Three Strikes Laws Call Everyone Out in New Mexico

It's clear that something must be done to reform criminal justice in New Mexico, but that doesn't mean that just anything should be done. A tougher three strikes law will take the state further away from reform.
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While most of the country is moving towards justice reform and away from unyielding punishments like mandatory minimums and other penalties that remove judicial discretion - even the United States Supreme Court thinks it's somewhat unconstitutional - the State of New Mexico is considering strengthening its three strikes law in the next legislative session.

The fact that the State of New Mexico is even discussing the need for a tougher three strikes law is tacit admission that the state's correction system is failing. A tougher three strikes law won't tweak a failing corrections system and it won't make the state safer. If anything, it will make the state of New Mexico less safe, poorer and rife with wrongful convictions.

The theory behind a three strikes law is clear; if a persistent offender fails to learn his lesson, each new transgression should be met with a greater, non-negotiable punishment since the lesser punishments of the past didn't take.

The practical reality of three strikes-law is much different. When I served six-plus years at York Correctional Institution, one of my cell mates was on her thirty-third strike. She had spent the last forty years coming in and out of the facility; Connecticut offenders face enhanced penalties under "persistent offender" statutes that boost sentences but the longest sentence she ever received was five years; many of her punishments were shorter than that. She is probably the perfect advertisement for a three strikes law.

Inmates like her who remain unchanged by the penal experience will not accept responsibility for their actions simply because the court checks off a certain number when they count their convictions. From what I have seen they will do anything and everything to wiggle out from three strikes so they can get out and on to their fourth and fifth strikes.

The only options for someone looking to dodge a mandatory enhancement on a sentence is to try the case and gamble for an acquittal - which will not result in leniency - or become an informant on someone else's case which will cushion their third fall. Third strikers will sing.

Violent crime rose 6.6% from 2012-13 in New Mexico - the second highest in the nation and, currently, 101 murder investigations have gown cold in the state. An offer of heat from a third striker might tempt law enforcement not to call someone out on his third strike.

And the offers come. Other cellmates of mine were lifers; I lived in Connecticut's female version of the Green Mile. They were always scheming to find some information about someone else's case that they thought could help them reduce theirs. The only reason it didn't work is that the targets of their scheming were already convicted. If they hadn't been, I am sure the state's attorney would have used their testimony.

Prosecutors are almost always game to take jailhouse informant testimony to win a case. In his study of exonerations, Professor Samuel Gross of the University of Michigan Law School found that as many as 50% of wrongful murder convictions were the result of false jailhouse informant testimony.

After what happened in July in Orange County, California - a state that has actually loosened its three strikes law through a ballot initiative three years ago, so the incentive to manipulate a case through false testimony is lower - when jailhouse informants threatened the integrity of a murder conviction so severely that an entire advisory board had to be appointed to investigate the use of informants. This happened in a county that was already burned by a jailhouse informant named Oscar Moriel who was on his third strike in 2005 when he offered to manufacture memories for police.

In fact, the case that is prompting the discussion about revamping the three strikes law in New Mexico - Andrew Romero's alleged killing of Rio Rancho police officer Gregg "Nigel" Benner - might end up being the victim of this phenomenon. Imagine if the state's attorney used a jailhouse informant facing three strike punishment to convict Romero, only to see his conviction be overturned for false informant testimony. It's not an unlikely scenario.

It's clear that something must be done to reform criminal justice in New Mexico, but that doesn't mean that just anything should be done. A tougher three strikes law will take the state further away from reform.

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