The critical point is that the New Mexico Administrative Code (NMAC) now clarifies that it is the Department of Public Safety (DPS) who must make the determination, not the local sheriff. The fact that the determination is made by the DPS provides some insulation from a sheriff that believes a person should have to register here if the person was required to register in another jurisdiction.

10.2.3.10 (A) NMAC provides “Within forty-five calendar days after the department receives the initial registration information the out-of-state registrant is required under Section 29-1 lA-4 NMSA 1978 and Section 10.2.3.9 above to provide to the sheriff, the department shall complete a translation and advise the out-of-state registrant and the sheriff whether the out-of-state registrant was convicted in another jurisdiction of a sex offense equivalent to one or more of those sex offenses identified in Subsection I of Section 29-1 lA-3 NMSA 1978 and is required to register as a sex offender in New Mexico.

10.2.3.10 (B) NMAC reads as follows. “The standard to be used by the department in determining whether the out-of-state conviction is equivalent to a sex offense listed in Section 29-1 lA-4 NMSA 1978 is one of clear and convincing evidence.”

10.2.3.10 (D) NMAC provides protection for the registration. “While the translation is pending, no information regarding the out-of-state registrant shall be entered in the public facing portion of the local or state central registry.”

LJC is gratified about the outcome and we are looking forward to reporting how this process is working once it’s fully operational. LJC would not have been able to undertake this project or the other work we do without the financial support we receive from you.

HB 56:  Our number one priority was to defeat HB 56, and we are happy to report that it did not pass. HB 56 is the SORNA and human trafficking proposal. The bill contained a provision that would have required registrants who simply own property located in New Mexico to register. The proposal passed the house and move to the senate. Due to the work of LJC and our advocacy allies, the senate took no action before the session ended. Even though the proposal did not pass, they will continue to bring this legislation back year after year.

HB 74:  HB 74 would have restored voting rights to felons upon release from incarceration, and it also would have allowed felons who were sentenced to probation to vote. In addition, it would have provided an alternative process of restoring a felon’s right to hold office upon receiving a “certificate of restoration” from the governor. Unfortunately, HB 74 was hijacked with an unfriendly amendment on the house floor. The amendment would require felons required to register pursuant to SORNA to prove that they are SORNA-compliant before they can register to vote. Representative Gail Chasey, the bill’s sponsor, was very disappointed with the unfriendly amendment. She attempted to bypass the Republican sponsored amendment by amending SB 114 to include the original language of HB 74. Unfortunately, we had not been working on SB 114,and it ultimately died on the senate concurrence calendar. More details on SB 114 will follow.

HB 201:  This proposal would have provided for the early termination of individuals on probation who: (1) are deemed a minimum/medium risk; (2) have met all of the obligations of their probation; and (3) have completed one half of their supervision. The bill passed the house with near unanimous support (64-1). The proposal passed all committees in both the house and the senate. Unfortunately, it died on the senate calendar in the final hours of the session. We are disappointed that this measure will not be sent to Governor Michelle Lujan Grisham for her signature.

SB 114:  This bill had escaped our scrutiny, which meant we were not working on it. We only noticed it when Representative Chasey added her amendment reinstating the original language of HB 74, which we discussed many times in previous updates. The proposal dealt with the releasing on parole those considered to be geriatric, permanently incapacitated, or terminally ill. Although there is already a process to release those who are in poor health, few if any have been granted release by the parole board. This proposal would help facilitate that process, we hope. We do support the legislation and we will be working to get it enacted in a future session. Some key points are listed below.

The term as “geriatric” as defined by the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. is fifty-five years of age or older.
3. suffers from a debilitating and chronic infirmity, illness, or disease related to aging; and
4. does not constitute a danger to the person’s own self or to society at the time of review.

The term “permanently incapacitated inmate” as defined in the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. by reason of an existing medical condition is permanently and irreversibly physically incapacitated; and
3. does not constitute a danger to the person’s own self or to society at the time of review.

The term “terminally ill inmate” as defined in the bill means a person who:

1. is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department.
2. has an incurable condition caused by illness or disease that will, within reasonable medical judgment, produce death within six months; and
3. does not constitute a danger to the person’s own self or to society at the time of review.

House Bill 56 – Oppose

As we reported before, this is the biggest bill contrary to our mission of restricting any additions to SORNA or the stiffening of criminal penalties. It is largely in response to the Jeffrey Epstein attention over the last couple of years and has passed the House of Representatives. Like House Bill 74, we will make our stand in the Senate to ensure this bill goes no further.

House Bill 73 – Oppose

This human trafficking bill’s ambition was clearly to its detriment as it has not moved since its introduction from the House Consumer and Public Affairs Committee. It sought to create a grant fund by charging certain businesses’ customers an extra fee to be deposited directly into a grant fund administered by the Attorney General’s Office. We still expect the bill to be dead, but we will still continue to track it.

House Bill 74 – Oppose

We reported last week that the Felon Voting Rights Bill was amended to create a separate voting rights restoration process for those subject to SORNA upon release from prison. The Republican-sponsored amendment would require an offender subject to SORNA to register with their local authority as a sex offender before their voting rights are restored. The bill has not moved since its assignment to the Senate Rules Committee, and we are working to remove the amendment and get this bill passed.

House Bill 40 – Neutral – Substitute House Bill 352 Introduced

Amid the discussion regarding private prisons and Coronavirus outbreaks, a bill was introduced seeking to institute a moratorium on private prisons by a certain date, requiring all private prisons to cease operations. That bill was largely met with criticism by NMCD for its interpreted impracticality. HB 40 has not moved since it passed the House Judiciary Committee with substantial amendments. Another bill has been introduced as a substitute – HB 352; the difference being that the newer bill only seeks to stop the addition of more private prisons to New Mexico. We are neutral toward the passage of either of these bills, but will continue to monitor any changes as it directly affects many of those we serve out of Otero County’s Correctional Facility.

To read the full text of these bills, go to http://www.nmlegis.gov/Legislation/BillFinder/Number.

To view our expansive bill tracker this session, go to https://libjusco.net/2021/02/11/legislative-session-2021-bill-tracker/.

House Bill 56 – Oppose

As we discussed last week, this bill deals primarily with amendments to New Mexico’s SORNA scheme by requiring persons with a non-equivalent out-of-state sex offense conviction to register in New Mexico solely based on their requirement to register in another state. The amendments by the House Judiciary Committee have reworded the bill to exempt those with conditional discharges from having to register once they have completed their conditional discharge’s supervision; this would mean that only upon successful conditional discharge would the duty to register be relieved. The other change to the bill is defining the requirements for exempting non-equivalent out-of-state sex offense convictions; the wording specifies that a court must find “good cause that the individual’s registration will not advance public safety in New Mexico.” Both amendments are a marginal improvement on the original bill’s text, but we still do not support the bill as it stands. We will continue to work on derailing this bill’s progress.

House Bill 62 – Oppose

This bill extends the statute of limitation on 2^nd degree murder by removing it altogether. The House Consumer and Public Affairs Committee has formally tabled this bill as of 2/15/21. Similar bills by Representative Rehm have also been tabled by their committees. We will continue to monitor any developments or substitute bills, but this makes the bill essentially dead for the legislative session.

House Bill 73 – Oppose

This bill seeks to create a new human trafficking grant fund by requiring extra fees from live adult entertainment businesses and internet-device retailers. It has been a month since this bill was formally referred to the HCPAC. This lack of activity leads us to believe it may be dead for this session, but the content of this bill may resist a formal tabling like HB 62. Once again, we will continue to monitor the bill daily and update our bill tracking table accordingly.

House Bill 201 – Mixed

This bill proposes minimum or medium risk probationers have their probation terminated early upon completing half of their probation term and fulfilling all their probation’s obligations. As it currently stands, the bill has passed the HCPAC and is formally referred to the House Judiciary Committee. No changes have been made to the wording, so our previous concerns regarding this bill still stand. We believe that it is moving in the right direction, but without specificity regarding which types of probation obligations need to be met or the validated scoring instrument to be used, we cannot take a position on this bill.

Senate Bill 141 – Support

This bill is similar to probation and parole reform bills we have supported in the past. As discussed, it creates distinctions between SVO/SO supervision and standard supervision by instituting a mandatory technical violation program (STEPS) and a mandatory arrest program for SVO/SO supervision only. No changes have been made to the bill since it emerged from the Senate Health and Public Affairs Committee last week. We support this bill in its current form as it requires a judge’s ruling before any offender is put on notice regarding mandatory arrest violations; we also support engraining the STEPS program into a statutory scheme that requires NMCD to follow it in all cases.

Senate Bill 310 – Oppose

This bill is an effort by lawmakers to extend the statute of limitations for certain child sex crimes to age 35. Since its introduction at the beginning of the month (2/1/21), the bill has had no activity. Like HB 73, the content of the bill resists a formal tabling. We will continue to monitor any activity regarding this bill and work to derail it should it begin to move forward.

House Bill 74 – Oppose

This is one of the House bills that is already awaiting Senate intro. At first glance, the bill champions reform by eliminating voter restrictions on convicted felons that are out-of-custody on parole or probation. A closer read of the bill requires sex offenders to register under SORNA before their voting rights are restored upon conviction; it also goes on to limit the effects of a governor’s pardon only to restore the right to hold public office. For both reasons, we cannot support the bill.

We have an exhaustive list of relevant bills this legislative session we have been tracking daily. For more information, visit https://libjusco.net/2021/02/11/legislative-session-2021-bill-tracker/.

Key to Committees

HCPAC:  House Consumer & Public Affairs

HJC:        House Judiciary Committee

SJC:         Senate Judiciary Committee

SHPAC:   Senate Health and Public Affairs Committee

SFC:        Senate Finance Committee

HSIVC:    House State Government, Indian & Veterans’ Affairs

HAFC:     House Appropriations & Finance Committee

SRC:        Senate Rules Committee

As the coronavirus established a foothold in southern New Mexico’s Otero County Prison Facility in mid-May, state officials quietly moved 39 inmates out of the massive complex near the Texas border to another prison near Santa Fe.

The inmates shared something in common: None was a sex offender.

In the days before the 39 departed the massive correctional complex where New Mexico’s only sex offender treatment program is housed, officials were still transferring sex offenders from other state prisons into Otero. It was a routine practice they had yet to stop, even though more than a dozen COVID-19 cases had already emerged elsewhere in the prison.

Six weeks later, 434 inmates — or 80% — have the virus, within a prison population that’s now entirely composed of people who, at one time or another, were convicted of a state sex offense.

Three have died. Eight more lie ill at University Hospital in El Paso.

One of New Mexico’s most crowded prisons, Otero is the only state lockup with more than one COVID-19 case. And yet no prisoner from the facility has been released early under an executive order issued by Gov. Michelle Lujan Grisham on April 6 because sex offenders are not eligible.

Prisoners from the state’s 10 other facilities have gotten out, however, documents New Mexico In Depth obtained through a public records request show.

The revelations come through more than a week of reporting by New Mexico In Depth, and confirmation from Corrections Department spokesman Eric Harrison.

The timeline of inmate transfers as the virus crept into the prison is “really concerning,” said Lalita Moskowitz, staff attorney with the American Civil Liberties Union of New Mexico.

“It indicates that Corrections knew that there was likely to be an outbreak or that there was some danger or risk to people housed in that facility,” Moskowitz said. “And they made a very clear decision about who in that facility was worth saving during a pandemic, and did so earlier than they were showing any sort of concern to the public.”

State officials didn’t seek to create a sex-offender-only prison purposely by sending the 39 inmates to Santa Fe, Harrison said. Rather, they did it “for COVID reasons,” he said, adding that they had been housed in a separate area of the Otero prison, away from the sex offenders.

“It wasn’t a specific policy change or big decision to make Otero the only sex-offender-only prison,” he said. “After that first inmate tested positive, we needed space to create a quarantine unit.”

As of Thursday, there had been no discussion in the Lujan Grisham administration about revisiting the criteria in the executive order on early release, including the provision excluding sex offenders, Harrison told NMID.

That’s despite the outbreak in Otero County.

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