2020 Top Stories #5: COVID-19 in prisons

See our entire countdown of top stories, to date, here. The COVID-19 pandemic impacted the lives of almost every New Mexican, including those locked up in jail or prison. 

In April, just a month after New Mexico saw its initial cases of COVID-19, Gov. Michelle Lujan Grisham’s office faced a legal challenge over how the state was handling COVID-19 in detention centers across the state. A petition filed by the American Civil Liberties Union of New Mexico, the New Mexico Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association asked the state Supreme Court to intervene and compel the state to broaden its scope of how to lower inmate populations. The stance of the governor’s office was, and still is, that an executive order allowing a specific class of inmates to be released 30 days early was enough. 

The coalition that filed the petition argued that the governor’s office and the New Mexico Corrections Department were subjecting inmates to cruel and unusual punishment by sticking with the 30-day early release order instead of pushing for expanded and expedited parole or house arrest for inmates. During oral arguments in the Supreme Court case, both the governor’s lawyer and some justices expressed concern over where inmates would go after being released.

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.

Judge rules inmate is safer from COVID-19 in prison than at home

Despite conditions that make social distancing difficult during the COVID-19 pandemic, a New Mexico state district judge ruled that keeping a man in state prison would be safer than going home roughly four months early. 

District Judge Albert Mitchell ruled on Aug. 20 that despite his underlying health conditions and close living conditions in prison, Stanley Ingram would be safer in prison than at home with his girlfriend in Tucumcari. 

In the order, Mitchell acknowledged Ingram’s health conditions, including diabetes and heart arrythmias, and how those conditions have been reported to create a higher risk of experiencing severe complications from COVID-19. Still, Mitchell reasoned that since there is only one reported case in the Penitentiary of New Mexico, where Ingram is detained, and fifty cases in the county where he would live when released, Ingram is safer in prison. 

“The policies and procedures implemented at the Department of Corrections facility where Mr. Ingram is being held appear to be more effective in protecting the individuals in state custody from COVID-19 than the Governor’s orders as implemented in Quay County, New Mexico,” Mitchell wrote. 

In a phone call last week, Mitchell told NM Political Report that he cannot speak about Ingram’s case specifically because it’s still considered pending. 

Ingram could still appeal the ruling, but he said he can not afford another attorney and that the issue would likely not be settled before his pending Dec. 15 release date.  

During a call from prison, Ingram told NM Political Report he was disappointed by the ruling.  

“That’s ludicrous what he did, and it’s not right.” Ingram said. 

NM Political Report previously reported that Ingram had obtained a number of educational and drug treatment certificates while incarcerated and was initially not given credit towards early release. The New Mexico Department of Corrections finally did honor his certificates and Ingram expected to be released in November.

Inmates in Cibola County protest over COVID-19 conditions

A small group of federal detainees held a protest on Wednesday, a spokeswoman for the private company which runs the facility confirmed. Amanda Gilchrist, the director of public affairs for CoreCivic, the company that oversees the western Cibola County Correctional Center, said in a statement that the group of detainees were protesting their “quarantine status” and said the protest ended without injuries. “During the incident, these detainees blocked the pod door, covered the windows and cameras, and refused to comply with verbal directives provided by facility staff,” Gilchrist said in an email. 

She added that medical staff “reviewed the individuals involved in the protest” and that guards “Successfully restored order, with no injuries occurring as a result of this incident to detainees or staff.”

In May, guards at the Torrance County Detention Facility used pepper spray to subdue detainees, Searchlight New Mexico reported. The Cibola County Correctional Center houses federal detainees, which include those detained by U.S. Immigration and Customs Enforcement. Last week, the facility saw a significant increase of COVID-19 cases.

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.

NM still tops in nation for reliance on private prisons

New Mexico incarcerates a higher percentage of inmates in privately run, for-profit prisons than any other state, according to a new analysis from the Sentencing Project. It’s a designation New Mexico has held for many years. More than 42 percent of people imprisoned here were being held in one of the state’s five private prisons at the end of 2015, according to the analysis, which is based on figures from the Bureau of Justice Statistics (BJS). Three of those prisons are operated by GEO Group, Inc.; Core Civic (formerly Corrections Corporation of America) and Management and Training Corporation each run a prison in New Mexico as well. This story originally appeared in New Mexico In Depth and is reprinted with permission.