Albuquerque-based attorney Kari Morrissey has a near-perfect record when it comes to defending clients accused of sexual offenses.
Not a single one of her clients is under sex-offender supervision, she says; she either successfully negotiates plea deals in which her client pleads to a lesser violent crime, without the sexual enhancement, or she takes it to trial and wins acquittals.
Hypothetically speaking, if one of Morrissey’s clients were convicted of a sex crime under the new five-to-20-year parole laws, she says, on appeal, it is “very likely” the courts would rule these laws to be unconstitutional. In particular, she says the law isn’t clear on whether the state’s Corrections Department has the authority to reincarcerate an offender who has finished his prison sentence but violated the terms of the extended parole.
“These laws are too new to have the circumstances challenged and really closely looked at by our higher courts,” Morrissey says. “These were passed by the Legislature and they don’t have the stamp of support of the Supreme Court or the Court of Appeals.”
Although Morrissey sits on the opposite side of the courtroom as victims’ advocates, philosophically she shares a lot in common with them, particularly when it comes to public understanding of the underlying issues.
“For most people who are on some type of supervision, the offense took place between them and a family member, so how is GPS monitoring going to make a difference?” Morrissey says. “The community at large has the perception that these sex offenders are running around and hanging out at elementary schools and stalking strangers, and that’s just not true.”
Morrissey echoes March’s concern that GPS tracking may be more effective in controlling ex-convicts who aren’t guilty of sex offenses.
“If you want to cut down on crime, you should outfit offenders guilty of other crimes,” Morrissey says. “With breaking into cars and houses, [GPS tracking] would actually be effective.”
US Bureau of Justice Statistics research supports Morrissey’s case. An oft-cited 10-year study released in 2004 found that only 43 percent of sex offenders were rearrested within three years of their release, compared to 68 percent for non-sex offenders. Of the sex offenders, only 5.3 percent were rearrested for another sex crime.
Melissa Hill, a criminal appeals attorney who represents the American Civil Liberties Union of New Mexico on the Sentencing Commission’s Sex Offender Management Board, is advocating legislative changes to the law to allow for risk assessment of each offender to determine which ones would best be served by active electronic monitoring.
“Until we shift our policies…we’re going to be watching a lot of people we don’t need to watch and not spending enough time watching the people we need to watch,” Hill says.
Ultimately, Hill says the parole board should be allowed to make case-by-case decisions as to which offenders should be tracked with active GPS versus passive GPS. With passive monitoring, the devices still collect the GPS data, but the offenders must make regular visits to their parole officers, who can then download the information.
Broader passive GPS tracking would also cut down on what First Judicial District Judge Michael Vigil, who chairs the Sex Offender Management Board, describes as a “quite expensive” program. The cost to actively monitor a sex offender for the minimum five years of parole is more than $15,000; passive GPS costs half as much and the savings could be redirected toward more treatment or more parole officers.
This switch also would address a disparity emerging between urban and rural offenders.
“Sex offenders are ending up spending their parole in prison because they come from a part of the state where there isn’t the technology to provide real-time monitoring,” Hill says. “It actually prevents parole completely because the state isn’t able to comply with [the law].”
“Sometimes there is less availability of cell phone reception [on the pueblos and reservations],” Frank says. “I can’t say whether it happens disproportionately, but it does happen on occasion.”
Hill doubts many of these ideas will make it to the Legislature. The Sex Offender Management Board has sent many of these recommendations to the Sentencing Commission, which has in turn bounced them back to the board.
“We can make recommendations until we’re blue in the case, but if the Sentencing Commission doesn’t have to adopt our recommendations, then the Legislature doesn’t have to enact any laws to comply with the policies we recommend,” Hill says. “The board might be useful, but it’s toothless.”