Files
Abstract
The COVID-19 pandemic blighted all aspects of American life,but people in jails, prisons, and other detention sites experiencedsingular harm and neglect. Housing vulnerable detainee populationswith elevated medical needs, these facilities were ticking time bombs.They were overcrowded, underfunded, unsanitary, insufficientlyventilated, and failed to meet even minimum health-and-safetystandards. Every unit of national and sub-national government failedto prevent detainee communities from becoming pandemic epicenters,and judges were no exception.
This Article takes a comprehensive look at the decisional lawgrowing out of COVID-19 detainee litigation and situates the judicialresponse as part of a comprehensive institutional failure. We readhundreds of COVID-19 custody cases, and our analysis classifies thedecision-making by reference to three attributes: the form of detentionat issue, the substantive right asserted, and the remedy sought. Severalpatterns emerged. Judges avoided constitutional holdings wheneverthey could, rejected requests for ongoing supervision, and resistedcollective discharge—limiting such relief to vulnerablesubpopulations. The most successful litigants were detainees incustody pending immigration proceedings, and the least successfulwere those convicted of crimes.
We draw three conclusions that bear on subsequent pandemicresponses, including vaccination efforts, and on incarceration moregenerally. First, courts avoided robust relief by recalibrating rightsand remedies, particularly those relating to the Eighth and FourteenthAmendments. Second, court intervention was especially limited by thebehavior of bureaucracies responsible for the detention function.Third, the judicial activity reflected entrenched assumptions about thedanger and moral worth of prisoners that are widespread but difficultto defend. Before the judiciary can effectively respond to the dangersposed by a pandemic, nonjudicial institutions will have to toleratelarge-scale, exigency-driven releases from custody, and judges willhave to overcome their empirically dubious resistance todecarceration.