New York must offer vaccine to all prisoners immediately, judge rules

By Troy Closson

New York must immediately begin to offer COVID vaccines to all incarcerated people in the state’s prisons and jails, a judge ruled on Monday, making the state one of few in the nation to provide doses to such a broad population behind bars.

The order, the first involving any of the country’s largest correctional systems, comes as the coronavirus continues to roar through facilities in New York. At least 1,100 people living behind prison walls have tested positive for the virus since the start of last month, and five have died.

But even as corrections staff and many other groups, including some who live in close-contact settings like group homes and homeless shelters, have gained access to the vaccines in recent weeks, most incarcerated people in New York have remained ineligible to receive doses.

Justice Alison Y. Tuitt of state Supreme Court in the Bronx wrote in her ruling Monday afternoon that people in prisons and jails had been arbitrarily left out of the rollout and that doing so was “unfair and unjust” and an “abuse of discretion.”

State officials, she said, “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.”

She added: “There is no acceptable excuse for this deliberate exclusion.”

Gov. Andrew M. Cuomo’s office did not signal an intention to appeal the decision and said in a statement on Monday evening that eligibility would be expanded to all people behind bars as the judge ordered.

“Our goal all along has been to implement a vaccination program that is fair and equitable, and these changes will help ensure that continues to happen,” said Beth Garvey, acting counsel to the governor.

Public health researchers and infectious disease specialists widely agreed, even in the earliest stages of vaccination efforts when supply was more limited, that the roughly 50,000 people in correctional facilities across the state should be made eligible because of their uniquely high risk for contracting and spreading the virus. A disproportionate number of them are also Black and Latino, groups that have been hit hard by the pandemic.

But vaccinating incarcerated people has proved politically fraught across the country as states grappling with the same ethical, logistical and legal questions have drawn up drastically different timelines for offering doses. In New York, most of those behind bars had been left out, though other high-risk groups like restaurant workers, public-facing government employees and essential building service workers recently became eligible.

Florida has not yet made people in state prisons eligible, while Texas and Arkansas announced last week that they would start providing doses to some of those behind bars. Some other states, including New Jersey, began inoculating incarcerated people late last year, just as the first vaccine doses were being made available. And in Massachusetts, the roughly 6,400 people in prison have all already been offered a vaccine.

In a similar suit last month in Oregon, a federal court judge ordered the state prison system, which has a population of around 12,000, to offer doses to all incarcerated people. It was the first successful legal battle of its kind nationwide.

Hours after the lawsuit in state Supreme Court in the Bronx was filed early last month, state corrections officials announced that incarcerated people ages 65 and older, who make up roughly 3% of the prison population, would be offered the vaccine.

Around 1,100 detainees in New York City jails, many of whom were at the highest risk of complications from infection, also received doses, starting in the first weeks of January.

In recent weeks, the state’s age threshold for eligibility was lowered to include anyone 60 years of age and older, and then 50 and older. People with some chronic health conditions were also allowed to sign up for vaccination appointments.

State officials announced Monday that all adult residents would be eligible to receive a coronavirus vaccine by April 6, which might have led more people behind bars to soon be offered doses even had the ruling not been issued.

Inside prisons, roughly three-fourths of the 1,066 incarcerated people over 65 opted into receiving shots, a spokeswoman for the state corrections department said last week. More than 2,500 people with eligible conditions also received their first doses.

Still, public health experts say that incarcerated people regardless of age or condition should have already been made eligible since they often live in congested units and eat in crowded facilities where social distancing is nearly impossible.

“It’s a population that should be at the top of the list,” Dr. Wafaa El-Sadr, an epidemiologist at Columbia University’s Mailman School of Public Health, said in an interview in January, during the first weeks of the state’s rollout. “I can’t think of an insurmountable barrier in all honesty to getting it done aside from stigmatization and discrimination.”

The Centers for Disease Control and Prevention recommends offering doses to everyone at correctional facilities simultaneously, public defenders and civil liberties groups noted in their arguments. Prison and jail workers across the state were made eligible to receive the vaccine on Jan. 11.

Efforts to place incarcerated people ahead of the general public in the rollout have drawn pushback from some lawmakers in other states. The state Senate in Kansas, where the majority of members are Republicans, passed a nonbinding resolution demanding that the governor revise a vaccination plan that prioritized those in prisons. Colorado backtracked on a plan to give prisoners early access to vaccines following opposition from Republican lawmakers and on social media.

And in New York, Republicans in the state Senate and Assembly had raised concerns over vaccinating incarcerated people before fully inoculating essential workers.

Several advocacy groups plan to now focus on continued education and outreach around the vaccine. Some incarcerated people, they worry, may be reluctant to accept doses, largely because of the government’s history of medical experimentation on prison populations and people of color and the dearth of information available to people behind bars.

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