When society divests people of their agency to protect and care for themselves, the institutions manufactured to mete out punishment have an affirmative obligation to protect those without capacity from harm. This is an edict often debated – we can look to Justice Clarence Thomas dissent in Hudson v McMillan where he found the Constitutions Eighth Amendment does not recognise “deprivations” or “hardships” during incarceration. Fortunately, his judgement did not prevail. COVID