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.

Children and pregnant women no longer allowed in solitary confinement in NM

A long-sought set of reforms to the way New Mexico jailers and prison officials use solitary confinement kicked in July 1, barring the practice for certain populations and starting the clock on what civil rights advocates and lawmakers hope will lead to unprecedented transparency on the controversial practice in the state. Effectively immediately, pregnant women and children can no longer be held in solitary, and beginning in November prisons and jails around the state will start publicly reporting how many people are being held in solitary. Insufficient data has for years frustrated lawmakers’ and others’ ability to understand the scale at which solitary confinement is used in the state’s jails and prisons. 

State Rep. Antonio “Moe” Maestas, D-Albuquerque, co-sponsor of  House Bill 364 during the legislative session that concluded in March, sent a letter to Gov. Michelle Lujan Grisham’s administration and officials who run the 33 county jails across New Mexico, reminding them of the new statute’s requirements. Among the changes is the state’s first universal definition for solitary confinement: holding someone in a cell alone for 22 or more hours a day “without daily, meaningful and sustained human interaction.”

Previously, jails and prisons were using a patchwork set of labels and standards to categorize solitary confinement, often frustrating lawmakers’ and others’ efforts to snap a true picture of how the tactic was used in New Mexico. The measure required prisons and jails to stop keeping children and pregnant women in solitary — except in extremely rare instances — on July 1.

Bills would limit solitary confinement, require reporting in NM

House and Senate lawmakers are pushing identical proposals that would abolish solitary confinement for pregnant women and children and steeply curtail its use on people living with mental illness in New Mexico’s jails and prisons. If passed into law, supporters say either bill would provide a statutory definition for “isolated confinement” in the state and much needed transparency on the scope of the controversial practice of leaving inmates alone in their cells for 22 hours a day or more with little to no contact with others and few opportunities to participate in educational or rehabilitative programs.

“Right now, we do not know on any given day if it’s 100 or 1,000 people in isolated confinement in the state of New Mexico,” Rep. Antonio “Moe” Maestas, the Democratic sponsor of HB175, said. “Once we have some data, we can have confidence that the Corrections Department and the counties are scaling back the use of solitary confinement.”

This piece originally appeared at New Mexico In Depth and is reprinted with permission

Numerous studies, including one by the advocacy group Disability Rights Washington, have shown that isolation in a prison cell can exacerbate existing mental illnesses and create new ones where none existed before. The United Nations and the American Academy of Child and Adolescent Psychiatry have argued that solitary confinement is particularly dangerous for children, whose brains are still developing, and condemned its use. New Mexico has a troubled history with solitary confinement.

DA: Allegations of police tampering with video warrant federal investigation

Kari Brandenburg, the outgoing Bernalillo County district attorney, said Monday a federal “criminal investigation is absolutely warranted” into allegations that Albuquerque Police Department employees have tampered with videos that show police shootings. Brandenburg said Monday in a telephone interview she is sending documentation detailing the allegations to the U.S. Attorney’s Office in Albuquerque. This story originally appeared at New Mexico In Depth and is reprinted with permission. A spokeswoman for the U.S. Attorney’s office would not say Monday whether the agency planned to open an inquiry based on the district attorney’s referral. But spokeswoman Elizabeth Martinez wrote in an email “the Justice Department takes seriously all referrals from state and local prosecutorial authorities.”

The allegations

Reynaldo Chavez, the police department’s former records supervisor, swore out an affidavit as part of an ongoing civil right rights lawsuit against APD in which he alleged that department employees had altered or deleted videos showing the events surrounding two controversial shootings by officers in 2014.

Call for death penalty echoes Legislature’s ‘tough on crime’ session

If Gov. Susana Martinez’s call to reinstate the death penalty after the killing of an on-duty police officer looks familiar, that’s because something very similar happened last year. After the 2015 high-profile killings of Rio Rancho police officer Gregg Benne and Albuquerque police officer Daniel Webster, Martinez and Republican leaders in the state House of Representatives made tough-on-crime measures their signature effort during the ensuing legislative session. Now, another high-profile death of a cop—this time Hatch police officer Jose Chavez—presents a similar political opportunity. And this time, it comes ahead of a general election where Republicans are aiming to preserve their majority in the state House of Representatives and win control of the state Senate. In a prepared statement announcing her intentions, Martinez also evoked the recent Dallas massacre of five cops during a protest prompted by police shootings of two unarmed black men in Louisiana and Minnesota.

Peter Wirth

Voters to decide on bail reform

Voters will get to decide on a bail reform this November after the proposal passed the Senate Wednesday morning. The Senate quickly voted 36-0 to concur with House changes to send the proposed constitutional amendment to the voters, likely on the ballot this November. The proposal would allow judges to hold those they deem a danger to others in jail without bond until trial. This is the part that just about every legislator agreed with. The more controversial proposal, and one that took a deal between sponsors and the bail bond industry, was to allow judges to release those who are in jail before trial solely because they could not afford bail.

Compromise on NM bail system passes House

Legislation that would allow for for judges to withhold bail for defendants who pose a danger to the community, but also waive bail for defendants who are in jail only because they cannot afford it, passed the House unanimously on Monday. The passage came quickly because the House put the legislation on a fast track. In one day, the legislation passed a House committee and the House voted to remove it from another. Rep. Antonio “Moe” Maestas, D-Albuquerque, was the House sponsor and presented the legislation on behalf of the Senate sponsor Sen. Peter Wirth, D-Santa Fe, and told the body of the broad support for the proposal. Supporters included New Mexico Supreme Court Justice Charles Daniels and Majority Floor Leader Nate Gentry, R-Albuquerque.

NM swims against criminal justice reform tide

The aftermath of a heinous crime that saw a career criminal kill a Rio Rancho police officer is sparking talk of tougher crime laws. Next week, state lawmakers in the interim Courts, Corrections & Justice Committee will hear testimony on a bill to add crimes to New Mexico’s existing “three strikes” law, which assigns mandatory life in prison sentences to convicts of three violent crimes. Yet the local legislative doubling down on “tough on crime” laws—two Republican state representatives are proposing changes that would tighten New Mexico’s three strikes law—comes at a time with strong national momentum in the opposite direction. And it’s Republicans with national ambitions that, in many cases, have been making headlines for this. “Former [Texas] Gov. Rick Perry is going around the country bragging that he closed three prisons,” said state Rep. Antonio “Moe” Maestas, D-Albuquerque, who supports criminal justice reform.

Defense attys want info on possibly uncertified cops

An organization of criminal defense attorneys is the most recent group requesting swift action on allegations of training and certification deficiencies within the Albuquerque Police Department. A member of the New Mexico Criminal Defense Lawyers Association (NMCDLA) said the group is in the process of requesting action from both New Mexico Attorney General Hector Balderas and the Second Judicial District Attorney Kari Brandenburg. NMCDLA Treasurer, Barry Porter told New Mexico Political Report he expects the group will write a letter asking Balderas and Brandenburg to move forward on releasing names of officers who might not be properly certified. Porter said cases of resisting arrest and assault or battery on police officers may come under scrutiny, especially if the officer was not properly trained. “All of those [types of cases] require, as an element of the offense, that the officer be in the lawful discharge of their duties,” he said.