Vaccinations in Jails and Prisons

While any vaccination mandate has implications for individual rights, in light of the grave risks presented by COVID-19 and the demonstrated safety and effectiveness of the authorized vaccines thus far, COVID-19 vaccination requirements can be consistent with civil liberties principles, but any vaccine mandate must be assessed on its own facts and circumstances. When feasible, voluntary vaccination measures should precede any mandate.

Regarding people who are incarcerated, the government’s interest in protecting vulnerable populations strengthens the case for a vaccine mandate for people who work in congregate settings. Patients in healthcare facilities are often more vulnerable to COVID-19 infection and serious illness or death, and the disease appears more likely to spread easily in these contexts and other congregate settings. Thus, it is generally appropriate for hospitals, nursing homes, medical practices, and other healthcare operations to mandate COVID-19 vaccination for staff who interact with patients or the public as part of their regular job duties. Similar considerations apply to staff in prisons, jails, and immigration detention centers where the people who are incarcerated face disproportionate outbreaks and rates of illness and death from COVID-19. People who are incarcerated often lack adequate nutrition, health care, and access to fresh air, sanitizer, and other materials necessary for proper hygiene, and they have very little to no control over their exposure to COVID-19. It’s partially due to such considerations that with regard to staff vaccinations, many corrections systems–like many hospitals and medical providers–have always required staff get annual flu shots, show proof of MMR vaccination, receive tetanus shots, etc., as a condition of employment.

With respect to the people who themselves are incarcerated, the first steps should still be to make the vaccine voluntarily available. Also, the offer of vaccination should be made in a non-coercive fashion. For example, there should be no threatening to put people in solitary confinement, take away their earned good time, prohibit visits, etc., in order to coerce them to accept the vaccine. For people who are incarcerated and who are concerned about the vaccinations, robust efforts should be made to educate them about the benefits and safety of the vaccine using appropriate patient education materials and trusted messengers, such as other formerly incarcerated people, outside doctors, etc. With respect to mandating vaccinations for people who are incarcerated, there should be no across-the-board mandates and there is a stronger justification required because they have no choice but to be in the facility. Enforcing a vaccine mandate in a carceral or other coercive setting poses special challenges. It is important to recognize our country’s shameful history of medical experimentation on people with disabilities, people who are incarcerated, and communities of color. That history is part of why these communities may view vaccine mandates with fear and skepticism and part of why there is a higher burden to overcome.