Excerpted From: Rachel Kincaid, Mass Incarceration and Misinformation: the Covid-19 Infodemic Behind Bars, 19 University of Saint Thomas Law Journal 323 (Spring, 2023) (261 Footnotes) (Full Document)


RachelKincaidTechnology and social media have enabled leaders and scientists to reach people directly with important information during the COVID-19 pandemic. At the same time, global interconnectedness and the internet have allowed misinformation (incorrect information) and disinformation (deliberately incorrect information) about the pandemic to proliferate and spread. Traditional media platforms have themselves sometimes amplified false information through their coverage of prominent people's false statements and, even more inadvertently, through active fact-checking of incorrect claims. According to the World Health Organization (WHO), this has caused an “infodemic” surrounding COVID-19, which the WHO defines as “too much information including false or misleading information in digital and physical environments during a disease outbreak.” Infodemics can include both misinformation (incorrect information with no deliberate intent to spread untruths) and disinformation (incorrect information that the content creator or promotor knows to be false). Infodemics, which spread this misinformation and disinformation, can inhibit public buy-in on science-based responses to disease outbreaks and polarize public debate about diseases.

The COVID-19 infodemic in the United States has included a wide range of misinformation and disinformation. There has been misinformation and disinformation about the way COVID-19 spreads, ways to prevent its spread, the seriousness of the disease, the seriousness of the pandemic, the source of the disease, treatments for the disease, the development of vaccines, and the efficacy of those vaccines. Just as the infodemic has been broad in content, its sources have been similarly widespread. The bogus claim that the horse dewormer ivermectin was an effective treatment for COVID-19 was pushed by conservative media and others. A doctor who had advised then-President Trump claimed that social distancing and quarantining didn't work. Conspiracy theorists claimed that the pandemic itself was all just a global hoax planned by Democrats to discredit then-President Trump. And the infodemic has included misinformation coming directly from the White House. President Trump downplayed the severity of the disease and what to expect out of the pandemic during the early weeks of 2020, including claiming that it would disappear when the weather warmed up and repeatedly saying COVID-19 is like the flu. He deemphasized the importance of wearing masks and insisted on holding campaign mega-rallies in spite of the clear danger that these events would (and almost certainly did) contribute to the spread of COVID-19. He advocated for unproven (and even hazardous) “cures” and treatments, like hydroxychloroquine, among many other instances of misinformation.

“[When] people are misled by unsubstantiated claims [like these] about the nature and treatment of the disease, they are less likely to observe official health advice and may thus contribute to the spread of the pandemic and pose a danger to themselves and [their community].” And if they are misled about treatments, they are likely to distrust and resist those treatments, putting themselves and those around them once again at risk. “[R]esearch across different countries has shown that the endorsement of COVID-19 misinformation is robustly associated with people being less likely to follow public-health guidance and having reduced intentions to get vaccinated and to recommend the vaccine to others.” Obviously, exposure to incorrect information alone does not mean that someone will actually believe it--there are various reasons that people might fall prey to an infodemic. Repetition of misinformation makes it more likely that people hearing the repetition will believe it. And there is some evidence that people might “believe in and share misinformation because doing so reinforces important socio-political beliefs and identity structures.” While the reasons for the infodemic's potency are still being studied, we have seen its consequences play out in the United States, as the country has lagged behind other affluent nations in stopping the spread of the disease and in vaccinating our populations. And we've seen the consequences of partisan posturing about COVID-19 and misinformation as red states lag behind blue ones in managing the pandemic's spread.

This article focuses on one particularly vulnerable segment of the population-- people incarcerated in prisons and jails--and the ways in which and reasons that the infodemic poses special risks to them. Very little has been written about the potential effects of the infodemic on incarcerated people. Part I of this article explains some of the reasons that carceral populations are particularly vulnerable to COVID-19. Part II explains how the repeated dehumanization of incarcerated people in the United States both prior to and during their incarceration gives them myriad legitimate reasons to be suspicious of the medical treatment and advice they receive while incarcerated, making them especially vulnerable to the infodemic surrounding COVID-19. Part III explains how the doctrines governing federal constitutional claims about jail and prison conditions could compound the effects of the infodemic on carceral populations. And Part IV offers some potential solutions to the adverse effects of the infodemic on incarcerated people, both during the still-ongoing COVID-19 pandemic at the time of the writing of this article and during future public health crises that undoubtedly will again arise, and again disproportionately affect incarcerated people.

In exposing the potentially, especially damaging effects of the COVID-19 infodemic on carceral populations, this article aims to motivate executive and legislative policymakers to prevent and counteract such harms as the COVID-19 pandemic continues and in future public health crises. It also aims to explain to judges and law clerks the importance of taking seriously incarcerated persons' claims about carceral conditions and policies, in light of their consistent dehumanization. And, in exposing the intersectionality of these problems and their relationship to ongoing discrimination even outside of prisons and jails, my hope is that this article will support the efforts of lawyers and activists representing and working with incarcerated people and further emphasize the need for decarceration because of the systemic oppression inherent in the criminal legal systems of the United States.

[. . .]

The United States has a long and consistent history of systemic racism and dehumanization when it comes to those accused or convicted of crimes. It also has a long and consistent history of mistreatment and dehumanization of Black, Latinx, NativeAmerican, and LGBTQ+ people, including in the provision of medical care. During the COVID-19 pandemic and ensuing infodemic, these two strands of mistreatment have coalesced to create an especially dangerous situation for incarcerated people. In spite of that danger, most courts have refused to force prison and jail administrators to act to protect the health and safety of incarcerated people during this global pandemic. Instead, they have fallen back on tired tropes about deference to carceral administrators, divested their own judgment to the CDC, and reduced the constitutional standard of deliberate indifference to near meaninglessness, perhaps in part because of the infodemic surrounding COVID-19. It's long past time for the United States to recognize the damage that mass incarceration has done to society. Instead of continuing to perpetuate the prison industrial complex, the United States must reverse course. It should treat COVID-19 as a catalyst for change and begin to atone for and redress the harm done by mass incarceration on numerous vulnerable groups, and society as a whole. Recognition of the intersectionality of the harms caused by COVID-19 and the infodemic on incarcerated people is an important first step in that process.

Assistant Professor of Law, Baylor Law.