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|
SPONSOR: |
Gorham |
DATE TYPED: |
02/18/03 |
HB |
|
||
|
SHORT TITLE: |
Increase Penalties For Domestic Violence |
SB |
521 |
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ANALYST: |
Fox-Young |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Attorney
General (AG)
Administrative
Office of the Courts (AOC)
Corrections
Department (CD)
Public
Defender Department (PDD)
Administrative
Office of the District Attorneys (AODA)
SUMMARY
Synopsis
of Bill
Senate Bill 521 amends the “Crimes Against
Household Members Act,” creating
a graduated, mandatory sentencing structure for the crimes of “battery against
a household member,” “aggravated battery on a household member,” and violation
of an order of protection. The
bill sets mandatory jail terms of six months, then increasing penalties with
increases in the level of battery.
The
bill elevates third and subsequent offenses of battery on a household member,
and second and subsequent offenses of aggravated battery on a household member
without death or great bodily harm from misdemeanors to fourth degree
felonies.
The
bill also provides for a 48-hour hold following arrest for a violation of the
Crimes Against Household Members Act.
Significant
Issues
AG
notes that sentencing for these offenses currently allows for judicial
discretion within an established range that includes non-incarceration
options.
AG indicates that increasing penalties and
mandating penalties in a graduated structure implicate due process and ex post
facto protections, then noting
that the proposed penalties are similar to the sentencing structure created in
the Motor Vehicle Code for DWI crimes. Those penalties have survived due
process and ex post facto challenges based upon the analysis stated in State
v. Hall, 119 NM 707 (Ct App.1995), that imposing additional sanctions on
persons previously convicted does not doubly punish for the prior acts, but
rather increases punishment for subsequent repeated criminality. See State
v. Oglesby, 96 NM 352, 353 (Ct. App. 1981).
AG
reports that hurdles encountered in implementing the bill are likely to
parallel those encountered in the implementation of the mandatory sentencing
scheme for DWI. In the absence of a
clear indication that habitual offender sentencing enhancement for felony
convictions would apply, there will likely be interpretations that it does
not. (AG references State v. Anaya) AG notes that mandatory sentencing for DWI
offenders led to a significant increase in trials as well as an increase in
dismissals as a result of backlogs. AG
further implies that raising the stakes for offenders will encourage courts to
test the state’s proof more consistently and that record keeping in many of the
lower courts will not support these tests.
AG notes that the 48-hour hold provisions could
be strengthened if individual findings are made, demonstrating that the
offender presents a significant danger.
AG
notes that the bill does not consider out of state, tribal and federal
convictions.
A mandatory sentencing scheme raises the stakes
in the prosecution of the crimes and is likely to increase the number of trials
and appeals, also increasing the need for resources in the courts, district
attorney and public defender offices.
The
Corrections Department (CD) notes that increasing penalties, from misdemeanors
to felonies, and increasing the overall length of sentences will likely propel
a significant increase in the prison population. CD estimates the fiscal impact will begin to surface
approximately one year after the effective date. CD reports that the bill will also result in an increase in
numbers of offenders on probation and parole.
CONFLICT, DUPLICATION, COMPANIONSHIP,
RELATIONSHIP
Conflicts with HB 561 (counseling for domestic
violence offenders) and Partially Duplicates HB 156 regarding the 48-hour hold
following arrest.
TECHNICAL ISSUES
AG
notes that rules of Magistrate and Metropolitan Court currently require that a
defendant be brought promptly, and in all cases within 48 hours, for the
setting of bail as provided in the New Mexico Constitution. While reasonable pretrial detention has been
upheld in other jurisdictions, minimum detentions have encountered successful
legal challenges. (AG references Kansas
v. Cuchy) AG recommends the bill
require an individualized finding that immediate release would pose a danger to
the victim or another person and that a bond does not provide the necessary protection. (See e.g. N.C. Gen. Stat. Ann. 15A-5344.1)
Additionally,
AG notes that the 48-hour hold provision mixes mandatory and permissive language
and recommends this section be made consistent.
OTHER SUBSTANTIVE ISSUES
AG
notes that while there is research indicating that arrest and punishment can
prove successful as intervention techniques, some studies indicate that
incarceration may increase the level of violence. (AG references Fagan, Jeffery, “The Criminalization of Domestic
Violence: Promises and Limits,” National Institutes of Justice Research Report;
Sherman, Lawrence W. and Berk, Richard A., “The Specific Deterrent Effects of
Arrest for Domestic Assault,” 1984, American Sociological Review,49: 261-272;
Sherman, Lawrence, et al, “Crime Punishment, and Stake in Conformity: Legal and
Informal Control of Domestic Violence” American Sociological Review, 57:
680-690; and Sherman, Lawrence, et al, “The Variable Effects of Arrest on Crime
Control: The Milwaukee Domestic Violence Experiment”, Journal of Criminal Law
and Criminology 83:137-169.)