Facing a class-action suit filed by the American Civil Liberties Union of Colorado and the ACLU National Prison Project, the Boulder County Jail has agreed to a settlement, ending a policy that restricted most inmates’ outgoing mail to post-cards only.

Prisoners at the jail – many of whom are awaiting trial and have not been convicted of any crime – will once again be permitted to send letters in sealed envelopes to their children, family members, loved ones and friends. The settlement, reached on Friday, is detailed in a Memorandum of Understanding signed by the parties.

Faced with a similar lawsuit from the ACLU of Colorado, the El Paso County Jail ended its post card-only prisoner mail policy in December. El Paso and Boulder County adopted the policies in 2010 and the lawsuits followed soon afterwards.

“Incarcerated individuals will no longer be forced to avoid personal topics such as medical, financial or relationship issues simply because their words are in plain sight for anyone to read,” said ACLU of Colorado Legal Director Mark Silverstein. “They will no longer have to guard against communications that they do not wish their children to see. They now can communicate with art and drawings or seek the advice of their clergy without having to expose that to the world.”

The ACLU of Colorado’s lawsuit was filed on behalf of five individual prisoners who represent a class of current and future prisoners subject to the policy. Chief Judge Wiley Y. Daniel granted the lawsuit class-action status March 8.

The settlement agreement ending the policy calls for an official change within 21 days of the filing of the Memorandum of Understanding.

Specifically --

• Inmates will now be allowed to write and send personal letters on paper provided by the jail and with envelopes supplied by the jail – without having to receive special permission to do so.
• Postcards will be used by inmates only on a voluntary basis, if at all.
• The jail must notify attorneys for the ACLU of Colorado if it plans any changes to the outgoing inmate mail policy anytime within the next two years.

The settlement agreement is expected to be approved by the Board of County Commissioners at its next meeting.

“Writing letters to people in the free world is critical for helping prisoners maintain ties to their families and communities and ensuring their successful reintegration upon release,” said David Fathi, Director of the ACLU National Prison Project. “Enacting policies that significantly restrict the First Amendment freedoms of all current and future pre-trial detainees and prisoners in the jail was both unwise and unconstitutional. We are pleased to see it end and trust that this will embolden others to challenge similar policies wherever they may crop up across the country.”

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A federal district court judge today granted class action certification to the ACLU of Colorado’s First Amendment lawsuit against the Boulder County Jail, moving forward the ACLU’s efforts to end unconstitutional post-card only prisoner mail policies.

The lawsuit, filed on behalf of jail detainees, challenges a policy implemented in March 2010 that restricts all outgoing prisoner correspondence at the Boulder County Jail to postcards supplied by the jail, except narrow categories deemed to be “legal” or “official” mail.

“Class certification was a critical and necessary step to preserving our opportunity to get an injunction banning the post card policy that is at issue in this case. We are very pleased with the ruling certifying this class,” said Mark Silverstein, ACLU Legal Director.
With class certification, Silverstein added, the class itself has standing to litigate the claims even if the individual claims of the named and unnamed plaintiffs become moot because of a detainee’s release or transfer.

In addition to certifying class status, Chief Judge Wiley Y. Daniel in his written decision also named Silverstein and David C. Fathi, director of the National Prison Project of the ACLU Foundation, as Class Counsel.

Chief Judge Daniel set April 21 as the date for a hearing on a motion for preliminary injunction in the case to compel the Boulder County Jail to immediately end its challenged postcard-only policy.

The ACLU lawsuit maintains that the policy violates the First Amendment rights of prisoners and their correspondents, including intimate partners, other family members, clergy and investigative journalists, among others.

“Writing letters to people outside of prison is critical for helping prisoners maintain their connection to their families and their communities and is also a key element of ensuring their successful reintegration upon release,” Fathi said. “Restricting the First Amendment freedoms of detainees is not only unwise but unconstitutional.”

The Boulder County Jail, located in Boulder, Colorado, has an average daily population of 400. It houses both convicted prisoners and detainees awaiting trial. The ACLU lawsuit was filed on behalf of five individual prisoners who represent a class of current and future prisoners subject to the post-card only policy.

The lawsuit names as defendants Boulder County Sheriff Joe Pelle, and Division Chief Larry R. Hank, jail administrator. It seeks a court ruling invalidating the post-card only policy.

Boulder County is now the only jail in Colorado with such a policy.

Rather than attempt to defend the post-card only practice before a judge, the El Paso County jail dropped a similar policy in December just after attorneys from the American Civil Liberties Union and the ACLU of Colorado filed suit.

“If jail officials are serious about lowering recidivism and increasing public safety,” Silverstein said, “they will realize that preserving a prisoner’s right to send letters actually protects us all.”

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SB-176 was heard by the Colorado Senate Judiciary Committee. It was significantly amended.

Click here to find links to both the original and amended version of the bill.

It would have taken steps to end the all-too-common practice of warehousing prisoners with serious mental illness in solitary confinement. The bill would have required a mental health evaluation for prisoners before they are placed in solitary and permit such isolation only in extreme situations. It also would support mental and behavioral health alternatives to solitary confinement through cost-saving mechanisms and ensure that prisoners are reintegrated into the general prison population before their community release.

Only small portions still remain, included the cost-savings mechanism that allows inmates in solitary to earn time off for good behavior, just as all other prisoners are permitted to do. Those saving are still to be spent on mental and behavioral health alternatives to solitary.

Learn more about solitary confinement at Colorado State Penitentary by watching segments from this National Geographic special.

SB 176 introduced by Senator Morgan Carroll (D-Aurora) and Representative Claire Levy (D-Boulder), is a response to the growing number of inmates in Colorado prisons who’ve been diagnosed as mentally ill or developmentally disabled – and the staggering cost of using solitary confinement, rather than mental or behavioral health alternatives, as the default placement without regard to medical needs, institutional security, or prisoner and public safety.

“What we get from continuing the policy of placing prisoners with mental health issues or developmental disabilities in solitary confinement is increased costs for incarceration, increased recidivism rates and reduced public safety,” said Senator Carroll. “Especially in tough economic times, we can do better by using cost-saving mental health evaluation and treatment options rather than budget-busting solitary confinement.”

Currently, 37% of those in solitary confinement are prisoners with mental illness or developmental disabilities – up from 15% just a decade ago. Those confined to solitary in Colorado (more than 1,400 inmates) spend 23 hours a day in isolation, for 16 months on average, at an increased additional cost of from $14,933 to $21,485 per year, per inmate.

“Colorado cannot afford business as usual in its prison system,” said Representative Levy. “We must use science and behavioral health research to get a better result from costly imprisonment. Solitary confinement is the harshest and most expensive option. It should be used sparingly and only with appropriate limitations so prisoners with mental illness don’t become more ill and aren’t made more dangerous.”

Solitary confinement, said Terri Hurst, Director of Public Policy at the Colorado Behavioral Healthcare Council, is not only costly, it’s dangerous to prisoner health and the public good. “It’s important that offenders with mental health issues be provided treatment services as to not exacerbate their health status. Solitary confinement has been shown to worsen or lead to the onset of mental health disorders and should not be used as an alternative to treatment. Providing treatment services both inside correctional facilities as well as in the community, improves behavioral health outcomes.”

Jessie Ulibarri, Public Policy Director for the ACLU of Colorado, said SB 176 promotes the shared goals of restoring those released from prison to productive roles in society. “By undermining the innate human need for social interaction, solitary confinement works against our goals as a society. Currently 41% of inmates in solitary confinement are released directly from their cell to the street -- a dangerous practice -- without time to readjust to human interaction while still under supervision. What we want are people ready to fully integrate back into their communities; not people who are released from solitary confinement and led directly to the prison gate, only destined to return again.”