Illustrated Daily; 5060; New Penitentiary Facilities

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problem in corrections is that across the country, if you're running a sound system that's healthy and stable, legislators start looking to take money and use it for other things. And I think the honeymoon period is over. This legislative session is not going to hand me my budget request on a silver platter and say, we're sorry about the riot. Here, I hope this fixes it. That period is gone. It's behind us. That's the sense I get from the legislature. The Illustrated Daily, managing editor Hal Rhodes. It will be another few weeks before the first inmates are moved into this new maximum security state prison near Santa Fe. Yet, amid much fanfare this past Friday, an unlikely group of state officials and journalists,

district attorneys and judges, became the first temporary residence at this facility during an overnight stay hosted jointly by a citizen's group known as the Crossroads Commission and New Mexico's Correction Secretary, Michael Frankie. The New Mexico prison story is not

a pretty one. Nearly five years ago now, it was emblazoned in headlines around the world when in the early morning hours of February 2, 1980, inmates seized control of the old overcrowded penitentiary facility in one of the bloodiest prison riots in American history. 36 hours later when it was all over, 33 inmates were dead. 12 corrections officers were injured and the penitentiary itself damaged to the tune of nearly $10 million. Today, with the new maximum security prison about to come online, New Mexico finds itself operating one of the most expensive penal systems in the nation. Expensive corrections experts say for two reasons. On the one hand, the state now maintains nine separate prison facilities with duplications in both construction and operating costs.

On the other hand, there is that famous Durand consent decree, a federal court order which mandates the state to finance substantial improvements in its corrections operations, additional security staff, not to mention improved inmate medical and mental health services. Secretary Frankie, here we are nearly five years after that devastating prison riot, a new prison facility about to open or lock down as a case might be. And already we are being told of problems of overcrowding. I suspect you understand how it is that ordinary people find that surprising. I think the thing that catches most people and hits them the most deeply and hits them the hardest is the cost involved. We spent a lot of money in the last five years on construction and we're facing a prison

system with all these new institutions spread around the state that will be full before a governor and I leave office. And that shocks me. I assume it shocks the ordinary citizens that pay for it. What is it? To what extent is this a problem of just planning for a correction system, the prison planning process? I don't think it's necessarily a planning problem. I think that there was probably a lack of appreciation for the impact determinant sentencing was going to have. And we were lulled into that lack of appreciation because when we passed determinant sentencing we were functioning in the old institutional mode with the penitentiary being our main facility and it was jam packed and that was exercising an artificial control on judicial discretion. Judges were very reluctant to send people there. It was not an institution with a great reputation. Everyone knew it was way overcrowded. And that exercised some

restraining influence on judges sentencing decisions. We passed that determinant sentencing bill into law in 1979 and right after we passed it into law we had the riot, which for another two years exerted an artificial impact on our population curve inmate population growth. Once the riot got behind us in terms of sentencing decisions in population growth and we started to bring new institutions online with adequate cell space then determinant sentencing took hold and for the last three years we've been growing rapidly and steadily. I suspect a lot of people do not understand how it is a determinant sentencing has an impact on the size of the prison population. In your business is obvious. My business makes sense. Ordinary person wouldn't understand the connection. It's not too complicated. Under the old statute you got ten to fifty for a second degree felony. But you could be paroled after serving one third of the ten years and good time was deducted to give you parole eligibility. So conceivably you could be paroled after twenty months. Under the new statute you served nine

years period. A good time can still come off of that but that reduces it to no less in four and a half years. So you're looking at the difference between fifty four months and twenty months. And so essentially the basic length of time a person stays in prison is increased by about a third which means the numbers are going up. Are we safer at night because of determinant sentencing crime statistics show a drop in crime nationwide and in New Mexico. But most people who are experts in these areas attribute that to the fact that the baby boom generation has left the high risk age group for committing felonies not to anything else. So I don't think anyone can prove that higher rates of incarceration cut crime. So what should we make of determinant sentencing? I think determinant sentencing is good from the standpoint that it eliminated the old system where some guy might do fifty years and another guy might do two years. I think a twenty month sentence for

a second degree felony is probably not enough. I think a fifty year sentence for a second degree felony is probably too much. So getting rid of that ten to fifty was a good idea. Coupling that with the elimination of discretionary parole is what gave us the problem we have. And I don't have a problem with discretionary parole. It's very unpopular in this state but I think it got its bad reputation because it was wrapped up with the old indeterminate sentences. All right. Should we assume based upon what you have told us that so long as we have determinant sentencing we will also be in the business of building more and larger prisons to house an inmate population. I think if we don't make any changes in our criminal justice system that's true that you can have determinant sentences which doesn't offend me and you can bring back discretionary parole. And that would allow the parole board to start filtering people out of prisons selected people with records to justify it. You could bring sentencing guidelines into the equation and exert some control on judges discretion to make sure that different people in different parts of the state who have similar records and have committed similar crimes.

It gets similar sentences. That's nothing more than basic fairness. There are a lot of measures you can explore community sentencing programs community corrections as we have in New Mexico. We have sort of a pilot program in community corrections intensive probation supervision which is a very restrictive form of probation where there's such things as house restriction and daily contact with the probation officer. There are many ways to impact on the growth of institutional population without abandoning the flat sentences as long as those sentences aren't mandatory. Judge still has a discretion to suspend any or all of a sentence as long as there's not a firearm involved. What the commission has recommended is that the Emergency Release Act is only a short -term measure. It is not designed to alleviate overcrowding on

the long -term basis and in fact it can't. Secondly, it's probably designed for what we might call the worst -case scenario and that's the prisons are full. People are coming in and more prisons aren't being built and what are we going to do? Why New Mexico's growing prison population? According to the Crossroads Commission, a citizens group composed of jurists, law enforcement experts, attorneys and journalists, the reasons are three. Determinate sentencing which increases the length of time and inmate is incarcerated. Increasingly stern judicial attitudes and finally the growth in available prison capacity. I think that we are coming to a crossroads. I think that the citizens of New Mexico are going to have to either bite the bullet and raise taxes in order to afford our prisons because we're talking about $20 million a year. Every year from now on at the rate that our prison population is growing

or we're going to have to try to find some other acceptable alternatives. There are some people that there's no question about it have to be behind bars for the safety of our society. But there are some people that can be worked with through probation, through community corrections, through other programs which are being implemented through the corrections department at this time. And I think those programs have to be looked at very carefully with the non -violent offenders. Anybody who commits a violent crime needs to be behind prison. But those people who are committing worthless check crimes and larceny crimes, we need to look at those and see whether or not we can find some other alternative besides $20 to $25 ,000 a year in operation costs for each prisoner and $20 million a year for new facilities. The toll has now come due. The cost of that neglect for so many years and the cost of the legislative lack of foresight which really brought about the right to begin with. And I think that you now have to pay the piper. And they are struggling. The answer is community corrections.

The answer is to diversify the system. And the answer is to get these people out of these penitentiaries and these very costly facilities and in the community programs where they can be diverted and hopefully rehabilitated in a meaningful way. I'm Judge, I'm not this green with you. I think there ought to be an mechanism to let them out. I'm doing it in prison. I don't care if you call it community corrections. I don't care what you call it. As long as there's a mechanism. I don't care if you put parole back here. But I think that's about the most popular concept since Hitler. Maybe if the president created by these numbers is so great, the legislators will buy off on parole again. That's all the problem, promise me. But on top of that, we need to have some way to make sure that we're not getting those lightweight guys in prison. And we're getting some of them. Or those 200 and 70s, you wouldn't be there, wouldn't you? Well, it depends on who says the 272 shouldn't be there. And I don't mind if you want to keep them there, Judge. I'm just suggesting that you better be ready to fork over some money. Just the way this

penitentiary was built as a result of the riot and the recognition that the correction system had been neglected. After the riot, the legislature doubled the resources and the staff for probation and parole. And just as these institutions are now filling up, reality is catching up with probation and parole too. They have mentioned here that the net gain in these facilities is 19 in makes a month. Probation parole is increasing at double that rate. 40 clients a month, net gain. And there have been no new parole offices, probation offices for about three years. And so what that does is dilute the supervision that these people need to get in order to make sure they stay out of prison and can stay out of trouble.

I have my own view is that I think we're going to have to, among other things, take a hard look at the determinant sentencing procedure that we have in Mexico at this time. And it is bringing about more and longer sentences, which is directly impact on the number of individuals we have in our prisons. I'm not so sure, but what we're not going to have to seriously consider some type of indeterminate sentencing procedure accompanied by an effective parole program to give those questions. Those individuals who are up to date in terms of how inmates have progressed, so they can make a decision as to when an individual should be released. A judge who sentences an individual cannot really predict with a great deal of reliability, what

type of individual that person is going to be two years, three years, four years down the road. Whereas the people who work with these inmates on a daily basis can certainly do that. And I think we may have to give serious consideration to something of that nature. Well, I agree with the recommendations or some of the recommendations of the Crossroads Commission in terms of we definitely do need, I think, more basically residential treatment and more intensive probation facilities and program alternatives in New Mexico than we have now. And I think that's clear. Again, we're taking kind of a band -aid approach to the problem without really looking at the entire problem. We're saying we've got overcrowding here. Quick, let's do this to fix that problem without taking a really sort of systemic look at the entire problem. And I'm afraid that we'll find ourselves in the same position that we were in four years ago in the period following the riot

when people shouted there's a problem and ran off to fix it without really looking at all of the alternatives and all of the possible solutions. I want the people who are here to have an appreciation for where those dollars go if they're not being freddered away that they're going for staff costs that are driven by the construction of this building. When you walk through this institution and you see the kind of money that went into this construction and the electronics that are involved in the heavy steel and brass and reinforced glass, you'll understand where those dollars are going. I'd also like them to appreciate in viewing those costs for all these new facilities that we've built because we've got five now that are pod type construction. I'd like them to understand that in the context of a very negative revenue picture in New Mexico, it's questionable whether we can afford to keep growing like we have been growing. And I want them to appreciate that they must decide to go on one of those crossroads. As you well know, for at least

two or three years following the prison riot, we were told periodically that the situation at state prison remains tense, unpredictable, the great deal of apprehension that it could happen again. Could it happen again today in New Mexico? Well, I have always foreswore prognostications about disturbances in prison. We don't have the system that paved the way for the riot. We don't have inadequate staffing. We don't have inadequate training. We don't have overcrowded prisons. We don't have a lot of idle time as we did in the past. And above all, and this may be another one of those overriding features, we have a system designed and supervised and managed to treat and mate fairly to make reasonable classification and discipline decisions and to make reasonable decisions when they file grievances. We don't want to mistreat them. And I think there's a sense or an awareness of that. And one other factor that we haven't touched upon yet, we are strongly committed in making a major effort to comply with the corridor that has been in existence for five years.

But the department never really got on the ball and went after it before. That has been a continuing source of hostility and frustration to the inmates. And I think the inmates now perceive that an effort, a major effort, has been made and is still being made to comply. Well, that consent decree is certainly a hung like a sort of damacles over the head of the state of New Mexico for a long, long time now. When might we expect the state of New Mexico to be in compliance with that decree? I think that what we're looking for is substantial compliance. There's 649 requirements in the court order. We don't expect on every day of the year and every minute of the day to be meeting all 649 in nine different locations in the state. We do expect to have a system that finds the areas that get out of compliance and fixes them within a reasonable time. We expect to do that during this administration. The reason I can't say that we can do it sooner than that is because we're opening new prisons that are subject to the consent decree.

Some members at least of the state legislature are of the mind that New Mexico got locked into a raw deal with that consent decree. It was too costly. They should never have agreed to it. And that in fact some would argue it should even be renegotiated. So it was not to burden the taxpayers with all the expenses that attended. First of all, is that possible? Secondly, is it desirable? Various sections of the decree required the Department to file an action plan for getting into compliance. When I took the job 20 months ago, not one of those had been filed. You have not shown good faith to a federal judge if you have not filed plans. Showing how in the future you intend to do something you've been ordered to do. Three and a half years after they were supposed to have been filed. And you're not negotiating from a position of strength or good faith when you're in that posture. This department intends to address some of the issues in the consent decree. But, and here's the rub. Most of the stuff in the consent decree is free. Good classification, good discipline, good food services, good living conditions.

Those are things that we have to do anyway. We have to have toilets at work. And we have to have light fixtures that give a person adequate light to read. We have to have good clean food services and food service areas under state health regulations. Most of the consent decree is a function of state regulations or federal regulations. American Correctional Association standards, fire code, safety code, plumbing code. Most of it was taken from other sources. So the theory what you're saying, the theory that red negotiation would save a lot of money is not necessarily a valid one. It's a crock. The principal cost in running this system is staff. And the principal staff cost is custody staff. The standard in the consent decree is safety. The court order says we will have adequate security staff to ensure safety in the institutions. No one can argue that we should have a lower standard. And yet that's our principal cost area. Now I will say right now that I believe that there are some medical and mental health costs driven by the court order that are probably not reasonable. And we're trying

to muster information so that we can sit down at the table and negotiate on those. There's a problem. I've been a problem when you talk about penal systems, correctional systems, and generally general. Never really had a constituency, institutions like this, nor their population. They're the forgotten people, the forgotten institutions, out of sight, out of mind, which is probably most people wanted I suspect. You're going to have a lot of people surprised at what you've just told us here that they have to face higher bills. Without a constituency, the politics of it all seems to me must be very difficult. I think the politics is insurmountable, but for the fact that we did have the 1980 disaster. And because of that disaster, and for no other reason, I assure you, money was cut loose. And a lot of catch -up work was done in terms of salaries for correctional officers and construction of new bed space. The problem in corrections is that across the country,

if you're running a sound system that's healthy and stable, legislators start looking to take money and use it for other things. And I think the honeymoon period is over. This legislative session is not going to hand me my budget request on a silver platter and say, we're sorry about the riot. Here, I hope this fixes it. That period is gone. It's behind us. That's the sense I gave from the legislature. Here's an interesting point. No where, no time, no how. In 1981 or 1982, when the legislature was considering this $120 million construction explosion, did anybody ask for, prepare, submit, recommend, or consider operating cost estimates of any of the five new facilities? Does that blow you away? I just can't believe it. Of course, most of the legislators that were elected this last time ran on the idea that we would not raise taxes. So that's a problem. When we look

at it, as far as a new legislator, I'm brand new. And of course, my expertise I look at as being financial areas and things, this nature, education. But when it comes down to the correction system, very few legislators really have the expertise and knowledge to be able to deal and understand the funding complexities that would be involved. I would kind of like to know if I'm going to pay the bill for driving this car that I'm paying somewhere to bill, how many miles per gallon it gets? How much oil it burns? We didn't ask for that. At the time this facility was designed and billed, that probably the primary consideration was not cost. This is a lovely facility. It's a Cadillac, a country club, whatever you want to call it. Now we've got this big spread out system with small prisons, and it costs a ton of money to run, and everybody's saying, wow. The challenge is going to be to try to seek the equilibrium to decide where that line is between how much more can we afford, because we can't afford some

more, and how much are we going to have to do with some other alternative like community corrections? I think the most efficient system, the system that rehabilitates people, the system that keeps the real criminals off the streets, the system that gives people an opportunity to live and to develop a better life, is also the most economic system. I think in the long run, the money you spend for real programs and for intelligent corrections policy comes back to you in so many ways, in the productive lives of the people you save and salvage. So I don't think that we've really begun yet to debate in this state, the true alternatives, the real community corrections programs, the real cost of how to deal differently with our problems. My hope is that the legislature will grapple with this problem and face it. Not doing anything is not a solution. If nothing is done, possibly the courts will simply take over our correction system, and they'll run it, and the state will pay the bills. Some of the officials, political types, notably observed to me as we were

getting ready to conduct this conversation, that as long as you have all these news people at hand in residence, why don't you just keep them and preserve the public peace? It's interesting, but the news people have been suggesting to me that as long as we have all these legislators at hand, maybe we should keep them and help preserve the public peace. Windows are all broken. You can see some of those panels were taken for reusing some rails, but other than that, everything burned in here. And so, nearly five years after

that bloody prison riot, which left New Mexicans gripped of nothing less than collective shock over the death and destruction it occasioned, New Mexico prepares to inaugurate its new state prison, amid indications already of overcrowding. A peculiar story corrections, a growth industry that nobody wants. Thanks for joining us. I'm Hal Rhodes. See you later. You

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