“There’s an Appetite for Change” in Rural Counties, Says New Mexico D.A. Candidate

Brett Phelps, a public defender who is running for DA in the June Democratic primary, makes the case that rural areas are crucial for criminal justice reform.

Daniel Nichanian   |    May 15, 2020

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

Brett Phelps, a public defender who is running for DA in the June Democratic primary, makes the case that rural areas are crucial for criminal justice reform.

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

New Mexico’s Fourth Judicial District, sparsely populated but larger in land size than New Jersey, is the sort of heavily rural area that has yet to play a starring role in the rise of progressive prosecutors. Although the 2019 cycle saw candidates win on reform platforms in some suburban and rural counties, urban centers like Philadelphia and San Francisco remain in the spotlight.

Brett Phelps, a public defender, is running for district attorney by making the case that reform and decarceration should reach counties like his. “The need for change extends beyond big cities, and the recognition by people of that need for change is not limited to big cities,” he told me this week. 

Incarceration has soared in rural counties around the nation, and in New Mexico as well, fueled in part by heightened pretrial detention, punitive responses to the opioid crisis, and constraints on access to care. “In my judicial district, there’s incredibly limited inpatient drug treatment,” Phelps said. “It’s really hard for people, even if they’re personally motivated to want to get help, if they have to travel 300 miles to go to an inpatient rehab center.” He added, “I would encourage anybody who is in a rural area to be vocal about these issues.”

I talked to Phelps this week on his platform, and on why he thinks he could make a difference in the state’s statewide politics as well. 

In recent years, New Mexico DAs unanimously fought to block legislative reforms to lessen the severity of drug charges, to reduce prison as a sanction for parole and probation violations, and to make it somewhat easier for people to be granted parole. Phelps, though, advocated for those bills as a member of the New Mexico Criminal Defense Lawyers Association, and he says he will continue doing so if elected DA, potentially giving state reformers a rare prosecutorial ally.

In the course of our conversation, Phelps described his goal of growing diversion programs, not prosecuting marijuana possession and some petty larceny cases that are linked to economic need, and promoting restorative justice, which he thinks would be well-suited to smaller communities.

He also pointed to a recent estimate by New Mexico Counties that one third of the budget of county governments goes into incarceration. Some local officials have pushed lawmakers to remedy this by taking on a larger share of that spending. But Phelps called for reinvestments.

The “cost to warehouse somebody” is “money that’s not being spent on education, on treatment, and on things that really can make a positive difference in people’s lives,” he said. 

Phelps faces Thomas Clayton, a deputy DA who did not respond to a series of questions on his own policy views, in the Democratic primary on June 2. No Republican has filed for the seat.

Your website talks of fighting a “broken system.” What aspects of the system do you consider to be broken, and what have you seen in your work as a defense attorney that gets to that?

Our current criminal legal system does not address the root causes of crime. If the goal of the criminal justice system is to keep people safe, incarcerating people for crimes related to poverty, addiction, mental health issues is not going to do that. Punishment for the sake of punishment doesn’t make our communities safer. In my experience as a defense attorney, I have clients going to prison when what they need is treatment and help; there are not enough resources available out there for the people who really need help. Then, if you look at employment and other life opportunities, these can really be harmed by felony convictions and the lack of help and reentry services for people who are incarcerated. They’re more likely to reoffend in a lot of cases, even if it’s only a short period of incarceration: It doesn’t take long for most people to lose their job, lose their house. And then, the disproportionate impact on people of color through our criminal legal system, I look at as an area for major improvement.

In my experience writing on DA elections, I have more frequently come across candidates defending a reform-minded platform in urban and sometimes suburban jurisdictions, and still more rarely in rural areas. What comes to mind as specific challenges to the criminal legal system and also to reforming it in a more rural area like your district?

That’s a great question. The biggest thing that jumps out at me is access to resources, treatment centers. In my judicial district, there’s incredibly limited inpatient drug treatment. It’s really hard for people, even if they’re personally motivated to want to get help, if they have to travel 300 miles to go to an inpatient rehab center. That’s going to be a major deterrent for a lot of people. 

Here we’re a very rural community. A lot of times, the victims know the offenders. They have some preexisting relationship. That causes extra challenges. I also think from a restorative justice perspective, that provides greater opportunities for healing.

And one of the things that I think is important for people to keep in mind: my main motivation for this is largely from a human rights perspective, but the reality is that the fiscal impact on rural counties is tremendous. In New Mexico, approximately one third of spending for counties is on incarceration. That’s money that’s not being spent on education, on treatment, and on things that really can make a positive difference in people’s lives. I think that’s something that resonates with a lot of people, understanding the fiscal reality: What’s your return on investment for paying the cost to warehouse somebody, rather than investing it in more forward-thinking programs? 

And in the course of your campaign, have you found that there are specific rewards or challenges to running on a reform platform in a rural area?

I think a lot of people would rush to the judgment that, “Oh, it’s out in a rural area. They’re not going to be interested in these kinds of reform ideas.” But that has not been the case for us. This idea that there’s issues with our criminal justice system that really need to be addressed is shared by people from all backgrounds, all jurisdictions. 

There’s an appetite for change that cuts across the rural/urban divide. And it can be done. That’s what I’d like to put out there: People aren’t going to talk about it if somebody doesn’t get out there and be the voice for that change. I would encourage anybody who’s in a rural area to be vocal about these issues, because for us it’s been a hugely positive response. Even if people don’t necessarily agree entirely on the platform, nobody’s denying that these problems exist.

So do you think, if you were to win with your platform, that is something that should be paid attention to beyond your district? Why should people across the state or country pay attention?

There are only 14 DAs for the entire state, and even though it’s a small population, it really is a significant voice in this discussion to be one of 14 elected DAs. That would amplify the message at a statewide level. 

What I would say beyond a statewide level is that a lot of times the focus on where changes are happening is in bigger areas. But reform is needed everywhere. It’s not just in cities where issues of drug addiction and treatment are important. They cut across all lines.

And inversely, are there prosecutors or campaigns elsewhere in the country that have inspired you?

Absolutely. I’d probably start with Larry Krasner in Philadelphia. He’s the first one that comes to mind of people who don’t come from a prosecutor’s background. Rachel Rollins in Boston, a handful were running in Virginia recently, Tiffany Cabán in Queens, and Chesa Boudin in San Francisco. What works in some of those places I don’t think would necessarily be the right fit out here, and I don’t want to necessarily adopt all of their policies, but just in terms of a different approach to what a DA could be, those are just some of the ones that I’ve looked at.

For people in rural areas, when they see stories about the Larry Krasners and the Rachel Rollins in these big cities, it doesn’t have to be limited to that: The need for change extends beyond big cities, and the recognition by people of that need for change is not limited to big cities. 

Let’s delve into some of your policies, then. New Mexico as a whole has a high incarceration rate. How do you propose, as DA, lowering prison admissions in your district? 

I think that is a critical aspect of the campaign: How do we keep our communities safe in a way that isn’t just warehousing people? Coming from a community safety-perspective, recognizing that putting people in jail and in prison is really not a good long-term solution for community safety, and so looking at how we can reduce the rates of incarceration as a means to make our communities safer. That might be counterintuitive to some people, but we can look at how we address crime and address these public safety issues without just incarcerating. 

Some of the things that I would like to see is really increased use of pre-prosecution diversion programs. That is something that’s available right now, but is fairly selective in its availability, and fairly limited in the kind of resources that are provided through those diversion programs. The judicial district to the north of us, the district that includes Taos County, they’ve partnered with the University of New Mexico-Taos so anyone in the diversion program or their spouses can take classes free of charge. That’s the type of thing I would love to implement here: We have a great university (New Mexico Highlands University) and a great community college (Luna Community College) with a lot of technical programs and technical trade programs. Increasing our use of those diversion programs to redirect people who are arrested towards education and employment would get at some of the root causes of crimes. 

Drug addiction is a major community issue. What I would like to bring out here is the LEAD (law enforcement assistance diversion) programs they’ve been using in Albuquerque and Santa Fe, where you’re redirecting people into services and treatment at the initial point of contact with with law enforcement, so even pre-arrest, and keeping people out of the system entirely. 

Another thing that I would like to see brought here is restorative justice programs that allow people who have been harmed by crime an opportunity to confront the people who have wronged them, who committed these crimes, in a way that’s going to help heal the community as a whole and help those individuals heal. A lot of times, the adversarial system in the courtroom is not the best way for victims of crime to come to terms with what happened with them and confront the perpetrator in a way that they walk away feeling like justice has been served. 

It’s easy for people to come to the conclusion that, if you’re not going to put people in jail then they’re just going to get to get away with all these things, but there are other ways to hold people accountable beyond incarceration. 

You earlier mentioned Rachel Rollins; she ran on the point that certain charges shouldn’t be up to criminal prosecution at all, and that she wouldn’t charge them. Is that a strategy you would emulate on some categories of cases?

Mmarijuana offenses for simple possession is not something that my DA’s office would be interested in pursuing. That’s the most obvious one. It’s hard to look at others from a categorical perspective the same way as marijuana possession, but petty larceny—if people are stealing for survival, food and diapers, there’s not going to be much appetite for prosecuting those types of cases. It’s not that I can say across the board we’re never going to prosecute these kinds of cases, but there’s not a huge need for the DA to use their limited resources to pursue them. 

Here we’re a very rural community. A lot of times in property crimes and those kinds of things, the victims personally know who the offender is; it’s somebody’s cousin, it’s somebody’s friends, someone that they’ve grown up with. And they don’t want to see that person necessarily end up in jail or prison over it. They do want something to be done. There are different ways that you can approach cases as a prosecutor without an end goal of incarceration. So I think listening to what the victim wants to see happen, and giving them a fair say in how the cases are resolved would really drive our approach to how we want to handle cases.

And would you support the state legalizing marijuana, as has been debated recently?

Yes, absolutely. That’s something that I’ve been advocating for at the legislature since I was in law school. That’s actually a big part of my story of how I got in this position: When I was 18, I was charged with possession of marijuana and that really shapes my views on things. At the time I thought this was going to ruin my life, and fortunately that was not the case, but I’ve seen how people who are in a less well-off position than myself how it has done that. I’ve had clients who have been incarcerated for marijuana crimes, for marijuana possession. I think there are technical issues with how they implement it, particularly with how they implement the market and are able to incorporate people that have been harmed by those laws in the past.

In 2019, state DAs opposed Senate Bill 408, a bill that would have reduced drug possession to the level of a misdemeanor. Did you, or would you, support that bill?

I was a supporter of that bill when it first was introduced, and would continue to support it if it was reintroduced. I’m a board member for our New Mexico Criminal Defense Lawyers Association, and in that role we do a lot of advocacy up there at the legislature and I was actually there with the legislators that introduced it when they did a press conference introducing that legislation, and then advocated for it through the legislative session. If you’re talking about strictly personal possession, the collateral consequences of a felony conviction far outweigh the public safety goals that you’re trying to achieve that can be done with a misdemeanor charge as well. 

A bill that got even further last year was House Bill 564, which would have reduced the resort to incarceration when people violate conditions of parole and probation, and also required that the state justify denying parole to people in prison for at least 30 years. The governor vetoed the bill last year, and it came back in narrower form. Did you support or oppose the aspects of the reform in the 2019 legislation?

I support the reform. That was another one that we advocated for at the legislature. One of our highest drivers of incarceration is probation and parole violations. One of the things that I see far too often with my clients as a defense attorney is: They’ll take a plea and they’ll stay out of prison or jail initially, but they’ll have some long period of probation. If you’re on probation for several years and you’re supposed to be checking in regularly throughout that entire time, the fact that you could potentially be sentenced to prison for missing a check-in, for being late to a check-in with your probation officer, I think that there is room for improvement. So I did support that bill. 

New Mexico lawmakers pushed proposals to either end or restrict felony disenfranchisement last year; the current status-quo in the state is that people cannot vote until the end of their sentence, including incarceration, as well as parole and probation. What is your view of whether people should lose their voting rights, and when those should be restored?

I don’t think people should lose the right to vote. I think the more people that can vote and that exercise their right to vote makes for a healthier democracy.

You can’t just disenfranchise people at a massive scale through criminal convictions. The right to vote is something that people have fought really hard to expand and to guarantee that right to people, and so I think it’s a really important thing that holds people accountable: the people that are making these laws, if they’re able to just disenfranchise people through increased criminalization, then I don’t think there’s a good mechanism to hold them accountable. Particularly if you’re looking at a DA’s race, those are the people most directly impacted by that political position, and so I think it’s just good to hold our elected officials accountable.

The relative budgets and influence of prosecutors and public defenders have been at issue in recent years. What has been your experience on the equity between them, and the challenges you’ve encountered?

That’s definitely a real issue out here. In our office, it’s me and one other attorney, we’ve got over 300 active cases as the contract public defender. That is a pretty massive caseload. There’s issues of funding and equitability between the PDs and the DA’s office. At the legislature, they set the budget for the DA’s offices and the public defenders across the state, and they’ve been pretty eager to give money to the DA side of things, the law enforcement side of things, without necessarily asking for a lot in return and accountability, whereas for the PDs they’re not so easy or willing to give the equal money there to defend. If you’re not funding the defense side of things and the prosecution side of things equitably, then you’re never going to have a good working system.