HOUSE APPROPRIATIONS AND FINANCE COMMITTEE SUBSTITUTE FOR
HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 267
54th legislature - STATE OF NEW MEXICO - first session, 2019
AN ACT
RELATING TO CRIMINAL JUSTICE REFORM; REQUIRING THE NEW MEXICO SENTENCING COMMISSION TO CREATE A DATA-SHARING NETWORK FOR CRIMINAL JUSTICE DATA; ADDING THREE MEMBERS TO THE NEW MEXICO SENTENCING COMMISSION; AMENDING A SECTION OF THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE; SPECIFYING THAT PHOTOGRAPHS, FINGERPRINTS AND PALM PRINTS ARE BIOMETRIC IDENTIFYING INFORMATION OF AN ARRESTED PERSON; PROVIDING REQUIREMENTS FOR THE CONTENT AND DISPOSITION OF ARREST RECORDS; REQUIRING THE DEPARTMENT OF PUBLIC SAFETY TO SHARE DATA WITH THE NEW MEXICO SENTENCING COMMISSION; ENACTING THE CRIME REDUCTION GRANT ACT; CREATING CRIMINAL JUSTICE COORDINATING COUNCILS IN EACH JUDICIAL DISTRICT; REQUIRING CERTAIN STATE AGENCIES TO ISSUE RULES AND REPORT ANNUALLY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 9-3-10 NMSA 1978 (being Laws 1977, Chapter 257, Section 11, as amended) is amended to read:
"9-3-10. NEW MEXICO SENTENCING COMMISSION--CREATION--
MEMBERSHIP--DUTIES.--
A. There is created the "New Mexico sentencing commission".
B. The New Mexico sentencing commission shall be composed of [twenty-four] twenty-seven members. Appointed members shall serve at the pleasure of the appointing authority. The commission shall reflect reasonable geographical and urban-rural balances and regard for the incidence of crime and the distribution and concentration of law enforcement services in the state. The commission shall consist of the following individuals or their designees:
(1) the attorney general;
(2) a district attorney appointed by the New Mexico district [attorneys] attorney's association [of New Mexico] or its successor agency;
(3) the chief public defender;
(4) two district court judges, one of whom shall be a children's court judge, appointed by the district [court judge's] and metropolitan judges association [of New Mexico] or its successor agency;
(5) a magistrate judge [from the court of appeals] appointed by the chief [judge of the court of appeals] justice of the supreme court;
(6) the dean of the university of New Mexico school of law;
(7) the secretary of corrections;
(8) the secretary of public safety;
(9) the secretary of children, youth and families;
(10) the secretary of public education;
(11) a representative from the behavioral health services division of the human services department;
[(11)] (12) a county sheriff appointed by the executive director of [the] New Mexico [association of] counties;
[(12)] (13) two public members appointed by the governor, one of whom shall be designated as chair of the New Mexico sentencing commission by the governor;
[(13)] (14) three public members appointed by the president pro tempore of the senate;
(15) one public member appointed by the minority floor leader of the senate;
[(14)] (16) three public members appointed by the speaker of the house of representatives;
(17) one public member appointed by the minority floor leader of the house of representatives;
[(15)] (18) two public members appointed by the chief justice of the supreme court;
[(16)] (19) one public member who is Native American and a practicing attorney, appointed by the president of the state bar association; and
[(17)] (20) one public member appointed by the governor who is a representative of a New Mexico [victim] victims' organization.
C. A majority of the members of the New Mexico sentencing commission constitutes a quorum for the transaction of commission business.
D. The New Mexico sentencing commission shall:
(1) hold meetings at times and for periods as the commission deems necessary;
(2) hire staff as needed to assist the commission in the performance of its duties;
(3) prepare an annual budget;
(4) establish policies for the operation of the commission and supervision of the activities of commission staff;
(5) advise the executive, judicial and legislative branches of government on policy matters relating to criminal and juvenile justice;
(6) make recommendations to the legislature concerning proposed changes to laws relating to the criminal and juvenile justice systems that the commission determines would improve those systems;
(7) annually assess, monitor and report to the legislature on the impact of any enacted sentencing standards and guidelines on state and local correctional resources and programs and the need for further sentencing reform;
(8) when developing proposed sentencing reform:
(a) study sentencing models in other jurisdictions;
(b) study the Criminal Sentencing Act, the Criminal Code and all other New Mexico statutes relating to criminal law, criminal sentencing, criminal procedure and probation and parole;
(c) review past studies or reports regarding proposed changes to the Children's Code, the Criminal Code, the Criminal Sentencing Act or other New Mexico statutes relating to criminal law, criminal sentencing, criminal procedure or probation and parole;
(d) study past and current criminal sentencing and release practices and create a statistical database for simulating the impact of various sentencing policies;
(e) study the full range of prison, nonprison and intermediate sanctions;
(f) determine the principal purpose for criminal sanctions;
(g) rank criminal offenses by degree of seriousness;
(h) determine the role of criminal history in making criminal sentencing decisions;
(i) define dispositional policy that determines when adult felony offenders are confined in state prisons and county jails or sentenced to nonprison and intermediate sanctions;
(j) establish the length of criminal sentences;
(k) establish the appropriate use of community service and fines;
(l) structure proposed sentencing guidelines to ensure consistency in all aspects of criminal sentencing policy;
(m) assess the impact of commission recommendations to modify criminal sentencing policy on the availability of and need for correctional resources and programs;
(n) use the expertise of a national or state organization with experience in sentencing reform; and
(o) present proposed legislation or recommendations regarding sentencing reform to the appropriate legislative interim committee;
(9) monitor any enacted sentencing guidelines with respect to uniformity and proportionality;
(10) conduct research relating to the use and effectiveness of any enacted guidelines, prosecution standards, offense charging, plea bargaining, sentencing practices, probation and parole practices and any other matters relating to the criminal justice system;
(11) serve as a clearinghouse for the systematic collection, analysis and dissemination of information relating to felony offense charges, plea agreements, convictions, sentences imposed, incarceration time actually served and actual and projected inmate population in the state correctional system;
(12) review all proposed legislation that creates a new criminal offense, changes the classification of an offense or changes the range of punishments for an offense and make recommendations to the legislature as to whether proposed changes would improve the criminal and juvenile justice system; [and]
(13) contingent upon the availability of funding, provide impact estimates, incorporating prison population projections, on all proposed legislation that has the potential to affect correctional resources;
(14) create and maintain a data-sharing network to receive, store, analyze and disseminate criminal justice data for and between participating criminal justice and behavioral health agencies for the purpose of evaluating local and statewide criminal justice systems and programs and supporting, encouraging and accomplishing information sharing among criminal justice agencies and criminal justice coordinating councils;
(15) provide data analysis as requested by criminal justice agencies and criminal justice coordinating councils; and
(16) promulgate rules governing the data- sharing network and data analysis pursuant to Paragraphs (14) and (15) of this subsection. The rules shall include procedures to:
(a) fulfill any requirements related to data privacy, security and protection so that information access and sharing is permitted for authorized purposes, as defined by law, court order or for business practices that are a necessary component of the requesting agency's duties and functions and is compatible with the purpose and expectations of use under which the information was collected;
(b) guide participating agencies to ensure accuracy, completeness, currency and reliability of information reported to the data-sharing network;
(c) allow data querying and reporting tools for those authorized users who want to perform statistical analysis of some of the data collected and retained;
(d) provide safeguards to actively monitor and record: 1) access and use of the network's services and systems; and 2) the nature of information exchanges using the network; and
(e) identify and recognize authorized users who access the network.
E. The members of the New Mexico sentencing commission shall be paid pursuant to the Per Diem and Mileage Act and shall receive no other perquisite, compensation or allowance.
F. The New Mexico sentencing commission is administratively attached to the office of the governor."
SECTION 2. Section 29-3-8 NMSA 1978 (being Laws 1978, Chapter 87, Section 1, as amended) is amended to read:
"29-3-8. [FINGERPRINT AND PALM PRINT IMPRESSIONS] BIOMETRIC IDENTIFYING INFORMATION OF PERSONS ARRESTED--STATE ARREST RECORDS--DISPOSITION.--
A. A [person arrested for] booking facility shall electronically collect biometric identifying information from a person arrested for the following crimes prior to the person's release:
(1) the commission of a criminal offense amounting to a felony [under the laws of this state or any other jurisdiction shall be required by the arresting peace officer or the jail to make fingerprint and palm print impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint and palm print impressions and a photograph];
(2) the commission of a criminal offense not amounting to a felony but punishable by imprisonment for more than six months under the laws of the state or a political subdivision of the state; or
(3) the violation of a provision of Section 66-8-102 NMSA 1978 or the violation of a municipal or county ordinance prescribing criminal penalties for driving while under the influence of intoxicating liquor or drugs.
B. Biometric identifying information shall be obtained each time a person is arrested.
C. At the time [of fingerprinting and palm printing] biometric identifying information is collected, the booking facility shall create an arrest record with a state arrest tracking number [shall be assigned to the fingerprint and palm print records and the booking sheet.
B. A person arrested for the commission of a criminal offense not amounting to a felony but punishable by imprisonment for more than six months under the laws of this state or any political subdivision shall be required by the arresting peace officer or the jail to make fingerprint and palm print impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint and palm print impressions and a photograph each time a person is arrested. At the time of fingerprinting and palm printing, a state tracking number shall be assigned to the fingerprint and palm print records and the booking sheet.
C. A person arrested for violating a provision of Section 66-8-102 NMSA 1978 or committing a violation of a municipal or county ordinance prescribing criminal penalties for driving while under the influence of intoxicating liquor or drugs shall be required by the arresting peace officer or the jail to make fingerprint and palm print impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint and palm print impressions and a photograph each time a person is arrested. At the time of fingerprinting and palm printing, a state tracking number shall be assigned to the fingerprint and palm printing records and the booking sheet.
D. Fingerprint and palm print impressions shall be made pursuant to rules adopted by the department. Fingerprint and palm print record submission policies and a state tracking number system for fingerprint and palm print records shall be implemented pursuant to rules adopted by the department. All felony, misdemeanor and DWI arrest fingerprints and palm prints shall be made in duplicate. Both copies and a photograph of the person arrested shall be forwarded to the department within five days following the date of arrest.] provided by the department. The arrest record shall include:
(1) the date of arrest;
(2) the state arrest tracking number assigned to the arrest record;
(3) the state personal identification number assigned to the arrestee by the department;
(4) the arrestee's biometric identifying information; and
(5) a completed description with charge code of each offense charged.
D. The department shall promulgate rules addressing:
(1) collection of biometric identifying information;
(2) submission of biometric identifying information;
(3) creation of a state personal identification number system to identify a person arrested and charged with a crime and ensure that the same state personal identification number is assigned to the person regardless of the number of times the person is arrested or the location of the arrest within the state; and
(4) creation of a state arrest tracking number system for each arrest record.
E. At booking, the booking facility shall immediately forward the arrest record and any other information required by department rule to the department.
F. The department shall [forward one copy] immediately provide the:
(1) biometric identifying information to the federal bureau of investigation in Washington, D.C.;
(2) state personal identification number to agencies at all levels of government that are engaged in the apprehension, prosecution or defense, adjudication, incarceration or rehabilitation of criminal offenders; and
(3) arrest record to the administrative office of the district attorneys for submission to the appropriate prosecuting authority.
[E.] G. Biometric identifying information shall be collected from an inmate who is charged with a felony or misdemeanor offense while incarcerated [shall be fingerprinted, palm printed and photographed], and the jail or corrections facility shall forward the offender's [fingerprint and palm print records and photograph] biometric identifying information to the department.
[F.] H. The administrative office of the courts shall provide to the department the disposition of all criminal cases assigned a state arrest tracking number. The disposition shall be provided in electronic format, promptly upon the conclusion of the case.
[G.] I. The administrative office of the district attorneys shall provide to the department the disposition of all criminal cases assigned a state arrest tracking number when the district attorney decides not to file charges in the case. The disposition shall be provided in electronic format promptly upon a district attorney's decision not to file charges in the case.
J. The department shall forward the disposition of all criminal cases to the federal bureau of investigation and the national crime information center within five business days of receipt.
[H.] K. Law enforcement agencies, the administrative office of the courts and the administrative office of the district attorneys [may] shall allow the department access to their records for the purpose of auditing those records to ensure compliance with the provisions of this section.
L. As used in this section:
(1) "biometric identifying information" means physical characteristics used in verifying the identity of an individual, including photographs, fingerprint impressions and palm print impressions;
(2) "booking facility" means a jail, police station, sheriff's office or other place of detention;
(3) "charge code" means the unique code assigned to the crime from the master charge code table distributed by the New Mexico justice information sharing council;
(4) "state arrest tracking number" means an incident-based unique number assigned to the arrest; and
(5) "state personal identification number" means a unique number assigned to the arrestee based on the arrestee's biometric identifying information."
SECTION 3. Section 29-3-11 NMSA 1978 (being Laws 2007, Chapter 37, Section 1) is amended to read:
"29-3-11. UNIFORM CRIME REPORTING SYSTEM ESTABLISHED-- DUTIES OF DEPARTMENT.--
A. The department of public safety shall develop, operate and maintain a uniform crime reporting system and shall be the central repository for the collection, storage, retrieval and analysis of crime incident and arrest reports generated by all law enforcement agencies in this state. The system shall be operational as of January 1, 2008.
B. The department shall:
(1) compile statistical data and forward such data as required to the federal bureau of investigation or the appropriate department of justice agency in accordance with standards and procedures of the national system;
(2) provide forms, standards and procedures and related training to state and local law enforcement agencies as necessary for the agencies to report incident and arrest activity for inclusion in the statewide system;
(3) in conjunction with the New Mexico sentencing commission, annually publish a report on the nature and extent of crime in New Mexico and submit the report to the governor and to the legislature;
(4) maintain the privacy and security of information in accordance with applicable state and federal laws; [and]
(5) provide the New Mexico sentencing commission access to the data collected and maintained by the department; and
[(5)] (6) establish rules as necessary to implement the provisions of this section.
C. Every law enforcement agency in the state shall:
(1) submit crime incident reports to the department of public safety on forms or in the format prescribed by the department;
(2) submit any other crime incident information as may be required by the department of public safety; and
(3) use the [state uniform statutory charge codes] unique code assigned to the crime from the master charge code table distributed by the New Mexico justice information sharing council for the automated fingerprint identification system and use uniform crime incident reporting as provided by the department for all incidents and arrests.
D. The annual report and other statistical data reports generated by the department shall be made available to state and local law enforcement agencies, the administrative office of the courts and the general public."
SECTION 4. Section 43-1-19 NMSA 1978 (being Laws 1977, Chapter 279, Section 18, as amended) is amended to read:
"43-1-19. DISCLOSURE OF INFORMATION.--
A. Except as otherwise provided in the code, no person shall, without the authorization of the client, disclose or transmit any confidential information from which a person well acquainted with the client might recognize the client as the described person, or any code, number or other means that can be used to match the client with confidential information regarding the client.
B. Authorization from the client shall not be required for the disclosure or transmission of confidential information in the following circumstances:
(1) when the request is from a mental health or developmental [disability] disabilities professional or from an employee or trainee working with a person with a mental disability or developmental disability, to the extent that the practice, employment or training on behalf of the client requires access to such information is necessary;
(2) when such disclosure is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the client on the client's self or another;
(3) when the disclosure is made pursuant to the provisions of the Assisted Outpatient Treatment Act, using reasonable efforts to limit protected health information to that which is minimally necessary to accomplish the intended purpose of the use, disclosure or request;
(4) when the disclosure of such information is to the primary caregiver of the client and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating physician or certified psychologist who discloses the information; [or]
(5) when such disclosure is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the client at the residential facility. The information disclosed shall be limited to data identifying the client, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the client, apart from information disclosed pursuant to this section, has not been disclosed to the insurer;
(6) when the request is from a physician, a licensed psychologist or a qualified mental health professional licensed for independent practice and responsible for the continuity of care of inmates with a mental or developmental disability who are in a jail or corrections facility, and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of an equally qualified treating professional who discloses the information;
(7) when such disclosure is by a physician, a licensed psychologist or a qualified mental health professional licensed for independent practice and responsible for the treatment of inmates in a jail or corrections facility to another equally qualified treating professional responsible for the continuation of care of the inmate upon the inmate's release from a jail or corrections facility, and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating professional who discloses the information; or
(8) when the disclosure is made to a governmental agency, its agent or a state educational institution, a duly organized state or county association of licensed physicians or dentists, a licensed health facility or staff committees of such a facility for the purpose of research, subject to the provisions of Section 14–6-1 NMSA 1978 and subject to the review of an institutional review board in compliance with the federal Health Insurance Portability and Accountability Act of 1996 or any succeeding legislation.
C. No authorization given for the transmission or disclosure of confidential information shall be effective unless it:
(1) is in writing and signed; and
(2) contains a statement of the client's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.
D. The client has a right of access to confidential information and has the right to make copies of any information and to submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent they contain confidential information. Nothing in this subsection shall prohibit the denial of access to such records when a physician or other mental health or developmental disabilities professional believes and notes in the client's medical records that such disclosure would not be in the best interests of the client. In any such case, the client has the right to petition the court for an order granting such access.
E. Where there exists evidence that the client whose consent to disclosure of confidential information is sought is incapable of giving or withholding valid consent and the client does not have a guardian or treatment guardian appointed by a court, the person seeking such authorization shall petition the court for the appointment of a treatment guardian to make a substitute decision for the client, except that if the client is less than fourteen years of age, the client's parent or guardian is authorized to consent to disclosure on behalf of the client.
F. Information concerning a client disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section.
G. Nothing in the code shall limit the confidentiality rights afforded by federal statute or
regulation.
H. A person appointed as a treatment guardian in accordance with the Mental Health and Developmental Disabilities Code may act as the client's personal representative pursuant to the federal Health Insurance Portability and Accountability Act of 1996, Sections
1171-1179 of the Social Security Act, 42 U.S.C. Section 1320d, as amended, and applicable federal regulations to obtain access to the client's protected health information, including mental health information and relevant physical health information, and may communicate with the client's health care providers in furtherance of such treatment."
SECTION 5. [NEW MATERIAL] SHORT TITLE.--Sections 5 through 10 of this act may be cited as the "Crime Reduction Grant Act".
SECTION 6. [NEW MATERIAL] DEFINITIONS.--As used in the Crime Reduction Grant Act:
A. "commission" means the New Mexico sentencing commission; and
B. "grant administration agency" means a state agency that receives appropriations for grants to criminal justice coordinating council members for the purposes specified in the Crime Reduction Grant Act.
SECTION 7. [NEW MATERIAL] CRIMINAL JUSTICE COORDINATING COUNCILS CREATED--COMPOSITION--DUTIES.--
A. A criminal justice coordinating council is created for each judicial district and may include representation from within the district for:
(1) each court in the district;
(2) the district attorney;
(3) the district public defender office;
(4) law enforcement agencies;
(5) jails;
(6) correctional facilities;
(7) behavioral health programs; or
(8) other agencies and entities agreed upon by the council.
B. Each criminal justice coordinating council shall be convened by the chief judge of the district court in the judicial district.
C. Each criminal justice coordinating council shall select a chair at its first meeting. The first meeting of each council shall take place by August 1, 2019, and the council shall subsequently meet at the call of the chair, but not less than ten months per year.
D. Each criminal justice coordinating council shall organize itself and adopt rules in a manner appropriate to accomplish its duties pursuant to the Crime Reduction Grant Act.
E. A criminal justice coordinating council shall, to the extent possible, develop a strategic plan to meet the requirements of this section and shall:
(1) review the criminal justice system in the judicial district, including judicial processes, law enforcement, community corrections alternatives and sufficiency of jail and detention facilities;
(2) identify criminal justice system problems in the judicial district;
(3) develop data-driven policies and evidence-based best practices designed to improve public safety outcomes, cost-effective responses to crime and fair and efficient adjudication processes;
(4) apply as necessary to grant administration agencies for crime reduction grants pursuant to the Crime Reduction Grant Act;
(5) facilitate sharing of criminal justice information between agencies as permitted by law; and
(6) in consultation with the commission, develop data-sharing agreements and methods of data sharing to allow system-wide analysis of criminal justice operations within the judicial district and throughout the state.
F. Executive agencies and the administrative office of the courts shall provide prompt responses to criminal justice coordinating council requests for information.
SECTION 8. [NEW MATERIAL] APPLICATIONS FOR GRANTS-- PURPOSES--CONDITIONS.--
A. A member of a criminal justice coordinating council with the consent of the council may apply to a grant administration agency for a grant to accomplish any of the enumerated purposes provided in Subsection B of this section.
B. Crime reduction grants may be made to:
(1) develop, expand and improve evidence-based treatment and supervision alternatives to incarceration;
(2) reduce barriers to participation by criminal offenders in preprosecution diversion or specialty court programs;
(3) develop or improve pretrial service programs; and
(4) purchase equipment or provide training to support any of the purposes provided in this section.
C. Crime reduction grants shall be conditioned on the criminal justice coordinating council and the recipient member complying with the following:
(1) using not more than five percent of a grant for administrative costs of the recipient;
(2) in consultation with the commission, developing data-sharing agreements and methods of data sharing among criminal justice agencies and with the commission to allow system-wide analysis of criminal justice operations within the judicial district and statewide;
(3) using or developing evidence-based best practices for any programs operated with crime reduction grants;
(4) developing performance measures in consultation with the commission and the grant administration agency relevant to the grantee's application;
(5) collecting data to evaluate the effectiveness of programs operated with crime reduction grants;
(6) evaluating quarterly the process, outputs, outcomes and other performance measures of programs funded with grants for compliance with all provisions of the Crime Reduction Grant Act;
(7) providing a quarterly report to the commission for review and comparison with other programs receiving grants for similar purposes; and
(8) providing an annual report to the grant administration agency by October 1 of each year regarding program outcomes from use of the grant.
D. The commission shall assist with the implementation of data-sharing agreements to ensure compliance with crime reduction grants.
E. Each grant administration agency shall identify and require the use or development of evidence-based best practices for programs operated with crime reduction grants distributed by that grant administration agency.
F. A grant administration agency may consider any outcome reported to it by a grant recipient from a previous year in making a determination of whether to make subsequent grants or the amount of a subsequent grant.
SECTION 9. [NEW MATERIAL] RULES.--The New Mexico sentencing commission, in consultation with each grant administration agency, shall promulgate uniform procedural rules necessary to administer the provisions of the Crime Reduction Grant Act. Each grant administration agency shall adopt the uniform procedures along with other grant award criteria unique to the grant administration agency.
SECTION 10. [NEW MATERIAL] REPORTS.--
A. Each grant administration agency shall report to the commission annually by November 1 of each year regarding the:
(1) applications for grants made during the previous fiscal year by each criminal justice coordinating council;
(2) purpose and amount of each grant approved by the grant administration agency for each member for the previous fiscal year; and
(3) processes, outputs and outcomes resulting from the use of the grant.
B. The commission shall report to the legislature annually by December 1 of each year regarding the data-sharing network, including data derived from crime reduction grant data-sharing agreements.
SECTION 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.
- 27 -