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Excerpted From: Ariel Berkowitz, (Un)masking the Truth - The Cruel and Unusual Punishment of Prisoners Amidst the Covid-19 Pandemic, 37 Touro Law Review 347 (2021) (231 Footnotes) (Full Document)


ArielBerkowitzAndrea Circle Bear was a thirty-year-old mother, serving twenty-six months in prison for drug charges. Bear was also one of at least 2,515 inmates who died from the Coronavirus in a correctional facility by April 9, 2021, as a result of the Bureau of Prisons not taking necessary steps to reduce risk inside the prisons. In fact, Sharon Dolovich, the director of the COVID-19 Behind Bars Data Project, claims that Bear's death, and the other 2,514 deaths did not need to happen; these deaths were a result of the Bureau of Prison's “total unwillingness” to take steps to ensure a safe inhabitable environment.

The first purported case of the Coronavirus entering the United States, in the state of Washington, quickly resulted in panic and disarray. While the number of cases climbed rapidly among people in the United States, with over twenty-nine million testing positive for the Coronavirus infection from March 1, 2020 to April 9, 2021, a significant number of incarcerated inmates have contracted the Coronavirus as well. By April 9, 2021, at least 392,565 inmates in prisons in the United States tested positive for the illness. According to the Commissioner of Corrections' estimates, fifty percent of the inmates under the care and control of prisons are either over sixty years of age or have an underlying medical condition that puts them at a heightened risk for a severe case of COVID-19.

Amid the COVID-19 pandemic, various lawsuits claiming violations of prisoners' Eighth Amendment rights were filed against prisons as incarcerated individuals continue to contract the virus at alarming rates.

This Note has seven sections. Section II examines the history of airborne illnesses in prisons. Section III assesses inmates' constitutional rights and what is considered “cruel and unusual punishment” under the Eighth Amendment. Section IV of this Note discusses current prison regulations in place to protect inmates from contracting diseases and the medical treatment prisoners receive. Section V provides an analysis of whether those regulations have been complied with following the Coronavirus outbreak, including a case study of lawsuits filed by inmates against prisons since the start of the pandemic and argues that the medical treatment and prevention regulations have not been met. In Section VI, this Note proposes a solution to the issue and suggests the Supreme Court change the standard for cruel and unusual punishment in the prison system. This Note argues that prisons are failing to meet health regulations, which constitutes a violation of cruel and unusual punishment under the Eighth Amendment, because the treatment and care of inmates, amidst this global pandemic has demonstrated a deliberate indifference to the lives of prisoners.

[. . .]

There is no simple solution to avoid a health crisis like the Coronavirus pandemic. However, a lack of social distancing, unsanitary conditions, and overcrowding can be controlled with a broader standard of what constitutes cruel and unusual punishment in prisons. Although the court system serves as the body of interpreting the Constitution and applying the law to facts, it is inevitable that its decisions serve as goals for people to attain. Specifically, bodies who set even voluntary guidelines, like the NCCHC and prisons themselves, will be more inclined to pay attention to the health needs of inmates' and set standards themselves to avoid the spread of infectious diseases. As the number of complaints of cruel and unusual punishment against prison officials continues to climb amidst the Coronavirus pandemic, it is crucial that the courts begin to open their eyes and broaden the impossible to meet standard, so as to protect the right inmates have to health care and safety. No person should fear for his or her life each day as a result of the carelessness to basic human needs.

Touro College Jacob D. Fuchsberg Law Center, J.D. Candidate 2022; University of Maryland, B.A. in Government and Politics, minor in Law in Society, 2019.

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