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UNIVERSITY01

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DENVER

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STURM COLLEGE OF LAW

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University of Denver Sturm College of Law

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Legal Research Paper Series

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Working Paper No. 20-31

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COVID-19 in American Prisons: Solitary Confinement is Not the Solution
Nicole B. Godfrey
&
Laura L. Rovner

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University of Denver Sturm College of Law

This paper can be downloaded without charge from the Social Science Research Network
Electronic Paper Collection

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3748016

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

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Nicole B. Godfrey**
Laura L. Rovner***

INTRODUCTION............................................................................................ 127

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I. SOLITARY CONFINEMENT AND ITS HARMS ............................................ 130
II. THE HARMS OF THE COVID-19 PANDEMIC TO INCARCERATED
PEOPLE .................................................................................................. 133

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III. SOLITARY AND THE COVID-19 PANDEMIC .......................................... 136
A. The Muddled Eighth Amendment Doctrine ................................... 137
B. Deference to Prison Officials ......................................................... 140
C. Resistance to Release ..................................................................... 143
CONCLUSION ............................................................................................... 145

INTRODUCTION

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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.1 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.2 Recognizing the risk posed to the nation’s
incarcerated population, public health officials issued interim guidance meant

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*
This paper was published in November 2020 during the COVID-19 pandemic. All dates
and time descriptions refer to the 2020–21 COVID-19 pandemic unless otherwise stated.
** Visiting Assistant Professor, University of Denver Sturm College of Law.
*** Professor of Law, University of Denver Sturm College of Law.
1.
A State-by-State Look at Coronavirus in Prisons, MARSHALL PROJECT (Nov. 12, 2020,
6:55 PM), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirusin-prisons [https://perma.cc/8QYD-PA7E].
2.
Martin Kaste, Prisons and Jails Worry About Becoming Coronavirus ‘Incubators,’ NPR
(Mar. 13, 2020, 12:00 PM), https://www.npr.org/2020/03/13/815002735/prisons-and-jailsworry-about-becoming-coronavirus-incubators [https://perma.cc/2Y79-J7GY].

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to assist prison officials seeking to protect the health and safety of
incarcerated people.3 Simultaneously, prisoners’ rights advocates across the
country filed lawsuits seeking to ensure prison systems protect incarcerated
people from the risk posed by COVID-19.4
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.5 The harms associated with solitary confinement are

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3.
See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html [https://perma.cc/KL7F-BT39] (Oct. 21, 2020).
4.
See, e.g., Valentine v. Collier, 140 S. Ct. 1598, 1599–1600 (2020) (Mem.) (describing
the injunction entered by the Texas district court); Cameron v. Bouchard, 462 F. Supp. 3d 746,
780, 784 (E.D. Mich. 2020) (issuing a temporary injunction and finding that “in light of
Defendants’ awareness of the deathly risk that COVID-19 poses to the medically[ ]vulnerable
population, Defendants’ failure to make prompter, broader, and more meaningful use of their
authority to implement what appears to be the only solution capable of adequately protecting
medically[ ] vulnerable inmates may constitute deliberate indifference under the Eighth
Amendment”); Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 455–56 (D. Conn. 2020)
(ordering identification of high-risk prisoners and process for release measures); Carranza v.
Reams, No. 20-cv-00977-PAB, 2020 WL2320174, at *15 (D. Colo. May 11, 2020) (ordering
identification of medically vulnerable incarcerated persons, implementation of processes to
ensure such persons are socially distanced, increased access to PPE, and increased medical
monitoring); Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36, 41 (N.D. Cal. 2020) (ordering ICE to
identify all detainees at given facilities, including any health vulnerabilities and criminal case
information, ensure adequate access to counsel, and implement a bail application system); Mays
v. Dart, 456 F. Supp. 3d 966, 1017–18 (N.D. Ill. 2020) (ordering testing of incarcerated people
and establishing hygiene, sanitation, and social distancing requirements); Wilson v. Williams,
455 F. Supp. 3d 467, 481 (N.D. Ohio 2020) (ordering federal prison to identify all members of a
high-risk subclass within one day and to evaluate their eligibility for transfer out of the facility by
any means), vacated by 961 F.3d 829 (6th Cir.); Fraihat v. U.S. Immigr. & Customs Enf’t, 445 F.
Supp. 3d 709, 750–51 (C.D. Cal. 2020) (ordering ICE to identify people with COVID-19 risk
factors within ten days, make timely custody determinations that “consider the willingness of
detainees with Risk Factors to be released,” regardless of whether detainees have petitioned for
relief, and develop, monitor, and enforce performance standards defining the minimum acceptable
conditions for detainees with risk factors); Savino v. Souza, 453 F. Supp. 3d 441, 453 (D. Mass.
2020) (explaining decision to consider bail for all immigration detainees held at two facilities in
Massachusetts, given the “exceptional circumstances” of “this nightmarish pandemic”); Gayle v.
Meade, No. 20-21553-CIV, 2020 WL 2086482, at *7–8 (S.D. Fla. Apr. 30, 2020) (ordering ICE,
inter alia, to evaluate each named detainee for release, to brief the court on a plan to accelerate
its review of “Alternatives to Detention,” and provide the court with frequent updates on housing
and release of detainees), order clarified, 2020 WL2203576 (S.D. Fla.); Banks v. Booth, 459 F.
Supp. 3d 143, 162–63 (D.D.C. 2020) (ordering sanitation and social distancing procedures as well
as unmonitored legal calls).
5.
UNLOCK THE BOX, SOLITARY CONFINEMENT IS NEVER THE ANSWER (2020),
https://static1.squarespace.com/static/5a9446a89d5abbfa67013da7/t/5ee7c4f1860e0d57d0ce819
5/1592247570889/June2020Report.pdf [https://perma.cc/DJ5Q-QSQB] (reporting of “an
explosion in the use of solitary confinement” wherein “[a]t least 300,000 people have reportedly

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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.6 People in solitary confinement suffer
from hypertension, headaches, dizziness, panic attacks, depression, and
paranoia.7 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.8
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 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).9 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.10 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.11
This Essay proceeds in three parts. Part I discusses solitary confinement
and its attendant harms, while Part II describes the harms suffered by the
incarcerated population because of the COVID-19 pandemic. Part III details
the three causes of the implicit endorsement of solitary conditions that has
accompanied the judicial response to the pandemic in prison. Finally, the
Essay concludes by arguing that solitary confinement is no solution to the
crisis created by the COVID-19 pandemic in the nation’s prisons and jails.
While the use of medical isolation and the implementation of measures to
ensure social distancing are necessary to minimize the loss of life in
correctional facilities, prison officials and the judiciary must recognize the

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been placed in solitary since the advent of the pandemic, an increase of close to 500 percent over
previous levels”).
6.
See infra Part I.
7.
See infra Part I.
8.
See infra Part II.
9.
See infra Part II–III.
10. See infra Part III.B.
11. See infra Part III.C.

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difference between medical isolation and punitive isolation. Finally, the
Essay calls on those in power to choose release over isolation.
I.

SOLITARY CONFINEMENT AND ITS HARMS

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The United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Mandela Rules) define solitary confinement as “the
confinement of prisoners for 22 hours or more a day without meaningful
human contact.”12 Although the specific conditions in solitary confinement
units and supermax prisons vary at the margins, in the main, they share a
common set of features.13 Cells used for solitary confinement are designed to
minimize interpersonal interaction and environmental communication.14
They typically have solid metal doors, provide little or no access to natural
light, and are sparsely furnished, usually containing not more than a bed, a
shelf, and a combined toilet-and-sink fixture.15 People in solitary are often
denied access to most educational and vocational programming;16 televisions
and radios are frequently prohibited, and there can be strict limits on art
supplies and reading material.17 Exercise takes place in solitary cages,
sometimes with exposure to the elements though sometimes not.18 If phone
calls and visits with family are permitted at all, they are severely limited in
frequency and duration; visits are nearly always non-contact.19
The Mandela Rules prohibit the use of prolonged solitary confinement
(defined as longer than fifteen days)20 and limit the use of shorter periods of

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12. G.A. Res. 70/175, annex, The United Nations Standard Minimum Rules for the
Treatment of Prisoners, at R. 44 (Dec. 17, 2015), https://www.unodc.org/documents/justice-andprison-reform/Nelson_Mandela_Rules-E-ebook.pdf [https://perma.cc/LQ6V-6HC6].
13. Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 CRIME & DELINQ. 124, 125 (2003).
14. Id. at 125–26, 139.
15. See, e.g., Jessica Wang, Dylan Moriarty & Lindsay Huth, Inside a ‘Supermax’ Cell,
WALL ST. J. (July 17, 2019, 6:01 PM), https://www.wsj.com/articles/inside-a-supermax-cell11563400898 [https://perma.cc/2S86-XJSE]; James Ridgeway & Jean Casella, Inside the
American
Supermax,
SOLITARY
WATCH
(Jan.
19,
2011),
https://solitarywatch.org/2011/01/19/inside-the-american-supermax/ [https://perma.cc/WB47H896].
16. Haney, supra note 13, at 127.
17. Wang et al., supra note 15.
18. See Haney, supra note 13, at 126.
19. Solitary
Confinement
Facts,
AM.
FRIENDS
SERV.
COMM.
https://www.afsc.org/resource/solitary-confinement-facts [https://perma.cc/FD8F-JUR8].
20. G.A. Res. 70/175, supra note 12, at R. 44. In the United States, the National Commission
on Correctional Health Care adopted a principle that placement in solitary confinement for longer
than fifteen days represents “cruel, inhumane, and degrading treatment” that is “harmful to an

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solitary to situations involving “exceptional circumstances.”21 The
prohibition exists for good reason: solitary confinement harms people. In the
United States, we have known this for well over two hundred years.22 As early
as the late 1700s, John Howard and Justice William Bradford argued that
solitary confinement should be limited to intervals “seldom longer than 20 or
30 days at a time,”23 because longer than that is “more than human nature can
bear.”24 Early descriptions of the harm of solitary confinement are largely
anecdotal but hardly equivocal. Benjamin Rush, describing Pennsylvania’s
earliest system of penal isolation, noted that “a wheelbarrow, a whipping
post, nay even a gibbet, are all light punishments compared with letting a
man’s conscience loose upon him in solitude.”25 And in what has become an
almost-obligatory quotation in any description of the harms of solitary
confinement, Charles Dickens famously condemned its use at Eastern State
Penitentiary, writing: “I hold this slow and daily tampering with the mysteries
of the brain[ ] to be immeasurably worse than any torture of the body . . . .”26
Over the past fifty years, research, descriptive studies, and first-person
accounts have demonstrated—almost without exception—that solitary
confinement harms people.27 In 1983, psychiatrist Stuart Grassian
documented brain function abnormalities among men held in long-term
isolation at Walpole, as well as a constellation of symptoms he called “SHU
syndrome”—a condition that could have features of perceptual and cognitive
impairment, delirium, and, potentially, psychosis.28

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individual’s health.” Solitary Confinement (Isolation), NAT’L COMM’N ON CORR. HEALTH CARE
(Apr. 10, 2016), https://www.ncchc.org/solitary-confinement [https://perma.cc/D79Z-X8VZ].
21. G.A. Res. 70/175, supra note 12, at R.44. The Mandela Rules prohibit the imposition of
solitary confinement for any period “in the case of prisoners with mental or physical disabilities
when their conditions would be exacerbated by such measures.” Id. at R. 45(2).
22. See generally David M. Shapiro, Solitary Confinement in the Young Republic, 133
HARV. L. REV. 542 (2019).
23. Shapiro, supra note 22, at 557.
24. Id.
25. Id. 559 n.120 (quoting LOUIS P. MASUR, RITES OF EXECUTION 83 (1989)) (citing Letter
from Benjamin Rush to Enos Hitchcock (Apr. 24, 1789), in 1 LETTERS OF BENJAMIN RUSH 512
(Lyman Henry Butterfield ed., 1951)).
26. CHARLES DICKENS, AMERICAN NOTES 44 (NY., D. Appleton & Co. 1868) (1842).
27. See generally Bruno M. Cormier & Paul J. Williams, La Privation Excessive De La
Liberté, 11 CANADIAN J. PSYCHIATRY 470 (1966); Craig Haney & Mona Lynch, Regulating
Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23
N.Y.U. REV. L. & SOC. CHANGE 477 (1997); HANS TOCH, MEN IN CRISIS: HUMAN BREAKDOWNS
IN PRISON 54 (1975); Craig Haney, Psychological Effects of Solitary Confinement: A Systematic
Critique, 47 CRIME & JUST. 365, 366–67 (2018).
28. Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J.
PSYCHIATRY 1450, 1450–54 (1983); Stuart Grassian, Psychiatric Effects of Solitary Confinement,
22 WASH. U. J.L. & POL’Y 325 (2006) [hereinafter Grassian, Psychiatric Effects of Solitary
Confinement].

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Dr. Craig Haney, a social psychologist and one of the world’s leading
experts on solitary confinement, explains, “Numerous literature reviews have
noted that scientists from diverse disciplinary backgrounds, working
independently and across several continents, and over many decades, have
reached almost identical conclusions about the negative effects of isolation
in general and solitary confinement in particular.”29 “Empirical studies have
identified a wide range of frequently occurring adverse psychological
reactions to solitary confinement,” including

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[s]tress-related reactions (such as decreased appetite, trembling
hands, sweating palms, heart palpitations, and a sense of impending
emotional breakdown); sleep disturbances . . . ; heightened levels of
anxiety and panic; irritability, aggression, and rage; paranoia,
ruminations, and violent fantasies; cognitive dysfunction,
hypersensitivity to stimuli, and hallucinations; loss of emotional
control, mood swings, lethargy, flattened affect, and depression;
increased suicidality and instances of self-harm; and . . .
paradoxical tendencies to further social withdrawal.30

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Space constraints preclude a description of even a fraction of the studies
documenting the harms of solitary confinement. But two are worth brief
mention, given the topic of this Essay. The first is a 2014 study showing an
increased rate of suicide among men in solitary.31 Also troubling is a 2020
Washington State study that found “a wide range and high prevalence of
symptoms of psychiatric distress” in people housed in solitary confinement,
including “symptoms associated with anxiety and depression among as many
as half of our participants[ ] administrative indicators of SMI [serious mental
illness] among at least one fifth of our participants.” Moreover, the
researchers found, “these symptoms persisted in the second year for
participants in and out of solitary confinement.”32 This is consistent with a
growing body of research showing that the damage inflicted by solitary can

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29. Haney, supra note 27, at 367.
30. Id. at 371–72. Dr. Haney’s study of 100 prisoners at Pelican Bay, a California supermax
prison, found that “[e]very symptom of psychological stress and trauma but one (fainting) was
experienced by more than half of the assessed prisoners; many were reported by two-thirds or
more and some by nearly everyone.” Id. at 172.
31. Fatos Kaba et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104
AM. J. PUB. HEALTH 442, 444 (2014).
32. Keramet Reiter, Joseph Ventura, David Lovell, Dallas Augustine, Melissa Barragan,
Thomas Blair, Kelsie Chesnut, Pasha Dashtgard, Gabriela Gonzalez, Natalie Pifer & Justin
Strong, Psychological Distress in Solitary Confinement: Symptoms, Severity, and Prevalence in
the United States, 2017–2018, 110 AM. J. PUB. HEALTH S56, S60–61.

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be long-lasting, even permanent.33 Such damage is only intensified when
accompanied by the other harms experienced by those incarcerated during
the COVID-19 pandemic, which are described below.
II.

THE HARMS OF THE COVID-19 PANDEMIC TO INCARCERATED
PEOPLE

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American prisons are crowded and unhygienic.34 Incarcerated people live
and work in very close, communal quarters where they share toilets, showers,
sinks, laundry facilities, and dining halls.35 They often sleep on bunk beds,
either in individual cells or in dormitory (or warehouse) style housing.36
Because security, not health care, is the top priority in prisons,37 items like
hand sanitizer are not allowed in prison,38 and windows remain closed and
locked, leading to poor air circulation.39 In other words, the physical layout
and punitive nature of American prisons create “a system designed to spread
communicable disease.”40
Compounding the problems posed by the physical structure and security
culture of American prisons, the medical care provided to incarcerated people
is notoriously abysmal.41 Even in systems run by well-meaning health

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33. SHARON SHALEV, MANNHEIM CTR. FOR CRIMINOLOGY, A SOURCEBOOK ON SOLITARY
CONFINEMENT 22–23 (2008); see also Grassian, Psychiatric Effects of Solitary Confinement,
supra note 28, at 353–54.
34. Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 NW. U. L. REV.
ONLINE 59, 73 (2020) (noting that “prisons are infamous for overcrowding”); Amanda Klonsky,
Opinion, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, N.Y.
TIMES (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails.html
[https://perma.cc/PMG6-QXTW] (explaining that toilet tanks double as sinks “for hand washing,
tooth brushing and other hygiene”).
35. Talha Burki, Prisons Are “In No Way Equipped” To Deal with COVID-19, 395 LANCET
1411, 1411 (2020); see also Nick Ochsner, Prisoners Continued Being Sent to Laundry Job After
Co-Workers Tested Positive for COVID-19, WBTV (Aug. 25, 2020, 10:46 PM),
https://www.wbtv.com/2020/08/25/prisoners-continued-being-sent-laundry-job-after-coworkers-tested-positive-covid-/ [https://perma.cc/Z59L-TEYU] (discussing COVID-19 outbreak
linked to communal laundry facility in prison).
36. Burki, supra note 35 at 1411; see also Klonsky, supra note 34.
37. HOMER VENTERS, LIFE AND DEATH IN RIKERS ISLAND 6 (2019) (warning that “[h]ealth
care is not a top priority in jail” because “health systems in jail and prison are usually designed
and controlled by people who aren’t health experts”).
38. Klonsky, supra note 34.
39. See id. (confirming that “[a]ir circulation is nearly always poor” and “[w]indows rarely
open” in prison).
40. Jennifer Gonnerman, How Prisons and Jails Can Respond to the Coronavirus, NEW
YORKER (Mar. 14, 2020), https://www.newyorker.com/news/q-and-a/how-prisons-and-jails-canrespond-to-the-coronavirus [https://perma.cc/R93A-T7EE].
41. Carroll, supra note 34, at 73 (noting prisons’ infamy for “lack of medical care”).

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officials, the conditions of incarceration itself harm the imprisoned.42 The
harms attendant to incarceration are amplified by the preexisting health
problems found in populations prone to confrontations with the carceral
system.43 It is no secret, then, that the health risks of incarceration
disproportionately impact Black and other minority communities.44
Moreover, in 2016, the percentage of people over the age of fifty-five in state
prisons surpassed the percentage of young adults between the ages of
eighteen and twenty-four in prison for the first time.45 Older prisoners are
more likely to suffer from chronic health conditions than senior citizens
living outside prison, and American prisons are not able to provide necessary
care to this aging population.46
Given these well-known conditions and characteristics of American
prisons and their populations, public and prison health experts warned early
on in the pandemic that prisons would become incubators of the highly
infectious disease.47 In the months since the disease began spreading rapidly
across the country (and the world), this warning has proven true as “prisons
across the country have housed some of the worst clusters of COVID-19
cases since April.”48 One of the first studies conducted by health policy and

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42. VENTERS, supra note 37, at 1–2 (warning that “[i]incarceration harms health”).
43. Id. at 1 (noting that “the health risks of incarceration are often connected to the
very . . . people whom we seem hungry to lock up. People of color, people living in poverty,
people with mental health and substance abuse problems”); see also Lipi Roy, Infections and
Incarceration: Why Jails and Prisons Need To Prepare for COVID-19 Now, FORBES (Mar. 11,
2020, 5:08 PM), https://www.forbes.com/sites/lipiroy/2020/03/11/infections-and-incarcerationwhy-jails-and-prisons-need-to-prepare-for-covid-19-stat/#3032d4e149f3 [https://perma.cc/96ZJGCVZ].
44. VENTERS, supra note 37, at 1 (acknowledging that “[t]he health risks that jail or prison
brings to bear on the incarcerated—such as violence, blocked access to care, and solitary
confinement—disproportionately impact those with behavioral health problems and people of
color”).
45. Weihua Li & Nicole Lewis, This Chart Shows Why the Prison Population Is So
Vulnerable to COVID-19, MARSHALL PROJECT (Mar. 19, 2020, 2:45 PM),
https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-isso-vulnerable-to-covid-19 [https://perma.cc/T93K-933H].
46. Id.; see also Taryn A. Merkl & Brooks Weinberger, What’s Keeping Thousands in
Prison
During
Covid-19,
BRENNAN CTR. FOR JUST. (July
22,
2020),
https://www.brennancenter.org/our-work/research-reports/whats-keeping-thousands-prisonduring-covid-19 [https://perma.cc/FF9R-8233] (describing the case of Laddy Valentine, a Texas
prisoner who “is at elevated risk for COVID-19—not only is he in an older age group, he has
hypertension, has suffered a stroke, and uses a walker following back surgery”).
47. Kaste, supra note 2.
48. Merkl & Weinberger, supra note 46; see also David H. Cloud et al., Medical Isolation
and Solitary Confinement: Balancing Health and Humanity in US Jails and Prisons During
COVID-19, 35 J GEN. INTERNAL MED. 2738, 2738 (2020) (noting that “[e]vidence so far indicates
that correctional facilities, including jails in New York City and Chicago and prisons in Ohio,
have the highest rates of confirmed cases of COVID-19 of any setting”).

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prison experts on the impact of the coronavirus on the American prison
population revealed “that people in prison are over five times more likely to
contract COVID-19, and three times more likely to die from the disease if
they contract it.”49 For those incarcerated people who are lucky enough to
survive the illness, they face continued risk from the incredible assortment of
enduring conditions faced by those diagnosed with COVID-19.50
In response to the harms posed by the COVID-19 pandemic to the
incarcerated population, prison systems are turning back to solitary
confinement, a practice that spread steadily starting in the 1980s through the
early 2000s but had started to wane in recent years.51 Prison officials’
reflexive use of solitary stems not only from historical reliance on the practice
but also from two pieces of guidance from public health officials.52 First, for
individuals who become infected or are suspected to be infected with
COVID-19, public health officials recommend complete physical separation
from others as necessary to reduce the risk of transmission.53 This physical
separation is known as medical isolation.54 Similarly, public health officials
recommend physical separation of anyone who may have been exposed to
the disease, but, who, as yet, has not demonstrated any symptoms or tested
positive.55 This physical separation is known as quarantine.56 However,
because correctional facilities are ill-equipped to provide proper facilities for
medical isolation or quarantine, prison officials have turned to units reserved
for solitary confinement.57 Such units are separate from the rest of the prison

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49. Merkl & Weinberger, supra note 46 (referring to Brendan Saloner et al., COVID-19
Cases and Deaths in Federal and State Prisons, 324 JAMA 602, 603–03 (July 8, 2020),
https://jamanetwork.com/journals/jama/fullarticle/2768249
[https://perma.cc/JRN8-6R3A]).
Merkl & Weinberger also note that in Laddy Valentine’s prison, in the course of the first four
months or so of litigation against the Texas prison confining him, “18 people held in the prison
have died from COVID-19, and at least 267 others have tested positive, including Valentine.”
Merkl & Weinberger, supra note 46
50. Jennifer Couzin-Frankel, From ‘Brain Fog’ to Heart Damage, COVID-19’s Lingering
Problems
Alarm
Scientists,
SCIENCE
(July
31,
2020,
1:30
P.M.),
https://www.sciencemag.org/news/2020/07/brain-fog-heart-damage-covid-19-s-lingeringproblems-alarm-scientists [https://perma.cc/AU37-MFV8].
51. Cloud, supra note 48 at 2738.
52. Id. at 2738–39 (noting the need for medical isolation, quarantine, and social distancing).
53. Id. at 2739.
54. Id. at 2741 (defining medical isolation as the separation of “people with a confirmed or
suspected contagious disease until no longer contagious”).
55. Id. at 2739.
56. Id. at 2741 (defining quarantine as separation of “asymptomatic people who have been
exposed to a contagious disease until it is known if they will become infected”).
57. Id. at 2740.

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and consist of tiers of single cells with solid cell doors that ensure not only
physical separation from others but also extreme social isolation.58
Second, for the rest of the prison population, public health officials
recommend that prison officials implement measures to ensure meaningful
social distancing.59 In response to this directive, prisons facing outbreaks of
COVID-19 have implemented lockdowns.60 When a facility locks down, the
individuals incarcerated in that facility are confined to their small cells,
sometimes alone, sometimes with one additional cellmate, and sometimes
with multiple additional cellmates, for most of the day.61 Because the
coronavirus pandemic will persist for some time, the lockdown response runs
the risk of placing thousands of individuals in conditions similar to those
associated with long-term solitary confinement, thereby subjecting them to
the harms associated with such conditions as described in Part I.
SOLITARY AND THE COVID-19 PANDEMIC

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Despite the well-known psychological harms caused by placement in
isolating conditions, federal courts considering challenges to prison systems’
responses to COVID-19 have largely credited prison official defendants for
embracing solitary confinement in order to comply with public health
guidance.62 This is so despite warnings from public health officials that
prisons should not confuse medical isolation, quarantine, and solitary
confinement.63 Public health officials also warn that prison officials must not
“fall[ ] back on policies that subject people to living conditions known to
harm their health” (i.e., conditions of solitary confinement).64

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58. Id.
59. Id. at 2738 (describing “social distancing” as “critical to slowing the spread of disease”).
60. Joseph Shapiro, As COVID-19 Spreads in Prisons, Lockdowns Spark Fear of More
Solitary
Confinement,
NPR
(June
15,
2020,
4:53
PM),
https://www.npr.org/2020/06/15/877457603/as-covid-spreads-in-u-s-prisons-lockdowns-sparkfear-of-more-solitary-confinemen [https://perma.cc/4R43-63YD].
61. Id. (describing lockdown conditions as variable, but “in most cases, prisoners can’t leave
their cells for meals, exercise or prison jobs and can’t receive visits from family. There might also
be limits on mail and phone calls”).
62. See, e.g., Williams v. Wilson, No. 19A1047, 2020 WL 2988458 (U.S. June 4, 2020)
(Mem.) (in order staying district court order granting preliminary relief, implicitly crediting prison
system’s argument in Solicitor General brief that response of “restricting” prisoner movement
within facilities (i.e., locking down) was reasonable and appropriate).
63. Cloud, supra note 48, at 2739 (noting that the “only commonality that solitary
confinement should share with quarantine and medical isolation is a physical separation from
other people”).
64. Id. at 2740.

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Despite these warnings, federal courts’ consideration of prison officials’
response to the COVID-19 pandemic has thus far made little mention of the
harms attendant to isolation. The implicit endorsement of prison officials’ use
of solitary conditions in response to the COVID-19 pandemic is unsurprising
given three aspects of current law governing prison conditions claims: the
Eighth Amendment standard’s indifference to ongoing harms, the deference
afforded prison officials by the judiciary, and the socio-political resistance to
widespread release.

ev

A. The Muddled Eighth Amendment Doctrine

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The text of the Eighth Amendment is a mere sixteen words: “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”65 The Eighth Amendment doctrine governing claims
challenging prison conditions derives from the last six words of the
amendment: the Cruel and Unusual Punishments Clause.66 While federal
courts declined to entertain constitutional claims challenging prison
conditions for more than a century after the adoption of the Bill of Rights,67
the Supreme Court articulated and developed the doctrine in a series of cases
beginning in 1976 and ending in 1994.68

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65. U.S. CONST. amend. VIII.
66. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (explaining that the Cruel and Unusual
Punishments Clause both places restraints and imposes duties on prison officials). The Cruel and
Unusual Punishments Clause, drawn nearly verbatim from Article 10 of the English Bill of Rights,
“became part of the American Bill of Rights in 1791.” COLIN DAYAN, THE STORY OF CRUEL &
UNUSUAL 6 (2007). While scholars debate the intention of the English parliamentarians in drafting
Article 10, most scholars accept that the American Framers intended for the clause to prohibit
certain methods of punishment. See Nicole B. Godfrey, Institutional Indifference, 98 OR. L. REV.
151, 158–59 (discussing scholarly debate around the intent of the drafters in both England and
the United States).
67. Godfrey, supra note 66, at 165 (describing the “hands-off” doctrine that governed
federal courts’ review of prison conditions).
68. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that deliberate indifference to
serious medical needs violates the Eighth Amendment); Hutto v. Finney, 437 U.S. 678, 685
(1978) (leaving undisturbed district court’s finding that conditions in Arkansas’s prisons violated
the Eighth Amendment); Rhodes v. Chapman, 452 U.S. 337, 346–47 (1981) (focusing on
objective effects of double-celling to determine that practice did not violate the Eighth
Amendment); Whitley v. Albers, 475 U.S. 312, 319 (1986) (holding, in the context of an excessive
force case, that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments Clause”); Wilson v.
Seiter, 501 U.S. 294, 299–300 (1991) (confirming that a two-part test, consisting of objective and
subjective components, characterized every Eighth Amendment claim); Hudson v. McMillian,
503 U.S. 1, 5 (1992) (upholding the rule that “the unnecessary and wanton infliction of pain . . .
constitutes cruel and unusual punishment”) (alteration in original); Helling v. McKinney, 509

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Since then, prisoners seeking to enjoin ongoing harms posed by prison
conditions must meet an exacting, two-part Eighth Amendment test
colloquially known to prisoners’ rights advocates as the deliberate
indifference standard.69 First, the prisoner must demonstrate that the
condition being challenged is “sufficiently serious” in order to satisfy the
objective prong of the Eighth Amendment inquiry.70 A sufficiently serious
condition is a condition that results in the deprivation of basic human needs,71
like “food, clothing, shelter, medical care, and reasonable safety.”72 Prisoners
need not wait for harm to befall them before seeking judicial relief from
unsafe prison conditions—the Supreme Court has made clear that the Eighth
Amendment protects against the risk of future harms.73 Second, in order to
satisfy the subjective prong of the Eighth Amendment inquiry, an
incarcerated person must prove that the person or entity being sued exhibited
deliberate indifference to the serious condition being challenged.74 In other
words, an incarcerated plaintiff must prove that the defendant being sued
knew of the risk posed by the challenged condition but disregarded that
knowledge by failing to take reasonable measures to abate the risk.75
For incarcerated plaintiffs seeking injunctive relief, the second part of this
test—the inquiry into the defendants’ state of mind—is muddled. As an initial
matter, the proof required to demonstrate the knowledge component is
unclear76 and potentially superfluous.77 But even if that is so, the inquiry then
focuses on the disregard component of the subjective element of the test—
i.e., whether prison officials’ response to the harm is reasonable.78 One might
think that in the case of ongoing harm, the federal bench may be hesitant to

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U.S. 25, 33 (1993) (confirming that Eighth Amendment protects against future harm); Farmer,
511 U.S. at 841 (defining deliberate indifference as those instances where a prison official knows
of a risk of harm attendant to a prison condition but fails to take reasonable steps to abate the
risk).
69. See Godfrey, supra note 66, at 153.
70. Farmer, 511 U.S. at 834.
71. Rhodes, 452 U.S. at 347.
72. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)
(citing Estelle, 429 U.S. at 103–04).
73. Helling, 509 U.S. at 33.
74. Farmer, 511 U.S. at 834.
75. Id. at 837.
76. Godfrey, supra note 66, at 174, 187 (noting that the “knowledge component is
particularly focused on the identity of the defendant” and, in injunctive cases, the defendant is
almost always an entity).
77. Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests
in Determining What Is Cruel and Unusual, 49 AM. CRIM. L. REV. 1815, 1834 (2012) (asserting
that “[i]f [the] harm is ongoing, the lawsuit itself notifies defendants of the challenged harm,
rendering the knowledge requirement superfluous”).
78. Id.

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conclude that prison officials are “powerless to stop a damaging condition.”79
However, the COVID-19 cases have proven this notion wrong.
The problem arising for prisoner litigants in the COVID-19 context is that
the deliberate indifference standard, always difficult to prove, is particularly
impossible to overcome when the courts are crediting prison officials for
“taking some steps to fix the problems inside a facility, even if they’re
insufficient.”80 And in the context of the pandemic, almost all prison officials
have done something to respond to the presence of coronavirus in their
institutions.81 But the problem is that the steps taken by prison officials to
address the risks aren’t always actually mitigating the rates of infection and
death.82 This results in an apparent inconsistency in the Eighth Amendment
doctrine: it leaves federal courts powerless to actually stop ongoing, clearly
cognizable harms.
At the same time, while the courts are declining to stop ongoing harms to
the incarcerated population caused by the COVID-19 pandemic, they are also
implicitly approving the imposition of other harms arising from prison
officials’ use of solitary confinement. In other words, because some of the
steps prison officials are taking include locking down entire prison
populations83 or using solitary confinement facilities to quarantine or

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79. Id.
80. Merkl & Weinberger, supra note 46 (emphasis added).
81. Id.
82. See, e.g., Wilson v. Williams, 961 F.3d 829, 845–46 (6th Cir. 2020) (Cole, C.J.,
concurring in part and dissenting in part) (noting that at the time the district court entered its
preliminary injunction on April 22, 2020, six incarcerated people had died, “and more clung to
life only with the aid of ventilators, all while the BOP failed to take action to allow the 837
medically vulnerable [prisoners] in its charge at Elkton to follow public health guidelines by
maintaining an appropriate distance between themselves and their fellow [prisoners]”); Hallinan
v. Scarantino, No. 5:20-HD-2088-FL, 2020 WL3105094, at *6, *14 (E.D.N.C. June 11, 2020)
(finding petitioners unlikely to succeed in demonstrating deliberate indifference while explaining
that FCC-Butner is facing one of the largest outbreaks within the federal prison system).

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As of June 8, 2020, the FBOP reported 19 [prisoner] deaths and 664 active
[prisoner] and staff infections at FCC-Butner. One staff member death also has
been reported. The majority of the [prisoners] who died suffered from longterm preexisting health conditions that the CDC lists as risk factors for
developing more severe COVID-19 disease. From April 22 to June 8, 2020,
the number of [prisoner] infections at FCI Butner-low has increased from 7 to
617 [prisoners] (out of approximately 1,162 total [prisoners] at the institution),
indicating a significant outbreak is unfolding.

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Id.at *6 (footnote omitted) (citations omitted).
83. See Keri Blakinger, What Happens When More Than 300,000 Prisoners Are Locked
Down?,
MARSHALL
PROJECT
(Apr.
15,
2020,
6:00
AM),
https://www.themarshallproject.org/2020/04/15/what-happens-when-more-than-300-000prisoners-are-locked-down [https://perma.cc/VXS8-FQ2U].

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medically isolate individuals who are sick,84 these are the measures courts are
recognizing as reasonable to abate the risk.85 The federal courts are reaching
this conclusion despite the ongoing harms faced by incarcerated prisoners 86
and despite the harms associated with prolonged solitary confinement.
This anachronistic result—that prison conditions causing ongoing and
sustained harms created by the epidemiological risk posed by the coronavirus
and by prison officials’ imposition of solitary conditions in response to that
risk may be deemed constitutional (i.e., not cruel and unusual)—is a direct
consequence of the muddled Eighth Amendment doctrine and its current
focus on the subjective intent of prison officials. This focus on subjective
intent has been criticized as illogical, inconsistent, and unjust. 87 Importantly
here, it is allowing for implicit judicial sanction of one set of unconstitutional
conditions as replacement for another set of unconstitutional conditions. Such
a result is perhaps unsurprising given the overwhelming deference afforded
prison officials by the judiciary.
B. Deference to Prison Officials

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Although the Supreme Court has held that “[t]here is no iron curtain drawn
between the Constitution and the prisons of this country,” the Court has
significantly limited the Constitution’s reach by endorsing the idea that a
person’s constitutional rights “may be diminished by the needs and

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84. UNLOCK THE BOX, supra note 5, at 4 (documenting that “some facilities are using cells
built for punitive solitary confinement, with little or no modification, to house people who have
been exposed to the virus and require quarantine, people who have tested positive, and even
individuals who are ill” (footnote omitted)).
85. See, e.g., Wilson, 961 F.3d at 841 (crediting the Bureau of Prisons for isolating and
quarantining prisoners who may have contracted the virus and limiting prisoner movement (i.e.,
locking down) and concluding that those actions amount to a “reasonable response to the risk
posed by COVID-19”).
86. See Wilson, 961 F.3d at 849 (Cole, C.J., concurring in part and dissenting in part) (noting
the irreparable harms suffered by the incarcerated population at FCI Elkton).
87. See Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103
CORNELL L. REV. 357, 428 (2018) (criticizing the Eighth Amendment doctrine’s focus on the
subjective intent of prison officials rather than the objective harms inflicted on the incarcerated);
Glidden, supra note 77, at 1821 (criticizing the unpredictability of application of the current
Eighth Amendment doctrine); Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth
Amendment, 84 N.Y.U. L. REV. 881, 890 (2009) (criticizing Eighth Amendment doctrine’s undue
focus on what constitutes punishment rather than what is cruel). John F. Stinneford, in a series of
articles, has also criticized current Eighth Amendment doctrine for being untethered to the
original meaning of the words comprising the clause. See John F. Stinneford, Experimental
Punishments, 95 NOTRE DAME L. REV. 39, 48–55 (2019); John F. Stinneford, The Original
Meaning of “Cruel,” 105 GEO. L.J. 441, 502 (2017); John F. Stinneford, The Original Meaning
of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739,
1753–54 (2008).

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exigencies of the institutional environment.”88 Unwilling to fully let go of the
“hands-off” doctrine that governed the federal courts’ approach to prisoners’
rights until the 1970s, the Supreme Court replaced that doctrine with one of
deference to prison officials.89 The Court grounded this doctrinal deference
in many of the same policy justifications that informed the hands-off
doctrine:

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[T]he problems of prisons in America are complex and intractable,
and . . . not readily susceptible of resolution by decree. Most require
expertise, comprehensive planning, and the commitment of
resources, all of which are peculiarly within the province of the
legislative and executive branches of government. . . . Moreover,
where state penal institutions are involved, federal courts have a
further reason for deference to the appropriate prison authorities.90

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In non-Eighth Amendment challenges to prison regulations that burden
constitutional rights, the Court has repeatedly held that “a lesser standard of
scrutiny is appropriate” and “the regulation is valid if it is reasonably related
to legitimate penological interests.”91 But the Court has expressly rejected
reasonable-relationship review for Eighth Amendment claims, finding that
“the full protections of the eighth amendment most certainly remain in force
[in prison]. The whole point of the amendment is to protect persons convicted
of crimes.”92 Accordingly, “deference to the findings of state prison officials
in the context of the eighth amendment would reduce that provision to a
nullity in precisely the context where it is most necessary.”93 For that reason,
while “[c]ourts must be sensitive to the . . . need for deference to experienced
and expert prison administrators,” they “may not allow constitutional
violations to continue simply because a remedy would involve intrusion into
the realm of prison administration.”94
Although the Supreme Court has never expressly extended Turner
deference to Eighth Amendment claims, in practice, both it and the lower

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88. Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
89. Procunier v. Martinez, 416 U.S. 396, 413–14 (1974) (prison’s censorship of mail does
not violate First Amendment rights where regulation furthers important government interest and
is no greater than necessary to protect that interest).
90. Id.
91. Turner v. Safley, 482 U.S. 78, 81, 84–89 (1987) (considering a First Amendment
challenge to certain prison regulations); Washington v. Harper, 494 U.S. 210, 223–34 (1990)
(extending Turner to due process claims and finding that reasonable-relationship standard of
review is appropriate “even when the constitutional right claimed to have been infringed is
fundamental”).
92. Johnson v. California, 543 U.S. 499, 511 (2005) (quoting Spain v. Procunier, 600 F.2d
189, 193–94 (9th Cir. 1979)).
93. Id.
94. Brown v. Plata, 563 U.S. 493, 511 (2011).

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courts often defer to prison officials in analyzing claims of cruel and unusual
punishment.95 For example, in declining to credit prisoners’ contention that
Ohio’s practice of double-celling violated the Eighth Amendment, the Court
observed that a “prison’s internal security is peculiarly a matter normally left
to the discretion of prison administrators.”96 In the context of Eighth
Amendment challenges to solitary confinement, several circuits have
explicitly or implicitly imported Turner-like deference into their analysis,
with predictable results.97
So far, judicial responses to prisoners’ Eighth Amendment conditions of
confinement claims during the COVID-19 pandemic indicate that while at
least some district courts have eschewed rote deference to prison officials’
justifications for failing to protect those in their care,98 the circuit courts have
been much more deferential to prison officials.99 And in the few cases that
have reached the Supreme Court to date, the only hard look at prison officials’

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95. See generally Sharon Dolovich, Forms of Judicial Deference in Prison Law, PRISON
LEGAL NEWS (Jan. 15, 2013), https://www.prisonlegalnews.org/news/2013/jan/15/forms-ofjudicial-deference-in-prison-law/ [https://perma.cc/L66Z-JK5S].
96. Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981).
97. See, e.g., Silverstein v. Fed. Bureau of Prisons, 559 F. App’x. 739, 754–55, 761–62
(10th Cir. 2014); Scarver v. Litscher, 434 F.3d 972, 976 (7th Cir. 2006) (“Federal judges must
always be circumspect in imposing their ideas about civilized and effective prison administration
on state prison officials”) (quoting Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985)).
98. See, e.g., Carranza v. Reams, No. 20-cv-00977-PAB, 2020 WL 2320174, at *8–10 (D.
Colo. May 11, 2020) (declining to credit testimony of defendant jail officials regarding efforts to
implement social distancing, monitoring of COVID-19 symptoms, and intake practices to address
“the elevated risk of harm that COVID-19 presents”); Cameron v. Bouchard, 462 F. Supp. 3d
746, 789–90 (E.D. Mich. 2020) (criticizing jail officials’ lackluster efforts to release medically
vulnerable people from custody), vacated by 815 F. App’x. 978 (6th Cir.); Wilson v. Williams,
455 F. Supp. 3d 467, 479 (N.D. Ohio 2020) (pointing to prison’s “testing debacle” as evidence of
deliberate indifference), vacated by 961 F.3d 829 (6th Cir.). But see Valentine v. Collier, 455 F.
Supp. 3d 308, 328 (S.D. Tex. 2020) (noting “the difficulty of running a prison and that courts are
‘ill equipped’ to undertake the task of prison administration, which is within the province of the
legislative and executive branches of government”) (quoting Turner v. Safley, 482 U.S. 78, 84–
85 (1987)); Money v. Pritzker, 453 F. Supp. 3d 1103, 1129, 1133 (N.D. Ill. 2020) (noting that
“running and overseeing prisons is traditionally the province of the executive and legislative
branches” and “the public interest also commands respect for federalism and comity, which means
that courts must approach the entire enterprise of federal judicial intrusion into the core activities
of the state cautiously and with humility”).
99. See, e.g., Wilson, 961 F.3d at 844 (accounting for “the ‘constraints facing the
official[s]’”) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991); Cameron, 815 F. App’x at 988
n.3 (finding no deliberate indifference and categorizing jail officials failures as an “imperfect”
response); Valentine v. Collier, 956 F.3d 797, 802–03 (5th Cir. 2020) (chastising district court for
determining its “mere ‘disagreement’” with prison’s course of action amounted to deliberate
indifference) (quoting Cadena v. El Paso Cnty., 946 F.3d 717, 729 (5th Cir. 2020)); Swain v.
Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (holding that defendant jail officials cannot be
deliberately indifferent when they are “doing their best”).

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justifications has been in dissent.100 Thus, the federal courts’ reflexive
deference to prison officials’ judgment and responses to COVID-19 has
allowed prison officials to turn to solitary confinement as a solution to the
problems posed by the pandemic.
C. Resistance to Release

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The combination of the muddled Eighth Amendment conditions doctrine,
which allows prison officials to escape a finding of deliberate indifference if
they have taken any measures to protect prisoners from infection, coupled
with the courts’ readiness to defer to prison officials’ judgment about
whatever measures they do (or do not) take, already incentivizes prison
officials to use solitary confinement to address the spread of the coronavirus.
And the incentives skew even further toward solitary confinement for a third
reason: the legal and socio-political obstacles to de-densifying prisons
through the release of incarcerated people. While an in-depth analysis of the
various mechanisms for release is beyond the scope of this Essay, we touch
on a few of them below to illustrate the challenges associated with trying to
achieve social distancing via release.
On their own, prison officials typically do not have the authority to reduce
a person’s sentence even if they were inclined to do so. The President and
state governors, however, do have tools for release at their disposal, including
clemency powers (pardons, commutations, and reprieves), as well as the
ability to expand eligibility for furlough, parole, and good time credits via
executive order.101 So far, however, executive officials have made little use
of this authority, citing “public safety” concerns.102

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100. Valentine v. Collier, 140 S. Ct. 1598, 1599 (2020) (Sotomayor, J., dissenting) (Mem.)
(“[W]hile States and prisons retain discretion in how they respond to health emergencies, federal
courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of
danger and death.”); Barnes v. Ahlman, 140 S. Ct. 2620, 2623–24 (2020) (Sotomayor, J.,
dissenting) (Mem.) (“[W]hile ‘courts must be sensitive to the . . . need for deference to
experienced and expert prison administrators,’ they ‘may not allow constitutional violations to
continue simply because a remedy would involve intrusion into the realm of prison
administration.’” (quoting Brown v. Plata, 563 U.S. 493, 511 (2011)).
101. New York University’s Center on the Administration of Criminal Law has compiled a
state-by-state survey of options for executive action to address the spread of the coronavirus. See
N.Y. UNIV. CTR. ON THE ADMIN. OF CRIM. L., SURVEY OF OPTIONS FOR EXECUTIVE ACTION TO
ADDRESS CORONAVIRUS SPREAD, https://www.law.nyu.edu/sites/default/files/Reprieve%20Pow
er%20%28to%20post%29%20.pdf [https://perma.cc/58YC-DK9M].
102. See A Survey of Executive Action Concerning the Spread of COVID-19 in State
Correctional Facilities, N.Y. UNIV. L. CTR. ON THE ADMIN. OF CRIM. L.,
https://docs.google.com/document/d/1ZOs8LtiPajxjAiKDn4VwDnhng0AkDrMi/edit

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Seeking a judicial release order also has its challenges. If the incarcerated
person pursues release via a habeas petition under 28 U.S.C. § 2241, the
petitioner must demonstrate they are “in custody in violation of the
Constitution or laws or treaties of the United States.”103 To meet this burden,
they must show that “there are no conditions of confinement sufficient to
prevent irreparable constitutional injury” and therefore that “the claim[s]
should be construed as challenging the fact or extent, rather than the
conditions, of the confinement.”104 But “the decision to bring a habeas claim,
rather than one challenging the conditions of confinement, limits the type of
relief available to petitioners” because district courts “do[ ] not have authority
to circumvent the established procedures governing the various forms of
release enacted by Congress.”105 On that basis, for example, the Sixth Circuit
held that a district court lacked jurisdiction to order the Federal Bureau of
Prisons to transfer medically vulnerable people from a prison with a
significant COVID-19 outbreak to a different prison.106
If, however, the court construes the claim as an Eighth Amendment
challenge to conditions of confinement, there are other hurdles. Some prison
systems have argued that to the extent the COVID-19-related Eighth
Amendment violation is caused by overcrowding, the Prison Litigation
Reform Act’s requirements must be met before release can be sought.107

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[https://perma.cc/GF6S-PLMQ]; see also Responses to the COVID-19 Pandemic—Prisons
Releasing
People,
PRISON
POL’Y
INITIATIVE,
https://www.prisonpolicy.org/virus/virusresponse.html [https://perma.cc/J3Z3-T336].
As the pandemic claims more lives behind bars, the calls for release have grown more insistent
but so far too little effect. See, e.g., Chesa Boudin & Miriam Aroni Krinsky, Prisons Are
Overwhelmed with COVID-19. Why Aren’t Governors Doing More?, APPEAL (July 17, 2020),
https://theappeal.org/prisons-are-overwhelmed-with-covid-19-why-arent-governors-doingmore/ [https://perma.cc/R5NT-WHX5]. In Colorado, for example, the governor let parts of an
executive order expire that allowed for the release of some prisoners, stating he would not use his
clemency or pardon powers to reduce the prison population because of COVID-19. Elise
Schmelzer, Medically Vulnerable Prisoners Sue Colorado Prison System Over Coronavirus
Threat,
Lack
of
Care,
DENVER
POST
(May
28,
2020,
4:54
PM),
https://www.denverpost.com/2020/05/28/coronavirus-colorado-prisoners-lawsuit/
[https://perma.cc/E5MK-YMNP].
103. 28 U.S.C. § 2241(c)(3).
104. Wilson, 961 F.3d at 837–38.
105. Id. at 338.
106. Id. That said, the First Appellate District of the California Court of Appeals recently
ordered the California Department of Corrections and Rehabilitation to expedite the removal from
San Quentin State Prison—by means of release on parole or transfer to another prison—the
number of people necessary to reduce the population of San Quentin by fifty percent. In re Von
Staich, No. A160122, 2020 WL 6144780, at *19 (Cal. Ct. App. Oct. 20, 2020).
107. See, e.g., Cameron v. Bouchard, 462 F. Supp. 3d 746, 769 (E.D. Mich. 2020) (finding
the plaintiffs’ exhaustion efforts “thwarted by machination and intimidation”), vacated by 815 F.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3748016

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Those requirements include a prior order for intrusive relief, reasonable time
for the defendant to comply, and a three-judge court to decide whether release
is appropriate.108
In sum, three longstanding obstacles to relief from unconstitutional prison
conditions have resulted in prison systems turning to solitary confinement to
manage overcrowded prisons being overrun by a deadly virus. The Eighth
Amendment standard that applies to conditions of confinement claims allows
prison officials to escape liability by locking the people in their custody in
isolation cells. A culture of judicial deference109 to the decisions of those
prison officials leaves the judicial branch with little will to question whether
a response that puts hundreds of thousands of people in solitary-like
conditions110 is, in fact, reasonable. And, finally, the difficulty of securing
release orders and the lack of political courage on the part of executive
officials to use their powers of release limit the functionality of the one
mechanism that may alleviate prison officials’ perceived need or desire to
return to solitary.
CONCLUSION

tn

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In the 1960s and 1970s, repeated lockdowns of American prisons
“ultimately helped lead to the rise of supermaxes and solitary confinement
units.”111 Prison officials, governors, and legislatures need to act now to avoid
repeating the mistakes of the past. Incarcerated individuals who can be safely
released must be released now.112 While medical isolation and quarantine can
and must be used to mitigate the impact of COVID-19 in American prisons,
there are simply too many people incarcerated right now to allow for safe and

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App’x. 978 (6th Cir.); Wilson, 961 F.3d at 833 (explaining Bureau of Prisons’ argument that the
PLRA requires exhaustion even in habeas suit).
108. 18 U.S.C. § 3626(a)(3). The three-judge panel can only issue a prison release order if it
finds that “(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other
relief will remedy the violation of the federal right.” Id. A prison may not be overcrowded but
still may be unable to implement social distancing measures. See, e.g., Cameron, 462 F. Supp.
3d, at 738.
109. Mikel-Meredith Weidman, The Culture of Judicial Deference and the Problem of
Supermax Prisons, 51 UCLA L. REV. 1505, 1506 (2004) (discussing the conflict between the
“culture of judicial deference” in cases involving prison conditions and precedents protecting
prisoners’ rights).
110. See UNLOCK THE BOX, supra note 5.
111. Blakinger, supra note 83.
112. Merkl & Weinberger, supra note 46.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3748016

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ethical medical isolation, quarantine, and social distancing.113
“Unfortunately, the numbers of releases in most jurisdictions to date have
been relatively small and woefully insufficient.”114 We must protect the
health and safety of the prison population from the risks of COVID-19
without subjecting incarcerated individuals to further harm by placing them
in solitary confinement.

Pr

113. Cloud, supra note 48, at 2739. (noting that “overcrowding renders social distancing
efforts unlikely to be successful” in American prisons and calling for the immediate release of as
many people as possible to ensure for “effective and ethical medical isolation and quarantine”).
114. Id.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3748016