NM’s skeletal criminal justice system needs a cash infusion

New Mexico’s judges are the lowest paid in the country. Its chronically underfunded public defenders struggle to represent clients in one of the nation’s poorest states. And prosecutors say they need more money to blunt increases in crime.

This situation awaits New Mexico state lawmakers when they convene Tuesday for the 2018 session in Santa Fe.

But, for the first time in years, thanks to a projected $200 million to $300 million more in revenue than anticipated, the Legislature could spread serious money around New Mexico’s skeletal criminal justice system after recent budget cuts and years of austerity.

The question is how much. Prosecutors, judges and public defenders, along with their allies in the Legislature, will compete for dollars during the 2018 session with other needy programs and services such as early childhood education and health care as New Mexico emerges from a serious cash shortage.

The money comes as a relief to legislators focused on criminal justice, but concerns loom over how the funds will be divvied up, particularly as rising crime rates around the state dominate headlines, the evening news and political rhetoric.

New Mexico climbed to No. 1 in the nation for property crimes and No. 2 for violent crimes in 2017, according to an annual report issued in September by the FBI, based on self-reported figures from all 50 states and the District of Columbia. New Mexico’s steady increases in crime rates are largely driven by Albuquerque, the state’s most populous city.

“Obviously we have a real problem here, and we’re going to have to do whatever it takes, including using some of that money, to put more people in prison and jail,” said state Rep. Bill Rehm, an Albuquerque Republican and retired sheriff ’s captain.

Rehm has prefiled several familiar bills in advance of the session to increase penalties on criminals, eliminate the statute of limitations for second-degree murder and other measures. Similar proposals have failed in recent years in the Democrat-controlled Legislature.

More money for prosecutors proposed by governor

Gov. Susana Martinez also has indicated she wants to increase the budget for the Bernalillo County District Attorney’s Office by $6.5 million — a 33 percent hike. Her request is more than the $6 million first-year District Attorney Raul Torrez is asking for.

It’s by far the largest increase Martinez has ever recommended for the office, and the first time she’s sought to boost its funding at all since her reelection in 2014, according to figures from the Legislative Finance Committee (LFC).

“New Mexicans deserve to be safe. People in Albuquerque deserve to feel safe,” she said at an October news conference, flanked by law enforcement, according to an Albuquerque Journal story.

Martinez did not respond to multiple inquiries for this story, and she dodged questions from a New Mexico In Depth journalist at a news conference in December.

The state’s 13 DA’s offices don’t submit budget requests together; rather, they ask the Legislature for funding individually. And although each office is seeking a hike this year, LFC figures show that they may not be quite as swamped as they say.

“Despite rising reported crime rates in New Mexico, cases referred to the district attorneys have fallen, suggesting a disconnect in crime and policing,” an LFC report looking at the first quarter of Fiscal Year 2018 says. The report also points out that, on average, funding for prosecutors, the courts and public defenders has increased 2 percent per year since 2014.

Judges, staff, public defenders in need of money too

Rep. Antonio “Moe” Maestas, D-Albuquerque, said he supports an increase for the DA’s Office in his home city of about 5 percent, and pointed out that prosecutors aren’t the only criminal justice players feeling the squeeze of last year’s cuts.

Bernalillo County Metropolitan Court, the state’s busiest, needs a 5 percent budget increase, too, Maestas said. The rest of the state’s courts need more funding, too.

The state Administrative Office of the Courts has asked for a $14 million increase this year, in part to boost the pay of New Mexico’s judges, which are the lowest paid in the nation, according to a report from the National Center for State Courts.

“You get the criminal justice system you pay for,” Maestas said. “Of course, public safety is a priority for this session, but the best way to fight crime is to fully fund these institutions — all of them. That’s what I hope comes out of this session: a step toward that.”

The state Law Office of the Public Defender has asked for a 13 percent budget hike. Its chief attorney was held in contempt of court last year after saying his office couldn’t take on any more cases in one county.

“Even if we got that, or even if all aspects of the system were given an equal share of whatever money the Legislature has, it would still be out of balance” because of several years in which the lawyers who represent indigent people have received smaller increases or no new money at all, said Chief Public Defender Bennett Baur.

“If they decide just to fund prosecution and law enforcement, it will make it worse,”  he said. “Indigent defense is part of the cost of prosecution, and not just somebody to look over a plea agreement — but somebody to actually test the evidence.”

Several criminal justice watchers and policymakers interviewed for this story said a deeper issue continues to roil beneath the surface: a decimated mental health care system and sorely lacking substance abuse treatment services that have forced the criminal justice system to take on more of the burden of New Mexico’s problems.

“The whole system is being asked to deal with people in crisis who used to be handled by other aspects of government,” Baur said. “This really isn’t a criminal justice system anymore; it’s a criminal processing system. If we don’t address those larger issues, then we’ve failed.”

Two state senators from opposing parties — Democrat Peter Wirth of Santa Fe and Republican Sander Rue of Albuquerque — acknowledged the need to fund prosecutors, public defenders and the courts in order to keep the system in balance. And both said the Legislature would be wise to fund reintegration programs for people coming out of prison and to boost programs aimed at addressing people’s substance abuse and mental health problems without incarceration.

Skepticism greets call to repeal bond amendment

Wirth and Rue took exception to a controversial proposal by Gov. Martinez to scrap an amendment to the state Constitution voters passed by more than 80 percent last year that allows judges to hold dangerous defendants in jail without bond before trial, but prevents them from locking up pretrial defendants accused of less serious crimes simply because they can’t pay a bail bondsman.

“The only way forward is to repeal this dangerous amendment and replace the irresponsible pretrial detention rules,” the governor wrote on Facebook on Oct. 26, borrowing some phrasing from President Donald Trump. “Judges and the legislature must act – it’s time to get these criminals off our streets and back behind bars where they belong.”

The amendment, along with changes to how cases are managed in Albuquerque courts, have drawn the ire of the governor and others, who blame the reforms for rising crime rates. Neither Martinez nor anyone else has provided data to support their claims.

With the exception of Rehm, every lawmaker interviewed for this story pointed out the amendment only went into effect July 1 and said the better way to ensure judges are enforcing the constitutional change properly is through the court rulemaking process — not by passing laws that would, for example, define “dangerousness” in state statute.

An ad-hoc committee appointed by the state Supreme Court met several times last year and was expected to present tweaks to court rules for implementing the amendment before the session began.

Rue said the case management changes and the constitutional amendment were necessary reforms to a criminal justice system that had drifted from its actual purpose.

“The solution isn’t to remove those initiatives; the solution is to adequately fund them, as well as looking at more comprehensive reform so the system as a whole functions in a better and more balanced way that actually results in a reduction in crime in addition to principled justice,” he said.

Rue said the improved revenue forecast presents some hope for lawmakers. But deep, system wide reforms may have to wait until there’s a new occupant of the Governor’s Mansion.

“There is an opportunity to adequately fund the criminal justice system with additional available revenue this year, but I’m concerned about piecemeal legislation that doesn’t actually impact public safety,” Rue said. “My hope is that the Criminal Justice Reform Subcommittee will reconvene next year to develop more comprehensive proposals for the 2019 session.”