By MARGARET O’HARA
The Santa Fe New Mexican
What’s the difference between going to trial and taking a plea deal?
What does the prosecutor do? And who’s that sitting at the head of the courtroom, wearing the black robe?
These are some of the questions defense attorneys use to gauge a client’s competency — a legal term referring to a defendant’s mental capacity to understand the charges they face and to help in their own defense.
Second Judicial District Defender Dennica Torres said defense attorneys raise competency concerns when their clients “don’t understand that they’re basically in control of their case.”
Proposed reforms to New Mexico’s criminal competency system — a bill that would change what might happen after a defense attorney raises concerns about competency — will head to the House floor after the House Judiciary Committee on Wednesday compiled and approved a package of crime-related bills in a substitute for House Bill 8.
Lawmakers are moving forward with the package — which includes bills addressing shooting threats, blood draws in DWI cases and gun conversion devices — after promising to expedite a series of behavioral health and crime bills before the session’s midpoint later this month.
“This is in response to public interest and our commitment to the public to address crime swiftly,” the bill’s sponsor, Rep. Christine Chandler, D-Los Alamos, told the committee. “We are doing that through a collection of bills that I think are very meaningful.”
The committee substitute for HB 8 is six bills wrapped into one.
If passed, it would prohibit ownership of a “glock switch” or a device that would turn a semiautomatic weapon into a fully automatic weapon. It would increase penalties for shooting threats and certain auto thefts. It would require yearslong sentences for fentanyl trafficking and allow police to petition a court for a search warrant to have a DWI suspect’s blood drawn if they believe a controlled substance is involved.
But the majority of the committee substitute — about 30 of its 48 pages — pertains to the former House Bill 4, which would reform the state’s criminal competency system.
The bill’s major change would allow for mental health treatment for people accused of misdemeanors and low-level felonies who, as the law currently stands, otherwise would be released and see their cases dismissed.
Opposition to HB 8
The package of proposals already has drawn opposition.
The Public Safety Coalition, a group of 11 community organizations including the American Civil Liberties Union of New Mexico, called on the committee to reject the package and urged lawmakers to focus on “real solutions” instead of increasing punishment.
“This so-called public safety package is not going to achieve actual safety; it will only create new crimes, lengthen sentences, and use the criminal legal system to force people into psychiatric facilities that have yet to be built,” the coalition said in a statement.
Lawmakers, too, raised objections about the package. Some argued the bills don’t do enough to address crime, while others are pushing for the proposals to be heard separately.
Republican Reps. Andrea Reeb of Clovis and Nicole Chavez of Albuquerque worried the package doesn’t go far enough to curb crime among juveniles.
“I don’t think this package is going to address crime as far as what I think it needs to do,” Reeb said after voting against the bill. “I do believe that we’ve got this humongous juvenile crime problem here.”
Chandler argued delinquency law merits separate consideration.
“To rush a delinquency statute that hasn’t been vetted by any committee yet … is doing the community and the public a disservice,” she said.
Rep. Matthew McQueen, D-Galisteo, took issue with being asked to vote for a series of bills that, he said, each deserves its own yes or no.
“I certainly understand prioritizing public safety bills because of conditions in communities and concerns that we’ve heard. … I just remain troubled by our tendency to package bills that don’t have a relationship,” he said.
“There are lots of elements of this that I support; there’s at least one that I don’t. And I’m just troubled by that,” McQueen said.
Though he ultimately voted to advance the package, he noted he might take a different approach when it hits the House floor.
Committee sub details
Under the criminal competency component of HB 8, defendants deemed by the court not to be dangerous could be ordered to participate in a “community-based competency restoration program” for up to 90 days, or the judge could advise the prosecutor to pursue involuntary civil commitment or assisted outpatient treatment.
Chandler has described the proposal as a “balanced” and “compassionate” approach to the issue.
To Torres, the criminal competency measures is good in theory — but trickier in practice.
The proposal would move more people who are not dangerous and also not competent toward competency restoration or assisted outpatient treatment as well as involuntary civil commitment.
Torres argued New Mexico doesn’t yet have the behavioral health infrastructure or staff to manage that influx of patients.
“This could eventually be a really good change for New Mexico, but I think we need to sit down and really kind of consider what should come first. It’s kind of [a] ‘putting the cart before the horse’ type thing, right?” Torres said.
She added, “Do we have the staff? Do we have the evaluators? Do we have the attorneys? Do we have enough judges?”
Chandler acknowledged the bill will have to work in tandem with expansions to New Mexico’s behavioral health infrastructure — another problem lawmakers are hoping to fix this session.
A trio of bills moving through the Senate would create a $1 billion trust fund, provide some $140 million in immediate funding and impose a regional planning process, all for behavioral health plans. The powerful Senate Finance Committee advanced the measures to the Senate floor Wednesday.
“I think there’ll still be a little bit of an unmet need, but that will just accelerate our interest in developing a mental health program,” Chandler said in an interview.