Federal, state, and local vaccine mandates are being opposed by several high-profile groups, including firefighters, nurses, and corrections officers. Opposition of the latter to vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations.
That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.
In New York, corrections officers marched across the Brooklyn Bridge in late October to protest New York City’s vaccine mandate. About 40% of Massachusetts prison guards aren’t vaccinated, and they lost their latest bid to not comply with the state’s vaccine mandate. In Connecticut, where I was once incarcerated, almost one-third of employees resisting vaccination are corrections officers.
When the pandemic emerged, prisons and jails quickly became Covid hot spots; the lack of freedom and space heightens the risk of transmitting SARS-CoV-2 from person to person. Prisoners are more than five times more likely to contract the virus and three times more likely to die from it than people outside, some of whom are subject to vaccine mandates.
Incarcerated people were at such high risk of catching Covid-19 that Congress authorized the release of prisoners to home confinement in last year’s CARES Act. Many states distributed shots to their incarcerated wards before they let people who weren’t in custody get them. Vaccination is so important in this population that the first set of incentives for it were developed within corrections departments: In January 2021, the state of Virginia rewarded prisoners willing to get vaccinated with telephone credits and care packages, Pennsylvania deposited cash into prisoners’ accounts, and Massachusetts gave prisoners five days off their sentences before the governor rescinded the policy. Georgia and Mississippi — two states known for their disregard for the rights of the incarcerated — handed out snacks and sweets to entice them to get the vaccine. Such a deviation in treatment suggests that this was extremely important to the safety of the facilities.
None of the existing vaccine mandates, however, apply to the incarcerated. And not for any legal reason. Pfizer’s vaccine has full FDA approval, so some states are requiring vaccination of people in the criminal legal system. In Ohio, judges have imposed conditions of probation that include getting the shot, and re-incarceration is a penalty for refusing it.
Omitting prisoners from vaccine mandates isn’t the first instance of exempting prisoners from mandatory protective practices. In at least three states — Kansas, Pennsylvania, and Washington — guards face masking mandates but prisoners don’t. I can find no scientific justification for exempting prisoners from either mask or vaccination mandates; in fact, lack of vaccination likely violates the Eighth Amendment prohibition against cruel and unusual punishment.
There’s either a reason for excluding incarcerated individuals from vaccine mandates or there isn’t. If it’s just an oversight, that suggests policymakers aren’t focused on protecting this population, 40% of whom have chronic health conditions, making them more vulnerable to developing complications from Covid-19 infection. But that doesn’t square with the serious decisions that came before this: decarceration, prioritization for the vaccines, and expenditure of resources to goad prisoners to queue up for the vaccine.
If there is a real reason for excluding incarcerated individuals from vaccine mandates, it can’t be science based because all available research on Covid-19 and its spread indicates the vaccine’s efficacy and safety and the increased risk of illness and death among unvaccinated people. And I’m not persuaded there’s a valid political calculus behind the exclusion. The Covid-19 Safer Detention Act, introduced into the U.S. Senate in early 2021, recognizes coronavirus infection as a risk for certain prisoners. If passed, it would expedite certain requests for compassionate release, though the bill hasn’t seen action since February.
Regardless of the justification for not mandating vaccines for prisoners and detainees, it’s hard to make the case that these decisions are science based, which is a deviation from promised policy. President Biden, who pledged to make evidence-based decision-making a hallmark of his administration, is ignoring the data on this one, plain and simple, while investigating others for doing the same thing.
If Biden expanded his vaccine mandate to prisoners, it likely would apply only to the 156,575 people in custody in the 110 Bureau of Prisons facilities and not all correctional facilities — the other 7,000 of them housing 2.1 million prisoners — across the country. As of July, just over half of Bureau of Prisons prisoners had been vaccinated. The vast majority of U.S. prisoners would remain beyond reach of an expanded federal mandate.
But expanding the federal vaccine mandate to prisoners would provide political cover for states to officially follow suit and boost their vaccination numbers. In Mississippi, prisoners who refuse the vaccine are subject to loss of visitation and the ability to join work programs, but they’re not required to get vaccinated. The commissioner of the state’s prisons has claimed that only 1% of prisoners have refused to do this, but the state stopped reporting data on July 8, as have other states.
To their credit, some states have achieved high rates of vaccination among the incarcerated. Of the 30 states reporting data, 25 state corrections systems have higher rates of vaccination than society at large. The most successful state — Minnesota — had vaccinated about 85% of its incarcerated population as of Aug. 4, compared with 59% of residents overall.
But no state has achieved the 90% vaccination rate — inside correctional facilities or outside of them — needed to pass herd immunity’s goalposts.
The rights of incarcerated individuals to self-determination are limited. But expanding them shouldn’t start with the choice to shun a shot that authorities as wide ranging as the president, the director of the Centers for Disease Control and Prevention, and their own wardens say will help them survive. Some prisoners don’t want the vaccine; if politicians don’t feel comfortable ordering them to comply, then they must realize that imposing the requirement on employees who have a better chance at avoiding the virus doesn’t make sense and may provide ammunition to anti-vaxxers.
Chandra Bozelko is a Harry Frank Guggenheim Reporting Fellow at John Jay College of Criminal Justice in New York City.
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