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90 U. Cin. L. Rev. 1 (2021-2022)

handle is hein.journals/ucinlr90 and id is 1 raw text is: WHEN THE CONDITIONS ARE THE CONFINEMENT: EIGHTH AMENDMENT HABEAS CLAIMS DURING COVID-19 Michael L. Zuckerman' INTRODUCTION Imagine you are a lawyer with clients inside a prison under which a sinkhole has just opened. The prison is slowly sinking into the ground and filling with water. Though the prison is attempting to pump out excess water, the water level is projected to rise some five or so feet over the coming weeks. Some of the people incarcerated at the prison are taller and know how to swim, which suggests that they will be unlikely to drown to death, though their imprisonment will become more uncomfortable than usual. Some are shorter or do not know how to swim, which suggests that they will be more likely to drown to death-though, of course, it is possible that some or even many of these people will also survive. You are alarmed that the prison is not moving these people out of the sinking prison. But when you complain about the danger, the Warden responds that the prisoners were all validly convicted and sentenced and that the prison staff are working hard to mitigate the water-level rise by pumping out the excess water. They are also providing the prisoners with flotation devices in the meantime. You have heard reports from your clients that these measures have not been as widely implemented as the Warden claims. But you are also not convinced that, even if these measures are implemented as promised, they are effective enough to protect your clients from a substantial risk of serious harm. Simply being incarcerated in this sinking prison itself, you might think, violates the Eighth Amendment's prohibition on cruel and unusual punishment. What do you do? You may do something similar to what a small constellation of lawyers around the country (myself included) tried to do as the novel coronavirus, * Visiting Assistant Professor, The Ohio State University Moritz College of Law; Litigation Counsel, Ohio Justice & Policy Center. For much of the initial thinking behind this piece, I thank the lawyers I worked with on some of the issues discussed within, especially David Carey, Kirti Datla, Freda Levenson, Joseph Mead, David Singleton, and Mark Vander Laan. For valuable feedback on drafts, I thank Forrest Behne, Doug Berman, Caroline Cox, Jonathan Gould, Lee Kovarsky, Aaron Littman, Joseph Mead, Ben Notterman, David Singleton, and Carol Steiker. For able assistance with research, I thank Nicholas Maxwell, Elizabeth Potts, and Isaac Shapiro. I extend deep thanks as well to the editors of the University of Cincinnati Law Review. I dedicate this piece to our clients. All errors are my own. 1