Document Type

Article

Publication Date

2021

Keywords

COVID-19, prisons, jails, Eighth Amendment

Abstract

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize more the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown “deliberate indifference” to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes the constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders.

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