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ACLU of Colorado settles lawsuit asserting prisoner

For the first time in 15 years, Colorado death-row prisoner Nathan Dunlap will have the opportunity to exercise regularly in an area that is open to the sky and the elements, pursuant to a settlement of Mr. Dunlap’s lawsuit against the Colorado Department of Corrections (DOC) announced by the ACLU of Colorado today.

“Depriving Mr. Dunlap of fresh air, sunshine, and outdoor exercise for 15 years is cruel and unusual punishment,” said Mark Silverstein, ACLU Legal Director. “The Constitution requires prisons to provide for basic human needs, and courts have consistently required access to fresh air and sunshine along with food, clothing, shelter, safety, and medical care.”

The ACLU lawsuit relied on a 1999 ruling of the U.S. Court of Appeals for the Tenth Circuit, which held that “even a convicted murderer who had murdered another inmate and represented a major security risk was entitled to outdoor exercise.” Perkins v. Kansas Department of Corrections, 165 F.3d 803, 810 (10th Cir. 1999).

As a matter of policy, the Colorado DOC automatically assigns death-sentenced prisoners to administrative segregation, the highest-security classification, which critics refer to as solitary confinement. Until now, the DOC also required that death-sentenced prisoners be assigned to the state’s dedicated “supermax” prison, Colorado State Penitentiary (CSP), where all 734 prisoners are isolated, locked down 23 hours a day, and denied outdoor exercise. At CSP, prisoners’ only opportunity for out-of-cell recreation is one hour in a separate concrete-walled cell that contains a pullup bar.

Prison officials usually maintain that with good behavior, “supermax” prisoners can earn their way to general population facilities, where prisoners can go outdoors and enjoy additional privileges. Mr. Dunlap, however, was not confined to “supermax” because of any violent or disruptive conduct in prison. Despite his good behavior in “supermax,” he was not eligible to “earn” his way out, because DOC policy assigned death-sentenced prisoners to CSP.

Mr. Dunlap filed a lawsuit and acted as his own attorney until ACLU Cooperating Attorney Gail Johnson took over the lawyering early last year.

Under the terms of the settlement, Mr. Dunlap has been moved from CSP to the Sterling Correctional Facility, where he will still be held in solitary confinement, but he will have the opportunity to exercise five days a week in an area open to the sky and elements that is twice as large as the exercise rooms at CSP that Mr. Dunlap has been forced to use for 15 years. The DOC also chose to transfer the two other Colorado death row inmates to the Sterling Correctional Facility.

“To settle this case, the DOC agreed to move Mr. Dunlap to the administrative segregation unit at Sterling, where he will be entitled to regularly exercise in areas that are open to the sky, the sun, and the elements,” said ACLU Cooperating Attorney Johnson. “Mr. Dunlap is glad to finally have the opportunity once again to breathe fresh air and feel the sun on his skin during his limited out-of-cell exercise time.”

“While this settlement resolves Mr. Dunlap’s legal claims, it also underscores a continuing and unresolved issue: hundreds and hundreds of prisoners at Colorado State Penitentiary continue to endure 23-hour-a-day lockdown year in and year out.” Silverstein said. “Long-term deprivation of outdoor exercise violates the Constitution. While DOC claims that prisoners can shorten their ‘supermax’ confinement, the truth is that the slightest infraction or negative report by a staff member keeps them there. Many have been warehoused in solitary confinement since CSP opened in the early 1990s.”



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