November 22, 2020

NM Supreme Court again faced with COVID-19 in prisons, Guv says there is not much else that can be done

Photo Credit: Mitchell Haindfield Flickr via Compfight cc

As the number of COVID-19 cases and related deaths in New Mexico continue to increase throughout the state and the state is halfway through a two week stay-at-home order, criminal justice advocates continue to push Gov. Michelle Lujan Grisham to do more to reduce prison populations. 

There have been two attempts to get the courts involved, but the latest legal challenge, a class-action lawsuit, was dismissed last month. The judge in that case ruled that the court did not have jurisdiction to weigh-in because the inmate plaintiffs did not show that they had exhausted other remedies like an appeal through the New Mexico Department of Corrections.   

Now, the plaintiffs—two advocacy groups and nearly a dozen inmates—are taking the issue to the Supreme Court for a second time, albeit with a different ask of the justices. 

In the early months of the COVID-19 pandemic, the New Mexico Law Offices of the Public Defender, the American Civil Liberties Union and the New Mexico Criminal Defense Lawyers Association asked the state Supreme Court to intervene and compel Lujan Grisham and her corrections department to broaden their scope of how to limit prison populations in light of COVID-19. Those two groups ultimately failed to convince the New Mexico Supreme Court that inmates were subjected to cruel and unusual punishment, a violation of the U.S. Constitution, and to compel Lujan Grisham and the Department of Corrections to do more than release inmates 30 days early. 

For her part, Lujan Grisham signed an executive order that essentially expanded an already existing provision and allowed some inmates out 30 days before their scheduled release date. The qualifications for early release under Lujan Grisham’s executive order are narrow and prompted groups like the public defender’s office, the New Mexico Criminal Defense Lawyers Association and the ACLU to call for things like expedited parole for certain inmates and allowing some inmates to finish their sentence at home. 

‘Getting really tricky to figure out where people can go’

Faegre Drinker, an international law firm, joined with Albuquerque-based attorney Ryan Villa to represent the plaintiffs in the class action suit that may be heard by the state’s high court. 

The question before the court will not be whether or not the inmates are subjected to cruel and unusual punishment or even if the state has done enough to limit prison populations. Instead, justices would decide whether a district court judge can hear a case before all other options have been exhausted. 

In a statement, Faegre Drinker attorney Chris Casolaro said time is running out for inmates facing the risk of COVID-19 as infection rates in prisons are rising, nearly every day. 

“Coronavirus cases continue to surge in New Mexico, putting incarcerated people in far greater danger than they already were,” Casolaro said. “Time is of the absolute essence. If the Court does not order the state to immediately take action, including to reduce the number of people incarcerated in New Mexico prisons and establish adequate protections, the death toll will continue to rise. That’s why we are bringing every resource we have to bear.”

During a news conference on Thursday, Lujan Grisham said she believes the state has done a lot to try and get geriatric inmates on parole early and work towards detainees finishing their sentences at home. But, she said, there have been some cases where parolees did not have a safe place to shelter in place once out of prison. All parolees, even outside of a pandemic, have to provide a parole plan that includes, among other things, a place to live. 

“It’s getting really tricky to figure out where people can go,” Lujan Grisham said. “So, it’s not just whether or not we would allow that and have policies to adjust in that situation. Absolutely. It’s that the effort on the other side of that equation, isn’t so easy.”

The sentiment that there are not enough safe places for inmates to go was also shared by some of the state Supreme Court justices and was an argument used by the governor’s legal counsel in the first case, this past spring. 

During Thursday’s news conference, New Mexico Health and Human Services Secretary Dr. David Scrase, using a flood analogy, said there is only so much the state can do to mitigate infection spread in prisons and that “there’s a point at which the water gets high enough you can’t pile those sandbags up anymore.”

Scrase said he has learned from his COVID-19 modeling team that spread in communities directly impacts infection levels in surrounding schools, nursing homes and detention centers. Criminal justice reform advocates have argued the opposite since the pandemic started. Many of those advocates have argued that prison staff and outside vendors or contractors could cause an outbreak inside a prison to spread outside the walls into local communities that may not have enough hospital beds to accommodate a dramatic spike in cases.   

Regardless, Scrase, continuing with the flood analogy, said there is not a lot the state can do right now. 

“That ambient level which is extremely high, very high water level here in New Mexico with Coronavirus, makes it extremely difficult and almost inevitable that anything you do, you’re going to see some leakage,” Scrase said. “You’re going to see these outbreaks, like we’re seeing now in [prisons and nursing homes].

But while Scrase and Lujan Grisham both said the proverbial sandbags are stacked as high as they can go, Paul Haidle, the director of the New Mexico Criminal Defense Lawyers Association said the state was notified early on that things could get bad in prisons. 

“The Criminal Defense Lawyers Association, along with ACLU and the public defenders, we started putting the governor on notice early this spring that this was going to happen,” Haidle said. “It’s unfortunate now that our predictions have come true, but here we are.”

‘Busting at the seams’

On April 14, the same day the ACLU, the public defender’s office and the Criminal Defense Lawyers Association filed their petition with the state Supreme Court, state health officials reported 16 new cases of COVID-19, which brought the total number of cases to 1,407, and 36 total related deaths. At that time there had been no reported cases or related deaths in any state prisons. According to state officials, there have been a total of 1,335 positive cases in prisons statewide this year and there are currently nearly 800 active cases, as of Friday. With 21,523 total tests administered, the positivity rate within prisons is roughly six percent. So far there have been 11 inmate deaths related to COVID-19.

Tom Murray, who is at the Penitentiary of New Mexico in Santa Fe for possession of burglary tools, possession of a stolen vehicle and failing to register as a sex offender, said he’s seen an increase of inmates being sent to quarantine in the past several weeks. The Santa Fe prison managed to keep COVID numbers down for longer than other prisons. Even now, the 77 current cases at the Santa Fe prison pale in comparison to the 477 cases the Otero County Prison Facility has seen this year, or the 158 active cases at the Central New Mexico Correctional Facility in Los Lunas. 

But Murray said his low-security unit is “busting at the seams” with inmates and that social distancing is all but impossible. 

“We’re piled on top of each other over here,” Murray said in a phone interview. “We’re on bunk beds and if I were to lay on my bunk and put my hand out, I can touch the bunk next to me.”

Murray said he mainly works in the prison’s kitchen and that he witnessed a cook get pulled out of the kitchen for quarantine. That inmate, Murray said, was allowed to return to the kitchen only to be pulled out again for quarantine. Murray said he is concerned that the cook may have been able to rapidly spread COVID-19 before prison officials took him off kitchen duty. 

“You’re looking at almost 700 inmates for this whole facility that possibly could have just got infected just because this guy was cooking,” Murray said. 

With a 2024 release date, Murray has no chance to qualify for the governor’s executive order for early releases, but he said he’d like to see others get released for his own safety. 

“Even just getting some of the people that do qualify for this would definitely decrease the chance of spreading, I mean we’d have social distancing,” Murray said. 

NM Political Report has previously written about Stanley Ingram, another inmate at the Santa Fe prison. Ingram has numerous health conditions and told NM Political Report a few weeks ago that he tested positive for COVID-19. He was released earlier this week after struggling to get corrections officials to recognize his earned early release time. And it seems Ingram is not the only one trying to navigate the maze of paperwork and bureaucracy to get out 30 days early. 

Sen. Jacob Candelaria, D-Albuquerque, is also a lawyer who has lately been taking on expungement cases and recently took on a client who is also trying to get out 30 days early.  

Candelaria declined to offer specifics about his client or the case, but said, speaking as both an attorney and a state Senator that the Department of Corrections is not doing enough to ensure inmates’ safety. 

“From a public policy perspective, I get that we have to be balanced here, I get that the decision of whether or not an individual is released, is an individual case by case determination,” Candelaria said. “But I think what we’re seeing here is that the corrections department is not acting with any sense of urgency, or in my view, in a way that is consistent with the governor’s public health orders.”

‘A humanitarian crisis’

Some inmates, Haidle with the Criminal Defense Lawyers Association said, are in prison for violating their parole. A parole violation can range from getting arrested for committing a crime to failing a drug test. Haidle said the corrections department has more control that most think over which parole violations constitute going back to prison. 

“On a technical violation, it’s [a parole officer’s] word to a judge that this person should get violated,” Haidle said. “And so a PO can actually get somebody put into custody in a jail, just on their word alone. Then they go to a hearing eventually before the court and then only the court can send them back to prison.”

Haidle said the corrections department can and should make a concerted effort to make sure some of those technical violations don’t result in another inmate in a facility rife with COVID-19. 

“Nobody on these sorts of violation sentences is sentenced to death, which is essentially what could happen here,” Haidle said. “I don’t think that’s hyperbole anymore, now that we’re seeing the spread.”

Lalita Moskowitz, a staff attorney with the ACLU of New Mexico said she could not speculate what sort of lawsuits from inmates or their families the state might face in the future or what the ACLU’s involvement might be in a hypothetical suit. But she said wouldn’t blame families for holding state officials responsible for injuries or death. 

“Right now what’s going on in the prison is a humanitarian crisis and this administration will be responsible for lives lost if they don’t make some changes,” Moskowitz said. 

Moskowitz said she is also disappointed in the disparity between the governor’s message to New Mexicans to stay home, mask up and social distance and the trickle of inmate releases. 

“I’ve been really looking at the difference between the governor’s really nuanced response to the pandemic in the general community and the actions that the administration is taking to protect people in the general community, and seeing none of that nuance or thoughtfulness reflected in the actions to protect our incarcerated community,” Moskowitz said. “That feels like a really stark contrast for me right now.”

The state Supreme Court has not decided whether it will consider the case.