New Mexico Senate to weigh probation and parole reforms

When a person gets out of prison in New Mexico and breaks the rules of their probation or parole, they are sent back to prison.

But it’s not usually a new crime that lands them back behind the walls.

In fact, 70% of the people in that situation have committed a “technical” infraction, according to legislative analysts. That could be failing to meet with their probation officer, or using drugs or alcohol.

Hundreds of New Mexicans are re-imprisoned for violating the conditions of their release and make up around 30% of the entire state prison population.

And they stay there longer than one year on average when it’s a parole case.

Senate Bill 84, making its way through the N.M. Legislature, would revise the system and tie punishments to the severity of the violation — rather than the crime that originally sent them to prison, said Kim Chavez-Cook, an appellate defender with the Law Offices of the Public Defender.

The proposal defines a technical violation as an action that doesn’t threaten anyone or that wouldn’t count as a new criminal charge.

The measure would not impact how more serious offenses are handled, Chavez-Cook said.

The way New Mexico approaches these violations now is one-size-fits-all, she said, and has the potential to treat every infraction like it’s severe.

The measure passed through the Senate Health and Public Affairs Committee after some tinkering with the penalties in late January. And on Wednesday, it sailed through the Senate Judiciary Committee on a unanimous 5-0 vote.

The overall goal of the legislation is to limit how long someone is incarcerated for only technical violations, she said.

The reform proposal rolls out alternate penalties that aren’t more prison time at first, but after three infractions, prison is back on the table. And after that, the state Parole Board and the courts would penalize exactly as they do now, Chavez-Cook said.

SB 84 recommends a target maximum sanction but does not mandate it, she said.

With fewer people serving long sentences for technical violations, SB 84 would also save the New Mexico Corrections Department more than $20 million per year, according to legislative analysts.

It doesn’t take a lot of creativity to imagine any number of better uses for these precious state resources, said Denali Wilson, an attorney with the American Civil Liberties Union of New Mexico.

“What if instead of punishing people for struggling when they come home from prison, we invested in their success?” she asked. “The substantial resources that are currently expended to enforce technical parole violations across the state could instead be used to expand transitional housing options, substance abuse treatment and other important mental health resources.”

The bill is sponsored by Sens. Bill O’Neill and Antonio Maestas, both Albuquerque Democrats.

It must go before a full vote in the Senate before it goes through the committee process in the House of Representatives.

Probation officers ‘an arm of law enforcement’

Supervised release was originally seen as an alternative to prison until the tough-on-crime movement of the 1970s and 1980s changed the conversation, Chavez-Cook said. Then it started to become a driver of the prison population.

Probation officers “went from more of a social worker-type of role to an arm of law enforcement, to surveil people and see if they were making mistakes, and enforce penalties if they were,” she said.

Without support like transportation and housing, or treatment for substance use disorder, most people on probation or parole are set up for failure, said Rikki-Lee Chavez, with the New Mexico Criminal Defense Lawyers Association.

O’Neill was the executive director of Dismas House New Mexico, a prison reentry program for men exiting prison who struggle with behavioral health issues.

“Almost always, they can’t — they test dirty for various substances,” he said. “So the trick here is to hold these individuals accountable for their choices, and at the same time, acknowledge that this is really, so many times, an addiction issue.”

Numerous studies have found community-based sanctions are as effective — if not more effective — than incarceration for addressing violations of release conditions, Chavez-Cook said.

South Carolina uses graduated sanctions, and the state saw infractions resulting in prison time fall by 46%. Hawaii’s use of swift and certain sanctions under a similar system found probationers were 55% less likely to be arrested again, 72% less likely to use drugs, and 61% less likely to skip appointments when they received graduated sanctions.

Seven out of 10 violations are technical

People admitted to state prisons because of a parole violation spent an average of 415 days in prison in Fiscal Year 2021, according to the New Mexico Sentencing Commission.

The Legislative Finance Committee estimates about 70% of the violations are technical.

While it is true prison populations have been on the decline in New Mexico, Chavez-Cook said, there is a significant percentage of people held for breaking their conditions of release.

Nationally, 45% of new prison admissions are because of probation or parole violations, she said, which is about one-quarter of the prison population across the country.

She could not give the committee an accurate count of how many people are in New Mexico prisons right now on probation violations, “because we do not distinguish between an entry for a probation violation and an entry for the underlying felony.”