Lawmakers to revamp state’s criminal code

November 6, 2013 • State News

SANTA FE, N.M. (AP) — For the first time in decades, the Legislature is preparing to tackle a complete rewrite of the criminal code, a job expected to take two years.

Both Democrats and Republicans agree that the laws — amended piecemeal over the years — are inconsistent, sometimes impose unfair penalties and should provide for more diversion programs, drug courts and GPS monitoring to keep nonviolent offenders out of prison.

A bipartisan group of eight legislators — led by two former prosecutors — will soon begin the task.

While issues of crime and punishment often can be bitterly divisive and break along party lines, in this effort, lawmakers from both sides of the aisle seem to have found common ground. Democratic and Republican legislators interviewed this week said in some cases, criminal penalties should be increased. But in general, they said, the state should change its long-held attitude that the best way to fight the crime problem is jailing more criminals, adding more crimes to the law books and spending more money to build prisons.

“We’re pouring millions of dollars into criminal justice in New Mexico, and it’s not working,” Sen. Lisa Torraco, R-Albuquerque, said in a recent interview. Torraco, a freshman lawmaker who has worked as a prosecutor, a criminal defense lawyer and a professor of criminal law at The University of New Mexico, co-chairs the recently appointed subcommittee.

“Something’s broken, and we just keep throwing money at it. And we’re still not safe,” she said.

“I’m not advocating this as a ‘get-tough-on-crime’ Republican,” Torraco said. “I’m a get-smart-on-crime [auth] Republican.”

House Democratic Whip Antonio “Moe” Maestas of Albuquerque, the other co-chairman, agrees. “This is long overdue,” he said Wednesday.

Some of the goals of the subcommittee: Keeping nonviolent offenders out of prison; making sure prisons emphasize rehabilitation and decreasing recidivism; making sure criminal penalties are more equitable for various types of offenses; giving more consideration to crime victims; and increasing the justice system’s use of diversion programs, drug courts and GPS monitoring systems.

Both lawmakers, as well as another subcommittee member, Sen. Cisco McSorley, D-Albuquerque, cited a big problem: For years, the Legislature has dealt with criminal laws on a piecemeal basis, increasing penalties for certain crimes following a highly publicized incident.

Torraco said the need for a revamp of criminal penalties occurred to her in the last legislative session, when she realized that an animal cruelty bill, which she backed, had greater penalties than those given to child abusers.

Maestas said ideally, homicide should have the worst penalties, and lesser crimes should have lesser sentences. That isn’t always the case.

While first-degree murder has the highest maximum penalty — life in prison without possibility of parole — Maestas said most homicide cases end with a second-degree murder conviction, which has a maximum sentence of just 15 years. And aggravated battery — inflicting great bodily harm or injuring someone with a deadly weapon — has a maximum sentence of only three years in prison. Meanwhile, Maestas said, a drug trafficker convicted of a second offense can get up to 18 years in prison.

He said he believes there should be harsher penalties for second-degree murders and a new category for more severe cases of aggravated battery.

Another problem, Torraco noted, is that New Mexico has many petty misdemeanors on the books that might seem obsolete or just plain silly. For instance, there’s a law against spitting on a building. Another New Mexico statute prohibits “improper use of official anthems” in public.

While such laws rarely are enforced, in theory, someone singing an irreverent version of “The Star Spangled Banner” or spitting on a building could serve more jail time than a first-time, drunken-driving offender, Torraco said. She believes these crimes should be taken off the books.

Crafting prison-reform legislation will be an important part of the subcommittee’s task, Torraco said. “We can’t just keep throwing people into prison,” she said, adding that prisons should be for violent offenders.

Steve Allen, policy director of the New Mexico chapter of the American Civil Liberties Union, said Wednesday that taking a comprehensive approach to update the criminal code is a positive step. “Half the bills we monitor are those trying to increase criminal penalties and fines,” he said. “That’s not the best way to approach criminal law.”

Torraco and Maestas, as well as McSorley — one of the most liberal members of the Legislature — all say they were inspired by ideas promoted on a conservative website called, as well as criminal justice reforms that have taken place in the state of Texas.

“In Texas, it was a truly bipartisan effort,” McSorley said. “They cut the crime rate and have closed two prisons.”

“It’s the red states where you’ve seen some of the most progress in reform,” Maestas said. “I think Republicans have more political cover.” He noted that many Democrats are afraid of being painted as “soft on crime.”

The site, which is a project of a conservative think tank called the Texas Public Policy Foundation, has a “Statement of Principles” that includes many of the ideas the subcommittee will be discussing.

“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending,” the statement says. “That means demanding more cost-effective approaches that enhance public safety. ”

In regard to prisons, the statement says something many liberals could embrace. Prisons, the statement says, “are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered.”

The website endorses private prisons — which many Democrats oppose — but says private prison contracts should include incentives for lowering recidivism “and the flexibility to innovate.”

Those who have signed the statement of principles include former Florida Gov. Jeb Bush, former House Speaker Newt Gingrich and Americans for Tax Reform leader Grover Norquist. Two New Mexican conservatives are among the signatories, former Attorney General Hal Stratton and Rio Grande Foundation President Paul Gessing.

The subcommittee is expected to schedule its first meeting in the near future. Torraco stressed she wants the public to share ideas with the panel.

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