Santa Fe’s D.A. Candidates Want to Wind Down the War on Drugs

The Political Report talks to the two DA candidates in New Mexico’s First Judicial District. They share similar views on drug policy, part ways elsewhere.

Daniel Nichanian   |    May 15, 2020

Photo by Greg Gjerdingen (licensed under CC BY 2.0)

This article originally appeared on The Appeal, which hosted The Political Report project.

The Political Report talks to Mary Carmack-Altwies and Scott Fuqua, who are running in New Mexico’s First Judicial District. They share a similar perspective on drug policy and part ways elsewhere.

Read our statewide primer on New Mexico’s DA elections.

Mary Carmack-Altwies and Scott Fuqua, who are facing one another in a Democratic primary for district attorney on June 2, agree that New Mexico’s drug policies are too harsh. People with substance use issues should not be saddled with criminal convictions or incarceration, they say.

Prison admissions over drug-related offenses have surged in the state this decade, according to an analysis by the ACLU of New Mexico; addiction problems have as well. Rio Arriba County, one of three counties in the First Judicial District alongside Santa Fe and Los Alamos counties, has had one of the nation’s highest overdose rates. “We’ve been trying to incarcerate our way out of drug addiction for 40 years, and it hasn’t worked,” Carmack-Altwies told me. Both candidates also say they would not prosecute marijuana possession, and support its legalization.

Here Carmack-Altwies and Fuqua sound like the man they hope to replace: Marco Serna won in 2016 on a reform message that centered on not treating addiction as criminal behavior. Once in office, Serna, who is not seeking re-election as DA this year to run for Congress, helped implement Santa Fe’s LEAD (Law Enforcement Assisted Diversion) program to arrest fewer people for drug offenses. 

But Serna objected last year when the opportunity arose to overhaul the state’s drug laws and no longer leave it to prosecutorial discretion and success in diversion programs whether people avoid felony convictions. When lawmakers took up a bill to defelonize drug possession, and so to greatly reduce penalties, the New Mexico District Attorney Association (NMDAA) asked them to not pass it. The head of the NMDAA told me all 14 DAs approve such releases; Serna was one of the group’s leaders. His campaign did not reply to a request for comment on his objections.

Carmack-Altwies and Fuqua both unequivocally said they support defelonizing drug possession, by contrast. One of them is sure to be the next DA—no one else filed to run, so the June primary will decide the election—and that could shift the statewide politics on at least this topic.

“This district includes a lot of citizens who struggle with drug addiction,” Fuqua told me. “Giving them a felony conviction, because they happen to have on them a substance that is a symbol of that struggle, is backwards.” 

I talked to Carmack-Altwies and Fuqua this week about their views on a range of policy issues and their approach to criminal justice reform. These conversations are transcribed below and, in a Political Report first, side-by-side: I emailed each of them a list of initial questions, and then asked follow-ups in separate phone interviews. 

Carmack-Altwies and Fuqua both expressed support for another bill that stalled last year, and that would have expanded voting rights by enabling people who are on parole and probation to vote. Neither backs altogether ending felony disenfranchisement, however.

Carmack-Altwies was more direct in stating a desire to shrink the incarceration rate, and also to lessen the volume of criminal convictions though pretrial diversion. “Reducing mass incarceration,” she said, must go hand-in-hand with “actually reducing conviction rates for people that are coming into the criminal justice system.”

On several other issues, Fuqua embraced a bolder version of reform. Regarding the state’s hottest recent criminal justice debate — a 2019 bill vetoed by the governor that would have likely increased parole grants for people with very lengthy sentences — Fuqua said the DAs’ concerns about public safety were “overstated,” whereas Carmack-Altwies laid out a position akin to the DAs who fought the legislation. And when asked about the state of New Mexico’s bond system since the 2017 bail reform, only Carmack-Altwies voiced some regret that it may have made it too hard in some cases for prosecutors to obtain pretrial detention, though she said she backed the changes overall.

The interviews have been condensed and lighty edited.

Do you see a desire to significantly reduce the district’s incarceration rate as an important tenet of your campaign? If so, what policies would you support and implement that would make the biggest impact in reducing incarceration?

Scott Fuqua: That isn’t really one of the central tenets of my platform.  That said, I think the single biggest way to reduce the number of people incarcerated in my district is to stop sending them to jail for the possession of illegal drugs. Drug crimes are easily the biggest slice that has contributed to the overincarceration of Americans.

I would like to institute a collaborative or restorative justice program in which criminal actors and their victims sit down together in a mediated context to really discuss the effects of the criminal behavior.  There is a program in D.C. that intrigues me, and if I win my primary election in a few weeks I’m going to dig into that program in earnest. That could potentially be used to keep people out of jail for a variety of non-violent offenses.

Mary Carmack-Altwies: Yes, it is. My background is from a criminal defense perspective, I spent 13 years as a criminal defense attorney before I became a prosecutor. And part of the reason that I decided to become a prosecutor was so that I could affect change, like reducing mass incarceration. The main thing for me is, we are a small poor state and yet we have a huge percentage of our population that’s incarcerated. I would like to start looking at completely changing the way we prosecute, focusing not on the easy cases because drug cases are super easy to prove, but on the hard cases, on the violent cases, on the cases that have actual victims. What we’re doing is not helping, and I think it’s actually probably made it worse.

The primary platform that I’m running on is that we are going to really increase diversion programs for low-level and nonviolent offenders. The idea is to get people completely out of the criminal justice system: not just focusing on reducing incarceration, but actually reducing conviction rates for people that are coming into the criminal justice system. We could just say we’re not going to send them to prison, but if they still end up with a felony conviction, they’re still impacted for the rest of their life by that conviction because it makes it impossible to get student loans, Section 8 housing, food stamps, welfare benefits. 

Nichanian: So, it’s important to you that diversion be happening at the pretrial stage.

Carmack-Altwies: Correct.

On your website, you say that we should move away from treating substance use disorders as a criminal issue. As a DA, how exactly would you reform the current approaches to drug-related offenses to counter that? What role should criminal prosecution still play, and where should it get out of the way?

Fuqua: To me, the key is treatment. There are several organizations operating in the private sector in my district that could be fruitful partners with the criminal justice system in helping people struggling with addition find a better path. I don’t view addiction as an excuse sufficient to avoid punishment for other crimes. But if treatment is not a central component of the sentence we’re wasting an opportunity to both help somebody and to drastically reduce the chance that the person commits a similar crime in the future. I would also decline to prosecute most simple possession cases, and certainly for marijuana. I’m not honestly sure yet how I would handle possession of substances like methamphetamines.

Nichanian: Could you say more about this approach to not prosecuting certain cases, and what charges you would adopt this policy with?

Simple possession of marijuana cases is the easiest place to start. We’ve come a long way towards the legalization of marijuana, and continued prosecution is less and less viable. If somebody gets picked up with an amount of marijuana that is obviously for personal use, as opposed to an attempt to distribute, is it worth spending the limited prosecutorial resources of the office on those cases as opposed to spending them on other cases? Increasingly the answer is no. The DA has the prosecutorial discretion to decide what cases to pursue and what cases not to pursue. 

Nichanian: What about possession of other substances?

I haven’t made a firm decision about how to handle a simple possession of methamphetamine, or cocaine, or heroin. The third party externalities of the use of those drugs are different. The decision point really is just prosecuting civil possession of methamphetamines put a significant enough dent in their use, and in those third party externalities that come along with their use, to justify the prosecution, and that’s going to require some data that I don’t have.

Carmack-Altwies: The DA’s office can offer what I’ve been calling holistic wraparound services. So not just diverting people by saying go to this 30 day rehabilitation program and hoping that they’re all better. Instead, I want to meet people where they are. I want to get to the root causes of how and why are you addicted in the first place so that hopefully we can interrupt the pattern of behaviors the person is engaging and instead offer them the support to get on a pathway to a better life. Obviously, that’s not going to work for everybody. We know looking at statistics that a person fails rehabilitation on average five times before it actually sticks, and we need to be there as ongoing support. 

I think society is quickly moving towards an understanding that substance use disorders should be treated as a medical issue, but we have all of these laws in place so we’re getting arrests all the time. We’re treating them as a criminal justice issue. And the only way that that is going to change is at the front line by the DA, and that’s what I want to do. I’m not saying never prosecute those cases, but prosecute those with an eye toward rehabilitation and treatment instead of incarceration.

Nichanian: But are there categories of cases where you would want to decline to prosecute altogether, as we’ve seen some DAs do around the country?

We will decline all marijuana prosecution cases. I’m not going to prosecute them. It’s a waste of resources, and I think it’s been so it’s been shown to be such a racially biased prosecution and in the way that people get arrested. We’re not going to do that. Other drugs, I’m not going to say we will categorically refuse to prosecute possession drugs, but we will pretty much categorically refuse to treat those as felonies, even though that is how they are still charged.

Last year, the legislature considered a bill (SB 408) to reduce drug possession penalties to the level of a misdemeanor; state DAs wrote a letter opposing the proposal. Would you support or oppose such a proposal?

Fuqua: I would fully support making simple possession a misdemeanor. The continued opposition to something like reducing simple possession cases to a misdemeanor is puzzling to me. A DA here, in the First Judicial District, which is about as blue as it gets in the state, that doesn’t make any sense to me, especially because this district includes a lot of citizens who struggle with drug addiction. Giving them a felony conviction, because they happen to have on them a substance that is a symbol of that struggle, is backwards.

Carmack-Altwies: I would support it.

A final question relating to drug policy: Marijuana legalization has been debated in the state in recent years. Would you support or oppose it?

Fuqua: I support the legalization of marijuana. It is, honestly, a little bit of a surprise to me that I do. I’ve never smoked marijuana and never will. I don’t think recreational marijuana use is a very smart thing for people to do. But I recognize that my thinking something isn’t a terribly smart thing to do is an insufficient basis for the criminalization of that thing. And, for a state like New Mexico that is so dependent on oil and gas revenues to fill its coffers, the legalization of marijuana represents a huge source of potential revenue.

Carmack-Altwies: Yes, 100 percent. I support legalization of marijuana. Those are easy questions for me.

The legislature adopted House Bill 564 in 2019; it was meant to reduce incarceration over probation/parole violations, and make it potentially easier for some people to access parole after 30 years in prison by shifting the burden of justifying denial with specificied reasons on the parole board. State DAs successfully urged the governor to veto the bill. What is your view of this 2019 bill?

Fuqua: The only thing that gives me any pause is the possibility that a person on parole who commits a non-technical violation—defined in the statute as being arrested for a new felony or misdemeanor or absconding while on parole—wouldn’t have his or her parole revoked. Staying out of trouble, and specifically avoiding arrest, is a typical condition of parole. I would expect that to remain the case.

I frankly think the concerns raised by the prosecutors in their letter to Governor Lujan-Grisham are overstated. The requirement that the parole board make specific written findings in support of its decision means that the board will duly consider the factors that it believes are most pertinent on a case-by-case basis, and I don’t see why that’s a problem. 

I also disagree that the law would turn dangerous people out onto the streets. The parole board obviously has the power to deny a request.

Nichanian: Digging into the violation aspect, do you think that right now people are too easily incarcerated for technical violations, and how would you change that?

As a factual matter, I don’t know what the rate of reincarceration is for what would be a technical violation of parole. And of course part of that answer is defining specifically what a “technical violation” is. More generally, though, I don’t see the benefit to maintaining prison populations because somebody has violated parole in a way that doesn’t indicate they’re a threat to society.

Carmack-Altwies: With regards to reducing incarceration over probation and parole violations for technicals, I support that. But I didn’t particularly support the bill as it was written. For example, it didn’t have technical violations well defined. And it didn’t really have the appropriate punishments other than incarceration defined. As someone who has practiced on both sides for years and years, if there’s not a stick, then oftentimes people won’t take advantage of the carrot. 

With regard to access to parole, I don’t support shifting the burden with regard to letting them out or making it easier for those people to get out. The only people that are in custody for life sentences are people that have been convicted of first degree murder, or first degree child abuse resulting in the death of the child. Those are the most heinous crimes that we have in our society. A lot of times juries think that when someone is given a life sentence, it’s going to be life without parole, then to find out that after 30 years this person could be getting out, that would be concerning to me. I didn’t like how much that bill shifted the burden; it would have shifted the burden to the parole board to show that the person hadn’t reformed. It almost seems to me like it was going to be an automatic, you’ve served 30 years, and now you get out.

Nichanian: Reform advocates in various places in the country have pushed for rethinking life and quasi-life sentences, and getting everyone a meaningful chance at parole after 20 or 30 years. Your answer just now seems to oppose such a proposal; is that so, or would you be open to such a proposal?

It’s not that I would be opposed to it. It’s just I don’t think it should be an automatic thing. I think that the burden should be on the defendant and the defendants’ attorneys to show they’re reformed, rather than the burden being on the state or the government to show that they haven’t reformed.

Nichanian: To return to technical violations, you mentioned concern about a lack of clarity. As DA, some of this is up to you. What would you do to reduce incarceration of people on parole and probation?

There can be a whole host of sanctions that can be given before we get to incarceration. For example, relapse is going to happen, we know that, so we can offer more treatment, more testing, more counseling. We should have enough flexibility. Another one that we see a lot is being late or missing appointments. In a rural state like New Mexico, if somebody doesn’t have a car, and they’re depending on walking, biking, or public transport, they’re gonna be late and miss things. So what can we do to keep them out of custody? A lot of times, I look at it like we’re criminalizing poverty instead of actually trying to help people get on a better track. We just constantly keep beating them down, we’re setting them up for failure. I think probation needs to become a whole lot more flexible, and if probation won’t do it, then the DA’s office will do it.

New Mexico’s bail reform has been a major topic this decade, and some DAs or DA candidates have said it should be easier to keep people detained pretrial. What is your view on that position, or on whether the status quo is appropriate?

Fuqua: The status quo of New Mexico bail is different with the adoption of a constitutional amendment a couple of years ago. The amendment was championed by Charles Daniels, who served on the New Mexico Supreme Court at the time. He was a professional acquaintance who became a friend over the last twelve years. He died last September after being diagnosed with ALS. I say all of this by way of background because the issue for me is tied to the legacy of someone I admired a great deal. In my opinion, the bail reform in New Mexico turned bail into what it was supposed to be – if a person poses a risk to the community, they stay in jail. People are not otherwise forced to stay in jail because they are too poor to buy their way out.

Carmack-Altwies: I one hundred percent supported getting rid of cash bail and cash bonds. The way that I think the rule came down from our supreme court, I think, is a little bit too restrictive. The pendulum swung from one extreme all the way to the other, and so I think it should be somewhat easier to detain people in this state. There are some where we have a hard time proving that a person should be held, because we just don’t have everything from the law enforcement agencies yet. But at the same time, the Supreme Court was trying to correct a huge wrong in our system. And I thought that for the most part they achieved that. 

People with felony convictions currently cannot vote in New Mexico until they have completed their sentence, including terms of parole or probation. The legislature debated proposals last year to restrict felony disenfranchisement. One would have gotten rid of it altogether; an amended version would have enabled anyone who is not incarcerated to vote, including if they are on parole and probation. What is your view on this issue, and on how long — if at all — you would support people’s voting rights being stripped?

Fuqua: I would need some persuading that people currently incarcerated should be permitted to vote while incarcerated. Some of that is just logistical frankly. Also I am not personally offended by the notion that part of the punishment for violating laws in the state of New Mexico is that for, at least a time, you are restricting your ability to vote. Now the idea that if you’re convicted of a crime you permanently lose the right to vote, that’s stupid. You have to make it possible for them to be productive citizens. You’re just setting people up to fail in the most cynical way. So I do think that voting rights should be restored to people at the conclusion of their term of incarceration. 

Nichanian: So, to clarify, the bill that made it to the floor in 2019 would have restored the rights of people on probation and parole, though not while they are incarcerated. So you would be supportive of such a reform?

Yes, I can support people on parole being able to vote. There may be some brilliant reason I haven’t thought of as to why that’s a bad idea, but I have a hard time seeing what it is. I think part of reintegration into society is giving them a voice in the democratic process.

Carmack-Altwies: I think the best expression of my view is that I believe that voting is a fundamental right. I think after they have served an incarceration sentence, people should be allowed to get their rights back. We are not punishing them as much as people who are incarcerated, and I think they should have their civil rights.

On some of the issues I asked about, the current DAs acted together to oppose legislative reforms. Do you want to be a new sort of DA in the state, one that takes an overall different approach to criminal justice reform, or do you see yourself more as a continuity?

Fuqua: The opposition to reducing possession to misdemeanor offenses feels like a vestige of the war on drugs to me. It feels like a vestige of the 1980s and 1990s, “We need to be tough on crime. I can only get elected to the office of district attorney if I can demonstrate that I’m even tougher on criminals than my opponent.” The empirical evidence is undeniable that that approach failed, particularly with drugs. It is painfully clear that that approach didn’t do what it was supposed to do. So my approach would be different. If every DA in New Mexico in this last legislative session opposed a bill that would lower the severity of drug possession offenses from a felony to a misdemeanor — well, if that same bill came up again, and I’m in the district attorney’s office, it’ll be 13 to one, unless I can convince other people to come on board with it.

Carmack-Altwies: The answer is a little bit of both. There are some things that I’m just going to be further out from people that have been career prosecutors. They’ve spent their entire careers thinking, “Drug crimes, drug crimes are bad,” and while I don’t necessarily disagree that drug addictions can lead to bad crimes, I do disagree that what we’ve been doing works. We’ve been trying to incarcerate our way out of drug addiction for forty years, and it hasn’t worked. I would like to make the first Judicial District a model for the state with new, innovative ways of prosecuting.