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Excerpted From: Michael L. Zuckerman, When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID, 90 University of Cincinnati Law Review 1 (2021) (457 Footnotes) (Full Document)


Imagine you are a lawyer with clients inside a prison under which a sinkhole has just opened. The prison is slowly sinking into the ground and filling with water. Though the prison is attempting to pump out excess water, the water level is projected to rise some five or so feet over the coming weeks.

Some of the people incarcerated at the prison are taller and know how to swim, which suggests that they will be unlikely to drown to death, though their imprisonment will become more uncomfortable than usual. Some are shorter or do not know how to swim, which suggests that they will be more likely to drown to death--though, of course, it is possible that some or even many of these people will also survive.

You are alarmed that the prison is not moving these people out of the sinking prison. But when you complain about the danger, the Warden responds that the prisoners were all validly convicted and sentenced and that the prison staff are working hard to mitigate the water-level rise by pumping out the excess water. They are also providing the prisoners with flotation devices in the meantime.

You have heard reports from your clients that these measures have not been as widely implemented as the Warden claims. But you are also not convinced that, even if these measures are implemented as promised, they are effective enough to protect your clients from a substantial risk of serious harm. Simply being incarcerated in this sinking prison itself, you might think, violates the Eighth Amendment's prohibition on cruel and unusual punishment.

What do you do?

You may do something similar to what a small constellation of lawyers around the country (myself included) tried to do as the novel coronavirus, COVID-19, spread rapidly in state and federal prisons, jails, and other detention facilities. In this Article, I tell the story of eight major cases involving COVID-19 in prisons and discuss the legal issues and tensions that arose from these cases. The overall trajectory of these cases is dispiriting: a foreseeable risk to the health and lives of people whose wellbeing is at the mercy of the state became an unnecessary disaster, with hundreds of thousands of prisoners infected by the spring of 2021 and more than two thousand dead.

My goals in this Article are threefold. First, I hope to provide a starting point for practitioners or incarcerated people who may find themselves litigating similar issues in the future--seeking release from confinement that itself violates the Eighth Amendment. Because these issues are complex and inherently urgent, there is rarely the luxury of extended doctrinal research.

Second, I hope to make a record of what transpired before the world moves on and these cases are lost to the sands of Westlaw and Lexis. Chronicling what has happened--even (or especially) when one disagrees with the results--is valuable in and of itself.

Third, I offer a critical analysis of the cases themselves and the doctrine involved. While the cases hinged on an unprecedented factual backdrop--a worldwide pandemic--the doctrinal tensions that arose and the trends that the cases followed are by no means unique. Rather, they cast in harsher relief much that was already true about mass incarceration in the United States and the law that confronts those who wish to make the system more humane. The conditions of incarceration are bad, and in virtually all cases throughout our “carceral archipelago,” they put people at much graver risk of harm than they would otherwise face. The procedural and substantive hurdles to remedying those risks through litigation are tall to begin with, and they sometimes seem to grow taller when even the existing rules would seem to dictate victory for the plaintiffs. Given the unparalleled size and scope of American incarceration, the stakes of such an unforgiving doctrinal landscape are immense.

This Article proceeds in four parts. Part I offers a brief overview of the legal landscape as COVID-19 arose--both the barriers to successful claims by incarcerated people and the (limited) legal paths to decarceration that were available. Part II surveys recent jurisprudential history, detailing eight prominent federal cases involving Eighth Amendment claims arising out of COVID-19 outbreaks at carceral facilities, most of which involved in-depth litigation over the availability of release via habeas corpus. Part III, the heart of the Article, discusses the key tensions raised by these cases--each a potential stumbling block for courts and litigants. Specifically, Part III addresses: (A) the interaction between habeas, classic “conditions of confinement” cases, and the relevant legal constraints on each type of suit; (B) the nature of Eight Amendment “deliberate indifference” under these circumstances; (C) what procedural devices, such as class-wide representation, are proper for adjudicating these claims in an efficient and effective way; (D) federalism and comity concerns that arise when the institution at issue is a state facility and how these concerns may cash out through exhaustion requirements; (E) unsettled questions regarding temporary release as a form of preliminary versus final relief; and (F) the relationship between rights and remedies in this context. Part IV proposes statutory and jurisprudential solutions to these tensions and concludes.

[. . .]

The classic law review Article introduces a problem; details its roots, seams, and contours; and then concludes with some fresh, crisp suggestions for a resolution. The COVID-19 cases do not fit well into the final act of that neat procession. There was, after all, authority to release prisoners to safer forms of custody--indeed, Attorney General Barr had encouraged its vigorous use. The courts, too, had power. Lawyers were available to bring claims. The danger was as well-documented and recognized as a problem could be: for the core period of these lawsuits, the COVID-19 pandemic was practically the only news around. And indeed, the first major story to interrupt the pandemic's full-saturation of cultural consciousness centered on racial injustice in U.S. law enforcement hardly a diminishment of the poignancy of the COVID-19 petitioners' and putative class members' plight, given that a disproportionate number of them were people of color struggling within the downstream version of the same criminal-justice system.

Nevertheless, the overall results from the COVID-19 cases suggest that large segments of America's carceral system failed this stress test. Despite positive, proactive efforts in some jurisdictions, a lot of prisoners-- and a lot of legally innocent pretrial detainees--were left inside facilities where infection was likely and social distancing impossible. In a year in which Americans as a whole fared poorly with COVID-19, prisoners--people whose health and “general well-being” society has assumed additional “responsibility for” by holding them involuntarily behind bars worse still. And the principal deficiency does not appear to have been tools but rather will.

Still, significant improvements could be made to the tools available. The most straightforward improvement, which some state legislatures have been debating, would be to institute legislation at the state and federal levels that would empower judges to pause or revisit prison sentences on an individual or class-wide basis when a public-health emergency has been declared at a given facility. Effectively, such a statute would authorize judges to reduce a sentence, grant bail, and/or stay a sentence until the danger has abated. Such legislation would shore up the “enlargement” authority that federal judges, at least in most circuits, possess once a meritorious habeas claim has been brought. Of course, judges themselves could simply acknowledge and act on this power--but explicit statutory authority (and implicit support from a coequal branch of government) would not hurt.

Legislative bodies could also help by making clear that exhaustion is not required--or that administrative remedies are not “available”--in the face of an emergency that urgently threatens the health of incarcerated people. In addition, as others have noted, they could update their states' “good time” policies to foster another “simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions.”

Transparency regarding the actual conditions of incarceration may help too, as Dolovich argues. Indeed, a video leaked out of Elkton by an unknown prisoner generated significant public attention to the plight of prisoners there, which in turn may have helped spur Ohio Governor Mike DeWine to authorize the Ohio National Guard to provide assistance. It is possible, as many have suggested, that if the public really knew how bleak things were inside some of these facilities--through mandatory reporting, public oversight bodies, or greater press access--they would immediately demand change.

Certainly, such transparency cannot hurt. We at least ought to know what is actually being done on our behalf. Public officials lock away in government compounds not just the tiny fraction of people who have committed the most heinous offenses we can imagine but also the much larger number of people who have committed all sorts of lesser offenses. These people are locked away in crowded, chaotic, often unsanitary facilities, where social distancing is impossible, because of both institutional design and the sheer number of human beings packed into one space. Such confinement is harmful and unnecessary, and it includes a cruel irony in the pandemic context, which is that the contagion risks are often worst for the lowest-security prisoners--those who, like the prisoners at Elkton, are deemed to pose a low-enough risk that they are warehoused in open-bay dormitories rather than the locked cells that people often see on TV shows. Many of these prisoners are elderly and infirm, having long aged-out of any propensity to commit crimes. They remain locked away nonetheless.

While some who advocate on behalf of prisoners do so because they have been “inspired by the notion of a preferential option for the poor,” no one in the COVID-19 cases was asking for the prisoners to be more protected from COVID-19 than anyone else. The crux of the cases was that, while being imprisoned in this country is rarely healthful, the nature of incarceration within these facilities during a pandemic like COVID-19 raised the punishment to a level that could not comport with the Eighth Amendment. Prisoners sought relief from the federal courts to blunt a dramatic disparity: conditions making them substantially more likely to die than everyone else. The relief they sought would have benefited not just them and their families, but also prison staff, who also deserve to work under safe and humane conditions.

Last, but certainly not least, prisoners and lawyers who advocate on their behalf can learn from what happened in 2020. Though the legal precedents that the COVID-19 cases generated are mostly dispiriting, there are possibilities for successful litigation efforts. The ability of prisoners, in at least some jurisdictions, to bring § 2241 habeas claims asserting that “no set of conditions would be constitutionally sufficient” will allow prisoners to overcome the PLRA's often-formidable barrier to the courthouse doors. And while class-wide procedures would be efficient for such claims, they are not required: prisoners facing particularly extreme health risks at carceral facilities that are unable to protect them (and their attorneys) could bring these as individual claims as well.

We will likely face another pandemic before too long. I hope that this Article will be helpful to incarcerated people and their advocates in the unhappy event that we do. More importantly, I hope that by then we will have changed our system of criminal adjudication and incarceration enough so that we will not again force the people who live and work in this country's carceral facilities to face so much unnecessary infection and death.

Visiting Assistant Professor, The Ohio State University Moritz College of Law; Litigation Counsel, Ohio Justice & Policy Center.

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