Copyright © 2018 Albuquerque Journal
Matthias Alonzo was facing his fourth DWI arrest and prison time when he entered the intensive DWI court program. He has since finished his bachelor’s degree and is working on his master’s.
Janevieve Gray, 24, is participating in a specialty court for young adults after being arrested on suspicion of battery on a police officer charges. She is attending therapy sessions, is routinely tested for drug and alcohol and successfully living on her own for the first time in her life.
Prosecutors, public defenders and court officials all tout the benefits of specialty courts and pre-prosecution diversion programs. They often keep suspects who successfully complete a program from becoming convicted felons, help free up an overloaded court system, and studies have shown that defendants who are successful at completing the programs are less likely to reoffend.
But in the 2nd Judicial District Court, specialty courts are not at capacity. More than half of pre-prosecution diversion offers are turned down, and an early plea program that for years ended felony cases has stopped.
All those involved cite several reasons for underuse of the programs, but both the district attorney’s and the public defender’s offices said the programs play a needed role in the criminal justice system.
As for the reasons for the lack of participation, there is first the extensive time and strict rules required, as well costs to some of the defendants.
Most of the programs are at least 18 months to two years long and require regular court and office visits, individual and group therapy, and frequent, random drug and alcohol tests. That, in some cases, is a longer process for a defendant than just serving their time.
And some diversion programs don’t necessarily ensure that a defendant can get a felony conviction absolved from their record. Sometimes, the specialty courts are a way for people to get treatment and stay out of custody after they have pleaded guilty.
Entering a program also requires that prosecutors and defense attorneys reach an agreement on how a criminal case should be handled. And often that’s not easy, especially with what 2nd Judicial District Chief Judge Nan Nash calls the “current climate” of prosecutors and defense attorneys struggling to reach plea agreements.
District Attorney Raúl Torrez contends that defense attorneys and public defenders sometimes reject deals for diversion because they know it’s likely his office will dismiss the charges. His office still can’t keep up with deadlines in Albuquerque criminal courts, leading it to drop charges in many cases.
The public defender’s office contends that Torrez’s claims are without merit, that the programs are too costly for many of its defendants and that the office supports diversion programs.
What is not in dispute is the fact that the different types of diversion and specialty court programs are being underused at a challenging time for the state of the criminal justice system in Bernalillo County.
The programs and specialty courts mean fewer trials for prosecutors, public defenders and judges – all of whom face an overwhelming caseload.
There are more than 8,000 felony arrests in Bernalillo County annually, plus about 1,500 additional criminal referrals to the District Attorney’s Office prior to arrests.
Torrez said his office had enough prosecutors to file fewer than 5,000 cases in District Court in the 2017 fiscal year. That leaves thousands of cases that are likely to end in a dismissal.
Those numbers should improve with the additional $4 million his office received from the state for next year to help address that gap.
But Torrez said he met with court officials last week to discuss diversions and specialty courts and he plans to try to use them more often.
“We are fully on board,” he said.
Nash said last week that 30 of 40 spots are filled in the court’s DWI court, 24 of 40 in a veterans court, 14 of 35 in a mental health court and 11 of 20 spots taken in a specialty court for young adults, which is a program launched late last year that allows people 18 to 25 to complete an intensive treatment program in exchange for not getting a felony conviction.
“What (specialty courts and diversion) do is use the criminal justice system to help enforce treatment with the idea that if folks are ready for and able to get treatment that they will be able to get past the behavior that is having them interact with the criminal justice system,” Nash said.
One obstacle, she said, is the time it takes for someone to get accepted into a program.
Many people who are arrested are quickly released from jail and can then violate conditions of release or pick up additional charges before their case progresses far enough to get them into a treatment court.
Another challenge is prosecutors and defense attorneys not agreeing on how to proceed with a case.
An early plea program in years past was used to resolve dozens of cases per month.
The program allowed for certain defendants to enter into plea agreements early on in their case. Often the defendant would get a significantly reduced sentence or a probation term in exchange for the early plea.
Nash said prosecutors and defense attorneys haven’t recently been able to iron out plea deals early in cases and the court no longer schedules what it calls “EPPs,” hearings to take a group of guilty pleas.
“I think in this current climate, the DA’s office and (public defender’s office) and other defense counsel are less able to reach plea agreements than in the past,” Nash said. “The court would reinstitute (the program) if there was a reason to. We believe it was a good program.”
It’s clear that prosecutors and public defenders have not seen eye to eye. For example, they have different explanations for why the pre-prosecution diversion program in the prosecutor’s office is underused.
The District Attorney’s Office says that 65 percent of the suspects defended by a public defender who are offered the choice of entering the program – where participants can get the case against them dismissed if they complete the program – turn down the deal.
In 2017 and the first quarter of 2018, prosecutors offered 214 defendants who were represented by public defenders a spot in the office’s diversion program. Most offers were rejected.
In comparison, Torrez said those offers are only rejected about 35 percent of the time if the defendant is represented by a private attorney.
He said that, because court rules set specific deadlines for how fast cases must proceed, it creates an incentive for defense attorneys to push forward with cases in hopes that deadlines will be missed and cases will be dismissed entirely.
“I think the way the rule structures work … there is some sense that this office and this system will simply run out of time and not do anything with the case and they won’t have to go through probation and so I guess they are willing to take that risk,” Torrez said in an interview. “It’s, I think, unfortunate and something that shouldn’t be done. I don’t think it’s beneficial, number one, to the community but, number two, to the defendant, who with treatment and supervision might be able to put his life back together.”
Torrez said the program is rejected far less in other parts of the state.
San Juan County Chief Deputy District Attorney Dustin O’Brien said that it is rare for people to turn down offers to participate in the program in northwest New Mexico, though exact statistics weren’t available.
“It’s the best alternative to avoid a felony conviction,” O’Brien said.
Richard Pugh, the district defender in Albuquerque, doesn’t dispute the numbers. But he says the reason is that most of his clients can’t afford the costs of the program.
The diversion program Torrez was referring to requires that the defendant pay between $15 and $85 per month, plus random $20 drug tests and possibly counseling or other educational courses. That can cost $100 or more per month, Pugh said.
In order to qualify for a public attorney, a single adult can’t make more than about $25,000 per year, and most of the office’s clients are unemployed, Pugh said.
“Pre-Prosecution Diversion is a fine program, there’s absolutely nothing wrong with it. However, it costs in order to participate,” Pugh said. “We’re not playing a game of chess just to play a game of chess. We have real people, we have real clients. If a client has an opportunity to better their life and keep this criminal conviction off their record, then we’re going to advise them of that. We’re not going to risk somebody going to prison and having a criminal record solely so we can play some game.”