State, inmates’ attorney clash over COVID-19 early release plan

Washington Supreme Court justices on Thursday pressed an attorney representing state inmates about what the court would order if it agrees that Gov. Jay Inslee has not taken sufficient steps to slow the spread of the new coronavirus in prisons.

Justices heard virtual oral arguments in the case nonprofit law firm Columbia Legal Services filed last month on behalf of five inmates at various state prisons. The petition seeks to require Inslee and DOC to release inmates who are especially vulnerable to the coronavirus, as well as those nearing release.

Chief Justice Debra Stephens asked Nick Straley, an attorney with Columbia Legal, about the constitutional grounds for when the judiciary “gets to interfere with the exercise of discretion” by another branch of government, in this case the executive branch during an emergency.

“The duty is to protect our clients from COVID-19, and all of the scientific evidence before the court indicates there have to be releases (of inmates) to do that,” Straley replied.

Stephens said she still had concerns about what the high court would tell Inslee and state Department of Corrections Secretary Stephen Sinclair to do.

“What is the mandate? We’re going to tell them, `release x number apparently,’ but I heard you say earlier they’d have discretion on who is safe to release,” Stephens said.

Staley replied: “What is constitutionally compelled is to operate a safe prison system and in this context, what that means is there are a number of people who can be safely held in the prisons. That is a number that can be determined. Can I tell you today what that number is? No. But neither can the Department of Corrections.”

The exchange, which mirrored an earlier one with Justice Steven Gonzalez, highlighted the major issues in the lawsuit.

Columbia Legal asserts that Inslee and the state prison system have violated the “cruel punishment” clause in the state Constitution that protects inmates from “a substantial risk of serious harm.”

Inslee has used an emergency proclamation and commutation order to authorize the early release of about 1,100 inmates convicted of non-violent crimes.

Straley said that’s not enough to provide social distancing. He urged the court to appoint an independent expert — referred to as a “special master” — to gather facts so the number can be determined. Social distancing involves being at least 6 feet apart from others.

“The state hasn’t presented any evidence to demonstrate that their plan will meet constitutional standards. What they haven’t done is demonstrate that social distancing is possible in every prison in Washington,” he said.

Straley said the court should order Inslee and Sinclair to release about 3,400 inmates who are within 18 months of release and don’t have a requirement for the state to notify their victims before release. He also said the court should release the five inmates that Columbia Legal represents.

Columbia Legal has asked the court to identify all inmates who are 50 years old or over, those who have underlying medical conditions which put them at risk of serious harm or death from COVID-19, and those who have early release dates within the next 18 months or are currently on work release.

The Attorney General’s Office places the number of inmates in those categories at 11,715 including 5,272 who have committed serious violent offenses such as murder, assault, and rape.

“We’ve never taken the position that every single person that falls in one of those categories should be released,” Straley told the justices on Thursday. “What this court can say is, ‘you need to release enough people to make it so it is safe in our prisons or as safe as possible’ -- because of course it’s never going to be entirely safe.”

Justice Barbara Madsen noted that businesses including Boeing have resumed their operations by agreeing to take precautions to protect their employees.

“I’m not sure release is the only option,” Madsen told Straley. “Asking us to order that as the option seems to me perhaps counter to what other businesses and establishments are doing in the community.”

John Samson, an assistant attorney general representing Inslee and Sinclair, urged the court to deny Columbia Legal’s petition for a court order, saying it had not shown evidence that the prison system had violated the state Constitution.

If the court disagreed with the state’s stance, then Inslee and Sinclair could file another report with the justices offering details on the steps it’s taken to protect inmates, Samson said.

On April 10, the court ordered Inslee and Sinclair “to immediately exercise their authority to take all necessary steps to protect” inmates in response to the COVID-19 outbreak.” Twelve inmates and seven staff members at the Monroe Correctional Complex have tested positive, according to DOC’s website.

In response to the court’s order, the state Attorney General’s office filed a report on April 13 that outlined the plan from Inslee and Sinclair to release nonviolent offenders early.

“I cannot guarantee — and I don’t think the Department (of Corrections) — can guarantee that every single prison cell can provide 6 feet of sleeping distance. What I can say, first, is that’s not constitutionally required,” Samson told the court, citing a federal court decision about California’s prison system.

Before the oral arguments, the first held virtually due to the COVID-19 outbreak, initiative promoter Tim Eyman, who is running for governor as a Republican, and state Rep. Jim Walsh, R-Aberdeen, attacked the lawsuit filed by Columbia Legal.

Walsh said: “This lawsuit is an outrage. It is a radical, anarchistic public policy agenda ... that’s using the COVID outbreak to push this radical agenda to de-populate the prisons in Washington. To say it’s not good policy is an understatement. It’s disastrous public policy.”

As the Supreme Court heard oral arguments, Sedro-Wooley resident Tonya Fenton expressed concern that if Columbia Legal prevails in its lawsuit, the man who murdered her mother and five others in a 2008 shooting rampage could be released.

Isaac Zamora was sentenced to life in prison for the killings. He is in the Special Offender Unit at the Monroe Correctional Complex, according to DOC’s website.

“This guy does not deserve to be let loose. The people cannot let this happen,” she said.

This story was originally published April 23, 2020 at 1:30 PM.