ALBUQUERQUE, N.M. (KRQE) – What should Albuquerque do with the city’s criminals? Is locking them up and throwing away the key the right answer? Or should they be diverted from jail and sent to social and medical care programs for help? Does the decision change based on the level of the offense?

Data Reporting

These are key questions policymakers, law enforcement, lawyers, and citizens throughout the city are debating. None deny that Albuquerque has a crime problem, but opinions on what to do about it range widely.

Diversion programs and social services, such as drug treatment programs, have been around for decades in New Mexico. In fact, U.S. Department of Justice reports from the 1970s mention the statewide First Offenders Program, which was meant to keep youth out of jail. Now, nearly 50 years later, the Bernalillo County District Attorney and other offices across the state continue to offer similar diversions to low-level and young offenders. This year, Albuquerque also announced the Rapid Accountability Diversion Program, “designed to end the pipeline that escalates first-time offenders into lifelong criminals.”

These diversion programs generally do not apply to violent offenders. But the idea is that keeping low-level offenders on the right path allows them to steer away from a life of crime, which in turn could reduce violent crime in the future. “If we’re intervening early enough with these sort of defendants and we’re providing them with treatment and support and help, the likelihood that they are gonna commit crimes again is really really low,” Nicole Morales at the Bernalillo County District Attorney’s Office told KRQE News 13 last year when discussing their Pre-Prosecution Diversion Program.

Bennett Baur, the chief public defender from the New Mexico Law Offices of the Public Defender, says that diversion is all about public safety. “What we really want is the most public safety for the dollar,” he says.

“Up until recently, there was an idea that you could prosecute your way out of social issues, behavioral health and substance abuse issues. We have found that that is not the case,” he says. “Simply running through policing, arrest, jails, prisons, is not only inefficient, it’s ineffective.”

Diversion or Jail?

Choosing between diversion and incarceration is “a perfect example of the oversimplification and the sort of unnecessary framing of certain issues,” Bernalillo County District Attorney Raul Torrez told KRQE News 13 during an interview for the New Mexico News Podcast. “We can do both,” he says.

“We can provide additional resources for people with substance abuse issues. We can, and should, apply and provide additional resources for people that that are lower-level offenders that have either a limited criminal history or history with no signs of violence.”

But Albuquerque Police Department Chief Harold Medina told KRQE News 13 that the city may be relying too much on diversion programs. “Recently I think it’s gotten to the point that things have swung so far one way [towards diversion] that now we’re hearing the public cry out, ‘We want people to be held accountable’,” he explained on KRQE News 13’s podcast.

“There has to be a balance with a lot of the social service programs and law enforcement. And we have to be able to say that we want to help individuals who have substance abuse problems, but as a community, we need to draw a line,” Medina says.

In fiscal year 2021, there were only 92 cases referred into pre-prosecution diversion programs in the 2nd Judicial District, which includes Bernalillo County, according to data from the New Mexico Administrative Office of the District Attorneys. That’s less than half of a percent of all cases the district attorney handled during that time.

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Cases were diverted less frequently in Bernalillo County than in many other parts of the state in fiscal year 2021. Data from the New Mexico Administrative Office of the District Attorneys and the Legislative Finance Committee.

Several other districts across New Mexico have a higher rate of diversion, according to the data. The 1st Judicial District, which includes Santa Fe, Rio Arriba and Los Alamos Counties, for example, diverted 3.5% of the 4,731 cases they were given in fiscal year 2021. That means for every 100 cases they prosecuted, the 1st Judicial District diverted roughly six defendants from jail or prison. In the 2nd Judicial District, which includes Albuquerque, however, only about one diversion was made for every 100 prosecutions in fiscal year 2021.

As of December 20, 2021, there were 133 active participants in Bernalillo County’s Pre-Prosecution Diversion Program, according to data provided by the Law Offices of the Public Defender. That’s an increase from 90 participants two months ago. Still, diversion isn’t an option for all accused offenders, even if they meet the eligibility criteria. And some might not be able to complete the entire program.

“The program lasts anywhere from six months to two years,” explains Julpa Davé, an attorney from the Public Defender’s Office who manages the Albuquerque felony division. Participants “go to counseling, they have substance abuse treatment, they have drug and alcohol testing. And if there’s restitution required in their case, they’re required to make payments for restitution. So it’s basically like the client is on probation, except instead of it being through the court system, it’s through the DA’s [District Attorney’s] Office.”

The program has no set time to completion, which can be a challenge for some defendants. And some people simply aren’t ready for treatment, Baur from the Public Defender’s Office says. Other times, there’s a concern that they won’t be able to successfully complete the program, he adds. Transportation issues and program costs are also barriers for some people, Jennifer Barela, the Albuquerque District public defender says.

“For a lot of our clients, there can be some difficulty in just getting to the program,” Barela says. And “at one point our clients couldn’t pay for drug testing.”

But Barela and others from Public Defender’s Office say that these barriers and kinks in the system are being worked out by collaboration with the District Attorney’s Office.

The goal is to ensure that more people can take advantage of diversion that helps them better their life, says Julpa Davé, from the Public Defender’s Office. Ultimately, Davé explains, public defenders, prosecutors, and other people involved are making diversion “something that really does have a lasting effect,” rather than just a program that simply releases accused criminals before moving on. Diversion can “help them become actually successful as a person in this community and a productive member of society,” Davé says.

How well does diversion work?

When it comes to diversion, “there is some evidence that it saves money and resources,” says Noah Painter-Davis, an associate professor at the University of New Mexico who is currently researching diversion in New Mexico. Such programs allow prosecutors, courts, and the correctional system to “focus resources on more higher-level or severe crimes, such as violent crime,” he says.

But given that there’s a wide range of different types of diversion and not a lot of data from the various programs, “it’s difficult to come out with definitive statements about whether it works or doesn’t work,” Painter-Davis adds. But, he says that many diversion programs connect offenders with services within their community, such as therapy or drug treatment programs. These services, he says, do help both the individual offenders and the community they live in.

“Linking people with services has been shown to be effective,” Painter-Davis says. Recently, there’s been a push to get offenders the services they need. “I think that’s a good thing,” he says.

Some of those services are built into non-traditional courts, such as the Juvenile Drug Court. Painter-Davis calls these “problem-solving courts.”

“They rely less on traditional forms of, for lack of a better word, punishment,” Painter-Davis explains. “They rely less on longer sentences or long probation terms, and they rely more on linking people to a package of services, such as substance use treatment [or] educational programs, to either address a problem behavior or to increase their marketability on the job market.”

“What these courts recognize is that these populations have unique risks and unique needs,” he says. “And because the courts are calibrated towards these specific populations, they can better address those risks, needs, and also strengths in many cases.”

What about drawbacks of diversion?

While there are some clear benefits to diversion programs and “problem-solving courts,” Painter-Davis explains that some people might argue that they aren’t always as effective as they could be or that they aren’t always applied to the right offenders.

In fact, while diversion programs are often intended to keep first-time offenders out of the criminal justice system, Painter-Davis says it’s possible that they could sometimes do the opposite. He gives the hypothetical example of a kid who breaks a window: “If there’s a diversion program in place, that program might actually bring them into the system,” Painter-Davis says.

For example, before there were multiple diversion options, a kid who vandalized a window might simply have gotten a stern lecture by a judge before their case was dismissed, Painter-Davis says. But “if there’s a diversion program in place, that program might actually bring them into the system,” Painter-Davis says. It gives courts an option to bring low-level offenders into the justice system.

It may be too early to tell how well diversion works in New Mexico

Clearly, there are potential pros and cons associated with diversion. But, simply put, there’s not enough data to know how well these programs work in New Mexico, Painter-Davis says.

“Criminal justice is very complicated. It’s, in a word, ‘fraught’ territory. It’s not easy to maintain public safety, and there’s so many unknowns. But a good way for the public and the criminal justice system to move forward together is to have a greater shared knowledge of what’s going on,” he says. “A heavy reliance on punitive policies for a broad range of individual offenders is not really working. It’s not cost-effective, and it’s not making the community decidedly safer.”

“This is not to say, ‘[lets] not hold people accountable,’ it’s just to say that there’s better strategies,” he adds. “Prison, maybe, in many cases or incarceration may be appropriate for repeat violent offenders, but it’s not appropriate in many other cases. And there’s other solutions that we can bring to the table.”

Painter-Davis is currently helping create a diversion program for the 1st Judicial District Attorney’s Office, in Santa Fe. He says it’ll be focused on 18 to 25-year-olds.

“We’re trying to get two things settled before diving into it. First, we’re trying to get a good picture of the landscape of diversion practices throughout the country,” he says. “Second, we’re trying to really have a data system that can allow us to study diversion more effectively.”

The program, and the data it collects, will eventually provide a better picture of how well diversion works in New Mexico, Painter-Davis says.