key: cord-0815677-dlqq1ikn
authors: Schotland, Sara D
title: A Plea to Apply Principles of Quarantine Ethics to Prisoners and Immigration Detainees During the COVID-19 Crisis
date: 2020-08-24
journal: J Law Biosci
DOI: 10.1093/jlb/lsaa070
sha: 23f5b12e8c1ba20b01f0bb559eeb62a4192ff2ab
doc_id: 815677
cord_uid: dlqq1ikn

An important topic has been neglected in the discussion of ethical issues related to the current Pandemic: unsafe conditions experienced by those who are incarcerated in state or federal prisons or confined in immigration facilities. I argue that principles of Quarantine Ethics addressing the health and safety of those subject to involuntary quarantine should be applied to mitigate the risk that COVID-19 poses to inmates and detainees. These individuals are presumed to have been lawfully detained, thereby excluding the question of the necessity and validity of an order requiring the compulsory quarantine as would apply to an ordinary citizen. However, human rights law remains applicable notwithstanding their status as inmates or undocumented immigrants. Accordingly, these individuals are entitled to safe conditions of confinement to reduce the high risk of their exposure to infectious disease. Judicial caselaw addressing these facilities’ obligations to provide medical care is insufficient. I offer recommendations for improving conditions of confinement based on recognition that neither penal nor immigration policies are furthered by unreasonable risk of exposure to the virus. The disproportionate incarceration of people of color makes the topic yet more urgent.

(3) humane supportive services; and (4) public justification (incorporating transparency, due process and fairness). 2 Mine is a novel application in that I am not addressing the typical scenario, for example, where a member of the general public with a communicable disease is placed in involuntary quarantine and the question arises whether the confinement was necessary and the least restrictive alternative. Rather I assume the legitimacy of the decision to confine and instead argue for applicability of conditions of care appropriately applied to those who are involuntarily committed during a public health emergency. My concern arises from the adequacy of the conditions of confinement to safeguard the health of those incarcerated or detained in immigration custody. A prisoner lacks many of the legal rights of ordinary citizens, but he or she retains fundamental human rights, for example, to be detained without abuse or torture, and with sufficient food, shelter, and adequate medical care.

I explain below that current legal precedent applicable to care and treatment of prisoners and immigration detainees is insufficient to protect against unreasonable risk, and I call for enhanced measures to promote the safety of those detained under basic principles of human 13 Id., 509 U.S. at 31. 14 511 U.S. 825, 832 (1994) (risk that transsexual inmate would be subject to repeated rape). 15 Id., at 828. 16 Id., at 834. 17 Id., at 836.

preliminary injunctive relief requiring immediate improvement in conditions to mitigate exposure at the D.C. Jail, based on a finding that infection rates at the jail were fourteen times higher than in the District of Columbia as a whole. 18 

While a convicted prisoner is entitled to protection only against "cruel and unusual" punishment under the Eighth Amendment, a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description. Because pre-trial detainees are presumed innocent, they are "entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." 24 In 

Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or correction of any condition causing cruel and unusual punishment. 26 Judicial relief is also insufficient to assure safe conditions because, even where correctional facilities increase cleaning practices, provide masks, and conduct testing, the critical safety factor of social distancing is often impractical. Though failure to relieve overcrowding permitting social distancing may not trigger an Eighth Amendment violation-that is a showing that prison officials are "deliberately indifferent"-inmates are exposed to a substantial risk of 37 In Friahat v. ICE, a California district court granted class action relief requiring that immigration officials make timely custody determinations for individuals at high risk due to age or medical condition. 38 However, litigation remains a problematic approach, and courts have been resistant to ordering release. 39 In the meantime, there has been an alarming spike in specific ICE facilities. Farmville Virginia facility, almost 90% of residents tested positive for COVID as of July 29, 2020. 40 Reports of severe overcrowding continue and staff have neglected to wear masks or other protective equipment. 41 Detainees in Texas immigration centers are more than 15 times more likely to have COVID-19 than the state's general population. 42 15 adult population but 33% of the prison population. 55 Hispanics comprise 16% of the general population and 23% of the prison population. 56 Moreover, a high rate of pre-existing medical conditions such as diabetes and cardiovascular may render African Americans and Hispanic populations particularly vulnerable to COVID-19. 57

I offer four recommendations to address the concerns raised in this essay:

First, there is a need to recognize that individuals who are lawfully confined in correctional and immigration detention are entitled to human rights protections. Unlike the very rare scenario in which an ordinary member of the public is involuntarily ordered into a quarantine facility and the question is whether the stringent criteria for confinement have been met, here the correctness of confinement is presumed. Thus, the human rights issue relates specifically to the conditions of confinement. Prisoners and immigration detainees lack many civic rights, but they are not divested of human rights consistent with the inherit dignity of the human person. 58 These rights include basic rights to health care, as well as avoidance of torture and ill treatment. 59

The goals of criminal punishment-deterrence, incapacitation, rehabilitation, and retribution-are not served by detaining prisoners under conditions where they are exposed to a serious, potentially fatal, disease. In response to the pandemic, local jails have significantly reduced populations; typically, by more than 30%. 67 This reduction has been achieved by avoiding arrests for minor offenses, and releasing individuals detained pretrial or those serving short sentences for minor misdemeanors. Jails however hold only one-third of those who are incarcerated. The typical state prison system has reduced its population by only 5% in response to the pandemic. 68 Illustratively, the Louisiana Department of Corrections established a review panel to consider cases for temporary emergency release. As of June 30, 2020, only 63 people had been released, 0.2% of the population. 69 The federal inmate population has declined on slightly, from 174,000 

Even today, when public opinion seems highly polarized, bipartisan efforts at penal The author has no financial, personal, academic or other conflict of interest in the subject matter discussed in this manuscript.

LEXIS 18087 (6 th Cir. Ohio

US Dep't. of Homeland Security, supra, note at *30-32

Achilla v. Witte, supra note 38

The facility is run for ICE by the Immigration Centers of America

Judge Orders New Health Inspection at Virginia Immigration Center with Large Coronavirus Outbreak

People In Texas ICE Detention Centers Are 15 Times More Likely Than The Public To Have COVID-19

Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome: Implications for the Control of Severe Infectious Disease Threats

Pandemic Disease, Public Health and Ethics, OXFORD HANDBOOK OF PUBLIC HEALTH ETHICS 798

The Model State Emergency Health Powers Act. Center for Law and the Public's Health at Georgetown and Johns Hopkins Univs

Black Imprisonment Rate in the US Has Fallen by a Third Since

Whites comprise 64% of the U.S. adult population and 30% of the prison population

CDC, COVID19 in Racial and Ethnic Minority Groups

Racial and Ethnic Health Disparities in Incarcerated Populations

Human Rights and Prisons: A Pocketbook of International Human Rights Standards for Prison Officials

See also Anne L. Grilley, Arbitrary and Unnecessary Quarantine: Building International and National Health Infrastructures to Protect Human Rights During Public Health Emergencies

What Percent of the U.S. Is Incarcerated? PRISON POLICY INST

Mass Incarceration, supra note 3 at 1. The inmate profile is somewhat different in state prisons, where 55% of prisoners have committed crimes of violence

While Jails Drastically Cut Populations, State Prisons Have Released Virtually No One

Responses to the COVID-19 Pandemic