2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 21 - Sentence, Pardons and Paroles › Section 31-21-10 - Parole authority and procedure.

A. Except as provided in Section 31-21-10.2 NMSA 1978, an inmate of an institution who was sentenced to life imprisonment becomes eligible for a parole hearing after the inmate has served thirty years of the sentence. Before ordering the parole of an inmate sentenced to life imprisonment, the board shall:
(1) interview the inmate at the institution where the inmate is committed;
(2) consider all pertinent information concerning the inmate, including:
(a) the circumstances of the offense;
(b) mitigating and aggravating circumstances;
(c) whether a deadly weapon was used in the commission of the offense;
(d) whether the inmate is a habitual offender;
(e) the reports filed under Section 31-21-9 NMSA 1978; and
(f) the reports of such physical and mental examinations as have been made while in an institution;
(3) make a finding that a parole is in the best interest of society and the inmate; and
(4) make a finding that the inmate is able and willing to fulfill the obligations of a law-abiding citizen.
If parole is denied, the inmate sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.
B. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was sentenced to life imprisonment shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.
C. An inmate of an institution who was sentenced to life imprisonment without possibility of release or parole is not eligible for parole and shall remain incarcerated for the entirety of the inmate's natural life.
D. Except for certain sex offenders as provided in Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.
E. Every person while on parole shall remain in the legal custody of the institution from which the person was released, but shall be subject to the orders of the board. The board shall furnish to each inmate as a prerequisite to release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the inmate as evidenced by the inmate's signature affixed to a duplicate copy to be retained in the files of the board. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If an inmate refuses to affix the inmate's signature to the written statement of the conditions of parole or does not have an approved parole plan, the inmate shall not be released and shall remain in the custody of the institution in which the inmate has served the inmate's sentence, excepting parole, until such time as the period of parole the inmate was required to serve, less meritorious deductions, if any, expires, at which time the inmate shall be released from that institution without parole, or until such time that the inmate evidences acceptance and agreement to the conditions of parole as required or receives approval for the inmate's parole plan or both. Time served from the date that an inmate refuses to accept and agree to the conditions of parole or fails to receive approval for the inmate's parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the inmate make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the inmate of the conditions of parole and the inmate's duties relating to those conditions of parole.
F. When a person on parole has performed the obligations of the person's release for the period of parole provided in this section, the board shall make a final order of discharge and issue the person a certificate of discharge.
G. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the inmate as a condition of parole:
(1) to pay the actual costs of parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the inmate. The inmate's payment of the supervised parole costs shall not be waived unless the board holds an evidentiary hearing and finds that the inmate is unable to pay the costs. If the board waives the inmate's payment of the supervised parole costs and the inmate's financial circumstances subsequently change so that the inmate is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the board and the board shall hold an evidentiary hearing to determine whether the waiver should be rescinded; and
(2) to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to the inmate's arrest, prosecution or conviction.
H. The provisions of this section shall apply to all inmates except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act.
History:
1978 Comp., § 31-21-10, enacted by Laws 1980, ch. 28, § 1; 1981, ch. 285, § 3; 1982, ch. 107, § 1; 1983, ch. 136, § 1; 1987, ch. 139, § 4; 1988, ch. 62, § 2; 1994, ch. 21, § 1; 1994, ch. 24, § 4; 1996, ch. 79, § 4; 1997, ch. 140, § 2; 2003 (1st S.S.), ch. 1, § 8; 2004, ch. 38, § 2; 2005, ch. 59, § 3; 2007, ch. 69, § 3; 2009, ch. 11, § 4; 2023, ch. 24, § 2.
ANNOTATIONS
The 2023 amendment,
effective June 16, 2023, provided for parole for children sentenced as adults; in Subsection A, in the introductory paragraph, added "Except as provided in Section 31-21-10.2 NMSA 1978"; in Subsection E, after "inmate's duties relating", deleted "thereto" and added "to those conditions of parole"; and in Subsection G, Paragraph G(1), substituted "inmate" for "defendant" throughout the subparagraph.
Applicability.
— Laws 2023, ch. 24, § 5 provided that the provisions of Laws 2023, ch. 24 apply retroactively to all offenders currently serving an adult sentence for an offense committed as a child.
The 2009 amendment,
effective July 1, 2009, in Subsection B, replaced "convicted of a capital felony" with "sentenced to life imprisonment" and added Subsection C.
The 2007 amendment,
effective July 1, 2007, made the section applicable to all crimes for which an inmate has been sentenced to life imprisonment.
The 2005 amendment,
effective June 17, 2005, provided that an inmate sentenced to life imprisonment for a first degree felony resulting in the death of a child becomes eligible for a parole hearing after serving thirty years of the sentence.
The 2004 amendments,
effective July 1, 2004, amended Paragraph (1) of Subsection F to change one thousand twenty dollars ($1,020) to one thousand eight hundred dollars ($1,800), fifteen dollars ($15.00) to twenty-five dollars ($25.00), eighty-five dollars ($85.00) to one hundred fifty dollars ($150) and to add after "($150) "as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised parole costs shall not be waived unless the board holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the board waives the defendant's payment of the supervised parole costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the board and the board shall hold an evidentiary hearing to determine whether the waiver should be rescinded".
The 2003 (1st S.S.) amendment,
effective February 3, 2004, substituted "an institution" for "prison" in Subparagraph (2)(f) of Subsection A, added "except for sex offenders as provided in Section 31-21-10.1 NMSA 1978" at the beginning of the first sentence of Subsection C and substituted "an institution" for "a corrections facility" in the first and second sentences of that subsection, and substituted "institution" for both "correction facility" and "facility" in the fourth sentence of Subsection D.
Commencement of parole.
— Subsection C of Section 31-21-10 (now Subsection D) requires commencement of the parole period as soon as the felony sentence has been completed.
Gillespie v. State
, 1988-NMSC-068, 107 N.M. 455, 760 P.2d 147.
A court may attach a two-year parole period
to a consecutive sentence for third and fourth degree felonies.
State v. Utley
, 2008-NMCA-080, 144 N.M. 275, 186 P.3d 904, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.
Subsection A of this section does not create a minimum sentence for those sentenced to life imprisonment.
Compton v. Lytle
, 2003-NMSC-031, 134 N.M. 586, 81 P.3d 39.
Good time credit not available.
— The legislature intended to differentiate between capital and noncapital felons by allowing for good-time credits for the latter and denying them to the former; a life sentence does not have a determinate maximum sentence to be reduced by good-time credits.
Compton v. Lytle
, 2003-NMSC-031, 134 N.M. 586, 81 P.3d 39.
Minimum period of incarceration for parole eligibility for life sentences prior to 1980.
— Where petitioner pled guilty to four murder charges and was sentenced to four life sentences; three of the sentences ran concurrently with each other and consecutive to the fourth sentence; during plea negotiations petitioner's attorney advised petitioner that based on the law at that time, petitioner would be eligible for parole after serving ten years on each of the two consecutive life sentences; once incarcerated, however, petitioner was notified that the eligibility period for parole was thirty years on each life sentence; petitioner filed a petition for writ of habeas corpus challenging the timing of petitioner's eligibility for parole; prior to 1977, the statute provided for a minimum ten-year period of incarceration for eligibility for parole; in 1977, the legislature first enacted a provision, effective July 1, 1979, that repealed the statute and established a new, thirty-year minimum period of incarceration for eligibility for parole and then enacted an amendment, effective June 21, 1977, to the same statute that did not change the pre-1977 minimum ten-year period of incarceration for eligibility for parole; the 1978 recompilation of the statutes compiled the 1977 amended version of the statute as Section 31-21-10 NMSA 1978 and referred to the first 1977 enactment requiring a minimum thirty-year period of incarceration for parole eligibility in a compiler's note without including the text; in 1980, to resolve the confusion, the legislature repealed and reenacted Section 31-21-10 NMSA 1978, effective February 22, 1980, to provide for a thirty-year period of incarceration before eligibility for parole and purported to make the new statute apply retroactively to all crimes committed on or after July 1, 1979; petitioner's crimes were committed on September 17, 1979 and petitioner was sentenced on May 14,1980; in Quintana v. New Mexico Department of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983), the court held that the first 1977 enactment repealed the statute so that the 1977 amendment of the statute was ineffective with the result that in 1977, the statute provided for a minimum thirty-year period of incarceration for eligibility for parole; in Devine v. New Mexico Department of Corrections, 866 F.2d 339 (10th Cir. 1989), the court ruled that the holding in Quintana was unforeseeable and retroactively enhanced the petitioner's sentence in violation of ex post facto principles and violated the petitioner's federal due process rights; and in this case, in reliance on Quintana, the district court dismissed petitioner's petition and ordered petitioner to serve thirty years instead of ten years before consideration for parole, petitioner was eligible for parole upon the completion of ten years of incarceration on the second life sentence.
Skidgel v. Hatch
, 2013-NMSC-019, 301 P.3d 854,
overruling
Quintana v. New Mexico Dep't of Corrs.
, 1983-NMSC-066, 100 N.M. 224, 668 P.2d 1101.