Columbia Justice Lab
by Jacqueline Lantsman
Excluding Individuals in Carceral Settings from Vaccination
Several Governors have opposed prioritizing vaccinating incarcerated individuals in their state vaccine plans. This conviction is framed within a question of whether incarcerated individuals are “deserving” of safety ahead of fellow state residents that were not convicted of breaking the law. The ruling made in Estelle v. Gamble was intended to defend currently incarcerated individuals from such policy, by ruling that inadequate medical care can constitute cruel and unusual punishment. Given the magnitude of risk COVID-19 poses for prison populations — representing individuals of old age and chronic illness — failing to receive the vaccine expeditiously can mean life or death. Understanding the risk posed to the lives of individuals and the potential of vaccination to radically decrease the fatality of COVID-19, states excluding incarcerated individuals from their vaccine plans may be held liable for cruel and unusual punishment.
If not for legal obligation, governors can take their cue from scientists advising that vaccinating incarcerated individuals is necessary to protect the public’s health. Epidemiologists have indicated the logistical pitfalls in state plans excluding individuals residing in prison — prisons interact with outside healthcare systems making transmission a cyclical and reoccurring expectation that can lead to deadly consequences across both environments. Governors have a duty to protect the entire public and failing to vaccinate within prisons guarantees stress on nearby hospitals.
Lastly and most importantly, legislating to exclude individuals residing in carceral facilities from vaccination is a capricious decision to re-perpetrate violence against constituents whose incarceration is disproportionately attributed to structural issues, among them the lack of front-end public health and social services evidenced to divert individuals from the criminal legal system. Unlike the archaic dogma that incarceration is the outcome of individual choice, public health leaders and scientists have evidenced that incarceration is the outgrowth of generational divestment from government supports. Governors have a responsibility on behalf of their governments to repair the harm done — if not providing adequate health care within prisons, the least officials can do is protect individuals from COVID-19 and reduce fatality. Otherwise, the government is responsible for the preventable deaths of thousands of individuals mistreated by a punitive criminal legal system. As of February 8th, there have been 2,359 deaths.
The Landscape of State Vaccine Plan
State vaccination protocols for corrections settings vary in how they prioritize individuals presently incarcerated. These protocols were informed by the CDC’s Advisory Committee on Immunization Practices’ and state medical advisory panels consisting of physicians, public health officials, and experts in bioethics. While the CDC’s Advisory Committee did not prioritize incarcerated people, the criteria provided for determining priority indirectly underscored the importance of vaccinating the currently confined. Included in the advisory committee’s phase 1 criteria are individuals of all ages with comorbid and underlying conditions that put them at significantly higher risk for COVID-19 complications and older individuals living in congregate or overcrowded settings. Large sums of currently incarcerated individuals fit under this designation. An analysis of individuals within New York State prisons determine that 34.1 percent of individuals experienced respiratory chronic illness and 17.4 percent experienced cardiovascular disease. Another study determined that 800,000 incarcerated people experience at least one chronic health condition. Yet, only 12 states and territories that have included prisons in their highest priority phase, as identified in the map developed by Columbia Justice Lab that tracks the approach states have taken.
Besides judging individuals living in carceral settings as not deserving of the vaccine, governors are also debating whether the limited supply of vaccines should first be received by correctional staff. The Prison Policy Initiative conducted an analysis that found that among the 38 states including incarcerated people in a vaccine phase, most states prioritized prison staff over incarcerated people. Similarly, the federal Bureau of Prisons intends to reserve vaccine allotments for correctional staff. While correctional staff should be vaccinated, in order to decrease the severity of disease entering facilities, they should not receive priority for the following reason.
Generally, while COVID-19 vaccines reduce severity of symptoms, only one vaccine has proven to limit transmission. The vaccine distribution guidance provided by the CDC’s Advisory Committee is informed by evidence produced by pharmaceutical developers that suggest vaccines will protect individuals from serious symptoms. Using this evidence, the committee developed guidance to treat vaccines not as vehicles to decrease transmission, but rather vehicles to decrease the severity of illness. This would in turn relieve the stress experienced by surrounding healthcare systems receiving incarcerated individuals experiencing potentially fatal COVID-10 symptoms. A single pharmaceutical developer indicated that the COVID-19 vaccine would lower transmission, the rest have not. Governors prioritizing the vaccination of correctional officers in order to stop the transmission of COVID-19 between prisons and communities should recognize that this policy approach will fail to achieve this goal unless they have access to the AstraZeneca vaccine. Individuals presently incarcerated should be treated with the same priority as individuals working within facilities.
Prisons Health Care Infrastructure and Vaccination
To understand whether prisons are prepared to implement a vaccination distribution plan, it is critical to unveil the existing health care infrastructure in the carceral system.
At the start of the COVID-19 pandemic, to bring light to the covert correctional system, Texas After Violence Project launched Sheltering Justice, a documentation/archival project committed to centering stories by justice-involved people and communities disproportionately impacted by the intersection of COVID-19 and retributive criminal justice systems. Murphy Anne Carter, an Oral Interviewer & Project Coordinator with the Texas After Violence Project, described various accounts reflecting the insufficiencies in correctional healthcare infrastructure, creating a patchwork of inadequate efforts used by Texas prisons to provide care, quarantine individuals, and reduce transmission.
Interviewee narratives share the belief of the inextricable relationship between health and environment. From the accounts collected by Sheltering Justice, it is clear that in the carceral space, conditions of confinement influence the wellbeing of those on the inside. In Texas, the vast majority of prisons lack air-conditioning, provide poor-quality food, and fail to address the mental health of both the administrators and correctional officers as well as those incarcerated.
In one account, founder and president of Texas Prisons Air-Conditioning Advocates explains her mission to improve conditions of confinement after her husband, who suffers from serious chronic illnesses, was confined in a prison without air-conditioning. After years of advocating for all Texas prisons to improve conditions, she learned her husband was diagnosed with COVID-19 this past summer, prompting correctional officers to transfer him to a different unit. Through multiple conversations with her husband, she learned he was placed in a “quarantine” unit without air-conditioning alongside other individuals that tested positive and individuals that refused to be tested. In other words, the living conditions her husband needed to manage his kidney disease were discontinued, and by his accounts, the health care provided in the COVID-19 unit relied on asymptomatic and healthier inmates.
Hearing experiences like the one told by Casey Phillips, Murphy contends that…
“When someone asks me whether or not folks on the inside will receive the vaccine, I first think of these circumstances that have so woefully, and deliberately, shortened and shortchanged the quality of life for so many people even before the coronavirus pandemic.”
Questioning whether the carceral system, which operates contrary to the values of human dignity and quality of life is capable of implementing a strategy to protect individuals from COVID-19, is reasonable. The inadequate health care infrastructure in prisons will be a significant obstacle to public health vaccine campaigns.
A principle fundamental to upholding this infrastructure that can raise future ethical concerns was identified by Phillips. The testimony detailed what occurred when an individual refused to get tested — they were punished by being placed with individuals positive for COVID-19.
How will a system that deliberately uses coercion and punitive measures deal with individuals unwilling to comply with vaccination orders?
Historically, the forfeiture of choice and bodily autonomy has been a justified as means of prioritizing the safety of all to the safety of one. From a public health perspective, the protocol of placing individuals refusing COVID-19 testing with those experiencing illness is hypothetically expected to reduce transmission by accounting for individuals with unknown status. However, this protocol is problematic for two reasons:
- It is unethical because it guarantees illness.
- Using punitive measures in response to an individual’s practice of their bodily autonomy degrades trust and jeopardizes future cooperation between the individual and the carceral healthcare systems.
As prisons prepare to distribute vaccines, public health should develop recommendations to guide correctional administrators to develop ethical guidelines that prioritize the health and simultaneously the autonomy of individuals residing in prisons. This is especially critical when public health officials encounter scenarios where individuals that distrust the carceral healthcare systems refuse the vaccine.
In order to counter the generationally instilled distrust for systems of correctional healthcare, and to preserve the choice and bodily autonomy of individuals refusing the vaccine, prison officials should work with community members, advocates, and public health experts to develop vaccine education programming that disproves misinformation and provides information about vaccine safety and potential side effects.
States still have an opportunity to embrace the ethical, medical, and legal arguments pointing to the necessary inclusion of incarcerated individuals in vaccine roll-out plans. States should not only follow evidence-informed guidance to include currently incarcerated individuals in the early stage of vaccination, but also involve epidemiologists and ethicists in preparing their health care infrastructure to support executing their vaccination plan. Otherwise, by abandoning individuals living within carceral settings states are re-perpetrating state-sanctioned violence by withholding medical care.
