By Brandon L. Garrett & Lee Kovarsky

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception. This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis classifies the decision-making by reference to three attributes: the form of detention at issue, the substantive right asserted, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes , 

110 California L. Rev 117 (2022)   

By Sheena Liberator and Maria Jose (MJ) Vides

In March 2020, the Los Angeles County Board of Supervisors (BOS) unanimously adopted the “care first, jails last” vision, a transformative framework for safety grounded in support and services as alternatives to incarceration or bail.1 Three years have passed and people of color, people experiencing homelessness, and those with unmet mental health needs continue to languish in county jails.2 County staff attribute implementation delays to a shortage of community-based behavioral health workers. The Vera Institute of Justice’s (Vera’s) conversations with community-based providers—detailed in this brief—document how the COVID-19 pandemic, long-standing difficulties with contracting, and chronic underinvestment in infrastructure have resulted in the current workforce shortage. To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.  

To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.

To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.

 New York: Vera Institute of Justice, 2023. 8p.