2021 New Mexico Statutes
Article 21 - Sentence, Pardons and Paroles
Section 31-21-10.1 - Sex offenders; period of parole; terms and conditions of parole.

A. If the district court sentences a sex offender to a term of incarceration in a facility designated by the corrections department, the district court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised parole for a period of:
(1) not less than five years and not in excess of twenty years for the offense of kidnapping when committed with intent to inflict a sexual offense upon the victim, criminal sexual penetration in the third degree, criminal sexual contact of a minor in the fourth degree or sexual exploitation of children in the second degree; or
(2) not less than five years and up to the natural life of the sex offender for the offense of aggravated criminal sexual penetration, criminal sexual penetration in the first or second degree, criminal sexual contact of a minor in the second or third degree or sexual exploitation of children by prostitution in the first or second degree.
A sex offender's period of supervised parole may be for a period of less than the maximum if, at a review hearing provided for in Subsection C of this section, the state is unable to prove that the sex offender should remain on parole.
B. Prior to placing a sex offender on parole, the board shall conduct a hearing to determine the terms and conditions of supervised parole for the sex offender. The board may consider any relevant factors, including:
(1) the nature and circumstances of the offense for which the sex offender was incarcerated;
(2) the nature and circumstances of a prior sex offense committed by the sex offender;
(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;
(4) the danger to the community posed by the sex offender; and
(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate parole board personnel.
C. When a sex offender has served the initial five years of supervised parole, and at two and one-half year intervals thereafter, the board shall review the duration of the sex offender's supervised parole. At each review hearing, the attorney general shall bear the burden of proving by clear and convincing evidence that the sex offender should remain on parole.
D. The board may order a sex offender released on parole to abide by reasonable terms and conditions of parole, including:
(1) being subject to intensive supervision by a parole officer of the corrections department;
(2) participating in an outpatient or inpatient sex offender treatment program;
(3) a parole agreement by the sex offender not to use alcohol or drugs;
(4) a parole agreement by the sex offender not to have contact with certain persons or classes of persons; and
(5) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of the sex offender's parole.
E. The board shall require electronic real-time monitoring of every sex offender released on parole for the entire time the sex offender is on parole. The electronic monitoring shall use global positioning system monitoring technology or any successor technology that would give continuous information on the sex offender's whereabouts and enable law enforcement and the corrections department to determine the real-time position of a sex offender to a high level of accuracy.
F. The board shall notify the chief public defender of an upcoming parole hearing for a sex offender pursuant to Subsection C of this section, and the chief public defender shall make representation available to the sex offender at the parole hearing.
G. If the board finds that a sex offender has violated the terms and conditions of the sex offender's parole, the board may revoke the sex offender's parole or may modify the terms and conditions of parole.
H. The provisions of this section shall apply to all sex offenders, except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act [31-21-22 to 31-21-26 NMSA 1978].
I. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:
(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;
(2) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;
(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978; or
(6) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978.
History: Laws 2003 (1st S.S.), ch. 1, § 9; 2007, ch. 68, § 4; 2007, ch. 69, § 4.
2007 Multiple Amendments. — Laws 2007, ch. 68, § 4 and Laws 2007, ch. 69, § 4 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2007, ch. 69, § 4, as the last act signed by the governor, is set out above and incorporates both amendments. Laws 2007, ch. 68, § 4 and Laws 2007, ch. 69, § 4 are described below. To view the session laws in their entirety, see the 2007 session laws on NMOneSource.com.
Laws 2007, ch. 69, § 4, effective July 1, 2007, required a parole period of not less than five years and not more than twenty years for certain sexual offenses and not less than five years up to natural life for more serious sexual offenses; permitted the imposition of supervised parole for the maximum period; required electronic monitoring during parole; and defined "sex offender" as a person convicted of aggravated criminal sexual penetration.
Laws 2007, ch. 68, § 4, effective July 1, 2007, defined "sex offender" to include a person convicted of child solicitation by electronic communication device.
District court erred in sentencing defendant in accordance with the terms of the sex offender parole statute. — Where defendant entered into a conditional plea to one count of child solicitation by electronic communication device, contrary to § 30-37-3.2(C)(1) NMSA 1978, for conduct committed in 2015, and where the district court, as a part of defendant's sentence, sentenced defendant to parole pursuant to the sex offender parole statute, § 31-21-10.1 NMSA 1978, rather than pursuant to the general parole statute, § 31-21-10(D), NMSA 1978, the district court erred by sentencing defendant in accordance with the terms of § 31-21-10.1(A)(1), because competing amendments to this section in 2007 were irreconcilable, and it cannot be concluded that the legislature meant to subject those convicted of child solicitation by electronic communication to the enhanced sex offender parole terms. State v. Sena, 2021-NMCA-047, cert. granted.