COVID-19 in American Prisons: Solitary Confinement is Not the Solution

2 Ariz. St. L.J. Online 127 (2020)

U Denver Legal Studies Research Paper No. 20-31

21 Pages Posted: 16 Dec 2020

See all articles by Nicole B. Godfrey

Nicole B. Godfrey

University of Denver Sturm College of Law

Laura L. Rovner

University of Denver Sturm College of Law

Date Written: November 12, 2020

Abstract

As of November 12, 2020, at least 182,593 people incarcerated in American prisons, jails, and detention centers have tested positive for COVID-19; 1,412 incarcerated people have died. As the disease spread rapidly across the country (and world) in March 2020, public and prison health experts warned that jails and prisons could become incubators of the highly infectious disease. Recognizing the risk posed to the nation’s incarcerated population, public health officials issued interim guidance meant to assist prison officials seeking to protect the health and safety of incarcerated people. Simultaneously, prisoners’ rights advocates across the country filed lawsuits seeking to ensure prison systems protect incarcerated people from the risk posed by COVID-19.

In response to these lawsuits and the public health guidance, crowded prison systems are returning to an old solution to address prison problems: solitary confinement. The harms associated with solitary confinement are well-documented. Within days of being subjected to solitary confinement, individuals experience abnormal patterns in brain activity and quickly lose the ability to concentrate and focus. People in solitary confinement suffer from hypertension, headaches, dizziness, panic attacks, depression, and paranoia. Despite these well-known psychological harms caused by placement in isolating conditions, federal courts considering challenges to prison systems’ responses to COVID-19 have largely, albeit implicitly, credited prison official defendants for embracing solitary as a way to stem the spread of the virus.

This Essay argues that the judiciary’s implicit endorsement of the use of solitary confinement as a solution to the problems posed by COVID-19 in carceral settings stems from three long-standing obstacles to the protection of prisoners’ constitutional rights. First, the deliberate indifference standard that governs Eighth Amendment claims brought by incarcerated individuals fails to grapple with how to address ongoing harms to people in prison. The lack of a clear standard currently allows prison systems to escape constitutional liability by implementing one set of unconstitutional conditions (conditions of solitary confinement) in order to attempt to address another (conditions creating an increased risk of exposure to COVID-19). Second, the judiciary’s enduring deference to prison officials leads to an abdication of its obligation to ensure that the reach of the Constitution does not stop at the prison gates. Finally, procedural and societal obstacles prevent the judiciary from embracing the one remedy that might protect incarcerated persons from the harms of both solitary confinement and COVID-19: release orders.

Keywords: COVID-19, prisons, solitary confinement, Eighth Amendment, incarcerated people

Suggested Citation

Godfrey, Nicole B. and Rovner, Laura L., COVID-19 in American Prisons: Solitary Confinement is Not the Solution (November 12, 2020). 2 Ariz. St. L.J. Online 127 (2020), U Denver Legal Studies Research Paper No. 20-31, Available at SSRN: https://ssrn.com/abstract=3748016

Nicole B. Godfrey

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Laura L. Rovner (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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