Former Oregon Gov. Kate Brown can’t be held liable for the state’s response to the COVID-19 pandemic across its prisons, according to a ruling by a federal magistrate unsealed last week.
But in the same ruling, the judge allowed a large class-action lawsuit with costly implications for the state to move forward.
The litigation, first filed in April 2020, covers some 5,000 people who were in custody at one of the state’s prisons and contracted COVID-19. A separate wrongful death class covers the estates of 45 others who were in prison at the time they died from the disease.
The lawsuit alleges Brown and the staff at the Department of Corrections subjected the adults in Oregon’s prisons to cruel and unusual punishment because the state failed to protect them from greater exposure to COVID-19.
Last year, Brown was ordered to sit for a deposition in the case. Not only did that never happen, but the ruling means it won’t.
Attorneys for the sickened prisoners also allege the agency failed to enforce a mask mandate and provide testing to those in prison who were exposed to COVID or had symptoms. The inmates have also alleged the corrections department didn’t screen its employees for exposure to the virus before going to work at prisons during the pandemic.
Part of the case centers around clemency, a power granted to the governor to change a convicted person’s sentence. During the pandemic, Brown used the authority to release thousands of people early from prison, reducing the population in hopes of creating more social distance.
In April 2020, prison leaders told the governor they would need to release an estimated 5,800 adults across the state’s prison system in order to give those who remained in custody the recommended six feet of separation.
Brown never pursued any of the release scenarios prison leaders drew up for her. But attorneys representing the prisoners said it proved Brown knew how many people would need to be released – and she didn’t do it.
Rather, they note, Brown decided she would not consider early releases for people convicted of crimes against another person. That meant most of the state’s prisoners weren’t eligible. Plaintiffs argue this decision showed Brown was deliberately indifferent to the health of prisoners during the pandemic.
“In other words, Governor Brown knew of the importance of social distancing, knew ODOC’s forecast about the necessary release numbers, and yet chose to limit clemency in a manner that would never achieve adequate social distancing,” U.S. Magistrate Judge Stacie Beckerman wrote in a 150-page ruling.
But Beckerman ultimately rejected that argument. Instead, she ruled to dismiss Brown from the case. The ruling expands the immunity of the governor’s office from future litigation over clemency decisions.
Oregon State Penitentiary in Salem, Ore., on May 19, 2021. A lawsuit first filed in 2020 alleges Brown and the staff at the Department of Corrections subjected the adults in Oregon’s prisons to cruel and unusual punishment because the state failed to protect them from greater exposure to COVID-19.
Kristyna Wentz-Graff / OPB
“Without question, Oregon’s governor authoritatively determines whether to grant clemency,” Beckerman wrote. “Further, in light of the liberty interest at stake, it is important for the governor to perform the function of adjudicating clemency applications without harassment or intimidation.”
Yet Beckerman’s ruling was also a setback for the state, which had hoped to dismiss the case.
The Oregon Department of Justice, which is defending the state, has hired the Portland-based law firm Markowitz Herbold, the agency’s go-to outside counsel when it comes to major cases.
Beckerman wrote “material issues of fact remain” such as whether prison staff implemented their own pandemic policies and took steps to slow the spread of the virus and the risks to those in custody.
She noted that the prison system sought to avoid external audits, citing how the agency’s Health Services Assistant Director Joe Bugher, one of the named defendants in the lawsuit, responded to a request from Oregon Health Authority during a COVID outbreak at the Oregon State Penitentiary in Salem.
“Bugher stated that ‘OHA wants to audit OSP [because] of the outbreak’ and ‘their audits are publicly shared info’ and that he is ‘trying to keep [OHA] out of our world’,” Beckerman wrote, referencing earlier court filings. Bugher said the corrections department should “avoid ‘being told by OHA how to run our business.’”
The state has appealed Beckerman’s rulings to the U.S. Ninth Circuit Court of Appeals, which is expected to schedule arguments for sometime later this year or next.
