Heather Chang*

The outbreak of the Covid-19 pandemic in the Spring of 2020 required unprecedent changes. While business and individuals have adapted their policies and behaviors to reflect health and safety recommendations, the prison system remains rigid and dangerous. 

As of January 12, 2021, The Marshall Project reports that at least 343,008 prisoners tested positive for and 2,114 prisoners died of Covid-19. With reports across the country of inadequate medical supplies—to test, treat, and prevent the spread of Covid-19—and inadequate and cruel social distancing methods, the prison system’s failure to adapt its policies not only violates inmates’ human rights but also highlights the exploitation of inmates by corporate entities.

Human Rights Violations & The Eighth Amendment: Inadequate Healthcare and Solitary Confinement

Prisons currently lack the medical supplies and resources to test, treat, and prevent the spread of Covid-19. Further, prisons have begun using solitary confinement as a method of enforcing social distancing. This failure to provide adequate healthcare and the usage of solitary confinement may violate the Eighth Amendment. 

The Eighth Amendment forbids the infliction of “cruel and unusual punishment.” The Supreme Court has established that prisons must provide sufficient medical care for incarcerated persons and has further held that “deliberate indifference” to serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Court has also stated that that prison officials may be “liable for denying humane conditions of confinement . . . if they know that inmates face substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825 (1994). 

The prison system may have demonstrated this “deliberate indifference” by knowingly failing to provide adequate healthcare and continuing to house inmates in these unsafe conditions. In fact, several cases arguing this point have already been resolved in favor of prisoners. Cameron v. Bouchard, No. CV 20-10949, 2020 WL 2569868 (E.D. Mich. 2020); Thakker v. Doll, 451 F. Supp. 3d 358 (M.D. Pa. 2020); Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020). As such, these actions may constitute “cruel and unusual punishment” in violation of the Eighth Amendment.  

Further, usage of solitary confinement may also violate the Eighth Amendment. Reports in June 2020 found the number of state and federal inmates in solitary confinement increased dramatically from 60,000, before the Covid-19 pandemic, to 300,000. Given the lack of adequate medical supplies, those in solitary confinement often remain for extended, indeterminate periods of time. In July 2020, Forbes reported that New York inmates in the FCI Otisville satellite camp “has had its minimum-security camp inmates locked up in cells since mid-June, already twice the United Nations standard for cruel and inhumane” punishment. 

Forbes further found that “[d]uring lockdowns, prisoners can’t collect mail, medications or meals, and there’s often not enough staff to pick up the slack.” And that inmates are “locked in small cells for 23 hours each day of the week and 24 hours on the weekend.” These practices may violate the Eighth Amendment’s prohibition of cruel and unusual punishment. 

Although the Supreme Court has found the general practice of solitary confinement does not violate the Eighth Amendment, the Court stated that sentencing inmates to indeterminate periods of solitary confinement, coupled with prison conditions that pose a severe risk to their health and safety, constitutes cruel and unusual punishment. Hutto v. Finney, 437 U.S. 678 (1978). Given the lack of adequate Covid-19 medical care, and the prolonged, unspecified periods spent in solitary confinement, these Covid-19 pandemic confinement policies may violate the Eighth Amendment.

What Can Be Done?

Prisons must adapt their policies. In the short term, prisons can reduce their populations to help prevent the spread of Covid-19 and to maintain adequate treatment supplies.

Human Rights Watch (HRW) has published recommendations for adhering to Covid-19 health and safety standards, focused on decreasing the prison population. These recommendations aim to reduce prison populations so that “(1) all people in the facilities can engage in social distancing . . . without resorting to punitive conditions that resemble solitary confinement” and (2) facilities have “enough available space to put all people who are ill or close contacts of those who are ill in non-punitive isolation or quarantine with access to appropriate medical care.”

HRW suggests four categories of inmates for early release: (A) for inmates nearing the end of their sentence, (B) for the at-risk population, (C) for those held pretrial, and (D) for those jailed for technical violations of probation. HRW specifies that these types of inmates should not be released early if: (i) they are accused of a serious offense, (ii) if their release would pose a specific and known risk of harm to others, or (iii) they are a known risk to deliberately flee the jurisdiction to avoid prosecution. 

Adoption of these HRW suggestions would not only address immediate healthcare concerns but also help diminish the exploitation of inmates, a long-standing issue made even more apparent by the Covid-19 pandemic.  

Private corporations have used prison labor as a “cheap alternative to foreign outsourcing” for several decades. Inmates have provided goods previously to big name corporations, such as Starbucks, Victoria’s Secret and Whole Foods, and have been poorly compensated, to say the least—with the average wage being between 86 cents and $3.45 per day and at least five states paying nothing at all. As of May 2020, approximately 4,100 corporations profit from the American prisons and jails.

Further (and particularly egregious), nearly every U.S. state has utilized inmate labor in response to the Covid-19 pandemic: inmates are currently disinfecting contaminated hospital laundry and cleaning supplies, manufacturing protective safety equipment, and digging mass graves.  Given the lack of adequate healthcare in prisons currently, this practice of using inmates as a source of cheap labor both generally and to combat the Covid-19 pandemic is, at its best, incredibly unfair, and, at its worst, a modernized system of slavery—a sentiment parallel to those criticizing Nixon’s War on Drugs. 

Given that HRW suggestions would help enable prisons to ensure adequate treatment and prevention of Covid-19, without utilizing solitary confinement, and help reduce exploitation of inmate labor in the short term, these standards should be adopted. However, while this short-term solution provides inmates with immediate relief, Congress must implement long-term prison reform to address structural issues with labor exploitation and racial inequality. 

*J.D. Candidate (2022), University of Minnesota Law School