In 2021, Colorado lawmakers passed a law that restricts holding people with a diagnosed mental illness in solitary confinement, part of a push in legislatures across the country to curb a practice that can have severe mental health consequences.
The law, which took effect July 1, prohibits jails with more than 400 beds from putting people with a diagnosed mental illness into 鈥渞estrictive housing鈥� 鈥� another term for solitary confinement 鈥� except under limited circumstances. Restrictive housing is when a person is locked alone in a cell for more than 22 hours per day, according to the law.
For those placed in restrictive housing, the law requires jail staff and medical professionals to frequently check on them. A court order is required to keep someone isolated for more than 15 days 鈥� an amount of time the United Nations has deemed .
The law does not aim to prevent people with a mental illness from ending up in jail 鈥� it only seeks to make life behind bars less harmful for them.
Despite having two years to prepare, Boulder County Jail officials are struggling to implement the new law, citing design limitations within the crowded jail as well as staffing shortages. As a result, some mentally ill people are still spending all day long in their cells.
鈥淭he general principle behind [the law], we fully embrace,鈥� Boulder County Sheriff Curtis Johnson told Boulder Reporting Lab. 鈥淭he challenge for us is some of the implementation.鈥�
More than half of the people in the Boulder County Jail have a clinically diagnosed mental health disorder 鈥� schizophrenia, bipolar, depression 鈥� according to jail officials. More are likely undiagnosed. Long-term isolation, research shows, , causes and can increase the .
According to jail officials, people are typically held in restrictive housing as a form of punishment, for personal protection, or when there is no other place to put them. In the Boulder County Jail, more than a dozen people may be in restrictive housing on any given day, according to jail records. The 543-bed jail currently holds 470 people, according to state .
When people are placed in restrictive housing, jail officials typically allow them out one at a time for safety reasons. The jail is vulnerable to civil lawsuits if someone is hurt while in their custody.
But allowing people out of their cells one person at a time creates a logistical challenge, according to jail officials. The jail, which was built in 1987, is divided into separate communal areas. On some days, in certain sections of the jail, there may not be enough hours in a day to allow everyone out for two hours per day.
Jeff Goetz, the jail鈥檚 division chief, said people are being offered time out of their cells on a rotating basis. Even so, for some people, their only out-of-cell time comes in the late evening or early hours of the morning. Typically, people use that time to call family, exercise or shower.
鈥淲ho are you going to call at 2 in the morning? Who are you going to talk to?鈥� Goetz said. 鈥淪ome don鈥檛 want to come out.鈥�
Separately, since the law took effect this month, at least five people with a diagnosed mental illness have had their out-of-cell time cut short 鈥渄ue to their behavioral issues,鈥� Goetz said.
All were on a waitlist to receive a competency evaluation or restoration, a form of mental health treatment to make people aware of their legal rights so they can have their cases adjudicated. All were still presumed innocent.
鈥極ur health community is failing鈥�
The challenges described by the Boulder County Sheriff鈥檚 Office reveal just how ill-equipped jails are to care for those who are among the most in need of mental health treatment, advocates say.
Vincent Atchity, president and CEO at , an advocacy organization that lobbied in support of the 2021 restrictive housing bill, said the pushback from jail officials is an indication they simply cannot live up to the 鈥渉umane standards鈥� set by the law.
鈥淭hey can鈥檛 do it. They don鈥檛 have the tools to do it,鈥� Atchity said. 鈥淎ll they have are the carceral tools, not the human tools of a civil health care setting.鈥�
He said sheriffs have been put in an 鈥渋mpossible situation鈥� of having to care for people with a mental illness. Colorado has one of the in the nation.
鈥淪omeone who is that ill and has not been convicted of any crime needs to be held safely, securely and humanely in a setting that is entirely focused on their health,鈥� Atchity said. 鈥淎nd our health community is failing to meet that need.鈥�
The 2021 law isn鈥檛 the only one that has sought to change solitary confinement practices. In 2014, isolating prisoners with certain mental health conditions in solitary confinement. That law was a response to the 2013 murder of Colorado鈥檚 former director of the Department of Corrections, Tom Clements, who was by a man who spent much of his eight years of incarceration in solitary confinement.
In 2021, Rep. Judy Amabile, of Boulder, helped pass the law on restrictive housing. In 2022, at the request of the , she amended the law to give county sheriffs an extra year to come into compliance.
鈥淚鈥檓 really disappointed,鈥� Amabile told Boulder Reporting Lab in response to the concerns raised by the Boulder County Sheriff鈥檚 Office.
Officials representing county sheriff鈥檚 offices in Denver County, Douglas County, Mesa County and Weld County, said they are in compliance with the law. Preparing for the law required a 鈥渟ignificant amount of collaboration and planning鈥� between jail and mental health officials, according to a spokesperson for the Denver County Jail.
鈥榃e can鈥檛 do it鈥�
According to Boulder County Jail officials, one way to allow more people out of their cells for two hours each day is to subdivide the communal areas. And the jail theoretically has the money to do that.
Boulder County voters in 2018 approved a sales tax generating about $10 million per year for 鈥渏ail modernization鈥� renovations and to build a new alternative sentencing facility, primarily to hold people who are on work release or in community corrections. Last week, . Construction is projected to take 18 months, according to the county.
The sheriff鈥檚 office has used some of the sales tax revenue to divide up day-use areas in the jail, officials said. Much of the rest of the money has gone to building administrative offices and replacing old pipes and kitchen infrastructure. The sheriff鈥檚 office plans to build a new intake facility, too.
Separately, county commissions in 2022 approved nearly $1 million to allow the sheriff鈥檚 office to subdivide other communal spaces in the jail, in part to comply with the 2021 law on restrictive housing. Construction is yet to begin, in part due to crowding in the jail, officials said.
鈥淚 can鈥檛 send the inmates somewhere while that construction is going on. They鈥檝e got to come in and jackhammer the floor, they鈥檝e got to use epoxies and other paints and solvents. Inmates can鈥檛 live there while that鈥檚 going on,鈥� Goetz said. 鈥淲e can鈥檛 do it.鈥�
鈥榃e鈥檙e struggling to figure out the balance鈥�
Under the law, jail staff are also required to check in on people held in restrictive housing twice per hour 鈥� or every 15 minutes if the person shows 鈥渦nusual or bizarre behavior鈥� or suicidality. Mental health professionals are required to evaluate people every day on their psychological health and every two days for 鈥渘eed for ongoing placement in restrictive housing.鈥�
To help implement this requirement, county commissioners last year allocated $428,000 for the sheriff to hire four mental health counselors. They have hired one. The jail also has 14 open positions for jail staff, Johnson said.
Given the staffing constraints, Johnson said the mandated documentation and frequent check-ins for people in restrictive housing could take time away from the jail鈥檚 behavioral health and reentry programs.
鈥淭he challenge is a 15-minute checkup to check on all these people, or investing real time to try to make real assessments and change with people. We don鈥檛 have enough staff to do both,鈥� Johnson said. 鈥淲e鈥檙e struggling to figure out the balance that will allow us to meet the law but not at the sacrifice of the programming, care and treatment that we鈥檝e been providing here prior to this bill.鈥�
Separately, in an effort to get more people with a mental health condition out of jail and into treatment, in certain situations, the law requires officers to offer to bring people to a hospital. Goetz said local hospitals might turn them away at the door or discharge them hours later. And others, according to Goetz, may end up hitting someone at the hospital and ending up with another criminal charge and coming back to jail.
Over the next several months, it鈥檚 unclear what jail officials will do to fully implement the law. If the jail staff fail to comply, they may be vulnerable to civil lawsuits.
Jail officials said a process is already in place to obtain court orders to hold people in restrictive housing for more than 15 days. The sheriff鈥檚 office expects to apply for at least four such orders as soon as this week.
