Orders by state and federal judges requiring Covid vaccination as a condition of bail or probation prompted skepticism from legal scholars about fairness and whether the mandates blur ethical lines.
While several scholars said in interviews with Bloomberg Law that the handful of recent decisions are likely legally sound, they raised questions about how far courts should go to balance public health and civil liberties.
“The big ethical dilemma here is that courts are leveraging the defendant’s vulnerability,” said Jessie Hill, a professor and associate dean for research and faculty development at Case Western Reserve University in Ohio. “They are imposing this condition on them because they can and because the defendants are at their mercy.”
A number of federal and state courts are imposing vaccine requirements on staff, revisiting mask mandates and remote proceedings, and taking other safety and health steps in response to the spreading Covid delta variant.
But U.S. District Judge Jed Rakoff of the Southern District of New York and at least two state court jurists in Ohio, as reported by the Cincinnati Enquirer, took matters further recently by requiring vaccinations for defendants as a condition of probation or bail.
The judges couldn’t be reached or declined to comment. But Rakoff, who presides in one of the nation’s busiest federal trial courts, said his order on Tuesday was a matter of public safety. The attorney for the defendant in his case couldn’t be reached for comment.
The actions by Rakoff and the other judges raised eyebrows among legal experts with Covid vaccination a searing cultural and political issue despite the urgent threat in many parts of the country posed by the more transmissible delta variant.
Judges can and do mandate medical treatment for people out on probation and bail, James Hodge, law professor and director of the Center for Public Health Law and Policy at Arizona State University.
What’s “sensational” with these cases is that “you have defendants being required to take a vaccine that some people still view as experimental—even though it’s not,” Hodge said. But Hodge said he doesn’t find the orders exceptional and expects to see more judges making these kinds of requirements over the next several months.
In his memorandum order, Rakoff said the danger unvaccinated people pose to public health during the pandemic makes vaccination a condition of bail that is “reasonably necessary to assure safety of any other person and the community.”
Rakoff cited ankle bracelets and urine tests as other examples of bail conditions that are allowed regularly under the Bail Reform Act. His order also came after a magistrate judge ordered the defendant detained without bail.
Probation vs. Bail
Shima Baradran Baughman, an associate dean of research and faculty at the University of Utah who wrote a book on bail in the U.S., said without knowing the specifics of the cases, both the bail and probation orders would likely withstand challenges based on the current legal environment.
The considerations for bail and probation are different, however, Baughman said. While the New York decision might be legal, it is out-of-step with changing opinions about requirements for pre-trial defendants out on bail.
“I disagree with treating people that are released on bail that have not been charged with a crime any differently unless there is a proven state interest,” Baughman said.
Courts have generally accepted that it’s constitutional to require vaccination, Hill said. The question with these orders is whether requiring the vaccine is related to the defendant’s rehabilitation or keeping those around them safe.
“The vaccination condition is just a very general condition, justified by general concerns about safety,” Hill said.
Coercion at Risk
Some scholars argue the orders are coercive in nature and exploit the vulnerability of a defendant.
“The purpose of bail is to ensure court appearance, not to coerce medical decisions,” New York Civil Liberties Union policy counsel Jared Trujillo said of the SDNY order in an emailed statement. “In this case, the choice between vaccination and incarceration is not really a choice at all.”
Abbe Smith, professor at Georgetown and director of the criminal defense and prisoner advocacy clinic said, as a member of the community, she’s happy judges are ordering people to get vaccinated. As a law professor, however, Smith said the orders are “problematic.”
At worst, she said it reminds her of forced-sterilization cases that disproportionately impacted minorities. Requirements like this raise questions about inequality as people caught up in the criminal justice system are disproportionately poor and racial minorities, Smith said. She said that she would be surprised if the orders stood.
“Why should a person in the criminal legal system be mandated when the federal government has no power to mandate the rest of us? And likewise, for purposes of bail, a person’s freedom shouldn’t be conditioned on their bodily autonomy,” Smith said.