SB 375
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AN ACT
RELATING TO PROBATION; REMOVING THE PAYMENT OF THE COST OF
PAROLE SERVICES; ALLOWING A MINIMUM RISK DEFENDANT TO BE
RELEASED FROM PROBATION IN CERTAIN CIRCUMSTANCES; CLARIFYING
PROJECTED RELEASE DATES FOR MERITORIOUS DEDUCTIONS UPON
ADMISSION TO A CORRECTIONAL FACILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-18-15 NMSA 1978 (being Laws 1977,
Chapter 216, Section 4, as amended) is amended to read:
"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--
BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS
DEDUCTIONS.--
A. As used in a statute that establishes a
noncapital felony, the following defined felony
classifications and associated basic sentences of
imprisonment are as follows:
FELONY CLASSIFICATION BASIC SENTENCE
first degree felony
resulting in the death
of a child life imprisonment
first degree felony for
aggravated criminal sexual
penetration life imprisonment
first degree felony eighteen years imprisonment SB 375
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second degree felony
resulting in the death of
a human being eighteen years imprisonment
second degree felony for a
sexual offense against a
child fifteen years imprisonment
second degree felony for
sexual exploitation of
children twelve years imprisonment
second degree felony nine years imprisonment
third degree felony resulting
in the death of a human being six years imprisonment
third degree felony for a
sexual offense against a
child six years imprisonment
third degree felony for sexual
exploitation of children eleven years imprisonment
third degree felony three years imprisonment
fourth degree felony for
sexual exploitation of
children ten years imprisonment
fourth degree felony eighteen months imprisonment.
B. The appropriate basic sentence of imprisonment
shall be imposed upon a person convicted and sentenced
pursuant to Subsection A of this section, unless the court SB 375
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alters the sentence pursuant to the provisions of the
Criminal Sentencing Act.
C. A period of parole shall be imposed only
for felony convictions wherein a person is sentenced to
imprisonment of more than one year, unless the parties to a
proceeding agree that a period of parole should be imposed.
If a period of parole is imposed, the court shall include
in the judgment and sentence of each person convicted and
sentenced to imprisonment in a corrections facility
designated by the corrections department authority for a
period of parole to be served in accordance with the
provisions of Section 31-21-10 NMSA 1978. If imposed, the
period of parole shall be deemed to be part of the sentence
of the convicted person in addition to the basic sentence
imposed pursuant to Subsection A of this section together
with alterations, if any, pursuant to the provisions of the
Criminal Sentencing Act.
D. When a court imposes a sentence of imprisonment
pursuant to the provisions of Section 31-18-15.1, 31-18-16 or
31-18-17 NMSA 1978 and suspends or defers the basic sentence
of imprisonment provided pursuant to the provisions of
Subsection A of this section, the period of parole shall be
served in accordance with the provisions of Section 31-21-10
NMSA 1978 for the degree of felony for the basic sentence
for which the inmate was convicted. For the purpose of SB 375
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designating a period of parole, a court shall not consider
that the basic sentence of imprisonment was suspended or
deferred and that the inmate served a period of imprisonment
pursuant to the provisions of the Criminal Sentencing Act.
E. The court may, in addition to the imposition
of a basic sentence of imprisonment, impose a fine not to
exceed:
(1) for a first degree felony resulting in
the death of a child, seventeen thousand five hundred dollars
($17,500);
(2) for a first degree felony for aggravated
criminal sexual penetration, seventeen thousand five hundred
dollars ($17,500);
(3) for a first degree felony, fifteen
thousand dollars ($15,000);
(4) for a second degree felony resulting
in the death of a human being, twelve thousand five hundred
dollars ($12,500);
(5) for a second degree felony for a sexual
offense against a child, twelve thousand five hundred dollars
($12,500);
(6) for a second degree felony for sexual
exploitation of children, five thousand dollars ($5,000);
(7) for a second degree felony, ten thousand
dollars ($10,000); SB 375
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(8) for a third degree felony resulting in
the death of a human being, five thousand dollars ($5,000);
(9) for a third degree felony for a sexual
offense against a child, five thousand dollars ($5,000);
(10) for a third degree felony for sexual
exploitation of children, five thousand dollars ($5,000);
(11) for a third or fourth degree felony,
five thousand dollars ($5,000); or
(12) for a fourth degree felony for sexual
exploitation of children, five thousand dollars ($5,000).
F. When the court imposes a sentence of
imprisonment for a felony offense, the court shall indicate
whether or not the offense is a serious violent offense as
defined in Section 33-2-34 NMSA 1978. The court shall inform
an offender that the offender's sentence of imprisonment
is subject to the provisions of Sections 33-2-34, 33-2-36,
33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform
an offender that the offender's sentence is subject to those
provisions or if the court provides the offender with
erroneous information regarding those provisions, the failure
to inform or the error shall not provide a basis for a writ
of habeas corpus.
G. No later than October 31 of each year, the
New Mexico sentencing commission shall provide a written
report to the secretary of corrections, all New Mexico SB 375
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criminal court judges, the administrative office of the
district attorneys and the chief public defender. The
report shall specify the average reduction in the sentence
of imprisonment for serious violent offenses and
nonviolent offenses, as defined in Section 33-2-34 NMSA 1978,
due to meritorious deductions earned by prisoners during the
previous fiscal year pursuant to the provisions of
Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978.
The corrections department shall allow the commission access
to documents used by the department to determine earned
meritorious deductions for prisoners."
SECTION 2. Section 31-20-5 NMSA 1978 (being Laws 1963,
Chapter 303, Section 29-17, as amended) is amended to read:
"31-20-5. PLACING DEFENDANT ON PROBATION.--
A. When a person has been convicted of a crime for
which a sentence of imprisonment is authorized and when the
magistrate, metropolitan or district court has deferred or
suspended sentence, it shall order the defendant to be
placed on probation for all or some portion of the period
of deferment or suspension if the defendant is in need of
supervision, guidance or direction that is feasible for the
corrections department to furnish. Except for sex offenders
as provided in Section 31-20-5.2 NMSA 1978, the total period
of probation for district court shall not exceed five years
and the total period of probation for the magistrate or SB 375
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metropolitan courts shall be no longer than the maximum
allowable incarceration time for the offense or as otherwise
provided by law.
B. If a defendant is required to serve a period
of probation subsequent to a period of incarceration:
(1) the period of probation shall be served
subsequent to any required period of parole, with the time
served on parole credited as time served on the period of
probation and the conditions of probation imposed by the
court deemed as additional conditions of parole; and
(2) in the event that the defendant violates
any condition of that parole, the parole board shall cause
the defendant to be brought before it pursuant to the
provisions of Section 31-21-14 NMSA 1978 and may make any
disposition authorized pursuant to that section and, if
parole is revoked, the period of parole served in the custody
of a correctional facility shall not be credited as time
served on probation.
C. A defendant shall automatically be released
from probation if the defendant:
(1) is classified as a minimum level risk
by a validated scoring instrument;
(2) has met all of the obligations of the
defendant's probation; and
(3) has completed one-half or more of the SB 375
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period of probation."
SECTION 3. Section 31-21-10 NMSA 1978 (being Laws 1980,
Chapter 28, Section 1, as amended) is amended to read:
"31-21-10. PAROLE AUTHORITY AND PROCEDURE.--
A. Except as provided in Section 31-21-10.2
NMSA 1978, an inmate of an institution who was sentenced to
life imprisonment becomes eligible for a parole hearing after
the inmate has served thirty years of the sentence. Before
ordering the parole of an inmate sentenced to life
imprisonment, the board shall:
(1) interview the inmate at the institution
where the inmate is committed;
(2) consider all pertinent information
concerning the inmate, including:
(a) the circumstances of the offense;
(b) mitigating and aggravating
circumstances;
(c) whether a deadly weapon was used
in the commission of the offense;
(d) whether the inmate is a habitual
offender;
(e) the reports filed under
Section 31-21-9 NMSA 1978; and
(f) the reports of such physical and
mental examinations as have been made while in an SB 375
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institution;
(3) make a finding that a parole is in the
best interest of society and the inmate; and
(4) make a finding that the inmate is able
and willing to fulfill the obligations of a law-abiding
citizen.
If parole is denied, the inmate sentenced to life
imprisonment shall again become entitled to a parole hearing
at two-year intervals. The board may, on its own motion,
reopen any case in which a hearing has already been granted
and parole denied.
B. Unless the board finds that it is in the best
interest of society and the parolee to reduce the period of
parole, a person who was sentenced to life imprisonment shall
be required to undergo a minimum period of parole of five
years. During the period of parole, the person shall be
under the guidance and supervision of the board.
C. An inmate of an institution who was sentenced
to life imprisonment without possibility of release or parole
is not eligible for parole and shall remain incarcerated for
the entirety of the inmate's natural life.
D. Except for certain sex offenders as provided
in Section 31-21-10.1 NMSA 1978, an inmate who was convicted
of a first, second or third degree felony and who has served
the sentence of imprisonment imposed by the court in an SB 375
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institution designated by the corrections department shall be
required to undergo a two-year period of parole. An inmate
who was convicted of a fourth degree felony and who has
served the sentence of imprisonment imposed by the court in
an institution designated by the corrections department shall
be required to undergo a one-year period of parole. During
the period of parole, the person shall be under the guidance
and supervision of the board.
E. Every person while on parole shall remain in
the legal custody of the institution from which the person
was released, but shall be subject to the orders of the
board. The board shall furnish to each inmate as a
prerequisite to release under its supervision a written
statement of the conditions of parole that shall be accepted
and agreed to by the inmate as evidenced by the inmate's
signature affixed to a duplicate copy to be retained in the
files of the board. The board shall also require as a
prerequisite to release the submission and approval of a
parole plan. If an inmate refuses to affix the inmate's
signature to the written statement of the conditions of
parole or does not have an approved parole plan, the inmate
shall not be released and shall remain in the custody of the
institution in which the inmate has served the inmate's
sentence, excepting parole, until such time as the period
of parole the inmate was required to serve, less meritorious SB 375
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deductions, if any, expires, at which time the inmate shall
be released from that institution without parole, or until
such time that the inmate evidences acceptance and agreement
to the conditions of parole as required or receives approval
for the inmate's parole plan or both. Time served from
the date that an inmate refuses to accept and agree to the
conditions of parole or fails to receive approval for the
inmate's parole plan shall reduce the period, if any, to be
served under parole at a later date. If the district court
has ordered that the inmate make restitution to a victim as
provided in Section 31-17-1 NMSA 1978, the board shall
include restitution as a condition of parole. The board
shall also personally apprise the inmate of the conditions
of parole and the inmate's duties relating to those
conditions of parole.
F. When a person on parole has performed the
obligations of the person's release for the period of parole
provided in this section, the board shall make a final order
of discharge and issue the person a certificate of discharge.
G. The provisions of this section shall apply to
all inmates except geriatric, permanently incapacitated and
terminally ill inmates eligible for the medical and geriatric
parole program as provided by the Parole Board Act."
SECTION 4. Section 33-2-34 NMSA 1978 (being Laws 1999,
Chapter 238, Section 1, as amended) is amended to read: SB 375
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"33-2-34. ELIGIBILITY FOR EARNED MERITORIOUS
DEDUCTIONS.--
A. A prisoner confined in a correctional facility
designated by the corrections department may lose earned
meritorious deductions if the prisoner fails to actively
participate in programs recommended for the prisoner by the
classification supervisor and approved by the warden or the
warden's designee.
B. Meritorious deductions shall be awarded for
the remainder of the sentence, after pre-sentence confinement
has been deducted, upon admission to a correctional facility
designated by the corrections department.
C. Meritorious deductions shall not exceed the
following amounts:
(1) for a prisoner confined for committing
a serious violent offense, four days per month;
(2) for a prisoner confined for committing
a nonviolent offense, thirty days per month; and
(3) for a prisoner confined following
revocation of parole, meritorious deductions will be awarded
commensurate with the classification of the offense.
D. A prisoner may lose meritorious deductions upon
recommendation by the classification supervisor, based upon
the prisoner's failure to actively participate in approved
programs and the quality of the prisoner's participation in SB 375
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those approved programs. A prisoner may not lose meritorious
deductions unless the recommendation of the classification
supervisor is approved by the warden or the warden's designee.
E. If a prisoner's active participation in
approved programs is interrupted by a lockdown at a
correctional facility, the prisoner may not lose meritorious
deductions, unless the warden or the warden's designee
determines that the prisoner's conduct contributed to the
initiation or continuance of the lockdown.
F. A prisoner confined in a correctional facility
designated by the corrections department is eligible for
lump-sum meritorious deductions as follows:
(1) for successfully completing an approved
vocational, substance abuse or mental health program, thirty
days; except when the prisoner has a demonstrable physical,
mental health or developmental disability that prevents the
prisoner from successfully earning a high school equivalency
credential, in which case, the prisoner shall be awarded
ninety days;
(2) for earning a high school equivalency
credential, ninety days;
(3) for earning an associate's degree, one
hundred twenty days;
(4) for earning a bachelor's degree, one
hundred fifty days; SB 375
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(5) for earning a graduate qualification,
one hundred fifty days; and
(6) for engaging in a heroic act of saving
life or property, engaging in extraordinary conduct for the
benefit of the state or the public that is at great expense
or risk to or involves great effort on the part of the
prisoner or engaging in extraordinary conduct far in excess of
normal program assignments that demonstrates the prisoner's
commitment to self-rehabilitation. The classification
supervisor and the warden or the warden's designee may
recommend the number of days to be awarded in each case based
upon the particular merits, but any award shall be determined
by the director of the adult institutions division of the
corrections department or the director's designee.
G. Lump-sum meritorious deductions, provided in
Paragraphs (1) through (6) of Subsection F of this section,
may be awarded in addition to the meritorious deductions
provided in Subsection C of this section. Lump-sum
meritorious deductions shall not exceed one year per award
and shall not exceed a total of one year for all lump-sum
meritorious deductions awarded in any consecutive twelve-month
period.
H. A prisoner may lose meritorious deductions if
the prisoner:
(1) disobeys an order to perform labor, SB 375
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pursuant to Section 33-8-4 NMSA 1978;
(2) is in disciplinary segregation;
(3) is confined for committing a serious
violent offense and is within the first sixty days of receipt
by the corrections department; or
(4) is not an active participant in programs
recommended and approved for the prisoner by the
classification supervisor.
I. The provisions of this section shall not be
interpreted as providing eligibility to earn meritorious
deductions from a sentence of life imprisonment or a sentence
of life imprisonment without possibility of release or parole.
J. The corrections department shall promulgate
rules to implement the provisions of this section, and the
rules shall be matters of public record. A concise summary
of the rules shall be provided to each prisoner, and each
prisoner shall receive a statement of the meritorious
deductions earned upon initial award, if additional awards are
given, if meritorious deductions are lost and upon request.
K. A New Mexico prisoner confined in a federal
or out-of-state correctional facility is eligible to earn
meritorious deductions for active participation in programs
on the basis of the prisoner's conduct and program reports
furnished by that facility to the corrections department.
All decisions regarding the award and forfeiture of SB 375
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meritorious deductions at such facility are subject to final
approval by the director of the adult institutions division
of the corrections department or the director's designee.
L. In order to be eligible for meritorious
deductions, a prisoner confined in a federal or out-of-state
correctional facility designated by the corrections department
must actively participate in programs that are available. If
a federal or out-of-state correctional facility does not have
programs available for a prisoner, the prisoner may be awarded
meritorious deductions at the rate the prisoner could have
earned meritorious deductions if the prisoner had actively
participated in programs.
M. A prisoner confined in a correctional facility
in New Mexico that is operated by a private company, pursuant
to a contract with the corrections department, is eligible to
earn meritorious deductions in the same manner as a prisoner
confined in a state-run correctional facility. All decisions
regarding the award or forfeiture of meritorious deductions at
such facilities are subject to final approval by the director
of the adult institutions division of the corrections
department or the director's designee.
N. As used in this section:
(1) "active participant" means a prisoner
who has begun, and is regularly engaged in, approved programs;
(2) "program" means work, vocational, SB 375
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educational, substance abuse and mental health programs,
approved by the classification supervisor, that contribute
to a prisoner's self-betterment through the development of
personal and occupational skills. "Program" does not include
recreational activities;
(3) "nonviolent offense" means any offense
other than a serious violent offense; and
(4) "serious violent offense" means:
(a) second degree murder, as provided
in Section 30-2-1 NMSA 1978;
(b) voluntary manslaughter, as provided
in Section 30-2-3 NMSA 1978;
(c) third degree aggravated battery,
as provided in Section 30-3-5 NMSA 1978;
(d) third degree aggravated battery
against a household member, as provided in Section 30-3-16
NMSA 1978;
(e) first degree kidnapping, as
provided in Section 30-4-1 NMSA 1978;
(f) first and second degree criminal
sexual penetration, as provided in Section 30-9-11 NMSA 1978;
(g) second and third degree criminal
sexual contact of a minor, as provided in Section 30-9-13
NMSA 1978;
(h) first and second degree robbery, SB 375
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as provided in Section 30-16-2 NMSA 1978;
(i) second degree aggravated arson, as
provided in Section 30-17-6 NMSA 1978;
(j) shooting at a dwelling or occupied
building, as provided in Section 30-3-8 NMSA 1978;
(k) shooting at or from a motor
vehicle, as provided in Section 30-3-8 NMSA 1978;
(l) aggravated battery upon a peace
officer, as provided in Section 30-22-25 NMSA 1978;
(m) assault with intent to commit
a violent felony upon a peace officer, as provided in
Section 30-22-23 NMSA 1978;
(n) aggravated assault upon a peace
officer, as provided in Section 30-22-22 NMSA 1978; or
(o) any of the following offenses, when
the nature of the offense and the resulting harm are such that
the court judges the crime to be a serious violent offense
for the purpose of this section: 1) involuntary manslaughter,
as provided in Section 30-2-3 NMSA 1978; 2) fourth degree
aggravated assault, as provided in Section 30-3-2 NMSA 1978;
3) third degree assault with intent to commit a violent
felony, as provided in Section 30-3-3 NMSA 1978; 4) fourth
degree aggravated assault against a household member, as
provided in Section 30-3-13 NMSA 1978; 5) third degree assault
against a household member with intent to commit a violent SB 375
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felony, as provided in Section 30-3-14 NMSA 1978; 6) third
and fourth degree aggravated stalking, as provided in
Section 30-3A-3.1 NMSA 1978; 7) second degree kidnapping,
as provided in Section 30-4-1 NMSA 1978; 8) second degree
abandonment of a child, as provided in Section 30-6-1
NMSA 1978; 9) first, second and third degree abuse of a child,
as provided in Section 30-6-1 NMSA 1978; 10) third degree
dangerous use of explosives, as provided in Section 30-7-5
NMSA 1978; 11) third and fourth degree criminal sexual
penetration, as provided in Section 30-9-11 NMSA 1978;
12) fourth degree criminal sexual contact of a minor,
as provided in Section 30-9-13 NMSA 1978; 13) third degree
robbery, as provided in Section 30-16-2 NMSA 1978; 14) third
degree homicide by vehicle or great bodily harm by vehicle,
as provided in Section 66-8-101 NMSA 1978; or 15) battery upon
a peace officer, as provided in Section 30-22-24 NMSA 1978.
O. Except for sex offenders, as provided in
Section 31-21-10.1 NMSA 1978, an offender sentenced to
confinement in a correctional facility designated by the
corrections department who has been released from confinement
and who is serving a parole term may be awarded earned
meritorious deductions of up to thirty days per month upon
recommendation of the parole officer supervising the offender,
with the final approval of the adult parole board. The
offender must be in compliance with all the conditions of the SB 375
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offender's parole to be eligible for earned meritorious
deductions. The adult parole board may remove earned
meritorious deductions previously awarded if the offender
later fails to comply with the conditions of the offender's
parole. The offender shall be eligible to earn meritorious
deductions while on parole in the community commensurate with
the classification of the offense. The corrections department
and the adult parole board shall promulgate rules to implement
the provisions of this subsection. This subsection applies
to offenders who are serving a parole term on or after
July 1, 2004."