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

SPONSOR Grubesic

ORIGINAL DATE

LAST UPDATED

1/28/08

HB

SHORT TITLE Public Official Felony Sentencing Enhancement

SB 338

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

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Sentencing Commission (NMSC)

Secretary of State (SOS)

Administrative Office of the Courts (AOC)

Administrative Office of the District Attorneys (AODA)

No Responses Received From

Governor’s Office

Attorney General’s Office

SUMMARY

Synopsis of Bill

Senate Bill 338 adds a new section to the Criminal Sentencing Act stating when a separate

finding of fact by the court or jury shows beyond a reasonable doubt that an offender is a public

official and that the felony conviction relates to, arises out of or is in connection with the

offender’s holding of an elected office, the basic sentence may be increased by an additional fine

not to exceed the value of the salary and fringe benefits paid to the offender, by virtue of holding

an elected public office, after the commission of the first act that was a basis for the felony

conviction. The proposed legislation defines a “public official" as a person elected to an office

in an election covered by the Campaign Reporting Act or a person appointed to an office that is

subject to an election covered by that act.

Senate Bill 338 – Page

2

FISCAL IMPLICATIONS

NMSC states there would appear to be limited impact on state agencies due to the population

effected by this change in the law.

AOC states there will be minimal administrative cost for statewide update, distribution and

documentation of statutory changes. Any additional fiscal impact on the judiciary would be

proportional to the enforcement of this law and the need for separate findings of fact as detailed

above.

AODA notes that the proposed legislation carries with the possibility of putting money back into

the public coffers by penalizing public officials who criminally abuse the publics’ trusts. AODA

states even small penalties are not insubstantial in the aggregate, and it gives the proposed

legislation the benefit of being once of the few that hopefully helps restore public confidence in

the overall integrity of elected officials.

SIGNIFICANT ISSUES

AOC states the proposed legislation permits an additional fine to be imposed up to the value of

the salary and fringe benefits paid to the offender, by virtue of holding an elected public office,

after the first act that was a basis for the felony conviction.

AODA states the most significant factor is that the proposed legislation addresses public

corruption in a very direct and understandable way for most citizens and voters. The proposed

legislation will show the public the ways in which the legislature and law enforcement are trying

to discourage and punish abuse of the public trust.

AODA states that frequently those individuals with deep pockets accused of public corruption or

any sort of serious felony will have spent substantial sums of money to mount a good defense.

The end result is that upon conviction, even if the jury makes the necessary factual findings, the

offender is unable to pay the levied fines. AODA states an alternative worth considering would

be to allow an enhancement of the convicted public official’s sentence via either additional fines

or prison time or both.

PERFORMANCE IMPLICATIONS

AOC states the proposed legislation may have an impact on the measures of the courts in the

following areas: cases disposed of as a percent of cases filed and percent change in case filings

by case type.

ADMINISTRATIVE IMPLICATIONS

AOC states new laws, amendments to existing laws and new hearings have the potential to

increase caseloads in the courts, thus requiring additional resources.

TECHNICAL ISSUES

AOC notes there is no definition of “fringe benefits paid" in the proposed legislation.

Senate Bill 338 – Page

3

AODA states that the Uniform Jury Instructions/Criminal Committee will need to work on

drafting a special jury instruction for submission in those cases where this new enhancement is

applicable. If the committee is unable to do so promptly, then prosecutors around the state,

especially those who deal with white-collar type cases, will need to be aware of the new

legislation and coordinate work on a uniform special instruction themselves to lessen the

likelihood of post-conviction appellate issues.

OTHER SUBSTANTIVE ISSUES

AODA notes that recent successful prosecutions of narcotics detectives, county managers, and

the like, should stand as stark reminders that it is not just elected officials who have been abusing

the publics’ trust while collecting a paycheck financed by taxpayer dollars.

ALTERNATIVES

AODA notes the following alternatives:

1.

Broadening the legislation to include non-elected public officials, such as those in

supervisory and managerial positions, those who deal with the collection, deposit, and

securing of public monies;

2.

Not passing the legislation at all;

3.

Amending the legislation to allow for the enhancement of sentences of convicted

offenders using either additional fines or additional prison time or both;

4.

broadening the legislation as proposed in both the first and third alternatives above; or

5.

Watering down the legislation by providing for less stringent fines than are present in the

current version of the proposed legislation.

RPG/mt