March 28, 2019

Honorable Michelle Lujan Grisham

Governor
State of New Mexico
490 Old Santa Fe Trail, Room 400
Santa Fe, NM 87501

RE: House Bill 564

Dear Honorable Governor Lujan Grisham:

We hope this letter finds you well. Allow me to explain the origin of HB 564, the problems it is
trying to solve, best practice policies it will implement and address the DA Association’s
concerns stated in its March 15, 2019 letter written by 12th District Attorney John Sugg.

As you know, HB 564 was a product of the Justice Reinvestment Initiative and New Mexico’s
work with The Council of State Governments Justice Center. HB 564 uses a strategy to lower
recidivism by getting a better handle on prison admissions caused by revocations from
supervision, particularly for less serious, so-called technical violations. As of July 2018, 22 states
have undertaken some version of this strategy around revocations from supervision. (See
Attachment A)

Secondly, HB 564 was also a response of the findings published October 2018 by the Legislative
Finance Committee Program Evaluation Unit: Corrections Department - Status of Programs to
Reduce Recidivism and Oversight of Medical Services. It found that while the recidivism rates
across the country are dropping the recidivism rate in New Mexico is increasing, rising to 50% in
FY18, an 11% increase since FY10. It was also determined that parole revocations for technical
violations related to drug use contribute half of the recidivism rate. Approximately one-third of
prisoners admitted to NMCD are due to failed drug tests and missed appointments.

These are not new conversations. We’ve known about these problems for years. They were
published in the LFC’s Results First Report Issued July 2013: Evidenced-Based Programs to
Reduce Recidivism and Improve Public Safety in Adult Corrections but we were unable to
address them under the previous administration.

Thirdly, HB 564 also incorporated “rocket docket” type bills that were vetoed by the previous
administration. Section 1; (§30-20-5(E)) incorporates HB 332 (2015) which passed the House 63-
0 and the Senate 39-0 regarding incentivizing compliance. Sections 7 and Section 8 (§31-21-14
& §3-21-15, respectively) incorporates the policies of HB 469 (2011) which passed the House
59-10 and Senate 35-0 regarding the problems finally exposed by the LFC of technical
violations.

CSG Justice Center research yielded the following findings:

• An estimated 41 percent of prison admissions in New Mexico are due to probation and
parole revocations.i
• Close to half of people released from prison to supervision return to prison within one year.ii
• The average length of stay for parole revocations is 14 months.iii
• Only 15% of revocations were attributed to a new offenses, a 2018 sample of parole
revocation files revealed, and 75% of those new offenses involved substance abuse or
absconding.iv
• NMCD does not use a statewide structured system to respond to people who commit
technical violations.
• There also is no structured system to provide incentives for good behavior to people on
probation or parole.

The October 2018 LFC report stated:

Best practices for the response to supervision violations suggest that risk-based supervision
monitoring, linked to effective treatment, as well as swift and certain responses to behavior,
increase success and result in fewer technical violations and [fewer] new crimes. Violations of
supervision conditions are often part of the offender change process, so departments need tools
and evidence-based strategies for appropriately dealing with violations when they occur. Since
technical violations do not involve new criminal activity, parole departments can exercise
significant discretion to address technical violations by developing structured decision-making
processes that use a range of intermediate sanctions and evidence-based responses.”

HB 564 tackles this revocation topic, as many states have, by defining technical violations and
non-technical violations, and differentiating the responses of the system (which is what we do
when we legislate different punishments for different crimes). Now, instead of deciding
between a return to prison or continuing supervision, Judges and the probation and parole
department are provided many more options.

For technical violations, as in other states, HB 564 requires the NMCD to develop a consistent
incentives and sanctions system. To hold people accountable with swift and certain
consequences while under supervision, the NMCD must respond to technical violations with
less costly and more effective sanctions. Statewide uniformity on sanctions and incentives will
ensure objective, consistent responses to probationer and parolee behavior as well as
predictability and transparency. Also, the research has shown that positive reinforcements and
incentives can help improve engagement and reduce recidivism as much as or more than a
sanction-only approach and can limit the need for costly punitive sanctions.

Now let us address the specific concerns of the DA’s Association and Attorney General.

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Unsupervised probation: Every Judge’s sentencing order that includes a suspended (or partially
suspended) sentence reads: “any level of supervision deemed appropriate by the probation
department.” As mentioned earlier this initiative passed unanimously in 2015 when the
Democrats were in the House minority. To keep us safe, probation officers need to focus on the
20 or so high risk probationers in their caseload. We can no longer have an officer supervise all
110 probationers of a caseload with the same level of intensity and expect to be safer. We must
prioritize scarce resources and HB 564 does that by incentivizing good behavior, lowering
officer’s caseloads while at the same time increases public safety. The LFC recommendation
regarding this issue was that we should “[i]mprove case management of parolees to ensure
connection to services and implement evidence-based STEP programs statewide (graduated
interventions, short jail-time, etc.) to maximize attempts to divert from full revocation currently
used.” The DAs Association conveniently forgets that judges currently allow the NMCD to
implement its STEP program which doesn’t “undercut the judge’s authority.”

Definition of Absconding: Everyone misses appointments. Probationers should not return to

prison for a missed appointment or one failed drug test. This best practices definition will fix
that. The examples the DAs Association gives to justify its reasoning are unpersuasive, since
they would be considered technical violations under the HB 564. In addition, the probationer
would no longer be afraid to report under those same circumstances. Since North Carolina has
passed the Justice Reinvestment Act in 2011, the state has reduced the prison population 8%,
closed 10 prisons, saved or averted an estimated $560 million in costs, funded 175 probation
officer positions and reduced probation revocations significantly, all while decreasing crime
11%. (See Attachment B)

Parole factors for 30-years to life: Perhaps the least credible, fear-mongering claim by the DAs
Association is about the changes to parole law, §31-21-10. When it went to the media with
horrific details of gruesome murders it lost all intellectual credibility. The amendment to that
section, which was adopted in the course of a substantive and well-informed discussion in
Senate Judiciary Committee on March 6th, removes a list in favor of modern statutory
construction. The DAs Association’s argument is easily debunked. The broader criterion of
considering “all pertinent information concerning the inmate,” is not ambiguous at all and does
not prohibit the Parole board from considering those very same factors – and more. (See
Attachments C & D)

Even more troubling may be the disingenuous press quote by the Honorable Attorney General
that reads; “[w]e gave our word to New Mexico’s families that we would keep the most violent
offenders and murderers behind bars when we abolished the death penalty. We must keep our
word.” Despite this political grandstanding, the Attorney General is well aware the statute in
question does not deal with those sentenced to life imprisonment without possibility of release
or parole under §31-18-14. 2009, ch. 11, § 1.

Restricting or limiting the discretion of probation officer: When responding to failed drug
tests, missed appointments, or missed curfews, officers have a limited range of sanctions they
could impose immediately after these violations occurred, thus violations often accrued until

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probationers are revoked to prison as a result. As mentioned before, HB 564 would allow
officers the authority to sanction someone to the local jail for up to 90 days. HB 564 offers
swift, proportionate responses and allows the officers more discretion by distinguishes
between high-risk and low-risk offenders. This provision is not remotely ambiguous and the
“rule of lenity” (which is apparently a major concern for prosecutors) is not implicated. Non-
technical violations – new crimes – are still subject to revocation.

HB 564 was vetted by the Criminal Justice Reform Subcommittee and the Courts, Corrections &
Justice Committee before being introduced. The DAs Association did speak at the February 13th
HJC hearing but chose not to speak during public comment at the HJC hearing on February 20,
2019 and chose not to speak at the SJC hearing on March 6th. In fact, not a single prosecutor
nor anyone from the AGs offices spoke with me or e-mailed me regarding HB 564. Not one of
the six combined agency bill analysis done by the DAs Association and AG’s Office contained
any proposed amendments. The DAs Association and Attorney General had every opportunity
to work with the legislature on any aspect of HB 564.

Probation is the best opportunity state government has to reduce recidivism and hence, make
our communities safer. Probation systems when done well can be the most effective way of
reducing recidivism. State after state has proven this. The thrust of HB 564 is to modernize our
probation and parole department toward best practices and lower the crime rate in New
Mexico. HB 564 will do just that.

With Respect,

Antonio Maestas
Chair, House Commerce and Economic Development Committee

Gail Chasey
Chair, House Judiciary Committee

i
CSG Justice Center analysis of prison admissions data provided by NMSC (January 2019); CSG
Justice Center correspondence with NMSC on February 11, 2019. Data files provided to CSG Justice
Center did not allow for the identification of admissions to prison for probation revocations.
Admissions for probation revocations for FY2012 through FY2015 were estimated by NMSC based
on probation violation data. Admissions for probation revocations for FY2016 and FY2017 were

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estimated by applying the average percent of total admissions for FY2012 through FY2015 to the
total admissions in each year.
ii
CSG Justice Center analysis of prison admissions and release data provided by NMSC (January 2019). Number of
people is based on releases from prison for all admission types, including revocations, and multiple releases for the
same person in one year are counted separately. Releases to supervision are releases to probation, parole, or dual
supervision. Reincarceration is based on admission to prison for any reason within one year of the release date and
may have occurred after the period of supervision ended.
iii
CSG Justice Center analysis of prison release data provided by NMSC (January 2019). Number of people is based on
admissions to prison for parole revocations with a release date during FY2017. Multiple releases for the same
person during the year are counted separately. Admissions for parole revocations may include probation
revocations; prison data files did not identify admissions for probation revocations. Less than 1 percent of release
records were missing admission type and were excluded from this analysis. Sentence length information was
included in prison data files, and less than 1 percent of release records were missing sentence length.
iv
LFC, Program Evaluation: Corrections Department – Status of Programs to Reduce Recidivism and Oversight of
Medical Services.

Please also see the following links:

https://www.nmlegis.gov/Entity/LFC/Documents/Program_Evaluation_Reports/Corrections%20Department%20-
%20Status%20of%20Programs%20to%20Reduce%20Recidivism%20and%20Oversight%20of%20Medical%20Servic
es.pdf

Less Is More: How Reducing Probation Populations Can Improve Outcomes, Harvard Kennedy School, August 2017
https://www.hks.harvard.edu/sites/default/files/centers/wiener/programs/pcj/files/less_is_more_final.pdf

Probation and Parole Systems Marked by High Stakes, Missed Opportunities, Pew Trusts, 9/25/18
https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/09/probation-and-parole-systems-
marked-by-high-stakes-missed-opportunities

Understanding the Risk Principle: How and Why Correctional Interventions Can Harm Low-Risk Offenders, The
Corrections Institute, University of Cincinnati, 2004
http://caparc.org/uploads/3/5/2/7/35276822/high_low_risk_article.pdf

Phelps MS. The Paradox of Probation: Community Supervision in the Age of Mass Incarceration. Law Policy. 2013
http://caparc.org/uploads/3/5/2/7/35276822/high_low_risk_article.pdf

Exploring the Black Box of Community Supervision, Journal of Offender Rehabilitation, James Bonta, PhD, Public
Safety and Emergency Preparedness Canada, July 2008
file:///C:/Users/Owner/Downloads/Bontaetal.J.OffenderRehabilitation2008.pdf

Vision for Probation and Parole Reform, Arnold Foundation

http://craftmediabucket.s3.amazonaws.com/uploads/PDFs/Community-Supervision-FINAL.pdf

US needs bold reforms to transform probation and parole, The Hill, 1/19/19
https://thehill.com/opinion/criminal-justice/425807-us-needs-bold-reforms-to-transform-probation-and-parole

Does Community Supervision Have a Future? The Crime Report, By Isidoro Rodriguez, 3/1/2019
https://thecrimereport.org/2019/03/01/does-community-supervision-have-a-future/

Arnold Foundation Launches Major Initiative to Transform Probation and Parole, Reduce Revocations to Prison,
9/25/18

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https://www.arnoldventures.org/newsroom/laura-and-john-arnold-foundation-launches-major-initiative-to-
transform-probation-and-parole-reduce-revocations-to-prison

Justice Reinvestment Performance Measures in North Carolina, May 20, 2016

https://ncdps.s3.amazonaws.com/s3fs-public/documents/files/JRPerformanceMeasures2016.pdf

Adult Sentencing & Release Guidelines, State of Utah Sentencing Commission 2017 (See pages 34 - 42)
https://justice.utah.gov/Sentencing/Guidelines/Adult/2017%20Adult%20Sentencing%20and%20Release%20Guideli
nes.pdf