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

SPONSOR Swisstack

ORIGINAL DATE

LAST UPDATED

1/18/08

HB 105

SHORT TITLE Gang Activity Sentencing Enhancement

SB

ANALYST Peery-Galon

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY08

FY09

FY10 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$0.1

$0.1

$0.1 Recurring General

Fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Bernalillo County Metropolitan Court

New Mexico Corrections Department (NMCD)

New Mexico Sentencing Commission (NMSC)

Department of Public Safety (DPS)

No Responses Received From

Administrative Office of the Courts

Administrative Office of the District Attorneys

SUMMARY

Synopsis of Bill

House Bill 105 proposes to add a new section to the Criminal Sentencing Act to enhance basic

sentences by one to eight years for certain enumerated crimes when those crimes have been

committed for the benefit of or in association with a criminal street gang and with a specific

intent to promote, further or assist in criminal conduct by gang members. The proposed

legislation provides that the fact of street gang involvement must be submitted to the jury, unless

jury trial is waived, and must be proven beyond a reasonable doubt. The following are the 28

denoted crimes for which penalties will be enhanced: murder; voluntary manslaughter;

aggravated assault; assault with intent to commit a violent felony; aggravated battery; shooting at

a dwelling or occupied building or shooting at or from a motor vehicle; aggravated staling;

kidnapping; sexual exploitation of children by prostitution; dangerous use of explosives;

possession of explosives; criminal sexual penetration in the first, second or third degree; criminal

sexual contact with a minor; felony criminal damage to property; felony graffiti; robbery;

House Bill 105 – Page 2

burglary; aggravated burglary, extortion; aggravated fleeing a law enforcement officer; harboring

or aiding a felon; aggravated assault upon a peace officer; assault with intent to commit a violent

felony upon a peace officer; aggravated battery upon a peace officer; bribery or intimidation of a

witness or retaliation against a witness; trafficking in a controlled substance; unlawful taking of a

motor vehicle; and money laundering. Also, contained within this crime is the attempt to

commit any of the 28 enumerated crimes. The enhanced portion of the sentence is to be served

consecutively with the basic sentence and can not be suspended or deferred. The proposed

legislation defines “criminal street gang" as an ongoing organization, association or group of

three or more persons, whether formal or informal, having as one of its primary activities the

commission of one or more of the 28 denoted crimes, having common name or identifying sign

or symbol and whose members individually or collectively engage in or have engaged in a patter

of criminal street gang activity.

FISCAL IMPLICATIONS

NMCD reports the proposed legislation could have moderate to substantial negative fiscal impact

on the department if a large number of persons convicted of gang-related crimes come into the

prison or serve longer sentences. NMCD notes there is no appropriation in the proposed

legislation to cover increased incarceration costs.

Based on FY06 actual expenditures, the average annual cost to incarcerate an individual in a

NMCD correctional facility is $31,239, and the average annual cost of probation and

parole/community corrections client is $1,343.

SIGNIFICANT ISSUES

NMCD reports to the extent that large numbers of the designated crimes are proven in court to be

street gang-related, the proposed legislation could have moderate to substantial impact on the

department’s prison population because it will increase prison sentences for those convicted of

street gang-related crimes. However, NMCD notes the proposed legislation could also deter

gang-related crime and crime in general, which would ultimately result in a decreased prison

population and probation/parole caseloads.

NMSC reports according to recent literature, since 1999, numerous states have followed the state

of California by enacting legislation to criminalize a variety of gang activities, such as gang

solicitation and recruitment, witness identification and drive-by shootings. Also, a recent study

by the New Mexico Statistical Analysis Center at the University of New Mexico demonstrates

the need for systematic data collection on gang crime in New Mexico. A lack of record keeping

and standard documentation on gangs makes it difficult to compare gang crime and the

proportion of crime attributable to gangs.

DPS states the lack of deterrent and the message to organized crime groups and gangs is that

there is not penalty for operating and directing criminal activity in New Mexico. DPS states the

level of crime associated with gangs will continue to increase at a far greater cost to society.

PERFORMANCE IMPLICATIONS

PDD states that there is always a potential of increased workload for the department when new

crimes are created, or sentencing schemes are enhanced; however, the proposed legislation is not

House Bill 105 – Page 3

likely to result in a large increase in litigation and any additional caseload would be absorbed

through the ordinary course of business.

ADMINISTRATIVE IMPLICATIONS

NMCD states if the proposed legislation raises prison population, the department staff will have

increased workloads; however, if the bill ultimately reduces the prison population it will reduce

staff workloads.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

House Bill 105 has a companionship with House Bill 106.

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