NM Supreme Court denies request to expand inmate release

The New Mexico Supreme Court ruled Monday that Gov. Michelle Lujan Grisham’s office did not willfully ignore the health and safety of state prison populations by releasing inmates in a limited manner during the COVID-19 pandemic. 

The high court’s decision was in response to a petition filed by the American Civil Liberties Union of New Mexico and the state’s Law Offices of the Public Defender, alleging that Lujan Grisham’s office subjected inmates in state-run detention centers to cruel and unusual punishment by not broadening the scope of who is released. 

Chief Justice Judith Nakamura, ruling from the bench, said since the court did not find that Lujan Grisham’s office was “deliberately indifferent” to a possible COVID-19 outbreak in state detention centers there was no need to consider whether inmates’ rights were violated.  

“It’s a two prong analysis,” Nakamura said. “The court is not addressing prong one. We’re basing our decision on prong two. And that’s the prong which specifically focuses on whether or not [Lujan Grisham’s office] are deliberately indifferent to the health and safety of inmates. On this record the court unanimously finds that the answer is ‘no.’

Chief Public Defender Bennet Baur told NM Political Report that regardless of the court’s decision, his office will keep pushing for more releases.

ACLU, public defender’s office calls on NM to release more inmates amid COVID-19

New Mexico’s Law Offices of the Public Defender and the state’s American Civil Liberties Union chapter filed a petition with the New Mexico Supreme Court, asking the high court to order the mass release of inmates as a way to limit the spread of COVID-19 in state jails. 

“People in congregate environments (where people live, eat, and sleep in close proximity) like prisons and jails face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus on cruise ships and in nursing homes,” the petition read. “For example, New Mexico’s major outbreak events have thus far been in long-term care facilities.”

The petition is the latest of attempts by both groups to lower detention center populations. 

The two groups are asking the state’s high court to order the governor and the state’s Corrections Department to “Immediately review all corrections inmates” and work to quickly release those who are incarcerated for probation or parole violations, inmates who are at high risk of contracting COVID-19, those who have a year or less left on their sentence, non-violent offenders and pregnant inmates. 

The two groups are also asking the New Mexico Supreme Court to implore the state to stop jailing people for technical probation or parole violations, identify those who are eligible for gereatric or medical parole and to hold expedited parole hearings.  

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Last month Gov. Michelle Lujan Grisham began ordering the release of some inmates in state facilities, but the LOPD and the New Mexico ACLU argued that those releases will not fully address the problem. 

“However, that order describes a very narrow class of inmates, and in the short-term (when NM will experience a peak in the stress in health care infrastructure) will reduce the prison populations by only about ten inmates statewide,” the petition read. 

The two groups argued in their petition that “Many inmates live in dormitory-style sleeping arrangements, sleeping in beds close together,” making it hard for inmates to practice social-distancing. 

“Put simply, inmates do not have the privilege of protecting themselves from infection,” the petition read. “New Mexico prisons lack adequate infrastructure to address the spread of infectious disease and the treatment of people most vulnerable to illness.”

Since New Mexico first reported positive COVID-19 tests, many criminal justice stakeholders have been pushing for limited in-person court proceedings and a reduction of inmates in both state and county detention centers.

Public defenders hit speed bumps in protecting inmates from COVID-19

The prosecutor made clear what it would take to keep a woman, twice accused of driving while intoxicated, out of jail. “It’s a Corona SALE a ‘BOGO’ buy one get one! She only has to do one of everything and it gets credited to the concurrent one,” senior trial prosecutor John Bernitz wrote in an email to the defendant’s attorney. 

Bernitz’s conditions were in response to public defender Earl Rhoads, who had asked why the McKinley County District Attorney’s office waited for more than two months to call for the detention of a woman who was already facing open container and aggravated drinking and driving charges from last year. In October 2019, the woman was accused of drinking and driving when a state police officer said he found her asleep in her running car, outside a gas station in Gallup. The original criminal complaint alleged that the woman admitted to consuming alcohol and parking at the gas station to “recover.” A state magistrate judge released the woman on a $1,500 bond.

NM public defender staff member tests positive for COVID-19

The New Mexico Law Offices of the Public Defender announced Tuesday that it closed its Santa Fe office after a staff member tested positive for COVID-19. 

According to a press release from the LOPD, the staff member had limited contact with other lawyers or clients, partially because of visitor restrictions at the Santa Fe detention center, Santa Fe’s district court and LOPD’s own office closures. About two weeks ago, the LOPD closed all of its physical offices, opting to conduct business only by phone or video conferencing. 

Chief Public Defender Bennett Baur, in a statement, said the employee will stay at home and that the LOPD will continue to limit person-to-person interaction. 

“We’re thankful our employee is able to quarantine at home at this time,” Baur said. “We will continue to be proactive with measures to protect the health of our employees, our colleagues in the justice system, and our clients.”

The LOPD was one of the first institutions in the state’s criminal justice system to close their offices and call on the state Supreme Court to significantly increase restrictions. State courts were eventually ordered by the high court to postpone all new jury trials, limit the number of people in courtrooms and conduct all business over the phone or by video, except in emergency situations. 

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NM Supreme Court orders further COVID-19 restrictions for state courts

The New Mexico Supreme Court announced Tuesday further restrictions for court proceedings across the state. 

The court’s updated order, which will go into effect immediately, also suspended all trials that have not already started until April 30. In a statement, New Mexico Supreme Court Chief Justice Judith Nakamura said the order will help preserve the integrity of the justice system while also providing safety from COVID-19, a disease from the coronavirus. “The precautionary measures imposed by the Judiciary today will provide additional safeguards for all New Mexicans while allowing necessary court functions to continue,” Nakamura said. But she said it is also imperative the courts remain open. “Especially during a public health emergency, courts must not close because they deliver vital services required in our justice system to ensure community safety,” Nakamura said.

NM public defender office calls on state Supreme Court to postpone trials

For the first time, possibly ever, the New Mexico Law Offices of the Public Defender last week shut its physical offices to the public. Now the office is asking the state’s Supreme Court to postpone all pending trials and allow essential hearings to be done by phone. 

In response to the growing number of COVID-19 cases in the state, signs posted on the office’s door last week informed the public that all business should be handled remotely, if possible. 

In a statement released Sunday, Chief Public Defender Ben Baur acknowledged the importance of speedy trials, but said the health of those clients and public defender staff should take priority. 

“If this virus gets into one of our jails, the conditions are such that it could spread rapidly in close quarters, and many people in jail are already in poor health,” Baur said. 

The state Supreme Court already ordered limited actions in court buildings across the state, but said criminal trials should continue. Baur spoke last week with NM Political Report about the decision to close physical offices.   

“Our doors will be closed to the general public and all LOPD business should be conducted via telephone and email, to the extent possible,” Baur said. “That’s to protect our clients as much as us.”

But unlike public schools or other events around the state, the LOPD cannot fully shut down. 

Baur said it’s hard to pinpoint exactly how many cases would be impacted by a hold on trials, but that the number is “easily over 100.” He said since the state first confirmed COVID-19 cases, the LOPD has been trying to utilize any and all resources to keep large groups out of court rooms and law offices. 

Alec Ortenstein, the managing attorney for the LOPD office in McKinley County, said he has been working with the county’s district attorney to minimize the amount of people in court and the amount of time they spend there. 

“Our district attorney and I see completely eye to eye on this issue,” Orenstein said.

AG’s office walks out over change to child porn bill

A successful amendment to a bill to crack down on child porn caused staffers from a key state agency to storm out of the committee room in apparent protest. After lawmakers in the Senate Finance Committee voted to exempt teenage sexting from a measure increasing penalties on possession of child porn, Clara Moran, the division director for special prosecutions at the state Attorney General’s office and others from that office walked out of the committee room. Related Story: AG gives explanation for child porn bill walkout

Until that point, Moran acted as the expert witness for sponsors and Reps. Sarah Maestas Barnes, R-Albuquerque, and Javier Martinez, D-Albuquerque. Sen. George Munoz, D-Gallup, was not pleased.