June 2, 2020

NM jail populations plummet amid joint efforts to avoid COVID-19 outbreak; positive test rates are low

This story first appeared at New Mexico In Depth and is republished with permission.

New Mexico’s 27 adult county jails have slashed their combined population by a third since the new coronavirus began tearing through the state 11 weeks ago, according to data gathered by the New Mexico Association of Counties.

On March 13, two days after New Mexico saw its first confirmed COVID-19 cases, counties held nearly 6,000 men and women behind bars; by  Wednesday, May 27, around 4,000 sat in jails around the state, the vast majority of them awaiting trial.

District attorneys, public defenders and county officials told New Mexico In Depth the rapid population reductions could signal a long-term shift toward locking fewer people up, in a state that historically has had higher rates of incarceration in jails than most others.

Some of the largest dips have been in counties hardest hit by the virus, including McKinley (more than a 60 percent decrease) and San Juan (with a 45 percent decline).

The numbers appear to be ticking back up since the low point on May 1, but Grace Philips, general counsel for the New Mexico Association of Counties, calls the overall trend a “significant reduction.”

The sharp decline comes from a joint effort to avoid an outbreak in jails of COVID-19, the respiratory illness caused by the coronavirus that has infected tens of thousands of inmates and guards nationwide, killing hundreds.

Officials interviewed for this story say prosecutors, defense lawyers, judges, law enforcement and jail administrators worked together early and throughout the pandemic to keep many low-level offenders out of custody — and to release people languishing in jails who didn’t pose a public safety threat, particularly the medically vulnerable. County jails house offenders sentenced to less than a year and people awaiting trials. 

Though none who spoke to NMID was prepared to declare victory, the gambit appears, tentatively, to have worked. 

As of Thursday, 2,099 county jail detainees had been tested for COVID-19.

Just 22 jail inmates have tested positive, Philips told NMID.

And officials have tested 2,404 jail staffers, Philips said, with 15 positive results.

No inmates or staff have died from the virus, she said.

“I don’t want to jinx it, but so far it looks like the counties really have done a good job of allowing for more distancing inside the jails, housing people in cohorts and so on,” Philips said. “There are still some issues, including long turnaround times on tests, which we just have to improve, but there is good news as of now.”

The effort has led to a notable statistic: as of this week, the state’s jails are at just 43 percent capacity.

That contrasts sharply with the state’s 11 prisons — where inmates are held who have been convicted of crimes and are serving sentences of a year or longer — which were at 81 percent capacity as of Friday morning. 

At the state level, just 46 inmates had been released as of earlier this week under an executive order signed in early April by Gov. Michelle Lujan Grisham meant to make the prisons safer amid the pandemic.

Bennet Baur, chief public defender for New Mexico, called the stark difference between population reduction schemes by the state and counties “unfortunate.”

“It’s a lack of systemic will or imagination,” Baur told NMID. “And it’s a failure for all of us: the courts’, the executive’s unwillingness to do anything different from the way things have always been done.”

But he was optimistic about the joint efforts to trim inmate populations in the jails.

“Clearly, these are unique circumstances, so there are only so many conclusions you can draw,” Baur said. “But so far, it looks like we have reduced the number of people incarcerated in jails without reducing public safety. And it looks like it has worked to keep those testing rates low, which I hope is true. This took a lot of work by a lot of people.”

That work started with law enforcement, Philips said. In nearly every jurisdiction, police and sheriffs deputies agreed to make “fewer unnecessary arrests,” Philips said, and to fine or ticket people instead for many low-level offenses that don’t pose a public safety risk. Law enforcement in many instances also stopped the practice known as “warrant sweeps,” in which officers arrest people en masse for old warrants.

The courts chipped in, too, she said, by ordering no arrests for failure to pay court fees.

Jail wardens scanned their populations to identify nonviolent defendants who “just didn’t need to be in jail anyway,” Philips said. Those who met those criteria and also had medical conditions that would make them susceptible to the virus were prioritized for release in many counties.

In many cases, defense lawyers and prosecutors — often working together in ways not often seen — agreed early on that certain defendants could remain out of jail but still under supervision.

“Judges agreed that house arrest and ankle monitors would work,” said Dianna Luce, fifth judicial district attorney and president of the New Mexico DAs’ Association. “There was even a shortage of ankle monitors for a while.”

Perhaps the largest driver of the reduction, Philips said, came from the state Probation and Parole Division’s decision to stop locking people up in county jails for so-called “technical violations” — failed drug tests, missed appointments with officers and other minor rule-breaking for people on probation and parole.

Three years ago, the last time detailed offense data were produced on the county jails, roughly a third of the incarcerated population was in on a technical violation, Philips said.

Every adult jail in the state except one — Quay County — has cut its population numbers since March 13, the association’s data show. Most jails have seen reductions of 20 percent or more, with Sandoval County showing the largest drop among larger facilities: more than 60 percent. 

Despite the apparent successes, Philips said, there have been problems with testing and other aspects of the population reduction moves.

For example, corrections officers and jail contractors have refused to be tested in several New Mexico Counties. Among them: Doña Ana, Grant, Lea and Quay. And in Eddy County, Philips said, 70 out of 89 staff and contractors refused a test. 

In most counties, testing is optional.

Lengthy wait times for test results have led to harsh conditions, as well.

In San Miguel County, the jail was on complete lockdown for six days as officials awaited results from the state Department of Health.

The downward trend since COVID-19 hit follows years of reductions in New Mexico jail populations.

In fiscal year 2013, the average statewide daily jail population was 8,240, Philips said. By fiscal year 2018, that number had dropped to 6,323.

A constitutional amendment passed by voters in 2016 gets much of the credit for that decrease. It changed the state’s money bail system and was meant to end the practice of holding pretrial defendants in jail simply because they could not pay their way out.

But this year’s reduction, all the way down to about 4,000 inmates on a given day, has happened more precipitously. 

And it hasn’t just included the adult jails.

There are four county-run juvenile jails in New Mexico, with a combined capacity of 197. One-hundred-seven children were locked up by counties on March 13; now, there are 71, according to the association’s figures.

That’s a decrease of 32 percent and leaves the juvenile detention centers at just 37 percent capacity.

Baur and Philips said there’s plenty to learn from the population reductions — mostly about who belongs in jail and who doesn’t. Both said justice system actors have been forced to reexamine the way jails are used, and there’s a possibility the numbers could remain low even once the pandemic subsides.

Luce agreed.

“Will this probably continue into the future? I expect it will, and I think it’s helped us look at who should be added to the jail population and who shouldn’t have been in it in the first place,” she said. “Shoplifting and pointing a gun at someone are different things. I think this will change the way we do things going forward, even without the virus.”