DENVER – The ACLU of Colorado filed a federal class action lawsuit this morning challenging the Colorado Department of Corrections’ systematic denial of life-saving treatment to more than 2,200 prisoners suffering from chronic Hepatitis C.

“Colorado has an immense public health crisis in its prisons.  At least one in every nine prisoners suffers from Hepatitis C, and complications from the disease kill nearly as many Coloradans in custody every year as drug and alcohol abuse, homicide, and suicide combined,” said ACLU of Colorado Legal Director Mark Silverstein. “Highly-effective treatment is available that could prevent deaths and fight the spread of the virus, but DOC’s cruel and arbitrary standards deny that treatment to all but a select few prisoners, in violation of established medical standards and the Eighth Amendment.”

Hepatitis C is a life-threatening, communicable disease that attacks the liver, causing diminished liver function, cirrhosis, and liver failure.  It is the most deadly infectious disease in the U.S., killing more Americans than the next 60 infectious diseases combined.  Even in the initial stages of the disease, Hepatitis C can cause serious symptoms, including chronic fatigue, severe depression, arthritis, as well as an increased risk of heart attacks, diabetes, nerve damage, jaundice, and various cancers.

Breakthrough medications approved by the FDA over the last four years cure Hepatitis C in more than 90 percent of cases.  The clinical standard of care, endorsed by a consensus of medical experts and associations, including the American Association for the Study of Liver Diseases and the Infectious Diseases Society of America, calls for administering these breakthrough medications to all persons with chronic Hepatitis C, even in the earliest stages of the disease.

In the Colorado Department of Corrections, however, prisoners suffering from Hepatitis C are not even considered for treatment until they have sustained measureable liver damage.  Even then, they are required to enroll in alcohol and drug therapy that can take up to two and a half years to complete, a requirement that, according to the ACLU complaint, has no medical justification.

A DOC committee meets four times a year to choose a select few prisoners from a candidate pool, based on a yearly quota, to receive treatment.

The ACLU’s complaint alleges that DOC officials are deliberately allowing the vast majority of prisoners who are not selected for treatment to suffer and die from untreated Hepatitis C.   In support, it quotes an email written last year by DOC Chief Medical Officer Susan Tiona to then-Senator Pat Steadman.   At the time, DOC was planning to provide Hepatitis C treatment to 20-25 prisoners a year.  With this plan, Dr. Tiona wrote, the DOC “should be effective in eliminating Department-wide deaths from Hepatitis C within the next decade” and “eliminating all additional complications from Hepatitis C by 2035.”

DOC now plans to treat up to 70 prisoners in the fiscal year beginning July, 2017.  Even at that rate, it will take more than 10 years just to treat the 735 prisoners that are currently eligible under DOC’s unjustifiably restrictive criteria, according to the ACLU complaint. Meanwhile, DOC refuses to even consider treatment for more than 1500 additional prisoners who have not yet sustained enough liver damage to meet their criteria.

“Despite the availability of a cure, DOC plans to leave thousands of prisoners untreated, to continue releasing those untreated prisoners back to the community with a communicable disease, and to accept years of additional deaths and serious medical complications from untreated Hepatitis C,” said Silverstein.  “Not only is that dangerous for public health, it is a cruel way to save some money  in the short term that may end up costing taxpayers a lot more in the long term.”

Similar class action lawsuits are pending against departments of corrections in Massachusetts, Pennsylvania, Minnesota, Missouri, Tennessee, Florida, and Virginia.
The ACLU of Colorado lawsuit was filed this morning in federal district court. 

In addition to Silverstein, attorneys representing the prisoners include ACLU staff attorneys Sara Neel and Arash Jahanian and a team of ACLU cooperating attorneys at the firm of Fox Rothschild, LLP, led by partner Christopher Beall.

Resources:

• Read the ACLU's class action complaint
• ACLU of Colorado Files Class Action Lawsuit Against Colorado Medicaid Over Unlawful Hepatitis C Treatment Restriction

more on this case
 

MUNICIPAL DEFENDANTS OFTEN LANGUISH IN JAIL ON BONDS THAT THEY CANNOT AFFORD

Statewide, the difference is striking—municipal defendants languish for weeks in jail on minor charges, while state and county defendants charged with serious offenses are brought promptly before a judge.

• Municipal defendants sometimes wait a week or more in jail to see a judge, even though most municipal inmates are incarcerated for low-level offenses, like littering, panhandling or dog-off-leash.
• In comparison, state and county court defendants usually appear before a judge within 24-48 hours of being incarcerated, even for serious offenses such as DUI or felony assault.
• Because most municipal warrants are for low-level offenses, defendants often end up spending more time in jail waiting to see a judge than they would ever receive as a sentence.

Infrequent municipal court schedules unfairly cause long jail stays. Some municipal courts choose to see municipal inmates only once per week or even once per month, causing lengthy jail waits.

Only impoverished defendants are forced to endure long pre-trial detention. People who can pay their bonds walk free until their next court date, while those who are poor must wait in jail to see a judge.

Lengthy pre-trial jail stays are costly to the tax payer with no benefit to public safety. Jail is expensive and should be reserved only for people who pose a threat to public safety, not minor municipal violators who are simply too poor to buy their freedom while waiting for a municipal court to meet.

WHAT WILL HB17-1338 ACCOMPLISH?

A prompt court appearance: HB17-1338 will ensure that in-custody municipal defendants appear in court within two days after court notification—excluding Sundays and federal holidays. This window extends to four days if the person is held out-of-county and has failed to appear at least twice. If a defendant does not appear before the court within these time frames, they are to be released on a personal recognizance bond, returnable to the municipal court.

WHY IS HB17-1338 THE SOLUTION?

It safeguards defendants against unfair and lengthy jail stays. For municipal inmates unable to buy their freedom who are forced to wait in jail, this bill guarantees prompt appearance before a judge.

It brings municipal courts in line with state and county courts. In practice, state and county courts in Colorado generally have systems in place to bring in-custody defendants to court promptly. However, many municipal courts have no systems in place to avoid lengthy pre-trial jail stays.

It safely decreases jail overcrowding. By requiring courts to hold a hearing within a certain time after arrest, the bill curbs overcrowding of local jails and reserves jail beds for those who pose a safety threat.

It prevents collateral consequences. The bill helps prevent consequences associated with prolonged pre-trial detention – wrongful conviction, lost housing, unemployment, interrupted medical care, and broken families.

EXAMPLES OF LENGTHY DELAY WHEN HELD SOLELY ON A MUNICIPAL WARRANT

Metro region – city population approx. 400,000 – 18 day wait to see judge

B.M. was issued a summons for panhandling. She missed her first court appearance, and a warrant issued. She was arrested on that warrant in December 2014. Over the next two weeks, B.M. filed kites requesting to be brought before the court. B.M. was told that the demanding city would come get her when she was scheduled in court, but she never actually appeared before a judge. Finally, after 18 days in jail, the city court dismissed the charges against B.M. and jail released her.

Metro region – city population approx. 50,000 – 14 day wait to see judge

In June 2016, N.A. was picked up on two municipal court warrants (for failing to appear in “Trespass” and “Possession of Marijuana” cases) and held in an out-of-county jail. Total bond for release was $300, but N.A. could not afford to pay. He waited in jail to see a judge. N.A. was not transferred to the in-county jail until 7 days after he was arrested. Then, he was not brought before the municipal court for an additional 7 days. In total, N.A. waited in jail 14 days on two minor municipal holds before seeing a judge.

San Luis Valley region – city population approx. 3,500 – 22 day wait to see judge

R.A. had failed to appear for trial [underlying charge unknown at this time] in November 2016 because she was in labor. The court issued a warrant for her arrest. She was arrested that same month on the failure to appear warrant. She waited 22 days before coming before a judge. When she finally appeared before the judge in December 2016, she explained that she missed her court date only because she was in labor.

Central mountain region – town population approx. 3,000 – 23 day wait to see judge

M.B., who suffers from a debilitating disease, was cited for “Disorderly Conduct” when he urinated outside of a trailer that lacked plumbing. He was arrested for failure to appear in July 2015. Bond was set at $500, but he was too poor to pay it. His next court date was scheduled nearly a month later. After 12 days in custody, M.B. wrote a letter to the court saying that he was sorry and that he couldn’t find anyone with money to bail him out. Eleven days later, after M.B. had spent 23 days in jail waiting to see a judge, the municipal court sent M.B. a plea by fax to the jail. M.B. pleaded guilty by fax and was released that day with credit for time served for the 23 days spent in jail waiting to see a judge, having spent far longer in jail waiting to see a judge than he would have ever received as a jail sentence for a urinating in his back yard.

San Luis Valley region – city population approx. 10,000 –14 day wait to see judge

A.M. had two shoplifting cases—the first for $37.94 of merchandise (two tide pods and fireworks), and the second for $69.00 of merchandise (female razors, two bras, and a heating blanket). The court received several letters from A.M.’s family that she struggled with a heroin addiction; they were trying to get help but Medicaid didn’t cover the services. After conviction, A.M. was sentenced to fines and fees. A warrant issued when A.M. was unable to pay. She was arrested in June 2016—but was not brought before a judge until 14 days after booking.

San Luis Valley region – city population approx. 3,500 – jailed when late for trial, 7 day wait

R.M. was charged with “Obstruction” and “False Reporting,” and pled not guilty. She arrived to court late for trial in December 2016, and the judge had her taken into custody for failure to appear on time that day. R.M. waited in custody for 7 days until the next session of court before appearing in front of the judge.

Click here for the Fact Sheet PDF.

It is evident that the Trump administration is about to embark on a nationwide voter suppression campaign to disenfranchise thousands or even millions of voters. This campaign will be based on lies and myths about voter fraud, and it will be carried out under the name of “election integrity.” It is beginning with a mind-boggling demand for Secretaries of State to turn over detailed profiles of all registered voters in every state. It is essential that Colorado, a state that prides itself on voter participation and access, not be complicit in federal efforts to suppress the vote.
In order to soothe his ego after losing the popular vote in the 2016 election, President Trump made completely false and imaginary claims that he would have won the popular vote if not for millions of illegal voters. In reality, voter fraud (defined as an ineligible person voting, someone voting in the name of another person, or someone voting multiple times in an election) is extremely rare. Very few people are willing to commit a felony for the sake of one vote, and very few do. (And it is worth noting that most of the very few known cases in 2016 were Trump voters.)
What is not rare is voter suppression, through voter roll purges, misinformation, felon disenfranchisement, voter ID laws that block many citizens from voting, a wide variety of other obstacles to registration and voting, and gerrymandering to manipulate outcomes and make the votes of many citizens less meaningful. Voter suppression can affect hundreds of thousands of votes at a time, and can alter the outcome of elections, which isolated voter fraud never does. Yet stopping voter fraud is often the excuse that is used for massive voter suppression.
This newest attack on our democracy is being deceptively framed as an effort for “election integrity.” Mike Pence and Kris Kobach (one of the worst voter suppression perpetrators in the nation) have demanded that Secretaries of State in every state turn over extensive personal information about every registered voter by July 14 to a centralized “Presidential Commission on Election Integrity” under their control. They want names, addresses, birthdates, the last four digits of Social Security numbers, voting histories, military status, felony information, and much more. Who knows how this enormous database could be abused by this administration? Undoubtedly they will use any inconsistencies they find to justify huge selective voter purges and policies that will block many legitimate voters from voting. Relatively common errors or duplications in registration records will be falsely claimed to be evidence of widespread voter fraud. Don’t be fooled—registration is not the same as voting, and actual voter fraud is almost nonexistent.
Several Secretaries of State, including in Kentucky, California, Rhode Island and Virginia, have already stated that they will not participate in this data-gathering scheme. In Colorado, Secretary of State Wayne Williams has indicated that he will provide any data that is publicly accessible. Williams should refuse to cooperate in every way possible, providing nothing that is not required by law, objecting to the purpose of this request, and making it no easier than necessary for Pence and Kobach to assemble their database. Anything less would be complicit in voter suppression. Williams should protect Colorado voters and elections, not expose Colorado to a politicized national scheme to depress voting.
Meanwhile, the U.S. House of Representatives has sought to strip funding from the Election Assistance Commission, a small federal agency charged with helping states improve and protect their voting systems. At a time of known efforts by hostile foreign powers to hack American elections, this proof of disregard for real election integrity is staggering.
Be ready for an onslaught of voter suppression tactics justified by baseless claims of rampant voter fraud. It is the responsibility of every American to fight vigorously against voter suppression schemes that disenfranchise millions of voters and distort our elections. Nothing less than our democracy is at stake.