46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CORRECTIONS; AMENDING ELIGIBILITY FORMULAS FOR EARNED MERITORIOUS DEDUCTIONS; EXPANDING THE LIST OF PREDICATE OFFENSES FOR A "SERIOUS VIOLENT OFFENSE"; AMENDING A SECTION OF THE NMSA 1978.

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

Section 1. Section 33-2-34 NMSA 1978 (being Laws 1999, Chapter 238, Section 1) is amended to read:

"33-2-34. ELIGIBILITY FOR EARNED MERITORIOUS DEDUCTIONS.--

A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification committee and approved by the warden. Meritorious deductions shall not exceed the following amounts:

(1) for a prisoner confined for committing a serious violent offense, up to a maximum of four days per month of time served;

(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served;

(3) for a prisoner confined following revocation of parole [for the alleged commission of a new felony offense or for absconding from parole] if the parole term is for an offense that is a serious violent offense, up to a maximum of four days per month of time served during the parole term following revocation; and

(4) for a prisoner confined following revocation of parole [for a reason other than the alleged commission of a new felony offense or absconding from parole] if the parole term is for an offense that is a nonviolent offense, up to a maximum of [eight] thirty days per month of time served during the parole term following revocation.

B. A prisoner may earn meritorious deductions upon recommendation by the classification committee, based upon the prisoner's active participation in approved programs and the quality of the prisoner's participation in those approved programs. A prisoner may not earn meritorious deductions unless the recommendation of the classification committee is approved by the warden.

C. If a prisoner's active participation in approved programs is interrupted by a lockdown at a correctional facility, he may continue to be awarded meritorious deductions at the rate he was earning meritorious deductions prior to the lockdown, unless the warden determines that the prisoner's conduct contributed to the initiation or continuance of the lockdown.

D. A prisoner confined in a correctional facility designated by the corrections department is eligible for lump-sum meritorious deductions as follows:

(1) for successfully completing an approved vocational, substance abuse or mental health program, one month; except when the prisoner has a demonstrable physical, mental health or developmental disability that prevents the prisoner from successfully earning a general education diploma, in which case the prisoner shall be awarded three months;

(2) for earning a general education diploma, three months;

(3) for earning an associate's degree, four months;

(4) for earning a bachelor's degree, five months;

(5) for earning a graduate qualification, five months; and

(6) for engaging in a heroic act of saving life or property, engaging in extraordinary conduct for the benefit of the state or the public that is at great expense, risk or effort on behalf of the inmate, or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to rehabilitate himself. The classification committee and the warden may recommend the number of days to be awarded in each case based upon the particular merits but any award shall be determined by the director of the adult institutions division of the corrections department.

E. Lump-sum meritorious deductions, provided in Paragraphs (1) through (6) of Subsection D of this section, may be awarded in addition to the meritorious deductions provided in Subsections A and B of this section. Lump-sum meritorious deductions shall not exceed one year per award and shall not exceed a total of one year for all lump-sum meritorious deductions awarded in any consecutive twelve-month period.

F. A prisoner is not eligible to earn meritorious deductions if the prisoner:

(1) disobeys an order to perform labor, pursuant to Section 33-8-4 NMSA 1978;

(2) is in disciplinary segregation;

(3) is within the first sixty days of receipt by the corrections department; or

(4) is not an active participant in programs recommended and approved for him by the classification committee.

G. The provisions of this section shall not be interpreted as providing eligibility to earn meritorious deductions from a sentence of life imprisonment or a sentence of death.

H. The corrections department shall promulgate rules to implement the provisions of this section, and the rules shall be matters of public record. A concise summary of the rules shall be provided to each prisoner, and each prisoner shall receive a quarterly statement of the meritorious deductions earned.

I. A New Mexico prisoner confined in a federal or out-of-state correctional facility is eligible to earn meritorious deductions for active participation in programs on the basis of the prisoner's conduct and program reports furnished by that facility to the corrections department. All decisions regarding the award and forfeiture of meritorious deductions at such facility are subject to final approval by the director of the adult institutions division of the corrections department or his designee.

J. In order to be eligible for meritorious deductions, a prisoner confined in a federal or out-of-state correctional facility designated by the corrections department must actively participate in programs that are available. If a federal or out-of-state correctional facility does not have programs available for a prisoner, the prisoner may be awarded meritorious deductions at the rate the prisoner could have earned meritorious deductions if the prisoner had actively participated in programs.

K. A prisoner confined in a correctional facility in New Mexico that is operated by a private company, pursuant to a contract with the corrections department, is eligible to earn meritorious deductions in the same manner as a prisoner confined in state-run correctional facilities. All decisions regarding the award or forfeiture of meritorious deductions at such facilities are subject to final approval by the director of the adult institutions division of the corrections department or his designee.

L. As used in this section:

(1) "active participant" means a prisoner who has begun, and is regularly engaged in, approved programs;

(2) "program" means work, vocational, educational, substance abuse and mental health programs, approved by the classification committee, that contribute to a prisoner's self-betterment through the development of personal and occupational skills. "Program" does not include recreational activities;

(3) "nonviolent offense" means any offense other than a serious violent offense; and

(4) "serious violent offense" means:

(a) first degree murder and second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978,

(c) third degree aggravated battery, as provided in Section 30-3-5 NMSA 1978;

(d) third degree aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;

[(d)] (e) first degree kidnapping, as provided in Section 30-4-1 NMSA 1978;

[(e)] (f) first and second degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

[(f)] (g) third degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

[(g)] (h) first and second degree robbery, as provided in Section 30-16-2 NMSA 1978;

[(h)] (i) second degree aggravated arson, as provided in Section 30-17-6 NMSA 1978;

[(i)] (j) shooting at a dwelling or occupied building, as provided in Section 30-3-8 NMSA 1978;

[(j)] (k) shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

[(k)] (l) aggravated battery upon a peace officer, as provided in Section 30-22-25 NMSA 1978;

[(l)] (m) assault with intent to commit a violent felony upon a peace officer, as provided in Section

30-22-23 NMSA 1978;

[(m)] (n) aggravated assault upon a peace officer, as provided in Section 30-22-22 NMSA 1978; and

[(n)] (o) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: 1) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; 2) fourth degree aggravated assault, as provided in Section 30-3-2 NMSA 1978; 3) fourth degree aggravated assault upon a household member, as provided in Section 30-3-16 NMSA 1978; [3)] 4) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; [4)] 5) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; [5)] 6) second degree kidnapping, as provided in Section 30-4-1 NMSA 1978; [6)] 7) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; [7)] 8) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; [8)] 9) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; [9)] 10) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; [10)] 11) fourth degree criminal sexual contact of a minor, as provided in Section

30-9-13 NMSA 1978; [11)] 12) third degree robbery, as provided in Section 30-16-2 NMSA 1978; [12)] 13) third degree homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978; [and 13)] 14) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978; and 15) attempt to commit any of the felonies listed in Subparagraphs (a) through (n) of this paragraph, as provided in Section 30-28-1 NMSA 1978."

Section 2. APPLICABILITY.--The provisions of this 2003 act apply to persons convicted of a criminal offense committed on or after July 1, 2003. As to persons convicted of a criminal offense committed prior to July 1, 2003, the laws with respect to meritorious deductions in effect at the time the offense was committed shall apply.

Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.