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ALBUQUERQUE, NM – Today, the American Civil Liberties Union (ACLU) of New Mexico sent letters to county jails throughout the State of New Mexico, discouraging them from routinely strip searching arrestees without reasonable suspicion that they possess contraband. Despite  a recent U.S. Supreme Court ruling that broadened strip search authority under the federal Constitution, the ACLU asserts that the New Mexico State Constitution would altogether prohibit routine, suspicionless strip searches.

“Our State Constitution holds our law enforcement officials to higher standards,” said ACLU of New Mexico Executive Director Peter Simonson. “In New Mexico, we know that subjecting people to routine strip searches without reasonable suspicion is wrong. It is humiliating, degrading and dehumanizing.”

New Mexico courts have consistently interpreted Article II, Section 10 of the New Mexico State Constitution (our state constitutional equivalent to the Fourth Amendment) to guarantee a ‘broad right’ to be ‘free from unwarranted governmental intrusion.’ Legal analysis of the state constitution has led ACLU of New Mexico attorneys to conclude that New Mexico courts would likely find suspicionless strip searches of people arrested for minor offenses unreasonable.

The case that prompted the Supreme Court ruling involved a man named Albert Florence, who was arrested in 2005 due to a police computer error that showed he failed to pay a fine he had already taken care of. Though innocent, Florence was held for six days and strip searched twice, made to squat naked and cough as jail officials examined his body. Throughout the country, an estimated 700,000 individuals are sent to jail for relatively minor infractions every year. Often people are found to be innocent of charges or the court drops the charges against them.

“This is something that could happen to anybody,” said ACLU of New Mexico Managing Attorney Laura Schauer Ives. “For something as small as forgetting to pay a traffic fine, you could find yourself standing naked before a government employee. We want to make sure that jail officials understand that this is unacceptable in New Mexico.”

In its letter, the ACLU of New Mexico declares its commitment to ensuring that the Supreme Court’s recent ruling does not give rise to gratuitous use of strip searches and violations under the New Mexico constitution in New Mexico’s jails.

Read the letter here: Letter to NM Jails

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John C. Bienvenu

Over the vigorous dissent of four justices, the U.S. Supreme Court ruled last week that the U.S. Constitution does not prohibit jails from routinely strip searching inmates, even if people are booked into facilities for minor offenses and officials have no reason to suspect they are carrying contraband. In other words, even people arrested for such nominal offenses as driving without a license or failing to use a turn signal could be forced to strip naked and let jail guards inspect their most intimate parts with no recourse under our Fourth Amendment protection against unwarranted searches. This ruling strikes another blow to Americans’ vanishing guarantees of privacy.

Far-reaching as this ruling may appear, jail officials in New Mexico should not rush to assume that the Court’s ruling grants them carte blanche to begin blanket strip searches of all detainees. The New Mexico Constitution also prohibits unwarranted searches, and our state courts have shown greater enthusiasm for safeguarding that right than what the Supreme Court evidenced in its recent ruling. For example, New Mexico courts have consistently rejected the federal precedent that motorists lower their expectation of privacy, and are more subject to search, when they enter an automobile.

The jail that implements blanket strip searches runs the risk of inviting state constitutional claims that might be entirely undiluted by the high court’s ruling.

What’s more, even in federal court, the Supreme Court’s ruling might not protect a strip search policy that does not result in a higher incidence of detection of contraband or otherwise increase jail security. As our federal court of appeals observed nearly twenty years ago, “There can be no doubt that a strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). Other courts have aptly described strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” (Id.)

The ACLU would not hesitate to represent someone who was forced to strip before a jail guard when they were accused of only a minor offense and gave no reason to suspect that they were connected to drugs, weapons, or violence. Among those who are booked into jails every day are people who have committed no crimes whatsoever, but who are the victims of bureaucratic snafus. Indeed, the plaintiff in Florence v. Board of Chosen Freeholders, the recent U.S. Supreme Court case, is someone who was erroneously arrested in 2005 for failing to pay a traffic fine that he had already paid.

Other people are booked into jails on accusations of minor misdemeanor offenses that have no relationship to drugs, weapons or violence. They are mothers, spouses, grandparents, siblings. In short, they are all of us and all of our family members and friends who, at any moment, can find ourselves taken to a jail on minor or completely erroneous charges. There is no reason to suspect across-the-board that anyone arrested for such minor offenses is likely to be smuggling contraband into jail through their bodily orifices. In his dissent, U.S. Supreme Court Justice Stephen Breyer cited an Orange County, N.Y., correctional facility in which a study of strip searches detected one instance of contraband among 23,000 inmates searched.

Recent class action lawsuits throughout New Mexico have caused several jails to adhere to policies that restrict strip searches to circumstances in which jail officials have “reasonable suspicion” that a detainee may be harboring drugs, weapons or other contraband. Such policies strike a reasonable balance between the need to secure the facility and the need to protect the privacy and dignity of individuals who have not been convicted of any crime. They also agree with standards promulgated by the American Correctional Association, which rejects the need for suspicionless strip searches.

To cast aside the time-tested practice of using reasonable suspicion to guide strip searches on the basis of the Supreme Court’s recent ruling would be a grave error. We trust our government to use its powers judiciously, not to exploit them to their fullest extent just because it can. The ACLU guards against such gratuitous use of power, and we will as eagerly challenge it in the context of jail strip searches as we do in all other arenas of government authority.

John C. Bienvenu

Cooperating Attorney, ACLU-NM

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LAS CRUCES, N.M. – Today, the ACLU of New Mexico Regional Center for Border Rights (RCBR) released the report Outsourcing Responsibility: The Human Cost of Privatized Immigration Detention in Otero County detailing inhumane detention practices in the Otero County Processing Center in Chaparral, N.M. RCBR Program Coordinator Emily Carey, the report’s author, compiled the information from numerous site visits and over 40 interviews with current and past detainees.

Opened in 2008, the Otero facility has the capacity to house up to 1,086 immigrant detainees through an exclusive contract between Otero County and Immigration and Customs Enforcement (ICE). Contract obligations are fulfilled by a subcontract with a for-profit, private prison company, Management and Training Corporation (MTC), which, in turn, subcontracts with Physicians Network Association (PNA) for health services. Both MTC and PNA have been sued in New Mexico and elsewhere for alleged negligence and deliberate indifference.

In fall of 2008, the ACLU of New Mexico Regional Center for Border Rights (ACLU-NM) began to receive complaints from detained immigrants in Otero alleging due process violations and inhumane conditions of confinement. In September 2009, ACLU-NM staff formalized these encounters and conducted a series of in-depth interviews with detained immigrants to better understand the conditions in which they are held. Despite ICE’s announcement in October 2009 to reform the immigration detention system, the ACLU continued its efforts to assess the daily reality of immigrants living in a privately operated facility. Though these findings focus on the Otero County Processing Center, they highlight the civil and human rights violations that often occur when the federal government cedes responsibility for civil immigration detention to private prison management companies. Transparency, oversight and accountability—and ultimately the civil and human rights of immigrants for whom the agency is responsible—are degraded in privatized detention center settings. As ICE continues to work towards reform, the increased reliance on private contractors to manage and operate ICE facilities must be re-evaluated. The voices in this report are indicative of why immigration detention reform was and is necessary, and the continued steps that are needed to ensure humane treatment of immigrants in detention.

There were five general areas of concern addressed in this report: (1) limited access to justice, (2) inadequate conditions of confinement, (3) insufficient medical and mental health care services, (4) extended ill effects on detainee’s family and community, and (5) needed improvements in accountability and oversight.

ALBUQUERQUE, N.M.—Yesterday, the American Civil Liberties Union of New Mexico (ACLU-NM) filed a second lawsuit against the New Mexico Children Youth and Families Department (CYFD) for failing to implement key reforms in the juvenile justice system. In 2006, CYFD entered into a contract with ACLU-NM, agreeing to improve safety and mental health services for youth in its juvenile justice facilities. In 2007, ACLU-NM filed suit for breach of contract and reached a settlement agreement in late 2009. Now, one year later, conditions in CYFD facilities are still out of compliance with juvenile detention best practices and basic standards of safety.

“CYFD hasn’t lived up to the 2009 Agreement,” said ACLU-NM Executive Director Peter Simonson. “CYFD agreed to implement the Missouri model of juvenile detention and to change its policies and procedures before the end of 2010 to correct the biggest problems. Although there have been important improvements regarding mental health treatment, CYFD has not yet accomplished either of those promises.”

Under the terms of the 2009 settlement agreement, CYFD agreed to work with three neutral experts to ensure that reforms were implemented. The three experts all reported during November 2010 that many of the requirements of the agreement have not yet been achieved. Their reports show:

• CYFD has not yet implemented the Missouri model “Cambiar New Mexico” at all of its facilities;
• Twice, CYFD intentionally deceived the neutral medical monitor to give the false impression that CYFD had a quality improvement program that was effectively identifying and correcting problems with medical care;
• The Office of Quality Assurance (the system CYFD agreed to establish to ensure oversight and accountability) has not yet been fully established. Since 2009, the office conducted only two inspections, half its employee positions are vacant and it is not yet performing effectively;
• In violation of the agreed procedures, detention facility staff still lock youth in their rooms, including youth with mental disabilities;
• The administrators of the juvenile justice system are not effectively managing juvenile justice services.

The 2009 agreement is set to expire on December 31, 2010, but the ACLU of New Mexico is asking the court to extend the agreement so that youth in CYFD custody may actually reap the full benefits of the reforms.

“The ACLU would have sued earlier,” said Simonson, “But CYFD concealed from the neutral experts and from the ACLU a number of the deficiencies which were identified in the last month and a half. CYFD must be held accountable for the implementation of the agreed reforms; the well-being and safety of the youth in their custody depends on it.”

ACLU-NM Co-legal Director Phil Davis, ACLU-NM cooperating attorney Peter Cubra, and Alice Bussiere and Maria Ramiu of the Youth Law Center in San Francisco represent the plaintiff in this case.

2010 Complaint with Exhibit

Motion for Temporary Restraining Order

PRESS CONTACT: Micah McCoy, (505) 266-5915 Ext. 1003, or mmccoy@aclu-nm.org

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