On March 25, shortly before announcing a stay-at-home order for the entire state of Colorado over COVID-19, Governor Jared Polis issued guidance for law enforcement officials on how to do their jobs as safely and efficiently as possible during the current crisis. But while the ACLU of Colorado, which had urged Polis to take such an action last week, was generally pleased with the results, one question lingered: Will police and sheriff office personnel actually follow all of the suggestions, including ones related to reducing arrests for low-level, non-violent crimes?
"When you have approximately 64 county jails and jails in many more municipalities, it's hard to know if they're all going to use the guidelines consistently," admits Denise Maes, the ACLU of Colorado's public policy director. "One of the things that's important for the governor is to make sure the guidance is adhered to as much as he can. Because this is an all-hands-on-deck situation. Everybody has to do their part."
Meanwhile, pressure is being exerted in another way. Around the same time that Polis made public his recommendations, attorney and Westword cover subject Jason Flores-Wiilliams filed a so-called extraordinary petition, once known as a writ of mandamus, asking that the Colorado Department of Public Health "mitigate the COVID-19 crisis" in the downtown Denver jail. Flores-Williams contends that "inmates in general population are not being tested, new inmates are not being tested before entering general population, inmates exhibiting symptoms are mixing in general population," and "inmates are eight to a cell without the ability to sanitize or protect themselves."
Polis's guidance addresses most, if not all, of these concerns. Among other things, his memo encourages detention centers to practice social distancing for inmates and staff whenever possible, suspend all visitation, ensure that no more than ten people are gathered in any confined space at the same time, develop protocols to regularly sanitize facilities, and screen individuals being booked or released, as well as all staff members, for COVID-19.
There's already significant buy-in from the law enforcement community for these measures. The County Sheriffs of Colorado organization has delivered its own COVID-19 guidance for jails and detention centers, and the suggestions are even more specific when it comes to virus prevention methods for law enforcers. One passage reads: "When an arrestee is brought into a Detention Center, it is recommended that the arresting officer refrains from entering the Detention Center, transferring custody to detention officers and leaving the immediate area to complete paperwork, etc." Another suggests: "Have your deputies remain out of office until it is necessary to come in. Encourage deputies to work from home, going out on normal patrols during the day and using mobile data terminals to file reports."
The sheriffs and Polis are also in agreement when it comes to minimizing incarceration — a concept that might have been controversial in a more typical time. Polis's guidance calls for the increased use of warnings and summonses rather than arrests if public safety isn't at risk, urges great care when interacting with individuals who show virus symptoms, and pushes jurisdictions to implement pretrial diversion and release methods rather than simply taking every eligible person into custody. For their part, the sheriffs direct their charges to issue a summons for any non-mandatory arrestable offense where incarceration isn't bound by statute (e.g., domestic-violence offenses), and calls for individuals with warrants for all but crimes covered by the Victims Rights Act to be informed that the orders in their name remain active and then released.
These measures are key to Maes. "It's clear that the governor believes de-populating the jails is critical," she says. "I think he's clearly trying to stop local law enforcement from continuing to take in non-violent offenders, and the guidance shows that he recognizes that."
Various law enforcement agencies are still free to make decisions on a case-by-case basis, and not all of them will jibe with what Polis or the sheriffs' group would prefer. But Maes emphasizes that "this really isn't an issue only about the inmates in the jail. There are approximately 600 people who are released from jail in Colorado daily, and if there is something taking place in the jail, they are transmitting it to the general public."
She concedes that the federal Centers for Disease Control and Prevention advise that groups be limited to fewer than ten people in size, all of them spaced at least six feet apart — "and that's not possible in 95 percent of the way jails are operated. But this is a health crisis, and there are all kinds of people in jails beyond inmates: sheriffs, probation officers, lawyers, maintenance workers, interpreters. We need to pay attention to this guidance and do what we need to do to keep everyone safe."