COVID-19 has claimed over one million lives in the United States alone. The disease transcends race, class, gender, age, and religion, prompting many to refer to it as “the great equalizer.” The chapters in Part II of this volume debunk the “level playing field” myth and instead examine how the pandemic lays bare the social fault lines of our society. Each of these chapters delves into a discussion about how COVID-19 disproportionately impacts a specific historically marginalized community or population and exacerbates existing inequities while simultaneously giving rise to new ones.

In Chapter 6, “Tolerating the Harms of Detention: With and Without COVID-19,” Dr. Jaimie Meyer, Marisol Orihuela, and Judith Resnik examine the impact of COVID-19 on people in detention and locate the present moment within a historical movement for greater rights for prisoners. This chapter describes the poor spacing, lack of shared spaces and ventilation, and the scarcity of resources in prisons which give rise to “tinderbox situations” that lead to high rates of infections and clusters of outbreaks. It also discusses the legal and public health call for “dedensification” and critiques the institutional response to these demands as well as the limitations of the Eighth Amendment standard of “deliberate indifference to serious medical needs” in questioning conditions of confinement.

In Chapter 7, “A Bend Toward Greater Realized Health Equity and Racial Justice: How the Confluence of the COVID-19 Pandemic and Structural Racism Will Monumentally Shape American Law and Policy,” Scott Schweikart, Fernando De Maio, Mia Keeys, Joaquin Baca, Brian Vandenberg, and Dr. Aletha Maybank examine how the inequitable epidemiological burden of COVID-19 falls on Black, Indigenous, and People of Color communities in terms of tangible indicators such as mortality rates and life expectancy, as well as more ancillary indicators such as job loss and decline in employment income. This chapter demonstrates why such disparities cannot be attributed simply to preexisting conditions such as asthma and obesity; instead, a holistic examination of the impact of white supremacy and racism is warranted. Building on Abbe Gluck’s position that traditional health law should encompass public law that is defined by the role of the government, this chapter compellingly argues that factors such as structural racism are core areas of law related to the social and structural determinants of health, and further shows how nearly all areas of law could be deemed “health law” due to their impact on health equity.

Govind Persad and Jessica Roberts in Chapter 8, “Access to Vaccines and Critical Care Treatments for Older People and People with Disabilities,” take a more theoretical approach, outlining frameworks governing the formal allocation of critical care and vaccines in times of scarcity and exploring whether certain protocols and policies have the result of magnifying disadvantages for older Americans and people with disabilities. This chapter also discusses frameworks that could remediate disadvantages through intentional efforts, but goes on to describe how implementing such approaches could be made difficult due to barriers such as unconscious biases of health care providers and lack of transportation and technology, all of which make it hard for elderly people and people with disabilities to access care.

In Chapter 9, “Humane and Resilient Long-Term Care: A Post-COVID-19 Vision,” Nina Kohn details the devastating number of deaths and infections in long-term care facilities and, as does the chapter on incarceration, likens them to tinderboxes. This chapter attributes “preventable suffering” in long-term care facilities to public health failures, such as the lack of mandates for testing residents and staff, a limited supply of personal protective equipment, and a bumpy vaccine rollout. It also concretely identifies the lack of regulation and failure to implement existing regulations as problems made visible by COVID-19.

Each of these chapters reckons with the possibility that the pandemic “is a portal, a gateway between one world and the next,” as writer and political activist Arundhati Roy has described it. Chapter 6 on incarceration is less optimistic and exposes the tension between the heightened awareness of health risks to incarcerated populations and the state’s continuing appetite for mass incarceration and tolerance for debilitating modes of detention. In Chapter 7, on structural racism, the authors take a more optimistic view, finding that the pandemic’s legacy may include expanded health care access, criminal justice reform, and correction of historical redlining – each of which favorably impacts health equity. In Chapter 8, the authors put forth lessons learned from the pandemic, including the need for “debiasing” care and improving access to resources such as vaccines. Chapter 9, on long-term care, also focuses on what can be learned from the pandemic and outlines how financial incentives can be used to improve the quality of care.

Upon perusing these chapters, the reader will understand exactly why it is a mistake to think of the pandemic as an equalizer instead of a multiplier of inequities. That said, the purpose of these chapters is not to encourage despair, but to foster calls to action and make tangible legal and policy recommendations. It is powerful that these authors see this pandemic as an inflection point for more than mere superstructural changes to the policy framework, and intentionally identify deeper issues, such as mass incarceration, racism, ableism, and the lack of community-based care, as impeding us from creating a safer, healthier, and more equitable future for our society’s most vulnerable people.

I Introduction

What does COVID-19 teach about the lives of people in detention and the obligations of those running such facilities? How should the experiences of this pandemic inform the body politic about COVID-19 and about incarceration?

In a host of ways, COVID-19 has been radically disruptive. Yet, for people in detention, whether housed in jails before trial, in prisons after conviction, or as immigrants potentially subject to deportation, COVID-19 presents challenges that they faced before this pandemic. The loss of free movement and autonomy is what detention in the United States currently is. A risk of contagion accompanies confinement, which too often entails hyper-density as well as profound isolation, if people are held in solitary confinement.

The stunning dysfunction, expense, and racial inequities of the prison system have become topics of national concern. From a variety of vantage points (whether from conservative groups described as “right on crime” or progressive activists), curbing incarceration has become imperative. When COVID-19 hit, some commentators thought that it would provide a new impetus for radical revisions in support of the prison abolition movement. Yet, the heightened risks of COVID-19 atop the other harms incarcerated people face have not, to date, dislodged widespread commitments in the United States to incarceration.

This chapter analyzes how the experiences of COVID-19 for people in detention illuminate both the achievements and the limits of the previous decades. Health care became inscribed as a constitutional right of detained and incarcerated people, yet its implementation remained elusive. COVID-19 underscored the total dependence of detained people on the governments that confine them and made vivid the health care failures endemic before COVID-19 and the degree of connection between prisons and the communities in which they sit. The divisive debates about regulation, government obligations, and the need for joint venturing to reduce the risk of disease have shaped the responses to COVID-19, in and outside the prison gates.

II COVID-19 – In and Out of Prison

Congregate settings such as jails and prisons enable the rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets emitted by coughing and sneezing. People are generally required to share bathrooms, showers, eating areas, and other common spaces. Many facilities are old, dilapidated, and have poor ventilation.

The density of prison populations, before and after the development and availability of COVID-19 testing, vaccines, and treatment, is an obvious problem. Detained people arrive from other institutions, as do visitors and service providers, including full-time staff, contract personnel, vendors, health care professionals, attorneys, and religious leaders. Under usual circumstances, people in need of specialized health care are sent to outside medical facilities.

Once COVID-19 hit, international and national public health organizations began to provide some guidance. In March 2020, the World Health Organization released “Preparedness, Prevention and Control of COVID-19 in Prisons and other Places of Detention.”Footnote ¹ Shortly thereafter, the Centers for Disease Control and Prevention (CDC) put forth its “Interim Guidance on Management of COVID-19 in Correctional and Detention Facilities.”Footnote ² Both documents called for operationalizing basic tenets of infection prevention: cleaning and disinfecting, hand hygiene, testing, contact tracing, quarantining, and medical isolation. Yet, and to the dismay of many health care experts, incarcerated people, and their families, the CDC guidelines were silent on an important facet of prevention: lowering prison population density.

Given poor equipment, limited resources and, at times, a lack of commitment, implementation of the guidance provided was uneven. Most facilities lacked disinfecting supplies and adequately trained personnel to support infection prevention. Despite mandates for soap and hand sanitizer, prisons set time limits on how long people could use sinks; gave out minimal amounts of free soap; required prisoners to purchase (if they could) more disinfectants; and rejected sanitizers because they are often alcohol-based, flammable, or potentially ingestible.

Moreover, many facilities did not have spaces for appropriate medical quarantine. Some people were warehoused in common areas and others put in cells designed to isolate for punishment. Some institutions imposed lockdowns that cut off access to outside health care providers and often prevented specialists, as well as lawyers, family, and other visitors, from coming in. Nonetheless, staff continued to go in and out, and some facilities admitted new people into detention. In public health terms, the result was a “tinderbox scenario” in which rampant spread occurred, in and around prisons.

In July 2020, the New York Times reported that 80 percent of the largest clusters of COVID-19 cases had occurred in prisons.Footnote ³ By November 2020, the health disparities between people residing and working in prisons and the general public widened. Staff in federal and state prisons were 3.2 times more likely to be infected with COVID-19 compared to the US population, and the likelihood for incarcerated people was 1.4 times higher still.Footnote ⁴ As of June 2021, one report identified 398,627 COVID-19 cases and 2,715 deaths of people confined in prisons.Footnote ⁵ In another model of the impact which controlled for differences in race and gender, the death rate from COVID-19 in prisons was three times higher than in the general US population.Footnote ⁶ COVID-19 infection rates in Immigration and Customs Enforcement (ICE) detention were twenty times higher than in the general population and five times greater than in prisons.Footnote ⁷ Yet such estimates were an undercount. Not all systems keep high-quality records or make complete and accurate accountings public. In the summer of 2021, researchers at the University of California, Los Angeles-based COVID Behind Bars Data Project reported that several states had stripped public-facing dashboards of relevant information on infection and death rates.Footnote ⁸ These statistics have public health implications beyond those facilities. As noted, staff members come in and out, and detained people rely on area hospitals for acute care. A 2020 modeling study predicted that, were every intensive care unit bed made available for sick detainees, COVID-19 outbreaks in nine ICE detention centers would, within three months, overwhelm local intensive care units within a fifty-mile radius, and that the capacity to care for others would be greatly reduced. Other researchers focused on the comparable impacts to the community from COVID-19 in prisons.Footnote ⁹ For example, a multi-county study using data from the summer of 2020 estimated that incarceration contributed to over half a million COVID-19 cases both inside facilities and in the surrounding communities.Footnote ¹⁰

III Seeking the Protection of the Law

Documentation of detention facilities’ health care failures came by way of expert analyses provided to legislatures, government officials, and courts. One overview of the inadequacies in the Federal Bureau of Prisons (BOP), with some 120 facilities across the United States, came from testimony by Homer Venters, a physician and epidemiologist who had served as the Medical Director and Chief Medical Officer of New York City Correctional Health Services, and then as a member of the Biden–Harris COVID-19 Health Equity Task Force.Footnote ¹¹ In his April 14, 2021 statement to the US Senate Judiciary Committee, Dr. Venters reported that COVID-19 “revealed a disturbing lack of access to care” in general. To seek care in the BOP, a written request had to be submitted; with and without the pandemic, requests were ignored, mishandled, or received a delayed response.

The consequence, as Dr. Venters reported, was that “when COVID-19 arrived, incarcerated people relied on broken systems of sick call to seek care.” Individuals who did report COVID-19 symptoms were often met with delays; that slow response resulted in belated care and isolation, which meant that contagious individuals could unwittingly transmit the virus to others. For people who had other medical issues, the situation became dire. Many described disabling delays – before as well as during acute phases of COVID-19 – in receiving specialized and necessary care. The result, according to Dr. Venters, was that the “pre-existing weakness in the BOP health services worsened the morbidity and mortality of COVID-19.”Footnote ¹²

Parallels abounded in the states. In October 2021, a California state court judge provided more than 100 pages on the failures in the state. His conclusion was that California’s Department of Corrections had caused “the worst epidemiological disaster in California correctional history;” rather than comply with the various recommendations to mitigate harms, “it chose to litigate the matter while people died.”Footnote ¹³

The lawsuit that prompted that account is one marker of significant changes that have been won by people in detention who, in prior centuries, had virtually no legal protection. In the 1960s, incarcerated people around the United States challenged the injustice of their exclusion from constitutional rights. Through political protests, petitions to government officials, and pleadings in courts, incarcerated people pushed the law to make good on what they read the Constitution to promise: the equal protection of the law and a ban on cruel and unusual punishments. Prisoners asserted that they had rights to a modicum of safety, sanitation, and activities and to protection against violence, such as being whipped, starved, stripped, or held in cold bare cells.Footnote ¹⁴

The specific issue of health care reached the Supreme Court in 1976 through the efforts of J.W. Gamble, who was incarcerated in Texas. He filed a handwritten petition and told a federal judge that, while working, he had been hit by a 600-pound bale of cotton. Although seen by prison doctors, the prison did not follow through on the doctor’s prescriptions and then sent him to solitary confinement as punishment because of his inability to work. Reversing a lower court decision that had thrown Gamble out of court, appellate judges noted the “woefully inadequate” medical services; one facility had a single doctor for 17,000 incarcerated people.Footnote ¹⁵

What does the Constitution say about health care in prisons? The Fifth and Fourteenth Amendments protect “life, liberty, and property” from deprivations without “due process,” and the Eighth Amendment prohibits “cruel and unusual punishments” from being used on those serving a criminal sentence. Before Gamble’s case went to the Supreme Court, a few lower courts concluded that, either as a matter of a person’s “liberty” or because of the ban on “cruel” punishments, prison officials had to provide some health care, but many judges responded to only the direst situations. Writing for the majority honing in on what the Eighth Amendment required, Justice Thurgood Marshall explained in Estelle v. Gamble that the ban on cruel and unusual punishments embodied “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” which required states not to be deliberately indifferent “to serious medical needs.”Footnote ¹⁶

Even as this constitutional pronouncement was a major breakthrough, its test raises many questions. If a prison system does not provide adequate care, why should the intent – as contrasted with knowledge – of the administrators matter? And why should the burden rest with the incarcerated person? Those points were part of the dissent in Estelle by Justice John Paul Stevens, criticizing the majority’s “deliberate indifference” requirement.

Losing and winning is one way to understand what happened thereafter. That ruling insulated prison officials, who could rebut claims by arguing they did not have the requisite level of intent to be subjected to injunctive orders to make changes or be held liable for monetary damages. Less than nine months after Mr. Gamble “won” in the Supreme Court, the appellate court dismissed his case because he could not meet the “rigorous guidelines” of showing the prison system’s indifference to “satisfy” the Supreme Court’s standard.Footnote ¹⁷

Yet the Supreme Court’s decision also opened the courthouse door to arguments about the level and kind of care provided in detention. The opinion has supported a host of court rulings requiring system-wide relief to improve medical and mental health services for people in prison. In 2011, obligations established in Estelle v. Gamble were part of another Supreme Court decision upholding the release of people from prison in California because massive overpopulation rendered it impossible to provide minimally adequate health care.Footnote ¹⁸ Estelle v. Gamble also spawned new organizations aiming to improve care.Footnote ¹⁹ Several private corporations saw the potential for profits. A few have a large market share of lucrative contracts and long lists of complaints about their failures to provide adequate services.

A distinctive feature of the Estelle v. Gamble ruling needs to be highlighted. In contrast to the constitutions of many other countries, the Constitution of the United States has rarely been read to require affirmative support from the government. Many commentators see the Constitution as creating “negative liberties” that produce freedom from government intervention rather than “positive rights” of provisioning. Moreover, even as other countries have social policies that provide for universal health care, as well as education and other benefits, the United States currently does not. Yet the Court’s 1976 requirement that prisons not be deliberately indifferent to serious medical needs does impose an affirmative obligation to provide health care. Prisons are, therefore, one of the few places in the United States where a form of access to health care has a degree of constitutional protection.

In the decades since Estelle v. Gamble, it has become clear that some level of health care should not be equated with high-quality care. Long before the arrival of COVID-19, an array of reports and lawsuits documented the ongoing failures of prison systems to provide minimally adequate care as compared to what was available in the community.Footnote ²⁰

IV De-densification as a Public Health Strategy and as a Legal Obligation

This account makes plain that detention itself is a major source of risk of infections. When COVID-19 hit, social distancing, coupled with masks and, as the science developed, testing and vaccines, became the safety protocols for people for whom these were available. In congregate settings, when masks, testing, and vaccines were often not available, “de-densification” was central. One study identified both testing and de-densification as key, as together they reduced transmission by more than 55 percent.Footnote ²¹

Prison overcrowding is an artifact of decades of social policy. Beginning with the political shifts in the latter part of the twentieth century, a “war on crime,” fueled by racist tropes, produced prosecution policies and sentencing laws that resulted in massive numbers of people held in detention.Footnote ²² Incarceration rates that had been relatively stable (with about 320,000 people incarcerated nationwide in 1980) rose to record highs.Footnote ²³ By the end of 2020, the Federal Bureau of Justice Statistics reported that 1.4 million people were incarcerated in prisons, with another 750,000 held in jails. About 58 percent of the US population was categorized as “white,” even though only 31 percent of people in prison are white prisoners. In this context, as in many others, the risks of detention are borne disproportionately by people of color.Footnote ²⁴

The public health call to de-densify was in sync with the goals of the decarceration movement, which has been vividly embodied in Angela Davis’s call for “prison abolition.”Footnote ²⁵ Advocates’ hope was that COVID-19, along with the myriad harms and costs of incarceration, would widen acceptance of the need to limit incarceration.Footnote ²⁶ Advocates deployed that movement’s slogans (such as “Free Them All”) and coined others (such as “Free Them All 4 Public Health”) to mark the abolitionist aim.

Whether abolitionist or not, an array of communities and professionals mobilized to try to mitigate the risk COVID-19 caused in detention. People in prison and their lawyers filed hundreds of lawsuits, some seeking individual releases and others class-wide remedies.Footnote ²⁷ One theory was that, because COVID-19 infection put a person at risk of illness and death, COVID-19 turned a lawful sentence for a term of years into unlawful detention. The remedy was release, either by “enlarging” the place of custody to permit serving time outside of prison, to admit a person to “bail,” or to grant a petition for habeas corpus.Footnote ²⁸ Another theory was that, under Estelle v. Gamble, prison systems were deliberately indifferent to known medical needs. Some lower court judges agreed and ordered soap, masks, distancing, reduction of time, release of eligible individuals, and more.

These efforts were complicated by a 1996 statute known as the Prison Litigation Reform Act, through which Congress circumscribed judges’ authority to respond when prisoners sought relief from conditions of confinement. One line of COVID-19 cases rejected lawsuits because prisoners had not “exhausted” administrative remedies by asking prison officials for action before going to the courts, even though the public health crisis and the limited kinds of relief in prison grievance programs undermined the utility of such requests.Footnote ²⁹ Other trial-level judges recognized the need for release and did so by shortening sentences or relocating individuals to spend the remaining time in “home confinement.”Footnote ³⁰ Some of those rulings remained in place,Footnote ³¹ but appellate courts stayed or reversed others,Footnote ³² and in a few instances, the Supreme Court (over dissents) blocked relief.Footnote ³³ Those decisions generally relied on prison officials’ arguments that whatever they did to buffer against COVID-19 was sufficient under the test of “deliberate indifference to known medical needs.” Thus, after an initial spurt of lower court judges insisting on methods to lessen the risks to people’s lives and health, several courts showed their tolerance for the status quo.Footnote ³⁴

Courts were one venue to seek de-densification, executive action another. Many communities called on directors of correctional facilities, governors, federal officials, and legislatures to take affirmative steps to de-densify. One response came from Congress in the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act, which became law in March 2020. That Act authorized the Attorney General, during the Act’s covered emergency period, to direct the BOP to expand the number of people eligible for “home confinement” by “lengthen[ing] the maximum amount of time for which the Director is authorized to place a prisoner in home confinement.”Footnote ³⁵ Thus, people who would otherwise not have met the requirements for reassignment were able – if the BOP acted – to serve the remainder of their sentences at their homes or in halfway houses.Footnote ³⁶

On April 3, 2020, the Attorney General made the relevant finding that the emergency conditions created by COVID-19 materially affected the functioning of the BOP.Footnote ³⁷ That decision gave the BOP Director authority to de-densify by letting some people out and lowering the number of people held in close proximity to one another. Yet the BOP used this opportunity less than it could have done. For example, at the sole federal prison in Connecticut, prison officials did little until incarcerated people brought a class-action lawsuit and a federal court issued an order that the prison’s warden had likely violated the Eighth Amendment by failing to release people eligible for home confinement.Footnote ³⁸ As of October 18, 2021, the agency’s website reported that since March 2020, the BOP had released 33,056 people on home confinement and that 7,586 individuals then remained on home confinement status.Footnote ³⁹ Those numbers demonstrate that many released individuals would have been eligible for release even without the CARES Act provision, for they were close to the end of their sentences.

Low numbers of releases were also visible in data from states. For example, by the fall of 2020, 10,000 people were confined in Connecticut state prisons and jails, of whom 3,100 were either held before trial or on misdemeanor convictions – all facing the risks that COVID-19 imposed. A lawsuit challenged those failures, but as some courts took a narrow view of the “deliberate indifference” standard, an agreement was put into place about monitoring conditions rather than releasing individuals.Footnote ⁴⁰

Lawsuits to protect people detained by immigration were at times somewhat more successful than those brought on behalf of people in state and federal prisons. Several facility-wide class-action lawsuits resulted in the release of significant numbers of people from ICE detention, even when lower court decisions were subsequently modified or reversed.Footnote ⁴¹ These ICE detention suits did not face the legal hurdles imposed by the Prison Litigation Reform Act, including its exhaustion requirements. Moreover, because people held in ICE detention are “civil” detainees, their right to health care comes from constitutional guarantees of liberty rather than prohibitions on cruel and unusual punishment. A few judges focused on the lack of health care and did not require demonstration of proof of intent (“deliberate indifference”), as courts have done in the post-conviction context.Footnote ⁴²

In terms of the whole country, between January 2020 and January 2021, the number of people held in jails and in prisons declined somewhat in some jurisdictions.Footnote ⁴³ Yet rather than resulting from releases of people who were already incarcerated, much of that decline was attributed to COVID-19-induced slowdowns in prosecution and in courts, as well as the appropriate reluctance of some prosecutors and judges to put people in confinement while awaiting trial. Moreover, the benefits of these policies did not inure to people of color as they did to white populations.Footnote ⁴⁴ Atop these front-end shifts, only a few governors exercised their pardon, clemency, parole, or other authority to release people from prison, and when they did, it was typically to release only small numbers. One exception came from North Carolina, where the governor, responding to litigation about prison conditions, issued an order for a plan to release 3,500 people.Footnote ⁴⁵

Populations declined in the federally run immigration detention system as well. In the winter of 2020, the government held approximately 39,000 non-citizens for potential removal. By April 2021, that number was down to 14,000.Footnote ⁴⁶ Whether the reduction in population was due to decisions by the Department of Homeland Security to de-densify is not clear; arrests for immigration violations did decline. Some analysts point to the government’s virtual closing of the border as a significant source of the decrease, and this possibility could have more explanatory power than a decrease in arrests inside the country.Footnote ⁴⁷

In general, the consensus among public health experts on de-densification was not met by adequate responses from a host of governmental officials, the CDC included. A few initiatives aspired to do more. For example, “complete clemency” is the shorthand for providing that all the people released from the federal system through the CARES Act and serving their sentences under home confinement should remain outside prison.Footnote ⁴⁸ In addition, the harms of COVID-19 helped to energize efforts in some jurisdictions to legislate to limit the practice of reincarcerating people who may have violated conditions when on bail, probation, or parole. Violations range from committing new crimes to minor problems such as not showing up on time for a meeting or not completing drug testing and mental health treatment. An initiative in New York called “Less is More” had, since 2017, sought to limit using such violations to put people back into high-risk detention. New York City’s Rikers Island provided a horrific example; in the first ten months of 2021, thirteen people – held before trial – died because of an understaffed, lawless, and dangerous facility.Footnote ⁴⁹ New York’s legislature passed “Less Is More,” which Governor Kathleen Hochul signed in that September 2021.Footnote ⁵⁰

Parallel concerns helped to close an immigration detention facility, Bristol County House of Corrections in the Northeast. Advocates in New England documented terrible conditions of confinement and provided crucial support and organizing for the class-action litigation brought on behalf of all people detained at the facility.Footnote ⁵¹ The litigation resulted in a significant reduction of the population at the facility, and, in 2021, the Biden Administration terminated its contract authorizing non-citizens to be detained at the facility.Footnote ⁵² Members of California’s congressional delegation, citing COVID-19, called for closing some of the detention facilities there as well.Footnote ⁵³

V COVID-19 Vaccines: The Promise and Challenges of Delivery in Prisons

As is now familiar, COVID-19 prompted a remarkable effort to produce vaccines; the results exceeded many predictions in terms of timing and efficacy. When vaccine supplies were limited, some states put prisoners, along with others in congregate housing such as nursing homes, on the list of priority recipients.Footnote ⁵⁴ Other states did not, and one court ruled that the state’s categories for access had to treat prisoners the same as others, similarly situated, and make vaccinations available as the state did for all in congregate settings.Footnote ⁵⁵

As vaccine availability increased, the issues turned from access to obligations: Who would get vaccinated, and could vaccines be mandated in detention? Available data suggested that, as of February 2022, in those jurisdictions providing information, the percentage of incarcerated people with at least one dose of a COVID-19 vaccine ranged from 52 percent to 94 percent. The rates of prison staff who had received at least one dose ranged from 23 percent to 82 percent.Footnote ⁵⁶

That variation brought issues of obligation to the fore. In at least one instance, a court directed state facilities to lower the risk of the spread of infection by requiring vaccines for people denoted as “workers” entering the facilities.Footnote ⁵⁷ In the fall of 2021, the White House COVID-19 Action Plan mandated vaccines for federal employees and federal contractors, and applied that requirement to people working for BOP and ICE.Footnote ⁵⁸ In 2022, after the Supreme Court concluded that the Occupational Safety and Health Administration lacked the authority to mandate vaccines and testing for the private sector, the agency substituted guidelines that encouraged those practices and additional care for “at risk” populations.Footnote ⁵⁹ Given the mix of public and private staff in detention facilities, facility administrators became the source of important decisions about how to protect the safety of people in detention and staff.Footnote ⁶⁰

The question of imposing vaccine mandates for detained people is nested in oppressive histories of detention and of medical experimentation. As discussed, given the lack of care in many facilities, people in prison have many reasons to distrust the system that detains them. Further, informational sources are regulated; incarcerated patients face challenges in making well-informed choices. To respect a modicum of autonomy related to health care, most jurisdictions have not required vaccinations against diseases such as influenza.

COVID-19 contagion put stress on that approach. Innovative responses have aimed to address the challenges of ethical and equitable vaccine distribution in prisons. Public health experts focused on identifying “trusted messengers” who could provide information beyond what staff gave to incarcerated people. Such innovative information campaigns aimed to provide accurate knowledge and counteract misinformation. For example, the National Commission on Correctional Health Care and AMEND, based at the University of California, San Francisco Medical School, provided free materials, developed with input from people in detention, on COVID-19 vaccines.Footnote ⁶¹ In Rhode Island, handouts shaped by incarcerated people were provided weeks before vaccines arrived to all people in detention in the Rhode Island Department of Corrections.Footnote ⁶² The University of Massachusetts Medical School, through a contract with the Massachusetts Office of Public Safety, developed a “COVID-19 vaccines in prison” information campaign in several languages and included factsheets, posters, and videos; these were distributed to people incarcerated, staff, and state police.Footnote ⁶³

VI COVID-19’s Lessons

Our account of COVID-19 in US detention from 2020 to 2021 is embedded in the unhealthy (in all senses of that word) attachment to incarceration, which diminishes the well-being of the people required to live in prison, the staff who work there, and the communities and country of which they are a part. The global and national experience of this public health emergency has again underscored that massive incarceration undermines public and personal health. Moreover, even after vaccines rolled out and the end of an acute phase of pandemic came into sight in the United States, COVID-19 is becoming endemic and the risks it poses to people in congregate settings remain high.

Further, COVID-19 is far from the only risk to health associated with incarceration. Prison is bad for people on a host of dimensions. For example, according to 2020 federal data, people in prison have a 2.5 times higher risk of dying from homicides than those in the community.Footnote ⁶⁴ One lesson that COVID-19 ought to have provided is that the hyper-density of detention (coupled at times with the profound isolation of solitary confinement) is unsafe as well as unwise and unjust.

COVID-19 also underscored the interdependence of communities around the world, including prisons, and the centrality of education in improving public health. The conflicts over collective action to respond to the health emergency of COVID-19 took place in many venues. Divides about mask and vaccine mandates, economic support, eviction bans, and religious exemptions in relationship to COVID-19 are intertwined with conflicts about the government’s role in providing help and care more generally. Likewise, insufficient responses to COVID-19 in detention mirrored the lack of sufficient health care in prison for other diseases.

COVID-19 has thus served as a painful reminder that prison is a place where the harms of confinement are known and tolerated. We are “in medias res” – in the middle of understanding the import of the pandemic and in the middle of conflicts about how to generate the political and social will to provide for more safety and to support well-being for all. For people in prison, rethinking detention, with and without COVID-19, is required.

I Introduction

In the United States, the impact of COVID-19 is influenced and exacerbated by an embedded social issue: structural racism and its attendant systemic inequities.Footnote ¹ In this chapter, we address how structural racism – broadly construed as the deeply rooted discriminatory policies and systems that produce the chronic systemic inequities faced by Black, Indigenous, and People of Color (BIPOC) people in American society – have influenced, with notable detriment,Footnote ² COVID-19’s impact in the United States. We argue that the pandemic’s legal and policy legacy will be one of greater realized health equity and racial justice. The United States is at a pivotal political point. The confluence of an ever-looming pandemic intertwined with racial equity protests and a newly elected president provide the political impetus for monumental legal and social change. Notably, because of the pervasive nature of systemic inequities and structural racism, legal and social changes flowing from this pivot point will influence both health and non-health law realms. Probable changes to American law and policy are likely to be immense – historic in both scope and impact. We broadly examine these possibilities, providing an ultimate assessment of the probable far-reaching legal and policy legacy of COVID-19: naming and challenging the foundation of structural racism in the United States.

II Racism in the Epidemiology of COVID-19

Understanding the epidemiology of COVID-19 requires one to name racism as a fundamental cause of health inequity, and to acknowledge that racism and white supremacy have shaped data systems across the country. This has operated in several ways, including failing to collect critically important data, either through colorblind ideology or through the systemic failure to fund critical public health infrastructure, and manifests in the research questions that are asked and the models that are created to explain population health patterns.

On an empirical level, the inequitable epidemiologic burden of COVID-19 has been well established. The earliest studies, emerging in April 2020, warned of a disproportionate cost for marginalized and minoritized groups.Footnote ³ Health equity researchers warned that COVID-19 would amplify existing inequities as it spread throughout the country. As the United States crossed the threshold of 600,000 total deaths from COVID-19, it continued to see the significant inequities that were revealed in the early weeks of the pandemic. The latest data (as of July 2021) show that age-adjusted mortality rates for Latinx and Black people are more than double that of White people (2.3 times and 2.0 times, respectively).Footnote ⁴ Indigenous people have experienced age-adjusted mortality rates 2.2 times higher than for White people; Pacific Islanders have a rate that is 2.7 times higher.Footnote ⁵ This translates into an unprecedented level of excess deaths across the country.Footnote ⁶ If the COVID-19 mortality rate experienced in the White population applied universally to BIPOC communities, more than 21,000 Black, 10,000 Latinx, and 1,000 Indigenous people would still be alive today – estimates that continue to rise every month.Footnote ⁷ This burden is clear in epidemiologic models, and it is clear in empirical data; the latest analysis of national vital statistics data reveal that US life expectancy dropped by a full year in the first half of 2020, from 78.8 years in 2019 to 77.8 years in the first half of 2020.Footnote ⁸ This life expectancy decline was largest among non-Hispanic Black males, whose life expectancy dropped by three years in just one year. Hispanic males also saw a large decrease in life expectancy, with a decline of 2.4 years. Non-Hispanic Black females saw a life expectancy decline of 2.3 years, and Hispanic females faced a decline of 1.1 years.Footnote ⁹ This hit – driven primarily, but not exclusively, by COVID-19 mortality – adds to an already inequitable picture with excess deaths associated with all-cause mortality.Footnote ¹⁰

The disparate impact is also evident regarding problems ancillary to the pandemic, such as the economic recession, which has inflicted a greater toll on BIPOC communities as well. Job and wage losses due to COVID-19 have hit marginalized and minoritized communities hardest; more than half of Hispanic (58 percent) and Black (53 percent) households in the US Census Bureau’s Household Pulse Survey reported a decline in employment income since mid-March 2020.Footnote ¹¹ Black workers have experienced the highest rates of unemployment and the weakest recoveries since the March-April 2020 unemployment peak.Footnote ¹²

Early in the pandemic, it became evident that the country’s public health infrastructure would strain to meet the demand for timely, granular, and actionable data. In particular, it was clear in the first weeks of the pandemic that despite promises to do so, race/ethnicity data were not being collected in systematic and comprehensive ways. These data are critical for understanding injustice and ensuring the optimal health of all communities – but it was gravely missing from COVID-19 test data throughout the country.Footnote ¹³ These data are also missing from many vaccination records, again hampering efforts to challenge racial injustice and center equity. Despite continued problems with missing race/ethnicity data, the inequitable burden of COVID-19 is well established.Footnote ¹⁴

Some have interpreted racial/ethnic inequities in COVID-19 incidence and mortality through behavioral explanations, arguing that patterns are explained by preexisting conditions, including higher levels of obesity, asthma, and heart disease. Yet such logic fails to acknowledge root causes, what epidemiologists call “the causes of the causes.”Footnote ¹⁵ On this point, Data 4 Black Lives is clear: “[W]hy are Black people particularly vulnerable and over-represented among COVID-19 cases and deaths? The conditions that make Black communities vulnerable to the virus are the same conditions that make Black communities vulnerable to the daily harms of structural racism.”Footnote ¹⁶ And as Rachel Hardeman points out, “[O]ur traditional notions of white supremacy keep us focused on hate groups and vulgar language rather than a culture and ideology born from the premise of Black inferiority and false notions of race as biological that have permeated the ways in which we conduct our research.”Footnote ¹⁷

One of the lessons from the COVID-19 pandemic has been the need to reexamine the political underpinnings of public health data systems, particularly the ways that racism and white supremacy have inhibited our collective actions. There are new national efforts in this area, with a Robert Wood Johnson Foundation-funded Commission to Transform Public Health Data Systems noting that it “is the time to fundamentally reprioritize our public health data and related health data systems so they work better to ensure equitable outcomes for all.”Footnote ¹⁸

III Political Pivot Point

A political and social-cultural pivot point has been several years in the making, starting with the Black Lives Matter (BLM) movement,Footnote ¹⁹ and arguably reaching a crescendo in 2020 with the murder of George Floyd, concurrent with the inequitable hardships inflicted by the COVID-19 pandemic. Some data have indicated that the BLM movement reached new heights in 2020, possibly becoming the largest mass movement in American history.Footnote ²⁰ Douglas McAdam, a scholar of social movements, noted that BLM is “setting in motion a period of significant, sustained and widespread social, political change” and that such an achievement by a mass movement is allowing society to experience “a social change tipping point” that is both “rare” and “potentially consequential.”Footnote ²¹

Indeed, public health experts have also noted a “sea change” in America’s growing “recognition of racism as a durable feature of US society and of its high cost in Black lives.”Footnote ²² Moreover, it is important to recognize that the confluence of the BLM protests of 2020 and the COVID-19 pandemic is not accidental; there is a linkage between the two. If not for the COVID-19 pandemic, the strong momentum, size, and influence of the BLM protests in 2020 following Floyd’s death would likely not have materialized to the same extent.Footnote ²³ Hence, viewed broadly, any outcomes toward equity made by the BLM protests of 2020 could also be viewed as part of the broader legacy of the pandemic.

Also significant is the coupling of the BLM political movement – and its power – with the election of President Biden,Footnote ²⁴ and the seismic change transitioning from the Trump Administration to one that is, on the surface, not as hostile to racial and health equity.Footnote ²⁵ For example, President Biden has signaled a willingness to protect the Affordable Care Act (ACA),Footnote ²⁶ and to implement some reforms called for by BLM activists.Footnote ²⁷ Additionally, the Democrats gained control of the Senate,Footnote ²⁸ giving the party complete control of both houses of Congress, along with control of the Presidency, at the beginning of 2021. While there is debate about how much progress the Democrats can accomplish toward racial and health equity, the Democrats’ goals are more closely aligned with racial and health equity goals, and they provide the BLM movement with actualized political power at the federal level. However, it is important to note that much of the law that impacts health equity also exists at the state and local levels. And while there have been gains made at such levels,Footnote ²⁹ local gains vary across the country, as some states are not embracing legal changes advancing health equity. Indeed, there has been significant political pushback. A year after the 2020 election, the scope of gained political power has reached greater uncertainty. Many progressive goals have gone unfulfilled,Footnote ³⁰ and the Republican Party is likely to retake the House in 2022,Footnote ³¹ making the legacy of the political pivot of 2020 somewhat murkier and more nuanced than might have been initially surmised at the height of 2020’s political momentum. Still, the political gains and momentum observed in 2020 further solidify the pivot point in which America currently finds itself – a pivot created by an increasingly influential political and social movement coupled with political power gained in Washington, DC.

IV Legal and Policy Impact

Considering the political moment in which the United States currently finds itself – combined with the historic public health crisis – it is both logical and important to question what the legal and policy impact of this pivotal instance in American history will be. While, in a traditional sense, COVID-19’s societal impact is most likely to be acutely observed within the lens of health care and medicine (as the crisis is, at its core, a public health and medical problem), the impact of COVID-19 in American society will likely be quite broad, especially with regards to the pandemic’s impact on health equity and structural racism. Structural racism – regardless of whether it is directly or tangentially related to health or medicine – has an impact on health, and hence is also key to moving the needle on health equity. For example, police brutality affects health.Footnote ³² When evaluating the pandemic’s legal impact (especially in the context of health equity and structural racism), it is important to use a broad lens to take account of the multi-faceted way in which health and law interact beyond narrow notions of “health law.” This holistic vantage point helps reveal what COVID-19 dramatically exposed – that inequities are structural, engrained, systemic, and inescapable, continually reinforcing flawed systems in all domains of daily life.

V Conclusion

The legacy of the pandemic in the context of structural racism is unfolding; its path, while uncertain, contains promise to better effectuate health equity in the United States. How far the pandemic will move the country toward health equity is difficult to predict with precision; however, the unique moment presents the possibility of significant, if not monumental, progress. We believe that the legacy of COVID-19 in the context of American structural racism will be one that yields greater health equity; however, this outcome is not certain because while there are clear forces that can help propel America to greater health equity, opposing forces remain and will mitigate gains. While we offer our analysis as a predictive legacy informed by what has unraveled thus far, we also hope that it inspires and informs key stakeholders of the critical policy and legal areas on which to focus energy in the wake of the “twin crises” of the pandemic and structural racism.Footnote ⁶⁷ Indeed, it is no guarantee that the arc of history will “bend” toward justice; it must be actively steered and pulled toward an equitable destination.Footnote ⁶⁸ The future is in our hands.

I Introduction

The COVID-19 pandemic placed older people and people with certain disabilities at especially acute risk of death. This risk did not stem merely from the virus, but from unfair policies during the pandemic. This chapter focuses on two resources that were scarce at different points in the pandemic: (1) critical care interventions; and (2) vaccines. We explore both formal allocation guidelines and their implementation, focusing on older adults and people with disabilities.Footnote ¹ We conclude that while inclusive, non-discriminatory policies are necessary, they are insufficient alone. True fairness and equality require addressing biases and inequities in implementation.

II Critical Care Resources

Patients who are severely ill, whether with COVID-19 or other conditions, often need critical care. When need exceeds availability, difficult choices among patients arise. Ventilator scarcity was publicized early in the US pandemic response, but rarely materialized. More common has been scarcity of staff, intensive care unit (ICU) beds, equipment such as dialysis machines, and supplies such as oxygen. This part explores US crisis standards of care, starting with written policies and then turning to implementation.

Crisis standards of care are formalized resource allocation protocols designed to guide health care providers in emergencies. They articulate how scarce, potentially life-saving health care should be distributed when need outstrips availability. How can we ensure that protocols for responding to scarcity treat older people, or people with preexisting medical conditions or disabilities, fairly? Three concerns about protocols should be distinguished: (1) whether an outcome is fundamentally inappropriate to consider; (2) whether considering an outcome may exacerbate disadvantage; and (3) whether predictions regarding an outcome may be inaccurate.

Some fairness concerns may apply more broadly than others. Legally, protections against disparate treatment (for instance, exclusion of specific medical conditions) often apply to individuals rather than groups. In contrast, protections against disparate impact – protocols that may create unequal outcomes – require considering population-level effects.

III Vaccines

As the pandemic progressed, interventions that forestall the need for critical care – ranging from new therapies for COVID-19 patients to vaccines that could prevent COVID-19 infection – became available but were often scarce. This part turns to the allocation of therapeutics and preventatives with a focus on vaccine prioritization and access. In this context, older Americans and Americans with disabilities were often given formal priority in written protocols, but this priority often did not translate into actual priority in access.

Few advocated benefit-insensitive (first-come, first-served or random) vaccine distribution. Nor was individualized assessment required: categorical inclusions and exclusions based on health status or age were typical. This likely reflects the fact that vaccines and therapeutics present less tension between addressing disadvantage and preventing harm: those whose disadvantage worsens their prospect of benefit from a ventilator or ICU bed also gain most in relative safety by becoming vaccinated.

Debates over vaccine prioritization focused on the list of categorical inclusions: which medical vulnerabilities would make a person eligible for early vaccination. The Centers for Disease Control and Prevention (CDC) listed specific medical conditions associated with greater COVID-19 risk, and many studies identified similar high-risk conditions.Footnote ¹⁹ These studies, however, typically focused on infection fatality rates – that is, risk among those infected – rather than risk of exposure to COVID-19.

Considering exposure risk would also recommend prioritizing people living in congregate settings and potentially those whose medical vulnerabilities preclude effective protective measures, such as masking or socially distancing. In contrast, conditions that do not affect exposure risk or risk if infected were not a basis for accelerated eligibility. Just as certain disabilities, such as those affecting mobility, qualify individuals for parking permits but others do not, conditions such as Down syndrome that increase risk of severe outcomes if infected should support early eligibility for COVID-19 vaccines, while conditions that do not increase risk should not.

Most states used an “honor system,” requiring only self-attestation of medical risk.Footnote ²⁰ This approach avoided the need for documentation. But it allowed people at lower risk who misinterpreted guidance or willfully misrepresented their status to receive vaccines before people at higher risk. Additionally, while some states prioritized people with multiple risk-increasing conditions, few prioritized among risk-increasing conditions, even though certain conditions (such as Down syndrome or cancer) appeared to increase risk much more than others. Some states allowed providers discretion to manage medical eligibility.Footnote ²¹ This approach might be superior to an “honor system” at matching eligibility to actual risk and be more inclusive of people at high risk because of uncommon conditions, but could present challenges for individuals without providers and introduce subjective judgment by providers. An alternative approach would be active outreach and provision of vaccine appointments to people with documented high-risk conditions, rather than requiring individuals to assess their own risk or provide proof.Footnote ²² This approach was used in some health systems but presents challenges due to health system fragmentation.

In contrast to many states’ total removal of age from critical care distribution protocols, vaccine eligibility was often based on older age alone. Age was a reasonable access criterion given the sharply increasing risk of COVID-19 death at older ages. However, one-size-fits-all age cutoffs, such as 75, were criticized for exacerbating disadvantage and health disparities, given that disadvantaged people and people with certain disabilities face shorter life expectancies and higher COVID-19 risk earlier in life than others.Footnote ²³ Empirical research also demonstrated that including factors other than age was both more equitable and prevented more harm than age cutoffs.Footnote ²⁴ In response, some states lowered age thresholds or permitted universal eligibility for certain populations, such as Federally Qualified Health Center patients.Footnote ²⁵

A few states even attempted to use age as the only criterion for vaccine access, touting its administrative simplicity and strong correlation with risk.Footnote ²⁶ These approaches quickly faced challenges for excluding individuals at high medical risk,Footnote ²⁷ and they may have also been inconsistent with regulatory language interpreting the Age Discrimination Act, which prohibits the use of age as the sole determinant of access to treatment. These approaches were either revised or became moot with universal vaccine eligibility.

IV Barriers to Implementation

While attempts to adopt non-discriminatory allocation policies are laudatory, these efforts alone will not be sufficient to ensure that older Americans and Americans with disabilities receive the care that they deserve during a public health crisis.

V Recommendations

Drawing from the lessons of the pandemic, we make the following recommendations for ensuring the fair allocation of limited health care resources.

VI Conclusion

Several states adopted openly discriminatory resource allocation policies, especially in the early days of the pandemic. Much attention was given to these policies, and they were revised before being put into place. Most disparities, however, appeared to stem from problems in implementation. Regardless of crisis standards of care and vaccine distribution policies, older Americans and Americans with disabilities may still experience disparities. These issues do not disappear in the course of a pandemic, when tensions run high and resources run low. We have certainly learned many lessons from the current public health crisis. However, if we are serious about health equity in the future, adopting non-discriminatory and inclusive policies will not be enough. We must address the causes of health disparities in health care delivery to ensure that these laudable standards do not falter at implementation.

I Introduction

Long-term care institutions were ground zero for the COVID-19 pandemic in the United States. The first reported outbreaks in the country were in long-term care institutions; such facilities continued to experience very high rates of infection and death during the first two years of infection, and substantial risk well into 2023.Footnote ¹

Long-term care residents make up less than 1 percent of the US population. Yet, by January 2021, before the benefits of the COVID-19 vaccinations had been realized to any significant extent,Footnote ² residents and staff of these institutions accounted for 38 percent of all US deaths from COVID-19,Footnote ³ and nursing home residents alone accounted for about 25 percent of confirmed US deaths.Footnote ⁴ A year later, residents and staff of long-term care facilities still represented a very disproportionate share of COVID-19 fatalities – as of January 2022, they accounted for at least 23 percent of all COVID-19 deaths in the United States.Footnote ⁵ This chapter explains the underlying causes of this devastation and what can be learned from it to improve the future quality of long-term care. It shows how the patterns observed in long-term care facilities are the combined result of an inadequate public health response to the needs of long-term care residents, preexisting regulatory failures that rendered long-term care institutions infection tinderboxes, and policies that steered vulnerable adults into these institutions in the first place. It then suggests the regulatory and cultural shifts needed to create a more humane and resilient model of long-term care.

II The Crisis in Long-Term Care Institutions

In the United States, long-term care facilities fall into two major categories. First, there are nursing homes, highly regulated institutions that provide skilled medical and custodial care to adults with substantial chronic-care needs. Second, there are assisted living facilities, which provide a varied combination of housing, meals, and health-related services to adults with a broader range of care needs.

Residents of both types of long-term institutions are highly susceptible to COVID-19, as they are to other infectious diseases. Living in a congregate care setting impedes social distancing, and the flow of staff and visitors in and out of facilities creates many potential vectors of contagion. In addition, residents’ underlying health conditions make them highly vulnerable to the effects of infections, increasing the likelihood that they will experience serious illness and death if infected with COVID-19.

However, as detailed in this part, COVID-19’s disastrous impact on residents of long-term care institutions cannot be explained simply by residents’ susceptibility to infection. Rather, it also reflects an inadequate public health response to COVID-19 in these facilities, as well as a preexisting regulatory failure that left long-term care residents unreasonably vulnerable to pandemic conditions.

III A Path Forward

The problems made visible by COVID-19 suggest the need to improve the regulatory framework governing long-term care facilities.Footnote ³⁵ This section outlines regulatory changes that could better align financial incentives with quality of care and advocacy strategies that could help pave the way for such reforms.

IV Conclusion

The vulnerability of nursing homes and other long-term care facilities to COVID-19 both exposes the failures of current regulatory schemes designed to protect residents and points to what needs to happen to build a humane long-term care system that is resilient to public health disruptions. Fortunately, the policy changes needed to make long-term care resilient and humane are not radical; they would merely bring interventions that have been applied in other health care contexts into the long-term care space. However, making these changes will require confronting not only entrenched financial interests and institutions, but also the underlying attitudes that have enabled systems that normalize isolation and suffering.