Two prominent New Mexico prosecutors say it’s unreasonable to compare how much money the state spends on offices for local district attorneys versus public defenders.
District Attorneys Sam Bregman and Marcus Montoya wrote this in an opinion article published by the Albuquerque Journal on Dec. 3. The pair also doubled down in subsequent interviews with Source NM by arguing that the burden of proof to convict a person makes the prosecutor’s job more burdensome, and its annual budget with public defenders should not be the same.
“There shouldn’t be equal funding between the district attorney’s office and public defender’s office,” Bernalillo County District Attorney Sam Bregman said in an interview with Source NM.
Gov. Michelle Lujan Grisham appointed Bregman as the district attorney for the state’s largest prosecutorial office in January 2023 after Raúl Torrez left to begin his four-year term as New Mexico Attorney General.
Bregman has said he is running for election in 2024 to keep the job. Montoya is the Eighth Judicial District Attorney serving Taos, Colfax and Union counties. He is also the president of the New Mexico District Attorneys’ Association.
Source NM reported on Nov. 20 that New Mexico spends tens of millions of dollars more on annual budgets for prosecutors than on public defenders. Bregman said when he saw the report republished in the Albuquerque Journal, he and Montoya decided to write the newspaper a letter in response.
The pair wrote that New Mexico’s criminal legal system “requires that the prosecution do more work because we are required to bear the burden of proof beyond a reasonable doubt.”
“It is a burden that requires a different type of budget and not simply one that should be equal across the board,” Bregman and Montoya wrote under a shared byline.
In interviews, Bregman and Montoya said prosecutors and public defenders’ budgets should not be compared because they have different roles in the legal process.
Jennifer Burrill is president of the New Mexico Criminal Defense Lawyers Association. Her organization represents both public defenders and private criminal defense attorneys, many of whom are contractors who represent people in New Mexico courts where there aren’t public defender’s offices.
Those areas include the Thirteenth Judicial District in central New Mexico, the Fourth Judicial District around the city of Las Vegas, the Eighth and Tenth Judicial Districts in the northeastern part of the state, and the Sixth and Seventh Judicial Districts in the southwest, according to the latest annual report from the public defender’s office.
Burrill said Bregman and Montoya are correct that the roles are different, but she was disappointed for them to paint the picture in their letter that prosecutors do more work.
“I think both of the jobs are hard. They’re both very taxing and stressful on the people in those positions. Nobody gets paid enough, and I hope that they’re still on board with the entire system needing funding,” Burrill said.
On that last point, prosecutors and public defenders agree.
“When it comes to the budget, the PD’s office and the DA’s office are in step,” Montoya said. “We both recognize: they need to get their resources to provide their constitutional obligations to the citizens of New Mexico and defendants here, as do we.”
Bregman also told the head of the Legislative Finance Committee on Nov. 17 that he wants lawmakers to “give as much money to the public defenders as they need.”
No statewide prosecutor workload study
Burrill said the New Mexico Legislature does not need to match the two sides’ budget line by line, but she does think it’s reasonable to say there’s a disparity in resources at a statewide level.
She highlights the American Bar Association’s study that found the state needs at least 602 full-time attorneys and is currently only meeting 33% of clients who need a legal defense. The report also shows that public defenders are spending most of their time handling high-level criminal cases, such as murder and crimes involving children.
The New Mexico District Attorneys’ Association has not commissioned a similar statewide study of prosecutors’ workloads, Montoya said. Nor has the Eighth Judicial District Attorney’s Office that he oversees, he said.
Bregman said prosecutors have much more work to do than just what happens in the courtroom, and Montoya said prosecutors are “straddled with more obligations and the burden to launch and prove a case.”
It may be true that prosecutors have more obligations under the law, but defense attorneys are the only lawyers mandated by the Constitution, Burrill said.
“There is no right to a prosecutor in the federal or state constitution,” she said. “There are rights against search and seizure and those types of things, but they never mention a police officer, they never mention a prosecutor, but they do represent defense counsel’s obligations.”
“I don’t agree that it’s a bigger burden,” Burrill said. “I do agree that both roles are very important, and are taxing and demanding.”
Prosecutors say they want more work, not less. When Bregman asked lawmakers on Nov. 17 for a bigger budget in the upcoming year, he told them there must be more preliminary hearings, more grand juries, and “we have to have more people doing that.”
Bregman and Montoya gave five examples of duties New Mexico’s prosecutors have that public defenders don’t. For example, DAs must screen and review every case police submit to them to see if they’re viable, and often present cases to a grand jury.
Montoya said this means prosecutors have the discretion to be the first to regulate an out-of-control volume of caseloads. Prosecutors can decline to prosecute in the first place, divert a defendant into treatment if eligible, postpone a trial date or dismiss a case altogether, he said.
“We’re the big end of the funnel,” he said. “We catch everything, and we screen out what’s not even going to get to a preliminary examination or a grand jury.”
Burrill listed nine examples of what defense attorneys have to do that DAs don’t, including driving up to six hours to talk to their clients in jail or to appear in court, calculating immigration consequences, and investigating cases way after the incident happens.
Burrill added when there isn’t enough funding to deal with the number of arrests being made in New Mexico “this results in cases getting dismissed and justice is not served for those accused of crimes and the victims of crime.”
She said New Mexico is in the same position it was decades ago when former New Mexico Supreme Court Justice Richard Bosson compared the state’s criminal legal system to a “three-legged stool” in his 2005 State of the Judiciary Address to lawmakers.
“When one leg is weakened, you know what happens: You end up on the floor,” Bosson said.
Bosson asked lawmakers back then for help, not because of any favor for criminal defendants over the prosecution, “but because without your help, the system will collapse.”
At that time, the Law Offices of the Public Defender was an executive agency entirely under the control of the state’s governor. It wasn’t until 2012 that voters amended the state constitution to create an independent Public Defender Commission to oversee the office, which allowed them to ask the Legislature for larger budgets without having to go through the executive branch.
Many prosecutions could not go forward due to lack of sufficient personnel, Bosson said.
“When that happens, when delay becomes so pervasive, those who suffer the most are the victims of crime, twice victimized if you will, their hope of justice a mere illusion,” he said.