The American Civil Liberties Union is trying to get evidence in front of a Denver judge showing state leaders’ abrupt about-face on giving vaccine prioritization to inmates, contending it shows indifference by Gov. Jared Polis to the plight of the incarcerated.

The evidence, filed Tuesday morning, includes reports and studies that support giving vaccine priority to inmates. It also includes Colorado’s draft vaccine plan, which initially gave people in the state’s prisons and jails higher priority. That priority was removed earlier this month, after Gov. Jared Polis repeatedly said that inmates shouldn’t be given priority over other Coloradans. 

The filing is the latest piece of a months-long effort by the ACLU against state officials over the treatment of prisoners during the pandemic. Polis has become the focal point of the litigation, and on Dec. 2 the ACLU asked a judge to direct Polis to use his powers as governor to alleviate the situation.

The purpose of Tuesday’s filing is to present evidence that Polis’s alleged indifference is further demonstrated by his comments about prisoners and the reversal of state vaccine focuses after inmates were dropped to the bottom of the priorities list.

The evidence also includes a Denver Post column written by Arapahoe County District Attorney George Brauchler titled “Prioritizing prisoners over the elderly for a COVID vaccine is wrong in every way.” The ACLU’s filing contends that after the column was published and Polis was asked about it at a press conference, he “abandoned” guidance from an expert medical task force “about the substantial risks prisoners face as residents of congregate settings, and their correct categorization as a critical population for vaccination shortly thereafter.”

The ACLU “contend(s) the governor’s conduct related to the vaccine has continued to evince deliberate indifference and that the availability of the vaccine underscores the availability of measures Gov. Polis could take to ameliorate the unreasonable risk of harm facing Colorado’s prisoners.”

In one piece of evidence, a consensus report by the national academies of science, medicine and engineering, experts placed inmates in the second priority group – where they were in Colorado’s draft plan. It places older, more at-risk inmates in the top priority group. 

ACLU files lawsuit against El Paso County sheriff over record COVID-19 outbreak at jail

The study notes that although people in prisons and jails are not afforded “all the rights of a free person, a prisoner is assured certain rights by the U.S. Constitution and the moral standards of the community.

“Data show that persons in state and federal prisons have a 5.5-fold greater risk of contracting COVID-19 compared to the general U.S. population,” the authors wrote. “These people, as well as those in jails and detention centers, have reduced autonomy and cannot physically distance themselves from others in their congregate living setting and thus need additional protection. As a result, the risk of their both acquiring and transmitting SARS-CoV-2 infection to others is higher.”

Colorado inmates, relatives call coronavirus a death sentence, urge more early releases

The evidence includes a letter sent by providers to President-Elect Joe Biden, urging him to minimize arrests, release more prisoners and implement rapid, universal testing, among other recommendations. The filing also includes an article reporting that the American Medical Association adopted policy recommending that inmates be given early prioritization for vaccine distribution.

As it stands today, Colorado’s vaccine plan gives no priority to inmates, the homeless or college students, all of whom do live, or may live, in congregate settings with little ability to socially distance. The state’s initial plan contained carve-outs for those groups, but Polis said earlier this month that the plan doesn’t grant priority because of where someone lives, but rather their risk of severe illness.

The plan does, however, give high priority to residents and staff members at long-term care facilities, who are particularly at risk for severe disease and death. 

COVID-19 injunction against Weld County Sheriff extended to February

Nursing homes and long-term care facilities have continued to set records for outbreaks in recent weeks, even as the overall pandemic in Colorado calms somewhat. But outbreaks in prisons and jails have also continued to grow; hundreds of inmates are infected across the state’s constellation of prisons, growing week over week. 

In a letter to Polis written on Dec. 7, CU-Anschutz professor Carlos Franco-Paredes urged the governor to give priority to the facilities and their residents.

“The COVID-19 virus continues expanding exponentially in jails, prisons and detention centers in the United States, including the state of Colorado,” he wrote. “In the months ahead we will continue to see high numbers of ill incarcerated individuals and staff. The broader health system in Colorado does not have the capacity to handle a wave of critically ill patients coming from jails and prisons.”