Gov. Jared Polis on Tuesday called on law enforcement to issue citations and summons in lieu of arrests for certain crimes in an effort to help reduce the state’s jail population as the number of Coloradans infected by the new coronavirus continues to mount.
The guidance comes three weeks after the first reported case in Colorado and as its number of COVID-19 cases reaches about 1,000. On Wednesday afternoon, state health officials said 19 people have died of the highly infectious disease. As of Tuesday afternoon, state health officials said there have been no confirmed COVID-19 cases in any of the state’s jails, but criminal justice advocates say an outbreak is all but inevitable given the sharing of cells and overall density of jails.
The Office of the State Public Defender called on the governor earlier this month to help release low-risk inmates from jails, including those who are yet to be convicted and tried for a crime. There are more than 15,460 people in Colorado’s 57 jails. Most of them are being detained on a bond pretrial. Last week, on March 17, criminal justice advocates again called on the governor to take steps to reduce the jail population.
Polis’s six-page recommendation does not outline steps to release people already in jail. Instead, he calls on prosecutors, public defenders, judges and sheriffs to come up with a plan to release certain inmates. The recommendation is also vague in terms of what types of arrests law enforcement should avoid. Instead, it asks law enforcement to not arrest people “when there is no clear risk of physical harm to others or the community.” He also called on sheriffs to implement social distancing in their jails, suspend visitations, and to screen inmates and workers for COVID-19, among other recommendations.
Until Tuesday, Polis had not mentioned inmates, nor Colorado’s homeless or immigrants — including those in detention at the GEO-run ICE facility in Aurora — in any of his seven press conferences since the state’s first confirmed case on March 5.
The governor generally supports local control and has a well-documented libertarian streak. Both tendencies have come into focus during his handling of the COVID-19 outbreak in Colorado, specifically in his reluctance to issue a shelter-in-place order. Counties across the state have instead issued stay-at-home orders.
In the absence of an overall state strategy, judges, prosecutors, public defenders and sheriffs have scrambled to set up a patchwork of policies to prevent a COVID-19 outbreak in the criminal justice system.
Colorado Chief Justice Nathan Coats in a March 16 order gave each of the state’s 22 judicial districts discretion on handling the coronavirus outbreak. On Monday, Attorney General Phil Weiser recommended that the courts delay trials, giving them legal guidance for how to justify missing speedy trial deadlines set under the state constitution.
Chief Judge Michael Martinez on Sunday ordered the closure of the Lindsey-Flanigan Courthouse in Denver for two days after another public defender contracted COVID-19. He also postponed appearances this week while judges, prosecutors and public defenders come up with a plan to appear in court remotely.
“Our hope is to get all this working before we have positive tests,” said Lucienne Ohanian, chief deputy public defender with the Office of the Colorado State Public Defender.
Ohanian is concerned by the way in which some counties are handling the outbreak. She singled out Denver specifically, saying that its continued insistence upon defense lawyers meeting face-to-face with their clients in the jail rather by phone puts the lawyers and the inmates at risk.
“They are inviting us to introduce the virus into the jail,” Ohanian said.
The Denver Sheriff’s Department, which operates the largest jail system in the state, confirmed on Friday in a statement that in-person professional visits are continuing as normal. Heather Burke, a public information officer for the city’s joint information center, said due to the length and frequency of professional visits and the limited number of phones in the jails, allowing defense lawyers to use the phones would reduce the time available for inmates to connect with family and friends. She said technology infrastructure improvements are underway to allow other ways for lawyers to consult with clients but did not say when they would be in place.
Other jails, such as those in Alamosa and Douglas counties, have set up ways for attorneys to speak to their clients privately over the phone, Ohanian said. State and constitutional law requires jails to provide public defenders confidential access to their clients, she said. Meeting in-person during a public health crisis doesn’t count, Ohanian said.
Polis’s order also calls for the suspension of all visits to the state’s jails and called on sheriffs to make accommodations for free phone or video conferencing calls, subject to local resources. County sheriffs also issued guidance, to which Polis deferred to the extent that the sheriff’s recommendations are more stringent.
The Department of Corrections, which oversees the state’s approximate two dozen prisons, has closed the prisons to visitations. And on Monday, the company that operates the collect call system with the state’s prisons, GTL, began offering 10 minutes of free calls per week to families of inmates, according to a spokesperson with the Department of Corrections.
Denise Maes, a public policy director for the ACLU of Colorado, said Polis’s recommendations are a good first step. She said she hoped such action would come sooner, but that it is among the boldest steps taken by any governor in the country. She added, “We want to encourage him to not just issue the guidance but to do the follow-up and make sure the guidance is being followed.”