The Senate Judiciary Committee Substitute for the Senate Health and Public Affairs Committee Substitute for Senate Bill 84 revises the system governing violations of probation or parole (collectively, “supervision”) conditions. Under current law, all violations are considered equally, and penalties are determined at the discretion of the courts, the Parole Board, and probation and parole officers. SB84 defines a technical violation as “a violation of a condition of probation or parole that does not either create a threat to the probationer or released prisoner or others or does not constitute a new criminal charge,” while a standard violation of supervision conditions is defined as “any violation not constituting a technical violation.” SB84 provides for graduated sanctions for offenders accused of technical probation or parole violations based on the number of prior technical violations:
- For a first or second violation of probation or parole conditions, an offender may face a maximum of three or five days of non-detention sanctions, respectively, which include “community service, restrictive curfew, behavioral health treatment, or other nondetention sanction.”
- For a third violation of probation conditions, the offender may face a maximum of three days incarceration; for a third violation of parole conditions, the offender may face a maximum of seven days incarceration.
Senate Bill 84 would have revised the state’s probation and parole system and tied punishments to the severity of the violation—rather than the crime that originally sent them to prison.
The way it currently works, Chavez-Cook said, is if someone on probation commits a technical violation like getting a positive result on a drug test, they must serve their entire sentence.
These kinds of sanctions proposed to go statewide in the bill are already in practice locally in Santa Fe, Albuquerque, in the southeast corner of the state, and in Catron, Torrance, Sierra and Socorro Counties.
The judicial districts in those places each opted-in to their own voluntary technical violation programs where probation and parole officers can impose graduated sanctions before reporting someone to the parole board or local prosecutors.
Even in those places, if a client doesn’t sign up for it, there is nothing preventing the state prison system or a particular probation officer or a future Corrections Department secretary from putting someone in prison for a technical violation, Chavez-Cook said.
Incarcerating people for technical violations and failed drug tests does not make us any safer or help the people who are locked up, Valdez said, and those who can’t make appointments or grapple with substance use disorder need help and treatment.
“The millions of dollars wasted on incarcerating them could be invested in addressing the underlying causes of crime – substance use disorders and behavioral health issues,” Valdez said. “Needlessly incarcerating people only harms them and their families further and fails to make any of us safer.”
Lujan Grisham wrote the legislation “failed to get the support of the district attorneys and other stakeholders” and “ignores practicalities that could further endanger both parolees and our communities.”
“This could be a step backwards,” she wrote.
In her veto message, Lujan Grisham defended her administration’s record on substance use disorder treatment over the past four years: “Individualized supervision methods have led to improved measures on recidivism and participation in treatment and specialty courts,” she wrote.
Specialty courts are extremely effective for some clients, Baur said, but most of them only intervene after someone is convicted.
“We need to focus on diversion,” he said, and get someone out of the criminal legal system at the earliest possible time. “To say that just building up specialty courts is going to address it, I think, is a fairly narrow view.”
The fact that progress has been made doesn’t mean we don’t need the other pieces of the puzzle, Chavez-Cook said.
Recovery is not linear, Kaltenbach said, and people shouldn’t be punished for relapsing. Behavior doesn’t change with punishment, she said.
“Evidence shows criminalization does not reduce recidivism, nor does it reduce long-term drug use,” she said. “I question why we have such a regressive perspective in this state when we’ve done so many great things.”
SB 84 would have strictly limited re-incarceration for technical violations such as missing appointments or failed drug tests while someone is on probation or parole.
In her veto message, the governor suggests the threat of mandatory prison time is a useful tool for prosecutors to force people into treatment. But that is not how criminal law or substance use treatment should work. Treating addiction as a health issue is a more successful model for community health and safety. Studies show punitive criminal responses are not effective tools to deter drug use or mitigate the harm it can cause.
In a similar vein, SB 84 sought to address non-criminal violations of probation and parole, like testing positive for drugs or alcohol, or missing appointments with a supervising officer. SB 84 would have limited the incarceration sanctions for first, second, and third “technical violations” of probation and parole, without changing the sanctions for serious violations, like committing a new crime or behavior that threatens others. Some New Mexico districts already employ this practice. The bill would have expanded the program statewide.
Complying with supervised release is extremely challenging, especially after spending time in prison and for people struggling with addiction. Punishing every stumble with incarceration is ineffective and wasteful. Studies have found community-based sanctions for violating conditions of release are as, or more, effective than incarceration. Meanwhile, lengthy prison terms actually increase recidivism rates. SB 84 balanced rehabilitation with public safety and accountability.
Numerous studies have found community-based sanctions are as effective—if not more effective—than incarceration for addressing violations of release conditions, Chavez-Cook said.
South Carolina uses graduated sanctions, and the state saw infractions resulting in prison time fall by 46%. Hawaii’s use of swift and certain sanctions under a similar system found probationers were 55% less likely to be arrested again, 72% less likely to use drugs, and 61% less likely to skip appointments when they received graduated sanctions.
Albuquerque state senators Bill O’Neill and Moe Maestas are proposing a new, tiered system of parole and probation violations that would lessen the consequences of those technical offenses.
According to their bill, a person with one or two technical violations would not be automatically sent back to prison. Instead, they would spend several days doing community service or behavioral health treatment.
The third, fourth and subsequent violations would send offenders back to prison for a certain amount of time, or for the rest of their sentence.