When the Pandemic Reaches Prisons: Considering the Legal and Humanitarian Consequences

By Abby Dockum.

In Iran, 85,000 prisoners—nearly half the prison population—have been released in response to the coronavirus pandemic. In China, after a guard showed symptoms of COVID-19, two thousand prisoners were tested and two hundred tested positive. In at least two other countries, prisoners have rioted—resulting in thirteen deaths in Italy and twenty-three in Colombia—to protest a lack of protective measures against the virus.

Coronavirus is now spreading in the United States, home to more than two million incarcerated people—by far the world’s largest prison population. Meanwhile, measures recommended by the CDC to prevent transmission are impossible in many U.S. detention facilities: How can inmates in overcrowded prisons “socially distance” while sharing cells, showers, and cafeterias? How can someone in handcuffs cover a cough or sneeze? How can hands stay clean when soap is in short supply, access to sinks is limited, and alcohol-based hand sanitizer is contraband?

Detention facilities are especially vulnerable to wildfire-like spread of COVID-19, but could failure to contain an outbreak violate the constitutional rights of prisoners?

The Eighth Amendment & Section 1983

The Eighth Amendment protects convicted prisoners from cruel and unusual punishment. The Supreme Court has interpreted this to mean that the government owes certain obligations to those it imprisons. For example, the government must maintain humane conditions of confinement, provide adequate medical care, and protect inmates from harm at the hands of others.

A state prisoner who believes prison officials have violated his Eighth Amendment rights may bring a Section 1983 lawsuit against those officers. Section 1983 is a federal law that provides a cause of action for those who have been deprived by a state official of a right held under federal law, like the Eighth Amendment. The success of a prisoner’s Section 1983 claim is limited, however, by legal standards and judicial doctrines.

Limits on Section 1983 Prison Claims

First, the Supreme Court has stated that cruel and unusual “punishments” are distinct from cruel and unusual “conditions.” In Farmer v. Brennan, the Court held that a condition does not amount to punishment unless an officer imposes it with deliberate indifference by “consciously disregard[ing] a substantial risk of serious harm.” Simply put, a condition is not punishment unless an officer intends it to be.

Second, the Farmer Court held that a prison official who responds reasonably to a risk is free from liability, even if harm still results. The Court reasoned that the Eighth Amendment places a duty on officers only to ensure “reasonable safety,” with consideration for the challenges and dangers presented by prisons.

Finally, even if a prisoner can meet the deliberate indifference standard and prove that an officer did not respond reasonably to a risk, the officer might still be protected by qualified immunity. Qualified immunity is an affirmative defense that protects an officer from liability unless the plaintiff proves not only that the officer violated a constitutional right, but also that the right was “clearly established” by precedent that involved a similar context and similar conduct.

Could Officials Be Liable for the Spread of Coronavirus in a Prison?

Like most Section 1983 claims against prison officials, it is unlikely that a claim based on the spread of coronavirus would succeed due to all three limits discussed. Given the extraordinary circumstance of a pandemic, it is doubtful that a court would find that any response to it was both unreasonable and done with deliberate indifference. Perhaps the legal standard could be met if officials did nothing at all to mitigate the virus, but a court would still be likely to grant qualified immunity by finding that prisoners’ rights are not clearly established in the context of a pandemic.

Despite the likely lack of legal consequences, officials must nevertheless take immediate, proactive, and creative action to reduce the number of lives lost to coronavirus in American prisons and jails and minimize the number needing treatment in an overwhelmed hospital system. Many governments and detention facilities have already implemented some measures, including reducing arrests, suspending transfers, restricting in-person visitors, and releasing people incarcerated for low-level offenses and those with an increased risk of contracting COVID-19. These steps and more should be used nationwide to prevent the pandemic from wreaking even greater havoc on one of our must vulnerable populations.