By now, everyone knows that the COVID-19 vaccine is widely available and largely effective. Unless a private business or local authorities require the vaccination, no one has been forced to get it. But, for those who want it, it’s free, relatively easy to find and usually beneficial. Inside of prisons, however, the discussion around the COVID-19 vaccine is different. And with judges starting to use your vaccination status against you in court, prisoners are starting to feel forced to get the vaccine.

Have officials forced prisoners to get the COVID-19 vaccination?

Not exactly. In state and federal prisons across the country, incarcerated people can choose whether to get the COVID-19 vaccine. Prison officials and other incarcerated people may pressure you one way or the other. But we have not heard any reports about officials forcing prisoners to get the vaccine in the literal sense. Put differently, no one has reported that officials have physically forced them to get the shot. So, in that sense, prisoners are not facing the threat of forced vaccination.

That doesn’t mean, however, that courts won’t use their vaccination status against them. As Peter J. Tomasek wrote in this article for Interrogating Justice, in a case called United States v. Norman, a federal judge in Texas used a prisoner’s decision not to get the vaccine to deny her request for compassionate release. Even though the prisoner was 50 years old and had chronic obstructive pulmonary disease, obesity and respiratory issues, the judge denied her request because of her vaccination status.

“Norman, like all inmates at Carswell FMC, [had] the opportunity to become vaccinated against COVID-19 but refused….” That, the judge said, was a problem: “[A] defendant cannot refuse the vaccine to prevent against COVID-19 on the one hand and then argue for compassionate release because [s]he faces an increased risk of severe illness or death should [s]he contract COVID-19 on the other hand.” If prisoners wanted a chance at compassionate release, she said, they’re forced to get the vaccination.

Is this just one judge’s decision or a hard-and-fast rule?

Not every judge will reach this same conclusion. In fact, as Tomasek also pointed out, judges have used prisoners’ decisions to get the vaccine against them as well. In a case called United States v. Kopfstein-Penk, for example, a federal judge in Maryland denied a request for compassionate release because the prisoner got the COVID-19 vaccine. “[E]ven accepting that [the prisoner] has conditions that place him at a higher risk from COVID-19,” that judge said, “the risk that he faces has been reduced significantly since the onset of the pandemic because of the availability of the COVID-19 vaccine.”

Yet the fear that government forces prisoners to get the COVID-19 vaccination isn’t an unrealistic one. In fact, according to a decision from a New Jersey federal court in a case called United States v. Suarez released last week, an incarcerated person’s decision not to get the COVID-19 vaccine has become “practically a disqualifier in most cases” for compassionate release.

In recognizing that “practical disqualification” for compassionate release, the New Jersey court relied on a Seventh Circuit case called United States v. Broadfield. In Broadfield, the Seventh Circuit ruled that “a prisoner who remains at elevated risk because he has declined to be vaccinated cannot plausibly characterize that risk as an ‘extraordinary and compelling’ justification” needed for compassionate release. Therefore, if prisoners want a chance at compassionate release, they must get the vaccination.

The Takeaway:

Are government officials forcing prisoners to get the COVID-19 vaccination? Not really. As far as we know, no one is holding incarcerated people down and making them get the shot. But, if a prisoner wants to request a compassionate release, they essentially must get the vaccination. That is because most courts have said that the decision not to get the vaccine is “practically a disqualifier” for compassionate release. Have media outlets reported on the forced vaccination of prisoners yet? It doesn’t seem like it.