HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 636
48th legislature - STATE OF NEW MEXICO - first session, 2007
AN ACT
RELATING TO COUNTY CORRECTIONS; CREATING A COUNTY ALTERNATIVE INCARCERATION PROGRAM; MAKING ESCAPE FROM A COUNTY ALTERNATIVE INCARCERATION PROGRAM A CRIME; PROVIDING FOR COUNTY JAIL ADMISSION POLICIES AND CLASSIFICATION POLICIES; ELIMINATING LOCAL GOVERNING BODIES AS JAIL INSPECTORS; PROVIDING FOR OPERATING POLICIES AND PROCEDURES SETTING PUNISHMENT FOR VIOLATION OF JAIL RULES; ENACTING THE COUNTY DETENTION FACILITY POPULATION CONTROL ACT; PROVIDING FOR THE CREATION OF A COUNTY DETENTION FACILITY POPULATION CONTROL COMMISSION; AUTHORIZING THE AWARD OF GOOD TIME CREDIT TO INMATES IN THE EVENT OF OVERCROWDING IN A COUNTY DETENTION FACILITY; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-22-8.1 NMSA 1978 (being Laws 1999, Chapter 118, Section 1) is amended to read:
"30-22-8.1. ESCAPE FROM A COMMUNITY CUSTODY RELEASE PROGRAM.--
A. Escape from a community custody release program consists of a person, excluding a person on probation or parole, who has been lawfully committed to a judicially approved community custody release program or an alternative incarceration program implemented by a sheriff or a jail administrator, as the term "jail administrator" is defined in Section 4-44-19 NMSA 1978, that has been approved by a board of county commissioners, including a day reporting program, an electronic monitoring program, a day detention program or a community tracking program, escaping or attempting to escape from the community custody release program or an alternative incarceration program.
B. Whoever commits escape from a community custody release program, or an alternative incarceration program, when the person was committed to the program for a misdemeanor charge, is guilty of a misdemeanor.
C. Whoever commits escape from a community custody release program, or an alternative incarceration program, when the person was committed to the program for a felony charge, is guilty of a felony."
Section 2. Section 33-3-3 NMSA 1978 (being Laws 1865-1866, Chapter 19, Section 2, as amended) is amended to read:
"33-3-3. CONFINEMENT OF PRISONERS IN COUNTY WHERE OFFENSE COMMITTED.--
A. Except as provided in Section 33-3-23 NMSA 1978, the jail or jails in each county shall be used or be available for the detention of every person who, within the same county, is charged with any crime or properly committed for trial or for the imprisonment of every person who in conformity with sentence, upon conviction of an offense, may have been sentenced, and for the safekeeping of every person who shall be committed by competent authority according to law.
B. The sheriff, or a jail administrator as defined in Section 4-44-19 NMSA 1978, shall adopt and implement written policies for the admission and assignment of inmates to the county jail, or an alternative incarceration program in accordance with Section 4 of this 2007 act, and for the classification of inmates in the jail or alternative incarceration program that shall provide for their separation by gender or by other factors that reasonably provide for the safety and well-being of inmates and the community."
Section 3. Section 33-3-8 NMSA 1978 (being Laws 1865-1866, Chapter 19, Section 10, as amended) is amended to read:
"33-3-8. RULES FOR PUNISHMENT.--The sheriffs, jail administrators as defined in Section 4-44-19 NMSA 1978 or independent contractors in charge of the respective jails shall submit proposed rules [and regulations, which shall be effective upon being adopted] or operating policies and procedures for approval by the local governing body [or bodies] responsible for the jail, for the punishment of persons violating the rules of the jail."
Section 4. A new section of Chapter 33, Article 3 NMSA 1978 is enacted to read:
"[NEW MATERIAL] ALTERNATIVE INCARCERATION PROGRAM.--
A. The sheriff or jail administrator, as defined in Section 4-44-19 NMSA 1978, of a county may develop and implement, in conjunction with the county detention facility population control committee and approved by the board of county commissioners, an alternative incarceration program, ensuring the public safety and safety of inmates in the program, that may involve housing an inmate in a county jail or in some other location.
B. An inmate charged or convicted of a nonviolent offense, as that term is defined in Subsection L of Section 33-2-34 NMSA 1978, is eligible to be placed in an alternative incarceration program described in Subsection A of this section unless:
(1) information concerning the inmate is discovered to be materially inaccurate;
(2) the inmate committed a crime while incarcerated;
(3) the inmate fails a drug screening test within three days of the inmate's scheduled placement in an alternative incarceration program; or
(4) participation is not authorized by the assigned or sentencing judge.
C. An inmate charged or convicted of a nonviolent offense who is placed in an alternative incarceration program may pay the costs associated with that placement according to a sliding fee scale set by the board of county commissioners.
D. An inmate in an alternative incarceration program shall undergo substance abuse, educational and life skills counseling as determined by the sheriff or jail administrator.
E. The provisions of Section 30-22-8.1 NMSA 1978 shall apply to a person who escapes from an alternative incarceration program.
F. The time that an inmate serves in an alternative incarceration program shall be credited to the inmate as if the time in that program was served in a county jail."
Section 5. [NEW MATERIAL] SHORT TITLE.--Sections 5 through 11 of this act may be cited as the "County Detention Facility Population Control Act".
Section 6. [NEW MATERIAL] PURPOSE.--The purpose of the County Detention Facility Population Control Act is to establish, develop and implement mechanisms to prevent the inmate population from exceeding the rated capacity of county detention facilities and to provide procedures to be followed to reduce the inmate population.
Section 7. [NEW MATERIAL] DEFINITIONS.--As used in the
County Detention Facility Population Control Act:
A. "commission" means the county detention facility
population control commission;
B. "nonviolent offender" means:
(1) a person convicted only of possession of a controlled substance, pursuant to the provisions of Section 30-31-23 NMSA 1978;
(2) a person incarcerated for violating the conditions of the person's parole plan due to use or possession of a controlled substance and whose original conviction was for commission of a nonviolent offense; or
(3) a person charged or convicted for the commission of a nonviolent offense, as that term is defined in Subsection L of Section 33-2-34 NMSA 1978; and
C. "rated capacity" means the actual general population bed space, including only individual cells and areas designed for the housing of inmates as provided for in the county detention facility's design and the available staffing level.
Section 8. [NEW MATERIAL] RATED CAPACITY.--The board of county commissioners shall at least annually, by resolution, establish a rated capacity for each county detention facility based on the facility's design and staffing level.
Section 9. [NEW MATERIAL] COUNTY DETENTION FACILITY POPULATION CONTROL COMMISSION--CREATED--MEMBERS.--
A. The board of county commissioners may create a "county detention facility population control commission" to address instances of overcrowding in a county detention facility. If created, the commission shall be composed of the following five persons:
(1) the jail administrator, as defined in Section 4-44-19 NMSA 1978, or county sheriff who operates the particular county detention facility, who shall serve as chair of the commission;
(2) two public officials or private citizens appointed by the board of county commissioners;
(3) the chief judge of the district court or the chief judge's designee; and
(4) the chief judge of the metropolitan or magistrate court or the chief judge's designee.
B. A majority of the members of the commission constitutes a quorum for the transaction of commission business.
C. The commission shall convene quarterly to review population data and data regarding the use of alternative incarceration programs and the use or anticipated use of other population control mechanisms.
D. The appointed members of the commission shall serve four-year terms. A vacancy on the commission shall be filled by the individual or board that made the original appointment.
E. The members of the commission shall receive reimbursement for expenses pertaining to commission duties pursuant to the provisions of the Per Diem and Mileage Act but shall receive no other perquisite, compensation or allowance for service on the commission.
F. The members of the commission shall be immune from liability in civil actions for the performance of their duties pursuant to the County Detention Facility Population Control Act, provided that the members perform their duties in good faith.
Section 10. [NEW MATERIAL] OVERCROWDING--POPULATION CONTROL MECHANISM--PROCEDURES.--
A. When the inmate population of a county detention facility exceeds one hundred percent of rated capacity for a period of ninety consecutive days, the jail administrator, as defined in Section 4-44-19 NMSA 1978, or county sheriff shall engage in all lawful and professionally appropriate efforts to reduce the inmate population to one hundred percent of rated
capacity. Included in these efforts shall be the provision of notice to the corrections department that the county detention facility is in excess of the rated capacity and a list to that
department of all convicted felons in the county detention
facility. Within thirty days of this notice, the corrections
department shall convene a meeting of the corrections
population control commission created pursuant to the
Corrections Population Control Act. The corrections population
control commission shall exercise its powers and duties under
the Corrections Population Control Act to reduce overcrowding
at the county detention facility.
B. If the inmate population of a county detention
facility is in excess of one hundred percent of rated capacity
after one hundred twenty consecutive days, the county sheriff
or jail administrator shall notify the commission, the district
court, the metropolitan court, the municipal court, the
magistrate court, the district attorney, the public defender,
the secretary of corrections and local law enforcement
agencies. Included in the notification shall be a list of
nonviolent offenders.
C. The commission shall convene within ten days of receipt of the notice from the county sheriff or jail administrator given pursuant to Subsection B of this section to review the list of nonviolent offenders and the commission shall be permitted, with judicial approval by the sentencing judge, to award good time credit pursuant to Section 33-3-9 NMSA 1978 and to release nonviolent offenders who, with the good time credit, have completed their sentence; provided that a nonviolent offender shall not be released if:
(1) information concerning the nonviolent offender is discovered to be materially inaccurate;
(2) the nonviolent offender committed a crime while incarcerated;
(3) the nonviolent offender fails a drug screening test within ten days of the offender's scheduled release; or
(4) the effect of releasing nonviolent offenders will result in the loss of federal funds to any agency of the state.
Section 11. [NEW MATERIAL] COUNTY SHERIFF OR JAIL ADMINISTRATOR--DUTIES--ANNUAL REPORT.--The jail administrator, as defined in Section 4-44-19 NMSA 1978, or county sheriff shall study, develop and recommend annually no later than August 1 of each year to the commission, the board of county commissioners, the local judiciary and local law enforcement agencies policies and mechanisms designed to manage the growth of the inmate population by:
A. reviewing county detention facility models to
forecast projected growth in the inmate population;
B. providing information concerning impacts on the
inmate population caused by changes in sentencing policies and
law enforcement policies;
C. analyzing the need for future construction of additional county detention facility space;
D. if necessary, preparing proposed legislation for further implementation of policy recommendations; and
E. considering all policy recommendations in light of public safety concerns.
Section 12. REPEAL.--Section 33-3-4 NMSA 1978 (being Laws 1865-1866, Chapter 19, Section 3, as amended) is repealed.
Section 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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