University of Cincinnati Law Review


The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these cases—each a potential stumbling block for courts and litigants—and discusses their implications for future litigation and doctrine. Specifically, the Article addresses the following: (A) the relationship between habeas corpus and classic “conditions of confinement” cases; (B) the nature of Eighth Amendment “deliberate indifference” in this context; (C) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (D) issues involving federalism and comity and how such concerns may motivate stricter enforcement of exhaustion requirements; (E) whether temporary release in the Eighth Amendment habeas context is better conceived of as preliminary or final relief; and (F) the fraught interplay between rights and remedies. The Article concludes by suggesting potential solutions for courts and legislatures.