Document Type


Publication Date

Summer 2021


Many of the sites of the worst outbreaks of the disease caused by the novel coronavirus (COVID-19) are America’s prisons and jails. As of March 2021, the virus has infected hundreds of thousands of incarcerated people and well over two thousand have died as a result contracting the disease caused by the virus. Prisons and jails have been on perpetual lockdowns since the onset of the pandemic, with family visits suspended and some facilities resorting to solitary confinement to mitigate the virus’s spread, thereby exacerbating the punitiveness and harmfulness of incarceration. With the majority of the 2.3 million people incarcerated in the United States being people who identify as people of color, the virus’s tear through prisons and jails multiplies the burden of the pandemic on underrepresented communities, which the pandemic has already disproportionately impacted among the general population.

Since the pandemic began, incarcerated people and advocates have attempted to wield the law to protect prison and jail populations from the virus’s spread. Many have raised the issue in criminal law proceedings. For others, civil lawsuits have sought prisoner releases and the implementation in facilities of mitigation measures known to slow the virus’s spread. Most of these civil justice efforts have thus far been unsuccessful, as courts have concluded the plaintiffs sought relief under the improper legal mechanism, were procedurally barred from the relief they sought, or were unlikely to succeed on the merits of their claims as the law is interpreted.

The U.S. Constitution purports to protect incarcerated people from “cruel and unusual punishments” but has largely failed to offer protection during one of the most exceptional—indeed, unusual—moments in modern history. This Essay observes the impact of the first year of the pandemic on prisons and jails and the civil justice system’s failure to account for the deeply unusual environment the virus has created. Indeed, as the virus spreads at elevated rates in carceral settings, courts have effectively told us that this is, simply, punishment as usual.