WASHINGTON - Dec. 13, 2020 - The American Civil Liberties Union [ACLU] is bringing and even winning law suits to protect prisoners from the spread of coronavirus.

For example, a judge has ordered that half the jail population be freed; in Colorado a suit produced a preliminary injunction and a settlement; and a new suit has just been filed against a women's prison.

There are many precedents where courts have held that prisoners are entitled to protection against health hazards, including one in which the U.S. Supreme Court ruled that prisoners could sue for being subjected to secondhand tobacco smoke, says public interest law professor John Banzhaf, who started and then spearheaded the nonsmokers' rights movement.

But, notes Banzhaf, last month the Supreme Court voted 7-2 to deny geriatric inmates, and other prisoners with serious medical conditions, protections against the spread of the corona virus.

But, notes Banzhaf, this is the same U.S. Supreme Court which had held that a prisoner subjected to secondhand tobacco smoke was entitled to sue for protection because such exposure could constitute "cruel and unusual punishment."

One reason for what might appear to some to be a very dramatic contrast and contradiction - since no one in the prison had died, or was likely to die, from smoke exposure; whereas 20 prisoners have already died, and 40% of the population had already contracted a deadly and often fatal disease - is that today's Supreme Court is far more conservative than in the past, with probably less concern about prisoners' rights.

However, another is that issues of how to deal with threats posed by the pandemic - even in general, but more specifically in the unusual situation of a prison ward for sickly prisoners - are difficult, complex, and subject to sharp differences of opinion and ever changing medical and scientific evidence.

In such situations, courts may sometimes be reluctant to intervene, trying not to substitute the judgments of judges with no medical or penal experience for those of trained personnel selected to make those very decisions, suggests Banzhaf.

Even if the risk of drifting tobacco smoke is seen as affecting the entire prison population, and therefore a risk cannot be remedied by cell switching, a complete ban on smoking throughout the prison would remedy the problem.

But dealing with COVID involves masks and mask wearing, physical separation, sterilizing surfaces, periodic testing, and many other activities, some of which may be difficult to carry out and enforce in a custodial situation.

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf

Contact
GW LAW