ALBUQUERQUE, N.M. (KRQE) – Bernalillo County District Attorney Raul Torrez calls it “astonishing.” Secretary of Corrections David Jablonski calls it “very frustrating.” State Senator Mark Moores calls it “heartbreaking.” And Mike Nord calls it, “one of the biggest outrages I’ve ever seen.”
No one understands the flaw in our criminal justice system better than Mike and Barbara Nord. Their 14-year-old son Reece was struck and killed by drunk driver Justin Mishall 15 years ago.
“It disrupted everything that was normal for our lives,” Barbara Nord said.
Mike Nord added, “There’s still a lot of emptiness and sorrow. The shock wave is not measurable.”
Mishall served three and a half years in the State Pen for vehicular homicide. He was also ordered to pay restitution to the Nords to cover Reece’s medical and funeral costs. However, after paying a few hundred dollars, Mishall defiantly refused to pay the rest.
“It was so incredible that he could actually sleep at night knowing that he’s the one that killed my son and I paid for the ambulance,” Mike Nord said. “He kills my son I pay for the helicopter. He kills my son I have to pay for a cemetery plot. I couldn’t get my brain wrapped around the fact that what the judge had ordered meant nothing.”
It’s not only Justin Mishall. A six-month KRQE News 13 investigation finds many convicted criminals don’t pay their victim restitution. Even though state law requires it, there’s a loophole that allows convicted felons to beat the system. Prosecutors and judges are powerless to force criminals to comply with court-ordered restitution. And even though judges can revoke probation for unpaid restitution, that virtually never happens.
Does the general public realize that defendants can beat the system as it relates to restitution?
Bernalillo County District Attorney Raul Torrez says, “I don’t think most people understand that and quite honestly I think most folks inside the system don’t recognize the scale of the problem when it comes to restitution.”
For example, consider the case of Ricky Leyba. After he shot two bystanders at a Santa Fe nightclub Leyba was convicted of aggravated battery with a deadly weapon. Leyba’s sentence included $513,669 in restitution to cover his victim’s medical expenses. However, once Leyba got off parole he stopped making payments. Today, he owes his victim $492,600 in unpaid restitution.
Tucked into the Victim Restitution Act is a provision that gives the state authority to enforce court-ordered restitution ONLY during an offender’s probation or parole period.
Correction’s Secretary David Jablonski, who oversees the state Probation and Parole Division, admits once a defendant has been discharged from probation the state has no authority to force that defendant to pay their restitution.
“We can’t recoup those funds for those victims and these offenders get off supervision without making those victims whole,” Secretary Jablonski said.
A list of felons who got a free ride from the system reads like a who’s who of the criminal underworld. Adrian Romero was sent to the State Pen for fraud and forgery in connection with a phony hunting scheme in Grants. After his discharge from parole, he stopped making restitution payments. Today, Romero owes his victims a total of $186,600.
Ivan Benavidez shot and injured a juvenile in traffic. As part of his plea deal, Benavidez agreed to pay his victim’s medical expenses. However, Benavidez stopping paying restitution after his probation ended. Today, he owes his victim $77,146.
Debra Dofflemyer embezzled from her Santa Fe employer. Her guilty plea included an order to pay restitution. However, Dofflemyer stopped paying once she had completed her probation. Debra Dofflemyer walked away without reimbursing the $197,800 she stole from her victim.
Agnes Sanchez was a clerk at the Motor Vehicle Department but got caught with her hand in the till. As part of her plea, she agreed to pay the money back. However, when her probation ended so did her restitution payments. Agnes Sanchez skipped out on her obligation to repay $69,821.
Embezzler Becky Serrano’s free ride was $126,576. Con-man Eric Terran got away without reimbursing his victim $100,955. Credit card fraudster Loretta Gallegos skipped out on $149,178.
The list goes on and on. Maria McCloskey, $60,958. Louis Carrillo, $95,524. Damian Rivera, $94,906. Dianna Romero, $60,795. They all beat the system by refusing to pay their court-ordered restitution.
“Restitution is frankly the most direct way that a defendant is accountable directly to their victim,” District Attorney Raul Torrez says. “Whenever you see a failure of this type it undermines confidence in the entire system and that’s why it’s so important,” according to Torrez.
Even though the state has no power to enforce restitution after an offender’s probationary period, the Correction’s Department does require signed promissory notes from offenders with outstanding restitution debts.
For example, after Debra Dofflemyer completed her probation last year, she signed a promissory note agreeing to pay her victim $100 a month for the next 163 years. Dofflemyer has yet to make any payments.
Secretary Jablonski admits the Corrections Department has no authority to enforce the promissory notes.
“Unfortunately after they discharge from our jurisdiction … these offenders stop paying despite having that promissory note,” Secretary Jablonski said. The Cabinet Secretary concedes the promissory notes are worthless.
Over the course of three legislative sessions, State Senator Mark Moores has sponsored bills that would repair the flaw in the Victim Restitution Act.
“The loophole in this statute is un-American. It’s unfair and it victimizes victims all over again,” Senator Moores said.
However, despite several attempts at reform, lawmakers have shown no interest in the issue. The proposed legislative fix has been repeatedly voted down in committee. Mike and Barbara Nord testified for the change in the law.
“I would love to talk to anybody up in Santa Fe that voted against this. I want somebody to tell me how they possibly can justify this,” Mike Nord said.
“I think most felons and criminals in New Mexico know that there’s a big loophole out there, that they do not have to pay restitution once they’re off parole.
That is inexcusable. The word is out. These criminals are not fulfilling their obligation to the people of our state,” Senator Moores said.
Despite lawmaker’s reluctance to fix the problem, Otero County District Attorney John Sugg has found another way to compel compliance.
After Jennifer Carrasco (Alamogordo) was convicted of embezzling $7,119 from a non-profit animal shelter she failed to pay her court-ordered restitution. D.A. Sugg filed a Writ of Execution asking that Carrasco’s property be seized and forfeited in order to satisfy the restitution debt. Rather than lose her property Carrasco decided to pay the money she owed.
Bernalillo County D.A. Torrez said he plans to look at property liens and garnishing wages as a means of collecting restitution from offenders.
“I don’t view this as a technical violation. I think it’s something that victims have a right to expect. We’re going to work hard to make sure it starts to happen more often,” Torrez said.
For Barbara and Mike Nord, the pain of losing their son 15 years ago will never go away. The couple is frustrated with the state’s failure to enforce court-ordered restitution.
“You call this fair? These families are hurting. We just need somebody to say we’re on your side,” Barbara said.
“This is pretty pathetic. It’s pretty sad. (Justin Mishall) walked away and we barely even got an apology out of the darn thing,” Mike said.