by Jo Ellen Nott

On February 15, 2022, two prisoners at the Fremont Correctional Facility in Cañon City, Colorado, filed a proposed class action lawsuit against the State of Colorado, Governor Jared Polis (D) and the state Department of Corrections (DOC), accusing them of violating a recent state constitutional amendment that extended its prohibition against slavery to prisoners.

Before the passage of Amendment A in 2018, Colorado’s constitution was one of more than a dozen in the U.S. with a ban on slavery for everyone except those incarcerated, just like the Thirteenth Amendment of the federal constitution. But the penal exception was removed when 66 percent of Colorado voters cast ballots in favor of the new amendment.

The new suit, filed in Colorado District Court for Denver County by prisoners Richard Lilgerose and Harold Mortis, with the aid of Maxted Law and the non-profit Towards Justice, alleges that Colorado has ignored the voter’s directive by continuing to coerce the people it imprisons to work against their will under threat of punishment. The plaintiffs, and potentially thousands of other prisoners in this class action, are pursuing relief so they do not lose benefits that make life in prison more bearable.

At issue is a DOC policy under which the prisoners were charged with a Class 2 violation for refusing jobs the prison administration assigned to them in late 2020. Punishment for a Class 2 violation is a loss of earned time, which pushes parole eligibility farther out in the future. It may also lead to placement in a restrictive housing unit, where visitation, out-of-cell time and exercise privileges are limited.

Mortis, 32, an asthmatic who said he was infected with COVID-19 while working in the prison kitchen, didn’t want to return to work there and get re-infected. Lilgerose, 45, said reporting for his kitchen job during the pandemic exacerbated his post-traumatic stress disorder. But when the two men refused to work, they were issued Class 2 violations and docked earned time – two days for Mortis and four days for Lilgerose.

In their suit, plaintiffs contend that the loss of earned time and general-population housing is excessively punitive if a prisoner cannot or will not work an assigned job because he fears contracting COVID-19, for example, or if the job exacerbates an existing mental or physical health condition.

They are not seeking monetary damages but an injunction to prevent DOC from enforcing its policy, in accordance with Amendment A. The change that amendment made has since been adopted by Nebraska and Utah, as well. Vermont’s legislature is also mulling a similar initiative. See: Lilgerose v. Polis, Colorado District Court (Denver County), Case No. 2022-cv-30421. 

Additional sources: Towards Justice, Colorado Public Radio

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