By Hallie Richwine

The New Mexico Supreme Court convened Monday, May 4, 2020 at 1:30pm to review the case of NM Law Offices of the Public Defender v. State of New Mexico.

Chief Justice Judith Nakamura, Senior Justice Barbara Vigil, and Justices Michael Vigil, Shannon Bacon, and David Thomson heard the argument of Kim Chavez Cook, who was speaking on behalf of the Law Offices of the Public Defender (LOPD).

Chavez Cook said the Court should intervene due to the existing 8th amendment violation wherein inmates are potentially being exposed to asymptomatic carriers of COVID-19.

Michael Vigil asked what the difference was between this petition and the previous one that asked for an amendment to allow sentence reductions in the beginning of the pandemic.

"Most people currently incarcerated do not have LOPD counsel appointed," Chavez Cook said. The previous request by the LOPD addressed needs of individuals whereas the current petition asks that the conditions of those currently confined be considered collectively.

Thomson asked why the petitioners came to the NM Supreme Court for relief rather than seeking help at the trial court level.

Chavez Cook said the trial courts are great for distinct claims where individual relief is being sought. "As evidenced by the public health order the risk is clearly established. We are addressing the risk as it exists for all inmates equally."

Bacon asked for the focus to be on the subjective standard of the 8th amendment, which refers to deliberate indifference.

"It's deliberate indifference because it affects all inmates collectively," Chavez Cook said. She further explained that the current policy has flaws, including the fact that testing and quarantine are reserved for those that have a fever or cough. "Failure to provide widespread testing is deliberate indifference."

"If the government comes back today and demonstrated that they will begin aggressive testing, does that undercut your position here today?" Bacon asked.

Chavez Cook said this is all about keeping inmates safe. "It's not good enough, even with aggressive testing. There is still staff coming and going and the ongoing need to monitor that," she said. She also said there is a level difficulty regarding social distancing while incarcerated.

Michael Vigil asked if the inmates are subjected to an unreasonable risk for harm.

Chavez Cook didn't have any data to show if the difference in housing status for the inmates would be significant in mitigating COVID-19.

"What efforts have the petitioners taken to meet with the Governor to propose this?" asked Barbara Vigil.

"The LOPD and ACLU sent letters to the governor to ask to take the steps to provide the relief we are seeking," Chavez Cook said.

Nakamura said there were too many data points to consider. The petitioners failed to provide how many releases would be necessary to provide the correct distancing standard.

Conditions for release as petitioned by the LOPD include the senior population and non-violent offenders, and any relief in sentencing would not be a reduction of time but a change in how the sentence is carried out. Rather than staying incarcerated the inmate would be on house arrest.

Matt Garcia, on behalf of Michelle Lujan Grisham, said the petitioners bear a heavy burden to show that the governor has violated any protections afforded by the constitution against cruel and unusual punishment.

Bacon referred to the subjective standard of the 8th amendment as set by Ramos v. Lamb. "That described showing deliberate indifference as not having medical personnel available to test."

"To be clear, are you saying that the governor and department of corrections are deliberately indifferent to the coronavirus situation at the penitentiary?" Michael Vigil asked.

"Yes. Not that they created the risk," Chavez Cook said.

"If you can't tell the Court the number of prisoners being released that would result in adequate social distancing does that make you deliberately indifferent?" Michael Vigil asked.

"You don't need an exact number to establish the ability to socially distance in prison," Chavez Cook said. "The lack of testing, the failure to take that action, is deliberately indifferent. Not a moral judgement. Inmates don't have the privilege to change the way they are living to protect themselves."

After a brief recess for deliberation, the justices returned to the courtroom to announce the ruling.

Nakamura first thanked the counselors for the argument including the thoroughness of the briefing and the petitioners from bringing the matter out of sincere concern.

"What comes to us as an issue of the 8th amendment and article 2.16 of the New Mexico Constitution is a two pronged analysis, specifically focusing on the respondent's deliberate indifference to the health and safety of the inmates," Nakamura said. "We find that the answer is no, the respondent is not being deliberately indifferent."

The public health order has identified jails and correctional institutions as possible hot spots, but according to the New Mexico Supreme Court there is not a reason to implement early release at this time.