10/3/2006
Dear Editor,
ASTORGA IS NOT AN ANOMALY
This was written not to point blame, as enough blame exists to encompass both the police department and the prison system. My purpose is to educate the general public about our overburdened, broken criminal justice system. Michael Astorga is not an isolated example, but rather one of ten of thousands of New Mexicans who have used, and abused this system. I don’t mean to imply that I don’t support a “second chance” or court sponsored programs to rehabilitate offenders, but I want to point out how second chances turn into third, fourth, etc. The information below was obtained from the court case website and the New Mexico Corrections Department.
Most New Mexicans have a perception that if they commit a crime they will be caught and they will be punished. The exact opposite is what holds to be true.
Many Assistant District Attorneys and police joke that they have the real “catch and release” program, not fishermen. Because the system is so backed up, the police arrest the offender; then the DA must release that person because if he is retained, the case must be sent to the Grand Jury within ten days. Thus the files stack up on the DA’s desks as the offenders continue to commit crimes. Eventually the offender is indicted, or reaches some plea bargain on some of the pending cases. Many other cases are not dealt with.
When I was a police officer and spoke to groups I would use the example that if we were to drive to Santa Fe ten times, at one hundred miles per hour, how many times would you be caught? Most responded zero to two times. Then I asked what would be the consequence? The majority responded that the case would be taken under advisement; either dismissed, or pays a small fine. I would end this example by saying “there is no perceived penalty for speeding; and thus none for murder”.
In the following scenario, we shall see if that holds true for Michael Astorga.
For purposes of this exercise, let me define a few court terms. A case that is taken “under advisement” or received a “deferred sentence” is a second chance. If you don’t receive another violation with in the advisement period, generally thirty, sixty, or ninety days the case will be dismissed as though it never occurred. Realistically the court is so overburdened that it could not track a person who does commit another violation during the probationary period, meaning most re-offenders are not prosecuted.
When you fail to appear in court the court issues an arrest warrant and imposes a $100 warrant fee in the warrant bond. The purpose of this $100 fee is to reimburse the court for the additional paperwork that your failure to appear has caused.
When a violator is a juvenile, the juvenile arrest warrant will read “arrest only during the working hours of the court and bring this subject to the court”. If it is after the court hours the juvenile cannot be arrested and he is told that he has a warrant and should go to the court during working hours.
Many persons tell the court that they cannot afford to pay a fine. The court allows them to convert the fine into Community Service. Community Service is picking up trash or cutting weeds on public property. These are persons we see picking up trash on our interstate. You are required to appear at the specified location and work. You can’t be fired for poor performance.
The judge will impose “court costs” as they pay for the operation of the court and the judge’s retirement fund. Fines listed below include court costs.
• Bernalillo County Metropolitan Court case TR-39647-90 before Judge Caldwell’s court. June 17, 1990 Michael was charged with no driver’s license and no vehicle insurance. Michael was fourteen years old when he received these citations. Michael failed to appear and on April 15, 1991 an arrest warrant was issued. Michael contacted the court and scheduled an appearance on April 18, 1991. Michael failed to appear and the warrant continued. October 15, 1991 Michael appeared in court. Michael was found guilty of his failure to show a driver’s license and no vehicle insurance. Michael was fined $81 or thirteen hours of community service. The failure to appear was dismissed. Michael completed his community service on November 23, 1991.
• Bernalillo County Metropolitan Court case Cr-22183-90 in Judge Birge’s court. September 27, 1990 an APD Officer cited Michael with reckless driving, no vehicle insurance, and no driver’s license in his possession. December 28, 1990 a warrant with a $400 bond was issued for Michael’s failure to appear. The warrant included a $100 administrative fee. March 18, 1991 Michael appeared in court. He was found guilty of the citations and was fined $174 or 44 hours of community service. The warrant and the warrant fee were dismissed. April 1, 1991. Michael completed his community service.
• Bernalillo County Metropolitan Court case TR-14592-92 in Judge Marie Baca’s court. June 11, 1992 an APD officer for not having any vehicle insurance cited Michael. At this time Michael was sixteen years old. July 20, 1992 Michael appeared in court and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-24928-92 in Judge Theresa Gomez’s court. September 29, 1992 APD cited Michael for his failure to keep a proper lookout. This charge is a result of a traffic crash. At the December 1, 1992 trial the officer failed to appear and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-26600-92 before Judge Joanne Birge’s court. October 30, 1992 was cited for his failure to signal a turn. January 26, 1993 the court issued an arrest warrant with a bond of $176. This included a $100 warrant administrative fee. June 2, 1993 Michael appeared on the warrant and was fined $50 and the fine was suspended. July 26, 1993 Michael appeared in court and was found guilty of his failure to signal a turn. Michael received a deferred sentence on this charge; if he completed a probationary period the case would be dismissed. The court imposed $39 in court costs or ten hours of community service. September 10, 1993 Michael completed his community service.
• Bernalillo County Metropolitan Court case TR-30004-92 in Judge Joanne Birge’s court. November 4, 1992 APD cited Michael for taillight violation. At the December 28, 1992 trial, the case was dismissed.
• Bernalillo County Juvenile Court case JR-93-905. April 26, 1993. The Bernalillo County District Attorney’s Office filed a petition with the court alleging that Michael Astorga was a child in need of supervision “CHINS” petition. At this time Michael was seventeen years old. In this petition it alleged that Michael had committed assault and battery. This case came before Judge Tommy Jewell and on November 11, 1993 where Michael entered into a plea agreement. Michael was sent for a psych evaluation and on November 24, 1993 the case was dismissed pursuant to the Judgment and Disposition agreement. This agreement will include the four 1993 Juvenile Court cases listed below.
• Bernalillo County Metropolitan Court case TR-13217-93 in Judge Marie Baca’s court. December 31, 1992 APD cited Michael for a stop sign violation, no vehicle insurance, and driving while his driver’s license is suspended or revoked. June 28, 1993 the court issued a warrant alleging his failure to appear. The bond was $225 and included a $100 administrative warrant fee. July 13, 1992 Michael appeared in court and was found guilty of the stop sign violation, no vehicle insurance, driving on a suspended driver’s license, and failure to appear. Michael was sentenced to attend driving school and complete three hours of community service. No action was taken on the warrant. July 21, 1993 a warrant was issued for Michael’s failure to attend driving school. July 26, 1993 the warrant was dismissed. Michael completed driving school on August 3, 1993 and his community service on September 16, 1993 and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-16693-93 in Judge Marie Baca’s courtroom. May 7, 1993 APD cited Michael for no driver’s license, driving while his driver’s license was suspended or revoked, and no vehicle insurance. June 28, 1993 the court issued a warrant for his arrest for his failure to appear on the citations with a bond of $225. At the July 13, 1993 trial Michael was found guilty of no driver’s license, no insurance, and failure to appear. On the driving on a revoked driver’s license he received a deferred sentence. He was fined a total of $115, and allowed to convert this to twenty-two hours of Community Service. He completed this Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-16695-93 in Judge Marie Baca’s Courtroom. May 10, 1993 APD cited Michael for driving on a suspended or revoked driver’s license, unlawful use of a driver’s license, and no vehicle insurance. June 28, 1993 the court issued an arrest warrant for his failure to appear in court. This warrant had a bond of $225. At the July 13, 1993 court hearing Michael was found guilty of unlawful use of his driver’s license, no vehicle insurance, and a deferred sentence on driving on a suspended or revoked driver’s license. Michael was fined $146 and allowed to convert this to 37 hours of Community Service. Michael completed his Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-1669493 in Judge Marie Baca’s courtroom. May 18, 1993 APD cited Michael for Driving on a suspended driver’s license, no driver’s license, and no vehicle insurance. June 28, 1993 the court issued a warrant for Michael’s arrest for his failure to appear on the citations. This warrant had a bond of $225. At the July 13, 1993 hearing he was found guilty of no driver’s license, no vehicle insurance and failure to appear in court. He received a deferred sentence on the driving while his driver’s license was suspended or revoked. Michael was fined $115 and allowed to convert the fine to 28 hours of Community Service. He completed his Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-19967-93 in Judge Joanne Birge’s courtroom. May 30, 1993 APD cited Michael for no driver’s license and no vehicle insurance. September 7, 1993 the court issued an arrest warrant for Michael with a bond of $278. At the January 27, 1994 hearing Michael was found guilty of no driver’s license and no insurance. Michael was fined $124 and allowed to convert this to 25 hours of Community Service. He completed his Community Service on February 28, 1994.
• Bernalillo County Juvenile Court case JR-93-1795. August 31, 1993 the Bernalillo County District Attorney’s Office filed a CHINS petition with the court alleging charging Michael with two counts of shooting at or from a motor vehicle causing injury, two counts of aggravated battery with a deadly weapon resulting in great bodily harm, one count of aggravated assault with a deadly weapon, and conspiracy to commit the above crimes. November 8, 1993 Judge Tommy Jewell committed Michael to the Youth Diagnostic Detention Center for a psych evaluation. On November 24, 1993 this case was dismissed pursuant to the judgment and disposition order.
• Bernalillo County Juvenile Court case JR-93-1897. September 15, 1993 the Bernalillo County District Attorney’s Office filed a CHINS Petition before Judge Michael Martinez. This petition alleged possession of a felony controlled substance and conspiracy to commit a crime. November 8, 1993 Michael Astorga entered into a plea agreement and was committed to the Youth Diagnostic and Detention Center. November 24, 1993 this case was dismissed pursuant to a judgment and disposition order.
• Bernalillo County Juvenile Court case JR-93-2047. October 5, 1993 the Bernalillo County District Attorney filed a CHINS petition before Judge Michael Martinez. This petition alleged assault upon a police officer, battery, negligent use of a deadly weapon, two counts of disorderly conduct, and probation revocation. November 8, 1993 Michael Astorga entered a plea and disposition agreement and was committed to the Youth Diagnostic and Detention Center “YDDC” for a psych evaluation. November 24, 1993 the case was dismissed pursuant to an agreement with case number 93-2177. Michael Astorga violated the conditions of probation and on January 19, 1994 the court alleged a probation violation and reopens this case. February 21, 1994 this case was referred to case 93-2177.
• Bernalillo County Metropolitan Court case TR-34731-93 in Judge Joanne Birge’s courtroom. October 19, 1993 cited Michael for no driver’s license, and no vehicle insurance. November 5, 1993 for his failure to appear on the citations the court issued a juvenile warrant for his arrest. This type of warrant only allows an officer to bring Michael before the court during normal court business hours and doesn’t allow the officer to book Michael into the Juvenile Detention Center. At the January 27, 1994 hearing Michael was found guilty of no driver’s license, and no insurance. The court took no action on the arrest warrant. Michael was fined $149 and allowed to convert it to 19 hours of Community Service. He completed this Community Service on February 28, 1994.
• Bernalillo County Juvenile Court case JR-93-2177. October 29, 1993 the Bernalillo County DA filed a CHINS Petition alleging that Michael Astorga distribution of a felony controlled substance, two counts misdemeanor possession of a controlled substance, negligent use of a deadly weapon, disorderly conduct, probation violation, bribery of a witness by threatening retaliation by bodily injury or property damage, two counts of bribery of a witness by threats, conspiracy to commit crimes against a person, intentional arson, conspiracy to commit property damage, bribery of a witness by threat of retaliation of bodily injury or property damage, tampering with evidence, driving while his driver’s license was suspended or revoked, failure to show his driver’s license, failure to obey a traffic control device, two counts of receiving stolen property that has a value of between $250 and $2500 on each count.
• November 4, 1993 Astorga’s attorney filed an order requesting another judge and this case was transferred from Judge Michael Martinez to Judge Tommy Jewell. November 8, 1993 Astorga entered into a plea and disposition agreement and committed to the YDDC for a psych evaluation. November 24, 1993 Astorga entered into a plea and disposition agreement as the pending cases are combined with this case (93-2177, 93-905, 93-1795, 93-1897, 93-2047). Astorga was placed on two years of probation and his probation fees were waived.
• January 19, 1994 a petition to revoke Michael Astorga’s probation was filed. March 4, 1994 Astorga appeared before court and but it not clear if he was released. June 6, 1994 the court ordered Michael released with “special conditions” imposed. August 4, 1994 a plea and disposition agreement was entered. October 20, 1994 Judge Jewell ordered that Michael Astorga be held at the Bernalillo County Juvenile Detention Center.
• November 10, 1994 Michael Astorga was released from the detention center with “special conditions”. May 31, 1995 Michael Astorga was released from his probation. Michael Astorga admitted to the crimes of two counts of possession of a controlled substance, conspiracy to commit property crime, and all other charges were dismissed.
• Bernalillo County Metropolitan Court case TR-1244-94 in Judge Joanne Birge’s courtroom. December 25, 1993 APD cited Michael for driving while his driver’s license was suspended or revoked. January 11, 1994 the court issued a juvenile warrant for his failure to appear. This warrant was canceled on January 20, 1994. On March 1, 1994 the court issued another failure to appear warrant with a bond of $200. This warrant was cancelled on March 7, 1994. On March 7, 1994 the court issued a juvenile arrest warrant. At the May 5, 1994 hearing Michael pled guilty and the court dismissed the driving on a suspended driver’s license charge. The court didn’t take any action on the warrants that had been issued.
• Sandoval County Magistrate Court case TR-82-2753. May 29, 1994 Michael Astorga was cited for his failure to wear his seatbelt and no vehicle insurance. At this time Michael was eighteen years old. January 27, 1995 the Court notified New Mexico DMV that Michael failed to appear on this citation and his driver’s license should be suspended. This case appears to be pending.
• Bernalillo County Metropolitan Court case TR-25242-94 in Judge Elizabeth Love’s court. July 28, 1994 APD cited Michael for driving while his driver’s license was suspended, an expired license plate, and no vehicle insurance. November 29, 1994 Michael was found guilty of the expired license plate, and no vehicle insurance. On the suspended driver’s license citation the court allowed Michael to work with New Mexico DMV to clear his driver’s license. Michael appeared at the October 6, 1994 and November 28, 1994 hearings where the court allowed Michael time to work with New Mexico DMV to clear his driver’s license. November 29, 1994 Michael was fined $127 and allowed to convert that to 28 hours of Community Service. December 20, 1994 the court issued an arrest warrant for Michael’s failure to schedule is Community Service. January 10, 1995 Michael provided the court with proof that his driver’s license was now clear and the court dismissed that citation. February 13, 1995 the warrant against Michael was canceled. Michael completed his Community Service on February 26, 1995.
• Bernalillo County Metropolitan Court case TR-29484-94 in Judge Roderick Kennedy’s court. The Judge hearing this case was Judge Mark Shapiro. September 9, 1994 APD cited Michael for running a stop sign and no vehicle insurance. November 30, 1994 Michael was found guilty of the stop sign violation and given time to obtain proof of vehicle insurance. Michael was fined $10 for the stop sign violation. December 6, 1994 the court issued a warrant for Michael’s failure to provide the court with proof of insurance with a bond of $110. At a December 14, 1994 hearing Michael’s bond was applied towards his fine. January 4, 1995 the court issued a warrant for Michael’s failure to pay the imposed fines with a bond of $110. On January 10, 1995 Michael’s bond was applied towards his fines. Both of these warrants contained a $100 administrative fee. January 26, 1995 Michael provided the court with proof of insurance and this citation was dismissed.
• Bernalillo County Metropolitan Court case TR-35796-94 in Judge Anthony Rivera’s court. October 26, 1994 APD cited Michael for driving on a suspended driver’s license. November 14, 1994 a warrant was issued for his failure to appear in court. This warrant had a bond of $617. November 21, 1994 the warrant was cancelled for an unknown reason. January 5, 1995 the court issued another warrant alleging his failure to appear in court. This warrant had a bond of $400. January 10, 1995 Michael appeared in court and the warrant was canceled. When the judge called the case Michael didn’t respond. The warrant was reissued. On January 20, 1995 Michael appeared at court and posted a $100 bond. March 7, 1995 Michael appeared before the judge and pled guilty to the suspended driver’s license charge. The judge fined Michael $300 and sentenced him to 90 days in jail. The record is unclear if Michael ever finished the sentence.
• Bernalillo County Metropolitan Court case DD-9115-94 in Judge Joanne Birge’s court. October 30, 1994 the Bernalillo County Sheriff Department charged Michael with Domestic Violence. At the January 20, 1995 hearing Michael was found not guilty.
• Bernalillo County Metropolitan Court case TR-927-95 in Judge Rodrick Kennedy’s court. December 31, 1994 the Bernalillo County Sheriff Department cited Michael for speeding 16 to 20 MPH over the speed limit, and driving on a suspended driver’s license. March 1, 1995 Michael pled guilty and received a deferred sentence. Michael paid $37 in court costs.
• Bernalillo County Metropolitan Court case TR-4037-95 in Judge Joanne Birge’s court. February 7, 1995 APD cited Michael for no driver’s license and no vehicle insurance. April 20, 1995 Michael appeared in court. Michael displayed his driver’s license to the court and this citation was dismissed. Michael was found guilty of no vehicle insurance. He was fined $87 and paid this fine on May 4, 1995.
• Bernalillo County Metropolitan Court case TR-3197-95 in Judge Marie Baca’s court. May 26, 1995 APD charged Michael with shoplifting. At his August 28, 1995 hearing Michael was found guilty and given a deferred sentence. Michael had to pay $20 in court costs.
• Bernalillo County Metropolitan Court case TR-34556-95 in Judge Charles Barnhart’s court. November 3, 1995 Michael was cited for no vehicle insurance. November 20, 1995 Michael pled guilty and was fined $77. Michael was allowed to convert this to 18 hours of Community Service. He has completed this sentence.
• Bernalillo County District Court case CR-96-3869. January 12, 1996 Michael was indicted on the charges of two counts of trafficking in a controlled substance with intent to distribute, one for heroin and one for cocaine, and being a habitual offender. Michael appeared in Judge Knowles court room where his bond was set as: “$10,000 cash or security, concurrent with (case) CR-96-3600, CR-96-3476, weekly contact with (his) attorney, no contact with witnesses or victims family in all cases, no illegal drugs, no weapons, and no firearms”. September 25, 1997 cases CR-96-3869, and CR-97-3086, were consolidated into this case. Michael entered into a plea agreement in case 96-3869. The DA filed a motion to review the conditions of release pending sentencing and on October 14, 1997 the court issued a warrant for Michael’s arrest noting his violations of the conditions of release. This was a no bond warrant. Michael was arrested on October 17, 1997. In this case Michael was sentenced to twenty and one-half years of confinement with nine of those years suspended, and five years of supervised probation upon his release. His probation costs were waived. Since this case was consolidated with other cases, I list the case history below.
• Bernalillo County Metropolitan Court case TR-15833-96 in Judge Elizabeth Love’s court. May 28, 1996 APD cited Michael for no driver’s license, expired license plate, and no vehicle insurance. September 10, 1996 the court issued a warrant for his failure to appear in court with a bond of $200. At the September 13, 1996 hearing all charges including his failure to appear were dismissed except no vehicle insurance. For the insurance violation he was fined $94. At a September 16, 1996 hearing the fine was reduced to $20 and was paid.
• Bernalillo County District Court case 96-3476 before the courts of Judges Ross Sanchez, then Richard Knowles, and now Carl Butkas. November 8, 1996 Michael was indicted on conspiracy to commit a property crime, criminal damage to property over $1000 in value, attempt to commit property damage, and being a habitual offender. A warrant with a $5000 bond was issued for his arrest. September 25, 1997 Michael entered into a plea agreement in this case and this case was consolidated with District Court cases 96-3869, 97-3086 and later with 98-74. Pursuant to the plea agreement Michael pled to conspiracy to commit a property crime, and being a habitual offender. The other charges were dismissed. For the property crime he was sentenced to 18 months and one year for being a habitual offender. This sentence was consecutive to the other cases.
• Bernalillo County Metropolitan Court case TR-5698-97. October 7, 1997 APD cited Michael for a stop sign violation, and no vehicle insurance. Michael was now twenty-one years old. October 30, 1997 the court issued a warrant for his failure to appear with a bond of $228. March 11, 2004 Michael posted the bond. At the March 25, 2004 hearing the judge dismissed all charges.
• Bernalillo County Metropolitan Court case CR-1236-98 in Judge Michael Kavanaugh’s court. October 12, 1997 APD charged Michael with shoplifting less than $100 and battery upon a person. February 11, 1998 the court issued a warrant for his arrest charging his with his failure to appear in court. His bond was $600. At the March 25, 2004 hearing all charges were dismissed including the warrant.
• Bernalillo County District Court case D-202-CR-98-74. January 12, 1998 Michael Astorga was appearing in court on another case. At this hearing Michael pled “no contest” to criminal information charging him with possession of a controlled substance, felon in possession of a firearm, and being a habitual offender. February 27, 1998 Judge Knowles sentence Michael to a total of twenty and one-half years and suspended nine years, thus his sentence was 11 years and 6 months with five years of probation in this case. His prison time was to run concurrent with the other 20.5 years. His probation was coupled with cases CR- 96-3869, 97-3086, 96-3476 and his probation and parole costs were waived. October 1, 1998 the Public Defender entered a motion to give Michael credit for his incarcerated time served prior to trial. March 30, 1999 Judge Knowles gave Michael credit for this time served, over one year of credit. Since this case was consolidated with other cases I reviewed that history below.
We should understand why a defense attorney would consolidate the cases. This allowed the court to issue one sentence, which is generally less than if the cases were not consolidated, but more importantly in the eyes of the court sees this as one incident or one crime (not nine) for the next time that the DA desires to charge Michael with being a habitual offender. A habitual offender is a person who has had three felony convictions. This program is taunted as “three strikes and you are out (of society)”. As an interesting side note, our Habitual Offender law does not allow crimes over ten years old to be counted. Thus an inmate with a prison sentence that detains him for over ten years walks out of prison and is not viewed as a habitual offender. Michael’s Habitual Offender added one more year to his prison sentence.
• January 14, 1998 Michael arrived at the New Mexico State Prison in Grants. Michael will be transferred to several different prison including locations at Hobbs, Las Cruces and Santa Fe.
This is a summary of Michael’s history after he arrived at prison. The Corrections Department recorded twenty-four incidents of misconduct by Michael Astorga. These incidents ranged from possession of drug paraphernalia, to forgery of a State document, and destroying State property. Two incidents resulted in criminal cases.
• March 20, 1998 Michael assaulted another person resulting in a Grants Magistrate Court case FR-98-73. March 26, 1998 Michael was in prison and was charged by a criminal complaint with assault with intent to commit a violent felony, tampering with evidence, and bringing contraband into a prison. At the July 29, 1998 preliminary hearing the court found no probable cause for the charges and the case was dismissed.
• December 5, 1999 the Corrections Dept recorded an incident alleging that Michael refused prison guard orders, and incited a disturbance. Lovington District Court case CR-99-395 was assigned to Judge Clingman’s Court. December 6, 1999 Michael was in prison and was charged with assault by a prisoner, and conspiracy to commit a third or fourth degree felony. At a May 4, 2001 hearing the DA dismissed the case noting that Michael had been charged with the “wrong crime and a new criminal information will be filed”. I could not find that this case was re-filed.
• March 30, 1999 the Court amended Michael’s sentence by allowing him credit for time served prior to his conviction.
• March 12, 2004 Michael was paroled to the Intensive Supervision Unit. This unit is designed to keep close watch over his activities. At this time Michael was eligible for government programs such as Food Stamps.
• Bernalillo County Metropolitan Court case CR-15246-04 in Judge Michael Kavanaugh’s court. August 21, 2004 APD charged Michael with no vehicle registration, no vehicle insurance, careless driving, and criminal damage to property. September 17, 2004 Michael failed to appear in court and a warrant was issued for his arrest. This warrant had a bond of $350. Michael was in custody when he appeared on March 17, 2005 in court. His case was reset for May 25, 2005 where Michael failed to appear and another warrant was issued. June 3, 2005 Michael appeared at court and the case was set for trial on August 2, 2005. At this hearing the officer failed to appear and all charges were dismissed.
• June 2, 2004 Michael began his probation; this was in addition to his parole.
• September 28, 2004 a warrant was issued for Michael alleging a probation violation. It is important to understand that the Probation and Parole Officers are members of the Department of Corrections and they are the persons requesting that Michael be returned to prison. March 17, 2004 Michael was arrested.
• April 13, 2005 Michael appeared before Judge Knowles and admits his probation violation. He is returned to confinement.
• May 5, 2005 Michael appeared before Judge Knowles who ordered Michael back into Intensive Supervision for his probation. At this hearing Michael was given prison time credit for the time he had previously been on probation less 169 days that he absconded.
• Bernalillo County District Court case DV-2005-1179 in Judge Angela Jewell’s court. July 7, 2005 Norma Casa filed a Domestic Violence Protection Petition with children. July 8, 2005 the Bernalillo County Sheriff Department served Michael with the court order. August 1, 2005 Norma Casa requested that this case be dismissed. August 8, 2005 the court dismissed this case.
• August 16, 2005 Michael appeared on a probation violation. The probation violation report could not be located and he was released.
• November 5, 2005 Michael Astorga allegedly killed Candido Martinez.
• November 6, 2005 District Court issued a warrant charging murder.
• November 7, 2005 Parole issued a parole violation warrant alleging murder.
• March 17, 2006 the District Court issues a no bond probation violation warrant for Astorga’s alleging ten violations including the murder of Candido Martinez.
• March 22, 2006 Michael Astorga allegedly killed Bernalillo County Sheriff Deputy James McGrane.
• April 5, 2006 Michael was arrested on all of the above arrest warrants.
I ask again, is Michael Astorga an exception? Currently Bernalillo County Sheriff Department has over 70,000 Bernalillo County District and Metropolitan Court active arrest warrants. Some of these warrants are for persons outside of Bernalillo County but to put this in perspective, the Bernalillo County population is just over 700,000, this means that 10% have active arrest warrants.
I could go to court on any given day and research the court docket and find several persons with similar records. Michael is clearly a returning customer. If the court system was an airline, he would qualify as a frequent flyer. In early August inmate Herbert Perkins had an early release from prison. He was out six weeks before he was charged with brutal armed robberies where the victim/clerk was shot after complying with the robber’s requests.
Because of past Duran Consent Decree, Judges are aware of the number of detained prisoners. With little or no vacancies at our jails, the judges are restricted on sentencing persons to jail.
It is well known that if you have a case in Metropolitan Court you will receive a lighter sentence compared to any other New Mexico Magistrate Court.
Our court system is a branch of government that requires the taxpayers to subsidize it; yet the court has the power to impose fines thereby lessening the deficit. You are more likely to be fined in Metropolitan Court than District Court where you are appearing on a more serious crime.
So what is the perception of our prison? When I was a police officer one individual we arrested for over fifty counts of forgery checks and had a warrant for parole violation from Texas, told us, “I would rather do five years in Santa Fe than one year in Huntsville”. Why I asked? His reply was that he would be forced to work the (prison) fields from sun up to sun down. He told me that Santa Fe was not a problem, “I will workout, get in shape, and then be released”. He admitted that he would probably fall back into crime and be returned to Santa Fe.
What is the perception of different groups in the criminal justice system? The police- “I arrest them and all the DA does is release them and when we finally go to court the judges doesn’t do anything”. The prosecutor- “When I receive a case it is generally not complete (including all police reports). If I don’t release this person then I compete for Grand Jury time and the case must be completed and before the grand jury within ten days. The cases stack up and we try to indict the worst offender first. By that time I have numerous cases and we plea bargain.” The offender- “Oh they caught me this time but it will take them at least one year before I am indicted, and they may just forget my case so it doesn’t matter if I get caught more times because I will get a plea bargain”. The defense attorney- “I’ll keep filing motions forcing hearings and if the DA doesn’t respond timely I can get this case dismissed”. The judge- “the prisons are busting at the seams, if I send this person to prison the prison must release someone.” The probation or parole officer- “I have over one hundred persons I am responsible for now, I can’t get assigned another offender”.
The New Mexico legislature's perception is that adequate sentencing of violators needs to be sought, and pass laws increasing penalties. As an example of this is that the legislature has imposed “minimum mandatory sentences” for DWI offenders. This sentence removes some of the judge’s discretion.
Our current laws allow an inmate whose conviction is not for a violent crime to receive good time credit at a rate that would allow them to serve half of their sentence. A violent inmate must serve eighty percent of his sentence. Possession of a firearm by a convicted felon is not seen as a violent crime.
A prison warden is allowed to give an additional 30 days of good time per month. While the intent was to reward exemplary behavior it has sometimes been used for an inmate who practiced good hygiene that month.
There is an argument that non-violent criminals should not be incarcerated. The example used is a person on a drug conviction. With rare exception a burglar is an addicted drug user. A burglar is a person who breaks into your home. It is not uncommon for them to commit one to three burglaries per day to support their habit. Since it takes about one year to bring an offender before the court, simple math show the burglar has committed well over 300 burglaries. Statically a person committed to prison for a homicide is an individual who during the heat of the moment killed another person and once released from prison that person will not commit another felony. Society is horrified by the murder’s actions and demand lengthy sentences. Obviously Michael Astorga is the exception to this rule.
I agree that judges should have sentencing discretion, but we must have enough room for them to sentence persons to prison without forcing them to suspend part of their sentences due to overcrowding. The legislature should reexamine how a person receives good time. Currently goodtime is tied to monthly behavior. This should be changed to yearly good behavior and credit should be closely tied to productive behavior such as daily employment on a prisoner detail. We need to expand the details that work with the Highway Department or other governmental agency. Their work for these agencies will help defray the prison costs.
Every jail or prison in New Mexico is in financial crisis. Many counties quarterly contact the state and receive monies to keep their jails operating. We must understand that if we want the criminals locked up we will need more prisons. Bernalillo County Detention Center can house up to 2200 inmates per day. That is its maximum capacity and it is currently at that level. The operational cost for just housing an inmate is just over $72 per day.
As of June 2006 New Mexico prisons house 6,742 inmates with 18,798 persons on probation or parole. New Mexico prison costs are just over $81 per inmate per day.
The community has a choice. We can spend money on housing inmates making our communities safer and creating a perception of punishment, or we can have early release programs that will allow us to become victims of crimes and pay higher insurance premiums. In the last couple of years, the Corrections Department has opened new facilities but Governor Bill Richardson has vowed not to build any new prisons and will be the largest obstacle in any effort to house additional criminals.
Without a public perception of a penalty, violators and criminals will continue their errant ways.
During the next legislative session I will introduce legislation to close some of the prison loopholes.
Sincerely,
Bill Rehm
New Mexico State Representative District 31
ASTORGA IS NOT AN ANOMALY
This was written not to point blame, as enough blame exists to encompass both the police department and the prison system. My purpose is to educate the general public about our overburdened, broken criminal justice system. Michael Astorga is not an isolated example, but rather one of ten of thousands of New Mexicans who have used, and abused this system. I don’t mean to imply that I don’t support a “second chance” or court sponsored programs to rehabilitate offenders, but I want to point out how second chances turn into third, fourth, etc. The information below was obtained from the court case website and the New Mexico Corrections Department.
Most New Mexicans have a perception that if they commit a crime they will be caught and they will be punished. The exact opposite is what holds to be true.
Many Assistant District Attorneys and police joke that they have the real “catch and release” program, not fishermen. Because the system is so backed up, the police arrest the offender; then the DA must release that person because if he is retained, the case must be sent to the Grand Jury within ten days. Thus the files stack up on the DA’s desks as the offenders continue to commit crimes. Eventually the offender is indicted, or reaches some plea bargain on some of the pending cases. Many other cases are not dealt with.
When I was a police officer and spoke to groups I would use the example that if we were to drive to Santa Fe ten times, at one hundred miles per hour, how many times would you be caught? Most responded zero to two times. Then I asked what would be the consequence? The majority responded that the case would be taken under advisement; either dismissed, or pays a small fine. I would end this example by saying “there is no perceived penalty for speeding; and thus none for murder”.
In the following scenario, we shall see if that holds true for Michael Astorga.
For purposes of this exercise, let me define a few court terms. A case that is taken “under advisement” or received a “deferred sentence” is a second chance. If you don’t receive another violation with in the advisement period, generally thirty, sixty, or ninety days the case will be dismissed as though it never occurred. Realistically the court is so overburdened that it could not track a person who does commit another violation during the probationary period, meaning most re-offenders are not prosecuted.
When you fail to appear in court the court issues an arrest warrant and imposes a $100 warrant fee in the warrant bond. The purpose of this $100 fee is to reimburse the court for the additional paperwork that your failure to appear has caused.
When a violator is a juvenile, the juvenile arrest warrant will read “arrest only during the working hours of the court and bring this subject to the court”. If it is after the court hours the juvenile cannot be arrested and he is told that he has a warrant and should go to the court during working hours.
Many persons tell the court that they cannot afford to pay a fine. The court allows them to convert the fine into Community Service. Community Service is picking up trash or cutting weeds on public property. These are persons we see picking up trash on our interstate. You are required to appear at the specified location and work. You can’t be fired for poor performance.
The judge will impose “court costs” as they pay for the operation of the court and the judge’s retirement fund. Fines listed below include court costs.
• Bernalillo County Metropolitan Court case TR-39647-90 before Judge Caldwell’s court. June 17, 1990 Michael was charged with no driver’s license and no vehicle insurance. Michael was fourteen years old when he received these citations. Michael failed to appear and on April 15, 1991 an arrest warrant was issued. Michael contacted the court and scheduled an appearance on April 18, 1991. Michael failed to appear and the warrant continued. October 15, 1991 Michael appeared in court. Michael was found guilty of his failure to show a driver’s license and no vehicle insurance. Michael was fined $81 or thirteen hours of community service. The failure to appear was dismissed. Michael completed his community service on November 23, 1991.
• Bernalillo County Metropolitan Court case Cr-22183-90 in Judge Birge’s court. September 27, 1990 an APD Officer cited Michael with reckless driving, no vehicle insurance, and no driver’s license in his possession. December 28, 1990 a warrant with a $400 bond was issued for Michael’s failure to appear. The warrant included a $100 administrative fee. March 18, 1991 Michael appeared in court. He was found guilty of the citations and was fined $174 or 44 hours of community service. The warrant and the warrant fee were dismissed. April 1, 1991. Michael completed his community service.
• Bernalillo County Metropolitan Court case TR-14592-92 in Judge Marie Baca’s court. June 11, 1992 an APD officer for not having any vehicle insurance cited Michael. At this time Michael was sixteen years old. July 20, 1992 Michael appeared in court and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-24928-92 in Judge Theresa Gomez’s court. September 29, 1992 APD cited Michael for his failure to keep a proper lookout. This charge is a result of a traffic crash. At the December 1, 1992 trial the officer failed to appear and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-26600-92 before Judge Joanne Birge’s court. October 30, 1992 was cited for his failure to signal a turn. January 26, 1993 the court issued an arrest warrant with a bond of $176. This included a $100 warrant administrative fee. June 2, 1993 Michael appeared on the warrant and was fined $50 and the fine was suspended. July 26, 1993 Michael appeared in court and was found guilty of his failure to signal a turn. Michael received a deferred sentence on this charge; if he completed a probationary period the case would be dismissed. The court imposed $39 in court costs or ten hours of community service. September 10, 1993 Michael completed his community service.
• Bernalillo County Metropolitan Court case TR-30004-92 in Judge Joanne Birge’s court. November 4, 1992 APD cited Michael for taillight violation. At the December 28, 1992 trial, the case was dismissed.
• Bernalillo County Juvenile Court case JR-93-905. April 26, 1993. The Bernalillo County District Attorney’s Office filed a petition with the court alleging that Michael Astorga was a child in need of supervision “CHINS” petition. At this time Michael was seventeen years old. In this petition it alleged that Michael had committed assault and battery. This case came before Judge Tommy Jewell and on November 11, 1993 where Michael entered into a plea agreement. Michael was sent for a psych evaluation and on November 24, 1993 the case was dismissed pursuant to the Judgment and Disposition agreement. This agreement will include the four 1993 Juvenile Court cases listed below.
• Bernalillo County Metropolitan Court case TR-13217-93 in Judge Marie Baca’s court. December 31, 1992 APD cited Michael for a stop sign violation, no vehicle insurance, and driving while his driver’s license is suspended or revoked. June 28, 1993 the court issued a warrant alleging his failure to appear. The bond was $225 and included a $100 administrative warrant fee. July 13, 1992 Michael appeared in court and was found guilty of the stop sign violation, no vehicle insurance, driving on a suspended driver’s license, and failure to appear. Michael was sentenced to attend driving school and complete three hours of community service. No action was taken on the warrant. July 21, 1993 a warrant was issued for Michael’s failure to attend driving school. July 26, 1993 the warrant was dismissed. Michael completed driving school on August 3, 1993 and his community service on September 16, 1993 and the case was dismissed.
• Bernalillo County Metropolitan Court case TR-16693-93 in Judge Marie Baca’s courtroom. May 7, 1993 APD cited Michael for no driver’s license, driving while his driver’s license was suspended or revoked, and no vehicle insurance. June 28, 1993 the court issued a warrant for his arrest for his failure to appear on the citations with a bond of $225. At the July 13, 1993 trial Michael was found guilty of no driver’s license, no insurance, and failure to appear. On the driving on a revoked driver’s license he received a deferred sentence. He was fined a total of $115, and allowed to convert this to twenty-two hours of Community Service. He completed this Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-16695-93 in Judge Marie Baca’s Courtroom. May 10, 1993 APD cited Michael for driving on a suspended or revoked driver’s license, unlawful use of a driver’s license, and no vehicle insurance. June 28, 1993 the court issued an arrest warrant for his failure to appear in court. This warrant had a bond of $225. At the July 13, 1993 court hearing Michael was found guilty of unlawful use of his driver’s license, no vehicle insurance, and a deferred sentence on driving on a suspended or revoked driver’s license. Michael was fined $146 and allowed to convert this to 37 hours of Community Service. Michael completed his Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-1669493 in Judge Marie Baca’s courtroom. May 18, 1993 APD cited Michael for Driving on a suspended driver’s license, no driver’s license, and no vehicle insurance. June 28, 1993 the court issued a warrant for Michael’s arrest for his failure to appear on the citations. This warrant had a bond of $225. At the July 13, 1993 hearing he was found guilty of no driver’s license, no vehicle insurance and failure to appear in court. He received a deferred sentence on the driving while his driver’s license was suspended or revoked. Michael was fined $115 and allowed to convert the fine to 28 hours of Community Service. He completed his Community Service on September 16, 1993.
• Bernalillo County Metropolitan Court case TR-19967-93 in Judge Joanne Birge’s courtroom. May 30, 1993 APD cited Michael for no driver’s license and no vehicle insurance. September 7, 1993 the court issued an arrest warrant for Michael with a bond of $278. At the January 27, 1994 hearing Michael was found guilty of no driver’s license and no insurance. Michael was fined $124 and allowed to convert this to 25 hours of Community Service. He completed his Community Service on February 28, 1994.
• Bernalillo County Juvenile Court case JR-93-1795. August 31, 1993 the Bernalillo County District Attorney’s Office filed a CHINS petition with the court alleging charging Michael with two counts of shooting at or from a motor vehicle causing injury, two counts of aggravated battery with a deadly weapon resulting in great bodily harm, one count of aggravated assault with a deadly weapon, and conspiracy to commit the above crimes. November 8, 1993 Judge Tommy Jewell committed Michael to the Youth Diagnostic Detention Center for a psych evaluation. On November 24, 1993 this case was dismissed pursuant to the judgment and disposition order.
• Bernalillo County Juvenile Court case JR-93-1897. September 15, 1993 the Bernalillo County District Attorney’s Office filed a CHINS Petition before Judge Michael Martinez. This petition alleged possession of a felony controlled substance and conspiracy to commit a crime. November 8, 1993 Michael Astorga entered into a plea agreement and was committed to the Youth Diagnostic and Detention Center. November 24, 1993 this case was dismissed pursuant to a judgment and disposition order.
• Bernalillo County Juvenile Court case JR-93-2047. October 5, 1993 the Bernalillo County District Attorney filed a CHINS petition before Judge Michael Martinez. This petition alleged assault upon a police officer, battery, negligent use of a deadly weapon, two counts of disorderly conduct, and probation revocation. November 8, 1993 Michael Astorga entered a plea and disposition agreement and was committed to the Youth Diagnostic and Detention Center “YDDC” for a psych evaluation. November 24, 1993 the case was dismissed pursuant to an agreement with case number 93-2177. Michael Astorga violated the conditions of probation and on January 19, 1994 the court alleged a probation violation and reopens this case. February 21, 1994 this case was referred to case 93-2177.
• Bernalillo County Metropolitan Court case TR-34731-93 in Judge Joanne Birge’s courtroom. October 19, 1993 cited Michael for no driver’s license, and no vehicle insurance. November 5, 1993 for his failure to appear on the citations the court issued a juvenile warrant for his arrest. This type of warrant only allows an officer to bring Michael before the court during normal court business hours and doesn’t allow the officer to book Michael into the Juvenile Detention Center. At the January 27, 1994 hearing Michael was found guilty of no driver’s license, and no insurance. The court took no action on the arrest warrant. Michael was fined $149 and allowed to convert it to 19 hours of Community Service. He completed this Community Service on February 28, 1994.
• Bernalillo County Juvenile Court case JR-93-2177. October 29, 1993 the Bernalillo County DA filed a CHINS Petition alleging that Michael Astorga distribution of a felony controlled substance, two counts misdemeanor possession of a controlled substance, negligent use of a deadly weapon, disorderly conduct, probation violation, bribery of a witness by threatening retaliation by bodily injury or property damage, two counts of bribery of a witness by threats, conspiracy to commit crimes against a person, intentional arson, conspiracy to commit property damage, bribery of a witness by threat of retaliation of bodily injury or property damage, tampering with evidence, driving while his driver’s license was suspended or revoked, failure to show his driver’s license, failure to obey a traffic control device, two counts of receiving stolen property that has a value of between $250 and $2500 on each count.
• November 4, 1993 Astorga’s attorney filed an order requesting another judge and this case was transferred from Judge Michael Martinez to Judge Tommy Jewell. November 8, 1993 Astorga entered into a plea and disposition agreement and committed to the YDDC for a psych evaluation. November 24, 1993 Astorga entered into a plea and disposition agreement as the pending cases are combined with this case (93-2177, 93-905, 93-1795, 93-1897, 93-2047). Astorga was placed on two years of probation and his probation fees were waived.
• January 19, 1994 a petition to revoke Michael Astorga’s probation was filed. March 4, 1994 Astorga appeared before court and but it not clear if he was released. June 6, 1994 the court ordered Michael released with “special conditions” imposed. August 4, 1994 a plea and disposition agreement was entered. October 20, 1994 Judge Jewell ordered that Michael Astorga be held at the Bernalillo County Juvenile Detention Center.
• November 10, 1994 Michael Astorga was released from the detention center with “special conditions”. May 31, 1995 Michael Astorga was released from his probation. Michael Astorga admitted to the crimes of two counts of possession of a controlled substance, conspiracy to commit property crime, and all other charges were dismissed.
• Bernalillo County Metropolitan Court case TR-1244-94 in Judge Joanne Birge’s courtroom. December 25, 1993 APD cited Michael for driving while his driver’s license was suspended or revoked. January 11, 1994 the court issued a juvenile warrant for his failure to appear. This warrant was canceled on January 20, 1994. On March 1, 1994 the court issued another failure to appear warrant with a bond of $200. This warrant was cancelled on March 7, 1994. On March 7, 1994 the court issued a juvenile arrest warrant. At the May 5, 1994 hearing Michael pled guilty and the court dismissed the driving on a suspended driver’s license charge. The court didn’t take any action on the warrants that had been issued.
• Sandoval County Magistrate Court case TR-82-2753. May 29, 1994 Michael Astorga was cited for his failure to wear his seatbelt and no vehicle insurance. At this time Michael was eighteen years old. January 27, 1995 the Court notified New Mexico DMV that Michael failed to appear on this citation and his driver’s license should be suspended. This case appears to be pending.
• Bernalillo County Metropolitan Court case TR-25242-94 in Judge Elizabeth Love’s court. July 28, 1994 APD cited Michael for driving while his driver’s license was suspended, an expired license plate, and no vehicle insurance. November 29, 1994 Michael was found guilty of the expired license plate, and no vehicle insurance. On the suspended driver’s license citation the court allowed Michael to work with New Mexico DMV to clear his driver’s license. Michael appeared at the October 6, 1994 and November 28, 1994 hearings where the court allowed Michael time to work with New Mexico DMV to clear his driver’s license. November 29, 1994 Michael was fined $127 and allowed to convert that to 28 hours of Community Service. December 20, 1994 the court issued an arrest warrant for Michael’s failure to schedule is Community Service. January 10, 1995 Michael provided the court with proof that his driver’s license was now clear and the court dismissed that citation. February 13, 1995 the warrant against Michael was canceled. Michael completed his Community Service on February 26, 1995.
• Bernalillo County Metropolitan Court case TR-29484-94 in Judge Roderick Kennedy’s court. The Judge hearing this case was Judge Mark Shapiro. September 9, 1994 APD cited Michael for running a stop sign and no vehicle insurance. November 30, 1994 Michael was found guilty of the stop sign violation and given time to obtain proof of vehicle insurance. Michael was fined $10 for the stop sign violation. December 6, 1994 the court issued a warrant for Michael’s failure to provide the court with proof of insurance with a bond of $110. At a December 14, 1994 hearing Michael’s bond was applied towards his fine. January 4, 1995 the court issued a warrant for Michael’s failure to pay the imposed fines with a bond of $110. On January 10, 1995 Michael’s bond was applied towards his fines. Both of these warrants contained a $100 administrative fee. January 26, 1995 Michael provided the court with proof of insurance and this citation was dismissed.
• Bernalillo County Metropolitan Court case TR-35796-94 in Judge Anthony Rivera’s court. October 26, 1994 APD cited Michael for driving on a suspended driver’s license. November 14, 1994 a warrant was issued for his failure to appear in court. This warrant had a bond of $617. November 21, 1994 the warrant was cancelled for an unknown reason. January 5, 1995 the court issued another warrant alleging his failure to appear in court. This warrant had a bond of $400. January 10, 1995 Michael appeared in court and the warrant was canceled. When the judge called the case Michael didn’t respond. The warrant was reissued. On January 20, 1995 Michael appeared at court and posted a $100 bond. March 7, 1995 Michael appeared before the judge and pled guilty to the suspended driver’s license charge. The judge fined Michael $300 and sentenced him to 90 days in jail. The record is unclear if Michael ever finished the sentence.
• Bernalillo County Metropolitan Court case DD-9115-94 in Judge Joanne Birge’s court. October 30, 1994 the Bernalillo County Sheriff Department charged Michael with Domestic Violence. At the January 20, 1995 hearing Michael was found not guilty.
• Bernalillo County Metropolitan Court case TR-927-95 in Judge Rodrick Kennedy’s court. December 31, 1994 the Bernalillo County Sheriff Department cited Michael for speeding 16 to 20 MPH over the speed limit, and driving on a suspended driver’s license. March 1, 1995 Michael pled guilty and received a deferred sentence. Michael paid $37 in court costs.
• Bernalillo County Metropolitan Court case TR-4037-95 in Judge Joanne Birge’s court. February 7, 1995 APD cited Michael for no driver’s license and no vehicle insurance. April 20, 1995 Michael appeared in court. Michael displayed his driver’s license to the court and this citation was dismissed. Michael was found guilty of no vehicle insurance. He was fined $87 and paid this fine on May 4, 1995.
• Bernalillo County Metropolitan Court case TR-3197-95 in Judge Marie Baca’s court. May 26, 1995 APD charged Michael with shoplifting. At his August 28, 1995 hearing Michael was found guilty and given a deferred sentence. Michael had to pay $20 in court costs.
• Bernalillo County Metropolitan Court case TR-34556-95 in Judge Charles Barnhart’s court. November 3, 1995 Michael was cited for no vehicle insurance. November 20, 1995 Michael pled guilty and was fined $77. Michael was allowed to convert this to 18 hours of Community Service. He has completed this sentence.
• Bernalillo County District Court case CR-96-3869. January 12, 1996 Michael was indicted on the charges of two counts of trafficking in a controlled substance with intent to distribute, one for heroin and one for cocaine, and being a habitual offender. Michael appeared in Judge Knowles court room where his bond was set as: “$10,000 cash or security, concurrent with (case) CR-96-3600, CR-96-3476, weekly contact with (his) attorney, no contact with witnesses or victims family in all cases, no illegal drugs, no weapons, and no firearms”. September 25, 1997 cases CR-96-3869, and CR-97-3086, were consolidated into this case. Michael entered into a plea agreement in case 96-3869. The DA filed a motion to review the conditions of release pending sentencing and on October 14, 1997 the court issued a warrant for Michael’s arrest noting his violations of the conditions of release. This was a no bond warrant. Michael was arrested on October 17, 1997. In this case Michael was sentenced to twenty and one-half years of confinement with nine of those years suspended, and five years of supervised probation upon his release. His probation costs were waived. Since this case was consolidated with other cases, I list the case history below.
• Bernalillo County Metropolitan Court case TR-15833-96 in Judge Elizabeth Love’s court. May 28, 1996 APD cited Michael for no driver’s license, expired license plate, and no vehicle insurance. September 10, 1996 the court issued a warrant for his failure to appear in court with a bond of $200. At the September 13, 1996 hearing all charges including his failure to appear were dismissed except no vehicle insurance. For the insurance violation he was fined $94. At a September 16, 1996 hearing the fine was reduced to $20 and was paid.
• Bernalillo County District Court case 96-3476 before the courts of Judges Ross Sanchez, then Richard Knowles, and now Carl Butkas. November 8, 1996 Michael was indicted on conspiracy to commit a property crime, criminal damage to property over $1000 in value, attempt to commit property damage, and being a habitual offender. A warrant with a $5000 bond was issued for his arrest. September 25, 1997 Michael entered into a plea agreement in this case and this case was consolidated with District Court cases 96-3869, 97-3086 and later with 98-74. Pursuant to the plea agreement Michael pled to conspiracy to commit a property crime, and being a habitual offender. The other charges were dismissed. For the property crime he was sentenced to 18 months and one year for being a habitual offender. This sentence was consecutive to the other cases.
• Bernalillo County Metropolitan Court case TR-5698-97. October 7, 1997 APD cited Michael for a stop sign violation, and no vehicle insurance. Michael was now twenty-one years old. October 30, 1997 the court issued a warrant for his failure to appear with a bond of $228. March 11, 2004 Michael posted the bond. At the March 25, 2004 hearing the judge dismissed all charges.
• Bernalillo County Metropolitan Court case CR-1236-98 in Judge Michael Kavanaugh’s court. October 12, 1997 APD charged Michael with shoplifting less than $100 and battery upon a person. February 11, 1998 the court issued a warrant for his arrest charging his with his failure to appear in court. His bond was $600. At the March 25, 2004 hearing all charges were dismissed including the warrant.
• Bernalillo County District Court case D-202-CR-98-74. January 12, 1998 Michael Astorga was appearing in court on another case. At this hearing Michael pled “no contest” to criminal information charging him with possession of a controlled substance, felon in possession of a firearm, and being a habitual offender. February 27, 1998 Judge Knowles sentence Michael to a total of twenty and one-half years and suspended nine years, thus his sentence was 11 years and 6 months with five years of probation in this case. His prison time was to run concurrent with the other 20.5 years. His probation was coupled with cases CR- 96-3869, 97-3086, 96-3476 and his probation and parole costs were waived. October 1, 1998 the Public Defender entered a motion to give Michael credit for his incarcerated time served prior to trial. March 30, 1999 Judge Knowles gave Michael credit for this time served, over one year of credit. Since this case was consolidated with other cases I reviewed that history below.
We should understand why a defense attorney would consolidate the cases. This allowed the court to issue one sentence, which is generally less than if the cases were not consolidated, but more importantly in the eyes of the court sees this as one incident or one crime (not nine) for the next time that the DA desires to charge Michael with being a habitual offender. A habitual offender is a person who has had three felony convictions. This program is taunted as “three strikes and you are out (of society)”. As an interesting side note, our Habitual Offender law does not allow crimes over ten years old to be counted. Thus an inmate with a prison sentence that detains him for over ten years walks out of prison and is not viewed as a habitual offender. Michael’s Habitual Offender added one more year to his prison sentence.
• January 14, 1998 Michael arrived at the New Mexico State Prison in Grants. Michael will be transferred to several different prison including locations at Hobbs, Las Cruces and Santa Fe.
This is a summary of Michael’s history after he arrived at prison. The Corrections Department recorded twenty-four incidents of misconduct by Michael Astorga. These incidents ranged from possession of drug paraphernalia, to forgery of a State document, and destroying State property. Two incidents resulted in criminal cases.
• March 20, 1998 Michael assaulted another person resulting in a Grants Magistrate Court case FR-98-73. March 26, 1998 Michael was in prison and was charged by a criminal complaint with assault with intent to commit a violent felony, tampering with evidence, and bringing contraband into a prison. At the July 29, 1998 preliminary hearing the court found no probable cause for the charges and the case was dismissed.
• December 5, 1999 the Corrections Dept recorded an incident alleging that Michael refused prison guard orders, and incited a disturbance. Lovington District Court case CR-99-395 was assigned to Judge Clingman’s Court. December 6, 1999 Michael was in prison and was charged with assault by a prisoner, and conspiracy to commit a third or fourth degree felony. At a May 4, 2001 hearing the DA dismissed the case noting that Michael had been charged with the “wrong crime and a new criminal information will be filed”. I could not find that this case was re-filed.
• March 30, 1999 the Court amended Michael’s sentence by allowing him credit for time served prior to his conviction.
• March 12, 2004 Michael was paroled to the Intensive Supervision Unit. This unit is designed to keep close watch over his activities. At this time Michael was eligible for government programs such as Food Stamps.
• Bernalillo County Metropolitan Court case CR-15246-04 in Judge Michael Kavanaugh’s court. August 21, 2004 APD charged Michael with no vehicle registration, no vehicle insurance, careless driving, and criminal damage to property. September 17, 2004 Michael failed to appear in court and a warrant was issued for his arrest. This warrant had a bond of $350. Michael was in custody when he appeared on March 17, 2005 in court. His case was reset for May 25, 2005 where Michael failed to appear and another warrant was issued. June 3, 2005 Michael appeared at court and the case was set for trial on August 2, 2005. At this hearing the officer failed to appear and all charges were dismissed.
• June 2, 2004 Michael began his probation; this was in addition to his parole.
• September 28, 2004 a warrant was issued for Michael alleging a probation violation. It is important to understand that the Probation and Parole Officers are members of the Department of Corrections and they are the persons requesting that Michael be returned to prison. March 17, 2004 Michael was arrested.
• April 13, 2005 Michael appeared before Judge Knowles and admits his probation violation. He is returned to confinement.
• May 5, 2005 Michael appeared before Judge Knowles who ordered Michael back into Intensive Supervision for his probation. At this hearing Michael was given prison time credit for the time he had previously been on probation less 169 days that he absconded.
• Bernalillo County District Court case DV-2005-1179 in Judge Angela Jewell’s court. July 7, 2005 Norma Casa filed a Domestic Violence Protection Petition with children. July 8, 2005 the Bernalillo County Sheriff Department served Michael with the court order. August 1, 2005 Norma Casa requested that this case be dismissed. August 8, 2005 the court dismissed this case.
• August 16, 2005 Michael appeared on a probation violation. The probation violation report could not be located and he was released.
• November 5, 2005 Michael Astorga allegedly killed Candido Martinez.
• November 6, 2005 District Court issued a warrant charging murder.
• November 7, 2005 Parole issued a parole violation warrant alleging murder.
• March 17, 2006 the District Court issues a no bond probation violation warrant for Astorga’s alleging ten violations including the murder of Candido Martinez.
• March 22, 2006 Michael Astorga allegedly killed Bernalillo County Sheriff Deputy James McGrane.
• April 5, 2006 Michael was arrested on all of the above arrest warrants.
I ask again, is Michael Astorga an exception? Currently Bernalillo County Sheriff Department has over 70,000 Bernalillo County District and Metropolitan Court active arrest warrants. Some of these warrants are for persons outside of Bernalillo County but to put this in perspective, the Bernalillo County population is just over 700,000, this means that 10% have active arrest warrants.
I could go to court on any given day and research the court docket and find several persons with similar records. Michael is clearly a returning customer. If the court system was an airline, he would qualify as a frequent flyer. In early August inmate Herbert Perkins had an early release from prison. He was out six weeks before he was charged with brutal armed robberies where the victim/clerk was shot after complying with the robber’s requests.
Because of past Duran Consent Decree, Judges are aware of the number of detained prisoners. With little or no vacancies at our jails, the judges are restricted on sentencing persons to jail.
It is well known that if you have a case in Metropolitan Court you will receive a lighter sentence compared to any other New Mexico Magistrate Court.
Our court system is a branch of government that requires the taxpayers to subsidize it; yet the court has the power to impose fines thereby lessening the deficit. You are more likely to be fined in Metropolitan Court than District Court where you are appearing on a more serious crime.
So what is the perception of our prison? When I was a police officer one individual we arrested for over fifty counts of forgery checks and had a warrant for parole violation from Texas, told us, “I would rather do five years in Santa Fe than one year in Huntsville”. Why I asked? His reply was that he would be forced to work the (prison) fields from sun up to sun down. He told me that Santa Fe was not a problem, “I will workout, get in shape, and then be released”. He admitted that he would probably fall back into crime and be returned to Santa Fe.
What is the perception of different groups in the criminal justice system? The police- “I arrest them and all the DA does is release them and when we finally go to court the judges doesn’t do anything”. The prosecutor- “When I receive a case it is generally not complete (including all police reports). If I don’t release this person then I compete for Grand Jury time and the case must be completed and before the grand jury within ten days. The cases stack up and we try to indict the worst offender first. By that time I have numerous cases and we plea bargain.” The offender- “Oh they caught me this time but it will take them at least one year before I am indicted, and they may just forget my case so it doesn’t matter if I get caught more times because I will get a plea bargain”. The defense attorney- “I’ll keep filing motions forcing hearings and if the DA doesn’t respond timely I can get this case dismissed”. The judge- “the prisons are busting at the seams, if I send this person to prison the prison must release someone.” The probation or parole officer- “I have over one hundred persons I am responsible for now, I can’t get assigned another offender”.
The New Mexico legislature's perception is that adequate sentencing of violators needs to be sought, and pass laws increasing penalties. As an example of this is that the legislature has imposed “minimum mandatory sentences” for DWI offenders. This sentence removes some of the judge’s discretion.
Our current laws allow an inmate whose conviction is not for a violent crime to receive good time credit at a rate that would allow them to serve half of their sentence. A violent inmate must serve eighty percent of his sentence. Possession of a firearm by a convicted felon is not seen as a violent crime.
A prison warden is allowed to give an additional 30 days of good time per month. While the intent was to reward exemplary behavior it has sometimes been used for an inmate who practiced good hygiene that month.
There is an argument that non-violent criminals should not be incarcerated. The example used is a person on a drug conviction. With rare exception a burglar is an addicted drug user. A burglar is a person who breaks into your home. It is not uncommon for them to commit one to three burglaries per day to support their habit. Since it takes about one year to bring an offender before the court, simple math show the burglar has committed well over 300 burglaries. Statically a person committed to prison for a homicide is an individual who during the heat of the moment killed another person and once released from prison that person will not commit another felony. Society is horrified by the murder’s actions and demand lengthy sentences. Obviously Michael Astorga is the exception to this rule.
I agree that judges should have sentencing discretion, but we must have enough room for them to sentence persons to prison without forcing them to suspend part of their sentences due to overcrowding. The legislature should reexamine how a person receives good time. Currently goodtime is tied to monthly behavior. This should be changed to yearly good behavior and credit should be closely tied to productive behavior such as daily employment on a prisoner detail. We need to expand the details that work with the Highway Department or other governmental agency. Their work for these agencies will help defray the prison costs.
Every jail or prison in New Mexico is in financial crisis. Many counties quarterly contact the state and receive monies to keep their jails operating. We must understand that if we want the criminals locked up we will need more prisons. Bernalillo County Detention Center can house up to 2200 inmates per day. That is its maximum capacity and it is currently at that level. The operational cost for just housing an inmate is just over $72 per day.
As of June 2006 New Mexico prisons house 6,742 inmates with 18,798 persons on probation or parole. New Mexico prison costs are just over $81 per inmate per day.
The community has a choice. We can spend money on housing inmates making our communities safer and creating a perception of punishment, or we can have early release programs that will allow us to become victims of crimes and pay higher insurance premiums. In the last couple of years, the Corrections Department has opened new facilities but Governor Bill Richardson has vowed not to build any new prisons and will be the largest obstacle in any effort to house additional criminals.
Without a public perception of a penalty, violators and criminals will continue their errant ways.
During the next legislative session I will introduce legislation to close some of the prison loopholes.
Sincerely,
Bill Rehm
New Mexico State Representative District 31