When I learned that my grandparents had gotten their first doses of the COVID vaccine, I cried with relief. After a year of unceasing trauma, loss, and fear, it felt like the first sign of a turning tide. Then I started to wonder about current and former clients, and people I had heard call into court from pretrial detention during a court watch. When, I wondered, would incarcerated people receive the vaccine?
Many U.S. jurisdictions deny people who are incarcerated or have criminal records their humanity by suspending their right to vote, imposing onerous parole conditions, creating barriers to public housing, and more. Denying incarcerated people the COVID vaccine is, in many ways, the logical next step of a system that relies so heavily on dehumanizing tactics like solitary confinement and the death penalty. However, this moment also presents an opportunity for us to address the deep flaws of a prison-industrial complex.
There are many cogent criticisms of the United States’ reliance on policing and the carceral state. I will pause here to acknowledge the context of this conversation. Our current criminal legal system perpetuates systemic racism and incarcerates vast swaths of Black, Latino, and poor people, particularly men. It is impossible to discuss the criminal legal system without acknowledging the relationship between our current carceral state and slavery. Although this is not the focus of my analysis here, it bears constant recognition.
COVID has further exposed many of the challenges that incarcerated people incarcerated in those facilities have faced for decades: overcrowding, insufficient hygiene equipment, and medical neglect. The pandemic has made visible the harsh punitive consequences of incarceration in the United States, be it criminal incarceration in jails and prisons or immigration detention in ICE facilities. These systems have proven time and time again that they would rather allow people to fall ill and die than provide resources to help keep them safe. And, with notable exceptions, many people are willing to look away because of the narratives around crime, powerful White people’s studied ignorance of the problems, and an unwillingness to embrace decarceration. To avoid alienating racist and conservative communities, people across the political spectrum have pushed back against calls to defund and abolish the police and prisons. This gamesmanship has led to scathing clarifications like this powerful piece by Mariame Kaba. During the summer of 2020, COVID outbreaks at prisons resulted in calls for decarceration, which some officials heeded.
However, many prisons and other detention facilities have been hit hard by the COVID pandemic, for many of the same reason that nursing homes were disproportionately impacted. In both instances, staff and other outsiders carried COVID into facilities populated by people who were ill-equipped to protect themselves, or brought COVID from inside those facilities back to their communities. During my summer with the Federal Defender’s Office, I heard clients describe how prison officials forced them to share space with symptomatic people, denied them proper hygiene materials, and generally medically abandoned them even as our understandings of how to prevent transmission improved. Close to Berkeley, San Quentin saw a deadly outbreak last summer, in part fueled by the California Department of Corrections and Rehabilitation continuing to transport people without proper safety or quarantine precautions. These forced transfers were just another way in which the state failed to protect incarcerated people.
Now, at the beginning of 2021, some states have begun to vaccinate prison staff and incarcerated people. However, many states are prioritizing staff over incarcerated people, despite explicit CDC guidance to the contrary, and despite the fact that many staff members are refusing the vaccine. Governor Jared Polis of Colorado said at a news briefing in January that there was “no way” incarcerated people would be vaccinated before “people who haven’t committed any crime.” This “tough on crime” attitude is an easy way to score political points with certain voters who are always listening for dog whistles about crime.
It is an understatement to say that the COVID pandemic has been a public health catastrophe, and there are many possible actors to blame. In many ways, COVID safety is a matter of individual responsibility, compounded by a complex matrix of social problems like inadequate access to health care, wealth inequality, and disenfranchisement, all of which are amplified by or rooted in structural racism. At the end of the day, vaccine distribution is a matter of public health. Although some people might want to deny incarcerated people the vaccine, incarcerated people have much in common with other high-priority vaccine recipients.
Like many residents of nursing homes, incarcerated people have little control over their living space, access to resources, and the people they interact with on a given day. Incarcerated people are often paid poverty wages for essential work like firefighting. Like many essential workers, incarcerated people are often at the mercy of corporations who will prioritize profits over protection, even during a pandemic. If states prioritize vaccines for people who live in nursing homes or who perform essential work, they should include incarcerated people on that list.
Besides the common sense and public health rationales for vaccinating incarcerated people, there is an ethical mandate to do so. Although the current Supreme Court seems unmoved by the plight of most criminal defendants (as evidenced by the majority’s shocking abandonment of their opportunities to halt the recent spate of federal executions), our system purports to run on an ethic of proportionality and finality of judgment. The Eighth Amendment explicitly forbids cruel and unusual punishment. For people in ICE or pretrial detention, there is no legal framework of punishment that can justify denying incarcerated people the vaccine. After all, people in pretrial detention are technically entitled to the presumption of innocence (though the reality is often more complicated) and immigration detention is, legally, not punishment. Even criminal confinement is not meant to be solely punitive. However, an inconsistent commitment to vaccinating incarcerated people is the clear product of a punitive impulse.
Incarcerated people are under a level of government control much stricter than the periodic lockdowns or shelter-in-place orders that most people have had to contend with for the past year. Incarcerated people are often medically vulnerable, and certainly are not free to seek adequate health care or enforce safety precautions on their own. Like residents of nursing homes, incarcerated people have been disproportionately affected by the pandemic. But unlike many nursing homes, jails, prisons, and other detention facilities could easily have reduced their populations. Decarceration strategies have been met with varying levels of enthusiasm and implementation. Under these circumstances, where state and local governments have consistently failed incarcerated people with their neglect, cruelty, and incompetence, they owe them the vaccine. Some states have recognized this, but many have not.
Incarcerated people don’t deserve to pay the price for a systemic failure. We have an ethical obligation to prioritize the vulnerable, and that includes making the vaccine available and recommitting to decarceration and abolition.
Ellen Ivens-Duran: Senior Executive Editor for the California Law Review, Vol. 109, and member of Berkeley Law Class of 2021.
Ellen Ivens-Duran, Prioritize Incarcerated Individuals for the COVID-19 Vaccine, Calif. L. Rev. Online (Mar. 2021), https://www.californialawreview.org/prioritize-incarcerated-individuals-for-the-covid-19-vaccine.