Colorado Supreme Court Denies Petitions to Help Lower State Jail Population

An exterior look at Denver County Jail.
An exterior look at Denver County Jail.
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On April 3, a coalition of defense attorneys filed a petition asking the Colorado Supreme Court to lower the jail population across the state in order to help stop the spread of coronavirus. It took only hours for the court to come back with its answer: no.

The justices didn't offer an explanation for the denial of the petition, simply noting in a motion that the decision was made "en banc," or by the whole court.

"It’s very frustrating," says Maureen Cain, a spokesperson for the Colorado State Public Defender's Office, which was a party to the lawsuit. "I am not convinced we’re doing everything we can do and should be doing."

In particular, the petition had asked the Colorado Supreme Court to order trial courts to lessen the number of people taken into custody, release pre-trial detainees whenever possible, and shorten jail and work-release sentences. The Colorado Criminal Defense Bar and the Office of Alternate Defense Counsel joined the public defender's office in filing the suit.

"If taken immediately, these emergency measures will mitigate the spread of COVID19 among incarcerated people and in the broader community. This will save lives," the petition argued, noting that the highest courts in other states have enacted orders to help reduce jail populations.

According to Cain, Colorado regulations limit how much litigation the state public defender's office can do going forward. But she says she anticipates that civil rights organizations will engage in more state litigation or perhaps even federal litigation to accomplish some of the aims of the original petition.

In the meantime, Cain's office will push for bond reconsideration motions and petitions for early release on a case-by-case basis, in an effort to get as many clients as possible out of jail.

Since the COVID-19 pandemic started hitting Colorado in early March, some jails have dramatically reduced their detainee populations. The City and County of Denver, for example, has reduced its jail population from a daily average of 2,000 to less than 1,200.

But jail population is just one metric for determining how well jurisdictions are doing in mitigating the damaging effects of COVID-19 among detainees, Cain says.

"Some jurisdictions had too many people in jail to begin with. They had a lot of low hanging fruit to let out," she explains. "Some were very much more progressive in terms of who they held pre-trial, which is the largest percentage of people in jails, which is people who are presumed to be innocent."

And that reduction needs to continue, the petition had argued, since it's impossible for detainees to socially-distance inside jails, making COVID-19 spread more likely.

As of today, four inmates at the Downtown Detention Facility in Denver have tested positive for COVID-19. A combined six inmates there and in the Denver jail are in isolation due to possible infection, and are being monitored by Denver Health. Jail staff are also quarantining and monitoring individuals who have symptoms of COVID-19, but haven't yet received test results.

"The broader health system does not have the capacity to handle a wave of critically ill patients coming from jails and prisons in addition to the expected community outbreak," Carlos Franco-Paredes, an infectious-disease specialist with the University of Colorado, wrote in an expert opinion attached to the petition.

The COVID-19 threat isn't just looming over jail detainees, but also those who interact with them. The state public defender's office is advising lawyers to wear masks to court. Additionally, 38 staff members in Denver's Department of Public Safety, which houses the sheriff's department, have tested positive for COVID-19, according to the most recent available numbers. In El Paso County, a deputy sheriff who had been working in the county jail died on April 1.

The Colorado Supreme Court's denial of the petition came about a week after Governor Jared Polis issued an executive order aimed at reducing the state's prison population.

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