TEEN CURFEWS:

Legal and Practical Problems

Changing the NM Children’s Code will not clear the way for teen curfews

In A.C.L.U. of New Mexico v. City of Albuquerque, 1999-NMSC-044, 128 N.M. 315, 992 P.2d 866, the New Mexico Supreme Court struck down Albuquerque’s teen curfew ordinance based on provisions in the Children’s Code, but never ruled on the constitutional claims. There is good reason to believe that a strictly constitutional challenge to a state curfew law would succeed, given that teen curfew laws recently have been struck down on constitutional grounds in Washington state, Connecticut, New Jersey, Indiana (Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004)).

In her special concurrence to the New Mexico Supreme Court’s decision in A.C.L.U. of New Mexico v. City of Albuquerque, Justice Petra Maes advocated “an alternative approach to that taken in the majority opinion. That is, [she] would address the issue on constitutional grounds.” Id., 1999-NMSC-044, 128 N.M. 315, 992 P.2d 866.

Curfew laws interfere with parental rights

A long line of cases has established the view of the courts that “child-rearing is the role of parents, not impersonal political institutions.” Assessing the Scope of Minors Fundamental Rights: Curfews and the Constitution, 97 Harvard L. Rev. 1163, 1178 (March 1984). Based on their encroachment on parental rights, teen curfew laws were overturned in New Jersey (Betancourt v. Township of West New York, 769 A.2d 1065 (N.J. Super.App.Div. 2001)), and Indiana (Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004)).

Curfew laws violate both the 1st and 4th Amendments

The proposed curfew bills place the burden on minors to prove that their presence in the public domain is justified under one of the “Exceptions” listed in Section 5. Police officers are given discretionary power to cite minors without establishing probable cause that minors are actually in violation of the law.

In Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) the Seventh Circuit overturned Indiana’s curfew law partly on these grounds observing, “If a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking first-hand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer.”

Curfew Laws are ineffective in reducing crime

Most juvenile crime occurs during non-curfew hours, peaking between 2:00 p.m. and 6:00 p.m. Albuquerque Police Department statistics show for the period 1991-1994 that less than 25 percent of juvenile crime takes place during the proposed curfew hours. A study in Verona, Connecticut showed that only 7 of 410 youth cited for curfew violations from 1995 to1998 were actually committing crimes.

ABQjournal: Bill To Abolish Death Penalty Heads to House
By Deborah Baker
The Associated Press

SANTA FE— A bill to abolish the death penalty in New Mexico flew through a committee Wednesday and headed to the House floor for a vote.

The measure (HB 576), which replaces capital punishment with a sentence of life in prison without parole, passed the House Judiciary Committee on a 6-3 vote.

It’s the first time the full House will vote on a death penalty repeal since opponents geared up about eight years ago to try to overturn the law. Similar repeal bills have reached the Senate floor a couple of times but failed— most recently in 2001 by one vote.

House Judiciary Committee members voting for the bill were Reps. Gail Beam, D-Albuquerque, Mimi Stewart, D-Albuquerque, Tom Swisstack, D-Rio Rancho, Al Park, D-Albuquerque, Hector Balderas, D-Wagon Mound, and Teresa Zanetti, R-Albuquerque.

Voting against it were Chairman Joseph Cervantes, D-Las Cruces, and Reps. Terry Marquardt, R-Alamogordo, and Gloria Vaughn, R-Alamogordo.

There are two men on New Mexico sentenced to death, and the repeal— if it were enacted into law— would not affect their sentences.

The Judiciary Committee passed the bill with no debate, following a long public hearing at which it heard testimony on both sides of the issue from murder victims’ families and their advocates.

Pat Songer of Albuquerque said her son was murdered in Florida in 1983 and his killer is still awaiting execution in that state.

“This knowledge has brought us neither healing nor closure,” she said.

If and when the execution is carried out, “his death will not ease our pain, nor will it honor our son,” she added.

“Revenge is an emotional response, not justice. The taking of a life by anyone … is murder; it is not justice,” said Leah Popp, whose niece was murdered near Santa Fe in 1997.

But Patty March of Albuquerque, who works with New Mexico Survivors of Homicide, said she attended the execution of Terry Clark in 2001 with the mother of Clark’s victim, 9-year-old Dena Lynn Gore, and with a young woman whom Clark had been convicted of raping when she was a child.

“I know firsthand from the families they have a great relief,” said March, whose son was murdered in 1995.

Clark’s execution by injection was the first in New Mexico since 1960.

Another opponent, Donna McNevin, said a repeal would amount to “a green light to continue to murder.”

McNevin’s father, Estevan Vigil, was killed in 1988 by his wife, Janet Vigil, whose life sentence— 30 years— was commuted by Gov. Bill Richardson in December after she had spent 15 years in prison.

The governor “chose politics over justice,” McNevin said. “Life does not mean life. There are too many loopholes.”

But Rep. Beam, the sponsor of the repeal legislation, countered that her bill would ensure that murderers would spend the rest of their lives in prison with no possibility of parole.

“We can make our communities safer by locking people up for the rest of their natural lives,” Beam told the committee.

“We cannot make mistakes if we’re going to kill people,” said Albuquerque lawyer Randi McGinn. And yet, she added, “the system isn’t perfect.”

So lawmakers must decide either to accept that innocent people will be killed or to abolish capital punishment, she argued.

Beam and other repeal supporters argue that the money New Mexico spends on the death penalty— which they estimate could be as much as $2.5 million annually— should be spent instead on services for the families of murder victims.
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UPDATE Tuesday, March 1, 2005
ABQjournal: House Approves End of Death Penalty by Kate Nash, Journal Capitol Bureau

SANTA FE – A measure to abolish New Mexico’s death penalty is headed to the Senate after the House on Monday voted 38-31 to repeal capital punishment.

The measure, sponsored by Rep. Gail Beam, D-Albuquerque, would replace the death penalty with life in prison without the possibility of parole.

Beam and other supporters now turn their focus to winning support from senators and Gov. Bill Richardson.

Here is the 38-31 vote by which the House approved a measure Monday to abolish the death penalty.

Voting yes were five Republicans and 33 Democrats. Voting no were 23 Republicans and eight Democrats. Not voting or excused was one Democrat.
(more…)

ABQjournal: Committee OKs Same-Sex Marriage Ban By David Miles, Journal Capitol Bureau

SANTA FE— A Senate committee on Tuesday approved a bill defining marriage as being between a man and a woman while also endorsing one that would extend the same legal rights that spouses have to domestic partners.

The marriage measure (SB 597), which would appear to provide a legal barrier against same-sex marriages, cleared the Senate Public Affairs Committee on a 6-2 vote.

The domestic partner bill (SB 576) was endorsed by the same committee on a 5-4 vote.

Both measures head to the Senate Judiciary Committee.

A House bill (HB 445) defining marriage as being between a man and a woman was tabled last week by the House Consumer and Public Affairs Committee.

Clergy members testified on both sides of the Senate version of the marriage measure on Tuesday.

Michael Naranjo, senior pastor of Rock Christian Fellowship in Española, said he supported defining marriage as a contract between a man and a woman, saying marriage is a “fundamentally American value.”

Rabbi Marvin Schwab of Temple Beth Shalom in Santa Fe said his congregation voted for a resolution opposing legislation defining marriage as only between a man and a woman.

Schwab said he and his wife do not feel threatened by the notion of same-sex marriages.

“We do not feel that our marriage is under attack and therefore needs defending,” Schwab said.

Same-sex marriages were put in the spotlight in New Mexico last February, when then-Sandoval County Clerk Victoria Dunlap issued more than 60 marriage licenses to same-sex couples. Attorney General Patricia Madrid later declared the licenses invalid.

Sen. William Sharer, a Farmington Republican who sponsored the measure, said the issuance of marriage licenses to same-sex couples last year caused confusion about the matter. “This simply attempts to clarify the issue,” he said.
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Track SB597
MARRIAGE DEFINED
Sponsor: William E. Sharer
Current Location: Senate Public Affairs Committee

Track SB576
DOMESTIC PARTNER RIGHTS & RESPONSIBILITY ACT
Sponsor: Cisco McSorley
Current Location: Senate Public Affairs Committee

Track HB445
MARRIAGE DEFINED
Sponsor: Gloria C. Vaughn
Current Location: House Consumer & Public Affairs

ABQjournal: Youths Want Curfew Legislation Put to Bed
By Martin Salazar, Journal Staff Writer

Highland High School student Kirbie Platero doesn’t think police should have the right to stop her just because she’s out late.

She and about four dozen other youths showed up at the Capitol last weekend to rally against legislation that could lead to youth curfews throughout the state.

“I don’t want to be one of those being harassed just because I’m young looking and out past 11,” said Platero, a 15-year-old Albuquerque resident.

At issue are two pieces of legislation— HB 471 and SB 645— that would give municipalities and counties the authority to impose curfews between midnight and 5 a.m. for those younger than 16. Both bills are pending in committees.

State Rep. Al Park, D-Albuquerque, introduced the curfew legislation in the House.

“No good can come from kids being out at 2 a.m.,” Park said during a phone interview. He said young people often feel invincible.

“There’s a lot of dangers out there, and I think we need to make sure we protect our children,” he added.

Albuquerque Mayor Martin Chávez has been pushing for a curfew for years.

He ran for office in 2001 pledging to seek one for youngsters. A curfew was approved in 1994 when he was previously mayor, but it was thrown out in court on the grounds that it conflicted with state law governing juveniles.

Chávez recently said he’s optimistic the current session of the Legislature will change state law to clear the way for a curfew. A city ordinance in Albuquerque will follow, he said.

Saturday’s protest was sponsored by the SouthWest Organizing Project Youth Rights Campaign.

Karlos Schmieder, the group’s communications organizer, said that while he understands the impulse to protect young people, the curfew isn’t the way to do it.

Among the problems with such a law, he said, is it often leads to racial profiling. The Florida Supreme Court, he said, struck down two curfews because Latino youths were being pulled over disproportionately.

“It’s really hard to tell how old people are,” he said.

Jonathan Ramirez, a 13-year-old Albuquerque resident, said parents— not lawmakers— should make the call on their children’s curfew.

Alan Garcia said he thinks the legislation is a good idea.

“It keeps them out of trouble,” said the 19-year-old Albuquerque resident.

The proposed legislation, called the Curfew Enforcement Act, outlines four exceptions for any local government curfews that are adopted. Curfew penalties wouldn’t apply to:

• Young people who are involved in activities authorized by a school or religious or community organizations;
• Those out late because of work;
• Youths who have parental permission;
• Those who are out because of an emergency.

Journal Staff Writer Jim Ludwick contributed to this report.
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Track
HB471
CURFEW ENFORCEMENT ACT
Sponsor: Al Park
Current Location: House Government & Urban Affairs

Track SB645
CURFEW ENFORCEMENT ACT
Sponsor: William H. Payne
Current Location: Senate Public Affairs Committee

Policy #239

The Death Penalty

The ACLU opposes the death penalty because it denies equal protection of the laws, is cruel and unusual punishment, and removes guarantees of due process of law. The death penalty is so inconsistent with the underlying values of our democratic system – the pursuit of life, liberty, and happiness – that the imposition of the death penalty for any crime is a denial of civil liberties. The Union believes that past court decisions to the contrary are in error, and will seek the repeal of existing laws imposing the death penalty and reversal of convictions carrying a sentence of death.

The existence of the death penalty for crimes results in discrimination against the poor, the uneducated, and members of minority communities. Its imposition as the result of racial bias is easily demonstrated by the statistics on executions from 1930 to the present.1 The greater likelihood of its imposition upon the poor is demonstrated by unimpeachable statistical analysis and arises among other things from the obvious fact that the financially able accused of a crime may employ legal counsel and compensate them fully for the extensive efforts necessary to pursue the many remedies available to those under penalty of death. But the poor, although they too have the right to counsel, have only that counsel which is volunteered, or which is compensated by the state. It is unrealistic to believe that such counsel, while dedicated, can give the kind, range, and detail of service given by counsel compensated at the usual rate paid our most competent lawyers.

Thus, in the case of the death penalty, the punishment does not fit the crime. It is, in fact, a constitutionally prohibited denial of equal protection of the law because it results – regardless of the written provisions of statutes permitting it – in imposition of the death penalty almost exclusively upon society’s most disadvantaged members.

The Union also believes that contemporary ideas of the significance of human life make imposition of the death penalty cruel and unusual punishment, which is prohibited by the Constitution. To retain the theory that the death penalty is not cruel is to ignore the persistence of individual and collective conscience which says that death imposed by the force of the state is the ultimate cruelty upon the person whose life is taken. General public abhorrence of the death penalty is revealed by the prohibition or narrow limitation of capital punishment in statutes, and by the frequent reversal of guilty verdicts for technical errors which to laymen and lawyers both seem simply to reflect the courts’ apprehension that to permit the judgment to stand would result in the ending of a life.

The irreversibility of the death penalty means that error discovered after the penalty has been imposed cannot be corrected. One who suffers the death penalty, and subsequently is found to have been improperly convicted, has been denied due process of law. Moreover, because jury panels in capital cases are selected partly on the basis of a belief in the death penalty, the state is protected against a jury biased against capital punishment, but the defendant is not protected against a jury biased in favor of it. So too does the existence of the death penalty have a deleterious effect on the administration of justice. The incentive of a capital conviction acts as a spur to the use of unfair or even lawless methods by police and prosecutors, to which is added blatant and emotional coverage by the mass media, all combining to make a fair trial impossible. [Board Minutes, October 2-3, 1976, April 4, 1965; News Release, June 21, 1965.]

The following resolution was proposed by the 1985 Biennial Conference. Because the specific funding recommendation had been approved separately as part of the ACLU’s 1986 budget, and because, according to the ACLU Bylaws and New York non-profit corporation law, only the Board can approve expenditures, the Board did not formally act on the Biennial proposal. However, it authorized placement of the Biennial text in the Policy Guide. This resolution states:

We currently face a crisis in the representation of death-sentenced inmates, particularly in the Southern states. There are over 1,500 persons currently on death row, more than half in the South. 200-250 persons are being added to death row each year. 44 executions have occurred under post-Forman statutes, and the pace is rapidly accelerating.

ACLU policy on capital punishment vigorously opposes the death penalty because it denies equal protection of the law, is cruel and unusual punishment and because its application is inconsistent with fundamental guarantees of due process of law. Our policy further recognizes that the death penalty is disproportionately inflicted on the poor and minorities.

As the policy recognizes, one of the fundamental problems with imposition of the death penalty is that affluent persons accused or convicted of a capital offense may employ legal counsel and compensate them fully to pursue all available legal remedies, including post-conviction remedies. The poor, on the other hand, must rely on court-appointed counsel to represent them at trial and on direct appeal. Yet in all but a handful of Southern states, no provision is made for providing counsel to death sentenced inmates after the mandatory direct appeal. Inmates in most Southern states must rely on volunteer counsel to prosecute their constitutional and statutory rights, or forgo those rights. The number of volunteer attorneys within these Southern states is fast becoming exhausted.

In order to effectuate the principles of this policy, the ACLU must continue its commitment to ensure that all death sentenced inmates are adequately represented. Creative strategies are necessary, such as convincing State Bar Associations, State Supreme Courts and law schools of their responsibilities and persuading such groups to establish programs to provide representation to death sentenced persons. Until adequate programs to provide representation to death sentenced persons are established, the ACLU must expand its currently limited efforts to recruit volunteer attorneys.

In order to effectuate the principles embodied in this policy, the ACLU should provide salaried staff attorneys in regional back-up centers to recruit volunteer attorneys, provide technical assistance and advice, monitor the cases and case law, and provide logistical support such as the provision of case records and decisions by appellate courts. In addition to providing back-up assistance to volunteer attorneys, such a program of volunteer representation will serve as a focal point and catalyst in creating long term institutional approaches to the provision of counsel to death sentenced persons.

It is therefore resolved that the national ACLU commit itself to ensuring adequate post-conviction representation for death sentenced inmates by:

1) establishing two death penalty litigation back-up centers, one located in the 11th Circuit states, and another in the 5th circuit. The national ACLU shall commit minimum funding of $45,000 annually to each of these centers for two years beginning September 1, 1985. Both centers will be available to assist with attorney recruitment and technical support for death penalty representation outside those circuits;

2) strongly urging all affiliates to assist in the recruitment of cooperating attorneys to handle the death penalty cases in the crisis areas;

3) affirming its commitment to opposing the death penalty through sufficient funding of the Capital Punishment Project to support lobbying projects against reinstatement and expansion of the death penalty and to engage in vigorous public education efforts around the country;

4) the national ACLU and its affiliates shall work toward enactment of legislation in their respective states to insure qualified counsel are appointed to represent capital sentenced defendants. [Board Minutes, January 25-26, 1986]

The continuing number of persons being sentenced to death and the ever increasing number of persons being executed, particularly in the South, demand a continuing and forceful ACLU role in death penalty issues. Therefore, the Biennial Conference urges the National Board to maintain adequate and continuing funding for the Fifth and Eleventh Circuit Capital Punishment Litigation Projects and to reaffirm the Union’s national efforts in opposition to the death penalty in the post-McClesky era. [Board Minutes, October 17-18, 1987.]

1. Of the 3,859 persons executed for all crimes since 1930, 54.6% have been black or members of other racial minority groups. Of the 455 executed for rape alone, 89.5% have been non-white. As census data clearly reveal, blacks in American society have consistently represented approximately 10% of the United States population. (Source: Bureau of Prisons, National Prisoner Statistics, Bulletin No. 45, Capital Punishment 1930-68, August 1969.) Of the 392 persons on death row on August 1, 1977, 50.8% were non-white, continuing the classic pattern of racially discriminatory imposition of the death penalty. (Source: Deathrow Census, August 1, 1977, National Coalition Against the Death Penalty.)

ABQjournal: Same-Sex Marriage Bill Has Strong Support in Senate By Kate Nash, Journal Capitol Bureau
SANTA FE – With one of two so-called Defense of Marriage bills voted down by a House committee this week, Equality New Mexico lobbyist Linda Siegle is optimistic that efforts to define marriage as between a man and a woman won’t become law this session.

“We’re really pleased to see that many legislators don’t want to codify discrimination,” she said after the House Consumer and Public Affairs Committee on Tuesday tabled a measure to outlaw same-sex marriage sponsored by Rep. Gloria Vaughn, R-Alamogordo.

But members of the Senate seem warmer to the idea, and 28 of 42 senators have signed onto another bill that would prohibit same-sex marriages.

“I think it will make it through the Senate,” said Sen. William Sharer, a Farmington Republican who is sponsoring the measure, SB 597.

“Whether or not it will make it through the House, I don’t know,” he said.

As of Friday, a committee hearing had not been set for Sharer’s measure. The bill has been referred to the Senate Public Affairs Committee and the Senate Judiciary Committee. There is about a month left in this 60-day session.

Under Sharer’s one-page bill: “Marriage is contemplated by the law as a civil contract between a man and a woman for which the consent of the contracting parties capable in law of contracting, is essential.”

Bill supporters say the state needs to be clear that marriage should be between two people of the opposite sex. Opponents, who rallied 200 strong this week in the Rotunda against the measure, call it mean-spirited and discriminatory.

Other marriage-related bills have been introduced this session by Republicans, including measures to require pre-divorce counseling and to fund more marriage and relationship classes. Supporters who held a press conference on those bills earlier this week were quickly surrounded by gay- and lesbian-rights advocates.

A 2004 Journal poll showed that 62 percent of registered voters surveyed would oppose a state law allowing same-sex marriage. Meanwhile, 49 percent said they would oppose a state law allowing same-sex civil unions.

Gov. Bill Richardson generally supports same-sex civil unions but opposes gay marriage. Civil unions allow same-sex partners many of the same benefits, rights and protections available to married couples.

Richardson voted for a federal Defense of Marriage Act when he was a congressman. A spokesman said this week he will consider any legislation that makes it to his desk.

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Track SB597
MARRIAGE DEFINED
Sponsor: William E. Sharer
Current Location: Senate Public Affairs Committee

See also ABQjournal: N.M. Gay Marriage Debate Continues

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ABQjournal: Use Death Penalty Appeals Money To Aid Families By Pat Songer, Albuquerque Resident

Imagine getting a call one day with the news of the murder of a beloved family member. Now imagine that the court system, the media and politicians in your community focus on how to treat the murderer while little attention is placed on helping your family cope with the harsh realities of losing a loved one.

Unfortunately, this is not an imaginary situation for murder victim family members here in New Mexico or around the country.

The day my son Jeffery was killed, the violence of it was overwhelming. I, and everyone around me— family, friends, and colleagues— were shocked. The experience was devastating.

In that moment, my family needed help to cope with the tragedy, trauma and loss. Later, we needed a little help to rebuild our lives. That’s why I believe that we should replace the death penalty in New Mexico with life without the possibility of parole, and use the millions of dollars the state would save to support and expand services for the families of victims.

Convicted murderers deserve the toughest of sentences and our communities require the best protection— murderers must never be allowed to kill again. But the death penalty isn’t the only, or best, way to do that.

Recent studies and stories make it clear that our capital punishment system is fundamentally flawed. A murderer does not receive the death penalty based solely on the heinous nature of the crime. Being sentenced to death more often depends on where you live, your race or ethnicity, if you can afford a private attorney, or whether a plea bargain for a lesser sentence can be negotiated.

Worse, more than 115 people have been released from death row, exonerated: that is about one out of every eight people actually executed.

Spending our precious state resources on such an error-prone system is poor public policy to say the least. Especially when the vast sums of money poured into death penalty cases can be better spent on services for murder victim family members and law enforcement.

And I say this as a Republican.

Families need help to heal, to cope with our loss, to manage reduced family income and to pay unplanned court and funeral expenses. We also require employment protections so that we can actively participate in court proceedings and other aspects of the criminal justice process.

The proposed Catastrophic Crime & Family Restitution Program would fund a model “homicide survivors program” that offers grief counseling, services for children, funeral assistance, crime scene cleanup and emergency funds; it would establish a Crime Victim’s Hotline; would enact a new Catastrophic Family Leave Act to grant unpaid leave for victims’ families when they must take time from work to attend court; would establish tuition waivers for the children of murder victims at state colleges; and would replace the death penalty with true life without parole.

Today, my son’s murderer sits on Florida’s death row awaiting an execution I oppose. More killing is not what I want surrounding Jeffery at the end of his story. We must choose hope, and the future, not death. New Mexico can, and should, lead the country by example. It is time to focus on the survivors and not the killers. As one who knows the pain of murder, I believe we must replace the death penalty with life without parole.

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Track SB136
CRIME VICTIMS REPARATIONS FOR HOMICIDE
Sponsor: H. Diane Snyder
Current Location: Senate Finance Committee

Track HB358
CRIME VICTIMS REPARATIONS FOR HOMICIDE
Sponsor: Al Park
Current Location: House Judiciary Committee

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ABQjournal: Medical Marijuana Bill Clears Senate Committee By Deborah Baker, The Associated Press

SANTA FE— A Senate committee on Friday unanimously endorsed a measure to allow the medical use of marijuana under a program run by the Department of Health.

The Public Affairs Committee heeded the pleas of people with cancer, AIDS and other illnesses to approve the legislation.

“If this bill gets passed, it will be a blessing to so many of us,” said Essie DeBonet of Albuquerque, who suffers chronic nausea from her AIDS medications.

The bill would have to clear the Judiciary Committee before it reached the full Senate for a vote.

The Health Department would license producers to provide the marijuana, which would be grown in secure facilities. Patients whose doctors recommended it would apply to the department and, if approved by a review board of doctors, be registered to possess the drug.

It would be restricted to patients with cancer, glaucoma, multiple sclerosis, certain spinal cord injuries, epilepsy and HIV-AIDS.

The bill’s sponsor, Senate Judiciary Chairman Cisco McSorley, D-Albuquerque, said marijuana can help some seriously ill patients keep food down and, therefore, gain strength.

“In effect, this gives some people one last chance,” he told the committee.

Fred MacDonald, a disabled U.S. Navy veteran with spinal cord injuries and multiple sclerosis, said he splits his time between Seattle and Albuquerque, where he has family.

Washington is one of 10 states that allows the use of marijuana as a medicine, and he has a doctor’s recommendation for a powdered form of the drug that he takes in tea.

“If I come (to Albuquerque) to spend the holidays with my family, I run the chance of being arrested,” he said.

Prodded by former Gov. Gary Johnson, a Republican who supported drug law changes, the Legislature has considered medical marijuana before, but it has never passed both houses.

The state had a medical marijuana program more than 25 years ago that was linked to a research project, but it eventually lost its funding.

The medical marijuana bill is Senate Bill 795.

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Track SB795
LYNN PIERSON COMPASSIONATE USE ACT
Sponsor: Cisco McSorley
Current Location: Senate Public Affairs Committee

Clovis News Journal: Serving Eastern New Mexico and West Texas
Battle brewing over devilish stickers
By Mike Linn: CNJ news editor
mike_linn@link.freedom.com

Stickers on a Clovis man’s car portray cartoon images of bare-breasted female devils in sexually compromising positions. And the images have caught the attention of Clovis police.

Officials have charged 31-year-old Dean Young, the owner of a yellow Ford Focus displaying the images, with distribution of sexually oriented materials to minors. The charge is a misdemeanor carrying a maximum punishment of 364 days in jail and $1,000 fine. Young is scheduled to appear in magistrate court on the charges in the next few weeks.

Young in turn has notified the American Civil Liberties Union, which is considering representing Young; an ACLU spokesman said Young’s First Amendment rights may have been violated.

Officials at the ACLU said they’ve never seen the stickers — one on each side of the car near the rear window, each about 4 by 6 inches wide — but based on the police report said they doubt the stickers violate the law.

“I’ve never heard of anyone getting a ticket for a sticker on a car,” said Peter Simonson, executive director of the ACLU of New Mexico. “Unless the stickers are directly and immediately inciting people to violence — that’s the only way the Supreme Court has said that free speech can be somehow limited.”
(more…)

Richardson’s Election Package Includes Voter ID
By Deborah Baker
The Associated Press

SANTA FE— With the legislative session half over, Democratic Gov. Bill Richardson has proposed a package of election changes that includes a requirement for voters to present some identification.

Republicans who have pushed voter ID for several years welcomed his endorsement of the concept but criticized his plan as too weak. The governor announced his election initiatives on Wednesday, flanked by the attorney general and secretary of state, who helped him develop them.

House Voters and Elections Chairman Edward Sandoval, D-Albuquerque, said the bill was “basically a template” that may be altered or combined with other proposals from lawmakers.

Richardson said his proposals “will make New Mexico’s election process more accurate and timely, will make voting more user-friendly, and will restore the public’s confidence in the results.”

A voter would have to verbally give election officials a name, the last four digits of a Social Security number and a birth year, or else show documentation that could include a photo ID, utility bills, government checks or paychecks or tribal ID.

“The voter ID proposal is nothing more than a wink and a nod. It’s not substantive; we need to do a lot of work on it in committee,” said Rep. Justine Fox-Young, R-Albuquerque.

The bill requires voting machines by the end of 2006 to have “a verifiable and auditable paper trail"— a record that election officials could use to check the veracity of a machine count.

That could mean using paper ballots that are fed into scanning machines, or it could mean retrofitting electronic voting machines— including touch-screen machines— with some sort of digital devices.

Secretary of State Rebecca Vigil-Giron said about 1,100 voting machines in the state must be replaced anyway because they don’t meet federal standards enacted in 2002.

Other election reforms— such as same-day registration and greater uniformity in voting machines— will be studied after the session by an interim committee headed by House Speaker Ben Lujan, D-Santa Fe.

Attorney General Patricia Madrid urged that task force to study ways to prevent absentee ballot fraud, an area she said wasn’t addressed in the legislation presented Wednesday.

Other provisions in the bill:

• County clerks could begin feeding paper absentee ballots into electronic voting systems to tabulate the votes five days before the election, although the count wouldn’t be done until 7 p.m. on election day.

• Voters could drop off their absentee ballots at polling places on election day or vote at the polling places if their absentees were unused.

• Groups that collect absentee ballot applications would have to turn them over to county clerks within 24 hours or on the next business day.

• The secretary of state would issue rules for the handling of provisional ballots, and discrepancies in middle initials, suffixes and addresses would not necessarily disqualify them.

Photos from a few recent events (Thanks to OSSY).

Flickr: Photos from ACLU-NM (all 40 photos)

Patriots fundraiser (8 photos)

2004 awards dinner (14 photos)

Albuquerque Chapter formation meeting (8 photos)

There will be two showings in Albuquerque of the film “Unconstitutional: the War on Our Civil Liberties” on the evening of Thursday February 17th.

7pm 2/17 “Unconstitutional” at the Albuquerque Center for Peace and Justice, 202 Harvard SE (at Silver). Part of the “People Before Profit” film series. For more info, call 268-9557. [There will be 2 public speakers at the Peace & Justice film showing. One will talk about the lawsuit involving the anti-war protesters and Joyce Briscoe will give a legislative update.]

8pm 2/17 “Unconstitutional” at the UNM SUB Ballroom. For more info, call 231-4893 or email aclu@unm.edu. – Beth Kaimowitz

ABQjournal: Measure Would Ease Up on Illegal Immigrants
By Deborah Baker
The Associated Press

SANTA FE— Illegal immigrants in many communities are afraid to go the police for fear of being deported, say supporters of legislation aimed at turning that around.

“If we have people living next door to us who can’t go to the police, it puts all of us in danger,” said Diane Wood, a lobbyist for the American Civil Liberties Union.

The Senate on a 21-20 vote on Wednesday endorsed an ACLU-backed bill that bars state and local police from enforcing federal immigration laws.

It prohibits the use of police personnel or resources on people whose only crimes are immigration violations.

Critics of the bill— which was opposed by all the Senate’s Republicans and two Democrats— said it made no sense to hamper law enforcement in a post-9/11 world.

Noting that illegal immigrants can obtain driver’s licenses in New Mexico, Sen. Rod Adair, R-Roswell, contended that the latest proposed change would “permanently set ourselves up as a rogue state haven for those whose only goal is to hurt our people.”

“I think it’s very bad public policy and a very dangerous precedent to set,” agreed Sen. William Payne, R-Albuquerque.

The bill’s supporters said the goal of the bill, which went to the House, is to make immigrants— many of whom live in households where there are both documented and undocumented people— more willing to turn to police for help, to report crimes and to be witnesses in criminal cases.

“We want them to feel like they’re not going to be deported, or that police are not going to ask them about their immigration status,” said Marcela Diaz, executive director of Somos Un Pueblo Unido, an immigrant advocacy organization in Santa Fe.

Albuquerque and Santa Fe have passed similar ordinances.

The bill’s sponsor, Sen. Richard Martinez, D-Española, said New Mexico’s under-funded, understaffed law enforcement agencies shouldn’t have to divert their resources to immigration issues.

There already are plenty of laws— occupational safety laws, clean air laws and anti-discrimination laws, for example— that local police aren’t expected to enforce because they’re not trained or financed to do so, other supporters said.

“This is not a terrorist bill. It’s a bill about human rights, treating people like human beings,” Martinez said.

The police-immigrant bill is SB103.
—–
Track SB103
LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
Sponsor: Richard C. Martinez
Current Location: House Intro

Where Are We Now in the Legislature?

ACLU-NM is supporting dozens of different civil liberties issues in the state legislature. We are also actively opposing many bills

Some of the issues we support that are currently in the forefront include

 No state funding for local and state law enforcement agencies to enforce federal immigrant laws (SB103). This bill, sponsored by Senator Richard C. Martinez, passed the Senate floor on a 21-20 vote.

ACLU is one partner in a coalition of groups (e.g. ENLACE, Somos un Pueblo Unido) who oppose using state and local authorities to enforce federal immigration. There is no additional funding or training for local law enforcement to take on these additional responsibilities. Because they are not trained in the different levels of residency status, the risk of racial pro-filing increases. Immigrant communities are reluctant to come forward as witnesses or as victims of crimes if they fear members of their families may be reported to INS.

The Espanola and Santa Fe city sheriffs and the president of the State Fraternal Order of Police testified for this bill, as well as the prosecuting attorneys association and the NM Criminal Defense Lawyers Association and the Archdiocese of Santa Fe and City Councilor Eric Griego.

RFID (Radio Frequency Identification Devices) (HB 215) would protect consumers’ privacy by requiring the removal of radio frequency identification tags on consumer goods at point of purchase. It will also require limits on business release of nonpublic personal information.

ACLU is again a partner in a coalition of groups supporting this bill.
Representative Mimi Stewart introduced this bill, and it has passed unanimously out of the House on Consumer and Public Affairs Committee.

Genetic Privacy (HB 183) would expand New Mexico’s Human Rights Act to ban discrimination based upon a person’s genetic code, preventing employers, housing, public accommodations and credit from discrimin-ation on the basis of genetic information.

This bill was introduced by Representative Danice Picraux and it also has passed unanimously out of the House on Consumer and Public Affairs Committee. Our privacy coalition is working on this, RFID and a Financial Privacy bill together.

The Domestic Partners Rights and Responsibilities Act (SB576)
will give same-sex couples who get a domestic partner license the same rights as married couples in New Mexico. Senator Cisco McSorley intro-duced this bill

ACLU supports this bill in partnership with Equality New Mexico.

To appreciate the differences between this bill and the Defense of Marriage Act (HB 445), introduced by Representative Gloria Vaughan, go to our Website, www.aclu-nm.org, and click on the Weblog in the right column. Click on Legislative Alert #7.

Financial Security Act (HB 364) sponsored by Representative Danice Picraux will strengthen data privacy laws in New Mexico by giving consumers more control over the sharing of their sensitive information by financial institutions.

Repeal of the Death Penalty (HB 576). Need we say more? This effort is one of three sponsored by Representative Gail Beam; the other two would address victim reparations, hotline assistance (HB 577) and family leave so that victims and their families can testify in court (HB 578).

So what are we actively opposing?

Random Drug Testing for Elected Public Officials (SB20) sponsored by Senator Komadina. Our issue with this bill is a lack of “probable cause”
for all public officials to be tested.

Defense of Marriage Act (HB445) See paragraph on marriage equality above.

Teen Curfew (HB 471), introduced by Representative Al Park, involves issues of due process, equal protection and, perhaps, even false imprisonment (if young people are detained).

Voter ID has been introduced in seven different bills which will probably be rolled one bill. Election and poll officials are not trained in meeting the discrepancies between a person’s name as it appears on the poll list and as it may appear on a driver’s license (e.g., middle name, married name).
This may lower the voting turn-out for people such as students whose addresses frequently change.

How can you help make a difference in ACLU-NM’s legislative work?
First you can memorize and call often the Roundhouse in Santa Fe: 1.505.986.4300 to remind your legislators to “do the right thing.”

Second, you can check our Weblog on our website for fact sheets and the latest information on legislative issues. Go to our web page at www.aclu-nm.org. Click on “Weblog” at the top of the far righthand column. A list of our legislative issues and background information will appear.

V.B. Price: Looking out for No. 1

Random drug testing, surveillance systems eroding our privacy
By V.B. Price / Tribune Columnist
February 7, 2005

Who’s looking out for you in the public realm these days? And how can you tell?

There’s a simple standard for judging. It has to do with money.

Public-interest organizations such as the American Civil Liberties Union and many consumer and environmental groups don’t make a dime looking out for your interests. They’re motivated by service in pursuit of the common good.

Does that sound idealistic? At the state Legislature this year, the ACLU isn’t flogging its products - it doesn’t have any. It’s keeping its eye on such miserable little evils as “radio frequency identification devices” that will soon be attached to virtually everything you buy.

It’s questioning the constitutionality of random drug testing of public officials. When your elected representatives become targets for obsessive anti-drug intrusions without probable cause, it can’t be too far down the line until you’re targeted too.

It’s supporting a genetic privacy act that won’t allow the wonders of genetic science to be corrupted into a screening device for employers and insurance companies that might use such information as a basis for genetic prejudice, barring you from jobs and health care.

The ACLU is supporting Albuquerque Democrat Rep. Mimi Stewart’s House Bill 215, which would protect consumers’ privacy by requiring removal of radio frequency identification devices when people leave stores. These devices are “an item-tagging technology with profound societal implications,” the ACLU-N.M. says. “Used improperly, RFID has the potential to jeopardize consumer privacy, reduce or eliminate purchasing anonymity and threaten civil liberties.”

The devices are microscopic computer chips with antennae that are attached to products. They are already being used in big discount-store warehouses. They’re great for inventorying. But they can, and probably would, be used to create what the device’s developers call a “pervasive global network” in which average people’s movements could be easily kept track of through the devices on the products they buy and be stored in databanks.

The ACLU thinks Senate Bill 20, which would create random, voluntary drug testing of public officials, is unconstitutional, permitting a high-tech drug search without probable cause. The voluntary nature of the tests is a smoke screen. Public officials “effectively would be forced to submit to testing under threat that their written reasons for refusing to take tests would be broadcast on a public Web site,” the ACLU argues.

House Bill 183, introduced by Rep. Danice Picraux, an Albuquerque Democrat, would prevent companies from discriminating against someone because of his or her genetic makeup, for health or other reasons. Imagine if health insurance companies could have access to your “genetic fingerprint” and disqualify you from coverage because you had a gene that predisposes you, but does not automatically cause you, to have a particular disease. They could reduce their risks to almost nothing, while increasing ours in unimaginably grim ways.

Who’s looking out for you? The people who are asking hard questions, not the folks with the hard sell.

ABQjournal: Same-Sex Marriage Debate Heats Up
By Andy Lenderman
Journal Politics Writer

SANTA FE— New Mexico lawmakers are grappling with the meaning of marriage.

Some want to define it as between a man and a woman. Others want to prohibit same-sex unions. Some would give same-sex couples the same rights under state law as married couples.

The propositions are coming as the same-sex marriage debate unfolds at the Capitol.

“It’s going to be a difficult issue,” said Juan Rios, spokesman for House Speaker Ben Lujan, D-Santa Fe.

Gov. Bill Richardson has expressed opposition to same-sex marriage. Lujan also opposes same-sex marriage, but supports civil unions, his spokesman said.

“Civil unions are something that can be considered in the course of the debate,” Rios said.

Two bills were introduced Tuesday, including SB 597, sponsored by Sen. Bill Sharer, R-Farmington.

“All it says is marriage is between a man and a woman,” Sharer said of his bill.

“The reason I think this is important is because we’ve recently become confused about marriage after several thousands of years of understanding what marriage was,” Sharer said, speaking at a news conference.

Twenty-nine other senators, including 10 Democrats, signed on to support Sharer’s bill.

“Marriage is contemplated by the law as a civil contract between a man and a woman for which the consent of the contracting parties, capable in law of contracting, is essential,” the bill says.

Sharer said he believes Richardson would sign the measure if it makes it to the governor’s desk.

A spokeswoman for the gay rights group Equality New Mexico says Sharer’s bill would prevent same-sex couples from getting married, which is already not allowed in New Mexico.

The Domestic Partners Rights and Responsibilities Act, SB 576, was introduced by Sen. Cisco McSorley, D-Albuquerque. It would give same-sex couples who get a domestic partner license the same rights as married couples in New Mexico, said a supporter, Linda Siegle of Equality New Mexico.

The domestic partner license would be issued by the county clerk and would allow same-sex couples to sign up for health insurance together, file joint tax returns and receive inheritance without a will, just like married couples, Siegle said.

Today, many large companies and state agencies offer benefits to same-sex couples, she said. But other employers do not. The new law would change that.

Siegle and the president of the Log Cabin Republicans in New Mexico said a third bill would jeopardize domestic partner benefits and legal contracts made between same-sex partners.

That measure, HB 445, was introduced by Rep. Gloria Vaughan, R-Alamogordo.
“I’m just defining what marriage is supposed to be,” Vaughan said. She said she didn’t think her bill would infringe on the rights of same sex-couples.

Her bill reads, in part: “… a marriage between persons of the same sex, or any right or claim arising from their relationship, shall not be valid, binding or enforceable in New Mexico … “

Richardson’s spokesman said the governor voted for the federal Defense of Marriage Act as a congressman, and is opposed to same-sex marriage.

“The governor hasn’t seen the bills introduced in the Legislature,” spokesman Gilbert Gallegos said. “He will review them if they pass.”

The same-sex marriage debate grew last year when then-Sandoval County Clerk Victoria Dunlap issued more than 60 marriage licenses to same-sex couples.

Attorney General Patricia Madrid, saying the licenses weren’t legal under New Mexico law, sued and prevented Dunlap from issuing more.

Copyright 2005 Albuquerque Journal
—–
Track SB597
DEFINITION OF MARRIAGE
Sponsor: William E. Sharer
Current Location: Senate Public Affairs Committee

Track SB576
DOMESTIC PARTNER RIGHTS & RESPONSIBILITY ACT
Sponsor: Cisco McSorley
Current Location: Senate Public Affairs Committee

Track HB445
MARRIAGE DEFINED
Sponsor: Gloria C. Vaughn
Current Location: House Consumer & Public Affairs

ABQjournal: 3 Students Returning to Mexico
By Debra Dominguez
Journal Staff Writer

EL PASO— One hundred and twenty days.

That’s how long Ruben Tarango, 17,, and brothers Sergio Gonzalez, 17, and Carlos Gonzalez, 16, can remain in the United States.

The three Del Norte High School students, who were detained by the U.S. Border Patrol outside their high school in late March, told El Paso immigration Judge Gary Burkholder in El Paso Immigration Court on Tuesday they were ready to voluntarily leave the country and waive their right to appeal.

“We’re glad we can at least try to finish the school year,” said Tarango. “I am so nervous about going back to Mexico, though, especially because I don’t have any family there.

“I don’t even remember what Mexico was like— I don’t really have any memories of it,” said Tarango, who was illegally brought to the United States by his parents when he was about 7. “I like playing Xbox games and am into sports, especially boxing and the Philadelphia Eagles. I’m as American as any other teenage boy in the United States.”

The boys’ attorney, Victor Salas, said the students’ undocumented parents— who were not with the boys when they were detained and aren’t facing any legal action— signed a voluntary departure form, which will allow the students to immediately apply for a visa and possibly re-enter the United States.

“The judge more than likely was going to deport them,” Salas said. “And so it’s better they voluntarily depart than have the judge give them a deportation order, which would make it more difficult to re-enter the country.”

Karen Sanchez-Griego, state director of ENLACE, which promotes education in Latino communities, chaperoned the boys to Tuesday’s hearing.

“In this country, children should be able to be safe from deportation while they’re in school,” she said. “The way this whole thing’s been handled just angers and irritates me.”

The students, who are from Chihuahua, Mexico, were detained by the U.S. Border Patrol on school property after an Albuquerque police officer called immigration officials because he suspected that their identification was fake, Albuquerque Public Schools Board President Mary Lee Martin said.

“I’m sure that he would not have questioned them or asked for identification if these kids were Anglo,” Martin said. “The bottom line is, the Border Patrol should have never been called.”

Since the early 1990s, the U.S. Border Patrol’s policy has been not to enforce immigration laws at schools, churches, funerals or other religious ceremonies without prior approval from the district director or unless the situation is exigent, Salas said.

U.S. Border Patrol Agent Patrick Hernandez, who detained the students in March, testified in November that although he realized he was in a school loading zone when he detained the students, he didn’t know the actual perimeters of school property.

Hernandez also testified that he was aware of the border patrol policy in question at the time he detained the students.

Burkholder, who denied Salas’ request to subpoena Martin and APD officials Tuesday, told the boys that he thought the border patrol agent acted in “good faith.”

Stephen Ruhle, an assistant chief counsel with the Department of Homeland Security’s Immigration and Customs Enforcement, agreed.

“The border patrol usually doesn’t spend time visiting schools unless they call us to provide assistance,” Ruhle said. “If they had not responded, they wouldn’t be doing their job the federal government asked them to do.

“Don’t shoot the messenger,” he said. “If you don’t like the law, write your congressman.”

Copyright 2005 Albuquerque Journal

Tuesday, 1 February 2005

ABQjournal: Undocumented Students Await Ruling
By Debra Dominguez
Journal Staff Writer

St. Jude or San Judas Tadeo is the saint to petition for “hopeless causes.”

The parents of three Del Norte High School students detained by the U.S. Border Patrol in late March have certainly made their plea.

“We know the fate of our sons is in the judge’s hands, but we’re hoping he won’t deport them and give them a chance to finish school here in the United States,” the mother of one of the boys said in November while a St. Jude candle sat aglow in her home. “Our sons are good boys, and we’re asking, praying and hoping.”

The undocumented parents of Ruben Tarango, 17, as well as those of brothers Sergio Gonzalez, 17, and Carlos Gonzalez, 16, will find out if their prayers are answered soon enough.

Judge Gary Burkholder is expected to decide in El Paso Immigration Court today whether the three, who also are undocumented immigrants, will be deported to Chihuahua, Mexico.

No action has been taken against the parents, who were not with the boys when they were detained.

Albuquerque Public Schools Board President Mary Lee Martin said the boys were originally detained on school property after an Albuquerque police officer called immigration officials because he suspected their identification was fake.

“The kids were exchanging car keys through a school fence – that’s what made the police officer suspicious in the first place,” Martin said. “The officer thought they were passing drugs to each other or something.”

Since the early 1990s, the Border Patrol’s policy has been that immigration laws should not be enforced at schools unless the situation is an emergency or there is prior approval, the boys’ attorney, Victor Salas, said.

Burkholder was expected to give a decision on the student cases Nov. 30 but rescheduled the hearing at Salas’ request.

Salas said he also filed a motion to suppress evidence and Border Patrol reports based on “constitutional violations of these students.”

Doug Mosier, spokesman for the Border Patrol El Paso sector, which includes New Mexico, and Border Patrol agent Patrick Hernandez, who detained the students, declined comment.

However, Stephen Ruhle of the Department of Homeland Security urged the judge on Nov. 30 to focus on the students’ immigration status, not immigration policy or how the students were detained.

During the 2004 fiscal year, an estimated 5,715 juveniles were apprehended by the U.S. Border Patrol in New Mexico alone, said Elias Garcia, a U.S. Border Patrol and public information officer for the El Paso sector.

APS spokesman Rigo Chavez said there are an estimated 2,800 immigrant students in the district as defined by the No Child Left Behind federal mandate.

“These are students who are born outside the United States and who have attended a school in the United States for three or fewer years,” he said.

John Lawit, an Albuquerque immigration attorney and member of the American Immigration Lawyers Association, said it is unusual for undocumented juvenile immigrants to be deported without a criminal violation.

Lawit added it is not unusual for undocumented juvenile immigrants to be publicly educated.

“In New Mexico alone, especially with its close proximity to the border, several thousand undocumented students attend our public schools,” Lawit said. “And that’s because there’s an old Supreme Court ruling that says all children present in the United States have the right to a public education.”

That’s exactly what Marcela Dí­az, director of Somos Un Pueblo Unido, an immigrant-rights group based in Santa Fe, finds ironic.

“These kids are basically being punished for exercising their constitutional right to go to school,” she said. “They’re innocent bystanders, who were brought here by their parents, and now are caught up in this political turmoil. It’s unfortunate.”

Copyright 2005 Albuquerque Journal
—–
Track SB103
LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
Sponsor: Richard C. Martinez
Current Location: Senate Judiciary Committee