Defense attorneys and other inmate advocates filed an emergency petition Tuesday, asking the state Supreme Court to order the release of about 30 percent of the state’s prisoners to reduce the threat of a COVID-19 outbreak in detention facilities throughout New Mexico.
The Law Offices of the Public Defender, the American Civil Liberties Union of New Mexico and the New Mexico Criminal Defense Lawyers Association contend in their petition Gov. Michelle Lujan Grisham “has not taken any meaningful action to protect the thousands of New Mexicans behind bars.”
Lujan Grisham on April 6 ordered the early release of inmates with less than 30 days left on their sentences. That order has resulted in the release of fewer than a dozen prisoners.
Department of Corrections spokesman Eric Harrison said the state prison system so far has tested three inmates and five staff members for the novel coronavirus, and all tested negative. But an inmate at the Santa Fe County jail tested positive Sunday.
The Department of Health tested all other inmates housed with the positive case. All 33 of those tests have come back negative, and those tested for the virus were housed in individual quarantine cells also beginning April 7 and will remain there for the remainder of their 14-day isolation period until April 21, county spokeswoman Carmelina Hart said.
Eight jail employees also were were tested, with five of those coming back negative and results for the other three pending.
In all, 59 inmates have been tested for the novel coronavirus.
Keeping inmates incarcerated without the ability to follow the social-distancing and hygiene protocols recommended by health officials to avoid contracting COVID-19 is unconstitutional, according to the petition asking for the release of some inmates.
The petitioners are asking the state Supreme Court to order the governor and Corrections Department Secretary Alisha Tafoya Lucero to immediately review the records of all inmates and release those in the following categories:
- Prisoners serving a sentence because of a probation or parole violation, which is estimated to be about a third of the state’s 7,000 prisoners.
- Prisoners at increased risk of serious illness from COVID-19, including those who are 60 or older and those with compromised immune systems and other medical conditions.
- Prisoners serving in-house parole or those with less than a year left on their sentences.
- Pregnant prisoners.
- Prisoners incarcerated for nonviolent offenses.
Lujan Grisham’s office declined to comment.
Attorney General Hector Balderas, who also is named as a respondent in the complaint, wrote in an email that while he supports health measures “focused on release of non-violent offenders, I strongly believe victims and their families should be included in the legal process.”
New Mexico District Attorney Association president Dianna Luce said the group would discuss a response if ordered by the Supreme Court.
“Each District has already been reviewing cases at the County jail level on a case by case basis considering the merits of each case,” Luce wrote in an email. “The Governor’s release of inmates was a measured approach that did not compromise public safety.”
The Santa Fe County jail has released 12 inmates considered at high risk for contracting the virus, and the man who tested positive had been housed in the general population at the facility, Hart said.
The inmate at the Santa Fe County jail who tested positive was first tested March 28, but his results came back negative at the time, Hart said. He continued to feel ill, and met with the jail’s doctor April 7. He was tested a second time and placed in a single-occupancy quarantine cell.
The jail received his positive test results Sunday, but how the inmate became ill has yet to be determined.
Hart said the man was first tested because he was one of nine inmates who had recently interacted with one of three attorneys from the Law Offices of the Public Defender.
Days earlier, the office issued a news release stating one of its employees had tested positive for COVID-19.
Jennifer Burrill, the public defender who tested positive for the virus, said she had no contact with the man.
“I think it’s unfortunate they are trying to blame someone outside of the jail,” Burrill said Tuesday.