In the weeks since being diagnosed with COVID-19 in prison, 55-year-old John Peckham said he has been moved around to several housing units — sometimes in the middle of the night — where he said sick inmates and healthy inmates had to share toilets.
That’s one of many troublesome things he’s experienced as the pandemic has tightened its grip on state prisons in recent months. He’s been given sack lunches with portions, he described as in line with what a “preschooler” would eat, not a grown man.
And, Peckham, an avid reader who is incarcerated at Arrowhead Correctional Center in Canon City for embezzlement and theft, said he hasn’t been able to get new books ordered by his family during lockdowns that have lasted for weeks at a time.
“We couldn’t go outside, we couldn’t exercise,” he said. “It’s been extremely difficult.”
A Department of Corrections spokeswoman said the state agency hasn’t taken the lockdown restrictions lightly.
“These are not punitive actions; they are public health measures,” said Annie Skinner, in an emailed statement. “Inmates will continue to remain with their cohorted groups until medical personnel feels that it is safe to adjust those cohort groups, and at that time, the inmates may be moved back to their previous housing location, although that may not always be possible.”
Peckham is part of a class action lawsuit against Gov. Jared Polis that argues he isn’t doing enough to promote safety inside Colorado’s prisons throughout the COVID-19 pandemic, particularly by taking steps to make it possible for inmates to effectively socially distance. Nineteen inmates have died and more than 6,800 incarcerated people have tested positive this year.
Peckham said guards told inmates it would be easier if everyone just got the disease because then they wouldn’t have to worry about it anymore.
Skinner said the decisions regarding cohorting are done with guidance from health care professionals.
“CDOC tries to limit movement whenever possible, but in the case of cohorting, movement may be done in an effort to mitigate the spread of the virus,” she said.
The American Civil Liberties Union is asking a state judge to issue a preliminary injunction forcing Polis to do more to lower disease risk for the roughly 15,000 inmates inside the state’s prisons.
ACLU lawyers argue the safest, and easiest, way to do this would be to let people like Peckham, who was sentenced for a non-violent offense and has somewhere stable to go on the outside, out on parole early to reduce the population numbers.
“There is an urgent, urgent problem in the Department of Corrections. The virus is infecting many prisoners. Prisoners are dying, they’re scared, they’re frantic. It’s viscerally upsetting,” said Mark Silverstein, “And we’re asking the court to say this is an emergency … and there is a substantial risk of serious harm.”
In a flurry of filings in the last week, Polis’ lawyers at the state Attorney General’s office, have argued that he is not the proper target for the advocates.
They also say that under the state’s constitution, it would violate the separation of powers for a judge to order a governor to use the powers of his office in a particular way -- particularly by requiring him to let people out of prison.
“While the judiciary may order the governor to cease engaging in affirmative conduct that it has found unconstitutional, it cannot tell the governor when or how to exercise his discretionary powers,” lawyers for Polis wrote. “Such an attempt would invade the governor’s exclusive authority.”
While the judge has yet to rule on whether the request for a preliminary injunction can move forward, Silverstein noted there’s another thing a judge could require to create more safety: that state officials as swiftly as possible vaccinate prisoners.
Currently, prisoners in Colorado aren’t prioritized in the state’s vaccination plan.
They were initially — everyone in “congregate,” or group, residential settings were to get the vaccine after health care workers — but Polis changed course after some conservatives criticized the plan for putting convicted felons ahead of non-incarcerated people.
Polis then clarified to CPR’s Colorado Matters that prisoners would be in the same pecking order as everyone else, so 65-year-old prisoners will get the vaccine at the same time as 65-year-old non-incarcerated people.
That change has been criticized by several groups, including the Colorado Black Democratic Legislative Caucus, which sent a letter urging Polis to return to the original priority order.
“Communities of color, and Black people specifically, are over represented in the prison population and over represented in COVID deaths. An equitable vaccination dissemination plan MUST prioritize and value the life of the incarcerated,” said Democratic Rep. Leslie Herod in a statement.
State epidemiologist Rachel Herlihy said in mid-December that she was awaiting additional “federal guidance” on vaccine orders and that they were still occupied with getting health care workers taken care of first.
“At this point, we’re primarily focused on this first phase and making sure that we’re really prioritizing the groups in this first phase,” she said.
The federal government has not specifically put out any guidance on prisoners, but a dozen or so states have prioritized incarcerated people in the first few phases — above younger people in the general population — because outbreaks in prisons nationwide have been egregious.
Two of Colorado’s neighbors, Nebraska and New Mexico, are taking that approach. Both prioritize inmates because it’s so difficult for them to socially distance while incarcerated.
State prison populations have, indeed, dropped over the course of the pandemic. A report presented to the Joint Budget Committee earlier this month said that the vacancy rate in the state’s prisons has increased from 1 percent in February to 25 percent in November of this year.
Last spring, Polis issued a short-lived executive order allowing for some early releases through a “special needs parole” program. Under that order, the Department of Corrections released almost 150 people in the hope of creating more distancing inside the facilities.
Peckham was one of the applicants. He said his family and his friends were told he had been approved, but nothing ever happened. And then he was denied with no reason and hasn’t heard anything since. He said he’s talked to many inmates who were denied special needs parole, and feels like the system has been set up for failure.
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