This Settlement Agreement (“Agreement”) is between the American Civil Liberties Union of New Mexico, the New Mexico Women’s Justice Project, and Representative Mimi Stewart on the one hand (hereinafter collectively “Petitioners”); and Secretary of the New Mexico Corrections Department Joe R. Williams (“Secretary”) and the Corrections Population Control Commission (“Commission”) on the other hand (hereinafter collectively “Respondents”); hereinafter the Petitioners and the Respondents are collectively referred to as the “Parties”.

Recitals

1. The Petitioners and Respondents are parties in a civil action in the First Judicial District Court of New Mexico, styled State of New Mexico, ex rel., American Civil Liberties Union of New Mexico, New Mexico Women’s Project, and Representative Mimi Stewart v. Joe. R. Williams, in his official capacity as Secretary of the New Mexico Corrections Department, and the Corrections Population Control Commission, No. D-0101-CV-2006-00727 (“the Litigation”).

2. The Parties have reached agreement on the claims brought and which could have been brought in the Litigation and the Parties wish to completely resolve all differences between them.

Agreement

THE PARTIES DO HEREBY AGREE:

1. The Secretary will immediately convene the Corrections Population Control Commission by August 15, 2006.

2. At the aforesaid meeting of the Corrections Population Control Commission, the New Mexico Corrections Department will provide up-to-date statistics on: a) the rated capacity of each New Mexico women’s prison facility; b) the population of each New Mexico women’s prison facility; c) the demographics of the population within the New Mexico women’s prison facilities (i.e., nature of underlying convictions, age, length of sentence, etc.); d) the number of offenders in each New Mexico women’s prison facility who are within one-hundred and eighty days of release; e) the projected population growth of each New Mexico women’s prison facility over the next year. At this meeting, the New Mexico Corrections Department will also provide written definitions and explanation as to the method of calculating rated capacity, population, and availability. Unless otherwise required by the Corrections Population Control Act, NMSA 1978, §§ 33-2A-1 to 33-2A-8 (2002), the Corrections Department and its Secretary will not be required, as a part of this settlement agreement, to present a list of names (or “cases”) of non-violent offenders who are within one-hundred and eighty days of release. However, if the Corrections Population Control Commission requests such a list of names or cases, the New Mexico Corrections Department shall provide the requested list and/or cases at the next meeting of the Corrections Population Control Commission. If the Commission requests such a list, Petitioners agree not to offer an opinion that the Commission can consider early release of female inmates due to being overcrowded at the time of the filing of their Petition, unless their opinion on this issue is requested by the Commission.

3. Petitioners will each be permitted to send a representative and to offer a presentation to the Corrections Population Control Commission meeting convened before August 15, 2006.

4. The Secretary will convene the Corrections Population Control Commission a second time before November 1, 2006. At this second meeting, the New Mexico Corrections Department will provide up-to-date statistics on: a) the rated capacity of each New Mexico prison facility (housing either men or women or both), b) the population of each New Mexico prison facility; c) the demographics of the population within the New Mexico prison facilities (i.e., nature of underlying convictions, age, length of sentence, etc.), d) the number of non-violent offenders in each New Mexico prison facility who are within one-hundred and eighty days of release, and e) the projected population growth of each New Mexico prison facility over the next year. Again, unless otherwise required by the Corrections Population Control Act or requested by the Commission, the Corrections Department will not be required, as a part of this settlement agreement, to present a list of names (or “cases”) of non-violent offenders who are within one-hundred and eighty days of release.

5. At either the first or second meeting of the Corrections Population Control Commission (as set forth above), the Corrections Secretary shall lead a discussion regarding the impact of possible changes in the classification system on the inmate population and expanding incarceration alternatives.

6. After the second meeting, the Secretary will convene the Corrections Population Control Commission a minimum of one additional time before June 30, 2007, but after the 2007 Regular Legislative Session. At that meeting, the New Mexico Corrections Department will provide up-to-date statistics on: a) the rated capacity of each New Mexico prison facility (housing either men or women or both), b) the population of each New Mexico prison facility; c) the demographics of the population within the New Mexico prison facilities (i.e., nature of underlying convictions, age, length of sentence, etc.), and d) the number of non-violent offenders in each New Mexico prison facility who are within one-hundred and eighty days of release. Again, unless otherwise required by the Corrections Population Control Act or requested by the Commission, the Corrections Department and its Secretary will not be required, as a part of this settlement agreement, to present a list of names (or “cases”) of non-violent offenders who are within one-hundred and eighty days of release.

7. By the first day of every month from the date of execution of this agreement until June 30, 2007, the New Mexico Corrections Department will provide Petitioners with up-to-date statistics on: a) the rated capacity of each New Mexico prison facility (housing either men or women or both), b) the population of each New Mexico prison facility; c) the demographics of the population within the New Mexico prison facilities (i.e., nature of underlying convictions, age, length of sentence, etc.), and d) the number of non-violent offenders in each New Mexico prison facility who are within one-hundred and eighty days of release.

8. The meetings set forth above in paragraphs 2-6 are not intended to and do not abrogate the Secretary’s obligation to convene the Corrections Population Control Commission when mandated by the Corrections Population Control Act.

9. Until June 30, 2007, in addition to the meetings set forth above in paragraphs 2-6 and any other meetings convened pursuant to the Corrections Population Control Act, the Secretary agrees to convene the Corrections Population Control Commission within ten days in the event that any single New Mexico women’s prison facility is overcrowded by five inmates beyond rated capacity for more than a ten-day period.

10. At first meeting referenced above, the Secretary shall lead the Corrections Population Control Commission in a discussion regarding how to designate “non-violent offenders” pursuant to NMSA 1978, § 33-2A-3(D)4. The Secretary agrees that the New Mexico Corrections Department will provide a complete list of offenses which may be utilized by the Commission when defining “non-violent” for purposes of the Corrections Population Control Act or this Agreement.

11. The Secretary will agree that until June 30, 2007, the New Mexico Corrections Department will not include unopened prison facilities in its aggregated calculation of the rated capacity of New Mexico prison facilities. This provision is not intended to imply that Petitioners agree that the Corrections Population Control Act permits the counting of beds in unopened facilities for purposes of rated capacity.

12. By June 30, 2007, the Corrections Population Control Commission shall study, develop and recommend policies and mechanisms designed to manage the growth of the inmate population by:
a. reviewing corrections department models to forecast projected growth in the inmate population;
b. providing information concerning impacts on the inmate population caused by changes in sentencing policies and law enforcement policies;
c. analyzing the need for future construction of additional correctional facilities;
d. if necessary, preparing proposed legislation to further implementation of its policy recommendations; and
e. considering all of its recommendations in light of public safety concerns.

13. Pursuant to NMSA 1978, § 33-2A-5(2002), the commission shall submit an annual report of its activities and legislative proposals to the interim legislative committee with jurisdiction over corrections issues. The report shall be filed with the interim legislative committee no later than November 1, 2006.

14. Petitioners will submit a press release for approval by the Secretary as a part of this settlement agreement. Petitioners will submit said release to counsel for the Secretary by 12:00 p.m. Wednesday, July 19, 2006. Petitioners agree not to hold a press conference regarding this matter.

15. Dismissal: Petitioners, through counsel of record, will, upon execution of this Agreement, sign and file in the First Judicial District Court of New Mexico a stipulation of dismissal of the Litigation with prejudice. Respondents through counsel of record, will, upon execution of this Agreement, dismiss their request for stay and their appeal, each filed in to the New Mexico Court of Appeals in this matter.

16. Costs and Attorney’s Fees: Except as provided herein, the Parties will each bear their own costs and attorney’s fees arising out of the Litigation or in any way incurred in connection with the subject matter of the Litigation.

18. Authority and Nonassignment: The Parties warrant that each has authority to enter into this Agreement, and that neither has transferred to any other person or entity any claim, action, demand, or cause of action released by this Agreement.

19. Advice of Counsel: The Parties each warrant and represent that they have individually consulted with legal counsel of their choice regarding this Agreement. Neither Party is relying on the legal advice of the other in signing this agreement.

20. Nonreliance: The Parties understand and agree that they assume all risk that the facts or law may be, or become, different than the facts or law as believed by the Parties at the time they execute this agreement. The Parties acknowledge that their adversary relationship precludes any affirmative obligation of disclosure, and expressly disclaim all reliance upon information supplied or concealed by the adverse party or his counsel in connection with the negotiation and/or execution of the Agreement.

21. Additional Warranty and Acknowledgment: Each of the Parties warrants and represents that he has been offered no promise or inducement except as expressly provided in this Agreement, and that this Agreement is not in violation of or in conflict with any other agreement of any of the Parties.

22. Survival of Covenants and Warranties: All covenants and warranties contained in this Agreement are contractual, not mere recital, and shall survive the closing of this Agreement.

23. Miscellaneous:

a. Governing Law. This Agreement shall be governed by the internal laws of the State of New Mexico, irrespective of the choice of law rules of any jurisdiction.

c. Severability. In the event that a court of competent jurisdiction enters a final judgment holding invalid any provision of this Agreement, the remainder of this Agreement shall be fully enforceable.

d. Integration. This Agreement constitutes the entire agreement of the Undersigned and a complete merger of prior negotiations and agreements. This Agreement shall not be modified except in a writing signed by all the undersigned.

e. Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement, except by a writing signed by the party charged with the waiver or estoppel. No waiver of any breach of this Agreement shall be deemed a waiver of any later breach of the same provision or any other provision of this Agreement.

f. Headings. Headings are intended solely as a convenience and shall not control the meaning or interpretation of any provision of this Agreement.

g. Gender and Number. Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The singular shall include the plural, and the plural shall include the singular.

h. Other Agreements. Each of the Parties shall promptly execute, acknowledge and deliver any additional document or agreement that another Parties reasonably believes is necessary to carry out the purpose or effect of this Agreement.

i. Burden of Proof. Any of the Parties contesting the validity or enforceability of any term of this Agreement shall be required to prove by clear and convincing evidence fraud, concealment, failure to disclose material information, unconscionability, misrepresentation or mistake of fact or law.

j. Construction. The Parties acknowledge that they and their respective counsel have reviewed this Agreement in its entirety and have had a full and fair opportunity to negotiate its terms. Each party thereof waives all applicable rules of construction that any provision of this Agreement should be construed against its drafter, and agrees that all provisions of the Agreement shall be construed as a whole, according to the fair meaning of the language used.

k. Counterparts and Faxes: The Parties agree that this Agreement may be executed in counterparts, or by copies transmitted by fax, all of which shall be given the same force and effect as the original.

I have read and understand and agree to the foregoing Agreement of Release of All Claims.

AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO

By______________________________

Its ______________________________
____________
Date

NEW MEXICO WOMEN’S JUSTICE PROJECT

By_______________________________

Its________________________________

____________
Date

REPRESENTATIVE MIMI STEWART

By______________________________

____________
Date

JOE R. WILLIAMS, AS SECRETARY OF THE NEW MEXICO CORRECTIONS DEPARTMENT and AS CHAIRMAN OF THE COMMISSION

By_______________________________

___________
Date

Contact: Diane Wood, 505-379-9470

ALBUQUERQUE: Prominent authors Nell Bernstein and Renny Golden will appear on a panel speaking to failures in the criminal justice system with youth from PB& J Family Services, Inc. in Albuquerque on Wednesday, April 19 from 6 – 8 p.m. for a book signing and discussion at the UNM Law School in room 2402.

Award winning journalist Nell Bernstein, author of All Alone in the World: Children of the Incarcerated, will have signed copies of her book available for $25.95. This recent work reveals through the words of those intimately involved, how children and parents are torn apart by the American penal system, thereby failing millions of innocent children and ultimately creating an endless cycle of imprisonment. Bernstein notes that 2.4 million American children have a mother or father behind bars. Bernstein is an award winning journalist and former Soros Justice Media Fellow at the Open Society Institute of New York.

Professor Renny Golden is a criminologist, published poet, and activist for social rights in El Salvador and Guatemala. Golden is the author of War on the Family: Mothers in Prison and the Children They Leave Behind.

This event is organized by, the New Mexico Women’s Justice Project, Inc. (NMWJP) and PB&J Family Services, Inc. Co-sponsors include the Women’s Agenda, NM Voices for Children, Drug Policy Alliance- NM, New Mexico Coalition to Repeal the Death Penalty, NM Criminal Defense Lawyers Association; Southwest Women’s Law Center; American Civil Liberties Union of New Mexico (ACLU-NM) and Coalition for Justice.

NMWJP aims to achieve justice and fairness for New Mexico women, children, and their families impacted by the criminal justice, delinquency, and abuse/neglect systems. PB& J Family Services, Inc. is a non-profit social services agency that serves families with significant challenges, including those with incarcerated parents.

The estimated total numbers of women incarcerated in NM on a given day is 1150 to 1200 and most are incarcerated for non-violent crimes - property and drug offenses. The Corrections Department is projecting a female inmate population growth of 3.3% over the next ten years. Over 85% of incarcerated women are mothers, which impacts several thousand children in New Mexico.

####

STATE OF NEW MEXICO, ex rel.
AMERICAN CIVIL LIBERTIES UNION
OF NEW MEXICO, NEW MEXICO WOMEN’S
JUSTICE PROJECT, and, REPRESENTATIVE
MIMI STEWART,

Petitioners, Case No.

vs.

JOE R. WILLIAMS, in his official capacity
as Secretary of the New Mexico Corrections
Department and the CORRECTIONS
POPULATION CONTROL COMMISSION,

Respondents.

VERIFIED PETITION FOR WRIT OF MANDAMUS

COMES NOW, Petitioners, American Civil Liberties Union of New Mexico, New Mexico Women’s Justice Project, and Representative Mimi Stewart, through the undersigned counsel, and file this petition for writ of mandamus pursuant to NMSA 1978, §§ 44-2-1 to 44-2-14 (1953). As alleged more particularly below, Petitioners allege that Respondents have failed to comply with the Corrections Population Control Act, NMSA 1978, §§ 33-2A-1 to 33-2A-8 (2002), by failing to convene the Corrections Population Control Commission, as well as other required measures under the Act, when the New Mexico Women’s Correctional Facility in Grants, NM, exceeded its inmate capacity for the time period established by the Act.

JURISDICTION AND VENUE

1. Jurisdiction is proper pursuant to Article VI, § 13 of the New Mexico Constitution.
2. The unlawful acts alleged herein were committed within Santa Fe and Cibola Counties, in New Mexico.
3. The acts complained of arise out of Respondents’ failure to comply with the Corrections Population Control Act. As this case involves a suit against state officers, venue of the Court is appropriate pursuant to NMSA 1978, § 38-3-1 (1988).
PARTIES
4. Petitioner American Civil Liberties Union of New Mexico (hereinafter “the ACLU”) is a non-profit corporation located in Albuquerque, New Mexico.
5. Petitioner American Civil Liberties Union of New Mexico is a non-profit organization with standing to vindicate the public interest in matters of great public interest and importance.
6. Petitioner American Civil Liberties Union of New Mexico has members who are affected by the Respondents’ failure to convene the Corrections Population Control Act, NMSA 1978, §§ 33-2A-1 to 33-2A-8 (2002), and who have incurred a concrete, actual injury as a result of Respondents’ violation of the Act.

7. Petitioner New Mexico Women’s Justice Project is a non-profit corporation which advocates on behalf of incarcerated women and their children.
8. Petitioner New Mexico Women’s Justice Project has standing to bring this action on behalf of those for whom they advocate and to vindicate the public interest in matters of great public interest and importance.
9. Petitioner Mimi Stewart is a resident of Bernalillo County and a State Representative for the district in which she lives.
10. As a legislator, Petitioner Stewart has standing to vindicate the public interest in this matter of great public interest and importance.
11. As required by NMSA § 44-2-5 (1953), Petitioners are beneficially interested persons in the issues of this case.
12. Defendant Joe R. Williams is the Secretary of the New Mexico Corrections Department and is sued in his official capacity.
13. Defendant Corrections Population Control Commission is an entity created under the Corrections Population Control Act, NMSA 1978, § 33-2A-4 (2002).
14. The New Mexico Women’s Correctional Facility (hereinafter “NMWCF”), located in Grants, New Mexico, is a privately operated prison run by the Corrections Corporation of America (hereinafter “CCA”).

15. Under the Correction Population Control Act, a facilities’ rated capacity is defined as “the actual general population bed space, included only individual calls and areas designed for the long-term housing of inmates.”
16. The NMWCF has a rated capacity of 597 inmates.
17. Upon information and belief, the current inmate population is approximately 660 inmates, which is in excess of the rated capacity for the facility.
18. Upon information and belief, the facility has been in excess of one hundred percent of its rated capacity for over 60 days.
19. According to the Corrections Population Control Act, NMSA 1978, §§ 33-2A-1 to 33-2A-8 (2002), if the inmate population of the NMWCF “exceeds one hundred percent of rated capacity for a period of thirty consecutive days,” the following steps shall be taken:
A. the corrections department shall engage in all lawful and professionally appropriate efforts to reduce the inmate population to one hundred percent of rated capacity;
B. if the inmate population is still in excess of one hundred percent of rated capacity after sixty days, the secretary of corrections shall notify the commission. Included in the notification shall be a list of nonviolent offenders who are within one hundred eighty days of their projected release date;
C. the commission shall convene within ten days to consider the release of nonviolent offenders on the list provided by the secretary of corrections. The commission shall also discuss with the corrections department the impact on the inmate population of possible changes in the classification system and expanding incarceration alternatives;
D. for nonviolent offenders approved by the commission for release, the commission shall grant emergency release credits in ten-day increments that will be applied to the sentences being served by the nonviolent offenders. The commission shall order release of the appropriate number of nonviolent offenders to reduce the inmate population.

NMSA 1978, § 33-2A-6(A)-(D) (2002).

20. Upon information and belief, the New Mexico Corrections Department and the Corrections Population Control Commission have taken none of the required steps listed in NMSA 1978, § 33-2A-6(A)-(D) (2002).
21. The failure of Respondents to comply with NMSA § 33-2A-6(A)-(D)(2002) poses a threat to the essential nature of state government guaranteed to New Mexico citines and affects in a fundamental way the liberties of the people of New Mexico.
22. Pursuant to the Corrections Population Control Act, NMSA 1978, § 33-2A-6 (2002), NMWCF exceeds its rated capacity and the Corrections Population Control Commission should be convened to take the required steps under the Act.
23. When the inmate population of the NMWCF exceeds one hundred percent of its rated capacity for a period of time set forth in the Corrections Population Control Act, NMSA 1978, § 33-2A-6 (2002), Respondents have a mandatory non-discretionary duty to follow the statutory requirements of the Act.
24. Respondents have breached this duty by taking none of the required actions under the Corrections Population Control Act.
25. The issues raised herein constitute issues of great public interest and importance.

26. Failure to follow the provisions of the New Mexico Corrections Population Control Act and take appropriate action when inmate population levels exceeds its rated capacity poses a clear threat to the essential nature of state government guaranteed to New Mexico citizens under the New Mexico Constitution.
27. The continued overcrowding at New Mexico Corrections Facility poses severe health and safety risks for those incarcerated at the facility. Inmates are being housed in public community areas not designed for long-term housing of inmates. Many inmates have no private space and tensions amount inmates has increase with some fights resulting. Furthermore, the plumbing system is unable to handle the increased population backup into the living areas is occurring.
28. Petitioners have no plain, speedy and adequate remedy in the ordinary course of law.
WHEREFORE, Petitioners pray that the Court:

A. Issue a Writ of Mandamus ordering Respondents to comply with their mandatory, non-discretionary duty to follow the statutory requirements of the Corrections Population Control Act, as enumerated in NMSA 1978, § 33-2A-6(A)-(D) (2002);
B. Award Petitioners their costs and disbursements pursuant to NMSA § 44-2-12 (1978); and,
C. Such other and further relief as the Court deems just and proper.

Respectfully Submitted,

SANDERS & WESTBROOK, P.C.

By:_________________________
Maureen A. Sanders
Sanders & Westbrook, P.C.
Cooperating Attorney and
Co-Legal Director for the New Mexico
Civil Liberties Foundation
102 Granite Ave., NW
Albuquerque, NM 87102
(505) 243-2243

George Bach
Staff Attorney
ACLU of New Mexico
P.O. Box 80915
Albuquerque, NM 87198
(505) 266-4622 ext. 7

Attorneys for Petitioners

FOR IMMEDIATE RELEASE:
Wednesday, April 5th, 2006 CONTACT:

Peter Simonson, Executive Director, ACLU of New Mexico at 505-266-5915 ext. 1002
Maureen Sanders, ACLU-NM Legal Co-Director, 980-8889

Santa Fe—Attorneys for the American Civil Liberties Union (ACLU) of New Mexico filed legal papers Tuesday asking a state court to force NM Corrections Secretary Joe Williams to relieve overcrowding in the New Mexico Women’s Correctional Facility in Grants. According to the ACLU, inmates are being housed in public communal areas that are not designed for long-term custody, causing increased tensions and fighting among inmates and the backup of sewage into living areas. NM Representative Mimi Stewart and the New Mexico Women’s Justice Project have joined the ACLU in the lawsuit.

“We gave the Corrections Department every opportunity to fix the situation and it failed to relieve the overcrowding,” said ACLU executive director Peter Simonson. “The current conditions seriously threaten the health and safety of the inmates and of the staff. If it takes a court order to force the DOC to resolve the problem, then so be it.”

Specifically, the ACLU is demanding that the Department of Corrections comply with a state law called the Corrections Population Control Act, passed by the NM legislature in 2002. When the inmate population of a correctional facility “exceeds one hundred percent of rated capacity” for a period of sixty consecutive days, the law requires the Corrections Secretary to notify a special legislatively-created commission and provide it with a list of nonviolent offenders who are within one hundred eighty days of their projected release date. The Commission is required to approve people on this list for emergency release to relieve population pressures within the facility.

ACLU legal co-director Maureen Sanders said, “Our records show that the population at the women’s prison has exceeded the six-hundred-person capacity by sixty inmates for more than sixty days. The Secretary has a legal obligation to convene the commission, or he is short-circuiting the wishes of the legislature. The legislature acted responsibly in addressing the overpopulation problem and the safety problems that result by requiring that nonviolent offenders be released. As a society we have a responsibility to ensure that our inmates are housed in safe facilities.”

The ACLU expects that the court will set a hearing within the next ten days.

###

For the past generation, state and federal crime control policies have been based on the belief that law enforcement can solve the problem; more police, harsher sentencing laws, greater use of the death penalty. But today, with an unprecedented number of people behind bars, we are no safer than before. We are, however, much less free.

Alvin Bronstein is the founder and Director Emeritus of the nationally-renowned ACLU National Prison Project and a U.S. Board Member for Penal Reform International. Bronstein is an expert on prison reform, international corrections, and repeal of the death penalty.

Bronstein wrote a guest editorial for the August 2005 publication Corrections Today entitled “Incarceration as a Failed Policy”. “The point is not how new, modern or well equipped prisons are, but rather the fact that incarceration itself is, in my opinion, a complete failure”, said Bronstein.

The rights guaranteed to criminal suspects, defendants, offenders and prisoners were not included in the Bill of Rights for the benefit of criminals. They are fundamental political rights that protect all Americans from governmental abuse of power. These rights are found in the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. They include the guarantee against unreasonable search and seizure, the right to reasonable bail, the right to due process of law and the right to be free from cruel and unusual treatment. This “bundle of rights” is indispensable to a free society.

Event Co-sponsors included: the New Mexico Criminal Defense Lawyers Association, the New Mexico CURE/Faces, the New Mexico Women’s Justice Project, the New Mexico Coalition to Repeal the Death Penalty, the Drug Policy Alliance New Mexico, the Santa Fe NAACP, and the ACLU Northern New Mexico Chapter.