by Mark Wilson

We are not indifferent to the serious dangers faced by petitioners and other inmates at heightened risk of contracting COVID-19 in Washington’s correctional facilities.”

That was a claim by a Majority of the en banc Washington state Supreme Court on July 23, 2020, in a 5-4 decision dismissing a mandamus action brought against Washington Governor Jay Inslee and Stephen Sinclair, secretary of the Washington Department of Corrections (WDOC). “But how the governor and secretary address these dangers and also protect the public necessarily involves the exercise of discretionary authority that we cannot direct.”

Five Washington state prisoners filed a mandamus proceeding in the Washington Supreme Court, seeking immediate release from confinement because of the serious health risk created by COVID-19. “These concerns are legitimate and well founded,” acknowledged the Majority. “The currently widely reported medical evidence suggests that the COVID-19 risks of serious complications or death are highest for offenders over age 50 and those with certain preexisting medical conditions, but it can also be serious for younger people and those in good health.”

Noting thousands of prisoners testing positive for coronavirus across prisons and jails nationwide, the Court acknowledged the increasing number of positive test results within Washington state prisons. “The tragic deaths” of 65-year-old Washington guard Berisford Anthony Morse and prisoners Victor Bueno, 63, and William Bryant, 72, “underscore the serious danger COVID-19 poses in correctional facilities.” The dissent noted that there had been at least 651 prison coronavirus deaths nationwide as of July 16, 2020.

Beginning in March 2020, Inslee issued several emergency proclamations designed to limit the spread of the virus. Sinclair also issued social distancing guidelines for WDOC prisoners soon thereafter. “But social distancing is difficult, if not impossible, in some prison settings due to logistics and population,” the Court acknowledged.

“The risk of a COVID-19 outbreak is undeniably high in these facilities and under these conditions. Without doubt, the prison system faces a daunting challenge from a serious public health threat.”

On April 15, 2020, Inslee issued a proclamation suspending various statutory impediments to early release, commuting sentences for, and ordering the accelerated release of, 950 nonviolent prisoners. By May 15, 2020, the WDOC reported that 422 prisoners had received commutation orders and another 528 had been returned to the community through a rapid reentry program established under the governor’s proclamations. At oral argument, the governor and secretary claimed that the prison population had been reduced from almost 18,000 to just over 16,000.

The prisoner-petitioners claimed that these efforts were still insufficient because crowded prison conditions prevent effective social distancing, creating an unreasonable risk of contracting COVID-19.

They asked the Court to order the governor and secretary to release about 13,000 Washington prisoners who fall into one of three categories of risk: (1) those with preexisting medical conditions complicated by COVID-19, (2) those over age 50, and (3) those who already have release dates pending within the next 18 months.

The Majority rejected the prisoners’ request. “The question before us is not whether the risk of COVID-19 in Washington’s prisons requires an immediate response to protect the lives of inmates and staff -clearly it does,” the Majority declared. “Instead, this case asks whether this court can issue a writ of mandamus to direct the response by the governor and the secretary, or whether the petitioners have shown that their continued incarceration is unlawful. We answer no to both questions.”

Claiming that the separation of powers prohibited judicial intervention, the Court concluded that “because no law commands the governor and secretary to release inmates here, neither can a writ of mandamus. Commanding the governor or the secretary to take specific actions not required by law would exceed this court’s constitutional authority.” The Majority dismissed the writ, concluding that “while we do not minimize the serious risks COVID-19 poses to Washington’s incarcerated population, we will not use this emergency as an occasion to wield powers that exceed our constitutional authority.”

Four justices dissented, arguing that “the courts have a role to play in protecting individual rights in times of emergency,” and “in times of crisis, the judiciary must not invoke separation of powers to avoid subjecting government action to close scrutiny and accountability.” The dissent concluded that “the Majority has abdicated this responsibility with its near-summary dismissal of the petitioners’ claims.”

Notably, “several political organizations began spreading false information that dissenting justices would have ordered state officials to immediately release mass numbers of serious violent offenders. That false information was spread through a social media campaign using images of the justices in a style reminiscent of ‘wanted’ posters,” the dissent noted. “Not surprisingly, the campaign incited harassment and threats toward the dissenting justices, with especially personal and hateful threats directed to the justices of color.” The Majority also criticized the “unjustified political attacks against our dissenting colleagues,” noting that “no justice would have ordered state officials to immediately release serious violent offenders en masse.”

Finally, the Majority denied the prisoners’ request to amend their petition to add a personal restraint claim under Washington law. The court found that the amendment would be futile since they could not prove that their restraint is “unlawful,” because no evidence demonstrated that Inslee or Sinclair were deliberately indifferent to the extreme risk COVID-19 creates for the incarcerated.

“The result might be different on different facts, and we do not suggest the inadequacy of safety measures can never amount to deliberate indifference,” the Majority clarified. “Today’s decision resolves these claims on the facts before us and does not excuse the governor and secretary from their continuing obligations toward these petitioners and other inmates.” See: Colvin v. Inslee, 467 P.3d 953 (Wash. 2020). 

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