New Mexico governor orchestrating compromises on second-chance bill

New Mexico’s Democratic governor is arranging talks with the attorney general, “public safety leaders” and victims advocates to erode the second-chance bill.

The legislation is meant to decrease how long someone is in prison before they’re eligible for parole if they are convicted as a juvenile.

It stands at 30 years. The original 2022 measure sets it at 15 years. The governor supports a possible 20 years, her spokesperson confirmed via email on Thursday. 

Sen. Randall Pettigrew (R-Lovington) said Gov. Michelle Lujan Grisham on Tuesday started negotiating with stakeholders including the prosecutors’ association and Senate Republicans, and they reached “an agreement” on an amendment to Senate Bill 43.

Advocates are concerned that amendments could allow for stackable sentences that amount to a life sentence for people who aren’t yet 18.

Pettigrew told the House Consumer and Public Affairs Committee on Thursday night that if the bill’s sponsors adopt the amendment, Lujan Grisham will drop her opposition to the bill.

“I was asked to carry this amendment,” Pettigrew said.

He did not say by whom, but said it is “based very specifically” on a news release the governor published Wednesday in which she reiterated her support for legislation that “would keep violent criminals out of New Mexico communities by driving a wedge in the revolving door of our criminal justice system.”

Nora Meyers Sackett, Lujan Grisham’s spokesperson, said the governor identified a “workable compromise,” amending the parole eligibility out to two decades.

But the bill’s initial 15-year timeline is already a concession. It contains a provision that was rewritten last year to compromise with its opponents.

More importantly, the amendment is broader than that. One part of it would undermine the entire purpose of the bill, says the sponsor, Antoinette Sedillo Lopez (D-Albuquerque).

It adopts all but one of the floor amendments introduced by Republicans but rejected by the Senate on Tuesday, Feb. 8.

That includes language which would codify in statute a practice adopted by judges of “stacking” sentences to run them one after another. This ensures that a child spends the rest of their life in prison, according to two expert witnesses.

While no judge has so far sentenced a young person to life without parole, this practice of stacking has resulted in young people like Joel Ira being denied a meaningful opportunity to obtain release by demonstrating his maturity and rehabilitation. In that case, the New Mexico Supreme Court wrote that the “Legislature is at liberty to enact legislation providing juveniles sentenced to lengthy term-of-years sentences with a shorter period of time to become eligible for a parole eligibility hearing.”

Of the 446 people serving life sentences in the state, there are 27 people who were not legally adults at the time of their offense. A defendant in this state has to do the whole 30 years, day-for-day, before becoming eligible for parole on a life sentence. They do not get credit for good behavior that would shave years off before they can ask for parole.

“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,” said Denali Wilson, a lawyer for the American Civil Liberties Union of New Mexico.

The practical effect of the governor’s amendment would be that any of the defendants who are facing long periods in prison because of a series of shorter sentences that have been stacked would not actually have their total sentence reduced by the grant of parole, according to Public Defender Kim Chavez Cook.

Instead, they would only receive parole on whatever sentence they were then serving, if they even got a hearing, Chavez Cook said. Someone who was serving consecutive sentences would either not get a hearing at all or would only get a hearing as to the sentence they are actively serving at the 15-year mark.

Even if the parole board felt that parole was appropriate, the inmate would nevertheless stay in prison to serve the remaining consecutive sentences, Chavez Cook said.

It’s unclear whether that 15-year clock would restart for parole review on the subsequent sentences, Chavez Cook said.

House Judiciary Committee Chair Gail Chasey said Thursday night she would prefer to have the discussion on the amendment either in her committee or before the bill reaches that committee because “there are some legal consequences that are not readily apparent.”

Meyers Sackett on Friday deferred all questions about details of legislative amendments to lawmakers.

“We will be following the bill as it makes its way through the process,” she said.

After it became clear on Thursday night that the House Consumer and Public Affairs Committee would not approve the amendment, Republicans tried to table the bill but were voted down.

The bill still needs to go through the House Judiciary Committee before it can be considered for a vote by the House of Representatives.

Courts asking Legislature to act

Sedillo Lopez said New Mexico courts have been asking the Legislature to address the question posed by SB 43 for 20 years.

Former New Mexico Supreme Court Justice Richard Bosson, in reviewing an 81-year sentence for someone who was convicted as a juvenile, thought that it was an appropriate case for the Legislature to intervene with a policy decision, and SB 43 is an answer to the court’s request, she said.

The U.S. Supreme Court made automatic mandatory sentences of life without parole for juveniles unconstitutional. Under New Mexico law, a judge has the option to sentence someone convicted as a juvenile to life without the possibility of parole.

The New Mexico Sentencing Commission is in favor of SB 43, said Douglas Carver, its deputy director.

The Commission is endorsing the bill because second chance legislation is important, “especially given what we now know about brain science in emerging adults,” Carver said.

Science on adolescent development commonly identifies 25 as the age when a brain is fully developed, according to the Sentencing Project. “Before this point, individuals are less able to regulate their behaviors and foresee consequences from their actions,” they write. Though the U.S. Supreme Court rulings only differentiated young people under 18 in terms of culpability for violent crime, “emerging science suggests a more accurate age for this cutoff should be 25.”

Another proponent of SB 43 is David Schmidt, former director of the New Mexico Council on Crime and Delinquency and the principal author of the current New Mexico Children’s Code, which eliminated any eligibility for adult life without parole and the death penalty.

“When the death penalty was repealed for adults and replaced with life without parole, children inadvertently became eligible for the sentence of life without parole, and it was an added option to our Children’s Code,” Schmidt said. “However, life without parole has never been used in New Mexico.”

The bill would clarify the grievous error in the law and eliminate the possibility of life without parole hereafter, Schmidt said.