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Amid concerns about public safety in Las Cruces, the Bulletin is planning an occasional series of in-depth reporting about criminal justice and behavioral health in New Mexico. This article about competency and the New Mexico justice system appeared as a two-part story in the Las Cruces Bulletin on March 29 and April 5.
In the first of many news conferences about police officer Jonah Hernandez’s death, the police released three details about his killer: his name, his status as an unhoused man and an opinion about his mental health. Weeks later, Las Cruces Police Department Chief Jeremy Story evolved that fact into an opinion about criminal competency.
“When competency is raised, usually by the defense attorney, it (the case) goes to the district court. There’s an evaluation. If the person is deemed incompetent … it comes back down to either municipal court or magistrate court with an order to dismiss,” Story said at a news conference on March 1.
Story said, “There are zero consequences for all this crime. Nothing. It’s dismissal, and that’s it. There’s no treatment. There is nothing that happens from all this crime.”
Story buttressed his criticism with department data showing that in 2023, 576 cases in municipal court, split among four people, were dismissed following this pattern.
Story did not specify the severity of the dismissed charges. However, since all 576 cases were in Las Cruces’ Municipal Court, they were likely comparatively minor crimes such as trespassing or property damage.
While the individual impact of the crimes is small, in the aggregate they contribute to a narrative of lawlessness. For weeks, dozens of business owners have been addressing the Las Cruces City Council at length in public comments. They complain of broken windows, feces on the sidewalks or repeated trespassing calls and connect it to a broader worldview.
“I can tell you that, yesterday alone, there was another vagrant out there screaming, yelling, acting violent, jumping in the air,” said Vic Villalobos, the owner of Las Cruces Dock Diving, during a council meeting on March 4. “We got to do something. We really do.”
“These are all the kinds of crimes that lead people to believe we’ve got out of control crime in Albuquerque,” said Sen. Gerald Ortiz y Pino, who introduced legislation to change the system this year. “There’s a lot of other crime, but these are kinds of crimes that are so visible, you can’t escape them.”
Meanwhile, advocates in the mental health and civil rights space have called for reform as well. They say the process is slow, leading to people stuck in jail awaiting evaluations, further affecting their mental health while stripping them of their freedom.
The pressure is coming from everywhere, but the system remains unmoved.
. . .
If someone can’t understand legal proceedings, how can they have a fair trial?
In New Mexico, the modern conception of competency dates to two cases from the state’s territorial and early statehood days.
The first case, Territory v. Kennedy, is retold in legal articles discussing competency.
In 1910, James Kennedy, a cook for a group of men driving cattle, forgot the group’s water at a previous campsite. His boss, Francis Evans, reprimanded his employee for physically assaulting him. The next night, another member of the group awoke to find Kennedy burying an axe in Evan’s body, killing him. From the material reviewed by the Las Cruces Bulletin, it’s unclear where in the New Mexico territory this event occurred.
Kennedy mounted a defense of insanity and, during the trial, the judge acknowledged to the jury that Kennedy might not be competent. Despite this, the jury convicted Kennedy of murder.
Kennedy then appealed to the territory’s supreme court. The court remanded the case back to the lower court for a new trial and, in doing so, affirmed the right of the defendant to be competent to stand trial.
According to an article published in the New Mexico Law Review, this case acknowledged that defendants have the right to be competent to stand trial and that incompetence at the time of trial is not a basis for acquittal.
The next case, “In re Smith,” dealt with the question of defendants abusing competency protections.
A news article from 1916 printed in the El Paso Herald titled “Jail Breaker Caught at Reno: Man Believed to Have Led Deming Jail Break to be Taken to Las Cruces” details a jail break and the killing of a Luna County Sheriff that would shape New Mexico’s competency laws.
After his arrest on allegations of forgery, A.B. Smith, who used the alias W.F. Dashley, escaped from the Luna County jail in Deming with four other prisoners. Smith, believed to be the mastermind behind the escape, stole a car and took the escapees as far as Rincon before a sheriff’s posse caught up with them on Feb. 20, 1916. The posse, led by Sheriff Dwight Stephens, contained six lawmen.
When the groups confronted each other, a gunfight ensued. Stephens was killed instantly, as was one of the escapees. Smith escaped again before he was arrested in Reno, Nev. in August of 1916.
After his murder conviction, Smith was sentenced to be executed by hanging. As his execution neared, the district court in Santa Fe found Smith “to be of unsound mind.” Smith then appealed for the Supreme Court to stay his execution until he could be “restored to reason.”
The Supreme Court decided to investigate the claim and ultimately found Smith was sane enough to be executed, although no record of the execution exists.
However, the most important precedent regarding competency comes from a 1960 U.S. Supreme Court case, Dusky v. United States.
According to the case records, Milton Richard Dusky intermittently suffered from visual hallucinations, morbid preoccupations and depression. He also had alcoholism. In August of 1958, Dusky tried to sexually assault a girl in Missouri before he was arrested.
The first of two psychiatric evaluators found that Dusky was “oriented to time, place, and person” but denied a “complete memory of the day of the offense.” The second evaluator diagnosed Dusky with schizophrenia.
Still, Dusky was convicted and sentenced. An appeals court upheld the case before the U.S. Supreme Court took it up. The justices ruled, “A federal court in which criminal proceedings are pending to make a finding regarding the mental competency of the accused to stand trial, may not make a determination that an accused is mentally competent merely because he is oriented to time and place and has some recollection of events; the test must be whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him.”
This ruling meant that all states must determine whether the defendant understands what’s happening in the courtroom, and whether they know what their lawyer is telling them when competency is raised.
. . .
Conrad Perea, chief judge of the Third Judicial District Court, said questions of competency come down to the liberty owed to people accused of crimes.
“We’re locking them up, so it’s a liberty question,” Perea said. “And should we, in fact, be locking up an individual who really doesn’t understand that he’s doing anything wrong?”
Perea said the process begins when someone in the court raises the issue. That person can be the prosecutor, the judge or the defendant, but it is most often the defense attorney.
“I think our defense attorneys, our judges are in tune with what's happening. And they see when an individual isn't understanding the process. So that seems to be working,” Perea said.
Once they raise the issue, the case is transferred to district court, unless it is already there.
“Sometimes it is clear that an individual may have difficulty understanding the processes,” Perea said.
Once in district court, a state-certified psychiatrist evaluates to determine competency. The evaluator can only take a limited number of these cases at a time.
Perea pointed out three questions that the evaluator seeks to resolve. They are:
The case can continue if the defendant is found competent to stand trial. If not, the district court is obliged by state law to dismiss the case.
When it works perfectly, Perea said the process takes about 180 days. It takes longer when the defendant has to be treated back to competency, which is the ultimate goal of a finding of incompetence.
“The judge may ask or order that individual to be transferred to the New Mexico Behavioral Health Institute for further treatment to competency. We do that quite often. I have individuals there today,” Perea said.
But competency is a moving target, Perea said. Some people may move away from a place of competency, while others may get there and then leave once they return to circumstances, such as poverty or abuse, that fuel mental illness.
A person can only be detained for treatment for as long as their sentence would have been: If a person committed a crime with an 18-month sentence, they can only be detained for treatment up to 18 months.
Alternatively, a judge can rule that the defendant is dangerous to the community and therefore should be remanded into treatment.
However, this is a high standard and does not apply to people accused of petty crimes like trespassing and property damage. It is also less stringent than a jury’s standard of proof, called “beyond a reasonable doubt.”
“We have people that don’t understand what’s going on. And they’re not truly dangerous, but they’re committing crimes,” Perea said.
For Perea, who’s been a chief judge, a police officer and a prosecutor, the breakdown is occurring at the point of evaluation – a reality compounded by pressure from the fentanyl crisis and the lack of mental health infrastructure in New Mexico.
“We have very few evaluators in the state of New Mexico,” Perea said.
He added, “If we alone (judges of the 3rd Judicial District Court) refer, let’s say hypothetically 15 to 20, up to 30 a month, can you imagine the rest of the state when there are only a handful of doctors evaluating, and their turnaround has to be quick? … And we have to hold hearings within a very, very quick timeline because people are in custody.”
The second breakdown concerns the state’s lone hospital capable of housing people undergoing competency evaluation and treatment.
“They’re waiting in custody (typically at a county jail) to be transferred to Las Vegas for treatment to competency. And I think the breakdown is, how long are they going to wait in custody,” Perea said. “Then once they get to that facility, they’re limited in beds, so the turnaround is quick.”
Perea said this leads to a situation where a defendant may wait weeks in jail to go to Las Vegas, is quickly treated there, returns to their community and becomes incompetent again by the time they return to court.
Perea said the fentanyl crisis compounds the lack of infrastructure.
“I think when you add these illicit drugs to our homelessness, and our unhoused population, and those people that begin to abuse, we have exacerbated the problem greatly,” Perea said. “I’ve had individuals that were defendants in my court cases that were found a block and a half away from (the district courthouse) overdosed on fentanyl. And it’s terrible.”
It is unclear how many people in the Doña Ana criminal justice system experience this.
Barry Massey, a spokesperson for the state’s court coordinating and administrative agency, said there are no data showing how many people undergo competency hearings.
. . .
The New Mexico Supreme Court organized a commission in 2022 to review the problems with mental health and criminal justice.
The body is called the Commission on Mental Health and Competency, and one of its members is state Sen. Gerald (Jerry) Ortiz y Pino, D-Albuquerque. Ortiz y Pino brought a bill to the 2024 legislative session that, at least on the surface, sought to address the issue.
“(S.B. 16) tries to give judges an alternative to what they have now. ... They would be able to order people into treatment,” Ortiz y Pino said, adding that it would allow judges to divert people found to be incompetent into treatment.
However, Ortiz y Pino told the Bulletin in an interview that the legislation was meant to test the waters, gauging reaction to a bill that gives judges an easier path to strip someone of their freedoms.
“And boy, did it get a reaction,” Ortiz y Pino said.
Before the Senate Health and Public Affairs Committee, chaired by Ortiz y Pino, multiple people who spoke against the bill lauded its intention and called for a new bill.
“I regret having to stand in opposition to this bill because we very much support the concept and what the sponsor and the proponents are trying to do,” Ellen Pinnes of the Disability Coalition said. “We support treatment in the community, we support diversion in the criminal justice system. But this bill, quite frankly, in its current state, is a mess.”
Pinnes said the bill sought to combine two things that should remain separate: competency and mental illness.
“You can be mentally ill, homeless and unable to adequately care for yourself and still be competent to stand trial,” Pinnes said. “Under this bill, if there’s no issue with your competency to stand trial, you can’t be diverted to treatment.”
Public defenders, defense attorneys and the ACLU of New Mexico praised the bill’s intent but raised technical issues with the bill and its implications.
Marshall Martinez, executive director of LGBTQ-rights organization Equality New Mexico, said the bill also raised questions about bodily autonomy.
“Bodily autonomy is at the crux of the LGBTQ liberation movement, and bodily autonomy is at the crux of this legislation,” Martinez said. “Any time any system seeks to restrict or limit bodily autonomy, we must ensure LGBTQ community members are brought to the table early and collaborated with.”
That didn’t happen in this case, Martinez said, adding that the state should focus on making the mental health systems more robust so that people can choose to access treatment at their discretion.
Monet Silva, executive director of the New Mexico Coalition to End Homelessness, said the bill would have an outsized impact on the unhoused residents of New Mexico.
“The bill does not address the many issues with current competency determination, lack of trained evaluators, lack of meaningful cognitive testing, etc., or create a competency restoration program,” Silva said. He went on to say that the bill would also burden the jails.
Ultimately, an amended version of the bill passed the committee but did not make it to the full Senate for a vote before the session ended.
Ortiz y Pino said he intends to bring a new bill back in the 2025 legislative session.
But he also acknowledged that the bill can only go so far. He said the law needs to be changed, but there are still not enough programs for people to enter voluntarily and not enough providers to cover the people who would be forced into treatment.
Then comes the cost in dollars.
“It’s going to be expensive to provide treatment to these people,” Ortiz y Pino said. “But this is how we’re going to get a handle on our homeless population. And this is how we wind up spending a lot less on police activity and the need for police protection, because we won’t need them to deal with these folks, and they can deal with real criminals.”
