In re Pers. Restraint of Williams

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
OCTOBER 7, 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
OCTOBER 7, 2021
ERIN L. LENNON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint
)
Petition of ) No. 99344-1
)
ROBERT RUFUS WILLIAMS, ) En Banc
)
Petitioner. ) Filed : October 7, 2021
__________________________________)

MADSEN, J.—In the midst of the global COVID-19 (coronavirus 2019)

pandemic, Robert Rufus Williams filed a personal restraint petition (PRP) arguing that

the conditions of his confinement constitute cruel punishment in violation of the state and

federal constitutions. See WASH. CONST. art. I, § 14; U.S. CONST. amend. VIII. While

confined in Department of Corrections (DOC) facilities, Williams asked this court to

order his sentence be served in home confinement at his sister’s home in Florida until

COVID-19 no longer posed a threat to him.

After hearing oral arguments, we issued an order recognizing that article I, section

14 of the Washington Constitution is more protective than the Eighth Amendment to the
No. 99344-1

United States Constitution regarding conditions of confinement and that Williams’s then

current conditions of confinement were cruel under the state constitution: specifically, the

lack of reasonable access to bathroom facilities and running water, as well as DOC’s

failure to provide Williams with appropriate assistance in light of his physical disabilities.

We granted Williams’s PRP and directed DOC to remedy those conditions or to release

Williams.

DOC later reported that it had complied with this court’s order and had placed

Williams in a housing unit designed for assisted living care. Williams was relocated to a

single cell with no roommates and a toilet and sink, and was given access to Americans

with Disabilities Act (ADA) compliant restrooms and a readily available medical staff, an

assigned wheelchair pusher/therapy aide, and an emergency pendant allowing him to call

for assistance. We concluded that these actions remedied the unconstitutional conditions

and declined to order Williams’s release.

Today, we explain the reasoning underlying our order granting Williams’s PRP.

We hold that the Washington Constitution is more protective than the federal constitution

in the context of prison conditions and accordingly announce a test to analyze conditions

of confinement that provides the protection required by article I, section 14. Under this

test, the conditions of Williams’s incarceration violated our state’s cruel punishment

clause because those conditions exposed Williams to a significant risk of serious harm by

depriving him basic hygienic necessities and those conditions were not sufficiently

related to any legitimate penological interest.

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BACKGROUND

In 2009, Williams was convicted of multiple offenses, including the brutal assault

of his ex-girlfriend. State v. Williams, noted at 160 Wn. App. 1036, 2011 WL 1004554,

at *1-3. Williams was sentenced to 22.5 years of confinement. See id. at *3. The Court

of Appeals affirmed his conviction in 2011. Id. at *5.

In late December 2019, COVID-19 swept across the globe. An airborne virus

transmitted through inhaling infected aerosol droplets, COVID-19 is especially dangerous

for individuals over the age of 65 and those with preexisting medical conditions, and it

has severely affected communities of color. Risk for COVID-19 Infection,

Hospitalization, and Death by Race/Ethnicity, CTRS. FOR DISEASE CONTROL AND

PREVENTION (updated Sept. 9, 2021), https://www.cdc.gov/coronavirus/2019-

ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html

[https://perma.cc/J39U-6HDA]; The COVID Racial Data Tracker, THE COVID

TRACKING PROJECT AT THE ATLANTIC, https://covidtracking.com/race

[https://perma.cc/9SMQ-MFST]. Transmission of COVID-19 is particularly concerning

in the correctional setting due to the close quarters in which inmates live, the crowding,

and the recirculated air. See Colvin v. Inslee, 195 Wn.2d 879, 886, 467 P.3d 953 (2020)

(“Prisons are not designed to easily accommodate social distancing.”); Ahlman v. Barnes,

445 F. Supp. 3d 671, 679 (C.D. Cal. 2020) (“COVID-19 is particularly dangerous in jails

and prisons, where inmates are often unable to practice the recommended social

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distancing, lack access to basic hygienic necessities, and are regularly exposed to

correctional officers and staff who move in and out of the Jail.”).

DOC has taken numerous steps to stem the spread of COVID-19 within its 12

prisons. These steps include

- Implementing screening, testing, and infection control guidelines that
are continuously updated;
- Employing an infectious disease physician to manage DOC’s infection
prevention program;
- Employing specialized infection prevention nurses at major prison
facilities;
- Daily staff screening and contact tracing;
- Screening and quarantining newly admitted inmates;
- Screening and isolating (when required) inmates transported between
facilities;
- Instituting protocols to limit the volume of inmate transfers;
- Reducing the number of incarcerated individuals;
- Implementing an “intensive cleaning protocol” for high touch surfaces;
- Providing inmates with two bars of soap at no cost, ongoing free soap
during the pandemic, and hand sanitizer in certain areas, and using
inmates to assist with cleaning efforts;
- Implementing physical distancing through room occupancy limits,
reducing programming and inmates in the outside yards, staggering
medication lines, closing weight lifting areas, and adjusting religious
services;
- Quarantining, isolating, and testing suspected or confirmed COVID-19
inmates;
- Providing bandana face coverings to inmates, and in some instances
providing and requiring fit-tested N95 masks;
- Suspending visitation and volunteer programs at all DOC facilities; and
- Undertaking an incremental approach to resuming normal operations.

DOC Mot. to Suppl., Ex. 1, para. 4 (Second Decl. of Scott Russell) (Wash. Ct. App. No.

54629-9-II (2020)); see generally DOC’s Resp., Ex. 2 (Decl. of Julie Martin) (Wash. Ct.

App. No. 54629-9-II (2020)) (detailing DOC’s ongoing efforts to reduce the spread of

COVID-19 within its facilities).

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No. 99344-1

During the initial stage of the pandemic, Williams was 77 years old and

incarcerated at Coyote Ridge Corrections Center. Williams, a Black man, suffered from

diabetes and hypertension. Years earlier, Williams had experienced a massive stroke that

immobilized the right side of his body and required him to use a wheelchair. Williams

relied on therapy aides to push his wheelchair and assist him with daily tasks.

At Coyote Ridge, Williams shared a cell with three other inmates. Because that

cell was dry—lacking a sink or toilet—Williams had to wait for prison staff to unlock his

cell and move him to an accessible bathroom facility equipped to accommodate his

needs. Williams often waited long periods of time for assistance to the bathroom. As a

result, he was forced to relieve himself in bottles and was unable to keep himself clean.

In April 2020, Williams sought an extraordinary medical placement with his sister

in Florida. DOC denied the request, determining that Williams failed to satisfy the

requisite community safety criteria. A week later, Coyote Ridge reported its first case of

COVID-19 within the prison population.

On May 15, 2020, Williams petitioned for relief from unlawful restraint in this

court. Williams argued that his conditions of confinement were cruel punishment in

violation of article I, section 14 of the Washington State Constitution and the Eighth

Amendment to the United States Constitution. He asked us to order his immediate

release to live with his sister in Florida. We transferred the PRP to the Court of Appeals

for consideration.

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No. 99344-1

While his case was pending before the Court of Appeals, Williams tested positive

for COVID-19. After hospitalization, Williams was discharged to the Airway Heights

Corrections Center infirmary and eventually transferred back to Coyote Ridge. He soon

reported feeling chest pain, shortness of breath, and fatigue; Williams was returned to his

cell. A few weeks later, Williams was taken to a local emergency department with

similar symptoms. He tested negative for COVID-19 and again was discharged to

Coyote Ridge’s infirmary for observation and then to a cell.

In December 2020, the Court of Appeals issued its opinion on Williams’s PRP.

The court concluded that the Washington Constitution is more protective than the federal

constitution regarding prison conditions and crafted a test to evaluate state constitutional

challenges. In re Pers. Restraint of Williams, 15 Wn. App. 2d 647, 665-71, 476 P.3d

1064 (2020). The court’s test reviewed three factors: national consensus on release

eligibility, severity of the risk faced by the petitioner, and penological justifications for

continued incarceration. Id. at 672-82. The court concluded both that Williams did not

satisfy its test and that he failed to show his conditions were cruel under the Eighth

Amendment. Id. at 682-86. Thus, the Court of Appeals denied Williams’s PRP, motion

for release, and request for a reference hearing. Id. at 686.

Williams sought accelerated discretionary review here, which our commissioner

granted. Ruling Granting Review, No. 99344-1, at 4-5 (Wash. Feb. 3, 2021). Williams

asserted that the surge of COVID-19 throughout DOC facilities showed that DOC was

incapable of controlling the outbreak; he also proposed a test for reviewing challenges to

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No. 99344-1

prison conditions that would require the State to establish the penological justifications

for ongoing confinement in light of “new objective data” showing a punishment’s

disparate impact on individuals based on race, age, or disability. Pet’r’s Suppl. Br. at 10-

12; Pet’r’s Mot. for Discr. Review at 3-4. As a “severely disabled Black man with

advanced diabetes and hypertension,” Williams argued that his confinement during the

COVID-19 pandemic was cruel. Pet’r’s Suppl. Br. at 11. 1

After oral arguments, we agreed with Williams, in part. We concluded his

conditions of confinement—specifically the lack of reasonable access to bathroom

facilities and running water, as well as DOC’s failure to provide Williams with

appropriate assistance in light of his disabilities—constituted cruel punishment pursuant

to article I, section 14 of our state constitution. We therefore granted Williams’s PRP

and directed DOC to remedy the cruel conditions, either at Coyote Ridge or an alternative

placement, or to release Williams. DOC has remedied the unconstitutional conditions of

confinement at Coyote Ridge, where Williams remains as of this writing. The following

explains our reasons for agreeing with Williams that the challenged conditions of

confinement constituted cruel punishment under article I, section 14 of the Washington

State Constitution.

1
On March 9, 2021, Williams moved to supplement the record regarding disputed disciplinary
infractions while in DOC custody. Williams argued that the interactions were not relevant to his
claims of constitutional conditions of confinement but were referenced by DOC in its briefing to
this court. We agree with Williams—the interactions are not relevant to our decision on the
unconstitutional prison conditions in which Williams was confined. Accordingly, we deny the
motion to supplement.

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No. 99344-1

ANALYSIS

To obtain relief through a PRP, petitioners challenging the conditions of their

confinement must show they are being unlawfully restrained under RAP 16.4 In re Pers.

Restraint of Gentry, 170 Wn.2d 711, 715, 245 P.3d 766 (2010). No party disputes

Williams is under DOC restraint. Thus, the issue is whether that restraint is unlawful.

Unlawful restraint occurs when the conditions or manner of the restraint are “in violation

of the Constitution of the United States or the Constitution or laws of the State of

Washington.” RAP 16.4(c)(6).

Petitioners bear the burden of proving unlawful restraint by a preponderance of

evidence. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990).

Factual evidence, rather than conclusory allegations, must be offered in support of a PRP.

In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083 (1999).

Speculation, conjecture, and inadmissible hearsay is insufficient to warrant relief. Id. To

obtain relief from a PRP based on a constitutional error, a petitioner must show two

things: (1) a constitutional error occurred and (2) the error resulted in actual and

substantial prejudice. See Cook, 114 Wn.2d at 809-10. However, where a petitioner

raises a claim for which there was “no previous opportunity for judicial review, such as

constitutional challenges to actions taken by prison officials,” a petitioner is not required

to make a threshold showing of prejudice. Gentry, 170 Wn.2d at 714-15. Rather, the

petitioner must show the conditions or manner of restraint violate state law or the

constitution. Id. at 715.

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I. Article I, Section 14

Williams argues the conditions of his confinement are unconstitutional under both

state and federal constitutions. Where feasible, it is this court’s duty to resolve

constitutional questions first under our own state constitution before turning to federal

law. O’Day v. King County, 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v.

Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)). “We do so because in addition to

our responsibility to interpret Washington’s constitution, we must furnish a rational basis

‘for counsel to predict the future course of state decisional law.’” Collier v. City of

Tacoma, 121 Wn.2d 737, 745-46, 854 P.2d 1046 (1993) (quoting State v. Gunwall, 106

Wn.2d 54, 60, 720 P.2d 808 (1986)).

Article I, section 14 proscribes both disproportionate sentencing and “certain

modes of punishment.” State v. Manussier, 129 Wn.2d 652, 676, 921 P.2d 473 (1996)

(citing State v. Fain, 94 Wn.2d 387, 395-96, 617 P.2d 720 (1980)). We have recognized

that the state provision is more protective than its federal counterpart. See, e.g., State v.

Bassett, 192 Wn.2d 67, 78 & n.2, 428 P.3d 343 (2018). However, this conclusion has

arisen mainly in the context of disproportionate sentencing. Id.; Fain, 94 Wn.2d at 402.

Because the current case concerns prison conditions, we first consider whether article I,

section 14 is more protective in this context. State v. Ramos, 187 Wn.2d 420, 454, 387

P.3d 650 (“Even where it is already established that the Washington Constitution may

provide enhanced protections on a general topic, parties are still required to explain why

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enhanced protections are appropriate in specific applications.”), cert. denied, 138 S. Ct.

467 (2017).

Our analysis of the protections provided by our state constitution is guided by

Gunwall’s six nonexclusive factors: (1) the textual language of the state constitution, (2)

differences in the texts of parallel provisions of the federal and state constitutions, (3)

state constitutional and common law history, (4) preexisting state law, (5) structural

differences between the federal and state constitutions, and (6) matters of particular state

interest or local concern. 106 Wn.2d at 61-62. In some instances, our state constitution

provides greater protections than the federal constitution. State v. Young, 123 Wn.2d

173, 179, 867 P.2d 593 (1994) (citing State v. White, 97 Wn.2d 92, 108-09, 640 P.2d

1061 (1982)).

Analyzing the first three factors leads us to conclude that Washington’s ban on

cruel punishment in the context of confinement conditions is more protective than the

Eighth Amendment. The text of article I, section 14 provides, “Excessive bail shall not

be required, excessive fines imposed, nor cruel punishment inflicted.” WASH. CONST.

art. I, § 14. This is similar to but distinct from the Eighth Amendment, which states that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. CONST. amend. VIII. Washington’s provision

omits the words “and unusual,” prohibiting punishments that are cruel without the

additional requirements that they also be unusual. One delegate at Washington’s

constitutional convention moved to include “unusual,” but the amendment was not

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adopted because framers of article I, section 14 found the term “cruel” sufficiently

expressed their intent. THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL

CONVENTION: 1889, at 501-02 (Beverly Paulik Rosenow ed. 1962). In at least two cases,

this court has held that the difference in language—article I, section 14’s omission of the

federal constitution’s “unusual” requirement—is material and supports a more expansive

interpretation. 2 Bassett, 192 Wn.2d at 80; Fain, 94 Wn.2d at 392-93.

The historical context of Washington’s constitution also supports a more

protective interpretation. See Yelle v. Bishop, 55 Wn.2d 286, 291, 347 P.2d 1081 (1959)

(“In determining the meaning of a constitutional provision, the intent of the framers, and

the history of events and proceedings contemporaneous with its adoption may properly be

considered.”). In addition to article I, section 14’s ban on cruel punishment,

Washington’s founders included a ban on certain convict labor systems in article II,

section 29, which bears on the conditions of a prisoner’s confinement. 3 At the time of

2
We note, however, that in the Supreme Court’s jurisprudence the term “unusual” has not been
analyzed independently of the term “cruel.” Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001,
77 L. Ed. 2d 637 (1983) (stating the Eighth Amendment prohibits “barbaric punishments” and
punishments “disproportionate to the crime committed”); Harmelin v. Michigan, 501 U.S. 957,
967, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (plurality portion) (stating that “textual[ly]” the
Eighth Amendment precludes punishments that are both cruel and unusual); see also Meghan J.
Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are
Both Cruel and Unusual?, 87 WASH. U. L. REV. 567, 569 (2010).
3
The provision states,
The labor of inmates of this state shall not be let out by contract to any person,
copartnership, company, or corporation, except as provided by statute, and the
legislature shall by law provide for the working of inmates for the benefit of the
state, including the working of inmates in state-run inmate labor programs. Inmate
labor programs provided by statute that are operated and managed, in total or in
part, by any profit or nonprofit entities shall be operated so that the programs do
not unfairly compete with Washington businesses as determined by law.
WASH. CONST. art. II, § 29.

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Washington’s constitutional convention, prison labor generally operated under a private

or public system. Wash. Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 477-78,

90 P.3d 42 (2004) (citing WILLIAM J. FARRELL, PRISONS, WORK AND PUNISHMENT 30

(1994); CHARLES P. NEILL, TWENTIETH ANNUAL REPORT OF THE COMMISSIONER OF

LABOR, CONVICT LABOR 40-41 (1905)). Both systems were characterized by cruel

conditions and harsh treatment of prisoners. See Stephen P. Garvey, Freeing Prisoner’s

Labor, 50 STAN. L. REV. 339, 351 (1998). In the private system, convict leasing allowed

states to contract with private lessees who would manage prisoners and generally

subjected them to “‘unspeakable brutality.’” Wash. Water Jet Workers, 151 Wn.2d at

478 (quoting Garvey, supra, at 357).

The prestatehood prison system in Washington used private contract leasing and

was, unsurprisingly, cruel. See id. at 489-90. In 1877, Washington lawmakers contracted

with local sheriffs to build and operate the first territorial prison. Id.; PAUL W. KEVE,

THE MCNEIL CENTURY: THE LIFE AND TIMES OF AN ISLAND PRISON 49-50 (1984).

Located in Seatco (modern day Bucoda), the prison generated accounts of “heavy

punishment, inhumane living conditions, and indifference to health needs.” KEVE, supra,

at 51. In lieu of guards, prisoners wore padded leg irons that weighed close to 20 pounds.

Id.; ETHAN HOFFMAN & JOHN MCCOY, CONCRETE MAMA: PRISON PROFILES FROM

WALLA WALLA 4 (1981). Medical facilities were nonexistent and amputations

performed with tools borrowed from the carpentry shop. GEORGE W. FRANCE, THE

STRUGGLES FOR LIFE AND HOME IN THE NORTH-WEST 257 (1890) (providing a firsthand

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account of confinement in Seatco). One Seattle newspaper reported on the appalling

conditions, describing the treatment of prisoners as “a sort better adapted for the care of

animals than human beings.” The Penitentiary, SEATTLE WEEKLY CHRONICLE, Oct. 4,

1883, at 4. The newspaper also observed that prisoners were not properly fed and were

“miserably clothed” and routinely punished. Id. Public outcry pressured the legislature

to institute reforms and, eventually, to authorize the building of a state-run prison in

Walla Walla. See id.; KEVE, supra, at 54; HOFFMAN & MCCOY, supra, at 4.

This court considered the preceding history in interpreting article II, section 29.

See Yarbrough, 151 Wn.2d at 489-93. From it, we concluded that Washington’s

founders intended the provision, in part, “to protect inmates from the cruelty of the lease

system.” Id. at 485; see also Wash. Water Jet Workers Ass’n v. Yarbrough, 148 Wn.2d

403, 417, 61 P.3d 309 (2003) (noting the drafters of Washington’s constitution opposed

the lease system and adopted article II, section 29 to address the “extensive reputation for

brutality, corruption, and ineffectiveness that the contract system of convict labor had in

the Washington Territory and throughout the country”), aff’d in part and rev’d in part,

151 Wn.2d 470. 4 The drafters’ decision to enshrine a prohibition on private contract

leasing in Washington’s constitution demonstrates this state’s long-standing interest in

providing some measure of protection against harsh conditions of confinement.

4
In addition to protecting inmates from inhumane labor systems, Washington’s constitutional
delegates intended article II, section 29 to protect free labor from having to compete with prison-
run programs. Wash. Water Jet Workers, 151 Wn.2d at 485.

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We have also noted that throughout its history, Washington’s prison system has

undergone “[m]any innovative programs” “to alleviate improper conditions.” Bresolin v.

Morris, 86 Wn.2d 241, 249, 543 P.2d 325 (1975) (emphasis added). In the 1970s, the

Walla Walla penitentiary was one site for such “innovative” reforms, which included

making inmate work optional, ceasing mail censorship, eliminating prisoner dress codes

and grooming standards, and establishing an inmate-elected council with some say in

governing the institution. HOFFMAN & MCCOY, supra, at 5; WILLIAM R. CONTE, IS

PRISON REFORM POSSIBLE? THE WASHINGTON STATE EXPERIENCE IN THE SIXTIES 87

(1990). The New York Times commented on the Walla Walla prison “experiment”

occurring in the early 1970s as “perhaps the strangest in the United States.” CONTE,

supra, at 107 (quoting Wallace Turner, Self-Governing Inmates of Walla Walla Prison

Find Life Easier, N.Y. TIMES, Oct. 18, 1971, at 24). Though the Walla Walla experiment

ended by 1979, id. at 125, it constituted a singular example of prison reform and changes

to conditions of confinement. These reforms, combined with Washington’s history of

protecting convicted persons from the cruelty of prison labor pursuant to article II,

section 29, demonstrate a specific interest in the conditions in which prisoners are

confined. The third Gunwall factor therefore weighs in favor of a more protective

interpretation of article I, section 14 in the present context.

The fourth Gunwall factor directs us to consider whether established bodies of

state law, including statutory law, support more protective state constitutional rights. 106

Wn.2d at 61. As the State notes, Washington precedent on prison conditions is sparse.

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An early decision from this court appears to interpret article I, section 14 as equivalent to

the Eighth Amendment. State v. Feilen, 70 Wash. 65, 67, 126 P. 75 (1912). 5 But

Gunwall clarifies that courts consider not just the particular constitutional provision but

all statutory and case law related to the issue. 106 Wn.2d at 66; Grant County Fire Prot.

Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 809, 83 P.3d 419 (2004). The

question is then whether Washington law has been more protective than federal law in the

context of prison conditions. The answer to that question is yes.

Washington has prohibited private prisons and detention centers in the state.

LAWS OF 2021, ch. 30, § 3. In contrast, the Federal Bureau of Prisons has historically

contracted with the private sector to operate and manage federal prisons. See Omnibus

Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 101(a), 110 Stat. 3009,

3009-11 (1996) (Congressional authorization for the Bureau of Prisons to contract with

private companies to operate prisons). 6

5
Feilen upheld against an article I, section 14 challenge to a state law requiring sterilization for
persons convicted of “‘carnal abuse of a female person under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal.’” 70 Wash. at 67 (quoting REM. & BAL. CODE §
2287). Forced sterilization of habitual criminals was appropriately condemned by the United
States Supreme Court in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 538, 62 S. Ct.
1110, 86 L. Ed. 1655 (1942). The Skinner Court reviewed Oklahoma’s habitual criminal
sterilization act that allowed sentences of compulsory sterilization for persons convicted of a
certain number of crimes, yet exempted financial crimes. The Court unanimously held that the
state law violated the Fourteenth Amendment equal protection clause based on the exclusion of
white-collar crimes. Id. at 541 (holding that sterilization of criminals convicted multiple times of
grand larceny but not those who commit embezzlement is “clear, pointed, unmistakable
discrimination”).
6
For-profit incarceration has generated billions of dollars for private companies. See, e.g.,
Danielle C. Jefferis, Delegating Care, Evading Review: The Federal Tort Claims Act and Access
to Medical Care in Federal Private Prisons, 80 LA. L. REV. 37, 50 (2019) (private prison
contractors such as GEO Group and CoreCivic reported collectively over $4 billion in revenue in
2017). On January 26, 2021, President Biden signed an executive order eliminating the use of

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Additionally, case law recognizes Washington’s long-standing and special duty to

keep convicted individuals “in health and safety.” Kusah v. McCorkle, 100 Wash. 318,

323, 170 P. 1023 (1918). Kusah explained that this duty requires officials to consider

what is the “safest and most humane for the prisoners; what [is] most conducive to their

health, well-being, and safety.” 100 Wash. at 324 (emphasis added). As a matter of tort

law, Washington courts have long recognized “a jailer’s special relationship with

inmates, particularly the duty to ensure health, welfare, and safety.” Gregoire v. City of

Oak Harbor, 170 Wn.2d 628, 635, 244 P.3d 924 (2010) (plurality opinion). Providing

for the health of prisoners is a nondelegable duty for Washington’s DOC. Id. (citing

Shea v. City of Spokane, 17 Wn. App. 236, 242, 562 P.2d 264 (1977)). This heightened

duty is derived from the special relationship between custodians and the individuals

entrusted to their care. See Turner v. Dep’t of Soc. & Health Servs., No. 99243-6, slip op.

at 15 (Wash. Aug. 12, 2021), https://www.courts.wa.gov/opinions/pdf/992436.pdf.

Inmates rely completely on DOC to make decisions as to their safety and health care,

similar to students relying on schools, guests on innkeepers, and patients on hospitals.

See H.B.H. v. State, 192 Wn.2d 154, 169, 429 P.3d 484 (2018). Not every jurisdiction

undertakes this heightened duty to ensure the health of incarcerated individuals. E.g.,

Herbert v. District of Columbia, 716 A.2d 196, 198-99, 201 (D.C. 1998) (stating it was

not the government’s duty to ensure inmates’ safety or well-being); Rivers v. State, 159

privately operated criminal detention facilities by the federal government. Exec. Order No.
14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021) (Reforming Our Incarceration System To Eliminate
the Use of Privately Operated Criminal Detention Facilities).

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A.D.2d 788, 789, 552 N.Y.S.2d 189 (1990) (the State is not the guarantor of adequate

medical services beyond its control).

Finally, this court’s disproportionate sentencing cases recognize punishments that

were once constitutional “can become cruel under article I, section 14 if there is a

material change in circumstances.” Pet’r’s Opening Br. in Supp. of PRP at 23 (Wash. Ct.

App. No. 54629-9-II (2020)) (citing Bassett, 192 Wn.2d at 91 (holding Washington’s

cruel punishment clause prohibits life without parole sentences for juvenile offenders);

State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018) (holding the death penalty

unconstitutional as applied in Washington)). Though Bassett and Gregory concern

disproportionate sentencing challenges, those cases recognize the general principle that

scientific developments and changes in circumstances can render once-acceptable

punishments unconstitutionally cruel. See Bassett, 192 Wn.2d at 81 (considering the

evolution of juvenile sentencing in Washington); Gregory, 192 Wn.2d at 18-19

(examining statistical data that shows the arbitrary and racially biased administration of

the death penalty in Washington). Both cases recognize the effect of immutable

characteristics on disproportionate sentencing. In so doing, they illustrate an evolution in

understanding of immutable characteristics such as physical and mental disability, and

the need for accommodation. Preexisting state law weighs in favor of a broader

interpretation of article I, section 14.

The fifth Gunwall factor reviews the structural differences between the state and

federal constitutions. 106 Wn.2d at 62. The United States Constitution is a grant of

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limited power authorizing the federal government to exercise only constitutionally

enumerated powers delegated to it by the states, while Washington’s constitution limits

the plenary power of the State to act in any way not forbidden by the state constitution or

federal law. Id. Accordingly, this factor “will always point toward pursuing an

independent state constitutional analysis.” Young, 123 Wn.2d at 180 (citing State v.

Smith, 117 Wn.2d 263, 286, 814 P.2d 652 (1991) (Utter, J., concurring)).

The sixth Gunwall factor examines whether the matter is of particular state interest

or local concern. 106 Wn.2d at 62. The conditions of state prison confinement qualify.

Article XIII, section 1 of our state constitution provides that “penal institutions . . . shall

be fostered and supported by the state, subject to such regulations as may be provided by

law.” This court has said that the provision allows significant discretion to the legislature

in determining the method and extent of financial support to provide. See Pierce County

Office of Involuntary Commitment v. W. State Hosp., 97 Wn.2d 264, 271, 644 P.2d 131

(1982) (citing State v. Pierce County, 132 Wash. 155, 231 P. 801 (1925)). Not only is it

the state’s responsibility to financially support its prison systems, the “treatment or

discipline of prisoners in penal institutions” is “the responsibility of those in charge of the

prison itself and those officers, both state and local, who are given supervisory powers.”

Woods v. Burton, 8 Wn. App. 13, 16, 503 P.2d 1079 (1972). Accordingly, Washington

prisons may not cause “the deprivation of human dignity by conditions primarily related

to sanitation and hygiene which are so base, inhumane and barbaric they offend the

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No. 99344-1

dignity of any human being.” Id. at 16-17 (citing Novak v. Beto, 453 F.2d 661 (5th Cir.

1971); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971)). 7

The State counters that when establishing Washington’s correctional system, the

legislature tied penal objectives to national standards. DOC’s Suppl. Br. at 10 (quoting

RCW 72.09.010(9)). This connection, according to the State, shows that Washington did

not intend to diverge from the federal system for prison conditions. Yet the plain

language of RCW 72.09.010(9) does not support such a reading. RCW 72.09.010(9)

states that Washington’s corrections “system should meet those national standards which

the state determines to be appropriate.” (Emphasis added.) The term “should” is

permissive rather than mandatory; it does not require wholesale adoption of national

standards. Further, because RCW 72.09.010(9) specifically allows the State to choose

which standards it deems acceptable, logically it allows the reverse: adopting no national

standard if found to be inappropriate. See id. The discretionary nature of RCW

72.09.010(9) undercuts the State’s argument that Washington is in lockstep with federal

correctional objectives. Instead, RCW 72.09.010(9) is an example of the more general

7
We conclude that the unhygienic conditions of Williams’s confinement rather than the risk of
contracting COVID-19 constitute cruel punishment under article I, section 14. Nevertheless,
COVID-19 continues to pose a serious concern to incarcerated individuals and to the general
public. The response from state officials to this risk provides further evidence that the issue of
prison conditions is a matter of state and local concern. For example, Governor Jay Inslee issued
numerous proclamations, including one directed solely at prisons. Proclamation 20-50 allowed
the governor to suspend some statutes standing in the way of early release of prisoners, commute
certain sentences, and order the release of some nonviolent individuals. Proclamation of
Governor Jay Inslee, No. 20-50 (Wash. Apr. 15, 2020),
https://www.governor.wa.gov/sites/default/files/proclamations/20-50%20-%20COVID-
19%20Reducing%20Prison%20Population.pdf [https://perma.cc/C5J8-7KQ2].

19
No. 99344-1

notion that the federal government sets a minimum standard for correctional institutions,

which states can and do routinely go beyond. One example of this is Washington’s ban

on privately operated prisons and detention centers. See supra at 15.

The six Gunwall factors support a broader interpretation of article I, section 14

than the Eighth Amendment. We hold that in the context of prison conditions, which

includes prisoners’ health and welfare, Washington’s cruel punishment clause provides

greater protection than its federal counterpart. We now turn to the test petitioners must

satisfy to prevail on claims that the conditions of their confinement are unconstitutionally

cruel under article I, section 14.

II. Under Washington’s Constitution, Conditions of Confinement That Create a
Substantial Risk of Serious Harm Are Unconstitutional Unless They Are Reasonably
Necessary To Accomplish a Legitimate Penological Goal

Both the Washington and United States constitutions prohibit cruel punishments.

In the past, our courts have evaluated state and federal constitutional challenges to prison

conditions under Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 128 L. Ed. 2d

811 (1994), which requires a petitioner to show “a substantial risk of serious harm and

deliberate indifference to that risk.” Colvin, 195 Wn.2d at 900; see also In re Pers.

Restraint of Pauley, 13 Wn. App. 2d 292, 310, 466 P.3d 245 (2020). Washington courts

applied the federal deliberate indifference standard largely because the parties in those

cases did not seek an independent state constitutional analysis. See Colvin, 195 Wn.2d at

900; Pauley, 13 Wn. App. 2d at 310. Here, by contrast, Williams argued, and we agree,

that article I, section 14 is more protective than the Eighth Amendment in the area of

20
No. 99344-1

prison conditions. While we agree that the deliberate indifference standard provides a

useful framework and applies to such claims, we also consider that standard in light of

the broader protections that article I, section 14 provides. For the reasons explained

below, we conclude that because Washington’s cruel punishment clause is more

protective of the health and safety of prisoners than its federal counterpart, the federal

deliberate indifference standard is inadequate to address claims arising under article I,

section 14. Instead we hold that to prevail on a PRP challenging conditions of

confinement, a petitioner must demonstrate that (1) those conditions create an objectively

significant risk of serious harm or otherwise deprive the petitioner of the basic necessities

of human dignity and (2) those conditions are not reasonably necessary to accomplish

any legitimate penological goal.

A. The Federal Deliberate Indifference Standard

A prison official violates the Eighth Amendment and may be held liable “for

denying humane conditions of confinement only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.” Farmer, 511 U.S. at 847. That standard has two components: one

objective and one subjective. Under the objective component, a prisoner must show the

challenged conditions create “an objectively intolerable risk of harm.” Id. at 846. Such

conditions include deprivations of “‘the minimal civilized measure of life’s necessities,’”

such as “adequate food, clothing, shelter, and medical care.” Id. at 834 (quoting Rhodes

v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)), 832.

21
No. 99344-1

The subjective component requires a prisoner to show those objectively cruel

conditions of confinement are, in fact, meant to be punishment. See id. at 837. The

federal standard therefore demands proof that a particular prison official acted with

“deliberate indifference” to the risks identified under the objective prong. The subjective

component requires that an official actually “knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id.

The federal standard, however, is just that. It guides the analysis of allegedly cruel

conditions of confinement under the federal constitution. The present case concerns

conditions of confinement challenged under the Washington State constitution. As the

preceding Gunwall analysis demonstrates, article I, section 14 is more protective than the

Eighth Amendment in this context. When bringing this fact to bear on the federal

deliberate indifference test, two shortcomings emerge in the subjective component.

First, it mistakenly assumes that conditions of confinement can be considered

punishment, and therefore subject to constitutional limitations, only if they are

subjectively intended as punishment by an identifiable prison official. See Wilson v.

Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) (“If the pain

inflicted [by a condition of confinement] is not formally meted out as punishment by the

statute or the sentencing judge, some mental element must be attributed to the inflicting

officer before it can qualify” as punishment subject to Eighth Amendment limitations.).

22
No. 99344-1

Second, it fails to recognize that cruel conditions of confinement can result from

institutional policies and practices just as readily as from intentional acts by individual

prison officials. Id. at 310 (White, J., concurring in judgment) (“Inhumane prison

conditions often are the result of cumulative actions and inactions by numerous officials

inside and outside a prison, sometimes over a long period of time. In those

circumstances, it is far from clear whose intent should be examined . . . . In truth, intent

simply is not very meaningful when considering a challenge to an institution, such as a

prison system.”). Together, these shortcomings allow conditions of confinement to

persist—even if those conditions are unquestionably cruel—so long as the relevant prison

official pleads ignorance or good intentions. See Farmer, 511 U.S. at 844 (“Because,

however, prison officials who lacked knowledge of a risk cannot be said to have inflicted

punishment, it remains open to the officials to [avoid liability by] prov[ing] that they

were unaware even of an obvious risk to inmate health or safety . . . or that they knew the

underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise

was insubstantial or nonexistent.”).

The different mechanisms for seeking relief from federal or state unconstitutional

conditions of confinement further highlight the shortcomings of the subjective

component. Federal cases challenging prison conditions under the Eighth Amendment

are frequently brought via 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), and

seek damages from individual government officials who deprived prisoners of their

23
No. 99344-1

federal constitutional rights. See, e.g., Farmer, 511 U.S. 825. But challenges to

conditions of confinement under article I, section 14 of Washington’s constitution

generally arise as PRPs, seeking injunctive relief ordering prisons to remedy any

unconstitutional conditions. PRPs do not attach personal liability for monetary damages

for deprivations of constitutional rights; rather, they seek an institutional change to

remedy an unconstitutional action or condition. This focus on the institution rather than

the prison official’s intent further supports our conclusion that Washington’s constitution

provides greater protection than is offered under the subjective component of the federal

standard.

Under article I, section 14, whether a condition of confinement is cruel does not

depend on the subjective knowledge or intent of particular prison officials. Instead, the

text and history of Washington law recognizes that the State has a nondelegable

obligation to provide for the health, safety, and well-being of prisoners under its

jurisdiction. “This is a positive duty arising out of the special relationship that results

when a custodian has complete control over a prisoner deprived of liberty.” Shea, 17

Wn. App. at 242. Washington prisons may not cause “the deprivation of human dignity

by conditions . . . which are so base, inhumane and barbaric they offend the dignity of

any human being,” whether intentionally or accidentally. Woods, 8 Wn. App. at 16-17

(citing Novak, 453 F.2d 661; Sostre, 442 F.2d 178). In either case, DOC has an

obligation to remedy those unconstitutionally cruel conditions of confinement. The

special relationship between DOC and those confined in its institutions has consequences

24
No. 99344-1

for our formulation of a test to analyze claims of unconstitutional cruel prison conditions

and further supports providing greater protection than the subjective component of the

federal deliberate indifference standard.

B. Unconstitutionally Cruel Conditions of Confinement Claims under
Article I, Section 14

Today, we recognize that conditions of confinement are inherently part of the

punishment imposed on prisoners. But for their conviction and sentence, prisoners would

not be confined or subject to the attendant conditions of confinement. We also recognize

that unconstitutionally cruel conditions of confinement can arise from institutional

policies and practices just as readily as from the malicious actions of individual prison

officials. Whether prison conditions deprive prisoners of basic human dignity

intentionally or incidentally, Washington’s constitution prohibits such treatment.

Furthermore, the drawbacks of the federal standard’s subjective component when

viewed in conjunction with Washington case law convince us that the federal deliberate

indifference standard does not adequately protect prisoner rights under our state

constitution. See Bassett, 192 Wn.2d at 85 (this court is “free to evolve our state

constitutional framework as novel issues arise to ensure the most appropriate factors are

considered”). At the same time, we recognize the practical challenges facing prison

administrators and acknowledge that some harsh conditions of confinement that might

otherwise be cruel may sometimes be justified by legitimate penological interests,

including the health and safety of the prison population as a whole. Nevertheless, when

such harsh conditions create an objectively intolerable risk of harm, they can survive

25
No. 99344-1

constitutional scrutiny under article I, section 14 only when they are reasonably necessary

to accomplish legitimate penological goals.

The relationship between punishment and the reason for that punishment has been

a consistent and important consideration in this court’s article I, section 14 jurisprudence.

In the context of sentencing, that consideration has focused on whether the sentence

imposed is proportionate to the crime. See Fain, 94 Wn.2d at 401 (“Fain’s offenses, if

not indeed trivial when compared to his punishment, have earned him a penalty much in

excess of that imposed for those crimes which society ordinarily regards as far more

serious threats to life, health, and property.”); Bassett, 192 Wn.2d at 90 (striking as

unconstitutional a statute allowing juvenile offenders to be sentenced to life without

parole because of “the unacceptable risk that children undeserving of a life without parole

sentence will receive one”). Because conditions of confinement are largely independent

of the formal sentence imposed by a court, it makes little sense to ask whether those

conditions are proportionate to the crime being punished. Instead, the relevant question

is whether conditions of confinement are proportionate to legitimate penological interests

to be achieved. We hold that when a prisoner establishes that the conditions of their

confinement create an objectively intolerable risk of harm or otherwise deprive them of

the basic necessities of human dignity, those conditions can be justified only when they

are reasonably necessary to accomplish legitimate penological goals. 8

8
Some conditions of confinement may be so unquestionably cruel that no penological interest
could justify them. Other conditions may become cruel when they are imposed without any
legitimate penological interest. We leave these questions for another day because they are not
necessary to resolve the case before us.

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No. 99344-1

In sum, article I, section 14 of Washington’s constitution prohibits the State from

imposing cruel conditions of confinement on prisoners. Whether conditions of

confinement are cruel does not depend on the subjective intent of individual actors within

the prison system but on the proportionality of those conditions to legitimate penological

justifications. To prevail on a PRP challenging conditions of confinement, a petitioner

must demonstrate that (1) those conditions create an objectively significant risk of serious

harm or otherwise deprive them of the basic necessities of human dignity and (2) those

conditions are not reasonably necessary to accomplish any legitimate penological goal.

As to the first prong, we conclude the conditions of Williams’s confinement

exposed him to a significant risk of serious harm by depriving him basic hygienic

necessities. Williams was required to use a wheelchair and had minimal use of one side

of his body. As a result, Williams depended on others to push his wheelchair in order to

move. He was confined to a dry cell without a sink and toilet, and Williams shared this

cell with multiple roommates. The lack of access to bathroom facilities and running

water, as well as routine and lengthy wait times for therapy aides to push his wheelchair

resulted in Williams frequently soiling himself. These conditions are objectively cruel.

Turning to the second prong, we conclude that these conditions were not

reasonably necessary to achieve any legitimate penological goal. DOC contends the

violent nature of Williams’s offense and his continued risk to the community generally

relate to the penological goals of retribution, deterrence, incapacitation, and

rehabilitation. These considerations are lessened by Williams’s advanced age (as of

27
No. 99344-1

2020, he was 78 years old) and limited sight and mobility, but we agree with the Court of

Appeals and defer to DOC’s determination that Williams was not sufficiently

incapacitated to pose a low risk to community safety. Williams, 15 Wn. App. 2d at 681-

82. Williams’s violent offense and risk to the community weigh in favor of continuing to

confine him in DOC custody. They do not, however, justify housing Williams in

severely unhygienic conditions. DOC’s failure to meet Williams’s basic sanitary needs

in light of his physical disabilities does not sufficiently further the goals of deterrence,

incapacitation, and rehabilitation.

Therefore, we conclude that the conditions of Williams’s confinement violated our

state’s cruel punishment clause. We acknowledge the challenges faced by prison

administrators, especially during the COVID-19 pandemic, and we recognize that DOC

has taken significant steps to mitigate the associated risks. Nevertheless, because DOC

deprived Williams of basic hygiene and such conditions were not necessary to

accomplish a legitimate penological interest, we hold Williams’s conditions of

confinement violated article I, section 14’s prohibition on cruel punishment.

CONCLUSION

We hold that article I, section 14 is more protective than the Eighth Amendment

for conditions of confinement. To analyze claims of unconstitutionally cruel prison

conditions, we adopt a modified version of the federal deliberate indifference standard.

An individual challenging his or her conditions of confinement must demonstrate two

things: (1) the conditions create an objectively significant risk of serious harm or

28
No. 99344-1

otherwise deprive a person of the basic necessities of human dignity and (2) the

conditions are not reasonably necessary to accomplish a legitimate penological goal. For

the reasons explained above, Williams satisfies this test, and we hold his conditions of

confinement were unconstitutionally cruel.

___________________________________

WE CONCUR:

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29