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Lawsuit seeks to protect inmates from COVID-19

Copyright © 2020 Albuquerque Journal

Defense attorneys and legal advocates are once again going to court in an attempt to reduce the state’s prison population to protect inmates from COVID-19.

But unlike a similar lawsuit that was rejected by the state Supreme Court in May, the new lawsuit comes after outbreaks in two state prisons.

On Monday, the American Civil Liberties Union of New Mexico, the New Mexico Criminal Defense Lawyers Association, international law firm Faegre Drinker and local lawyer Ryan Villa filed a lawsuit in 1st Judicial District Court in Santa Fe against Gov. Michelle Lujan Grisham, Department of Corrections Secretary Alisha Tafoya Lucero, and Probation and Parole Director Melanie Martinez.

The lawsuit seeks to immediately reduce the state’s prison population and to require the state to take measures to protect inmates and prevent the spread of COVID-19. It also wants a judge to deem it a class action so that all of New Mexico’s 6,222 inmates can be represented.

Also listed as plaintiffs are several inmates who have medical vulnerabilities to coronavirus or have shown symptoms of the disease but have not been tested.

In April, the state Law Offices of the Public Defender and the ACLU filed a similar lawsuit against the state, arguing that not greatly reducing prison populations would violate inmates’ constitutional right to be free of cruel and unusual punishment. The Supreme Court rejected the petition after finding that state officials weren’t being deliberately indifferent to the health and safety of inmates.

Under an emergency health order, Lujan Grisham instituted a policy to release inmates who are within 30 days of release, as long as they are not serving time for felony drunken driving, domestic abuse or assault on a peace officer and are not sex offenders. The state has released 143 inmates under the executive order, according to Corrections Department spokesman Eric Harrison.

But since the Supreme Court rejected the petition, 472 state inmates and 280 federal inmates have been infected at the Otero County Prison Facility, according to Department of Health data. The lawsuit says just over 86% of the prison’s population has been infected with COVID-19, and three people at the facility have died.

Twenty-six inmates at the Central New Mexico Correctional Facility in Los Lunas have also tested positive, according to state data.

“Unfortunately, our fear of what would happen in New Mexico prisons was confirmed,” ACLU staff attorney Lalita Moskowitz said at a Wednesday news conference.

The lawsuit alleges that social distancing is not being enforced in prisons, inmates who are showing symptoms of COVID-19 aren’t being tested and hygiene products are scarce.

“Across institutions, plaintiffs receive insufficient hand-washing supplies,” the lawsuit states. “Often, people who are incarcerated must buy hand soap from the commissary out of their own bank accounts.”

Harrison said the Corrections Department is conducting satellite testing of new inmates and inmates who are considered medically vulnerable. He also said hygiene products are provided for free.

“Inmates’ weekly hygienic supply has been doubled at every facility for every inmate. This pack includes a roll of toilet paper, toothpaste, shampoo, deodorant and a bar of soap. (Both weekly packs come at no cost to every inmate),” Harrison said in an email.