Viral Injustice

64 Pages Posted: 23 Feb 2021

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

Lee Kovarsky

University of Texas School of Law

Date Written: February 22, 2021

Abstract

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Keywords: equitable remedies, emergency powers, ADA, PLRA, COVID-19, health care, habeas corpus, preliminary injunctions, due process clause, eighth amendment, detention, prison, jail, custody, mass incarceration

Suggested Citation

Garrett, Brandon L. and Kovarsky, Lee, Viral Injustice (February 22, 2021). California Law Review, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2021-15, Available at SSRN: https://ssrn.com/abstract=3790859 or http://dx.doi.org/10.2139/ssrn.3790859

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

Lee Kovarsky

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

HOME PAGE: http://https://law.utexas.edu/faculty/lee-kovarsky/

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