Non-criminal Habeas Corpus for Quarantine and Isolation Detainees: Serving the Private Right or Violating Public Policy?

Christopher Ogolla, Texas Southern University, Thurgood Marshall School of Law

Abstract

This paper begins by defining quarantine and isolation and gives a brief history of non-criminal habeas corpus as it relates to quarantine and isolation detainees. The paper talks about the effects of quarantine and isolation on private citizens arguing that both severely curtail the freedom of the individuals to whom they are applied. It notes that state quarantine laws are archaic, inconsistent, inadequate unclear as to whether they apply in the civil context of an isolation or quarantine order, and maybe constitutionally troubling. It discusses the due process requirements in quarantine and isolation, with specific focus on the need for habeas corpus relief for those restricted. The paper argues that although individuals’ constitutionally protected interests may be trumped by public health emergencies, the decisions of the health authorities, in such situations can be arbitrary and capricious. To this end, quarantine and isolation guidelines should be consistent with some due process requirements. These requirements should include among others, written notice, availability of legal counsel, and judicial review. More importantly, the paper suggests that all quarantine and isolation orders should contain the constitutional requirements of habeas corpus as a direct challenge to detention.