Judge rules execution details needed to further public conversation about the death penalty

DENVER –Disclosure of Colorado’s current execution protocol will further the public interest and facilitate public conversation about the state’s use of the death penalty, according to a ruling issued yesterday by Denver District Court Judge R. Michael Mullins.

The court ruled that the Colorado Department of Corrections’ denial of an ACLU of Colorado request for access to a “restricted distribution” document outlining Colorado’s execution protocol and training was “arbitrary and an abuse of discretion.”

“We welcome the Court’s ruling. It’s a good day for transparency in public records and for furthering the public conversation about the death penalty in Colorado,” said ACLU of Colorado Legal Director Mark Silverstein.

According to Judge Mullins’ ruling, “CDOC has failed to demonstrate that disclosure of a properly redacted Execution Protocol would be contrary to the public interest. Particularly in light of Governor Hickenlooper's recent reprieve, which calls for a public conversation about the death penalty in Colorado, disclosure of these records would further the public interest.”

“The public has an interest in knowing how Colorado intends to carry out its executions, one of any government’s most serious functions,” said Lauren Schmidt of Brownstein Hyatt Farber Schreck, LLP, who argued the case as a cooperating attorney on behalf of the ACLU. “The Court’s ruling will help facilitate an important discussion about Colorado’s lethal injection procedures.”

Though the court’s ruling did not specify a deadline for providing the redacted document, Silverstein said he hopes the Department of Corrections will make it available “as soon as humanly possible.”

more on this case

Statement of ACLU of Colorado Deputy Director Stephen Meswarb on Denver District Attorney Mitch Morrissey’s decision to seek the death penalty in the Fero’s bar case

“The ACLU of Colorado is disappointed by Denver District Attorney Mitch Morrissey’s decision to pursue the death penalty in this case. The death penalty is immoral, unjust, and expensive, and every execution and death warrant perpetuates an arbitrary system that can and does make irreversible mistakes.
“When prosecutors choose to pursue death, as Morrissey did today, they validate a deeply flawed system and disregard the substantive costs, both in terms of morality and actual taxpayer dollars, that accompany their decision.”

July 23, 2013
New ACLU report examines legal, moral, and fiscal implications of housing mentally ill prisoners in solitary confinement, urges CDOC chief Rick Raemisch to end the practice

DENVER – The Colorado Department of Corrections (CDOC) continues to rely on long-term solitary confinement to manage mentally ill prisoners, often for months or even years, according to a new report released today by the ACLU of Colorado.
Out of Sight, Out of Mind: Colorado’s continued warehousing of mentally ill prisoners in solitary confinement, draws on 18 months of research, including interviews with prisoners, analysis of CDOC data, site visits, and review of prisoner health files and finds that, while the overall number of prisoners held in solitary confinement has decreased in recent years, the proportion of those prisoners who suffer from mental illnesses has increased.
According to the report, more than half of the prisoners currently housed in long-term solitary confinement in Colorado have significant mental health needs.
“Warehousing mentally ill prisoners in solitary confinement is not only costly, cruel and unlawful, it puts the public at serious risk,” says ACLU staff attorney Rebecca Wallace, who drafted the report. “When mental illness goes untreated, or is made worse by solitary confinement, it can lead to criminal or antisocial actions once a prisoner is released, leaving the public to suffer the consequences.”
On any given day in 2012, between 537 and 686 mentally ill prisoners were held in solitary confinement in Colorado prisons. The average length of stay for mentally ill prisoners in solitary confinement was 16 months.
Courts and psychiatrists agree that prolonged isolation poses a substantial risk of causing or exacerbating mental illness. The ACLU report chronicles instances of solitary confinement driving untreated mentally ill prisoners to a psychotic state, leading them to attempt suicide, attack others, eat their feces, or “bang their heads against the wall in an effort to drown out the voices in their heads.”
Under former Director Tom Clements, CDOC initiated the Residential Treatment Program (RTP) in early 2013 as a means of providing intensive mental health care to prisoners with the most significant mental health needs, but the ACLU found that seriously mentally ill prisoners are still being disproportionately housed in solitary confinement. As of last March, CDOC housed at least 87 “seriously mentally ill” prisoners in solitary confinement, the majority of whom had been living in isolation for more than a year.
“Courts are unanimous in their view that prolonged solitary confinement of seriously mentally ill prisoners is cruel and unusual punishment that violates the Constitution,” says Wallace.
In 2001, a federal court ordered the Wisconsin DOC to remove all prisoners with serious mental illness from the Supermax Correctional Institution. Incoming CDOC Director Rick Raemish led the Wisconsin DOC after the lawsuit settled while following a policy against confining seriously mentally ill prisoners in the supermax facility.
“Given Mr. Raemish’s successes during his tenure at the Wisconsin DOC, we are hopeful that he will bring to CDOC a true understanding that a state prison system can be managed safely and effectively without warehousing seriously mentally ill prisoners in solitary confinement,” says Wallace.
The report includes the following recommendations for CDOC and its incoming director:
(1) CDOC should bar seriously mentally ill prisoners from placement is prolonged solitary confinement.
(2) CDOC should adopt policies requiring mental health involvement in disciplinary and criminal charging decisions related to seriously mentally ill prisoners.
(3) All seriously mentally ill prisoners, including those at the lowest levels of the Residential Treatment Program (RTP), should be provided a minimum of 20 hours of out-of-cell time per week, including 10 hours of dedicated therapeutic time.
(4) The Residential Treatment Program should be fully staffed to provide out-of-cell therapeutic and non-therapeutic time. To accomplish this goal, CDOC must have the funding and the will to fill all mental health staff positions, particularly those of psychiatrists and psychiatric nurses.

Click here to read the report.


Click for a fact sheet on the mentally ill in solitary confinement in Colorado.