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Colorado Prisoner Lawsuit Argues That DOC Actions Violate Anti-Slavery Amendment

Any inmate forced to work in Colorado can join the case, which could have ripple effects across the country.
Image: inside of prison with cells
A prisoner suit to stop servitude just got class-action status. Photo by Carles Rabada on Unsplash
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In 2022, a lawsuit filed on behalf of two Colorado prisoners argued that Amendment A, a successful 2018 ballot measure that eliminated a provision in the Colorado Constitution allowing "slavery and involuntary servitude as punishment for a crime...in all circumstances," prevents the state from forcing prisoners to work under threat of losing privileges, being placed in isolation or adding time to their sentence.

Now, more than two years later, Denver District Court Judge Sarah B. Wallace has ruled that the complaint can continue moving through the legal process, and the number of plaintiffs can expand far beyond Richard Lilgerose and Harold Mortis, the pair that initially raised the issue.

In a December 17 order, Wallace grants class-action status to the case and specifies that Lilgerose and Mortis can be joined by "all people incarcerated by the State of Colorado who are now, or will in the future be subjected to mandatory work polices and practices of the Colorado Department of Corrections." The order also designates Valerie Collins and three other attorneys working on behalf of Towards Justice, a Denver-based nonprofit advocating for the inmates, as counsel for the class.

Collins sees the ruling in simple terms. "It's huge. The lawsuit itself is the first in this kind of procedural case where a state has gotten rid of the exemption clause," she says, referencing the slavery language," and is now challenging a mandatory work program." She notes that more suits will follow, since "between 2018 and 2024, there have been at least six states that have passed similar language for their constitution," including Alabama, Nebraska, Oregon, Utah, Tennessee and Vermont.

In the meantime, though, neither CDOC nor Governor Jared Polis, both defendants in the matter, have shown any willingness to back down. "The state and the Polis administration have continued to fight against this case for years," says Towards Justice executive director David Seligman. "That's why the court certifying the class action represents a really important step for the litigation."

Amendment A took an unusual route to passage. As reported in an October 2018 Westword article on Jumoke Emery, an organizer for the advocacy group Abolish Slavery Colorado, a version of the measure had appeared on Colorado's 2016 ballot, but it fell short of passage by fewer than 20,000 votes, or less than 1 percent of the total. After the fact, legislators and proponents of the amendment came to the consensus that the ballot language in 2016 was so confusing that many voters didn’t realize that they were actually voting against abolishing slavery in Colorado.

The concept returned as Amendment A in 2018, and while most of the coverage portrayed the issue as the simple removal of antiquated and embarrassing language, Emery underscored the connection between the proposal and prisons. "However we feel about the criminal justice system, whether we feel like it's doing a great job or a bad job, we don't want our criminal justice system to be slavery," he told Westword.

The text of Amendment A tackles the prison conundrum head-on. One section states: "The state recognizes that allowing individuals convicted of a crime to perform work incident to such convictions, including labor at penal institutions or pursuant to work-release programs, assists in such individuals' rehabilitations, teaches practical and interpersonal skills that may be useful upon their reintegration with society, and contributes to healthier and safer penal environments." Another section adds: "Because work provides myriad individual and collective benefits, the purpose of this proposed constitutional amendment is not to withdraw legitimate opportunities to work for individuals who have been convicted of a crime, but instead to merely prohibit compulsory labor from such individuals."

The measure won by a landslide in 2018, and Towards Justice's Seligman doesn't think the margin of victory was merely symbolic: "The people of Colorado have already said what the law should be with 66 percent of the vote. So we don't need to pass another law to clarify anything. We need to make sure the state complies with the law, as opposed to ignoring it."

This theme is underscored in the lawsuit by accounts from the plaintiffs, both of which touch on the devastation wreaked by COVID-19 on the incarcerated population.

Mortis, 32, suffers from asthma, and when he contracted the virus in October 2020, this pre-existing condition made his recovery that much more difficult. According to the suit, he was still suffering from symptoms the next month, when he was ordered to start working eight-hour shifts in the kitchen of the prison where he was being held. After he objected, prison personnel reportedly told him that he'd been deemed recovered and said he could be removed from the "incentive-living program" in which he was enrolled and lose "earned time," typically shorthanded as time off for good behavior, if he didn't capitulate. After months of his grievances going nowhere, he eventually did so.

Lilgerose, 45, also contracted COVID in October 2020, after which he was assigned to serve in a food-services job before he'd fully recovered, according to the complaint. When he stopped working that December, he was removed from his own incentive-living program and lost four days of earned time before returning to work involuntarily. In February 2022, the suit continues, Lilgerose saw a corrections officer wake up a prisoner for a shift, and when the inmate said he was sick, the guard responded by threatening him with a taser and telling him he had to "either get to the kitchen or cuff up and go to the hole."

Judge Wallace's order cites evidence of "inmates being held in their cells more than twenty hours a day for failing to work" and paraphrases CDOC regulations that say inmates can be "moved to a higher security prison or higher security area within their current facility because he or she refuses to work."

Preventing the state from threatening inmates who reject work assignments with draconian measures could actually have positive effects, Seligman contends. "Corrections experts and others have made clear that a system of coerced labor inside prisons isn't good for the purported goals of rehabilitation," he maintains. "It results in all kinds of increased costs in the system. So removing coercion from labor programs inside prisons is not only good for people who are incarcerated. It's good for the state, because it will save money."

Authorities in Alabama are far from convinced of such benefits. This past August, Collins notes, that state was able to win the dismissal of a lawsuit over coerced work in prisons, and that rejection can't be reversed by anything that happens in Colorado. Still, Collins thinks success for the Lilgerose and Mortis complaint could have widespread ripple effects.

"Advocates in other states are looking to Colorado to see which legal arguments are working and which ones aren't — and to get some guidance from Colorado about how to move forward," she stresses. "Also, there are other states looking to pass constitutional and ballot measures like Amendment A in the future. That puts Colorado on the forefront of this issue, which is pretty exciting."

What's next for the lawsuit? "Trial, in theory — if we get there," Seligman replies, though he'd be fine with a different ending. "The state has continued to expend resources by fighting this case in court. But we're always happy to discuss other potential resolutions as well. We're asking the court to make the state follow the rules — but that's something the state could do voluntarily."

"Due to pending litigation, the Colorado Department of Corrections does not have a comment," says a DOC spokesperson.

Click to read Richard Lilgerose and Harold Mortis v. Jared Polis et al. and the order regarding the motion for class certification.