ACLU pressures Polis to release more inmates at risk for COVID-19

First seen in the Colorado Springs Indy

Marsha Brewer’s fifth wheel has been sitting on her and her husband Jim’s ranch in Yoder for the last month, detailed and ready to quarantine him if he comes home from prison. But now she says she’s selling it, though she hasn’t lost hope that Jim will still be released from Sterling Correctional Facility. He is 72 years old, and it’s the site of Colorado’s largest and deadliest COVID-19 outbreak in a prison, with three fatalities. 

Jim was charged in 2015 with sexual assault against a minor. He entered a plea deal and was then resentenced to prison in 2018 after a judge ruled that he hadn’t completed court-authorized treatment. He was evaluated in 2018 as being at low risk for reoffending, according to documents provided by Marsha, but a judge sentenced him to two years to life

Since March, Marsha says her husband has had more than three cellmates, including one who tested positive for COVID-19, despite Centers for Disease and Control and Prevention (CDC) guidance that at-risk inmates should be alone in a cell. Jim, an Air Force veteran and a rancher who Marsha calls a “horse whisperer,” is high-risk due to his age and a previous heart attack. He has not tested positive for the virus, but Marsha is still terrified that he will catch it — and, she says, so is he. 

Despite the falling number of novel coronavirus cases in the state, the American Civil Liberties Union of Colorado, a legal advocacy group, is pushing the governor and the Colorado Department of Corrections (CDOC) to release vulnerable and elderly people, like Marsha’s husband, from state prisons and jails. The facilities are ripe for viral outbreaks, and Gov. Jared Polis didn’t extend a March executive order allowing special parole applications for low-risk inmates who were at high risk for infection. Marsha says Jim was denied twice for special needs parole, awarded to people who have underlying medical risks or were close to their parole date.

The CDOC’s population has dropped by 11.4 percent since March, but only 310 of those 2,200 people were released due to Polis’ expired executive order. The rest were released through normal processes. This led to an increase in the number of beds available — a 19.3 percent vacancy rate in August compared to last year’s 1.8 percent during the same month. But those advocating for the release of people inside, such as the ACLU, say the measures are still not enough to save lives.

According to data aggregated by The Marshall Project, a national criminal justice-focused news outlet, nearly 1,000 inmates have died from COVID-19 nationwide. The top 15 COVID-19 outbreaks in America are in jails or prisons, and the three biggest COVID-19 outbreaks in Colorado have been in a jail or prison. The state’s worst outbreak, where Jim is incarcerated, happened this spring. 

Inmates are at higher risk than the general population for catching and dying from COVID-19, according to Carlos Franco-Paredes, an associate professor of medicine and infectious disease at the University of Colorado Anschutz Medical Campus. Franco-Paredes was also referenced by the ACLU in the May lawsuit against the CDOC and the governor. A September 2020 study by The Council on Criminal Justice, a national nonpartisan think tank, found that across the nation the mortality rate for COVID-19 in prisons is twice that of the general population.

[Incarcerated people] don’t have a choice to shield from the pandemic. And if you don’t do enough to protect them then… it’s the fault of the system.

— Carlos Franco-Paredes, University of Colorado school of medicine

Franco-Paredes, who helped to develop national response plans in Mexico and the U.S. for H1N1 and SARS outbreaks, has spent this year evaluating and studying correctional facilities across the country, including Los Angeles County jails and Colorado facilities.

He says he’s been in communication with CDOC Executive Director Dean Williams since April, and is overall impressed by Williams’ grasp of the issue and efforts to mitigate the virus’ impacts.

He says he’s seen more proactive action and testing from CDOC than other correctional facilities he’s studied. But even with CDOC’s steps to protect incarcerated people, only the governor has the executive power to reduce the population in prisons by allowing early releases.

“These jails and prisons are basically tinderboxes for infectious diseases that could be easily transmitted,” Franco-Paredes says.

He points to three main factors. First, susceptibility is high because COVID-19 is new to everyone’s immune system. It can be even higher in prisons, where people of color — who are more likely to have preexisting conditions such as asthma and diabetes — make up a disproportionately high percentage of the inmate population. The accelerated aging of incarcerated people also increases susceptibility. Franco-Paredes says a 55-year-old inmate can be 65 by health measures. In April the CDOC population included 2,000 people who were 55 and older and 5,724 with “medical needs,” according to the department.

The second factor is the easy transmissibility of COVID-19, and the third is the rate of exposure — the most important factor in correctional settings. Exposure is high due to poor ventilation, confined spaces and the inability to maintain 6 feet of distance. 

“You can have the best disinfectants. You may have some degree of social distancing, but the only really meaningful way to reduce transmission is by reducing the population density of these places,” he says.

Franco-Paredes says that the almost 1,000 deaths, including correctional staff, from COVID-19 in prisons were preventable.

“[Incarcerated people] don’t have a choice to shield from the pandemic. And if you don’t do enough to protect them then … it’s the fault of the system,” he says.

Outbreaks within correctional facilities can also act as “amplifiers” of COVID-19 for the surrounding communities, Franco-Paredes says. People who work in prisons or jails can spread the virus.

The ACLU sued the CDOC and Polis in May for violating inmates’ constitutional rights, which bar “cruel and unusual punishment,” by “continuing to incarcerate them in conditions where it is impossible to prevent transmission of an infectious disease and to protect themselves.”

They targeted the governor for not using his executive powers to release more people. The lawsuit reported that his now-expired orders allowed for the release of 7,000 people but only 2,200 have been released as of the end of August.

The suit stipulated that adequate masks be provided and widespread testing increased, among other demands. The CDOC had tested more than 10,600 inmates as of Sept. 2, an increase from only 1,100 tested by the end of March.

The CDOC and ACLU have jointly agreed to settle the lawsuit in a consent decree — a court-ordered list of agreements — while the suit against the governor will continue separately. The consent decree and new lawsuit specifically against Polis will be filed by Oct. 2.

Denise Maes, the Colorado ACLU‘s public policy director, says that COVID-19 inside correctional facilities is not just a public health and safety issue, but also a racial justice issue. 

“It is one thing to say Black lives matter. It’s another way to act accordingly. And the fact of the matter is, we incarcerate way too many people for way too long, and that disproportionately impacts brown, Black and Indigenous people,” Maes says.

“It’s no surprise that there are some in the advocacy community that want to use the pandemic as an excuse for other reforms, some of which I oppose, some of which I may support,” Polis said in the Colorado Sun, in response to the ACLU lawsuit. “We will vigorously defend against any lawsuit that seeks to turn this pandemic into an effort to release dangerous criminals.”

CDOC is also involved in the litigation. Annie Skinner, CDOC’s public information officer, wrote in an email, “The Department has taken numerous steps to prevent and mitigate the spread of the virus.” Skinner listed eight steps, including collaboration with the Colorado Department of Public Health & Environment on “large scale testing,” staff screening and suspended visitation.

Large-scale releases are only possible if the governor expands parole and grants clemencies. Maes says the governor’s inaction means “more people will become infected and the likelihood is more people will die.” She adds that Polis has “forgotten about an entire people on the other side of the wall” who could be contributing to their communities and sheltering from the pandemic with their families.

“Jim is not just worried about catching it, he is worried about dying,” Marsha says. She doesn’t know where else to turn. Her hope for his release rests on Jim’s October parole hearing.