Tolerating the Harms of Detention: With and Without COVID-19

Abstract

What does COVID-19 teach about the lives of people in detention and the obligations of those running such facilities? How should the experiences of this pandemic inform the body politic about COVID and about incarceration?

In a host of ways, COVID-19 has been radically disruptive. Yet, for people in detention, whether housed in jails before trial, in prisons after conviction, or as immigrants potentially subject to deportation, COVID-19 presents challenges that they faced before this pandemic. The loss of free movement and autonomy is what detention in the United States currently entails. A risk of contagion accompanies confinement, which too often entails hyper-density as well as profound isolation, if people are held in solitary confinement.

The stunning dysfunction, expense, and racial inequities of the prison system have become a topic of national concern. From a variety of vantage points (whether from conservative groups described as “right on crime” or progressive activists), curbing incarceration has become imperative. When COVID hit, some commentators thought that it would provide a new impetus for radical revisions in support of the prison abolition movement. Yet, as explained below, the heightened risks of COVID atop the other harms incarcerated people face have not, to date, dislodged widespread commitments to incarceration.

This chapter analyzes how the experiences of COVID-19 for people in detention illuminate both the achievements and the limits of the last decades. Health care became inscribed as a constitutional right of detainees and prisoners, yet its implementation remained elusive. COVID-19 underscored the total dependence of detained people on the governments that confine them and made vivid the health care failures endemic before COVID and the degree of connection between prisons and the communities in which they sit. The divisive debates about regulation, government obligations, and the need for joint venturing to reduce the risk of disease have shaped the responses to COVID-19, in and outside of prisons’ gates.

Keywords: Incarceration, Immigration detention, COVID-19, Public health, Vaccination mandates, Constitutional rights to health care, federal court remedies, enlargement and bail, eighth amendment and due process violations, federal bureau of prisons, executive clemency, trusted messengers