Viral Injustice: COVID-19 is Disproportionately Impacting Incarcerated Population

By Annie Han

The COVID-19 Pandemic has disproportionately impacted people incarcerated in the US with 28% of the current incarcerated population testing positive for the virus compared to 9% of the general population. These outbreaks in prisons present serious health risks to the incarcerated, staff, and communities surrounding them, and they have forced courts to better consider the health-protective rights of those incarcerated in times of crisis. Professors Brandon L. Garrett of Duke University School of Law and Lee Kovarsky of the University of Texas School of Law review judicial interventions to the pandemic as it affects incarcerated people and detention facilities.

Incarcerated people in the US are very vulnerable to the air-borne virus. Jails and prisons are severely overcrowded, and many are older, have mental health needs, and/or have chronic health conditions. These detention facilities also lack adequate sanitation measures and ventilation, creating a breeding ground for COVID to spread quickly. Maintaining basic CDC guidelines under these conditions presents a significant challenge for many states as they fail to enforce measures such as mask-wearing, social distancing, quarantining, or proper testing programs.

There is no comprehensive law that addresses incarcerated individuals' health rights during a pandemic. Instead, different statutes, pieces of legislation, and common law exist that deal with health risks in detention facilities at a much smaller scale. The Prison Litigation Reform Act (PLRA), however, does create great procedural challenges, imposing certain restrictions on prisoners who seek relief through improved facility conditions or discharge and extreme exhaustion requirements.

Generally, Garrett and Kovarsky found that judges recognize COVID-19 as a challenge for the incarcerated, many preliminary proceedings instructed final decisions, and relief relied heavily on guidance from the CDC or WHO. They define more specific observations based on three axes: the nature of the right being argued, the type of imprisonment (criminal or non-criminal custody), and the relief requested (discharge, changes in prison conditions, etc.).

The most popular form of relief sought was discharge from custody, and these decisions showed a few clear patterns. First, decarceration was more likely for individuals and narrow sub-groups that are highly vulnerable to COVID-19. This is particularly due to the exhaustion requirements from the PLRA that ultimately de-collectivize litigation or prevent meaningful relief in a timely manner. Second, the courts avoided discharge under the federal constitution, specifically the Eighth or Fourteenth Amendments, and prisoners found more success under federal statutes and state laws and constitutions. There were some exceptions for non-criminal prisoners, either pretrial cases or ICE detention cases, who had slightly more success. Courts were most reluctant to intervene when detainees had criminal charges.

Detainees also sought injunctive remediation, requiring facilities to adopt more health-protective practices, and they primarily invoked rights under the federal constitution or the Americans with Disabilities Act (ADA). However, these required courts to find institutions inadequate, which some were hesitant to do, and judges largely looked to CDC Interim Guidelines as the standard over more substantial remedies.

There were some cases that involved processes auxiliary to discharge or improved conditions that led to one-off remedies such as expedited consideration of release, transfers to different facilities, or preliminary injunctions to improve conditions, in light of health-risks due to COVID-19.

These observations led to three key conclusions:

• Judges often restricted the way rights and remedies were applied to avoid broad relief
• Court interventions were limited by the bureaucratic institutions responsible for the function of detention facilities
• Decisions reflected widespread assumptions about the danger and moral worth of prisoners

According to Garrett and Kovarsky, “At least with respect to pandemic, the judicial disposition has proven more reactive than proactive, more incrementalist than bold, and more institutional partner than supervisor.”

Ultimately, judges do not have sufficient power to provide the necessary health-protection to prisoners during COVID-19. Bureaucracies must recognize that the current pandemic presents health risks different from prior outbreaks and need to provide regulations that allow for more responsive, unencumbered action. Judges also have to overcome their resistance to decarceration. These actions and prior conclusions are especially important to consider when thinking about vaccination distribution.

This map from The COVID Prison Project shows the priority of incarcerated populations in each state’s current vaccination plan. However, the label “Highest Priority Population” can be misleading because it does not necessarily apply to all people in jails and prisons. For example, in North Carolina, only prisoners ages 75 and older and staff were able to receive the COVID-19 vaccine in January 2021, but it was not until mid-March, when NC moved to Group 4, have they permitted all unvaccinated incarcerated people to get the vaccine. Before Group 4 was permitted, less than 7% of incarcerated people had received the vaccine.