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August 25, 2021

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

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 dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas 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 courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances 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.

August 25, 2021 at 01:13 AM | Permalink


Prof. Berman: I'm a practicing attorney primarily dealing in post-conviction matters. I'm about to file a 2241 habeas petition for a military client in BoP custody and was looking at the COVID-19 issue as my client has a number of other health-related conditions. Is there any way to publish a link where one could download this article? If so, it would be greatly appreciated - especially for those of us who check your blog every day.


Posted by: Donald G Rehkopf, Jr. | Aug 25, 2021 1:03:16 PM

Hey Donald: I think the paper is now available via the SSRN link as of 3pm on 8/26

Posted by: Doug B. | Aug 26, 2021 3:02:21 PM

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