Courts Can’t Compel Polis To Let People Out Of Prison, Judge Rules

December 29, 2020
Gov. Jared Polis in a face mask.Gov. Jared Polis in a face mask.David Zalubowski/AP
Colorado Gov. Jared Polis wears a face mask as he leaves after a news conference about the state's response to the rapid increase in COVID-19 cases Tuesday, Nov. 24, 2020, in Denver.

A state judge has dismissed a lawsuit against Gov. Polis for not doing more to reduce prison populations as COVID-19 outbreaks continue to rapidly spread in facilities across the state.

The American Civil Liberties Union of Colorado sued Polis in his official capacity because they argued he wasn’t doing enough within his executive authority to lessen the number of prisoners inside, which would make it easier for people to socially distance.

So far, 24 Colorado prisoners have died and more than 7,100 prisoners -- out of roughly 15,000 -- have tested positive in the pandemic. There are 680 active infections currently.

On Christmas Eve, a judge ruled both that the judicial branch doesn’t have the authority to compel a governor to exercise his executive powers and that Polis is not the proper person to sue in a case like this -- the judge said that advocates should sue the state Department of Corrections instead.

“This court cannot force Defendant Polis to reduce the prison population across the CDOC facilities,” Judge Kandace Gerdes wrote. “The power to reduce the prison population by commuting sentences or granting reprieves or pardons lies exclusively with the governor.”

Lawyers and a spokeswoman for the ACLU did not respond to requests for comment.

Judge Gerdes also pointed out that the ACLU lawyers argued that Polis was liable for things he has not yet done -- a legal standard she said is not “actionable.”

“This court should tread lightly in telling any governor when or how to exercise his or her powers,” she wrote. “It is one thing for a court to order a governor to cease engaging in action the court has found to be unconstitutional; it is quite another for a court affirmatively to direct a governor how to act.”

Earlier this year, the ACLU sued the state Department of Corrections and the two sides entered into a consent decree which required the state agency to furnish masks and soap for all people who are incarcerated. 

The lawyers then took the more unusual step and sued the governor personally, in his official capacity, as cases and deaths continue to skyrocket.

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