Wednesday, May 30, 2012
Guest Blog by Jennifer Romero "Over Charging and Mischarging Costly"
Guest blog post by Jennifer Romero candidate for Bernalillo County District Attorney. Jennifer is running against current DA Kari Brandenburg.
A few years ago, a friend gave me a book on the collateral consequences of incarceration. It was an interesting read, but I had already witnessed most of these consequences up close and personal during my time as a public defender.
Being locked up isn’t the worst part of going to jail, and the problems created by incarceration don’t end when a person is released from custody.
Most people who stay in custody longer than a week lose their jobs. Depending on how long they are incarcerated, and how much money they had, many also lose their homes, cars and families.
When a person is finally released from jail, they are dropped off downtown near the old jail and not given a second thought. Where will they sleep? Eat? Live? Work? With few resources, many are doomed to fail on probation and destined to doing life on the installment plan.
Over the past five years, there have been troubling trends in overcharging by the DAs office which has in turn led to over-incarceration at the Metropolitan Detention Center. Two areas are most notable: drug offenses and domestic violence.
New Mexico law allows for a charge of drug trafficking by either distribution (actually selling or distributing drugs) or possession with intent to distribute (which is determined primarily by the quantity).
New Mexico courts have said there is no bright line rule to determine the difference between a personal use amount and a trafficking amount. The 2nd Judicial District Attorneys Office believes that even small amounts (two or three rocks of crack, two grams of cocaine, two bee-bees of heroine) are more than personal use amounts. The result is that these individuals, who would have normally been released on their own recognizance or on a reasonable bond had they been charged with the appropriate crime of possession, instead are held on high bonds (bonds real drug traffickers have no difficulty posting!). All of these cases take years to be heard in our overburdened court system. Meanwhile, serious cases fall through the cracks.
Domestic violence is another area where overcharging is common. The kidnapping statute in New Mexico is broad and the DAs office in Bernalillo County has taken advantage of this by tacking on a charge of first degree kidnapping wherever possible. If an offender stood in front of a door, held or grabbed the alleged victim in any way, they often find themselves overcharged.
Cases that should have been charged as battery on a household member, a misdemeanor carrying up to a year in jail, are frequently inflated to include first degree kidnapping, a charge which carries 18 mandatory years in prison. Misdemeanor domestic violence cases typically resolve fairly quickly, and the defendant is usually out of custody and often able to take advantage of counseling even while the case is pending. They are able to support their families and, if possible, to put their family back together.
Because first degree kidnapping carries mandatory time, this charge results in high bonds that few can post. Those facing allegations of kidnapping are ineligible for release on pretrial services or house arrest. Since the risks are so high, these cases also take a much longer time to resolve, clogging the dockets in our overburdened court system. In my entire career, I have seen only a handful of cases that truly involved kidnapping against a household member and resulted in a conviction on that charge. The rest ultimately resulted in convictions for misdemeanors or lower level felonies, but only after the offender spent years in custody waiting for the case to wind its way through the court system.
Over the years, many victims of domestic violence have contacted me to say that they will never call the police again, because the overkill response resulted in them losing one of their household’s breadwinners, losing their home and finding themselves and their children in danger of being on the street. Then, by the time the offender was released, he or she had served all of the time and the court was without jurisdiction to supervise and insure that there was counseling if necessary.
We all pay the price of overcharging and over-incarceration. We spend more than a quarter of our county’s budget on the Metropolitan Detention Center, and a large portion includes these cases. Our community is paying twice for over-incarceration, as people who could have become productive members of society lose that opportunity and ability and we end up supporting their families via welfare programs.
Resources that are wasted on overcharging and over-incarceration are better spent on much needed programs. At this time Drug Court and Veteran’s Court are severely underfunded.
On Memorial Day, we honor the men and women who gave their lives for our freedoms. Let’s also honor those who have returned from wars with battle scars that very few of us can understand by making sure we have the funding to provide services within the courts.
We won’t have the resources to fund these important programs until we start getting smart on crime. Bernalillo County can’t afford another four years of overcharging and over-incarceration. It’s time for a reasonable District Attorney who will put people before politics. Please support my “smart on crime” policies by voting for me on June 5.
I voted for Romero. We need a new DA and she's the best candidate!
Posted by: JDM | Jun 2, 2012 9:38:42 AM