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March 29, 2021

NY Supreme Court finds that excluding incarcerated people in New York from vaccine access is "arbitrary and capricious and violates Equal Protection"

A state judge in New York Supreme Court ruled today that New York violated the constitutional rights of incarcerated people by refusing to offer them COVID-19 vaccines at the same time it was offered to other groups in congregate settings. In Holden v. Zucker, No. 801592/2021E (N.Y. S. Ct. Mar. 29, 2021) (available here), the judge ordered that every incarcerated person in the state be made eligible for the vaccine immediately, and here is part of her discussion:

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.  Moreover, CDC has recommended those confined in jails and prisons should be vaccinated at the same time as those working in the very same facilities.  However, Respondents have excluded those confined in prisons and jails from the COVID-19 vaccine, while granting access to correctional workers, as well as those working and living in other government-run congregate facilities. This Court finds that this exclusion is by definition arbitrary and capricious and violates Equal Protection....

Respondents have 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, in violation of State and Federal Equal Protection guarantees, and their decision must be vacated and modified to allow incarcerated individuals as a group to access vaccine eligibility in phase 1b.  People working and living together are at exponentially heightened risk for contracting COVID-19, a virus that can cause long-term health complications and death.  In light of this, New York’s Health Commissioner and Governor Cuomo have specifically prioritized vaccinations for thousands of New Yorkers who work and live in congregate facilities that are the breeding grounds for this deadly virus.  This prioritization is consistent with the unanimous recommendations of the CDC and public health and medical experts.  Despite these scientific recommendations, Respondents have excluded individuals who are incarcerated.  There is no acceptable excuse for this deliberate exclusion as COVID-19 does not discriminate between congregate settings.

March 29, 2021 at 06:43 PM | Permalink


The courts are often too generous. There's nothing "arbitrary" about this. It is targeted and intentional, demonstrating a devaluation of human life. I'm afraid NY is far from alone in this regard.

Posted by: John | Mar 29, 2021 10:24:46 PM

I need to take a copy of this decision to Frankfort, Kentucky tomorrow and deliver it to Attorney General Daniel Cameron and Governor Andy Beshear. 48 Kentucky prison inmates have died from the Coronavirus, plus 5 Dept. of Corrections Staff Members. More than half of Kentucky's prison inmates have contracted CV-19. The Governor only made the vaccines available to inmates 70 and older, while in the general population of the state, people 18 and older can receive the vaccine now.

Posted by: Jim Gormley | Mar 30, 2021 12:20:35 AM

The word "arbitrary" in a legal sense often means "not legally reasonable." The policy is often in some way intentional.

Posted by: Joe | Mar 30, 2021 7:21:02 AM

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