A legislative panel tasked with updating the state’s criminal code is convening today, July 30. Managing Editor Margaret Wright will provide live updates from the proceedings.
Here’s the day’s full agenda: http://www.nmlegis.gov/lcs/agendas/cjrsagejul30.14.pdf.
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Two formerly incarcerated women testified about their encounters with the New Mexico criminal justice system, which occurred in tandem with severe struggles against addiction.
A woman named Marisa says she’s “proof and evidence that treatment does help. All the times I’ve been to jail and prison I was never offered a treatment program or assistance.” The option for treatment in prison would have transformed her life a lot earlier, she adds.
Renee, who says she grew up with a substance-addict parent, served seven separate stints in the state prison system and was never offered a detox program. “When you isolate during any of the stages of recovery, it’s a catastrophe.” She urges legislators to attend an upcoming event hosted by Young Women United and Crossroads for Women to hear more stories of women overcoming addiction and incarceration.
Alan Wagman, who works in the felony division of Albuquerque’s public defender’s office, says that in many New Mexico localities, drug investigations consist of using addicted, convicted confidential informants to bust low-level drug dealers. Going after small-time offenders isn’t effective, but it gets money funneled to local law enforcement agencies, he says.
Sen. Ivey-Soto suggests legislators consider making it a statutory crime for agencies to profit from these kinds of prosecutions.
What’s crucial to understand: An addicted individual’s compulsion to consume drugs and alcohol is totally involuntary. The brain does not forget its addictions.
Sen McSorley: We spend $92 per day, per inmate. Are there statistics we can take back to the Legislature to support diverting funds to more cost-effective treatment?
Condon: If someone is a dangerous drug lord, they should be in prison. But there is national data that shows the cost savings of intensive treatment programs. New Mexico spends a comparatively low amount on behavioral health programs and we lead the nation in overdose deaths and alcohol-related deaths.
Comments from UNM’s Tim Condon: Prolonged drug use changes the brain in fundamental, structural ways. Long-term effects include inhibition of the brain’s dopamine system. Circuitry that once responded to normal pleasurable stimulation is now only activated by substance use.
Condon emphasizes that people who are addicted have brains that are biologically rewired to focus primarily on their fulfilling their addictions. Alteration of motivation centers of the brain means addicts are physically compelled to use drugs or alcohol.
As a culture, he says, “we’re pissed off at drug addicts.” For too long, we’ve wanted to punish and cure addicts, but we need a new model of care that treats people with addiction problems like diabetics. Too many treatment programs expel participants if they relapse.
This doesn’t mean individuals shouldn’t take responsibility for their own recovery, says Condon. But locking people up is not effective treatment. Rather, we should embrace all forms of treatment that have been measurably effective.
Licensed counselor Kevin Mains’ “urgent message” today:
The brain is neurologically altered by substance abuse, and individuals are “ostensibly along for the ride” after their brain’s been altered. Their drug of choice doesn’t matter. And after their brain is altered, they are physically compelled to pursue their high.
“These aren’t bad people making bad choices.” Treating neurobiologically is essential to helping substance-addicted people return to normal.
Timothy Condon, research professor with the Center of Alcoholism, Substance Abuse and Addiction at UNM: Some people use drugs and alcohol because they like the high. Others use simply to feel normal.
2:04 p.m. – On Drug Crime Penalties
Rep. Maestas, who’s an attorney with a criminal law background, outlines the stark terms of the New Mexico criminal code when it comes to drug-related crime:
With the exception of marijuana, there is no such thing as misdemeanor drug possession in the state; it’s considered a major crime and trumps many misdemeanors including violent offenses and aggravated DWI.
Trafficking can be alleged two ways: Selling to a police officer or via arrest for possession or trafficking with intent to distribute. Other circumstantial evidence can be used to bolster the state’s case against defendants, but charges tend to hinge on simple possession.
In criminal terms, charges for possession of drugs in higher amounts are equivalent to armed robbery or kidnapping and more serious than rape.
Two convictions for the same type of trafficking crime require a mandatory 18-year sentence. That’s three years more than mandatory minimums for second-degree murder. That’s also equal to kidnapping in first degree, and secondary to some of most serious crime on New Mexico’s books.
Crime bills seem reasonable in and of themselves—but they don’t make sense compared to other penalties in the criminal code.
In other jurisdictions residue or small amounts of narcotics count as a misdemeanor or have been taken off the books completely.
Maestas asks: “Do we really want to clog the system with those numbers? In New Mexico, drug quantity doesn’t matter. Maybe it should. And sentencing flexibility deserves a long look.”
Discussion concludes regarding the use of sentencing enhancement zones, commonly known as “drug-free school zones.”
In New Mexico, these zones extend in a 1,000-feet radius around school properties (excluding private property within that radius). Basically, if an adult is convicted of drug possession or distribution within that 1000-feet range, prosecutors tack on extra penalties.
Here’s a helpful overview from the Sentencing Project, a national advocacy group:
According to the nonprofit Prison Policy Initiative, traditional drug-free school zones are too large to have meaningful effects. They also have unintended side effects. PPI says the laws “create a two-tiered system of justice: a harsher one for dense urban areas with numerous schools and overlapping zones and a milder one for rural and suburban areas, where schools are relatively few and far between.”
PPI’s research also found people of color were disproportionately charged under these laws:
Rep. Gail Chasey (D-Bernalillo) points out that at the height of the War on Drugs, these school zone laws were thought of as a great law enforcement tool to protect kids. But in the intervening years, it’s become increasingly clear that the laws burden the criminal justice system without measurable effects on drug activity around schools.
Santa Fe police officials describe the opiate addiction epidemic in the area as the worst they’ve ever seen.
As part of the LEAD program, police officers act as a referral pipeline between offenders with eligible charges and community treatment services. Adults are eligible for the program if they’re caught with a small amount of drugs (no more than 3 grams) and if they’re amenable to treatment, among other factors Police officials add the local DA also has to be on board for this type of intervention to work.
Emily Kaltenbach, State Director of New Mexico Drug Policy Alliance, provides an overview of Santa Fe’s LEAD Program. It’s a three-year pilot project modeled after a program in Seattle. It positions cops as the first responders to divert low-level opiate offenders away from criminal justice system.
Santa Fe officials link folks arrested to direct services, treatment and social support in the hopes of helping them break both cycles of addiction and arrest. State funds allocated for LEAD in the last legislative session were line-item vetoed by the governor. Program officials plan to lobby for another round during the upcoming session.
Bochert says the state’s behavioral healthcare upheaval has negatively impacted the community services component of drug court programs. He adds better funding for the court system won’t change that.
Judge Rogers (the previous mental health court speaker) emphasizes that addressing lack of appropriate post-incarceration housing for folks with mental health and addiction issues is imperative for effective reforms.
Rep. Maestas: Why do we even drug-test for THC? There’s no proven link between THC and public safety problems.
Sen. Daniel Ivey-Soto (D-Bernalillo) raises what he refers to as a political problem inherent to drug courts: “We don’t want people just getting off just because they go through the programs.”
An audience member, a judge, says until the Legislature changes its approach to DWI, the legal system approach will be more punitive than treatment-based.
“One of the things I love about this courts is that it’s a recognition that people are flawed,” says Sen. Ivey-Soto.The problem with probation, he adds, is that the traditional model sets people up for failure.
Sen. Torraco: “It’s a disgrace” that New Mexico’s judiciary has the lowest pay in the nation.
She urges judges to request what they need “and deserve” in their unified budgets.
Sen. McSorley says the state Corrections Dept. will be asking for a major capital outlay for prison facility improvements. He points out that we’re barely scratching the surface when it comes to fully funding drug courts.
Sen. Sander Rue (R-Bernalillo) asks if juvenile drug court interventions include a mentorship component. Judge Zamora says she’d helped develop a mentorship program that matched an adult with a program participant so they could experience positive adult interactions. Sen. Rue says he wants to explore this approach in more depth.
Sen. Rue says he’s troubled by the disparity of specialty programs throughout the state. Bernalillo County boasts several while other counties only have one–or none. “It shouldn’t matter where you live in the state when it comes to access to treatment and recovery programs,” he says. He adds that he hopes New Mexico is catering its programs to the unique needs of our citizens rather than using cookie-cutter templates from other locales.
A previous speaker, the judge who works in a mental health speciality court, says she feels confident criminal justice officials are sensitive to cultural issues.
Bochert says national standards for drug courts are flexible and allow for local communities and their cultures inform the treatment approaches to their particular needs.
Peter Bochert says juvenile drug courts have received criticism as ineffective, but he adds that the research in those areas is more limited and is not as solid.
A member of the audience who works in the drug court system says national groups will be helping the local programs self-evaluate to ensure they’re following best practices.
Reporter’s note: Evaluations of drug courts are key to ensuring that they actually work, according to the National Association of Drug Court Professionals. The association says an estimated 6 percent of drug courts don’t adhere to evidence-based policies and procedures, which can actually worsen outcomes
Bochert: Drug courts took a substantial funding hit following the 2008 recession. A multi-year process is underway to return funding at least to levels of FY2009. There are 52 drug courts statewide, and funding them appropriately is key to their success.
Something that hasn’t been mentioned yet: There’s been an increase in criticism leveled against drug courts, especially as drug decriminalization advocacy has gained momentum nationally.
Just three days ago this piece appeared in the LA Times:
A key quote from the article by a rep from the Urban Institute: “Very few people who have serious problems get into one of these drug courts.”
The National Association of Drug Court Professionals (widely cited here today) has taken a strong stance against drug legalization, including marijuana. Here’s the association’s policy statement:
Sen. Lisa Torraco (D) just asked if adolescent drug addiction permanently alters brain development in ways he criminal justice system should taken into consideration.
A judge from Albuquerque’s specialty mental health court says that any substance that alters your brain chemistry will alter brain development–but that’s true of many outside factors such as prescribed medications or heavy use of communications devices.
She adds that her experience in the mental health court has seen exceptional success in terms of recidivism. Other victories are smaller: One participant is now allowed to see his kid. Another has begun healing from a long history of PTSD.
The judge dissolves into tears relaying the story of a young participant who recently died of a drug overdose. The system failed that young man, she says, it’s up to all of us to ensure that he didn’t die for nothing.
Judge Cristina Jaramillo from Albuquerque Metro Court: Adolescent drug/alcohol use can inhibit or permanently alter normal physical brain development.
“We have to deal with their environment,” says Jaramillo. Drug court and counseling only affect a few hours of each week. Kids go home afterward to the same pressures and problems, which means intensive case management is key.
Jaramillo says Albuquerque’s DWI drug court sees a lot of substance abuse that stems from previous trauma and abuse.
Judge Zamora: “You can’t really understand substance abuse” until you’ve seen the program in action. She says her own perspective has evolved from a “Pollyanna-ish” one to now understanding how nuanced the issues are that each individual with addiction deals with.
“Addiction is a disease, not a personal flaw,” says Judge Zamora.
According to the National Association of Drug Court Professionals, the most effective model for drug courts should allow interventions to be tailored according to needs of each offender.
NADCP cites research that shows “high risk” offenders are the best suited for drug courts. Some of the factors that have been identified:
Age (younger than 25 years)
Onset of delinquent behavior at younger than 16 years
Prior felony convictions
Failure of prior rehab interventions
History of violence
Antisocial personality disorder or sociopathy
Family history of crime or addiction
Associations with criminal or substance abuse activity
Judge M. Monica Zamora from the N.M. Court of Appeals mentions that this subcommittee’s work is crucial from the standpoint of the juvenile justice system.
“They are not little adults,” she says, and the system needs to be reformed to take that into consideration.
Generational and familial histories of violence, gang activity, and drug use is a key consideration. In the existing process, juvenile offenders are often mandated against coming into contact with people who are involved in gang or drug activity–which in some cases can mean the system is cutting them off from their families.
Zamora advocates for continued drug court funding, particularly for juveniles. She says it’s an investment in the future of at-risk people that can prevent them from staying stuck in the criminal justice system as adults.
There are about 250 drug court participants enrolled in Albuquerque’s metro court’s system on any given day.
Bochert: There’s been rigorous, peer-reviewed research and analyses of drug court efficacy. They’ve been shown to reduce recidivism if (and this is a big if) the programs adhere to national standards.
So what are drug courts? They’re a collaborative effort to meaningfully alter the behavior of “a difficult population” that is both high risk and high need when it comes to drug and/or alcohol addiction. Participants are subject to intensive supervision that includes routine and random drug testing. Progress is rewarded with praise. Setbacks get sanctioned.
Bochert recommends that interested members of the public visit the programs, especially occasions when drug court team members staff cases presided over by judges. These staffings can provide key glimpses into how drug courts operate.
Bochert says participants quickly respond to the program’s emphasis on praise for progress rather than punishment.
Sen. Cisco McSorley (D-Bernalillo) just gave some background on the formation of this committee, which he says is a reflection of a bipartisan national movement that recognizes that phenomenal rate of incarceration is both wasteful and often ineffective.
“The overwhelming majority of people in our criminal justice system are drug affected” with significant numbers suffering from mental illness.
Other states, such as South Dakota, have been passing bipartisan legislation to reform their criminal justice systems.
The point is to address the origins of crime and not the effects of crime.
McSorley has been a legislator for 30 years, and this is the first time a Republican has co-chaired a committee like this. The hope is to reduce crime and costs while improving public safety.