New Santa Fe DA sets speedy trial, plea policies for drug possession

The only defendants who will be tried for felony drug possession, she said, are those who refuse a diversion or plea and ask for a jury trial.

“I ran as a progressive on the idea that we need to reform the criminal justice system. And there are prosecutors all over the country doing things in this manner,” she said. “We have acknowledged the war on drugs has not worked and we have to do something about it. This is step one of doing something about it.”

In addition to helping her make good on campaign promises to address the public health crisis of addiction, Carmack-Altwies said the policy will help her office concentrate on cases involving more serious crimes.

Carmack-Altwies worked as a deputy district attorney in charge of the Special Victims and Violent Crimes divisions under predecessor Marco Serna for about two years before taking the helm in January, but she spent much of her earlier career as a criminal defense attorney.

When she began transitioning to the head of the department, she collected data that showed about one-third of the office’s pending cases were for possession of a controlled substance.

“Thirty-three [percent] of all the cases were just possessions,” sometimes coupled with associated misdemeanors, she said. “If we are wasting a third of our time on possession cases, only two-thirds of our time can [be committed] to the most violent crimes such as homicide. I was surprised by what a high percentage it was.”

“We have to treat these cases for what they are,” she said. “These people need treatment, not punishment.”

In New Mexico, possession of an ounce of marijuana or less is a misdemeanor, but possession of any amount of drugs such as methamphetamine, heroin or cocaine is a fourth-degree felony or above punishable by up to 18 months of incarceration.

Carmack-Altwies said the shift will also release pressure on the state crime lab, which she says has a 13-month backlog in part because it is having to test hundreds if not thousands of items such as syringes and pipes for trace amounts of illegal substances each year in order for prosecutors to pursue drug possession cases.

The district attorney said her policy will not extend to trafficking cases or people caught with large amounts of drugs.

“I still want to go after the real bad guys,” she said. “There will be exceptions. It’s still a crime. I’m not saying it’s not. But we are going to prosecute in a different way to see if that makes a difference.”

Chief Public Defender Bennett Baur called the move “forward thinking” and said if done right such initiatives can free up money that might be spent prosecuting cases addressing the root causes of addiction.

Jennifer Burrill, vice president of the New Mexico Criminal Defense Lawyers Association, said Carmack-Altwies’ new drug policy is welcome.

“Trying to get these people resources instead of putting them in jail is something we’ve been advocating for for a long time,” she said.

“We’re excited she’s taking these steps early in her administration,” said Burrill, who works in the Santa Fe Office of the Public Defender. “I hope this works out. Obviously, there are some cases that don’t need to plea, that should never have been filed in the first place, and we anticipate taking those to trial.”

Burrill said the Public Defender’s Office is working to identify cases that could be resolved with a misdemeanor plea.

“For a lot of people, that is a very good offer,” Burrill said.

Burrill said it will be important to catch the cases before they are bound over to District Court because its drug court program generally takes about 18 months and the state only has one year of jurisdiction over people convicted of misdemeanors.

Ideally, Burrill said, many simple drug possession cases could be resolved in Magistrate Court with help from Wellness Court — also referred to as the Restorative Justice Initiative — a program developed in the past few years that diverts defendants before they are convicted or take a plea.

The program — funded in part by Santa Fe County — helps defendants complete tasks such as getting a general equivalency diploma or obtaining a driver’s license that give them a better chance at staying out of the criminal justice system.

Carmack-Altwies has also instituted new policies related to habitual offender enhancements, plea deals and speedy trial considerations.

The biggest difference between these policies and that of Serna, her predecessor, is they exist in written form, Carmack-Altwies said.

“There were no plea policies written down in the past,” she said. “There were some sort of general policies, but [my] concern was different prosecutors might treat different cases differently. This is to make sure every defendant gets treated the same.”

Carmack-Altwies said she recently went over some of her new policies with judges in the district so they’ll know what to expect from the District Attorney’s Office, including several aimed at decreasing the time it takes for cases to move through the system.

Under her plea deal policy, prosecutors are required to extend plea offers to defense attorneys within 30 days of arraignment or “earlier whenever possible.” Her new speedy trial policy limits the circumstances under which prosecutors can agree to continuances and requires them to take cases to trial within nine, 12 or 15 months after arraignment depending on their complexity.

“That’s to make sure we don’t have situations like we did in Mondrian-Powell,” she said, referring to a case that arose out of the 2016 death of longtime librarian Elvira Segura, whose accused killer, Robert Mondrian-Powell, was released from jail and had charges dismissed on the basis that his right to a speedy trial had been violated after he’d spent 20 months in jail without going to trial.

“I never, never, never want to see that happen in my administration,” Carmack-Altwies said.