Hundreds of nonviolent New Mexico prison inmates, including people convicted of drug possession, remained behind bars last week, even as COVID-19 killed its first state prisoner and infected one in three inmates at the Otero County Prison Facility near the southern border.
Gov. Michelle Lujan Grisham, who has won national praise for how she's led New Mexico through the pandemic, is facing questions over why she hasn't moved more aggressively to ensure more of the state's 11 prisons don't become viral hotspots.
Since March, her administration has freed about 50 inmates — less than 1% of the state's prison population — through an April 6 order that requires her to commute sentences rather than using a law already on the books that would allow hundreds of prisoners to be released early.
The minimal prisoner releases pale next to what some states have done to ease crowding in — and the 30% reduction New Mexico counties have accomplished in the state's 27 jails.
Lujan Grisham's approach has given some pause, especially given the first-term Democrat's advocacy for legalizing recreational cannabis and her recent creation of a Council for Racial Justice in response to protests that spilled into New Mexico streets over the killing by police of George Floyd, a black man in Minneapolis.
About one quarter of those locked up in New Mexico's prisons are in for nonviolent drug offenses, including many, some long-time criminal justice watchers say, who were prosecuted for possessing marijuana — an offense that would be legal if New Mexico green-lighted recreational cannabis as Lujan Grisham has lobbied. Hispanic and black people, who are disproportionately incarcerated in New Mexico, as they are nationwide, also occupy more than half of the state prisons.
State Sen. Jerry Ortiz y Pino, D-Albuquerque, believed the pandemic represented a "golden opportunity" for the Lujan Grisham administration to try a different approach besides prison, but he's "very disappointed," he said.
"They basically haven't dented the prison population, and now there is an outbreak which anyone could have predicted," Ortiz y Pino said. "I have been concerned about why we have these kinds of low-level drug offenders locked up for a long time, and I am even more concerned now."
Mark Donatelli, a longtime criminal defense and civil rights lawyer based in Santa Fe, wants to know why the governor hasn't released prisoners using the Community Corrections Act.
In the 1980s, Donatelli lobbied for passage of the statute, which gives governors and their Corrections Department secretaries the power to release anyone within 12 months of the end of their prison sentence, provided they weren't locked up for a gun crime.
At the time, Donatelli and others helped convince the Legislature that the law would accomplish three goals seen as essential: ease overcrowding in the prisons as required by a federal consent decree, give inmates a structured path to reentry into society and save taxpayers millions in incarceration and new prison construction costs.
But the law never was used.
When the pandemic hit in early March, Donatelli saw an opportunity.
He dashed off an email to Matt Garcia, Lujan Grisham's general counsel and himself a former civil rights lawyer, reminding Garcia about the controlled release program.
Controlled release would free up space in the prisons and, hopefully, reduce the risk of an outbreak of COVID-19, Donatelli wrote. Freedom for large numbers of inmates under the law would also accomplish those original goals — cost savings and recidivism reduction.
"It was like, now's the time to jump on it for god's sake," he told New Mexico In Depth in a recent telephone interview. "And sometimes it takes a crisis like the coronavirus for people to reevaluate their options and see the logic, saying, oh, we're not just doing this because we're worried about people getting sick in prison and driving up the medical costs; it really would help the public to get these people out earlier and get them support so that they don't end up victimizing someone else or ending up back in prison. I really thought that would happen."
It didn't.
Garcia didn't respond, Donatelli said. Neither did anyone else in Lujan Grisham's administration.
Based on a fall 2019 report by the New Mexico Sentencing Commission, which NMID wrote about in April, nearly 300 people could be released over a 12-month period.
Donatelli contacted New Mexico In Depth after publication to say the real number, under a plain reading of the statute, is closer to 300 people a month.
"Even if you limit it to nonviolent offenders, which isn't required under the law, if you back it up to 90 days (before the end of someone's sentence), you could eliminate 500 people in prison," he said. "If you back it up 180 days, then you've got a thousand. You could close entire prisons, do you follow me? You're shutting down prisons."
NMID dove into prison population statistics provided by the Corrections Department to examine who is locked up in New Mexico.
Several figures stood out.
The Corrections Department did not separate drug possession from drug trafficking offenses in the breakdown it provided, but officials said in an email that 1,712 people were locked up as of mid-May on "drug crimes, nonviolent."
That's more than a quarter of the state's roughly 6,400 prison inmates.
Further, an annual prison population forecast compiled by the Sentencing Commission last year showed that 8% of new male admissions were for drug possession; 13% for women.
The statistics don't break down the prison population by substance, but Donatelli and other longtime criminal justice system watchers say many are behind bars for marijuana related charges.
Legalizing recreational cannabis, which Lujan Grisham supports, would make legal many of those now criminal actions.
"If there was ever a time for wishful thinking, I wish we had passed recreational cannabis because that was $100 million," she said at an April news conference. "Those are pre-COVID-19 estimates, but $100 million in the budget. And I am very sad about that."
Asked to square the governor's stance on legalization with the large number of prisoners still locked up for nonviolent drug crimes during the pandemic, spokesman Tripp Stelnicki responded with a question of his own.
"How does anyone square it?" he wrote in an email response. "We live in the world we live in until things can be changed for the better. The governor pushed very hard for legalization this year because it would be an economic game-changer and, at least equally if not more importantly, would be the right thing to do."
Corrections Department figures also show racial disparities among those in the state's prisons.
The data are incomplete and likely skewed — there is no state requirement that race and ethnicity data be kept in any corner of the criminal justice system — but by the department's accounting, 448 African Americans were incarcerated as of mid-May.
That's 7% of the prison population, while black people make up about 3% of the state's overall population.
People listed under the label "Hispanic white" made up 58% of the prison population, while Hispanics account for about 47% of people in New Mexico.
Lujan Grisham clearly has an eye on racial disparities in criminal justice. In a June 4 news release announcing her new Council for Racial Justice, she offered a stark assessment.
"Our country is in a dark place right now, but it has long been a dark place for so many voiceless and powerless and poor and systemically disadvantaged people and families," the governor said in the release.
Earlier in the day, the release said, Lujan Grisham ordered state flags to half-staff to commemorate George Floyd and "all other victims of systemic racism and police violence."
Ortiz y Pino said the pandemic should have forced a high-level, public discussion about New Mexico's incarceration rates for nonwhite and drug offenders — "things people would not have even gone to jail for if they were white, let alone prison."
"I am hesitant to say the governor doesn't want to appear soft, but that has been the case for every governor here," he said. "But at this point, I still don't sense any real momentum from the administration on releasing people."
Donatelli points out that nonwhite people are at particularly high risk if they contract COVID-19.
"You have a high percentage of at-risk populations" in prisons, he said, adding that nonwhite people have higher indicators for poor health than whites.
Between hepatitis C, diabetes, poor diets in prison, obesity and other issues, it's a recipe for illness and even death, Donatelli said.
"I just wish the governor would tour one of these facilities and see the men and women stacked up in close quarters and know that social distancing is impossible," he said. "All it takes is one staff member to come in who's positive, and it will be nuclear in these populations. I'm just holding my breath every day."
Donatelli's fears came true over the past two weeks.
On June 1, the state announced the first death of a prison inmate from COVID-19 — an inmate who had been housed at the Otero County Prison Facility. The next day, officials announced 116 new cases of the coronavirus in the state's portion of the privately run prison.
Today, the total number of prison inmates who have tested positive stands at 224, according to the governor's office, in addition to the 385 federal detainees in New Mexico who have tested positive.
In emailed responses to questions for this story, Stelnicki made it clear the governor is not considering controlled release to ease prison populations.
The Legislature, he said, has never properly funded the reentry programs necessary to make the program effective and that the governor's executive order provides for a "safe place" for released inmates to go after release.
The order requires only a "parole plan" for people within 30 days of the end of their sentence who meet certain criteria, such as not being convicted of violent crimes, some DWI offenses and other exclusions.
Stelnicki said commuting sentences under the executive order is the safest way to release people during the pandemic. That's because, in part, community corrections programs are not funded, he said.
Donatelli wondered why the administration, during two legislative sessions, has not asked the Legislature to fund programs under the law.
"Don't they get to submit a budget every year?" he said. "Why have they not asked for the money to fund this infrastructure? And in any case, Community Corrections does not require these programs anyway, if you read the statute. Plus, all of these people are going to get out eventually anyway, and they're all going to the same place: parole. It makes no sense to delay that during a pandemic."
This story first appeared at New Mexico In Depth, a SFR partner.