In the back of an ambulance, during the nearly forty-minute ride from Springer Correctional Center (SCC) to Raton Medical Center, Kandyce Jaramillo stopped breathing multiple times. She was in the midst of an asthma attack so severe that she nearly had to be intubated upon arrival at the hospital. Luckily, the 35-year-old mother of six regained her breathing after a doctor injected her with medication. She was released the next day.

That was on February 10, before New Mexico had a single known case of coronavirus.

Before the respiratory disease reached global pandemic status, Kandyce, who is incarcerated for simple drug possession, frequently worried about her health. Now that New Mexico has over 23,000 known cases of the virus, and jails, prisons, and immigration detention centers have become hotspots for the infection, Kandyce lives in a constant state of fear. Already highly vulnerable to serious illness or death if infected, living behind bars, where healthcare is notoriously substandard and people live in close quarters, puts her at even greater risk.

“I just put in another three sick calls and they still haven’t seen me yet,” said Kandyce. “It’s getting harder and harder to breathe.”

“I just put in another three sick calls and they still haven’t seen me yet. It’s getting harder and harder to breathe."

Despite her constant struggle for air, SCC has denied her multiple recent requests for nebulizer treatment and a rescue inhaler.

“I’ve been crying a lot lately because there’s nothing that I know I can do for any of this and I just have to continue on asking them for help even though I’m obviously not their priority,” Kandyce said. “The only time they would see me is if I would drop on the floor or stop breathing again. But I don’t want to stop breathing again.”

Though SCC does not yet have any known cases of coronavirus, Kandyce fears that if the virus enters the facility, it won’t be long before it spreads rapidly. One need only look at Otero County Prison Facility, where 80 percent of people tested positive in late June, or Otero County Processing Center, a privately-run ICE detention center with over 150 cases at last count, to see how infectious spread is likely to play out.

“Kandyce is serving a sentence for drug possession, a conviction that reflects her longtime struggle with addiction,” said Lalita Moskowitz, ACLU of New Mexico staff attorney and lead counsel on the affiliate’s efforts to protect incarcerated people from coronavirus. “She poses no danger to her community. But her current environment poses a life-threatening danger to her.”

Michel Luis Fuente knows all too well the fear Kandyce feels. After the 33-year-old fled Cuba and sought asylum in the United States in June of 2019, he was immediately detained in Otero County Processing Center (OCPC), where he languished for a year. He too suffers from severe asthma and is highly vulnerable to coronavirus.

“It is one thing to say that this country respects human rights, but inside (the detention center) they don’t,” said Michel. “You could be dying in there and all they tell you is ‘you should have stayed in your country.”

“You could be dying in there and all they tell you is ‘you should have stayed in your country.”

At OCPC, Michel lived in a dormitory with 49 other people who shared four sinks, four toilets, and four showers amongst them. They slept in bunk beds roughly three feet apart from each other. Not only was social distancing impossible, but cleaning and hygiene products were in short supply. Many guards did not even wear masks or gloves. Without any way to properly protect against the virus, and knowing that his asthma made him vulnerable to infection, Michel says he fell into despair, crying every day out of fear of dying.

The perfect storm

When coronavirus first hit the United States, public health experts warned that jails, prisons, and ICE detention centers were tinderboxes for infection that would inevitably flare up and spread out into surrounding communities. People are packed together in tight quarters and cannot keep the recommended six feet of distance from one another. Many people are already in compromised health, making them more vulnerable to infection, and medical resources are limited. Sanitation in these facilities is poor and hygiene products remain in chronic short supply.

The conditions are so ripe for infection that back in March, an epidemiology professor at Yale School of Public Health, Greg Gonsalves, told the New Yorker, “If you wanted to set up a situation that would promote rapid transmission of a respiratory virus, you would say prison: it’s close quarters, unsanitary, individuals in frequent contact.”

The ACLU national office and ACLU affiliates across the country, having long advocated for people behind walls, knew public health experts were right to be concerned. Not only are these facilities hotbeds for the spread of disease, but policymakers are often quick to look the other way when poor people and people of color—who are disproportionately locked up—are in danger.

"...Policymakers are often quick to look the other way when poor people and people of color—who are disproportionately locked up—are in danger."

Here in New Mexico, and throughout the country, the ACLU took swift action, writing letters to governors, correctional departments, congressional delegations, and individuals prisons, jails, and ICE detention centers, urging them to immediately develop plans to mitigate the risk of coronavirus for incarcerated people and surrounding communities. We advised them to immediately reduce the population in detention facilities by releasing the most vulnerable; to provide soap, hand sanitizer, and cleaning supplies; and to ensure scientifically-based protocols for testing and treatment were in place.

Our pleas were largely met with silence and indifference. But we didn’t give up. When elected officials and wardens didn’t take our warnings seriously, we dug in our heels and redoubled our efforts.

Marshalling all of our resources

Our legal team sought every remedy to release as many people as possible from New Mexico’s jails, prisons, and detention centers, including filing habeas petitions on behalf of medically vulnerable people. Through these petitions, we have been able to help individuals challenge the conditions of their confinement as unconstitutional and fight for release.

Our first habeas petition, filed in early April, demanded the release of Yesenia Evans, who was detained in Santa Fe County Jail on a non-serious probation violation. Yesenia suffers from a rare autoimmune disease known as Systemic Sclerosis that impacts the function of her digestive system, heart, lungs, and kidneys. The petition argued that confining Yesenia, whose medicalcondition renders her particularly vulnerable to coronavirus, amounted to deliberate indifference to excessive risk of serious harm and violated her constitutional right to be free from cruel and unusual punishment.

“For Yesenia, it was a real possibility that a minor offense could turn into a death sentence,” said Moskowitz. “Each day she spent locked up was a day in which her life was in jeopardy. We knew we had to do everything in our power to get her out.”

Days later, the First Judicial District Attorney agreed to Yesenia’s release. Yesenia was allowed to return home to her family where she could take adequate precautions to protect herself from the virus.

Our work didn’t stop there. On the heels of our petition to release Yesenia, the legal team filed habeas petitions on behalf of three immigrants, all with underlying health issues, detained in Otero County Processing Center. Following our lawsuit, two of them, including Michel have been released.

“Otero County Processing Center has a history of abuse and medical neglect,” said Joachim Marjon, immigrants’ rights attorney at the ACLU of New Mexico. “In normal times, we can’t trust the facility to protect people, let alone in times of crisis. The people detained there are living in agony, wondering if they will ever make it out or die inside the walls.”

“In normal times, we can’t trust the facility to protect people, let alone in times of crisis."

While we’re grateful that three of our clients are no longer living in acute danger, we have a long way yet to go. Thousands more remain trapped in dangerous conditions, and our society’s indifference to the plight of the detained and incarcerated is a strong current to swim against.

A similar habeas petition that we filed to secure Kandyce’s release from Spring Correctional Center was denied on technical grounds and is currently in appeal. Our attempts to secure the release of a much larger class of people have also been difficult. In mid April, the ACLU of New Mexico, along with the New Mexico Law Office of the Public Defender and New Mexico Criminal Defense Lawyers Association, took our fight to the New Mexico Supreme Court, arguing that the state had deliberately and intentionally put people at risk by not substantially reducing the prison population. Our hope was that the Court would order the release of medically-vulnerable people, those held on parole and probation violations, and those nearing release. The Court, however, denied our petition on the grounds that we could not prove the State’s actions were “deliberate and intentional.”

The ruling was especially disappointing given the ample evidence of the danger the coronavirus poses in correctional settings. At the time of the ruling, the virus had already spread throughout facilities across the country and at least 13 other state court systems — including those of Kentucky, Massachusetts, Pennsylvania, Alabama, Maine, Montana, New Jersey, Utah, Ohio, South Carolina, Michigan, Hawaii, Washington, and the District of Columbia—had already taken steps to limit incarceration to mitigate viral spread.

Predictably, the number of positive cases amongst incarcerated people swelled in New Mexico following the Supreme Court’s refusal to intervene.

We were frustrated, but undeterred. At the time of this writing, our legal team is preparing to take part in a second legal action aimed at securing the release of hundreds of people who pose no risk to society, but who face serious threats to their health behind bars.

The Fight Ahead

The appalling conditions that have led to the explosion of coronavirus infections inside our jails, prisons, and detention centers are symptoms of larger systemic problems. As we continue our battle to protect incarcerated people during this pandemic, we are equally determined in our efforts to fundamentally change the criminal legal system and civil immigration detention policies that fuel mass incarceration in our nation. We simply can’t put a bandaid on a bullet wound and expect it to heal.

For too long, we’ve tried to punish our way out of every societal problem, filling our prisons to the brim rather than tackling the root causes of crime. 

Detaining people in prison-like conditions for fleeing violence and persecution in their home countries or seeking to make a better life for their children in the United States has always been unjust and inhumane. Equally unjust is our nation’s treatment of its own citizens. For too long, we’ve tried to punish our way out of every societal problem, filling our prisons to the brim rather than tackling the root causes of crime. Mass incarceration has only served to fuel racial injustice, tear families apart, and trap entire generations inside the criminal legal system. And yet none of it has made us any safer.

In fact, instead of improving public safety, COVID-19 has shown us that our addiction to incarceration is an urgent threat to public health.

There is a clear path forward. We must immediately release people from jails and prisons who are medically-vulnerable to the virus, nearing release, or held on non-serious offenses. We must also immediately allow immigrants—the overwhelming majority of whom should not be detained in the first place — to stay with family or friends as their civil immigration cases proceed.

Beyond that, we can stop making the same mistakes going forward. It’s time we dismantle the immigration detention machine and mass incarceration apparatus and build more humane alternatives. The pandemic has made it impossible to ignore that these systems, by design, only lead to human suffering and misery.

These systems are how people like Kandyce, who needed substance abuse treatment and support, not incarceration, and people like Michel, whose only “crime” was seeking asylum, end up behind bars and fearing for their lives. Even though Michel is now far from OCPC with his family in Arizona, he still lays awake worrying about the friends he left behind.

“I cannot sleep at night,” said Michel. “I suffer because I know what they are going through. Only someone who was in there knows what they are suffering. The things they do. I don’t know how to stop this.”

Police brutality is not new, nor is systemic racism in policing. Police forces in the United States were used to catch runaway slaves and later to enact a campaign of terror against Black people during the Reconstruction and Jim Crow eras. Police were employed to brutally suppress striking factory and farm workers in the 20th century. Police were used to violently disperse protesters during the Civil Rights and Anti-War movements. Police are the front line soldiers in the ongoing “War on Drugs” that has led to the over policing of communities of color, mass incarceration, and the highest rate of officer-involved shootings in the developed world.

What has changed is the technology that makes police brutality and systemic racism much more visible, especially to those of us for whom police brutality and racist policing is not a lived reality and daily existential threat. The images of state troopers viciously beating civil rights protesters in 1963 shocked the country so deeply that congress passed the Civil Rights Act the following year. The beating of Rodney King in 1991 by four police officers, captured by an early handheld video camera, led to a citywide uprising in Los Angeles and nationwide conversation about police brutality and racism. Cellphone footage of a NYPD police officer choking Eric Garner, a Black man accused of selling loose cigarettes, to death in 2014 helped spark the Black Lives Matter movement.

"What has changed is the technology that makes police brutality and systemic racism much more visible..."

Today, practically every person in the country carries a high definition video camera in their pocket and has the ability to share footage with the entire world in seconds. Police brutality, especially against communities of color, has become impossible to ignore. On May 25th, when white Minneapolis police officer Derek Chauvin was filmed slowly murdering George Floyd, an unarmed Black man accused of passing a fake twenty dollar bill, by kneeling on his neck for over eight minutes as he begged for air, it outraged the entire nation and spurred millions to take to the streets in protest.

We stand at an inflection point, a moment where the wider public is waking up to the injustice, violence, and racism that remain embedded in our systems of policing. The people demand change.

The ACLU of New Mexico has fought against police brutality and racial discrimination since its founding nearly 60 years ago and we’re throwing our full weight behind the movement at this pivotal moment. Our affiliate is conducting a full court press, fighting in the courts, in the legislature, and in the streets for the change New Mexico so badly needs.

In the Courts

Though we pride ourselves on our diversity, New Mexico is far from immune to the violent and discriminatory police practices that have sparked protests both nationwide and here in our state. In July, the ACLU of New Mexico filed a lawsuit on behalf of D’Andre Ravenel, a 23-year-old Black man who was arrested by a New Mexico State Police officer for filming a joint FBI-police raid from a street corner nearby to his home.

After New Mexico State Police and the FBI descended on a house a few doors down from his own, D’Andre began recording the raid from a safe distance. Noticing him recording, one of the officers approached D’Andre and demanded to see his identification. D’Andre, who was engaging in constitutionally protected activity, told the officer that he did not have his ID on him. The officer criminally charged D’Andre with “interfering with an investigation” and arrested him. While he was in handcuffs, an FBI agent who was participating in the raid illegally seized his cellphone and refused D’Andre when he asked to speak with his attorney. D’Andre spent four days in jail for doing nothing more than filming the police while Black.

“I am always fearful when interacting with law enforcement because I know that the color of my skin makes me a target,” said Ravenel. “I asserted my rights anyway because it’s more important than ever in this moment to hold officers who abuse their power accountable.”

"I know that the color of my skin makes me a target. I asserted my rights anyway because it’s more important than ever in this moment to hold officers who abuse their power accountable."

Ravenel’s lawsuit is only one of several involving racial discrimination or excessive force this past year. Last fall, the ACLU of New Mexico filed a lawsuit against the Bernalillo County Sheriff’s Office (BCSO) on behalf of the family of Elisha Lucero, a Hispanic woman suffering from mental health issues following brain surgery, who was shot 21 times by deputies. This spring, BCSO settled the lawsuit for a record four million dollars.

The ACLU of New Mexico settled a second suit against BCSO in February that alleged three separate incidents of racial profiling against an African-American motorist who was working in the area on assignment as a federal agent, and this spring, the ACLU of New Mexico filed a lawsuit on behalf of a man from Acoma Pueblo, who was wrongfully detained and brutalized by a NewMexico State Police officer after he called 911 when he observed a single-car accident near the pueblo.

In the Legislature

Last year during the 60-day legislative session, the ACLU of New Mexico was instrumental in the passage of a raft of groundbreaking legislation reforming New Mexico’s criminal legal system. That package of legislation included reform of solitary confinement in New Mexico’s jails and prisons, criminal record expungement, a bill to reduce employment discrimination against the formerly incarcerated, decriminalization of marijuana possession, and other reforms.

"People were outraged, marching in the streets, and demanding change.”

“Following the 2019 session, we believed that it would be another two years before we had a real chance to pass new reforms through the legislature,” said ACLU of New Mexico Director of Public Policy Steven Robert Allen. “But swiftly evolving attitudes concerning police brutality following the death of George Floyd gave a new urgency to reform efforts. People were outraged, marching in the streets, and demanding change.”

When the legislature met in June for a special session to shore up the state budget in the wake of the COVID-19 economic crash, the ACLU of New Mexico coordinated with community partners and advocates to channel public outrage into passing Senate Bill 8, a law that would require New Mexico law enforcement agencies to equip their officers with bodyworn cameras. The bill moved quickly through both houses, and was signed into law by Governor Michelle Lujan Grisham in July.

The new law will have an immediate impact on the transparency and accountability of law enforcement in our state.

“It was a real testament to the adaptability and innovation of our digital and organizing teams,” said Allen. “Organizing and mobilizing people in the middle of a global pandemic in a special session meant we had to sort of jump and build the airplane on the way down.”

The new law will have an immediate impact on the transparency and accountability of law enforcement in our state. Sheriff Manny Gonzales, head of BCSO, the largest Sheriff’s department in the state, has steadfastly refused to equip his deputies with body-worn cameras for years. This legislation will finally force him and other holdouts across the state to join the majority of law enforcement agencies nationwide who use this important technology.

In the Streets

Much of the driving energy of the movement to reform police practices in America has come from the hundreds of demonstrations in cities and towns across the United States, and even in other countries across the world. People of all ages, races, ethnicities, and backgrounds have taken to the streets to support Black lives in a series of ongoing protests that constitute the largest protest movement in U.S. history. The backlash from local police departments and federal police agencies under the control of the Trump administration has been swift and brutal.

Videos from Black Lives Matter protests across the country show officers in riot gear tear gassing predominately peaceful protesters, clubbing unarmed protesters, shooting people with rubber bullets, and conducting mass arrests. President Trump even ordered the violent dispersal of a peaceful protest in Washington D.C. so he could stage a photo op with a Bible outside the White House. In Portland, where protests have been continuous for the past two months, a mashup of paramilitary units from the Department of Homeland Security were deployed to downtown Portland in full battle dress where they escalated tensions by attacking peaceful protesters and abducting people off the streets into unmarked vans.

“It’s a very precarious moment for the First Amendment,” said ACLU of New Mexico Legal Director Leon Howard. “We’re at a place where the American people feel they have no choice but to rise up in protest, and we have an administration that wants to suppress their voices, violently if need be.”

To help protesters better navigate confrontations with law enforcement, the ACLU of New Mexico communications department collaborated with the legal team to produce a ‘know your rights’ video explaining how to safely exercise your rights at a protest. The video, which has now been viewed nearly 12,000 times, helps protesters understand how to safely record police interactions at protests, how to protect private data, how to respond if stopped by an officer at a protest, and what to do ifyou believe your rights have been violated.

Above the Streets

This July, we marked the one-year anniversary of Elisha Lucero’s death at the hands of BCSO deputies by collaborating with Lucero’s family to launch a seven-week long billboard campaign in Albuquerque. Together, we honored her memory and promoted reforms that will help prevent other families from losing loved ones to police violence.

“We wanted to send a message that this is not how things have to be,” said Elaine Maestas, Elisha Lucero’s sister. “Our community should never have to fear that calling emergency services will result in the death of a loved one. Not every problem requires an armed response. We must dramatically reimagine the role of law enforcement in our lives because the current system is killing our families.”

In the Future

Although we are experiencing a seismic shift in the attitudes and awareness surrounding police brutality and systemic racism, bringing about the needed changes has been and will continue to be a long term project. In addition to our ongoing fight for justice in the courts, we plan to advocate for two major pieces of legislation during the 2021 session that would make sweeping reforms to our state’s criminal legal system. We plan to support a statewide use of force bill that would rein in deadly use of force by officers, prevent abusive officers from being rehired, and implement a range of other reforms aimed at decoupling violence from police work.

We know nothing is impossible when We the People rise up and stand together for the change we believe in.

We also intend to promote a Civil Rights Act for the state of New Mexico that would end qualified immunity for law enforcement officers, which provides near universal protection against liability for police officers, even those who break the law intentionally. This will go a long way towards putting an end to the culture of impunity that infects many law enforcement departments and ensure that officers who abuse civilians and violate rights will finally face consequences for wrongdoing.

The ACLU of New Mexico will continue to fight on every front for a future where people no longer fear that a routine encounter with law enforcement will be fatal or that they will be treated unjustly because of the color of their skin. We have our work cut out for us, but we know nothing is impossible when We the People rise up and stand together for the change we believe in.