Young and incarcerated: Part 4

NM legislators consider reforming sentencing for people under 18

By: - November 15, 2021 6:00 am

A guard opens a gate at Western New Mexico Correctional Facility on Nov. 12. (Photo by Austin Fisher / Source NM)

People who are under 18 but tried and convicted as adults and sentenced to life have to serve 30 years before being eligible for parole. New Mexico lawmakers are trying to cut that time in half. 

Sen. Antoinette Sedillo Lopez, Reps. Gail Chasey and Dayan Hochman-Vigil asked the Governor’s Office at the end of August to place the “second chance” bill on the call for the 2022 session. 

In a letter to the governor in August, they argued their bill is a “measured” solution to a longstanding problem in the state. New Mexico has failed “to hold its children accountable in age-appropriate, trauma-informed ways” that focus on young people’s capacity for change and rehabilitation, they wrote.

Assistant federal defender Stephen Taylor has seen things evolve from the beginning of the 2000s to today, where judges are accounting for developmental factors.

That can make a huge difference in the outcome of a child’s sentence, he said. The factors caution trial judges against jumping to conclusions about a young person for the offense they’ve committed, he said, because it’s impossible with anyone that young to tell who they’re going to become over time.

Even with the opportunity of parole, Taylor said young New Mexicans facing life in prison “is an excessive and extreme sentence because it requires them to serve 30 years before they even have a first opportunity for release on parole.”

State statutes, the lawmakers continued, do not account for the fundamental, constitutional differences between children and adults.

The U.S. Supreme Court in Miller v. Alabama in 2011 made it unconstitutional to impose mandatory life without parole sentences for juveniles. The decision didn’t outright ban life without parole sentences. The justices later decided that their ruling in Miller could be applied retroactively to cases around the country that happened before 2011.

New Mexico’s lawmakers explained the scientific evidence the justices used as a foundation of their decision to the governor in their letter: “Because of the way the brain develops in adolescents, children are more susceptible to peer-pressure, are less capable of evaluating the risks and consequences of their conduct, lack impulse control, are more deeply affected by trauma, and are more likely to make decisions based on passion or momentary excitement,” the lawmakers wrote. “However, because these deficits are developmental, children are also more capable of change and rehabilitation than adults.”

Sentencing has to be age-appropriate and focused on the unique ability of kids to change and rehabilitate, the legislators stated. “We must create meaningful opportunities for them to be evaluated by the parole board and prove they have changed and are deserving of a second chance.”

The rise in violence involving younger people and how many of them end up with adult sentences must be addressed without delay, the lawmakers wrote. They argued people who are not adults should be eligible for parole after 15 years instead of 30.

“Studies show that the vast majority of children in our criminal legal system are contending with the harmful effects of trauma and unmitigated adverse childhood experiences,” the lawmakers state. That can be anything from physical, emotion and sexual abuse to neglect or living with family members who have substance use and mental health problems. 

About 90% of children in the justice system have experienced at least two of these factors, they state. If they’re given a second chance after 15 years, people who’ve experienced these sorts of traumas can move beyond the hardships of their childhoods. 

But the lawmakers are quick to point out this is not a get-out-of-jail-free card. People sentenced to life before they’re 18 would not be guaranteed release under their proposal. Instead, there’s an opportunity for them to demonstrate that they’ve gone through rehabilitation and deserve a shot at life outside prison walls after 15 years. 

 “The parole board — with law enforcement and community safety expertise — will make the ultimate decision as to who has been sufficiently rehabilitated to return home safely to the community.”

The lawmakers pointed to research showing that among 174 former child offenders who had been released based on this kind of change in law, there was a recidivism rate of only about 1%.

‘We don’t call it the Punishments Department’

The Senate approved the bill earlier this year, but it never got a vote on the House floor.

During the Senate debate on the bill, Rio Rancho Republican Sen. Craig Brandt spoke against it because he believes the act of taking someone’s life “honestly, should cost you your life.”

“We’ve decided not to do the death penalty in our state, right or wrong, not gonna get into that debate. But you have taken someone else’s life purposefully, planned it out, deliberately done it, and now after 15 years, we’re gonna let you out. They’re gonna have the possibility of being let go,” Brandt said. “That’s where my struggle comes in: I just think life is more valuable than that.”

But Sen. Gerald Ortiz y Pino pointed out Brandt’s argument misses the entire point of viewing prisons as a place to rehabilitate people convicted of crimes. When there has been a terrible act committed and a life has been lost, Ortiz y Pino said, taking another life away doesn’t replace that first life lost.

“We call it the Corrections Department, we don’t call it the Punishments Department,” Ortiz y Pino said. “When we can rehabilitate a youthful offender of this sort and restore them to life in the community, in being able to earn a living, help others and reach out to their own families and find some kind of healing, then we all benefit.”

On Nov. 10, the interim Courts, Corrections and Justice Committee recommended the full Legislature consider the bill.

Allowing parole review after 15 years would put the state at the progressive end of the juvenile sentencing spectrum, said Marsha Levick, chief legal officer at the Juvenile Justice Center. Some states put that number higher at as many as 40 years, she said.

“It’s a bit all over the map, and I think if one averages what the states since Miller have done, it probably ends up somewhere around a medium about 25 years before parole eligibility,” she said. “So 15 is a good number.”

In response to a request for comment on the letter, the Governor’s Office was noncommittal.

“There are lots of moving parts as we approach the 30-day session — as we do all good-faith proposals, we will thoroughly review and evaluate potential initiatives in our ongoing conversations with legislative leadership, including the legislation you reference,” spokesperson Nora Meyers Sackett wrote in an emailed statement.

In cases where the young person doesn’t get a plea agreement with a specific term of imprisonment, the length of time in prison is left up to the judge’s discretion, Taylor said.

“Unfortunately, they seem to exercise extreme caution when it comes to their view of public safety,” Taylor said.

And without a mechanism to review anyone’s sentence before 30 years, he said it is important for state lawmakers to act on this issue.

 “We have so many young people wasting away, not because they’re not tending to their rehabilitation, but they’re rehabilitated, and they’re not getting an opportunity to demonstrate that until they serve 30 years.” That leaves them without time to have a family, be a productive member of society or achieve their goals, he said, because they’re an older person when they get out. 

“All that is robbed from them,” he said. “They don’t have that chance.”

Young and incarcerated: Part 5

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.