On May 28, 2020, the ACLU of Colorado and the Civil Rights Clinic at the University of Denver School of Law sued the Governor of Colorado and the Executive Director of the Colorado Department of Corrections (CDOC) for failure to protect medically vulnerable people in prison from COVID-19. Five named plaintiffs represented a class of "Medically Vulnerable Prisoners;" the proposed class consisted of current and future persons held by CDOC who were at a high risk of serious illness or death from COVID-19 because they were aged fifty-five or older; had a chronic health condition; or was pregnant. The case was assigned to Judge Kandace C. Gerdes.

The complaint alleged that the conditions in the prison facilities prevent adequate safety precautions from being taken, such as social distancing or sanitary cleaning. Statistic modeling performed in April of 2020 predicted over 200 deaths between staff and those incarcerated due to the conditions at the facilities. The complaint noted that the Executive Director of CDOC noted in an email that "reducing prison density is the only tool" available. A CDOC Management Plan sought to reach approximately 80%-85% density to reduce the risk. However, the complaint alleged that prison density remained at 90% and reached higher than 95% in some individual prisons. As such, the defendants alleged that the defendants violated the state-equivalent of the Cruel and Unusual Punishment clause and sought class-certification and injunctive relief to identify medically vulnerable and release medically vulnerable prisoners to other forms of detention. For the people remaining incarcerated, the plaintiffs sought widespread testing, enhanced sanitation, and an independent monitor to ensure that the CDOC facilities were in compliance with medical recommendations.

On November 13, 2020, the plaintiffs filed an amended complaint. The amended complaint alleged that the defendants had still not implemented effective precautions, resulting in over 2,000 positive cases and four deaths as of November 2020. While the amended complaint largely resembled the original complaint, the proposed class was altered slightly to consist of current and future persons held by CDOC who were at a high risk of serious illness or death from COVID-19 because they were aged sixty or older; had an underlying condition recognized by the CDC as elevating one's risk; or was pregnant. The amended complaint also specified that the plaintiffs sought the population reduction relief from the Colorado Governor, and sought other the other injunctive relief pertaining to conditions-of-confinement from CDOC.

The same day that the amended complaint was filed, the plaintiffs entered into a consent decree with CDOC. The consent decree certified the class that was proposed in the amended complaint, and required the CDOC to identify medically vulnerable people and prioritize their safe housing. The agreement also provided for increased sanitation measures and widespread testing among staff and incarcerated people. Finally, the consent decree required independent experts to advise on COVID policies and that critical information around testing should be shared continuously.

The consent decree effectively ended the claims against the CDOC (although the court retained jurisdiction to enforce the consent decree), so the only remaining claims are against the Governor. As of January 12, 2021, the case remains ongoing.

Justin Hill - 01/12/2021


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