Lauren Green

Advocates and scientists have urged vaccinating vulnerable individuals first when creating COVID-19 vaccine rollout plans.[1] According to a report from the National Commission on COVID-19 and Criminal Justice, prisons had almost four times more confirmed coronavirus cases and twice as many deaths as the general public.[2] One of the greatest challenges of reducing the spread of COVID-19 in detention centers is the inability of incarcerated people to maintain a safe social distance because of their confinement in small shared spaces.[3] This challenge is the same rationale for including long-term nursing home residents and workers in the first phase of distribution plans.[4] But regarding incarcerated individuals, some officials turned vaccine distribution into a criminality issue, arguing that incarcerated individuals do not deserve to receive the vaccine before those who have not committed crimes.[5]

This posturing, however, violates the states’ obligation to protect the health of those confined in their detention centers—being incarcerated or detained should not be synonymous with being left vulnerable to COVID-19. The Johns Hopkins Center for Health Security notes ‘[t]here is a legal and moral duty to provide healthcare to incarcerated individuals” because they are “both at high risk of infection, transmission, and poor outcomes because of comorbidities and poor healthcare access.”[6] Likewise, the American Medical Association “calls for all correctional and immigrant detention facilities . . . [to] be prioritized in receiving access to safe, effective COVID-19 vaccines in the initial phases of distribution.”[7]

Despite overwhelming scientific evidence that incarcerated populations should be prioritized, only five states—Connecticut, Delaware, Maryland, Nebraska and New Mexico—specifically include incarcerated people in the first phase of COVID-19 vaccine distribution plans.[8] North Carolina, meanwhile, includes incarcerated individuals who are older and have other health conditions in phase one or two of its plan.[9] However, most states’ plans are unclear and unspecific regarding whether incarcerated individuals are included in the “critical populations” receiving the vaccine in phase one—some states specifically exclude the incarcerated from plans.[10]

Even if one can get past the hypocrisy and immorality of subjecting incarcerated individuals to uncontrolled outbreaks of COVID-19 simply because of the commission of a crime, there is no scientific basis to do so. In fact, as discussed above, the science points to the contrary—the incarcerated should be amongst the first to be vaccinated. Incarcerated individuals and detention center personnel are under similar circumstances as long-term nursing home residents and health care workers.[11] Each population constitutes a congregate setting with the greatest infection risk and further transmission.[12] The only difference is that one of those populations has committed a crime (excluding the large portion of incarcerated individuals who have not been found guilty of a crime and are only confined because they cannot afford bail). The same rationale for prioritizing vaccinating long-term nursing home residents and health care workers should apply to incarcerated individuals on a moral ground, but also if this country is serious about curtailing the spread of COVID-19. In addition to inmates and detainees, COVID-19 poses a serious risk to detention center staff and visitors[13]—likely how the virus entered detention centers in the first place. When staff and visitors are exposed to the virus they act as transmitters between the detention center and their communities.[14] Thus, vaccination of the incarcerated is essential because COVID-19 cannot be curtailed if the incarcerated are not treated and vaccinated. Detainees will continue to transmit the virus to those who come though the detention center and perpetuate the high risk of transmission to communities outside of the detention center. Until the incarcerated are vaccinated, this transmission cycle will likely continue and COVID-19 will continue to spread through detention centers and nearby communities.

The inclusion of incarcerated individuals in early phases of vaccine distribution is critical. Not only does basing access to the vaccine on criminality violate the state’s duty to protect the health of people in its care, but excluding these individuals fails to slow the spread of the virus in the places where it is poised to spread the fastest. Unless the United States prioritizes vaccines for incarcerated people, COVID-19 will continue to spread through jails, prisons, and detention centers.[15] The staff who go in and out of the facilities will carry the deadly virus home to their communities, causing it to spread beyond jail and prison walls.[16] Deprioritizing incarcerated individuals solely because they committed a crime is a moral and public health crisis.

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[1] Abby Goodnough and Jan Hoffman, Frontline Workers and People Over 74 Should Get Shots Next, C.D.C. Panel Says, NY Times (Dec. 20, 2020), https://www.nytimes.com/2020/12/20/health/covid-vaccine-first-elderly-workers.html.

[2] Kevin T. Schnepel, COVID-19 in U.S. State and Federal Prisons: December 2020 Update, Council on Criminal Justice 3 (2020).

[3] Id.

[4] Sarah Martinson, Virus Death Rates Make Prison Vaccine Plans A Justice Issue, Law360 (Dec. 20, 2020, 8:02 PM), https://www.law360.com/access-to-justice/articles/1336988/virus-death-rates-make-prison-vaccine-plans-a-justice-issue?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice&read_more=1.

[5] Id.

[6] Eric Toner et al., Interim Framework for COVID-19 Vaccine Allocation and Distribution in the United States, Johns Hopkins Center for Health Security 32 (2020).

[7] Press Release, American Medical Association, AMA policy calls for more COVID-19 prevention for congregate settings (Nov. 17, 2020) (on file with AMA press center) (emphasis added).

[8] Katie Rose Quandt, Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans, Prison Policy Initiative (Dec. 8, 2020), https://www.prisonpolicy.org/blog/2020/12/08/covid-vaccination-plans/.

[9] Id.

[10] Id.

[11] Toner et al., at 20.

[12] Id.

[13] Martinson, supra note 4.

[14] Id.

[15] Nicholas Turner and Erica Bryant, States Should Prioritize Incarcerated People for COVID-19 Vaccine Distribution, Vera Institute of Justice (Dec. 3, 2020), https://www.vera.org/blog/states-should-prioritize-incarcerated-people-for-covid-19-vaccine-distribution.

[16] Id.