“By taking away this tool, we risk losing an important incentive for defendants to get the help they need.”
By Austin Fisher, Source NM
New Mexico has for decades led the nation around harm reduction policies that try to address substance use disorders without incarcerating people. Two different but related proposals to strengthen those protections were passed by the legislature but vetoed by Gov. Michelle Lujan Grisham (D).
Last week, Lujan Grisham vetoed two sentencing reform bills which could have stopped New Mexico from incarcerating people for simple drug possession, potentially saving millions of dollars on jail time that the state’s public defenders and civil rights attorneys say could be better spent on treatment and harm reduction.
Emily Kaltenbach is the senior director of criminal legal and policing reform at the Drug Policy Alliance. Their group works to decriminalize drug possession altogether. She’s extremely disappointed in the governor’s vetoes and concerned about the continued negative impact the criminal legal system has on people struggling with problematic drug use.
“Our criminal system should not be the gatekeeper to treatment,” Kaltenbach said. “Both of these pieces of legislation were a first step in really treating addiction as a health issue and not a criminal issue.”
Nayomi Valdez, director of public policy for the American Civil Liberties Union of New Mexico, said the bills could have greatly reduced the senseless incarceration of people for minor technical violations and failed drug tests, and helped thousands get their lives back on track.
The argument the governor adopted in vetoing the bills is that the state needs the threat of imprisonment or actual imprisonment to bring about treatment, said Bennett Baur, chief public defender at the Law Offices of the Public Defender.
“I think that not only misperceives the way addiction treatment generally works, but also just the actual damage that imprisonment does,” Baur said. “Imprisonment isn’t neutral. Putting people in and out of jail, or in prison, actually does damage.”
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Senate Bill 187 would have no longer allowed courts to count a drug possession charge or a DWI charge from another jurisdiction when considering sentencing someone as a “habitual offender.”
Drug possession is a felony in New Mexico, and the bill would not have changed that, Baur said. It would have taken away prosecutors’ power to stack more years in prison on top of existing sentencing options.
“There’s almost nobody that gets better because of the threat of additional prison,” Baur said.
In her veto message, Lujan Grisham wrote prosecutors use the habitual offender enhancement as a tool to encourage defendants to get treatment for their addiction.
Ninth Judicial District Attorney Quentin Ray, along with the entire state prosecutors association, opposed the bill. Ray told lawmakers the enhancement allows people to “hit bottom” in prison.
“It gives the opportunity for us as prosecutors to push people, as a hammer, so to speak,” he said. “You have to have something that says, ‘If you’re not willing to change, we need to take you out of society.’”
It ends up being an undue bargaining chip in the plea bargaining process, said Kim Chavez-Cook, an appellate public defender and public defenders’ go-to legislative expert. Prosecutors sometimes tell defendants if they don’t violate probation, then the habitual offender enhancement will not be imposed, she said.
“By taking away this tool, we risk losing an important incentive for defendants to get the help they need,” Lujan Grisham wrote.
Prisons and jails are not void of drugs, Kaltenbach said, and there are as many drugs in the criminal system as there are outside of it.
Probation and parole violations
Senate Bill 84 would have revised the state’s probation and parole system and tied punishments to the severity of the violation—rather than the crime that originally sent them to prison.
The way it currently works, Chavez-Cook said, is if someone on probation commits a technical violation like getting a positive result on a drug test, courts can impose the entire sentence to be served in prison, and judges often make that decision.
These kinds of sanctions proposed to go statewide in the bill are already in practice locally in Santa Fe, Albuquerque, in the southeast corner of the state, and in Catron, Torrance, Sierra and Socorro Counties.
The judicial districts in those places each opted-in to their own voluntary technical violation programs where probation and parole officers can impose graduated sanctions before reporting someone to the parole board or local prosecutors.
Even in those places, if a client doesn’t sign up for it, there is nothing preventing the state prison system or a particular probation officer or a future Corrections Department secretary from putting someone in prison for a technical violation, Chavez-Cook said.
Incarcerating people for technical violations and failed drug tests does not make us any safer or help the people who are locked up, Valdez said, and those who can’t make appointments or grapple with substance use disorder need help and treatment.
“The millions of dollars wasted on incarcerating them could be invested in addressing the underlying causes of crime – substance use disorders and behavioral health issues,” Valdez said. “Needlessly incarcerating people only harms them and their families further and fails to make any of us safer.”
Lujan Grisham wrote the legislation “failed to get the support of the district attorneys and other stakeholders” and “ignores practicalities that could further endanger both parolees and our communities.”
“This could be a step backwards,” she wrote.
In her veto message, Lujan Grisham defended her administration’s record on substance use disorder treatment over the past four years: “Individualized supervision methods have led to improved measures on recidivism and participation in treatment and specialty courts,” she wrote.
Specialty courts are extremely effective for some clients, Baur said, but most of them only intervene after someone is convicted.
“We need to focus on diversion,” he said, and get someone out of the criminal legal system at the earliest possible time. “To say that just building up specialty courts is going to address it, I think, is a fairly narrow view.”
The fact that progress has been made doesn’t mean we don’t need the other pieces of the puzzle, Chavez-Cook said.
Recovery is not linear, Kaltenbach said, and people shouldn’t be punished for relapsing. Behavior doesn’t change with punishment, she said.
“Evidence shows criminalization does not reduce recidivism, nor does it reduce long-term drug use,” she said. “I question why we have such a regressive perspective in this state when we’ve done so many great things.”