The Colorado Department of Corrections is back in court again, this time defending concrete “shoeboxes” as appropriate spaces for outdoor exercise.
The lawsuit is part of a string of legal actions brought by prisoners banned from going outside for months, years and, in some cases, decades.
U.S. District Judge Brooke Jackson earlier this month chastised the DOC for failing to comply with his order to provide outdoor exercise to Troy Anderson, a mentally ill prisoner who has lived in solitary confinement since 2000. Among other civil rights complaints, Anderson sued the state over the indoor exercise rooms at Colorado State Penitentiary, the state supermax prison in Cañon City where he lived for 12 years virtually without fresh air. Anderson won that part of his lawsuit last year when Jackson agreed the deprivation of outdoor exercise constitutes cruel and unusual punishment.
The “Eighth Amendment does not mandate comfortable prisons, but it does forbid inhumane conditions,” Jackson wrote in his August 2012 ruling. “This Court concludes that denial of any opportunity to be outdoors and to engage in some form of outdoor exercise for a period of 12 years is a serious deprivation of a human need, according to the evidence in this case and according to any reasonable concept of what constitute the civilized measure of life’s necessities.”
Cages don’t comply
Jackson gave prison officials 60 days to let Anderson exercise outdoors. Four days before that deadline, officials moved him from CSP to Sterling Correctional Facility, where prisoners are given limited exercise time in high-walled cement cages like the one pictured above. The exercise areas are 6-feet five-inches high by 28-feet long with a ceiling that’s 16- to 20-feet high. Eight-foot high concrete walls block prisoners’ line of sight, leaving a view only of a small swatch of sky. And that’s on the top tier of the prison unit, which is as good as it gets. Exercise cages on lower tiers offer virtually no view of the sky.
“This recreation area is not outdoors. Rather, it is a narrow area with high cement walls and a partial steel mesh ceiling that is accessible directly from the pod. The cement walls are so high that I cannot see anything from side to side. I can see the sky through the mesh ceiling of the enclosure and, if the sun is high enough in the sky when they take me out, I can see that, too. Otherwise, I can’t,” wrote Anderson, 43, who has served nearly two decades of what’s essentially a life sentence. He engaged in gun battles with police before he was arrested for offenses tied in part to robbery and drug use. He said in court last year that it has been an extreme psychological hardship not to be able to feel sun shining or wind blowing on his skin.
Anderson complained in his legal declaration that Sterling’s exercise cages are no improvement over the indoor exercise rooms at CSP.
“In the recreation area at Sterling, I cannot look out horizontally to see birds or landscape. Looking out at the world was the best part of the recreation area at CSP,” he wrote. “Being in the recreation area feels like you are in a shoebox. The area steals the whole feeling of being outside because you are surrounded by four cement walls.”
The DOC defends the cages as meeting the definition of outdoors.
“I’ve been in that area. I do believe it’s compliant. It is outside. He’s able to go outside. He can get snowed on, rained on, it’s 10 degrees out in the middle of December and we’re out there and it’s cold,” Assistant Attorney General Christopher Alber, representing the DOC, told Judge Jackson, according to a September 4 hearing transcript obtained by The Colorado Independent.
Jackson wasn’t convinced.
“Yeah, well, this judge is telling you it’s not compliant,” he told Alber.
“In my opinion, based on what I’ve seen and read, the Department is not in compliance with my order with respect to outdoor exercise,” Jackson said. “You can’t tell me that putting somebody in a box with a mesh ceiling 20 feet above, or whatever the number is, where they can’t see out, all they can see is that there’s a mesh and there’s sky up there, that’s not what I had in mind.”
“If that was done on a temporary basis until they could come up with something more satisfactory, not just for Mr. Anderson, although he happens to be the case here, but something more satisfactory, I can live with that,” Jackson continued. “But I can’t live with that cage in Sterling.”
In 2011, the prison system moved its death row prisoners from CSP to Sterling after one of them, Nathan Dunlap, complained about the lack of outdoors exercise at CSP. Anderson isn’t the only inmate protesting Sterling’s cages. Another Colorado lawsuit, filed by prisoner Jacob Oakley, challenged whether Sterling’s exercise cages qualify as outdoors. The judge in that case, like Judge Jackson in Anderson’s, ruled that Sterling’s cages don’t comply.
Turning an ocean liner
In addition to his quest for outdoor exercise, Anderson’s civil rights lawsuit challenged shortcomings in the DOC’s mental health care program at the state supermax. For years, he was denied Ritalin, the drug he needs to help treat the explosive outbursts of anger that come with his extreme Attention Deficit and Hyperactivity Disorder. Anderson also sued over the vague review process that was keeping him in solitary confinement without, he argued, a fair chance of working his way out.
He did not receive the medication he needed during his years at CSP and was given extra time in isolation for offenses ranging from threatening to throw feces at a guard to asking for a brand of deodorant that was not on the prison’s canteen list.
During Anderson’s trial in spring 2012, prison officials defended their mental health care by touting the success of a program called OMI (short for Offenders with Mental Illness). Since then, that program has been replaced by something called RTP (Residential Treatment Program) for which Anderson has been deemed unqualified. During this month’s hearing in the Anderson case, Judge Jackson derided DOC for instability in its mental health programs.
“Well, it’s kind of bizarre in a way because your people testified in that trial of ours that this program… They were raving about the program. It sounded like the best thing ever. And all of the sudden it’s not effective and they’ve got a new program,” the judge said.
Anderson’s mental health improved partly when, a month before his arrival at Sterling, he was finally given Ritalin for attention deficit disorder. But the gains from the medication, he says, have been offset by not having access to the talk therapy he benefitted from at CSP. He has avoided the exercise cages as a way to avoid contact – and possible conflicts – with guards.
Anderson’s legal team argued in court that the DOC is ducking meaningful change for their client.
“The judge has ordered the parties to talk; we are hopeful that the Department will be willing to work with us to solve these problems,” says Amy Robertson, an attorney the Civil Rights Education and Enforcement Center, the Denver nonprofit that is — along with the University of Denver Civil Rights Clinic — representing Mr. Anderson.
Jackson lamented how slowly reform takes in the DOC.
“You don’t turn an ocean liner around in 50 feet or in ten minutes, as the drivers of the Titanic found out. It takes time,” he said. “And if you’re dealing with the government, it takes more time than it should because the government doesn’t act very quickly sometimes.”
The judge said that, during the trial, he grew confident about the reforms then-DOC Director Tom Clements was making in his department, especially on mental health issues. Jackson surmised that those reforms would have been speedier if Clements hadn’t been gunned down in March. Like Anderson, Clements’ assassin, Evan Ebel, had lived for years in solitary confinement in CSP before being moved shortly before his release to an isolation unit at Sterling.
“Tom Clements came in with an idea to force the Colorado Department of Corrections, kicking and screaming if necessary, into the 21st century,” Jackson said. “And if his life hadn’t been cut short, he’d still be doing it.”