The title of this post is the title of this new paper authored by Michael Zuckerman now available via SSRN. Here is its abstract:
The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities. The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine.
Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies. The Article concludes by suggesting potential solutions for courts and legislatures.
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