HOUSE BILL 263

54th legislature - STATE OF NEW MEXICO - second session, 2020

INTRODUCED BY

Antonio Maestas and Gail Chasey and William "Bill" R. Rehm and

Jane E. Powdrell-Culbert and Alonzo Baldonado

 

 

 

 

AN ACT

RELATING TO CRIMINAL JUSTICE REFORM; PROVIDING CLARIFICATION AND GUIDANCE FOR PROBATION AND PAROLE; ALLOWING FOR A PERSON ON PROBATION TO HAVE THE TIME REQUIRED FOR SUPERVISED PROBATION TO BE CONVERTED TO NON-REPORTING SUPERVISED PROBATION FOR GOOD BEHAVIOR; REPEALING SECTION 31-21-25.1 NMSA 1978 (BEING LAWS 1994, CHAPTER 21, SECTION 3).

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

     "31-20-5. PLACING DEFENDANT ON PROBATION.--

          A. The purpose of probation is to enforce victim restitution, hold a person accountable for the person's criminal conduct, promote a person's reintegration into law-abiding society and reduce the risks that the person will commit new offenses. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the [magistrate, metropolitan or district] court has [deferred or suspended sentence, it] entered an order of conditional discharge pursuant to Section 31-20-13 or 30-31-28 NMSA 1978, entered an order deferring the sentence or entered an order suspending in part or in full the sentence, the court shall order the defendant to be placed on probation for all or some portion of the period of the conditional discharge, deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the corrections department to furnish.

          B. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not exceed five years and the total period of probation for the magistrate or metropolitan courts shall be no longer than the maximum allowable incarceration time for the offense [or as] at the time of sentencing unless otherwise provided by law.

          C. The court shall consult a validated risk and needs assessment, if provided by the corrections department, when deciding what conditions of probation to impose.

          [B.] D. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

                (1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

                (2) [in the event that] if the defendant violates any condition of that parole and the violation is not sanctioned pursuant to the provisions of Section 9 of this 2020 act, the parole board shall cause [him] the defendant to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation.

          E. A person, except a person serving a period of probation under a suspended, deferred or conditional discharge stemming from a plea or conviction that includes any sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978, who has been placed on supervised probation for more than one year, has completed one year on supervised probation and has complied with all conditions imposed by the court's judgment and order of probation, including paying all court-ordered restitution, fines and fees, shall be eligible for a conversion from supervised probation to unsupervised probation as provided in this section. For every thirty days completed on supervised probation without a violation of probation, thirty days of the supervised probation term shall be converted to an unsupervised probation term. All supervised probation must be completed before an unsupervised probation period begins. If a probationer violates the conditions of probation at any time during the probationary period, the court shall have the same authority provided by Section 31-21-15 NMSA 1978 over any converted unsupervised probation."

     SECTION 2. Section 31-21-4 NMSA 1978 (being Laws 1955, Chapter 232, Section 2, as amended) is amended to read:

     "31-21-4. CONSTRUCTION AND PURPOSE OF ACT.--

          A. The Probation and Parole Act shall be liberally construed to the end that the treatment of persons convicted of crime shall take into consideration their individual characteristics, circumstances [needs and potentialities as revealed by case study] and assessment of risk and needs and that such persons shall be dealt with in the community by a uniformly organized system of constructive rehabilitation under probation supervision instead of in an institution or under parole supervision when a period of institutional treatment is deemed essential in the light of the needs of public safety and their own welfare.

          B. The corrections department shall:

                (1) operate probation and parole supervision based upon application of a validated risk and needs assessment and principles of effective intervention to reduce criminogenic risk and needs factors;

                (2) focus supervision resources on the initial period of release or placement on probation;

                (3) recommend and enforce conditions that include cognitive-behavioral programming to address criminal thinking and address basic needs and transitional requirements, such as housing, employment, medical and mental health services and transportation; and

                (4) apply a consistent system of incentives and graduated sanctions to promptly respond to positive and negative behavior by probationers and parolees under supervision."

     SECTION 3. Section 31-21-5 NMSA 1978 (being Laws 1978, Chapter 41, Section 1, as amended) is amended to read:

     "31-21-5. DEFINITIONS.--As used in the Probation and Parole Act:

          [A. "probation" means the procedure under which an adult defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions;

          B. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

          C. "institution" means the state penitentiary and any other similar state institution hereinafter created;

          D. "board" means the parole board;

          E. "director" means the director of the field services division of the corrections department or any employee designated by him; and]

          A. "absconding" means that a person under supervision willfully makes the person's whereabouts unknown to the person's probation and parole officer or willfully fails to report as ordered, and reasonable efforts by the probation and parole officer to locate the person have been unsuccessful;

          [F.] B. "adult" means any person convicted of a crime by a district court;

          C. "board" means the parole board;

          D. "director" means the director of the adult probation and parole division of the corrections department or any employee designated by the director;

          E. "geriatric inmate" means a person who:

                (1) is under sentence to or confined in a prison or other correctional institution under the control of the corrections department;

                (2) is sixty-five years of age or older;

                (3) suffers from a chronic infirmity, illness or disease related to aging; and

                (4) does not constitute a danger to the person's own self or to society;

          F. "institution" means the state penitentiary and any other similar state institution;

          G. "non-technical violation" means absconding or violating any municipal or county ordinance or tribal, state or federal law;

          H. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

          I. "permanently incapacitated inmate" means a person who:

                (1) is under sentence to or confined in a prison or other correctional institution under the control of the corrections department;

                (2) by reason of an existing medical condition, is permanently and irreversibly physically incapacitated; and

                (3) does not constitute a danger to the person's own self or to society;

          J. "probation" means the procedure under which an adult defendant is released by the court without imprisonment under a conditional discharge, an order deferring sentence or an order partially or fully suspending sentence and subjecting the defendant to conditions;

          K. "technical violation" means a violation of the conditions of probation or parole supervision other than those violations constituting a non-technical violation; and

          L. "terminally ill inmate" means a person who:

                (1) is under sentence or confined in a prison or other correctional institution under the control of the corrections department;

                (2) has an incurable condition caused by illness or disease that would, within reasonable medical judgment, produce death within six months; and

                (3) does not constitute a danger to the person's own self or to society."

     SECTION 4. Section 31-21-9 NMSA 1978 (being Laws 1972, Chapter 71, Section 17) is amended to read:

     "31-21-9. PRESENTENCE [AND PRERELEASE] INVESTIGATIONS.--

          A. Upon the order of any [district or magistrate] court, the director shall prepare a presentence report [which] that shall include [such information as the court may request.

          B. Upon the order of any district court, the director shall prepare a prerelease report which the court shall use to determine the accused's qualifications for bail. The report shall include available information about the accused's family ties, employment, financial resources, character, physical and mental condition, the length of his residence in the community, his] any victim impact information, the convicted person's state personal identification number, the convicted person's record of convictions, [his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and any history of drug or alcohol abuse] the results of any validated risk and needs assessments that may have been administered and such other information as the court may request.

          [C.] B. All local and state law enforcement agencies shall furnish to the director any requested criminal records."

     SECTION 5. Section 31-21-13.1 NMSA 1978 (being Laws 1988, Chapter 62, Section 3, as amended) is amended to read:

     "31-21-13.1. INTENSIVE SUPERVISION PROGRAMS.--

          A. As used in this section, "intensive supervision programs" means programs that provide highly structured and intense supervision, with stringent reporting requirements, of certain individuals who represent an excessively high assessment of risk of violation of probation or parole, emphasize meaningful rehabilitative activities and reasonable alternatives without seriously increasing the risk of recidivist crime and facilitate the payment of restitution by the offender to the victim. "Intensive supervision programs" [include] includes house arrest programs or electronic surveillance programs or both.

          B. The corrections department shall implement and operate intensive supervision programs in various local communities. The programs shall provide services for appropriate individuals by probation and parole officers of the corrections department. The corrections department shall promulgate rules [and regulations] to provide that the officers providing these services have [a maximum case load of forty offenders] the training, resources and caseloads that enable them to operate effectively and to provide for offender selection and other criteria. The corrections department may cooperate with all recognized law enforcement authorities and share all necessary and pertinent information, records or documents regarding probationers or parolees in order to implement and operate these intensive supervision programs.

          C. For purposes of this section, a judge contemplating imposition of an intensive supervision program for an individual shall consult with the adult probation and parole division of the corrections department and [consider the recommendations before imposing such probation] review the results of the validated risk and needs assessment. The [adult probation and parole] division [of the corrections department] shall recommend only those individuals who score as high risk and who would have otherwise been recommended for incarceration for intensive supervision programs. A judge has discretion to impose an intensive supervision program for an individual, regardless of recommendations made by the [adult probation and parole] division, only if a validated risk and needs assessment has been provided to the judge and considered in the decision to impose an intensive supervision program. Inmates eligible for parole or within twelve months of eligibility for parole, or inmates who would otherwise remain in a correctional institution for lack of a parole plan or those parolees whose parole the board would otherwise revoke, are eligible for intensive supervision programs. The provisions of this section do not limit or reduce the statutory authority vested in probation and parole supervision as defined by any other section of the Probation and Parole Act.

          D. There is created in the state treasury the "corrections department intensive supervision fund" to be administered by the corrections department upon vouchers signed by the secretary of corrections. Balances in the corrections department intensive supervision fund shall not revert to the general fund. Beginning July 1, 1988, the intensive supervision programs established pursuant to this section shall be funded by those supervision costs collected pursuant to the provisions of Sections 31-20-6 and 31-21-10 NMSA 1978. The corrections department is specifically authorized to hire additional permanent or term full-time equivalent positions for the purpose of implementing the provisions of this section."

     SECTION 6. Section 31-21-14 NMSA 1978 (being Laws 1955, Chapter 232, Section 17, as amended) is amended to read:

     "31-21-14. [RETURN OF] PAROLE [VIOLATOR] VIOLATIONS.--

          A. At any time during release on parole:

                (1) the board or the director may issue a warrant for the arrest of the [released prisoner for] parolee to answer a charge of a non-technical violation. [of any of the conditions of release, or issue a notice to appear to answer a charge of violation. The notice shall be served personally upon the prisoner] The warrant shall authorize the [superintendent] warden of the institution from which the [prisoner] parolee was released to return the [prisoner] parolee to the [actual] physical custody of the institution or to any other [suitable] detention facility designated by the board or the director. If the [prisoner] parolee is out of the state, the warrant shall authorize the [superintendent] warden to return [him] the parolee to the state;

                [B. the director] (2) a probation and parole officer may arrest the [prisoner] parolee without a warrant or may deputize [any] an officer with the power of arrest to do so by giving [him] the officer a written statement [setting forth] that the [prisoner] parolee has, in the judgment of the [director, violated the conditions of his release] probation and parole officer, committed a non-technical violation. Where an arrest is made without a warrant, the [prisoner] parolee shall not be returned to the institution unless authorized by the director or the board;

                (3) a probation and parole officer may arrest a parolee without a warrant or may deputize an officer with the power of arrest to do so by giving the officer a written statement that the parolee has, in the judgment of the probation and parole officer, committed a technical violation or non-technical violation if the parolee is serving a period of parole stemming from a plea or conviction for a sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978; or

                (4) a probation and parole officer may arrest a parolee for a technical or non-technical violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe that the parolee poses a flight risk or a danger to the community.

          B. Pending hearing as provided by law upon [any] a charge of a non-technical violation, the [prisoner] parolee shall remain incarcerated in the institution.

          C. Upon arrest and detention for a non-technical violation, the board shall cause the [prisoner] parolee to be promptly brought before it for a parole revocation hearing on the [parole] non-technical violation charged, under rules [and regulations] the board may adopt.

          D. If the non-technical violation is established, the board may continue or revoke the parole, impose detention for a fixed term up to ninety days, which shall be counted as time served under the sentence, or enter any other order as it sees fit.

          [D.] E. A [prisoner] parolee for whose return a warrant has been issued shall, if it is found that the warrant cannot be served, be a fugitive from justice.

          F. If it appears that [he] the parolee has [violated the provisions of his release] committed a non-technical violation, the board shall determine whether the time from the date of the violation to the date of [his] the parolee's arrest, or any part of it, shall be counted as time served under the sentence.

          G. At any time during release on parole, the board or the director may issue a notice to appear to answer a charge of a technical violation. The notice shall be served personally upon the parolee and shall initiate a technical violation process in accordance with Section 10 of this 2020 act."

     SECTION 7. Section 31-21-15 NMSA 1978 (being Laws 1963, Chapter 301, Section 13, as amended by Laws 2016, Chapter 27, Section 1 and by Laws 2016, Chapter 31, Section 1) is amended to read:

     "31-21-15. [RETURN OF] PROBATION [VIOLATOR] VIOLATIONS.--

          A. At any time during probation:

                (1) the court may issue a warrant for the arrest of a probationer for a non-technical violation [of any of the conditions of release]. The warrant shall authorize the return of the probationer to the physical custody of the court or to any [suitable] other detention facility designated by the court;

                (2) the court may issue a [notice to appear to answer a charge of violation. The notice shall be personally served upon the probationer; or] warrant for the arrest of a probationer for a technical violation only if the probationer is serving a period of probation pursuant to an order of conditional discharge, suspended sentence or deferred sentence stemming from a plea or conviction for a sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978;

                (3) the director may arrest a probationer without a warrant or may deputize [any] an officer with power of arrest to do so by giving the officer a written statement [setting forth] that the probationer has, in the judgment of the director, [violated the conditions of the probationer's release] committed a non-technical violation. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer; or

                (4) a probation and parole officer may arrest a probationer for a technical or non-technical violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe the probationer poses a flight risk or a danger to the community.

          B. Upon the probationer's arrest and detention for a non-technical violation:

                (1) the director shall immediately notify the court and submit in writing a report [showing in what] describing the manner in which the probationer has violated the conditions of release; and

          [B. The court shall then hold a hearing, which may be informal, on the violation charged.]

                (2) the court shall hold a probation revocation hearing on the non-technical violation charged.

          C. If the non-technical violation is established at the probation revocation hearing, the court may continue or revoke the probation or enter any other order as it sees fit.

          D. At any time during probation, the court may issue a notice to appear to answer a charge of technical violation. The notice shall be personally served upon the probationer and shall initiate a technical violation hearing.

          E. If the technical violation is established before the court at a technical violation hearing, the court may:

                (1) continue the original probation; [or]

                (2) revoke the probation and either:

                     (a) order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978; or

                     (b) require the probationer to serve the balance of the sentence imposed or any lesser sentence; or

                (3) if imposition of sentence was deferred, [the court may] impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

          [C.] F. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After the hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court and released without imprisonment under a conditional discharge, an order deferring sentence or an order partially or fully suspending sentence and subjecting the defendant to conditions.

          [D.] G. The board shall budget funds to cover expenses of returning probationers to the court.

          H. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state."

     SECTION 8. Section 31-21-17.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 2) is amended to read:

     "31-21-17.1. [ADMINISTRATION BY] MEDICAL OR GERIATRIC PAROLE--PROCEDURES--DUTIES OF THE DEPARTMENT--DUTIES OF THE BOARD.--

          A. The corrections department shall promulgate rules and shall implement a "medical and geriatric parole program", including the form of an application for medical or geriatric parole.

          B. The director shall identify geriatric, permanently incapacitated and terminally ill inmates and authorize the release of those inmates who are eligible for medical or geriatric [or medical] parole [based on rules established by the board. The department shall forward an application and documentation in support of parole eligibility to the board within thirty days of receipt of an application from an inmate. The documentation shall include information concerning the inmate's age, medical history and prognosis, institutional behavior and adjustment and criminal history. The inmate or inmate's representative may submit an application to the board] and notify those inmates of the opportunity to apply for medical or geriatric parole. Upon receiving an application, the director shall determine within sixty days whether to recommend an inmate for medical or geriatric parole. The recommendation shall include the inmate's age, medical history and prognosis, if applicable, institutional behavior and adjustment. When the director recommends an inmate for medical or geriatric parole, the director shall submit a statement to the board that the inmate's release is not incompatible with the welfare of society.

          C. Inmates who have not served their minimum sentences may be considered eligible for parole under the medical and geriatric parole program. Medical and geriatric parole consideration shall be in addition to any other parole for which a geriatric, permanently incapacitated or terminally ill inmate may be eligible.

          D. When considering an inmate for medical or geriatric parole, the director may request that reasonable medical and mental health examinations be conducted.

          E. When determining an inmate's eligibility for geriatric or medical parole, the director shall consider the following criteria concerning the inmate:

                (1) age;

                (2) severity of illness, disease or infirmities;

                (3) comprehensive health evaluation;

                (4) institutional behavior;

                (5) level of risk for violence; and

                (6) alternatives to maintaining the geriatric, permanently incapacitated or terminally ill inmate in traditional settings.

          F. The parole term of the geriatric, permanently incapacitated or terminally ill inmate on medical or geriatric parole shall be for the remainder of the inmate's sentence, without diminution of sentence for good behavior.

          G. The board shall release an inmate on medical or geriatric parole upon recommendation from the director unless the board finds by clear and convincing evidence that the inmate's release is incompatible with the welfare of society and states in writing its reason for the finding. The board shall not deny medical or geriatric parole solely because of the inmate's criminal history."

     SECTION 9. A new section of the Probation and Parole Act is enacted to read:

     "[NEW MATERIAL] INCENTIVES--SANCTIONS FOR TECHNICAL VIOLATIONS.--

          A. The adult probation and parole division of the corrections department shall create and implement an incentives and sanctions system to guide responses to negative and positive behavior by probationers and parolees under the supervision of the department. The system shall provide for graduated responses to technical violations of supervision conditions, in a swift, certain and proportional manner, and include guidance and procedures to determine when and how to:

                (1) request a warrant;

                (2) initiate a hearing; and

                (3) seek departmental approval to use custodial interventions.

          B. To implement and continuously improve the incentives and sanctions system, the adult probation and parole division shall:

                (1) provide information and training on the system for probation and parole officers of the division and members and staff of the board;

                (2) offer information and training on the system to judges, prosecution and defense attorneys, law enforcement personnel, detention center personnel, contracted service providers and other interested personnel;

                (3) review the system at least every five years to ensure that it adheres to evidence-based practices and that the use of sanctions and incentives by probation and parole officers is consistent across the state;

                (4) ensure that the guidance and procedures established by the system consider community safety and the needs of the victim and offender;

                (5) collect data relating to placement decisions based on the system; and

                (6) aggregate collected data and provide a report to the appropriate legislative interim committee dealing with courts, corrections and justice issues every two years.

          C. A probation and parole officer who reasonably believes that a probationer or parolee has committed one or more technical violations that require a sanction shall consult the incentives and sanctions system to determine an appropriate response. Consistent with the system, the officer may impose a non-detention sanction to gain the person's compliance with the conditions of probation or parole.

          D. Graduated sanctions for technical violations may include three-day and seven-day detention in a county jail or other place of detention. Sanctions served in detention shall be counted as time served under the sentence."

     SECTION 10. A new section of the Probation and Parole Act is enacted to read:

     "[NEW MATERIAL] TECHNICAL VIOLATIONS.--

          A. If a probation and parole officer seeks to impose detention for a technical violation, the officer shall review the violation and proposed detention with a supervisor.

          B. With supervisory approval, the probation and parole officer shall review the violation and proposed detention with the probationer or parolee and seek a signed waiver from the probationer or parolee that acknowledges the violation and accepts the proposed detention.

          C. If the waiver for a probationer is rejected, the probation and parole officer shall promptly report the alleged violation to the court. If the waiver for a parolee is rejected, the probation and parole officer shall promptly report the alleged violation to the board and proceed to formal resolution.

          D. The probation and parole officer's written report of a technical violation shall include the officer's recommendation and justification as to final action or resolution of the situation. The officer's recommendation is not binding on the court."

     SECTION 11. REPEAL.--Section 31-21-25.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 3) is repealed.

     SECTION 12. APPLICABILITY.--The provisions of Section 9 of this act apply to persons whose probation or parole commences subsequent to January 1, 2021 and to all persons on probation or parole on January 1, 2021.

     SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2021.

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