Pandemics, Risks and Remedies

Abstract

There are lessons in every catastrophe, and the impact of Coronavirus-19 (“COVID”) on America’s prisoner population has been especially catastrophic. Jails and prisons are sites of unique peril because each facility bears the systemic risk of a single infection. That COVID tore through these facilities was predictable—the health infrastructure is deplorable, social distancing is impossible, and the community has heightened medical vulnerabilities. These places are pandemic tinder boxes, and COVID was more than enough to kindle the blaze.

There is a temptation to view America’s inability to protect her prisoners as a simple failure of political and bureaucratic will, but the shortage of such resolve was just one part of a more complex institutional disaster. In this Paper, I argue that COVID exposed a remedial deficit between pandemic risks that were systemic and remedies that were not. In so doing, I explore the surprisingly poor performance of the mechanisms that one might have expected to facilitate sufficient prisoner discharge: federal civil rights litigation, administrative release, and clemency power.

The systemic health risk at jails and prisons requires remedies that are fast and scalable, but existing discharge mechanisms are too slow, require too much multilateral consensus, and concentrate discharge powers in the wrong institutions. To address future waves of pandemic infection, American jurisdictions should concentrate discharge powers in decision-makers who are closer to the most acutely affected localities. A concentration-and-localization principle is also a model for a broader back-end decarceration strategy.

Keywords: criminal law, criminal procedure, clemency, 1983, habeas corpus, decarceration, mass incarceration, covid, pandemic, coronavirus