TITLE 22 COURTS
CHAPTER 510 PAROLE
PART 17 PAROLE
HEARINGS FOR YOUTH SENTENCED IN ADULT COURT
22.510.17.1 ISSUING AGENCY: New Mexico Parole Board.
[22.510.17.1
NMAC – N, 3/9/2021]
22.510.17.2 SCOPE: The provisions of Part 17 apply to persons serving
indeterminate life sentences for crimes committed when under the age of 18 and
sentenced on or after July 1, 1979.
[22.510.17.2
NMAC – N, 3/9/2021]
22.510.17.3 STATUTORY AUTHORITY: Paragraph 8 of
Subsection B of Section 31-21-25 NMSA 1978.
[22.510.17.3 NMAC – N, 3/9/2021]
22.510.17.4 DURATION:
Permanent.
[22.510.17.4 NMAC – N, 3/9/2021]
22.510.17.5 EFFECTIVE DATE: March 9, 2021, unless a later date is cited
at the end of a section.
[22.510.17.5
NMAC – N, 3/9/2021]
22.510.17.6 OBJECTIVE: In accordance with the prohibition on cruel
and unusual punishment of the Eighth Amendment of the U.S. Constitution and
Article II, Section 13 of the New Mexico Constitution and the rehabilitative
purposes of the New Mexico Children’s Code, the parole board is responsible for
providing an inmate sentenced for offenses committed under the age of 18 with a
meaningful opportunity for release. Because of the unique constitutional
requirements announced in supreme court precedent, the parole board must treat
cases involving youthful offenders differently than those involving adult
offenders.
[22.510.17.6
NMAC – N, 3/9/2021]
22.510.17.7 DEFINITIONS:
A. “Aggravating
factor“--a circumstance or factor the parole board is permitted or required
to weigh against the grant of parole. See
also mitigating factor.
B. “Deadly weapon”– as defined in
Section 31-1-12 NMSA 1978, a deadly weapon means any firearm, whether loaded or
unloaded; or any weapon which is capable of producing death or great bodily
harm, including but not restricted to any types of daggers, brass knuckles,
switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all
such weapons with which dangerous cuts can be given, or with which dangerous
thrusts can be inflicted, including sword, canes, and any kind of sharp pointed
canes, also slingshots, slung shots, bludgeons; or any other weapons with which
dangerous wounds can be inflicted.
C. “Experts” – an
expert permitted to submit evidence in support of release under Subsection D of 22.510.17.8 is
limited to those psychologists, psychiatrists, social workers, and other
licensed professionals in adolescent brain development who have conducted an
individual evaluation of the inmate for purposes of parole review under the
provisions of this rule.
D. “Family member of
the victim” – as defined in Section 31-21-25 NMSA 1978, “family member of
the victim” is a mother, father, sister, brother, child or spouse of the victim
or a person who has custody of the victim.
E. “Habitual offender” – as defined in
Section 31-18-17 NMSA 1978, a habitual offender is a person convicted of a
noncapital felony in this state whether within the Criminal Code or the
Controlled Substances Act or not who has incurred one prior felony conviction
that was part of a separate transaction or occurrence or conditional discharge
under Section 31-20-13 NMSA 1978.
F. “Mitigating factor” – a circumstance or
factor the Parole Board is permitted or required to weigh in favor of the grant
of parole. See also aggravating factor.
[22.510.17.7
NMAC – N, 3/9/2021]
22.510.17.8 PRESENTATION AND CONSIDERATION OF YOUTHFUL CHARACTERISTICS:
The
parole board shall consider the following mitigating factors for inmates
sentenced for crimes committed before the age of 18:
A. The age and life
circumstances of the inmate as of the date of the commission of the crime(s),
including, but not limited to, diminished understanding of risks and
consequences, diminished ability to resist peer pressure, and diminished
ability to control surroundings;
(1) The
hallmark features of youth at the time of the commission of the crime(s),
including, but not limited to, diminished understanding of risks and
consequences, diminished ability to resist peer pressure, and diminished
ability to control surroundings;
(2) Whether
the inmate has demonstrated growth and increased maturity since the date of the
commission of the crime(s);
(3) The
inmate’s contributions to the welfare of other persons through service while
incarcerated;
(4) When
appropriate, the inmate’s efforts to overcome substance abuse, addiction, or
trauma;
(5) Lack
of education or obstacles that the inmate may have faced as an adolescent in
the adult correctional system;
(6) The
inmate’s opportunities for, or lack thereof, rehabilitation services in the
correctional system, including, but not limited to, mental health services,
counseling, educational programs, and vocational training; and
(7) The
overall degree of the inmate’s rehabilitation considering the inmate’s age and
life circumstances at the time of the crime, the nature and circumstances of
the inmate’s involvement in the crime(s), and the inmate’s opportunities for
rehabilitation while incarcerated.
B. An inmate shall
be allowed to present, and the parole board shall consider, evidence of the
inmate’s youthful characteristics prior to the crime(s) and during
incarceration in the form of paper, photographic, and electronic records,
expert reports, and written statements.
C. Individuals,
including, but not limited to, family members, friends, school and vocational
personnel, faith leaders, teachers, correctional officials, and representatives
from community-based organizations with knowledge about relevant evidence about
the inmate may submit statements to the parole board as mitigating evidence of
the inmate’s maturity and life circumstances prior to the crime and/or as
mitigating evidence of the inmate’s growth and maturity since the time of the
offense.
D. Experts in
adolescent development, brain science, trauma, mental and physical health, and
other relevant areas of expertise may present to the parole board on reports,
affidavits, or other written statements to the parole board submitted as
mitigating evidence. To qualify for consideration by the parole board, expert
reports must address the inmate’s particular circumstances and be based on an
individual evaluation of the inmate.
E. Institutional
infractions received prior to age 25 shall not be weighed against the inmate
when determining whether to grant or deny parole.
[22.510.17.8
NMAC – N, 3/9/2021]
22.510.17.9 GRANT OF PAROLE AND INCORPORATION OF SECTION 31-21-10 NMSA
1978:
A. Where credible
evidence of rehabilitation, growth, and maturity is present, a presumption of
fitness for parole shall be applied. In applying this presumption, the parole
board shall abide by the statutory requirements under Section 31-21-10 NMSA
1978, for granting parole of an inmate sentenced to life imprisonment. In
accordance with Section 31-21-10 NMSA 1978, before granting parole, the parole
board shall also consider:
(1) The
circumstances of the offense;
(2) Mitigating
and aggravating circumstances;
(3) Whether
a deadly weapon was used in the commission of the offense;
(4) Whether
the inmate is a habitual offender;
(5) The
reports filed under Section 31-21-9 NMSA 1978; and
(6) The
reports of such physical and mental examinations as have been made while in an
institution.
B. In accordance
with Section 31-21-10 NMSA 1978, in support of a grant of parole, the parole board
shall also:
(1) Make
a finding that parole is in the best interest of society and the inmate; and
(2) Make a finding that the inmate is
able and willing to fulfill the obligations of a law-abiding citizen.
[22.510.17.9
NMAC – N, 3/9/2021]
22.510.17.10 RIGHTS OF CRIME VICTIMS AND INCORPORATION OF SECTION 31-21-25
NMSA 1978: The parole board shall allow the victim of
the offender's crime or a family member of the victim to be present during the
parole hearing. If the victim or a family member of the victim requests an
opportunity to speak to the parole board during the hearing in public or
private, the parole board shall grant the request.
[22.510.17.10
NMAC – N, 3/9/2021]
22.510.17.11 DENIAL OF PAROLE:
A. Where credible
evidence of rehabilitation, growth, and maturity is present, a presumption of
fitness for parole shall be applied. The focus of the parole board’s
determination should be on the credible evidence provided by the inmate
demonstrating rehabilitation, growth, and maturity. Denial of parole is
permitted if the parole board determines there is insufficient evidence of
rehabilitation, growth, and maturity. The parole board shall articulate the
basis of its decision in writing if release is denied. The written denial shall
include, but is not limited to:
(1) The
specific reason(s) why release is not in the best interest of society and the
inmate; and
(2) An
analysis of the characteristics of youth as outlined in 22.510.17.8.
B. In accordance
with Subsection A of Section 31-21-10 NMSA 1978, if release is denied, the
inmate shall be eligible for a subsequent parole review after two years from
the date of the most recent denial.
[22.510.17.11
NMAC – N, 3/9/2021]
22.510.17.12 LEGAL COUNSEL AND DEFENSE PROFESSIONALS:
A. Inmates
appearing before the parole board sentenced to indeterminate life for an
offense or offenses committed under the age of 18 shall have the right to
retain counsel for representation before the parole board. Counsel shall be permitted to participate in the hearing,
argue the application of the provisions of this rule in the case of their
client, and submit to the members of the parole board memorandum of this
proposed application and supporting evidence.
B. The
parole board shall have the right to have legal counsel of its own present at
the hearing.
C. Social
workers and other defense professionals also engaged in the representation of
the inmate before the parole board shall be permitted to submit reports,
affidavits, or other written or testamentary statements to the parole board as
mitigating evidence.
[22.510.17.12 NMAC – N, 3/9/2021]
22.510.17.13 NOTICE:
A. Inmates will be
provided a minimum of 30 days’ notice of the date and time of their hearing
under this rule.
B. Inmates will be
informed of the parole board’s decision within 30 days from the date of the
hearing.
[22.510.17.13
NMAC – N, 3/9/2021]
22.510.17.14 PRESERVATION OF RECORD:
Parole hearings will be tape recorded and kept by the parole board. A
recording of the hearing will be made available to anyone upon written request
to the parole board and sent within 14 days of the request.
[22.510.17.14
NMAC – N, 3/9/2021]
History
of 22.510.17 NMAC: [RESERVED]