People who are incarcerated faced a lack of resources when it came to access to health care and PPE during the pandemic. A couple of bills before lawmakers in New Mexico during the last legislative session could have addressed those problems, but prison reform has been placed on the back-burner for another year. KUNM’s Taylor Velazquez spoke with Lalita Moskowitz from the ACLU of New Mexico about the dangerous conditions inside private prisons.
LALITA MOSKOWITZ: You know, it's always a little bit difficult to get information about what's going on in private prisons and prisons in general in our state. But what we do know, certainly, is that there have been serious abuses in the private prisons in our state, in the immigration detention facilities, which most of the private facilities in our state house immigrant detainees, folks in county jails. And we've seen massive outbreaks of COVID-19 in pretty much every one of those facilities due to overcrowding, failure to provide people with hygiene supplies, failure of officers to wear masks—all of those kinds of things.
KUNM: Why is it so important for people to take private prison reform seriously?
MOSKOWITZ: When a corporation is making a profit off of locking people up, that's going to incentivize additional restrictions that lock more people up. It also incentivizes being able to house more people for less costs, so cost-cutting in various places. And so, anytime we're seeing corporations make a profit off of incarceration, that's super concerning.
House Bill 40 known as the Private Detention Facility Moratorium Act, would bar private companies from operating and managing prisons, and it would also stop existing contracts from being extended. How would this work? Would private prisons slowly start to fade away? Or would they still exist at some level?
MOSKOWITZ: New Mexico is a state with the highest number of privately operated facilities in the country, many of them immigrant detention facilities that are often the same building and the same company as a county jail. And then we have a couple of private prisons that are run for state criminal detainees. My understanding of the way that it would work is not extending existing contracts and then not having new contracts, but allowing for time to transition. But ideally you would have a circumstance where we would be incarcerating fewer people in the first place, which would make it easier to transition out of these contracts.
From your legal perspective, why do you think this measure didn't get passed before the session ended this year? Are there details that needed to be worked out? Or is it more about big ideological disagreements?
MOSKOWITZ: Legislators, many of whom very much in good faith were worried about some of the details of the bill, of the nitty-gritty of everything. But of course, there's also corporations that have the ability to lobby to stay in business. There are really harmful narratives in our state, and we have this sort of awful tough-on-crime kind of narrative that we know doesn't work and doesn't make our community safer. But it does make it more challenging to pass legislation like this that would address some of the abuses in our detention facilities and then some of the other things that happened to folks behind bars.
New Mexico counties, in opposition to this bill, raise concerns that it would violate the constitutional provision “prohibiting impairment of contracts.” Is this a legitimate constitutional challenge?
MOSKOWITZ: Because the measure was focused on the state and who the state decides to contract with, the measure as I understand it would have also made the operation of a private prison in the state illegal. So, that even immigrant detention facilities would not be able to operate in that way. Making something unlawful like that is certainly within the power of the state.
Do private prisons violate the constitutional rights of incarcerated people, like the protection against cruel and unusual punishment?
MOSKOWITZ: Absolutely. Private prisons, we have seen a consistent pattern. And in immigrant detention facilities, you see in things like medical neglect and sexual abuse, retaliation in the form of overuse of solitary confinement, in particular that are run by corporations. And the government has obligation under the Constitution to make sure that that's not happening, regardless of who's running the facility