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Located in Canon City, the Colorado Territorial Correctional Facility, shown here in a Dec. 9, 2020, photo, is the state’s oldest prison. Built in 1871, it preceded the state’s admission to the Union by five years. (Mike Sweeney, Special to The Colorado Sun)

A judge has dismissed a lawsuit demanding that Gov. Jared Polis take action to reduce Colorado’s prison population amid rising coronavirus cases. 

The ACLU of Colorado was incorrect in suing Polis over matters that are more relevant to the Department of Corrections, Denver District Court Judge Kandace Gerdes wrote in the ruling handed down on Dec. 24. The dismissal also stated that the court could not force the governor to take action granted to him by the authority of the executive branch, such as pardoning prisoners or commuting sentences, and could not rule on the governor’s lack of action.

As of Wednesday, 7,125 prisoners have tested positive for COVID-19 since the pandemic started; there are about 13,473 people currently incarcerated. 24 have died during the pandemic — four in the past week alone

“The court does not have the power to declare the governor’s alleged failure to act unconstitutional, as the decision to exercise or refrain from exercising his constitutional or statutory powers is within his discretion as head of the executive branch,” Gerdes wrote.

The ACLU filed the class action lawsuit in May as coronavirus cases in state prisons skyrocketed, arguing that the governor was not doing enough to address prisoners’ risk of contracting COVID-19. Colorado Department of Corrections executive director Dean Williams was also named as a defendant in the case, but the ACLU resolved the portion of the suit involving the DOC last month in a consent decree, which includes improved access to hygiene products and masks for prisoners.

Earlier this month ACLU lawyers asked the court to issue an emergency order releasing some prisoners in an attempt to mitigate viral spread, but that order was not granted.

The Colorado Sun asked both the ACLU of Colorado and Polis’ office for comment but had not received one from either party at the time of publication.

Updated at 2:47 p.m. on Wednesday, Dec. 30, 2020: This story has been updated to specify the number of prisoners in Colorado’s state and private facilities.

Lucy Haggard was a TRENDS Reporting Fellow from August 2020 to May 2021 with The Colorado Sun. Email: Twitter: @lucy_haggard