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August 9, 2021

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

August 9, 2021 at 08:32 PM | Permalink

Comments

Hi, I'm an academic who saw some of this discussion on Twitter. I am very confused about all this from a social justice perspective. So far as I could tell from the online discussion, the two counterfactuals people want to consider are (a) there's no bias in sentencing, and (b) all judges are equally biased. Option (a) seems to have been dispensed with already in the literature? So the "worst" case scenario (in the sense of this new paper being wrong) is that people want to argue that all judges are equally racially discriminatory? Why are people more upset about econometric methods than about, you know, judges being discriminatory? I would very much like to see scholars get as upset about that as they do about econometric debates.

Posted by: Idont Thinkso | Aug 9, 2021 10:13:58 PM

Hi, I'm an academic who saw some of this discussion on Twitter. I am very confused about all this from a social justice perspective. So far as I could tell from the online discussion, the two counterfactuals people want to consider are (a) there's no bias in sentencing, and (b) all judges are equally biased. Option (a) seems to have been dispensed with already in the literature? So the "worst" case scenario (in the sense of this new paper being wrong) is that people want to argue that all judges are equally racially discriminatory? Why are people more upset about econometric methods than about, you know, judges being discriminatory? I would very much like to see scholars get as upset about that as they do about econometric debates.

Posted by: Idont Thinkso | Aug 9, 2021 10:14:00 PM

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