November 13, 2020
DENVER – With two court filings today, ACLU of Colorado announced a resolution with the Colorado Department of Corrections (DOC) of last May’s class action lawsuit alleging failure to protect medically vulnerable people in prison from COVID-19. The DOC and ACLU jointly asked the Denver District Court to enter an order, called a “consent decree,” which memorializes the terms of the resolution. It requires access to masks and hygiene supplies; prioritizes safe housing for medically vulnerable incarcerated people; improves conditions during COVID-related lockdowns, improves responses to COVID-related complaints; and implements system improvements aimed at increasing efficiency of the parole process. If accepted by the court, this consent decree will become an enforceable court order.
“This resolution gives essential protections to thousands of people who are incarcerated and terrified of this deadly virus, and could not have happened without the significant efforts by all of the State’s leadership from the beginning of this case,” said ACLU of Colorado cooperating attorney Anna Holland Edwards. “That cooperative approach and the willingness to work together to improve the conditions for incarcerated people as well as staff is to be commended.”
The following is a list of the key provisions of the consent decree:
- Certifies a settlement class of medically vulnerable people who are over the age of 60 or have an underlying medical condition the CDC recognizes as posing a heightened risk of serious illness or death if they contract COVID-19.
- Requires DOC to identify medically vulnerable people and prioritize their safe housing
- Provides for an independent expert consultant to advise on policies and protocols for medically vulnerable people
- Ensures all incarcerated people receive two free bars of soap per week and two free masks
- Ensures routine cleaning of common spaces
- Prohibits co-pays for COVID-related medical visits
- Requires testing of all symptomatic people and wide-scale prevalence testing after any staff or incarcerated person tests positive
- Provides for reasonable access to facilities, outdoor recreation, and legal materials during COVID-related lockdowns after DOC has had time to test and cohort
- Consistent access to free, confidential legal calls
- Continuous information sharing (number of positives, facility lockdown status, people who have recovered, deaths)
- Creates a Parole Pilot Program to help complete release plans and partner with community providers
- Provides for continuing jurisdiction of the court to enforce the consent decree
This resolution comes at a critical time. As in the rest of the state, COVID-19 cases are rising across Colorado’s prisons among incarcerated people and staff. There are active outbreaks in at least six DOC facilities, with more than 700 active cases among prisoners and 130 active cases among staff.
Although today’s filing resolves the case against the DOC, the case against Governor Polis continues. Improving conditions in the prisons will not be remotely enough to stop huge outbreaks and unnecessary deaths, given the current prison population. ACLU attorneys also filed an amended complaint today alleging that the Governor violates the Colorado Constitution by failing to exercise his powers to safely reduce the prison population in the wake of the pandemic.
As the Amended Complaint states: “Simply put, Defendant Polis knows the only way to mitigate the spread of this virus through Colorado’s prisons and into Colorado’s communities is by ‘reducing the potential population a person can infect,’” and that unless Governor Polis authorizes reducing the number of people in Colorado’s prisons “outbreaks will continue, and people will die.”
ACLU of Colorado highlighted several stories of medically vulnerable incarcerated people who pose no threat to public safety, but remain needlessly incarcerated and at severe risk. People like Anthony Martinez: 84 years old, uses a wheelchair, and suffers from dementia, he remains incarcerated for a series of robberies that he committed over thirty years ago. His niece, Kelly, wants him home for his final years. A short video tells his story.
“Today’s proposed consent decree provides meaningful protections for people in prison, but those protections are not sufficient to ensure the social distancing necessary to prevent the exponential spread of COVID-19 in our overcrowded prisons,” ACLU of Colorado Legal Director Mark Silverstein said. “What’s necessary is a significant reduction of the prison population, and the power to carry out that population reduction rests solely with the Governor.”
The legal team includes ACLU staff attorneys, cooperating attorneys Holland, Holland-Edwards and Grossman, LLC, Killmer, Lane & Newman, LLP, Maxted Law, LLC, and Finger Law, P.C.; and co-counsel the Civil Rights Clinic at the University of Denver School of Law. The litigation is in state court and based on the state constitution.
The ACLU of Colorado is the state’s oldest civil rights organization, protecting and defending the civil rights of all Coloradans through litigation, education and advocacy.