Excerpted From: Vincent Jones, Cruel and Unusual Punishment: How the Ongoing War on Drugs and Discrimnation in Healthcare Created a Viable Eighth Amendment Claim for Black Inmates During the Covid-19 Pandemic, 33 Health Matrix: Journal of Law-Medicine 537 (2023) (260 Footnotes) (Full Document)


VincentJonesThe COVID-19 pandemic revealed that black people in this country are not only disproportionately represented in prisons but are also disproportionately vulnerable to deadly diseases. The discrimination black people in the United States have faced during the ongoing War on Drugs, while simultaneously dealing with discrimination in our nation's healthcare system, has created a viable claim under the Eighth Amendment for black inmates during the COVID-19 pandemic. This note will explain how the War on Drugs continues to target the black community by disproportionately incarcerating its people for mostly non-violent drug offenses. In doing so, the racist policies and enforcement of the drug war have combined with the deep-rooted racism of our nation's healthcare system to create a medically vulnerable class of black inmates that are disproportionately vulnerable to COVID-19.

Part I will explain why prisons are overpopulated with black inmates by explaining how the War on Drugs has been used to target the black community. This section will include brief discussions of the key policies of the war, militarized policing and drug raids, the power of prosecutors and the Supreme Court, the difficulties of life after prison, and discuss how the War on Drugs is ongoing.

Part II will begin by explaining how black people enter prisons as a medically vulnerable class due to healthcare discrimination. Then, the discussion will shift to the impact of COVID-19 on prison inmates by exposing the issues with overcrowding in prisons, availability of masks and vaccines, the substandard healthcare in prisons, the dangers of high prison traffic, infection rates in jails and detention centers, and the need for early release for “higher-risk” inmates. Next, this section will demonstrate the ethical issues of the CARES Act and explain how it leaves inmates trapped in uncertainty over who is selected for home confinement and if they will be required to return back to prison once the pandemic has concluded. This section will conclude by discussing how the causes of action by inmates against their prison institutions for Eighth Amendment violations began.

Part III will discuss the Eighth Amendment and how it has been recently applied to inmate claims against prison officials during the pandemic. Part IV will present the argument for how black inmates can overcome the “deliberate indifference” barrier to a successful Eighth Amendment claim and secure their release from prison institutions for home confinement to safely serve the remainder of their prison sentences. Part V will present the argument for the need of compassionate release motions by the director of the Bureau of Prisons for black inmates that have been disproportionately and unjustifiably incarcerated as a result of the War on Drugs.

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The purpose of this note was to provide the reader with three main takeaways. First, the War on Drugs is still being used to enforce racist and discriminatory drug polices to target and incarcerate black people at a high rate. While this war is not televised as much as it was under the Nixon, Reagan, and Clinton administrations, the war is still ongoing. Billions of dollars are spent each year on drug enforcement, and the trafficking of crack cocaine still carries hefty penalties. In addition, the disproportionate enforcement of marijuana drug policies on black people does not receive as much attention as cocaine did during the War on Drugs at its peak, but it has had an equally devastating impact on the black community. While progress has been made in the disparity in sentencing between crack and powder cocaine and the legalization of marijuana, the racist enforcement of drug policies still impacts black people more than any other race of people. The 18:1 ratio disparity between crack and powder cocaine needs to be changed into a 1:1 ratio because there is no justifiable reason for treating two versions of the same drug differently.

The second important takeaway is that black inmates are a medically vulnerable class and should receive priority consideration for home confinement due to the health risks associated with COVID-19 in prisons. The COVID-19 virus has a higher risk of causing death and severe illness in the black community because of their pre-existing medical vulnerability that stems from discrimination in the healthcare system. Although prison inmates as a whole are at risk of contracting the virus due to the inconsistent implementation of health and safety policy protocols, black inmates suffer the greatest risk of exposure to the virus.

The third takeaway is that compassionate release should be a tool used by the Director of the Bureau of Prisons to release black inmates that have suffered disproportionate and discriminatory prison sentences as a result of the War on Drugs. The “extraordinary and compelling reason” standard set by the Bureau for this form of early release should be easily met by the black inmates that have been forced to suffer unjustifiable prison sentences during the War on Drugs while there is also a deadly virus spreading in our nation's prisons.

It is imperative that black inmates succeed on their Eighth Amendment claims of cruel and unusual punishment with the arguments presented in this note to prevent them from suffering the inescapable death sentence that is incarceration during a pandemic.

Vincent Jones is a graduate of Case Western Reserve University Law School, with a M.P.A. from the University of Miami and B.S. in Political Science from Loyola University Chicago.