Committee Chair Sen. Joe Cervantes

By DANIEL J. CHACÓN
The Santa Fe New Mexican

The Senate Judiciary Committee pored over the first in a series of crime bills the Legislature will consider during the 60-day session but didn’t vote on any of them Wednesday.

The committee chair, Sen. Joe Cervantes, D-Las Cruces, said lawmakers may try to roll several crime bills into one public safety package that will be voted on as a whole.

“We want to do the work of hearing the bills, engage in the committee in debate, taking care of all the public hearing components of a bill but then waiting on a vote until we perhaps have the bill in consolidation,” he announced at the start of the committee’s meeting.

The committee was scheduled to hear five crime bills, which are a major focus of this year’s session as New Mexico continues to grapple with lawlessness, but rolled two over to Thursday, including a proposal that would make the distribution of fentanyl resulting in death a capital felony.

Each of the three bills the committee considered drew a few concerns from lawmakers.

The first, Senate Bill 18, would increase the penalty of making a shooting threat from a misdemeanor to a fourth-degree felony.

“I’ve never understood why … when you call a school and tell them you’re going to come and shoot everyone in the school, why we would call that a misdemeanor when a bomb threat is a felony, so this puts it at the same level as a bomb threat,” said Sen. Craig Brandt, R-Rio Rancho, who is sponsoring the bill.

The proposal also creates the crime of swatting, which is defined as “knowingly making a false or misleading report to a public safety agency of an ongoing emergency or threat of violence,” with the intent of triggering an emergency response.

Sen. Katy Duhigg, D-Albuquerque, said it “makes sense” to increase the penalty for making a bomb threat or swatting. But she said she worried about including a shooting threat, which could be made in the heat of the moment.

“I don’t think that same thing is going to happen with bomb threats. I don’t think that same thing is going to happen with swatting, but I think the shooting threat is unique,” she said. “We don’t want to make felons of people because they have bad tempers and say dumb things.”

Brandt said such instances “would not qualify” under his bill and argued prosecutors could differentiate.

“I was threatened a little over a year ago by someone that they were going to kill me,” he said. “I didn’t even report them. Maybe I should have, but I didn’t because I was pretty sure they didn’t mean it because it was said in an argument. I think there’s a big difference between that and you threatening to come into this building and kill all the legislators in the building.”

The second bill the committee considered, Senate Bill 32, would create the crime of unlawful possession of a stolen firearm and make it a fourth-degree felony.

Sen. Moe Maestas, D-Albuquerque, who is sponsoring the bill, said other states have similar statutes.

“In Mississippi, this crime would be five years in prison,” he said.

Maestas said there are about 250,000 gun thefts annually, equaling close to 380,000 firearms, and that 214 of the 278 homicides in New Mexico in 2022 involved a firearm, though he didn’t say how many, if any, involved a stolen firearm.

“This is just something we could do to combat those tragedies,” he said.

Duhigg said she would propose an amendment eliminating a section of the bill that specifies each stolen firearm constitutes a separate offense, which a fiscal impact report noted creates the possibility of multiple charges from a single instance of possession.

“I do think there’s a constitutional proportionality issue here,” she said, later adding an individual caught with 20 stolen guns could be punished more than someone who committed first-degree murder.

The third and final proposal the committee considered, Senate Bill 70, amends the Racketeering Act to add human trafficking, sexual exploitation of children and other offenses that constitute racketeering. The bill also expands the definition of “enterprise” to include criminal gangs, which Duhigg and Cervantes raised concerns about.

The bill defines a criminal gang as three or more people “having a common identifying sign or symbol or an identifiable leadership and who continuously or regularly associate in the commission of criminal activities.”

“Once you start to try and define what is a constitutional prohibition on gangs, you run afoul of the right to association, and that becomes challenging,” Cervantes said. “It becomes particularly challenging because there are a lot of court decisions which have struck down legislation and efforts to try and regulate or criminalize gangs, and like anybody else, I deplore gangs.”