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

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.

Maryland court has 40 days to decide on abortion medication

A District Court in Maryland has 40 days to lift, modify or continue the order it previously made to allow the abortion medication mifepristone to be available through telehealth during the pandemic. The U.S. Supreme Court asked the lower court on Thursday to reconsider a case the American College of Obstetrics and Gynecologists (ACOG) brought against the Food and Drug Administration (FDA) over the summer. ACOG wants the FDA to allow mifepristone to be available for abortion care through telehealth during the pandemic. Although the FDA approved mifepristone 20 years ago for abortion care, the FDA continues to regulate it as if it were a dangerous drug. The FDA argued in court that people should have to continue to pick up mifepristone at a health care provider during the pandemic.

During pandemic, a privately run detention center sought to find new migrants to detain

A private detention center in southern New Mexico sought to increase the numbers of detainees within its facility after the state declared a public health emergency for the COVID-19 pandemic. Management and Training Company (MTC), which operates the Otero County Processing Center (OCPC), sent a letter to Otero County Manager Pam Heltner dated March 31. The letter stated that due to an anticipated “significant decrease,” in migrant detainees, the company would terminate its agreement—but offered a solution. NM Political Report received the letter from the American Civil Liberties Union of New Mexico, which obtained it through a Freedom of Information Act request. The letter stated:

“MTC would be happy to explore with you the possibility of partnering with other state or federal agencies to co-locate detainees or inmates at the OCPC in order to increase the overall population at the facility and make MTC’s continued operation of the facility financially viable.”

MTC houses migrants held by U.S. Immigration and Customs Enforcement (ICE).

New Mexico women can still get contraception coverage despite Supreme Court ruling

New Mexico women who need contraception are likely safe for now despite the U.S. Supreme Court’s 7-2 decision which will allow private companies to opt out of providing insurance coverage for it, according to the American Civil Liberties Union of New Mexico. A recent law passed in New Mexico enables women in the state to continue contraceptive coverage despite the court’s decision which now enables private companies to deny contraception coverage by citing moral or religious objections. But, Ellie Rushforth, reproductive rights attorney for the ACLU-NM warned, the future is uncertain. “It doesn’t mean we’re fully insulated from future issues related to this,” she said. The Supreme Court overturned a lower court’s decision on Wednesday in the case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

ACLU again calling on Lujan Grisham to expand prison releases to slow the spread of COVID-19

The American Civil Liberties Union of New Mexico is once again calling on state officials, namely the governor and her Department of Corrections secretary, to expand their efforts to lower prison populations in light of COVID-19. The ACLU-NM sent a letter Tuesday to Gov. Michelle Lujan Grisham and her legal counsel, asking the state to revisit the issue of how to lower inmate populations as a way to increase social distancing and slow the spread of COVID-19 within prison walls. 

The letter praised Lujan Grisham for the “bold measures” she has taken to protect New Mexicans in general, but went on to invoke a quote from Nelson Mandela while encouraging the governor to consider inmates’ health. 

“We ask you to apply the same strong, decisive, and forward-thinking approach to protect the lives of incarcerated New Mexicans as you have for the rest of the state,” the letter read. “After all, ‘a nation should not be judged by how it treats its highest citizens, but it’s lowest ones’– a notion that could not be more glaring than during this pandemic.”

The letter asks the governor to not just release inmates about 30 days before they are scheduled to leave, but to also consider early parole for some inmates and to consider releasing inmates who are serving prison sentences as a result of technical parole or probation violations. 

But ACLU-NM Staff Attorney Lalita Moskowitz, who is also a cosigner of the letter, told NM Political Report that a key ask from the organization is transparency. 

State health officials and the governor’s office have consistently released information about how many people in the state have tested positive for the disease among a long list of other things. But Moskowitz said the ACLU would like to see specific breakdowns regarding how many tests were performed within prisons and how many staff members tested positive. 

“[Inmates’] families and the communities that are surrounding these facilities really deserve to know what’s going on there and deserve to be kept aware and not have to be wondering if there’s an outbreak we don’t know about, or if they’re testing anyone after a positive case,” Moskowitz said. 

In April, Lujan Grisham signed an executive order to release inmates, who meet certain qualifications, 30 days before their scheduled release date. By May, the ACLU-NM and the New Mexico Law Offices of the Public Defender asked the state supreme court to intervene and compel the governor’s office to broaden the scope of who can be released and when.

Reproductive rights under attack, say advocates. Here’s what you can expect.

The U.S. Supreme Court is expected to make major reproductive health care decisions early next week. Monday and Tuesday will be the final two days this term that the justices will issue opinions, according to the Supreme Court’s blog. Historically, the court has handed down decisions on abortion on the last day of the session, Nancy Northup, executive director of the Center for Reproductive Rights said last month. But in this case, the court has two reproductive health care decisions to rule upon in the final days of the session. The two cases are June Medical Services LLC v. Russo and Trump v. Pennsylvania.

What police reform efforts happened, and didn’t happen, during the special session

This year’s special session wrapped up on Monday and the state now has a balanced budget. But as with many special sessions, legislators were tasked with considering other law changes, including those aimed at holding law enforcement officers more accountable. Those bills included issues like mandatory body cameras for police officers, new processes for reporting police use of force and creating a civil rights commission. It was a mixed bag on what types of reform proposals passed and there were mixed feelings from civil rights advocates. 

Body cameras

One of the bills that made it to Gov. Michelle Lujan Grisham’s desk is SB 8, sponsored by Sen. Joseph Cervantes, D-Las Cruces. The bill would require all police in the state, regardless of jurisdiction, to wear body cameras.

Delays in reproductive health care worry advocates

With delays in reproductive health care already taking place, officials with American Civil Liberties Union of New Mexico said it could get worse as the global pandemic of COVID-19 continues. Ellie Rushforth, a reproductive rights attorney for ACLU-NM, sent letters to elected officials Monday urging them to ensure reproductive health care will remain accessible during the public health emergency. The letters, to Governor Michelle Lujan Grisham, congressional officials and the mayors of Albuquerque, Santa Fe and Las Cruces, ask that they consider abortion care, all forms of birth control; STI screening, testing, and treatment; vaginal health and treatment; prenatal, delivery, and postnatal care as essential reproductive services that need to remain accessible. The letters outline immediate steps, including that reproductive health care clinics and outpatient abortion providers be considered, “essential business.”

Lujan Grisham announced a stay-at-home order Monday in an attempt to slow down the spread of COVID-19, a type of coronavirus. As of Monday, March 23, the state has 83 test positive cases, with 18 new ones.

Reproductive justice advocates say abortion ban repeal ‘next year’

Hed: Reproductive justice advocates say abortion ban repeal ‘next year’

Many reproductive justice advocates said their biggest disappointment of the 2020 legislative session is that the 1969 New Mexico law banning abortion is still on the books. But some in the Respect NM Women Coalition, a group of reproductive justice advocates and organizations, say ‘next year.’

“We’re looking forward to repealing the state’s archaic 1969 abortion ban in 2021,” said Joan Lamunyon Sanford, executive director of NM Religious Coalition for Reproductive Choice. The nonprofit she leads is part of the coalition. While the law is still on the books, it is not currently enforceable because of the landmark Roe v. Wade U.S. Supreme Court decision. The law is worrisome for many because the U.S. Supreme Court will hear a Louisiana law, June Medical Services v. Russo (formerly June Medical Services v. Gee) requiring abortion clinics in that state to be affiliated with a hospital and have admitting privileges.

Pregnant worker protection bill on its way to Guv’s desk after scare on Senate floor

A bill protecting pregnant workers nearly died on the Senate floor Tuesday night when a Democrat tried to introduce an amendment viewed as “unfriendly.” However, the Senate defeated the amendment and the bill itself passed unanimously. HB 25 seeks to protect pregnant workers and new moms in the workplace by amending the state Human Rights Act to include those employees. This would enable pregnant people and new moms to seek mitigation under the state’s Human Rights Commission if they feel they have been discriminated against if an employer refuses “unreasonable accommodations.”

An amendment that Senator Joseph Candelaria, a Democrat from Albuquerque, tried to attach to the bill took issue with the idea that pregnant workers and new moms belong under the Human Rights Act. Candelaria, who is openly gay, said the bill created a “new suspect class of people.”  He did not want the Human Rights Act to be amended. He said the bill would “erode decades of civil rights litigation and protections” reserved for immutable aspects of a person such as sexual orientation.