, Michelle Lujan Grisham was a strong advocate of gun control during her years in congress.   During her first term as Governor, Lujan Grisham pushed lawmakers to pass gun safety legislation.  She said through a spokeswoman she plans to continue that effort during the 2023 legislative session. Lujan Grisham spokeswoman Maddy Hayden said this:

“The governor will pursue a robust package of common-sense gun safety legislation in the upcoming session, the details of which will be decided in the coming weeks. … The governor is clear: New Mexicans are beyond sick and tired of crime, and gun violence continues to be a nationwide scourge that warrants immediate and outcomes-focused attention.”

Governor Lujan Grisham announced in her January 17 “State of the State” address she is supporting enactment of further gun control measures.  She has announced support of the following 4 gun control measures in this year’s 2023 60 day legislative session:

• Banning the sale of AR-15-style rifles.
• Allowing crime victims to sue gun manufacturers.
• Making it a crime to fail to properly secure a firearm that’s accessible to an unsupervised minor. Santa Fe Democrat State Representative Reena Szczepanski said this about the gun safety storage bill:

“Firearms have increased to become the leading cause of death for children. …This is a huge public health crisis now for children. …  [The safely storing firearms]  bill … is really geared at keeping children safe, keeping children safe in their homes, and really addressing responsible storage. …  I think we can do this in a way gun owners can support and that addresses safety.”

• Closing a loophole in state law to allow prosecution when a person buys a gun for a someone who isn’t legally able to make the purchase themselves, a transaction known as a straw purchase.

In her State of the State address, she told lawmakers this:

“We all know that we cannot keep our people safe, [we] can’t keep our police officers and their families safe if weapons of war continue to flood our neighborhoods.”

GUN BILLS INTRODUCED

Lawmakers were allowed to prefile legislation starting January 3 for the 60-day legislative session, which got underway on January 17. Unlike the shorter 30-day sessions held during even-numbered years, bills dealing with any type of subject issue can be proposed without approval from the governor during the longer 60-day sessions.  Thus far the following 6 measures have been introduced:

House Bill 9: Create the crime of negligently making a firearm accessible to a minor.

House Bill 50: Prohibit magazines with more than 10 rounds.

House Bill 72: Prohibit possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.

House Bill 100: Establish a 14-day waiting period for the purchase of a firearm.

House Bill 101: Prohibit possession of assault weapons – such as certain semiautomatic rifles and pistols – and magazines of 10 rounds or more.

Senate Bill 44: Prohibit carrying a firearm within 100 feet of a polling place during an election.

Senate Bill 116: Raise the minimum age to 21 for purchasing an automatic or semiautomatic firearm. Santa Fe Democrat State Representative Reena Szczepanski described the bill increasing the age to purchase an assault weapon as closing a loophole.  She said this:

“It’s basically closing a bit of a loophole, because right now the age to purchase other types of handguns, is 21.  And so we’re looking at just this incremental approach.”

FIREARM STORAGE BILL ADVANCES IN THE HOUSE

On January 25, House Bill 9, the bill making it a crime to negligently making a firearm accessible to a minor, was voted with a “Do Pass” recommendation in House Consumer and Public Affairs Committee on a 4 to 2 vote along party lines. 4 Democrats voted Yes and 2 Republicans voted NO. Under the law  criminal charges could only  be brought  if the minor later brandishes or displays the firearm in a threatening way or uses it to kill or injure someone.

Under House Bill 9, adult gun owners could not be charged, even if a minor gained access to their gun, under the follow circumstances:

1. If they’d stored the firearm in a secure container or other place a reasonable person would believe is secure
2. The firearm was locked and inoperable
3. A minor broke into the home or
4. The gun was used in self-defense.

Albuquerque area Representative  Pamelya Herndon, a co-sponsor of House Bill 9, said the bill has exemptions intended to protect good-faith efforts to safely store firearms.

For over 2 hours, the committee heard testimony from dozens of gun owners, law enforcement leaders and residents in support and in opposition to the legislation.

Democrat supporters of House Bill 9 said the proposal could save lives by ensuring that gun owners who are parents would take sufficient steps to ensure their guns are secured and that their children  would not have access to their parent’s gun.

Retired engineer Regina Griego, whose nephew shot and killed five family members in 2013, told the committee the bill could save lives by ensuring children  cannot take a parent’s gun. Grego told the committee:

“I’m convinced, without easy access to these firearms, my family members would be alive today.”

Vanessa Sawyer, the grandmother of Bennie Hargrove, who was shot and killed by another student who took his parent’s gun to school, also testified in favor of passage.

Republican opponents of House Bill 9 argued the law might leave gun owners without quick access to a firearm for self-defense. They also suggested firearms are being singled out inappropriately when knives, cars and other items also do tremendous harm.

Louie Sanchez, the owner of Calibers indoor shooting ranges, said the proposed legislation  is “misguided”.  Sanchez said this:

“We’re opposed to a punitive law. … There’s no substitute for education, and we all know that.”

House Bill 9 was  referred to the House Judiciary Committee were it will likely again receive a Do Pass recommendation and referred to  the full House of Representatives for a full vote. If it passes the House,  it will then be referred to the Senate where it will go through the Senate Committee process before a full Senate vote.

The link to the quoted news source is here:

https://www.abqjournal.com/2567439/firearm-storage-bill-advances-in-the-house.html

EXPECT HEATED OPPOSTION

As is the case in past legislative sessions on proposed gun measures, you can expect heated debate and organized opposition an all gun control legislation.

REPUBLICAN OPPOSITION

All the gun control legislation will face fierce opposition from Republican lawmakers and likely all New Mexico Sherriff’s.  Most New Mexico sheriffs strenuously opposed the 2021 “red flag” gun law bill advocated by Governor Michelle Lujan Grisham that allows law enforcement officers, contingent on a judge’s approval, to seize guns from individuals that are found to pose an immediate safety risk.  The Sheriffs falsely argued the law was “unconstitutional” and then politically retaliated against the Governor by supporting or endorsing her Republican opponent, Mark Ronchetti.

Sandia Park Republican Stefani Lord said Democrt sponsored gun safety proposals focus on a “tool” used to commit crimes, but not the issues that are driving the increase in New Mexico violent crime rates.  Lord said that it is drug addiction, mental illness and illicit firearm trafficking that need to be addressed.  Lord said this:

“I feel the gun bills they present are consistently going after responsible gun owners and are not addressing crime issues.  … On the Democrat side, they are constantly pushing to focus on just the tool, the tool that is used to commit a crime, and not the issues that are actually behind all the reasons that we have very high levels of crime. We are lacking severely on behavioral health and rehabilitation.  … I know that there’s some bills being drafted for mental health and for rehabilitation, for drug addiction, and maybe those will get through, or maybe we can actually work together. Because I feel if the Republicans and the Democrats could work together on some of these issues, we might actually do what is best for New Mexico.”

Republican State Representative Stefani Lord from Sandia Park relied on  the traditional Republican dogma argument the gun legislation will  turn law-abiding gun owners into felons just for having property they legally purchased. She said that would be the case with bans on AR-15-style rifles or magazines with more than 10 rounds.  Lord said this:

“The criminals are going to have access to whatever they want. … I’m trying to make sure that our legal gun owners still have a way to defend themselves, their home, their property, their livestock.”

Lord went so far to say that even some of the less expansive, reasonable  gun proposals are problematic.  She said a gun storage requirement might leave a woman without enough time to defend herself against a violent ex-husband. She said this:

“They need to be able to protect themselves.  … Especially in rural America, it takes a while for law enforcement officers to get there.”

Advocates for gun owners say the number of gun proposals this year is unusual.  Zac Fort of the New Mexico Shooting Sports Association said none of the legislation is an effective way to combat crime. Fort said this:

“We’re used to seeing a lot of bills  … but I think the severity of the bills has definitely increased this year. … We’re not able to hold criminals accountable right now. … I don’t think it’s a problem that we don’t have enough laws. I think it’s a problem of prosecution.”

DEMOCRAT SUPPORT

The New Mexicans to Prevent Gun Violence is backing the legislation the Governor is supporting.

Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence said she’s optimistic about significant legislation making it to the governor’s desk this year proclaiming the political environment has changed and that lawmakers have seen the impact of the bills they have already passed.  She also said the rise in violence amid the pandemic proves there’s more to be done. Viscoli said this:

“We’re realizing we passed some pretty good gun-violence prevention laws, … They’re working, and they’re not taking everybody’s guns away. … People are literally tired of the gun violence.”

Santa Fe Democrat State Representative Andrea Romero is sponsoring an assault weapon ban and waiting period for gun purchases. She said she’s seen the “tide change” at the Capitol in recent years. She said the massacre of children in Uvalde, Texas, last year was the tipping point for her that motivated her to propose new restrictions.  Romero told the Albuquerque Journal in an interview:

“These are really smart pieces of legislation. … We’re not just trying to take away guns.”

Albuquerque area Democrat Representative Pamelya Herndon has said she plans to again sponsor legislation to make it a crime for adults to fail to keep their firearms out of the reach of children.  Herdon’s legislation was the result  of  the 2021 killing of eighth-grader Bennie Hargrove at Jefferson Middle school. The legislation is supported by a group of Albuquerque students who have mobilized against gun violence.

Herndon’s legislation failed during the last session due to concerns about possible unintended consequences and she said changes to the legislation will be made to address critics concerns.  Critics argued the firearm storage bill would place responsible gun owners in jeopardy of facing criminal charge.  In response, Herndon said this:

“The purpose of the legislation is not to create another criminal penalty but the purpose of the legislation is to remind gun owners and firearm owners that you have a responsibility to keep those firearms safely secured if you decide to own one.  And when you are negligent in that responsibility there will be a penalty.  It is not the goal to just criminalize people, but we want them to be aware of their responsibilities if they intend to be gun owners.  … We addressed those and we need specific exclusions because we know people can’t be in control of all situations. Changes to the proposed law will include indemnifying adults whose guns are obtained by minors during robberies.”

NEW MEXICO GUN OWNERSHIP, GUN VIOLENCE EXAMINED

New Mexico’s firearm ownership and fatality rate is among the nation’s highest.  In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% percentage points higher than the national average according to the think tank Rand Corp.

According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries.  This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.

The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.  In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 115 homicides as of December 3, 2022.

It has also been reported that there have been more APD police officer shootings in 2022 than during any other year before.  In 2022, there were  18 APD Police Officer involved shootings,10 of which were fatal.  In 2021 there were 10, four of which were fatal.

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft.  The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.

Links to quoted news sources are:

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

ALBUQUERQUE JOURNAL GUN CONTROL POLL

From August 31 through to September 3, the Albquerquerqu Journal published a series of front-page articles of a poll conducted primarily for the 2022 midterm election.  One report covered the gun control measures.  On  September 4, the Journal published poll results on two-gun control proposals.  Both proposals received overwhelming bi partisan support.  The poll questions and results were as follows:

DO YOU SUPPORT OR OPPOSE LEGISLATION IN NEW MEXICO TO RAISE THE AGE FROM 18 TO 21 TO PURCHASE AN AR-15 STYLE SEMI-AUTOMATIC RIFLE?

Support: 72%

Oppose:  21%

It depends: 4%

Don’t know/won’t say: 2%

POLITICAL PARTY BREAKDOWN

Democrat Support: 85%, Democrat Opposition: 11%

Republican Support: 53%, Republican Opposition: 35%

DO YOU SUPPORT OR OPPOSE MAKING IT A CRIME IF A PERSON FAILS TO SAFELY SECURE A FIREARM FROM CHILDREN?

Support: 73%

Oppose: 14%

It depends: 10%

Don’t know/won’t say: 3%

POLITICAL PARTY BREAKDOWN

Democrat Support: 81%, Democrat Opposition:  9%

Republican Support: 61%, Republican Opposition: 22%

Other Party Support: 74%, Other Party Opposition: 10%

While Democratic voters were significantly more likely to support the gun control measures, a majority of Republican voters surveyed also expressed support for both proposals. A total of 61% of GOP voters surveyed support making it a crime to fail to store guns safely around children, while 53% of Republicans said they support raising the minimum age to purchase AR-15-style rifles.

COMMENTARY AND ANALYSIS

It is difficult to gage what effect, if any, the passage of “gun safety” measures will have on reducing gun violence and mass shootings.  More realistic proposals that will likely reduce gun violence would be federal laws banning the manufacturing, sale or distribution of AR-15 style semi-automatic rifles.  In the state, gun registration, banning large capacity gun magazines and types of ammunition and mandatory background checks and perhaps repealing the state’s open carry provision in its constitution may reduce gun violence.

ENACT “OMNIBUS GUN VIOLENCE AND GUN CONTROL” ACT

What the 2023 New Mexico Legislature should seriously consider is a more comprehensive approach to gun control and enact an “Omnibus Gun Violence And Gun Control Act”.  Such an act should include sweeping legislation to deal with gun control, gun violence and violent crime in the state.

ENHANCEMENT CRIMINAL SENTENCINGS

The following increases in enhancements should be included in the “Omnibus Gun Violence And Gun Control Act”:

1. Increase the firearm enhancement penalties provided for brandishing a firearm in the commission of a noncapital felony from 3 years to 10 years for a first offense and for a second or subsequent noncapital felony in which a firearm is brandished 12 years.
2. Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon, defined as an item or object used to inflict mortal or great bodily harm, in the commission of a noncapital felony with enhanced sentences of 5 years for a first offense and for second or subsequent noncapital felony in which a lethal weapon other than a firearm is brandished 8 years.
3. Enact legislation making it a 4th degree felony punishable up to 18 months in jail for failure to secure a firearm. Gun owners would have to keep their firearms in a locked container or otherwise make them inaccessible to anyone but the owner or other authorized users.
4. Increase the penalty of shooting randomly into a crowded area from a petty misdemeanor to a fourth-degree felony.
5. Allow firearms used in a drug crime to be charged separately.

GUN CONTROL LEGISLATION

The “Omnibus Gun Violence And Gun Control Act”  should include the following gun control legislation:

1. Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.
2. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
3. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
4. Review additional bail bond reforms and statutorily empower judges with more authority and more discretion to hold and jail those pending trial who have prior violent crime convictions.
5. Institute mandatory extended waiting periods to a month for all sales and gun purchases.
6. Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
7. Ban the sale in New Mexico of “bump-fire stocks” and other accessories.
8. Provide more resources and treatment for people with mental illness.
9. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.

KEEPING FIREARMS OUT OF THE HANDS OF CHILDREN

Given the severe increase of murders of children at the hands of children, the “Omnibus Gun Violence And Gun Control Act” needs to include provisions directed at keeping firearms out of the hands of children and holding adults owner of guns responsible for their guns. Provisions that should be considered are as follows:

1. Currently, you must be at least 19 years old to legally possess a handgun in New Mexico and there is no minimum age to possess rifles and shotguns. Expand the age limitation of 19 to rifles and shotguns,
2. Currently, the unlawful possession of a handgun by someone under age 19 is a misdemeanor carrying a penalty of from 6 months to one year in jail. It should be classified as an aggravated fourth-degree felony mandating a 2-year minimum sentence.
3. Expand the prohibition of deadly weapons from a school campus to school zones.
4. The case of any juvenile arrested possession of a weapon and charged by law enforcement are to be referred the District Attorney for automatic prosecution.
5. Make it a felony, in certain circumstances, if a person recklessly stores a firearm and a minor gains access to it to threaten or harm someone. If a firearm is accessed by a minor and used in the commission of a crime resulting in great bodily harm or death, the person responsible for storing the firearm could be charged with an aggravated fourth-degree felony, carrying a 24 month prison sentence. If a firearm were accessed by a minor and used in the commission of a lesser crime, the person responsible for keeping or storing the firearm could have been charged with a 4th degree felony punishable by up to a 18 months in jail.
6. Mandate public school systems and higher education institutions to “harden” their facilities with more security doors, security windows, security measures, including metal detectors at single entrances designated and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers. Legislative funding needs to be provided to accomplish the requirement.

FINAL COMMENTARY

All 7 of the legislative measures introduced in the 2023 New Mexico State Legislature in and of themselves are first good steps to help curb gun violence  but in all likelihood do not even come close to what is actually needed to have an impact on preventing gun violence.  A far more comprehensive approach is what is needed in the form of an “Omnibus Gun  Control Act”.

 

On February 26, 2021, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The 1969 state statute had not been enforced in the state due to the United States Supreme Court’s decision in Roe v Wade in the 1970s, which legalized abortion nationwide. The repeal of the 1969 law was necessitated by the fact the repeated attempts had been made over the years to have the United States Supreme Court reversed the decision of Roe v Wade.

On June 22, 2021 the United States Supreme Court released its decision in the case of Dobbs v. Jackson Women’s Health Organization wherein the Supreme Court  overruled and reversed the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and 50 years of constitutional law precedence ruling  that a woman does  not have constitutionally protected right to an abortion.  The US Supreme Court ruled the authority to regulate abortion was  returned to the individual states and their elected representatives.

As a direct result of the Supreme Court’s Dobb’s decision, abortion and woman’s reproductive rights became a defining issue in New Mexico’s 2022 Gubernatorial race between incumbent Democrat Governor Michelle Lujan Grisham and Republican Mark Ronchetti.  Republican Mark Ronchetti made abortion and imposing limits on a woman’s right to choose a center piece of his campaign and suggested a “reasonable policy” that proposed banning abortion after 15 weeks of gestation, with exceptions for rape, incest, and to preserve the life of the mother.  Ronchetti went so far to call for a constitutional amendment where voters would decide whether abortion should be illegal.

NEW MEXICO COUNTIES AND TOWNS TRY TO INTEFERE WITH WOMEN’S REPDUCTIVE RIGHTS

On November 4, 2022 it was reported that the City Commission of Clovis, New Mexico put off a vote on an ordinance designed to ban abortions within the New Mexico town fearing challenges to the move in a state where the procedure remains legal. Clovis was set to become the first town to pass a so-called “sanctuary city for the unborn”

https://www.reuters.com/world/us/new-mexico-town-delays-banning-abortion-2022-11-04/

On November 8, it was reported that the Hobbs City Commission unanimously passed an ordinance designed to ban abortions, despite the procedure being legal in the state. The so-called “sanctuary city for the unborn” ordinance blocks abortion clinics from operating.  At least one nearby county has approved an anti-abortion resolution.  The ordinance will surely be challenged in court and set aside.

https://www.reuters.com/world/us/new-mexico-city-passes-ordinance-block-abortion-clinics-operating-2022-11-08/

ATTORNEY GENERAL RAUL TORREZ FILES CHALLENGE TO MUNXIPAL AND COUNTY ORDINANCES

On January 22, New Mexico Attorney General Raúl Torrez filed an emergency petition with the New Mexico Supreme Court that challenges the anti-abortion ordinances passed by communities in eastern New Mexico. Torrez is asking the New Mexico Supreme Court strike down the ordinances, arguing they violate civil rights guaranteed by the state Constitution.

The legal challenge was filed as a direct result of the cities of Hobbs and Clovis, and the counties of Lea and Roosevelt passed local ordinances targeting abortion. According to the lawsuit filed the city and county ordinance infringe on the state’s authority to regulate health care.

Democrat Attorney General Torrez contends in the lawsuit that the city and county ordinances misinterpret a 19th-century federal law on the mail and conflict with state law regulating the practice of medicine.  He also argues the ordinances violate the state Constitution’s guarantees to equal rights, liberty and privacy which he said are more robust than what’s outlined in the U.S. Constitution.

Attorney General Raúl Torrez said this during a news conference announcing the filing of the lawsuite:

“In the last several months, Roosevelt County, Lee County, the cities of Hobbs and Clovis have passed ordinances seeking to regulate the provision of health care services, specifically the ability of women in those communities to seek and access reproductive health care. … Local communities are not empowered to regulate medical services. … We need to make it absolutely clear to other communities across the state, which may feel that they have the ability to regulate this kind of health care that they don’t have that right. …   They are not empowered to regulate access to health care. …

This, ladies and gentlemen, is not Texas. In [New Mexico] a woman’s right to choose is guaranteed by the New Mexico Constitution.  We have the ability to provide enhanced rights. … It is simply inappropriate, unlawful and unconstitutional for local governments to use their limited authority to try to create a patchwork of regulations that would deny women access to essential health care services in their community.”

The city and county ordinances vary somewhat but generally aim to ban use of the mail or other interstate carriers to deliver abortion drugs, citing a federal law. The Roosevelt County ordinance provides that it would be enforced by allowing individuals to file civil lawsuits seeking damages of at least $100,000. The private individual lawsuit provision is identical to the State of Texas law that allows private individuals to file lawsuits against doctor’s who perform abortions which are now illegal in Texas.

Democratic state lawmakers have introduced legislation in the 2023 New Mexico Legislative Session that would explicitly prohibit local abortion bans or other discrimination against an individual’s right to health care related to gender. However, the 60-day session just began on January 17, an no action on the legislation has taken place as of yet.   Torrez said his petition does not hinge on the outcome of state legislation. The state Supreme Court, he said, is already empowered to interpret the Constitution and evaluate the abortion ordinances.

REACTIONS TO ATTORNEY GENERAL LAWSUITE

Republican Roosevelt County Commissioner Rodney Savage said he believes the county ordinance is on sound legal footing. Savage told the Albuquerque Journal this:

“It’s being litigated, we have a difference of opinion, and the courts will have to decide. ”

Roosevelt County attorney Michael I. Garcia said the county will respond in court to the attorney general’s petition. Garcia said this:

“In the meantime, I prefer not to speculate about litigation while it’s in the process.”

Hobbs Mayor Sam Cobb said the ordinance in his city was thoroughly analyzed in public meetings and supported by city residents. Mayor Cobb said this:

“The Ordinance does not ban abortions or abortion clinics in Hobbs. … I would invite anyone that has heard otherwise to read the Ordinance in detail.”

Links to quoted news sources are here:

https://www.koat.com/article/new-mexico-abortion-ban-challenged-by-attorney-general-raul-torrez/42627345

https://www.kob.com/new-mexico/ag-raul-torrez-sues-state-counties-cities-over-abortion-ordinances/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

https://www.abqjournal.com/2567053/ag-torrez-challenges-legality-of-local-abortion-bans.html

CODIFYING ABORTION RIGHTS

As a consequence of New Mexico towns attempting enact legislation to restrict and prohibit a woman’s access to abortion, Democrat lawmakers are looking at enacting abortion rights and access to reproductive health care legislation in the 2023 legislative session.   The legislation includes codifying abortion rights into state law, investing in telehealth and clinics that provide reproductive health care, and protecting providers or patients who travel to New Mexico to escape restrictions in other states.

On January 17,   it has been reported that a “Reproductive Health Care Protection Act”  will  be  introduced  and sponsored by Democrats Representative  Linda Serrato, D-Santa Fe, and  Senator  Linda Lopez, D-Albuquerque.  Serrato and Lopez both said the legislation is  based on an Executive Order Governor Michelle Lujan Grisham issued in August declaring “abortion is an essential part of reproductive health care and must remain legal, safe and accessible” and expanding access to reproductive health care services in the state.

Under the proposed legislation, local governments across New Mexico would be prohibited from placing restrictions on abortion access.  A companion initiative aims to protect doctors who perform abortion and patients from harassment and investigations by out-of-state interests. State Senator Linda Lopez said in a statement that she will sponsor a bill that will  provide accountability for organizations that share personal medical information related to reproductive health care.

Senate Majority Leader Peter Wirth of Santa Fe said the initiatives are a direct response to the City of Clovis and the Hobbs County Commission actions.  Senator Wirth said this:

“[The goal] is to “prohibit public bodies, including local municipalities, from denying, restricting or discriminating against an individual’s right to use or refuse reproductive health care, or health care related to gender. ”

The legislation will focus at least in part on improving telehealth infrastructure and perhaps building clinics to provide a spectrum of pregnancy and reproductive health care services.  According to Representative Serrato, some patients in rural parts of  New Mexico are forced to  travel for hours to Santa Fe or Albuquerque for pregnancy-related care.

Representative  Micaela Lara Cadena, D-Mesilla, said New Mexico families need access to a full spectrum of health care, ranging from pregnancy services to behavioral health programs. Cadena said this:

“Abortion is health care … and part of the way we get there is making sure we meet the full needs of our familias without shame or stigma.”

REPUBLICAN OPPOSITION

Republicans are already gearing up to oppose any efforts by Democrats to protect a woman’s right to choose and to expand woman’s health care rights in the state. Republican lawmakers and candidates are proclaiming Democrats are going too far.  They argue that New Mexico voters will support some of the abortion restrictions imposed in other states, such as parental notification for minors.

Republican Elephant Butte State Senator Crystal Diamond said this:

“Although many New Mexicans do not oppose abortion altogether, it’s clear that most support reasonable limits and protections for women and children.  The Democrats’ plan to expand abortion access for minors and women from out of state is completely out of touch. … Now that the U.S. Supreme Court has returned the issue of abortion to the states, New Mexico legislators must prioritize the voices of their constituents over the demands of special interest groups and the multi-million-dollar abortion industry.”

Links to quoted news sources are here:

 https://www.santafenewmexican.com/news/legislature/proposed-bill-aims-to-protect-abortion-access-in-new-mexico/article_c43af694-9352-11ed-a463-5b5fd4045b77.html

https://www.abqjournal.com/2557259/nm-lawmakers-prepare-for-debate-on-abortion-rights-in-2023-session-exce.html

https://www.abqjournal.com/2563994/reinforcing-rights.html

https://www.kob.com/new-mexico/albuquerque-metro/new-mexico-lawmakers-seek-to-prohibit-local-abortion-bans/

https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/

JOURNAL POLL ON ABORTION

On Tuesday,  August 29, the Albuquerque Journal published the results of poll taken on the issue of abortion rights for the November 2022 general elections.  The link to read the full unedited Journal column is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.html

The Journal poll is extremely revealing in that it breaks down the results not only as to party affiliation but also as to regions of the state.

The poll asked the question “WHICH COMES CLOSEST TO YOUR VIEW ON ABORTION” The results were as follows:

It should always be legal:  35%;  It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 25%;  It should always be illegal: 12%; Don’t know: 2%; None of these/won’t say: 4%

POLITCAL PARTY BREAKDOWN

The poll results were broken down according to party affiliation. The responses to the poll question by party affiliation were as follows:

It should always be legal:   Democrats,  55%, Republicans: 8%, Other: 35%

It should be legal with some limitations:  Democrats,  24%,  Republicans: 18%, Other: 26%

It should be illegal except for rape, incest, or to save the mother’s life:

Democrats, 11%, Republicans, 41%, Other: 28%It should always be illegal:  Democrats, 5%, Republicans,  24%, Other: 8%

REGIONAL POLL RESULTS

The poll results were broken down according to geographical regions. The responses to the poll questions were as follows:

ALBUQUERQUE METRO REGION

It should always be legal: 33%; It should be legal with some limitations: 23%; It should be illegal except for rape, incest, or to save the mother’s life:26%; It should always be illegal: 11%

NORTHEAST/NORTH CENTRAL REGION

It should always be legal: 39%; It should be legal with some limitations: 22%; It should be illegal except for rape, incest, or to save the mother’s life: 18%; It should always be illegal: 14%

LAS CRUCES/SOUTHWEST REGION

It should always be legal: 44%; It should be legal with some limitations: 30%; It should be illegal except for rape, incest, or to save the mother’s life: 12%; It should always be illegal: 8%

EASTSIDE REGION

It should always be legal: 27%; It should be legal with some limitations: 15%, It should be illegal except for rape, incest, or to save the mother’s life: 42% ; It should always be illegal: 15%

GENERAL POLL ANALYSIS

New Mexico voters are 3 times more likely to say abortion should always be legal than they were to say it should always be illegal.  According to the poll, 35% of statewide voters surveyed said abortion should always be legal, 22% said the procedure should be legal, for a combined total of 57%.

The poll found that 25% felt there should be some limitations and said it should be illegal except in cases of rape, incest or when a mother’s life is in danger.  Just 12% of voters surveyed said abortion should always be illegal, while 4% would not say and 2% said they did not know.

According to the Journal poll results, Democrats are firmly behind a woman’s right to choose with 55% of Democrats saying abortion should always be legal and 24% of Democrats said it should be legal with some limitations for a whopping 79% combined percentage.

Republicans’ opinion are dramatically opposite with 8% saying abortion should always be legal, while 24% said it should be banned and 41% said it should be illegal with exceptions for cases of rape, incest and to save a mother’s life, with a 65% combined total to make it illegal or illegal with the exceptions of rape, incest or threat to the life of the woman.

The difference by party affiliation shrinks to a 6% difference when it comes to how voters they felt if abortions should be legal with some limitations.  Interestingly, more Democrats, 24%, felt that there should be some limitations while fewer Republicans, 18%, felt there should be some limitations.

The Journal Poll did not find a big difference in attitudes on abortion between New Mexico voters based on their gender, ethnicity and age.  There was little difference in voters’ views on abortion based on their education level with one exception, voters with graduate degrees were far more likely than other groups of voters to say abortion should always be legal.

REGIONAL ANALYSIS

With respect to the regional poll analysis, it’s somewhat of a surprise to note that it is the Las Cruces/Southwest area that had the highest approval of any region in the state that supported abortion without limits with a full 44%, while the Albuquerque Metro Region supported abortion without limits at 33%.

The Southern area of the state is widely considered a conservative part of the state,  excluding the progressive Las Cruces, while the Albuquerque Metro area is considered more progressive.  One explanation for the 11% difference between the regions is that more conservative Valencia and Sandoval were included and skewed the results.

Not at all surprising is that the Progressive Northeast/North Central Region of the state had the highest percent of support saying abortion should always be legal with 39%.  Also not surprising is that in the very conservative Eastside region, 42% said that abortion should   be illegal except for rape, incest, or to save the mother’s life, and 15% said it should always be illegal.

The link to read the full unedited Albuquerque Journal poll column is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.htm

COMMENTARY AND ANALYSIS

THE ATTORNEY GENERAL ACTION

Attorney General Raúl Torrez did not specifically say it, but his 27 page law suite is essentially a “Declaratory Judgment” action filed in the New Mexico Supreme Court to set aside the municipal and county ordinances and have them declared unenforceable and unconstitutional.  Normally, such actions are filed in State District Courts in the counties where such laws are enacted.  The problem is the local city and county attorneys arguably would be the more appropriate authorities to file such actions, but are conflicted out and likely recommended enactment of the ordinances by their respective legislative bodies.

Now that the petition is filed the New Mexico Supreme Court, the court   can accept or deny the petition.  If accepted, those counties and cities that enacted the ordinances can defend them in the Supreme Court and the  Attorney General’s office can respond and simply seek that the ordinances be set aside. The problem is that the Attorney General  action  is an extraordinary action.  The New Mexico Supreme Court has sole discretion and it could simply refuse to accept it and dismiss it on its own.  If it does accept to hear the case, it may not occur for months. Its more likely than not that the New Mexico Supreme Court will take a wait and see approach and let the 2023 New Mexico Legislature tackle the issue given all the pending legislation.

LEGISLATURE NEEDS TO ACT NOW

Governor Lujan Grisham and Democrats in general campaigned heavily on safeguarding abortion rights and woman’s reproductive rights. Republicans on the other hand ignored and are totally out of touch with just how strongly people feel about the issue.

New Mexico Republicans have every intent to do what they can to deprive a woman of their right to choose and to deprive a woman from making her own decision on reproductive rights.  Simply put, no person, no candidate, no elected official, no voter and no government has any right telling a woman what she must do when it comes to abortion and what she must do when it comes to her own body.

Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 edge in the Senate.  Democrats would be damn fools not to deliver on their promises to protect a woman’s right to an abortion and access to reproductive health given the attempts by some Republican controlled municipalities and counties in the state to do whatever they can to make abortion illegal or inaccessible to woman.

The links to relied on news source material are here:

https://www.santafenewmexican.com/news/legislature/proposed-bill-aims-to-protect-abortion-access-in-new-mexico/article_c43af694-9352-11ed-a463-5b5fd4045b77.html

https://www.abqjournal.com/2563994/reinforcing-rights.html

https://www.kob.com/new-mexico/albuquerque-metro/new-mexico-lawmakers-seek-to-prohibit-local-abortion-bans/

https://www.reuters.com/world/us/new-mexico-democrats-fight-towns-abortion-ban-2023-01-14/

On January 17 MAGA Republican election denier and failed candidate Solomon Peña was arrested in connection with 4 shootings at the homes of Democrats Bernalillo County Commissioner Adriann Barboa, former Bernalillo County Commissioner Debbie O’Malley, and Speaker of the House Javier Martínez. It is alleged that he is the “mastermind” behind the shootings and that he conspired with and paid at least 4 other men to carry out the shootings and that he himself participated in one of the shootings.

On January 18, Solomon Peña faced Metropolitan Judge Jill Martinez over video and was seen in the court video dressed in a red jumpsuit with handcuffs. Peña did not say anything during the short preliminary hearing.  The Bernalillo County District Attorney’s Office successfully argued for Peña to be held without bail until a detention hearing. Peña  is represented by Albuquerque Attorney Roberta Yuric.

NEWS UPDATE: DISTRICT JUDGE RULES PEÑA TO BE HELD BEHIND BARS  WITHOUT BAIL UNTIL TRIAL

In a detention hearing held on January 23, State District  Court Judge David Murphy ordered Solomon Peña to remain behind bars without bail until trial. The Arnold tool suggested Peña could be released on his own recognizance.

The Bernalillo County DA’s Office  pushed for Peña to be held behind bars until trial, arguing the evidence of the case and Peña’s prior criminal history indicate there are no conditions of release that would ensure the community’s safety. Deputy District Attorney Natalie Lyon argued “Shortly after his release from conditions of probation, he’s working with other people to commit these violent acts toward elected officials.”  Peña’s defense in part argued that he has no history of violent crimes, crimes with firearms or crimes with drugs. Peña’s attorney Roberta Yurcic argued “For seven of those years your honor, [Peña] was out in the community and had no contact with the criminal justice system.”

Bernalillo County District Court Judge David Murphy decided that Peña will stay in jail through trial. Second Judicial District Judge David Murphy found that Pena presents a danger to the community and that no conditions of release could be fashioned that would ensure public safety.  Following the  pretrial detention hearing, Judge Murphy ruled :

“Based on the nature and circumstances of the charges, as well as defendant’s own history as a convicted felon, and the allegations of possession and use of an assault rifle, as well as the allegation that he has provided firearms to his conspirators, I do find the state has met its burden there.”

The Arnold tool suggested Peña could be released on his own recognizance but Judge Murphy said the tool is “merely a tool.”

Peña is facing 15 charges in the case that’s received national attention.

https://www.krqe.com/news/crime/judge-to-decide-if-solomon-pena-stays-behind-bars-until-trial/

https://www.kob.com/new-mexico/judge-orders-former-gop-candidate-be-held-until-trial/

https://www.abqjournal.com/2567016/solomon-pena-ordered-to-remain-in-custody-pending-trial.html

APD CHIEF HAROLD MEDINA  SHOOTS BIG MOUTH OFF 

In a truly remarkable example of pure political opportunism at its worst, APD Chief Harold Medina took the opportunity to again open his big mouth to declare our criminal justice system is broken and to attack the courts.  He declared the courts are responsible for our high crime rates and blasted the use of a judicial assessment tool that recommended that Peña could be released with bond pending trial.

Medina reacting to the arraignment proceedings of Solomon Peña pointed his pudgy little finger at the entire criminal justice system over the city’s high crime rate and said this:

“Yet another example that shows why the criminal justice system is broken. Prosecutors will recommend that the suspect in these shootings be held in jail until trial. But a judicial assessment recommends the suspect should be released, even though he is a convicted felon who served time in prison for committing more than a dozen felonies. This suspect is alleged to have hired hitmen to shoot up elected officials’ houses with life-threatening gunfire. While I realize the judicial assessment is just one tool that judges can consider, I believe that tool is fatally flawed. How can we require judges to use this broken tool? We need to fix this process so the public will have faith that we are keeping the community safe from dangerous criminals.”

The glaring falsehood of Medina’s remarks is the judicial assessment tool known as the “Arnold Rule” Public Safety Assessment tool (PSA) is not at all mandatory nor a “required tool that is fatally flawed” as Medina stated.  Judges can give it whatever weight they want to give it and even totally ignore it if they choose. It is nothing more than a recommendation that can or cannot be followed.

The Courts discretion has not been usurped by the Arnold rule.  Under the law, the prosecution has the burden of proof in to make the case that a defendant charged with a violent crime is too dangerous to release from jail pending trial and there are no reasonable conditions of release to protect the public. When it comes to Solomon Peña, the judicial system is working, he is in jail and yet Medina felt compelled to say something.

The postscript to this blog article provides and explanation on the Arnold Public Safety Assessment Tool and how it works.

NOT THE FIRST TIME

This is not the first time that Medina has taken to the media and  aim at the court’s releasing someone accused of a crime until trial.  It was on March 22, 2022 that Medina and APD engaged in an orchestrated effort to disparage the reputation of Second Judicial District Judge Stan Whitaker who approved the release pending trial of Defendant Adrian Avila on strict conditions, including GPS monitoring and a curfew. After an evidentiary hearing, 2nd Judicial District Judge Stanley Whitaker ruled that prosecutors had credible evidence to charge Adrian Avila for the crime of murder, but prosecutors did not prove “no conditions of release could protect the community.”

Whitaker’s decision  drew immediate sharp criticism from APD Chief Harold Medina and APD  took to social media the vilify Judge Whitaker. APD Chief Harold Medina had this to say during a TV interview:

“These people are accused of killing somebody and we’re counting on an ankle bracelet to protect the community. … [Adrain Avila is] at the root of gun violence. … [His release is] ridiculous.”

https://www.kob.com/albuquerque-news/albuquerque-teen-accused-of-2-murders-released-with-gps-ankle-monitor/6425548/?cat=500

On March 22, APD posted on its TWITTER  and FACEBOOK accounts a photo of Defendant Adrian Avila with the text saying in part about the pretrial release using the Arnold Rule:

“A judge released a murder suspect from jail today on an ankle monitor. … This is beyond upsetting. This jeopardizes the safety of our community, including our officers.”

Within a few  days APD’s FACEBOOK post had over 2,200 overwhelmingly “angry emoji” reactions, over 1,900 shares and over 718 comments. The overwhelming majority of the comments were negative, derogatory and very personal attacks on Judge Stan Whittaker.

ARNOLD TOOL TO GET SENATE JUDICIARY COMMITTEE SCRUTINY

The arrest of Solomon Peña  for the 4 politically motivated shootings in Albuquerque has quickly resulted  in debate during the 2023 Legislative session over whether to make it easier to hold more defendants in custody as they await trial. Citing the Solomon Peña shooting case, Las Cruces area Democrat Senator Joseph Cervantes, renewed his opposition to  rebuttable presumption in  pretrial detention but called for broader scrutiny of how courts are using the public safety tool for pretrial release.  Senator Cervantes is a seasoned and highly respected trial attorney and  is the chairman of the powerful Senate Judiciary Committee and he opposes the “rebuttable presumption” standard  to deny bail.

Cervantes praised the decision of a Metropolitan Court  Judge Jill Martinez  to keep in custody Solomon Peña until a full detention hearing can be held.   Cervantes said the Solomon case is evidence that judges already have the discretion they need to hold defendants in jail when it’s appropriate as they await trial.

However, Cervantes  took issue with the Public Safety Assessment (PSA) tool, also know as the “Arnold Tool”,  being used by the courts as an excuse in their decision making to release a defendant pending trial.  Cervantes said the public safety assessment tool has not recommended the highest levels of supervision if the defendant were released. Cervantes told his senate colleagues:

“The judge is doing the appropriate thing here [with  Solomon Peña] … we’ll be looking for that same level of protection for all New Mexicans, not just elected officials. … The Arnold Tool is just like any other computer program and we all know the ‘garbage in, garbage out’ phrase. It would seem very clear the Tool is being used to make recommendations for a lot of individuals being released that shouldn’t be. Seventy-five percent (of those charged) with murder in Albuquerque in 2021 were recommended to be released. The Arnold Tool can also be used as an excuse for why certain individuals have been released and why they’re committing horrible murders while they’re on release. There is an argument being made that the Arnold Tool really serves very little purpose because all it does really is aggregate information that the judge would already have.”

https://www.kob.com/new-mexico/new-mexico-to-reevaluate-risk-assessment-tool-for-pretrial-release/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

https://www.kob.com/new-mexico/judge-orders-former-gop-candidate-be-held-until-trial/

https://www.koat.com/article/legislators-pretrial-detention-hearing-process/42613796

Cervantes also spoke out against the introduced legislation that would create a “rebuttable presumption” of dangerousness for defendants charged with certain violent crimes and they be held without bond pending trial.  The aim of rebuttable presumption proposals is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime.  Opponents of rebuttable presumption say courts can already keep a defendant in jail if there’s no other way to protect the public.

Artie Pepin, director of the state Administrative Office of the Courts, disputed  Senator Cervantes contention.  He said the Arnold Tool simply recommends the level of supervision if a judge determines the defendant can be released before trial. It’s up to a judge, he said, to determine whether release is appropriate. Pepin said this:

“Researchers have validated that the [Arnold Public Aafety Assessment Tool] reliably gauges the likelihood of whether the person will return to court for future hearings and remain arrest-free.”

https://www.abqjournal.com/2566122/influential-nm-senator-calls-for-scrutiny-of-pretrial-detention-tool.html

BAIL BOND REFORM

It was on November 8, 2016, the “New Mexico Denial of Bail Measure” was approved by New Mexico voters by a landslide vote. The final vote was 87.23%, with 616,887 voting YES and 12.77%, with 90,293 voting NO. The constitutional amendment largely eliminates the former system of money bail bonds. Before passage of the amendment, a defendant’s bail and release from jail pending trial on charges could be denied for the following 3 reasons:

1. Only for a defendant charged with a capital felony, or
2.  A defendant has two or more felony convictions or
3.  A defendant is accused of a felony involving the use of a deadly weapon if the defendant has a felony conviction in New Mexico.

https://votesmart.org/elections/ballot-measure/2076/a-joint-resolution-proposing-an-amendment-to-article-2-section#.XNyEJo5KiUk

https://ballotpedia.org/New_Mexico_Changes_in_Regulations_Governing_Bail,_Constitutional_Amendment_1_(2016)

The constitutional amendment allows the courts to deny pretrial release to defendants charged with a felony only if a prosecutor proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. The amendment also prohibits the courts from denying pretrial release for defendants who are not considered dangerous and do not pose a flight risk. The change was viewed as necessary to prevent low-level defendants from being kept in jail because they lacked money to post bail.

CHIEF JUSTICE URGES LAWMAKERS TO BALANCE PUBLIC SAFETY WITH RIGHTS OF THE ACCUSED

On January 25, New Mexico Supreme Court Justice Shannon Bacon cautioned the legislators  on the need to balance the rights of accused persons while protecting the public safety. She noted New Mexico voters overwhelmingly approved a constitutional amendment in 2016 that largely abolished the system of money bail bonds. She said the old bond system resulted in most criminal defendants being free until trial.

Bacon said told legislators this:

“We all feel deep sorrow and fear when we read about a senseless death and other tragedies as a result of crime, … Yet we must remember why our Constitution protects the rights of every person, including those accused of crime. … With the elimination of money bail, judges now have the ability to assess dangerousness. … In Bernalillo County, this has resulted in the detention of over 3,000 defendants pending trial – something that could not happen before with the bail bond system.”

https://www.abqjournal.com/2567402/chief-justice-tells-lawmakers-to-balance-public-safety-with-rights-of-the-accused.html

DISTRICT ATTORNEYS OBJECT TO BAIL BOND REFORM

District Attorneys throughout the state argue the changes to the bail bond laws, as well as rules imposed by the New Mexico Supreme Court, make it way too difficult for them to do their jobs and prove to a judge that a defendant poses a threat to the public justifying that a violent felon be denied bail and be held in custody pending trial. As crime rates increased judges were accused of allowing “catch and release of violent felons”.

Prosecutors and law enforcement across the state repeatedly slam judges and the court system for letting out those accused of violent felonies, particularly when they re-offend. They know damn well that judges are bound by the Code of Judicial conduct and no judge can comment and defend themselves on any pending case or even make any kind of an attempt to publicly defend themselves in the court of public opinion.

 https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.

REBUTTABLE PRESUMPTION AGAIN INTRODUCED

Governor Michelle Lujan Grisham made “rebuttable presumption against release” a part of her anti-crime legislation that she placed on the 2022 legislative 30-day short session.  She supported  “rebuttable presumption against release” in crimes including first degree and second-degree murder, voluntary manslaughter, and sexual exploitation of children. Governor Lujan Grisham has again made passage of “rebuttable presumption legislation a priority in the 2023 legislative session with legislation already introduced.

LFC REPORT DISCREDITS REBUTABLE PRESUMPTION

It was last year on January 20, 2022 the powerful Legislative Finance Committee released a 14-page memo analysis of the proposed “rebuttable presumption of violence” legislation for  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 said  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 that rebuttable presumption does not.

The LFC memo states in pertinent part:

“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.

…
“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.”

The LFC memo states that the percentage of cases that ended with a conviction in 2011 was 80% compared to 59% in 2020. The LFC memo did say the conviction rate deduction could be partly explained by the implementation of case deadlines or bail reform, which resulted in fewer plea deals since people were not being held in jail and had less incentive to enter a plea in a case. According to the report:

“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.

In 2022, a substitute crime bill was enacted and signed into law by the Governor. The crime bill as enacted expands surveillance of criminal defendants as they await trial with 24-hour monitoring of ankle-bracelet tracking devices. It mandates the courts to provide greater supervision of defendants by requiring courts to share ankle monitoring data with law enforcement agencies upon request. It requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime. The goal of the GPS monitoring is keep close tabs on a charged defendant to prevent them from committing another crime.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

The 2023 Rebuttable Presumption Bill has been referred to the Senate Health Committee, the Senate Finance Committee and the Senate Judiciary Committee. The fact it has been referred to the 3 Senate Committees make it highly unlikely it will pass and that it is on to an early defeat.

ANALYSIS AND COMMENTARY

The criminal justice system is only as good as those responsible to make it work.

MEDINA NEEDS TO KNOCK IT OFF AND DO HIS JOB

When stakeholders such as APD Police Chief Harold Medina  say the criminal justice system is broken, they are refusing to admit they are part of the problem. They are failing to do their jobs in an effective, competent manner endangering public safety.

Our criminal justice system is not broken as Chief Medina wants everyone to believe. Simply put, his allegation is a pathetic diversion from Medina’s own poor job performance.  It is APD Chief Harold Medina that  has been a failure as Chief in performing his own job duties. Medina has done nothing as Chief to curtail the city’s gun violence but shoot off his big mouth about the criminal justice system being broken.

The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque.  The number of homicides in the city have broken all-time records.  In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 115 homicides as of December 3, 2022.

Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021.  These numbers place Albuquerque among America’s most dangerous cities.

It has also been reported that there have been more APD police officer shootings in 2022 than during any other year before.  In 2022, there were  18 APD Police Officer involved shootings,10 of which were fatal.  In 2021 there were 10, four of which were fatal. Chief Medina recently announced only now APD is trying to figure out how to reduce police shooting under the DOJ reforms.

APD Chief Harold Medina needs to knock it off with his ongoing criticism of the court’s, especially his nonsensical, false accusation that it’s the Court’s that are responsible for our high crime rates.

CRIMINAL JUSTICE SYSTEM NOT BROKEN

The glaring defect of  “rebuttable presumption” is that it 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 rebuttable presumption shifts the burden of proving dangerousness from the prosecution to the defendant accused of certain crimes to show and convince a judge that they should be released on bond with conditions of release pending their trial on the charges.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. 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 or political opportunism at its worst. The criminal justice system at all levels is only as good as those who are responsible to make it work and succeed. It is way too easy to declare the system “broken” when problems identified within the criminal justice system would go away if the stakeholders would just do their own jobs and concentrate on doing their jobs in a competent manner.

The Public Safety Assessment tool and the Arnold Metric the courts use to apply it should never be a replacement for sound judicial discretion. The PSA reports should not be a “crutch” used by Judges who simply want to use it to avoid making controversial decisions. The PSA reports cannot provide a 100% accurate report as to whether a defendant poses a safety or flight risk, that is why it is not mandatory and allows for judicial discretion. Judges need to rely upon their common sense, their own perception of a defendant and use their judicial discretion to keep the public safe and ensure due process of law and justice is also served.

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.”Links to quoted news sources are here:

https://www.volunteerworld.com/en/review/travellers-worldwide

https://www.kob.com/new-mexico/new-mexico-lawmakers-to-propose-gun-safety-bills/

https://www.kob.com/new-mexico/apd-stats-show-increase-in-shootings-with-police/

https://www.abqjournal.com/2556861/gun-safety-bills-could-spark-debate-at-roundhouse-amid-rise-in-firearm.html

_____________________________

POSTSCRIPT

THE ARNOLD RULE IS PUBLIC SAFETY ASSESSMENT TOOL

The “Arnold Rule  is a matrix tool used by the courts  identifying those factors that are considered in holding an accused pending trial. It is a Public Safety Assessment (PSA) tool. Several studies have shown the Arnold Tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.

ROLE OF THE JUDICIARY

It is Judges who are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.

Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.

“Judges place a priority on two considerations when making pretrial release or detention decisions:

1. Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
2. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

PUBLIC SAFETY ASSESSMENT TOOL

When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail.

Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions. To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.

Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.

The Arnold Rule Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.

The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.

Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.

RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL AUTHORITY OR DISCRETION

The Arnold Rule PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.

While the Arnold Rule PSA can be a helpful informational tool, it is important to remember that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.

THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED

The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:

1. Whether the current offense is violent.
2. Whether the person had a pending charge at the time of the current offense.
3. Whether the person has a prior misdemeanor conviction.
4. Whether the person has a prior felony conviction.
5. Whether the person has prior convictions for violent crimes.
6. The person’s age at the time of arrest.
7. How many times the person failed to appear at a pretrial hearing in the last two years.
8. Whether the person failed to appear at a pretrial hearing more than two years ago.
9. Whether the person has previously been sentenced to incarceration.

RISK SCORES PRODUCED

Using the information gleaned for the 9 factors and applying them to a charged defendant, the“Arnold Rule” PSA produces two risk scores:

First, it predicts the likelihood that an individual will commit a new crime if released pending trial.

Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.

The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.

The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.

Links to quoted and relied upon source material are here:

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/wp-content/uploads/2020/12/Frequently-Asked-Questions-About-the-Public-Safety-Assessment-Updated-2-17-2020.pdf