Colorado Confines Hundreds of Children in Dangerous Detention Facilities Instead of Providing Legally Required Community Services, Lawsuit Alleges

DENVER – According to a federal class action lawsuit filed today, state officials are knowingly incarcerating children in highly-restrictive detention facilities, often for weeks or months on end, in violation of their Constitutional and statutory rights. The state is incarcerating children despite the fact that juvenile court judges have specifically found that these youth should be released to the community.

For years, the lawsuit asserts, Colorado officials have known that they confine some of the state’s most vulnerable children, placing them at substantial risk. A vast body of research confirms that incarceration has uniquely harmful impacts on children, including physically, neurologically, psychologically, socially, and academically. These harms often last into adulthood. Colorado's own statutes recognize the negative impacts of detention on the mental and physical well-being of children, including making it “more likely that the child or juvenile will reoffend.”

“Far too many children have languished pretrial in dangerous facilities for far too long. Now, we seek an end to this untenable status quo,” said Emma Mclean-Riggs, senior staff attorney at the ACLU of Colorado. “Jails and handcuffs are not acceptable substitutes for foster homes and therapeutic care.”

“Youth with disabilities are among the most vulnerable in detention facilities and face some of the greatest harm when systems fail. This lawsuit underscores Colorado’s failure to provide the community-based services these children need,” said Emily Harvey, co-legal director for Disability Law Colorado.

The lawsuit names Colorado Governor Jared Polis and Michelle Barnes, Executive Director of the Colorado Division of Human Services (CDHS) as defendants. It is brought by Disability Law Colorado, the American Civil Liberties Union (ACLU), ACLU of Colorado, Children’s Rights, and pro bono attorneys with Ropes & Gray LLP.

Despite its own acknowledgements and repeated community calls for action, CDHS continues to let hundreds of young people who could be safely released to the community languish in confinement each year instead of providing placement and other services that can meet their needs. Many of these children are locked up for minor charges solely because they are already in foster care, and the State has not found them a placement or appropriate services. The majority of releasable children have disabilities, making it imperative that they have access to therapeutic care in a non-segregated community-based setting.

“When the state locks up children after a court has said they may be released, it sends a devastating message that they are problems to be contained rather than young people deserving care, support, and a real chance to thrive,” said Nancy Rosenbloom, senior litigation advisor at the ACLU’s National Prison Project. “Colorado officials have long known that judges have said these children should be released and can be safely supported in their communities, yet they continue to confine them in punitive, dangerous, harmful facilities. Instead of locking up releasable kids away from their families, teachers, and peers, the state must commit to programs and services that nurture young people and give every child the opportunity to succeed.”

Colorado’s juvenile detention facilities are the functional equivalent of adult jails. All living, sleeping, and recreation areas are locked and guarded. Children are not free to move around. Staff may use physical restraints, confinement, or isolation when they think necessary for security. Children are not allowed to wear their own clothes and are issued standard uniforms and are routinely strip searched for the most mundane of reasons. Internal records, state reports, and youth interviews describe facilities as dangerous places for children, with staff using excessive force to subdue them. One youth reported a staff member slammed him to the point of losing consciousness.

The story of 17-year-old plaintiff, who goes by the pseudonym Isaac N., is all too familiar. He has been in a juvenile detention facility for almost two months despite a judge’s ruling that he could be returned to his community, where services that can be provided at home already exist to give him the treatment and therapy he needs to heal. Instead, during his confinement he watched seven adult staff members “take down” one youth, and heard staff use racial slurs against others. Isaac N. just wants to go to the movies and be a teenager. He hopes to finish his GED and pursue a trade, like HVAC. He wants to follow the example of positive adult role models in his life. Isaac N. says he does not understand why he is “stuck” inside a place that is hurting him instead of helping him.

“Colorado is incarcerating releasable children, when what they need is services and care. Shockingly, this includes foster children, whom the state is supposed to be keeping safe, but is instead leaving in dangerous detention facilities for long periods of time. In fact, foster children are staying in detention longer than other youth — often double the average,” said Stephanie Persson, senior staff attorney at Children’s Rights. “It's time for the State to take the steps necessary to ensure these children’s safety and bring them home to their communities, where they have a chance at a decent childhood and of growing into a healthy and productive adult.”

“We are honored to join with Disability Law Colorado, the ACLU, and Children's Rights to advocate on behalf of Colorado's most vulnerable young people,” said Timothy Farrell, Ropes & Gray partner. “We remain hopeful that this action will stop the State’s practice of indiscriminate incarceration of young people in favor of settings where they have access to the services, support, and therapeutic care they need to thrive.”