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F I S C A L I M P A C T R E P O R T

SPONSOR Lopez

ORIGINAL DATE

LAST UPDATED

2/5/07

HB

SHORT TITLE County Detention & Incarceration Programs

SB 743

ANALYST Peery-Galon

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

None

(Parenthesis ( ) Indicate Expenditure Decreases)

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$.1

$.1

$.1 Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

Responses Received From

New Mexico Corrections Department (NMCD)

New Mexico Sentencing Commission (NMSC)

Attorney General’s Office (AGO)

Administrative Office of the Courts (AOC)

Public Defender Department (PDD)

Bernalillo County Metro Court (BCMC)

No Responses Received From

New Mexico Municipal League

New Mexico Association of Counties

SUMMARY

Synopsis of Bill

Senate Bill 743 allows a county sheriff or other jail official to develop and implement an

alternative incarceration program that provide for separation by gender and may involve housing

inmates in locations outside of a county jail. The proposed legislation states inmates convicted

Senate Bill 743 – Page

2

of nonviolent offenses are eligible for the alternative incarceration program, with the exception

of inmates that have committed a crime while incarcerated or failed a drug screening test within

three days of placement into the program. The inmates in the alternative incarceration program

must pay the placement costs using a sliding fee scale. The fee schedule is to be set by the

county commissioners. The proposed legislation also makes escape from an alternative

incarceration program punishable as either a misdemeanor or a fourth degree felony, depending

on whether the inmate as originally held on a misdemeanor or a felony charge.

The proposed legislation also enacts the County Detention Facility Population Control Act and

the formation of a county detention facility population control commission in every New Mexico

County. Members of the commission are to be immune from civil liability. The Act is to

prevent the inmate population from exceeding its rated capacity at a county facility and to reduce

the inmate population if it exceeds its rated capacity for more than 90 consecutive days. The

proposed legislation would require the New Mexico Corrections Department to remove all

convicted felons from the county facility if it exceeds its rated capacity for more than 90

consecutive days, and to do so within 30 days of receiving notice.

FISCAL IMPLICATIONS

NMCD states the proposed legislation could result in the department having to remove a

substantial number of felony offenders from county facilities. NMCD reports this will cause the

prison population to grow and reach rated capacity, and it is likely the department would have to

seek out-of-state beds for prisoners. NMCD notes there is no appropriation to offset any

increases to prison population or probation/parole caseloads and associated costs caused by the

proposed legislation.

NMCD notes the proposed legislation’s creation of a new felony crime of escaping an alternative

program could have a minimal impact on the prison population and probation/parole caseloads.

NMCD states the annual cost of incarcerating an inmate is $23,867 per year for males and

$21,651 per year for females. The cost per client in probation and parole for a standard

supervision program is $1,467 per year, for an intensive supervision program is $3,383 per year,

for a NMCD community corrections program is $3,503 per year, for a privately-owned

community corrections program is $7,917 per year, and for male and female residential

community corrections program is $39,401 per year.

SIGNIFICANT ISSUES

NMCD states to require the department to remove all convicted felons from a county detention

facility would jeopardize public safety due to the department having no beds available in its

system for offenders. NMCD is already near its rated capacity for male prison facilities.

AOC and BCMC notes the proposed legislation does not provide for notice to victims regarding

changes in misdemeanor cases, such as assault and battery against a household member,

negligent use of a deadly weapon, stalking and child abandonment with respect to application of

the New Mexico Victim of Crimes Act.

BCMC states concern that members of the county detention facility population control

commission will be making decisions on the release of inmates that contradict the decisions of

Senate Bill 743 – Page

3

sentencing judges, when the judges have greater knowledge of the cases and the defendants.

PERFORMANCE IMPLICATIONS

NMCD states the department would have great difficulty in providing services to the current

inmates, probationers and parolees if they had to absorb inmates from the counties.

ADMINISTRATIVE IMPLICATIONS

NMCD reports the department is currently short staffed, and adding more offenders will have a

negative administrative impact.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

The proposed legislation duplicates House Bill 636.

NMCD states pursuant to Section 33-2-19 and 31-20-2 (A) NMSA 1978, the department lacks

the statutory authority to remove or house individuals convicted of felonies if the time to be

served, after accounting for any pre-sentenced credit and any period of confinement being

suspended or deferred, is less than one year. NMCD has no authority to remove a person from a

county facility if a person convicted of a felony is incarcerated in a county facility for a

probation violation, or has been arrested and placed in a county facility on a new criminal charge

but not on a parole violation.

NMCD states while there is a recent court of appeals case holding the department generally

responsible for paying the counties for any parole violators housed, that case does not require the

New Mexico Corrections Department to remove parole violators from any county facility.

NMCD reports to remove parole violators from the county facilities could appear to conflict with

Section 33-3-3 NMSA 1978, which provides that the county jail shall be used as the place of

detention for every person charged with or convicted of crimes and committed by lawful order.

AOC states currently there are limits on the award of good time for persons incarcerated in a

county detention facility, including a requirement that the award of good time needs “the

approval of the committing judge or presiding judge" pursuant to Section 33-3-9 (A) NMSA

1978. AOC and BCMC state the proposed legislation creates a conflict of uncertain dimension

due to it permitting the commission to award good time without judicial approval although

statute requires court approval. AOC states the proposed legislation raises separation of powers

concerns by eliminating judicial involvement in the sentence served by a class of convicted

offenders. AOC reports removing courts from good time awards also has a negative impact on

the ability of drug courts to use that incentive in treatment of offenders.

BCMC notes a conflict if House Bill 479 or Senate Bill 65 is enacted due to an inmate who

consumes a controlled substance will have committed a crime. So all failures of drug screening

tests will require the exclusion of the offending inmates from consideration for placement into an

alternative incarceration program.

Senate Bill 743 – Page

4

ALTERNATIVES

NMCD suggests amending the proposed legislation to focus on awarding good time credits for

county inmates in order to reduce capacity, and to remove the provision requiring the New

Mexico Corrections Department to remove all convicted felons from the county facilities.

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