It started out as an ordinary hot summer day in the borderlands. On June 18, 2019 Anastacio Granillo, a 64-year-old New Mexican man, spent the afternoon with his wife’s cousin visiting family in Mexico. But as the two headed back into New Mexico, the day took a turn for the worse.

As they pulled up to the Columbus Port of Entry, they were met by a long line. When they finally reached the front and were asked their citizenship status, Granillo suggested to Officer Orrantia, the Customs and Border Protection (CBP) officer on duty,  that it would be helpful to open up another lane to allow for faster processing of vehicles in the sweltering heat. The officer scolded Granillo, saying CBP officers could do whatever they wanted.

Orrantia then asked Granillo what he was bringing into the United States. He attempted to hand the allergy medication he purchased across the border to Orrantia but, nervous due to the officer’s aggressive behavior, accidentally dropped it into his hands. Orrantia then accused Granillo of throwing the medication at him. Granillo assured him that he dropped the medication unintentionally, but Orrantia, who was armed with a gun, opened the driver’s-side door of the vehicle where Granillo was seated without any verbal warning.

"There’s a fear it’s going to happen again."

Orrantia ordered Granillo out of the vehicle. When Granillo asked why he had to exit his car, Orrantia threw his body weight on top of him, pinning him against the seat. Orrantia then forced Granillo out of the vehicle and slammed him against a wall in the inspection bay, causing him to hit his head, and fall to the ground.

While Granillo lay on the ground disoriented, Orrantia held his right arm behind his back, kicked him, and cuffed him.

“They are federal officers so there’s a feeling that you can’t do anything and that they are protected, and they can do anything they want without any consequences,” said Granillo.  “That’s what they did to me.”

Several CBP officers soon took Granillo, who had bruises on his right arm and left leg and a large bump on his head, into the CBP office at the port of entry. About twenty minutes went by before they even offered to call an ambulance for Granillo. When EMTs finally arrived, one of them told Granillo it wasn’t their first encounter with Orrantia — that he had a history of brutalizing people crossing the border.

After observing and documenting his injuries,  EMTs offered to give Granillo a ride in the ambulance to the hospital. Though he wanted to go, Granillo declined after CBP officers told him that he would have to foot the bill, even though one of their officers was responsible for his injuries.

The largest and least accountable law enforcement agency

Granillo’s experience is just one of thousands of stories of unnecessary abuses by CBP, the largest federal law enforcement agency in the country.

The Southern Border Communities Coalition has tracked deaths at the hands of CBP based on media coverage and press releases, and has found that since January 2010, at least 150 people  have died as a result of an encounter with CBP. The causes of death range from excessive force (including fatal shootings, asphyxiation, tasers, beatings, and spraying of chemical agents), failure to provide adequate medical care, and vehicle collisions, to homicides carried out by off-duty officers or agents.

In addition to the 150 deaths that we know of, CBP officers and agents have brutalized and mistreated countless others.

In 2016, the ACLU of New Mexico won a $1.1 million settlement on behalf of a New Mexico woman who, while returning home from Mexico through the Bridge of the Americas Port of Entry in El Paso, was accused of smuggling drugs and illegally subjected to vaginal and anal searches.

"It’s so unpredictable how you’re going to be treated and you never know if you’re going to get someone who will mistreat you. I’m afraid what happened before will happen again."

After examining Jane Doe’s (whose name has been changed to protect her identity) genitals and anus with a flashlight at the port of entry, and failing to find any contraband, CBP officers nevertheless transported her to University Medical Center for further examination. Over the course of six brutal hours, she suffered an observed bowel movement, an X-ray, a speculum exam of her vagina, a bimanual vaginal and rectal exam, and a CT scan. The officers did not have a warrant, and Jane Doe never consented to an examination.

The ACLU of New Mexico has demanded authorities investigate additional instances of abuse at ports of entry in Texas and New Mexico that include CBP personnel forcefully yanking a defenseless boy out of a vehicle; calling a noncitizen a “wetback” and denying access to her diabetes medication; coercing individuals to accept swift deportations with long-term consequences that bypass the judicial process; and detaining a grandmother for ten hours who was crossing into the United States for her weekly Walmart trip, after accusing her of being a sex worker.

CBP abuse doesn’t end at ports of entry. Agents harass, assault, and even kill people throughout border communities with alarming frequency.

This past summer, on August 3, CBP agents chased a vehicle along New Mexico Highway 185 in the El Paso Border Patrol sector, killing two people and causing eight others to be hospitalized. On September 18, agents pursued a vehicle near Deming,  which resulted in a crash that killed one person and injured nine others.  Since 2010, the ACLU has tracked 56 deaths resulting from Border Patrol-involved chases.

Despite a well-documented history of abuse, as well as calls for transparency and accountability from immigrant rights organizations, family members of loved ones, and elected officials, CBP agents and officers continue to act with impunity. In its 90-year history, no CBP officer or agent has ever been convicted of criminal wrongdoing while on duty.

To truly stop the largest and least accountable law enforcement agency in the nation from systematically abusing people, the United States Congress must cut funding to the agency. The ACLU will keep fighting to bring abuse to light and to pressure Congress to divest from the agency and reinvest in communities.  And we will continue to seek justice for its victims in the courts.

Fighting back

It’s been over two years since Granillo’s assault. But each time Anastacio returns from Mexico after visiting his family or picking up medication, he feels a familiar dread bubbling up in his stomach.

“I get my medicines in Mexico, so I cross this port of entry regularly,” Anastacio said. “There’s a fear it’s going to happen again. It’s so unpredictable how you’re going to be treated and you never know if you’re going to get someone who will mistreat you. I’m afraid what happened before will happen again.”

"If I let it go and no one does anything, they’ll continue to treat people this way."

Granillo also suffers from short term memory loss, weakness in his hands and legs, mood swings, and anxiety — none of which he experienced before his assault.

“Mr. Granillo was simply trying to make his way home to Deming  when he was assaulted by a CBP officer for no reason,” said María Martínez Sánchez, deputy legal director at the ACLU of New Mexico. “Now, he’s suffering the consequences of that violent encounter. Officers like the one that assaulted Mr. Granillo pose a danger to everyone they come in contact with and must be held accountable for their actions, or they will continue to abuse their power.”

Despite his fear, Granillo isn’t giving up. In August 2021, the ACLU of New Mexico filed a civil suit on his behalf seeking justice for the assault, battery, negligence, and false arrest he endured.

He hopes that his suit will help prevent other people like him from facing similar abuse.

“They regularly abuse people at the border,” Granillo said. “I’ve seen this happen to too many people and I’ve had enough. If I let it go and no one does anything, they’ll continue to treat people this way.”

For nearly 50 years, Roe v. Wade has guaranteed the right to abortion in the United States. Now that right stands at the brink of collapse. I won’t mince words. I write with both a heaviness in my heart and a measure of hope that New Mexico can rise to the challenges before us.

Earlier this month, the U.S. Supreme Court heard oral arguments in two cases challenging a Texas law, SB 8, that prohibits abortion after six weeks of pregnancy, before most people even know they’re pregnant. The novel ban allows anyone to sue abortion providers or anyone who aids in an abortion, creating a bounty-hunting scheme that encourages people to go after health care providers with the promise of at least $10,000 for successful suits. It has effectively closed off access to abortion across Texas.

Anti-abortion politicians intentionally designed the law to make private citizens file lawsuits, rather than state actors, to try to evade state and federal court review. The Supreme Court’s rulings will determine whether or not abortion providers and the Department of Justice, who brought the cases, are even entitled to challenge SB 8.  If the Court lets SB 8 stand, we can expect copycat bills to crop up across dozens of other states. In fact, some states have already introduced similar legislation.

As if SB 8 wasn’t threat enough, the Supreme Court just heard arguments in a Mississippi case, Dobbs v. Jackson Women’s Health Organization, that is a frontal assault on Roe. The case centers on a 2018 law that bans most abortions after 15 weeks. If the Supreme Court upholds that law, and effectively overturns Roe, more than 36 million women in 26 states will lose access to abortion, according to recent Planned Parenthood research.

The situation is dire, but we knew this day would come. Since 2017, ACLU of New Mexico staff have worked alongside partners in the Respect New Mexico Women coalition, health care providers, ACLU members, and activists across the state to remove an old abortion ban from our state laws. Last year, we successfully passed a law that did just that, shoring up the rights of people to make their own pregnancy decisions in New Mexico.

While it is a relief that reproductive rights are currently protected in New Mexico, our success also brings new responsibility. Increasingly, people are coming to our state for services that their own states now deny them. New Mexico providers and abortion funds are rising to the challenge of meeting both their needs and those of New Mexicans who require the full scope of reproductive health care.

It’s increasingly clear that New Mexico is set to become a critical bastion of care, both regionally and nationally, in the years to come.

That’s why, over the next few months, we’ll be working with ACLU affiliates from other states and national as well as abortion funds, health care providers, and other partners, to strengthen the infrastructure for protecting and defending the reproductvie rights in our state. This means ensuring that people coming to New Mexico have accurate information about abortion care and other services and are not deceived by fake clinics, known as crisis pregnancy centers, which exist solely to dissuade people from making their own reproductive health decisions. It also means ensuring that  people with lower incomes who need abortion care have adequate transportation to New Mexico and funding to receive care. And it means ramping up the full scope of reproductive health care in New Mexico.

I won’t tell you that I am not angry that 36 million people are at risk of having a major health care decision made for them by the government in the middle of a pandemic, when we are already operating under crisis standards of care. But I can tell you that more than anything, I am compelled to keep fighting.

I hope you will continue to fight with us.

It’s been one year and eight months since, at the outset of the COVID-19 pandemic, the ACLU of New Mexico first sounded the alarm of an impending humanitarian crisis for incarcerated people in the state.

We wish we could report that public officials heeded our warnings and implemented adequate measures to mitigate viral spread in carceral facilities. But despite multiple letters to public officials, consistent media interviews, and several lawsuits, including a class action lawsuit on behalf of incarcerated people, COVID-19 gained a foothold in jails, prisons, and immigration detention centers throughout New Mexico.

Though the Lujan Grisham administration did take some steps — like allowing for the early release of a very small number of incarcerated people and putting incarcerated people in an early category of eligibility for the vaccine — not enough has been done.

In August 2020, COVID-19 infection rates were so high in correctional facilities that the Legislative Finance Committee found “an inmate in New Mexico was more than twice as likely to die from COVID-19 than the national average.”

As of this writing, 3,103 people —  more than half of the state prison population  —   have contracted COVID-19, according to the Corrections Department website. At least 28 of those people have died.

Our state can, and should, do better. As we look back on the last year and eight months, here are three important lessons New Mexico should learn from this pandemic.

Lesson One: Mass incarceration is toxic for those behind bars and communities at large

At the outset of the pandemic, public health officials warned that detention facilities would be tinderboxes for infection, pointing to overcrowding, the inability to social distance, inadequate access to hygiene products, and substandard healthcare. Among their recommendations was the immediate reduction of people in jails, prisons, and immigration detention facilities.

Unsurprisingly, states were slow to take public health experts’ recommendations. For months, correctional facilities were at the top of The New York Times’ list of largest outbreaks. Those outbreaks quickly spread to surrounding communities. A Prison Policy Initiative study, which looked at COVID-19 infection spread from May to August 2020, found COVID-19 infections were much higher in counties and multicounty areas with larger incarcerated populations, estimating that “mass incarceration resulted in 560,000 additional COVID-19 cases nationwide” in those three months alone.

New Mexico imprisons people at a higher rate than most U.S. states and every other democracy in the world, putting the state at an even greater risk for rapid viral spread in jails, prisons, and immigration detention centers.

As expected, once New Mexico had its first case in a state prison, the numbers exploded rapidly. On May 15, the New Mexico Corrections Department (NMCD) announced that an incarcerated person tested positive in one of the state’s eleven prisons, the Otero County Prison Facility (OCFP). In a little over a month, OCPF reported over 400 cases. At the facility’s peak, over 90% of the incarcerated population was infected. The virus had also spread to an unreported number of staff at the facility, who live in surrounding communities. As experts predicted, New Mexico’s jails, prisons, and ICE detention centers all experienced large outbreaks, which likely fueled outbreaks in the surrounding areas.

While Governor Lujan Grisham’s April 2020 executive order allowing for the release of some non-violent offenders who were within 30 days of the end of their sentences was a step in the right direction, the measure did not result in the level of decarceration needed to adequately protect people.

As of September 2021, only 550 incarcerated people had been released since the order was first issued. Most of those individuals were released only a week or two early, making the impact on the overall population of the prisons negligible. Under existing laws, the state could have safely released many more people, including people serving sentences as a result of technical parole or probation violations, people within 12 months of release, and elderly people.

Throughout the pandemic, we have received dozens and dozens of calls and emails from desperate family members who have watched in fear as facilities that detain their vulnerable loved ones have experienced unchecked COVID-19 outbreaks.

Lesson Two: Carceral facilities are not set up to care for people in emergencies

In the last decade, the New Mexico Corrections Department has contracted with three different prison medical providers, all of which have been repeatedly sued for medical negligence. Corizon Health, which contracted with NMCD from 2007 to 2016, was sued over 150 times. Centurion Health, which contracted with NMCD from 2016- 2019, was sued 65 times. The current provider, Wexford Health Sources, previously held a contract with Mexico from 2004-2007, but was fired over concerns about care and staffing shortages and after 53 incarcerated people sued. Despite previous issues with the company, Wexford Health Sources received a new contract with the state in 2019.

State prisons are not the only facilities to make headlines for medical neglect. County jails throughout New Mexico, as well as all three ICE detention centers, have been the subject of lawsuits alleging denials of medical and mental health care.

The ACLU of New Mexico has represented many incarcerated clients over the years who were denied care they urgently needed. Those clients include: a woman incarcerated in a state prison who developed advanced endometrial cancer after staff ignored her irregular vaginal bleeding and refused to take her for a biopsy; a Guatemalan man who sought asylum in the U.S. after gang members beat him nearly to death and then was denied medical treatment in ICE detention in Otero County for nearly two years; and a political activist from the Democratic Republic of Congo (DRC) who was beaten, tortured, and imprisoned for his opposition to the current dictatorship there and then denied medical treatment in Torrance County.

The COVID-19 explosion in New Mexico carceral settings happened against this backdrop of callous indifference and medical neglect.

Lesson Three: Incarcerated people need more avenues for justice

In August 2020, the ACLU of New Mexico joined international law firm Faegre Drinker, Albuquerque-based Law Office of Ryan J. Villa, the New Mexico Criminal Defense Lawyers Association (NMCDLA), and several incarcerated individuals in filing a class-action lawsuit against the State of New Mexico for failing to protect the lives and constitutional rights of people detained in the state’s prison system during the COVID-19 pandemic. The First Judicial District Court dismissed our case on procedural grounds, specifically citing the “exhaustion of remedies” clause in state law. Under both state and federal law, incarcerated people are required to go through an internal grievance process prior to filing suit.

The NMCD grievance procedure states that it may take up to “90 working days” from the time a grievance is filed until the final decision on appeal. Incarcerated people who are in desperate circumstances, such as a deadly pandemic, cannot wait three months for help.

Our class-action lawsuit was eventually escalated to the New Mexico Supreme Court, which after almost a year has still yet to issue a decision regarding whether this grievance requirement must have exceptions for emergencies. In the meantime, incarcerated people continue to be forced to go through a grievance process that is lengthy, very unlikely to go in their favor, and often results in retaliation before they can go before a court and assert their constitutional rights.

The New Mexico Prison & Jail Project was created last year precisely because incarcerated people have so few avenues for seeking redress for abuse and mistreatment. Steve Allen, the organizations’ director, speaks to incarcerated people and their families every week and says that incarcerated people are “natural organizers,” but face a system that is designed to keep them from being heard.

“Exhibit A is the grievance system in all of these facilities,” said Allen. “The law around this is that they are supposed to have some access to raise complaints, but often those complaints quite frankly just go in the garbage, they go unanswered, and they are systematically ignored.”

The New Mexico Prison & Jail Project has filed many records requests in the last several months to gain a better understanding of the kind of grievances that have been filed. Yet, grievances that the organization knows have been filed  — like those related to a rodent infestation that incarcerated people have been complaining about for years at Western New Mexico Correctional Facility  — have not materialized as a result of their records requests.

As long as incarcerated people are required to exhaust administrative remedies before they can file suits, they will not have access to real or timely justice. Even if the barriers to formal lawsuits are diminished, individual lawsuits are a stop-gap measure of accountability in a system that is otherwise left to police itself. Most incarcerated individuals whose rights have been violated will never see their day in court. Independent oversight of New Mexico’s carceral facilities, such as the corrections ombudsman proposed in legislation in 2020, is needed to address the widespread injustices inherent in the system.

Conclusion

The coronavirus crisis has shone a new light on the human cost of our country’s obsession with mass incarceration. Relying on a system that tears families apart and fuels racial injustice to improve public safety has always been foolish, unjust, and counterproductive. But now, in the age of COVID-19, we see even more clearly that mass incarceration is an urgent threat to public health.

Going forward, we can stop stuffing our prisons with people who violate their conditions of parole by missing an appointment or failing a drug test, and instead, treat their mistakes as a public health issue. We can finally admit that locking people up should be a last resort, and that tackling the root causes of crime through treatment and prevention should be our top priority. And we can stop putting migrants seeking safe refuge in our country in carceral settings while their immigrations cases proceed. If we make these changes today, they will lead to much healthier communities tomorrow.

While the first order of priority should be to decarcerate, measures must also be taken to improve access to care for those people who will remain in correctional facilities. These should include moving away from private prison companies and private health care providers, which are incentivized to cut medical staffing and deny care to maximize shareholder return; ensuring people have access to timely, appropriate, and quality care, and ensuring adequate oversight and accountability measures are in place to monitor the quality of care.

Finally, it’s time we remove legal barriers that prevent incarcerated people from seeking and accessing justice. Grievance processes within jails, prisons, and immigration detention centers are so unreliable that, in effect, they are non-existent. Incarcerated people must be able to access the courts and seek redress for rights violations without having to jump through hurdles that are designed to keep them silent and to keep the public from understanding the true costs of mass incarceration.