New Mexico lawyers spar over criminal diversion program | Govt-and-politics

ALBUQUERQUE, N.M. (AP) — The top prosecutor in New Mexico’s busiest judicial district said a program aimed at steering low-level offenders away from criminal prosecution remains underused despite a big increase in participation last year. But public defenders argue that progress is being made.

Bernalillo County District Attorney Raúl Torrez said defendants represented by public defenders don’t accept enough offers from his office to participate in the pre-prosecution diversion program.

He pointed to data from his office that shows the rate at which those represented by state public defenders accepted diversion program offers remained at 16% in 2020 and 2021.

The program is offered as an alternative to prosecution for people charged with drug possession, shoplifting and other low-level crimes.

It’s aimed at removing nonviolent low-level offenders from the criminal justice system and providing them with services — such as mental health and drug treatment, housing and other programs.

“A recurring argument made by mostly members of the public defender’s office is that the emphasis should be on helping on the root causes of problems — on addiction, on mental health issues,” Torrez said in a recent meeting with the Albuquerque Journal’s editorial board.

Public defenders argue that they have accepted more offers since the district attorney began removed barriers to participation, such as a requirement for drug offenders to admit guilt. However, the admission-of-guilt requirement remains in effect for low-level offenders other than those charged with drug possession.

Public defenders say said that if a defendant is kicked out of the program for any reason, prosecutors could use the defendant’s admission of guilt to help secure a conviction.

According to the data, the number of offers made by prosecutor to public defenders more than tripled from 219 in 2020 to 698 in 2021.

During the same period, the number of offers accepted by clients of public defenders in Bernalillo County increased more than threefold, from 35 in 2020 to 112 in 2021.

Adolfo Méndez, chief of policy and planning for the 2nd Judicial District Attorney’s Office, said the increased participation “is a function of us just making more and more and more offers.”

Aside from eliminating a requirement that people charged with drug possession admit guilt before they are eligible for a diversion offer, prosecutors have also have ended some fees, such as drug testing costs, that participants previously had to pay to participate in diversion programs.

Méndez said prosecutors are disappointed that the removal of barriers hasn’t resulted in a higher acceptance rate.

Public defenders said eliminating the admission-of-guilt requirement has increased acceptances.

Defendants represented by public defenders accepted 29% of offers in November and 23% in December, according to data provided by Torrez’s office.

Bennett Baur, chief public defender for the Law Offices of the Public Defender, said the trend toward more offers and acceptances shows broad support for the program among prosecutors and public defenders.

“The prosecutors and the public defenders on the ground are cooperating to make this program work for as many of our clients as possible,” Baur said. “But I think the district attorney’s rhetoric over this undermines that very real progress that’s been made.”

Julpa Davé, managing attorney of the felony division of the public defender’s office, said defense attorneys and their clients have many factors to consider before deciding whether to accept pre-prosecution diversion offers.

“Maybe it’s better to actually try to fight the case because there are constitutional issues,” she said.

Public defenders often represent homeless people, making it difficult to discuss options with clients in time to meet deadlines for accepting diversion offers, Davé said.