Remove a most-public criminal case from public view, and some in power will still claim the system is wide open and working beautifully.

One is Mary Carmack-Altwies, the Santa Fe-area district attorney. She sent me a note taking issue with a recent column I wrote about her treatment of several vandals who helped destroy the Soldiers Monument on the Plaza.

“The restorative justice process is not a ‘secret system,’ ” Carmack-Altwies wrote, typing the sentence twice in four paragraphs to emphasize her disagreement with my description.

By way of review, Carmack-Altwies has hired a mediator to hold closed-door meetings between seven defendants who smashed the 152-year-old obelisk and eight people who say they were harmed by the criminals’ misconduct.

The mediator will conceal the identities of those she selects to interact with the defendants. Then the chosen eight must sign confidentiality agreements.

In the eyes of the district attorney, this furtive system inspires candor.

“When the defendants and the harmed parties meet, they will meet with one another only, along with the mediator. The purpose of this meeting or series of meetings is so that the aggrieved parties and defendants can talk freely about the harm that the defendants caused,” Carmack-Altwies stated.

Thousands of other people who say they were wronged by the vandals can only learn about the case secondhand, through the mediator’s filter.

“The last step in the process is that the mediators draft a detailed memorandum of agreement. That memorandum will be publicized and my office will ensure that the agreement is followed by the defendants,” Carmack-Altwies wrote.

She labeled destroyers of the monument as nonviolent. By using that inaccurate description, the district attorney hopes most people will accept her claim that the defendants belong at a mediation table instead of criminal court.

Some in Santa Fe hail Carmack-Altwies’ approach as a breakthrough.

One wrote to me: “The vast majority of criminal cases end by plea bargain. The affected parties learn nothing. There are no jurors to interview, and the defendant is silent on the facts. There is only retribution, punishment — and not enlightenment or healing.”

In truth, “restorative justice” is no different from plea bargains in one way: Either can be abused by those in authority.

But at least there are checks and balances for plea bargains. They are considered in open court by judges with the power to stop an unjust deal.

For instance, Carmack-Altwies’ predecessor as district attorney authorized a plea bargain in which Henrietta Trujillo would spend no time in prison, even though she admitted embezzling $249,000 from Northern New Mexico College. District Judge Jason Lidyard rejected the deal as inconsistent with punishments prosecutors sought for other thieves.

Another well-known embezzler, former Secretary of State Dianna Duran, was supposed to follow a restorative justice program but fought it with all her might.

Duran stole campaign funds and doctored state records in hopes of covering her tracks.

She could have gone to prison for 7½ years. District Judge T. Glenn Ellington decided she would serve only 30 days in county jail. Ellington said restorative justice was fitting for Duran, a tough-on-crime Republican who became a gambling addict and a thief.

Duran was to speak publicly four times a month about her crimes. These interactions with residents of the state were supposed to help restore confidence in government.

Duran argued in a court filing that making the speeches endangered her life.

She eventually withdrew her motion to halt the speaking tour, but she never made more than a halfhearted effort to interact with the public she’d harmed.

The destroyers of the Soldiers Monument are positioned to receive even lighter punishment than Duran. They won’t go to jail, provided they perform 40 hours of community service and write a statement admitting to their crimes.

Many others who helped destroy the obelisk will never be charged. Santa Fe police officers ceded the Plaza to the criminals, enabling most to escape without being identified.

The way police and prosecutors have handled mob violence on the Plaza raises another question: If Cowboys for Trump or the Proud Boys went on a rampage and destroyed public property in Santa Fe, would they be candidates for restorative justice and receive light punishment?

In her note, Carmack-Altwies wrote: “The restorative justice process is not a ‘secret system,’ it is a practice that has data showing success and has rigor and respect among those interested in criminal justice reform and reduced recidivism in our country and around the world. I can assure you that defendants are being held to account for their crime.”

Her run-on sentence can’t overtake a hard truth: Violent criminals meeting with a handful of handpicked people isn’t justice for all.

Ringside Seat is an opinion column about people, politics and news. Contact Milan Simonich at msimonich@sfnewmexican.com or 505-986-3080.

(43) comments

Khal Spencer

Lupe, going back to that exchange. Let's see if we can get someone to restore the obelisk for under a thousand bucks or appraise the monument for less than a thousand dollars. Otherwise, this is a fourth degree felony. Those clowns should have been charged with a felony.

https://law.justia.com/codes/new-mexico/2016/chapter-30/article-15/section-30-15-1/

2016 New Mexico Statutes

Chapter 30 - Criminal Offenses

Article 15 - Property Damage

Section 30-15-1 - Criminal damage to property.

Universal Citation: NM Stat § 30-15-1 (2016)

30-15-1. Criminal damage to property.

Criminal damage to property consists of intentionally damaging any real or personal property of another without the consent of the owner of the property.

Whoever commits criminal damage to property is guilty of a petty misdemeanor, except that when the damage to the property amounts to more than one thousand dollars ($1,000) he is guilty of a fourth degree felony.

History: 1953 Comp., 40A-15-1, enacted by Laws 1963, ch. 303, 15-1.

Lupe Molina

Ehh, its just some stone blocks and mortar. Bet it was definitely under $1000 worth of work when it was built! Fact remains, the DA sounds like she's doing the best with what she has. Feds don't want to prosecute, doesn't sound like she's going to get much support from the state to prosecute, police have already missed filing deadlines and she knows that, like most cases, this would get plead out.

Khal Spencer

Inflation adjusted dollars, 1867-present? Multiply by a factor of about 20. Agree with you on the rest. No one in authority cares.

Mike Johnson

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Stefanie Beninato

What should determine if the offenders committed a misdemeanor or a felony is the cost of the destruction...I would think that the obelisk if it was restored would cost in the thousands of dollars making the property destruction rise to the level of a felony.

Joe Brownrigg

I will say again, this is NOT Restorative Justice.

However, Milan is incorrect in claiming this process is secret and plea bargaining is public. He took two exceptions to attempt to prove his point. BUT in actual practice plea bargaining is mostly done in secret...and only presented in public once an agreement has been reached.

Finally, as a few other brave souls have said, take at look at what vengeance justice has given us: nothing but injustice, overcrowded jails, and schools for better illegal acts.

John Cook

It's good to have smart cops and a sensible DA. We lost a phallic symbol that should have gone years ago and no one died. Good job to all concerned.

Lupe Molina

Just to add bit of different perspective. I think its a false equivalency to compare these folks to Proud Boys. Folks shouldn't be judged on their ideology but the law does take motive into account. These folks chose a destructive and dumb way to express distaste with the way indigenous genocide is discussed by destroying an inanimate object. Oddly, many in our community seem unwilling to accept this as a historical fact. Compare that to Proud Boys who are known fascists motivated by conspiracy theories and who explicitly chanted a desire to hang the Vice President. So I don't think they should be treated or perceived the same way and I don't think the law, as written, supports that false equivalency.

One other point to consider: if this civil unrest had occurred in Boston Harbor in December 1773, Milan and commenters would be falling on the side of the British Crown and opining the loss of tea and disrespect to King George. The passage of time offers different perspectives.

Khal Spencer

People get prosecuted based on what they do, not what they think or say unless it flunks the Brandenburg Test. If the Proud Boys want to be racist, that's their business. If they beat someone up or burn something down, that is a criminal act to be prosecuted. As far as chanting to hang the VP, no one ever did so or get arrested for saying so. I wonder if their chants didn't cross the Brandenburg threshold although people invading the Capitol were subject to arrest. We don't arrest everyone at a Yankees or Mets game for chanting "Kill the Umpire".

Me? I have a problem with those on the left saying the obelisk destruction was non-violent, and a problem with those on the right saying the storming of the Capitol was a picnic outing. We are close enough as it is to things falling apart without encouraging it.

Lupe Molina

Ok, Khal. But then flip it around. Aren't these defendants being kind of harshly treated? I mean, all they did was a bit of vandalism, no different from a broken window or some graffiti. That's a petty misdemeanor in this state which, for a first offense, is a fine and some community service. People in this comments section want to see jail time for these folks. You can't have it both ways. You can't say they're no different than Proud Boys and their politics shouldn't be considered but then say they deserve to have harsher punishment than breaking a display window because their target was politically charged.

Khal Spencer

A bit of vandalism? A broken window? I assume you are joking? Is this your attempt at Poe's Law?

18 U.S. Code § 1369 - Destruction of veterans’ memorials

https://www.law.cornell.edu/uscode/text/18/1369

(a) Whoever, in a circumstance described in subsection (b), willfully injures or destroys, or attempts to injure or destroy, any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States shall be fined under this title, imprisoned not more than 10 years, or both.

(b) A circumstance described in this subsection is that—

(1) in committing the offense described in subsection (a), the defendant travels or causes another to travel in interstate or foreign commerce, or uses the mail or an instrumentality of interstate or foreign commerce; or

(2) the structure, plaque, statue, or other monument described in subsection (a) is located on property owned by, or under the jurisdiction of, the Federal Government.

(Added Pub. L. 108–29, § 2(a), May 29, 2003, 117 Stat. 772.)

Lupe Molina

Be respectful Khal. I am using your own logic here. You said the political motivation shouldn't be considered here. The US federal government has declined to prosecute so citing federal law doesn't help. My point remains. The DA is prosecuting under state law. These were all first offenders. If we judge them based on the law, and not our emotions, this appears to be a petty misdemeanor. You might not like it but that seems to be what the lawyers think here too.

Khal Spencer

I suspect no one calculated the cost of the damage. This is not a broken window.

Khal Spencer

When I looked up the concept of restorative justice, the examples included folks who got behind the eight ball under circumstances that were not entirely of their own choosing, such as teens coerced into gang membership, someone shoplifting out of desperation, or fights where reconciliation makes more sense than throwing folks in jail. By contrast, these folks knew exactly what they were doing. It was not out of necessity, and they were not teens.

So I think this is an utterly ridiculous use of the concept of restorative justice. Father John Dear and the Berrigan brothers deliberately damaged property in protest of war or the military and served time in the hoosgow as well as I believe, became felons, as they were willing to suffer the consequences of their actions. By contrast, this DA lets these people off nearly scot-free, so no one is held accountable.

I think its time to hold this DA accountable at the next election cycle. I for one don't want to live in a nation where everyone with an axe to grind takes the law into their own hands, and this DA is encouraging just such conduct. Well, encouraging it as long as it comes from the political Left.

Lee DiFiore

Surprised you said it but glad you did; "If Cowboys for Trump or the Proud Boys went on a rampage and destroyed public property in Santa Fe, would they be candidates for restorative justice and receive light punishment?"

Emily Hartigan

Lee DFiori: yes, they would, and the result would be about taking responsibility, not primarily punishment. Unless they didn't comply with their obligations -- then, back to the also-error-filled retributive justice system.

Joseph Tafoya

Hey! Many of you wanted California/New York-style justice. Like L.A., San Francisco, Portland, New York City, and Seattle, where the D.As are refusing to charge criminal behavior. Heckl! San Francisco D.A. Chesa Boudin has even put an allowable dollar amount on property theft to $950. Is this what Santa Fe wants? Well, you got it.

Richard Reinders

The reason San Fran let’s theft under $950 go is they have so much crime they can’t get to it all. That’s what happens when you have restorative justice you get more crime.

paul pacheco

The District Attorney’s office is not a mediation office. They prosecute cases! I’m not a fan of “defund” the police, but the DA’s office? Why do we need a DA?

Jerry Appel

Most interesting. Shining a light on the process always exposes the flaws. I suppose this process is held in private to promote a more honest exchange and modeled after other "successful" programs. I'll bet there are quite a few studies by eminent criminologists on best practices and that the Santa Fe DA has read them or had some professional development on this topic. Like the columnist, I agree that this very public crime needs a public reckoning, not private. A better question to ask this DA is why she chose such a private process for such a public crime.

Khal Spencer

What the DA did in one fell swoop was confirm that justice, rather than being blind, is highly ideologically biased in the Santa Fe judicial district. Milan is right: we need to see what would happen if the Proud Boys or Cowboys for Trump trashed something they did not like, or if Operation Rescue destroyed an abortion or Planned Parrenthood clinic in the dead of night. This was politically driven.

This DA is an embarrassment and has to go. That is, if we cannot do a recall first.

Bonnie Cox

Perfectly said. What an embarrassment. Even Marco Serna, former DA and democrat spoke out against this. This woman is a fool.

John Cook

Yeah, you should try a recall. And find out that all of you kill-crazies are a very small minority. Or you can sit back and wait to find it out in the next election. Brava to our DA.

Vince Czarnowski

The DA is setting an extremely dangerous precedent. It's disgusting that this is all held behind closed doors. It's even worse that everyone has to sign a confidentiality agreement. This is wrong on so many levels. This woman needs to be voted out.

P.J. Catanach

"She labeled destroyers of the monument as nonviolent". I suppose by that she means that they politely stood their and pleaded with the Obelisk to fall to the ground on its own. Gee, I would wager that the chains and ropes that were placed around it had nothing to do with it coming down. What BS!!!

Prince Michael Jauregui

Again: Contrary to the inept and unfit "District Attorney's" cunning -albeit futile- attempt to issue a free pass to a group of mostly female Caucasian felons, this is not "Restorative Justice".

Rather, it is merely another blatant, shameless case of American Justice. The same, two-tiered, double-standard of "Justice" that has always existed - for mostly wealthy Caucasians.

This spat upon -both- true Justice and Native and Hispano American shall not go unanswered.

Mike Johnson

The incompetence and pure arrogance of this DA is astounding. How do people like this get elected?

Lee DiFiore

Standard for Santa Fe DA's. We need to vote a new one in every election until we find one willing to work for the law abiding citizenry.

Jim Klukkert

But Lee DiFiore, will a new one work for Justice for January 6th Insurrectionist Ashley Babbitt?

Mike Johnson

As I once congratulated you Jim for bringing clarity and reason for full disclosure and investigation into the killing of a citizen by the agents of our government, I would say Ms. Babbitt, and indeed the public at large, deserves no less than a full public investigation of her killing and a naming of the person who killed her, the circumstances, and who that person works for in DC. Why was that done for George Floyd but denied for her?

Jim Klukkert

Hey Mike- good question "Ms. Babbitt, and indeed the public at large, deserves no less than a full public investigation of her killing and a naming of the person who killed her, the circumstances, and who that person works for in DC. Why was that done for George Floyd but denied for her?"

Here is what I hope you find a reasonable answer, composed in some haste, so please forgive the lack of cites.

Both those killings, Babbitt & Floyd were caught on video. Before it was public that the murder of Floyd was video taped, the authorities released a report, saying that a citizen [Floyd] had suffered a heart attack, or other affliction, that afternoon. That story changed radically when that lie was exposed by a teenagers' video.

Babbitt was also filmed, and obviously was not only already trespassing, but also was trying to breach a government line/barricade that was erected to protect our elected representatives. On the face of it, Babbitt was violently attacking the very foundation of our experiment in Democracy, in the very heart of that system.

On top of that, Babbitt had some history of extremist insurrectionary bluster on social media, prior to Babbitt leaving her home to travel to the seat of our Democracy to join an Insurrectionary Assault on everything most citizens hold dear.

To me, bottom line:

- Floyd goes out in his community, and is slowly put to death by a state agent; that same state immediately lies about the circumstances.

- Babbitt has a history of Insurrectionary talk, travels a long distance to assault whomever would save guard our Electoral Process. Got shot dead for her troubles, and that was always a matter of public record for anyone who wanted to do the research.

The only question that I have not seen addressed is: why the Alt-Right is so concerned with knowing the identity of the Law Enforcement Officer who had to do that fatal deed?

It is sad that lives were lost in an attempt at Insurrection, and whether those defending the Republic or those attacking it. Not the first time of course, but I do understand that some people hate our form of government, and will sacrifice lives, mostly of others, to disrupt Democracy.

It is of course not the first time Black Blood was spilled on the streets of this country. I have no understanding of why that needs to happen, in the past, present or future. I do suspect it has a lot to due with the insanity of White Supremacy, as well as the profit of a few at the expense of the many.

If the identity of the Law Enforcement Officer who shot Babbitt can be revealed without putting him at risk, I would favor that as well as a full look see into the incident. That should be a part of the numerous investigations being conducted.

I hope Mike that answers your question, and that you still find me worthy of your respect.

Mike Johnson

Yes Jim, I understand that logic and don't disagree completely, except I would say that climbing through a broken window in the Capitol, unarmed, no matter what her intent, is not a crime punishable by death without any due process. For me America should always afford all citizens due process before execution, in this case I do no think that happened, just as it didn't for Mr. Floyd, and I would like to see a full accounting for this, just as was done in the Floyd case, where the person(s) responsible for the act were identified and the incident investigated fully. I don't think the killer of Ms. Babbitt would be in any more personal danger than those officers are, and indeed if that person(s) acted lawfully, that should also be reviewed for all the public to see. That has not happened, and that I find to be a double standard where all citizens are not treated equally, perhaps due to politics. That concerns me.

Mike Johnson

Jim, you might want to watch the video of her execution again, and see the shot fired and the timing and police situation around that area, and her entry into the Speaker's Chamber:

https://www.washingtonpost.com/investigations/2021/01/08/ashli-babbitt-shooting-video-capitol/

Jim Klukkert

G-‘evening Mike. I did take the time to again view that video, a good suggestion on your part.

I think we are in full agreement that the killing of folks by Agents of the State is a very serious affair, especially by a state, if I may paraphrase, that purports to be “instituted among Men…to secure…certain unalienable Rights... among these are LIFE, Liberty and the pursuit of Happiness.” Those rights are the essence of why we have this government, and when an Agent of that Government takes the irrevocable step of taking a life, that certainly is a cause for concern. Life is after all, basic to obtaining any other Rights, it is clearly the most important of all Rights.

I do not think the circumstances of the January 6th Insurrection should in anyway diminish the call for anything but an absolutely full and candid investigation Babbitt’s death. That must be the way of Justice in a Democracy.

I do wonder however, why this one death is deemed so important by the Trumpists who so often seem ready to blow by the deaths of so many others at the hands of the State. I do harbor some suspicions as to the motives of Alt-Right partisans such as Lee DiFiore; indeed, the former President is already making false claims regarding Babbitt’s death. Rather than monitor the dregs of of Rupert’s Faux News, I am content to wait for Mr. DiFiore or his colleagues, to finally lay that card on the table.

Which is not to say, that the death of anyone at the hands of the State is anything but the most serious matter, requiring a transparent investigation by impartial folks willing and empowered to follow the case wherever it may go.

That is my Right to Life position. Good chatting with you once again, Mike.

Chris Mechels

Mike the way they get elected is simple; register as a Democrat, move to Santa Fe, go to work in the DA, or AG office, both controlled by Democrats. That's the path. Simple.

The ringer in our District though is the Deputy DA, Jennifer Padgett. She's a vicious piece of work, and "hang em high" type. A Republican, switched to Democratic to for DA. Hung on as a very well paid Deputy DA. Sweet smile, and a real wrecker. Our 1st District ranks last in many areas, no surprise.

So, that's how our mess was created; the question is how to fix it.

Emily Hartigan

Interesting to learn that a white-collar criminal, Duran, l tries to avoid consequences (surprise?) but the rich history and success overall of Restorative Justice paradigm remains. When Webber set up the topplers to do what he failed to do during the night, their predictable response CAN produce a full story, greater information, and even healing of what is a community wound. The wound goes many ways; the confidentiality of Restorative Justice mostly (fallibly, as it's human) produces something new, much as 12-step confidentiality can produce creative amends. Patience, Mr. Simonich.

Devin Bent

"The way police and prosecutors have handled mob violence on the Plaza raises another question: If Cowboys for Trump or the Proud Boys went on a rampage and destroyed public property in Santa Fe, would they be candidates for restorative justice and receive light punishment?"

This is a good question. It needs an answer from an advocate of restorative justice.

Samuel Herrera

Fire the DA. Vote her out on her next election. Fire the mayor. Vote him out next election. To the new mayor: fire the police chief. City counselors Lindell and Villarreal should be given their walking papers too for coddling the criminals who destroyed the obelisk

Richard Reinders

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Bryan Wehrli

I favor restoration vs retribution as an approach to seeking justice. Perhaps we could at least think about how well retribution and punishment serve a community and victims. Our knee jerk demand for punishment and retribution brought us mass incarceration. Yes, this incident was violent, but that violence was directed at public property, more specifically at the hateful words once inscribed on the monument. At least the protestors and victims will face one another (yes, without an audience), and therein lies some hope for understanding. Finally, Cowboys for Trump should be treated the same as any other group. But if the point is that justice should be blind, our current approach is a colossal failure.

Stefanie Beninato

How do you have any idea who the victims are? Was the community notified so each person could self-nominate? Restorative justice is supposed to be a healing process with the offender acknowledging the harm their actions have caused individuals and the community. This process involves PUBLIC property--it should have been designed to be open to the public And given that these offenders already agreed to community service, exactly what actions are they going to undertake after this process and how will the public know since it is all supposed to be confidential. And Brian--it was one word==long ago removed.

Mike Johnson

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Andrew Lucero

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