Second Chance bill opponents ask for another compromise
Legislation already departs from expert recommendations
“I beg that if this bill makes it to the governor’s table that you veto it,” said Nicole Chavez at a news conference on Wednesday. (Photo by Austin Fisher / Source NM)
State prosecutors and Republican lawmakers on Wednesday morning attacked legislation that would shorten the length of time young people must serve in prison before coming up for parole, painting it as a radical proposal and its proponents as unwilling to bend.
In reality, the bill is based on recommendations from experts in criminal law and already contains a provision that was rewritten last year to compromise with its opponents.
“It’s time for New Mexico to focus on victims, and it’s time for Mexico not to focus so much on violent offenders,” Ninth Judicial District Attorney Andrea Reeb said at a news conference held at the east entrance to the Roundhouse. “This second chance bill doesn’t give a second chance to victims. It’s giving a second chance to offenders in a time where we need to be protecting the citizens of New Mexico and the victims of New Mexico.”
Nicole Chavez, whose son Jayden was murdered six years ago by someone she called a juvenile repeat offender said the bill would give her son’s killer eligibility for parole after 15 years in prison.
“It’s like pulling the rug out from under us as victims,” Chavez said.
Rather than actually address SB 43, Republican lawmakers hit campaign friendly talking points about how Democrats care too much about the rights of criminals.
Judges stacking sentences
Reeb said there are no juvenile offenders serving life without parole in the state of New Mexico.
“The case law in New Mexico is clear that you can’t give life without parole,” Reeb said. “So we haven’t opposed the part of the bill that corrects that, because nobody’s getting it.”
But people are serving the functional equivalent life without parole for crimes committed when they were under 18 because judges did not have that sentence as an option until recently, said Denali Wilson, a staff attorney for the American Civil Liberties Union of New Mexico and a founding member of the N.M. Coalition for the Fair Sentencing of Youth.
Judges have adopted a practice of “stacking” sentences to run them one after another to ensure that a child spends the rest of their life in prison, Wilson said.
“These sentences are functionally, and constitutionally, equivalent to life without parole, which is why the developmentally meaningful timing of parole eligibility after 15 years is so important,” she said.
New Mexico is one of a handful of states where children are eligible for life without parole, but there are technically not children serving the sentence under that terminology, Wilson said. This is due to the history of life without parole in the state, not a deliberate policy or practice, which is why SB 43 is needed, she said.
“New Mexico was one of the last states to adopt life without parole as a sentencing option,” Wilson said. “It did so in 2009 when the death penalty was abolished. The sentence has only been around for a decade, and during that short time, no child has received the sentence. The bill makes sure they never will.”
Opponents ask for ‘compromise’
At the request of the state District Attorneys Association, Sen. Mark Moores (R-Albuquerque) and Sen. Cliff Pirtle (R-Roswell) on Tuesday tried to amend the bill on the Senate floor to lengthen the timeline from 15 to 20 years before someone convicted in their youth is eligible for parole.
Moores said the amendment would be “good public policy” and “a compromise for those who are really active in this field.”
But the bill’s sponsor, Sen. Antoinette Sedillo Lopez (D-Albuquerque), already yielded to pressure from opponents last year when she extended the timeline from 10 to 15 years.
The American Law Institute’s Model Penal Code recommends only 10 years before someone is up for a sentence review in circumstances where juvenile offenders are serving lengthy adult sentences. That guidance is what the original 2021 measure was based on.
The advice comes from sentencing experts, academics, practicing lawyers, and current and former judges, including former New Mexico Supreme Court Justices Richard Bosson and Ed Chavez.
Still, Reeb said Sedillo Lopez’s original proposal was “ridiculous.”
The Senate Judiciary Committee at the time amended the bill to allow victims to ask the parole board to not contact them about parole hearings.
Wilson said last year’s compromise departed from research on rehabilitation and recidivism, and the Institute’s recommendations.
I’m not sure the DAs understand what compromise is. We aren’t willing to write the bill they want, and that doesn’t mean we won’t or haven’t compromised.
– Denali Wilson, ACLU of New Mexico, N.M. Coalition for the Fair Sentencing of Youth
Setting first parole eligibility after 20 years is not based in an appreciation for a child’s unique capacity for change, she added, nor is it based in an understanding of their rehabilitative potential. Twenty years would be retribution and nothing else, Wilson said, and the second chance bill’s supporters cannot, in good conscience, make that kind of concession.
“The vital question is not whether 15 years is lenient, but whether it makes sense, morally or fiscally, to insist that children wait longer than 15 years for an opportunity to prove that they have invested in rehabilitation and deserve a second chance,” Wilson said. “The answer to that is unequivocally ‘no.’”
‘Criminals are gaining rights’
Rep. Rebecca Dow (R-Truth or Consequences), who is seeking the Republican nomination for governor of New Mexico in this year’s election, said the bill represents “another broken promise” by Gov. Michelle Lujan Grisham.
Dow did not speak about SB 43 specifically but said the legislative session so far has encouraged crimes not yet committed.
“The only thing that has happened so far in this session is that criminals are gaining rights and victims are losing justice,” Dow said. “We are putting criminals — violent criminals — back on the streets to risk more crimes in the future to law-abiding citizens.”
Reeb incorrectly said that only two other states actually have a 15-year parole eligibility period as proposed in SB 43. Fifteen years is the standard in West Virginia, Nevada, California, Oregon and Washington D.C.
Luce said New Mexico only has one crime that results in someone becoming a serious youthful offender: first-degree murder.
“That is the most serious crime that we have in our state, and so that’s why the parole period should not be changed,” Luce said.
Kim Chavez Cook with the Law Offices of the Public Defender said the phrase “first-degree murder” does not always mean deliberate, planned murders as SB 43’s opponents say. Many juveniles end up with this conviction for being involved in lesser crimes during which someone else kills someone because that counts as “felony murder” under state law.
“Many states treat felony murder as something less than first-degree, but here, it is treated the same as a deliberate, planned murder,” Chavez Cook said.
Luce said New Mexico sentencing judges have discretion to suspend any part of the sentence that has to be served up to 30 years, and state law requires them to consider the circumstances described in a pre-sentence report.
Chavez Cook acknowledged that judicial discretion but said at the time of sentencing, the crime was just recently committed, and the serious youthful offender has not had an opportunity to reflect, mature or rehabilitate — the court can’t yet see the types of growth and change that can occur in the following 15 years. A judge must look at the role and circumstances of the young person in the offense, according to a series of Eighth Amendment rulings by the U.S. Supreme Court.
“So a judge is not likely to assume that rehabilitation will occur in the future and is more likely to impose the full term,” she said. “That is why this bill is designed to take another look after a decade and a half has passed and see whether the person has grown or not. If not, the parole board will surely deny their release.”
SB 43 looks at a person’s total sentence and whether that total should be reduced even if serving sentences for multiple crimes, Chavez Cook said.
“The existence of multiple victims is certainly one of the considerations the parole board looks at and could very well be a basis for denying release,” Chavez Cook said. “But a person being released before completing all of the sentences originally imposed does not mean the offender was not punished at all for some of their conduct. It simply recognizes that the 15, 20, or more years they did serve was inherently punishing them for all of their crimes at once.”
The review hearing serves to simply ask whether more punishment would serve the interests of justice or society, Chavez Cook said.
“Sometimes the answer will be yes, but sometimes it will be no,” Chavez Cook said.
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