Is the criminal justice system the best way to deal with drug offenders?
The N.M. Public Defender’s Office testified before an Interim Justice Committee hearing in Santa Fe last week that Lea County had the highest per capita of people charged with possession of controlled substance cases in the state — and more than double the rate of Bernalillo County.
Lea County’s per capita was 52 people charged with possession of controlled substance cases per every 10,000 people in Lea County, compared to Bernalillo County which is 21 possession cases per every 10,000 people, according the PDO.
“We hypothesize it shows a different pattern of policing and prosecution,” Bennet Baur, chief public defender for the State of New Mexico said, “and they (Lea County) put more resources (into possession of drug type cases). I mean if a third of our felony case load (in Lea County) is primarily possession cases and it’s only 15 percent in Albuquerque that’s a different use of resources.”
Baur thinks there isn’t necessarily more drug usage in Lea County than in Albuquerque, rather it has to do with different patterns of policing.
Ibukun Adepoju, district defender for the Fifth and Ninth Judicial Districts, said in the hearing the reason for Lea County’s high numbers stems from two issues: “excessive targeted policing of certain areas, certain population in the county and the lack of treatment resources.”
When learning of the presentation to the committee, Fifth Judicial District Attorney Dianna Luce disputed the numbers, saying that while the public defender’s office has been receiving cases, those cases are not just stand-alone possession of drug cases.
“There are cases, the public defender is getting cases, I agree with that,” Luce said. “I just don’t think they’re being overwhelmed because of possession alone.
“(District Attorney’s Office personnel) have been, for quite some
SEE DRUGS, Page 5 from PAGE 1 time, not prosecuting possession of drug charges if that is the only charge unless they (the drugs) have already gone to the lab and they (police) have a lab report back,” Luce said. “We have to know what we have, what we can prove, what the drug is and what we can move forward on.
“Otherwise, we are not charging and no one is being arrested on possession only in my district of all three counties. Law enforcement is taking the drugs, letting people go and sending them (the drugs) to the lab. Our lab has more than a 90 day turn around for drugs so we are charging possession only if it’s in relation to another crime.”
As an example of the justice system cycle, Adepoju, during the committee hearing, talked about a Hobbs repeat offender client: one who cannot drive due to a suspended license, gets around on a bicycle, gets stopped by a police officer who “is placed specifically in that part of Hobbs in order to stop people like ‘John’ (from) riding their bicycle,” gets charged, goes through the court system, loses his job, gets placed on probation, gets tested for a controlled substance and “there is the expectation that he will no longer be an addict with little to no resources to help him accomplish that,” and goes to jail. All while the courts, attorneys, and criminal justice system’s resources are being depleted to punish a man who has not been deemed a dangerous criminal and the system is no better for convicting a man who is of no threat except to himself.
“(THE SYSTEM) MAY have worked well at some point,” Baur said at the hearing. “The social problems that have developed in our system, particularly issues of behavioral health and drug abuse and drug overuse is something which our society has failed to grapple with in several ways. Most of those people (drug abusers and over users) end up coming through the criminal justice system and that has overloaded law enforcement, prosecutors, courts and public defenders.”
Baur explained the case overload the court system experiences is from the prosecution of crimes of possession, which amounts to a felony and the issue with prosecuting these types of cases is the number of resources they take up. Those resources being approximately 30 percent of a public defender’s felony caseload.
Baur noted to the committee it was important for them to understand the issue of “what’s against the law, whether having something against the law actually improves public safety” and how the resources that are used to defend or prosecute the drug cases are being used.
“I don’t want people addicted to drugs, I don’t want people with mental health issues, but I think that we, as a society, have stepped away from other ways to address these issues, forcing them through the criminal justice system,” Baur stated. “We’ve made their problems worse because every person who was not initially a criminal is now facing larger problems coming back from that addiction or that mental health issue than they did before.”
Baur asked the committee for temporary resources to address the backlog of cases, and money to help with the contract attorneys they have throughout the state. He further added these resources are to be used to holistically represent their clients by reducing recidivism in the courts and using social workers and other staff to create personal relationships with the clients and help work clients through the system.
Adepoju told the committee she left Lea County for a short time and upon her return, she noticed a change in the situation of the clients she previously represented.
“I realized that a lot of my clients who had been previously charged with possession of controlled substance charges were now in competency proceedings,” Adepoju said. “They came to the system over and over until a point where they are no longer functioning properly mentally. So much so that we have to raise competency, raise competency proceedings, get them evaluated and several times their diagnosis was substance abuse disorder that has gotten them to a point where they cannot even face the charges that have been filed against them.”
Adepoju specifically addressed in the hearing the over prosecution of possession of controlled substance cases and its linkage to competency and the mental health of clients.
Luce said she agrees there is a large amount of cases that have competency raised in the Fifth Judicial District, however, her dispute is the problem does not start with drugs. Rather, she said, the problem begins with the mental health issue, which is later demonstrated to be a drug problem.
“There is a report (New Mexico Sentencing Commission Competency Assessment Results for FY 2019) and it showed that our district, the Fifth, has the highest filings for raising competency in the state,” Luce said. “I see it (the drug/ mental health problem) the other way. I think that people have mental health issues and they self medicate with illegal drugs or prescription drugs.”
Luce explained what her office has seen is defendants are presumed to be incompetent until they are sent to the behavioral health institute in Las Vegas, N.M. There, they are often eventually found competent to stand trial and have a drug problem.
“As an under resourced office we wonder what can be done with our resources and our time if we didn’t spend 30 percent of our time on felony cases on possession cases,” Bauer said. “How much better could we serve the other clients? Frankly how much better could the cops and the DA use their time if they weren’t filing these things? How much better would the court do if we took out these cases, which we didn’t think would improve public safety? And instead, focus on the serious crimes that are very real.”
ADEPOJU SAID THE SOLUTION to the problem, while not simple, can be mended by reallocating resources and “public safety can still be addressed while approaching addiction and drug possession in a better way.”
“We don’t have an infinite source of funds in the system, however we have enough that we put enough into prosecuting drug offenses,” Adepoju said. “What happens to our friend ‘John’ is after everything he’s been through, he still hasn’t been treated, he’s still an addict, the next time we see John, he now has a mental health problem because he continues to use. We have not solved anything at all. Public safety is no better off than it was when John was riding his bicycle down the street. So we have to shift our resources from the things that we think are important like arresting a person to treating the person.”
Baur agreed with that statement noting,“The criminal justice system is basically broken and non-functioning. By that, I mean this system was developed to improve public safety.”
Adepoju said there are a limited amount of resources in the area of Lea County, but the Public Defender’s office, along with Hobbs Police Department and the District Attorney’s office is working on a solution to the problem.
“This program, LEAD (Law Enforcement Assisted Diversion) is a diversion program that is focused mainly on police encounters that involve a drug situation,” Adepoju said. “Somebody is pulled over for whatever reason and the officers recognize them because it’s Hobbs and we know each other and instead of the officer arresting them and taking them into custody, they hand them over to a treatment person who’s also a part of the team.”
It is up to law enforcement to refer the person, who would’ve been charged with possession, to be diverted to the program or otherwise charged.
“It basically takes them out before arrest and this is up to law enforcement to do,” Baur said. “The officer … (is given the) opportunity to decide ‘I’m not going to arrest this person, instead I’m going to take them to a case manager.”
The case manager, Adepoju explained, works to help the addict get back onto their feet, works to get them on the path to recovery, provides them with necessary resources and anything that will help them to become a functioning member of society again.
The idea with the LEAD program is to arrest less for drug issues and put addicts into the LEAD program while still having a place addicts are required to report to and have a sense of accountability.
Solutions to the problem, while not immediate, can be mediated by getting offenders into programs such as the ‘Step Program,’ which will help to prevent the vicious cycle of being a repeat offender, Adepoju said.