Bill would exempt drug convictions from habitual-offender sentences

Senate backers say change would reduce incarceration for possession

SANTA FE — New Mexicans with a felony record who are convicted of drug possession would no longer face extended criminal sentences, under legislation approved Saturday by the state Senate.

The Senate voted 30-5 in favor of the legislation, Senate Bill 187, that would not reduce the basic penalties for drug possession, but would exclude such crimes from qualifying for a sentencing enhancement for habitual offenders — or being the basis for such a sentence extension.

Under current law, sentences can be extended by between one year to eight years for repeat felony offenders, if a prosecutor files for such an enhancement. The exact time length of the sentence extension depends on how many prior felony convictions an offender has.

Backers said the change would reduce incarceration rates for drug addicts in a state that had a rate of illicit drug use that was nearly twice as high as the national rate over a recent three-year period, according to a 2018 federal survey.

“Removing simple drug possession from this enhancement recognizes that a person who repeatedly possesses drugs is not an incorrigible felon who needs to be taught a lesson,” said Sen. Leo Jaramillo, D-Española, the bill’s sponsor. “They’re suffering from a health problem that requires treatment, not prison.”

He also said many residents of his rural northern New Mexico district who struggle with drug addiction feel targeted by law enforcement officers, which he said makes it difficult to break generational cycles of substance abuse.

Currently, possession of any amounts of drugs such as heroin, fentanyl and cocaine is a fourthdegree felony under New Mexico law.

But possession of small amounts of cannabis by New Mexicans age 21 and older is now legal, under a 2021 law that legalized recreational marijuana use.

New Mexico Chief Public Defender Bennett Baur, who served as an expert witness Saturday in support of the bill, said state residents are regularly sent to prison for simple drug possession charges, but usually because they also have prior

offenses.

He said in an interview after Saturday’s vote the legislation being debated at the Roundhouse would only apply to standalone drug possession charges, as violent crimes like assault or burglary associated with a substance abuse arrest would still qualify for the state’s habitual offender law.

In addition, Baur said it would lead to state resources being better directed at such issues, in part by reducing taxpayer-funded incarceration costs.

“Everything we know is that jail does not make drug addiction issues better,” Baur told the Journal.

While the state has made efforts in recent years to expand drug treatment programs, including a drug court program aimed at reducing recidivism, a 2020 state Department of Health report estimated only about 34% of New Mexicans who need substance use disorder treatment actually receive it.

During Saturday’s debate, the five “no” votes were cast by Republican senators, though about a dozen GOP lawmakers voted in favor of the bill.

At one point, Senate Minority Whip Craig Brandt, R-Rio Rancho, asked whether the legislation could prompt someone intending to sell a large amount of drugs to claim simple possession, as the bill would not apply to drug trafficking convictions.

But bill supporters pointed out prosecutors can already file trafficking charges in instances when large amounts of drugs are found, depending on the specifics of a case.

Sen. Antonio “Moe” Maestas, D-Albuquerque, said the measure could have a significant impact for individuals — and families — affected by drug addiction.

“This simply allows the state not to stack somebody eight years for a simple possession (charge), but max them out at 18 months,” he said.

The legislation now advances to the House, with just under three weeks left in this year’s 60-day legislative session.