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Introduction 261 I. Three Ways That Climate Change Can Harm Prison and Jail Residents and, By Extension, Home Communities 261 A. Understaffing 264 B. Deadlier Facilities 267 C. Racial Disparities 275 i. Examples of Racial Disparities in Imprisonment 278 ii. Racial Disparities in Imprisonment Due to Poverty Resulting from Structural and Historical Racism 279 iii. Racial Disparities in Harm Due to Imprisonment 281 II. COVID-19 Prison and Jail Conditions Litigation Provides Insights into How Federal Courts May Respond When Residents Seek Preliminary Relief from Emergent Climate-Related Dangers 284 A. The Clearinghouse Subset: Seventy Prison and Jail Conditions Cases Seeking Relief Related to COVID-19 285 B. Similar Context: An Emergent, Exogenous Threat to Public Health, with Substantially Increased Risk to People Living in Prisons and Jails 289 C. Similar Form: Climate-Related and COVID-19 Conditions Litigants Will Seek Preliminary Relief in the Form of Release or Mitigation 291 D. Similar Content: Climate-Related and COVID-19 Conditions Litigants Will Bring the Same or Similar Legal Claims 295 i. Eighth Amendment and Due Process Clause (Fifth and Fourteenth Amendment) Claims: Conditions of Confinement 296 ii. The Federal Rights of Persons with Disabilities: Non-Discrimination 304 iii. Class-Wide Petition for Habeas Corpus Seeking Relief from Unlawful Conditions of Confinement 309 E. Similar Jurisdictional Hurdles: Climate-Related and COVID-19 Conditions Litigants Must Overcome Prison Litigation Reform Act Barriers to Accessing Courts and Meaningful Remedies 313 F. Overexposed and Under-protected: Black U.S. Residents in Custody in the Fifth and Eleventh Circuits May Be Overexposed to Climate-Related Harms and Underprotected by Federal Courts 318 Conclusion 324 Appendix A 330 Appendix B 331 Appendix C 332 Appendix D 333 Appendix E 334 Appendix F 336 Appendix G 337 Appendix H 338 Appendix I 339
This Article proposes that COVID-19 prison and jail conditions litigation provide insights into how federal courts may analyze future climate-related prison and jail litigation. The global COVID-19 pandemic and the exogenous threats associated with global climate change differ in critical ways. However, both pose grave public health hazards to people worldwide yet pose a greater risk of serious harm to prison and jail residents because they are confined without the physical ability to mitigate on their own or at all. Plaintiffs in both suit types will bring the same claims and types of actions to enforce their right to be free from illegal conditions of confinement or disability-based discrimination. Both will seek preliminary relief. To prevail, both will need to overcome the same thorny jurisdictional and remedial barriers imposed by the Prison Litigation Reform Act (PLRA) or habeas statutes. Observations about outcomes in COVID-19 prison and jail conditions litigation--when considered together with geographic projections of future climate change-related harm that predict the U.S. South will be hardest hit--suggest that prison and jail residents living in the Fifth and Eleventh Federal Circuit Courts of Appeals, who are disproportionately Black Americans, may be particularly disadvantaged when seeking preliminary relief from life-threatening climate-related crises.
The Article first discusses three ways that climate change can harm prison and jail residents, and...