People complain all the time to Dr. Janet Arrowsmith about the health care they can or can’t receive in the free world. But she says people incarcerated in New Mexico’s prisons and jails are going through something exponentially worse.
Arrowsmith, a public health physician and retired internal medicine clinician, has not directly examined patients in the prisons and jails but reviewed accounts from Parrish Collins, a civil rights attorney who filed around 50 suits since February 2018 against the state’s prisons and jails, and their medical contractors.
“These are real atrocities committed against these people who have no choice,” she said.
It would almost be comforting to think that these are just isolated incidents caused by a few bad apples, Arrowsmith said.
“I’m aware of just too many instances in our prison population where the lack of care has resulted in devastating consequences, including death, among people whose clinical problems were initially treatable,” she said.
Collins and Rep. Dayan Hochman-Vigil (D-Bernalillo) are preparing a legislative proposal to reform grievances, appeal rights, and fair hearings for people seeking medical attention while incarcerated in New Mexico prisons and jails.
Arrowsmith has been writing letters to current and past presidents and officers of the New Mexico Medical Society, asking them to support Hochman-Vigil’s bill.
Often, incarcerated people miss the Department’s five-day deadline to file a grievance because they are locked in solitary confinement and do not have access to the paperwork or the official kiosk outside their cell to file the informal complaint, said Alyssa Quijano, an Albuquerque attorney who works almost exclusively on conditions of confinement cases.
If they do meet the deadline, “it’s ignored. It’s thrown away. It’s lost somehow, and by the time they realize it’s been lost, it’s been more than five days,” Quijano said.
“They have to start all over from scratch,” she said.
The vast majority of medical grievances are obstructed, Collins said. The grievance paperwork itself, in some cases, has been outright destroyed, he said.
Collins asked the court in May 2021 to declare the grievance process unconstitutional, but District Court Judge Francis Mathew dismissed the case that December because, he wrote, the court does not have jurisdiction over the internal processes of the Department of Corrections, including the medical grievance process.
State law governing the Corrections Department prohibits courts from taking jurisdiction over matters related to a person’s incarceration until they have exhausted all administrative remedies internally with the Department.
“There’s no policing of this medical grievance process,” Collins said.
New Mexico imprisons people more often than most U.S. states and every other country in the world, according to the Prison Policy Initiative. It has the 12th highest racial disparity in incarceration rates across the nation, according to the Sentencing Project.
Generational and systemic poverty and trauma often lead to mental and behavioral health disorders, including substance use disorders, Hochman-Vigil said.
About eight out of every 10 people released from prison each year have a substance use disorder, mental health condition or chronic physical health condition, according to the New Mexico Department of Health.
“We are criminalizing people for having a disease,” Hochman-Vigil said.
Once inside, incarcerated people are developing treatable infections and are not provided immediate evaluation and treatment, Arrowsmith said, leading to significant complications.
They can include osteomyelitis, a bone infection mainly of the spine, which can be cured if identified and treated rapidly, but if left alone can paralyze a person’s legs; and endocarditis, an infection of the heart valves that if ignored can lead to metastatic abscesses elsewhere in the brain, spleen or liver.
“All of which, in our culture, with the state of medical care in this country – imperfect though it may be – those are treatable illnesses and preventable outcomes,” Arrowsmith said.
Requiring people to go through the grievance process is supposed to ensure if you do make it to a court, you have a bona fide claim, Hochman-Vigil said.
“Every single person deserves the right to adequate medical care,” Hochman-Vigil said. “I think it’s a violation of the Eighth Amendment to not take people at face value if they are presenting with a serious medical issue, or any medical issue at all.”
The Eighth Amendment to the U.S. Constitution is meant to protect people from cruel and unusual punishment.
But Collins said the entire grievance system is a sham. There is monumental abuse of the grievance systems by both the Corrections Department and the local jails, he said, because they know that if they can prevent these inmates from completing the grievance process, they have a pretty good shot at getting the cases dismissed.
“The grievance system was designed to keep inmates out of court,” Collins said. “That’s the only thing the grievance system serves.”
The bill would try to make the process more fair for all parties, not just those representing the government, Hochman-Vigil said.
“A lot of the power rests in the government’s hands as to whether or not those threshold questions are met, or proven,” Hochman-Vigil said.
In theory, incarcerated people in New Mexico prisons should have access to an attorney while they are filing a medical grievance. But in practice, “they absolutely do not,” Quijano said.
The bill would also make it so that attorneys can file grievances on behalf of incarcerated people.
Department Spokesperson Anisa Griego-Quintana pointed to the state’s grievance policy, which allows someone to file a grievance on behalf of an incarcerated person.
But Quijano said she has filed grievances on behalf of incarcerated people in the past, and they have been denied because the incarcerated person themselves did not fill it out.
None of the people fielding medical grievances are medically trained, Collins said. Not the grievance officer, not the warden, and not the state appeals official.
The draft bill would prohibit any guard, nonmedical prison staff, or disciplinary officer to be involved in the review of any grievance involving medical records, which would instead be reviewed by a licensed medical professional.
Plus, if they are found to have improperly made the review, they would be guilty of improperly interfering with the outcome of the grievance process.
The biggest problem Quijano sees is that people are just never being seen, and she thinks there should be a legislative requirement that if you run a jail, you have to have a medical provider on staff, which would result in fewer medical issues.
“I think that that’s something that could easily fix a lot of the medical issues that I see in my cases,” she said.
“So if the courts can’t do it, the Legislature needs to step in and put a stop to this.”