The Washington Supreme Court refused to order state officials to release more inmates from its prison facilities as a way of protecting them from possible exposure to COVID-19. Attorneys for five inmates who filed a lawsuit against the state say that danger amounts to unconstitutionally cruel punishment.

After a historic hearing conducted by teleconference because of the pandemic at the heart of the lawsuit, the court ruled 5-4 the inmates are not entitled to a special order, known as a writ of mandamus. The court refused to tell the governor to change the current plan to reduce crowding with the early release of about 1,600 inmates serving sentences for nonviolent crimes and scheduled to be out later this year.

The inmates seeking the order did not show the Department of Corrections is failing to perform the duties the law requires, nor did they show “deliberate indifference to the COVID-19 risk,” said the majority decision written by Chief Justice Debra Stephens.

In a dissent, Justice Stephen Gonzalez said the state seems to making substantial progress but the prisons still have problems. The court could have accepted the state’s offer to get an updated report in two weeks on progress “to take all necessary steps necessary to protect the health and safety of inmates,” he wrote.

Nicholas Straley, attorney for five inmates seeking early release to avoid being infected, said people in prisons may be sleeping in rooms with anywhere from two to 25 other people.

Overcrowding is always unpleasant and sometimes unconstitutional, he said, adding “But in this case, it can be deadly.”

The fact that that Gov. Jay Inslee and the Department of Corrections already decided to release some inmates shows they know the prisons are more dangerous than life in the community in general, and that will continue to be true until there’s a vaccine for COVID-19, Straley said.

“We are all at home with our families, keeping ourselves safe. People in prisons don’t have that luxury,” he said.

But there are other ways to handle the spread of the virus besides social distancing and some businesses, including Boeing, have resumed operations, Justice Barbara Madsen countered.

“Certainly the prisons need to get on with the business of rehabilitation,” she said. “I’m not sure release is the only option” and could be counter to what’s going on in the community.

There are questions about whether social distancing even works, Madsen said.

“That’s why we’re all in quarantine,” Straley said.

“We’re not all in quarantine. We all interact at various points,” Madsen replied, whether it’s going to the store or being with family members at home. There’s no evidence that social distancing is a sure thing, which might be key to the inmates’ request for release, she said.

Assistant Attorney General John Samson said state officials have the responsibility to protect all of Washington, those in the community as well as those in prison. By the weekend, it will have released or started the process to release around 1,600 inmates of some 17,700 who were in custody before the outbreak.

“Is that enough?” Justice Sheryl Gordon McCloud asked.

Department officials believe it’s enough under current circumstances and guidelines, Samson said. “If it becomes necessary to release more, they’ll do that.”

The department also has issued face masks. And the facility where inmates have tested positive will be able to provide 6-foot social distancing by the weekend, Samson said.

“Even when the department provides the space, it’s still going to be up to the individuals in the institution to exercise social distancing, the same way that we have to,” Samson said.

While the court hearing was underway in Olympia, three Spokane-area Republicans – County Prosecutor Larry Haskell, state Rep. Jenny Graham and state Sen. Mike Padden – told reporters outside the Spokane County courthouse they opposed the releeases.

Graham and Padden argued the department’s efforts to mitigate the coronavirus have been largely successful.

“The prison system already has a system set up to deal with these diseases when they come up, and I don’t think that they’re being given enough credit,” Graham said. There have been no deaths from COVID-19 in the state prison system, she said.

Graham, whose sister was a victim of the Green River Killer, Gary Ridgway, said she was concerned serial killers would be released from prison. But Samson said during the hearing no one serving life without parole could be released.

Padden, a former district judge who spent years sponsoring legislation to crack down on repeat drunken drivers, said he was concerned about a potential spike in crime if thousands of prisoners were to be released.

“This is a group of prisoners that have already violated society’s laws, and they are the least likely group that’s going to follow this stay-home, stay-safe order,” Padden said. “So I think it’s a bad decision both for public safety and for public health.”

Haskell was also concerned about a potential rise in crime. The recidivism rate is fairly high among released in mates, particularly in the first 90 days or if they don’t have services like transitional housing, medical access and a support group, he said.

“The unemployment rate in Washington and nationally is pretty high right now, so finding a job coming out of the Department of Corrections would be a challenge as well,” Haskell said.

While the majority turned down the inmates’ request to expand the early release plans the department filed, it also did not block the plans currently in place.

In the hearing, Chief Justice Stephens questioned whether the court should act as a “superpower” to tell another branch of government how to solve difficult problems.

Straley argued the court did that with the Legislature in the McCleary case, saying a lack of money didn’t override the constitutional duty to educate children.

But it left the decisions on how to address that problem to the Legislature, Stephens countered, so why isn’t it up to the governor and department to decide how to address the pandemic?

Releases are essential, he replied, and they haven’t proven they’ve released enough inmates to prove they’ve met their constitutional responsibility.

“This is a once-in-a-century event that we’re going through,” he said “The entire globe has stopped and because of that there need to be extraordinary remedies.”

Justice Gonzalez called it a difficult situation with possibly lethal consequences. He asked Samson if the court ordered a new report in two weeks, would it show the number of tests administered and the spread of the disease.

It could, Samson said. The department currently has tested more than 300 inmates. Only 12 inside a prison and one in an outside program have tested positive, which is comparable to statistics in the state as a whole, he said.

Of the inmates who filed the lawsuit, he said, one is sentenced to life without parole, and no statute would allow an inmate in that situation to be released. Another is scheduled for release in 2029, but he has a clemency hearing in June where early release could be considered. A third is scheduled for release in December but could be released sooner if there are cases of COVID-19 in the facility where he is housed.

Shyanne Colvin, of Spokane, who is the first inmate named in the lawsuit and is pregnant, is scheduled to be released within the next week or so, along with 15 other women inmates who are pregnant, Samson said. Colvin, 21, is due in May. She is serving a sentence for delivering methamphetamine.