0001| SENATE BILL 98
|
0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
|
0003| INTRODUCED BY
|
0004| MANNY M. ARAGON
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| AN ACT
|
0011| RELATING TO CRIMINAL SENTENCING; PROVIDING THAT CERTAIN
|
0012| CRIMINAL OFFENDERS BE SENTENCED TO LIFE IMPRISONMENT WITHOUT
|
0013| THE POSSIBILITY OF PAROLE; PROVIDING THAT PRISONERS SENTENCED
|
0014| TO LIFE WITHOUT PAROLE SHALL BE CONFINED TO PRISON AND SHALL
|
0015| NOT BE ELIGIBLE FOR SENTENCE SUSPENSION OR DEFERRAL OR FOR
|
0016| MERITORIOUS DEDUCTION, INMATE RELEASE OR COMMUNITY RELEASE
|
0017| PROGRAMS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
|
0018|
|
0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0020| Section 1. A new section of the Criminal Code is enacted
|
0021| to read:
|
0022| "[NEW MATERIAL] LIFE IMPRISONMENT WITHOUT THE
|
0023| POSSIBILITY OF PAROLE--PRISON CONFINEMENT.--An inmate of an
|
0024| institution who is sentenced to life imprisonment without the
|
0025| possibility of parole shall never be eligible for a sentence
|
- 1 -
0001| suspension or deferral or to leave the physical confines of a
|
0002| prison pursuant to any program, including an inmate release,
|
0003| community release or work release program, that may be
|
0004| available to other prison inmates."
|
0005| Section 2. Section 31-18-23 NMSA 1978 (being Laws 1994,
|
0006| Chapter 24, Section 2, as amended) is amended to read:
|
0007| "31-18-23. THREE VIOLENT FELONY CONVICTIONS--MANDATORY
|
0008| LIFE IMPRISONMENT--EXCEPTION.--
|
0009| A. When a defendant is convicted of a third
|
0010| violent felony, and each violent felony conviction is part of
|
0011| a separate transaction or occurrence, and at least the third
|
0012| violent felony conviction is in New Mexico, the defendant
|
0013| shall, [in addition to] when the sentence imposed for the
|
0014| third violent conviction [when that sentence] does not
|
0015| result in death, be punished by a sentence of life
|
0016| imprisonment [The life imprisonment sentence shall be
|
0017| subject to parole pursuant to the provisions of Section 31-21-
|
0018| 10 NMSA 1978] without the possibility of parole.
|
0019| B. The sentence of life imprisonment shall be
|
0020| imposed after a sentencing hearing, separate from the trial or
|
0021| guilty plea proceeding resulting in the third violent felony
|
0022| conviction, pursuant to the provisions of Section 31-18-24
|
0023| NMSA 1978.
|
0024| C. For the purpose of this section, a violent
|
0025| felony conviction incurred by a defendant before he reaches
|
- 2 -
0001| the age of eighteen shall not count as a violent felony
|
0002| conviction.
|
0003| D. When a defendant has a felony conviction from
|
0004| another state, the felony conviction shall be considered a
|
0005| violent felony for the purposes of the Criminal Sentencing Act
|
0006| if that crime would be considered a violent felony in New
|
0007| Mexico.
|
0008| E. As used in the Criminal Sentencing Act:
|
0009| (1) "great bodily harm" means an injury to
|
0010| the person that creates a high probability of death or that
|
0011| causes serious disfigurement or that results in permanent loss
|
0012| or impairment of the function of any member or organ of the
|
0013| body; and
|
0014| (2) "violent felony" means:
|
0015| (a) murder in the first or second
|
0016| degree, as provided in Section 30-2-1 NMSA 1978;
|
0017| (b) shooting at or from a motor vehicle
|
0018| resulting in great bodily harm, as provided in Subsection B of
|
0019| Section 30-3-8 NMSA 1978;
|
0020| (c) kidnapping resulting in great
|
0021| bodily harm inflicted upon the victim by his captor, as
|
0022| provided in Subsection B of Section 30-4-1 NMSA 1978; [and]
|
0023| (d) criminal sexual penetration, as
|
0024| provided in Subsection C or Paragraph (5) or (6) of Subsection
|
0025| D of Section 30-9-11 NMSA 1978; and
|
- 3 -
0001| (e) robbery while armed with a deadly
|
0002| weapon resulting in great bodily harm as provided in Section
|
0003| 30-16-2 NMSA 1978 and Subsection A of Section 30-1-12 NMSA
|
0004| 1978."
|
0005| Section 3. Section 31-18-25 NMSA 1978 (being Laws 1996,
|
0006| Chapter 79, Section 1, as amended) is amended to read:
|
0007| "31-18-25. TWO VIOLENT SEXUAL OFFENSE CONVICTIONS--
|
0008| MANDATORY LIFE IMPRISONMENT--EXCEPTION.--
|
0009| A. When a defendant is convicted of a second
|
0010| violent sexual offense, and each violent sexual offense
|
0011| conviction is part of a separate transaction or occurrence,
|
0012| and at least the second violent sexual offense conviction is
|
0013| in New Mexico, the defendant shall [in addition to the
|
0014| punishment imposed for the second violent sexual offense
|
0015| conviction] be punished by a sentence of life imprisonment
|
0016| [The life imprisonment sentence shall be subject to parole
|
0017| pursuant to the provisions of Section 31-21-10 NMSA 1978]
|
0018| without the possibility of parole.
|
0019| [B. Notwithstanding the provisions of Subsection
|
0020| A of this section, when a defendant is convicted of a second
|
0021| violent sexual offense, and each violent sexual offense
|
0022| conviction is part of a separate transaction or occurrence,
|
0023| and the victim of each violent sexual offense was less than
|
0024| thirteen years of age at the time of the offense, and at least
|
0025| the second violent sexual offense conviction is in New Mexico,
|
- 4 -
0001| the defendant shall be punished by a sentence of life
|
0002| imprisonment without the possibility of parole.]
|
0003| [C.] B. The sentence of life imprisonment
|
0004| shall be imposed after a sentencing hearing, separate from the
|
0005| trial or guilty plea proceeding resulting in the second
|
0006| violent sexual offense conviction, pursuant to the provisions
|
0007| of Section 31-18-26 NMSA 1978.
|
0008| [D.] C. For the purposes of this section, a
|
0009| violent sexual offense conviction incurred by a defendant
|
0010| before he reaches the age of eighteen shall not count as a
|
0011| violent sexual offense conviction.
|
0012| [E.] D. When a defendant has a felony
|
0013| conviction from another state, the felony conviction shall be
|
0014| considered a violent sexual offense for the purposes of the
|
0015| Criminal Sentencing Act if the crime would be considered a
|
0016| violent sexual offense in New Mexico.
|
0017| [F.] E. As used in the Criminal Sentencing
|
0018| Act, "violent sexual offense" means:
|
0019| (1) criminal sexual penetration in the first
|
0020| degree, as provided in Subsection C of Section 30-9-11 NMSA
|
0021| 1978; or
|
0022| (2) criminal sexual penetration in the second
|
0023| degree, as provided in Subsection D of Section 30-9-11 NMSA
|
0024| 1978."
|
0025| Section 4. Section 31-20-3 NMSA 1978 (being Laws 1963,
|
- 5 -
0001| Chapter 303, Section 29-15, as amended) is amended to read:
|
0002| "31-20-3. ORDER DEFERRING OR SUSPENDING SENTENCE--
|
0003| DIAGNOSTIC COMMITMENT.--Upon entry of a judgment of conviction
|
0004| of any crime not constituting a capital [or] felony, a
|
0005| first degree felony or a felony that requires a sentence of
|
0006| life imprisonment without the possibility of parole, any
|
0007| court having jurisdiction, when it is satisfied that the ends
|
0008| of justice and the best interest of the public as well as the
|
0009| defendant will be served thereby, may either:
|
0010| A. enter an order deferring the imposition of
|
0011| sentence;
|
0012| B. sentence the defendant and enter an order
|
0013| suspending in whole or in part the execution of the sentence;
|
0014| or
|
0015| C. commit the convicted person, if convicted of a
|
0016| felony and not committed for diagnostic purposes within the
|
0017| twelve-month period immediately preceding that conviction, to
|
0018| the [department of] corrections department for an
|
0019| indeterminate period not to exceed sixty days for purposes of
|
0020| diagnosis, with direction that the court be given a report
|
0021| when the diagnosis is complete as to what disposition appears
|
0022| best when the interest of the public and the individual are
|
0023| evaluated."
|
0024| Section 5. Section 31-20A-3 NMSA 1978 (being Laws 1979,
|
0025| Chapter 150, Section 4) is amended to read:
|
- 6 -
0001| "31-20A-3. COURT SENTENCING.--In a jury sentencing
|
0002| proceeding in which the jury unanimously finds beyond a
|
0003| reasonable doubt and specifies at least one of the aggravating
|
0004| circumstances enumerated in Section [6 of this act] 31-20A-
|
0005| 5 NMSA 1978, and unanimously specifies the sentence of death
|
0006| pursuant to Section [3 of this act] 31-20A-2 NMSA 1978,
|
0007| the court shall sentence the defendant to death. Where a
|
0008| sentence of death is not unanimously specified, or the jury
|
0009| does not make the required finding, or the jury is unable to
|
0010| reach a unanimous verdict, the court shall sentence the
|
0011| defendant to life imprisonment without the possibility of
|
0012| parole. In a nonjury sentencing proceeding and in cases
|
0013| involving a plea of guilty, where no jury has been demanded,
|
0014| the judge shall determine and impose the sentence, but he
|
0015| shall not impose the sentence of death except upon a finding
|
0016| beyond a reasonable doubt and specification of at least one of
|
0017| the aggravating circumstances enumerated in Section [6 of
|
0018| this act] 31-20A-5 NMSA 1978."
|
0019| Section 6. Section 31-21-10 NMSA 1978 (being Laws 1980,
|
0020| Chapter 28, Section 1, as amended) is amended to read:
|
0021| "31-21-10. PAROLE AUTHORITY AND PROCEDURE.--
|
0022| A. An inmate of an institution who was sentenced
|
0023| to life imprisonment is not eligible for parole if he:
|
0024| (1) was sentenced as the result of the
|
0025| commission of a capital felony; [who]
|
- 7 -
0001| (2) was convicted of three violent felonies
|
0002| and sentenced pursuant to Sections 31-18-23 and 31-18-24 NMSA
|
0003| 1978; or [who]
|
0004| (3) was convicted of two violent sexual
|
0005| offenses and sentenced pursuant to Subsection A of Section
|
0006| 31-18-25 NMSA 1978 and Section 31-18-26 NMSA 1978. [becomes
|
0007| eligible for a parole hearing after he has served thirty years
|
0008| of his sentence. Before ordering the parole of an inmate
|
0009| sentenced to life imprisonment, the board shall:
|
0010| (1) interview the inmate at the institution
|
0011| where he is committed;
|
0012| (2) consider all pertinent information
|
0013| concerning the inmate, including:
|
0014| (a) the circumstances of the offense;
|
0015| (b) mitigating and aggravating
|
0016| circumstances;
|
0017| (c) whether a deadly weapon was used in
|
0018| the commission of the offense;
|
0019| (d) whether the inmate is a habitual
|
0020| offender;
|
0021| (e) the reports filed under Section
|
0022| 31-21-9 NMSA 1978; and
|
0023| (f) the reports of such physical and
|
0024| mental examinations as have been made while in prison;
|
0025| (3) make a finding that a parole is in the
|
- 8 -
0001| best interest of society and the inmate; and
|
0002| (4) make a finding that the inmate is able
|
0003| and willing to fulfill the obligations of a law-abiding
|
0004| citizen.
|
0005| If parole is denied, the inmate sentenced to life
|
0006| imprisonment shall again become entitled to a parole hearing
|
0007| at two-year intervals. The board may, on its own motion,
|
0008| reopen any case in which a hearing has already been granted
|
0009| and parole denied.
|
0010| B. Unless the board finds that it is in the best
|
0011| interest of society and the parolee to reduce the period of
|
0012| parole, a person who was convicted of a capital felony shall
|
0013| be required to undergo a minimum period of parole of five
|
0014| years. During the period of parole, the person shall be under
|
0015| the guidance and supervision of the board.
|
0016| C.] B. An inmate who was convicted of a first,
|
0017| second or third degree felony and who has served the sentence
|
0018| of imprisonment imposed by the court in a corrections facility
|
0019| designated by the corrections department shall be required to
|
0020| undergo a two-year period of parole. An inmate who was
|
0021| convicted of a fourth degree felony and who has served the
|
0022| sentence of imprisonment imposed by the court in a corrections
|
0023| facility designated by the corrections department shall be
|
0024| required to undergo a one-year period of parole. During the
|
0025| period of parole, the person shall be under the guidance and
|
- 9 -
0001| supervision of the board.
|
0002| [D.] C. Every person while on parole shall
|
0003| remain in the legal custody of the institution from which he
|
0004| was released, but shall be subject to the orders of the board.
|
0005| The board shall furnish to each inmate as a prerequisite to
|
0006| his release under its supervision a written statement of the
|
0007| conditions of parole that shall be accepted and agreed to by
|
0008| the inmate as evidenced by his signature affixed to a
|
0009| duplicate copy to be retained in the files of the board. The
|
0010| board shall also require as a prerequisite to release the
|
0011| submission and approval of a parole plan. If an inmate
|
0012| refuses to affix his signature to the written statement of the
|
0013| conditions of his parole or does not have an approved parole
|
0014| plan, he shall not be released and shall remain in the custody
|
0015| of the corrections facility in which he has served his
|
0016| sentence, excepting parole, until such time as the period of
|
0017| parole he was required to serve, less meritorious deductions,
|
0018| if any, expires, at which time he shall be released from that
|
0019| facility without parole, or until such time that he evidences
|
0020| his acceptance and agreement to the conditions of parole as
|
0021| required or receives approval for his parole plan or both.
|
0022| Time served from the date that an inmate refuses to accept and
|
0023| agree to the conditions of parole or fails to receive approval
|
0024| for his parole plan shall reduce the period, if any, to be
|
0025| served under parole at a later date. If the district court
|
- 10 -
0001| has ordered that the inmate make restitution to a victim as
|
0002| provided in Section 31-17-1 NMSA 1978, the board shall include
|
0003| restitution as a condition of parole. The board shall also
|
0004| personally apprise the inmate of the conditions of parole and
|
0005| his duties relating thereto.
|
0006| [E.] D. When a person on parole has performed
|
0007| the obligations of his release for the period of parole
|
0008| provided in this section, the board shall make a final order
|
0009| of discharge and issue him a certificate of discharge.
|
0010| [F.] E. Pursuant to the provisions of Section
|
0011| 31-18-15 NMSA 1978, the board shall require the inmate as a
|
0012| condition of parole:
|
0013| (1) to pay the actual costs of his parole
|
0014| services to the adult probation and parole division of the
|
0015| corrections department for deposit to the corrections
|
0016| department intensive supervision fund not exceeding one
|
0017| thousand twenty dollars ($1,020) annually to be paid in
|
0018| monthly installments of not less than fifteen dollars ($15.00)
|
0019| and not more than eighty-five dollars ($85.00), subject to
|
0020| modification by the adult probation and parole division on the
|
0021| basis of changed financial circumstances; and
|
0022| (2) to reimburse a law enforcement agency or
|
0023| local crime stopper program for the amount of any reward paid
|
0024| by the agency or program for information leading to his
|
0025| arrest, prosecution or conviction.
|
- 11 -
0001| [G.] F. The provisions of this section shall
|
0002| apply to all inmates except geriatric, permanently
|
0003| incapacitated and terminally ill inmates eligible for the
|
0004| medical and geriatric parole program as provided by the Parole
|
0005| Board Act."
|
0006| Section 7. Section 33-2-34 NMSA 1978 (being Laws 1978,
|
0007| Chapter 40, Section 1, as amended) is amended to read:
|
0008| "33-2-34. MERITORIOUS DEDUCTIONS.--
|
0009| A. Any inmate confined in the penitentiary of New
|
0010| Mexico or other institution or reintegration program
|
0011| designated by the corrections department for the confinement
|
0012| of adult criminal offenders may be awarded a meritorious
|
0013| deduction of thirty days per month upon recommendation of the
|
0014| classification committee and approval of the warden; provided
|
0015| that an inmate who:
|
0016| (1) is sentenced to life imprisonment
|
0017| without the possibility of parole shall not be eligible for
|
0018| meritorious deductions;
|
0019| [(1)] (2) disobeys an order to perform
|
0020| labor pursuant to Section 33-8-4 NMSA 1978 shall not be
|
0021| eligible for meritorious deductions;
|
0022| [(2)] (3) is in disciplinary segregation
|
0023| shall not be eligible for meritorious deductions;
|
0024| [(3)] (4) is within his first sixty days
|
0025| of receipt by the department shall not be eligible for
|
- 12 -
0001| meritorious deductions; or
|
0002| [(4)] (5) is not engaged in programs
|
0003| recommended and approved for him by the classification
|
0004| committee shall not be eligible for meritorious deductions.
|
0005| Programs include but are not limited to education, work,
|
0006| counseling and the like.
|
0007| The corrections department may award meritorious
|
0008| deductions to New Mexico inmates confined in federal and out-
|
0009| of-state corrections facilities on the basis of inmate conduct
|
0010| reports, which shall be furnished by those facilities on a
|
0011| periodic basis.
|
0012| B. An inmate whose record of conduct shows that he
|
0013| has performed exceptionally meritorious service and whose
|
0014| record of conduct shows that he has otherwise faithfully
|
0015| observed the rules of the institution may be eligible for a
|
0016| lump-sum good time award, not to exceed one year per award and
|
0017| not to exceed a total of one year for all lump-sum good time
|
0018| awards awarded in any consecutive twelve-month period, which
|
0019| may be deducted from the length of the sentence then remaining
|
0020| unserved. Exceptionally meritorious service shall include
|
0021| heroic acts of saving life or property, but shall not include
|
0022| acts in performance of normal work duties or program
|
0023| assignments. The classification committee and the warden may
|
0024| recommend the number of days to be awarded in each case based
|
0025| upon the particular merits, but any award shall be determined
|
- 13 -
0001| by the director of the adult institutions division of the
|
0002| corrections department. Allowance for exceptionally
|
0003| meritorious service shall be in addition to the meritorious
|
0004| deduction provided for in Subsection A of this section, and in
|
0005| the event two or more consecutive sentences are being served,
|
0006| the aggregate of the several sentences shall be the basis upon
|
0007| which the deduction shall be computed.
|
0008| C. The meritorious deductions provided for in
|
0009| Subsections A and B of this section shall pertain to both the
|
0010| basic sentence to be served and any enhanced term of
|
0011| imprisonment pursuant to the provisions of the Criminal
|
0012| Sentencing Act. For inmates convicted of crimes committed on
|
0013| or after the effective date of this 1988 act, meritorious
|
0014| deductions of up to ninety days per occurrence shall be
|
0015| permanently forfeited upon recommendation of the
|
0016| classification committee and approval of the warden if the
|
0017| inmate does not properly maintain the standard upon which the
|
0018| award was based. For those inmates, permanent forfeitures in
|
0019| excess of ninety days may be made upon approval of the
|
0020| director of the adult institutions division. For inmates
|
0021| convicted of crimes committed prior to the effective date of
|
0022| this 1988 act, meritorious deductions may be terminated upon
|
0023| recommendation of the classification committee and approval of
|
0024| the warden if the inmate does not properly maintain the
|
0025| standard upon which the award was based; provided that no
|
- 14 -
0001| inmate shall forfeit more than fifty percent of his
|
0002| meritorious deductions accrued during the previous twelve
|
0003| months; and further provided that after forfeiture of any
|
0004| portion of an inmate's accrued meritorious deductions, the
|
0005| remainder shall vest and shall not be subject to further
|
0006| forfeiture.
|
0007| D. The corrections department shall promulgate
|
0008| rules and regulations for the implementation and determination
|
0009| of meritorious deductions pursuant to this section, and the
|
0010| rules or regulations shall be matters of public record. A
|
0011| concise summary of the rules and regulations shall be provided
|
0012| to every inmate, and every inmate shall receive a quarterly
|
0013| statement of his accrued meritorious deductions."
|
0014| Section 8. Section 33-2-44 NMSA 1978 (being Laws 1969,
|
0015| Chapter 166, Section 2, as amended) is amended to read:
|
0016| "33-2-44. INMATE-RELEASE PROGRAM--STANDARDS FOR
|
0017| PARTICIPATION.--The [superintendent] warden may, under the
|
0018| inmate-release program and at the request of a prisoner,
|
0019| extend the limits of confinement beyond the penitentiary of
|
0020| New Mexico by authorizing the prisoner to work at paid
|
0021| employment in private business or in public employment or to
|
0022| attend a school while continuing as a prisoner, if the
|
0023| prisoner:
|
0024| A. is a trusty or a minimum-custody inmate;
|
0025| B. has physical and mental ability to fully
|
- 15 -
0001| perform the proposed assignment consistent with his capacities
|
0002| and free from any out-patient care that would interfere with
|
0003| full performance;
|
0004| C. is not afflicted with any serious emotional or
|
0005| personality defect;
|
0006| D. has not been sentenced to life imprisonment
|
0007| without the possibility of parole, convicted of a crime
|
0008| involving assaultive sexual conduct [nor] or violence to a
|
0009| child nor has been linked with organized criminal activity;
|
0010| and
|
0011| E. would not, in the opinion of the
|
0012| [superintendent] warden, be likely to evoke an adverse
|
0013| public reaction by his presence in the community."
|
0014| Section 9. Section 33-9-7 NMSA 1978 (being Laws 1983,
|
0015| Chapter 202, Section 7, as amended) is amended to read:
|
0016| "33-9-7. STATE SELECTION PANEL.--
|
0017| A. The department shall establish a state panel,
|
0018| whose duties shall be to immediately screen and identify
|
0019| criminal offenders sentenced to imprisonment in a correctional
|
0020| facility of the department, except individuals sentenced or
|
0021| transferred from a judicial district [which] that has
|
0022| established a local panel to exercise these duties pursuant to
|
0023| the provisions of Section 33-9-8 NMSA 1978, who meet the
|
0024| following criteria:
|
0025| (1) the offender has not been sentenced to
|
- 16 -
0001| life imprisonment without the possibility of parole;
|
0002| [(1)] (2) the crime involved is one for
|
0003| which community service or reasonable restitution may be made
|
0004| using a payment schedule compatible with the total amount of
|
0005| restitution to be paid and the time the offender is to
|
0006| participate in a program; and
|
0007| [(2)] (3) the offender is willing to
|
0008| enter into a contract [which] that establishes objectives
|
0009| [which] that shall be achieved before release from the
|
0010| program.
|
0011| B. The department may establish criteria in
|
0012| addition to those established in Subsection A of this section
|
0013| for the screening of criminal offenders who would benefit from
|
0014| participation in a program and who would not pose a threat to
|
0015| the community.
|
0016| C. If the state panel determines that a criminal
|
0017| offender is suitable for placement in a program, a
|
0018| recommendation to that effect and for modification of sentence
|
0019| shall be presented as soon as possible to the sentencing
|
0020| judge, who may, notwithstanding any provision of law, accept,
|
0021| modify or reject the recommendation. The sentencing judge's
|
0022| determination shall be presented to the county, municipality
|
0023| or private nonprofit organization, as applicable, for approval
|
0024| or rejection. In no event shall the sentencing judge order to
|
0025| be placed into a program any criminal offender whom the state
|
- 17 -
0001| selection panel has not approved."
|
0002|
|