In ordinary times, the conditions on Rikers Island have been unconscionably bad. Now, with the rapid spread of coronavirus, they have become unconstitutionally deadly. Of the more than 1,300 cases that have developed in prisons, 370 come from Rikers alone. And the first inside to die of the disease, Michael Tyson, passed away on April 5th. Rikers Chief Physician, Dr. Ross MacDonald, broke from his practice of silent, anonymous service to bring attention to the fact that the virus spreads rapidly among inmates.

Chicago’s Cook County Jail may have recently surpassed Rikers in the morbid race to be the institutional epicenter of this pandemic; indeed, the jail was, by one account, the hottest spot in the country. Across the country the (reported) rate of infection within correctional facilities continues to rise and is multiple times that of the rate outside the walls.

The close living conditions (inmates sleep and shower far less than the recommended six feet apart), communal meal service, and supervised group movement inside these facilities points to a certain inevitability of rapid spread. And many, including Dr. MacDonald, have suggested the only humane recourse is to free a large number of detainees; UCLA Law’s Covid-19 Behind Bars Data Project helpfully tracks all formal calls for decarceration in real time. While there is no question such a policy would benefit public health, there remains uncertainty about whether we can invoke the Constitution to compelit. That is not to suggest the Constitution sits idly by and permits this continuing tragedy. As the Supreme Court wrote in the 1976 case of Estelle v. Gamble, the Eighth Amendment requires government “to provide medical care for those whom it is punishing by incarceration,” and “deliberate indifference to serious medical needs of prisoners” violates that constitutional mandate.

Frustrated attorneys across the country have turned to the courts to protect the constitutional rights and physical health of their incarcerated clients. In a recently filed complaint, the Public Defender Service for the District of Columbia and the American Civil Liberties Union (ACLU) charged the District of Columbia Department of Corrections with violating the Eighth Amendment by failing to take precautions against the spread of COVID-19 within its facilities. The complaint alleges a complete lack of gloves and masks throughout the facilities and inadequate undersupplied handwashing stations. The ACLU of Colorado similarly brought suit against the Sheriff of Weld County, alleging Eighth Amendment violations in the jail he oversees. In that complaint, the ACLU accurately states: “Deliberate indifference to the serious risk COVID-19 poses . . . infringes on the protection from cruel and unusual punishment.” An attorney with the New York Civil Liberties Union has suggested the conditions in the Manhattan Detention Complex could justify similar constitutional litigation. And, just this week, the United States Supreme Court weighed in for the first time, siding with the Texas prison system in upholding a stay of a district court injunction that would have required a geriatric prison to follow a specific sanitization and education protocol. The Court’s refusal to vacate a stay of the injunction seems a product of the preliminary procedural posture than any evaluation of the merits; indeed, Justices Sotomayor and Ginsburg took the somewhat unusual step of writing separately to stress that “federal courts . . . have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death.”

In the decades following the 1976 decision in Estelle v. Gamble, the Supreme Court has expounded upon what unconstitutional “deliberate indifference” to incarcerated persons’ health looks like. In the 1993 case of Helling v. McKinney, the Court held that forcing someone to be exposed to second-hand smoke at levels that pose a risk to his future health could provide the basis for an Eighth Amendment claim. In reaching that conclusion, the Court explained that finding a constitutional violation required it “to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” However, in a 1994 case, Farmer v. Brennan, the Court refused to find an Eighth Amendment violation unless the prison officials actually knew of, and disregarded, the risk to inmate health. From these cases we can derive three things that inmates alleging an Eighth Amendment violation based on exposure to COVID-19 will have to prove: (1) exposure to COVID-19 presents a substantial risk of future harm; (2) prison officials know about the exposure and the danger it presents; and (3) prison officials fail to take reasonable measures to mitigate the dangerous condition. Of these three things, the last is likely to be the focus of future legal battles.

In Helling, the Supreme Court indicated that knowingly exposing people to a dangerous chemical that causes a deadly disease (cancer) constitutes deliberate indifference. In the context of the COVID-19 pandemic, officials knowingly expose those in their custody to the deadly disease directly – by not isolating symptomatic individuals, by not properly sanitizing facilities, by not providing adequate personal protective equipment (PPE), by keeping individuals in overcrowded living situations. The Supreme Court has never fully considered such a case, though some lower federal courts entertained similar claims related to exposure to H1N1 (swine flu). Cases from New York and California support the conclusion that compliance with the Eighth Amendment turns on the perceived reasonableness of the preventative measures and treatment offered by prison officials. The courts dismissed cases where facilities sanitized contaminated areas, promptly brought people to the medical clinic after complaining of symptoms, and transferred people to outside medical facilities when conditions warranted. In one California case, a district court held that denial of an H1N1 test to one individual with a heart condition, which made the individual more susceptible to the disease, could potentially form the basis of a claim.  

Given the impossibility of social distancing in correctional facilities, in some situations the only reasonable response to COVID-19 will be decarceration of substantial portions of the prison population. Many states, including New York, have taken steps to reduce incarcerated populations. Yet, no state has admitted that the Eighth Amendment demands such measures; the first to do so, if any, will make a powerful statement about our constitutional values. To some such a stance may sound extreme, but the Supreme Court has ruled the removal of citizenship and the imprisonment of certain juveniles for life without parole unconstitutionally cruel and unusual. A conclusion that imprisonment in the time of COVID-19 constitutes unconstitutionally cruel and unusual punishment, at least for some offenses (nonviolent drug possession, for instance), is thus not that far off the mark.

Short of freeing people, the limited H1N1 precedent suggests that compliance with the Eighth Amendment turns on the decisions prison officials will make over the next few weeks. For those who remain behind bars even while others are released, the Eighth Amendment stands as their only legal protection against a deadly pandemic. And it demands more action be taken. At a minimum, these facilities need to improve sanitation, distancing, and access to testing and PPE. Anything less would be unconstitutional. As the Supreme Court itself made clear in 1993, “a remedy for unsafe conditions need not await a tragic event.”

COVID-19 has cast a spotlight on the unsafe, unhealthy conditions in our nation’s prisons. Unfortunately, this virus is by no means the only unreasonable and unconstitutional risk imposed upon the incarcerated, it is simply the most publicized. The large numbers of individuals behind bars in the United States suffer exposure to myriad environmental toxins at rates society should not, and does not, tolerate elsewhere—from radon in the air to lead in the water. Cases currently pending in federal courts demonstrate this. When we emerge from this crisis, we would do well to keep some attention on these continuing constitutional violations. As Justice Sotomayor reminded us this week, “a society’s worth can be judged by taking stock of its prisons, [and] [t]hat is all the truer in this pandemic.”  

Anthony Moffa is an Associate Professor at the University of Maine School of Law where he teaches constitutional law and environmental law, among other subjects.