ACLU promises a legal fight against pretrial detention bill if it’s passed

Proposal would have ‘potentially catastrophic’ impacts on people already inside New Mexico jails

By: - January 25, 2022 6:51 am

A sign pleading for help hangs in a window at the Cook County jail complex on April 9, 2020 in Chicago, Illinois. Four hundred cases of COVID-19 were diagnosed among the inmates and employees. In the largest jail in New Mexico, medical and psychiatric staff are quitting in recent moths after the private company Corizon took over as the provider, saying conditions are bad there and growing worse. (Photo by Scott Olson / Getty Images)

If the pretrial detention bill Gov. Michelle Lujan Grisham and other officials support is approved by the Legislature, the state will be forced to defend itself in court, a lawyer warned lawmakers on Monday. 

“If passed, timely and resource-intensive litigation over the constitutionality of HB 5 is guaranteed,” said Denali Wilson, a staff attorney with the American Civil Liberties Union of New Mexico, during a hearing on the bill in the House Government, Elections and Indian Affairs Committee.

The Legislature simply cannot consider measures that would directly conflict with the New Mexico Constitution, she said. A constitutional amendment passed by voters in 2016 scrapped the cash bail bonds system in New Mexico, leaving it up to judges to decide whether to jail someone before their day in court or release them — no bail money necessary. In the language of the amendment, it’s on prosecutors to show someone may be dangerous and should be held, Wilson said.

What’s coming through the Legislature during this 30-day session would modify the state statutes — not the N.M. Constitution — forcing defendants to instead prove they are not dangerous. So the bill would create a statute that’s in conflict with the state constitution, Wilson argued.

“If passed, our already-burdened state courts would be engaged immediately in these constitutional questions,” she said, “and I cannot imagine a scenario in which such a fundamental conflict with our state constitution would be upheld.”

The ACLU also opposes the bill because it would have a disastrous impact on communities already reeling from decades of tough-on-crime policies, said Barron Jones, senior policy strategist for the ACLU of New Mexico.

Keeping people locked up for days, let alone months, waiting for trial can have a negative impact on someone’s ability to provide for themselves and their families, he said, including loss of a job, education, housing — and even their children.

LGBTQ concerns

There is no jail in America where queer and trans people are safe, Marshall Martinez, executive director of Equality New Mexico, told the House committee. The bill doesn’t solve crime in New Mexico, he said, nor does it mean more New Mexicans will be safer.

“As LGBTQ people, our safety is threatened by a broken system and so-called ‘fixes’ like this, not by the presumption of innocence until proven guilty,” he said.

Committee Chair Rep. Georgene Louis (D-Albuquerque) ended the meeting Monday morning without taking any action on House Bill 5.

She said the discussion on the bill would continue at the committee’s next meeting, expected to be on Wednesday. The meeting needed to end because of a House Rules Committee meeting that was starting, she said.

The lawmakers’ own analysts warned them the bill “may lead to prolonged detention of defendants who are never convicted of the crimes they are accused of” in a memo last week.

Analysts: Bail reform is not driving violent crime in Albuquerque

Later on Monday afternoon, Bernalillo County District Attorney Raul Torrez disputed the information during a Senate Judiciary hearing.

“One of my fundamental objections to the analysis that’s been put forward by the LFC is there is absolutely no attempt — none whatsoever — to go into any detail about how those fundamental changes to our criminal justice system have hampered and hamstrung the work of police and prosecutors,” he said.

He was referring to a 2014 order recommended by the Bernalillo County Commission and adopted by the state Supreme Court that requires his office to meet strict deadlines and procedural safeguards designed to avoid delays in criminal cases. The commissioners adopted the order, in part, because excessive pretrial detention was overcrowding the Metropolitan Detention Center (MDC).

Torrez did not present any data that refuted the legislative staff’s findings.

His office also fired off a news release Monday morning to push back against the analysis.

No one contacted the Legislative Finance Committee with any issues or concerns about the accuracy of the data in the memo, said Jon Courtney, deputy director of the LFC.

“We believe we got it right,” he said.

A spokesperson for the DA’s office did not respond to a question from Source New Mexico about whether they made any attempt to contact the LFC before sending the news release.

What are the stakes?

State lawmakers are pushing to jail more people before their cases are heard, while those already inside the state’s largest jail are struggling through poor medical and psychiatric care, constitutional violations, lockdowns, and inhumane conditions, according to former employees, attorneys, court-appointed experts and court documents.

Across all jails and prisons in New Mexico, there is not enough security staff, making it impossible to supervise people inside, said Marc Lowry, a federal defender and litigant in McClendon v. Albuquerque, the decades-old class-action lawsuit against MDC.

It’s not just security officers. It’s frankly the lack of medical care.

– Marc Lowry, attorney

“It just doesn’t exist in local detention facilities anymore, and there’s a widespread lack of substance abuse (treatment) availability,” Lowry told the Senate Judiciary Committee on Monday.

TURMOIL AT THE STATE’S BIGGEST JAIL: Staff members flee as crises unfold

More than 15 jails in the state have a greater than 20% staff vacancy rate, with seven over 30% and some even over 40%, said Grace Philips, general counsel for the New Mexico Association of Counties.

Over the last 10 years, more than $74 million has been paid out as a result of lawsuits about conditions in 24 jails covered by the New Mexico County Insurance Authority, she said.

The state’s public defenders oppose the bill because it threatens inmate safety, said Kim Chavez Cook, an attorney with the Law Offices of the Public Defender. She said the bill would have a dramatic and potentially catastrophic effect on county jails.

Chavez Cook said lawmakers cannot overlook the endangerment created by incarcerating hundreds more people — that jail stays involved with pretrial detention are often lengthy, and that N.M. jails are in crisis with staffing shortages, pandemic conditions and lack of medical care.

County jails continue to be a hotbed for COVID-19 outbreaks, Jones said. Packing more people in jail before their hearings will only exacerbate existing staffing shortages, extremely hostile living conditions, public health concerns and deadly safety issues, he said.

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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.