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Inmates awaiting ‘expedited’ pandemic hearing

Copyright © 2021 Albuquerque Journal

SANTA FE – Despite approving an expedited briefing schedule, the New Mexico Supreme Court has yet to schedule oral arguments in a case alleging inmates faced cruel and unusual confinement conditions during the pandemic.

That has attorneys for the inmate plaintiffs concerned.

The time-sensitive case – spearheaded by the American Civil Liberties Union of New Mexico, the New Mexico Criminal Defense Lawyers Association and others on behalf of incarcerated people statewide – was expedited to the Supreme Court by the New Mexico Court of Appeals in November, just as the pandemic was peaking in New Mexico.

Lalita Moskowitz, staff attorney with the ACLU, said plaintiff attorneys were expecting the arguments to be scheduled shortly after the last briefing in the case in February.

“We’re just sort of in this limbo and waiting period,” Moskowitz said. “We were granted this expedited briefing schedule, but then we sort of screeched to a halt, and are just waiting now for the court to take the next action.”

By comparison, Moskowitz cited a pretrial detention order appeal that is also following an expedited briefing schedule. In that case, oral arguments were scheduled about two weeks after the briefings were filed, she said.

“It was sort of our understanding that we would be following much closer to that kind of schedule, given the urgent nature of the situation,” she said.

Barry Massey, communications officer for the Administrative Office of the Courts, declined to comment on the court’s briefing schedule.

The original case was filed against the state Corrections Department over whether inmate conditions in prisons during the COVID-19 pandemic qualify as cruel and unusual punishment. But 1st Judicial District Judge Matthew Wilson dismissed the case Oct. 20, saying inmates have to exhaust administrative remedies before going to court.

Now, the plaintiff’s attorneys are appealing whether inmates have to exhaust these remedies before filing a lawsuit. If the high court sides with the plaintiffs, the case will go back to district court to play out.

Moskowitz said the issue of exhausting administrative remedies is significant because it has the potential to come up again in other situations.

Plaintiff attorneys filed a motion March 24, asking for expediency again. The motion cited a COVID-19 outbreak in the Lea County Correctional Facility.

At the time, the facility reported 191 new cases, with at least three deaths from COVID-19 at the facility, according to the motion.

To date, there have been 2,980 COVID cases statewide in correctional facilities, according to the state Department of Health. The total number of deaths is unknown.

“There’s maybe this idea in people’s minds that the pandemic is kind of over, and that just isn’t the case,” Moskowitz said. “The vast majority of incarcerated people are still not vaccinated … and people are still sort of living with this very real serious risk of more major outbreaks in the prisons.”