When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19

68 Pages Posted: 24 Aug 2021 Last revised: 27 Jan 2022

See all articles by Michael Zuckerman

Michael Zuckerman

Ohio State University (OSU) - Michael E. Moritz College of Law; Ohio Justice & Policy Center

Date Written: October 28, 2021

Abstract

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these cases—each a potential stumbling block for courts and litigants—and discusses their implications for future litigation and doctrine. Specifically, the Article addresses the following: (A) the relationship between habeas corpus and classic “conditions of confinement” cases; (B) the nature of Eighth Amendment “deliberate indifference” in this context; (C) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (D) issues involving federalism and comity and how such concerns may motivate stricter enforcement of exhaustion requirements; (E) whether temporary release in the Eighth Amendment habeas context is better conceived of as preliminary or final relief; and (F) the fraught interplay between rights and remedies. The Article concludes by suggesting potential solutions for courts and legislatures.

Keywords: habeas, habeas corpus, COVID-19, coronavirus, outbreaks, PLRA, eighth amendment, prison, jail, incarceration, prisoners' rights, civil rights, prison litigation

Suggested Citation

Zuckerman, Michael, When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19 (October 28, 2021). University of Cincinnati Law Review, Vol. 90, No. 1, 2021, Ohio State Legal Studies Research Paper No. Forthcoming, Available at SSRN: https://ssrn.com/abstract=3909646 or http://dx.doi.org/10.2139/ssrn.3909646

Michael Zuckerman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Ohio Justice & Policy Center ( email )

215 East Ninth Street, Suite 601
Cincinnati, OH 45202
United States

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