Colorado’s criminal justice system is scrambling to respond to the unprecedented change in behaviors driven by the COVID-19 pandemic.
Prosecutors, public defenders and sheriffs running jails are grappling with how to handle crowded jails, packed court dockets and scheduled jury trials that need to happen in the next 30 days to meet the “speedy trial” requirement under the state’s constitution.
“We’ve been accused as an agency of overreacting and I think we’re all underreacting,” said Megan Ring, the state’s chief public defender, who said employees in four different public defender offices across the state have gotten positive COVID-19 diagnoses. “My lawyers, they’re in courtrooms and inmates are being brought back from jail in larger numbers that aren't safe and they can’t practice social distancing and there is no hand sanitizer and there is no place to wash your hands, for the inmates, for the sheriffs for everybody.”
Gov. Jared Polis on Tuesday released six pages of guidance to prosecutors, public defenders and law enforcement on how to pare down county jail populations and reduce the contact police have with people on the street, according to a copy of the guidance obtained by CPR News.
The guidance calls for law enforcement to issue a summons, rather than make an arrest, when possible on low-level crimes. It also asks police to question the severity of any alleged crime when the suspect has cold or flu-like symptoms.
Polis also called for social distancing in detention centers and asked sheriffs to take “reasonable steps” to make sure no more than 10 people congregate at a time inside a jail. Sick inmates should be isolated, if possible.
“Detention centers should take all reasonable steps to ensure that not more than 10 or individuals are gathered at the same time in any confined indoor or outdoor space including, for example, day rooms, booking areas, housing unit common areas, cafeterias, pill lines, shower lines, libraries, or visitation areas,” the guidance said.
This doesn’t go far enough for many who are calling for massive “decarceration” in light of the global coronavirus pandemic.
“Our response as an agency is public health first and that’s a strange place for us to be,” Ring said. “But if we really care about our clients, public health really means getting as many incarcerated people out as possible."
Last week, Colorado Supreme Court Justice Nathan Coats put out an order postponing most jury trials and “non-essential” hearings until early April -- but Coats gave chief judges in the state’s 22 judicial districts the discretion to handle the courts the way they wanted to.
As a result, everything is being handled differently, depending on the courtroom.
Boulder’s chief judge suspended all jury trials until May 15 and the vast majority of court appearances are over video. The chief judge in the state’s largest judicial district, the 18th, which includes Arapahoe, Douglas, Elbert and Lincoln counties, has also postponed all jury trials until early April.
In Adams, trials are ongoing, but District Attorney Dave Young worries about the jury pool, as many people don’t want to show up for jury duty at the moment.
“There is really no remedy that fits this situation,” said Adams County District Attorney Dave Young. “The problem we’re in now is the uncertainty.”
Young has a pending death penalty case and a homicide trial starting in early April that are up against the “speedy trial” requirement in the constitution, which requires a trial start within six months of the arraignment.
What worries prosecutors and public defenders is a miscarriage of justice for either — or both — sides. Defenders worry cases won’t get a full vetting by a jury, because there may not be a jury and if there is, they will be distracted. Prosecutors worry that if the speedy trial deadline isn’t met, the case will be dismissed.
That may be acceptable for low-level offenses, but prosecutors worry about pending trials for more serious crimes, like child sex abuse or homicide.
State Attorney General Phil Weiser urged courts to delay the speedy trial requirements because of COVID-19 earlier this week.
Young said he appreciated the guidance but thinks a ruling needs to come from the state Supreme Court or the law needs to be changed by the state legislature, to offer more clarity on how courts should proceed.
In jails across the state, some sheriffs are releasing inmates early to try and make the jails less crowded.
In Jefferson County, sheriffs’ deputies are releasing some inmates who have served more than half of their sentences for non-violent crimes. Last week 36 people were released from jail early and there are plans to release dozens more in the coming weeks. Prosecutors are working on more non-cash bonds so poor people don’t get stuck in jail pre-trial.
But despite the efforts, there is no way that jails will ever be sites of proper social distancing.
“It’s like a dormitory scenario. You have multiple bunks inside one area,” said Mike Taplin, spokesman for the Jefferson County Sheriff’s Office. “I don’t believe you’re sleeping more than six feet away below or above you.”
In Boulder, District Attorney Michael Dougherty went line by line through the list of inmates at the jail and made as many adjustments as possible to release 80 non-violent offenders early without impinging on public safety, he said.
Dougherty and Boulder law enforcement also are issuing summons to people for a future court date, rather than arresting and booking people into jail, to reduce inmate populations. Dougherty also assessed people on work release, who were required to spend the night in the jail at the end of every workday, and decided whether they could go home at the end of the day with some sort of monitoring.
“Clearly going back and forth between the community and the jail every day is not in the best interest of public safety and health,” Dougherty said.
The Denver district attorney has taken on similar changes.
Statewide, Department of Corrections Chief Dean Williams has taken steps to minimize people inside state prisons — including suspending visitations and volunteers inside. Corrections officials are not sending people back to prison who are on parole with technical violations — such as missing an appointment or not keeping a job.
Corrections officials are also trying to reduce the number of guards while keeping prisons safe, a spokeswoman said.
So far, nine people in state prisons have been tested for the new coronavirus, of which six came back negative and three were pending as of March 23.
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