SENATE BILL 236
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO CRIMINAL SENTENCING; INCREASING THE PENALTY FOR CHILD ABUSE RESULTING IN DEATH WHEN THE CHILD IS UNDER TWELVE YEARS OLD.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-6-1 NMSA 1978 (being Laws 1973, Chapter 360, Section 10, as amended by Laws 2004, Chapter 10, Section 1 and by Laws 2004, Chapter 11, Section 1) is amended to read:
"30-6-1. ABANDONMENT OR ABUSE OF A CHILD.--
A. As used in this section:
(1) "child" means a person who is less than eighteen years of age;
(2) "neglect" means that a child is without proper parental care and control of subsistence, education, medical or other care or control necessary for his well-being because of the faults or habits of his parents, guardian or custodian or their neglect or refusal, when able to do so, to provide them; and
(3) "negligently" refers to criminal negligence and means that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.
B. Abandonment of a child consists of the parent, guardian or custodian of a child intentionally leaving or abandoning the child under circumstances whereby the child may or does suffer neglect. Whoever commits abandonment of a child is guilty of a misdemeanor, unless the abandonment results in the child's death or great bodily harm, in which case he is guilty of a second degree felony.
C. A parent, guardian or custodian who leaves an infant less than ninety days old in compliance with the Safe Haven for Infants Act shall not be prosecuted for abandonment of a child.
D. Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child's life or health;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather.
E. Whoever commits abuse of a child that does not result in the child's death or great bodily harm is, for a first offense, guilty of a third degree felony and for second and subsequent offenses is guilty of a second degree felony. [If the abuse results in great bodily harm or death to the child, he is guilty of a first degree felony.]
F. Whoever commits abuse of a child who is twelve years of age or older that results in great bodily harm or death to the child is guilty of a first degree felony.
G. Whoever commits abuse of a child who is less than twelve years of age that results in great bodily harm to the child is guilty of a first degree felony.
H. Whoever commits abuse of a child who is less than twelve years of age that results in the child's death is guilty of a first degree felony resulting in the death of a human being.
[F.] I. Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.
[G.] J. A person who leaves an infant less than ninety days old at a hospital may be prosecuted for abuse of the infant for actions of the person occurring before the infant was left at the hospital."
Section 2. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:
"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--
A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:
(1) for a first degree felony resulting in the death of a human being, twenty-six years imprisonment;
[(1)] (2) for a first degree felony, eighteen years imprisonment;
[(2)] (3) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;
[(3)] (4) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;
[(4)] (5) for a second degree felony, nine years imprisonment;
[(5)] (6) for a third degree felony resulting in the death of a human being, six years imprisonment;
[(6)] (7) for a third degree felony for a sexual offense against a child, six years imprisonment;
[(7)] (8) for a third degree felony, three years imprisonment; or
[(8)] (9) for a fourth degree felony, eighteen months imprisonment.
B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of Section 31-18-15.1, 31-18-16 [31-18-16.1] or 31-18-17 NMSA 1978.
C. The court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. The period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of Section 31-18-15.1, 31-18-16 [31-18-16.1] or 31-18-17 NMSA 1978.
D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 [31-18-16.1] or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 [31-18-16.1] or 31-18-17 NMSA 1978.
E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:
(1) for a first degree felony resulting in the death of a human being, seventeen thousand five hundred dollars ($17,500);
[(1)] (2) for a first degree felony, fifteen thousand dollars ($15,000);
[(2)] (3) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);
[(3)] (4) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);
[(4)] (5) for a second degree felony, ten thousand dollars ($10,000);
[(5)] (6) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);
[(6)] (7) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000); or
[(7)] (8) for a third or fourth degree felony, five thousand dollars ($5,000).
F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.
G. No later than October 31 of each year, the New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."
Section 3. Section 33-2-34 NMSA 1978 (being Laws 1999, Chapter 238, Section 1, as amended) 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, 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, up to a maximum of eight 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] the prisoner may continue to be awarded meritorious deductions at the rate [he] the prisoner 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] prisoner, or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to [rehabilitate himself] rehabilitation. 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] the prisoner 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 the director's 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 the director's 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) abuse of a child less than twelve years of age resulting in death, as provided in Section 30-6-1 NMSA 1978;
[(a)] (b) second degree murder, as provided in Section 30-2-1 NMSA 1978;
[(b)] (c) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;
[(c)] (d) third degree aggravated battery, as provided in Section 30-3-5 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) second and 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) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; 4) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; 5) second degree kidnapping, as provided in Section 30-4-1 NMSA 1978; 6) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; 7) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; 8) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; 9) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; 10) fourth degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; 11) third degree robbery, as provided in Section 30-16-2 NMSA 1978; 12) third degree homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978; and 13) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978.
M. Except for sex offenders, as provided in Section 31-21-10.1 NMSA 1978, an offender sentenced to confinement in a correctional facility designated by the corrections department who has been released from confinement and who is serving a parole term may be awarded earned meritorious deductions of up to thirty days per month upon recommendation of the parole officer supervising the offender, with the final approval of the adult parole board. The offender must be in compliance with all the conditions of the offender's parole to be eligible for earned meritorious deductions. The adult parole board may remove earned meritorious deductions previously awarded if the offender later fails to comply with the conditions of the offender's parole. The corrections department and the adult parole board shall promulgate rules to implement the provisions of this subsection."
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