Copyright © 2021 Albuquerque Journal
Nearly 40 years after the War on Drugs began, drug crimes and addiction rates are still growing. In 1st Judicial District Court, felony drug possession makes up about a third of all court cases.
Between people cycling in and out of the court system, and the judicial resources needed to prosecute these crimes, 1st Judicial District Attorney Mary Carmack-Altwies knew she needed to do something differently.
“I come from a criminal defense background, and what I saw working when I was a criminal defense attorney was when people … got offered help,” she said. “Whether that’s treatment or whether … they have to go to a community service.”
When she took office in January, Carmack-Altwies used her prosecutorial discretion to implement a policy to end the felony prosecution of drug possession cases. Instead, she instructed her office to divert incoming drug possession cases to treatment and community service programs.
For existing charges, her office will attempt to plead the cases down to misdemeanors. This policy doesn’t apply to drug trafficking or drug distribution cases.
“I’m just trying to look at things in a different way and figure out how we can prosecute smarter than what we’ve been doing,” she said. “I ran for this office on a diversion and quality prosecution over quantity prosecution.”
Chief Public Defender Ben Baur said he thinks the policy change is creative and forward- thinking. He said it’s important to treat drug possession and addiction as more of a public health issue, rather than one of incarceration.
Both Baur and Carmack-Altwies said some drug possession cases involve people who have extremely small amounts of drugs, sometimes even just residue.
“Sending people to jail actually doesn’t help public safety; it can be more of a threat to public safety because it puts people into the system, into jails and prisons, who otherwise would not have been,” Baur said.
State Sen. Jacob Candelaria, D-Albuquerque, has been trying to implement this change statewide for the past two years. In 2019, Candelaria proposed a bill that would de-felonize drug possession crimes statewide, but it didn’t pass. He said he plans to introduce this bill again when the Senate reconvenes on Monday.
As a queer person of color, Candelaria said he saw the war on drugs play out in his neighborhood growing up. He saw communities of color disproportionately affected and over-criminalized by the war on drugs – even his own family members.
At the height of the drug war, the Legislature thought, like most legislatures, that the way to treat drug addiction was to punish people and charge them with felonies, Candelaria said. All this ends up doing is costing the judiciary system a lot of money and it doesn’t solve the underlying problem, he said.
“As a lawyer, one of the things that happens when you have a client who’s convicted of a felony is they undergo sort of a civil death in this country,” he said. “Even though you may complete your sentence as a felon, you still carry that mark.”
Candelaria said he’s cautiously optimistic about his bill turning into law this year. He said he doesn’t think of his bill as a partisan issue and that it has a better chance of passing because other states have done it.
“The sole specific intent of this particular bill is to end this really troubling element of the war on drugs, which is making felons out of our friends and family with addiction,” he said.
For the 1st Judicial District, these changes are already underway. To help implement this new diversion program, Carmack-Altwies’s office hired Assistant District Attorney Morgan Wood. She is tasked with looking at all incoming drug possession cases, and then working with prosecutors and defense attorneys to come up with a plan to help the person.
She said it’s a collaborative effort and the person needs to be willing to participate. The diversion program helps them by offering support and setting goals for their specific needs.
If it’s someone’s first felony charge, it can be a minor thing, Wood said. The diversion program can help catch people who might be going down the road to bigger crimes, and get them out of the system.
On the streets, Sgt. Jeremy Apodaca said the Española Police Department is open to the change because the old system wasn’t working. He said about half the arrests the department makes deal with drug possession.
“The offender may not end up getting the help they need to get away from the drugs, they might just end up becoming a number in the system,” he said. “And then they’re bound to repeat the same process all over again.”
Apodaca said he doesn’t believe everyone arrested for drug possession intends to commit a crime. He said the drug residue they have on them is just a by-product of their addiction.
He said the department noticed that when people arrested for drug possession are given treatment instead of incarceration, police seldom see them again. This gives people the opportunity to become a contributing member of society and have a different outcome in life, he said.
With this new policy, Carmack-Altwies said she hopes to see repeat offender rates go down. She said there’s no way to know for certain how much of an impact the policy will have on that, but even if it goes down by 10% to 20%, she’ll count that as a win.
“A lot of times, those people end up staying addicted, not only because they didn’t get help, but (also) because if you saddled them with a felony conviction, there are all kinds of collateral consequences,” she said. “That leaves people with almost no choice but to continue committing crimes.”