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.
Category: Constitution and Criminal Justice
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.
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
(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.
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.
While at a recent conference with fellow free market think tanks, I sat down with Caleb Brown of the Cato Institute to discuss New Mexico’s successful reform of the State’s civil asset asset forfeiture laws.
The podcast is just a few minutes in length and can be found below.
Recently, Paul Gessing sat down with Dan Mayfield of the Morning Brew to discuss several issues the Foundation is working on. Specifically, we talked about an event the Foundation put on relating to civil asset forfeiture. And, while that event has come and gone, several of the issues discussed remain relevant and topical in advance of the 2016 legislative session.
(Albuquerque) Just in time for the first meeting of the Criminal Justice Reform Subcommittee, the Rio Grande Foundation is providing an update on its original, 2009 report, which arguably started the ball rolling on criminal justice reform in the Land of Enchantment.
The new report, “Criminal Justice Policy in New Mexico: Keys to Controlling Costs and Protecting Public Safety (Updated),” which was authored by Marc Levin, Policy Director of Right on Crime with Paul Gessing, President of the Rio Grande Foundation, provides a variety of bi-partisan, but fiscally-conservative ideas for the Subcommittee to consider, including:
• Expanded use of drug courts;
• Introduction of courts similar to Hawaii’s Opportunity Probation with Enforcement Drug (HOPE) Courts where offenders are ordered to treatment and must call in a number every morning to see if they have to report to the court to take a drug test. If they fail, they are jailed for several days, usually weekend jail in order to preserve employment;
• Mandatory Probation, Treatment and Work Requirements for First-Time Drug Offenders: This policy should apply only to individuals caught with small quantities of drugs that are for personal use;
• Graduated Responses for Probationers and Parolees: Research indicates this approach reduces technical revocations to prison because the swift but proportionate responses effectively lay down the law, deterring future violations;
• Performance-Based Probation Funding: Under this incentive-based approach which has not been adopted in New Mexico, probation departments receive a share of the state’s savings from less incarceration when they reduce their revocations to prison without increasing probationers’ convictions for new offenses. The probation departments are required to reinvest the additional funds in victim services, substance abuse treatment, and strategies to improve community supervision and reduce recidivism;
• Modernize Sentencing Laws: New Mexico should revise its sentencing laws to ensure prison space is prioritized for violent and dangerous offenders;
• Utilize Victim-Offender Conferencing: Conferencing is often used in property offense cases, particularly for first-time offenders, and must be chosen by both the victim and the offender, since the offender is required to take responsibility for his conduct. New Mexico Attorney General Gary King recently called for similar efforts; and
• Reduced Barriers for Nonviolent Ex-Offenders to Obtain Occupational Licenses;
Many of these reforms have been introduced with great success in other states that can provide both data and a road map for successful implementation.
The Rio Grande Foundation and Drug Policy Alliance recently hosted a briefing for candidates on criminal justice issues including civil asset forfeiture. Marc Levin of the Texas Public Policy Foundation and Right on Crime made the following remarks:
7-31-12 Marc Levin on Criminal Justice from Paul Gessing on Vimeo.
With New Mexico facing massive deficits, all options for cost savings must be on the table. Building on some of the ideas of Governor Richardson’s prison reform task force, Marc Levin, Director, Center for Effective Justice, Texas Public Policy Foundation and an adjunct scholar with the Rio Grande Foundation, has created a list of reforms that would improve New Mexico’s criminal justice system, cut costs, and allow for the return of low-level, non-violent criminals to the work force so they can become tax paying, productive members of society rather than burdens on the system.
The full study is available here.