NM Supreme Court denies pandemic prison releases

New Mexico’s highest court on Thursday tossed out a lawsuit filed in 2020 seeking the release of incarcerated people to protect them from getting infected with coronavirus.

Jennifer Burrill, the head of one of the organizations who brought the suit, said she is frustrated by the decision because it throws out the case on procedural grounds and doesn’t address the issue of COVID spread in prisons.

Eight people incarcerated in New Mexico prisons, along with the New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union, alleged that state officials allowed COVID-19 to run “rampant in New Mexico’s prisons” by refusing to enforce their own mandates for social distancing, mask-wearing, heightened hygiene practices, and safe quarantine and treatment.

But a state District Court judge dismissed the lawsuit, and on Thursday the Supreme Court upheld the decision.

In a unanimous ruling, the court said the incarcerated people who sued the state didn’t first exhaust all of the New Mexico Corrections Department’s “internal grievance procedures” before they filed the lawsuit.

“I think this is procedural,” she said. “They’re just basically giving a roadmap for how to do it next time.”

It’s unfortunate that the underlying issue of COVID spread in prisons will not be addressed, Burrill said. 

Around this time last year, analysts with the Legislative Finance Committee wrote that New Mexico saw much higher rates of COVID infection and death in its prisons than most other states. People behind the walls were more than twice as likely to die from COVID than the national average, they wrote in an evaluation of the state’s Corrections Department. “COVID-19 was also 40 percent more likely to be fatal in New Mexico’s prisons compared with the U.S. prison system as a whole,” according to the report.

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In the state Supreme Court’s ruling this week, justices pointed to state law requiring incarcerated people to file emergency grievances to their prison’s warden. If the warden won’t or can’t solve the problem, the policy requires incarcerated people to appeal to the statewide grievance/disciplinary appeals manager.

The law does not allow courts to make exceptions to this requirement before suing, the Supreme Court wrote.

There are eight named plaintiffs in the lawsuit who represent everyone incarcerated in New Mexico prisons as a class action group. The high court also said that they failed to get that class certified.

“Because of the COVID numbers in the prisons and the jails even today, we know that it’s spreading,” Burrill said. “So it’s very likely that these are valid claims.” But the merits of the case won’t even be heard because of these rules, she added.

Since the beginning of the pandemic and to this day, attorneys have routinely been unable to speak with their clients because they are in quarantine, “because there’s still COVID rampant within the jails and prisons,” she said.

There have been at least 29 incarcerated people who have died of COVID in the New Mexico prison system, according to the COVID Prison Project.

Another 4,104 incarcerated people tested positive for the virus, and many are likely to go on to develop Long COVID, which can permanently damage organs, even when the initial infection doesn’t result in symptoms or a trip to the hospital.

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Burrill pointed out that Gov. Michelle Lujan Grisham took steps to protect people by requiring masking and social distancing at times during the pandemic, but it’s unfortunate that none of those things are happening in the jails and prisons in New Mexico.

She’s had clients who were taken from the prisons to courthouses without wearing a mask, she said, and she witnessed judges get upset when they walked through the courtroom doors because of that.

The Supreme Court should take steps to make sure that people in custody are safe, she said. The families of incarcerated people who have died of COVID in New Mexico prisons may have a claim under the Eighth Amendment of the U.S. Constitution, she said, which prohibits cruel and unusual punishment.

The Supreme Court normally has a rulemaking process that goes through committees and can take a year or more, Burrill said.

During the pandemic, state Supreme Court justices were granted authority to bypass a lengthy rulemaking process, and that included orders on mask mandates and suspension of trials — emergency measures that would not have been effective if they’d had to go through the entire process, she said.

This year, the court used the emergency rulemaking process to prohibit criminal defendants from excusing a judge they believe cannot rule impartially, she said. The very next month, the court used the same emergency rulemaking process to lift the statewide eviction moratorium, she said.

“So it’s a little frustrating that they have taken the opportunity to make systemic rule changes under this COVID authority to make the process faster to convict people or to get through the process and acquit them,” Burrill said. “But they have done — obviously this lawsuit makes very clear — nothing to protect people who are incarcerated.”