COVID-19 (“COVID”) has been an ever-increasing topic of discussion around the globe. In the recent weeks, COVID case numbers have climbed to over 4,000,000 in the United States. Close-quarter-populace facilities, such as hospitals, nursing homes, and correction facilities experience great difficulty in controlling the spread of COVID if residents become infected. In Washington, case law is already being established regarding Department of Corrections (“DOC”) facilities.

Colvin et al. v. Inslee et al., 2020 WL 4211571 (2020), examined a petition for a writ of mandamus from five inmates serving sentences at different DOC facilities. The petitioners claimed extraordinary danger posed by COVID to inmates in DOC facilities. The petitioners asked the court to force Governor Jay Inslee and DOC Secretary Stephen Sinclair to reduce prison populations by ordering the immediate release of three categories of offenders.

The court did not have the benefit of hearings, factual findings, credibility determinations, or discovery. Descriptions of the prison conditions, expert opinions on the risks COVID presented in the prison environment, and the petitioners’ declarations were taken as true to their individual situations.

The petitioners claimed close confinement created a substantial risk of harm caused by COVID. These concerns were found to be legitimate and well founded. Major outbreaks had occurred in prisons and jails nationwide. COVID concerns are very serious, because the understanding of this public health threat is ever-evolving and incomplete. The court found the prison system faced a daunting challenge from this severe public health threat.

Prisons do not easily accommodate social distancing. Visitor screening was implemented on March 6, 2020, and visitation was stopped March 13, 2020. However, social distancing is difficult, if not impossible, in some prison settings due to logistics and population. Each petitioner sought immediate release because they fell into one of three categories of risk: (1) those with preexisting medical conditions complicated by COVID (three petitioners), (2) those over age 50 (two petitioners), and (3) those who already have release dates pending within the next 18 months (one petitioner).

The court did not have full information regarding the petitioners’ criminal history or any history of prison discipline. The petitioners’ crimes included the following: delivery of a controlled substance in a county jail; multiple counts of first and second degree robbery; first degree robbery with a firearm; burglary; third degree assault; unlawful possession of a firearm; robbery; and fourth degree assault involving domestic violence. One petitioner was serving a life sentence for repeat offenses.

At the time of filing, no prison inmate in Washington had tested positive for COVID. Days later, an inmate in the Monroe Correctional Complex tested positive. A significant disturbance ensued. Respondents filed reports detailing their safety plan and the steps taken to prevent spread.

On April 15, 2020, the governor issued a proclamation essentially ordering the release of certain nonviolent offenders. At oral argument, respondents suggested the prison population had been reduced from almost 18,000 to just over 16,000. After oral argument, the DOC reported 292 inmates tested positive for COVID. Tragically, at the time of the opinion, the deaths of a 65-year-old corrections officer, a 63-year-old inmate, and a 72-year-old inmate underscored the serious danger COVID poses in correctional facilities.

The question before the court was not whether the risk of COVID in Washington’s prisons required an immediate response to protect the lives of inmates and staff. Instead, the issue was whether the court could issue a writ of mandamus to direct such response by the governor and the secretary, or whether the petitioners have shown that their continued incarceration was unlawful. The court answered no to both questions.

The fundamental functions of the branches of government are familiar to most. The legislative branch writes laws; the executive branch faithfully executes those laws; and it is emphatically the province and duty of the judicial department to interpret the law. When the law requires a government official to take a particular action, the court has the power to issue a writ of mandamus to say so. Mandamus is an extraordinary remedy appropriate only where a state official is under a mandatory ministerial duty to perform an act required by law as part of that official’s duties.

The court found mandamus could not control the discretion the law entrusts to an official. Mandamus was not be used to compel the performance of acts or duties involving discretion on the part of a public official. Mandamus, therefore, is an appropriate remedy only where the law prescribed and defined the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. The court stated its job was to say what the law is, not dictate how another branch of government should do its job.

The petitioners’ writ essentially asked the court to encroach on the executive branch and exceed the court’s authority. This encroachment would be in direct violation of long-recognized separation of powers principles.

The court held as follows: without demonstrating an official in the executive branch failed to perform a mandatory, nondiscretionary duty, courts have no authority under the law to issue a writ of mandamus—no matter how dire the emergency. Mandamus is not the answer for every emergency, and it could not deliver the relief petitioners sought here.

Alternatively, the petitioners sought leave to amend their petition by filing a personal restraint petition. The record before the court did not show the respondents acted with deliberate indifference to the extreme risk COVID created for the incarcerated.

The court noted the DOC ultimately did release inmate Colvin following oral argument. However, she used methamphetamine in violation of the conditions of her release and was returned to prison. This unfortunate fact illustrates the difficulties inherent in determining which inmates should be released, even for the DOC, which has expertise in this area.

The court was wise in its decision to promulgate the foundational principle of separation of powers. There is no indication why the court’s inmate release decisions would be different from, better than, or more just than those reached by the governor and the secretary.

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