Parens Patriae, Punishment, and Pandemics: The State's Responsibility for Incarcerated Persons During a Public Health Emergency.

• Author: Harrell, Meredith

TABLE OF CONTENTS I. INTRODUCTION 212 II. CONDEMNED TO REPEAT IT: WHAT WENT WRONG IN 2020 224 III. THE RATIONALE FOR STATE PROTECTION AND LIABILITY 241 IV. THE PLIGHT OF PRISONERS AND THE UTILITY OF THE EIGHTH AMENDMENT CLAIMS 252 V. 1983 LIABILITY 268 VI. PART VI: CONCLUDING LESSONS FOR THE PARENT STATE 275 I. Introduction

"Remember the Prisoners as if Chained with Them" (3) There are few certainties in life, but one is that there will always be vulnerable, incarcerated persons under the care and protection of the State. Another certainty is infectious disease and the occurrence of pandemics. Cyclical spread of untreatable and incurable illnesses is part of the human condition. The world is now battling SARS-CoV-2, a new coronavirus that causes COVID-19, an illness that as of February 2022 has sickened nearly 412,000,000 people and killed 5,832,227. (4) The United States, with four percent of the world's population, had twenty-seven percent of the world's cases at the beginning of the pandemic. (5) Over two years into the pandemic, the US still has the largest share of COVID-19 cases by far. (6) As of February 2022, there have been over 79,300, 000 cases of COVID-19 in the U.S. Almost a million people in this country have died with COVID-19. The U.S. saw an average of 565,156 cases per day and 1,610 deaths per day in the seven- day period that ended January 17, 2022. (7) And since the advent of at-home rapid test kits, the reported numbers cannot be relied upon to reflect the full disease burden in the U.S. (8)

COVID-19 is an insidious disease. Most people who contract it will never get severely ill. (9) However, a significant number of patients will be debilitated and die. (10) For those who survive, the effects on the body can be long-lasting. (11) Another feature of the illness, and one which informs public health response, is that at least thirty percent of people who carry SARS-co-V-2 do not develop symptoms. (12) The federal government had a critical window to stop the cascade of illness, death, and economic disaster that has occurred as a result of COVID-19. (13) However, it did not act fast enough to implement disease prevention strategies, such as distributing protective gear and ventilators to hospitals and guaranteeing supply lines for tests. (14) The United States trusted in a president who reassured the American public on January 22, 2020, "We have it totally under control. It's going to be just fine." (15) On March 10, one day before the World Health Organization declared COVID-19 a global pandemic, President Trump declared, "[W]e're doing a great job with it. Just stay calm and it will go away." (16) By the time states and tribal nations began to take the situation into their own hands, closing non-essential businesses and issuing stay at home orders, COVID-19 had spread like a fire. (17)

Key to preventing the spread of this fire would have been early, widely available testing. (18) Instead, tests were only given to extremely ill patients, those who had been exposed to a diagnosed case, and those returning from countries with high infection rates. (19) Testing alone does not contain the disease. However, positive test results are a reliable metric for how cases are spreading. (20) Countries that tested early and often--before cases got "out of the barn" (21)--fared better than the U.S. in controlling the disease. (22)

The National Center for Disease Control acknowledged in a May 20, 2020 document that both symptomatic and asymptomatic spread is a threat, one deserving "early, strong, and comprehensive." (23) A place where residents can be helpless to prevent the spread of highly infectious disease is congregate living settings. To illustrate the vulnerability of congregate care settings, we look to Maine, where one of the largest outbreaks at the beginning of the pandemic was in a memory care facility with sixty-six residents; fifty-seven staff and residents were infected. (24) The Maine Center for Disease Control (MCDC) stated that the outbreak "illustrate[d] the vital importance of rapid testing...to contain the virus." (25) However, the MCDC also said, in regard to why they had not conducted universal testing, "[W]e previously had no reason to believe there were any COVID-positive cases in this community." (26) There would have been no need to "believe" if all the residents and staff had been preemptively tested.

Sentinel testing is crucial in other congregate living settings, jails and including prisons. (27) Some facilities have been hit harder than others. (28) In Donovan Correctional Facility in San Diego, for example, thirty percent of inmates have contracted COVID-19. (29) During an outbreak in December of 2020, eighteen inmates died from COVID-19, three of whom were discovered dead or dying in their beds. (30) Despite CDC guidance to frequently test prisoners, none of the inmates had received a test from the prison before transport to the hospital. (31) By December 2021, half a million people in prison had been infected with the virus that causes COVID-19. (32) This figure does not include the cases in jails, Immigrations and Customs Enforcement (ICE) facilities, and juvenile detention centers. (33) Early widespread testing would have allowed federal and local governments to mobilize a coordinated and effective response--including a plan tailored for incarcerated persons--instead of letting the pandemic turn into "an American catastrophe." (34) A year into the pandemic, a number of state prisons continued to refuse to test all their inmates, including some who exhibited symptoms. (35) In June 2021, the CDC issued unequivocal guidance on testing incarcerated and detained persons. (36) In part, this guidance stated that diagnostic and screening testing is part of a comprehensive strategy to prevent the spread of disease. (37) Given that, individuals in jails and prisons should have been offered regular testing.

Among the most vulnerable to the virus are wards of the state, who have no autonomy to protect themselves. The largest population of state wards is persons incarcerated in jails and prisons. Almost 2.2 million people are being held in jails and prisons in the United States, its territories, and Indian Country, 10,000 of whom are under the age of 18. (38) Jails and prisons have been categorized as "infectious disease incubators" (39) whose powerless occupants fall ill and die in large numbers because of close living conditions and absent or inadequate COVID-19 protections and disease management. 500,000 people who are jailed have not been convicted of a crime. (40) Yet, they too must confront this deadly illness in crowded communal settings. The case of Cook County Jail in Chicago is illustrative. As of July 1, 2020, 778 inmates had tested positive. (41) Additionally, 362 staff in the jail had contracted COVID-19. (42) A year into the pandemic, prison outbreaks were still occurring, some with a tremendous toll: a prison in Utah fought an outbreak of 1,545 cases (94% of these cases in inmates) that, as of March 2, 2021, has left thirty-one inmates hospitalized and twelve dead. (43) Although vaccinations have increased the chances of surviving a COVID-19 infection, in some jail and prisons populations are still succumbing to COVID-19 in shockingly high numbers. For example, in early January of 2022, sixty-five percent of the inmates at the federal corrections complex in Yazoo City, Missouri contracted COVID-19. (44)

As of April 2021, thirty-four out of a hundred jailed and imprisoned persons have contracted COVID-19 (45) (more than 661,000 cases in jails and prisons), (46) as compared to nine cases out of every one hundred in the U.S. generally. (47) As of January 2022, more than 2,750 incarcerated persons in prisons have died of COVID-19. (48) Figures for jails are harder to come by, as there are only three jurisdictions where a state agency collects and resorts information about COVID-19 in jails. (49) Death tolls in this population are considered to be a "vast undercount" according to the former chief medical officer at Riker's Island. (50) Some prisons, such as California's notorious San Quentin--where three quarters of the 3,300 inmates and 227 staff members had tested positive as of August 2020 (51) became deadly warehouses of infection in the first year of the pandemic. This was an echo of the outbreak of influenza at the facility in 1918. (52) One hundred years later, its prisoners are still not protected from deadly disease. Officials at San Quentin have been fined for not providing soap, running water, masks, COVID-19 testing, contact tracing, protective gear for staff, or referrals of sick staff to doctors. (53) In November 2021, Marin County Superior Court found that the prison's mismanagement, including the practice of keeping two persons housed in one cell, amounted to cruel and unusual punishment. Despite this, Judge Geoffrey Howard denied the petition of inmates asking that the prison be ordered to provide more distance among persons incarcerated there. Judge Howard reasoned that vaccinations "...substantially reduce the danger posed by COVID-19 within the prison." While vaccines reduce risk, unfortunately for the residents of San Quentin and other facilities, "...vaccination alone will not be enough to stop carceral outbreaks." (54) Judge Howard went on to acknowledge the risk, while still... "substantial and serious, may well not exceed contemporary standards of decency." (55) Three hundred and thirty-five inmates at San Quentin contracted COVID-19 in the two weeks ending on January 25, 2022. (56) Still the prison not only continues to force two men to share a four by nine-foot living space, it has also increased the prison population from 2,418 in May 2021 to about 3,092 in January 2022. (57) These actions certainly exceed contemporary standards of decency. "It has long been said that a society's worth can be judged by taking stock of its...