Lujan Grisham administration says it will conduct wide-scale COVID-19 testing in NM prisons

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New Mexico Health Secretary Kathy Kunkel gives an update at the state capital on COVID-19 testing. Luis Sánchez Saturno/The New Mexican

New Mexico officials on Tuesday rolled out an ambitious plan to test for the new coronavirus in the state’s prisons.

At a virtual news conference led by Gov. Michelle Lujan Grisham, state Health Department Secretary Kathy Kunkel said all prison guards and staff — more than 1,800 people — would be tested by May 13. Officials plan to test 25% of the state’s 6,500-plus inmates by then as well, Kunkel said.

Additionally, all newly arriving inmates will be tested and quarantined for 14 days, she said.

The announcement marks a sharp turn for Lujan Grisham’s administration.

On Friday, New Mexico In Depth published an analysis of the state’s striking lack of testing within the state’s 11 prisons. The story included remarks Kunkel and Lujan Grisham offered as responses to this reporter’s questions at a virtual news conference the day before.

Kunkel and Lujan Grisham acknowledged last week that there had not been wide-scale testing inside the prisons here — despite massive COVID-19 outbreaks in prisons around the nation. They said plans were in the works to begin so-called sentinel or surveillance testing — checking even asymptomatic people broadly in vulnerable populations — behind the walls, but did not offer specifics at that time.

As of last Thursday, just eight inmates and 33 staff members had been tested. No inmates were positive for COVID-19, the respiratory illness caused by the coronavirus, though one contract prison nurse had contracted the virus.

Five days later, on Tuesday, a spokesman for the Corrections Department told NMID 63 staff had been tested; four results came back positive. Thirteen inmates have now been tested, with 11 turning up negative results and two others pending.

The numbers of people tested are set to skyrocket in the next week and with it the potential for more infections, according to Kunkel’s announced plan.

Tuesday’s announcement comes a day after a court victory for the Lujan Grisham administration.

A coalition that included the New Mexico Law Offices of the Public Defender, the state’s American Civil Liberties Union affiliate and the New Mexico Criminal Defense Lawyers Association petitioned the state Supreme Court to force the governor to release large numbers of nonviolent inmates from the prisons, as other states have done, to reduce the chance of spreading the virus.

The state’s lack of testing and unwillingness to release people en masse amounted to a violation of the prohibition on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution, the groups argued.

Matthew Garcia, the governor’s general counsel and a former civil rights lawyer, said  that granting the petition would violate the state constitution’s separation of powers protections. Further, Garcia pointed out that 33 inmates had been released under an executive order Lujan Grisham signed last month directing the Corrections Department to identify inmates who could be let out of prison a month or less before the end of their sentences.

“If we release hundreds of inmates tomorrow, where are these people going to go?” Garcia added. “The halfway houses are all full.”

After a little more than half an hour of deliberation, the justices ruled unanimously against the petition, saying the petitioners had not met the “deliberate indifference” standard to prove the constitutional violation.

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