SB0000

SENATE BILL

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Bill B. O'Neill and Antonio Maestas and Gail Chasey

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO CRIMINAL JUSTICE; LIMITING INCARCERATION FOR TECHNICAL VIOLATIONS OF PROBATION AND PAROLE; ALPHABETIZING DEFINITIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

"31-20-5. PLACING DEFENDANT ON PROBATION.--

A. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the magistrate, metropolitan or district court has deferred or suspended sentence, it shall order the defendant to be placed on probation for all or some portion of the period of deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the corrections department to furnish. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not exceed five years and the total period of probation for the magistrate or metropolitan courts shall be no longer than the maximum allowable incarceration time for the offense or as otherwise provided by law.

B. The court may designate specific and particular conditions as conditions that warrant a standard violation pursuant to Subsection B of Section 31-21-15 NMSA 1978 for a defendant serving a period of probation under a suspended, deferred or conditional discharge from a plea or conviction that includes either a sex offense as defined in Section 29-11A-3 NMSA 1978 or a serious violent offense as enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978. The court may only order that violating these conditions constitutes a standard violation if it finds by clear and convincing evidence these additional conditions are necessary to ensure public safety or the safety of a particular individual.

[B.] C. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

(2) in the event that the defendant violates any condition of that parole, the parole board shall cause [him] the defendant to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation."

SECTION 2. Section 31-21-5 NMSA 1978 (being Laws 1978, Chapter 41, Section 1, as amended) is amended to read:

"31-21-5. DEFINITIONS.--As used in the Probation and Parole Act:

A. "absconding" means that a person under supervision willfully makes the person's whereabouts unknown or willfully fails to report as ordered with a purpose to evade compliance with the person's supervision obligations by making the person's self unavailable for supervision, which may be inferred from surrounding circumstances, and when a person's failure to appear without notice for three or more consecutive supervision appointments of which the person had actual notice, shall provide a rebuttable presumption of that purpose;

B. "adult" means a person convicted of a crime by a district court;

C. "board" means the parole board;

D. "director" means the director of the adult probation and parole division of the corrections department or any employee designated by the director;

E. "geriatric inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) is fifty-five years of age or older;

(3) suffers from a debilitating and chronic infirmity, illness or disease related to aging; and

(4) does not constitute a danger to the person's own self or to society at the time of review;

F. "institution" means the state penitentiary and any other similar state institution hereinafter created;

G. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

H. "permanently incapacitated inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) by reason of an existing medical condition is permanently and irreversibly physically incapacitated; and

(3) does not constitute a danger to the person's own self or to society at the time of review;

[A.] I. "probation" means the procedure under which an adult defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions;

[B. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

C. "institution" means the state penitentiary and any other similar state institution hereinafter created;

D. "board" means the parole board;

E. "director" means the director of the adult probation and parole division of the corrections department or any employee designated by the director;

F. "adult" means any person convicted of a crime by a district court;

G. "geriatric inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) is fifty-five years of age or older;

(3) suffers from a debilitating and chronic infirmity, illness or disease related to aging; and

(4) does not constitute a danger to the person's own self or to society at the time of review;

H. "permanently incapacitated inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) by reason of an existing medical condition is permanently and irreversibly physically incapacitated; and

(3) does not constitute a danger to the person's own self or to society at the time of review; and]

J. "standard violation of probation" or "standard

violation of parole" means any violation:

(1) that violates a condition that the probationer or parolee refrain from having contact with a victim or witness;

(2) that constitutes absconding;

(3) that constitutes a new crime not constituting a technical violation; or

(4) for a sex offender or serious violent offender pursuant to Subsection C of Section 31-20-5 NMSA 1978, any contact with the victim or any violation of a condition designated by the sentencing court as a standard violation;

K. "technical violation of probation" or "technical violation of parole" means any willful violation of conditions of probation or parole supervision that is not a standard violation, including a positive chemical test for alcohol or controlled substance consumption or missing a scheduled supervision appointment; and

[I.] L. "terminally ill inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) has an incurable condition caused by illness or disease that will, within reasonable medical judgment, produce death within six months; and

(3) does not constitute a danger to the person's own self or to society at the time of review."

SECTION 3. Section 31-21-14 NMSA 1978 (being Laws 1955, Chapter 232, Section 17, as amended) is amended to read:

"31-21-14. RETURN OF PAROLE VIOLATOR.--

A. At any time during release on parole, the board or the director may issue a warrant for the arrest of the [released prisoner] parolee for [violation of any of the conditions of release] a standard violation of parole or issue a notice to appear to answer a charge of any violation. The notice shall be served personally upon the [prisoner] parolee. The warrant shall authorize the [superintendent] warden of the institution from which the [prisoner] parolee was released to return the [prisoner] parolee to the actual custody of the institution or to any other suitable detention facility designated by the board or the director. If the [prisoner] parolee is out of the state, the warrant shall authorize the [superintendent] warden to return [him] the parolee to the state. For a technical violation of parole, the director shall issue a notice to appear served personally upon the parolee unless the director authorizes an arrest warrant based on a flight risk or danger to the community.

B. The director may arrest the [prisoner] parolee without a warrant or may deputize [any] an officer with power of arrest to do so by giving [him] the officer a written statement setting forth that the [prisoner] parolee has, in the judgment of the director, [violated the conditions of his release] committed a standard violation of parole and the parolee presents a flight risk or danger to the community. Where an arrest is made without a warrant, the [prisoner] parolee shall not be returned to the institution unless authorized by the director or the board. Pending hearing as provided by law upon [any] a charge of a standard violation of parole, the [prisoner] parolee presenting a flight risk or danger to the community shall remain incarcerated in the institution.

C. Upon arrest and detention or service of a notice to appear, the board shall cause the [prisoner] parolee to be promptly brought before it for a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt.

D. If a standard violation of parole is established, the board may continue or revoke the parole, impose detention for a fixed term up to ninety days, which shall be counted as time served under the sentence, or enter any other order as it sees fit.

E. Except as provided in Subsection F of this section, if a technical violation of parole is established before the board at a technical violation hearing, the board:

(1) shall not impose a sanction of more than three days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a first technical violation of parole;

(2) shall not impose a sanction of more than five days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a second technical violation of parole;

(3) shall not impose a sanction of more than seven days of incarceration for a third technical violation of parole; and

(4) may impose incarceration for a fixed term up to thirty days, which shall be counted as time served under the sentence, or enter any other order as it sees fit for a fourth or subsequent technical violation of parole.

F. The board may impose incarceration beyond the terms outlined in Subsection E of this section if the board finds that additional detention is necessary for the parolee's rehabilitation or public safety.

[D.] G. A [prisoner] parolee for whose return a warrant has been issued shall, if it is found that the warrant cannot be served, be a fugitive from justice. If it appears that [he] the parolee has violated the provisions of [his] the parolee's release, the board shall determine whether the time from the date of the violation to the date of [his] the parolee's arrest, or any part of it, shall be counted as time served under the sentence."

SECTION 4. Section 31-21-15 NMSA 1978 (being Laws 1963, Chapter 301, Section 13, as amended by Laws 2016, Chapter 27, Section 1 and by Laws 2016, Chapter 31, Section 1) is amended to read:

"31-21-15. RETURN OF PROBATION VIOLATOR.--

A. At any time during probation:

(1) the court may issue a warrant for the arrest of a probationer for [violation of any of the conditions of release] a standard violation of probation. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court;

(2) the court may issue a notice to appear to answer a charge of any violation and shall issue the notice for a technical violation of probation unless the court issues an arrest warrant based on a flight risk or danger to the community. The notice shall be personally served upon the probationer; or

(3) the director may arrest a probationer without warrant or may deputize any officer with power of arrest to do so by giving the officer a written statement setting forth that the probationer has, in the judgment of the director, [violated the conditions of the probationer's release] committed a standard violation of probation. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer. Upon the probationer's arrest and detention, the director shall immediately notify the court and submit in writing a report showing in what manner the probationer has violated the conditions of release.

B. Following service of a notice to appear or arrest pursuant to Subsection A of this section, the court shall then hold a hearing, which may be informal, on the violation charged. If [the] a standard violation of probation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence; provided that, except as provided in Subsection C of this section, the court:

(3) shall not impose a sanction of more than three days of incarceration for a third technical violation of probation; and

(4) may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence for a fourth or subsequent technical violation of probation.

C. The court may impose incarceration beyond the terms outlined in Subsection B of this section if the court finds that additional detention is necessary for the probationer's rehabilitation or public safety.

D. If imposition of sentence was deferred, the court may, consistent with Subsection B of this section, impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

[C.] E. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court.

[D.] F. The board shall budget funds to cover expenses of returning probationers to the court. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state."

- 13 -