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|  |