Lawmakers study possible changes to state's criminal competency laws

As New Mexico lawmakers grapple with how to curb high crime rates, a court-affiliated working group has proposed legislation that would give judges more options in cases where defendants are deemed incompetent to stand trial.

But even backers of the effort said changes to the state’s competency laws will not, on their own, bring about a quick fix.

“The statute alone will not be sufficient,” Supreme Court Justice Briana Zamora told legislators during a Tuesday hearing in Albuquerque. “This will lay the groundwork to create programs.”

Zamora, a former Albuquerque Metro Court judge, has headed up a working group tasked with studying the state’s mental health competency laws for criminal cases. The group was created two years ago and is made up of various city officials, law enforcement officers, mental health advocates and attorneys in the state’s judicial branch.

The draft bill crafted by the group could be debated by lawmakers during the 60-day legislative session that starts in January.

It takes a different approach to criminal competency than a bill backed by Gov. Michelle Lujan Grisham’s office that would have required temporarily detaining defendants who are deemed to be incompetent in certain felony cases, so that mandatory treatment orders could be prepared.

Lawmakers did not take up that proposal during a special session called last month, despite the governor adding it to the agenda.

Meanwhile, the new proposal crafted by the working group could allow judges to assign non-violent defendants to outpatient or residential diversion programs, where they could get treatment and counseling for mental health or substance abuse issues.

While some such programs exist or are in the works in New Mexico, however, a larger-scale effort would require new programs to be established in a state already struggling to fill vacant social work and counseling positions.

“It sounds good, but I can’t imagine what it looks like,” Senate President Pro Tem Mimi Stewart, D-Albuquerque, said of the idea of expanding diversion programs.

In addition, Rep. Andrea Reeb, R-Clovis, a former prosecutor, expressed concern about dangerous defendants who are determined to be incompetent to stand trial.

Under the current system, when a defendant is found by a court evaluator to not be competent, there are essentially two options for prosecutors — dismiss the charges or seek to have the defendant sent to the state Behavioral Health Institute in Las Vegas.

Karl Swanson, a deputy district attorney for the Bernalillo County District Attorney’s Office, said defendants are determined to be incompetent in about 5% of the total number of felony cases.

He said competency cases can sometimes take years to play out, frustrating some victims like parents who call the police when one of their children is experiencing a mental health episode.

“All they want is treatment for this individual,” Swanson said.

Statewide, there were 16,045 charges dismissed due to incompetency since 2017, according to data compiled by the Administrative Office of the Courts.

That total amount of charges was accumulated by 3,217 defendants, meaning many defendants racked up multiple charges.

Zamora, who was appointed to the Supreme Court in 2021, acknowledged the complexity of the issue, but described the working group’s efforts as a highlight of her career.

She also said she frequently dealt with repeat offenders with mental health issues during her time as a Metro Court judge.

“I knew their names and their faces because they were in front of me so often,” she said. “And we were doing nothing.”

Lawmakers did not vote during Tuesday’s meeting of the Courts, Corrections and Justice Committee on whether to endorse the competency legislation. They are expected to further study the proposal during meetings over the next several months.