Columns appear here a week after they're sent to newspaper subscribers.

© 2019 NEW MEXICO NEWS SERVICES     9/2/19
Settling Duran consent decree is a step forward for state corrections
By Sherry Robinson
All She Wrote
            Certain lawsuits span the careers of lawyers, politicians and journalists and tower over everything else that happens for decades. The Duran consent decree is one. It lasted so long that its namesake died before the case reached an end. People in my line of work could hardly write about corrections without referring to Duran.
            Last week, when the governor announced a preliminary agreement, it was a major turning point for state corrections. A federal magistrate judge signed off on the state’s promise to protect inmates’ constitutional rights, treat them humanely, and improve living conditions. The state Corrections Department will have some flexibility in developing new policies.
            The Duran consent decree had its genesis in 1977 when Jerry Apodaca was governor. An inmate named Dwight Duran submitted to the court his 99-page, hand-written brief after his friend died of brutal, cruel treatment in the Penitentiary of New Mexico.
            The friend asked for help with heroin withdrawal at the prison hospital and was instead thrown into “the hole,” a windowless cell with only a drain-hole in the middle, and beaten. Released from segregation a month later, he got weaker. Duran and others pleaded for help, only to be threatened with the hole themselves. The sick man died of cancer, and Duran wrote his landmark lawsuit from the hole and managed to have it smuggled out.
            Duran’s class-action lawsuit on behalf of prisoners, Duran v. Apodaca, accused the state of operating a prison under cruel and unusual conditions. The ACLU joined the suit in 1978. The consent decree, a stipulated agreement, emerged in 1979, but not much happened until after the penitentiary riot in 1980. It’s been called, without exaggeration, the bloodiest prison riot in American history.
            We know all this because journalist Roger Morris interviewed inmates and former inmates and then wrote a chilling exposé and a book, “The Devil's Butcher Shop: The New Mexico Prison Uprising.”
            Grand jury reports for 10 years had raised issues with overcrowding, mismanagement, untrained prison guards, and under-staffing, but legislators ignored them until the prison riot exploded into national attention. Two days of savagery put the horror into the word “horrific,” as 33 inmates died, and Old Main was left a shambles.
            My own small role in the event was to interview the frightened families of inmates and listen to ex-cons describe hellish conditions inside the pen.
          “I’m not asking for pity,” one man said, “but I spent six and a-half years in the penitentiary, and now I’m back on the streets with you. Ninety-eight percent of all convicts get out of prison and go back into society with some strong feelings about their prison experience.”
            It’s a comment I never forgot. If you’ve read it in a previous column or two, that’s OK. It bears repeating.
            Post-riot, the Duran consent decree launched what Morris called the "the most sweeping reform ever proposed for any single prison in American history." The decree mandated improvement in 14 areas that covered everything from food and visitation to living conditions and medical care.
          For years, a special master has monitored compliance.
          The new settlement requires the Corrections Department to transfer at least 284 inmates from dormitories and double-bunked cells to facilities with adequate space. Every inmate housed in a dormitory or multiple occupancy room must have at least 50 square feet of combined living and sleeping space. The state must increase staffing and re-evaluate physical fitness needs for various staff positions. After six months of compliance, the state can ask to be relieved of court oversight.
          This preliminary agreement is a step forward. The treatment approach lawmakers embraced this year is another step forward. But we still have solitary confinement. One step back.

Sherry Robinson photo

© 2019 NEW MEXICO NEWS SERVICES                                   

Merilee Dannemann/Triple Spaced Again  9-2-19
Governor, remember workers' compensation!
By Merilee Dannemann
Triple Spaced Again
When the Lujan Grisham administration announced that all the cabinet positions had been filled, some of us were quite surprised. What about the Worker’s Compensation Administration?
The WCA has had no director since the previous director resigned last December. Deputy director Verily Jones has been acting director ever since. That’s a pretty long stint in an interim position.
By the time you read this, I hope a new director has been appointed. At an August 14 meeting of the Workers' Compensation Advisory Council, it was announced that candidates for the position had been interviewed, but there was no further word. At least the governor had appointed new members to the council.
The WCA has always been a stepchild in state government. Most people, regrettably including legislators, don’t know what it’s for. When originally created, the agency was “administratively attached” to the then-Department of Labor, so it was (mistakenly) viewed as a division of that department.
It’s also confusing that the head of the agency is called “director,” not “secretary,” and so has not always been treated as a cabinet member.
Not having full authority, Jones has been unable to fill positions requiring a director’s appointment, such as the agency’s general counsel. This has limited the agency’s functioning.
The administration is aware of the WCA. Staff members got their picture taken with the governor at a “Constituent Day” early in August. And somehow a workers' compensation judge’s reappointment was accomplished, announced August 23. The term of Judge Leonard Padilla was to expire at the end of August. Since Jones did not have authority to reappoint him, we presume there was approval from higher up.
The agency’s reason for existing is that workers’ compensation is an intricate system involving several competing interests. Long experience shows the system has to be regulated to work effectively and fairly.
Workers’ comp covers the cases of workers injured at work, paying for medical care and compensation benefits. Almost all employers are required to have workers’ comp insurance as a condition of staying in business.
The WCA is partly an administrative law court that adjudicates workers' comp disputes, including mandatory mediation to reduce formal litigation.
The agency’s regulatory functions include enforcing the insurance coverage requirement, maintaining a fee schedule for healthcare services, providing workplace safety services, an ombudsman program to answer the questions of confused injured workers, and other tasks that only make sense if you understand the system, which most people don’t.
No wonder the Legislature has made a habit of skimming off some the agency’s money every year.
The WCA is funded by a fee, paid by employers and workers: $2 deducted from paychecks once per quarter, matched by $2.30 from the employer, set aside in a earmarked fund. The legislative intent was that revenue will increase as the workforce grows, so the agency can expand to respond to the needs of employers and workers -- for example, by employing more ombudsmen or regulatory compliance staff.
Revenue has grown from about $7 million 20 years ago to about $11 million currently. But in the annual budget process, the Legislature has never let the agency spend all the money. So a “surplus” was always left, and, year after year, the Legislature moved the “surplus” somewhere else. In the last few years, it’s been about $1.5 million annually to the department now called Workforce Solutions, formerly Labor.
The newly reconstituted Advisory Council has adopted a formal resolution asking the Legislature to stop this.
I’ve always thought that if the fee generates more money than the Legislature thinks the agency needs, the Legislature should reduce the fee, rather than misleading the public and giving the “surplus” to somebody else. But far better would be for legislators to understand what this agency does and let it be funded properly to do its job.
Contact Merilee Dannemann through