From left, Jennifer Barela, a public defender for the Second Judicial District, Karl Swanson, deputy district attorney of the Second Judicial District, Alison Pauk, senior attorney for the Administrative Office of the Courts, and New Mexico Supreme Court Justice Briana Zamora listen to a statements by Sen. Daniel Ivey-Soto (D-Albuquerque) during a meeting of the Courts, Corrections and Justice Committee about mental health and competency. The meeting was held at the Central New Mexico Community College, Tuesday, August 13, 2024. (Photo by Eddie Moore / Albuquerque Journal)
State lawmakers were given a starting point this week to connect mental health treatment to more people accused of crimes, but who are unable to stand trial.
At a meeting of the Courts, Correction & Justice Committee on Tuesday, New Mexico Supreme Court Justice Brianna Zamora was part of an expert panel who presented a draft bill on criminal competency. She was joined by representatives from the Law Offices of the Public Defender, the Second Judicial District Attorney’s Office, and the Administrative Office of the Courts.
The proposed law would allow courts to order people who are accused of felony-level crimes and are found incompetent to stand trial to participate in community competency restoration programs, without necessarily requiring them to be in a locked facility.
Zamora said the draft bill would give trial court judges alternatives besides incarceration, pretrial services and hospitalization at the New Mexico Behavioral Health Institute in Las Vegas.
Changing New Mexico’s criminal competency law to make it easier to find someone dangerous and put them in a locked facility for treatment was one of the proposals that Gov. Michelle Lujan Grisham brought for the recent special session; advocates said her bill could have led to unjust outcomes, while lawmakers in her own party declined to sponsor it during the gathering in July at the Roundhouse.
What’s competency?
Criminal competency is someone’s ability to effectively communicate with their attorney, assist in their own defense, or rationally and factually understand the charges against them, said Tess Williams, an Albuquerque public defender who handles almost exclusively mental health and competency cases.
Someone can have mental health issues or a formal diagnosis by a doctor and still be competent to stand trial, Williams said. Conversely, someone can have no known mental health issues or no diagnosis by a doctor and be incompetent, she said.
When someone’s competency is questioned, the case is paused while a mental health professional evaluates them. If they’re found competent, their case proceeds normally, sometimes to trial.
If they’re facing a misdemeanor charge and are found incompetent, their case is dismissed. If they’re found incompetent in a felony case, the court must determine whether they’re dangerous.
What’s competency restoration?
If someone is found incompetent and dangerous in a felony case, they are sent to the New Mexico Behavioral Health Institute in Las Vegas for competency restoration.
Competency restoration is the process of educating and training someone to a point where they are competent enough to aid their defense. It may or may not look like mental health treatment.
The person can return to court when they become competent, or they can stay confined in Las Vegas until the maximum sentence of their alleged crime.
The draft was a collaborative effort by the Supreme Court’s Commission on Mental Health & Competency , with members from all three branches of state government, police departments, local governments, and advocacy organizations.
Zamora is the non-voting liaison to the commission.
“The statute alone will not be sufficient,” Zamora said. “This will lay the groundwork to create programs.”
A new law alone won’t be enough because there is no statewide competency restoration program in New Mexico, said Jennifer Barela, an Albuquerque public defender. There are only a handful of evaluators in some jurisdictions in the state, she told the committee, resulting in a “wait in the proceedings.”
“One of the bigger issues is, we have to build some of these programs,” Barela said. “We don’t have outpatient competency, restorative competency in New Mexico. I think it’s something we should move toward.”
Competency evaluations are delayed due to an insufficient number of qualified and certified evaluators, according to a report in July by Legislative Finance Committee staff.
New Mexico has about 22 certified competency evaluators working under contracts, the report states.
“The state’s ability to fully reach and treat these individuals is hindered by a shortage of qualified behavioral health practitioners,” the LFC staff wrote.
On average, it can take one to three months for an incarcerated person to be seen by an evaluator, and six months to over a year if they are not incarcerated, the report states.
Legislative Finance Committee staff are recommending state lawmakers give money to the Administrative Office of the Courts for certified competency evaluators.
Out of all felony cases in New Mexico, only 2 percent are dismissed because of competency, according to the Legislative Finance Committee report.
Bill would create ‘off-ramps’ to treatment
The draft bill proposes adding “off ramps” to connect defendants to behavioral health treatment, Zamora said this week.
For people facing misdemeanors and nonviolent felonies, judges would be able to divert them away from the criminal justice system and into mental health treatment and services, the Justice for New Mexico’s high court said in her testimony to lawmakers.
“It would also have a possibility of diverting them to assisted outpatient treatment, where we have it, and if they’re ordered to it,” Zamora said.
What is assisted outpatient treatment?
Assisted outpatient treatment (AOT) is court-ordered mental health treatment for adults with mental illness who are found to be dangerous.
AOT is done in the community and not in a locked facility. It can be started by a petition filed by family, mental health providers or guardians.
In cases where people are diverted to assisted outpatient treatment, they are no longer within the criminal system, but rather the civil side, Zamora said.
The proposal is a preliminary draft meant to give lawmakers a framework, and not an official proposal by the judicial branch, she said.
In the meantime, the Administrative Office of the Courts is setting up a pilot assisted outpatient treatment program in Santa Fe and pilot competency diversion programs in Las Cruces, Las Vegas, Santa Fe and Lincoln and Otero counties, Zamora said.
“I think after we implement four pilot sites we do a thorough evaluation and we refine them where they need to be. I would love to see similar programs all over the state,” Zamora said.
The $3 million appropriated to the Administrative Office of the Courts during the July special session is being used to implement these programs in 2024. Zamora said if they are effective, recurring funds from state lawmakers will be needed to continue.
“I don’t have a dollar amount, but certainly it would be pretty significant, although cheaper than incarceration and hospitalization,” she said.
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