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Justices deny petition to release inmates

New Mexico Supreme Court Justice Shannon Bacon questions attorney Kimberly Chavez Cook, appearing by video and representing the Law Offices of the Public Defender, about her arguments that the court should release prisoners. (Eddie Moore/Albuquerque Journal)

SANTA FE – The state Supreme Court on Monday rejected a petition to release large numbers of inmates from state prisons amid the coronavirus pandemic.

The state Law Offices of the Public Defender, the American Civil Liberties Union of New Mexico and the New Mexico Criminal Defense Lawyers Association filed a petition last month asking the Supreme Court to order Gov. Michelle Lujan Grisham’s administration to release inmates who meet certain criteria to mitigate the spread of COVID-19 in the state’s prisons.

The petition asserted that not releasing more prisoners would be a violation of their constitutional right to be free from cruel and unusual punishment.

The high court heard arguments Monday and came to a decision after about 40 minutes of deliberation. Chief Justice Judith Nakamura said the Governor’s Office is not purposely putting inmates’ safety at risk, which is a requirement to show cruel and unusual punishment.

“The respondents are not being deliberately indifferent to the health and safety of the inmates, and for that reason, the court is denying the relief that is sought,” Nakamura said.

The ACLU issued a statement expressing disappointment in the ruling.

“This is a devastating decision for incarcerated people, their families and our communities at large,” said Lalita Moskowitz, an ACLU of New Mexico staff attorney. “Through this petition, we sought to prevent the suffering and death that we are already witnessing – and that public health experts warned would happen – at our nation’s detention facilities across the country.”

The petitioners had asked for the release of inmates serving sentences for probation and parole revocation or for nonviolent crimes, as well as inmates who are pregnant, over 60 or at risk of serious illness due to COVID-19. Plaintiffs didn’t provide an estimate of how many inmates fit those criteria. They had also asked the state to stop making arrests for technical parole violations. The petition requested that a special master be appointed to oversee the mass release.

Kimberly Chavez Cook, arguing on behalf of the public defenders’ office Monday, said that since the Corrections Department wasn’t implementing mass COVID-19 testing for inmates – only eight have been tested – there’s no way of telling who is sick. Even if the prisons tested every inmate, Chavez Cook said, staff members going in and out of the facilities create a risk for them.

“The crux of the release request is based on the fact that we don’t have those numbers (of infected); we need to make sure the risk is being alleviated,” Chavez Cook said.

Olga Serafimova, a lawyer representing the Corrections Department, said during the hearing that four staff members have tested positive for COVID-19 but that no inmates have. She also acknowledged that prisons aren’t doing widespread testing, but she said the department has taken measures, such as changing dining hall hours, to protect prisoners.

Under an emergency health order, the state has already started releasing inmates who are within 30 days of release as long as they are not serving time for felony drunk driving, domestic abuse or assault on a peace officer and are not sex offenders. Matthew Garcia, chief general counsel to Lujan Grisham, said during Monday’s hearing that 33 inmates have been released.

Garcia said the petitioners were asking the court to force the governor to use her discretionary clemency powers to release people from prison just because they don’t like the measures the state has taken to protect prisoners.

“The petitioners are asking for something pretty remarkable here,” Garcia said. “They’re asking this court to command the governor to facilitate and expedite the mass release of inmates, or in the alternative, to command her to a mediation to determine how to best accomplish petitioners’ objectives.”

Alamogordo District Attorney John Sugg also spoke at the hearing on behalf of the New Mexico District Attorneys Association. He said victims and their families aren’t being considered in the petition.

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