Nonviolent Drug Sentence Reductions

Even as Republican lawmakers push a series of tough new criminal sentencing bills in Santa Fe this month, federal officials, including New Mexico's senior senator, are rethinking the mass incarceration of nonviolent drug offenders.

A report prepared by the US Sentencing Commission and submitted to Congress in December 2015 (almost a year after SFR published "War on Sentences") indicates that judges reduced sentences for 95 of 154 (or 61 percent) of the federal prisoners from New Mexico for retroactive relief under new federal guidelines.

Those prisoners had their sentences cut from 106 months to 88 months, an average reduction of 18 months. Another 59 applications were denied, but it's not clear if those inmates applied despite having binding plea agreements or other technical disqualifications, including the use of a weapon in their crime.

Over the next five years, another 293 New Mexicans will become eligible to petition for early release after the US Sentencing Commission recommended a two-level drop on the sentencing matrix based on the quantities of drug trafficked.

Drug policy reform advocates, inmate families and politicians claim that mandatory sentences, which range from five years to life without the possibility of parole for third-time offenders, are too harsh and too costly.

They point to studies that have shown that longer jail sentences have a minimal effect on recidivism or increased public safety. They also contend skyrocketing prison costs (about $6.4 billion annually) has become an expensive taxpayer burden over the past 40 years, as the country's prison population quadrupled to 2.2 million adults—or 1 in 10 in 2012.

New Mexico's senior Sen. Tom Udall says there is little doubt the federal criminal justice system is in need of serious reform. He supports President Barack Obama's proposal to spend $1.1 billion to fight prescription opioid and heroin drug overdoses in New Mexico and around the country.

In fiscal year 2013 in New Mexico alone, 455 federal defendants faced drug charges, 436 received prison time and 70 were given mandatory sentences. Fewer than 10 percent of offenders were offered probation or diverted to drug treatment programs in 2014, as federal policies shifted away from community supervision in favor of incarceration.

"Drug abuse is more than an issue for law enforcement," says Udall. "It can't be solved solely by throwing victims in jail, and that's why I have fought for resources to support prevention and drug abuse treatment as well as resources for law enforcement."

Last year, Udall, the former New Mexico attorney general, signed on as a co-sponsor of the Smarter Sentencing Act of 2015. The legislation has put conservative groups like Koch Industries on the same team as the American Civil Liberties Union, the White House, and even Republican presidential candidates Jeb Bush and Ted Cruz, who last April wrote, "Draconian mandatory minimum sentences can produce sentences that far outweigh the crime, especially for nonviolent drug offenders."

While politicians who used to advocate for tough penalties turn their focus to health-centered drug treatment and prevention programs, inmates stuck with long sentences remain locked up in facilities that are 32 percent over-capacity.

Albuquerque criminal defense attorney Bob Gorence, a former federal prosecutor, said he hopes the sentence reforms recommended by the commission will prod Congress into fixing the mandatory sentence policy this year.

"It doesn't mean legalizing drugs, but sentences up to 10 years for first-time offenses is too harsh.  It's just not working," Gorence said.  "The US Sentencing Commission's recommendation was a good first step. Every little bit helps since these penalties were already too harsh, but they cannot trump what Congress has already imposed."

US Attorney for New Mexico Damon Martinez, like Udall, has suggested that substance and drug abuse be treated as a public health issue.

"We cannot simply arrest our way out of the drug problem," Martinez said at an opioid-abuse summit in Albuquerque last year.

As an alternative to expensive incarceration, Martinez said he is hopeful that national and local initiatives will put more defendants into drug diversion programs and help newly released inmates return to productive lives.

Santa Fe Reporter