Lawsuit alleges restrictive housing at Santa Fe prison is unconstitutional

Each cell is 8 feet by 10 feet. And inmates spend 23 hours a day alone in that space. On weekdays, the men get one hour in a similar-sized outdoor cage.

They stay in such conditions for at least a year, but many have stayed longer.

The American Civil Liberties Union of New Mexico filed a lawsuit Thursday against the state Corrections Department and the Santa Fe prison for its Predatory Behavior Management Program (PBMP), which keeps certain inmates in restrictive housing for months and even years.

The ACLU, along with a local law firm, is representing three men currently in the PBMP at the Penitentiary of New Mexico: GuJuan Fusilier, Mah-konce Hudson and O’Shay Toney. The suit asks that the New Mexico Corrections Department (NMCD) make a plan to eliminate the use of what the ACLU calls unconstitutional solitary confinement by PBMP and appoint a special master to oversee compliance with court orders to eliminate the practice.

“People in this unit are suffering in total isolation ... in an individual cell that’s about the size of a parking space,” Lalita Moskowitz, ACLU-NM managing attorney, told the Journal. “And those people are placed there for a variety of reasons, some we might consider more serious, some very arbitrary.”

NMCD officials say 147 people are currently in the program, which, according to NMCD policy, houses those inmates “requiring enhanced supervision” before helping them reintegrate into the general population. The policy states inmates are held in the PBMP unit for a minimum of 360 days.

Millions have been paid out in previous lawsuits related to people placed in solitary confinement for an extended time, including a $15 million settlement in Doña Ana County and $1.8 million settlement in Sandoval County — the latter case revolved around a mentally ill mother who killed herself after being held in solitary confinement at the county jail.

In 2019, state lawmakers passed House Bill 364, the Corrections Restricted Housing Act, which banned the practice for juveniles and those with serious mental disabilities. The United Nations, in a 2020 report, said prisoner confinement of more than 22 hours a day, for 15 days or longer, “is regarded as a form of torture.”

NMCD spokesperson Brittany Roembach said the department does not comment on pending litigation. In regard to the conditions of PBMP, she said, “To be clear, solitary confinement does not exist in the NMCD system.”

“We utilize restrictive housing, like the PBMP, to fix behaviors,” Roembach said, calling it “a specialized year-long step down program, with the goal of eventually allowing the inmate to re-enter general population facilities.”

“Additionally and generally speaking, it is important to note that without a structured intervention like PBMP, individuals who engage in threatening and violent acts can not only disrupt facility operations, but can also jeopardize safety and undermine the well-being of inmates and staff,” she said.

In its suit, ACLU-NM says inmates are routinely placed in PBMP for “minor transgressions” without written notice or a hearing. NMCD did not give reasons as to why the plaintiffs were housed at PBMP.

Moskowitz said, for those placed in the PBMP and deemed violent by NMCD, it’s hard to get out from under the classification. She added, “once the department has made that decision, that label sticks with people sort of regardless of what they do.”

The suit says individuals with “serious mental illness” have been placed in the program, including the three plaintiffs. Toney, 29, Fusilier, 34, and Hudson, 32, were placed in PBMP between February and July 2024 and Hudson is expected to be released in July and Toney and Fusilier sometime in 2026.

No charges have been recently filed or substantiated against the three men related to crimes committed behind bars and, according to the lawsuit, Fusilier appealed his placement in PBMP but received no response while Toney and Hudson both did not appeal because any attempt “would be futile.”

The lawsuit alleges that, in PBMP, Fusilier lost 40 pounds in three months “due to inadequate nutrition” and Hudson has been diagnosed with post-traumatic stress disorder “as a direct result of his prolonged isolation.” Toney, who previously spent years in PBMP, needs critical medical care due to his retina detaching after an NMCD officer sprayed him with pepper spray.

“They experience social isolation, reduced visual and sensory stimulation, abhorrent living conditions, and restricted opportunities for mental health treatment, exercise, and programming,” according to the lawsuit.

Toney and Fusilier are more than halfway through 15- and 12-year sentences, respectively, for murder and Hudson is halfway through a four-year sentence for kidnapping, according to court records. Barring any unforeseen circumstances, all three men will be released from prison someday.

The lawsuit alleges PBMP is setting them up for failure then, and now. The suit cites studies finding that those who spend time in solitary confinement are more likely to die by suicide in their first year of release and can increase their chance of reoffending.

“There really is no legitimate justification for holding people in these conditions,” Nicholas Goldberg, a partner at Keker, Van Nest & Peters, told the Journal. “It’s not only unconstitutional, which is the fundamental legal argument that we’re making, but it’s just at a human level — it’s inhumane, and it makes things worse, not better.”