theory

Introduction

 

Law is not a static enterprise. If it were, non-“free” individuals would legally only be counted as three-fifths of a person, and disabled people would have no protections against discrimination. Rather, the law and courts’ interpretations of it have both severely constrained and expanded – though people may disagree to what degree – freedoms in the United States. The current era has regrettably seen courts construe the originally liberating Eighth and Fourteenth Amendments quite narrowly so as to make success often just out of reach for abolitionist attorneys or incarcerated people filing complaints pro se (representing themselves). However, prisons and jails are not equipped to adequately adhere to the rights of people with disabilities and have a long history of violating those rights. Advocates must be willing to keep pushing the boundaries imposed on the Eighth and Fourteenth Amendments to not only argue for the humane treatment of disabled incarcerated people but to go even further by arguing for the abolition of carceral systems that isolate and abuse disabled individuals.

Background

The movement for abolition is not new, though it has gained more attention in mainstream media in recent years, nor is the movement confined to abolishing jails and prisons. In 2018, the Abolition Collective published Abolishing Carceral Society, which includes a manifesto for abolition: “[W]e also refer to all revolutionary movements, insofar as they have abolitionist elements – whether the abolition of patriarchy, capitalism, heteronormativity, ableism, colonialism, the state, or white supremacy. Rather than just seeking to abolish a list of oppressive institutions, we aim to support studies of the entanglement of different systems of oppression [ … ] to create spaces for collective experimentation with those tensions.” Abolitionists in part draw the connection from slavery to Jim Crow laws to mass incarceration to inhumane carceral conditions to argue that it would be impossible to reform systems that are predicated on the subjugation of Black people; instead, those systems must be dissolved entirely. 

There is a particular urgency to prison and jail abolition now as the COVID-19 virus ravages communities across the United States, posing a particular threat to incarcerated people. The Marshall Project has been collecting data since March 2020 on the number of incarcerated people in each state who have contracted or died from the virus.  In Texas, for example – a state with one of the highest numbers of total cases  and one of the largest prison populations in the country – there have been nearly 26,000 reported coronavirus cases and 168 reported deaths from coronavirus among people in prison. The rate of known cases among people in Texas prisons is 494% higher than in Texas overall, while the rate of deaths is 104% higher. 

The grotesque violation of the rights of disabled people by jails and prisons provides fertile ground for the abolition movement. Title II of the 1990 Americans with Disabilities Act (ADA), a historic yet imperfect document codifying the rights of disabled Americans, states, “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.” As private and public state and federal carceral institutions are considered public entities, they must adhere to the rights outlined in the ADA. Given this foundation, it could be possible to argue that incarceration itself is inherently discriminatory on the basis of disability under title II of the ADA. For example, in Olmstead v. United States, 277 U.S. 438 (1927), the Supreme Court held that “unjustified isolation [ . . . ] is properly regarded as discrimination based on disability.” Section 35.152(b)(2) of the ADA applies this integration mandate to detention facilities, providing a clearly-entrenched foundation for abolitionist claims on the basis of disability.

Although some abolitionist advocates and scholars have pointed to the ADA as a tool to argue for abolition, many have avoided relying on the United States Constitution for such purposes. Not only have abolitionists traditionally not viewed the Constitution as particularly useful for the movement, but some have also argued that it is actually actively against the movement, as constitutional law has so often been used to condone violence against Black and disabled people. In 1883, Frederick Douglass lamented, “In the dark days of slavery, this court, on all occasions, gave the greatest importance to intention as a guide of interpretation. The intention of the law, it was said, must prevail. Everything in favor of slavery and against the negro was settled by the intention…. We were told that the intention of the constitution was to enable masters to recapture their slaves and that the fugitive slave law was constitutional.”    In other words, those in power opted to interpret the Constitution in whichever way would maintain white supremacy in the United States: first by focusing on the Constitution’s intention to uphold slavery, and then, after the Fourteenth Amendment was adopted, by entirely ignoring intent in order to eschew meaningful equality. However, despite the often restrictive ways in which the Supreme Court has interpreted key constitutional provisions, the language and intent behind those provisions can still be construed in creative ways to fight for the rights of incarcerated individuals and ultimately argue for the abolition of the prison industrial complex.

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The Eighth Amendment

 

Indifference from Prisons to Courts

Historical Underpinnings

The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Like many aspects of early American law, its origins come from England, whose Bill of Rights includes a provision against the infliction of cruel and unusual punishments. This provision was added to the Bill of Rights in large part after a case in which a man convicted of lying in court was not only imprisoned but also publicly whipped each year. Judge William Blackstone later described the “cruel and unusual punishments” clause as restricting the courts’ discretion.   In the United States, the Eighth Amendment was ultimately adopted as part of the Bill of Rights to ensure that punishment would not be disproportionate to the crime committed.  

Historically, advocates have attempted to use the Eighth Amendment to argue that various egregious types of treatment of people with mental health conditions or physical disabilities in jails and prisons are “cruel and unusual punishment.” Many have focused on the provision of health care, as incarcerated people’s only means of obtaining care is from prison or jail staff.   This approach has been met with little success, as the Supreme Court has interpreted “cruel and unusual” to require a showing of deprivation of a basic human need or exposure to serious harm, and of “deliberate indifference” by the defendant.   The latter is entirely subjective, and the Court takes no issue with prisons being “restrictive and even harsh.” However, as the Abolition Collective’s manifesto for abolition reminds readers, “Abolitionist politics is not about what is possible, but about making the impossible a reality. Ending slavery appeared to be an impossible challenge for Sojourner Truth, Denmark Vesey, Nat Turner, John Brown, Harriet Tubman, and others, and yet they struggled for it anyway.”    It may appear nearly impossible for an incarcerated plaintiff to succeed in a case against prison or jail officials on Eighth Amendment grounds, but that by no means requires advocates – whether they be on the inside or outside – to stop striving to make success a reality. 

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Establishing the Standard

A finding of “deliberate indifference” requires that the defendant was not only aware of the risk to a person’s health or safety but also dismissed that risk.16 Prison and jail staff may not disregard circumstances that are “sure or very likely to cause serious illness and needless suffering.” 17 In the rare instances when the Supreme Court has found that a type of punishment violates the Eighth Amendment, it has noted that such punishments have become unacceptable due to “evolving standards of decency.”18 What types of punishments do we, as a society, currently accept? At what point do we decide that an individual ought to live and die in extreme pain and seclusion? Is it when they are being held in jail pretrial because they cannot afford bail? Is it after they have been convicted of an offense? Or is it possible that our society would not find this degree of punishment to fit into our “standards of decency” – either today or in the near future? Supreme Court Justice Clarence Thomas certainly does not seem concerned by this type of treatment. According to him, “[A] use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment.’”    For at least some, then, immoral harm against an incarcerated person with few – if any – remedies does not constitute cruelty. Fortunately, Justice Harry Blackmun was deeply concerned by Thomas’s approach to the Eighth Amendment. He argued that if the Court were to require a significant injury requirement, “we might place various kinds of state-sponsored torture and abuse – the kind ingeniously designed to cause pain but without a telltale ‘significant injury’ – entirely beyond the pale of the Constitution.” 

We interviewed ten disabled and/or chronically ill individuals at a county jail, all of whom have experienced abuse at the hands of jail staff. Of the ten people we interviewed, seven mentioned not receiving the pain medication they desperately need;   eight described the jail’s refusal to provide necessary medical procedures, including surgery, bloodwork, and x-rays;    four were in need of assistive devices such as wheelchairs, canes, and walkers, but were refused them by jail staff; and five discussed being put in solitary confinement, which worsened their mental and physical health symptoms.    One person who spent a year in solitary told us about “talking to walls,”    and another could barely talk about the impact being in solitary had on his “PTSD, severe depression, antisocial disorder, anxiety, and paranoid schizophrenia.”     A third interviewee said he was put in solitary after a guard told him he was walking too slowly due to his cane.   Most people who required prescription-strength medication just to get through the day were told their only option was to buy their own Tylenol from commissary – even people with pre-existing liver conditions. 

To those we interviewed, and to the average person on the street, these acts by jail staff should be understood as deliberate indifference and cruelty. But given the limited way in which the Eighth Amendment has been applied to prison and jail conditions cases, would courts necessarily agree? In the context of medical care, there is a two-step analysis: first, determining whether the incarcerated individual has a serious medical condition of which the defendant was aware, and second, the defendant must have been deliberately indifferent to that condition.   As discussed above, courts are willing to allow incarcerated people to be subjected to substantial harms as long as they are receiving the most minimum amount of care.   The question becomes, why do courts – or any of us, for that matter – accept such mistreatment, and how can we create a shift in interpretations of the Eighth Amendment?

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Lived Realities

Some lower courts have already attempted to inject more humanity into the application of the Eighth Amendment. If the language in those decisions were picked up more broadly and expanded, people like those with whom we spoke could substantially benefit. In one case, a detention facility was so unable to care for a disabled man that staff had to allow him to return to his own home to take showers and use the bathroom. His “handicap-accessible” cell was not sufficiently accommodating, given how low the toilet was, the lack of grab bars along his bed, and the lack of padding on the bunk itself to prevent pressure sores. One day, he fell and severely injured himself. The judge was forced to vacate his sentence because the facility could not care for him; meanwhile, this man lost four years of his life just to recover from the worsening of his conditions from his time in jail. After he sued the facility, a court decided in his favor that “inaction constituted deliberate indifference.”    In another case, an incarcerated man with Amyotrophic lateral sclerosis (ALS) succeeded on an Eighth Amendment claim due to the prison’s failure to appropriately accommodate him per the ADA. The prison denied the plaintiff use of a cane, step-free access to his cell, accessible sanitary facilities, and his prescribed medications. 

Nearly everyone we spoke to discussed inaction regarding their needs: from having a pass for a bottom tier cell due to a severe back injury but always being placed in an upstairs cell, to not receiving gallbladder surgery despite a doctor’s instruction to operate, to throat cancer only being addressed with antibiotics, to not receiving treatment for a long-standing Hepatitis-C diagnosis. These individuals were not given the option to just go home several times per day to get the treatment they desperately need as in Schaub – nor could they have afforded such treatment anyway. In each case, medical staff were aware of the severity of the condition, and consciously chose not to act. Such inaction can only be described as deliberate indifference to the suffering that resulted from lack of treatment. Delays in treatment are only made worse when they will exacerbate a person’s condition or suffering, which was certainly the case for the interviewee whose cancer went undiagnosed for over five months and for the interviewee whose untreated Hepatitis-C only intensified his severe liver disease symptoms. When medical staff knowingly delay needed treatment for no legitimate reason, they act with deliberate indifference.    Many of those we interviewed also alleged violations that mirror Kiman’s with shocking accuracy, from denial of mobility aids to simple living space modifications. This failure to provide clearly necessary medical support and accommodations as required by the ADA may also be characterized as blatant and deliberate indifference.

 

The county jail that is the focus of this project not only refused to provide interviewees with necessary pain medication – even if they had been taking prescription-level medication before going to jail – but frequently told interviewees to instead buy their own over-the-counter Tylenol from commissary. Clearly, medical staff did not believe these individuals’ pain was severe enough to warrant stronger medication; perhaps they were opting to wait until the conditions had worsened.   A 12-pack of Tylenol from commissary costs $2.79; meanwhile, Walgreens charges $2.99 for a box of 100 acetaminophen tablets. For people in this jail who take four Tylenol each day, spending $2.79 every few days adds up very quickly. As one interviewee told us, “Every Tylenol I buy, it takes away from [my family]. I feel like it’s a burden and it shouldn’t be. It’s just a couple Tylenol, why can’t they give them to me?”    Given the jail’s responsibility to provide adequate healthcare for incarcerated people, these practices cannot stand.   It is “absurd” that “over-the-counter medications should not be provided to” incarcerated individuals.    In one recent Eighth Amendment case in which an incarcerated individual with a chronic health condition was forced to pay $3.28 to buy Zantac from commissary every day, the court found that the “senseless series of decisions by the prison’s medical staff” was “heartless” given the plaintiff’s severe pain.   After all, the court noted, “Prisoners aren’t supposed to be tortured.”    Further, one of the defendants argued he had only prescribed the medication for the plaintiff initially as a “courtesy,” but the judge responded that it was a “significant deprivation” for the plaintiff to then go without his medication for a month.    Nearly everyone we interviewed at the county jail had gone without necessary medication for far longer than one month.    For some, it was because the jail refused to give them the medication at all; for others, the delay was due to the jail’s failure to prepare a refill in time.

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Paths Forward

Although majority opinions have the most influence over how we think about the potential of the Eighth Amendment moving forward, a number of dissenting opinions contain instructive language, as well. Many strong dissents are quite recent, potentially due in part to the added threat of the coronavirus to chronically ill or disabled people in jails and prisons. One expert witness described a Texas prison as a “tinderbox”    for COVID-19, to which Justice Sonia Sotomayor added, “[T]he vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities. These inmates are some of the most vulnerable in the country to the current pandemic.”   Sotomayor’s words formed part of her dissent against the Court’s decision to uphold the Fifth Circuit’s stay of an injunction that would have required prison officials to implement basic safety procedures. She criticized the Fifth Circuit for risking “serious and irreparable harm” to the older people incarcerated at this Texas prison, a risk that “far outweighs any risk of harm” to the Texas Department of Criminal Justice.    If courts are so focused on both believing and protecting prisons and jails, regardless of the cost to human life and well-being, how are incarcerated people ever supposed to succeed in litigation advocacy? Particularly due to the coronavirus, incarcerated people with chronic health conditions do not have the time, let alone resources, to engage in lengthy court battles – and departments of correction know this. Every day spent in jail is another day spent unable to properly social distance or obtain essential medication.    Every day spent in jail for a disabled or chronically ill person is one spent “in pain, screaming into a void.”

Prison and jail staff often complain that providing adequate – not to mention good – healthcare to incarcerated individuals is just too expensive to merit justification. If there is any room to argue that a particular medication or treatment is not actually a medical necessity, they will, and proceed to withhold such treatment. Incarceration, though, is an expensive business. According to the Prison Policy Initiative, mass incarceration costs $182 billion every year.    Prisons and jails should use those resources to “fulfill [their] legal and moral obligation to care for the lives of those in [their] custody,”    not to generate private profit from the inhumane treatment of people reliant on them for healthcare.

 

It is evident that prisons and jails broadly, and the county jail on which we focused in particular, are neither equipped for nor interested in caring for the physical or mental health of incarcerated people. Carceral systems that break down the body and the mind cannot possibly be designed or redesigned to set anyone up for success upon release. Those we interviewed will leave jail with worsened mental health symptoms, including PTSD, and advanced medical conditions that went untreated for months, if not longer. Many will require assistive devices and medications that they did not need pre-incarceration. If the Eighth Amendment is truly meant to protect these individuals from cruel and unusual punishment, especially in circumstances with such stark imbalances of power, then it should be a potent tool in the movement for abolition. As Colonel R.G. Ingersoll, an abolitionist preacher, opined after the Supreme Court’s restrictive interpretation of the Fourteenth Amendment in 1883, “Every court should … give the broadest meaning to every statute or constitutional provision passed or adopted for the preservation of freedom.”     The Eighth Amendment was meant to protect individuals’ freedoms, not restrict them, and ought to be construed as broadly as possible to make those protections a reality for incarcerated people.

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The Fourteenth Amendment

Equality Enacted

The Constitution has not always been understood to be anti-abolitionist or as upholding a racist and ableist status quo. The Reconstruction Amendments – the Thirteenth, Fourteenth, and Fifteenth Amendments – were born out of the violence and subjugation of slavery and period after the end of the Civil War. The Fourteenth Amendment specifically was adopted shortly after the Memphis massacre, during which 46 Black people were murdered and white supremacists burned churches, schools, and homes to the ground. In the wake of the massacre, Congress sent a committee to Memphis to investigate. The committee chastised local authorities for their complete failure to provide justice or a remedy to Black people in Memphis, writing: “Such is the prejudice against the negro that it is almost impossible to punish a white man by the civil courts for any injury inflicted upon a negro.”    Several months earlier, President Johnson had sent Carl Schurz on a fact-finding mission to the South to document the violence perpetrated by white Southerners against newly freed Black people and the unwillingness of law enforcement to respond to such violence. Between this report and the commission’s findings on the Memphis Massacre, members of Congress were acutely aware of just how far freed people were from being truly free. Both reports certainly influenced lawmakers to adopt the Fourteenth Amendment. Still, even the most abolitionist members of Congress were forced to compromise with their colleagues in order to secure the passage of the Reconstruction Amendments. These compromises, notes historian Eric Foner, “reflected ambivalent attitudes … about the scope of racial equality. They attempted a partial, not total, modification of the existing federal system.”    This modification was carried out by an all-white Congress    and initially interpreted by an all-white Supreme Court, which distorted the history behind and impetus of the Fourteenth Amendment all while claiming to have intimate knowledge of such details due to its temporal proximity to the amendment’s adoption. 

The ADA may provide a strong historical and textual foundation for Fourteenth Amendment claims in furtherance of abolition. If we conceptualize the Fourteenth Amendment within its Reconstructionist history, it was intended as a charter of liberties, promising all persons the right to life, liberty, and property. Notably, it does not define precisely what is meant by “life, liberty, and property,” leading to over a century of legal debate on the topic. For disabled people, the ADA serves as an elaboration of their standard of liberty – much like the Civil Rights Act of 1964 does for race, color, religion, sex, or national origin.    One explicit intention of the ADA was to allow disabled people “to participate in State and local government programs and services.” As indicated above, all jails and prisons fall under this category and are thus required to adhere to the standards of the ADA. Framing the ADA as an outline of disabled persons’ basic liberties imbues the Fourteenth Amendment’s promises with the greater specificity needed to ensure it serves its purpose of equal protection.

 

Martha Jones, meanwhile, argues that the Reconstruction Amendments gain their meaning not only from the immediately preceding events but also from the ways in which newly freed people enacted their citizenship through interstate travel, religious assembly, legal participation, and property ownership.   Despite the jail’s numerous attempts to subjugate, isolate, and silence those we interviewed, these incarcerated individuals remained fiercely determined to assert their freedom and equality. They continue to advocate for themselves on the inside, and in the meantime, shared their stories with us to help them advocate outside jail walls. Through their words and artists’ illustrations, they actively perform their citizenship regardless of whether jails, courts, or the outside world recognize the scope of their freedoms.

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Conclusion

When the Supreme Court decided the Civil Rights Cases in 1883, soon after the adoption of the Fourteenth Amendment, there was a general outcry, particularly among Black Americans, that the Court was not willing to afford full protection to individuals facing private acts of discrimination and violence due to race or another protected status. Frederick Douglass famously said, “[The Court] has seen fit in this case, affecting a weak and much-persecuted people, to be guided by the narrowest and most restricted rules of legal interpretation. It has viewed both the constitution and the law with strict regard to their letter, but without any generous recognition of their broad and liberal spirit.”    Unsurprisingly, this decision ultimately led to the enactment of Jim Crow Laws and racial segregation in housing, employment, and daily life across the country. Similarly, the Supreme Court’s incredibly limited interpretation of the Eighth Amendment has empowered prisons and jails – not to mention police departments, prosecutors, and other elements of the prison industrial complex – to subject incarcerated individuals to cruelty, often with impunity. 

However, the Supreme Court has changed its position in the past and could do so again in the future. As Dorothy Roberts points out, because there continue to be various interpretations of the Constitution, there remains “potential for prison abolitionists to reclaim an abolition constitutionalism – or construct a new one – that facilitates rather than impedes the completion of the freedom struggle begun by their predecessors.”     There is still an opportunity for abolitionists to employ a broad understanding of the Eighth and Fourteenth Amendments, as both Frederick Douglass and Colonel Ingersoll encouraged. 

At the same time, courts cannot be advocates’ only avenue to push for abolition. Despite our society’s “evolving standards of decency,” in cases that could contribute to dismantling the prison industrial complex, courts seem to fear “too much justice.”    As Colonel Ingersoll reminded an audience during a civil rights mass meeting in 1883, “It must be remembered that judges were but men. Once a decision of the supreme court was unquestioned; it was regarded as ‘a voice from on high.’ The Dred Scott decision destroyed that illusion. It must also be remembered that the judges ... find what has been, not what ought to be…. In this country the people are sovereign, and have the right to question the acts of their agents.” Incarcerated people have the right to challenge the acts of prison and jail officials, not just in courtrooms but also in public opinion. If the greater public is unaware of how disabled and/or chronically ill individuals are being treated in carceral settings, there will be little impetus for political or practical change. Those we interviewed shared their stories to advocate for short-term reform and educate people on the outside on the necessity of long-term change: abolition of jails and prisons, which are woefully unable to care for people with medical or psychiatric needs. In the words of one interviewee, “We need people; we need you.”

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  1. Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y. Times Magazine (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html; John Washington, What is Prison Abolition?, The Nation (July 31, 2018), https://www.thenation.com/article/archive/what-is-prison-abolition/; see also Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html.

  2. Abolishing Carceral Society 4 (Abolition Collective ed., 2018). 

  3. Dorothy E. Roberts, Abolition Constitutionalism, 133 Harv. L. Rev. 1, 4-5 (2019).

  4. Katie Park, Tom Meagher, and Weihua Li, Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020, 3:05 PM), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons.

  5. A State-by-State Look at Coronavirus in Prisons, The Marshall Project (Nov. 20, 2020, 7:43 PM), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.

  6. CDC COVID Data Tracker, Centers for Disease Control and Prevention (Nov. 29, 2020, 1:32 PM), https://covid.cdc.gov/covid-data-tracker/#cases_totalcases.

  7. State prisons are public entities per 524 U.S. 206 (1998), while federal prisons fall under section 504 of the Rehabilitation Act of 1973. Section 35.152(a) of the ADA explicitly applies Title II to both public and private facilities, upheld by Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998) (stating that the ADA covers the operations of State prisons, meaning ADA Title II applies to State and local jails and prisons).

  8. Cf. U.S. v. Georgia, 546 U.S. 151 (2006) (leaving open the question of viability of ADA Title II claims challenging conduct that does not also violate the Fourteenth Amendment).

  9. Abolition Constitutionalism, at 8.

  10. Frederick Douglass, Speech before the Civil Rights Mass Meeting, Washington, D.C., Oct. 22, 1883.

  11.  William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (University of Chicago Press, 1979) (“However unlimited the power of the court may seem, it is far from being wholly arbitrary”).

  12. See Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“In the worst cases, such a failure may actually produce physical 'torture or a lingering death' .... In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency"); Hildreth v. Butler, 960 F.3d 420, 439-40 (7th Cir. 2020) (“the Eighth Amendment requires reasonable responses to known risks where prisoners cannot protect their own health and safety.”).

  13. See Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Wilson v. Seiter 501 U.S. 294, 302-03 (1991); Whitley v. Albers, 475 U.S. 312, 319 (1986) (violation of Eighth Amendment requires “more than ordinary lack of due care for the prisoner’s interests or safety.”). 

  14.  Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

  15. Abolishing Carceral Society 4 (Abolition Collective ed., 2018).

  16. 511 U.S. at 837.

  17.  Helling v. McKinney, 509 U.S. 25, 33 (1993).

  18. See, e.g., Miller v. Alabama, 567 U.S. 460, 469 (2012); Roper v. Simmons, 543 U.S. 551, 560-61 (2005); Atkins v. Virginia, 536 U.S. 304, 311-12 (2002).

  19. Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting).

  20. Id. at 13-14 (Blackmun, J., concurring).

  21. See narratives 1, 2, 4, 5, 7, 8, and 9.

  22. See narratives 1, 2, 3, 4, 5, 7, 8, and 9.

  23. See narratives 1, 3, 8, and 9. 

  24. See narratives 1, 2, 3, 9, and 10.

  25. See narrative 9.

  26. See narrative 3.

  27. See narrative 1.

  28. 511 U.S. at 837. See also 511 U.S. at 842 ("Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.").

  29. Although incarcerated people may not be “entitled to state-of-the art medical treatment,” if “evidence exists that the defendants knew better than to make the medical decisions that they did, a jury should decide whether or not the defendants were actually ignorant to risk of the harm that they caused.” Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016).

  30. Schaub v. VonWald, 638 F.3d 905, 920 (8th Cir. 2011).

  31. Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 278 (1st Cir. 2006).

  32. See Dean v. Wexford Health Sources, Inc., 2020 U.S. Dist. LEXIS 200112, at *3-4 (C.D. Ill. Sept. 28, 2020); Goodloe v. Sood, 947 F.3d1026, 1031 (7th Cir. 2020) (“[O]ur cases likewise establish that ‘inexplicable delay’ in responding to an inmate's serious medical condition can reflect deliberate indifference. . . . That is especially so if that delay exacerbates an inmate's medical condition or unnecessarily prolongs suffering.”) (internal cite omitted) (reversing summary judgment and finding that the jury could infer deliberate indifference in three month delay to see a specialist).

  33. Courts and carceral staff would be wise to follow the Fourth Circuit’s lead in concluding that “it is inconsistent with the Eighth Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate's condition significantly deteriorates.” Gordon v. Schilling, 937 F.3d 348 (4th Cir. 2019).

  34. See narrative 5. 

  35. See, e.g., Wilson v. Williams, 961 F.3d 829, 846-47 (6th Cir. 2020) (Cole, J., dissenting) (citing Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017)) (“officials [were] deliberately indifferent when they persisted in treating an inmate’s medical condition with medication that was known to be ineffective instead of an alternative that had proven to be much more effective in addressing the condition”).

  36. Rowe v. Gibson, 798 F.3d 622, 631 (7th Cir. 2015).

  37. Id. at 624. 

  38. Id. at 628.

  39. Id. at 625.

  40. It is also worth mentioning a recent 7th Circuit case reversing the lower court’s grant of summary judgment in favor of the defendant. The 7th Circuit remanded the case given the possibility that the medical provider “had actual knowledge that, without protocols for coordinated, comprehensive treatment, the constitutional rights of chronically ill inmates would sometimes be violated, and in the face of that knowledge it nonetheless ‘adopt[ed] a policy of inaction.’” Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 382 (7th Cir. 2017) (quoting King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 2012)). 

  41. See, e.g., Hildreth v. Butler, 960 F.3d 420, 434 (7th Cir. 2020) (Hamilton, J., dissenting) (noting that for the plaintiff, “the difference between having medication and not having it is ‘night and day.’”); id. at 436 (“we must assume that such a long lapse [ten days] was exceptionally painful and dangerous”). Judge Hamilton argued that the prison’s medical provider had a constitutional duty to design a system for medication refills in order to avoid lapses. He then analogized the provider’s duty to that of a hospital with life-saving ventilators running on electricity. Sometimes, he pointed out, electricity will cut out due to weather or equipment malfunction, and “Any reasonable hospital must anticipate the possibility of those interruptions and breakdowns, and it must have alerts and a back-up system in place…. [The medical provider] thus had a constitutional duty to take reasonable steps—warnings and back-up systems—to mitigate the effects of inevitable mistakes and oversights.” 960 F.3d at 439.

  42. Valentine v. Collier, 455 F. Supp. 3d 308, 322 (S.D. Tex. 2020).

  43. Valentine v. Collier, 2020 U.S. LEXIS 5612, at *1 (Nov. 16, 2020) (Sotomayor, J., dissenting). Sotomayor included diabetes, hypertension, and kidney disease as “health conditions that increase the likelihood of serious illness and death from COVID-19.” Id. at *2. 

  44.  Id. at *12.

  45. 961 F.3d at 849 (Cole, J., dissenting) (“In the fight against the spread of COVID-19, time is plainly of the essence. Each day spent in detention … increases the threat to the inmates' health and life.”).

  46. 960 F.3d at 440.

  47. Peter Wagner and Bernadette Rabuy, Following the Money of Mass Incarceration, Prison Policy Initiative (Jan. 25, 2017), https://www.prisonpolicy.org/reports/money.html.

  48. 961 F.3d at 849 (Cole, J., dissenting).

  49. Col. R.G. Ingersoll, Speech before the Civil Rights Mass Meeting, Washington, D.C., Oct. 22, 1883.

  50. Report on Memphis Riots and Massacres, H.R. Rep. No. 101, 39th Cong., 1st Sess. 6-22 (1866).

  51. Eric Foner, The Supreme Court and the History of Reconstruction – And Vice-Versa, 112 Columbia L. Rev. 1585, 1591 (2012).

  52. Id. at 1592.

  53. See, e.g., Abolition Constitutionalism, 133 Harv. L. Rev. 1, 50 (“It is safe to say that the views of the white supremacists who gutted the Thirteenth and Fourteenth Amendments have gained greater prominence than have the views of the slavery abolitionists who inspired the constitutional amendments and of the Radical Republicans who drafted them.”).

  54. Introduction to the ADA, https://www.ada.gov/ada_intro.htm (last visited Dec. 6, 2020).

  55. Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America 12 (2018); see also Abolition Constitutionalism, 133 Harv. L. Rev. 1, 64 (“Thus, by resisting white domination and acting like citizens, black people have secured greater freedom apart from official recognition of their rights, thereby changing the Constitution’s meaning to encompass their freedom.”). 

  56. Frederick Douglass, Speech before the Civil Rights Mass Meeting, Washington, D.C., Oct. 22, 1883.

  57. To this day, the Supreme Court has not overruled the Civil Rights Cases. In its 2000 decision in United States v. Morrison, the Court went so far as to cite precedent from 1883: a case overturning lynching convictions because Congress could not punish private criminal acts under the Fourteenth Amendment. The Supreme Court and the History of Reconstruction, at 1602. Was the Court not ashamed to rely on case law from the 19th century, let alone a case protecting white supremacists?

  58. Abolition Constitutionalism, 133 Harv. L. Rev. 1, 51.

  59. McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).

  60. Col. R.G. Ingersoll, Speech before the Civil Rights Mass Meeting, Washington, D.C., Oct. 22, 1883.

  61. Narrative 3.