In the ongoing litigation regarding prison conditions during the COVID-19 pandemic, one request of the litigants stands out: they want more soap. And sometimes—especially at the district court level—prisoners have been able to get that soap. In a Texas case, Valentine v. Collier, the district court ordered the prison to “[p]rovide [p]laintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing.” Similarly, in Swain v. Junior, a Florida district court required that the Metro West Detention Center “[e]nsure that each incarcerated person receives, free of charge . . . an individual supply of soap, preferably liquid as recommended by the CDC.”

The Center for Disease Control (CDC), and every other authority, has said that washing your hands with soap is one of the best and easiest ways to prevent transmission of COVID-19. The CDC has further recommended that correctional facilities “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing.” The problem is, under current Supreme Court precedent, it is hard to see that prisoners have a right to soap, soap which can help prevent them from contracting a deadly disease. This is why lawsuits (such as Valentine, Swain, and most recently Wilson v. Williams) that seemed so promising at the district court level, have almost immediately been stayed (in Valentine, the Supreme Court upheld the stay).

But the lawsuits have forced a greater recognition of the fact that many prison inmates routinely lack access to basic hygiene products. When they do have access to them, it is often only a small hotel sized bar of soap. Sometimes, if prisoners want more soap they can only get it if they pay for it (a survey of “price points” revealed a more than $2 price tag for prisoners to buy soap). Even in a prison already hit by a COVID-19 outbreak, inmates complain they “frequently run out of soap.”    

One article in the Atlantic, prompted by the recent round of COVID-19 prison lawsuits, called on “Congress and every state and municipal government” to “pass legislation” that gives prisoners access to “free soap.” But many prisoners cannot wait for governments to act (although many governments have, and some prisons may be doing a better job in response to litigation). When they don’t have enough soap, prisoners sue as a last resort. They argue that they have a right to soap. Do they?

To read the complaints and the resulting opinions in the latest round of prison conditions litigation, one immediately confronts a jurisprudence that has two dramatically contrasting sides. On one side is the lofty and “idealistic”  language used by courts rehearsing the constitutional standards.  Punishment cannot be “cruel and unusual” and prison conditions—like all conditions of confinement—must meet certain “standards of decency.”  Prisoners still “retain the essence of human dignity inherent in all persons,” and their “basic human needs” must be met.  At the very least, as the Supreme Court explained in Rhodes v. Chapman, the Constitution requires prisons to provide “the minimal civilized measure of life’s necessities,” a phrase that sounds nearly poetic. One might get the impression from these cases and phrases that prisons are held to a high standard. Indeed, one might conclude that if these phrases mean anything, they mean that prisoners should get soap, because this is part of what a decent, humane, and civilized society would give to those whom it imprisons.

One might think that until one confronts the other side of prison litigation jurisprudence, which professes a great sympathy for the “realities of prison administration,” or as then-Judge Kennedy put it in Spain v. Procunier, “the unenviable task of keeping dangerous men in safe custody under humane conditions.” It is not the job of the courts to tell wardens “how best to operate a detention facility” said the Court in Bell v. Wolfish. If wardens are honestly trying to make prisons liveable, courts repeatedly suggest this effort is enough—which, of course, does not translate into prisons providing soap, but again in trying to get the prisoners soap. That shows wardens have not been “deliberately indifferent.” (Click here for a discussion of other, similar cases.)

On the subject of soap, one passage from the Eleventh Circuit appeals court decision in Swain v. Junior, is especially striking and provides a poignant example of just the sort of deference courts are willing to give to prison administrators. In granting a stay of the district court’s injunction that ordered Metro West Decision Center to provide “free soap, preferably liquid” to all inmates, the Eleventh Circuit said that the district court had improperly “taken charge” of administrative decisions that were better left to the prison. By requiring that the prison “provide each Metro West inmate with an individual supply of soap and disinfectant products” the prison might “have to divert [those] high-demand supplies to Metro West, even though they may be more critical at another county facility.” Such meddling made the district court into a “super-warden,” a move, the appeals court added, that they had “repeatedly condemn[ed]” in the past.

The problem here is obvious. There cannot possibly be a right to soap if prisons are free to divert it from one place which has soap to another place which needs it even more. A right means that everyone deserves enough soap. In the words of one district court, “from a constitutional-law standpoint, it is difficult to believe that ‘do what you can, but if you can’t so be it’ satisfies a jailer’s constitutional obligation to take objectively reasonable steps to mitigate known risks to the life and health of people in his custody.”  Making sure all inmates have enough soap would seem to be one of those objectively reasonable steps. 

The need for soap lies at the “the crossroads” of “constitutional and carceral demands.” But there are too many ways for appeals courts to overrule district courts on the issue of substandard prison conditions, when those courts are afraid that they might “hamstring” wardens. If we want to start imagining how things might be different, so that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” we could do worse than start by thinking about soap. After all, one would have thought that given the importance of hygiene during the outbreak of a highly contagious disease, running a prison that is “minimally civilized” should mean that prisoners at least have a right to soap, preferably liquid.

Chad Flanders is professor of law at Saint Louis University School of Law.