(This column was published in the Colorado Springs Gazette on 9/28/16)
In a recent Gazette article, it was reported that Spring Creek Correctional Facility is again erupting with assaults and riots, leaving youths and staff frightfully unsafe. After more than two years of hearing these kinds of reports from Spring Creek, it has become increasingly clear that the facility is plagued by an unforgiving and punitive culture that breeds violence and chaos. Staff now attribute the source of the violence to restrictions on their use of solitary confinement and other punitive measures. That should send off alarm bells. When staff charged with rehabilitating at-risk youths lament that they can't do their job unless they can lock children in torturous and widely discredited solitary confinement, we know there is a serious culture problem at the facility.
Psychological and rehabilitative experts from around the country are unanimous in their finding that solitary confinement hurts children and is wholly counterproductive to rehabilitation. What's more, it has been proved that evidence-based, nationally accepted best practices - which rely on building one-on-one relationships rather than isolation and restraint - work to reduce recidivism while keeping children and staff safe from violence.
Look to Missouri, which has adopted an approach to youth corrections that is founded on the idea that children are a work in progress and that all youths are redeemable and changeable. After shutting down its large and notoriously violent juvenile detention facility in Boonville in 1983, Missouri began to build small group homes and adopted a rehabilitative model where staff are strongly discouraged from using seclusion and restraint to manage even violent youths. Youths are instead immersed in an intensive, therapeutic treatment program led by development specialists rather than correctional guards and are provided a wide range of vocational and academic opportunities. Facility staff keep children safe primarily through relationship building and compassionate de-escalation, rather than through solitary confinement and restraint. The results are astounding. Compared with youth correctional staff in other states, Missouri staff are 14 times less likely to be assaulted. Compared with their peers in other states, Missouri in-custody youths are 4.5 times less likely to be assaulted, 17 times less likely to be placed in mechanical restraints and 228 times less likely to be placed in isolation. Recidivism rates are some of the lowest in the country, and high school graduation rates are on par with Missouri children who are out of custody.
These results show unequivocally that when children are treated with compassion, while given individualized attention and opportunities for meaningful growth, detention facilities become safer. Pleas from the Spring Creek staff to return to punitive measures, like increased solitary confinement and more restraints, demonstrate with clarity that the facility is on the wrong path. And it is no wonder. While leadership within the Division of Youth Corrections has long said it is committed to implementing nationally accepted best practices and curbing solitary confinement and restraint, it has seen four directors in the past two years - the most recent of whom departed in the wake of the latest Spring Creek scandal. Spring Creek has also seen at least three different facility directors during that same time period. Without consistent, committed leadership at the top, we cannot expect to see meaningful cultural change among line staff.
Finally, although you would not know it from staff accounts, the source of limitations on Spring Creek staff's ability to use solitary confinement is state law that has been in place since 1999. That law prohibits solitary confinement of youths except during an ongoing emergency. In 2014, our child advocacy coalition discovered that staff were placing children in isolation for days, weeks and even months at a time to punish them, in direct violation of the law. This was occurring at precisely the same time Spring Creek staff were complaining of rampant violence in the facility. Clearly, then, it is not the use or nonuse of solitary confinement that is driving the violence.
After more than two years of complaints and assaults, we must acknowledge the true root cause - a persistent punitive culture that must change.
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Rebecca T. Wallace is ACLU of Colorado staff attorney and policy counsel, and Elizabeth Logemann is Colorado Juvenile Defender Center (CJDC) supervising attorney.

DENVER - The ACLU of Colorado filed a federal class action lawsuit this morning on behalf of thousands of low-income Coloradans suffering from Hepatitis C who are being denied life-saving treatment due to Colorado Medicaid restrictions that force them to incur serious harm to their health before gaining access to the cure.
“Federal law requires state Medicaid agencies to pay for medically necessary treatment, but Colorado Medicaid illegally denies a cure for Hepatitis C for reasons that are not medically justified,” said Mark Silverstein, ACLU of Colorado Legal Director. “We are challenging a policy that forces Coloradans who cannot afford private insurance to live with the serious negative health effects of Hepatitis C and to wait for a cure, possibly for years, until they have suffered measurable and potentially irreversible liver damage.”
Hepatitis C is a life-threatening, communicable disease that attacks the liver. 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 fatigue, joint pain, 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 three years cure Hepatitis C in more than 90 percent of cases. These treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of commercial health insurers in Colorado.
There are approximately 14,400 low-income Coloradans infected with Hepatitis C who rely on Medicaid for healthcare.  Federal law requires state Medicaid agencies to provide “medically necessary” services and treatments.  Last November, the federal agency responsible for administering Medicaid issued guidance advising all state Medicaid agencies to provide access to the new treatment without imposing unreasonable restrictions.
For years, Colorado Medicaid required patients to demonstrate significant scarring on their liver, as indicated by a “fibrosis score” of F3 or higher on a F0 to F4 scale, before gaining access to treatment.
In July, the ACLU of Colorado wrote to the Colorado Department of Healthcare and Policy Financing (HCPF), the agency responsible for setting state Medicaid policy, to urge coverage of all patients regardless of “fibrosis score.”
“Providing full access to Hepatitis C treatments is the fiscally sound decision for Colorado Medicaid, because early treatment precludes expenses that would otherwise be incurred as a result of the disease’s progression,” the ACLU wrote in the July letter.  The ACLU also noted that a federal court in Washington had recently ordered that state to lift restrictions similar to Colorado’s after concluding that treatment was medically necessary for all patients with chronic Hepatitis C infections.
Earlier this month, HCPF altered its policy to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added an ambiguous new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year.
“The latest policy change is a half-step that falls short of what the law requires, which is full access to medically necessary treatment for all patients with Hepatitis C,” said ACLU of Colorado Staff Attorney Sara Neel.  “The ill-conceived pregnancy exception perversely incentivizes women to either commit to get pregnant or to lie to their doctor about their family planning decisions in order to gain access to treatment.”
Robert Cunningham, a Denver resident, is the named plaintiff and class representative in the suit.  He was diagnosed with Hepatitis C in 2004 and has been denied access to treatment by Colorado Medicaid because his fibrosis score is F1.
“Everyone should have the right to treatment that can cure them.  It should not be just reserved for some segments of the country, with the poorest being forced to wait and suffer,” said Cunningham. “I want to get healthy, and I want to give people like me a voice and help the system to change.”
The class action lawsuit was filed this morning in federal district court.  Attorneys representing Cunningham and the plaintiff class include Silverstein and Neel, Kevin Costello from the Harvard Law School Center for Health Law and Policy Innovation, and ACLU cooperating attorneys Lawrence W. Treece and Lauren E. Schmidt of Brownstein Hyatt Farber Schreck LLP.
Resources:

View the ACLU complaint: http://static.aclu-co.org/wp-content/uploads/2016/09/2016.09.19-01-Class-Action-Complaint.pdf

View the ACLU’s July letter to Colorado HCPF: http://static.aclu-co.org/wp-content/uploads/2016/09/2016-07-22-CDHCPF-ACLU-CHLPI-2.pdf

Police in Aurora, Colorado, got a call about a man pulling a gun on a kid. They had no description of the suspect. On their way to the scene, they stopped two Black men walking down the sidewalk.

Darsean Kelley, one of the men, followed the officers’ orders to hold his hands above his head and turn around. His repeated requests for an explanation as to why they had been detained went unanswered. Even though it was clear he had no weapons and he was no threat to the officers, Darsean was tased in the back just as he said, “I know my rights.” Darsean fell backwards and hit his head on the pavement.
The officers had no reason to detain them. They had done nothing wrong. When Darsean asked to talk to the officer’s boss, noting that there were witnesses to the tasing, the officer responded, “Hey, look right here. It’s all on video, sweetheart.”

Darsean was arrested and charged with “disorderly conduct.” The ACLU of Colorado and our cooperating attorney Dan Recht represented Darsean and convinced the prosecutor to drop the charges.

We all have the Fourth Amendment right to be free from excessive and unreasonable force by the police. No one should be punished for knowing and asserting their rights.

Resources:

• Watch the video, He Knew His Rights. He Got Tased Anyway

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