Back in March 2020, 5 prison inmates who reside at different correctional facilities around the state sued the Governor and the Department of Corrections (DOC), seeking a writ of mandamus to force the government to release certain categories of prisoners who are at high risk for Covid-19. In late April, the court denied the petition for mandamus after a hearing, but did so in a brief order that contained no analysis, except for a short page and a half dissent from the four dissenters. (This is not the normal way of things, but the court recognized time was of the essence.) In a 5-4 opinion released today, the court now explains its vote and analysis.
There is so much going on with this opinion, both substantively and otherwise. There’s two issues argued by the parties, plus a dissent that are all deserving of discussion. This is going to be a long post and I will undoubtedly miss some things, so my apologies on both counts!
Before diving into the substance of the opinions, there’s one thing worth noting now.
The majority opinion is appears to be written with a lay audience in mind. I’m sure the court was keenly aware prisoners around the state had a significant interest in the outcome. You can see this awareness right off the bat. The second paragraph of the introduction acknowledges the lay audience:
Mandamus is a term familiar to attorneys and the judiciary, but not most members of the public. In plain English, petitioners ask the court to force Governor Jay Inslee and the Department of Corrections Secretary Stephen Sinclair to reduce the prison population by ordering the immediate release of three categories of offenders.
You also see it throughout the opinion where the court goes out of its way to break down legal issues, like the long discussion of separation of powers, as well as its discussion of what a personal restraint petition is. I think this is a very good thing. One of the ways we can build trust in the judicial system is to demystify the process, so the general public can understand and follow what’s happening and why.
Turning to the substance of the majority opinion, the majority starts by acknowledging the “extraordinary danger” Covid-19 poses to inmates. It acknowledges the inmates’ concerns about close confinement as “legitimate and well founded” and recognizes that outbreaks have happened at prisons and jails in Washington and around the country. For example, 58 inmates at Monroe Corrections Center, 231 inmates at Coyote Ridge Corrections Center, 2 inmates at the Washington State Penitentiary, and 1 at the Washington Corrections Center have tested positive for Covid-19 so far. Two inmates and one corrections officer have died.
However, the majority frames the question not as whether the risk of Covid-19 requires an immediate response because “clearly it does.” Instead, the court must decide whether it can order the Governor and Secretary of DOC to do something about it through the writ of mandamus.
Writ of Mandamus
The majority holds that the court lacks authority to grant the writ of mandamus because of the separation of powers. The majority gives a really nice primer on the separation of powers doctrine, perhaps knowing one of the target audiences of this opinion is going to be inmates, as I note above, most of whom won’t have any legal background. This section features cites to Madison’s The Federalist No. 47 and Marbury v. Madison.
As a result, the court can only require action by the government where the law requires a specific action by a government official. And the law must define the duty to be performed with enough specificity and certainty to leave nothing to the exercise of discretion or judgment. In addition, the petitioner seeking the writ must show they have no “plain, speedy and adequate remedy in the ordinary course of law.”
Here, the petitioners failed to identify any clear duty the Governor and the Secretary of the DOC have failed to carry out. The petitioners seek to force the executive branch to use its emergency powers, its commutation and pardon powers, and its powers to administer the correctional facilities to release thousands of inmates. But there are no laws that command the executive to release inmates. So the writ of mandamus cannot do so either.
The majority examines the powers the Executive has, including broad and exclusive powers in times of emergencies, exclusive power to commute or pardon, and the discretion to run the corrections facilities. All of these powers are discretionary—the Governor “may” but is not required to use them. The court has no power to order the Governor to use his discretionary powers. Doing so would usurp the authority of a co-equal branch of government.
Because the Governor’s powers are exclusive and discretionary, the writ of mandamus cannot be utilized to force him to exercise his discretionary powers.
Personal Restraint Petition
The petitioners had also moved to amend their petition to add a personal restraint petition (PRP) claim. The personal restraint petition is Washington’s version of the writ of habeus corpus, or as the opinion states the PRP “is the procedure by which original actions are brought in the appellate courts of Washington to obtain collateral or postconviction relief from criminal judgments and sentences, and other forms of government restraint, such as civil commitment and prison discipline.”
To succeed, the petitioners would need to show their confinement is unlawful. The petitioners mainly argue the substantial risk caused by Covid-19 makes their imprisonment cruel or unusual. Looking at the Eight Amendment standards, the majority holds there was no deliberate indifference to the risk of harm. The majority notes that to show deliberate indifferent petitioners have to show subjective recklessness or that officials knew of and disregarded the risk.
The majority noted that the Governor has issued proactive orders to reduce prison populations and to protect inmates while in prison. The petitioners say the government hasn’t gone far enough. But the majority calls it “simply a difference of opinion in how to best fight the threat of Covid-19 in prisons.” There has been no showing officials acted with deliberate indifference.
The majority notes that the Governor has already exercised his discretionary powers to accelerate the release of some prisoners, commuted the sentences of others, and has placed others in a rapid reentry program he established under his powers.
The Dissent
Notably, the dissent does not say it would grant relief on the record in front of it, but it would have retained jurisdiction to obtain a more developed record. The dissent is critical of the way the majority “summarily dismissed the petition and denied the petitioners’ request to seek similar relief via a personal restraint petition.”
The dissent recognizes the executive branch decides whether, when, and how to exercise its emergency powers, while also acknowledging the judiciary still has a role to play in declaring actions that “transgress[] the rights of the individuals in our state. Where unconstitutional acts are committed by public officials, the writ of mandamus could mandate the discretion be exercised within constitutional limits.
The dissent concludes that they cannot confidently say whether petitioners are entitled to the relief they seek. Rather, the dissent would have retained the matter, ordered the state to provide an updated report on conditions in the prisons, appointed a fact finder, and allowed the petitioners to amend their action. Then, once the record was more fully developed, the dissent would’ve decided the case.
I’ve left the most remarkable thing about the dissent to the end. It comes really close to comparing the majority’s deference to the Executive branch to the the US Supreme Court’s—shameful— deference in Korematsu v. US, in which the Court upheld the government’s right to intern innocent Japanese based on nothing more than their race. Right after citing Korematsu and (rightly) criticizing the US Supreme Court decision, Justice Gonzalez states:
This tragic history stands as a caution that in times of crisis, the judiciary must not invoke separation of powers to avoid subjecting government actions to close scrutiny and accountability. Because the majority has abdicated this responsibility with its near-summary dismissal of the petitioners’ claims, I dissent.
Wow. Invoking Korematsu to characterize the actions of your colleagues is a really strong statement to make.
And predictably, the majority takes exception to that characterization. In footnote 7 of the majority opinion, the majority states:
This inaccurate and inflammatory accusation sheds more heat than light. The Korematsu decision endorsed the mass incarceration of law-abiding Americans based on their Japanese heritage, on grounds that had little to do with the separation of powers and everything to do with racism. It is unfair to equate that case with our recognition here of the governor’s and secretary’s discretion in implementing emergency measures to mitigate the risk of COVID-19 to those lawfully incarcerated in Washington’s prisons.
This court is normally incredibly collegial, and they’ve been doing some very good work recently recognizing the racial injustices that exist in our system of justice. So this part very much surprised me.
General Musings
There’s some other interesting things of note. First, I wonder if the outcome of this case would’ve changed if it had come just a few weeks later. The case was originally heard at a weird time, after Justice Charlie Wiggins had retired but before his replacement, Justice Helen Whitener, was appointed by the Governor. So Judge Lisa Worswick of the Washington Court of Appeals sat as a Justice Pro Tem. Judge Worswick was part of the 5 vote majority. We obviously don’t know how Justice Whitener would’ve voted, but it’s interesting thought exercise.
Second, there were 25 parties that filed briefs as amicus curiae. The court is pretty liberal in allowing amicus briefs and I generally think amicus briefs are a good thing, but this is … a lot. Granted, not every party filed a separate brief, but it creates a lot of extra work for the parties and the court, especially given the timing here with what seems like a much shorter briefing schedule than normal.
Third, the dissenters apparently received a lot of harassment and threats from political organizations and their supporters after issuance of the first order. You get a little taste of in the footnotes. In footnote 2 of the dissent, Justice Gonzalez writes:
After the court issued its order denying the petition for a writ of mandamus, several political organizations began spreading false information that the 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. Not surprisingly, the campaign incited harassment and threats toward the dissenting justices, with especially personal and hateful threats directed to the justices of color. Because of these threats, I feel it is important to take the extraordinary step of making clear that the information circulated was false, and no justice would have ordered such relief that day.
Whoa.
The majority references this harassment in its footnote 2, though only in a single sentence that was somewhat cryptic and left me more puzzled than anything. I didn’t fully understand what had happened until I read the dissent’s footnote 2. Given what occurred, I wish the majority opinion had come out more strongly against what had happened and in support of their colleagues.
If you made it this far, well done and you have my eternal thanks!