ACLU files appeal to Colorado Supreme Court, wants Gov. Polis to decrease prison population

The original lawsuit, dismissed by a Denver district judge, alleged the governor has not done enough to protect vulnerable inmates from the coronavirus

By: - January 21, 2021 5:03 pm

Kelly Brasier hugs her uncle, Anthony Martinez, for the first time on Jan. 15, 2021. Martinez was granted clemency in December by Gov. Jared Polis alongside three other inmates. Martinez, who is 84 years old and wheelchair-bound, had been incarcerated for over 30 years before his release after being sentenced to life with the possibility of parole for nonviolent crimes. (Photo courtesy of the ACLU)

The American Civil Liberties Union of Colorado on Thursday submitted an expedited appeal to the Colorado Supreme Court regarding the recent dismissal of a lawsuit which aimed to decrease the state’s prison population in light of the pandemic.

The original lawsuit, which was filed in May in Denver District Court and later dismissed on Dec. 24, alleged that Gov. Jared Polis has not done enough to protect vulnerable inmates from the coronavirus and that the inaction has resulted in “cruel and unusual” punishment. In dismissing the case, Denver District Court Judge Kandace Gerdes wrote that the court did not have the authority to order the governor to take additional actions.


The governor’s office has 14 days to respond to the petition before the Colorado Supreme Court will decide whether to take up the case. “We are confident the lower court’s ruling will stand,” said Conor Cahill, a Polis spokesman, over text. 

“Governor Polis is the only person with the power to reduce prison density to save lives,” said Mark Silverstein, the legal director for the ACLU of Colorado, in a written statement. “His refusal to act while elderly and medically vulnerable people face serious illness and death from COVID-19 is both heartless and unlawful.”

ACLU asks judge to order Polis to decrease state’s prison population

As of Thursday, a total of 8,068 prison inmates — or over 50% of the state’s total prison population — and 1,438 staff members have tested positive for the virus since the beginning of the pandemic, and 25 people have died, according to the Colorado Department of Corrections COVID-19 dashboard. Since the ACLU asked for a preliminary injunction on Dec. 2 to speed up the process of the lawsuit, 14 more inmates have died.

In March, Polis issued an executive order that allowed the DOC to release at-risk and nonviolent inmates, but the order has since expired. While it was in place, 61 people earned time credits, 165 were released on “special needs” parole and 84 were released through the DOC’s Intensive Supervision Program, according to the DOC website. The number of inmates released is less than 2% of the state’s prison population. On Dec. 23, Polis granted clemency to four Colorado inmates and 18 pardons.

The ACLU’s appeal states that if a wildfire were raging near a Colorado prison, the governor would have a legal obligation to deploy state resources in order to protect inmates, adding that “inaction would violate his constitutional duty to protect the rights, the health, and the lives of those in the state’s custody.” 

David Maxted, an attorney for Maxted Law LLC who is working on the case, said it should be the same logic with the coronavirus pandemic.

“There’s fires raging in Colorado’s prisons,” Maxted said on Thursday. “It just happens to be a virus that’s causing the suffering and death. And regardless of who started it, if (Polis) has the ability to help alleviate this harm, he has a duty to do that. And that’s what he’s failing to do.”

“When folks are sitting there helpless in prison, whether it’s a wildfire or the COVID-19 pandemic, he’s got a duty to ensure people don’t die unnecessarily,” he added.


Editor’s note: This story was updated at 5:54 p.m. on Jan. 21, 2021 with comments from the governor’s office.

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Moe Clark
Moe Clark

Moe Clark is a freelance journalist and former Colorado Newsline reporter who covered criminal justice, housing, homelessness and other social issues.