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Notre Dame Law Review Reflection



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Prisons and jails endanger the health and wellbeing of incarcerated individuals and their communities. These facilities are often overcrowded and unsanitary,1 with limited access to medical care, 2 and no basic sanitation and personal hygiene products unless a person can pay the spiked prices of the jail's commissary.3 Public health emergencies compound these dangers. Most recently, the spread of the COVID-19 pandemic created a crisis for people in detention, their families, and the communities surrounding jails and prisons. For over a year, there were no vaccines against COVID-19, new strains of the virus continue to evade vaccine-induced immunity, and there is still no known cure for the disease caused by the virus. For over a year, the only known measures to mitigate the spread of this pandemic were social distancing, vigilance with hygiene and disinfectants, and proper ventilation. Yet individuals in jails and prisons had no ability to implement these measures in spaces that, even in the absence of a pandemic, pose public health risks.4 Every decision to send a person into the jails or prisons, or to deny requests for release, had the potential to cause severe illness and turn into a death sentence for members of communities across the country. Now, with new variants appearing across the globe, we face an uncertain next chapter for public health. In this Essay, we discuss how the COVID-19 pandemic has affected our understanding of constitutionally permissible punishment. We argue, first, that the protracted failure to act by those who have had authority to do so during this public health emergency created a high risk that incarcerated people would suffer severe illness-and even death-in violation of due process protections and the Eighth Amendment prohibition against cruel and unusual punishment.5 Second, we suggest that a changed understanding of public safety in the context of detention and release during public health emergencies has the potential to shift the framework even after the emergency subsides. Conceptions of what qualifies as a danger to the community and what enhances public safety have radically shifted during this time in a way that supports release of individuals back to their communities. This shift can spur a further interrogation of how we define constitutionally permissible punishment in a system that has fueled mass incarceration.

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