HB0263JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 263

54th legislature - STATE OF NEW MEXICO - second session, 2020

AN ACT

RELATING TO CRIMINAL JUSTICE REFORM; PROVIDING CLARIFICATION AND GUIDANCE FOR PROBATION AND PAROLE; REMOVING THE REQUIREMENT FOR PAYMENT OF PROBATION COSTS; REMOVING THE REQUIREMENT FOR PAYMENT OF PAROLE COSTS; REPEALING SECTION 31-21-25.1 NMSA 1978 (BEING LAWS 1994, CHAPTER 21, SECTION 3).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

(1) for a first degree felony resulting in the death of a child, life imprisonment;

(2) for a first degree felony for aggravated criminal sexual penetration, life imprisonment;

(3) for a first degree felony, eighteen years imprisonment;

(4) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

(5) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;

(6) for a second degree felony for sexual exploitation of children, twelve years imprisonment;

(7) for a second degree felony, nine years imprisonment;

(8) for a third degree felony resulting in the death of a human being, six years imprisonment;

(9) for a third degree felony for a sexual offense against a child, six years imprisonment;

(10) for a third degree felony for sexual exploitation of children, eleven years imprisonment;

(11) for a third degree felony, three years imprisonment;

(12) for a fourth degree felony for sexual exploitation of children, ten years imprisonment; or

(13) for a fourth degree felony, eighteen months imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, [the payment of the costs of parole services and] reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

(1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

(2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

(3) for a first degree felony, fifteen thousand dollars ($15,000);

(4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

(5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

(6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(7) for a second degree felony, ten thousand dollars ($10,000);

(8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

(9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

(10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(11) for a third or fourth degree felony, five thousand dollars ($5,000); or

(12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

G. No later than October 31 of each year, the

New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

SECTION 2. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

"31-20-5. PLACING DEFENDANT ON PROBATION.--

A. The purpose of probation is to enforce victim restitution, hold a person accountable for the person's criminal conduct, promote a person's reintegration into law-abiding society and reduce the risks that the person will commit new offenses. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the [magistrate, metropolitan or district] court has [deferred or suspended sentence, it] entered an order of conditional discharge pursuant to Section 31-20-13 or 30-31-28 NMSA 1978, entered an order deferring the sentence or entered an order suspending in part or in full the sentence, the court shall order the defendant to be placed on probation for all or some portion of the period of the conditional discharge, deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the corrections department to furnish.

B. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation [for district court] shall not exceed five years and the total period of probation [for the magistrate or metropolitan courts] shall be no longer than the maximum allowable incarceration time for the offense [or as] at the time of sentencing unless otherwise provided by law.

C. Pursuant to Subsections A and B of this section, persons convicted by plea in magistrate or metropolitan court for a case that originally contained felony charges shall be eligible for probation and supervised by the adult probation and parole division of the corrections department.

D. The district court shall consult a validated risk and needs assessment when deciding what conditions of probation to impose.

[B.] E. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

(2) [in the event that] if the defendant violates any condition of that parole and the violation is not sanctioned pursuant to the provisions of Section 12 of this 2020 act, the parole board shall cause [him] the defendant to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation."

SECTION 3. Section 31-20-6 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-18, as amended) is amended to read:

"31-20-6. CONDITIONS OF ORDER DEFERRING OR SUSPENDING SENTENCE.--The [magistrate, metropolitan or district] court shall attach to its order deferring or suspending sentence reasonable conditions as it may deem necessary to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality. The defendant upon conviction shall be required to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to the defendant's arrest, prosecution or conviction, but in no event shall reimbursement to the crime stopper program preempt restitution to victims pursuant to the provisions of Section 31-17-1 NMSA 1978. [The defendant upon conviction shall be required to pay the actual costs of the defendant's supervised probation service to the adult probation and parole division of the corrections department or appropriate responsible agency for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised probation costs shall not be waived unless the court holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the court waives the defendant's payment of the supervised probation costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the court and the court shall hold an evidentiary hearing to determine whether the waiver should be rescinded.] The court may also require the defendant to:

A. provide for the support of persons for whose support the defendant is legally responsible;

B. undergo available medical or psychiatric treatment and enter and remain in a specified institution when required for that purpose;

C. be placed on probation under the supervision, guidance or direction of the adult probation and parole division for a term not to exceed five years;

D. serve a period of time in volunteer labor to be known as "community service". The type of labor and period of service shall be at the sole discretion of the court; provided that a person receiving community service shall be immune from any civil liability other than gross negligence arising out of the community service, and a person who performs community service pursuant to court order or a criminal diversion program shall not be entitled to wages, shall not be considered an employee and shall not be entitled to workers' compensation, unemployment benefits or any other benefits otherwise provided by law. As used in this subsection, "community service" means labor that benefits the public at large or a public, charitable or educational entity or institution;

E. make a contribution of not less than ten dollars ($10.00) and not more than one hundred dollars ($100), to be paid in monthly installments of not less than five dollars ($5.00), to a local crime stopper program, a local domestic violence prevention or treatment program or a local drug abuse resistance education program that operates in the territorial jurisdiction of the court; and

F. satisfy any other conditions reasonably related to the defendant's rehabilitation."

SECTION 4. Section 31-21-4 NMSA 1978 (being Laws 1955, Chapter 232, Section 2, as amended) is amended to read:

"31-21-4. CONSTRUCTION AND PURPOSE OF ACT.--

A. The Probation and Parole Act shall be liberally construed to the end that the treatment of persons convicted of a crime shall take into consideration their individual characteristics, circumstances [needs and potentialities as revealed by case study] and assessment of risk and needs and that such persons shall be dealt with in the community by a uniformly organized system of constructive rehabilitation under probation supervision instead of in an institution or under parole supervision when a period of institutional treatment is deemed essential in the light of the needs of public safety and their own welfare.

B. The corrections department shall:

(1) operate probation and parole supervision based upon application of a validated risk and needs assessment and principles of effective intervention to reduce criminogenic risk and needs factors;

(2) focus supervision resources on the initial period of release or placement on probation;

(3) recommend and enforce conditions that include cognitive-behavioral programming to address criminal thinking and address basic needs and transitional requirements, such as housing, employment, medical and mental health services and transportation; and

(4) apply a consistent system of incentives and graduated sanctions to promptly respond to positive and negative behavior by probationers and parolees under supervision."

SECTION 5. Section 31-21-5 NMSA 1978 (being Laws 1978, Chapter 41, Section 1, as amended) is amended to read:

"31-21-5. DEFINITIONS.--As used in the Probation and Parole Act:

[A. "probation" means the procedure under which an adult defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions;

B. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

C. "institution" means the state penitentiary and any other similar state institution hereinafter created;

D. "board" means the parole board;

E. "director" means the director of the field services division of the corrections department or any employee designated by him; and]

A. "absconding" means that a person under supervision willfully makes the person's whereabouts unknown to the person's probation and parole officer or willfully fails to report as ordered and, in addition, reasonable efforts by the probation and parole officer to locate the person have been unsuccessful;

[F.] B. "adult" means any person convicted of a crime by a district court;

C. "board" means the parole board;

D. "director" means the director of the adult probation and parole division of the corrections department or any employee designated by the director;

E. "geriatric inmate" means a person who:

(1) is under sentence to or confined in a prison or other correctional institution under the control of the corrections department;

(2) is sixty-five years of age or older;

(3) suffers from a chronic infirmity, illness or disease related to aging; and

(4) does not constitute a danger to the person's own self or to society;

F. "institution" means the state penitentiary and any other similar state institution;

G. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

H. "permanently incapacitated inmate" means a person who:

(1) is under sentence to or confined in a prison or other correctional institution under the control of the corrections department;

(2) by reason of an existing medical condition, is permanently and irreversibly physically incapacitated; and

(3) does not constitute a danger to the person's own self or to society;

I. "probation" means the procedure under which an adult defendant is released by the court without imprisonment under a conditional discharge, an order deferring sentence or an order partially or fully suspending sentence and subjecting the defendant to conditions;

J. "reasonable efforts" means, at a minimum, checking with a probationer's or parolee's emergency contact, last known address, last known employment and hospitals and jails in the area;

K. "standard violation" means absconding or violating any municipal or county ordinance or tribal, state or federal criminal law;

L. "technical violation" means a violation of the conditions of probation or parole supervision other than those violations constituting a standard violation. "Technical violation" includes an instance in which a probationer or parolee fails to make a scheduled appointment and:

(1) the probation and parole officer fails to perform reasonable efforts to locate the probationer or parolee; or

(2) the probationer or parolee makes the person's whereabouts known to the probation and parole officer or reports to the officer prior to the completion of the officer's reasonable efforts to locate the person; and

M. "terminally ill inmate" means a person who:

(1) is under sentence or confined in a prison or other correctional institution under the control of the corrections department;

(2) has an incurable condition caused by illness or disease that would, within reasonable medical judgment, produce death within six months; and

(3) does not constitute a danger to the person's own self or to society."

SECTION 6. Section 31-21-9 NMSA 1978 (being Laws 1972, Chapter 71, Section 17) is amended to read:

"31-21-9. PRESENTENCE [AND PRERELEASE] INVESTIGATIONS.--

A. Upon the order of any [district or magistrate] court, the director shall prepare a presentence report [which] that shall include [such information as the court may request.

B. Upon the order of any district court the director shall prepare a prerelease report which the court shall use to determine the accused's qualifications for bail. The report shall include] available information about the [accused's] convicted person's family ties, employment, financial resources, character, physical and mental condition, the length of [his] the convicted person's residence in the community, [his] any victim impact information, the convicted person's state personal identification number, the convicted person's record of convictions, [his] the convicted person's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, [and] any history of drug or alcohol abuse, the results of any validated risk and needs assessments administered and such other information as the court may request.

[C.] B. All local and state law enforcement agencies shall furnish to the director any requested criminal records."

SECTION 7. Section 31-21-10 NMSA 1978 (being Laws 1980, Chapter 28, Section 1, as amended) is amended to read:

"31-21-10. PAROLE AUTHORITY AND PROCEDURE.--

A. An inmate of an institution who was sentenced to life imprisonment becomes eligible for a parole hearing after the inmate has served thirty years of the sentence. Before ordering the parole of an inmate sentenced to life imprisonment, the board shall:

(1) interview the inmate at the institution where the inmate is committed;

(2) consider all pertinent information concerning the inmate, including:

(a) the circumstances of the offense;

(b) mitigating and aggravating circumstances;

(d) whether the inmate is a habitual offender;

(e) the reports filed under Section

31-21-9 NMSA 1978; and

(f) the reports of such physical and mental examinations as have been made while in an institution;

(3) make a finding that a parole is in the best interest of society and the inmate; and

(4) make a finding that the inmate is able and willing to fulfill the obligations of a law-abiding citizen.

If parole is denied, the inmate sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.

B. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was sentenced to life imprisonment shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.

C. An inmate of an institution who was sentenced to life imprisonment without possibility of release or parole is not eligible for parole and shall remain incarcerated for the entirety of the inmate's natural life.

D. Except for certain sex offenders as provided in Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.

E. Every person while on parole shall remain in the legal custody of the institution from which the person was released, but shall be subject to the orders of the board. The board shall maintain a non-reporting caseload to assist the adult probation and parole division of the corrections department in placing holds if a non-reporting parolee is arrested and booked. The board shall furnish to each inmate as a prerequisite to release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the inmate as evidenced by the inmate's signature affixed to a duplicate copy to be retained in the files of the board. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If an inmate refuses to affix the inmate's signature to the written statement of the conditions of parole or does not have an approved parole plan, the inmate shall not be released and shall remain in the custody of the institution in which the inmate has served the inmate's sentence, excepting parole, until such time as the period of parole the inmate was required to serve, less meritorious deductions, if any, expires, at which time the inmate shall be released from that institution without parole, or until such time that the inmate evidences acceptance and agreement to the conditions of parole as required or receives approval for the inmate's parole plan or both. Time served from the date that an inmate refuses to accept and agree to the conditions of parole or fails to receive approval for the inmate's parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the inmate make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the inmate of the conditions of parole and the inmate's duties relating thereto.

F. When a person on parole has performed the obligations of the person's release for the period of parole provided in this section, the board shall make a final order of discharge and issue the person a certificate of discharge.

G. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the inmate as a condition of parole

[(1) to pay the actual costs of parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised parole costs shall not be waived unless the board holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the board waives the defendant's payment of the supervised parole costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the board and the board shall hold an evidentiary hearing to determine whether the waiver should be rescinded; and

(2)] to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to the inmate's arrest, prosecution or conviction, but in no event shall reimbursement to the crime stopper program preempt restitution to victims pursuant to the provisions of Section 31-17-1 NMSA 1978.

H. The provisions of this section shall apply to all inmates except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act."

SECTION 8. Section 31-21-13.1 NMSA 1978 (being Laws 1988, Chapter 62, Section 3, as amended) is amended to read:

"31-21-13.1. INTENSIVE SUPERVISION PROGRAMS.--

A. As used in this section, "intensive supervision programs" means programs that provide highly structured and intense supervision, with stringent reporting requirements, of certain individuals who represent an excessively high assessment of risk of violation of probation or parole, emphasize meaningful rehabilitative activities and reasonable alternatives without seriously increasing the risk of recidivist crime and facilitate the payment of restitution by the offender to the victim. "Intensive supervision programs" [include] includes house arrest programs or electronic surveillance programs or both.

B. The corrections department shall implement and operate intensive supervision programs in various local communities. The programs shall provide services for appropriate individuals by probation and parole officers of the corrections department. The corrections department shall promulgate rules [and regulations] to provide that the officers providing these services have [a maximum case load of forty offenders] the training, resources and caseloads that enable them to operate effectively and to provide for offender selection and other criteria. The corrections department may cooperate with all recognized law enforcement authorities and share all necessary and pertinent information, records or documents regarding probationers or parolees in order to implement and operate these intensive supervision programs.

C. For purposes of this section, a judge contemplating imposition of an intensive supervision program for an individual shall consult with the adult probation and parole division of the corrections department and [consider the recommendations before imposing such probation] review the results of the validated risk and needs assessment. The [adult probation and parole] division [of the corrections department] shall recommend only those individuals who score as high risk and who would have otherwise been recommended for incarceration for intensive supervision programs. A judge has discretion to impose an intensive supervision program for an individual, regardless of recommendations made by the [adult probation and parole] division, only if a validated risk and needs assessment has been provided to the judge and considered in the decision to impose an intensive supervision program. Inmates eligible for parole or within twelve months of eligibility for parole, or inmates who would otherwise remain in a correctional institution for lack of a parole plan or those parolees whose parole the board would otherwise revoke, are eligible for intensive supervision programs. The provisions of this section do not limit or reduce the statutory authority vested in probation and parole supervision as defined by any other section of the Probation and Parole Act.

[D. There is created in the state treasury the "corrections department intensive supervision fund" to be administered by the corrections department upon vouchers signed by the secretary of corrections. Balances in the corrections department intensive supervision fund shall not revert to the general fund. Beginning July 1, 1988, the intensive supervision programs established pursuant to this section shall be funded by those supervision costs collected pursuant to the provisions of Sections 31-20-6 and 31-21-10 NMSA 1978. The corrections department is specifically authorized to hire additional permanent or term full-time equivalent positions for the purpose of implementing the provisions of this section.]"

SECTION 9. Section 31-21-14 NMSA 1978 (being Laws 1955, Chapter 232, Section 17, as amended) is amended to read:

"31-21-14. [RETURN OF] PAROLE [VIOLATOR] VIOLATIONS.--

A. At any time during release on parole:

(1) the board or the director may issue a warrant for the arrest of the [released prisoner for] parolee to answer a charge of a standard violation. [of any of the conditions of release, or issue a notice to appear to answer a charge of violation. The notice shall be served personally upon the prisoner] The warrant shall authorize the [superintendent] warden of the institution from which the [prisoner] parolee was released to return the [prisoner] parolee to the [actual] physical custody of the institution or to any other [suitable] detention facility designated by the board or the director. If the [prisoner] parolee is out of the state, the warrant shall authorize the [superintendent] warden to return [him] the parolee to the state;

[B. the director] (2) a probation and parole officer may arrest the [prisoner] parolee without a warrant or may deputize [any] an officer with the power of arrest to do so by giving [him] the officer a written statement [setting forth] that the [prisoner] parolee has, in the judgment of the [director, violated the conditions of his release] probation and parole officer, committed a standard violation. Where an arrest is made without a warrant, the [prisoner] parolee shall not be returned to the institution unless authorized by the director or the board;

(3) a probation and parole officer may arrest a parolee without a warrant or may deputize an officer with the power of arrest to do so by giving the officer a written statement that the parolee has, in the judgment of the probation and parole officer, committed a technical violation or standard violation if the parolee is serving a period of parole stemming from a plea or conviction for a sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978; or

(4) a probation and parole officer may arrest a parolee for a technical or standard violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe that the parolee poses a flight risk or a danger to the community.

B. Pending hearing as provided by law upon [any] a charge of a standard violation, the [prisoner] parolee shall remain incarcerated in the institution.

C. Upon arrest and detention for a standard violation, the board shall cause the [prisoner] parolee to be promptly brought before it for a parole revocation hearing on the [parole] standard violation charged, under rules [and regulations] the board may adopt.

D. If the standard violation is established, the board may continue or revoke the parole, impose detention for a fixed term up to ninety days, which shall be counted as time served under the sentence, or enter any other order as it sees fit.

[D.] E. A [prisoner] parolee for whose return a warrant has been issued shall, if it is found that the warrant cannot be served, be a fugitive from justice.

F. If it appears that [he] the parolee has [violated the provisions of his release] committed a standard violation, the board shall determine whether the time from the date of the violation to the date of [his] the parolee's arrest, or any part of it, shall be counted as time served under the sentence.

G. At any time during release on parole, the board or the director may issue a notice to appear to answer a charge of a technical violation. The notice shall be served personally upon the parolee and shall initiate a technical violation process in accordance with Sections 12 and 13 of this 2020 act.

H. By December 1, 2021 and December 1 of every subsequent year, the director shall report to the appropriate interim committee of the legislature and to the governor and shall post on the corrections department website:

(1) the number of warrants issued and arrests made by the director or the board pursuant to Paragraph (1) of Subsection A of this section;

(2) the number of arrests made by probation and parole officers pursuant to Paragraphs (2) and (3) of Subsection A of this section;

(3) the number of arrests made by probation and parole officers pursuant to Paragraph (4) of Subsection A of this section;

(4) the average amount of time per parolee between a detention for a standard violation and the parole revocation hearing pursuant to Subsection C of this section;

(5) the penalty imposed for a standard violation pursuant to Subsection D of this section along with the number of prior violations the parolee committed;

(6) the number of times that the board counted the period of time between the date of the violation to the date of the parolee's arrest as time served pursuant to Subsection F of this section; and

(7) the number of notices to appear to answer a charge of a technical violation pursuant to Subsection G of this section."

SECTION 10. Section 31-21-15 NMSA 1978 (being Laws 1963, Chapter 301, Section 13, as amended by Laws 2016, Chapter 27, Section 1 and by Laws 2016, Chapter 31, Section 1) is amended to read:

"31-21-15. [RETURN OF] PROBATION [VIOLATOR] VIOLATIONS.--

A. At any time during probation:

(1) the court may issue a warrant for the arrest of a probationer for a standard violation [of any of the conditions of release]. The warrant shall authorize the return of the probationer to the physical custody of the court or to any [suitable] other detention facility designated by the court;

(2) the court may issue a [notice to appear to answer a charge of violation. The notice shall be personally served upon the probationer; or] warrant for the arrest of a probationer for a technical violation only if the probationer is serving a period of probation pursuant to an order of conditional discharge, suspended sentence or deferred sentence stemming from a plea or conviction for a sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978;

(3) the director may arrest a probationer without a warrant or may deputize [any] an officer with power of arrest to do so by giving the officer a written statement [setting forth] that the probationer has, in the judgment of the director, [violated the conditions of the probationer's release] committed a standard violation. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer; or

(4) a probation and parole officer may arrest a probationer for a technical or standard violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe the probationer poses a flight risk or a danger to the community.

B. Upon the probationer's arrest and detention for a standard violation:

(1) the director shall immediately notify the court and submit in writing a report [showing in what] describing the manner in which the probationer has violated the conditions of release; and

[B. The court shall then hold a hearing, which may be informal, on the violation charged.]

(2) the court shall hold a probation revocation hearing on the standard violation charged.

C. If the standard violation is established at the probation revocation hearing, the court may continue or revoke the probation or enter any other order as it sees fit.

D. At any time during probation, the court may issue a notice to appear to answer a charge of technical violation. The notice shall be personally served upon the probationer and shall initiate a technical violation hearing.

E. If the technical violation is established before the court at a technical violation hearing, the court may:

(1) continue the original probation; [or]

(2) revoke the probation and either:

(a) order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978; or

(b) require the probationer to serve the balance of the sentence imposed or any lesser sentence; or

(3) if imposition of sentence was deferred, [the court may] impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

[C.] F. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After the hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court and released without imprisonment under a conditional discharge, an order deferring sentence or an order partially or fully suspending sentence and subjecting the defendant to conditions.

[D.] G. The board shall budget funds to cover expenses of returning probationers to the court.

H. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state.

I. By December 1, 2021 and December 1 of every subsequent year, the director shall report to the appropriate interim committee of the legislature and to the governor and shall post on the agency website:

(1) the number of warrants sought by the director and the number of arrests made by the director pursuant to Paragraph (1) of Subsection A of this section;

(2) the number of warrants sought by the director and the number of arrests made by the director pursuant to Paragraph (2) of Subsection A of this section;

(3) the number of arrests made by the director or the director's deputies pursuant to Paragraph (3) of Subsection A of this section;

(4) the number of arrests made by probation and parole officers pursuant to Paragraph (4) of Subsection A of this section;

(5) the average number of technical violations by a probationer before the director seeks either a warrant from a court pursuant to Paragraph (1) of Subsection A of this section or makes an arrest pursuant to Paragraph (4) of Subsection A of this section; and

(6) the number of times a probationer was alleged to have committed a standard violation but was adjudicated to have committed a technical violation."

SECTION 11. Section 31-21-17.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 2) is amended to read:

"31-21-17.1. [ADMINISTRATION BY] MEDICAL OR GERIATRIC PAROLE--PROCEDURES--DUTIES OF THE DEPARTMENT--DUTIES OF THE BOARD.--

A. The corrections department shall promulgate rules and shall implement a "medical and geriatric parole program", including the form of an application for medical or geriatric parole.

B. The director or the corrections department shall identify geriatric, permanently incapacitated and terminally ill inmates and authorize the release of those inmates who are eligible for medical or geriatric [or medical] parole [based on rules established by the board. The department shall forward an application and documentation in support of parole eligibility to the board within thirty days of receipt of an application from an inmate. The documentation shall include information concerning the inmate's age, medical history and prognosis, institutional behavior and adjustment and criminal history. The inmate or inmate's representative may submit an application to the board] and notify those inmates of the opportunity to apply for medical or geriatric parole. Upon receiving an application, the corrections department shall determine within thirty days whether to recommend an inmate for medical or geriatric parole. The recommendation shall include the inmate's age, medical history and prognosis, if applicable, institutional behavior and adjustment. When the department recommends an inmate for medical or geriatric parole, the director shall submit a statement to the board that the inmate's release is not incompatible with the welfare of society.

C. Inmates who have not served their minimum sentences may be considered eligible for parole under the medical and geriatric parole program. Medical and geriatric parole consideration shall be in addition to any other parole for which a geriatric, permanently incapacitated or terminally ill inmate may be eligible.

D. When considering an inmate for medical or geriatric parole, the director may request that reasonable medical and mental health examinations be conducted.

E. When determining an inmate's eligibility for geriatric or medical parole, the director shall consider the following criteria concerning the inmate:

(1) age;

(2) severity of illness, disease or infirmities;

(3) comprehensive health evaluation;

(4) institutional behavior;

(5) level of risk for violence;

(6) potential threat to any victim of the inmate's crime; and

(7) alternatives to maintaining the geriatric, permanently incapacitated or terminally ill inmate in traditional settings.

F. The parole term of the geriatric, permanently incapacitated or terminally ill inmate on medical or geriatric parole shall be for the remainder of the inmate's sentence, without diminution of sentence for good behavior.

G. The board shall release an inmate on medical or geriatric parole upon recommendation from the director unless the board finds by clear and convincing evidence that the inmate's release is incompatible with the welfare of society and states in writing its reason for the finding. The board shall not deny medical or geriatric parole solely because of the inmate's criminal history."

SECTION 12. A new section of the Probation and Parole Act is enacted to read:

"[NEW MATERIAL] INCENTIVES--SANCTIONS FOR TECHNICAL VIOLATIONS.--

A. The adult probation and parole division of the corrections department shall create and implement an incentives and sanctions system to guide responses to negative and positive behavior by probationers and parolees under the supervision of the department. The system shall provide for graduated responses to technical violations of supervision conditions, in a swift, certain and proportional manner, and include guidance and procedures to determine when and how to:

(1) request a warrant;

(2) initiate a hearing; and

(3) seek departmental approval to use custodial interventions.

B. To implement and continuously improve the incentives and sanctions system, the adult probation and parole division shall:

(1) provide information and training on the system for probation and parole officers of the division and members and staff of the board;

(2) offer information and training on the system to judges, prosecution and defense attorneys, law enforcement personnel, detention center personnel, contracted service providers and other interested personnel;

(3) review the system at least every five years to ensure that it adheres to evidence-based practices and that the use of sanctions and incentives by probation and parole officers is consistent across the state;

(4) ensure that the guidance and procedures established by the system consider community safety and the needs of the victim and offender;

(5) collect data relating to placement decisions based on the system; and

(6) aggregate collected data and provide a report to the appropriate legislative interim committee dealing with courts, corrections and justice issues every two years.

C. A probation and parole officer who reasonably believes that a probationer or parolee has committed one or more technical violations that require a sanction shall consult the incentives and sanctions system to determine an appropriate response. Consistent with the system, the officer may impose a non-detention sanction to gain the person's compliance with the conditions of probation or parole.

D. Graduated sanctions for technical violations may include three-day and seven-day detention in a county jail or other place of detention. Sanctions served in detention shall be counted as time served under the sentence."

SECTION 13. A new section of the Probation and Parole Act is enacted to read:

"[NEW MATERIAL] TECHNICAL VIOLATIONS.--

A. If a probation and parole officer seeks to impose detention for a technical violation, the officer shall review the violation and proposed detention with a supervisor.

B. With supervisory approval, the probation and parole officer shall review the violation and proposed detention with the probationer or parolee and seek a signed waiver after consultation with an attorney from the probationer or parolee that acknowledges the violation and accepts the proposed detention.

C. If the waiver for a probationer is rejected, the probation and parole officer shall promptly report the alleged violation to the court. If the waiver for a parolee is rejected, the probation and parole officer shall promptly report the alleged violation to the board and proceed to formal resolution.

D. The probation and parole officer's written report of a technical violation shall include the officer's recommendation and justification as to final action or resolution of the situation. The officer's recommendation is not binding on the court."

SECTION 14. TEMPORARY PROVISION--TRANSFER OF THE CORRECTIONS DEPARTMENT INTENSIVE SUPERVISION FUND BALANCE TO THE GENERAL FUND.--Any unexpended or unencumbered balances remaining in the corrections department intensive supervision fund on January 1, 2021 shall be transferred to the general fund.

SECTION 15. REPEAL.--Section 31-21-25.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 3) is repealed.

SECTION 16. APPLICABILITY.--

A. The provisions of Sections 12 and 13 of this act apply to persons whose probation or parole commences subsequent to January 1, 2021 and to all persons on probation or parole on January 1, 2021.

B. The provisions of Sections 2, 4, 6 and 8 of this act that pertain to risk and needs assessments and the use of risk and needs assessments apply to judges determining conditions of probation, persons waiting to be sentenced, persons on probation and parole and persons placed on probation or parole on or after July 1, 2021.

SECTION 17. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2021.

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