“We are extremely disappointed by today’s decision by Washington’s Supreme Court denying our clients’ petition asking the Court to order the Governor and Department of Corrections to protect people who are incarcerated in state prisons from the risk of COVID-19,” said Nick Straley, attorney with Columbia Legal Services who represented the Petitioners – Shyanne Colvin, Shanell Duncan, Terry Kill, Leondis Berry, and Theodore Rhone – who are all currently incarcerated in Washington prisons.
“All of the evidence in the court record showed that the Governor’s and the Department of Corrections’ (DOC) actions to date have been insufficient to meet public health recommendations,” added Straley. “Uniformly, national public health and correctional experts agree that to protect people in prison from the virus, a significant reduction of the prison population is necessary.” (Visit this Colvin v. Inslee webpage for multiple declarations from people directly impacted by the threat of COVID-19 in our prisons and national experts, including the former head of WA DOC.) Nevertheless, five Justices (Stephens, Owens, Madsen, Johnson, and Worswick, justice pro tem) issued a brief, one-page decision, with opinions to follow, denying Petitioners’ request because they had “not shown that the Respondents are currently failing to perform a mandatory, nondiscretionary duty in addressing the COVID-19 risk.” The majority also held that Respondents’ actions did not constitute “deliberate indifference to the COVID-19 risk.”
By contrast, the dissent by four Justices, authored by Justice González and joined by Justices Gordon McCloud, Yu, and Montoya-Lewis, found that the Court could, through a writ of mandamus, “order the Executive branch to comply with its duty to protect incarcerated individuals.”
The dissent recognized that the COVID-19 outbreak was “an extraordinary situation with grave consequences for not just those incarcerated without sufficient safeguards, but also for the broader community.” The four dissenting justices would have “accepted the State’s offer to provide an updated report in two weeks.” The dissent also would have allowed the five named Petitioners to add individual claims for release through personal restraint petitions, as they had requested.
“We know the current actions taken are insufficient to prevent the spread of this disease and untimely deaths,” said Twyla Kill, wife of Terry Kill, one of the Petitioners. “I am so disappointed by a judicial system so quick to lock people away for years in overcrowded conditions and so quick to fail to protect them in a moment of remarkable crisis. This failure will result in tragedy. How could it not?”
The Governor and DOC Secretary Stephen Sinclair did not take the one step most needed to protect people – reducing prison populations to allow for social distancing – until after the first outbreak at Monroe and the Court’s April 10 Order, directing them to take all necessary steps to protect the health and safety of people in DOC custody. As Petitioners’ counsel, Nick Straley, had stated during oral arguments before the Court this morning, “The difference between what we can all do out here and what people in prison can do [to protect themselves] is astronomical.”
Even without the continued court oversight that Petitioners requested, Columbia Legal Services will continue to advocate for DOC to continue to identify people who can be released quickly, as well as to be transparent about steps taken to protect prisons from further spread. For example, approximately 3,400 individuals do not have a victim notification requirement and are within 18 months of release; DOC could expedite their release and thereby reduce the risk of harm to everyone. And the Court’s decision leaves vulnerable the over 4,600 individuals with an identified medical diagnosis, and the 3,700 people over age 50 (the age identified by DOC as at risk).
“Today’s decision is a momentary setback at a moment when there’s no time to waste,” added Straley. “Working with people who are incarcerated, their families, and community partners through this petition, we were able to highlight unacceptable conditions and inform Washingtonians about people in our community who are justifiably scared and unable to practice social distancing during this crisis.”
Charlie McAteer, CLS Communications Director