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. 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.
Nadia Banteka & Erika Nyborg-Burch,
Rethinking Constitutionally Impermissible Punishment,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol98/iss1/2