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Trying to clear clogs in New Mexico criminal justice system

May 6, 2019

Joel C. Leyba injected heroin for the first time when he was 18.

“We were parked at the playground by the fire department in Española,” he said in a recent interview from inside the Santa Fe County jail.

“One of my friends and his girlfriend were already shooting up at the time,” he continued. “And they were doing their thing. And me and my friend were in the back seat snorting it, and I told my homie, ‘Hey, man, let’s do a shot.’ ”

Thus began Leyba’s descent. Not long afterward, he picked up his first criminal charge for slashing someone’s tires. He received an 18-month sentence for criminal damage to property, which was suspended in favor of six months of probation.

Within two weeks, he was incarcerated for two days after testing positive for opiates and cocaine.

A month later, he had his probation revoked for testing positive for opiates a third time.

Leyba, now 28, has been locked up almost ever since. He has been released occasionally, only to use drugs and then commit a crime — larceny, home burglary, DWI — and land in jail once again. The legal and human game of pinball bounces him from plea deals to reincarceration (usually for probation violations, such as using drugs and failing to report his probation officer), with his fate attached to lawyers, judges, court reporters and almost an entire legal system.

In a lot of ways, Leyba is the human face of a clogged court system — the longtime offender who continues to reoffend, with state resources following his long trips to jail.

He’s appeared in court more than two dozen times, has had at least three public defenders and has been prosecuted by at least three assistant district attorneys. And his case is not unique — he’s one of hundreds, perhaps thousands, of defendants in the state who have similar records.

Ask experts on New Mexico’s court system what ails it, and you’re likely to get a variety of answers: too little money, too many defendants, ineffective public policy. But the common denominator in the system’s blockages, most agree, are people like Leyba — substance-abusers who can never quite escape low-level crimes or the drugs that helped put them in jail in the first place.

“We have an overflow of cases on our docket, and they are all low-level, drug-related, nonviolent cases,” First Judicial District Attorney Marco Serna said in a March phone interview. “And I’m sure the defense attorneys will tell you that those are the cases we have the most of and that we are dealing with every single day.”

Jennifer Burrill, a public defender in the First Judicial District who also serves on the board of the New Mexico Criminal Defense Attorneys Association, agreed.

“If you look at most of the serious felony cases we deal with, I’d be hard-pressed to find one that doesn’t involve drugs or alcohol,” she said.

“I think the knee-jerk reaction is, ‘They are horrible — let’s put everybody in prison,’ ” she said. “But I think the correct response is, ‘This is a community health problem that’s massive and needs to be addressed.’ ”

‘A groundbreaking session’

Those inside the machine of the legal system say they hope help is on the way. A variety of bills passed by the Legislature and signed by Gov. Michelle Lujan Grisham were created to offer some relief — but perhaps just as important is a different way to look at addiction, crime and punishment, and how they intersect every day in courtrooms and cell blocks throughout New Mexico.

“It was a groundbreaking session in a lot of ways,” said Paul Haidle, a senior policy strategist for the American Civil Liberties Union of New Mexico. But, he added, “There is a long ways to go still, don’t get me wrong.”

Among the most notable changes: Lujan Grisham signed into law a bill that made New Mexico the 24th state to reduce penalties for possession of small amounts of marijuana and decriminalized possession of drug paraphernalia.

New measures also expand programs that offer defendants treatment and other services in lieu of prosecution and create criminal justice councils to discuss problems and find solutions in each of the state’s 13 judicial districts.

After eight years with Republican Gov. Susana Martinez, a former prosecutor, at the helm, criminal justice advocates approached the most recent legislative session with fists full of reform bills aimed at shifting the state’s focus from punishment to rehabilitation and making sure New Mexico got the most bang for its criminal justice buck.

“Bipartisan,” “data-driven” and “evidence-based” were the buzzwords, and the term “smart on crime” was the new black.

While advocates lauded progress during this year’s legislative session, they say the state still has a long way to go before its criminal justice system can be considered reformed.

And Lujan Grisham’s veto of a bill that would have changed certain rules governing probation and parole in hope of reducing New Mexico’s inmate population also revealed deep schisms within the system.

“When you have years of reckless, disastrous policies to overcome, you don’t just turn a barge around in one session,” said attorney Mark Donatelli who helped worked on the vetoed House Bill 564.

The measure had many of the features reformers said they wanted to see in new laws.

It was based on reforms that have been enacted in other states that New Mexico looked to emulate. It also had the potential to save the state millions of dollars by reducing the number of defendants who are returned to jail or prison for relatively minor probation violations.

Reincarcerating people who violate the terms of their probation or parole — usually by using drugs — is a problem that costs the state about $40 million per year, according to a Legislative Finance Committee study. Stakeholders on both sides of the aisle participated in crafting HB 564, which was aimed at attempting to solve that problem.

“It was the broadest continuum of criminal justice and legislative analysts you can imagine,” said Donatelli, who participated in discussions on the bill even before the legislative session began.

From the state Children, Youth and Families Department to the Attorney General’s Office, he said, “there were a number of legislators and all the people that come into contact with criminal justice … which is why I really thought it was going to sail right through.”

Though the bill passed both chambers of the Legislature with large majorities, Attorney General Hector Balderas and all of the state’s district attorneys sent a letter to the governor asking her to veto the measure, saying it would compromise public safety.

They were particularly opposed, the letter said, to provisions under which supervised probation could be automatically converted to unsupervised probation, saying that would hamper judges’ ability to decide what is best for each offender.

One of the bill’s sponsors, Rep. Gail Chasey D-Albuquerque, called the letter “provocative, inaccurate and frankly quite disturbing.”

These “unwarranted attacks” came, she said, as the bill’s sponsors were trying to do “what the whole country is doing, which is to get smart on crime rather than tough on crime.”

In her veto message, Lujan Grisham said that while the bill was based on sound policy considerations, she was nixing it so the attorney general and district attorneys could have more input the next time around.

“I think it’s a test now of the district attorneys to see whether we can get them to commit to criminal justice reform,” Chasey said. “I’m going to give the governor the opportunity to get her administration involved, and we’ll probably even be able to make it better.”

Dearth of data on case overload

Regardless of what happens next, one of the oddest problems facing the judicial system in New Mexico is its inability to offer reliable information about the scope of its problems. Many say there simply aren’t enough metrics — or the right metrics — to show where resources are needed, where money could be saved and where money should be redirected.

Chief Public Defender Ben Baur — who was held in contempt of court in 2016 for directing his staff to refuse new cases in certain districts because they were already overextended — said his agency is undertaking a study that should soon reveal an answer.

“Two years from now, I might be able to punch a few buttons and tell you, ‘This is how much time we are spending in the Santa Fe area on drug cases.’ I think that kind of information will be helpful,” he said. “Right now, I think we are at the point where there is just too many of all these cases.”

Arthur Pepin, director of the state Administrative Office of the Courts, said he couldn’t say definitively which crimes consume the most resources until a workload study — the first of its kind the office has conducted since 2006 — is completed later this spring or in the summer.

Rep. Daymon Ely, D-Corrales, said the passage of a bill that requires agencies to collect biometric identifying information from people who are arrested and share that information with the FBI, the New Mexico Sentencing Commission and local criminal justice councils, will help the state gather the data it needs to create policy changes and direct resources.

“We needed a system to properly evaluate whether programs were working or not,” Ely said.

But one out-of-state organization was able to use existing data to tease out statistics showing low-level drug crimes are, indeed, among the most significant drivers of an overwhelmed criminal justice system in New Mexico.

The Council of State Governments Justice Center, a nonprofit that received $600,000 from the U.S. Department of Justice to conduct research, made recommendations to state lawmakers that led to HB 564.

According to the center’s report:

• The number of felony cases referred to prosecutors in New Mexico fell about 3 percent between 2009 and 2017.

• Felony homicide cases were up about 2 percent over the period, while felony sex crime cases dropped 13 percent, and the number of cases involving violent felonies fell by 3 percent.

• Felony DWI cases dropped by 45 percent during the period. But felony drug cases rose 13 percent.

• Within the drug category, trafficking cases decreased 20 percent, while felony possession cases rose 77 percent.

Getting to the root cause

In the meantime, lawyers, politicians, judges and law-enforcement officials come together on this point: New Mexico needs more mental health and substance abuse treatment providers.

Carl Reynolds, a senior legal and policy adviser for the Council of State Governments Justice Center, said an important part of reform is “setting up places for law enforcement to take people that are not jails or emergency rooms” when they are in the throes of a crisis.

He pointed to Texas, which in the first decade of the 21st century faced massive prison overcrowding.

“They decided not to build any more prisons but instead spent quite a bit of money on developing new programs, new capacity for the system that was not prison capacity,” Reynolds said, pointing to money for halfway-house beds and treatment beds.

Sen. Jacob Candelaria, D-Albuquerque, proposed a memorial during this year’s legislative session that would have created a task force to study the feasibility of converting some of the state’s 11 prisons into drug and alcohol treatment facilities.

“The closure of correctional facilities in order to allow for expansion of treatment facilities and medication-assisted treatment may help address the root cause of crime and recidivism and has been tested in other states,” his proposal states.

The proposal died before in a committee.

‘It feels like it just never ends’

So where does this leave Jacob Leyba?

Jail.

After being in the system for the better part of 10 years, Leyba said he has a hard time keeping track of what charge he’s being held on, and for how long.

“They say I have two years left,” he said. “And I have 10 years suspended. They can give me five of that 10 on probation. So then I’m starting all over again. I have seven. It feels like it just never ends, you know? …

“I mean, worst-case scenario, I go back to prison for three years and I do a year and a half, and I get out with no treatment for my problem. And that’s not what I need. I need treatment and they don’t understand that. … I’m trying to make them understand that what I need is help. Not incarceration.”

Leyba acknowledges his property crimes affected people. But says he doesn’t know any other way to live.

“I’m not saying what I did was right,” he said. “But when you are stuck in that world, when you are so deep in that hole, you just don’t see any other way out. And there is nobody around who wants to help you, much less look at you.

“If you’ve ever been around an addict that is sick, you can see the desperation in their eyes,” Leyba continued. “They’ll do anything just to feel better. It’ll break your heart. And if you can imagine that, then try to imagine … to feel that desperation yourself.

“It hurts because there is nobody to help.”