The spread of the highly contagious coronavirus has reach pandemic status. Over 550,000 cases have been confirmed across more than 175 countries, and the United States now has over 86,000 confirmed cases across all 50 states and four territories. In other countries, the threat of coronavirus has already impacted prison operations — lockdowns have been implemented in Italy and thousands of prisoners were released in Iran.
In the United States, the media is highlighting the vulnerability of prison populations and prison officials are discussing a nationwide prison lockdown. The virus has already infiltrated the New York City jail system, infecting both guards and inmates.
Some other prisons and jails have begun releasing prisoners in an attempt to prevent outbreaks in their facilities. In other jurisdictions, courts are confronting emergency petitions seeking the release of prisoners as a way to reduce the risks of introducing or spreading coronavirus among prison populations
Prison officials and correctional health care providers are doing their best to follow community guidance and best practices in corrections to prevent the introduction of COVID-19 into their facilities and address the virus if it is detected in their populations.
The Centers for Disease Control and Prevention has just issued guidance for correctional and detention facilities, and the National Commission on Correctional Healthcare, or NCCHC, a nonprofit organization that works to improve the quality of health care in jails and prisons, has posted treatment guidance on its website.
Ultimately, however, their legal obligations are governed by the Eighth Amendment’s “deliberate indifference” standard, which requires that prison officials not disregard a prisoner’s serious medical needs. As the U.S. Supreme Court explained in Farmer v. Brennan, a prison official cannot be deemed deliberately indifferent if he or she “responds reasonably” to substantial risks to inmate health or safety, “even if the harm ultimately was not averted.”
There is limited case authority applying the deliberate indifference standard to dangerous viral outbreaks on the scale of COVID-19, but guidance can be found in cases arising out of the swine flu epidemic that impacted prisons and jails in 2009. These cases identify some basic constitutional principles that prison and jail officials should consider when managing a coronavirus response and when confronting prisoner civil rights lawsuits related to the virus.
Most importantly, prison and jail officials are not liable for an Eighth Amendment violation simply because coronavirus inevitably finds its way into their facilities, just as it has in almost every other workplace and community location. Below is the constitutional guidance — which, again, is quite different from the best-practice guidance from the CDC, NCCHC and other groups — that can be gleaned from the swine flu prisoner cases.
1. Preventative Education and Hygiene Measures
A prison, like a long-term care facility, is particularly vulnerable to rapid spreading of diseases among populations in close quarters.
To account for this risk, prison officials should (1) inform employees and prisoners about coronavirus, including proper hygiene, etiquette (e.g. “social distancing”), and other means of preventing its spread, (2) educate employees — particularly those responsible for controlling access to the facility — on signs that a transferee inmate, a visitor or an employee may be infected, and (3) provide hygiene supplies for employees and — to the extent possible and safe — to prisoners as well.
2. Maintain Reasonably Sanitary Conditions
While prisons may not be able to prevent the introduction of diseases like coronavirus into the population, corrections officials should take reasonable steps to sanitize contaminated areas and prevent healthy inmates from being exposed.
In Ayala v. New York City Department of Corrections, a federal district court held that a prisoner who contracted swine flu could not prevail on a deliberate indifference claim because prison officials took reasonable measures to sanitize contaminated facility and prevent inmate infections.
Two other New York district court decisions on prisoner swine flu claims, Jackson v. Rikers Island Facility and Glaspie v. New York City Department of Corrections, establish that, if reasonable steps are taken to prevent exposure and provide timely treatment to prisoners who may be infected, then the mere fact that a prisoner is exposed to and even contracts the disease should not be cause for finding a constitutional violation.
3. Identify and Take Extra Precautions for High-Risk Patients
While the CDC and World Health Organization advise that most healthy adults are at low risk of suffering severe symptoms or lasting effects from coronavirus, many prisons and jails house inmates with preexisting and chronic medical conditions (such as heart disease, diabetes and lung disease) that put them at higher risk of severe illness or death if they contract COVID-19.
Prisons and jails should identify high-risk inmates and take steps to prevent their exposure and provide timely diagnosis and treatment if a high-risk patient shows signs of a COVID-19 infection. Courts have held that a failure to respond timely to symptoms of a dangerous disease (such as swine flu) in a high-risk patient may be grounds for an Eighth Amendment violation if the inmate becomes extremely ill, suffers complications to preexisting diseases, or dies.
Two swine flu cases out of California illustrate this point.
In the first case, Fraher v. Heyne, a prisoner with a preexisting heart condition that “mandated extra care to avoid infection” was refused a swine flu test because, in the prison medical staff’s view, her fever “was not high enough” to warrant testing. The federal district court refused to dismiss the case, determining that, under those circumstances, the prisoner could at least state a claim for violation of her constitutional rights.
In the second case, Washington v. Harrington, a federal court held that an inmate suffering from asthma, which put him in the high-risk category, could not state deliberate indifference claim where his symptoms of swine flu were recognized and monitored by prison medical staff, and the inmate was ultimately transferred outside of the prison for more robust medical treatment.
4. Sick Patients May be Quarantined
If COVID-19 is detected in the prison population, prison officials should consider using medical separation (or “quarantine”) to protect others, particularly high-risk patients. While due process concerns may impact community quarantine orders, such concerns are diminished in the correctional setting, where the constitution affords prison officials flexibility in housing decisions.
In McKune v. Lile, the Supreme Court recognized that “the decision where to house inmates is at the core of prison administrators’ expertise.” Isolating prisoners for safety, disciplinary or medical reasons is a long-standing and constitutionally permissible practice in corrections.
As an Arkansas federal district court explained in Lewis v. Holloway, the decision to quarantine a sick prisoner is “ultimately a question of medical judgment,” which — even if disagreed with by the prisoner or other medical professionals — should not amount to a constitutional violation.
5. Provide Treatment.
If an inmate is diagnosed with COVID-19, prison officials and medical providers should provide proper treatment, isolation and monitoring onsite and, if necessary, transfer patients off site for treatment.
This article was originally published in Law360 on March 27, 2020.