SANTA FE, N.M. (KRQE) – The New Mexico Supreme Court has unanimously agreed Monday that elderly or low-risk inmates will remain locked up during the COVID-19 outbreak.

Attorney’s tried to argue that keeping hundreds of inmates in custody is “cruel and unusual punishment” and that Governor Michelle Lujan Grisham and Department of Corrections are “deliberately and intentionally” putting the prisons at risk.

The New Mexico Department of Corrections is screening inmates who have a fever or cough but groups like the ACLU of New Mexico and Law Office of the Public Defenders argue that’s not enough.

Monday they petitioned the New Mexico Supreme Court for a mass release of at least 500 non-violent inmates out of the 6,700 in custody currently. That would include 210 inmates over the age of 65 and 294 who are within a year of their release.

Last month, Gov. Lujan Grisham did issue a rolling executive order allowing the release of 33 inmates so far.

As of Monday, only four corrections department employees have tested positive for COVID-19. The DOC has only tested eight inmates who had a cough or fever. The defense argued widespread testing is also needed in prison to find asymptomatic people.

The ACLU says if correctional facilities got 1,500 tests of the 5,000 tests a day, New Mexico is capable of testing everyone in a week.

Chief Justice Judith Nakamura and Justices Michael Vigil, C. Shannon Bacon and David Thompson were present in the Santa Fe courtroom while the attorney’s in the case and Justice Barbara Vigil participated through video chat.

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