Colorado public defenders seek to release people from jail before COVID-19 outbreak

Three-quarters of inmates in the state's jails have yet to be sentenced or tried

Former recreation yard at the Alamosa County jail, Dec. 20, 2018. Public defenders are seeking the release of inmates from jail before a COVID-19 outbreak. (Photo by Evan Semón)

Colorado’s public defenders are asking judges across the state to release jail inmates out of concern they could be hardest hit by COVID-19, the disease caused by the new coronavirus. 

The public defenders are seeking the release of people who are older, have medical conditions, or who were arrested for nonviolent offenses. The jail population is considered medically vulnerable. Many are without homes, health insurance and battling addiction. 

Public defenders are also targeting the majority of people who are in jail and still presumed innocent. According to data reported to the Colorado Division of Criminal Justice, of the 15,465 people in Colorado’s 57 jails, three-quarters of inmates have yet to be sentenced or tried. 

The move comes as the coronavirus continues its spread across the globe, with 72 people tested and presumed positive for COVID-19 in Colorado, according to state health officials. At least three people with COVID-19 in Colorado are hospitalized and in critical condition, Gov. Jared Polis told reporters on Friday. 

Public defenders believe an outbreak is imminent in jails, where social distancing aimed at preventing coronavirus spread is all but impossible. Inmates share communal toilets and sinks. Some inmates are in holding cells with no sinks. They wash clothes together. They eat together. Staff and inmates come and go on a regular basis. Making matters worse, in many jails, hand sanitizer is considered contraband due to its high alcohol content. And those with their wrists cuffed behind their backs have a hard time covering a cough.

“Jails can easily be compared to cruise ships,” said Lucienne Ohanian, chief deputy public defender with the Office of the Colorado State Public Defender. “From my perspective, the jails are one of the most risky places for this to get really bad if we don’t do something about it.”

Public defenders across the state are already filing motions with the courts to have some of their clients released, Ohanian said. They are filing individual motions for judges to reconsider bail or to reconsider jail sentences, which is a common practice even in non-pandemic circumstances. 

But this process, Ohanian said, may not be fast enough. She said public defenders are hoping to negotiate with prosecutors to come up with a list of people who can be released under one motion to a judge. 

Polis has not announced any emergency measures for inmates in Colorado’s jails.

“The Governor wants to ensure the state is doing everything we can to protect the health and safety of all Coloradans. Our Department of Corrections is taking important steps to address this public health threat,” a spokesperson for the governor’s office said in an emailed statement.

The Colorado Independent is seeking comments from the Colorado District Attorneys Council and additional comments will be added if provided. 

The Denver County jail on Feb. 19, 2020. (Photo by John Herrick)

Attorneys across the country have raised constitutional concerns about how people in the criminal justice system are affected by the new coronavirus. In New York, judges are delaying hearings on the basis that people should have their temperature tested before going to court. This, attorneys say, raises questions about rights to a speedy trial. Some jails may not be equipped to treat people with COVID-19, which could violate 8th Amendment protections against cruel and unusual punishment.  

But for Ohanian, it comes down to equal protections under the 14th Amendment. She said poor people who cannot pay bond are facing a high risk of exposure, and, if they get out, she said, they may not have access to health care. 

“Our laws are supposed to protect people in the same way despite their financial circumstances,” Ohanian said. But here in Colorado, she said, “We’re putting the poorest and most medically frail at risk.” 

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