State v. Swayne

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: July 14, 2025 3

NO. S-1-SC-39880 4

STATE OF NEW MEXICO and 5

JAMES YATES, Warden, 6 Plaintiffs-Appellants, 7

v. 8

STEVE SWAYNE, 9

Defendant-Appellee. 10

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11

Kathleen McGarry Ellenwood, District Judge 12 Raúl Torrez, Attorney General 13

Aletheia V.P. Allen, Solicitor General 14 Santa Fe, NM 15

for Appellants 16

Bennett J. Baur, Chief Public Defender 17 Thomas J. Lewis, Assistant Appellate Defender 18 Santa Fe, NM 19

for Appellee 20

1

OPINION 1

ZAMORA, Justice. 2

{1} The State appeals from the district court's grant of a writ of habeas corpus that 3 awarded Defendant-Appellee Steve Swayne (Defendant) four months' meritorious 4 deduction from his prison sentence. The New Mexico Corrections Department 5 (NMCD) granted Defendant a four-month lump sum award (LSA) for earning his 6 first associate's degree while incarcerated, but then denied Defendant a second four-7 month LSA for earning a second associate's degree. The second LSA was denied 8 pursuant to a prison rule that prohibited the NMCD from awarding a second four-9 month LSA when a prisoner earns a second or subsequent associate's degree. This 10 rule is consistent with a broader NMCD rule that permits only one LSA per degree 11 level for any educational degree earned while incarcerated, from high school 12 equivalency through graduate degrees. 13

{2} In the habeas proceedings below, the district court determined that the Earned 14 Meritorious Deductions Act (EMDA), NMSA 1978, Section 33-2-34 (2015, 15 amended 2025), which authorizes the NMCD to award meritorious deductions from 16 an inmate's sentence upon satisfaction of specified conditions, required the NMCD 17 to award a separate four-month LSA for each associate's degree earned, regardless 18 of whether the prisoner had previously attained that degree level while incarcerated. 19

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The district court found that the NMCD rule was "arbitrary and capricious." On 1 appeal, the State argues that the district court erred because the rule was rationally 2 related to the statute and, secondarily, that Defendant had no liberty interest in the 3

LSA. 4

{3} Consistent with our holding in State v. Houidobre, 2025-NMSC-007, ¶ 27, 5

563 P.3d 890, we reject the State's argument that Defendant had no liberty interest 6 in eligibility for the LSA. However, we further hold that the NMCD rule permitting 7 only one LSA per degree level is not arbitrary and irrational, but is reasonably related 8 to the legitimate penological interests of the EMDA. Therefore, we reverse. 9

I. BACKGROUND 10

{4} Defendant earned two associate's degrees while incarcerated. He first earned 11 an Associate of Arts in Liberal Arts/University Studies, and the NMCD granted him 12 a four-month LSA for that achievement. Six months later, Defendant earned an 13 Associate of Applied Science in Business Administration. Per the NMCD rules, 14

"[a]n inmate may be awarded only one (1) [LSA] for receiving an [a]ssociate's 15 degree. Subsequent associate['s] degrees are not eligible for an LSA." NMCD CD-16 082801(B)(3)(h) (2013). Thus, even though Defendant was initially recommended 17 to receive an LSA for his second associate's degree, the NMCD ultimately denied 18

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the LSA because Defendant had already received an LSA for his first associate's 1 degree. 2

{5} Defendant challenged the denial of his second LSA in a pro se habeas petition 3 to the district court, arguing that he was entitled to the LSA under the EMDA. The 4 district court appointed the Law Offices of the Public Defender to represent 5 Defendant in the habeas proceedings. Through counsel, Defendant filed an amended 6 petition arguing that the EMDA creates an entitlement to an LSA when a prisoner 7 earns an associate's degree in compliance with other statutory criteria. Further, 8 Defendant argued, the NMCD rule limiting educational LSAs to one per degree level 9 was "arbitrary, irrational, and so remote from encouraging inmate cooperation and 10 good behavior that it cannot be sustained." Defendant argued the rule failed to meet 11 the standard set by the United States Supreme Court in Turner v. Safley, 482 U.S. 12 78, 89 (1987), superseded by statute on other grounds as stated in Butler v. Porter, 13

999 F.3d 287, 295 (5th Cir. 2021), which requires that a prison rule be "reasonably 14 related to [a] legitimate penological interest[]." 15

{6} The State responded that the EMDA is a completely discretionary scheme and 16 prisoners therefore have no liberty interest in LSAs. The State further argued that, 17 even if Defendant did have a liberty interest in the LSA, the NMCD acted properly 18 in denying his requested LSA because the rule prohibiting the NMCD from awarding 19

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a second LSA when a prisoner earns a second or subsequent associate's degree is 1 rationally related to the State's interest in ensuring good behavior and cooperation 2 among inmates. The State argued that "the [rule] encourages inmates to seek higher, 3 more challenging levels of education, rather than amassing a slew of [associate's 4 degrees]. This is rational, as employers routinely consider one's highest level of 5 education, rather than simply counting the number of degrees." 6

{7} After an evidentiary hearing at which the district court heard testimony from 7 three prison officials involved with the provision of educational LSAs, the district 8 court issued an order granting the petition and awarding Defendant the four-month 9 LSA for his second associate's degree. In granting the relief, the district court found 10 that Defendant had a liberty interest in the LSA and that the NMCD rule was more 11 restrictive than the EMDA statute by limiting the number of LSAs to one per degree. 12 The district court further found "[t]he purpose of awarding the [LSA] for educational 13 achievement is not only to create an incentive for an inmate to exhibit good behavior, 14 but more importantly it is to prepare an inmate to re[e]nter his community with the 15 tools necessary to become a productive citizen." The district court concluded that 16

"[t]he denial of the [LSA], and the [NMCD rule] that supported the denial, is 17 contrary to the statute and the intent of the statute." Therefore, the district court 18 concluded that "the [rule] which denied [Defendant] the lump sum credit for his 19

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[a]ssociate[']s [d]egree in Business Administration is arbitrary and capricious" 1 under the standard set by Turner.¹2

{8} The State appealed on the same grounds it argued before the district court. We 3 reverse. 4

II. DISCUSSION 5

A. Standard of Review 6

{9} On appellate review of a habeas corpus determination, we review the district 7 court's findings of fact for substantial evidence and its legal determinations de novo. 8 Cordova v. LeMaster, 2004-NMSC-026, ¶ 10, 136 N.M. 217, 96 P.3d 778. "The 9 statutorily created right to good-time credit is a liberty interest protected by the Due 10 Process Clause of the Fourteenth Amendment to the United States Constitution." 11 Miller v. Tafoya, 2003-NMSC-025, ¶ 14, 134 N.M. 335, 76 P.3d 1092. "Claims 12

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involving the denial of procedural due process are questions of law, which we review 1 de novo." Cordova, 2004-NMSC-026, ¶ 10. Likewise, questions of statutory 2 construction are reviewed de novo. State v. Thompson, 2022-NMSC-023, ¶ 17, 521 3 P.3d 64. 4

{10} Our role in reviewing NMCD's implementation of the EMDA is limited, in 5 recognition of the separation of powers. See State v. Tafoya, 2010-NMSC-019, ¶ 25, 6

148 N.M. 391, 237 P.3d 693 (recognizing that it is the executive branch's role to 7 administer the EMDA). Once an inmate has been sentenced, "the deduction of good 8 time credits from an inmate's sentence is a discretionary matter entrusted not to the 9 courts but to the administrators of the NMCD." State v. Cates, 2023-NMSC-001, ¶ 10 19, 523 P.3d 570 (text only)²(citations omitted); see also State v. Rudolfo, 2008-11 NMSC-036, ¶ 37, 144 N.M. 305, 187 P.3d 170 (explaining that once the sentencing 12 court has sentenced a defendant, "[t]he remaining computations [of good time] are 13 assigned to the corrections department by the comprehensive statutory scheme set 14 out in the EMDA and should not be addressed further by the court in the judgment 15 or otherwise"). Pursuant to the authority delegated to the NMCD under the statute, 16

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prison officials have the discretion to "deem [a] prisoner ineligible [for an LSA] 1 under one of the statutory disqualifications or a promulgated rule consistent with 2 NMCD authority." Houidobre, 2025-NMSC-007, ¶ 25. At the same time, "courts 3 are not wallflowers or potted plants." Id. ¶ 28 (text only) (citation omitted). For 4 example, an NMCD rule that results in a deprivation of liberty that is unsupported 5

"by any evidence," or where "the procedures are followed but policies, statutes, or 6 regulations are violated," is a due process violation and we may grant relief to the 7 prisoner on habeas review. Id. (internal quotation marks and citation omitted). 8

{11} Consistent with these principles, when a prison rule implicates an inmate's 9 constitutional rights, we apply a deferential standard of review: we ask whether the 10 challenged rule "is reasonably related to legitimate penological interests." Turner, 11

482 U.S. at 89; see also Cordova, 2004-NMSC-026, ¶¶ 12, 15-16 (applying the 12 Turner standard to affirm a district court's ruling that a prison transfer was not 13 retaliatory because it "was reasonably related to legitimate penological interests"). 14 As Turner instructs, "such a standard is necessary if prison administrators, and not 15 the courts, are to make the difficult judgments concerning institutional operations." 16

482 U.S. at 89 (text only) (citation omitted). "We recognize that running a prison is 17 an inordinately difficult undertaking that requires expertise, planning, and the 18 commitment of resources, and so for the moment we leave to the NMCD's expertise, 19

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guided by our case law, the implementation of appropriate procedures." Houidobre, 1 2025-NMSC-007, ¶ 27 (text only) (citation omitted). If the rule in question is 2 reasonably related to the asserted penological interests, and the interests are 3 legitimate and neutral, then it is a valid rule and will not be overturned on appeal. 4 Turner, 482 U.S. at 89-90. 5

B. The Statutory and Regulatory Scheme Governing LSAs 6

{12} The NMCD has the exclusive statutory authority, without judicial approval, 7 to award prisoners earned meritorious deductions, commonly referred to as "good 8 time" credits, for good behavior or participation in educational or other rehabilitative 9 programs. Compare Section 33-2-34(A)-(B), (D) (2015) (explaining NMCD 10 authority surrounding earned meritorious deductions), with NMSA 1978, § 33-3-11 9(A) (1995) (stating the jail administrator may only award good time "with the 12 approval of the committing judge or presiding judge"). In short, the NMCD has the 13 authority to reduce a prisoner's court-ordered sentence. See 6 Wayne R. LaFave et 14 al., Criminal Procedure § 26.2(c), at 920-21 (4th ed. 2015) ("Regardless of the 15 availability of parole, executive agencies may reduce sentences through 'good-time,' 16 'earned time,' or 'early release' credit."). 17

{13} The EMDA establishes several types of meritorious deductions, or "good 18 time" credits, that NMCD may award to prisoners who meet certain criteria. Section 19

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33-2-34. In addition to meritorious deductions for good behavior, prisoners may earn 1 good time in the form of an LSA for successfully completing programming, 2 achieving educational degrees, or engaging in extraordinary meritorious acts. See § 3 33-2-34(A)-(C) (2015) (setting forth standards for meritorious deductions for good 4 behavior); § 33-2-34(D) (2015) (setting forth standards for LSAs); § 33-2-34(E) 5 (2015) (providing that LSAs "may be awarded in addition to the meritorious 6 deductions" allowed for good behavior (emphasis added)). 7

{14} Specifically, the EMDA sets forth the following categories of eligibility for 8 LSAs as follows: 9

(1) for successfully completing an approved vocational, substance 10 abuse or mental health program, one month; . . . 11

(2) for earning a high school equivalency credential, three months; 12

(3) for earning an associate's degree, four months; 13

(4) for earning a bachelor's degree, five months; 14

(5) for earning a graduate qualification, five months; and 15

(6) for engaging in a heroic act of saving life or property, engaging in 16 extraordinary conduct for the benefit of the state or the public that is at 17 great expense or risk to or involves great effort on the part of the 18 prisoner . . . [in an amount to be] determined by the . . . corrections 19 department. 20

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Section 33-2-34(D) (2015).³1

{15} The LSAs in Subsection D "may be awarded by the NMCD in addition to" 2 other meritorious deductions. Section 33-2-34(E) (2015) (emphasis added); see State 3

v. Donahoo, 2006-NMCA-147, ¶ 7, 140 N.M. 788, 149 P.3d 104 (stating "the word 4 'may' is permissive"). Thus, in addition to Defendant being eligible to earn "up to a 5 maximum of thirty days per month of time served" he would also be eligible to 6 receive additional credit for a lump sum. See § 33-2-34(A)(2) (2015). 7

{16} The only express legislatively imposed limitations on LSAs are that they 8

"shall not exceed one year per award and shall not exceed a total of one year for all 9 [LSAs] awarded in any consecutive twelve-month period." Section 33-2-34(E). 10 Additionally, inmates are ineligible to receive any form of meritorious deduction if 11 the prisoner "disobeys an order to perform labor . . . is in disciplinary segregation 12

. . . is not an active participant in programs," or is serving a life sentence. Section 13 33-2-34(F)-(G) (2015). 14

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{17} The Legislature expressly delegated rule-making authority to the NMCD to 1 implement the EMDA. See NMSA 1978, § 33-2-1 (1977) ("The [NMCD] shall adopt 2 such rules concerning all prisoners committed to the penitentiary as shall best 3 accomplish their confinement and rehabilitation."); see also Section 33-2-34(H) 4 (2015) ("The corrections department shall promulgate rules to implement the 5 provisions of this section, and the rules shall be matters of public record."). Prior to 6 2013, NMCD rules allowed prisoners to "receive more than one LSA for earning an 7 associate's degree; bachelor's degree or graduate qualification provided that the 8 LSA recommendation demonstrates that the requirements for earning the subsequent 9 degrees were not substantially the same as those that were required for the first 10 LSA." In 2013, the NMCD changed its rule to prohibit additional LSAs for 11 additional degrees of the same level. Defendant began his term of incarceration in 12 2017, thus the 2013 rule applies. As relevant to this case, the rule revised on August 13 14, 2013 provides: "[a]n inmate may be awarded only one (1) [LSA] for receiving 14 an [a]ssociate's degree. Subsequent [a]ssociate['s] degrees are not eligible for an 15 LSA." CD-082801(B)(3)(h) (2013). 16

C. Defendant Had a Liberty Interest in Eligibility for an LSA Because He 17

Earned a Second Associate's Degree 18

{18} In Houidobre we interpreted the EMDA to provide a liberty interest in 19 eligibility for an LSA when an inmate completes the statutory prerequisites for an 20

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LSA award. See 2025-NMSC-007, ¶ 13 ("[T]he EMDA establishes a mandatory 1 right to eligibility when a prisoner successfully completes a program. However, . . . 2 the LSA provision only entitles [a p]risoner to further consideration for an award 3 under the terms of the EMDA."). In Houidobre, the prisoner completed two separate 4 addictions programs for which he sought two separate LSAs under Section 33-2-5 34(D)(1) (2015), but the NMCD determined—without providing the prisoner with 6 notice and an opportunity to respond—that the two programs were actually one and 7 the same. Id. ¶¶ 3-4. Under the relevant NMCD rule providing that "'an inmate is 8 eligible for only one (1) [LSA] per program,'" the NMCD found that the prisoner 9 was ineligible to receive a second LSA for what it considered to be a repeat of the 10 same program. Id. ¶ 3 (citation omitted). 11

{19} We held that "[o]nce the NMCD approves a prisoner for a program and the 12 prisoner subsequently completes the program, the statute creates a liberty interest in 13 the prisoner's eligibility for the LSA." Id. ¶ 25 (emphasis added). However, even 14 after that liberty interest is created, prison officials have discretion to deny an LSA 15 in accordance with statute and rule: "If prison officials do not deem the prisoner 16 ineligible under one of the statutory disqualifications or a promulgated rule 17 consistent with NMCD authority, then the prison officials' review of the application 18 is limited to the overall quality of the prisoner's participation." Id. 19

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{20} As applied to this case, we have no difficulty concluding that the EMDA 1 creates a liberty interest in eligibility for an LSA when a prisoner achieves the 2 educational degrees specified in Section 33-2-34(D)(2)-(5) (2015). Houidobre 3 forecloses the State's argument that Defendant had no liberty interest in eligibility 4 for an LSA for his second associate's degree. Instead, Houidobre instructs that when 5 Defendant earned his second associate's degree, he had a liberty interest in eligibility 6 for an LSA under Section 33-2-34(D)(3) (2015), which provides that "[a] prisoner 7

. . . is eligible for [LSAs] . . . for earning an associate's degree" in the amount of 8

"four months." 9

{21} However, a liberty interest in eligibility for the second LSA does not mean 10 that the defendant was ultimately entitled to the LSA. See Houidobre, 2025-NMSC-11 007, ¶ 18 (holding that "eligibility is not entitlement" (text only) (citation omitted)). 12 The Legislature delegated authority to the NMCD to promulgate rules implementing 13 the EMDA in Section 33-2-34(H) (2015), and the NMCD denied Defendant's LSA 14 pursuant to its own rule, CD-082801(B)(3)(h) (2013). Therefore, unlike in 15 Houidobre, the question here is not whether Defendant received adequate process 16 when his LSA was denied. See 2025-NMSC-007, ¶ 25 (recognizing that the NMCD 17 has discretion to deny an LSA pursuant to "a promulgated rule consistent with 18 NMCD authority"); id. ¶ 29 (noting that "there was no rule or policy announcement 19

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that RDAP and TC could not both count toward separate awards" and "NMCD's 1 argument might be persuasive if its policies contained such a rule"). Rather, in this 2 case, the crux of the issue is whether the prison rule was reasonably related to the 3 legitimate penological interests of the EMDA, or whether, under Turner, the rule 4 was arbitrary and irrational and therefore constitutionally deficient. 5

D. The NMCD's Rule of Denying an LSA to Inmates Who Earn More Than 6

One Associate's Degree Is Rationally Related to a Legitimate Penological 7

Interest 8

{22} The district court concluded that the NMCD rule was "arbitrary and 9 capricious" because it was not rationally related to the rehabilitative goals of the 10 EMDA. The district court found that those goals were, as it variously described, "to 11 encourage cooperation by inmates with the penal institution," "to prepare an inmate 12 to re[e]nter his community with the tools necessary to become a productive citizen 13

. . . by having the skills to be able to support himself," and "encouraging inmate 14 cooperation and good behavior." In striking down the rule, the district court relied 15 on Turner, 482 U.S. at 89-90, for the proposition that a rule "cannot be sustained 16 where the logical connection between the regulation and the asserted goal is so 17 remote as to render the [rule] arbitrary or irrational." Likewise, Defendant argued 18 before the district court—and continues to argue on appeal—that Turner is the 19 governing standard that requires this Court to strike down NMCD's rule. 20

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{23} We pause to address the question of whether to adopt Turner as the governing 1 standard for assessing the validity of a prison rule in New Mexico, as was the 2 working understanding of the parties and the district court. This is an issue of first 3 impression because, while we have applied Turner, we have not yet formally 4 adopted it as the standard involving challenges to NMCD rules. See Cordova, 2004-5 NMSC-026, ¶¶ 12, 15-16. We now hold that Turner is the governing standard. As 6 Turner explains, and our case law reflects, prisoners' appeals of the administrative 7 decisions of prison officials implicate specific considerations not arising in other 8 kinds of administrative appeals. See Turner, 482 U.S. at 95 (explaining many of 9 prisoners' rights are "subject to substantial restrictions as a result of incarceration"); 10 Cordova, 2004-NMSC-026, ¶¶ 11-28 (applying United States Supreme Court 11 precedent construing prisoners' constitutional claims within the constraints imposed 12 by incarceration). While "[p]rison walls do not form a barrier separating prison 13 inmates from the protections of the Constitution," Turner, 482 U.S. at 84, such 14 protections are subject to restriction and limitation to ensure internal order and 15 security in penal institutions. See also Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) 16 (quoting prior authority for the proposition that "'[l]awful incarceration brings about 17 the necessary withdrawal or limitation of many privileges and rights, a retraction 18 justified by the considerations underlying our penal system'" (citation omitted)). We 19

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conclude that the standard adopted in Turner, which is tailored to the specific 1 considerations arising in prison settings, is suitably deferential to prison authorities, 2 while ensuring meaningful judicial review of prisoners' constitutional claims. 3

{24} In Turner, the United States Supreme Court established a form of rational 4 basis review for the validity of prison rules. The Turner Court stated that in assessing 5 the reasonableness of a prison rule the district court should consider four factors. 6

482 U.S. at 89-91. First, the district court must consider whether there is "a valid, 7 rational connection between the prison [rule] and the legitimate governmental 8 interest put forward to justify it." See Turner, 482 U.S. at 89 (internal quotation 9 marks and citation omitted). Second, the district court considers "whether there are 10 alternative means of exercising the right that remain open to prison inmates." Id. at 11

90. Third "is the impact accommodation of the asserted constitutional right will have 12 on guards and other inmates, and on the allocation of prison resources generally." 13 Id. The final factor considers whether there are other "ready alternatives" to the 14 challenged rule. Id. 15

{25} We have previously applied Turner's rational basis review to the question of 16 whether a prison transfer was made with a retaliatory motive in Cordova, and we 17 concluded that the district court had appropriately determined that the transfer "was 18 reasonably related to legitimate penological interests." 2004-NMSC-026, ¶¶ 12, 15-19

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16. In Cordova, we did not conduct any further inquiry into the remaining three 1 Turner factors to reach our conclusion. Id. 2

{26} In this case, as in Cordova, we conclude that the first Turner factor sufficiently 3 resolves our inquiry. Further, we conclude that the remaining factors set forth in 4 Turner are not applicable to this case because the NMCD rule at issue here does not 5 restrict constitutionally protected activity but rather sets forth eligibility criteria for 6 an additional benefit to which a prisoner is not normally entitled. See Houidobre, 7 2025-NMSC-007, ¶ 13 (noting "[t]here is no language compelling an award upon 8 the completion of an approved program. The NMCD retains its statutorily defined 9 scope of review post-eligibility"). We consider only the first Turner factor: namely, 10 whether there is "a valid, rational connection between the prison [rule] and the 11 legitimate governmental interest put forward to justify it." 482 U.S. at 89 (internal 12 quotation marks and citation omitted). As a corollary, we recognize that a rule 13

"cannot be sustained where the logical connection between the [rule] and the 14 asserted goal is so remote as to render the [rule] arbitrary or irrational." Id. at 89-90. 15

{27} Under that standard, we reverse the district court's determination that the rule 16 is constitutionally deficient. We begin by noting that the EMDA advances the 17 penological interest of "motivating individuals to shorten their time spent in prison 18 while becoming more productive members of our society." Tafoya, 2010-NMSC-19

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019, ¶ 19. We readily conclude that inmate rehabilitation is a legitimate and neutral 1 penological interest. See State v. Aqui, 1986-NMSC-048, ¶ 18, 104 N.M. 345, 721 2 P.2d 771, holding limited by Brooks v. Shanks, 1994-NMSC-113, 118 N.M. 716, 3

885 P.2d 637 (stating that the rule of awarding good time credit serves the legitimate 4 purpose of rehabilitating inmates). Instead, the crux of the dispute is whether 5 NMCD's proffered penological interest is rationally connected to the rule at issue. 6 Turner, 482 U.S. at 89. 7

{28} The State contends the rule is rationally related to the EMDA's penological 8 purpose because it promotes higher levels of education for prisoners, and people 9 who have higher educational attainment also have better employment opportunities. 10 The State's rationale is not unreasonable. NMCD's rule has the effect of encouraging 11 inmates to attain higher educational levels to improve future employment 12 opportunities. Indeed, the record shows that Defendant is working towards earning 13 a bachelor's degree, an achievement that would make him eligible for an additional 14 LSA of five months under the EMDA and NMCD rule. Section 33-2-34(D)(4) 15 (2015); CD-082801(B)(3)(c) (2013). In the absence of the NMCD rule, inmates 16 might be disincentivized from taking the comparatively longer time needed to 17 graduate with a bachelor's degree rather than undertaking multiple associate's 18 degrees. Indeed, those interested only in shortening their sentences, rather than 19

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enhancing their skills or education, would pursue just such a strategy. The dissent's 1 interpretation ignores this reality. Dissent, ¶ 33. Thus, the rule encouraging prisoners 2 to attain higher levels of education is rationally related to the rehabilitative goals of 3 the EMDA because it assists prisoners in preparing to successfully reenter the 4 community. See generally Benavidez v. Sierra Blanca Motors, 1996-NMSC-045, ¶ 5 19, 122 N.M. 209, 922 P.2d 1205 (observing that prison education and employment 6 programs "provide[] an avenue for the [s]tate to foster the rehabilitative aspect of 7 incarceration by allowing eligible inmates the opportunity to prepare themselves to 8 become productive members of society upon their release from confinement"). To 9 the extent the dissent argues "the State has failed to sufficiently demonstrate a valid, 10 rational connection of the challenged NMCD [rule] to the EMDA," we disagree. 11 Dissent, ¶ 34. 12

{29} As the United States Supreme Court has observed, "the first question to be 13 answered is not whose plan is best, but in what branch of the Government is lodged 14 the authority to initially devise the plan." Bell, 441 U.S. at 562. The Legislature has 15 assigned rule-making authority under the EMDA to NMCD. The EMDA advances 16 a legitimate and neutral penological interest, and the State has identified a rational 17 basis for restricting the number of associate's degrees for which an LSA may be 18 awarded in service of that interest. It is this standard, and not another, by which we 19

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