Governor to Legislature: Fix needed now for mentally incompetent defendants

More than 3,200 people charged with crimes since 2017 in New Mexico have been released back to the community after being found incompetent to stand trial, according to an analysis fueling Gov. Michelle Lujan Grisham’s call for a special session next week.

More than 5,350 of the 16,045 dismissed charges were felonies, according to the analysis. The dismissals included those charged with first-degree murder, trafficking controlled substances, kidnapping, and abuse of a child, according to data of the state Administrative Office of the Courts.

Other defendants charged with lesser crimes have been repeat offenders caught in a cycle of being charged and released only to be arrested again, charged, and let go after court-ordered evaluations showed they cannot participate in their defense and a judge ruled they were mentally incompetent to stand trial.

“Some of these have been in court up to 40 times in a year,” the governor told the Journal on Wednesday. Her office’s analysis wasn’t yet available when a competency bill died in this year’s legislative session. The data was released to a legislative committee on June 26.

Now that she’s seen the analysis, Lujan Grisham called the number of dismissals “frankly, shocking.”

“If we don’t interrupt that, the status quo that you see playing out in our communities every day will stay,” Lujan Grisham said. “I’m trying to break that cycle,” she added, and “focus on the criminal competency loophole.”

The governor and her team are spending the next week trying to convince lawmakers, local public officials, judges and the public that her recommended legislative changes are vital, will work and can be approved during the July 18 special session on public safety that may only take a day or two.

The ACLU of New Mexico and numerous advocates for the homeless and mental health experts asked Lujan Grisham to call off the special legislative session. But the governor said on Wednesday that she doesn’t want to wait until next January’s 60-day legislative session to tackle the issue.

“The notion that we would have 3,200-plus individuals reoffending for another year is more than I think any New Mexican should have to bear, “ she said.

One of her five proposed bills for the session involves involuntary civil commitment for defendants charged with a serious violent offense, a felony involving the use of a firearm, or those defendants who have been found incompetent two or more times in the prior 12 months. The intent is to prevent mentally incapacitated individuals from harming themselves or the public.

Judges would be required to order district attorneys to consider filing for involuntary commitment, giving judges the ability to detain a defendant for up to seven days for the petition to be initiated.

Another measure would broaden the definitions of danger to oneself and danger to others in New Mexico’s involuntary commitment statute. A third bill is aimed at those who loiter on a median no wider than 36 inches in areas where the speed limit is 30 mph or higher.

“I want to be careful here. No, I’m not trying to penalize people who are unhoused. But we’re looking for accountability here,” said Lujan Grisham, adding that such loitering is a public safety issue.

Lujan Grisham said other U.S. cities dealing with growing homeless populations have tried different ways to provide housing and other supportive services.

Some of those mayors have told her, “Don’t wait. Do not wait. That was the biggest mistake. While we all debated what things to do first, this is what happened,’” Lujan Grisham said.

In New Mexico, she said, “We seem to have an underlying public safety or criminal aspect, in addition to some affordability issues, in addition to a significant mental health population.”

She said her proposed changes benefit those who need support, whether it’s a drug user kicked out of his house by his family who turns to the streets and sells drugs for a living or a mentally ill person who ends up without a home and no after-care plan for treatment after being released from jail.

The package has been endorsed by the New Mexico Hospital Association, Lujan Grisham said, “because they see the same people and they have no tools to hold them or treat them.”

Under the current system, the director of the state Behavioral Health Institute says the statute for commitment to the Las Vegas facility “is too narrow. Most people don’t qualify. That’s what the commitment changes will do,” she said.

Some people deemed mentally incompetent do get better with treatment or medication and can stand trial.

She said the state is now better equipped to deal with those who need help. Since 2019, the behavioral health provider network in New Mexico has grown by 73% from nearly 3,200 providers to more than 5,500, according to her office.

“We have 100-plus beds today (around the state) to serve people right now,” she said.

Another public safety bill being proposed would increase the crime of felon in possession of a firearm from a fourth-degree felony to a second-degree, and would set a new mandatory minimum term of nine years for the offense. Current law provides for a sentence of “up to three years for an offender.” Serious violent felons in possession would face a mandatory 12 years in prison, an increase from the current nine-year term.

Her package also includes the requirement that law enforcement agencies in New Mexico submit monthly reports to the state Department of Public Safety on crime incidents and ballistics information.