BRONX (CN) — Saying New York arbitrarily excluded people incarcerated in jails and prisons from access to the Covid-19 vaccine, a judge in the Bronx has ordered the state to begin vaccinating detainees immediately.
The state violated equal protection laws by failing to prioritize people at serious risk of illness and death from Covid-19, ruled Bronx County Supreme Court Justice Alison Tuitt on Monday.
Specifically, officials "irrationally distinguished between incarcerated people and people living in every other type of adult congregate facility, at great risk to incarcerated people’s lives during this pandemic," Tuitt wrote.
"In all material respects, incarcerated adults face the same heightened risk of infection, serious
illness, and death, as people living in other congregate settings, and even more so than juveniles in detention
centers, where individuals have been prioritized for the vaccine."
New York will become the second state vaccinating prisoners by court order. Last month, a federal magistrate judge in Oregon demanded that the state offer vaccines to its 12,100 detainees as soon as possible.
In New York, 77,000 people are behind bars in state and local facilities, according to data from the Prison Policy Initiative.
Tuitt granted a preliminary injunction to the incarcerated petitioners, two men being held in the jail complex at Rikers Island, who filed their Feb. 4 petition with support from a coalition of New York City public defenders and advocates.
Alberto Frias, 24, said at the time that he filed the petition after jail conditions made him fear for his chances of surviving the pandemic.
“The past year has been the scariest of my life,” Frias said in a statement. “I have asthma, and every day that passes without being vaccinated leaves me anxious that I might be the next person to get sick, or that I may pass Covid onto other people.”
The impossibility of keeping the recommended 6 feet from others while incarcerated makes Rikers Island “very unsanitary and risky,” Frias said at the time.
“You eat together, you use the same showers,” Frias said. Masks are not supplied in housing areas, “so people are walking around without masks. I am simply asking to be treated fairly and with dignity.”
In addition to the clear risk to prisoners, people flow into and out of detention centers daily. As a result, “jails and prisons have not only become hotbeds themselves but have fueled the spread of Covid-19 through the larger community,” the 33-page petition states.
Lack of federal guidance concerning vaccinating people in prisons has left room for state-by-state prison vaccine decisions to be made based on politics, not health policy, advocates say.
“People who are incarcerated are not a particularly popular group of people,” explained Maria Morris, senior staff attorney at the American Civil Liberties Union’s National Prison Project, during a recent interview with Courthouse News.
“As long as we have a shortage, and the issue can be essentially framed as, ‘Grandma gets a vaccine or this guy who robbed a liquor store gets a vaccine,’” Morris said, “I think Grandma is going to win out.”
The Centers for Disease Control and Prevention under President Joe Biden has not updated the vaccine guidelines for detention centers developed under the Trump administration.
Instead of mandating a priority, the website uses bold letters saying “jurisdictions are encouraged to vaccinate staff and incarcerated/detained persons of correctional or detention facilities at the same time because of their shared increased risk of disease.”
Justice Tuitt cited the CDC’s recommendation in her 19-page ruling.
“Significantly,” the judge wrote, the state respondents “do not dispute that Petitioners are confined in congregate settings. Nor do they dispute that residents in other congregate settings, including juvenile detention centers, have been prioritized for vaccine access.”
The state has provided “no reasonable justification for the differentiation in treatment between these groups,” arguing instead that supply constraints give them the right to prioritize eligibility, the judge wrote.
Tuitt also acknowledged Governor Andrew Cuomo's Monday announcement that, effective the following day, New Yorkers age 30 and older will be eligible for Covid-19 vaccination, with eligibility expanding to all adults on April 6.
“These qualifications apply to incarcerated individuals in the State of New York,” Tuitt wrote, arguably making moot the petition on behalf of petitioner Charles Holden, who is now eligible for vaccination.
However, state policies would keep Frias and other incarcerated people under age 30 ineligible, notwithstanding that they are in congregate living environments.
Tuitt vacated and annulled the state’s determination excluding incarcerated individuals as a group currently eligible in vaccine priority category 1b, directing state officials “to immediately authorize incarcerated individuals as a group for vaccination, upon finding their exclusion arbitrary and capricious and an abuse of discretion.”
“It is an affront to public health guidance and common decency that New York State had neglected to offer vaccines to all incarcerated New Yorkers in NYC DOC custody, and our legal action has now brought this cruel and discriminatory practice to its immediate end,” said Donna Lieberman, executive director at the New York Civil Liberties Union, in an emailed statement. “The NYCLU will not stop fighting for the safety and wellbeing of New Yorkers who are incarcerated, which helps keep all New Yorkers safe.”
Beth Garvey, acting counsel to the governor, said in a statement that the New York State Department of Corrections and Community Supervision began vaccinating staff and incarcerated individuals on Feb. 5, the day after the petitioners sued the state.
More than 19,246 doses have been administered, Garvey's office said.
Garvey noted Tuesday's expansion of vaccine eligibility, saying that the state will also, as ordered, "expand eligibility to include all incarcerated individuals whether in state or local facilities."
"Our goal all along has been to implement a vaccination program that is fair and equitable," Garvey said, "and these changes will help ensure that continues to happen."
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