Analysis

Synopsis:

 House Bill 191 (HB 191) enacts the Corrections Ombudsman Act and appropriates $250,000 for this Office of the Corrections Ombudsman. 

Analysis:

 House Bill 191 (HB 191) enacts the Corrections Ombudsman Act (Act) and appropriates $250,000 for this Office of the Corrections Ombudsman (Ombudsman).  

The Act creates an independent and impartial Ombudsman to assist in strengthening procedures that lessen the possibility of actions occurring within the New Mexico Department of Corrections (DOC) that may impact the health, safety, welfare and rehabilitation of offenders and that will reduce the exposure of the DOC to litigation.  

The Ombudsman is created within the Legislative Finance Committee (LFC), reports directly to the director of the LFC, and exercises its duties independently of the Secretary of the DOC.  The Ombudsman has four purposes: to ensure compliance with DOC rules regarding inmates, probationers and parolees; identify systemic issues and recommend legislative fixes; provide information to inmates, probationers and parolees and their families; and to promote public awareness of the rights and responsibilities of inmates, probationers and parolees. 

The New Mexico Legislative Council appoints the Ombudsman, who must be a person of “recognized judgment, independence, objectivity and integrity.”  The Ombudsman serves a three yar term and is reappointed unless a successor is appointed.  Legislative Council may only remove the Ombudsman for neglect of duty, misconduct or inability to perform duties.  

The Act imposes 19 duties upon the Ombudsman, ranging from receiving, investigate, and resolve complaints; establish a reporting system to analyze data, informing inmates as well as DOC employees of rights of inmates, probationers and parolees, providing technical assistance, monitor DOC compliance with laws, participate in legislative and policy development; submit yearly reports to the legislature and governor; audit the financial expenditures of the DOC; report any criminal DOC activity to law enforcement; monitor DOC employee overtime and fatigue; monitor training and certification of DOC officers; collaborate with the Office of the State Auditor in fulfilling the Ombudsman’s responsibilities; monitor adequate staffing and training, classification procedures, pre-release preparation, and equal protection of female prisoners. 

In addition to these duties, the Act requires the Ombudsman to “eliminate corruption,” such as overuse of solitary confinement, overuse of overtime, overuse of force, embezzlement, sexual exploitation, theft of inmate property, waste of taxpayer resources, and substandard medical care. 

The Act allows the Ombudsman to try to resolve investigations concerning DOC employees, parolees, probationers, and inmates.  A DOC employee can make a complaint straight to the Ombudsman, without having to go through an internal DOC grievance/administrative process.  

The Ombudsman may decline to investigate a complaint and cannot investigate any complaint relating to the inmate’s underlying criminal conviction or sentence.  The Ombudsman may refer complaints to other agencies.  The Ombudsman must remain neutral and cannot act as an advocate for the complainant or for the DOC.  A public decision on each complaint must be made and must state if the Ombudsman recommends if the DOC should: consider the matter further; modify or cancel any action; alter a rule, practice or ruling; explain in detail the action in 
question; or rectify an omission.  
The Ombudsman can demand that the DOC inform the Ombudsman within a specified time, about action taken or reason for not complying with the recommendation.  The Ombudsman must report its findings to the Governor and legislature if there have been continued problems.  Before publicly criticizing a person or DOC, the Ombudsman must first talk with the person/DOC and request to be notified of any action taken on the Ombudsman’s recommendations.  

The Act further allows the Ombudsman to have reasonable access to correctional facilities to investigate incidents or complaints, if an incident has or may have occurred, or if there may be imminent danger of serious abuse or neglect of an inmate.  The Ombudsman is given reasonable access to the facilities, including inspecting and recording areas of the facility, inspecting records, and the ability to meet with inmates privately.  Depending on the type of record, DOC must provide records requested by the Ombudsman by either five or 20 days.  

The Act provides civil immunity to any employee of the Office of the Ombudsman for a good-faith performance of responsibilities under the Act.  The Act prohibits any retaliatory action to be taken against a DOC employee or inmate for aiding the Ombudsman.  

Finally, the Act appropriates $250,000 from the General Fund to the LFC for use in Fiscal Year 2022 for the Ombudsman, and any unspent funds revert to the General Fund. 

HB 191 is effective July 1, 2021.  

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