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 “restrictive housing” — another term for solitary confinement — 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 — an amount of time the United Nations has deemed torture.
The law does not aim to prevent people with a mental illness from ending up in jail — 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 with the crowded jail as well as staffing shortages. As a result, some mentally ill people are still spending all day long in their cells.
“The general principle behind [the law], we fully embrace,” Boulder County Sheriff Curtis Johnson told Boulder Reporting Lab. “The challenge for us is some of the implementation.”
More than half of the people in the Boulder County Jail have a clinically diagnosed mental health disorder — schizophrenia, bipolar, depression — according to jail officials. More are likely undiagnosed. Long-term isolation, research shows, worsens a mental illness, causes psychological damage and can increase the risk of self-harm or suicide.
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 data.
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’s 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.
“Who are you going to call at 2 in the morning? Who are you going to talk to?” Goetz said. “Some don’t want to come out.”
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 “due to their behavioral issues,” 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.
‘Our health community is failing’
The challenges described by the Boulder County Sheriff’s 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 Mental Health Colorado, 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 “humane standards” set by the law.
“They can’t do it. They don’t have the tools to do it,” Atchity said. “All they have are the carceral tools, not the human tools of a civil health care setting.”
He said sheriffs have been put in an “impossible situation” of having to care for people with a mental illness. Colorado has one of the highest rates of adult mental illness and the least access to care in the nation.
“Someone 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,” Atchity said. “And our health community is failing to meet that need.”
The 2021 law isn’t the only one that has sought to change solitary confinement practices. In 2014, Colorado banned isolating prisoners with certain mental health conditions in solitary confinement. That law was a response to the 2013 murder of Colorado’s former director of the Department of Corrections, Tom Clements, who was shot and killed at his doorstep 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 County Sheriffs of Colorado, she amended the law to give county sheriffs an extra year to come into compliance.
“I’m really disappointed,” Amabile told Boulder Reporting Lab in response to the concerns raised by the Boulder County Sheriff’s Office.
Officials representing county sheriff’s 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 “significant amount of collaboration and planning” between jail and mental health officials, according to a spokesperson for the Denver County Jail.
‘We can’t do it’
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 “jail modernization” renovations and to build a new alternative sentencing facility, primarily to hold people who are on work release or in community corrections. Last week, county officials broke ground on the $35.6 million project. Construction is projected to take 18 months, according to the county.
The sheriff’s 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’s office plans to build a new intake facility, too.
Separately, county commissions in 2022 approved nearly $1 million to allow the sheriff’s 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.
“I can’t send the inmates somewhere while that construction is going on. They’ve got to come in and jackhammer the floor, they’ve got to use epoxies and other paints and solvents. Inmates can’t live there while that’s going on,” Goetz said. “We can’t do it.”
‘We’re struggling to figure out the balance’
Under the law, jail staff are also required to check in on people held in restrictive housing twice per hour — or every 15 minutes if the person shows “unusual or bizarre behavior” or suicidality. Mental health professionals are required to evaluate people every day on their psychological health and every two days for “need for ongoing placement in restrictive housing.”
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’s behavioral health and reentry programs.
“The 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’t have enough staff to do both,” Johnson said. “We’re 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’ve been providing here prior to this bill.”
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’s 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’s office expects to apply for at least four such orders as soon as this week.