By failing to prioritize incarcerated people, the state-by-state rollout of the COVID-19 vaccine represented a legal and ethical failure, argue the authors of a California Law Review paper.
In “A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic,” Itay Ravid, Jordan Hyatt, and Steven L. Chanenson argue that states that didn’t adopt vaccination standards set by the National Academies of Sciences, Engineering, and Medicine (NAS) endangered the health of incarcerated people.
Months into the pandemic, NAS recommended incarcerated individuals receive the vaccine “early.”
Scientists cited the ease with which a virus can spread in congregate settings, and advised states to administer vaccines to prison occupants alongside nursing home residents. Correspondingly, the Centers for Disease Control and Prevention’s vaccination recommendations placed correctional staff in the same first-priority category as frontline and essential workers.
But an analysis of state-level vaccination plans by researchers found that jurisdictions rarely ranked incarcerated people as a group entitled to vaccination in the first phase, shunting most of of the prison population to the back of the line for later phases.
In contrast, the authors found that states were more likely to prioritize correctional staff in their plans.
The authors caution that their analysis partially fails to account for complexities, such as states that prioritized incarcerated individuals with underlying conditions. But the trends, argue Ravid, Hyatt and Chanenson, point to the widespread de-prioritization of prisoners in vaccine plans.
The paper cites the comments of Colorado Gov. Jared Polis, whose resistance to vaccinate prisoners “appeared responsive to other, less evidence-based concerns,” the authors write.
They noted that Polis had made clear that no prisoners would be prioritized to get vaccinated before the free seniors or people with coronavirus-related health risks.
“There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime,” they quoted the governor as saying. “That’s obvious.”
The paper continued: “This embarrassing vignette — and others like it — reveals a lack of focus on the obligations that governments have to incarcerated people, correctional staff, and the broader community.”
Moreover, they asserted, states violated the Constitution by failing to deliver appropriate care for the people they chose to incarcerate.
An Eighth Amendment right crystallized in the case Estelle v. Gamble forbids states from “deliberate indifference to serious medical needs of prisoners.”
By failing to abide by health recommendations, states unconstitutionally and inhumanely disrespected their incarcerated inhabitants, the paper said.
The authors conclude their argument by recommending that states proactively remedy their mistakes by setting standards that prioritize prisoners for vaccination. Since COVID-19 mutations and new treatment regimens are likely, states should be vigilant about incarcerated people’s access to care.
The failure to apply of vaccine recommendations highlights deeper issues in the criminal justice system, including the mistreatment of incarcerated people for their so-called “criminal” status, the study said.
“Justice William J. Brennan, Jr. neatly framed the problem almost 35 years ago: ‘Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness,’ “ the authors write.
“But public policy cannot remain disinterested, especially in light of the immediate threats to the health and well-being of incarcerated individuals during the COVID-19 pandemic.”
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Eva Herscowitz is a TCR contributing writer.