SANTA FE, N.M. (CN) — The New Mexico Supreme Court denied a petition Monday seeking to release a significant percentage of prisoners from New Mexico’s prisons and jails due to the danger of a coronavirus outbreak inside the state’s prisons and jails.
Chief Justice Judith Nakamura and Justices Michael Vigil, C. Shannon Bacon and David Thomson, with Senior Justice Barbara Vigil participating by video, heard arguments on the request by representatives of the Office of the Public Defender, the Governor’s Office, the New Mexico Corrections Department, and the District Attorney’s Association.
The emergency petition for writ of mandamus and/or habeas relief, filed by the state public defender, the New Mexico Criminal Defense Lawyers Association and the ACLU of New Mexico, requests the release of low-risk inmates to parole, in-house detention or community release to alleviate overcrowding in state prisons and allow for the possibility of social distancing and isolation among the remaining prison population.
According to the petition, inmates cannot maintain six feet of distance between themselves and others and are unable to disinfect objects including toilets, sinks and showers between uses. Inmates sleep in dormitory-style arrangements, food preparation and service is communal, and many facilities do not offer soap or paper towels but instead require inmates to purchase soap in a commissary.
Under the current conditions safe social distancing is impossible in the state’s prisons, according to the petition, which quotes New Mexico Corrections Department Secretary Alisha Tafoya as telling a radio station the state’s prisons can’t implement social distancing in their closed environment.
In the petition, it is postulated that should an outbreak of Covid-19 occur in New Mexico correctional facilities, it would pose a grave risk to inmates, staff, and the surrounding communities. With over 15,000 people currently incarcerated in New Mexico’s prisons, the petitioners say the risk posed by Covid-19, for both medically vulnerable and otherwise-healthy inmates, is great enough to constitute an Eighth Amendment violation, that it is “cruel and unusual punishment to subject inmates to the substantial risk of contracting Covid-19, which would potentially constitute a death sentence for those infected.”
The petition requests the release of inmates and detainees serving a sentence for probation or parole revocation without charges of a new criminal offense — which makes up approximately a third of the current prison population. Further, the request covers those who are pregnant, over the age of 60, inmates with cardiovascular disease, renal disease, liver disease, chronic lung disease and moderate to severe asthma, those who have been diagnosed with cancer or have had cancer within the past five years, immunocompromised individuals and those with diabetes. The petition also requests the release of those serving in-house parole, and those who have less than one year remaining on a sentence for a nonviolent crime.
At the time the petition was filed April 14, there were no confirmed coronavirus cases among prisoners or inmates at any New Mexico facility, though there had been one confirmed case of a staff member testing positive for the virus.
During Monday’s hearing, the justices asked the petitioners’ attorney Kimberly Chavez Cook to explain and justify the Eighth Amendment claims and to lay out specifics of how many current prisoners would be released and under what circumstances. Chavez Cook said that until records are reviewed, hard numbers aren’t available but that a special master would be requested to oversee individual cases.
When Chief Justice Nakamura asked why the petitioners requested a special master rather than allowing the cases to be weighed by judges already in place, Chavez Cook stressed that individual reviews were expected to be quick and informal and a special master could review a case more promptly than a court. She also reiterated the petition is intended to represent large numbers of currently incarcerated individuals rather than to address individual circumstances.
Representing the state attorney general, Olga Serafimova argued the petition shifts the burden of proof to the respondents rather than the petitioners. “Effectively,” she said, “the petitioners argue that If we cannot affirmatively prove here and now that no inmate will ever get Covid-19, then we have violated the Constitution.”
Representing the governor, Matthew Garcia agreed with this assessment and noted “[t]he petitioners are asking this court to command the governor to facilitate and expedite the mass release of inmates. It is incumbent on the petitioners to provide a legal justification and they have not done so.”
He added that for the Supreme Court to order the governor to grant clemency in some prescribed manner would be a constitutional violation.
Garcia also asked for specifics on plans for parole and release conditions. With halfway houses and community centers nearly full and the housing and job markets in New Mexico strained by the current outbreak, he questioned whether the state had the resources to release inmates while guaranteeing that their situations would be safer than conditions inside the prisons.
“If we released hundreds of inmates tomorrow,” Garcia asked, “where are all these people going to go?”
John P. Sugg of the 12th Judicial District Attorney’s office, speaking for the DA’s association, brought up a more personal aspect. “There is a third real party in interest in all this litigation and they haven’t been mentioned to this point. And that’s the victims of the crimes committed by inmates.”
Chavez Cook reiterated that the petitioners are not seeking clemency, but rather for the conversion of their sentences from one form of custody to another. She also stressed the types of prisoners proposed for early release under the petition were overwhelmingly convicted of victimless crimes such as drug possession and parole violation, and that the special master would have the ability and authority to disqualify inmates convicted of violent crimes or who were judged to be a danger to the community.
After a recess of slightly less than an hour to consider, Nakamura said the justices acknowledge the urgency of the situation and the genuine concern for the safety of New Mexicans of all parties involved, but all agreed that under the Eighth Amendment and the New Mexico Constitution the state has not been deliberately indifferent to the health and safety of inmates.
A written opinion denying the petition will be issued at a later date.