In "Viral Injustice," Professors Brandon L. Garrett and Lee Kovarsky explore how the COVID-19 pandemic exposed the institutional flaws in our legal detention systems and how the pandemic has posed unique legal challenges for prisoner litigation.

Author: Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law and Director of the Wilson Center for Science and Justice at Duke University School of Law.Author: Lee Kovarsky is the Bryant Smith Chair in Law and Co-Director of the Capital Punishment Center at the University of Texas School of Law. Host: Taylor GrahamTechnology Editors: NoahLani Litwinsella (Volume 110 Senior Technology Editor), Carter Jansen (Volume 110 Technology Editor), Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benjamin Martinez (Volume 111 Technology Editor)Other Editors: Ximena Velazquez-Arenas (Volume 111 Senior Diversity Editor), Jacob Binder (Volume 111 Associate Editor), Michaela Park (Volume 111 Associate Editor), Kat King (Volume 111 Publishing Editor)Soundtrack: Composed and performed by Carter Jansen

Article Abstract:The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis classifies the decision-making by reference to three attributes: the form of detention at issue, the substantive right asserted, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses, including vaccination efforts, and on incarceration more generally. First, courts avoided robust relief by recalibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before the judiciary can effectively respond to the dangers posed by a pandemic, nonjudicial institutions will have to tolerate large-scale, exigency-driven releases from custody, and judges will have to overcome their empirically dubious resistance to decarceration.