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Backers plan new push on child porn law revision

SANTA FE – Proposed legislation to toughen child pornography penalties after a state Supreme Court ruling had bipartisan sponsors, the support of Attorney General Hector Balderas and was approved unanimously in the House of Representatives.

But that wasn’t enough to get it through, as the measure died in the Senate Public Affairs Committee without a hearing in this year’s New Mexico Legislature – prompting sponsors to say they plan to try again.

Attorney General Hector Balderas

BALDERAS: AG wants longer sentence

The legislation by Democratic Rep. Javier Martinez and Republican Rep. Sarah Maestas Barnes, both first-term lawmakers from Albuquerque, would have increased child pornography penalties by closing a perceived loophole.

Under New Mexico law, sexual exploitation of minors is a fourth-degree felony. But the 2014 state Supreme Court ruling held current state law does not allow for criminal charges to be tied to the number of images a suspect has in his possession, either in paper or downloaded on a computer or tablet.

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Since the end of this year’s session, several cases have highlighted the state’s legal framework on child pornography since the court’s ruling.

In one case, Thomas Dolphus, who originally faced 60 counts of child porn, was convicted of just three counts based on the high court interpretation of what could be charged. That prompted prosecutors to express frustration about the law.

Then, last week, Robert Hawkins was convicted by a Portales jury of one count of possession of child pornography, although he allegedly had thousands of child porn images and videos, according to the Attorney General’s Office.

Hawkins faces a sentence of up to 18 months in prison and must register as a sex offender, but the case prompted Balderas, a Democrat, to renew his call for lawmakers to pass legislation that would allow for lengthier sentences in future cases.

“We continue to collect evidence of thousands of crimes against children who are exploited by pornographers in New Mexico,” Balderas said in a statement. “But because New Mexico’s law needs clarification from the Legislature, we cannot make the punishment fit the crime.”

Critics of this year’s proposal, however, have countered it went too far.

They say it could lead to lengthy prison sentences for individuals who unintentionally come across pornographic images on the Internet, or for teenagers who send naked pictures of themselves to others.

Jennifer Burill, a board member for the state Criminal Defense Lawyers Association, said in a recent letter to the Journal that the bill “rightfully” failed to gain approval during the session due to those perceived flaws.

After being approved by the House on March 7, the legislation died after being assigned to the Senate Public Affairs Committee. The legislative session ended March 21.

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Sen. Gerald Ortiz y Pino, an Albuquerque Democrat who serves as the committee’s chairman, said no vote was taken by the panel after the bill arrived in the final weeks of this year’s session. He said that the bill would have faced an uphill battle in other Senate committees, and that he discussed it with at least one of its co-sponsors.

Meanwhile, Senate Majority Leader Michael Sanchez, D-Belen, said he wasn’t sure how the bill would have fared in the Senate Judiciary Committee, of which he is a member, if it had reached that panel.

But he said the proposal could have unintended consequences, saying, “Sound-good bills are wonderful, but in reality you’ve got to be careful with them.”

The Law Offices of the Public Defender said in an analysis of the bill that if prosecutors were allowed to charge a suspect for every image downloaded it could lead to wildly divergent sentences, depending on a judge’s prerogative.

Meanwhile, Maestas Barnes said she hopes to bring the bill before an interim legislative committee in the coming months to increase lawmakers’ awareness of the issue.

She also said recent high-profile criminal cases could boost the bill’s odds for next year’s 30-day session.

“My hope is we can get it through next year and do something to protect these kids,” Maestas Barnes said in an interview.

Martinez, the other co-sponsor, said he plans to talk to senators about the bill before the 2016 legislative session.

“This is really about cleaning up language to make sure prosecutors have the tools to hold perpetrators accountable,” he said.

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