Lawyering for Change in a Pandemic

-- By MariahHaley - 16 Apr 2021

Twin Pandemics

While the rest of the nation has contended with a pandemic which, to varying degrees, affects all, Black Americans have continued to cope with the pandemic whose insidiousness affects only us. The twin pandemics of the novel coronavirus and racism both continue to have a disproportionate impact on Black communities. The unequal impact of racism on Black bodies is abundantly evident and needs not be explained, but the disprotional impact of the current health pandemic is not as immediately clear.

Because the word "pandemic" means an epidemic simultaneously occurring on multiple continents, this is perhaps not an ideal way of expressing the metaphor. "Plague" might be a better choice.

The COVID-19 pandemic has disproportionately affected communities of color in numerous ways. Black people are dying at higher rates, have lesser access to vaccines, and are more likely to have been economically impacted by the pandemic (with more people of color working in the service industry). The pandemic has further exposed deep, structural racial injustices in many American institutions, from hospitals to prisons. Legal institutions have struggled to contend with, and to rectify, these societal inequities. Most relevant to the current moment, the vaccine rollout has been incredibly unequal; in fact, those most likely to die from COVID, Black people, are being vaccinated at one of the lowest rates. Black Americans are receiving vaccinations at half the rate of whites. President Biden has a task force to address just this issue — the COVID-19 Health Equity Task Force. Despite the existence of this task force, which signals a public awareness and desire to “fix” the inequity, the problem persist.

Imprisoned in a Pandemic

Aside from people of color being vaccinated at a lower rate as members of the general public, there is an additional group even more directly affected. As we know, Black people make up a disproportionate percentage of people in prisons across the country. An initial issue for the law and lawyers to solve is, of course, this discrepancy. While we wait for that systemic change to occur, Black bodies are still suffering within prisons as they exist today, a situation which has been exacerbated by the ongoing pandemic. COVID-19 has, understandably, spread rampantly within prisons, with close to 400,000 incarcerated persons in America falling ill with the virus. Now, as states continue to make decisions about who, and when, is deserving of the life-saving vaccine, incarcerated persons have been left out of the calculus in many states. Some of the more liberal states, like Massachusetts, have already offered vaccinations to their entire prison populations. Other states, like my home state of Kansas, continue to have debates and pass resolutions, with the goal of relegating “healthy” incarcerated individuals toward the end of the vaccine line.

The Lawyer’s Role

The lawyer’s theory of social action has a role to play in rectifying the deep rooted injustices we’ve seen exacerbated in the past year. Lawyers, seeing situations in multiple ways and in various lights, are able to use our sense of how society works to make things better — using only our words. Lawyers should be on the frontline of both of these pandemics — we should be advocating for equal access to justice and to vaccinations. Lawyers are already working to try to address the racial injustices inherent in the American criminal “justice” system. More of us should join their ranks and actively fight against the system as it currently exists. Black people should not make up a higher percentage of those in prison than the overall percentage of Black people within the general populace. Lawyers sit in legislative bodies across the country — there, they have opportunities to enact laws about where vaccines go first. Lawyers also sit in judicial chambers, as advocates and as justices themselves, and have the wherewithal to force incarcerated persons to the front of vaccine lines. Judge Tuitt, a state Supreme Court judge in New York City, accomplished just that — ruling that those incarcerated had “unjustly” been left out of the vaccine rollout and must immediately make vaccines available to those in New York state prisons. Lawyers have the social and political capital to make a substantial difference in vaccine equity, especially for those who do not have that capital to make a difference for themselves.

The virus SARS-Co-v2 is a biological entity. Like all diseases, Covid-19 is a social phenomenon. Disease occurs in society, is treated in society, also affects and potentially dissolves society. So it makes sense from the outset, as you say, that the disease will occur in relation to other pre-existing societal illnesses, and the pathologies will reinforce one another. You can put that, and the necessary illustrations that you have in the present draft, in 500-600 words. You can then use the other half of the next draft to do what you can only suggest now: to show some specific ways in which a lawyer you can imagine yourself being could make something particular happen in society using words, at the level of detail where you can show your own legal thinking engaged. In a different part of the global and professional context, but to the same purpose, you might want to look at my law partner's own effort this week.

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