VIRAL INJUSTICE
by Brandon L. Garrett & Lee Kovarsky*
INTRODUCTION .............................................................................. 1
I. COVID-19 AS A NEW LEGAL CHALLENGE.............................. 6
A. COVID-19 in Detention Facilities .................................... 6
1.
Vulnerable detention communities ........................ 7
2.
The official response ............................................. 11
B. Rights, Custody, and Remedies ...................................... 14
1.
The custody challenged ........................................ 15
2.
The underlying right ............................................ 15
3.
Form of relief requested ....................................... 20
II. COVID-19 PRISONER LITIGATION ........................................ 23
A. Discharge Litigation ....................................................... 26
1.
Collective discharge .............................................. 27
2.
Non-constitutional discharge ............................... 30
3.
The constitutional exception: non-criminal
detention ......................................................................... 35
B. Changed Conditions ....................................................... 38
C. Other Relief ..................................................................... 41
III. THREE CONCLUSIONS............................................................ 43
A. Calibrating equilibrium ................................................. 43
1.
A note on remedial calibration ............................. 44
2.
Remedies ............................................................... 45
3.
Rights .................................................................... 46
4.
Appellate Re-calibration ....................................... 50
B. Bureaucratic Limitations ............................................... 53
1.
Bureaucracy and exhaustion................................ 54
2.
Bureaucracy and deference .................................. 55
3.
Bureaucracy and process ...................................... 55
C. Detention Exceptionalism ............................................... 57
1.
The perception of danger ...................................... 59
2.
The value of detainees .......................................... 62
CONCLUSION ............................................................................... 63

Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law and
Director, Wilson Center for Science and Justice, at the Duke
University School of Law. Lee Kovarsky is the Bryant Smith Chair in
Law and Co-Director, Capital Punishment Center, at the University
of Texas School of Law. Many thanks to Hunter Albritton, Deniz
Ariturk, Andres Pacuic, Juliet Park, and Kaitlin Phillips for their
excellent research assistance. For their feedback on early drafts, we
are also grateful to Lauren Brinkley-Rubenstein, Steven Chanenson,
Thomas Crocker, Jesse Crosse, Brett Frischmann, Charles Gerstein,
Milan Markovic, Colin Miller, Joseph Neff, Teri Ravenell, Chaim
Saiman, and Seth Stoughton, as well as participants in law faculty
workshops at the University of South Carolina School of Law and the
Charles Widger School of Law at Villanova University.
*

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INTRODUCTION
The coronavirus-19 pandemic (“COVID-19”) has wrecked, at
least for a time, virtually every feature of American life.
Everyone bears some pandemic burden, but the public health
costs are distributed in ways that reflect and amplify existing
inequalities. During the pandemic, the communities that lost
institutional contests for health-protective resources were
already structurally disadvantaged.1 There is, however, one
American community whose experience of neglect and harm is
almost singular: people in government custody.2
COVID-19 poses a unique threat to people in jails, prisons,
and other detention sites.3 The virus is transmitted more easily
in confined spaces,4 and perhaps no space contains a fixed
See generally Seth A. Berkowitz et al., Covid-19 and Health
Equity—Time to Think Big, N ENGL J MED 2020, 383:e76 (Sep. 17
2020), https://www.nejm.org/doi/full/10.1056/NEJMp2021209 (linking
adverse COVID-19 outcomes to structural discrimination and
disadvantage); Centers for Disease Control, COVID-19 Racial and
Ethnic Health Disparities, at https://www.cdc.gov/coronavirus/2019ncov/community/health-equity/racial-ethnic-disparities/index.html
(last updated Dec. 10, 2020) (providing overview of health equity
considerations).
2 Norms about terminology appropriate for this space are shifting.
Virtually all concise terms for people in detention are essentializing,
and many are stigmatizing (e.g., “inmate”). We do our best to refer
simply to “people” in custody, but we will sometimes use the word
“detainee” when there is a tight nexus between a proposition and the
person’s state of detention, and where the less essentializing term
compromises meaning and/or clarity. Less frequently we will use the
word “prisoners,” and do so primarily in contexts where that word
operates in conjunction with others to convey an established
meaning—such as “prisoner litigation” or “prisoner release order.”
3 There is some already some early, shorter-form work from the legal
academy on COVID-19 litigation against detention sites. See, e.g.,
Jenny E. Carroll, Pretrial Detention in the Time of Covid-19, 115 NW.
U.L. REV. ONLINE 59 (2020) (scrutinizing the effects of COVID-19 on
pretrial detention); Sharon Dolovich, Mass Incarceration, Meet Covid19, 11/16/2020 U. CHI. L. REV. ONLINE 4 (2020) (identifying COVID-19
detainee mitigation efforts and analyzing broad failures); Brandon L.
Garrett, Constitutional Criminal Procedure Post-COVID, Harvard
Law Review Blog (May 19, 2020), https://blog.harvardlawreview.org/
constitutional-criminal-procedure-post-covid/ (providing overview of
COVID-19 litigation against correctional institutions); Lee Kovarsky,
Pandemics, Risks, and Remedies, 106 VA. L. REV. ONLINE 71 (2020)
(exploring the inability of institutions to adequately facilitate
release). None of this work, however, analyzes the COVID-19
detention decisions comprehensively, across multiple custody
categories.
4 See CDC, Coronavirus Disease 2019 Basics (Apr. 30, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus1

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population less capable of dispersing than a detention facility.5
American detention sites, moreover, have long lacked adequate
ventilation, sanitation, and healthcare.6 Persons serving
criminal sentences are older, are more likely to have
preexisting conditions, and have complex medical needs.7
COVID-19 began to tear through detention communities as
soon as it reached the United States—jails and prisons quickly
became viral epicenters.8 Notwithstanding the obvious risk,
and while local jail populations declined, state and federal
prison populations remained largely stable.9 As of this writing,
COVID-19 has infected over 370,000 persons in correctional
custody, and, including staff, about 2,450 have died.10
Every outbreak at a detention center is a public health
crisis; together, they represent a national catastrophe that
forced courts to consider the health-protective rights of
detainees during emergencies. The results are not encouraging.
Despite right-remedy combinations capable of reducing viral
transmission and mortality,11 judicial intervention was quite
scarce, too slow, and extremely deferential.12 The decisional
law captures what one might call a viral injustice, by which we
mean an institutional equilibrium that avoids other social costs
by saddling vulnerable detainees with pandemic risk. What
stands out is not just the minimalist posture of the judiciary,
but also its second-classing of rights and remedies that might
have softened the pandemic’s impact—preventing its spread
within detention facilities, among staff, and to surrounding
communities.
The marginalization of detainee rights started at the top
and trickled down. Compare the Supreme Court’s treatment of
such rights with those to religious practice and expression. In

Disease-2019-Basics.
See Kovarsky, supra note 2, at 74; Dolovich, supra note 2, at 8.
6 See Clark Neily, Decarceration in the Face of a Pandemic, THE CATO
INSTITUTE (Apr. 30, 2020), https://www.cato.org/blog/decarcerationface-pandemic.
7 See Kovarsky, supra note 2, at 72.
8 See Dolovich, supra note 2, at 4; Neily, supra note 6.
9 See National Academies of Sciences, Engineering, and Medicine
2020, DECARCERATING CORRECTIONAL FACILITIES DURING COVID-19
26-28 (2020) (hereinafter 2020 NRC Report); Responses to the
COVID-19
Pandemic,
Prison
Pol’y
Initiative,
https://www.prisonpolicy.org/virus/virusresponse.
html (updated continuously).
10 See The COVID Prison Project, at https://covidprisonproject.com
(last visited January 29, 2021).
11 For an explanation of available doctrine, see Section I.B, infra.
12 See Part II, infra.
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Roman Catholic Diocese of Brooklyn v. Cuomo,13 the Court
disabled a New York provision that limited occupancy for a
category of gatherings that included religious services.14 In so
many words, the Justices emphasized that even the pandemic
emergency must not override the thick bundle of American
rights to religious association: “Members of this Court are not
public health experts, and we should respect the judgment of
those with special expertise and responsibility in this area. But
even in a pandemic, the Constitution cannot be put away and
forgotten.”15 Suffice it to say that the Court resolved the rightsversus-safety question very differently in the detention context.
There were some early cases in which lower courts issued
injunctions designed to curb spread at certain detention sites.16
The Court, however, twice intervened to countermand the
intervention of lower federal judges.17 The message was clear—
orders requiring large-scale release or intrusive changes to
detention conditions would be subject to exceedingly strict
scrutiny.
This Article is, to our knowledge, the first to map the
judicial response to the pandemic. In Part I, we set forth the
health-and-safety challenges that the pandemic posed for
detention facilities, as well as the preexisting legal framework
for the responsive detainee litigation. In the process, we sketch
the public health crisis unfolding at American detention sites—
itself a story of incompetence, indifference, and lax
regulation.18 There are, in our view, three meaningful
classifications necessary to map the responsive decisional law:

141 S. Ct. 63 (2020).
More precisely, the Supreme Court stayed enforcement of the
provision pending disposition on appeal. See id. at 65.
15 Id. at 68.
16 See, e.g. Ahlman v. Barnes, 445 F.Supp.3d 671, 694-95 (C.D. Cal.
2020), preliminary injunction eventually overturned by Barnes v.
Ahlman, 140 S. Ct. 2620 (2020) (granting preliminary injunction
against Orange County jail in California); Valentine v. Collier, 2020
WL 5797881, at *37*38 (S.D. Tex. Sept. 29, 2020), relief stayed
pending appeal by Valentine v. Collier, 978 F.3d 154, 158 (5th Cir.
2020) (granting permanent injunction against Texas geriatric unit for
people convicted of crimes); Mays v. Dart, 456 F. Supp. 3d 966, 1017
(N.D. Ill.), aff'd in part, vacated in part, rev'd in part, 974 F.3d 810
(7th Cir. 2020) (granting preliminary injunction to improve conditions
in Chicago’s Cook County jail).
17 See Barnes v. Ahlman, 140 S. Ct. 2620 (2020); Williams v. Wilson,
et al., 207 L. Ed. 2d 168 (June 4, 2020).
18 See Section I.A, infra.
13
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(1) the type of custody;19 (2) the substance of the healthprotective right;20 and (3) the scope of the requested remedy.21
In Part II, we map the COVID-19 litigation, relying on the
classification scheme developed in Part I. For cases in which
litigants prayed for discharge, courts avoided collective
remedies and ducked constitutional questions where nonconstitutional grounds for discharge were available.22 They
strayed from these basic principles primarily in cases where
custody was auxiliary to some immigration proceeding.23 For
cases in which litigants sought changed conditions, the
guidance from the Centers for Disease Control and Prevention
(“CDC”) became the standard of care, but was severed from the
corresponding principle that facilities reduce overcrowding in
order to permit adequate social distancing.24
In Part III, we draw three conclusions from the COVID-19
detainee litigation. First, in order to avoid what they perceived
to be extravagant relief, courts altered remedial and
substantive doctrine.25 Second, efficacious judicial action was
unusually dependent on underwhelming bureaucratic initiative
and cooperation.26 Third, the under-enforcement of healthprotective rights seemed to reflect dated ideas about the danger
and moral worth of people in government custody.27
Collectively, these three conclusions suggest a broader
inference about the institutional competence of judges: they
lack the statutory tools and the bureaucratic partners to deal
effectively with pandemic risk. These are troubling conclusions
about the quality and institutional potential of judging, and
they have significant implications for detainee vaccination and
post-pandemic release programs.
Our objective is to describe what happened when judges
had to adjudicate detainees’ rights to health and safety in the
crucible of emergency—and to draw conclusions at a useful
level of generality. We did not code the decisional law, and so
conducted no statistical analysis.28 The body of decisions is
See Section I.B.1 infra..
See Section I.B.2infra..
21 See Section I.B.3, infra..
22 See Sections II.A.1 & II.A.2, infra.
23 See Section II.A.3, infra.
24 See Section II.B, infra.
25 See Section III.A, infra.
26 See Section III.B, infra.
27 See Section III.C, infra.
28 For many reasons, the decision set would have been unsuited for
such analysis. As one example, early opinions in the set would have
influenced later ones. As another, there would be problems weighting
decisions that applied to very different numbers of people. We
19
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nonetheless large enough, and sufficiently populated with
opinions from influential courts, that there are already
meaningful things to say about the behavior of judges during
the pandemic.
I. COVID-19 AS A NEW LEGAL CHALLENGE
Part I provides background and sets forth a basic
framework for thinking about the judicial response to COVID19 in American detention facilities. Judicial decision-making
hinged on three questions: (1) the type of custody exercised
over the people seeking relief;29 (2) the nature of the underlying
health-protective right;30 and (3) the remedy sought.31 We do
not claim that every case can be plotted using these three
attributes, but simply that these are crucial concepts for
understanding why different litigation proceeded in certain
ways, why judicial relief was so difficult to obtain, why judges
disagreed, and why doctrine changed.
A. COVID-19 in Detention Facilities
The pandemic’s disproportionate effect on detention
communities is partially a story about the unique vulnerability
of those populations, and partially a story about the flat-footed
response of officials with health-related obligations thereto.
When we refer to “sites of detention,” we are describing
facilities that house the following detainee categories: people in
prisons and jails who have been convicted of crimes (criminal
detention); people in non-criminal custody, who have been
jailed and are awaiting criminal process (pretrial detention);
people in non-criminal custody of Immigration and Customs
Enforcement (“ICE”) auxiliary to an immigration proceeding
(immigration detention); and other people in non-criminal
custody auxiliary to some other civil process, such as a those
designated for a juvenile or a mandatory substance abuse
program. A “correctional facility” is a detention site related to
criminal process—that is, it is a prison or jail that houses those
awaiting criminal trial or convicted of crimes.32

therefore avoid false precision. Instead, this project is designed to,
among other things, help identify the pockets of institutional activity
that warrant more quantitative analysis.
29 See Section I.B.1, infra.
30 See Section I.B.2, infra.
31 See Section I.B.3, infra.
32
See
Bureau
of
Justice
Statistics,
Corrections,
at
https://www.bjs.gov/index.cfm?ty=tp&tid=1#terms_def (last visited
Jan. 10, 2020).
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1. Vulnerable detention communities
Mass incarceration has created a “perfect breeding ground
for the virus.”33 As of 2020, there were approximately 2.3
million people detained under color of law, including people in
1,943 state and federal prisons, 3,134 local jails, 1,772 juvenile
correctional facilities, 218 immigration detention facilities, 80
Indian Country jails, and various other military prisons, civil
commitment facilities, government psychiatric centers, and
territorial prisons.34 People detained in jails and immigration
detention centers tend to have short stays—creating
substantial turnover and a different set of health threats—
while people in prison tend to serve longer sentences for more
serious crimes.35 In what follows, we detail the health
vulnerabilities of these different detainee categories.
Those in prison—mostly the non-jail population convicted of
crimes—would be unusually vulnerable in any physical
environment. As of 2020, there were approximately 1,466,000
people in state and federal prison.36 Many are older because
they are serving longer sentences.37 This graying detainee
Editorial, America is Letting the Coronavirus Rage Through
Prisons, N.Y. Times (Nov. 21, 2020), https://www.nytimes.
com/2020/11/21/opinion/sunday/coronavirus-prisons-jails.html;
see
also Dolovich, supra note 2, at 4 (“From the earliest days of the
pandemic, it was clear that [COVID-19] posed an outsized danger to
the more than two million people locked inside America’s prisons and
jails.”).
34 See Wendy Sawyer and Peter Wagner, PRISON POLICY INITIATIVE,
Mass
Incarceration:
The
Whole
Pie
2020,
at
https://www.prisonpolicy.org/reports/pie2020.html (Mar. 24, 2020).
35 Prisons generally contain people convicted and serving longer
sentences for more serious crimes. See Danielle Kaeble, Time Served
in State Prison, 2016, BUREAU OF JUSTICE STATISTICS (Nov. 2018).
Jails generally contain those awaiting trial or serving short criminal
sentences. See Zhen Zeng, Jail Inmates in 2018, BUREAU OF JUSTICE
STATISTICS (Mar. 31, 2020). People in the custody of Immigration and
Customs Enforcement (“ICE”) were there for an average of 55 days,
although there is substantial variability based on circumstances. See
American Immigration Council,
Immigration Detention in the
United
States
by
Agency
(Jan.
2,
2020),
https://www.americanimmigrationcouncil.org/
research/immigration-detention-united-states-agency.
36 See E. Ann Carson, Prisoners in 2018 BUREAU OF JUSTICE
STATISTICS (Apr. 30, 2020).
37 See Meredith Booker, BJS Data Shows Graying of Prisons, PRISON
POL’Y INITIATIVE (May 19, 2016), https://www.prisonpolicy.
org/blog/2016/05/19/bjsaging/ (discussing “boom” in elderly prison
population); Emily Widra, Since You Asked: How Many People Aged
55 or Older Are in Prison, by State?, PRISON POL’Y INITIATIVE (May
11,
2020),
https://www.prisonpolicy.org/-blog/2020/05/11/55plus/
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cohort has chronic health problems, elevated mental health
needs, and substantially impaired mobility.38 Many entered
prison in poor health to begin with, due in no small part to
dangerous substance abuse profiles.39
Prison infrastructure and its environmental features make
health- and safety-protective practices challenging. These
facilities are generally overcrowded, which means that social
distancing is difficult or impossible.40 Dormitories are often
double- or triple- bunked, there are not enough bathrooms and
showers, congregate areas are crowded, and prisoners are
double-celled.41 The sanitation is bad, adequate cleaning
supplies are lacking, problems with ventilation make airborne
pathogens especially dangerous, and many prisons are illequipped to provide adequate health care.42 These facilities
have long been vulnerable to disease—including HCV,
hepatitis B and C, HIV/AIDS and tuberculosis.43 Most prisons
are in rural areas, far from a hospital, thereby frustrating
access to outside healthcare.44 Physical restrictions on detainee

(providing state-by-state data).
See Kimberly A. Skarupski et al., The Health of America’s Aging
Prison Population, 40 EPIDEMIOLOGIC REVIEWS 157, 157 (2018);
LAURA M. MARUSCHAK, MEDICAL PROBLEMS OF STATE AND FEDERAL
PRISONERS AND JAIL INMATES, 2011-12 23 (2015).
39 See MARUSCHAK, supra note 38, at 10.
40 See supra note 5; see also E. Ann Carson, Bureau of Justice
Statistics,
Prisoners
in
2018
(Apr.
2020),
https://www.
bjs.gov/content/pub/pdf/p18.pdf (“At year-end 2018, the prison custody
population in 12 states and the BOP was equal to or greater than
their prisons’ maximum rated, operational, and design capacity, and
25 states and the BOP had a total number of prisoners in custody
that met or exceeded their minimum number of beds across the three
capacity measures: design, operational, and rated capacity.”).
41 See 2020 NRC Report, supra note 9, at 26-28.
42 See id. at 26-27.
43 See id. at 14; see also Rucker C. Johnson & Steven Raphael, The
Effects of Male Incarceration Dynamics on Acquired Immune
Deficiency Syndrome Infection Rates among African American Women
and Men, 52 THE JOURNAL OF LAW AND ECONOMICS 251–293 (2009)
(describing spread of AIDS in carceral settings); Kathyrn M Nowotny
et al., Incarceration Rates and Incidence of Sexually Transmitted
Infections in US Counties, 2011-2016, 110 AMERICAN JOURNAL OF
PUBLIC HEALTH S130-S136 (2020) (same, regarding sexually
transmitted infections generally); Anne C. Spaulding & David L.
Thomas, Screening for HCV Infection in Jails, 307 JAMA 1259–1260
(2012) (same, regarding HCV infection in jails).
44 See generally Tracy Huling, Building a Prison Economy in Rural
America, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES
OF MASS IMPRISONMENT 197 (2002) (describing rural location of
majority of prisons built since 1980).
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movement help only so much, at least in the absence of
restrictions on the movement of staff and visitors.45
Jails ordinarily house people awaiting trial, as well as
people convicted of less-serious crimes.46 As of 2020, there were
about 631,000 people that states held in local jails, and another
60,000 in custody of U.S. Marshals.47 There is far more
detainee turnover in jails than there is in prisons, as the
average time served is less than one month.48 The reason for
greater jail churn is intuitive—pretrial detention entails
shorter stays because the people held there are not serving
criminal sentences, and most return immediately to the
community.49 (About 10.7 million people were admitted to local
jails in 2018.50) Like prisons, many jails are overcrowded.51
And, as with detainees in prisons, people in jail are
disproportionately afflicted with chronic health conditions,
have elevated mental health care needs, and require substance
abuse treatment.52
Jails and prisons are mostly sites of correctional detention,
but these facilities also hold many people neither awaiting trial
nor serving a criminal sentence. As of 2020, there were some
56,000 noncitizens in ICE custody, 46,000 of which were held in
immigration detention centers.53 There were about 44,000
minors in juvenile detention facilities,54 and perhaps over one
million people detained pursuant to civil commitment orders.55
See 2020 NRC Report, supra note 9, at 25.
See Bureau of Justice Statistics, FAQ Detail: What is the difference
between jails and prisons, https://www.bjs.gov/index.cfm?ty=qa&iid=
322 (last visited Jan. 3, 2020).
47 See Sawyer and Wagner, supra note 34. Categorizing federal
custody is more difficult because of increasing use of local jails to
house immigration detainees. See Jacob Kang-Brown et al., People in
Jail in 2019, VERA INSTITUTE (Dec. 2019), https://www.vera.
org/downloads/publications/people-in-jail-in-2019.pdf.
48 See Zhen Zeng, Jail Inmates in 2018, BUREAU OF JUSTICE
STATISTICS (Mar. 31, 2020).
49 See id.
50 See id.
51 See 2020 NRC Report, supra note 9, at 26.
52 See id. at 28-29. See also, generally, Carroll, supra note 2, at 73-77
(detailing health and safety risks specific to jail settings).
53 See Sawyer and Wagner, supra note 34. ICE detention is also
typified by high churn rates, with an average stay of about 34 days
and over 500,000 new admissions in fiscal year 2019. See ICE
Detainee Statistics, U.S. Immigration and Customs Enforcement
(Dec. 18, 2020), https://www.ice.gov/coronavirus#wcm-survey-targetid.
54 See Sawyer and Wagner, supra note 34.
55 For an effort to estimate numbers detained pursuant to civil
commitment orders, see Gi Lee, How Many People Are Subjected to
45
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The ICE facilities experienced rapid spread of COVID-19,
having “long been vulnerable to infectious disease outbreaks.”56
Juvenile facilities across the country experienced similar
COVID outbreaks.57
That COVID-19 tore through American detention sites
surprised few who were paying attention, given the decrepit
state of physical facilities, ongoing failure to maintain adequate
health and safety, and unique vulnerability of the detainee
population. COVID-19 migrates quickly across dense
populations that cannot distance or sufficiently suppress
droplet dispersion, and where both symptomatic and
asymptomatic persons can spread the virus.58 COVID-19 can
cause serious illness or death, and it presents increased risk for
individuals with certain preexisting conditions—such as
asthma—common to those in detention.59
Prevention and treatment at detention sites is limited. At
this time, there is no cure for COVID-19. The standard protocol
for minimizing spread includes maintaining physical distance,
mask wearing, hand washing, restricting congregate settings,
diagnostic testing, rigorous quarantining, and contact tracing.60
Vaccines are in various stages of development and distribution,
but there is no clear social consensus in favor of providing
necessary dosage to people in detention who are at-risk.61
People in government custody have filed lawsuits seeking
access to the available vaccines, and those remain pending at
this time.62

Involuntary Psychiatric Detention in the U.S.?, Society for Social
Work and Research 23rd Annual Conference (2019).
56 2020 NRC Report, supra note 9, at 14. For a detailed examination
of ICE detention, see Emily Ryo, Introduction to the Special Issue on
Immigration Detention, 54 LAW & SOC’Y REV. 750, 751–52 (2020).
57 See Josh Rovner, COVID-19 in Juvenile Facilities, THE SENTENCING
PROJECT
(Dec.
4,
2020),
https://www.sentencingproject.org/
publications/covid-19-in-juvenile-facilities/.
58 See Clinical Questions about COVID-19: Questions and Answers
(Transmission), CDC (May 12, 2020), https://www.cdc.gov/
coronavirus/2019-ncov/hcp/faq.html#Transmission.
59 See 2020 NRC Report, supra note 9, at 22.
60 See id.
61 A December 2020 review of vaccination policies found that the
plans of 38 states addressed detainees, and that seven have
designated detainees as top-priority. See David Montgomery,
Prioritizing Prisoners for Vaccine Stirs Controversy, Pew, Jan. 5,
2021,
at
https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/
2021/01/05/prioritizing-prisoners-for-vaccines-stirs-controversy. Some
of these programs have started. See id.
62 See, e.g. Conrad Wilson, In Lawsuit, Oregon Inmates Ask for
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2. The official response
By late March 2020, leadership across American
institutions had a pretty good idea that COVID-19 was going to
severely test national commitments to various health,
religious, and economic priorities. There was also enough data
about how the virus spread in densely populated environments
to appreciate the grave risk for detention sites.63 Public health
experts cautioned that, in custodial settings, effective medical
isolation and quarantine required reduced crowding and other
aggressive population management.64 They emphasized that
“the most urgent first-line strategy to limit spread and improve
containment is population reduction.”65
The more populous the setting, the more difficult distancing
becomes—and overcrowding in detention facilities was a
particularly stark challenge. On March 13, 2020, the World
Health Organization (“WHO”) issued a joint statement with
other international organizations containing guidance on
preventing the spread of COVID-19 in custodial settings, and
emphasized that overcrowding is an “insurmountable obstacle”
to COVID-19 response.66 The WHO put out a formal report two
days later, recommending decarceration and the standard
COVID-19 protocols recited above.67 In October 2020, the
National Academy of Sciences (“NAS”) committee tasked with
studying the public health response to COVID-19 in custodial
settings issued a report with similar recommendations.68 It also
underscored that conditions modifications had to be coupled
Immediate Access to COVID-19 Vaccine, Oregon Pub. Broad., Jan. 22,
2021.
63 See 2020 NRC Report, supra note 9, at 12.
64 See David H. Cloud et al., Medical Isolation and Solitary
Confinement: Balancing Health and Humanity in US Jails and
Prisons During COVID-19, J. GEN. INTERN. MED. 35, 2738–2742
(2020).
65 See Elizabeth Barnert et al., Prisons: Amplifiers of the COVID-19
Pandemic Hiding in Plain Sight, 110 AM. J. PUB. H. 964, 964 (2020).
66 World Health Organization, UNODC, WHO, UNAIDS, and
OHCHR Joint Statement on COVID-19 in Prisons and Other Closed
Settings (2020), https://www.who.int/news/item/13-05-2020-unodcwho-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-andother-closed-settings.
67 See World Health Organization, Preparedness, prevention, and
control of COVID-19 in prisons and other places of detention (2020),
https://apps.who.int/iris/bitstream/handle/10665/336525/WHOEURO-2020-1405-41155-55954-eng.pdf; see also Matthew J.
Akiyama, Anne C. Spaulding & Josiah D. Rich, Flattening the Curve
for Incarcerated Populations—Covid-19 in Jails and Prisons, 382 N.
ENG. J. MED. 2075–2077 (2020) (providing other expert guidance on
correctional practices).
68 See 2020 NRC Report, supra note 9.
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with discharge strategies: “[D]ecarceration is an appropriate
and necessary mitigation strategy to include in the COVID-19
response in correctional facilities[.]”69
Those in best position to take protective action failed to
take it fast enough. Start with the institution at the center: the
CDC. On March 23, 2020, it issued “Interim Guidance” for
detention facilities, which has been updated several times
since.70 The Interim Guidance was slim. It included no detailed
rules designed to mitigate known risks in custodial settings—
in marked contrast to its general rules for the public,71 and to
other expert recommendations. To be sure, the Interim
Guidance included some recommendations.72 It recommended
face coverings, and that everyone wash hands with soap and
water regularly.73 But it provided weaker suggestions on the
most pressing topics, awkwardly inviting detention sites to
“consider” certain health-protective action. It invited facilities
to consider restrictions on alcohol-based hand sanitizer,
suspending work release and programs that assign individuals
outside a facility, and certain limits on transfers between
facilities.74 Most problematically, the subsequently modified
Interim Guidance continues to state that facilities need merely
“consider options to prevent overcrowding.”75 It recommends
social distancing as a vital precaution,76 but endorses no
mechanism for accomplishing that goal in overcrowded
facilities. The failure to pair a distancing recommendation with
a guideline for responsible decarceration was an obvious
problem, and was flatly inconsistent with the public health
consensus expressed in the WHO and NAS recommendations.77
Id. at 2.
See Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19) in Correctional and Detention Facilities, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last updated Dec. 31,
2020) (hereinafter “Interim Guidance”).
71
See Prevent Getting Sick, CDC, https://www.cdc.gov/
coronavirus/2019-ncov/prevent-getting-sick/index.html (last updated
Dec. 9, 2020).
72 See Interim Considerations for SARS-CoV-2 Testing in Correctional
and Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/testing.html (last updated Dec.
3, 2020).
73 See id.
74 See id.
75 See id.
76 See Prevent Getting Sick, supra note 71.
77 See, e.g., 2020 NRC Report, supra note 9, at 80 (“[R]elieving
population pressures in jails, prisons, and detention centers greatly
facilitates adherence to CDC guidelines, controlling COVID-19
outbreaks, and reducing health risks, particularly for medically
69
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Many state and local correctional facilities, presumably
observing that the CDC Interim Guidance was both general
and precatory, ignored the broader public health consensus.
Many jails and prisons failed to comply even with the CDC’s
minimalist suggestions—they maintained restrictions on hand
sanitizer, refused to implement substantial screening
programs, failed to impose or enforce mask-wearing
requirements on correctional staff, either under-enforced
distancing guidelines or ignored them altogether, insufficiently
limited visitation and transfer, and held facility admission and
exit constant.78 Testing programs “proved to be a challenge” for
many state correctional institutions.79
The response in federal correctional facilities was a slightly
different story, with a similar ending. The Attorney General
emphasized that “public safety” had to guide the correctional
response to COVID-19, but insisted on a definition of public
safety that did not always cut in favor of detainee health: “At
the same time that the defendant’s risk from COVID-19 should
be a significant factor in your analysis, you should also
consider any risk that releasing the defendant would pose to
the public.”80 The initial response of federal prisons included
some restrictions on visitation and transfer, as well as some
screening and quarantining of symptomatic detainees, but no
testing program.81 The Bureau of Prisons (“BOP”) denied most
compassionate release petitions—although, as of October, 2020,
about 1,500 had been granted.82
Success stories were few and far between, although there
was a nontrivial reduction in the size of the jail community.
Between January and June of 2020, the average prison
population fell by five percent and jail population by twenty.83
The decline in the jail population was actually steeper at first,
but increased somewhat after the initial drop.84 The differences
vulnerable people”).
See Keri Blakinger and Beth Schwartzapfel, When Purell is
Contraband, How Do You Contain the Coronavirus?, THE MARSHALL
PROJECT (Mar. 6, 2020); Editorial Board, Coronavirus Cases In
Prisons Are Exploding, WASH. POST (Aug. 21, 2020).
79 See 2020 NRC Report, supra note 9, at 85.
80 William P. Barr, Memorandum to All Component Department
Heads and All United States Attorneys, “Litigating Pre-Trial
Detention Issues During the COVID-19 Pandemic,” U.S. Dep’t Justice
(Apr. 6, 2020), https://www.justice.gov/file/1266901/download.
81 See COVID-19 Action Plan: Phase Five, Federal Bureau of Prisons,
https://www.bop.gov/resources/news/20200331_covid19_action_plan_5
.jsp (last updated Mar. 31, 2020).
82 See 2020 NRC Report, supra note 9, at 58.
83 See id. at 59-61.
84 See id.
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between jails and prisons reflect the different correctional
functions of the two facility categories—with prisons housing
those convicted and serving longer sentences, and jails housing
those awaiting trial or serving shorter time.85 Jails can
dramatically reduce population by admitting fewer prisoners;86
prisons, by contrast, would have to achieve substantial
population reduction through discharge. Much of the jail trend
was accounted for by reduced crime, reduced arrests, and
reduced carceral sentencing; in contrast, there were very few
prison discharges.87
The combined result of extreme detainee vulnerability,
waffling leadership, and subordinate noncompliance has
been—as one might expect—a catastrophe. As the pandemic
spread, the decarceration that bureaucracies needed to pair
with distancing mandates never materialized. The inability to
distance and test swamped the anticipated benefits of other
health and safety recommendations, when facilities even
followed them. The COVID Prison Project tracks public data
concerning testing and cases in correctional facilities, and, at
the time of this writing, over 370,000 prisoners have contracted
COVID-19, and 2,296 of them have died.88 There have been
over 89,000 cases among staff, with 142 deaths.89
B. Rights, Custody, and Remedies
Lawyers scrambled to initiate state and federal litigation in
venues across the country.90 They undertook that litigation in
the shadow of doctrine that had been configured for very
different health-and-safety challenges. Before COVID-19, legal
disputes about health risk were more individualized affairs—
that is, they did not occur against the backdrop of systemic risk
posed by a pandemic, and they were less likely to involve
actions for collectivized relief. We focus here on the state of
doctrine that preexisted the pandemic. We identify the three
See Carson, supra note 36.
See Emily Widra and Peter Wagner, While jails drastically cut
populations, state prisons have released almost no one, PRISON POL’Y
INITIATIVE (May 14, 2020), https://www.prisonpolicy.org/blog/2020/
05/14/jails-vs-prison-update/.
87 See 2020 NRC Report, supra note 9, at 61.
88 See The COVID Prison Project, supra note 10.
89 See id.
90 Several projects track COVID-19 prisoner litigation. See, e.g., Civil
Rights Clearing House Special Collection: COVID-19, University of
Michigan
Law
School,
https://clearinghouse.net/results.php?
searchSpecialCollection=62 (last visited Jan. 3, 2020); UCLA Covid19
Behind
Bars
Data
Project,
UCLA
Law
School,
https://law.ucla.edu/-centers/criminal-justice/criminal-justiceprogram/related-programs/covid-19-behind-barsdata-project/
(last
visited Jan. 3, 2020).
85
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variables that best organize that law, and that will best
position readers to understand the doctrinal changes that
COVID-19 caused: (1) the type of custody subject to challenge;
(2) the nature of the underlying right to health-protective
detention conditions; and (3) the potential remedy.
1. The custody challenged
The first thing to think about when organizing the COVID19 detainee litigation is the type of custody being challenged.
There is federal custody and state custody, and then there is
criminal and non-criminal custody. The challenges available to
people in detention will depend substantially on the custody
category. In other words, certain substantive claims and
certain remedies are available only to those in certain forms of
custody.
A person subject to criminal custody is a person who has
been convicted and sentenced to confinement. These people
form the largest detainee category in correctional institutions.91
Those in criminal custody are in either a jail, if the sentence is
shorter, or a prison, if the sentence is longer. They must
generally litigate constitutional challenges through Eighth
Amendment claims that we describe momentarily.92 Each
sovereign, moreover, usually has a set of non-constitutional
rights under which the people it detains may seek discharge
and relief for prison conditions.93
Non-criminal custody is a little more complicated, in part
because there is more internal variation within the category.
There is pre-trial custody, where the primary constitutional
constraint on detention conditions operates through the due
process clauses of the Fifth and Fourteenth Amendments.94
People in pretrial custody can also access select nonconstitutional mechanisms to lodge claims involving medical
care—and, like those available to those convicted of crimes,
there is state-by-state and federal variation.95
2. The underlying right
For the purposes of mapping the decisional law, the second
step centers on the nature of the underlying right asserted.
These rights spring from constitutions, statutes, and other
federal and state authority. Every government facility is
obviously subject to the federal constitution, and there are

See Sawyer and Wagner, supra note 34.
See infra notes 96 to 110 and accompanying text.
93 See 2020 NRC Report, supra note 9, at 56.
94 See supra notes 111 to 123 and accompanying text.
95 See 2020 NRC Report, supra note 9, at 55-56.
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different statutes and provisions that impose obligations and
provide remedies for different custodial transgressions.
a. Eighth Amendment rights
In Estelle v. Gamble (1976),96 the Supreme Court set forth
the modern constitutional framework for adjudicating
convicted-prisoner challenges to detention conditions. Gamble
held that the Eighth Amendment obligates state authorities to
provide such people with “adequate medical care,”97 and
“deliberate indifference to serious medical needs of prisoners”
represents “unnecessary and wanton infliction of pain” that the
Eighth Amendment proscribes.98 Gamble ended up forming the
basis for a two-pronged Eighth Amendment test. First, a
plaintiff must demonstrate a sufficiently serious deprivation of
rights.99 Second, they must demonstrate that jail officials acted
with sufficiently culpable mens rea—amounting to recklessness
or deliberate indifference with regard to the deprivation.100
However important Gamble was in establishing a formal
right to healthcare delivery in custodial settings, subsequent
decisions have diminished its impact by upping the threshold
for deliberate indifference.101 In Wilson v. Seiter,102 the
Supreme Court reaffirmed that a Gamble plaintiff had to show
a serious risk and deliberate indifference, and described the
deliberate indifference requirement as a culpable state of
mind.103 Farmer v. Brennan104 thereafter established that
deliberate indifference required more than awareness of the
facts from which the inference of risk might be drawn; prison
officials “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and [they] must actually draw the inference.”105
Although the Supreme Court has articulated a high mens
rea threshold, it has made clear that people in prison can
429 U.S. 97 (1976).
Id. at 105.
98 Id. at 104 (internal quotation marks and citations omitted).
99 See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
100 The deliberate indifference prong was drawn straight from the
language of Gamble. See 429 U.S. at 105.
101 Things did not start out that way. Rhodes v. Chapman, decided in
1981, held the Eighth Amendment governed conditions-ofconfinement litigation pertaining to things other than medical care,
and seemed to jettison the subjective component of the Estelle
inquiry. See 452 U.S. 337, 344-50 (1981).
102 501 U.S. 294 (1991).
103 It reasoned Rhodes omitted reference to the subjective prong only
because unnecessary to decide that case See id. at 299-304.
104 511 U.S. 825 (1994).
105 See id. at 837.
96
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obtain relief before they suffer harm—a rule that is obviously
central to our discussion.106 In Helling v. McKinney,107 a
convicted detainee alleged an Eighth Amendment violation
because he had been placed next to someone who smoked five
packs of cigarettes a day.108 The Court rejected the idea that
the Eighth Amendment rule contemplates only realized harm:
“We would think that a prison inmate also could successfully
complain about demonstrably unsafe drinking water without
waiting for an attack of dysentery.”109 The next observation
was less memorable but no less important: “Nor … may [prison
officials] be deliberately indifferent to the exposure of inmates
to a serious, communicable disease on the ground that the
complaining inmate shows no serious current symptoms.”110
b. Due Process rights
The Eighth Amendment constrains only “punishment,” and
is therefore inapplicable to non-criminal custody. For noncriminal detainees, the due process clauses of the Fifth and
Fourteenth Amendments provide the operative constraints.
Bell v. Wolfish111 reaffirmed that the government cannot
subject people in non-criminal detention to conditions that
amount to punishment,112 and it set forth the due process rule
used to distinguish punishment conditions from those that are
reasonably incident to legitimate, non-punishing detention
objectives.113
For challenges to non-criminal custody, the due process
analysis actually separates into two categories. The first tracks
Bell faithfully, and requires a court to decide whether some
detention condition amounts to punishment—which simply
cannot be imposed on people in non-criminal custody.114 Per
Bell, a detention condition is punishment when it is not
In addition to precedent discussed below, the Supreme Court has
addressed the problem of communicable disease in other cases. See,
e.g., Brown v. Plata, 563 U.S. 493, 531-32 (2011) (ordering relief for
prison overcrowding in partial view of effect overcrowding had on
transmission of communicable disease); Hutto v. Finney, 437 U.S.
678, 682 (1978) (capping punitive isolation in partial view of
transmission of communicable diseases).
107 509 U.S. 25 (1993).
108 See id. at 28.
109 Id. at 33.
110 Id.
111 441 U.S. 520 (1979).
112 See id.
113 See id. at 538.
114 Cf., e.g., Youngberg v. Romeo, 457 U.S. 307, 315, 321-22 (1982)
(“Persons who have been involuntarily committed are entitled to more
considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish.”).
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“reasonably related to a legitimate governmental objective.”115
Every court of appeals but one had used the reasonablerelationship standard to adjudicate the constitutionality of a
non-criminal detention condition under the due process
clause.116 Kingsley v. Hendrickson, moreover, expressly
disavowed a subjective intent requirement for this type of
claim.117
The second type of due process analysis collapses Bell into
Gamble, even though the former is a blanket rule against
conditions amounting to punishment and the latter is a rule
subdividing punishment into permissible and impermissible
categories. Courts taking this second due process approach
analyze non-criminal custody using Gamble’s Eighth
Amendment framework—an objectively serious deprivation of
rights and deliberate indifference thereto.118 These decisions do
not provide satisfying explanations for replacing a rule against
all punishment (Bell) with an inquiry meant to recognize
punishment that the law permits (Gamble).119 This second type
See Bell, 441 U.S. at 539; see also Block v. Rutherford, 468 U.S.
576, 584 (1984) (holding that the reasonable-relationship standard is
“to be applied in evaluating the constitutionality of conditions of
pretrial detention”).
116 See, e.g., Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 55
(2d Cir. 2017) (adopting standard); E. D. v. Sharkey, 928 F.3d 299,
307 (3d Cir. 2019) (same); Williamson v. Stirling, 912 F.3d 154, 182
(4th Cir. 2018) (same); Garza v. City of Donna, 922 F.3d 626, 632 (5th
Cir. 2019) (same); Malone v. Colyer, 710 F.2d 258, 261 (6th Cir. 1983),
abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319
(1989) (same); Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849,
856 (7th Cir. 2017) (same); Baribeau v. City of Minneapolis, 596 F.3d
465, 483 (8th Cir. 2010) (same); Shorter v. Baca, 895 F.3d 1176, 1184
(9th Cir. 2018) (same); Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th
Cir. 2013) (same); Jacoby v. Baldwin Cty., 835 F.3d 1338, 1345 (11th
Cir. 2016) (same); Jones v. Horne, 634 F.3d 588, 598 (D.C. Cir. 2011)
(same).
117 See Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015).
118 See, e.g., Whitney v. City of St. Louis, 887 F.3d 857, 860 (8th Cir.
2018) (extending two-prong standard to pretrial detention context);
Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla.,
871 F.3d 1272, 1279 (11th Cir. 2017) (same); Alderson v. Concordia
Parish Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017) (same).
119 To the extent that courts attempt any explanation, they read
Kingsley’s holding—that treatment of a non-criminal detainee can be
a punishment without intent—as a rejection of the deliberate
indifference prong of the Gamble test, and then held that such a
rejection applied narrowly only to excessive force claims. See, e.g.,
Whitney, 887 F.3d at 860 n.4 (“Kingsley does not control because it
was an excessive force case, not a deliberate indifference case.”); Nam
Dang, 871 F.3d at 1279 n.2 (holding essentially same); Alderson, 848
F.3d at 419 n.4 (holding essentially same).
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of due process analysis even appeared in jurisdictions that had
already adopted the traditional test for branch-one due process
claims (under Bell).120
There is a simple reason to keep deliberate indifference out
of the non-criminal detention analysis. People in non-criminal
detention have not been convicted of anything, even if they are
in pretrial custody and their prosecution awaits. Constitutional
protections regarding conditions of pretrial confinement must
be at least as strong as those regarding prison because, as one
court memorably put it: “purgatory cannot be worse than
hell.”121 Despite doctrinal and practical reasons to leave
deliberate indifference out of the non-criminal inquiry,
confusion about constraints on non-criminal detention
persists.122
c. Rights from statutes and state constitutions
There are also rights that arise under authority other than
the federal constitution, and that apply to both criminal and
non-criminal detention. For example, the Americans with
Disabilities Act (“ADA”) provides federal protection for
individuals with disabilities in public and private
accommodations, including jails and prisons.123 Many cases
challenging correctional conditions have included ADA
claims,124 which require plaintiffs to prove that they have a
Compare, e.g., sources cited in note 118 to 119, supra, with sources
cited in note 118, supra (capturing confusion in the Fifth, Eighth, and
Eleventh circuits). The confusion persists even in jurisdictions that
were not looking to limit Kingsley. Some that refused to read Kingsley
narrowly have equated Bell’s reasonable-relationship test for whether
something amounts to punishment with the objective prong of the
Gamble test. See, e.g., Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th
Cir. 2018) (“We thus conclude … that medical-care claims brought by
pretrial detainees under the Fourteenth Amendment are subject only
to the objective unreasonableness inquiry identified in Kingsley.”);
Darnell v. Pineiro, 849 F.3d 17, 34-35 (2d Cir. 2017) (“Following the
Supreme Court's analysis in Kingsley, there is no basis [to apply] the
subjective intent requirement for deliberate indifference claims under
the Eighth Amendment [to] apply to deliberate indifference claims
under the Fourteenth Amendment.”). Of course, Kingsley was not
about the two-pronged Gamble framework at all. It affirmed that
treatment of a non-criminal detainee could be punishment forbidden
by due process, even if the jailer did not intend to punish. See
Kingsley, 576 U.S. at 398.
121 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). But see Brown
v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (equating pretrial
detainee and convicted prisoner standards).
122 See Part II, infra.
123 See 42 U.S.C. § 12101(a)(2) & (a)(5).
124 See Part II, infra.
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qualifying disability and that they were harmed by intentional
discrimination, a disparate impact, or a failure to make a
reasonable accommodation.125
At federal and state levels, moreover, there can be
standards for prison health care incorporated into statutory
and administrative frameworks.126 For example, there are
statutory standards for discretionary pre-trial release,127 as
well as for discharge associated with overcrowding,128 serious
illness,129 and disease outbreaks.130 There are also some breakglass-in-case-of provisions for unanticipated emergencies,
including (sometimes) powers to order evacuation or closing of
facilities.131 State constitutions can be the source of significant
constraints on detention.132 There are too many such rights to
name, but each vindicates some underlying interest in a
health-protective detention practice.
3. Form of relief requested
The last major axis helpful for plotting the COVID-19
prisoner litigation centers on the form of relief requested.
There are a few different remedies in play. People in detention
may seek damages or (functionally) injunctive relief, with the
latter category subdividing further into transfers, changed
conditions, and discharge. A person in criminal custody
asserting an Eighth Amendment violation might, for instance,
42 U.S.C. § 12132, § 12112(b)(5)(A).
See Kovarsky, supra note 2, at 83.
127 See, e.g., Minn. R. Crim. P. 6.01 (specifying authority for pre-trial
release). For a discussion of legal authority to release people from
pretrial detention, or order early release for short sentences, see 2020
NRC Report, supra note 9, at 55-56.
128 See, e.g., Ga. Code Ann. § 42-9-60 (2020) (specifying parole
mechanisms in event of overcrowding).
129 See, e.g., 18 USC § 3582(c)(1)(A); United States Sentencing
Guidelines Manual § 1B1.13; N.C. Gen. Stat. § 15A-1369 (2020)
(providing for typical compassionate release mechanism); Wis. Stat. §
302.113(9g) (permitting compassionate release for “an extraordinary
health condition”). For an overview of state compassionate release
policies, and why they are rarely used, see 2020 NRC Report, supra
note 9, at 57-58.
130 See, e.g., Mass. Gen. Laws ch. 126, § 26 (2020) (providing for
transfer in case of a sufficiently dangerous disease). For a brief
overview of parole or medical furlough provisions, see 2020 NRC
Report, supra note 9, at 56.
131 See, e.g., Cal. Gov’t Code § 8658 (2020) (giving wardens authority
to remove endangered detainees); Maryland Code § 14-3A-03(d)(1)
(stating once Governor proclaims public health emergency, Governor
“may order the evacuation, closing, or decontamination of any
facility.”).
132 See, e.g., infra notes 209 to 212 and accompanying text.
125
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seek compensation for some past medical damage, some healthprotective practice, a release order, or a transfer to a different
facility.
Start with compensatory remedies. For constitutional torts,
people in state custody can use 42 U.S.C. § 1983 or seek state
tort remedies, and those in federal custody can use a so-called
Bivens action.133 For damages claims against state and federal
officials, plaintiffs will almost always have to overcome
qualified immunity or something like it.134 During the
pandemic, however, most decisional law to date involves
forward-looking emergency relief, rather than backwardlooking compensation for harm.135
In federal court, most plaintiffs seeking changed prison
conditions will be subject to the Prison Litigation Reform Act
(“PLRA”), which imposes certain restrictions on that type
relief.136 The PLRA restricts relief, for example, when state
prisoners use 42 U.S.C. § 1983 to seek prospective remedies for
constitutional violations, including orders for improved
conditions or discharge. The PLRA imposes strict
administrative exhaustion requirements.137 Those exhaustion
requirements are strictest when a plaintiff seeks a “prisoner
release order.”138 Claimants seeking such a release, which
certainly includes discharge and arguably transfer, must show
some sort of noncompliance with a prior remedial order.139
They can secure relief only from a specially convened threejudge panel that must determine that crowding is the cause of
See Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
134 See Procunier v. Navarette, 434 U.S. 555, 561 (1978).
135 Over time, more victims’ families may file suits seeking
compensation. See, e.g., Kelly Davis, Inmate Sues San Diego County
over Death, Alleges it was COVID, L.A. TIMES (Nov. 23, 2020)
(describing prisoner suit).
136 Pub. L. No. 104-134, tit. 8, §§ 801-810, 110 Stat. 1321, 1321-66 to 77 (1996). See Margo Schlanger, Trends in Prisoner Litigation, As the
PLRA Enters Adulthood, 5 UC IRVINE L. REV. 153 (2015)
(summarizing litigation trends under the Act).
137 Before they may file, the exhaustion requirements of the PRLA
generally requires a prisoner to press a complaint through a facility’s
grievance process, appeal to all available authorities for review, and
either receive a responsive ruling or wait for the time for such a
ruling to expire. See 42 U.S.C. §. 1997e(a). However, some cases are
governed under existing settlement agreements, which if they have
applicable terms, may result in remedies. See, e.g., Duvall v. Hogan,
No. ELH-94-2541, 2020 WL 3402301, *7 (D. Md. June 19, 2020)
(finding settlement terms not applicable).
138 18 U.S.C. 3626(a)(3).
139 See id.
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the harm and that there are no lesser ameliorative steps that
the detaining facility can take.140
The leading PLRA case involving prisoner release orders is
Brown v. Plata (2011),141 which was a response to overcrowding
in California correctional facilities.142 That overcrowding,
among other things, created serious medical risks associated
with communicable disease transmission.143 Plata underscored
that a person in custody “may suffer or die if not provided
adequate medical care. A prison that deprives prisoners of
basic sustenance, including adequate medical care, is
incompatible with the concept of human dignity and has no
place in civilized society.”144 The Supreme Court ordered
California to sufficiently decarcerate so as to lessen health
risks.145 The remedy, however, was glacial; it took over ten
years for the case to move all the way through the federal
judiciary.146
The PLRA contains what might look like an escape hatch. It
does not restrict relief in “habeas corpus proceedings
challenging the fact or duration of confinement in prison.”147
But habeas litigation, which is the traditional vehicle for
seeking discharge, presents people in custody with a different
set of challenges. Those who have been convicted, and who are
litigating under habeas provisions seeking release under 28
U.S.C. § 2254 and 2255, must run a gauntlet of procedural
obstacles—including rules requiring them to satisfy
exhaustion,148 successive litigation,149 and timeliness150
requirements. Litigating for habeas discharge under § 2241
does not entail quite the same procedural obstacles, but is
limited to people in non-criminal custody. Moving from a §
2254 category to a § 2241 category is almost impossible,
See id. at (a)(3)(E)(ii).
563 U.S. 493 (2011).
142 See id. at 499-500.
143 See id. at 509.
144 Id. at 510-11.
145 See id. at 502.
146 See id. at 507.
147 18 U.S.C. § 3626(g)(2).
148 See, e.g., 28 U.S.C. § 2254(b)(1) (imposing exhaustion rule on
prisoners serving state criminal sentences).
149 See, e.g., 28 U.S.C. § 2244(b) (imposing severe restrictions on
litigation following initial federal proceeding); 28 U.S.C. § 2255(h)
(incorporating § 2244(b) rules against those serving federal
sentences).
150 See, e.g., 28 U.S.C. § 2244(d) (imposing one-year limitations period
for bringing federal habeas litigation on convicted state prisoners); 28
U.S.C. § 2255(f) (imposing same on convicted federal prisoners).
140
141

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because § 2254 is by express terms applicable to any “person in
custody pursuant to the judgment of a state court.”
*

*

*

Part I provides the background necessary to understand
and organize information about COVID-19 litigation. Litigation
against detention facilities is generally complex and the
pertinent law is restrictive—particularly with respect to largerscale relief. The controlling statutes and decisions usually
require courts to defer to custodial discretion and expertise, the
latter of which is supposed to come from repeated encounters
with similar safety challenges. Having been configured to
address slower moving and less systemic health risks, however,
these existing bodies of related law were ill-suited to pandemic
threat.
II. COVID-19 PRISONER LITIGATION
In Part II, we organize information about the judicial
response to COVID-19 litigation against detention facilities.
While prior health-protective suits have litigated responses to
infectious disease outbreaks,151 the scope and systemic quality
of the COVID-19 risk was something else entirely. Given the
novel interactions between injury, right, and remedy, the early
decisional law exhibited considerable variation. We focus on
injunctive remedies, because there is not yet enough case law
about compensatory relief to draw firmer conclusions. In fact,
many of the cases cited and discussed below are not even final
judgments; they are interlocutory responses to urgent, earlystage requests for preliminary relief.152

Some earlier precedent came out of jail responses to the swine flu,
but those decisions largely denied relief because the infection was less
threatening. See, e.g. Glaspie v. New York City Dep’t of Corr., 2010
WL 4967844, at *1 (S.D.N.Y. Nov. 30, 2010) (“[M]ere exposure to
swine flu does not involve an unreasonable risk of serious damage to
… future health[.]”). But see Fraher v. Heyne, 2011 WL 5240441, at
*2 (E.D. Cal. Oct. 31, 2011) (finding that plaintiff with preexisting
heart condition who was denied swine flu test stated a claim).
152 See, e.g., Torres v. Milusnic, No. CV204450CBMPVCX, 2020 WL
4197285 (C.D. Cal. July 14, 2020) (granting preliminary injunction);
Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL
2813072 (D. Conn. May 29, 2020) (same); Seth v. McDonough, No.
8:20-CV-01028-PX, 2020 WL 2571168 (D. Md. May 21, 2020)
(granting temporary restraining order). Other early pandemic cases
granted motions for class certification or denied motions to dismiss.
See, e.g., Busby v. Bonner, No. 20-CV-2359-SHL, 2020 WL 3108713
(W.D. Tenn. June 10, 2020) (denying motion to dismiss and granting
class certification in part).
151

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Before detailing how particular right-remedy combinations
fared before judges, a few global observations about the tenor of
the judicial opinions are in order. First, at an abstract level,
judges generally seemed to appreciate the unprecedented
challenges that COVID-19 presented for Americans
generally,153 and for detention sites more specifically—for
detainees,154
correctional
staff,155
and
surrounding
communities.156 One opinion captures a common tone: “The
Court struggles to put into words the magnitude of COVID-19’s
devastation. … It is universally recognized that COVID-19
poses a particularly tough challenge for the incarcerated
citizenry.”157 In some cases, judges were even more granular in
their expressed concern, discussing risks specific to certain
detention categories. For example, some decisions zeroed in on
the threat of COVID-19 in ICE detention,158 and the risks for

See, e.g., Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020)
(“COVID-19 poses risks of harm to all Americans.”); Desmond K. B.,
Petitioner, v. Decker, et al., Respondents., No. CV 20-6884 (KM),
2020 WL 4530003, at *1 (D.N.J. Aug. 6, 2020) (describing “serious
public health threat” but declining cases in New Jersey at the time);
Janet Malam, Petitioner-Plaintiff, & Qaid Alhalmi, et al., PlaintiffIntervenors, v. Rebecca Adducci, et al., Respondent-Defendants., No.
20-10829, 2020 WL 4391314, at *1 (E.D. Mich. July 31, 2020) (“More
than four months after the first confirmed case of COVID-19 in
Michigan, the coronavirus pandemic continues to teach us about the
importance and power of collective action.”).
154 See e.g., Rice v. USA, No. 1:19-CV-1026-P, 2020 WL 2892214, at *1
(W.D. La. June 2, 2020) (“The Court recognizes the risk to all
prisoners posed by COVID-19.”); Gayle v. Meade, No. 20-21553, 2020
WL 1949737, at *1 (S.D. Fla. Apr. 22, 2020) (“The Undersigned has a
great amount of concern for all the detainees at the three
immigration detention centers and the fear they are undoubtedly
facing every single day in the midst of this horrific and scary
pandemic.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL
1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (collecting authority in
support of proposition that “inmates may be at a heightened risk of
contracting COVID-19 should an outbreak develop”).
155 See, e.g., Gayle, 2020 WL 1949737, at *5 (“The Undersigned also
has concern for the staff operating and working at the facilities. They,
too, are undoubtedly scared—for themselves and also for their
families, who they see at home when their work shifts are over.”)
156 See, e.g., Vazquez Barrera v. Wolf, 455 F. Supp. 3d 330, 341 (S.D.
Tex. 2020) (explaining that “the public has an interest in preventing
an outbreak” in a facility where it would “inevitably spread through
the surrounding community,” including hospitals and other health
care providers).
157 Seth v. McDonough, 461 F. Supp. 3d 242, 247 (D. Md. 2020).
158 See, e.g., S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No.
CV 18-760 (CKK), 2020 WL 3265533, at *4 (D.D.C. June 17, 2020)
(citing ICE detention test positivity figures).
153

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large urban jails with high daily throughput.159 The content
that follows, however, demonstrates that the appreciation of
such risk did not always pair with strong remedial instincts.
Second, much of the early decisional law developed in
preliminary procedural postures, such as in interlocutory
dispositions on motions for temporary restraining orders
(“TROs”) or preliminary injunctions.160 (Many of the
preliminary holdings eventually gave way to final judgments,
including permanent injunctions and settlement agreements.)
These preliminary orders were nonetheless an important
source of law, as time had been of the essence—courts were
being asked to respond quickly to the largely unchecked spread
of COVID-19 in American detention facilities. Orders
respecting preliminary relief almost always decided the real
winners and losers, and so they represent a logical object of
scrutiny for a project like ours.
Third, and not surprisingly, judges granting relief tended to
rely more heavily on guidance from expert organizations, and
scientific information from reputed medical and scientific
journals.161 Specifically, many opinions relied heavily on the
CDC Interim Guidance, as well as on the CDC Guidelines for
People at Increased Risk of Contracting COVID-19.162 As
See, e.g., People ex rel. Stoughton v. Brann, 67 Misc. 3d 629, 632,
122 N.Y.S.3d 866, 870 (N.Y. Sup. Ct. 2020) (highlighting risk to
people in New York city correctional custody associated with
population churn and staff contacts).
160 See note 152, supra.
161 See, e.g., Desmond v. Decker, No. CV 20-6884 (KM), 2020 WL
4530003, at *1 (D.N.J. Aug. 6, 2020) (citing to CDC statistics); U.S. v.
Ramirez, No. 19 CR. 105 (LGS), 2020 WL 4577492, at *3 (S.D.N.Y.
Aug. 6, 2020) (relying on preliminary research studies showing that
“patients with … diabetes, hypertension, coronary artery disease and
obesity might be at a higher risk for severe disease or death from
COVID-19”); United States v. Aslam, No. CR 17-50-RGA, 2020 WL
4501917 (D. Del. Aug. 5, 2020) (relying “primarily upon the CDC and
the WHO” to assess the evidence the evidence presented).
162 See, e.g., Carlos M. R. v. Decker, No. CV 20-6016 (MCA), 2020 WL
4339452, at *1 (D.N.J. July 28, 2020) (reminding respondents that
“the CDC Guidelines have made clear that correctional facilities must
make ‘all possible accommodations’ to prevent transmission of
infection to high-risk individuals”); Jose M. C. v. Tsoukaris, No. CV
20-6236 (KM), 2020 WL 3249097 (D.N.J. June 16, 2020) (rejecting
petitioner’s request for relief because “although petitioner suffers
from hemorrhoids … this condition is not listed by the CDC as one
which places him at ‘higher risk’ for serious illness from COVID-19”);
Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 2612199, at *1
(S.D.N.Y. May 22, 2020) (relying on fact that “CDC guidelines provide
that people with asthma, or other respiratory problems are at a
heightened risk of severe illness or death from contracting COVID159

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explained above, however, the Interim Guidance contained
light-touch suggestions on key points, and several opinions
granting relief underscored that satisfying it was not sufficient
to show that detention conditions were lawful.163
The body of decisional law available for review at this time
shows that, in the early months of the pandemic, courts
entertained litigation against detention sites around the
country. That litigation relied on preexisting doctrine
developed for lesser health and safety threats, and the
plaintiffs generally sought to change the conditions of
confinement or to obtain release. Although courts quickly
recognized the generalized threat that COVID-19 posed, they
were more often than not content to secure institutional
promises to comply with the light-touch CDC Interim
Guidance, and were less interested in exercising their own
prophylactic initiative or operating a judicial receivership.
A. Discharge Litigation
Discharge was clearly the most aggressive relief that
detainee-plaintiffs sought, and so it also proved the most
elusive. Clear patterns emerged from the litigation over that
remedy. First, notwithstanding public health recommendations
that the most effective COVID-19 practices required
decarceration, courts were resistant to order non-individualized
discharge. In fact, the more collectivized the discharge
requests, the more courts avoided them.164 Discharge remedies
were therefore awarded either individually or to very narrowly
drawn sub-classes of vulnerable detainees.165
Second, and in terms of courts’ willingness to order
discharge in individual or small collectivized cases, there were
19”); Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1953847, at
*11 (S.D.N.Y. Apr. 23, 2020) (“[T]he Court does not hold that the
CDC’s guidelines amount to strict rules of constitutional law that
Respondents must follow in every circumstance,” but “failure to
implement basic elements of social distancing, isolation, and
protective measures for high-risk individuals to be an overwhelming
indication that the conditions of confinement are dangerous to
detainees … .”); Gayle, 2020 WL 1949737, at *1 (ordering detention
facility to “immediately comply with the CDC and ICE guidelines on
providing adequate amounts of soap and water and cleaning
materials to detainees”).
163 See, e.g., Ochoa v. Kolitwenzew, No. 20-CV-2135, 2020 WL
2850706, at *11 (C.D. Ill. June 2, 2020) (“[T]he CDC’s guidelines,
while important, are not dispositive standing alone.”).
164 See Section II.A.1, infra.
165 See, e.g., Alcantara v. Archambeault, No. 20CV0756 DMS (AHG),
2020 WL 2315777, at *10 (S.D. Cal. May 1, 2020) (granting discharge
to medically vulnerable subclass in ICE detention).
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some very clear lines. Courts were more willing to order
discharge on the basis of rights arising under something other
than the federal constitution. And they were much more willing
to use federal constitutional law as a basis for discharge of
people in ICE detention than of people in correctional facilities.
1. Collective discharge
Courts were quite reluctant to order collective discharge,
which meant almost all class actions were unsuccessful.166
There were varied reasons for this judicial behavior.
Sometimes the obstacle to collectivized release was the judicial
imposition of a contested procedural doctrine,167 and sometimes
it was a reluctance to resolve the merits against an institution
in a class action case.168 We take those in turn.
Start with procedural problems with discharge-seeking
class action litigation—a topic about which both of us have
written (separately) at some length.169 Such class action
litigation, at least in federal court, usually happens under one
of two procedural vehicles: either under the federal habeas
corpus provisions or under 42 U.S.C. § 1983, the latter of which
provides for injunctive relief against state officials that violate
the federal constitution.170 These procedural mechanisms
presented some daunting challenges for the litigation we
analyze here.
For example, the general principle that § 1983 is the
preferred vehicle for conditions-improvement litigation is based
on the premise that discharge is not requested, but some courts
refused to permit habeas litigation in conditions cases where
the detainee class sought release.171 Unfavorable treatment of
See Section II.A.1, infra.
See infra notes 169 to 175 and accompanying text.
168 See infra notes 176 to 178 and accompanying text.
169 See Brandon L. Garrett, Aggregation in Criminal Law, 95 CAL . L.
REV . 383 (2007) (exploring aggregation in criminal law more
generally); Kovarsky, supra note 2 (exploring phenomenon in more
specific context of COVID-19).
170 See 28 U.S.C. §§ 2241, 2254, 2255 (habeas provisions); 42 U.S.C. §
1983 (establishing cause of action against state officers for violating
federal constitution).
171 See, e.g., Wilborn v. Mansukhani, 795 F. App’x 157, 163 (4th Cir.
2019) (observing seven of ten “circuits that have addressed the issue
in a published decision have concluded that claims challenging the
conditions of confinement cannot be brought in a habeas petition”);
Seth v. McDonough, PX-20-1028, 2020 WL 2571168,*8 (D. Md. May
21, 2020) (refusing to treat habeas-denominated claims as exempt
from the PLRA); see also Kovarsky, supra note 2, at 81 n.57 (collecting
authority). But see, e.g., Wilson v. Williams, 961 F.3d 829, 838 (6th
Cir. 2020) (holding that a medically vulnerable subclass of people
convicted of federal crimes could bring habeas action if the conditions
166
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habeas class claimants seeking discharge therefore persisted,
notwithstanding the PLRA language carving out an exception
for “habeas corpus proceedings challenging the fact or duration
of confinement in prison”172 And in cases where a mechanical
rule about discharge litigation did not cause courts to subject
the claims to the PLRA, judges applied various habeas
exhaustion rules that either mooted the litigation or forced the
plaintiff class to de-collectivize it.173
The exhaustion requirements applicable to people who had
been convicted in state courts are difficult to escape. 28 U.S.C.
§ 2254(b) imposes an exhaustion condition, without exception,
on “a person in custody pursuant to the judgment of a state
court.”174 But courts have imposed exhaustion requirements on
detainees not subject to criminal convictions, too. Some courts
have held that, although § 2241 textually specifies no
exhaustion requirement, grievances must nonetheless be
exhausted as a prudential matter.175 The point about decollectivizing habeas litigation merits emphasis; these classaction holdings meant that the main path to merits
adjudication was an individualized showing of exhaustion.
In fact, the judiciary crafted substantive tests that are quite
incompatible with class-action treatment. For example, a series
of federal district courts formulated an inquiry for habeas relief
that resists collective analysis: (1) whether the petitioner has
been diagnosed with COVID-19 or is experiencing symptoms
thereof; (2) whether they are at higher risk of contracting the
infection; (3) whether they have been directly exposed; (4) the
effect of the physical space in which they are detained; (5) the
efforts that the prison has made to prevent or mitigate harm;
and (6) any other relevant factors.176 Thus, as one court put it,
litigation was for discharge, rather than changed condition); Vazquez
Barrera v. Wolf, 455 F. Supp. 3d 330, 337 (S.D. Tex. 2020) (“Because
Plaintiffs are challenging the fact of their detention as
unconstitutional and seek relief in the form of immediate release,
their claims fall squarely in the realm of habeas corpus.”).
172 18 U.S.C. § 3626(g)(2).
173 See Kovarsky, supra note 2, at 81.
174 Emphasis added.
175 See, e.g., Cameron v. Bouchard, No. CV 20-10949, 2020 WL
2569868, *14 (E.D. Mich. May 21, 2020) (noting that Sixth Circuit
requires § 2241 exhaustion). For pre-COVID holdings, compare, e.g.,
Beharry v. Ashcroft, 329 F.3d 51, 56-57 (2d Cir. 2003) (stating
exhaustion is prudential), and Little v. Hopkins, 638 F.2d 953, 954
(6th Cir. 1981) (requiring § 2241 exhaustion).
176 See Saillant v. Hoover, 454 F. Supp. 3d 465, 470–71 (M.D. Pa.
2020); see also Rice v. USA, No. 1:19-CV-1026-P, 2020 WL 2892214,
at *2 (W.D. La. June 2, 2020) (using comparable set of factors and
citing additional cases).
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“the petitioner must make an individualized showing that he is
entitled to habeas corpus relief when considering the above
factors.”177 Predictably, some plaintiff classes were denied
certification for failing to satisfy the Rule 23(a)(2) commonality
requirement: “The differences among the factors for all inmates
(or detainees, to use the term from the instant case) are so vast
and fundamental that class treatment ... is completely
unworkable.”178
One thing that did not operate as a bar to collectivized
habeas litigation was the PLRA’s special rules for prisoner
release orders. (As mentioned, habeas litigation is exempt from
those rules,179 which contain rather extreme exhaustion
requirements, entail complex and slow-moving procedure, and
require that any preliminary relief be “narrowly drawn.”180)
The problem with PLRA litigation, then, was not the
impossibility of class treatment per se, but the inability to
obtain class-wide relief at meaningful speed and scale. In
§ 1983 litigation, the PLRA’s restrictions on prisoner release
orders were often insurmountable.181 The process of complying
with the exhaustion requirements and completing the special
statutory process necessary to obtain a final judicial order can
take a decade or more182—a timeframe that was useless to
detainees seeking to avoid COVID-19 risk. Classes seeking
§ 1983 relief sometimes argued that the PLRA exhaustion
requirement should yield in light of the special challenges that
COVID-19 presented, or because administrative remedies were
not available, but had mixed success.183
Saillant, 454 F.Supp. 3d. at 471.
Gayle v. Meade, No. 20-21553-CIV, 2020 WL 3041326, at *43 (S.D.
Fla. June 6, 2020) (internal quotation marks omitted).
179 28 U.S.C. § 3626(g)(2).
180 The requirement of narrowly drawn relief appears throughout the
PLRA. See 18 U.S.C. § 3626(a)(1)(A), (a)(2), (b)(2), & (b)(3).
181 See 18 U.S.C. § 3626(a)(3) (restrictions); Kovarsky, supra note 2 ,
at 82-83 (insurmountability thereof).
182 See supra notes 141 to 146 and accompanying text.
183 See, e.g., Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020)
(finding grievance procedure “available,” such that plaintiffs were
required to exhaust); Nelson v. Barnhart, 454 F. Supp. 3d 1087, 1094
(D. Colo. 2020) (finding nonexhaustion and noting “the Court may not
alter the mandatory requirements of the PLRA for COVID-19 or any
other special circumstance”); but see Duvall v. Hogan, No. CV ELH94-2541, 2020 WL 3402301, at *8 (D. Md. June 19, 2020) (in course of
refusing to apply exhaustion bar to claim relating back to date
preceding the PLRA, noting that administrative remedies internal to
jails do not cover requests for release); McPherson v. Lamont, 457 F.
Supp. 3d 67, 81 (D. Conn. 2020) (finding that “administrative
remedies for the relief that Plaintiffs seek are unavailable, and thus
exhaustion is not required for Plaintiffs to proceed on their § 1983
177
178

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2. Non-constitutional discharge
What also stands out is that—with the exception of the noncriminal detention categories discussed below—courts largely
steered clear of the federal constitution. That is, where there
were discharge orders, they tended to be pursuant to federal or
state statutes, or state constitutions. And state courts that did
afford collective relief tended to do so under state
constitutions,184 statutes,185 or other supervisory authority,186
rather than under the Eighth or Fourteenth Amendments.187
That statutory relief was more robust is unsurprising given the
above-stated observation that courts generally avoided
collective discharge; the substantive showings that statutory
discharge remedies require tend to be more individualized.
claims”); Cameron v. Bouchard, No. CV 20-10949, F.Supp.3d, 2020
WL 2569868, *14 (E.D. Mich. May 21, 2020), overturned on other
grounds by 815 F. App’x 978 (6th Cir. 2020) (noting caselaw regarding
special circumstances in which exhaustion is not required); Fletcher
v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“[W]e think
it’s also true that there is no duty to exhaust, in a situation of
imminent danger, if there are no administrative remedies for warding
off such a danger.”).
184 For cases relying on state law, see infra notes 209 to 212 and
accompanying text.
185 See, e.g., Karr v. State, 459 P.3d 1183 (Alaska Ct. App. 2020)
(interpreting bail statute and concluding COVID constituted “new
information” supporting revisiting pretrial conditions).
186 See, e.g., Comm. for Pub. Counsel Servs. v. Chief Justice of Trial
Court, 142 N.E.3d 525, 543 (Mass. 2020) (setting out presumptions
and categories of people in pretrial custody eligible for release, and
describing similar orders by Michigan, New Jersey, and South
Carolina supreme courts); Foster v. Comm’r of Correction, 484 Mass.
698, 730, 146 N.E.3d 372, 400 (2020) (granting relief regarding drugtreatment-related civil commitments using supervisory authority);
Matter of Request to Modify Prison Sentences, 231 A.3d 667 (N.J.
2020) (finding Executive Order created due process protections for
several groups of people, including minors in custody of Juvenile
Justice Commission). But see In re Petition of Pennsylvania Prison
Soc’y, 228 A.3d 885, 887 (Pa. 2020) (declining to use supervisory
authority to order immediate releases, but rather directing lowercourt judges to consider public health concerns and limit introduction
of new people to facility).
187 See, e.g., v. Comm’r of Correction, 484 Mass. 698, 146 N.E.3d 372
(2020), 146 N.E.3d 372, 395–96 (2020) (rejecting federal
constitutional claims); Colvin v. Inslee, 195 Wash. 2d 879, 899, 467
P.3d 953, 964 (2020) (same); Matter of Writ of Habeas Corpus, No.
48053, 2020 WL 6387859, at *7 (Idaho Nov. 2, 2020) (same); People ex
rel. Squirrell v. Langley, 124 N.Y.S.3d 901, 912 (N.Y. Sup. Ct. 2020)
(same). But see Preliminary Injunction, NAACP v. Cooper, No. 20CVS-500110 (Gen. Ct. Just. Sup. Ct. June 16, 2020) (granting relief
finding state standard to be the same as the federal deliberate
indifference standard).
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For people in federal custody, most judicial discharge
ordered on nonconstitutional grounds was ordered under the
pretrial release provisions188 (for pretrial detainees), or under
either the federal compassionate release or home confinement
rules (for those convicted of crimes).189 The federal pretrial
detention statute permits release for “compelling reason[s].”190
It also allows judges to revise pretrial detention orders “if the
judicial officer finds that information exists that was not
known to the movant at the time of the hearing and that has a
material bearing on the issue whether there are [suitable]
conditions of release[.]”191 Some judges granted relief under
that statutory standard.192 In that statutory context, in fact,
some federal judges adopted a hexa-variate formula for triage
along the lines described above: symptoms, vulnerability,
exposure, physical environment, available mitigation, and
other factors.193 Courts expressly linked that triage function to
the flexible pretrial standards set forth by the statute.194
The federal compassionate release provisions are also
typical in their individuation requirements,195 which permit
See 18 U.S.C.A. § 3142 (containing rules for pretrial release). See
also, e.g., United States v. Michaels, No. SACR 16-76-JVS, 2020 WL
1482553, at *1 (C.D. Cal. Mar. 26, 2020) (granting temporary release
to defendant who was “of an age and has medical conditions that
place him in the group most susceptible to Covid-19”); United States
v. Perez, No. 19 CR 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y.
Mar. 19, 2020) (same, citing person’s “serious progressive lung
disease and other significant health issues”).
189 See 18 U.S.C. § 3582(c) (compassionate release); 18 U.S.C. §
3624(g)(2)(A).
190 18 U.S.C. § 3142(i)(4).
191 18 U.S.C. § 3142(f).
192 See, e.g., United States v. Stephens, 447 F. Supp. 3d 63, 67
(S.D.N.Y. 2020) (finding COVID-related release appropriate under
“compelling reason” standard). Persons on bail facing extradition
have also been ordered released due to COVID risk on similar
reasoning, citing the authority of extradition treaty obligations. See
Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL
1307109, at *1 (N.D. Cal. Mar. 19, 2020).
193 See, e.g., United States v. Wiseman, 461 F. Supp. 3d 740, 743
(M.D. Tenn. 2020) (applying test developed in § 2241 habeas context,
described in text accompanying note 176, supra).
194 See, e.g., United States v. Martin, No. 19 Cr. 140-13, 2020 WL
1274857, at *2 (D. Md. Mar. 17, 2020) (linking authority to 18 U.S.C.
§ 3142(f)(2)(B)). For state courts following such an approach, see, e.g.,
Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020) (providing
order for people in pretrial detention setting out expedited and
health-optimized release practice).
195 With respect to people convicted of federal crimes, we focus on
compassionate release, but the showing necessary to secure home
confinement—which can be used in conjunction with compassionate
188

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sentence reductions—including to time served—when there
“are extraordinary and compelling reasons warrant[ing] such a
reduction.”196 In a largely parallel rule appearing in the
sentencing guidelines, there is a more granular specification of
“extraordinary circumstances,” which includes individualized
considerations of age and medical risk.197 The need for
individuation in compassionate release determinations is
reflected in the observations of one Third Circuit panel: “the
mere existence of COVID-19 in society and the possibility that
it may spread to a particular prison alone cannot
independently justify compassionate release.”198
People granted immediate discharge under federal
compassionate release and home confinement provisions
tended to be medically vulnerable, to have medical conditions
placing them in the CDC’s “at risk” category, to have been
detained in detention facilities with particularly poor COVID19 compliance, and to check other boxes relating to future
danger and flight risk.199 In United States v. Shehata,200 for
example, the court granted a request for immediate release
from prison because, among other things: the person was sixty
years old, had medical conditions that placed him at an
increased risk of COVID-19 complications, and the pandemic
had reached his detention facility.201 In crafting compassionate
release orders, federal courts have wide berth to impose
additional conditions necessary to ensure public safety. For
instance, in Shehata, the court reduced the person’s sentence to
time served, ordered home confinement for two years, extended
the period of supervised release, and required him to wear a
location monitoring device.202
release—is similarly individualized. See William Barr, Prioritization
of Home Confinement as Appropriate in Response to the COVID-19
Pandemic, Office of the Attorney General (Mar. 26, 2020),
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.
pdf.
196 18 U.S.C. § 3582(c)(1)(A)(i).
197 U.S.S.G § 1B1.13, Applic. Note 1.
198 United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020).
199 In addition to the case discussed below, see, e.g., United States v.
Aslam, No. CR 17-50-RGA, 2020 WL 4501917, at *3 (D. Del. Aug. 5,
2020) (granting motion for compassionate release due to “history of
tuberculosis, viral hepatitis, age, and gender” and “absence of
dangerousness”); United States v. Resnick, 451 F. Supp. 3d 262
(S.D.N.Y. 2020) (granting motion for compassionate release because
movant is “65 years old [and] has diabetes and end-stage liver
disease, making him particularly vulnerable to COVID-19”).
200 No. 15-20052-01-JWL, 2020 WL 4530486 (D. Kan. Aug. 6, 2020).
201 See id.
202 See id.
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Another source of discharge-seeking nonconstitutional
litigation was the ADA.203 In federal litigation, most courts
have held wholesale release is simply not a “reasonable
accommodation” under the ADA, even against the backdrop of
the COVID-19 threat.204 In any event, ADA claims failed poorly
whether the defendant was a federal facility or a state one.
(State and federal litigants are both subject to PLRA
exhaustion requirements.205) In Wragg v. Ortiz, for example,
the court disparaged the “bold” request that a federal facility
“release any and all inmates who may have any disability” as
an “all or nothing approach” that is inconsistent with necessary
individuation.206 In Money v. Pritzker,207 representative stateprisoner ADA litigation against multiple Illinois facilities, the
court turned back ADA theories, reasoning that correctional
detainees were not the victims of intentional discrimination,
were not disproportionately burdened by discretionary release
procedures, and were not denied reasonable modifications of
that process.208
People in state custody had more luck for claims that arose
under state law, but only in a handful of jurisdictions. In
March and April, New York courts, recognizing certain
communities were especially vulnerable to COVID-19, invoked
the state due process clause to release many people from local
jails.209 The state due process doctrine was more flexible than
Americans with Disabilities Act of 1990 § 302, codified at 42
U.S.C. § 12182(b)(2)(A)(ii). The analogous provisions in the
Rehabilitation Act apply to federal programs. Rehabilitation Act of
1973 § 504, codified at 29 U.S.C. § 794.
204 See, e.g., Hurdle v. Comm’r of Correction, No. CV205000647S,
2020 WL 5540600, at *5 (Conn. Super. Ct. Aug. 17, 2020) (holding
release would not constitute a reasonable accommodation,
considering petitioner’s particular disability); Wragg v. Ortiz, 462 F.
Supp. 3d 476, 514 (D.N.J. 2020) (holding petitioner’s request to
release all people who have any disability is not a reasonable
accommodation and that court must make individual circumstances
determinations); Money v. Pritzker, 453 F.Supp.3d 1103, 1132 (N.D.
Ill. Apr. 10, 2020) (rejecting ADA claims); Frazier v. Kelley, 460
F.Supp. 799, 830 (E.D. Ark. May 4, 2020) (finding no likelihood of
success on ADA claims).
205 42 U.S.C. § 1997e(a).
206 Wragg, F. Supp. 3d at 514.
207 453 F. Supp. 3d 1103 (N.D. Ill. Apr. 10, 2020).
208 See id. at 1132. Money was in federal court. Hurdle, typical of ADA
litigation in state court, rejected a request for discharge as reasonable
accommodation, on the ground that he had PTSD and a leg injury
that left him uniquely vulnerable to COVID-19. See Hurdle, 2020 WL
5540600, at *5.
209 See, e.g., People ex. rel. Stoughton v. NYS Department of
Corrections, Index No. 260154/2020 (Sup. Ct. Bx. March 27, 2020)
203

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its federal counterpart, and judges could weigh competing
interests in making discharge decisions.210 While some state
courts have indicated that their constitutional law provides
broader grounds for relief on Gamble-type claims, others have
acknowledged that possibility only theoretically and have not
departed from a more demanding “deliberate indifference”
test.211 Some state judges relied on non-constitutional state
authority to expedite release, too—such as inherent
supervisory power or court rules for pretrial detention
practices.212
To conclude, people asserting rights flowing from authority
other than the federal constitution fared better than those
seeking discharge under the Fifth, Eighth, and Fourteenth
Amendments. More specifically, there was some measured
success under federal statutes configured for individual relief—
provisions permitting medical release for pretrial and convicted
federal detainees—and under state law. 213 Indeed, with the
exception of category discussed below, most collective discharge
orders involved rights arising under state constitutions.

(releasing 106 of 110 petitioners held on non-criminal technical parole
violations).
210 See, e.g., People ex rel. Stoughton v. Brann, 122 N.Y.S.3d 866, 869
(N.Y. Sup. Ct. 2020) (“The New York due process test is simpler. A
court weighs the benefit sought by the government from a condition
against the harm that the condition imposes on inmates.”)
211 See, e.g., Smith v. State, No. OP 20-0185, 2020 WL 1660013, at *2
(Mont. Mar. 31, 2020) (employing deliberate indifference test while
noting that Montana right combined with Eighth Amendment provide
Montanans “greater protection from cruel and unusual punishment
than the 8th Amendment”); Matter of Pauley, 466 P.3d 245, 259–61
(Wash. Ct. App. 2020) (noting Washington has interpreted its state
cruel punishment clause more broadly than Eighth Amendment but
following deliberate indifference test); McGraw v. Comm’r of
Correction, No. CV2050000631S, 2020 WL 3790738, at *4–5 (Conn.
Super. Ct. June 10, 2020) (citing a state analysis of habeas claim that
used deliberate indifference test).
212 For example, the Hawaii Supreme Court ordered the release of
pretrial detainees charged with lower-level offenses by suspending
detention orders. See Matter of Custody of State of Hawai’i, 2020 WL
4873285 (Hi 2020). In contrast, several state supreme and appellate
courts refused to issue writs of mandamus to provide emergency relief
in response to COVID-19 at correctional facilities. See, e.g., Kerkorian
v. Sisolak, 462 P.3d 256 *2 (Nev. 2020) (denying mandamus petition
and citing to similar rulings by the Kansas, Massachusetts, Montana
and Washington courts).
213 See Section II.A.2, supra.
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3. The constitutional exception: non-criminal detention
Courts were largely unwilling to discharge people convicted
of crimes on the basis of laws arising under the federal
constitution. Litigation involving ICE detention was the
exception. In these cases, the operative constitutional text was
not the Eighth Amendment, but the due process clauses of the
Fifth and Fourteenth Amendments. Recall that, when due
process is the source of the operative constitutional constraint,
courts can order relief on one of two theories. First, a court may
order relief on the ground that the detention condition
impermissibly amounts to punishment because it is
unreasonably related to a legitimate governmental purpose.214
Second, it might borrow the Gamble framework developed for
people convicted of crimes and demand a showing of deliberate
indifference.215
For ICE detention, many courts shied away from the
deliberate indifference model in order to award relief on a less
stringent showing, and many others were willing to find
deliberate indifference. Federal courts in New Jersey were
particularly likely to order release on the pure Bell rationale:
that the treatment was not reasonably related to a legitimate
government
interest,
and
therefore
amounted
to
punishment.216 Some of these courts even went out of their way
to underscore that the deliberate indifference framework was
part of a different constitutional rule,217 and they were not
entirely alone. A federal judge in Florida ordered the release of
58 ICE detainees, noted that the constitutional standards for
criminal and non-criminal detention were different,218 and
nevertheless determined that the facilities had been
deliberately indifferent.219 By contrast, federal courts in New
Bell v. Wolfish, 441 U.S. 520, 539 (1979).
See supra notes 118 to 122 and accompanying text.
216 See, e.g., Desmond K. B., Petitioner, v. Decker, et al.,
Respondents., No. CV 20-6884 (KM), 2020 WL 4530003, at *6 (D.N.J.
Aug. 6, 2020) (finding in favor of relief on ground treatment was not
reasonably related to a legitimate governmental purpose); Carlos M.
R. v. Decker, No. CV 20-6016 (MCA), 2020 WL 4339452, at *12
(D.N.J. July 28, 2020) (same); Armando C. G. v. Tsoukaris, No. CV
20-5652 (MCA), 2020 WL 4218429, at *9 (D.N.J. July 23, 2020)
(same).
217 See, e.g., Desmond K. B., 2020 WL 4530003, at *9 (finding that the
plaintiff was unlikely to succeed on his “deliberate indifference
claim”); Carlos M. R., 2020 WL 4339452, at *11 n.27 (same).
218 See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482, at *3
(S.D. Fla. Apr. 30, 2020), order clarified, No. 20-21553-CIV, 2020 WL
2203576 (S.D. Fla. May 2, 2020).
219 See id. at *5; see also, e.g., Castillo v. Barr, 449 F. Supp. 3d 915,
922-23 (C.D. Cal. 2020) (finding deliberate indifference against ICE
214
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York were unaware of or ignored problems with applying a
deliberate indifference rule in non-criminal cases, but were
willing to order relief nonetheless.220 Setting aside how they
actually conducted their merits analyses, courts reviewing ICE
detention had an easier time reaching these issues because
administrative exhaustion requirements were less imposing.221
The CDC Interim Guidance remained influential, even in
the ICE cases. If a prisoner’s medical condition fell within the
“increased risk of severe illness from COVID-19” or “might be
at an increased risk” categories from the Guidance, then these
courts were more likely to order relief.222 In Ferreyra v. Decker,
for example, the court granted a preliminary injunction in
favor of ICE detainees who had medical conditions such as
asthma, emphysema, and diabetes—noting that “CDC
guidelines provide that people with asthma, or other
respiratory problems are at a heightened risk of severe illness
or death from contracting COVID-19.”223 If, on the other hand,
the prisoner’s medical condition was not so designated, then
some courts were less likely to grant the requested relief.224
For reasons that remain unclear to us, New Jersey federal
court emerged as a vanguard for decision-making in ICE
detention cases. Judges there began to use a three-category
approach to triage relief for people in ICE custody, depending
on whether the people were: (1) COVID-negative and not in the
special vulnerability categories; (2) COVID-negative but in the

facility).
See, e.g., Avendaño Hernandez v. Decker, No. 20-CV-1589 (JPO),
2020 WL 1547459, at *1 (S.D.N.Y. Mar. 31, 2020) (conducting
deliberate indifference analysis to grant release); Barbecho v. Decker,
No. 20-CV-2821 (AJN), 2020 WL 1876328, at *1 (S.D.N.Y. Apr. 15,
2020) (same); Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL
2612199, at *8 (S.D.N.Y. May 22, 2020) (same); Basank v. Decker, No.
20 CIV. 2518 (AT), 2020 WL 1953847, at *9-*12 (S.D.N.Y. Apr. 23,
2020) (same).
221 See, e.g., Castillo, 449 F. Supp. 3d at 921 (relaxing exhaustion
requirement because constitutional claims were not within
jurisdiction of administrative tribunal).
222 Kevin M. A. v. Decker, 457 F. Supp. 3d 445, 451 (D.N.J. 2020)
(granting relief); see also sources collected in notes 223 & 225, infra
(listing cases). But see, e.g., U.S. v. Salinas, No. CR H-19-309, 2020
WL 4352606, at *4 (S.D. Tex. July 29, 2020) (denying relief to “at
risk” detainee).
223 Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 2612199, at
*1 (S.D.N.Y. May 22, 2020).
224 See, e.g., Jose M. C. v. Tsoukaris, No. CV 20-6236 (KM), 2020 WL
3249097 (D.N.J. June 16, 2020) (denying relief where petitioner was
found not to be “higher risk”).
220

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special vulnerability categories; and (3) COVID-positive.225
Judges entertaining ICE litigation generally refused discharge
to people in the first category, sometimes with caveats about
how the result could change if circumstances at the facility
did.226 Courts were more willing to invoke the federal
constitution in favor of discharge for people in the second
category, provided there were ways to protect state interests
upon release.227 Courts were usually unwilling to discharge
people in the third category—those with COVID-19—on the
theory that they would present too much of a danger to public
health, by which courts seem to have meant the health of
people who were not in custody.228
The decisional law involving ICE detention also deviates
from the typical pattern of constitutional avoidance because
there is no standard statutory discharge mechanism; the
Constitution was the only option. Judges entertaining
challenges to pretrial detention, by contrast, ordinarily had
access to statutory discharge remedies—recourse to
constitutional law was largely unnecessary.229 The unusual
willingness to recognize constitutional violations in ICE
detention cases was, therefore, a confluence of two different
factors: (1) the non-criminal status of the detention meant that
there was a lower threshold for constitutional injury, and (2)
there was no statutory alternative for discharge remedies.

See, e.g., Romeo S.K. v. Tsoukaris, No. CV 20-5512 (JMV), 2020
WL 2537647, at *5 (D.N.J. May 18, 2020), report and
recommendation adopted, No. CV 20-5512 (JMV), 2020 WL 4364297
(D.N.J. July 29, 2020) (developing categories); see also Oscar P. C. v.
Tsoukaris, No. CV 20-5622 (KM), 2020 WL 4915626, at *9 (D.N.J.
Aug. 21, 2020) (using framework); Desmond K. B. v. Decker, No. CV
20-6884 (KM), 2020 WL 4530003, at *7 (D.N.J. Aug. 6, 2020) (same);
Nicole B. v. Decker, No. CV 20-7467 (KM), 2020 WL 4048060, at *7
(D.N.J. July 20, 2020) (same); Jose M. C. v. Tsoukaris, 467 F. Supp.
3d 213, 224 (D.N.J. 2020) (same).
226 See, e.g., Nicole B., 2020 WL 4048060, at *7 (“The petitions of
detainees in the first category (no particular risk factors) have
generally been denied.”); Romeo S.K., 2020 WL 2537647, at *5
(including caveat about changed circumstances).
227 See, e.g., Nicole B., 2020 WL 4048060, at *7 (noting that petitions
of persons with risk factors “have been granted or denied depending
on the circumstances—especially, the level of the risk to the prisoner
under conditions at the institution”).
228 See, e.g., Romeo S.K., 2020 WL 2537647, at *5 (“Yet, once a
detainee tests positive, the public also has an interest in not
introducing additional cases into the general public.”).
229 See, e.g., supra note 188 (federal pretrial detention statute). Cf,
e.g., United States v. Lee, 451 F. Supp. 3d 1, 8 (D.D.C. 2020)
(rejecting due process challenge to pretrial detention).
225

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*

*

For non-criminal detention categories, courts gravitated
towards a plaintiff-friendly constitutional standard. Some
courts continued to rely on the deliberate indifference
framework, but others relied—faithfully, in our view—on Bell’s
rule against treatment that amounts to punishment. Federal
litigation involving these categories therefore resulted in more
orders to release medically vulnerable people in ICE custody,
and in more orders for larger-scale reductions in facility
population. They also produced more orders to improve facility
conditions, which we discuss next.
B. Changed Conditions
Along with discharge, people in custody often sought orders
for defendants to adopt health-protective practices—that is, to
change facility conditions. Discharge is actually a prerequisite
to many such practices, because overcrowding makes them
otherwise impossible.230 The dominant rights associated with
requests for changed conditions arose under the federal
constitution or the ADA.231 Ordering remedies for violations of
those rights, unlike ordering statutory discharge under a
pretrial or compassionate release provision, often required
courts to make guilt-suggestive findings against institutions
that some appeals courts were reluctant to make.
The CDC Interim Guidance loomed over conditions
litigation. Institutions that complied with the Guidance were
typically inoculated against coercive relief.232 Plaintiffs,
however, did obtain orders for certain mitigation measures that
went beyond the CDC recommendations, such as: staff
retainage necessary to segregate facility residents, testing
necessary to identify outbreaks and triage treatment, and
psychiatric resources necessary to protect the community’s
mental health.233 Some temporary relief also directed that
See 2020 NRC Report, supra note 9, at 3 (“[D]ecarceration is an
appropriate and necessary mitigation strategy to include in the
COVID-19 response in correctional facilities[.]”).
231 See Section I.B.2, supra.
232 See, e.g.,Duvall v. Hogan, No. CV ELH-94-2541, 2020 WL 3402301,
at *13 (D. Md. June 19, 2020) (holding evidence suggests defendants
were following CDC guidelines and denying emergency motion for
mitigation); Roman v. Wolf, 2020 WL 2188048, *1 (9th Cir., May 5,
2020) (staying injunction to extent it exceeded CDC guidelines); In
Re: The Petition of the Pa. Prison Soc’y, 2020 WL 3116883 (Pa. Apr.
3, 2020) (ordering facilities to comply with CDC Guidance).
233 See, e.g., Carranza v. Reams, No. 20-cv-00977-PAB, 2020 WL
2320174 (D. Colo. May 11, 2020) (granting request to segregate
medically vulnerable persons); Gray v. Cty. of Riverside, 5:13-cv00444 (C.D. Cal. April 16, 2020) (granting order requiring physically
230

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defendants follow CDC recommendations to, among other
things, identify and monitor at-risk detainees, provide
additional staff and detainee training, circulate PPE and
hygiene products, develop protocols for testing and isolation,
and practice appropriate social distancing.234 When jails had
nominally robust policies but failed to enforce them, some
courts were also willing to escalate remedies to ensure
meaningful implementation.235 (Over time, many of these
orders were reversed on appeal.236)
Many courts required compliance with the CDC Interim
Guidance, and no more. In a representative case, Seth v.
McDonough,237 the federal district court issued one such
injunction.238 In that case, a Maryland county jail had
attempted some compliance—it had provided additional soap
and increased temperature checks239—but those measures fell
short of the Interim Guidance. The court concluded the jail
“implemented no functional plan to afford [high-risk] detainees
any additional screening, supervision, segregated housing, or
any like measure.”240 As a result, the judge entered a narrow
injunction designed only to protect high-risk prisoners.241
For cases involving constitutional violations, injunctive
remedies requiring health-protective practices were more far
common than collective discharge orders.242 In part because
lower courts were, relatively speaking, more willing to order
broader relief that entailed more ongoing judicial involvement,
distanced housing, segregation of medically vulnerable people, and
enhanced mental health resources for those quarantined). But see
Mays v. Dart, No. 20-CV-2134, F.Supp.3d, 2020 WL 1812381, (N.D.
Ill. Apr. 9, 2020) (denying request to segregate).
234 See, e.g., Ahlman v. Barnes, 445 F. Supp. 3d 671, 694 (C.D. Cal.
2020) (ordering spacing, communication protocols, provision of
sanitary implements and access to showers and laundry, the wearing
personal protective equipment, handwashing, temperature checks,
and rapid medical response); Seth v. McDonough, 461 F. Supp. 3d
242, 265 (D. Md. 2020) (ordering comparable relief); Swain v. Junior,
No. 20-cv-21457-KMW, 2020 WL 1692668 (S.D. Fla. Apr. 7, 2020)
(same); Banks v. Booth, 459 F. Supp. 3d 143, 161-63 (D.D.C. 2020)
(same). But see Sanchez v. Brown, 2020 WL 2615931, at *12 (N.D.
Tex. 2020) (declining to impose CDC guideline compliance on jail for
fear of impinging on a legislative role and threatening federalism).
235 Banks v. Booth, No. 20-CV-849 (CKK), 2020 WL 1914896, at *9
(D.D.C. Apr. 19, 2020).
236 See Section III.A.4, infra.
237 461 F. Supp. 3d 242, 253 (D. Md. 2020).
238 See id. at 265.
239 See id. at 251-52 (temperature checks); id. at 254 (soap).
240 Id. at 254.
241 See id. at 254-55.
242 See Section II.A.1, supra.
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such orders also triggered more appellate blowback. In Ahlman
v. Barnes,243 the Orange County jail case, the district court had
refused a collective discharge remedy, but found that its
practices likely violated the federal constitution and ordered
stricter health-and-safety measures.244 The district court noted
that the CDC Interim Guidance “is not a statute, nor is it a
mandate,”245 but nevertheless treated it like “expert medical
advice regarding measures needed to limit the spread of
COVID-19.”246 The failure to implement those measures, the
district court reasoned, was deliberate indifference.247 The
Supreme Court ultimately stayed this injunction,248 mooting
the remedy.
Ahlman wasn’t the only case where appellate courts
intervened to disable conditions-improvement orders entered
by federal district judges. In Mays v. Dart,249 the district court
entered a preliminary injunction against Chicago’s Cook
County jail. The court ordered the jail to end group housing
and double-celling, and to improve sanitation, testing, and
provision of personal protective equipment.250 The Seventh
Circuit substantially narrowed that injunction, refusing to
order altered facility protocols for housing and cell
population.251 The story was the same when lower courts
ordered remedies for non-constitutional violations, too.
Valentine v. Collier252 was a case involving a Texas geriatric
prison—the “Pack Unit”—in which the district court judge
entered preliminary and permanent injunctions based on ADA
violations.253 The Fifth Circuit ultimately paused all injunctive
relief pending appeal, finding that the suit was unlikely to
succeed: the plaintiffs had failed to properly exhaust
administrative remedies.254

445 F. Supp. 3d 671 (C.D. Cal. 2020).
See 445 F. Supp. 3d at 694-95. Specifically, the facility: housed
detainees in overcrowded dorms, holding cells, and common areas;
failed to provide people in custody with hygiene supplies; and
inadequately quarantined and tested exposed residents. See id. at
681-82.
245 Id. at 690.
246 Id.at 691.
247 See id. at 692.
248 See Barnes v. Ahlman, 140 S. Ct. 2620 (2020).
249 Mays v. Dart, 453 F. Supp. 3d 1074 (N.D. Ill. 2020).
250 See id. at 1099-1101.
251 See Mays v. Dart, 974 F.3d 810, 824 (7th Cir. 2020).
252 Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020).
253 Valentine v. Collier, 2020 WL 5797881, at *1 *34, 35 (S.D. Tex.
Sept. 29, 2020) (describing preliminary and entering permanent
injunction).
254 See Valentine, 978 F.3d at 153. The Fifth Circuit also held that the
243
244

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Thus, remedies ordering improved health-and-safety
practices pose challenges that are distinct from those ordering
discharge. Discharge remedies can be individualized by relying
on applicable statutes, but injunctions requiring improved
conditions usually represent collective relief that redounds to
the benefit of a particular facility population. The primary
rights for injunctive remediation arise under the federal
constitution or the ADA, both of which tend to require findings
about the insufficiency of institutional response—findings that
judges have been more hesitant to make. Faced with acute linedrawing problems and questions about institutional
competence, courts largely turned to the thin CDC Interim
Guidance for a standard of care.
C. Other Relief
During the COVID-19 pandemic, some people in custody
sought forward-looking relief that does not fit neatly into a
discharge-versus-conditions dichotomy. In such scenarios,
courts are not ordering discharge or improved health-andsafety practices per se; but they are often ordering process
auxiliary to conditions improvement or discharge.255
One of the most common secondary remedies was an order
for detention authorities to comply with judge-made process for
health-optimized release. For example, a federal court in
California ordered expedited consideration of compassionate
release requests made by people convicted of federal crimes—
entering an order that included a notification rule, as well as
requirements that eligibility be determined quickly and in light
of health risk.256 Some courts, however, were reluctant to
assume receivership roles requiring them to specify and
oversee process for discharge. In Russell v. Harris County,257 a
federal judge in Houston was clearly distressed by risks to a
pretrial detainee population being discharged at insufficient
Eighth Amendment claim would not succeed on the merits. See id. at
165.
255 See, e.g., In re Petition of Pennsylvania Prison Soc’y, 228 A.3d 885,
887 (Pa. 2020) (invoking equitable and supervisory power over lower
courts and holding that judges “should consult with relevant county
stakeholders to identify individuals and/or classes of incarcerated
persons for potential release or transfer.”); Foster v. Comm'r of
Correction, 484 Mass. 698, 730, 146 N.E.3d 372, 400 (2020)
(“Nonetheless, we see fit to address the situation under our
supervisory authority. Going forward, a judge shall not commit an
individual under G. L. c. 123, § 35, unless the judge finds that the
danger posed by the individual’s substance use disorder outweighs
the risk of transmission of COVID-19 in congregate settings.”).
256 See Torres v. Milusnic, 472 F. Supp. 3d 713, 746 (C.D. Cal. 2020).
257 See 454 F. Supp. 3d 624, 638 (S.D. Tex. 2020).
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rates,258 but was unwilling to require federal court to supervise
local judges adjudicating bail requests.259 The judge observed:
“[g]iven how this case differs from other COVID-19 litigation,
the court is operating on uncertain legal terrain with limited
guidance.”260
Some requests for secondary remediation were auxiliary not
to release protocols, but to conditions-improvement remedies.
In Gayle v. Meade,261 and in the shadow of constitutional law
barring deliberate indifference to detainee health, the federal
court had entered a preliminary injunction to improve
conditions in a Florida ICE detention facility.262 When the
plaintiffs credibly alleged non-compliance therewith, the court
appointed a Special Master to evaluate facility practices and
administer necessary relief.263 In North Carolina, a trial court
similarly appointed a Special Master to oversee correctional
compliance with conditions-related preliminary orders, after
finding that state officials were probably violating the state
and federal constitutions.264
Although much of this one-off remediation came after a
plaintiff prevailed in litigation that remained adversarial to the
end, some of it came by way of settlement— which resulted in
operational changes, collaborative monitoring, and expedited
release practices. In California, for instance, detainees
successfully modified an existing settlement agreement in
order to secure improved conditions of confinement.265 In
Colorado, a state court entered a consent decree regarding
conditions of confinement and speeding the parole process.266 In
See id. at 634 (“All fear that current processes are releasing too
few arrestees relative to new arrivals to stop the virus from spreading
in the Jail.”).
259 See id.
260 Id. at 635. In many localities, bond reduction rules were used to
shrink jail populations, sometimes quite dramatically, and often with
cooperation between among lawyers, prosecutors, and the court. See
Malia Brink, Hero Public Defenders Respond to Covid-19, CRIM.
JUST., Summer 2020, at 39, 41.
261 No. 20-21553-CIV, 2020 WL 4047334, at *2 (S.D. Fla. July 17,
2020).
262 See id. at *1.
263 See id. at *3.
264 Jordan Wilkie, Special Master to Make NC Prisons Comply,
Carolina Public Press, Dec. 4, 2020; Preliminary Injunction, NAACP
v. Cooper, No.: 20 CVS 500110 (Gen. Ct. Just. Sup. Ct. June 16,
2020), at https://www.acluofnorthcarolina.org/sites/default/files/20
_cvs_500110_order_on_pi_with_cos.pdf.
265 See Coleman v. Newsom, No. 01-CV-01351-JST, 2020 WL 1675775
(E.D. Cal. Sep. 22, 2020).
266 See Tracy Harmon, Prison Coronavirus Protocols Mark Lawsuit
258

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Connecticut, a federal court entered a settlement agreement
between those in correctional custody and the state department
of corrections, with the latter agreeing to improve conditions,
make best efforts to release vulnerable people, and cooperate
with a five-member monitoring panel charged with supervising
the remedies.267
*

*

*

As COVID-19 exploded across the country, it forced courts
to reconcile the health of people in custody with competing
interests. Before we draw more generalized conclusions about
the litigation, a few observations about the decisional law
stand out. Across right-remedy combinations, the proximity to
crime seemed to matter quite a bit; people in ICE custody
mounted the most successful class action cases, followed by
those in pretrial detention. Detainees convicted of crimes faced
the longest odds. Judges generally erred on the side of limited
relief, leaning when possible on individualized statutory
remedies or limited constitutional holdings in favor of narrow,
vulnerable sub-classes. Judges were especially reluctant to
make substantive medical judgments, and incorporated the
CDC Interim Guidance as a standard of care.
III. THREE CONCLUSIONS
In Part III, we draw three descriptive conclusions from the
observations we recited in Part II, and each has implications
for the way American institutions design legal responses to
pandemics. First, the judicial response to COVID-19 in
America’s detention facilities conformed to theories about how
courts recalibrate rights in view of expected remedies and vice
versa. Second, the judicial response was unusually dependent
on the efficient operation and compliance of sclerotic and
under-funded bureaucracies. Third, the judicial response
reflected deeply entrenched assumptions about detainee
danger and the equal moral worth of people in America’s
prisons—assumptions shared by executive and legislative
actors, who also failed to intervene. All three of these
conclusions suggest a broader point: a better judicial response
to the next pandemic will require better tools and better
institutional partners.
A. Calibrating equilibrium

Settlement Agreement, PUEBLO CHIEFTAIN, Nov. 24, 2020 (describing
decree).
267 See Kelan Lyons, ACLU: CT Prisons Not Complying with Terms of
COVID Lawsuit Settlement, CT MIRROR, Oct. 29, 2020 (describing
agreement).
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The COVID-19 prisoner litigation was a moment of
profound re-calibration of right and remedy, and the
adjustment happened quickly. The decisions evince widespread
discomfort with the relief projected for the incumbent rightremedy combinations—combinations not configured with an
eye to pandemic threat and that would have produced broad
and potentially unpopular discharge. Reflecting a desire not to
be the institutional bearer of that decision-making
responsibility, judges often avoided intrusive relief by changing
the way crucial rights and remedies were defined and applied.
1. A note on remedial calibration
We generally agree with the view that rights and remedies
do not develop in siloes; there is no such thing as a Platonic
right that “exists” independent of real-world implementation
and enforcement.268 Without wading too far into the outer-most
registers of the debate over “rights essentialism,”269 suffice it to
say that we start from a premise that the matrix of remedial
implementation can influence the development of rights, and
vice versa.
Even those familiar with Professor Daryl Levinson’s
canonical attack on rights essentialism might forget that one of
the primary case studies in that work was federal judicial
oversight of prison conditions.270 Over time, the remedial
initiative of district judges caused the Supreme Court to reduce
wattage of the underlying constitutional rights.271 Remedies
based on Eighth Amendment violations placed federal district
judges in receivership roles that made the modern Court
especially uncomfortable,272 and the Court responded by upping
the deliberate-indifference showing necessary to trigger
remedial authority.273 The process by which remedies and
rights influence one another is complex, and mediated by the
rules and practices of both national and sub-national actors—
but the important point is that a seemingly broad right can
See generally Daryl J. Levinson, Rights Essentialism and
Remedial Equilibration, 99 COLUM. L. REV. 857 (1999) (setting forth
leading framework for thinking about rights-remedies equilibrium).
see also Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585,
678–79 (1983) (describing it as “inevitable that thoughts of remedy
will affect thoughts of right, that judges’ minds will shuttle back and
forth between right and remedy”).
269 See Levinson, supra note 268, at 858 (defining phenomenon); see
also, e.g., Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L.
REV. 1, 52 (1979) (offering account of right-remedy relationship often
described as essentialist).
270 See Levinson, supra note 268, at 878-82.
271 See id. at 881.
272 See id.
273 See infra notes 300 to 318 and accompanying text.
268

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trigger remedy-shrinking behavior from judges, executives, and
legislatures; and seemingly broad remedies can cause
lawmaking institutions to shrink rights.
The COVID-19 prisoner litigation demonstrates the more
traditional process by which a constitutional right of
uncomfortable breadth causes remedial restriction,274 but also
the process by which the fear of broad remedies prompts
restrictive interpretations of the right.275 These processes were
expressed in several interrelated judicial tendencies: to conduct
risk tradeoffs through more individualized non-constitutional
remedies;276 to adopt procedural rules that avoided
constitutional interpretation;277 to focus any constitutional
relief on people in non-criminal detention who were perceived
to pose less danger;278 to triage remedies towards the most
medically vulnerable people;279 and to increase the influence of
and raise the bar for “deliberate indifference” so as to spare
detention facilities the costs of court-ordered safety
improvements.280 We discuss these tendencies below.
2. Remedies
Virtually every remedial shift reduced expected relief—
sometimes in the form of delay, when time was of the essence.
To achieve such a shift, some courts would thicken remedial
limitations on class-action litigation, especially for plaintiff
classes seeking discharge.281 Federal courts usually cut off
discharge pathways that avoided the PLRA, and then
interpreted PLRA’s remedial limits restrictively.282 In the
limited instances where they entertained a discharge request
without subjecting it to the PLRA, they often found ways to
reproduce preclusive exhaustion requirements.283
Again, the PLRA contains strict limits on litigation seeking
“prisoner release orders,” including a thick exhaustion
requirement and extended process before idiosyncratic threejudge federal tribunals.284 Statutorily excepted from these
See Section III.A.2, supra.
See Section III.A.3, supra.
276 See supra notes 184 to 202 and accompanying text.
277 See supra notes 169 to 183 and accompanying text.
278 See Section II.A.3, supra.
279 See, e.g., supra notes 225 to 228 and accompanying text.
280 See infra notes 300 to 318 and accompanying text.
281 See Section II.A.1, supra.
282 See supra notes 171 to 173 and accompanying text; infra notes 284
to 287 and accompanying text.
283 See supra notes 174 to 175 and accompanying text; infra note 289
and accompanying text.
284 These are actually two stacked requirements. There is one
provision that formally requires administrative exhaustion for all
274
275

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requirements are “habeas corpus proceedings challenging the
fact or duration of confinement in prison.”285 Even when
detainee classes sought release in what they denominated as
habeas petitions, many courts simply ruled that a habeas
request for such relief did not “challeng[e] the fact or duration
of confinement.”286 And once they held that detainee-class
litigation was subject to the PLRA, courts generally refused to
relax the PLRA release-order prohibitions or (in changedcondition suits) exhaustion requirements,287 with some
exceptions for scenarios where the procedure that required
exhausting was wholly unavailable.288 Even when courts
treated detainee-class complaints as habeas litigation, judges
still read procedural doctrines in ways that thwarted
meaningful collective relief—applying prudential exhaustion
requirements or holding that person-to-person variation in
habeas claims precluded class treatment entirely.289
The treatment of habeas discharge litigation illustrates a
broader phenomenon, too: courts simply avoided remedies that
required them to reach constitutional questions at all. If they
were available, courts flocked to non-constitutional remedies
for health-and-safety risks, and those non-constitutional
remedies tended to reinforce the individual scale of relief.290 In
pretrial litigation, for example, many courts relied on the
statutory provisions permitting individualized release for
health risk.291 Courts generally discharged people convicted of
crimes using individualized provisions for compassionate
release or home confinement.292
3. Rights
When courts reached constitutional issues—either because
remedial limitations were insufficiently preclusive or because
statutory substitutes were unavailable (ICE detention)—the
judicial response, both generally and especially in criminal
detention cases, shrank the constitutional right. Courts readily
cases subject to the PLRA, see 42 U.S.C. § 1997e, and another that
requires the failure of a less intrusive remedial order when a prisoner
seeks discharge, see 18 U.S.C. § 3626(a)(3).
285 18 U.S.C. § 3626(g)(2).
286 Id. at § 3626(a)(3).
287 See, e.g., Maney v. Brown, 464 F. Supp. 3d 1191, 1207 (D. Or.
2020) (holding that due to PLRA restrictions precluded order to
reduce prison population).
288See, e.g., McPherson v. Lamont, 457 F.Supp.3d 67, 76 (D.Ct. May 6,
2020) (concluding exhaustion requirements futile including due to
risk inmates would contract COVID-19 prior to completing process).
289 See Section II.A.1, supra.
290 See Section II.A.2, supra.
291 See supra notes 190 to 194 and accompanying text.
292 See supra notes 195 to 198 and accompanying text.
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accepted that the virus entailed objective risk, given its spread
and severity.293 The most significant mechanism for shrinkage
was the deliberate indifference requirement—which judges
applied in non-criminal contexts and defined to impose a
higher intent threshold.
In Farmer v. Brennan,294 the Court held that, “even if the
harm ultimately was not averted,” there is not an Eighth
Amendment violation if officials were merely negligent, and so
they must recklessly disregard the risk.295 Under Farmer,
deliberate indifference can exist on something less than “acts
or omissions for the very purpose of causing harm or with
knowledge that harm will result.”296 Negligence alone does not
support a finding of constitutional harm, but Farmer made
clear that knowing risk and failing to respond reasonably
does—that there is deliberate indifference when prisoners “face
a substantial risk of serious harm and [when detention
officials] disregard[] that risk by failing to take reasonable
measures to abate it.”297
There were two ways judges subtly restricted the
constitutional right. The first was not so much about the
content of the deliberate indifference rule as it was about the
scope of its application. COVID-19 accelerated a trend in which
courts applied the deliberate indifference framework—
established to separate hard treatment into categories of
acceptable and unacceptable punishment—in non-criminal
detention contexts, where the constitution forbids punishment
entirely. The deliberate indifference framework thereby
displaced the Bell framework, which was the due process test
ordinarily used to analyze non-criminal custody.
The second way judges subtly restricted underlying rights
was by shifting the meaning of deliberate indifference itself.
Almost all courts recognized the general threat that COVID-19
posed, and most recognized the threat to detention facilities.298
Where courts insisted on applying the deliberate-indifference
framework, the presence of constitutional harm turned on what
health-protective responses precluded a deliberate indifference
finding. In Farmer’s terms, it turned on how one defines
“reasonable measures” to abate viral risk. Some lower courts
See, e.g., Wilson v. Williams, 961 F.3d at 840 (finding respondents
aware of the risk of COVID-19 where fifty-nine inmates and forty-six
staff tested positive, and six inmates had died); see also supra notes
157 to 163 and accompanying text.
294 511 U.S. 825 (1994)
295 Id. at 834, 844-45.
296 Id. at 835.
297 Id. at 847.
298 See supra notes 153 to 159 and accompanying text.
293

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essentially reasoned that the sheer magnitude of pandemic
risk, and awareness thereof, meant that the failure to take
sufficiently health protective measures was recklessly
indifferent299—which is consistent with the way Farmer
defined the concept. These cases, however, were more exception
than rule.
Many judges simply converted the carefully crafted
definition of deliberate indifference, which required awareness
of risk and a failure to respond reasonably, into a requirement
of subjective intent or knowledge.300 The most extreme version
of this view was captured in Wragg v. Ortiz,301 with the court
reasoning that, if detention officials “subjectively believe their
containment measures are the best that they can do,” the
Eighth Amendment inquiry is over.302 That interpretation of
deliberate indifference is unfaithful to Framer, and makes
relief almost impossible. Mental states approaching subjective
intent are extremely difficult to prove because there the crucial
information is almost always within the exclusive control of the
defending party,303 and that party is often the beneficiary of
presumptions about candor and regularity.304

See, e.g., Banks v. Booth, 459 F.Supp.3d 143, 157-59 (D.D.C. Apr.
19, 2020) (finding plaintiffs established likelihood of success in
showing deliberate indifference where plaintiffs provided evidence
defendants “are aware of the risk that COVID-19 poses to Plaintiffs’
health and have disregarded those risks by failing to take
comprehensive, timely, and proper steps to stem the spread of the
virus”).
300 See, e.g., Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020)
(“[T]he district court cited no evidence to establish that the
defendants subjectively believed the measures they were taking were
inadequate.”); Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020)
(“Though the district court cited the Defendants’ general awareness of
the dangers posed by COVID-19, it cited no evidence that they
subjectively believe the measures they are taking are inadequate.”);
Maney v. Brown, 464 F. Supp. 3d 1191, 1212 (D. Or. 2020) (“Plaintiffs
do not cite to any evidence to establish that Defendants subjectively
believed the measures they were taking were inadequate.”) (internal
citations and quotation marks omitted).
301 Wragg v. Ortiz, 462 F. Supp. 3d. 476 (D. N.J. 2020).
302 Id. at 507.
303 See Michael Cameron Friedman, Cruel and Unusual Punishment
in the Provision of Prison Medical Care: Challenging the Deliberate
Indifference Standard, 45 VAND. L. REV. 921, 947 (1992); Mitchell
O’Shea Carney, Cycles of Punishment: The Constitutionality of
Restricting Access to Menstrual Health Products in Prisons, 61 B.C. L.
REV. 2541, 2580 (2020); see also Sharon Dolovich, Canons of Evasion
in Constitutional Criminal Law, in The New Criminal Justice
Thinking (Sharon Dolovich and Alexandra Natapoff eds. 2017)
(calling attention to the “problem of other minds” in prisoner
299

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Judges using the deliberate-framework also narrowed the
constitutional rights by odd reference to judicially intuited side
constraints. In many cases, they simply asked whether a
detention site’s response was reasonable in light of side
constraints—without asking whether the side constraints were
themselves reasonable. The absence of bold action was
generally considered a reasonably practical constraint, so the
failure to take it was usually rejected as a ground for a
deliberate indifference finding.305 For example, courts often
refused to find deliberate indifference when that finding would
have required broad discharge. A representative Eleventh
Circuit opinion emphasized that “the inability to take positive
action [in the form of decarceration] likely does not constitute a
state of mind more blameworthy than negligence.”306 Nor was
this reasoning limited to refusal-to-decarcerate scenarios. It
carried the day in cases where plaintiffs alleged deliberate
indifference for failure to facilitate social distancing.307 And
despite the CDC Interim Guidance providing that COVID-19
testing programs should include asymptomatic prisoners, many
judges found that a refusal to muster resources necessary to do
so was not deliberate indifference—because facilities simply
could not be expected to pay to conduct facility-wide testing.308
Why not?

conditions litigation).
See Friedman, supra note 303, at 947; David A. Super, The New
Moralizers: Transforming the Conservative Legal Agenda, 104
COLUM. L. REV. 2032, 2071 (2004); see also Dolovich, supra note 303,
at 140-41 (discussing the effects of these things on review of decisionmaking at detention facilities).
305 But see Banks v. Booth, 459 F. Supp. 3d 143, 158 (D.D.C. 2020)
(aware that circumstances might reveal relief to have been
unnecessary, nevertheless ordering partial relief on the ground that
the facility was “failing to take comprehensive, timely, and proper
steps to stem the spread of the virus”).
306 Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (internal
citations and quotation marks omitted).
307 See, e.g., Plata v. Newsom, 445 F. Supp. 3d 557, 563–64 (N.D. Cal.
2020) (finding where defendants did not implement social distancing,
they were not deliberately indifferent because they “implemented
several [other] measures”); Wragg, 462 F. Supp. 3d. at 509 (“That
physical distancing is not possible in a prison setting, as [Plaintiffs]
urge, does not an Eighth Amendment claim make.”).
308 See Wragg, 462 F. Supp. 3d. at 506. But see Savino v. Souza, 459 F.
Supp. 3d 317, 331–32 (D. Mass. 2020) (finding failure to test more
than twenty detainees, or conduct any contact tracing, would likely
qualify as deliberate indifference); Coreas v. Bounds, 457 F. Supp. 3d
460, 463 (D.Md. Apr 30, 2020) (finding “lack of any testing for
COVID-19” constituted deliberate indifference where defendant had
not “actually tested anyone to date”).
304

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4. Appellate Re-calibration
Within a judicial system, appeals courts necessarily play
policy-making roles that trial courts do not.309 The pattern of
policy-making evident in the pertinent appellate decisions is
quite consistent with the view that COVID-19 provoked a
moment of re-calibration. Across jurisdictions, appellate courts
expressed discomfort with versions of rights and remedies that
would permit substantial relief in lower courts—especially
discharge.
Start with the U.S. Supreme Court. In Ahlman v. Orange
County,310 the federal district court had preliminarily enjoined
practices in a jail housing 3,000 prisoners, which had
experienced over 300 cases.311 Among the practices forming the
basis for the preliminary injunction were: crammed
transportation; insufficiently-distanced dayroom socializing,
telephone communication, and sleeping; failure to provide
enough soap and other protective material; widespread denial
of diagnostic testing; and an inability to separate symptomatic
prisoners for treatment and subsequent isolation.312 The
district court found the risk “undeniably high” and determined
that any compliance with actual jail policy was “piecemeal and
inadequate.”313 In entering the preliminary injunction, the
federal district court determined the facility likely violated the
Eighth Amendment and the ADA.314 The Ninth Circuit twice
refused to stay the injunction.315
The Supreme Court, however, stayed the injunction
pending further litigation, effectively mooting the remedy.316
There was no reasoning of note in the Court’s order. Four
justices would have denied the State’s application to dissolve
the injunction.317 Justice Sotomayor wrote a dissent reciting
the problems at the jail, emphasizing that the likelihood of
subsequent Supreme Court review was so low that the Court’s

See James J. Brudney Corey Ditslear, Designated Diffidence:
District Court Judges on the Courts of Appeals, 35 LAW & SOC’Y REV.
565, 568 (2001).
310 140 S.Ct. 2620 (Aug. 5, 2020).
311 Ahlman v. Barnes, 445 F.Supp.3d 671, 694-95 (C.D. Cal. 2020).
312 See id.
313 Id. at 688.
314 See id. at 692.
315 Ahlman v. Barnes, No. 20-55568, 2020 WL 3547960, at *1 (9th Cir.
June 17, 2020).
316 See 140 S.Ct. at 2620.
317 See id.
309

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intervention was unwarranted, and arguing the facility could
not show irreparable harm.318
Justice Sotomayor’s position in Ahlman is somewhat
noteworthy because it was Justice Sotomayor who had
exercised in-chambers power to stay an injunction against
Elkton Federal Correctional Institution (“FCI-Elkton”) without
even referring the question to her colleagues.319 (The Sixth
Circuit later vacated the injunction on the grounds that the
plaintiffs had failed to show deliberate indifference.320) The
difference in Justice Sotomayor’s view of the two pieces of
litigation may be explained by reference the fact that the
Ahlman injunction was for changed conditions,321 whereas the
FCI-Elkton injunction was for discharge.322
The tendency of appeals courts to pare back trial-court
relief was evident in the decision-making of the federal circuits,
too. We mentioned the FCI-Elkton injunction, which the Sixth
Circuit vacated on the ground that there was no deliberate
indifference.323 In another example, a federal district judge had
issued a preliminary injunction against Michigan’s Oakland
County Jail, having found that it had fallen short of the CDC
Interim Guidance.324 The Sixth Circuit quickly vacated the
district court’s injunction, however, concluding the jail had
“responded reasonably” to COVID-19 and there was no
deliberate indifference.325 Indeed, there were instances of
appeals courts stepping in to limit trial remedies in the Third,
Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits.326
See id. at 2620 (Sotomayor, J. dissenting).
See Mark Williams, Warden, et al., Applicants v. Craig Wilson, et
al., 207 L. Ed. 2d 168 (June 4, 2020).
320 See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020).
321 See Ahlman, 140 S.Ct. at 2619 (Sotomayor, J. dissenting).
322 See Wilson, 961 F.3d at 844.
323 See Wilson, 961 F.3d at 844.
324 See Cameron v. Bouchard, 462 F. Supp. 3d 746, 784 (E.D. Mich.),
on reconsideration, No. CV 20-10949, 2020 WL 2615740 (E.D. Mich.
May 22, 2020), and vacated, 815 F. App’x 978 (6th Cir. 2020).
325 See Cameron v. Bouchard, 815 F. App’x 978, 988 (6th Cir. 2020)
326 See, e.g., Hope v. Warden York Cty. Prison, 972 F.3d 310 (3d Cir.
2020) (finding immigration detainees failed to show substantial
likelihood of success on claim that government was deliberately
indifferent to their serious medical needs); Valentine v. Collier, 2020
WL 6039993, *5-8 (5th Cir. October 13, 2020) (granting prison’s
emergency motion for stay of preliminary injunction, finding district
court had incorrectly applied Eighth Amendment deliberate
indifference standard); Marlowe v. LeBlanc, 810 Fed. App’x. 302 (5th
Cir. 2020) (staying temporary restraining order regarding conditions
in state prison, requiring compliance with prison’s own internal
policies and that facility submit a plan to ensure social distancing and
318
319

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We underscore that there is a meaningful inference to be
drawn from the results in appeals courts, and their necessary
status as policy-makers. Moreso than trial courts, appeals
courts calibrate right and remedy in ways that control
subsequent inquiries in that jurisdiction. As a result, they
order and deny relief with an eye more towards what they
believe to be a workable long-term equilibrium. It is therefore
unsurprising to see those courts engaged in more conspicuous
re-calibration—either by restricting the scope of the right, or
the remedy. We are aware of no cases in which an appeals
court awarded relief that district court denied.
*

*

When COVID-19 hit America’s detention sites, courts were
immediately confronted with incumbent right-remedy
combinations that, if straightforwardly applied, would have
required substantial intrusions on detention policy and
operations. Although judges leaned heavily on nonconstitutional law tailored to individualized inquiry, many still
had to wrestle with how sincerely to honor constitutional
precedent configured for different risks. As one might expect,
the lower-court adjudication was quite deferential to detention
authorities, but there were cases deciding that detention
conditions violated the federal constitution—especially when
the plaintiffs were in non-criminal custody.327
Insofar as it was more hostile to broad constitutional relief,
appellate decision-making had a different feel. In cases where
remedies involved intrusive relief, senior tribunals dissolved
health-protective TROs and preliminary injunctions, stayed
permanent injunctions pending appeal, ordered further fact
hygiene practices); Cameron v. Bouchard, 815 Fed.App'x. 978, 985
(6th Cir. 2020) (vacating preliminary injunctive relief, citing Wilson v.
Williams, supra, and finding that the jail “acted reasonably” to
prevent the spread of COVID-19); Wilson v. Williams, 961 F.3d 829,
845-846 (6th Cir. 2020) (vacating the district court’s preliminary
injunction, in case brought by medically vulnerable federal prisoners,
holding “petitioners had not shown a likelihood of success on the
merits of their Eighth Amendment claim, because they had not
satisfied the subjective component of the deliberate indifference
inquiry”); Mays v. Dart, 974 F.3d 810, 813 (7th Cir. 2020) (partially
staying district court’s preliminary injunction, finding district court
failed to afford proper deference to the Sheriff’s judgment regarding
safety and security); Roman v. Wolf, No. 20-55436, 2020 WL 2188048,
at *1 (9th Cir. May 5, 2020) (staying preliminary injunction except to
the extent necessary to comply with CDC Interim Guidance); Swain
v. Junior, 958 F.3d 1081 (11th Cir. 2020) (finding district court erred
in awarding injunctive relief because jail could not be expected to “do
the impossible.”).
327 See Section II.A.3, supra.
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finding before deciding issues against jailers, interposed
exhaustion rules, and remanded for determinations pursuant
to more deferential standards.328 Simply put, the appellate
courts limited the scope of winnable relief, either by paring
back substantive rights or by restricting remedies.
B. Bureaucratic Limitations
Prisoner-conditions adjudication was also defined by the
institutional limits of judicial action, evident when controlling
law required courts to defer to and work through sclerotic
detention bureaucracies. Although orders to put people behind
bars require the state to overcome multiple institutional
vetoes,329 the collective action problem works the other way
thereafter. It may take a village to imprison someone, but it
also takes a village to get them out. Courts had a difficult time
taking effective action because of bureaucratic friction up and
down the custody chain, both before and after moments of
judicial intervention. Multiple sites of resistance and
dysfunction meant that securing timely judicial relief at
sufficient scale was exceptionally challenging.
Strategies that depend on coordinated and decisive
bureaucratic initiative are probably bad ones. Detention
facilities are underfunded, and that shortfall has clear effects
on public health measures.330 Correctional personnel are also
the lowest-status workers in law enforcement—with little
training, high turnover, and lower pay.331 The health and
safety of people in custody is therefore subject to the layered
decision-making of a short-staffed and modestly trained
professional community with limited oversight and
accountability.332 COVID-related discharge often required the
input of these frontline facility officials, as well as records unit
officers, mental health professionals, senior corrections
commissioners, prison physicians or other health providers
capable of giving appropriate referrals, parole commissioners,
and risk panelists.333
See Section III.A.4, supra.
To subject someone to criminal custody, for example, requires the
effective sign off of police, multiple prosecutors, a jury, and the
judiciary.
330 See NRC Report, supra note 41, at 31.
331 See John J. Gibbons & Nicholas De B. Katzenbach, Confronting
Confinement A Report of the Commission on Safety and Abuse in
America's Prisons, 22 WASH. U. J.L. & POL’Y 385, 485 (2006); Susan P.
Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L.
REV. 639, 666 n.119 (1993).
332 See Michele Deitch, Special Populations and the Importance of
Prison Oversight, 37 AM. J. CRIM. L. 291, 303-04 (2010).
333 See Kovarsky, supra note 2, at 86 n.84.
328
329

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Judicial activity predicated on the functional operation of
that bureaucratic ecosystem—an ecosystem often working at
some institutional remove from correctional leadership—is at a
significant disadvantage. Detention bureaucracies complicated
relief because they slowed exhaustion that must usually be
complete before judicial intervention begins, because their
health-and-safety practices were given deference typically
accorded to administrative action, and because so much of the
judicial relief awarded had to work through the problematic
bureaucracies themselves.
1. Bureaucracy and exhaustion
On the front end, much of the relief available in federal
courts requires that detained complainants have exhausted
remedies—institutional remedies, administrative remedies,
and, in the case of federal litigation, state judicial remedies.334
Exhaustion often required detainees to make futile requests
that consumed precious time. If the exhaustion requirements
did not require that the detainee have received an adverse
decision, then they usually required them to wait until
requests for relief timed out.335
Moving a detainee expeditiously through administrative
process necessary to exhaust a claim requires multiple
moments of bureaucratic initiative. Delay by any actor in the
chain slows exhaustion, and any judicial relief contingent
thereupon.336 Exhaustion requirements may be particularly
insurmountable during a pandemic, when overwhelmed prison
administrators will struggle to respond on timetables necessary
to afford meaningful relief. For example, in the federal system,
many compassionate release requests went unanswered for
months; when they were answered they were typically
denied.337

See supra notes 137 to 146 and accompanying text.
Cf, e.g., Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998)
(“[A]vailable administrative remedies are exhausted when the time
limits for the prison's response set forth in the prison Grievance
Procedures have expired.”).
336 See Andrea C. Armstrong, No Prisoner Left Behind? Enhancing
Public Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV.
435, 461 (2014); Kovarsky, supra note 2, at 88 nn.84-85 and
accompanying text.
337 See Keri Blakinger and Joseph Neff, Thousands of Sick Federal
Prisoners Sought Compassionate Release. 98 Percent Were Denied.
THE
MARSHALL
PROJECT
(Oct.
7,
2020),
https://www.
themarshallproject.org/2020/10/07/thousands-of-sick-federalprisoners-sought-compassionate-release-98-percent-were-denied.
334
335

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2. Bureaucracy and deference
Another problem centered on deference models operating on
assumptions
about
administrative
deliberation
and
338
expertise.
Not only do deference practices bake in
assumptions about the integrity of administrative process and
the desirability of its outcomes,339 there is also a longstanding
tradition of deference to the public heath decision-making of
local and state authorities.340 During the pandemic, however,
the predicates for routinized deference were absent. The faith
typically placed in administrative leadership ended up as
rather unjustified—as one might expect when object of
deference was the ability of prison officials to manage once-ina-lifetime pandemic risk.
Whereas deference to administrative expertise would
ordinarily be justified on the theory that science should be
privileged in the decision-making,341 the deference to the CDC
Interim Guidance appeared to have the opposite effect. Judges
fixated on the Interim Guidance—which was general,
minimalist, and precatory342—as a scientific lodestar.343 Setting
aside its generality and nonmandatory status, the Interim
Guidance was inadequate because it was not paired with the
need to reduce overcrowding—a pairing that WHO and NAS
reports emphasized.344 Judges, in short, used the Interim
Guidance as a means to discount information presented by
most other public health experts.345
3. Bureaucracy and process
The struggles associated with the intense bureaucratic
presence were nowhere more evident than when courts had to
enforce bureaucratic compliance. Under these circumstances,
judicial interventions were aimed at the bureaucratic
substructure necessary to produce health-protective outcomes
rather than in the form of orders for discharge or changed
See Eric Berger, Comparative Capacity and Competence, 2020 WIS.
L. REV. 215, 236 (2020).
339 See id. at 234.
340 See Andrew Brunsden, Hepatitis C in Prisons: Evolving Toward
Decency Through Adequate Medical Care and Public Health Reform,
54 UCLA L. REV. 465, 497 (2006); Friedman, supra note 303, at 947.
341 See Harold H. Bruff, Legislative Formality, Administrative
Rationality, 63 TEX. L. REV. 207, 241 (1984); Emily Hammond
Meazell, Deference and Dialogue in Administrative Law, 111 COLUM.
L. REV. 1722, 1727 (2011).
342 See supra notes 71 to 77 and accompanying text.
343 See supra notes 232 to 241 and accompanying text.
344 See supra notes 66 to 69 and accompanying text.
345 See id.
338

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conditions per se. Many of these interventions placed judges in
precisely the receivership roles that have historically made the
Supreme Court uncomfortable.346 Recall Gayle v. Meade, in
which a federal court had to appoint a Special Master just to
ensure that an ICE facility complied with prior remedial
orders.347
The need for judges to guarantee the integrity of
bureaucratic decision-making was especially prominent in
several pieces of litigation attacking practices at federal
correctional institutions. Some of the formal legal rules in the
federal system were favorable, at least for certain detainee
categories seeking individualized relief. The First Step Act,
enacted in 2018, had already created new avenues for
compassionate release.348 In March 2020, the CARES Act
vested the Justice Department with other broad discharge
powers, built on existing home confinement and compassionate
release authority.349 With respect to home confinement, the
Attorney General issued implementing directives to the BOP,
ordering federal correctional facilities to use the new statutory
tools to secure protection for older people with preexisting
medical conditions.350 Memorializing those directives in April,
the AG singled out the need for expeditious action at FCIOakdale (LA), FCI-Danbury (CT), and FCI-Elkton (OH).351
Despite
discharge-friendlier
authority,
bureaucratic
resistance within the BOP quickly necessitated judicial
involvement. At the top levels, BOP further limited the
statutorily identified groups eligible for home confinement,352
See supra note 272 and accompanying text.
See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 4047334, at *3
(S.D. Fla. July 17, 2020).
348 18 U.S.C. § 3582(c)(1)(A).
349 See Coronavirus Aid, Relief, and Economic Security (“CARES”)
Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
350 See Clare Hymes, Barr Tells Federal Prisons To Send Inmates
Home in Response to Coronavirus Outbreak, CBS News (Mar. 27,
2020), https://www.cbsnews.com/news/attorneygeneral-william-barrbureau-of-prisons-send-inmates-home-coronavirus-covid-19/
[https://perma.cc/5ZFC-H8YQ].
351 See Attorney General William Barr, Memorandum for Director of
Bureau of Prisons (Apr. 3, 2020), https://www.politico.com
/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000
[https://perma.cc/VXN2-SF8A].
352 See Federal Bureau of Prisons, COVID-19 Action Plan: Phase Five
(Mar 31, 2020),
https://www.bop.gov/resources/news/20200331_
covid19_action_plan_5.jsp.
352 See Clare Hymes, Amid COVID-19 Threat, Inmates and Families
Confused by Federal Guidance on Home Confinement Release, CBS
NEWS (Apr. 24, 2020), https://www.cbsnews.com/news/amid-covid-19threat-inmates-and-families-confused-byfederal-guidance-on-home346
347

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and gave limited guidance as to how to use the compassionate
release provisions in COVID-19 cases.353 There was substantial
friction at lower bureaucratic levels, too. A federal judge had to
issue a temporary restraining order against FCI-Danbury,
which failed “to take [the AG’s order and corresponding
legislation] seriously.”354 At that facility, there were 241
compassionate release applications during the first six weeks of
the COVID-19 emergency, and none were granted.355 A federal
judge called the BOP’s discharge procedures “Kafkaesque.”356
Even when subject to a judicial order, some facilities “made
only minimal effort to get at-risk inmates out of harm’s way,”357
and the appetite for ongoing judicial enforcement was less than
an inch deep. A month after a federal judge issued a
preliminary injunction against FCI-Elkton, the warden
had still failed to discharge a single person.358 The federal
district court entered another order further directing
compliance, but that order was stayed pending appeal by the
U.S. Supreme Court and later reversed by the Sixth Circuit.359
When a federal judge dismissed a comparable suit about
activity at FCI-Oakdale, she disparaged the class action as an
attempt to make her a “de facto ‘super’ warden.”360
C. Detention Exceptionalism
The pandemic required legal institutions to rethink the
operation of several constitutional rights, yet there is
something unique in the tone and decision-making of COVID19 detention cases. This “detention exceptionalism” was, we
strongly suspect, attributable to entrenched beliefs about the
safety risks posed by, and moral worth attributed to, people in

confinement-release/.
Compassionate release legislation permitted officials to release
individuals if “extraordinary and compelling reasons warrant such a
reduction[.]” 18 U.S.C. § 3582(c)(1)(A). See also Wilson v. Williams,
No. 4:20-CV-00794, 2020 WL 2542131, at *4 (N.D. Ohio May 19,
2020) (describing BOP guidance on compassionate release criteria,
consisting of a list of non-exclusive factors).
354 Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 427 (D. Conn.
2020).
355 See id.
356 United States v. Scparta, No. 18-CR-578 (AJN), 2020 WL 1910481,
at *1 (S.D.N.Y. Apr. 20, 2020).
357 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 2542131, at *2
(N.D. Ohio May 19, 2020).
358 See id.
359 See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (appellate
disposition); Williams v. Wilson, 2020 WL 2988458 (Mem) (2020)
(Supreme Court action).
360 Livas v. Myers, 2:20-cv-00422-TAD-KK (W.D.LA. April 22, 2020).
353

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American detention facilities. One does not have to look hard to
find supportive evidence.
Compare the Supreme Court treatment of detainee’s rights
with its treatment of personal rights in other stress-tested
contexts. In Roman Catholic Diocese of Brooklyn v. Cuomo,361
the Supreme Court voted 5-4 to enjoin enforcement of a New
York rule concerning occupancy limits for religious services.362
The New York rule had limited the permissible size of religious
gatherings, which were in turn pegged to the size of the
physical space involved.363 As mentioned, the Court
acknowledged that its justices “are not public health experts”
and that they should “respect the judgment of those with
special expertise and responsibility in this area,” but
nonetheless declared that “even in a pandemic, the
Constitution cannot be put away and forgotten.”364 In a
noticeable deviation from a pattern of minimalist intervention
on constitutional issues, the Court decided the matter even
though New York had already relaxed restrictions to permit
larger religious gatherings.365
Roman Catholic Diocese of Brooklyn, and the general
category of decision-making associated with it,366 demonstrates
a contrast between the treatment of constitutional rights in
detention litigation, on the one hand, and the treatment of
constitutional rights in other contexts, on the other. Vulnerable
detainees incapable of protecting themselves through
autonomous
decision-making
bear
partially-enforced
constitutional rights, while religious groups capable of selfprotection can expect full enforcement of rights to religious
practice and expression—justified by grand references to the
uncompromising application of constitutional principles during
emergencies. We believe that such detainee exceptionalism
reflects views that: (1) people who have spent time in custody
pose a substantially elevated danger to the community; and (2)

141 S. Ct. 63 (2020).
See id. at 69.
363 See id. at 66.
364 Id. at 68.
365 See Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 68.
366 Exemptions from generally applicable health-and-safety rules are
gaining traction in the lower courts, too. Relying on Roman Catholic
Diocese of Brooklyn, the Sixth Circuit—which vacated the FCI-Elkton
remedies—preliminarily enjoined the Toledo County Public School
District’s generally applicable order closing school facilities, because
it resulted in closing religious schools. See Monclova Christian
Academy v. Toledo-Lucas County Health Dept., No. 20-4300 (6th Cir.
2020), at https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0392p06.pdf.
361
362

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the health of such people is somehow worth less than the
health of other community members.
1. The perception of danger
Inflated perception of safety risk plays a clear role release
practices across institutions. By “perceived safety risk,” we
mean to describe the perceived risk of releasing a detainee into
the general population. Perception of safety risk would, for
instance, explain the relative litigation success enjoyed by ICE
detainees, and the relative failures experienced by those in
custody because they were convicted of crimes.367
The literature critical of mass incarceration shares a
common empirical insight: the American public, and the
institutions that translate its punishment preferences, overestimate the criminality that detention averts.368 Imprisonment
does not perform any of the offense-reduction functions nearly
as well as people once believed—not with respect to the
incapacitation or specific deterrence of the person in custody,
and not with respect to the general deterrence of other
people.369 These effects are clearly non-existent when the
imprisonment is some increment of an already-long sentence,
and when it involves an older detainee.370 Nevertheless, the
belief that more detention improves public safety persists,371
and it explains why even the broadest decarceration initiatives
often exclude sentence reductions for people convicted of
violent offenses.372

See Part II.A.3. supra.
Cf., e.g., Jennifer E. Copp, The Impact of Incarceration on the Risk
of Violent Recidivism, 103 MARQ. L. REV. 775, 782 (2020)
(summarizing
modern
research
on
relationship
between
imprisonment and recidivism as “suggest[ing] that prison is not more
effective than non-custodial sanctions at reducing recidivism”);
Thomas S. Ulen, Law and Subjective Well-Being, 82 U. CHI. L. REV.
1753, 1772 (2015) (referring to “accumulating empirical evidence”
that suggests smaller-than-believed causal relationship between
incarceration and deterrence).
369 See Mirko Bagaric, Dan Hunter, Gabrielle Wolf, Technological
Incarceration and the End of the Prison Crisis, 108 J. CRIM. L. &
CRIMINOLOGY 73, 94-95 (2018).
370 See Guyora Binder & Ben Notterman, Penal Incapacitation: A
Situationist Critique, 54 AM. CRIM. L. REV. 1, 14-15 (2017)
(lengthening sentences); John Monahan et. al., Age, Risk Assessment,
and Sanctioning: Overestimating the Old, Underestimating the
Young, 41 LAW & HUM. BEHAV. 191, 192 (2017) (older offenders).
371 See Binder & Notterman, supra note 370, at 30.
372 See J.J. Prescott, Benjamin Pyle, Sonja B. Starr, Understanding
Violent-Crime Recidivism, 95 NOTRE DAME L. REV. 1643, 1643 n.1
(2020) (collecting sources).
367
368

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Perceptions of safety threat indeed seemed to drive certain
decision-making patterns. Recall that courts were most willing
to invoke constitutional law and to order collective discharge in
ICE detention cases,373 where the purpose of detention was not
to punish or otherwise prevent criminality, but to ensure
review of alleged immigration violations. On the other hand,
courts were least willing to intervene in cases involving people
convicted of crimes and sentenced to prison time. They were
willing to order individualized release in certain cases, but the
pace and mix of releases demonstrate that perception of
recidivism risk remained a major driver of judicial
intervention.
The danger-constrained approach to prison discharge
severely limited the response to pandemic risk, because it
limited the ability to sufficiently decarcerate. Judges can order
statutory discharge only for detainees that the legislature has
declared eligible for such relief.374 Most releases therefore
involved older people, or medically vulnerable people convicted
of lesser crimes.375 But most people who are convicted and
serving prison time do not have that profile; they are serving
longer sentences for violent or otherwise serious criminality.376
Under criteria adopted by many states, for example, people in
custody because they were convicted of violent crimes are
simply ineligible for early release.377
And although courts were willing to order individualized
release for convicted detainees, they were categorically
unwilling to order remedies that would have required broader

See II.A.3.
See Dara Lind, The Prison Was Built to Hold 1,500 Inmates. It
Had Over 2,000 Coronavirus Cases, PROPUBLICA (June 18, 2020),
https://www.propublica.org/article/the-prison-was-built-to-hold-1500inmates-it-had-over-2000-coronavirus-cases.
375 See, e.g., Ann E. Marimow, Sick, Elderly Prisoners are At Risk for
COVID-19. A New D.C. Law Makes It Easier For Them To Seek Early
Release, Wash. Post (Dec. 30, 2020), https://www.washingtonpost.
com/local/legal-issues/sick-elderly-inmates-coronavirusrelease/2020/12/29/5342816c-3fcd-11eb-8db8395dedaaa036_story.html
376 See Prescott et al., supra note 372, at 1648; see also 2020 NRC
Report, supra note 9, at 57-58 (concluding that there is “little
evidence” that parole release, compassionate release, or other early
release measures successfully reduced prison populations”).
377 See Cecelia Klingele, Labeling Violence, 103 MARQ. L. REV. 847
(2020); see also Mirko Bagaric et. al., Nothing Seemingly Works in
Sentencing: Not Mandatory Penalties; Not Discretionary Penalties-but
Science Has the Answer, 53 IND. L. REV. 499, 523 (2020) (discussing
with respect to federal prisoners).
373
374

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discharge. They refused to order discharge per se,378 and they
were extraordinarily reluctant to order health-protective
practices to which prisons objected on security grounds.379
Opinions refusing relief against prisons are replete with nonspecific concerns about safety risk, and generally fail to grapple
with the empirical fact that those concerns are grossly
exaggerated. It therefore comes as no surprise that prisons
were uniquely unable to achieve population reduction
necessary to slow COVID-19 spread.380
The decisional treatment of jails and other sites of pretrial
detention lands somewhere in the middle, but it still
demonstrates the judicial focus on perceived safety risk. In
1984, Congress expressly directed federal courts to consider
public safety in pretrial bail determinations, and the Supreme
Court approved that criterion three years later.381 A great deal
of data nonetheless captures how poorly judicial officials
predict the pretrial risk, and how heavily those officials err on
the side of detention.382 Releasing tranches of pretrial detainees
poses little threat to public safety,383 but judicial intervention
at American jails remained quite sensitive to exaggerated
risk.384
All of this is to say that, as we begin to search for reasons
why courts second-classed rights to detainee health and safety,
we can think of a good place to start looking. The pattern of
COVID-19 detainee decisions reflect a longstanding and
generalized idea that releasing people from correctional
See Section II.A.1, supra.
See supra notes 306 to 308 and accompanying text.
380 See 2020 NRC Report, supra note 9, at 56-57.
381 See United States v. Salerno, 481 U.S. 739, 755 (1984).
382 See generally Brandon L. Garrett & John Monahan, Judging Risk,
108 CAL. L. REV. 439, 469-75 (2020) (discussing adoption of riskassessment tools to predict danger in pretrial decision-making); see
also Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90
TEX. L. REV. 497 (2012) (collecting sources showing that judges
predict pretrial crime poorly and noting potential of algorithmic risk
assessment instruments); Emily Berman, A Government of Laws and
Not of Machines, 98 B.U. L. REV. 1277, 1280 (2018) (discussing the
role of algorithmically-augmented prediction as central to bail
reform).
383 See Tiana Herring, Releasing People Pretrial Doesn’t Harm Public
Safety, PRISON POL’Y INITIATIVE (Nov. 17, 2020) (collecting studies),
https://www.prisonpolicy.org/blog/2020/11/17/pretrial-releases/.
384 See, e.g., Doug Colbert and Colin Starger, Bail Injustice In the
Time of COVID-19, THE BALTIMORE SUN (Sep. 7, 2020),
https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0906-bailreform-20200907-crgclw6s4jhavmmtdks4ebniqm-story.html
(documenting phenomenon in Maryland bail proceedings).
378
379

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custody poses broad safety risks. Enforcement of established
rights against health risk crashed into an extremely welldefined interest in release avoidance that underlies the
commitment to incarceration as a public safety strategy. The
enforcement of every right involves a tradeoff with some
countervailing interest—but few of those interests are as
triggering as that in the “the community’s” safety from people
accused or convicted of criminality.
2. The value of detainees
The other pillar of detention exceptionalism centers on the
moral worth of those in detention—specifically, the American
tendency to treat such people as less worthy of investment and
protection.385 It is fairly well established that, when people
assert that incarceration improves public safety, they mean
safety of the unincarcerated public.386 To the extent that prior
criminality predicts future offending, placing those who have
committed crimes behind bars does not prevent crime so much
as it does change where it happens.387 To the extent that
criminality is situational,388 incarceration is just as likely to
increase crime as it is to suppress it; detention is
criminogenic.389
The notion that incarceration improves social safety
persists not so much on the back of robust empirical support,
but because society cares less about the disutility of crime
victims who are themselves accused or convicted of criminality.
As Professors Guyora Binder and Ben Notterman put it, “Since
incapacitation strategies do not achieve utility, it seems
probable that they have prevailed and persist because of their
distributive or expressive effects.”390 Americans accept such
distribution and expression because, to put things bluntly, they
accept that people in custody are “without equal moral or
political standing.”391

See generally Sharon Dolovich, Exclusion and Control in the
Carceral State, 16 Berkeley J. Crim. L. 259 (2011) (linking mass
carceral practices to general view of prisoners’ sub-humanity).
386 See id. at 272-74.
387 See Susan Dimock, Criminalizing Dangerousness: How to
Preventively Detain Dangerous Offenders, 9 CRIM. L. & PHIL. 537, 540
(2015).
388 See Binder & Notterman, supra note 370, at notes 233 to 255 and
accompanying text.
389 See Joshua C. Cochran et al., Assessing the Effectiveness of
Correctional Sanctions, 30 J. QUANTITATIVE CRIMINOLOGY 317 (2014).
390 Binder & Notterman, supra note 370, at 43.
391 Dolovich, supra note 385, at 330.
385

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And so it is with COVID-19.392 Notwithstanding the
overwhelming risk associated with infection in such crowded
and under-protected environments, American institutions
resist discharge by vague reference to public safety.393 It seems
difficult to argue that such references to public safety involve
anything like a rigorous utilitarian calculation, because
COVID-19 presents health risks to detention communities that
almost certainly swamp risks associated with discharge.
Instead, these references to safety reflect a longstanding
American practice of discounting the interests and moral worth
of people in government custody. In the influenced discourse
and decision-making, the damage to detainee populations
simply matters less than damage to other communities.394
CONCLUSION
The way courts enforce detainee-protective rights and
remedies during the pandemic is different from the way they
enforce other rules. Imagine if, in Ahlman (the Orange County
jail case), the Supreme Court had applied the same logic it used
in Roman Catholic Diocese of Brooklyn (the New York religious
practice case). The prisoners-rights opinion would have
emphasized that, during a pandemic, an order refusing relief
“would lead to irreparable injury,” risking serious harm or
death.395 That Ahlman opinion would have declared that,
notwithstanding the “special expertise and responsibility” of
nonjudicial actors, “even in a pandemic, the Constitution
cannot be put away and forgotten.”396 That version of Ahlman
would have changed the result for people in the Orange County
detention facility, and it would have set a very different tone
for pandemic judging.
That version of Ahlman is a counterfactual. Instead, the
Supreme Court called for no such intervention, and judges
were part of a broader injustice forcing those in America’s
detention facilities to bear a staggering share of COVID-19
risk. Judges might have lacked the desire, imagination, or
Professor Dolovich draws a similar conclusion about some of the
judicial response. See Dolovich, supra note 2, at 5.
393 See supra note 380; see also Mays v. Dart, 974 F.3d 810, 813 (7th
Cir. 2020) (invoking safety risks).
394 See Dolovich, supra note 385, at 330-31.
395 Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020
WL 6948354, at *1 (U.S.
Nov. 25, 2020) (“They have shown that their First Amendment claims
are likely to prevail, that denying them relief would lead to
irreparable injury, and that granting relief would not harm the public
interest.”)
396 Id. at *3.
392

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confidence to order sufficiently health-protective remedies, but
we will never know—because they were constrained by limited
authority and bureaucratic resistance. As far as healthprotective detention practices go, judicial intervention is part of
a much larger process of institutional settlement—across
bureaucracies, between administrative subordinates and
leadership, and involving multiple branches of government.
Any entity within that ecosystem would struggle to produce
appropriate levels of health protection without concerted action
from others. Judges were no different, and perhaps they were
uniquely disadvantaged.
What to do going forward? How will these same problems,
for example, affect how America vaccinates the 2.3 million
people in detention? Before there can be any serious
improvement, bureaucracies and other nonjudicial institutions
will have to treat pandemic risk differently than other healthand-safety threats, developing statutes and regulations that
permit responsive action without cumbersome, individualized
showings of health risk. And American institutions will have to
overcome
their
empirically
dubious
resistance
to
decarceration—judges must be willing and able to order more
discharge, to coerce conditions improvement notwithstanding
the need for complementary release, and to assume
receivership roles necessary to ensure compliance with these
judicial orders. We hope that many will learn lasting lessons in
the flimsy judicial response to COVID-19 at American
detention sites, but we are dubious. Absent a broad social
commitment to more sweeping judicial remedies, the past will
remain a sad prologue.

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