Gov. Jared Polis speaks on June 11, 2021 before signing Senate Bill 288; 268, and House Bill 1164 into law at the Boettcher Mansion in Denver. (Olivia Sun, The Colorado Sun)

By Colleen Slevin, The Associated Press

The Colorado Court of Appeals on Thursday revived a lawsuit filed by inmates against Gov. Jared Polis at the beginning of the COVID-19 pandemic seeking to reduce the prison population and other measures to prevent the spread of the virus.

A lower court dismissed the case against the governor in December, saying the judicial branch did not have the power to tell the governor to release inmates or anything else that lies “within the Governor’s sound discretion and exclusive authority.”

However, the appeals court ruled that courts do have the authority to tell the governor to remedy a violation of prisoners’ constitutional rights as long as they leave it to him to decide exactly how to do that. The appeals court did not rule on whether inmates’ rights were violated but instead sent the whole case back to the lower court to reconsider it.

The lawsuit was brought by lawyers for the American Civil Liberties Union on behalf of a group of inmates whose medical conditions made them more vulnerable to COVID-19 in May 2020. The virus went on to kill a total of 29 inmates in Colorado prisons.

Now, nearly 70 percent of inmates have been vaccinated. However, the number of prison staffers who have been fully or partially vaccinated has lagged behind at about 57 percent. Unvaccinated workers are tested daily for COVID-19, and all workers are tested each week, according to the Colorado Department of Corrections.

The governor’s office is reviewing the decision and considering what to do next, spokesman Conor Cahill said.

“In the meantime, we believe the Department of Corrections has put an enormous amount of effort protecting the people in its care during the COVID-19 pandemic, and has had remarkable success securing access to vaccines,” he said.

Besides the release of more inmates, the lawsuit also sought the use of home confinement and prioritizing inmates for vaccines, rather than treating them the same as the rest of the population and vaccinating them according to their age and health conditions.

Lawyers who worked on the case for the ACLU say it still matters because the pandemic is not over, and it is not known how the Delta variant will develop.

The appeals court order is also significant because it establishes that Polis’ actions or lack of actions regarding inmates can be reviewed by the court, rather than treating him as a “king” not subject to judicial review, which will effect other efforts to defend the rights of prisoners beyond the pandemic, ACLU attorney Anna Holland Edwards said.

However, she regretted that the lawsuit was thrown out at a time when COVID-19 was causing more harm.

“There’s a lot of suffering in those six months that could have been prevented by the trial court,” she said.