• Vicky Cheng

Forgotten by their keepers: Ensuring Eighth Amendment protections during COVID-19


Graphic courtesy of Golden Cosmos

For more than a year now, correctional staff in most states have been eligible for the COVID-19 vaccine. They are prioritized given the key role they play in potentially introducing the virus into prisons and jails and bringing it out to surrounding communities. Despite recommendations from state and federal medical experts, many states chose to vaccinate correctional staff before inmates, claiming that vaccinated staff would be an effective barrier against the virus entering prisons. However, it has become clear that most prison staff have refused the vaccine—only 48% of staff across 36 states have received at least one dose—leaving vast numbers of incarcerated people defenseless and at unnecessary risk.


Low rates of vaccine uptake among correctional staff make it clear that withholding the vaccine from the incarcerated, or offering it only to a small fraction of the prison population, is senseless and unconstitutional. According to data from the Department of Justice, many inmates have chronic health conditions. Thus, they are at greater risk of experiencing severe, and often deadly, symptoms after contracting COVID-19. Not only do inmates face a 45% higher COVID-19 mortality rate than the general American population, but their rate of infection is also four times greater because of congregate living in prisons and jails and a lack of core public health measures, like regular sanitization and mask-wearing.

After the virus inevitably penetrated the walls of jails, detention centers, and prisons, people inside recognized the great, and perhaps unconstitutional, risk imposed on anyone left to face the pandemic while incarcerated. Therefore, quickly and en masse, inmates took to the courts. Cases sprung up in state and federal courts asking for any conceivable relief. In addition to the immense procedural barriers incarcerated plaintiffs face when bringing a claim, they must also overcome the exacting standard of the Eighth and Fourteenth Amendments when they sue under the Constitution. Consequently, a notable trend emerged: the courts deferred to informal guidelines issued by the Centers for Disease Control and Prevention (CDC). Whether relief was granted or denied, district courts afforded special legal significance to the CDC’s proclamations, allowing them to guide the application of discrete legal tests.


To establish an Eighth Amendment violation based on the conditions of confinement, individuals incarcerated post-conviction must show “deliberate indifference” to some basic need. The deliberate indifference test arose from the landmark Supreme Court case Estelle v. Gamble, where Gamble, a state prisoner within the Texas Department of Corrections, initiated a lawsuit against the Department for administrative segregation and delayed medical treatment after a cotton bale fell on him during his prison labor assignment. Almost twenty years later, the Supreme Court extended the deliberate indifference test under the Eighth Amendment in Helling v. McKinney, where a Nevada prisoner, whose cellmate smoked five packs of cigarettes per day, was denied of his request to be housed in an environment free of second-hand smoke. The Court held that McKinney raised a valid claim, but he would have to show that the risk complained about is not one that society chooses to tolerate and that the prison officials acted with deliberate indifference. Following these cases, for plaintiffs to claim a violation based on an institution’s response, or lack thereof, to COVID-19, they typically must show that the state was deliberately indifferent to a “serious” medical need, or that the state failed to address a substantial risk of future harm. In either case, there are two requirements for liability: an objectively serious deprivation and a subjective finding of mens rea of criminal recklessness.


COVID-19-era plaintiffs must navigate this landscape. To make out their claims, plaintiffs must show that COVID-19 represents a sufficiently serious harm or threat of harm. Further, Eighth Amendment claims require a showing of deliberate indifference to this harm. Given that the CDC is charged with studying, preventing, and mitigating the spread of disease in America, the judiciary has looked to the CDC’s relative expertise and guidelines aimed at managing COVID-19 in carceral settings. For the first objective element of serious harm or threat of harm, the CDC’s guidance has dominated courts’ inquiries during the pandemic. Despite data showing that simply existing in crowded, poorly ventilated, largely unsanitary prisons and jails puts one at heightened risk of contracting COVID-19, courts have required a more particularized showing beyond the general risk that all incarcerated people face. In other words, these courts would find no substantial risk of serious harm or unmet medical need unless petitioners have a COVID-19 vulnerability identified by the CDC.


For the second element of finding deliberate indifference, such that officials both knew of and disregarded a substantial risk of harm, courts have focused on the CDC’s guidelines that specifically address COVID-19 in prisons and jails. The CDC’s recommendations cover hallmarks of COVID-19 prevention, like personal protective equipment (PPE) and social distancing, but many of the recommendations include language like “consider” and contain feasibility carveouts given “individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” An institution’s reasonable response will insulate it from Eighth Amendment claims, thus compliance with the guidelines make an institution’s pandemic response at least presumptively reasonable, while noncompliance creates a weak presumption of unreasonableness.

Courts’ deference to the CDC runs counter to established constitutional precedent and significantly weakens Eighth Amendment guarantees. Courts, not administrative agencies, are the designated arbiters of constitutional questions. Additionally, the CDC’s prison guidance is itself deferent to prison administrators and their balancing of public health needs and penological ends. This prevailing regime of deference completely collapses constitutional inquiry, and while the virus continues to ravage through prisons, no courts, the CDC, nor prison officials will be forced to reckon with the constitutional rights of those incarcerated. Without a minimum of implementing preventative education and hygiene measures, maintaining reasonably sanitary conditions, identifying high-risk individuals, and providing broad vaccination and testing opportunities, society effectively leaves the incarcerated without help, remedy, or constitutional rights.

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