COVID-19 No Excuse for Ignoring Rights of the Incarcerated: Paper

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Photo by Alicia via Flickr.

At a time when the quality of life, safety, and health of incarcerated populations are at the top of the agenda, a new paper argues it has never been more important to use judicial power to positively impact prisoners’ daily lives.

As of right now, many see prison’s current state as “painful” and “unconstitutional” — especially as reports of prison conditions across the country have shocked readers with stories of riots and assaults, scabies, and of course, the coronavirus pandemic’s intertwined relationship with overcrowding and unsanitary conditions.

The author, Judith Resnik, the Arthur Liman Professor of Law at Yale Law School, begins by writing, “Whether a constitutional right to rehabilitation exists is distinct from the proposition that in constitutional democracies, governments cannot set out to cause deterioration as a purpose of their punishment.”

From this belief, many influential judges began to argue and enact laws that protected prisoners’ rights. But, Resnick says, “In 2020, we take these propositions for granted.”

Resnik, who is also the Founding Director of the Arthur Liman Center for Public Interest Law, originally wrote her article to recognize and honor the work of Judge Frank Johnson, who pioneered these very same prisoner rights legislation back in the 1970s.

Now, she holds that recognizing and reminding the public of these prisoner’s rights is incredibly timely, as it seems to be a lesson our justice system must continue to learn.


Without acknowledging that prisoners are people too, Resnik explains that the criminal justice system runs into the problem of dancing with cruelty, and unusual punishment.

This could turn into a hypothetical — or literal — dance with death.

The pandemic has infiltrated the population behind bars, creating a well-documented health crisis in the justice system. The latest data from the Marshall Project found that there have been at least 48,765 confirmed coronavirus cases and at least 548 deaths in U.S. jails and prisons.

Another report from the New York Times claims that the number is skywards of 68,000 total cases in jails and prisons.

Many advocates connect the number of cases to the documented lack of soap, cheap masks, inability to social distance, and general unsanitary conditions. This, Resnik says, is why in the age of “hyper-incarceration,” prisoners’ rights must not be forgotten.

These poor conditions are not a part of a prisoner’s sentence — so Resnik asks, why is it the treatment they are doomed to?

As part of fighting the unwarranted sentences of poor treatment, Resnik cites the Eighth Amendment, which protects the convicted and sentenced from cruel and unusual punishment, and the Fourteenth Amendment, which protects pre-trial detainees of the same.

These were the Amendments that Judge Johnson cited when detailing his prison reform decision-making, Resnik says.

“Prisoners and judges such as Frank Johnson understood that the U.S. Constitution requires more than subsistence warehousing of people convicted of crimes,” she wrote.

Rehabilitation versus Debilitation

“Even as my focus has been on litigation, judges are never solo actors,” Resnik writes, explaining how other politicians and prison administrators have a role to play in this advocacy as well.

She added: “In the 1970s, trial judges saw how when prisoners were ‘warehoused’ in settings with no activities or opportunities, they deteriorated.”

This deterioration was so pervasive, that Judge Johnson wrote in the 1980s that prisoners were “so debilitated” that they weren’t able to “maintain skills already possessed.”

Other actors in the criminal justice system have a role to help eliminate this problem, as prosecutors can advocate for treatment instead of traditional imprisonment, and prison administrators, with the help of correction officers, should advocate for better conditions behind bars.

Other recommendations that Resnik details include:

  • Acknowledging prisoners need to adequate food, clothing, shelter, and sanitation;
  • Supporting mental health and social welfare programs within prisons;
  • Change sentencing policies to limit overcrowding; and,
  • Avoid deterioration with treatment and rehabilitation.

“Judge Johnson’s contributions were to explain and to ensconce the judicial power to override prison officials’ decisions about conditions of confinement,” Resnik writes at the end of her paper.

She concludes by citing Judge Johnson himself, writing that he believed “…that a prison system ‘cannot be operated in such a manner that it impedes an inmate’s ability to attempt rehabilitation, or simply to avoid physical, mental or social deterioration.’”

The full paper can be accessed here. 

Additional Reading: COVID-19 Exposed Flaws of the Justice System: Paper

Andrea Cipriano is a staff writer for The Crime Report

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