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Colorado Supreme Court Fails To Protect State Residents As Coronavirus Grows ‘Exponentially’ In Jails

People behind bars are too often forgotten and treated as expendable. We cannot afford to forget them. Our shared survival and shared humanity demand action.

Colorado Supreme Court Fails To Protect State Residents As Coronavirus Grows ‘Exponentially’ In Jails

People behind bars are too often forgotten and treated as expendable. We cannot afford to forget them. Our shared survival and shared humanity demand action.


This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

On April 3, the Colorado Public Defender office and criminal defense bar filed an urgent petition imploring the state’s Supreme Court to take aggressive steps to decrease the Colorado jail population in the face of COVID-19.

Less than twenty-four hours later, the Court denied the petition. No dissents. No explanation.

There are 35,000 people incarcerated in Colorado. With this unfortunate decision, the Court endangered many of them, their families, their communities, and all Coloradoans.

Jails and prisons are breeding grounds for disease. They frequently fail to provide basic items like soap and nutritious food, making incarcerated people particularly vulnerable to contagion. Cook County Jail in Illinois has the shameful distinction of producing the largest cluster of COVID-19 cases in the country. Every day, correctional facilities see increases in positive tests and deaths. 

Correctional workers in Colorado have already tested positive. Carlos Franco-Paredes, an infectious disease specialist at University of Colorado’s Anschutz Medical Campus, has issued a dire warning that COVID-19 is expanding “exponentially” in our jails and pleaded for “[t]he prompt release of individuals with medical conditions at risk of severe disease and death due to coronavirus infection, and prompt reduction in incarcerated populations overall.” If left unchecked, the coronavirus will rip through Colorado jails and prisons like wildfire, sickening incarcerated people, employees, and many others.

The coronavirus will not be confined by bars. It will travel with employees, contractors, and releasees, infecting their families and posing a grave threat to the community as a whole.  Reducing jail and prison populations and prioritizing the release of the vulnerable is the only way to flatten the curve. Refusing to take the coronavirus threat behind bars seriously and making jails revolving doors of contagion will undercut the social distancing and sacrifice that Colorado residents have undertaken for weeks. 

The Court’s failure to address these concerns is disappointing not only because of the immediate risk but also because other courts had already paved the path to relief. A growing list of high courts—including those in California, Kentucky, Massachusetts, Montana, New Jersey, Ohio, and South Carolina—have taken proactive measures to address this humanitarian disaster. 

Instead of joining these courts, last Monday, the Court agreed to hear a petition from prosecutors to suspend the misdemeanor defendants’ right to a speedy trial for misdemeanor defendants. Granting the petition would trap many innocent people charged with minor crimes behind bars longer, exposing more people to the coronavirus.

Some may fear that releasing incarcerated individuals risks public safety. But a criminal conviction should not make a person expendable. In addition, the majority of people in our state’s jails have not been convicted of a crime. Many are there because they are too poor to make bail. Others are serving time for minor nonviolent crimes or technical probation and parole violations. Still others have release dates within weeks. In an outbreak, all these individuals face a death sentence. 

Colorado Governor Jared Polis recently issued an executive order granting the director of the Department of Corrections authority to refuse to admit people to prison and to grant early release to qualifying individuals.  Boulder District Attorney Michael Dougherty also announced that his office would recommend the release of certain categories of detained people. The Denver Police Department has begun issuing citations in lieu of arrest.

These announcements are promising, but only if officials follow through. We urge prosecutors, judges, law enforcement administrators, and correctional officials to take every action in their power to address the crisis in our state’s jails and prisons. Governor Polis should use his clemency and furlough powers to release susceptible prisoners who pose little risk to the community.

The pandemic has caused great hardship, especially for the most vulnerable members of our community. But it also has opened the door to powerful shows of solidarity and empathy as we struggle together. People behind bars are too often forgotten and treated as expendable. We cannot afford to forget them. Our shared survival and shared humanity demand action.

Aya Gruber and Benjamin Levin are University of Colorado law professors who study criminal law and mass incarceration.