A Policy Without Enforcement is Meaningless: The Effect of COVID-19 on Incarcerated Individuals, the Courts’ Focus on Policy, and the Solution

Abstract

Though it’s easy to focus on the effect that COVID-19 has had on the general population, many have shut their eyes to its effect on one of the most vulnerable populations—incarcerated individuals. The first case of the Coronavirus named COVID-19 in the United States was confirmed on January 20, 2020, and has caused panic and affected the day-to-day routine of individuals globally. Due to the way COVID-19 is contracted and the environment of prisons and jails, incarcerated individuals are five times more likely to contract COVID-19 than the general population. Since the initial rise of COVID-19, incarcerated individuals have challenged the conditions of prisons and jails, claiming that the environment and treatment to which they are being subjected are cruel and usual, in violation of the Eighth Amendment of the United States Constitution.

The Eighth Amendment provides a fundamental right that protects persons from cruel and usual punishments. Although courts disagree, in the author’s opinion, conditions that incarcerated individuals are being subjected to due to the COVID-19 pandemic do in fact violate incarcerated individuals’ protections provided by the Eight Amendment.

This article examines how courts have responded to Eighth Amendment cruel and usual punishment challenges due to the COVID-19 pandemic. It reviews prison conditions since the beginning of the COVID-19 pandemic, incarcerated individuals’ experiences during the pandemic, the history of the Eighth Amendment, and how “cruel and usual punishment” is defined. It concludes with suggestions for the courts—that courts alter the “deliberate indifference” standard and work actively to create a solution that will remedy the present day effect on those incarcerated during the COVID-19 pandemic.

Keywords: COVID-19, Coronavirsus, Cruel and Unusal Punishment, Unsafe Prison Conditions during COVID-19, Delibrate Indifference, Eight Amendment