Prison interior. Jail cells, dark background.

Gov. Jared Polis and Colorado's executive director of corrections have inflicted “cruel and unusual punishment” on prisoners by failing to put in place policies to protect those who are medically vulnerable from dying of COVID-19, according to a class-action lawsuit filed Thursday by the ACLU of Colorado.

Colorado corrections facilities see high rates of COVID infections; hundreds of prisoner deaths predicted

The lawsuit seeks an emergency court order to compel the state to put in place measures that will allow physical distancing for all prisoners at high risk of COVID-19, which has a higher death rate for the elderly and those with conditions such as diabetes. It requests a court order that would require the state to prioritize for potential release prisoners that are medically vulnerable to COVID-19.

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“Absent immediate intervention from this court directing the CDOC to take action, devastating, deadly irreparable harm will befall vulnerable prisoners, prison staff and the surrounding communities,” the lawsuit states.

The filing comes as COVID-19 cases are surging in correctional facilities across the state. One of the largest outbreaks in the state is at Sterling Correctional Facility in Logan County, where 539 prisoners have been infected by the virus and where cases have increased by 23% in the past week. Two Sterling prisoners have died with COVID-19 symptoms. The number of infected patients at another prison, in Crowley, jumped by 60% this week, and a new outbreak has been reported at a jail in Washington County.

COVID-19 slams into Colorado's prison system, with Sterling facility state's largest outbreak

The increase in cases at correctional facilities in Colorado is happening as nursing homes — which make up the largest percentage of outbreaks identified by the state — have seen the growth in cases slow.

 The filing of the lawsuit in Denver District Court follows a decision by Polis last week to not renew portions of executive orders intended to give corrections officials more flexibility in reducing prison populations through early releases to protect against COVID-19.

Polis declined to renew those executive orders weeks after a parolee who had been released early from prison due to coronavirus concerns was arrested in the fatal shooting of a 21-year-old woman in Denver. A spokeswoman for the Corrections Department said Colorado's prison system granted early release to 290 prisoners under the governor's executive orders, which is less than 2% of the prison's peak population from earlier this year before COVID-19 had hit the corrections system.

The lawsuit also comes after The Gazette in April reported on a state analysis that predicted COVID-19 would kill up to 170 state prisoners and up to 80 corrections staffers without prison population reductions. That analysis said as many as 16,000 people living or working in the state’s prisons could be infected by the virus, if there were not changes in policy.

The lawsuit, which references that analysis, names as defendants Gov. Polis and state corrections chief Dean Williams. A spokesman for the governor's office declined comment, stating that is policy when litigation is pending. Polis, during a press conference Thursday, also declined to respond to questions about his decision to not renew his executive orders on prison policy, also citing the pending litigation.

"I have great confidence that the team has taken the steps needed to protect the men and women, the guards in the prisons, as well as the inmates," Polis said. He added: "We're not willing to use this as an excuse for unrelated activities."

A spokeswoman for the Department of Corrections did not immediately respond to requests for comment on the litigation.

The lawsuit seeks a judicial order that would require CDOC to prioritize for evaluation for release from state prisons the medically vulnerable, and where release or transfer is not possible, require safe housing conditions that would allow for social distancing. It also asks for a court order for widespread COVID-19 testing of all prisoners as well as staff, and it seeks for corrective action to be taken against staff that fail to wear a mask while on duty.

The lawsuit asks the court to appoint an independent monitor to ensure compliance with any judicial order.

The lawsuit, filed Thursday in Denver District Court, seeks class-action status for all prisoners that are medically vulnerable to COVID-19, which it asks the judge to set as those aged 55 or older, or those that have a specified chronic health condition or are pregnant.

The lawsuit states that Colorado’s prison population includes about 2,000 people who are 55 or older and 5,724 who are described as having “medical needs.”

It claims the current conditions of confinement in state prisons put four named plaintiffs and the proposed class of prisoners at “substantial risk of severe illness or death,” violating the state’s constitution which bars "cruel and unusual punishments.”

The lawsuit currently has five named plaintiffs: Gary Winston, 58, incarcerated at Sterling Correctional Facility; John Peckham, Arrowhead Correctional Facility; Matthew Aldaz,  Buena Vista; William Stevenson, 58, Sterling; and Dean Carbajal, Sterling.

Winston, serving a one-year sentence for drug possession, has chronic obstructive pulmonary disease and has high blood pressure, according to the claim. Peckham has chronic bronchitis and diabetes. Aldaz is confined to a wheelchair and his immune system is not able to fight off infections. Stevenson has hypertension. Carbajal has asthma, the lawsuit states.

The lawsuit claims widespread testing only has occurred in Sterling, and that throughout the state’s prisons “prisoners do not have access to adequate sanitation supplies or protective equipment.” It further claims that many correctional officers are refusing or failing to wear masks.

“It is unfortunate the governor opted not to renew the essential parts of the executive order,” Denise Maes, the public policy director of the ACLU of Colorado, said in a prepared statement, before the filing of the lawsuit. “The ACLU and partners have been uplifting the stories of the many people in Colorado prisons, elderly and medically, who present no public safety risk and yet they languish in prison.”

She added that, “In failing to renew the executive order, a governor who recently signed a law to end the death penalty in Colorado has now effectively sentenced hundreds of people inside and outside our prisons to die.”

The lawsuit follows a ruling from U.S. District Court Judge Phillip Brimmer earlier this month that ordered Weld County Sheriff Steve Reams to provide special protections to medically vulnerable inmates incarcerated in the Weld County Jail. In that lawsuit, also filed by the ACLU, Brimmer ruled that the Weld County Jail must identify inmates who are medically vulnerable, socially distance them and provide them with single cells to the greatest extent possible.

Brimmer also ordered the jail to medically monitor vulnerable inmates and ensure that they have access to face masks.

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