A federal district court judge today granted class action certification to the ACLU of Colorado’s First Amendment lawsuit against the Boulder County Jail, moving forward the ACLU’s efforts to end unconstitutional post-card only prisoner mail policies.

The lawsuit, filed on behalf of jail detainees, challenges a policy implemented in March 2010 that restricts all outgoing prisoner correspondence at the Boulder County Jail to postcards supplied by the jail, except narrow categories deemed to be “legal” or “official” mail.

“Class certification was a critical and necessary step to preserving our opportunity to get an injunction banning the post card policy that is at issue in this case. We are very pleased with the ruling certifying this class,” said Mark Silverstein, ACLU Legal Director.
With class certification, Silverstein added, the class itself has standing to litigate the claims even if the individual claims of the named and unnamed plaintiffs become moot because of a detainee’s release or transfer.

In addition to certifying class status, Chief Judge Wiley Y. Daniel in his written decision also named Silverstein and David C. Fathi, director of the National Prison Project of the ACLU Foundation, as Class Counsel.

Chief Judge Daniel set April 21 as the date for a hearing on a motion for preliminary injunction in the case to compel the Boulder County Jail to immediately end its challenged postcard-only policy.

The ACLU lawsuit maintains that the policy violates the First Amendment rights of prisoners and their correspondents, including intimate partners, other family members, clergy and investigative journalists, among others.

“Writing letters to people outside of prison is critical for helping prisoners maintain their connection to their families and their communities and is also a key element of ensuring their successful reintegration upon release,” Fathi said. “Restricting the First Amendment freedoms of detainees is not only unwise but unconstitutional.”

The Boulder County Jail, located in Boulder, Colorado, has an average daily population of 400. It houses both convicted prisoners and detainees awaiting trial. The ACLU lawsuit was filed on behalf of five individual prisoners who represent a class of current and future prisoners subject to the post-card only policy.

The lawsuit names as defendants Boulder County Sheriff Joe Pelle, and Division Chief Larry R. Hank, jail administrator. It seeks a court ruling invalidating the post-card only policy.

Boulder County is now the only jail in Colorado with such a policy.

Rather than attempt to defend the post-card only practice before a judge, the El Paso County jail dropped a similar policy in December just after attorneys from the American Civil Liberties Union and the ACLU of Colorado filed suit.

“If jail officials are serious about lowering recidivism and increasing public safety,” Silverstein said, “they will realize that preserving a prisoner’s right to send letters actually protects us all.”

more on this case

SB-176 was heard by the Colorado Senate Judiciary Committee. It was significantly amended.

Click here to find links to both the original and amended version of the bill.

It would have taken steps to end the all-too-common practice of warehousing prisoners with serious mental illness in solitary confinement. The bill would have required a mental health evaluation for prisoners before they are placed in solitary and permit such isolation only in extreme situations. It also would support mental and behavioral health alternatives to solitary confinement through cost-saving mechanisms and ensure that prisoners are reintegrated into the general prison population before their community release.

Only small portions still remain, included the cost-savings mechanism that allows inmates in solitary to earn time off for good behavior, just as all other prisoners are permitted to do. Those saving are still to be spent on mental and behavioral health alternatives to solitary.

Learn more about solitary confinement at Colorado State Penitentary by watching segments from this National Geographic special.

SB 176 introduced by Senator Morgan Carroll (D-Aurora) and Representative Claire Levy (D-Boulder), is a response to the growing number of inmates in Colorado prisons who’ve been diagnosed as mentally ill or developmentally disabled – and the staggering cost of using solitary confinement, rather than mental or behavioral health alternatives, as the default placement without regard to medical needs, institutional security, or prisoner and public safety.

“What we get from continuing the policy of placing prisoners with mental health issues or developmental disabilities in solitary confinement is increased costs for incarceration, increased recidivism rates and reduced public safety,” said Senator Carroll. “Especially in tough economic times, we can do better by using cost-saving mental health evaluation and treatment options rather than budget-busting solitary confinement.”

Currently, 37% of those in solitary confinement are prisoners with mental illness or developmental disabilities – up from 15% just a decade ago. Those confined to solitary in Colorado (more than 1,400 inmates) spend 23 hours a day in isolation, for 16 months on average, at an increased additional cost of from $14,933 to $21,485 per year, per inmate.

“Colorado cannot afford business as usual in its prison system,” said Representative Levy. “We must use science and behavioral health research to get a better result from costly imprisonment. Solitary confinement is the harshest and most expensive option. It should be used sparingly and only with appropriate limitations so prisoners with mental illness don’t become more ill and aren’t made more dangerous.”

Solitary confinement, said Terri Hurst, Director of Public Policy at the Colorado Behavioral Healthcare Council, is not only costly, it’s dangerous to prisoner health and the public good. “It’s important that offenders with mental health issues be provided treatment services as to not exacerbate their health status. Solitary confinement has been shown to worsen or lead to the onset of mental health disorders and should not be used as an alternative to treatment. Providing treatment services both inside correctional facilities as well as in the community, improves behavioral health outcomes.”

Jessie Ulibarri, Public Policy Director for the ACLU of Colorado, said SB 176 promotes the shared goals of restoring those released from prison to productive roles in society. “By undermining the innate human need for social interaction, solitary confinement works against our goals as a society. Currently 41% of inmates in solitary confinement are released directly from their cell to the street -- a dangerous practice -- without time to readjust to human interaction while still under supervision. What we want are people ready to fully integrate back into their communities; not people who are released from solitary confinement and led directly to the prison gate, only destined to return again.”

Solitary confinement in Colorado

Costly system also inhumane to the mentally ill
By Erika Stutzman
Daily Camera

In the state of Colorado, the number of mentally ill or developmentally disabled prison inmates in solitary confinement has more than doubled in about 10 years.

According to the Colorado Department of Corrections, in 1999, 15 percent of inmates in solitary confinement were mentally ill or developmentally disabled. In 2008, it was 37 percent.

Most people`s exposure to solitary confinement is from pop culture: In reality in Colorado it is 23 hours of daily isolation with no human contact. There are about 1,400 people in solitary confinement in Colorado today. They will spend an average of 16 months there, according to the department.

Solitary confinement is more expensive than regular prison -- the low end of the increased costs is about $15,000 per inmate. And 41 percent of prisoners released from solitary are really released: They`re put on parole or their time has been served, they head right back into the community, rather than back into general prison population to readjust to human contact.

For the mentally ill, it is an overwhelming prospect.

Sen. Morgan Carroll, D-Aurora, is sponsoring a bill that would address this issue. The proposal has the support of a coalition that includes state branches of the ACLU, Mental Health America and the Colorado Criminal Justice Reform Coalition.

We hope the proposal gets its due: As drafted so far, the law would create a process to evaluate inmates for mental health issues, while still allowing wardens to confine people who are a security risk. It would ensure that those so confined would be put back into the general prison population before their release from prison.

It`s easy to dismiss what goes on inside prison walls if you`ve never been inside them. It`s easy, too, to take a "tough on crime" stance that is absolute in nature. People who seem most opposed to prison reform find some comfort in thinking that once a person is put in prison, they get whatever it is they deserve.

This is clouded thinking, for several reasons. Lawyers, judges and juries work out various convictions and sentences for those who run afoul of the law, even those who do so heinously. Many will be sent to prison, some for the rest of their lives, but most for various lengths of time. But none of those convicted is sentenced to a place of torture; none is sentenced to be raped or otherwise assaulted; none is sentenced to mental abuse.

A civil society is not the worst criminal`s doppelganger. It has a moral obligation to extend its rights and its humanity even to those who have broken the law. And if those individuals have developmental disabilities or mental illnesses or both, they require special care. It`s that simple.

There will still be those who cling to the rather medieval notion that humane treatment is only for law-abiding citizens. But most prisoners will re-enter society at some point. Which convict would you rather join your own community, or that of your children? The one who has been punished morally, and rehabilitated according to the laws that govern us all -- or the one who has been punished, punished, punished physically and mentally within an inch of his sanity?

-- Erika Stutzman, for

the Camera editorial board