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.

When Shane was just 16 years old, a judge sentenced him to 30 years to life in prison. Like most people, Shane grew and changed as he became an adult.

After 40 years in prison, Shane was given a second chance at life by the parole board. It's time for New Mexico to pass legislation that abolishes juvenile life without parole and that allows people sentenced as children to petition for early release.

First rolled out in early 2019, the Migrant Protection Protocols (MPP) program was among the most controversial immigration policies of the Trump Administration. President Joe Biden called the program, which required migrants to wait in Mexico while their immigration cases were processed, inhumane and his administration issued a memo ending it.

Missouri and Texas sued to stop that decision, and in early December the Biden Administration restarted an expanded and somewhat tweaked version of MPP, also known as Remain in Mexico. Litigation is ongoing to end MPP, but in the meantime migrants enrolled in the program are forced to wait in Mexico, where U.S. and Mexican authorities have failed to establish enough shelters, and where migrants are often released with few financial resources or access to necessary healthcare or food. Migrants separated from family, friends, and support networks in the U.S. are relying on overtaxed Mexican organizations that weren’t set up to support migrants for months or even years while their immigration cases are processed. 

That has left them exposed to transnational criminal organizations that prey on desperate and vulnerable migrants, many of whom don’t speak Spanish and lack support networks in northern Mexico.

ACLU of New Mexico Senior Staff Attorney Rebecca Sheff explained what’s different with MPP this time around, what’s at stake for migrants in the program and where efforts stand to end it:

Q: Did the Biden Administration end the Migrant Protection Protocols earlier this year? Why are they now restarting it?

A: Biden ran on a campaign promise to end MPP, and Jill Biden herself actually came and toured one of the refugee camps in Matamoros, south of the border in South Texas, and made really strong statements during the campaign recognizing the inhumanity of MPP. So, Biden suspended the program when he first took office, and he terminated it in June. MPP is back now because the states of Texas and Missouri sued the Biden Administration and they were able to get a court order, an injunction, directing the Biden Administration to re-implement MPP in good faith. And so that's why we're in the situation we're in today.

Q: Who is going to end up in this program?

A: There are some different choices being made by this Administration than the Trump Administration. In many ways that actually looks like an expansion of MPP. When MPP started in 2019 it was only being applied to people from the countries in the Northern Triangle (which consists of ​​El Salvador, Guatemala, and Honduras) and then under Trump, it was expanded to be applied to all “Spanish speaking” countries in Central and South America, as well as Brazil, with some exceptions for unaccompanied children and vulnerable populations. Under Biden they've taken a step further in terms of expanding the nationalities that MPP applies to, to say it applies to people from all across the Western Hemisphere. So that would include Caribbean countries like Haiti and Jamaica whose citizens last time around were not subject to MPP.

Fundamentally, MPP is being applied to asylum seekers. These are people coming to the border of the United States who want to start the process of requesting asylum, and because the ports of entry are closed, they can't come to the bridge and safely request asylum there because of other policies that have been in place during the pandemic under Title 42. People are forced to make the hard choice to cross the border in between ports of entry and they now run the risk that they'll be sent back to Mexico under MPP.

People are forced to make the hard choice to cross the border in between ports of entry and they now run the risk that they'll be sent back to Mexico under MPP.

Q: That traditional approach of going to a port of entry and requesting asylum is no longer an option?

A: It's not an option currently because you literally have immigration officers standing in the middle of the bridges, standing at the ports of entry, blocking people from crossing to request asylum and start the process of applying for asylum. You know, historically, that option was available to folks and it's also legal under US law for people to cross the border and then request asylum. Both pathways had been open because our laws recognized that people seeking protection might not be able to come to a bridge and, you know, stand in line and start the process that way and that they still deserve the opportunity to seek asylum. But during the pandemic, the option to present yourself at a port of entry has been effectively shut down. 

Q: What else has changed under this reimplemented MPP?

A: The Biden Administration has made some tweaks to how it’s implementing the MPP program. Many of these tweaks are just window dressing. It doesn't make MPP a fair process, it doesn't protect people from harm while they're being forced to wait in Mexico. It does respond to some issues that were really concerning under the earlier version of MPP.

So the Biden Administration has somewhat extended the list of people who are considered so-called vulnerable populations that shouldn't be subject to MPP. Under the Trump Administration, unaccompanied children and certain people with physical or mental health issues were treated as exempt from MPP. Biden has adapted that list and expanded it to include some elderly people as well as LGBTQ folks, recognizing that people who are queer are at heightened risk of harm if they're forced to wait in Mexico. But the question of who's making that determination really matters because that's in the hands of CBP (U.S. Customs and Border Protection). And that's a process that happens behind closed doors where people don't have access to attorneys to advocate that they should be exempt based on their vulnerabilities. 

And then there are some tweaks that the Biden Administration has made to essentially screen out people who are afraid of being sent back to Mexico because they'll be targeted and harmed based on their race, religion, nationality, political opinion, or social group, basically that they'll be persecuted in Mexico. 

Q: What’s the risk for people who are in this program, why are they and advocates so worried about having to wait in Mexico?

A: Under the prior version of MPP, ever since the beginning, what we've seen is that MPP has been hugely profitable for the cartels. Organized crime has effectively turned MPP into a massive kidnapping and ransom program and we know that people being put into MPP are being specifically targeted for harm in Mexico from the very moment that they step foot off the bridge. There were kidnappings under the prior version of MPP, you know, documented kidnappings happening in broad daylight, assaults, rapes, people being held incommunicado until family members in the U.S. paid up or else they faced serious harm or death. 

Organized crime has effectively turned MPP into a massive kidnapping and ransom program

It's hard to stress enough how hard it is for people to find shelter, stable housing in Mexico once they're put into MPP. And so people end up exposed to really serious and ongoing harm, not just at the hands of organized crime, but also at the hands of Mexican officials. 

Q: How long might people end up waiting in Mexico for their cases to be processed?

A: The immigration courts are dealing with extreme backlogs and have been for years and the Biden Administration has indicated that they're expecting immigration judges to prioritize the cases of people put in MPP, but even then it’s not like you have just one hearing and your case is done. Immigration cases typically take at least three if not four hearings or even more and if someone is ordered deported by an immigration judge, they have the right to appeal. That appeals process can take months if not years. And even then the case might be sent back to the immigration judge for another hearing. So the Biden Administration has apparently guaranteed Mexico that cases of people in MPP will last no more than six months, but that's really an empty promise. They made that same promise last time around under Trump when MPP was originally implemented, and quickly had to walk it back because it was just impossible for the courts to meet that kind of timeline. So it means folks will remain stuck in Mexico for many months, if not a year or more, under this program.

Q: What comes next for MPP considering the Missouri and Texas lawsuit that led to its re-implementation?

A: I think it's important to emphasize that the Biden Administration wasn't required to restart MPP in the way that it is, and there's still a court case that's ongoing to challenge the court order that instructed the administration to implement MPP in good faith. Even before that court order was issued, it was reported in the press that there were senior officials in the Administration who already were eager to look again at MPP and potentially re-implement it as a deterrence strategy at the border. So the choices that the Biden Administration made about how quickly to start up this program again and how in some ways they've expanded who it can be applied to, that goes beyond what they were ordered to do in the court and speaks, I think, to the Biden Administration's broader hostility to asylum seekers and unwillingness to reopen the borders and restore asylum, and instead, they’ve embraced and expanded some of the worst parts of the Trump Administration’s immigration policies.

Q: What are the efforts to end MPP once and for all?

A: There are a couple of different lawsuits challenging MPP and the case between the states of Texas and Missouri and the Biden Administration is still ongoing. After that court order instructing the Biden Administration to re-implement MPP in good faith, the Biden Administration did issue a new memo essentially explaining and re-justifying why it's seeking to end MPP, which is paradoxical because at the same time they're re-implementing it. But they did put out a new memo in late October formally again terminating MPP and explaining why that's the position the Administration is taking. And so, the government is now back in court trying to get this injunction lifted so that they can terminate MPP again. 

Apart from that, there's ongoing litigation challenging MPP that the ACLU is involved with, as well as cases that other groups have brought. The ACLU litigated all the way up to the Supreme Court a case called Mayorkas v. Innovation Law Lab that challenged MPP from the very beginning as an unlawful application of the statute. And there's been other lawsuits since then challenging things like access to counsel, families being put into MPP, people with disabilities being put into MPP, unaccompanied children being disadvantaged from having been put into MPP, as well as the particular risks to people being sent to the state of Tamaulipas in Mexico as part of MPP. The ACLU has been involved in a number of those challenges. As the Biden Administration has restarted MPP now, many of those challenges which had been on pause because the program was terminated are now being reinvigorated and looked at again by the courts.