Colorados jails will face new standards, but enforcement is unclear

For the first time in state history, Colorado’s patchwork system of local jails will soon have a baseline set of standards guiding how they feed, house, restrain and care for the thousands of people who move through their facilities each year.

It’s just not clear how the state will ensure jails are complying with those rules.

A state commission that is finalizing the new standards has arrived at what one official called a “counterintuitive” compromise: allowing those jails, and the sheriffs who run them, to police each other. The Jail Standards Commission — made up of sheriffs, attorneys, county commissioners and mental health advocates — settled on that idea after finding no state law enforcement agencies willing to take on the responsibility.

“This was not our first stop. This was our last stop in terms of where we might have this (oversight) exist,” said state Rep. Judy Amabile, a Boulder Democrat and a legislator overseeing the commission’s work, during a recent legislative oversight meeting.

The lengthy process undertaken by the commission over the last year is nearing its end. When the group finalizes the standards in coming weeks, the rules will lay out how jails should feed those in their custody, how visitations should be handled and what mental health treatment should be available. They will describe specific rights for inmates, including humane treatment and clean conditions. And they will detail the type of training that staff should receive.

But as they inch closer to implementation, state legislators and policymakers continue to wrestle with how to enforce those standards.

Jails’ compliance would be monitored by a group of four sheriffs and county officials, plus a mental health advocate, an inmate advocate and a public defender representative, under a plan presented to legislators at the meeting earlier this month. That group, operating under the County Sheriffs of Colorado, would oversee annual jail audits documenting if and how the facilities were failing to meet standards.

But the sheriffs’ organization wouldn’t levy any penalties or otherwise conduct enforcement against their own members. Colorado sheriffs involved in the discussions said they preferred collaboration, not punitive action.

Meghan Baker, an attorney for Disability Law Colorado and the chair of the commission, acknowledged that there’s been “pushback” to the plan to have sheriffs audit themselves. She said it was “disappointing” that no state agencies were willing to take on the oversight and said the commission and legislators were still exploring other options to provide layered oversight alongside the sheriffs’ audits.

Though outside experts praised the overall standards effort, they were critical of the proposed audit system. One national expert said the approach, variations of which exist in other states, was her “least favorite” model for jail oversight, while David Fathi, director of the National Prison Project at the American Civil Liberties Union, called it a “recipe for failure.”

As the commission finishes its work, the legislature is drafting a bill for next year’s session that likely will weigh in on the oversight recommendation and other elements of the standards’ implementation.

Most states have some form of jail oversight

Unlike at least 28 other states, Colorado had no statewide jail guidelines or oversight prior to the state legislature creating the Jail Standards Commission last year. Lawmakers have searched for an overseer to ensure the standards are being followed, only to be rebuffed by state law enforcement agencies concerned about liability and infringing upon elected sheriffs’ authority to run their jails.

In nearly every state, including Colorado, jails are regulated separately from prisons, which typically are run by corrections departments and have direct state oversight. Jails largely operate on local dollars and are run by locally elected sheriffs.

Often, oversight comes in the form of lawsuits.

As debate continues about enforcement of the commission’s new standards, Baker and others said their existence will be important to ensure uniform and humane treatment for vulnerable Coloradans in jails. Adding them into the state’s regulatory framework is vital, even if the form of oversight under discussion may not be ideal, they said.

Advocates believe they’ll create a uniform threshold for jails to meet, while sheriffs hope they’ll cut down on costly lawsuits and insurance costs.

Legislators in recent years have taken a higher interest in jail regulations, though often without adopting direct enforcement or oversight controls. Jails are now required to offer gold-standard opioid treatment to inmates, for instance, and they must also limit the use of solitary confinement.

But at least one sheriff, in Boulder, has said his jail is struggling to comply with the solitary confinement law, and the state told The Denver Post in July that it hadn’t confirmed that every jail was providing the opioid treatment.

Amabile said the compromise on the oversight recommendation for the new body of standards was an attempt to “thread the needle.”

But she acknowledged a desire for independent monitoring and said she wanted to create a separate ombudsperson. That official could independently monitor jail complaints and raise issues to the legislature and the public.

“Understanding the lay of the land now in the way that I do, I think this is a start,” Amabile said. “It’s maybe not the final solution, but it’s way better than what’s happening now — which is (that) they’re all just doing whatever and there’s no oversight at all.”

Amy Nichols, the executive director of the County Sheriffs of Colorado, said she wasn’t concerned about sheriffs policing themselves. She said the officials don’t “want to do anything but the best that they can do for their communities and public safety.”

Asked if there should be an enforcement mechanism to hold jails accountable for failing to meet the standards, Nichols said she didn’t “like the word enforcement.”

“The sheriffs have nothing to hide,” added Eagle County Sheriff James van Beek. “I welcome somebody coming in and saying, ‘This could be better,’ and explain to me how.” He views peer auditing as “probably the most logical mechanism, in our view.”

Other observers expressed deeper concern.

Sen. Rhonda Fields, one of the lawmakers overseeing the commission’s work, says she sees “defiance out there, as it relates to sheriffs,” and she wants to create a way to ensure law enforcement officials comply with the standards.

James Karbach, a public defender and commission member, asked legislators what could be done about a sheriff who refused to comply with the standards. He questioned the effectiveness of annual audits, with no other enforcement attached.

“I know if you have a right or a rule, for it to really have weight, you have to have a remedy when it’s violated,” he said in an interview. “Whether it’s frequent or rare, if someone can just say, ‘I’m going to ignore the rule,’ then you really don’t have a rule. As a public defender, I think enforcement is important so that the standards have meaning and work.”

A “huge issue” for taxpayers and public safety

At least four other states have a similar system of allowing sheriffs to conduct peer-to-peer monitoring, said Michele Deitch, a professor at the University of Texas at Austin and a national expert on jail oversight. The model is one of four oversight approaches that other states have pursued to monitor their jails, according to Deitch’s research.

It’s also “my least favorite,” Deitch said.

“I hate to call it oversight because it’s really not,” she said, suggesting that sheriffs aren’t “objective observers.” But she acknowledged that jail monitoring was a “hot potato” issue: No state agency in any state really wants to do it, and sheriffs sit in a unique position as elected officials with direct oversight and authority over their jails and practices.

Deitch praised Amabile’s idea of creating an independent ombudsperson position to monitor inmate complaints, as did Fathi of the ACLU. State authorities may not want to get mixed up in counties’ correctional issues, Deitch said, but improving them should be the goal.

“It’s a huge issue for taxpayers, it’s a huge public safety issue, it’s a huge humanitarian issue,” she said.

Wrapped up in the debate about enforcement is funding. The standards are likely to prompt jails, particularly smaller ones, to undertake infrastructure changes to comply with disability access requirements and medical provisions.

Because rural jails typically have fewer resources, some may close or need to be rebuilt entirely, said Sheriff Allen Cooper of Fremont County, home to Cañon City.

But the legislature hasn’t yet set aside any money to pay for any possible changes, and the commission hasn’t sorted out how to apply universal standards to small and large jails alike.

None of the people interviewed for this story had an estimate for how much money would be required for jails to comply with the new standards. That’s in part because the standards aren’t finished yet, and not all jails have seen them.

But coupled with enduring questions about enforcement, funding concerns have also fueled a desire among some commission members to delay the standards from taking effect until they can figure out how all jails, big and small, will be able to reasonably comply. The legislation currently being drafted would include a study to gauge costs, potentially slowing full implementation for at least another year.

“The goal isn’t to punish — which is interesting, because that’s what we do in jails — but my goal isn’t to punish the jails,” Amabile said. “It’s to improve the jails. And that’s a different framing. And I wish we had that framing for when we had people incarcerated.”

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