DENVER – ACLU of Colorado filed a class action lawsuit today against Governor Polis and the Department of Corrections seeking an emergency order to compel the DOC to protect medically vulnerable incarcerated people from COVID-19. The requested order includes prioritizing the release of people who are older, sick, or otherwise vulnerable to serious illness or death from COVID-19 and who pose no threat to public safety. ACLU’s lawsuit comes on the heels of DOC modeling that projects thousands of incarcerated people and staff will become infected and hundreds will die if prison populations are not reduced.
“In this unprecedented public health crisis, the harmful trend of mass incarceration has become a direct threat to public health,” said ACLU of Colorado Legal Director Mark Silverstein. “Overcrowded prisons are proven hotbeds for transmission, with the two largest outbreaks in the state occurring behind bars. Because the Governor and the DOC are failing to protect incarcerated people, correctional staff and ultimately the public, the court must intervene immediately to save lives.”
The lawsuit alleges that COVID-19 is spiraling out of control throughout Colorado’s prisons, and both the Governor and DOC Director Dean Williams are well aware that — without action — many more medically vulnerable people will suffer serious illness or death. Both Polis and Williams have issued public statements recognizing the need to reduce to the prison population in order to allow social distancing in the prisons. Yet, despite their words, they have released fewer than 300 people due to COVID-19. Moreover, the Governor recently refused to extend essential parts of an executive order that would have allowed additional releases, and he has failed to act on any of the clemency and commutation petitions currently pending on behalf of medically vulnerable prisoners. As a result, thousands of older and medically compromised people remain incarcerated inside small, unsanitary cells with no possibility of social distancing — and with unacceptable risk of serious illness and death. Without protective measures, including prison population reduction, DOC’s modeling predicts over 16,000 infections within the prison system, and at least 150 deaths of incarcerated people and death of more than 70 staff members.
“COVID19 has taught us, at great personal cost, that we are all connected,” said medical expert Dr. Bruce Becker. “Elders in nursing homes, immigrants in the inner cities, incarcerated people, the rich and the poor, held tightly together by a few degrees of separation and a single strand of viral RNA. Only by protecting every human being to the limits of our knowledge and power can we insure that we will emerge from this pandemic with our humanity.”
The ACLU lawsuit is one of a slew of national efforts, many successful, to challenge correctional facilities’ failure to protect medically vulnerable incarcerated people from COVID-19. On May 11, Chief Judge Phillip Brimmer of the federal district court of Colorado ordered that Weld County Sheriff Steve Reams must provide special protections to medically vulnerable people incarcerated in the Weld County Jail, including social distancing and single cells whenever possible. Today’s lawsuit alleges that the DOC has failed to identify medically vulnerable inmates for special protections — including single celling — and has failed to prioritize the release of people who pose no risk to public safety. People like Plaintiff Gary Winston.
Mr. Winston, 58, suffers from COPD, severe respiratory issues and heart problems that place him at a higher risk of serious illness or death if he contracts COVID-19. He is serving a one-year sentence for drug possession, a victimless crime that may cost him his life. Mr. Winston is currently incarcerated in Sterling Correctional Facility, where more than 500 people have tested positive for the virus and where social distancing is impossible. His wife of 22 years, Sandra Winston, has stage four colon cancer and has delayed necessary surgery until Mr. Winston is home to help her recover. With COVID-19 running rampant in Sterling, Mrs. Winston fears he may never come home. “You don’t realize how much you need someone until they leave and my fear is that I might never get him back. As long as he’s stuck in there, I feel like I’m stuck in there with him.”
The Winston’s story is one of many and — along with DOC modeling — highlights the critical need to prioritize the release of people who pose no risk to public safety and are particularly vulnerable to serious illness or death if they contract COVID-19.
“The CDOC knows exactly what it needs to do to save lives — reduce the population of its prisons,” said ACLU of Colorado cooperating attorney Anna Holland-Edwards. “Their refusal to prioritize the safety of vulnerable people by releasing those who are not a public safety risk, and implement adequate protocols for others, essentially imposes a death sentence on many people in their custody.”
Today’s lawsuit, Winston, et al. v. Polis, et al., was filed in Denver District Court. The named Plaintiffs are Gary Winston, John Peckham, Matthew Aldaz, William Stevenson and Dean Carbajal. The legal team includes ACLU staff attorneys; cooperating attorneys Holland, Holland-Edwards and Grossman, P.C., 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 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.