Distinguishing Habeas from Conditions of Confinement Challenges is Needlessly Formalistic

by Michael C. Dorf

I have joined an amicus brief that will shortly be filed in a pending case by a prison inmate at heightened risk from COVID-19 due to his age and pre-existing conditions. As readers surely know, prisons and jails have become hotspots for the spread of the novel coronavirus. Designed to house prisoners in small quarters and often over-crowded by ordinary standards, prisons and jails either cannot or do not provide the sort of social distancing that can reasonably mitigate the risk of spread. Consequently, authorities in some jurisdictions have released nonviolent and otherwise low-risk offenders.

However, not all jurisdictions have followed this path, and some that have are doing so in ways that raise questions. Accordingly, lawsuits have been filed. My goal today is not to describe any particular lawsuit in particular, but to make what should be an obvious point about risk and then to propose a commonsense change to state and federal procedural law governing litigation by prisoners.

The good news--if it can be called that--is that the very inmates at greatest risk from COVID-19 are least likely to pose a risk to the public if released to house arrest or some other non-institutional setting. As inmates age, they become less likely to commit crimes. Thus, there is no conflict between prioritizing public health and public safety. Nonviolent inmates can be released (including conditionally released to home monitoring or the like) without endangering the public safety, thereby also improving conditions in prisons and jails by reducing the population there; and even formerly violent prisoners who have aged in prison can be conditionally released, because they are unlikely to pose a threat of future violence. The US practice of very long sentences is not based on the supposition that prisoners remain a threat to the public safety into their 60s, 70s, and 80s based on crimes they committed in their late teens, 20s, and 30s. It's based on sentiment in favor of strict punishment (somewhat on the wane in recent years with prison reform catching on).

Furthermore, releasing prisoners from jails and prisons is in the broader public health interest, even putting aside the inmates' own interest. When prisons and jails serve as COVID-19 incubators, they infect guards, who then infect family and community members. Accordingly, enlightened leaders are taking steps to substantially reduce prison crowding and to protect prisoners.

Unfortunately, not all of our leaders are enlightened, necessitating lawsuits to bring them around. And that brings me to my pet peeve for the day. In federal court under a line of cases most closely associated with Heck v. Humphrey, a prisoner challenging his custody must bring a habeas corpus action, while a prisoner challenging the conditions of his confinement must bring a civil rights action under 42 USC Sec. 1983. That might sound simple, but the line between a challenge to custody and conditions isn't always clear. For example, a challenge to solitary confinement is brought as habeas because the circumstances of confinement are so different from general population as to amount to what one court called a "quantum leap" sufficient to count as a challenge to custody itself. The lower court cases are filled with contradictory fine distinctions over what counts as a challenge to custody versus conditions.

There are substantial substantive and procedural obstacles to both habeas and Sec. 1983 actions. In some ways they mirror each other, but they are not identical. That can be highly problematic if a plaintiff is deemed to have filed the wrong sort of action. And many state courts have similar divisions between state habeas and civil rights suits, leading to similar difficulties in those courts. The best one can hope for under current circumstances is that a judge who determines that an action that was brought as the wrong type will treat it as the right type. And that does happen often -- but not always.

In the litigation brought by current inmates at heightened risk from COVID-19, some state defendants contest the right to habeas relief by arguing that a prisoner at risk of infection is really challenging conditions and thus seek dismissal. The sensible response is to say that if continued confinement under drastically different conditions is consistent with the prisoner's health, then that's an acceptable remedy, but otherwise release is appropriate, and in any event the possibility of various forms of relief shouldn't be a basis for insisting on particular technical forms.

More broadly, far too much time and effort is spent sorting out whether a case is a challenge to custody or conditions. Congress and state legislatures would do well to consolidate the relevant doctrines in a way that simply allows a prisoner to file an action seeking relief, subject to a uniform set of procedural and substantive limits. My view is that the existing limits are too strict, but I would favor this consolidation even without loosening the limits, simply to save the legal system wasted time and effort.

One might think that there needs to be some distinction between habeas and other cases, because habeas is a constitutional right. However, most scholars and courts believe that the Suspension Clause protects habeas as a challenge to executive detention, not as a collateral remedy available to prisoners being held pursuant to prior judicial process. And certainly if whatever set of rules satisfies the Suspension Clause, there's no obstacle to applying those rules to conditions cases that do not also challenge custody.

Finally, I recognize that streamlining procedures for the benefit of prisoners is not a top priority for any legislature. An enlightened legislator would recognize that doing so would also benefit other legal actors by eliminating a pointless area of contention. So put this on the to-do list for the day when we have enlightened legislators.