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SPONSOR: |
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DATE TYPED: |
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HB |
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SHORT TITLE: |
Substance Abuse & Crime Prevention Act |
SB |
365/aSFL #1 |
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ANALYST: |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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$3,500.0 |
See
Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Department
of Health (DOH)
Health
Policy Commission (HPC)
Office
of the Attorney General (AG)
Public
Defender Department
Administrative
Office of the Courts (AOC)
NM
Corrections Department (NMCD)
SUMMARY
The Senate Floor Amendment # 1 changes the
language in the bill to require a referral to an appropriate substance abuse
treatment program as condition of probation.
The change follows the intent of the legislation.
Synopsis
of Original Bill
Senate
Bill SB 365 requires the Department of Health to study the need for funding in
order to provide adequate capacity for behavioral health treatment, and to
produce a plan for such an increase in capacity.
In
addition, SB 365 mandates substance abuse treatment rather than incarceration
for nonviolent offenders who violate the Controlled Substances Act. SB 365
makes provision for expunging the record of controlled substances convictions
under certain circumstances. The courts would be allowed discretion on
sentencing in certain specific situations.
Significant
Issues
DOH stated that for nonviolent offenses
against the Controlled Substances Act, sentencing does not generally focus on
providing treatment for addictions. Persons whose offenses were directly due to
addiction constitute a significant burden of the criminal justice system, at
great financial cost. Enacting SB 365 would ensure that first or second offense
non-violent drug offenders would receive treatment instead of incarceration. There is national support for diversion to
treatment or community services for offenders of controlled substance laws.
Creating a process to get drug offenders into treatment rather than prison
would have a beneficial overall impact to the State.
The Act repeals Section 30-31-28 NMSA, currently
controlling conditional discharge for possession as first offense. Sections (A) through (D) of that section are
closely related to Sections 5(A) through (D) of the Act, yet the Act provides
some significant changes to the material.
Section 30-31-28(A) provides for probation but, unlike the Act, does not
include referral to an appropriate substance abuse treatment program as
conditions of probation. Section
30-31-28(C) states that discharge and dismissal can occur only once with respect
to any person, whereas the Act eliminates this restriction. Unlike Section 5(E) of the Act, Section
30-31-28 does not provide conditions under which a court may elect not to refer
an offender under Section 30-31-28 to probation.
FISCAL IMPLICATIONS
There
is no appropriation included in SB 365 and there could be significant costs. Behavorial Health Services Division (BHSD), the
Department of Finance and Administration (DFA), and county/ municipal
government's substance abuse treatment costs could greatly increase. An
increase of just 500 clients served for 30 days in residential treatment would
cost a minimum of $1.5 million. 1000 clients served for 60 days in outpatient
would cost an additional $2 million. In order to increase the treatment options
proposed in SB 365, approximately $3.5 million annual increase to BHSD's
existing budget would be necessary.
It is estimated that of the annual 4,000 multiple offenders,
1,500 would be served by BHSD and the
remaining 2,500 would be served via DFA and county/municipality funding. The
Behavioral Health Needs and Gaps in New
Mexico has identified that multi-systemic substance abuse funding provided
for New Mexico is $32,000,000 ($14,000,000 of this is DOH), while the ideal expenditure
would be $169,000,000 for an ideal system of care.
ADMINISTRATIVE IMPLICATIONS
DOH
is mandated to review and assess substance abuse treatment funding, and provide
to the Legislative Finance Committee a report regarding its review of substance
abuse treatment funding. Financial reviews are conducted on a regular basis by
the DOH. Plans for increasing treatment capacity would be based on the Gap
Analysis, as will recommendations to the Legislature.
Public
Health Division may contribute to the study and plan required by SB 365, which
would entail some additional investment of time by PHD personnel but could be
done with current staff.
TECHNICAL ISSUES
Section
5, E (2) states that the court may elect not to refer to probation or treatment
if “the offender has been sentenced to a term of incarceration…” It is not
clear to DOH how this provision relates to the remainder of the sentencing
provisions of SB365, which stipulated that the court would sentence the
offender to incarceration.
AOC points out that Section 5(D) of the Act
refers to nonpublic records filed with the attorney general as records that
will not be expunged. Section 5(C)
replaces Section 30-331-28(C) NMSA but whereas the current statutory section
provides that the AG shall retain a nonpublic record, Section 5(C) makes no
mention of such record. Thus, the
reference to the nonpublic records in Section 5(D) of the Act does not track
other provisions of the Act. It is also not clear to the AG how such records would be
retained under this bill
Although Section 5 of the bill is titled
“Conditional Discharge--Treatment Required,” the body of Section 5
states, “The conditions of probation may include a referral to an appropriate
substance abuse treatment program.”
According to the New Mexico Corrections Department, the body of the bill
does not support the notion that the reason this conditional discharge statute
is supposedly different then the existing statute is because substance abuse
treatment would now be required.
OTHER SUBSTANTIVE ISSUES
SB
365 would require the courts to use treatment rather than incarceration for
persons convicted of nonviolent crimes violating the Controlled Substances Act.
From DOH point of view, effective treatment programs are superior to criminal
sanctions as a means of preventing recidivism. Persons with drug or alcohol
abuse or dependence (addiction) have a psychiatric disorder that is not
effectively treated by incarceration. As long as their disorder has not been
effectively treated, it is unrealistic to expect them to cease violating drug
laws. There are effective outpatient treatment methods; moreover, these are
significantly less expensive than imprisonment. In addition, drug addiction
leads to property crimes, such as shoplifting, due to addicts seeking money to
obtain drugs. Effective treatment would have the benefit of preventing a
significant percentage of such property crimes. It may also improve offenders’
ability to function as productive members of society.
As
shown in the
SB
365 would allow the court discretion not to refer an offender to probation or
substance abuse treatment if the offender has committed certain crimes (Section
5, paragraph E). DOH suggests removing certain offenses from this
paragraph. The department states that
this might include driving under the influence, and certain nonviolent property
crimes such as shoplifting, if they occur in the context of substance
dependence (addiction). The rationale would be that, in such cases, treating
the underlying addiction it the most effective way to prevent recidivism. It would be helpful to require that a study
and a plan incorporate what is known about effective treatment methods, and specify
these, rather than focusing on capacity alone.
The Public Defender supports Drug Courts (indeed, any alternative
sentencing for nonviolent offenders) as an effective and cost efficient
alternative sentencing that combats recidivism.
Many of the Department’s clients have substance abuse issues. Without
Drug Courts, sentencing authorities (judges) are faced with either punitive
measures, or, for those who merit probation, an inability to monitor
rehabilitative progress. The long-term
solution for those who have substance abuse issues cannot be addressed by
simple incarceration, just as addiction cannot be cured by a stern probationary
lecture from the Bench. Drug Courts
enable the Judge to maintain the offender under the jurisdiction of the Court
and to insure rehabilitation is more than just a vague hope.
Certain
offenses might be removed from Section 5, paragraph: driving under the
influence, and certain nonviolent property crimes such as shoplifting, if they
occur in the context of substance dependence (addiction).
SB
365 could be strengthened by specifying that the study required of the
Department of Health must address the question of which treatment methods are
known to be effective, and making recommendations on that basis.
Add language in Section 5(C) regarding nonpublic
records kept by the AG or remove the language referring to nonpublic records in
Section 5(D).
BD/njw:yr