Two Colorado inmates sued the Colorado Department of Corrections and Gov. Jared Polis on Feb. 15, alleging violations of the state constitution’s ban on slavery and involuntary servitude.
The proposed class action lawsuit alleges Colorado has forced prisoners to work against their will, despite the 2018 passage of Amendment A, which eliminated a clause in the state constitution that permitted slavery and involuntary servitude as punishment for a crime. Two-thirds of Colorado voters approved the amendment to abolish slavery as punishment.
Plaintiffs Harold Mortis and Richard Lilgerose are serving decades-long sentences at the Fremont Correctional Facility in Cañon City. At the time of the alleged forced labor, the inmates were living in so-called “incentive units” at the facility, which require good behavior. According to the lawsuit, they have also accrued “good time” and “earned time,” which reduce time until parole, making Lilgerose eligible for parole around 2038 and Mortis eligible around 2045.
In the fall of 2020, Mortis was ordered to work in the prison’s kitchen, which was short-staffed amid the pandemic. Mortis, who has asthma and was recovering from COVID-19 at the time, was concerned about health risks and declined work, according to the complaint.
CDOC agents told him that if he refused work, he could lose some of his earned time, pushing back his eligibility for parole, the complaint states. Mortis also alleges that prison officials threatened that declining work could result in losing his place in the prison’s incentive unit and his usual work assignment in the prison’s furniture shop. According to the lawsuit, Mortis “involuntarily returned to work in the prison” because he felt compelled by the threats and consequences of refusing to do the kitchen job.
Lilgerose was also assigned work in the prison’s kitchen, which required long hours for just 80 cents per day, according to the lawsuit. Lilgerose stopped working in the kitchen due to mental and physical health issues, including post-traumatic stress disorder and lasting symptoms from a COVID-19 infection. He alleges that because he refused to work in the prison kitchen, he was removed from his incentive unit, lost four days of earned time and was threatened with “restricted privilege” status, which brings longer periods of confinement and isolation and less access to recreation areas and phone calls. Like Mortis, Lilgerose eventually returned to work due to threats of punishment, loss of earned time and other sanctions.
Lilgerose also alleges that, earlier this month, a corrections officer entered his unit to wake a fellow prisoner for his kitchen shift. The inmate said he was sick and couldn’t work and the corrections officer “screamed at the prisoner, threatened him with a taser and told him to ‘either get to the kitchen or cuff up and go to the hole,’” the lawsuit states, referring to solitary confinement.
The plaintiffs, who are being represented by attorneys from legal non-profit Towards Justice and Maxted Law, argue that requiring work in the CDOC is involuntary servitude because prison conditions are inherently coercive. They say state laws and CDOC regulations that require inmates to perform labor are facially unconstitutional, and the defendants violated Amendment A by forcing prisoners to work for the state.
The plaintiffs are asking the Denver County District Court to block the state from requiring them, and other state prisoners, to work and to declare the laws and regulations unconstitutional. They are not seeking monetary damages, according to a press release from Towards Justice.
The 13th Amendment of the U.S. Constitution prohibits slavery and involuntary servitude, except as a criminal punishment. At the time of Amendment A’s passage, Colorado was one of more than a dozen states whose constitution had language mirroring the 13th Amendment’s Exceptions Clause, according to Vox. Colorado was one of the first states to remove the language from its constitution, and voters in Nebraska and Utah have since followed suit. Earlier this month, the Vermont state legislature approved a slavery ban amendment, which voters will consider in November.
The campaign for Amendment A was led by Abolish Slavery in Colorado and supported by organizations including the ACLU of Colorado, the NAACP, the Colorado Council of Churches and the Interfaith Alliance of Colorado. “We always knew that passing Amendment A was a critical step in ridding our institutions and laws of the evils of involuntary servitude and slavery. But we also knew that passing that law was unlikely to be enough on its own,” Kamau Allen, lead organizer with the Abolish Slavery National Network and a leader in the campaign for Amendment A, said in the Towards Justice news release.
“The cruel use of forced labor is too entrenched in our institutions. It would take people like the plaintiffs here and the community that supported Amendment A standing up to hold the State of Colorado accountable,” Allen continued. “The State of Colorado should observe the will of the voters of this State.”
Mortis and Lilgerose are not the first inmates to allege Colorado prisons are violating Amendment A by forcing prisoners to work. In 2020, a group of current and former inmates sued Polis, the CDOC and a private prison operator. Their lawsuit sought a court order requiring the defendants to end slavery and involuntary servitude in their prisons and to compensate working inmates according to state and federal labor laws. A Denver District Court judge sided with the state, unconvinced by the plaintiffs’ arguments that work programs are a form of involuntary servitude or that prisoners should be considered employees entitled to minimum wage. The inmates appealed and later moved to dismiss the appeal without prejudice last summer.