WELL, AT LEAST THEY TRIED: DELIBERATE INDIFFERENCE AS PRISON OFFICIALS' LIABILITY SCAPEGOAT FOR OBJECTIVELY INHUMANE PRISON CONDITIONS DURING COVID-19.

• Author: Levine, Mary

"The Constitution requires that prison officials and governments protect incarcerated people from the inevitable continued spread of COVID-19 behind bars.... Some of the 95 percent of people in prisons who have been left behind have taken to the courts. While their options are generally to request release or seek improvements to conditions, they face a gauntlet of legal obstacles to enforce their constitutional rights in federal court." (2)

1. INTRODUCTION

   On March 15, 2020, Anthony Cheek--an incarcerated man having served eighteen years of his twenty-year sentence--suddenly passed out while in the gym. (3) Cheek called his mother only five days prior complaining of flu-like symptoms, but the forty-nine-year-old assured his mother he was on the mend. (4) That was the last time Cheek's mother ever heard from her son, as Cheek soon became the first incarcerated person (5) to die during the COVID-19 pandemic ("COVID-19"). (6) At the time of Cheek's death, incarcerated persons at Lee State Prison in Georgia were regularly denied medical treatment for COVID-like symptoms, confined in cells with six other individuals, given "tiny" cups of anti-bacterial soap sporadically, and were only required to wear masks discretionarily. (7)

   These types of conditions were not abnormal for detention facilities during COVID-19; thus, given the rapid deterioration of prison conditions the pandemic, the 2.12 million (8) incarcerated persons in the United States were routinely subjected to inadequate protection from illness and death during the height of the virus. (9) One incarcerated person writes,

   [t]o say that I am concerned about my health is an understatement. I feel trapped and helpless in this prison. No matter what I do to protect myself. I am at the mercy of others and can only hope they wear their masks and socially distance. Some [incarcerated persons] follow the rules. Some do not. Some don't care because they are never going home. But I am. (10) Other incarcerated persons have commented on the poor living conditions during COVID-19--which further exacerbated the spread of the virus regionally--with one person writing to his wife, "I can tell you right now, with nearly 100% certainty, that I am going to get this virus." (11) He added that incarcerated persons' temperatures had not been checked in over two days, and that even once checked and determined feverish, the sick remained in dorms with dozens of other incarcerated persons, including those who were immunocompromised. (12) Unfortunately, lack of temperature checks and minimal accommodations for immunocompromised individuals were not the full extent of incarcerated persons' exposure while confined. (13) Of incarcerated persons' complaints, they noted that sick and healthy individuals were often haphazardly mixed, they were periodically shipped to different facilities without proper testing, they were refused consistent testing practices, healthy individuals were kept in close confinement with infected persons, and individuals were further exposed to dirty and unhygienic living conditions while confined. (14) Despite concerning conditions, however, prisons across the country refused to modify their confinement practices, and further prevented the release of individuals to slow the spread. (15)

   As a result of the inhumane prison conditions maintained by prison administrators during the height of the virus, the rate of both infection and death for incarcerated persons and prison staff significantly increased between March 2020 and January 2021. (16) From March 2020 through January 2021, 366,121 incarcerated persons and prison staff tested positive for COVID-19, with 2,314 of these cases resulting in death. (17) In December of 2020, over four times as many incarcerated persons in the U.S. had COVID-19 as compared to the general population; this resulted in 1 in 5 incarcerated persons infected, while only 1 in 20 members of the general population infected. (18) The rate of infection showed few signs of decreasing during the height of the virus, with the positive test rates increasing by roughly 3% each week. (19) The same extended to the death rate of incarcerated persons, with the death rate increasing by 4% over one week. (20) Federal prisons experienced the highest number of deaths, reporting over 200 deaths between March 2020 and January 2021. (21) Similarly, every state--with the exception of Vermont--reported incarcerated deaths from COVID-19 during the height of the virus. (22) Of these states, Nevada and New Mexico had the highest rate of death, with both states averaging 43 deaths per 10,000 incarcerated persons in January 2021. (23)

   These numbers resulted in higher likelihoods of infection, with incarcerated persons being 5.5 times more likely to contract COVID-19 and 3.3 times more likely to die from the virus, as compared to those who were not incarcerated. (24) In addition to causing higher COVID-19 infection rates in correctional facilities, the willful ignorance with regard to incarcerated persons' health and safety also increased the rate of infection in surrounding neighborhoods. (25) Despite these alarming rates of infection among incarcerated persons and prison staff, the only recourse for incarcerated persons seeking adequate medical care required meeting the Eighth Amendment's stringent deliberate indifference standard--a near impossible feat--thereby resulting in a lack of any sufficient remedy. (26)

   In order to address alleged inhumane medical conditions while confined, incarcerated persons must raise an Eighth Amendment cruel and unusual punishment claim, arguing that prison officials were "deliberately indifferent" to their serious medical needs. (27) To make this determination, courts will apply a two-pronged deliberate indifference test, requiring an objective and subjective assessment of the prison officials' conduct. (28) This two-pronged test, however, has created an inconsistent and arbitrary deliberate indifference standard, effectuating a near impossible burden for incarcerated persons to overcome. (29) As a result of the inconsistent application of this standard throughout federal courts, incarcerated persons are yet again presented with an additional barrier. (30) Through review of historical and modern Eighth Amendment jurisprudence, this Note seeks to assess the federal courts' approach to the deliberate indifference standard when evaluating prison conditions--particularly during unprecedented public health emergencies. (31) After a review of current practices, this Note will propose a new standard for the deliberate indifference test, one that abolishes its subjective element and instead requires an exclusively objective analysis. (32)

2. HISTORY

   The Eighth Amendment to the United States Constitution provides, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (33) Generally, the Eighth Amendment seeks to prevent government officials from issuing punishments that are "barbaric" or severely disproportionate to the crime committed. (34) Despite this general assessment of the Amendment, the Supreme Court has often referenced the difficulty in properly defining its scope, with Justice Burger noting, "of all our fundamental guarantees, the ban on 'cruel and unusual punishments' is one of the most difficult to translate into judicially manageable terms." (35) As such, the historical origins and development are particularly acute in defining the Amendment's scope today. (36)

   1. British Protections and Formative American History

      The concept of protection against cruel and unusual punishment dates long before the founding of the U.S. Constitution, with roots in early British governmental structure. (37) Following the tyrannical leadership of King James II in England, the English Parliament ratified a declaration of rights that provided "nor cruell and unusuall Punishments inflicted." (38) Many scholars argue that the inclusion of this language largely stemmed from the trial of Titus Oates, in which the government sought to limit post-conviction sentences. (39) However, other scholars suggest that historical evidence points towards inclusion of this language as an effort to prevent torturous methods used to extract confessions. (40)

      Predominantly inspired by the English Bill of Rights, Virginia adopted a similar punishment provision in the Virginia Declaration of Rights in 1776. (41) As much of the U.S. Constitution was influenced by the colonies' independent constitutions, Virginia's inclusion of a cruel and unusual punishment clause resulted in the addition of the Eighth Amendment to the federal Bill of Rights during the Constitutional Convention. (42) Since the Bill of Rights' adoption, the Supreme Court has wrestled with determining whether prison conditions, specifically confinement, are considered "punishment" under the Eighth Amendment. (43)

   2. Current Eighth Amendment Interpretations: Evolving Standards of Decency

      As noted by Justice Burger above, defining the scope of what constitutes a "cruel" and "unusual" punishment under the Eighth Amendment has been particularly difficult for federal courts. (44) In 1910, the Supreme Court recognized that "[w]hat constitutes a cruel and unusual punishment has not been exactly decided." (45) The Supreme Court has grappled with the term "unusual," having difficulty applying the logic that even if a punishment is inhumane, it may be permissible if it is deemed a "normal" punishment. (46) The Court has since excluded the interpretation of "unusual" in its caselaw, suggesting that the term may have been unintentionally added to the Amendment by the Framers. (47)

      Today, the Court is left to determine what constitutes "cruel" under the Eighth Amendment, especially in light of historical punishments that are now seen as inhumane to contemporary society. (48) While many Justices differ, in 1958, the Court adopted an "evolving...