0001| HOUSE BILL 176
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| RITA G. GETTY
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO CRIMINAL SENTENCING; PROVIDING THAT CERTAIN
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0012| CRIMINAL OFFENDERS BE SENTENCED TO LIFE IMPRISONMENT WITHOUT
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0013| THE POSSIBILITY OF PAROLE; PROVIDING THAT PRISONERS SENTENCED
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0014| TO LIFE WITHOUT PAROLE SHALL BE CONFINED TO PRISON AND SHALL
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0015| NOT BE ELIGIBLE FOR SENTENCE SUSPENSION OR DEFERRAL OR FOR
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0016| MERITORIOUS DEDUCTION, INMATE RELEASE OR COMMUNITY RELEASE
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0017| PROGRAMS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
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0018|
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0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0020| Section 1. A new section of the Criminal Code is enacted
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0021| to read:
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0022| "[NEW MATERIAL] LIFE IMPRISONMENT WITHOUT THE
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0023| POSSIBILITY OF PAROLE--PRISON CONFINEMENT.--An inmate of an
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0024| institution who is sentenced to life imprisonment without the
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0025| possibility of parole shall never be eligible for a sentence
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0001| suspension or deferral or to leave the physical confines of a
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0002| prison pursuant to any program, including an inmate release,
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0003| community release or work release program, that may be
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0004| available to other prison inmates."
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0005| Section 2. Section 31-18-23 NMSA 1978 (being Laws 1994,
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0006| Chapter 24, Section 2, as amended) is amended to read:
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0007| "31-18-23. THREE VIOLENT FELONY CONVICTIONS--MANDATORY
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0008| LIFE IMPRISONMENT--EXCEPTION.--
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0009| A. When a defendant is convicted of a third
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0010| violent felony, and each violent felony conviction is part of
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0011| a separate transaction or occurrence, and at least the third
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0012| violent felony conviction is in New Mexico, the defendant
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0013| shall, [in addition to] when the sentence imposed for the
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0014| third violent conviction [when that sentence] does not
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0015| result in death, be punished by a sentence of life
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0016| imprisonment [The life imprisonment sentence shall be
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subject to parole pursuant to the provisions of Section 31-21-
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10 NMSA 1978] without the possibility of parole.
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0019| B. The sentence of life imprisonment shall be
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0020| imposed after a sentencing hearing, separate from the trial or
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0021| guilty plea proceeding resulting in the third violent felony
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0022| conviction, pursuant to the provisions of Section 31-18-24
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0023| NMSA 1978.
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0024| C. For the purpose of this section, a violent
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0025| felony conviction incurred by a defendant before he reaches
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0001| the age of eighteen shall not count as a violent felony
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0002| conviction.
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0003| D. When a defendant has a felony conviction from
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0004| another state, the felony conviction shall be considered a
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0005| violent felony for the purposes of the Criminal Sentencing Act
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0006| if that crime would be considered a violent felony in New
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0007| Mexico.
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0008| E. As used in the Criminal Sentencing Act:
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0009| (1) "great bodily harm" means an injury to
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0010| the person that creates a high probability of death or that
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0011| causes serious disfigurement or that results in permanent loss
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0012| or impairment of the function of any member or organ of the
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0013| body; and
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0014| (2) "violent felony" means:
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0015| (a) murder in the first or second
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0016| degree, as provided in Section 30-2-1 NMSA 1978;
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0017| (b) shooting at or from a motor vehicle
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0018| resulting in great bodily harm, as provided in Subsection B of
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0019| Section 30-3-8 NMSA 1978;
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0020| (c) kidnapping resulting in great
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0021| bodily harm inflicted upon the victim by his captor, as
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0022| provided in Subsection B of Section 30-4-1 NMSA 1978; [and]
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0023| (d) criminal sexual penetration, as
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0024| provided in Subsection C or Paragraph (5) or (6) of Subsection
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0025| D of Section 30-9-11 NMSA 1978; and
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0001| (e) robbery while armed with a deadly
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0002| weapon resulting in great bodily harm as provided in Section
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0003| 30-16-2 NMSA 1978 and Subsection A of Section 30-1-12 NMSA
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0004| 1978."
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0005| Section 3. Section 31-18-25 NMSA 1978 (being Laws 1996,
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0006| Chapter 79, Section 1, as amended) is amended to read:
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0007| "31-18-25. TWO VIOLENT SEXUAL OFFENSE CONVICTIONS--
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0008| MANDATORY LIFE IMPRISONMENT--EXCEPTION.--
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0009| A. When a defendant is convicted of a second
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0010| violent sexual offense, and each violent sexual offense
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0011| conviction is part of a separate transaction or occurrence,
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0012| and at least the second violent sexual offense conviction is
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0013| in New Mexico, the defendant shall [in addition to the
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punishment imposed for the second violent sexual offense
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conviction] be punished by a sentence of life imprisonment
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0016| [The life imprisonment sentence shall be subject to parole
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pursuant to the provisions of Section 31-21-10 NMSA 1978]
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0018| without the possibility of parole.
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0019| [B. Notwithstanding the provisions of Subsection
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A of this section, when a defendant is convicted of a second
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violent sexual offense, and each violent sexual offense
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conviction is part of a separate transaction or occurrence,
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and the victim of each violent sexual offense was less than
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thirteen years of age at the time of the offense, and at least
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the second violent sexual offense conviction is in New Mexico,
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the defendant shall be punished by a sentence of life
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imprisonment without the possibility of parole.]
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0003| [C.] B. The sentence of life imprisonment
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0004| shall be imposed after a sentencing hearing, separate from the
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0005| trial or guilty plea proceeding resulting in the second
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0006| violent sexual offense conviction, pursuant to the provisions
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0007| of Section 31-18-26 NMSA 1978.
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0008| [D.] C. For the purposes of this section, a
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0009| violent sexual offense conviction incurred by a defendant
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0010| before he reaches the age of eighteen shall not count as a
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0011| violent sexual offense conviction.
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0012| [E.] D. When a defendant has a felony
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0013| conviction from another state, the felony conviction shall be
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0014| considered a violent sexual offense for the purposes of the
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0015| Criminal Sentencing Act if the crime would be considered a
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0016| violent sexual offense in New Mexico.
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0017| [F.] E. As used in the Criminal Sentencing
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0018| Act, "violent sexual offense" means:
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0019| (1) criminal sexual penetration in the first
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0020| degree, as provided in Subsection C of Section 30-9-11 NMSA
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0021| 1978; or
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0022| (2) criminal sexual penetration in the second
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0023| degree, as provided in Subsection D of Section 30-9-11 NMSA
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0024| 1978."
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0025| Section 4. Section 31-20-3 NMSA 1978 (being Laws 1963,
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0001| Chapter 303, Section 29-15, as amended) is amended to read:
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0002| "31-20-3. ORDER DEFERRING OR SUSPENDING SENTENCE--
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0003| DIAGNOSTIC COMMITMENT.--Upon entry of a judgment of conviction
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0004| of any crime not constituting a capital [or] felony, a
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0005| first degree felony or a felony that requires a sentence of
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0006| life imprisonment without the possibility of parole, any
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0007| court having jurisdiction, when it is satisfied that the ends
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0008| of justice and the best interest of the public as well as the
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0009| defendant will be served thereby, may either:
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0010| A. enter an order deferring the imposition of
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0011| sentence;
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0012| B. sentence the defendant and enter an order
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0013| suspending in whole or in part the execution of the sentence;
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0014| or
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0015| C. commit the convicted person, if convicted of a
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0016| felony and not committed for diagnostic purposes within the
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0017| twelve-month period immediately preceding that conviction, to
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0018| the [department of] corrections department for an
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0019| indeterminate period not to exceed sixty days for purposes of
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0020| diagnosis, with direction that the court be given a report
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0021| when the diagnosis is complete as to what disposition appears
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0022| best when the interest of the public and the individual are
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0023| evaluated."
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0024| Section 5. Section 31-20A-3 NMSA 1978 (being Laws 1979,
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0025| Chapter 150, Section 4) is amended to read:
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0001| "31-20A-3. COURT SENTENCING.--In a jury sentencing
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0002| proceeding in which the jury unanimously finds beyond a
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0003| reasonable doubt and specifies at least one of the aggravating
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0004| circumstances enumerated in Section [6 of this act] 31-20A-
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0005| 5 NMSA 1978, and unanimously specifies the sentence of death
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0006| pursuant to Section [3 of this act] 31-20A-2 NMSA 1978,
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0007| the court shall sentence the defendant to death. Where a
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0008| sentence of death is not unanimously specified, or the jury
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0009| does not make the required finding, or the jury is unable to
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0010| reach a unanimous verdict, the court shall sentence the
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0011| defendant to life imprisonment without the possibility of
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0012| parole. In a nonjury sentencing proceeding and in cases
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0013| involving a plea of guilty, where no jury has been demanded,
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0014| the judge shall determine and impose the sentence, but he
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0015| shall not impose the sentence of death except upon a finding
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0016| beyond a reasonable doubt and specification of at least one of
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0017| the aggravating circumstances enumerated in Section [6 of
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this act] 31-20A-5 NMSA 1978."
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0019| Section 6. Section 31-21-10 NMSA 1978 (being Laws 1980,
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0020| Chapter 28, Section 1, as amended) is amended to read:
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0021| "31-21-10. PAROLE AUTHORITY AND PROCEDURE.--
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0022| A. An inmate of an institution who was sentenced
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0023| to life imprisonment is not eligible for parole if he:
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0024| (1) was sentenced as the result of the
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0025| commission of a capital felony; [who]
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0001| (2) was convicted of three violent felonies
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0002| and sentenced pursuant to Sections 31-18-23 and 31-18-24 NMSA
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0003| 1978; or [who]
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0004| (3) was convicted of two violent sexual
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0005| offenses and sentenced pursuant to Subsection A of Section
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0006| 31-18-25 NMSA 1978 and Section 31-18-26 NMSA 1978. [becomes
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eligible for a parole hearing after he has served thirty years
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of his sentence. Before ordering the parole of an inmate
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sentenced to life imprisonment, the board shall:
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(1) interview the inmate at the institution
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where he is committed;
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(2) consider all pertinent information
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concerning the inmate, including:
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(a) the circumstances of the offense;
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(b) mitigating and aggravating
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circumstances;
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(c) whether a deadly weapon was used in
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the commission of the offense;
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(d) whether the inmate is a habitual
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offender;
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(e) the reports filed under Section
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31-21-9 NMSA 1978; and
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(f) the reports of such physical and
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mental examinations as have been made while in prison;
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(3) make a finding that a parole is in the
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best interest of society and the inmate; and
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(4) make a finding that the inmate is able
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and willing to fulfill the obligations of a law-abiding
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citizen.
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If parole is denied, the inmate sentenced to life
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imprisonment shall again become entitled to a parole hearing
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at two-year intervals. The board may, on its own motion,
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reopen any case in which a hearing has already been granted
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and parole denied.
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B. Unless the board finds that it is in the best
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interest of society and the parolee to reduce the period of
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parole, a person who was convicted of a capital felony shall
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be required to undergo a minimum period of parole of five
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years. During the period of parole, the person shall be under
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the guidance and supervision of the board.
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C.] B. An inmate who was convicted of a first,
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0017| second or third degree felony and who has served the sentence
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0018| of imprisonment imposed by the court in a corrections facility
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0019| designated by the corrections department shall be required to
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0020| undergo a two-year period of parole. An inmate who was
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0021| convicted of a fourth degree felony and who has served the
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0022| sentence of imprisonment imposed by the court in a corrections
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0023| facility designated by the corrections department shall be
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0024| required to undergo a one-year period of parole. During the
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0025| period of parole, the person shall be under the guidance and
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0001| supervision of the board.
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0002| [D.] C. Every person while on parole shall
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0003| remain in the legal custody of the institution from which he
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0004| was released, but shall be subject to the orders of the board.
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0005| The board shall furnish to each inmate as a prerequisite to
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0006| his release under its supervision a written statement of the
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0007| conditions of parole that shall be accepted and agreed to by
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0008| the inmate as evidenced by his signature affixed to a
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0009| duplicate copy to be retained in the files of the board. The
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0010| board shall also require as a prerequisite to release the
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0011| submission and approval of a parole plan. If an inmate
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0012| refuses to affix his signature to the written statement of the
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0013| conditions of his parole or does not have an approved parole
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0014| plan, he shall not be released and shall remain in the custody
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0015| of the corrections facility in which he has served his
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0016| sentence, excepting parole, until such time as the period of
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0017| parole he was required to serve, less meritorious deductions,
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0018| if any, expires, at which time he shall be released from that
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0019| facility without parole, or until such time that he evidences
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0020| his acceptance and agreement to the conditions of parole as
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0021| required or receives approval for his parole plan or both.
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0022| Time served from the date that an inmate refuses to accept and
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0023| agree to the conditions of parole or fails to receive approval
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0024| for his parole plan shall reduce the period, if any, to be
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0025| served under parole at a later date. If the district court
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0001| has ordered that the inmate make restitution to a victim as
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0002| provided in Section 31-17-1 NMSA 1978, the board shall include
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0003| restitution as a condition of parole. The board shall also
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0004| personally apprise the inmate of the conditions of parole and
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0005| his duties relating thereto.
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0006| [E.] D. When a person on parole has performed
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0007| the obligations of his release for the period of parole
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0008| provided in this section, the board shall make a final order
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0009| of discharge and issue him a certificate of discharge.
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0010| [F.] E. Pursuant to the provisions of Section
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0011| 31-18-15 NMSA 1978, the board shall require the inmate as a
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0012| condition of parole:
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0013| (1) to pay the actual costs of his parole
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0014| services to the adult probation and parole division of the
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0015| corrections department for deposit to the corrections
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0016| department intensive supervision fund not exceeding one
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0017| thousand twenty dollars ($1,020) annually to be paid in
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0018| monthly installments of not less than fifteen dollars ($15.00)
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0019| and not more than eighty-five dollars ($85.00), subject to
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0020| modification by the adult probation and parole division on the
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0021| basis of changed financial circumstances; and
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0022| (2) to reimburse a law enforcement agency or
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0023| local crime stopper program for the amount of any reward paid
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0024| by the agency or program for information leading to his
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0025| arrest, prosecution or conviction.
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0001| [G.] F. The provisions of this section shall
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0002| apply to all inmates except geriatric, permanently
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0003| incapacitated and terminally ill inmates eligible for the
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0004| medical and geriatric parole program as provided by the Parole
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0005| Board Act."
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0006| Section 7. Section 33-2-34 NMSA 1978 (being Laws 1978,
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0007| Chapter 40, Section 1, as amended) is amended to read:
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0008| "33-2-34. MERITORIOUS DEDUCTIONS.--
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0009| A. Any inmate confined in the penitentiary of New
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0010| Mexico or other institution or reintegration program
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0011| designated by the corrections department for the confinement
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0012| of adult criminal offenders may be awarded a meritorious
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0013| deduction of thirty days per month upon recommendation of the
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0014| classification committee and approval of the warden; provided
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0015| that an inmate who:
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0016| (1) is sentenced to life imprisonment
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0017| without the possibility of parole shall not be eligible for
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0018| meritorious deductions;
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0019| [(1)] (2) disobeys an order to perform
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0020| labor pursuant to Section 33-8-4 NMSA 1978 shall not be
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0021| eligible for meritorious deductions;
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0022| [(2)] (3) is in disciplinary segregation
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0023| shall not be eligible for meritorious deductions;
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0024| [(3)] (4) is within his first sixty days
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0025| of receipt by the department shall not be eligible for
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0001| meritorious deductions; or
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0002| [(4)] (5) is not engaged in programs
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0003| recommended and approved for him by the classification
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0004| committee shall not be eligible for meritorious deductions.
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0005| Programs include but are not limited to education, work,
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0006| counseling and the like.
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0007| The corrections department may award meritorious
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0008| deductions to New Mexico inmates confined in federal and out-
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0009| of-state corrections facilities on the basis of inmate conduct
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0010| reports, which shall be furnished by those facilities on a
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0011| periodic basis.
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0012| B. An inmate whose record of conduct shows that he
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0013| has performed exceptionally meritorious service and whose
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0014| record of conduct shows that he has otherwise faithfully
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0015| observed the rules of the institution may be eligible for a
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0016| lump-sum good time award, not to exceed one year per award and
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0017| not to exceed a total of one year for all lump-sum good time
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0018| awards awarded in any consecutive twelve-month period, which
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0019| may be deducted from the length of the sentence then remaining
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0020| unserved. Exceptionally meritorious service shall include
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0021| heroic acts of saving life or property, but shall not include
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0022| acts in performance of normal work duties or program
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0023| assignments. The classification committee and the warden may
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0024| recommend the number of days to be awarded in each case based
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0025| upon the particular merits, but any award shall be determined
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0001| by the director of the adult institutions division of the
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0002| corrections department. Allowance for exceptionally
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0003| meritorious service shall be in addition to the meritorious
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0004| deduction provided for in Subsection A of this section, and in
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0005| the event two or more consecutive sentences are being served,
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0006| the aggregate of the several sentences shall be the basis upon
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0007| which the deduction shall be computed.
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0008| C. The meritorious deductions provided for in
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0009| Subsections A and B of this section shall pertain to both the
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0010| basic sentence to be served and any enhanced term of
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0011| imprisonment pursuant to the provisions of the Criminal
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0012| Sentencing Act. For inmates convicted of crimes committed on
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0013| or after the effective date of this 1988 act, meritorious
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0014| deductions of up to ninety days per occurrence shall be
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0015| permanently forfeited upon recommendation of the
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0016| classification committee and approval of the warden if the
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0017| inmate does not properly maintain the standard upon which the
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0018| award was based. For those inmates, permanent forfeitures in
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0019| excess of ninety days may be made upon approval of the
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0020| director of the adult institutions division. For inmates
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0021| convicted of crimes committed prior to the effective date of
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0022| this 1988 act, meritorious deductions may be terminated upon
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0023| recommendation of the classification committee and approval of
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0024| the warden if the inmate does not properly maintain the
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0025| standard upon which the award was based; provided that no
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0001| inmate shall forfeit more than fifty percent of his
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0002| meritorious deductions accrued during the previous twelve
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0003| months; and further provided that after forfeiture of any
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0004| portion of an inmate's accrued meritorious deductions, the
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0005| remainder shall vest and shall not be subject to further
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0006| forfeiture.
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0007| D. The corrections department shall promulgate
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0008| rules and regulations for the implementation and determination
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0009| of meritorious deductions pursuant to this section, and the
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0010| rules or regulations shall be matters of public record. A
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0011| concise summary of the rules and regulations shall be provided
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0012| to every inmate, and every inmate shall receive a quarterly
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0013| statement of his accrued meritorious deductions."
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0014| Section 8. Section 33-2-44 NMSA 1978 (being Laws 1969,
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0015| Chapter 166, Section 2, as amended) is amended to read:
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0016| "33-2-44. INMATE-RELEASE PROGRAM--STANDARDS FOR
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0017| PARTICIPATION.--The [superintendent] warden may, under the
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0018| inmate-release program and at the request of a prisoner,
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0019| extend the limits of confinement beyond the penitentiary of
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0020| New Mexico by authorizing the prisoner to work at paid
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0021| employment in private business or in public employment or to
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0022| attend a school while continuing as a prisoner, if the
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0023| prisoner:
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0024| A. is a trusty or a minimum-custody inmate;
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0025| B. has physical and mental ability to fully
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0001| perform the proposed assignment consistent with his capacities
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0002| and free from any out-patient care that would interfere with
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0003| full performance;
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0004| C. is not afflicted with any serious emotional or
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0005| personality defect;
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0006| D. has not been sentenced to life imprisonment
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0007| without the possibility of parole, convicted of a crime
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0008| involving assaultive sexual conduct [nor] or violence to a
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0009| child nor has been linked with organized criminal activity;
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0010| and
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0011| E. would not, in the opinion of the
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0012| [superintendent] warden, be likely to evoke an adverse
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0013| public reaction by his presence in the community."
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0014| Section 9. Section 33-9-7 NMSA 1978 (being Laws 1983,
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0015| Chapter 202, Section 7, as amended) is amended to read:
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0016| "33-9-7. STATE SELECTION PANEL.--
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0017| A. The department shall establish a state panel,
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0018| whose duties shall be to immediately screen and identify
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0019| criminal offenders sentenced to imprisonment in a correctional
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0020| facility of the department, except individuals sentenced or
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0021| transferred from a judicial district [which] that has
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0022| established a local panel to exercise these duties pursuant to
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0023| the provisions of Section 33-9-8 NMSA 1978, who meet the
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0024| following criteria:
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0025| (1) the offender has not been sentenced to
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0001| life imprisonment without the possibility of parole;
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0002| [(1)] (2) the crime involved is one for
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0003| which community service or reasonable restitution may be made
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0004| using a payment schedule compatible with the total amount of
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0005| restitution to be paid and the time the offender is to
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0006| participate in a program; and
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0007| [(2)] (3) the offender is willing to
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0008| enter into a contract [which] that establishes objectives
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0009| [which] that shall be achieved before release from the
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0010| program.
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0011| B. The department may establish criteria in
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0012| addition to those established in Subsection A of this section
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0013| for the screening of criminal offenders who would benefit from
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0014| participation in a program and who would not pose a threat to
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0015| the community.
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0016| C. If the state panel determines that a criminal
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0017| offender is suitable for placement in a program, a
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0018| recommendation to that effect and for modification of sentence
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0019| shall be presented as soon as possible to the sentencing
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0020| judge, who may, notwithstanding any provision of law, accept,
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0021| modify or reject the recommendation. The sentencing judge's
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0022| determination shall be presented to the county, municipality
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0023| or private nonprofit organization, as applicable, for approval
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0024| or rejection. In no event shall the sentencing judge order to
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0025| be placed into a program any criminal offender whom the state
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0001| selection panel has not approved."
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0002|
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