Progressives hoped that Democrats’ 2018 takeover of the New Mexico state government would overhaul its criminal legal system, but they quickly ran into the political juggernaut of state prosecutors.

One promising bill would have lowered drug possession charges to the level of misdemeanors, significantly reducing penalties. Five states have done this, including conservative Oklahoma. Days after Senate Bill 408 made it out of committee, though, the New Mexico District Attorney Association (NMDAA) released a statement against it approved by all of the state’s DAs; it died soon after.

When a bill restricting felony disenfranchisement made it out of committee that same week, DA Dianna Luce, who presides over the NMDAA, called voting a “privilege” rather than a “right” to reject the idea of enfranchising people while on probation and parole. Though three other newly Democratic states did just that last year, New Mexico’s version did not get a vote on the floor.

Reformers’ most stinging defeat came when Governor Michelle Lujan Grisham vetoed House Bill 564, an overhaul of probation and parole rules, shortly after all 14 DAs jointly lobbied her to kill it. It would have increased the state’s burden to justify denying parole to people in prison for decades and reduced the use of incarceration as a sanction when people violate probation or parole conditions.

“We passed [HB 564], and they torpedoed it,” Representative Antonio Maestas, the Democratic lawmaker who sponsored it, told me. “Because they’re so fixated on penalties and incarceration as a deterrent, their only policy initiative is to increase penalties and run bills to increase penalties.”

“The DA association here in New Mexico has been very disruptive when it comes to realizing meaningful reform,” said Barron Jones, senior policy strategist at the ACLU of New Mexico. “They are very powerful voices.”

The 2020 elections, which kick off in three weeks, on June 2, will not alter the politics of state DAs overall.

Although all 14 DA offices are up for grabs, the only candidates running in most of these races are the incumbents who lobbied against the 2019 bills, or else deputy DAs whose platforms mirror these DAs’ “tough on crime” positions. Some are even calling for harsher laws, though the state’s incarceration rate is far higher than the nation’s already sky-high numbers.

Still, the united front that DAs presented in 2019 may be breached.

Candidates are running in at least two races — the populous First Judicial District (which covers Santa Fe, Los Alamos, and Rio Arriba counties), and the smaller Fourth District (Guadalupe, Mora, and San Miguel counties) — on promises to bring some change. In interviews, they expressed support for some of the reforms that the state’s DAs fought against last year. 

These races may give the state’s reform advocates new allies for some of the ideas they have championed. 

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Last week, I contacted all non-incumbent contenders running in New Mexico to gauge their views on the bills that current DAs opposed, as well as on broader reform proposals. Many did not reply; others shared positions that were aligned with the state’s prosecutorial status quo. 

But three candidates broke with that status quo on at least some matters: Mary Carmack-Altwies and Scott Fuqua (First District), and Brett Phelps (Fourth District). 

In both districts, the incumbent DAs are not seeking re-election and their replacements will be decided in the June 2 Democratic primary. (No Republicans filed to run in either race.) Phelps faces Tom Clayton, a deputy DA who did not answer a request for comment. By contrast, in the First District, Carmack-Altwies and Fuqua are the only candidates running.

Phelps, a public defender, told me he was already active last year in advocating for the reforms that faltered, and that he had traveled to the capitol to do so as a member of the state’s Criminal Defense Lawyers Association. He would keep that up if he were elected DA, he said. Although he would represent one of the state’s least populous jurisdictions, he made the case that his win may change statewide dynamics by at least introducing one alternative perspective. “It really is a significant voice in this discussion to be one of 14 elected DAs,” Phelps said. “That would amplify the message at a statewide level.”

Fuqua echoed that point. “The opposition to reducing possession to misdemeanor offenses feels like a vestige of the war on drugs to me,” he said. “If [SB 408] came up again, and I’m in the DA’s office, it’ll be 13 to one, unless I can convince other people to come on board with it.” His opponent, Carmack-Altwies, agrees with him on this issue. “Those are easy questions for me,” she said, laughing, when I asked about her views on SB 408 and also on legalizing marijuana. 

All three candidates also indicated support for the 2019 proposal to expand voting rights to at least people who are not presently incarcerated.

Maestas, the lawmaker, agrees that even a lone DA could make a difference. He believes that the 14 DAs’ united front against his probation/parole bill (HB 564) proved decisive last year. (Phelps and Fuqua expressed support for that bill; Carmack-Altwies defended the DAs’ criticisms.)

“They weren’t persuasive, it was just the fact that all of them signed the letter,” said Maestas, who himself used to work as a staff prosecutor. “It was too much to overcome in terms of the public backlash they created. When all 14 DAs signed a letter saying veto the bill, it would have taken a lot of strength from the governor to not do that. They had the bully pulpit.” 

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Elsewhere in the state, away from its First and Fourth Districts, the prospect of new perspectives or for voices that are critical of the status quo are weaker. (Our New Mexico master list contains a database of who is running for DA in each of the state’s elections.)

Luce, the NMDAA president, and Andrea Reeb, its vice president, are unopposed in the Fifth and Ninth Districts. Both are Republicans. Many other DAs are also unopposed, including Raul Torrez, the Democratic DA in the state’s largest county (Bernalillo, home to Albuquerque), and Rick Tedrow, San Juan County’s Republican DA. Tedrow presided over the NMDAA in 2017, during an earlier push against a statewide change, when DAs voiced worries about bail reforms.

In the Third District (populous Doña Ana County), deputy DA Gerald Byers is sure to be the next DA since the incumbent retired and Byers, who declined to answer my questions, is the only candidate on the ballot. A 2019 lawsuit filed by former staffers in the DA’s office alleged that Byers contributed to sex discrimination, and that he ordered them to remove signs from their doors because the phrase on them—“No Mansplaining”—was “sexist against men.”

The incumbent is also retiring in the 13th District (Cibola, Sandoval, and Valencia counties), the state’s second most populous jurisdiction. Joshua Joe Jimenez, a former prosecutor running as a Republican, will face one of two Democratic deputy DAs, Barbara Romo and Mandana Shoushtari. On their campaign websites, Romo and Shoushtari both regret that it is too easy for some defendants to be released pretrial; they include no specific proposals that would promote decarceration. None of the three replied to a request for comment on their views.

The Sixth District (Hidalgo, Grant, and Luna counties) is yet another open race. On his website, deputy DA Norman Wheeler touts the fact that he greatly increased drug-related prosecutions as an achievement, a far cry from others’ aspirations to lessen “war on drugs” practices. Neither Wheeler nor his opponent, defense lawyer and former deputy DA Michael Renteria, replied.

In the Eighth and 11th Districts, finally, DAs Marcus Montoya and Paula Pakkala face challengers in the Democratic primary. Despite their stances on the 2019 bills, their opponents are not pressing them on criminal justice reform. (Here again, no Republican filed.) In email messages, Paul Sanchez (Eighth District) and Bernadine Martin (11th District) indicated views that were in line with the incumbents’ on those legislative proposals; both also expressed concern about the prospect of legalizing marijuana for recreational use. Another 11th District candidate, Conrad Friedly, did not reply to a request for comment.

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The First District, which includes Santa Fe, is the likeliest to elect a DA who espouses some affinity for criminal justice reform. Both contenders argue for shifting away from the war on drugs and minimizing prison sentences for drug possession. “We’ve been trying to incarcerate our way out of drug addiction for 40 years, and it hasn’t worked,” said Carmack-Altwies, who was a public defender for more than a decade before joining the DA’s office as a prosecutor.

Prison admissions over drug offenses have indeed grown significantly since 2012, an ACLU analysis shows. “Civil possession indicates a public health problem and not a criminal problem,” said Jones, of the ACLU. 

The Santa Fe candidates also agreed that people who are on probation and parole should be granted the right to vote, which is not presently the case.

They parted ways on some other issues, though. Carmack-Altwies argued that making it easier for people to be granted parole after 30 years of incarceration would make releases too frequent for people who committed the worst crimes. She also regrets that the state’s bail reform, which she noted she largely supports, may have swung too far in restricting prosecutors’ ability to obtain pretrial detention.

Fuqua, an attorney in the attorney general’s office, raised no concern when asked about the current bail rules, and he broadly defended the 2019 bill on parole grants.

Phelps, the public defender who is running in the smaller Fourth District, took bolder stances on these issues. Besides unequivocally defending HB 564 and SB 408, he argued for ending felony disenfranchisement altogether, describing voting as a mechanism of accountability for officials prone to overcriminalize.

Phelps called on reform advocates nationwide to pay attention to smaller, rural districts like his, even if they are less populated than reform hubs like Philadelphia or San Francisco. “The need for change extends beyond big cities. And the recognition by people of that need for change is not limited to big cities either,” he said. 

He added, “I would encourage anybody who’s in a rural area to be vocal about these issues, because for us it’s been a hugely positive response.”

Reform advocates have certainly had some positive responses in recent years. In 2019, New Mexico decriminalized possession of small amounts of marijuana, and restricted the use of solitary confinement against pregnant women, children, and people with mental illness. But even those proposals were very considerably narrowed during legislative debates. Marijuana legalization did not make it through, and a stronger proposal to restrict solitary confinement for all prisoners was hollowed out. New Mexico uses solitary confinement very aggressively, The Appeal has reported.

Maestas was also one of the main sponsors of the bill that restricted solitary confinement. “We have a lot of challenges in New Mexico,” he told me. “Crime is very prevalent, and politicians are still a little leery because of the politics of crime. It’s easy to torpedo criminal justice reform efforts by painting it as soft on crime. It’s more difficult to articulate the truth and convince the voter that criminal justice reform actually lowers crime.”

He added, “But it’s only a matter of time before DAs start winning on criminal justice reform campaigns.”

The post New Mexico D.A.s United to Torpedo Reforms. The 2020 Elections Could Breach That Unanimity. appeared first on Bolts.

All three reforms will have a large impact, but all were also narrowed in the final stretch, often due to the opposition by prosecutors and their statewide associations.

Illinois legalized marijuana

Illinois is set to legalize the possession and sale of marijuana. The bill passed the legislature last week, and the state’s governor has said he will sign it. If he does, Illinois would become the first state to create a regulated marijuana industry via a legislative route (as opposed to via a ballot initiative), a testament to the issue’s shifting politics.

The bill faced a test beyond legalization: to confront the racially disproportionate harm that the prohibition of marijuana has caused. “We can’t move forward into the new world where marijuana will be legal and not take extra steps to repair that harm,” Roseanne Scotti, state director of the Drug Policy Alliance’s New Jersey office, told me in February. In legalizing pot, other states have often failed to clear past convictions, and the industry is primarily benefiting white investors. How does the Illinois legislation fare?

First, it sets up a streamlined pardon process to expunge existing convictions, which will relieve thousands from the lifelong implications of past prosecutions. Individuals will not need to initiate a request as long their offense involved less than 30 grams of marijuana. Relief will entail an individualized review process, however. The original legislation proposed a more automatic process, and it did not specify that 30-gram threshold, but it was amended after the state’s attorneys association demanded a greater role for prosecutors in determining eligibility.

Second, the bill allocates some of the revenue generated by legalization to programs meant to reverse the “systematic disinvestment of the same communities where folks with criminal records are concentrated,” as Sharone Mitchell Jr., deputy director of the Illinois Justice Project, put it. The legislature “did extremely well when it comes to the equitable distribution of cannabis tax proceeds,” Mitchell told me. “The 25 percent share of the tax revenue reserved for violence prevention, re-entry services and social determinants of health” are a “game changer when it comes to violence reduction.” Mitchell credited the work of the Illinois Black Caucus.

Third, it boosts the licensing applications submitted by residents of “disproportionately affected neighborhood” and of people with past convictions. Fourth, it provides financial assistance for people who want to enter the marijuana industry and who have been directly impacted by its prohibition; nevertheless, opening a dispensary will still entail a very high startup cost. Mitchell said that “Illinois has clearly done better than other states” when it comes to “minority inclusion in the industry,” but that “it is not the perfect bill when it comes to inclusion” because “industry giants that may not feature racial diversity still have the potential to dominate the industry.

Kim Foxx, the chief prosecutor of Cook County (Chicago), testified in favor of legalization and of those equity provisions. Earlier this year, Foxx earlier launched a process to facilitate the expungement of past marijuana convictions in Cook County.

Earlier this year, New Mexico and North Dakota reduced the prospect of facing incarceration for possessing pot. Promising reforms derailed in other states, including New Jersey and Texas.

Colorado reclassifies drug possession charges, and shrinks penalties

Colorado is lowering drug possession to the misdemeanor level. This new law, effective in 2020, reclassifies possession of nearly all Schedule I and Schedule II substances, including heroin and fentanyl.

This significantly reduces penalties associated with possessing these drugs. It shortens sentences and shifts people from prison to county jails. Drug possession currently carries a prison sentence and a subsequent parole period, but this change provides a sentence of up to 180 days in jail and a probation period.

The Senate limited the original bill’s scope, however, when it added a weight limit of 4 grams over which possession remains a felony. The law also contains other exceptions. It never applies to cathinones, flunitrazepam, ketamine, gamma hydroxybutyrate (GHB). Possession of other substances will also be a felony beyond a third offense. In addition, the law will not apply retroactively.

Five states have reclassified drug possession into a misdemeanor, all since 2014, according to a 2018 report published by the Urban Institute: They are California, Connecticut, Oklahoma, Utah, as well as Alaska (which may soon roll back its reform). The report finds that none of these states specify a weight limit; some do raise charges to a felony after repeated convictions.

Brian Elderbroom, a scholar at the Urban Institute who co-wrote the 2018 report with Julia Durnan, called Colorado’s bill a “critical first step.” He added, though, that it does not meet the standard of the five reforms assessed in his report. It “builds on reclassification efforts in other states by also limiting incarceration in local jails and investing in treatment programs,” he told me, but “lawmakers left plenty on the table when they amended the bill to retain the felony classification in certain cases.” He added that “incarceration should never be the response to addiction or substance abuse,” which “should be a public health issue.”

Oklahoma had already ‘defelonized’ drug possession. Now that became retroactive.

Drug possession is already a misdemeanor in Oklahoma. Voters reclassified it in a 2016 ballot initiative, State Question 780, that passed by a large margin; it also reclassified theft of under $1,000. But SQ 780 was not retroactive; people already convicted got no relief.

This just changed. House Bill 1269, signed into law in May, makes SQ 780 retroactive. It instructs the state to identify and resentence people now in prison for felony drug possession. (People convicted of other offenses in addition to drug possession, and people convicted of theft, will need to file a commutation petition to be considered.) Up to 800 people who are serving simple possession charges will be eligible for release, The Oklahoman reports.

The law also makes already-released individuals eligible for expungement. Up to 60,000 people could qualify for this form of relief, according to Kris Steele, the executive director of Oklahomans for Criminal Justice Reform, a coalition that supported the change. Steele is also the state’s former Republican speaker. “When an individual can remove that scarlet letter, it opens up a myriad employment opportunities and new housing opportunities, it allows that individual to move forward in a very positive manner,” Steele told me.

But Steele also expressed concerns about the way lawmakers set up the expungement system. For one, the reform requires individuals who are eligible to file an application rather than shift that burden on the state. Steele said that although the reform provides a simplified application, people may still perceive the process as too burdensome. “Many individuals who are involved in the justice system may be skeptical of applying because it is additional involvement with a system that has been punitive,” he said.

Other “caveats” include the stipulation that people with past felony convictions must complete all treatment criteria and pay full restitution before obtaining an expungement. People arrested today face no such preconditions to be charged with only a misdemeanor, and Steele argued that “true retroactivity” should mean that people convicted before SQ 780 became effective are “treated exactly the same.” He said of the requirement to pay restitution before obtaining an expungement that “what we don’t want is to create a disparity between individuals who have resources and individuals who may be living in poverty.”

Oklahoma is only the second state, along California, to reclassify drug possession retroactively.

Yet HB 1269 is the only major criminal justice reform that Oklahoma, which has the country’s highest incarceration rate, will adopt this year. Legislation to reduce the use of cash bail, waive some fines and fees, and lessen sentencing for some nonviolent offenses had some early success, but the legislature adjourned without adopting them. Steele said that this is “primarily because of the opposition of district attorneys.” Prosecutors “are very effective within the state legislature in thwarting reforms that would reduce incarceration, and they work with other law enforcement entities such as the sheriff associations to defend and protect the status quo,” he added.

The Oklahoma District Attorneys Council, the association that lobbies on behalf of prosecutors, had also raised concerns about HB 1269 and retroactivity. NPR reports that the bail bond lobby also contributed to derail these reforms.

The post Legalized Pot, Reduced Sentences: Three States Reform Their Drug Laws appeared first on Bolts.