Report identifying nonviolent offenders eligible for release sits on shelf during pandemic

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Credit: Katherine Lewin/Santa Fe Reporter

Inside the New Mexico State Penitentiary.

Gov. Michelle Lujan Grisham last week took a step toward releasing prisoners to blunt the threat of an outbreak of the new coronavirus in New Mexico’s 11 prisons.

The first-term, Democratic governor signed a three-page executive order directing her Corrections Department secretary to release nonviolent inmates who have 30 days or less on their sentences and meet other criteria. 

But more than a week later, just 14 of the state’s 6,600 inmates had been freed, according to the department, and it is not clear how many others have been identified for release. 

New Mexico In Depth, meanwhile, has unearthed an annual survey identifying hundreds of nonviolent inmates — many serving time for drug possession — who could be released during the course of a year.

In a six-page annual report from the New Mexico Sentencing Commission, the state’s non-partisan, criminal justice data clearinghouse and policy advising hub, authors wrote that 294 people behind bars in the state’s prisons on June 30, 2019, could be released between Oct. 1, 2019 and Sept. 30 of this year.

The mechanism: a gubernatorial power called “controlled release” under the state’s Adult Community Corrections Act. The statute gives the state authority to release anyone who has not been convicted of a felony gun crime and is within 12 months of eligibility for parole into “community-based settings.”

Three civil rights advocates who spoke to NMID on condition of anonymity for fear of derailing future negotiations with the administration say they’ve brought the Sentencing Commission’s analysis, which predates the global pandemic, to Lujan Grisham’s attention multiple times in the past several weeks as they pushed to have inmates released.

Pressure is mounting on Lujan Grisham to address the potential crisis in New Mexico’s prisons, as advocates push for more aggressive inmate release protocols.

On Tuesday, the state Law Offices of the Public Defender, the American Civil Liberties Union of New Mexico and the New Mexico Criminal Defense Lawyers Association petitioned the Supreme Court to force the release of about 30% of prisoners, saying the governor had taken no “meaningful” action to reduce the prison population.

Nationwide focus on jails and prisons has sharpened during the past two weeks, as correctional facilities in Louisiana, New York, and Illinois have become epicenters for coronavirus outbreaks. Hundreds of inmates and, in some cases, guards have been infected. Some have died. An outbreak at the Cook County Jail in Chicago now includes more than 500 positive cases among inmates and staff.

In some states, including Kentucky, elected leaders have ordered the release of hundreds of inmates amid growing fears of an outbreak. California Gov. Gavin Newsom plans to release as many as 3,500 people from his state’s lock-ups.

In New Mexico, where a surge of COVID-19 cases is expected in coming weeks, officials appear to be taking a much more stringent approach to releasing prisoners. There are no reported cases in New Mexico prisons, to date, but there are now confirmed positive cases in Santa Fe and Bernalillo County jails. 

In her April 6 executive order, Lujan Grisham directed Corrections Department Secretary Alisha Tafoya Lucero to compile a list of inmates who meet  certain criteria and to then release them on parole. The criteria include: inmates with 30 days or less on their prison sentences; and who are not convicted of sex offenses, domestic violence, battery on a police officer, felony DWI or gun crimes.

A corrections spokesman told New Mexico In Depth that the department would be consulting with a “panel of experts” to develop a list for potential releases each day, but did not provide a copy of any lists.

For 13 years, the Sentencing Commission has produced reports on the number of incarcerated people eligible for the controlled release program; the most recent is dated October 2019 — more than four months before New Mexico saw its first confirmed case of COVID-19.

The Sentencing Commission has used an identical methodology for each year’s report, and since at least 2012, the number of inmates identified for controlled release in the coming year has hovered between 300 and 400.

Eric Harrison, a spokesman for the Corrections Department, told NMID no one had been released from a New Mexico prison under the method identified by the Sentencing Commission since the pandemic hit the state in early March.

The commission’s criteria for who could be paroled under controlled release tracks relatively closely with the criteria  Lujan Grisham laid out in her executive order for releasing prisoners. In some ways, the commission’s analysis is more stringent, because it excludes more offenses than what is laid out in the governor’s executive order. On the other hand, the commission includes people eligible for parole within 12 months; the executive order sets the cut-off at 30 days.

Among those the commission identified, 128 of the 294 who could be released — roughly 45% — were in prison for drug possession. Burglary, larceny/theft and fraud comprised the next three largest groups of inmates. The commission examined only nonviolent offenders and intentionally excluded sex offenders, all violent offenders, drug traffickers, DWI offenders and even people in prison for parole violations.

Lujan Grisham has denied multiple requests from New Mexico In Depth for an interview about the potential for a COVID-19 outbreak in the state’s prisons.

Tripp Stelnicki, a spokesman for the governor, said he had not seen the Sentencing Commission’s report and could not confirm whether Lujan Grisham had discussed it with civil rights advocates. 

“I’m sure she has spoken to them,” he said. “She’s working and often on the phone from 4 a.m. till 11 at night every day. I think we’ve been one of the more proactive states on every front. We’re working as hard as we can every single day. In a pandemic, there are 10,000 problems every day, and this (situation with the prisons and the possibility of early release) is one.”

States, counties and cities elsewhere that began releasing inmates weeks ago have cited the difficulty in enforcing social distancing in jails and prisons, particularly when detention centers become overcrowded. 

Civil rights and inmate advocates have said releasing so few prisoners in New Mexico complicates social distancing for inmates and staff.

According to the Corrections Department, none of the prisons in New Mexico was above capacity as of last Thursday. Overall, the department was housing 6,660 inmates on that day, and total capacity was 7,938.

The prisons nearest to capacity, Corrections spokesman Eric Harrison said, were the Lea County Correctional Facility (1,245 inmates and 1,293 capacity); the Guadalupe County Correctional Facility (579 inmates and  590 capacity); and the Otero County Prison Facility (591 inmates and a 647 capacity.)

Harrison would not say from which prisons inmates had been or may be released.

Advocates also have raised concerns about what they see as a lack of testing for COVID-19 in the prisons. 

As of Wednesday evening, according to Harrison, just three inmates and five prison guards had been tested for the virus. All eight tests came back negative.

Lujan Grisham told MSNBC’s Brian Williams on March 23 that she wanted every New Mexican tested for the new coronavirus, but added that federal delays have thwarted those efforts. Still, New Mexico has remained near the head of the class among state per capita testing rates.

Asked if the governor had considered the state’s legal obligation to ensure quality health care for the thousands of people locked in New Mexico’s prisons given her desire to test everyone, Stelnicki said,“We don’t have that kind of testing capacity right now. I understand your question, and we do have that obligation, but even under that, it’s not what the CDC is recommending.”

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