Constitutional Lessons For Prisons Amid COVID-19 Outbreak

By Michael Bentley, Erin Saltaformaggio and Michael Williams
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Law360 (March 27, 2020, 3:55 PM EDT) --
Michael Bentley
Michael Bentley
Erin Saltaformaggio
Erin Saltaformaggio
Michael Williams
Michael Williams
The spread of the highly contagious coronavirus has reach pandemic status. Over 550,000 cases have been confirmed across more than 175 countries,[1] and the United States now has over 86,000 confirmed cases across all 50 states and four territories.[2] 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.[3] The virus has already infiltrated the New York City jail system, infecting both guards and inmates.[4] 

Some other prisons and jails have begun releasing prisoners in an attempt to prevent outbreaks in their facilities.[5] 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.[6]

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,[7] 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.[8] 

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.”[9]

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.[10] 

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.[11]

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.[12] 

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.[13]

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.”[14] Isolating prisoners for safety, disciplinary or medical reasons is a long-standing and constitutionally permissible practice in corrections.[15]

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.[16]

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.[17]



Michael J. Bentley and Erin D. Saltaformaggio are partners, and Michael C. Williams is an associate at Bradley Arant Boult Cummings LLP.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.   

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University, https://coronavirus.jhu.edu/map.html.

[2] Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University, https://coronavirus.jhu.edu/map.html

[3] Opinion, An Epicenter of the Pandemic Will Be Jails and Prison, if Inaction Continues, New York Times (Mar. 16, 2020), available at https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails.html.

[4] Tracey Tully, 1,000 Inmates Will be Released from N.J. Jails to Curb Coronavirus Risk, New York Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.

[5] Kimberly Kindy, Emma Brown, and Dalton Bennet, ‘Disaster waiting to happen’: Thousands of Inmates released as jails and prisons face coronavirus threat, The Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-released-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html.

[6] Associated Press, Massachusetts’ highest court to weigh release of jail inmates amid coronavirus pandemic (Mar. 26, 2020), https://whdh.com/news/massachusetts-highest-court-to-weigh-release-of-jail-inmates-amid-coronavirus-pandemic/.

[7] Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.

[8] National Commission on Correctional Healthcare, COVID-19 Coronavirus: What You Need to Know in Corrections: https://www.ncchc.org/covid-resources.

[9] Farmer v. Brennan , 511 U.S. 825, 834, 844-45 (1994).

[10] Ayala v. NYC Dep’t of Corr. , 2011 WL 2015499, *2 (S.D.N.Y. May 9, 2011).

[11] Jackson v. Rikers Island Facility , 2011 WL 3370205, **2-3 (S.D.N.Y. Aug. 2, 2011) (corrections officials were not deliberately indifferent to prisoner’s medical needs when they responded timely to request for swine flu treatment); Glaspie v. New York City Dep’t of Corr. , 2010 WL 4967844, *1 (S.D.N.Y. Nov. 30, 2010) (“mere exposure toswinefludoes not involve an unreasonable risk of serious damage to ... future health”).

[12] Fraher v. Heyne , 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011).

[13] Washington v. Harrington , 2012 WL 3763964, **2-6 (E.D. Cal. Aug. 29, 2012), aff’d, 549 F. App’x 679 (9th Cir. 2013).

[14] McKune v. Lile , 536 U.S. 24, 39 (2002); see also Wolff v. McDonnell , 418 U.S. 539, 560 (1974) (“one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.”).

[15] While conditions in isolation units must meet constitutional standards, the Supreme Court has recognized that the Eighth Amendment does not prohibit the use of isolation even for indeterminate periods of time. Sandin v. Conner , 515 U.S. 472, 485-87 (1995); Hutto v. Finney , 437 U.S. 678, 685-87 (1978); see also Jones-Bey v. Wright , 944 F. Supp. 723 (N.D. Ind. 1996) (prisoner’s placement in medical isolation unit after refusing to undergo tuberculosis screening did not violate Eighth Amendment or Due Process rights of prisoner).

[16] Lewis v. Holloway , 2018 WL 6517776, *6 (W.D. Ark. Dec. 11, 2018) (“The decision as to whether to quarantine a sick prisoner is ultimately a question of medical judgment, as a prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation.”).

[17] Washington v. Harrington , 2012 WL 3763964, **2-6 (E.D. Cal. Aug. 29, 2012), aff’d, 549 F. App’x 679 (9th Cir. 2013).

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