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F I S C A L I M P A C T R E P O R T

SPONSOR Papen

DATE TYPED 01/27/04 HB

SHORT TITLE Sentence for Violent Crimes Against Disabled

SB 160

ANALYST Erin McSherry

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

New Mexico Sentencing Commission (NMSC)

Department of Public Safety (DPS)

Administrative Office of District Attorneys (AODA)

Administrative Office of the Courts (AOC)

NM Corrections Department (NMCD)

NM Public Defender (NMPD)

SUMMARY

Synopsis of Bill

House Bill 160 bill adds a new section to the Criminal Sentencing Act §31-18-12 NMSA 1978,

requires that an offender, who is convicted of a non-capital felony who intentionally injures a

person sixty-five years of age or who is disabled, shall have their sentence enhanced as follows:

by one year if the injury inflicted does not on cause death or great bodily harm, or by two years if

the injury inflicted causes great bodily harm or is done with a deadly weapon that could have in-

flicted death or great bodily harm. The proposed enhancement would be served concurrently

with any other sentence enhancement in the Criminal Sentencing Act.

If a jury hears the case, a special interrogatory would have to be submitted to the jury for them to

make a finding that the elements of this enhancement exist. If the court tries the case, the court

would have to make a separate finding of fact on the issue.

“Disabled” is defined in the bill as a physical or mental impairment or condition that substan-

tially limits one or more of that person’s functions, such as understanding, care for the self, per-

forming manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.

Senate Bill 160 -- Page 2

Significant Issues

According to the New Mexico Sentencing Commission, during the 2003 legislative session, the

legislature repealed Section 31-18-16.1 NMSA 1978, which had set forth language that was

identical to the language in proposed Senate Bill 160 (enhancement of a basic sentence for com-

mission of a non-capital felony against a person sixty-five years of age or older or a person who

is disabled). During that same legislative session, the legislature also enacted the Hate Crimes

Act (Sections 31-18B-1 through 31-18B-5 NMSA 1978) which includes language providing for

enhancement of a basic sentence upon a finding that a non-capital felony was motivated by hate.

The Administrative Office of the Courts asserts that, because the proposed bill increases the pen-

alty for a violent felony against an elderly or disabled person and provides that the jury or judge

must make a specific finding based on the evidence that there has been violent felony committed

against an elderly or disabled person, the bill complies with U. S. Supreme Court in Blakely v.

Washington requirements.

The Corrections Department points out that this act mandates enhancement be served concur-

rently with any other enhancement on the basic sentence, meaning that if an offender receives a

habitual offender enhancement and an additional enhancement under this act, the enhancements

would be served concurrently.

The New Mexico Sentencing Commission relates that the proposed SB 160 and the former Sec-

tion 31-18-16.1 NMSA provide for mandatory enhancement of a basic sentence should the vic-

tim be 65 year of age or older. The currently standing Hate Crimes Act provides for discretion-

ary enhancement of a basic sentence should a crime be determined to be “motivated by hate”

which means “the commission of a crime with the intent to commit the crime because of the ac-

tual or perceived………..age, handicapped status………of the victim…..”

The Hate Crimes Act provides for the discretionary enhancement of a basic sentence should the

crime be demonstrated to be motivated by hate due to a victim’s particular “status,” such as a

victim’s age; The proposed SB160 does not stipulate that a crime be motivated by hate in order

to increase an offender’s sentence.

PERFORMANCE IMPLICATIONS

The Office of the Public Defender reports that any mandatory provision that increases the sen-

tence makes entering into a plea bargain more difficult.

FISCAL IMPLICATIONS

The Administrative Office of the Courts reports minimal administrative cost for statewide up-

date, distribution, and documentation of statutory changes would result from enacting Senate Bill

160 and that any additional fiscal impact on the judiciary would be proportional to the enforce-

ment of this law and commenced prosecutions. New laws, amendments to existing laws, and new

hearings have the potential to increase caseloads in the courts, thus requiring additional resources

to handle the increase.

Senate Bill 160 -- Page 3

Because SB 160 provides for a mandatory sentencing enhancement, and the Hate Crimes Act

provides for a discretionary sentencing enhancement, it is possible that enactment of SB 160 will

result in more enhancements of basic sentences for crimes committed against the elderly or dis-

abled which would result in greater costs to the Corrections Department.

ADMINISTRATIVE IMPLICATIONS

The Administrative Office of the Courts reports that, in order to implement this bill, the courts

will need to create a “Uniform Jury Instruction” that would serve as

the special interrogatory for

the jury. The Office also relates that the legislation could lengthen trials as answering the special

interrogatory, and presenting evidence of victim’s age or disability and the seriousness of the in-

jury could lengthen the deliberation process.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Depending on the desired outcome of SB160, existing statutory provisions within the Hate

Crimes Act (Subsections A, C and D of Section 31-18B-2 NMSA 1978) which has references to

“age” and “handicapped status” should be revisited. If SB160 does pass, both the Hate Crimes

Act and the proposed statute would stand. Potentially, an offender could have a sentence en-

hanced both through the mandatory enhancement required in proposed SB160 and through dis-

cretionary enhancement provided for in the Hate Crimes Act should a crime be found to be moti-

vated by hate.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Should Senate Bill 160 not be enacted, the sentence enhancements for non-capital felonies

against an elderly person or a person with a handicap will remain in the Hate Crimes Act. These

enhancements are discretionary and are applicable not for all non-capital felonies committed

against individuals who are handicapped or of age above 65, but for those crimes in which the

court has determined the crime was motivated by hate for a particular victim’s status as being

handicapped or over the age of 60.

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