Constitution and Criminal Justice Notable News RGF Events Top Issues

Putting Public Safety First in Pretrial: Reception and Discussion

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Crime and criminal justice issues remain a central feature of public policy debates in New Mexico, especially in Albuquerque. Though bail reform was passed by more than 85 percent of New Mexico’s voters via constitutional amendment, confusion has surrounded the implementation of reforms, the results of the policies, and where New Mexico must go from here.

In order to further discussion of this important issue, the Rio Grande Foundation is hosting a panel discussion and public reception on the topic.

Panelists include:

Brett Tolman
former U.S. Attorney for
the District of Utah

David Iglesias
former U.S. Attorney for
the District of New Mexico

Daniel Ivey-Soto
New Mexico Senator

Paul Gessing, President of Rio Grande Foundation, will provide introductory remarks, and Lauren Krisai, Senior Policy Analyst at Justice Action Network, will serve as the moderator.

Topics and potential questions for this interactive panel include:

What does an ideal pretrial system look like? How can we prioritize public safety in pretrial decision making? Is reform working in New Mexico? Could it be improved? What does the national landscape look like when it comes to pretrial and bail reform? Are there any lessons to be learned from elsewhere?

  • Location: Marriott Pyramid Hotel located at: 5151 San Francisco Road NE, Albuquerque, NM 87109.
  • When: Thursday, October 4, 2018, 6:00 to 7:30pm.
  • Cost: There is NO COST for this event. Heavy appetizers and beverages will be served and there will be a cash bar.

This event is sponsored by the Rio Grande Foundation with the help of the Justice Action Network.


Constitution and Criminal Justice Economy Notable News Tax and Budget Taxes Top Issues

New Mexico Think Tank Applauds Janus Ruling Forcing Government Workers to Support Unions Is Wrong

(Albuquerque, NM) — The Rio Grande Foundation, New Mexico’s free-market think tank, applauds the U.S. Supreme Court’s decision in Janus v. AFSCME. The decision, handed down this morning, secures the right to work for all local- and state-government employees.

The Land of Enchantment is one of more than 20 states that allow unions to collect fees from government workers regardless of whether or not they wish to associate with organized labor. A growing number of states — now a majority — have passed right-to-work laws, which free workers from paying fees to a union as a precondition of employment. Now, thanks to this ruling, all government employees will be able to choose whether or not to support unions.

“This is a great day for worker freedom in New Mexico,” said Rio Grande Foundation President Paul Gessing said. “For too long, working for local or state government in the Land of Enchantment has meant financially supporting a variety of union causes, including higher taxes, job-killing regulations, single-payer healthcare, and environmental extremism.”

Continued Gessing: “The Janus victory is sweet, but in New Mexico, the work is just beginning. While we have long believed that coerced union payments are unconstitutional, it is critical that we now educate government employees of their right to opt out. Unions will aggressively work to make life difficult for workers who do not support the political goals of Big Labor, but we will be providing information to those workers, explaining that they no longer have to pay if they don’t want to.”

The left and labor bosses have argued that Janus would “eviscerate” the American labor movement. This assertion belies the fact that teachers in right-to-work states such as Arizona and Oklahoma have recently gone on strike (or walked off the job) for higher pay and benefits.

“Despite Janus,” Gessing explained, “government unions will remain a voice for bigger government. But moving forward, they will no longer be able to coerce workers into paying them — private organizations — for the privilege of teaching, prosecuting criminals, working for the parks and recreation department, or being a first responder. The Rio Grande Foundation applauds the High Court’s decision in this landmark case.”

Constitution and Criminal Justice Economy Notable News Top Issues

What Janus v. AFSCME means for New Mexico

It’s as if the New Mexico Legislature were an appetizer or side show. Multiple tax hikes are being considered by local governments while “right to work” is also moving forward across New Mexico. And, perhaps the most important US Supreme Court case in many moons is set to be heard on February 26: Janus vs. AFSCME.

Across the nation, unions are rallying the troops for a show of force on the 24th of February with the laughably-titled “It’s about Freedom” hashtag. 

So, what is this case really about? Simply put, unions, unlike any other private organization, have long had the power to extract union dues or so-called “fair share” payments from government employees in non- “right to work” states like New Mexico.

Mark Janus, a government employee in Illinois believes that it infringes upon his rights under the 1st Amendment to the US Constitution that he is being compelled to “speak” (in the form of union dues) contrary to his own political beliefs or interests. The unions obviously have a strong desire to keep those dollars flowing.

If the Court decides this case in favor of Mr. Janus, it could institute the equivalent of “right to work” for all government workers in states like New Mexico, Illinois, and California. It is worth noting that this case only applies to government employees and unions, not those in the private sector. None other than President Franklin Roosevelt opposed the very practice of allowing government employees to unionize.

Of course, in New Mexico while private sector unions are relatively small in terms of membership, according to a robust 22.6 percent of government workers are unionized or covered by union contracts. For anyone who has spent time in the State Capitol in Santa Fe, they realize in short order that the government employee unions are among the strongest interest groups in New Mexico.

Far from “destroying” unions as the overheated rhetoric from them and their supporters might lead one to believe, unions will remain a potent force in American politics, especially in state capitals.

It is hard to see how allowing a private organization first dibs on the paychecks of government employees is in anyone’s interest but the unions’ and the politicians who rely on their money and organizing muscle. The Court seemed to be on the verge of ruling on this issue once before in the Friedrichs vs. California Teachers Association case, but Justice Scalia died and the Court deadlocked 4-4.


Constitution and Criminal Justice Notable News Research Top Issues

Mend It, Don’t End It: A Common-Sense Approach to New Mexico’s Bail Reform

(Albuquerque, NM) – In 2016, New Mexicans overwhelmingly approved a constitutional amendment to reform bail in the Land of Enchantment. But changes to the pretrial process remain controversial in the state, with Governor Susana Martinez expressing a desire to completely repeal the amendment.

In a new policy paper, Rio Grande Foundation researchers explain why the governor’s recommendation is unnecessary. “Mend It, Don’t End It: Reforming Bail Reform in New Mexico” summarizes why the state embraced alterations to the pretrial process, how bail has been changed since November 2016, and how common-sense measures can be adopted to make the system more effective for both defendants and the taxpaying public.

“Mend It, Don’t End It: Reforming Bail Reform in New Mexico”:

  • Revisits the deficiencies of the preexisting pretrial process, which former New Mexico Chief Justice Charles W. Daniels upbraided for allowing “dangerous defendants … [to] buy their way out of jail if they have access to the money required to secure their presumption of innocence,” while keeping “large numbers of poorer defendants who are neither dangerous nor flight risks … in jail simply for lack of money.”
  • Lists several bail-reform success stories, including those in New Jersey; Washington, D.C.; Lucas County, Ohio; and Travis County, Texas.
  • Recommends several fixes to the New Mexico Supreme Court’s rule implementing the constitutional amendment – alterations that would build on the many strengths of the new pretrial reforms already enacted, and be guided by similar reforms elsewhere.

“Mend It, Don’t End It: Reforming Bail Reform in New Mexico” was authored by Rebecca Ralph, a former New Mexico prosecutor who serves as a senior fellow in legal studies at the Rio Grande Foundation, and D. Dowd Muska, the Foundation’s research director.

“This paper makes an important contribution to the current debate,” said Rio Grande Foundation President Paul Gessing. “While critics are right to point out some of the mistakes made in the revamp of our state’s pretrial process, the solution is to improve, not scrap, bail reform in New Mexico.”


Constitution and Criminal Justice Notable News Public Comments and Testimony Top Issues

Rio Grande Foundation President Paul Gessing Provides Updated Comments on SoS Revised “Disclosure” Regulations

Albuquerque, NM – In response to revised regulations being proposed by New Mexico Secretary of State Maggie Toulouse-Oliver, the Rio Grande Foundation has revised its previously-submitted comments.

Said Rio Grande Foundation president Paul Gessing in the Foundation’s revised comments, “We applaud the Secretary of State for narrowing the scope of the proposed rules. Nonetheless, the Rio Grande Foundation remains concerned about the rules as written and the vague and complicated language and requirements they contain.”

Gessing noted that his primary concern with the proposed regulations remains procedural. Legislation addressing donor disclosure was vetoed by Gov. Martinez in the wake of the 2017 legislative session. These regulations are rightly the purview of New Mexico’s Legislature and Executive, not the Secretary of State.

In terms of our concerns regarding the proposed rule itself, the Foundation expressed a desire for clarification as to whether the Rio Grande Foundation and similar 501c3s would not be covered by the rule. In particular, we recommend that you consider revising the rulemaking again by amending the “advertisement” definition to explicitly exempt 501c3 organizations engaging in grassroots lobbying. If this change was made, it would remedy the Foundation’s chief concern about the rulemaking.

While some of the new language represents an improvement over the previously-proposed disclosure rules, we do have some serious concerns regarding the newly-added language in the “Coordinated Expenditures” section of the revised rulemaking.

Public testimony on the revised proposal will be accepted on August 30 in Santa Fe. Details including how to file your own comments can be found here.

You can read the full written comments here.

A video illustrating the importance for donor privacy can be found below:

Constitution and Criminal Justice Local Government Notable News Top Issues Videos

Rio Grande Foundation sues Santa Fe over campaign donor list ordinance

On June 26, 2017 the Rio Grande Foundation sued the City of Santa Fe over its anti-free speech campaign finance rules. Channel 4 KOB covered the press release and the Albuquerque Journal also covered the issue.

Constitution and Criminal Justice Notable News Public Comments and Testimony Top Issues

Rio Grande Foundation President Paul Gessing Comments on SoS “Disclosure” Proposal Regulations

Albuquerque, NM – The Rio Grande Foundation has submitted comments to New Mexico Secretary of State Maggie Toulouse Oliver in opposition to proposed new regulations aimed at forcing charitable non-profits – like the 501(C)(3) – Rio Grande Foundation to disclose its donors if the organization attempts to educate voters about public policy issues.

For example, any discussion of a candidate, even an incumbent officeholder who is running the government, can trigger the “independent expenditure” requirements if it is done close in time to an election. Thus all 501(c)(3) organizations are under threat of having to disclose their donors, even if they are only focusing on issues, if they happen to mention a candidate (and candidates are often incumbent officeholders).

Fresh from its efforts to educate voters in Santa Fe on the impact of sugary drink taxes, the Rio Grande Foundation understands all too well how well-intentioned disclosure regulations can hinder citizen involvement in the political process both through the disclosure process itself as well as due to onerous paperwork burdens placed upon citizens.

Foundation president Paul Gessing will be present to deliver public testimony at comment periods in both Santa Fe and Albuquerque.

You can read the full written comments here.

Constitution and Criminal Justice Top Issues

Clarify law to put focus on real criminals

Last year, New Mexico became a national leader in controlling abuses of civil-asset forfeiture. Let’s keep our momentum against overcriminalization going — and adopt a default mens rea standard.

Under the common law, a crime takes place when a mens rea (guilty mind) commits an actus reus (guilty act). As described by one legal scholar, “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”

University of New Mexico School of Law Professor Leo M. Romero put it more succinctly when he wrote that “moral blameworthiness is a deeply rooted precondition to the imposition of penal sanctions.”

But as government grew and the regulatory state expanded, the nature of crime changed. Actions understood to be inherently wrong, such as theft and murder, began to be outnumbered by offenses said to be committed against “public welfare.”

Reformers at the state level have come to embrace a default mens rea provision as a tool to protect citizens from inappropriate prosecution. In 2014, Ohio’s legislature passed, and Governor John Kasich signed, a bill that made a significant clarification: “When the section language defining an element of an offense that is related to knowledge or intent or to which mens rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense the element of the offense is established only if a person acts recklessly.”

More recently, Michigan’s legislators and governed enacted a similar reform, which enjoyed support from the National Federation of Independent Business, the U.S. Justice Action Network, the ACLU of Michigan, the Criminal Defense Association of Michigan, and the Mackinac Center, a free-market think tank.

The need here is real. New Mexico has one of the worst violent-crime rates in the nation. In the state’s largest metro region, the Albuquerque Journal has reported, a “cadre of hard-core violent criminals has become a common theme,” with “brazen armed robberies to carjackings to the cold-blooded shooting of police officers.” It’s clear, particularly in an era of constrained budgets, that New Mexico needs to make the best use of its law-enforcement resources. A default mens rea law, similar to the ones passed in Ohio and Michigan, is one tool to foster such prioritization.

In 2013, the state’s high court took a small step toward mens rea reform, when it ruled that violators of restraining orders must act “knowingly” in order to be charged. (Thus, an unintentional encounter in a public place could not be prosecuted.) But many opportunities remain for “crimes” to occur absent criminal intent in New Mexico.

For example, it is illegal to hunt and fish in the state, except “as permitted by regulations adopted by the state game commission or as otherwise allowed by law.” The New Mexico Department of Game and Fish’s rule book for fishing is 52 pages long. The rule book for hunting upland and big game is 144 pages long.

In addition, under state law, the Board of Regents of New Mexico State University establishes regulations for fuelwood. In 2014, the board decreed that it must be “advertised, offered for sale, and sold only by the cord or fractional part of a cord, except it may be sold by weight if the seller declares the price per unit of weight and the equivalent price per cord.” Thus, sales of fuelwood in “unspecified quantities, such as ‘load’ or a ‘truck load,” which commonly occur throughout New Mexico, are prohibited.

New Mexico needs a default mens rea standard, in order to codify what one scholar called “the classic liberal idea that moral culpability is, and criminal liability should be, based on a conscious choice to do wrong.” In addition to protecting its citizenry from unwarranted prosecution of ignorance and/or mistakes, the reform would offer clarity — and promote efficiency — in New Mexico law enforcement.

D. Dowd Muska is research director of New Mexico’s Rio Grande Foundation, an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom, and individual responsibility

Constitution and Criminal Justice Videos

Accidental Criminals: Why New Mexico Needs Mens Rea (criminal intent) Reform

(Albuquerque) New Mexico could make significant improvements to its criminal justice system by embracing a common-law principle called mens rea.

A new Rio Grande Foundation paper describes in detail why the New Mexico Legislature should embrace the principle of “guilty conscience” in criminal justice. As described by Roscoe Pound, the dean of Harvard Law School from 1916 to 1936: “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”

In the late 19th century, industrialization prompted the creation of regulatory authorities at the federal, state, and local levels. Over the decades, and continuing today, a myriad of rules came to govern “the environment around us, the food we eat, the drugs we take, health, transportation, and housing, among many others.”

One of the best examples of an egregious strict-liability prosecution at the federal level occurred in the Land of Enchantment. In 1996, Bobby Unser, a three-time winner of the Indianapolis 500, went snowmobiling with a friend near Chama. A flash snowstorm blew in, and whiteout conditions caused Unser and his companion to become trapped.

Severely ill and exhausted after two days and two nights, the men found a barn with a phone and called for help. But once Unser informed the US Forest Service of the incident, he was prosecuted for entering a “wilderness” area – even though there was no proof that such a violation took place. In 1997 he was convicted and fined by US District Judge Lewis Bacock. The conviction was appealed, but ultimately Unser’s prosecution was left to stand after the US Supreme Court refused to hear the case.

Unser’s case illustrates broader problems with the lack of a mens rea requirement. The New Mexico Legislature can take another step – as it did in 2015 with standard-setting civil asset forfeiture reforms – to reverse the tide of overcriminalization while continuing to protect those who are genuinely harmed by bad actors.

The full paper, “Accidental Criminals: Why New Mexico Needs Mens Rea Reform” is available here.

Constitution and Criminal Justice RGF Events

Ilya Shapiro: Scalia’s legacy and the future of the US Supreme Court a big success, interview posted

Our luncheon with Ilya Shapiro on the legacy of Justice Antonin Scalia and the future of the US Supreme Court was a big success. More than 70 people showed up to hear Shapiro’s message.

You can listen to the audio of Shapiro’s interview with Bob Clark of 770KKOB AM here. Just look for the interview labeled “The Future of the US Supreme Court 5-12-16.” A few photos of the event can be found below.