COVID-19 IN CORRECTIONAL FACILITIES: EIGHTH AMENDMENT VIOLATIONS AND WHY VACCINE PRIORITY IS A NECESSARY IMMEDIATE REMEDY
By Avery Katz, Vol. 105 Staff Member
With the COVID-19 vaccine becoming more readily accessible, it is critical that society’s most vulnerable populations are accounted for as the world moves towards normalcy. The prison population must not be ignored. Despite holding some of the most vulnerable populations, the health and safety of people in prisons were disregarded by local state officials, which caused a rapid spread of the virus and resulted in a disturbing number of deaths. For this reason, it is critical that the constitutional rights of people in prisons be recognized and that lawmakers act now to remedy the harm that has been inflicted. First, this Post will discuss the conditions and spread of the virus in prisons. Second, this Post will analyze the violations of constitutional rights under the Eighth Amendment. Finally, this Post will advocate for the most pertinent remedy for people in prisons: rapid vaccine rollout.
I. THE EXTREME SPREAD OF COVID-19 IN CORRECTIONAL FACILITIES
Throughout the year, there was ample discussion amongst student attorneys in the University of Minnesota Law School Clinic programs regarding the rapid spread of COVID-19 in correctional facilities. Reading the news about the increasing COVID-19 numbers in prison facilities was already a shock—at Faribault in Minnesota, 62% of the inmate population had contracted COVID-19 and five had died—but hearing the fear in a client’s voice personalized the gravity of the situation. The concept of being trapped and exposed to an unknown virus without access to visitors, educational programming, and limited physical activity is unfathomable, especially considering the stir-crazy feelings many nonincarcerated individuals have endured while working from home.
Minnesota in particular has been a hub for COVID-19 transmission amongst the prison population. By December 2020, 3,000 people incarcerated in Minnesota prisons and 800 staff had tested positive for COVID-19—and this is not inclusive of county jails. Minnesota ranked sixth in the nation for prison infection rates per capita, with the rate over six times higher than that of the population outside of the prison system. The issue stems in part from the inability to isolate those that are sick. Inmates are subject to a confined indoor space with shared dorms, recreational rooms, bathrooms, and dining halls. While some inmates who test positive are sent to “isolate in segregation” (in other words, solitary confinement) other correctional facilities admit that there was no space to separate all of the positive inmates from the rest of the population. With outdated ventilation systems that circulate the same air and “open front doors with bars that make it difficult to stop transmission of particles” people in correctional facilities are trapped without protection from the spread of COVID-19.
II. THE LACK OF PROTECTION FROM COVID-19 IN CORRECTIONAL FACILITIES IS INDICATIVE OF EIGHTH AMENDMENT VIOLATIONS
While the catchphrase for the pandemic has been “these are unprecedented times,” precedential caselaw provides some insight into how correctional facility officials should handle the COVID-19 conditions. Based on previous cases, the treatment of inmates during the pandemic reflects serious issues regarding Eighth Amendment protections. Similar concerns have been discussed in the context of H1N1, otherwise known as “swine flu,” as a danger to incarcerated persons. Such cases indicate that COVID-19 will be analyzed within a similar framework.
Cases regarding the health and safety of incarcerated persons fall under an Eighth Amendment analysis. The Eighth Amendment states that cruel and unusual punishment shall not be inflicted. Based on this constitutional requirement, a prison official’s duty is to ensure “reasonable safety” of incarcerated people to avoid cruel and unusual punishment. When prison officials know of a substantial health risk to incarcerated individuals, they “cannot be held liable if they responded reasonably to the risk, even if the harm ultimately was not averted.” In order for a claim to be brought against a correctional facility for failure to respond reasonably, it must be shown that they are “knowingly and unreasonably disregarding” the risk currently and will in the future.
This Eighth Amendment standard regarding current COVID-19 conditions has been brought to light in the court system. The ACLU brought a class action suit for violations of the Eighth Amendment on behalf of the Butner Federal Corrections Complex. The ACLU claims that Butner failed to take “the most basic life-saving measures to protect incarcerated people from COVID-19” and neglected to preemptively protect the most vulnerable in the population. While the case is still in process, the federal prison system has responded by applying the Compassionate Release statute with the assumption that lowering the amount of people in the prison system will slow down COVID-19 transmission. Compassionate Release grants early release for older incarcerated people and those with significant health risks. However, the results of this have been minimal because the release numbers are capped at around 150 persons.
Additionally, a Minnesota judge indicated that Minnesota prisons had failed in this regard. The Minnesota prison system did not protect its most vulnerable populations nor determined effective ways of protecting these individuals before the outbreak ensued. Dr. Hasti of Hennepin Healthcare stated that the corrections facilities “failed to perform a duty clearly imposed by law,” which is to protect individuals in custody. The Minnesota ACLU lawsuit against the Department of Corrections in Ramsey County illustrates the conditions incarcerated people suffered: absence of social distancing, staff refusing to wear masks, confining individuals who are not sick with those who tested positive for COVID-19, denying symptomatic people access to testing, and connected ventilation that recirculated air throughout the building. Such conditions strongly suggest the correctional facility “knowingly and unreasonably disregarded” the risk of COVID-19 at the expense of incarcerated people’s lives. This case is also still in process, but the conditions at Minnesota prisons are indicative of Eighth Amendment violations.
III. VACCINE DISTRIBUTION SHOULD BE PRIORITIZED FOR INCARCERATED POPULATIONS
Because it is clear that the prison facilities have denied incarcerated persons basic constitutional rights, it is crucial that vaccines be issued to correctional facilities as early as possible. Because lawsuits regarding Eighth Amendment violations are in flux, it is imperative that incarcerated persons receive their vaccinations since they are a high-risk population. However, with the extremely high demand for the vaccine, this argument has been controversial.
For reasons regarding the proximity to large groups of people, inadequate medical care, and disproportionately high number of people with underlying conditions, incarcerated persons have an extremely high risk of contracting COVID-19. Experts, including the Center for Disease Control, have argued that incarcerated persons should have access to vaccinations at the same time as essential workers and first responders or higher. Additionally, the American Medical Association has stated that incarcerated persons should be in the first phase of vaccine rollout due to the fact that social distancing is nearly impossible in correctional facilities, making incarcerated people four times more likely to contract COVID-19 than the general public with a death rate that is twice as high.
The vaccine rollouts are determined on a state by state basis, which makes eligibility in the correctional system inconsistent. Some states have pushed back on the notion of providing vaccines to incarcerated persons in the first phase, claiming that “law abiding citizens” should have initial access. However, medical officials have noted that the issue is not about moral behavior and certain societal values, but rather about prioritizing the populations that are at highest risk of illness. And unlike older “law abiding citizens” that are still vulnerable, they have the option to avoid large populations whereas incarcerated persons have no control over their environment.
Minnesota has put incarcerated persons in phase 1B, 1C and 2, along with food service, retail workers, first responders, and public transit. While there is much to remedy in the legal system after the incorrigible treatment of incarcerated persons throughout this pandemic, for the current moment it is crucial that vaccines be prioritized for a population that has already suffered so much without any control over their health. Minnesota has followed through with this principle and other states should follow suit.
 Liz Sawyer, For Some Minnesota Prisoners, Vaccine a Turning Point in Grueling Fight with COVID-19, Star Trib. (Jan. 5, 2021), https://www.startribune.com/for-some-minnesota-prisoners-vaccine-a-turning-point-in-grueling-fight-with-covid-19/600006785/ [https://perma.cc/LTJ2-7PQZ].
 Kirsti Marohn, As Covid-19 Spreads in Minn. Prisons, Loved Ones Worry, MPR News (Dec. 8, 2020), https://www.mprnews.org/story/2020/10/06/as-covid19-spreads-in-minn-prisons-loved-ones-worry [https://perma.cc/954P-5TLL].
 Beth Scwartzapfel, Katie Park & Andrew Demillo, 1 in 5 Prisoners in the U.S. has COVID-19, Marshall Project (Dec. 18, 2020), https://www.themarshallproject.org/2020/12/18/1-in-5-prisoners-in-the-u-s-has-had-covid-19 [https://perma.cc/YBS7-BXVL].
 Marohn, supra note 3.
 See e.g., Glaspie v. N.Y.C. Dep’t of Corr., 2010 WL 4967844, *1 (S.D.N.Y. Nov. 30, 2010);
Jackson v. Rikers Island Facility, 2011 WL 3370205, **2–3 (S.D.N.Y. Aug. 2, 2011).
 U.S. Const. amend. VIII.
Helling v. McKinney, 509 U.S. 25, 33 (1993).
 Farmer v. Brennan, 511 U.S. 825, 845 (1994).
 Id. at 846.
 ACLU Files Class Action Lawsuit to Protect Incarcerated People at the Deadliest Federal Prison, ACLU (2020), https://www.aclu.org/press-releases/aclu-files-class-action-lawsuit-protect-incarcerated-people-deadliest-federal-prison#:~:text=CHARLOTTE%2C%20N.C.%20%E2%80%93%20In%20response%20to,class%20action%20lawsuit%20today%20seeking [https://perma.cc/372F-HPEQ].
 18 U.S.C. § 3582 (a sentence can be reduced “whenever extraordinary and compelling circumstances warrant such a reduction.”).
 Andreea Matei, States Could Save Lives by Expanding Compassionate Release During COVID-19 and Beyond, Urban Wire (June 2020), https://www.urban.org/urban-wire/states-could-save-lives-expanding-compassionate-release-during-covid-19-and-beyond [https://perma.cc/G2AZ-TSEK].
 Marohn, supra note 3.
 Randy Furst, Judge Rips Minnesota Corrections Department for Failing to Stem the Surge of COVID-19 Cases, Star Trib. (Dec. 11, 2020), https://www.startribune.com/judge-rips-minnesota-corrections-department-for-failing-to-stem-the-surge-in-covid-19-cases/573374361/ [https://perma.cc/J3BE-PUXE].
 Lynette Kalsnes, ACLU Minnesota Files Lawsuit to Protect People in Minnesota Prisons from COVID-19, ACLU (Oct. 22, 2020), https://www.aclu-mn.org/en/press-releases/aclu-mn-files-lawsuit-protect-people-minnesota-prisons-covid-19 [https://perma.cc/VYU9-SK9M].
 Jamiles Lartey et al., Should Prisoners get COVID-19 Vaccinations Early?, Marshall Project (Dec. 3, 2020), https://www.themarshallproject.org/2020/12/03/should-prisoners-get-covid-19-vaccines-early [https://perma.cc/AQJ7-PCUW].
 See A State-by-State Look at Coronavirus in Prisons, Marshall Project (Mar. 25, 2021), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/GW29-TP4B].
 Ann Hinga Klein & Derek M. Norman, COVID Outbreaks Devastated Prisons, But State Inmates’ Access to the Vaccine Varies Widely, N.Y. Times (Mar. 17, 2021), https://www.nytimes.com/2021/03/17/us/covid-prisoners-vaccine.html [https://perma.cc/W3TF-CMQE].
 Emily Wang et al., Recommendations for Prioritization and Distribution of COVID-19 Vaccine in Prisons and Jails (Dec. 16, 2020), available at https://justicelab.columbia.edu/sites/default/files/content/COVID_Vaccine_White_Paper.pdf.
 Klein & Norman, supra note 24.
 Ariel Goodman, What People in Prison Need to Know about the COVID-19 Vaccine, Marshall Project (Mar. 2, 2021), https://www.themarshallproject.org/2021/03/02/what-people-in-prison-need-to-know-about-the-covid-19-vaccine [https://perma.cc/K94Y-26WA].
 Klein & Norman, supra note 24.
 Sawyer, supra note 1.
 Minnesota Guidance for Allocating and Prioritizing COVID-19 Vaccine—Phases 1b, 1c, 2, Minn. Dept. Health (Mar. 10, 2021), available at https://www.health.state.mn.us/diseases/coronavirus/vaccine/phase1b1c2.pdf.
 For a state-by-state list of correctional facilities and their tier rank, see Katie Rose Quandt, Incarcerated People and Corrections Staff Should be Prioritized in COVID-19 Vaccination Plans, Prison Pol’y Initiative (Dec. 8, 2020), https://www.prisonpolicy.org/blog/2020/12/08/covid-vaccination-plans/#appendix [https://perma.cc/9682-6ML2].