The Pains of Imprisonment in a Pandemic
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Authors
Kerr, Lisa
Dube, Kristy-Anne
Date
2021
Type
journal article
Language
en
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Alternative Title
Abstract
This article examines how the law of punishment has responded to the impact of the COVID-19 pandemic on jails and prisons. While detention has become more severe and risky for all who live and work in correctional institutions, there has been significant variation in judicial willingness to recognize these systemic impacts. Often courts limit protection to those able to adduce evidence that they will become seriously ill or die from COVID-19. First, the authors discuss the approach taken by individual judges to bail, observing (1) cases where judges take judicial notice of the heightened risks and severity of imprisonment for all inmates during the pandemic, and (2) cases that require the accused to establish that they are at increased risk before COVID-19 can weigh heavily on the decision to detain. Second, the authors discuss a similar story of variation in how judges have responded to the effect that pandemic conditions should have on the calculation of credit for pretrial detention. Finally, they discuss the impact that COVID-19 has had on sentencing, where judges are more willing to consider how the pains of imprisonment have been intensified during the pandemic in a way that impacts the question of a fit or proportionate sentence of custody. The authors conclude that the use of individual vulnerability as a prerequisite is a flawed halfway measure given the impacts of COVID-19 on our institutions of detention and punishment. They conclude further that a proper understanding of those impacts may help to facilitate better understanding of the risks and effects of detention that predate the pandemic and will outlast it.
Description
Citation
Kerr, Lisa and Dube, Kristy-Anne. "The Pains of Imprisonment in a Pandemic" (2021). 46 Queen's Law Journal 2. 327-342
Publisher
Queen's University Faculty of Law
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External DOI
ISSN
0316-778X