Jail’s inability to deal with cyberattack could violate the constitutional rights of inmates

People in MDC are confined to their cells and forced to use a time-limited phone to call into hearings

By: - January 7, 2022 7:11 pm

Undated photo of barbed wire at a detention center. Otero county commissioners OK’d a new contract with San Juan County to hold arrested minors if the facility in Doña Ana cannot take them. (Photo by Alex Potemkin / Getty Images)

The Metropolitan Detention Center in Bernalillo County has gone on lockdown after hackers on Wednesday knocked out the jail’s internet, most of its data systems and all of its security cameras, according to an emergency notice filed by the county’s attorneys.

What is believed to be a ransomware attack on the county government has left inmates at MDC locked in their cells unless they need medical care and paused all visits to MDC.

The attack also threatened inmates’ constitutional rights, according to one public defender representing people locked inside.

This story is the first part in a series. Find the second on Monday at sourcenm.com.

On Friday morning, the Second Judicial District Court held an in-custody arraignment hearing with eight people on the docket. Arraignment hearings are where the state formally presents a charge against someone suspected of a crime.

Before the cyberattack, the hearings would be conducted over Zoom, with defendants and attorneys able to speak privately in a breakout room or on a separate phone line, according to Graham Dumas, who works in the serious violent offense unit at the New Mexico Law Office of the Public Defender. He was representing two people on Friday morning.

Instead, the inmates had to call into the hearing by dialing out on the payphone at MDC. To use the payphone, inmates must access their Global Tel Link accounts, which only give them 15 minutes per call until it automatically ends. They typically get charged for calls, except to their lawyers.

“I don’t know if they were being charged today, I sincerely hope they were not,” Dumas said.

They did not have a chance to speak to their attorneys before the hearing, so they had not been advised about the charges against them, legal penalties or their constitutional rights, Dumas said.

No comment

As of Friday, a spokesperson had not responded to a request seeking an interview with the county attorney about the outage’s effects on inmates’ constitutional rights. We’ll update this story if we hear back.

The phone system also frequently interrupted the inmates while they were speaking to the judge, with warnings that they only had one minute remaining on their calls, he said.

The problems on Friday likely stem from a lack of internet access at MDC, which was already preventing jail officials from participating in video-conference court proceedings on Wednesday, according to a six-page emergency notice filed in federal court by attorneys representing the Bernalillo County’s commissioners.

Jail employees have limited email access and zero access to county wireless internet, they wrote, and the structure and remote location of the jail disrupt cellular data.

“I think the lesson here is that we need some greater resilience and redundancy built into our public IT systems,” Dumas wrote in a thread on Twitter during the hearing. “Blame, I think, lies with the county/jail for failing to have a contingency plan.”

It took two hours for Dumas to get through his clients’ arraignments, he wrote. Only one of them was actually arraigned, while the other called in, was cut off at 15 minutes, and couldn’t or didn’t call back.

Dumas believes that because of the cyberattack, lawyers also have not been able to gather any demographic data on the defendants or talk to them about why they, for example, might have missed a hearing because of a move, a loss of a job or a lack of housing.

“All of the things that we normally – even under COVID circumstances – have the opportunity to do, we were not able to do,” Dumas said.

Everybody also has the right to excuse any judge from presiding over their case, but they must do it within 10 business days after the arraignment hearing.

“We haven’t had the chance to do that yet,” Dumas said. “It’s not clear that we will have the chance to do that before the 10-business-day timeline expires. That’s all very troubling.”

It’s critical for defendants to exercise that right quickly after arraignment so they make an informed decision, he said.

‘Didn’t feel constitutional to me’

The county’s lawyers are arguing that the ransomware attack has made the jail unable to comply with the settlement agreement in McClendon v. Albuquerque, a decades-old class-action case about conditions there.

They suspect that the attack happened some time between midnight and 5:30 a.m. Wednesday. It has impacted all of the local government’s databases, servers and internet systems, including the ones at MDC, they wrote in the emergency notice.

Jail officials put MDC on lockdown because the attack took down all of the jail’s cameras, the attorneys wrote. That means inmates are confined to their cells. Jail officials have also paused all visits to the jail, including from family and their attorneys.

Someone who was supposed to be released from MDC on Wednesday did not get out there because of the outage, the attorneys wrote, but the release schedule was expected to resume on Thursday.

The county suspects several databases at MDC are corrupted, including the system jail officials use to write and store reports on incidents like fights, use of force and rape, and the sytem they use to store inmates’ commissary account data. Instead, jail officials are recording incidents on paper forms, they wrote.

Later on Friday, the state Administrative Office of the Courts announced new hearing procedures for criminal cases so that hearings can continue while the county tries to get its network back up and running.

The District Court made secured space available at its Children’s Court location in Albuquerque, where defendants are being transported from MDC, according to the office.

There, defendants will be able to communicate privately with their attorneys and appear at hearings using laptop stations in a courtroom.

Still, Dumas said Friday’s hearing presents some pretty major constitutional issues, and case law in New Mexico is clear that attorneys must be present at arraignment hearings.

“It’s not enough for us to just be standing there idly by,” he said. “Presence of counsel, and assistance of counsel implies the ability to speak with our clients and confer and answer questions. And all of that, for whatever reason, was denied this morning. It certainly didn’t feel constitutional to me.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.