Image Credit: https://www.wpr.org/inmates-fear-invisible-enemy-wisconsins-overcrowded-prisons
By Alexandra Wheaton, JHBL Staff Member
Vaccine rollout decisions have propelled lawmakers into a partisan moral dilemma: should prisoners receive priority immunization status? With the answer to this question varying markedly across states, fatal consequences have ensued for incarcerated individuals prevented from receiving the vaccine. Presently, only 30% of states have begun to vaccinate their prisoners, despite the fact that the COVID-19 infection rate within state and federal prisons is more than four times that of the general population.[1]Over a year has elapsed since the first COVID-19 cases were reported in the United States, yielding more than 386,564 positive tests in the case of prisoners.[2] The fatality rate of COVID-19 in prisons ranges from 2-7 times that of the general population.[3] These rates are likely even higher than reported due to the narrow criteria required for prisons reporting cases. Reflective of the infection patterns seen in the general population, the pandemic has disproportionately affected people of color within the prison system. Black Americans, who are incarcerated at five times the rate of white Americans, are more likely to be infected and hospitalized with COVID-19.[4]
These disproportionate infection rates within prisons are multi-causal. Prisons are often overcrowded, lack personal protection equipment, and do not have space for quarantine or isolation of sick inmates. Additionally, the staff contributes to the containment problems detention facilities face, as their daily travel in and out of facilities promotes the spread of COVID-19. In an effort to combat these difficulties, the Centers for Disease Control (hereinafter “CDC”) has encouraged states to vaccinate incarcerated persons at the same time as prison staff, but few states have acted accordingly.
Currently, only 15 states are vaccinating their inmates.[5] This failure to comply with CDC guidelines has led to legal challenges in several states. In New York, Governor Cuomo and the state health commissioner, Howard Zucker, are facing a lawsuit for withholding vaccines from incarcerated individuals.[6] The lawsuit claims the Governor’s failure to vaccinate its incarcerated population endangers lives, violates CDC guidelines, and violates civil rights. Likewise, in Colorado, Governor Polis removed prisoners from the vaccine schedule, stating, “There’s no way [the vaccine] is going to prisoners…before it goes to people who haven’t committed any crime.”[7] This statement blatantly ignores the fact that many incarcerated individuals have not been found guilty but rather are awaiting trial and unable to pay bail. Contrasting New York and Colorado, Federal Judge Beckerman of Oregon recently declared that the state prison system must vaccinate any inmate who wants the vaccine. Judge Beckerman’s opinion emphasized, “during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless…the state must fulfill its duty of protecting those in custody.”[8]
State responses to vaccination rollout decisions have proven to be extremely polarizing and partisan. Those opposed to accelerated inoculation of prisoners have expressed anger that prisoners would be prioritized before other vulnerable populations. George Brauchler, a district attorney in Colorado, vocalized his opposition, stating, “[the government of Colorado] intends to prioritize the health of incarcerated murderers, rapists, and child molesters over the lives of law-abiding Coloradans.”[9] This statement, and those like it, ignore the state’s duty to protect those they incarcerate, drawing Eighth-Amendment critiques. The Eighth Amendment states, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[10] Condemning individuals to remain in incarceration to suffer infection or death clearly fits within the parameters of cruel and unusual punishment. Accordingly, states should adhere to the Supreme Court’s comments that the Eighth Amendment “must draw its meaning from the evoking standards of decency that mark the progress of a maturing society.”[11] Present circumstances amidst COVID-19 would certainly seem to call for the standards of decency to mandate states not to condemn incarcerated individuals to infection or death for crimes they may or may not have committed.
States’ decisions regarding vaccine rollout priorities will be controversial regardless of which individuals they choose to give precedence. While anger about prisoners being vaccinated before certain groups of the general population is understandable, it is imperative to prioritize prisoners in order to protect their Eighth-Amendment rights. Continued failure to vaccinate incarcerated individuals will result in further loss of life, both in and out of the prison system.
Alexandra Wheaton is a second-year law student at Suffolk University Law School interested in international and real estate law. Alexandra has two upcoming comments: the first examining healthcare requirements for immigrants and the second analyzing parental religious objections to brain-death diagnoses of children.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources:
[1] See Beth Schwartzapfel, Katie Park & Andrew Demillo, 1 in 5 Prisoners in the U.S. Has Had COVID-19 The Marshall Project (2021), https://www.themarshallproject.org/2020/12/18/1-in-5-prisoners-in-the-u-s-has-had-covid-19 (last visited Mar, 2021). See also Marisa Fernandez, Most states aren’t prioritizing prisons for COVID vaccines, Axios (2021), https://www.axios.com/most-states-arent-prioritizing-prisons-for-covid-vaccines-5c16cddb-7557-43d4-9750-994c896a6d2d.html (last visited Mar 5, 2021).
[2] See A State-by-State Look at Coronavirus in Prisons, The Marshall Project (2021), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last visited Mar, 2021).
[3] See Kiran Misra, ‘A death sentence’: US prisons could receive Covid vaccines last despite being hotspots, The Guardian (2021), https://www.theguardian.com/us-news/2021/feb/09/us-jails-prisons-covid-vaccines (last visited Mar, 2021).
[4] See Schwartzapfel, Park and Demillo, supra note 1.
[5] See Fernandez, supra note 1.
[6] See Eric Lach, Andrew Cuomo’s Refusal to Vaccinate Inmates Is Indefensible, The New Yorker (2021), https://www.newyorker.com/news/our-local-correspondents/andrew-cuomos-refusal-to-vaccinate-inmates-is-indefensible (last visited Mar, 2021).
[7] See Roz Plater, Debate Heats Up Over Prisoners Receiving COVID-19 Vaccines, healthline (2021), https://www.healthline.com/health-news/debate-heats-up-over-whether-prisoners-should-be-among-first-to-get-covid-19-vaccines (last visited Mar, 2021).
[8] See Maura Turcotte, Rachel Sherman & Derek Norman, In a first, a federal judge orders Oregon state prisons to vaccinate inmates, The New York Times (2021), https://www.nytimes.com/2021/02/03/world/oregon-prison-inmates-vaccine.html (last visited Mar, 2021).
[9] See George Brauchler, Gov. Polis’ plan to prioritize prisoners over elderly for COVID vaccine is wrong in every way, The Denver Post (2021), https://www.denverpost.com/2020/11/29/covid-vaccine-colorado-prisoners-elderly-polis/ (last visited Mar, 2021).
[10] See U.S. Const. amend. VIII.
[11] See Dominic Draye, Death-penalty symposium: Evolving standards for “evolving standards” SCOTUSblog (Jun. 27, 2017, 2:52 PM),https://www.scotusblog.com/2017/06/symposium-evolving-standards-evolving-standards/
https://www.theguardian.com/us-news/2021/feb/09/us-jails-prisons-covid-vaccines
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https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/vaccine-faqs.html
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https://www.denverpost.com/2020/11/29/covid-vaccine-colorado-prisoners-elderly-polis/
https://www.scotusblog.com/2017/06/symposium-evolving-standards-evolving-standards/