Introduction

COVID-19 has underscored longstanding inequities in the global public health system. In countries with weak public health infrastructures—like the United States—it is no surprise that Black, Indigenous, and People of Color (“BIPOC”) communities were disproportionately impacted by the rapid spread of this deadly, airborne pathogen. Due to centuries of disinvestment, many BIPOC communities lack the resources and socio-economic capital to access robust medical care. Rather than provide the support necessary to mitigate the impact of COVID-19 in these communities, governments used COVID-19 as a pretext to perpetuate further violence. Nowhere was this reality clearer than in America’s prisons and jails, ground zero for the marginalization of BIPOC people. Prisons and jails were ravaged by the spread of the pathogen. But because prisons and jails are de facto warehouses for BIPOC people, the mainstream press failed to adequately cover the spread of the pathogen in these facilities and governments largely ignored it. The unchecked spread of COVID-19 in America’s prisons and jails was thus the product of the carceral system’s structural racism, or its “extralegal production and exploitation of group-differentiated vulnerability to premature death.”

Civil rights lawyers across the country battled virtually immovable state executives and judges in their attempts to protect their incarcerated clients during the pandemic. For the first year-and-a-half of the pandemic—from approximately February 2020 through August 2021—scores of lawyers at New York-based nonprofit civil rights organizations were engaged in fighting the carceral state’s mechanized neglect of BIPOC incarcerated people. Lawyers at the Prisoners’ Rights Project of The Legal Aid Society (“PRP”), where I serve as a Supervising Attorney, played a key role in this effort. PRP collaborated with grassroots organizations, law firms, medical experts, and journalists to build and refine a holistic advocacy strategy aimed at improving conditions in, and freeing its clients from, New York State prisons.9 Together, collaborators invoked New York State’s habeas corpus statute to seek the release of medically vulnerable incarcerated people susceptible to serious complications or death from COVID-19. In early 2021, after mixed results, collaborators refined their litigation strategies, working directly with organizers to implement “movement lawyering” models.10 These new strategies resulted in landmark victories in both federal and state courts.

This article will provide an 18-month retrospective snapshot of PRP’s state prison pandemic response. I will tie PRP’s coronavirus-related prisoners’ rights litigation to the larger decarceration movement by addressing several central strategic considerations about the pitfalls of crisis lawyering, the benefits and drawbacks of traditional civil rights lawyering models, the role of emerging “movement lawyering” models, the oftentimes illusory distinction between success and failure, and the role of the prisoners’ rights lawyer within the larger movement for BIPOC lives. I will close by sharing four lessons I learned while fighting for my clients during the first 18 months of the COVID-19 pandemic. My goal is to assist new nonprofit civil rights lawyers—particularly recent law graduates—as they develop their own practices. Ultimately, PRP’s 18-month COVID-19 crisis lawyering journey is a case study that can help build a nonprofit civil rights lawyering space that is more responsive to the needs of the movements we exist to serve.