COVID-19 vaccination: The questions correctional administrations should be asking

COVID-19 has spread widely in jails and prisons. What vaccine policy options do we have to arrest the spread?


By Tim Stephens, Don Hulick, Gary Maynard, Keith Neely and John Walsh, PhD

Throughout the late fall, the Advisory Committee on Immunization Practices (ACIP), an independent advisory committee to the federal government, met to discuss the prioritization of vaccine distribution for the current COVID-19 pandemic. [1]

ACIP deliberations have framed the order in which Americans will receive vaccines, although implementation of this mass vaccination program is left to the states.

What are the legal issues, challenges and obstacles if inmates are not prioritized for receiving the vaccine?
What are the legal issues, challenges and obstacles if inmates are not prioritized for receiving the vaccine? (AP Photo/Noah Berger, Pool)

Centers for Disease Control and Prevention (CDC) staff proposed that ACIP consider disease burden, mitigation of health equities, the promotion of justice and maximization of benefits as decision criteria. [2] These considerations focused largely on the need to protect long-term care facilities and healthcare personnel.

Mitigating the spread of COVID-19 in corrections

Corrections officers and the incarcerated have been infected at the same or higher than nursing facilities. Current conditions in some jails are worse than in the spring peak. [3] The ACIP designated corrections officers as “essential workers” in its November 23 meeting, but did not address the status of inmates. [4]

Sharing bathrooms and eating facilities makes social distancing difficult. Inmates have high rates of chronic diseases (asthma, diabetes and heart disease) that increase vulnerability to respiratory infections.

Corrections facilities have an ongoing and chronic lack of medical capacity and negative-air pressure suites to isolate infected inmates. Early release programs, the use of tents as temporary hospitals and inmate transfer suspensions have failed to halt disease spread. No corrections system has sufficient isolation and quarantine capacity to fully mitigate the spread of COVID-19.

Determining vaccine distribution policies

Required fundamental changes to corrections facilities to halt the coronavirus demand the commitment of resources and time, both of which are sorely lacking. So, vaccines will now be key to reducing the spread of COVID-19 in jails and prisons.

Planning for vaccine distribution and policy specification will be critical for states, corrections administrators and medical personnel. A key decision will be how to prioritize inmates.

This will be this countrys largest mass vaccination program since the 1950s when a polio vaccine was introduced. Initially, there will be an insufficient supply of the vaccine for all priority populations.

The federal government has its own allocation of vaccines and has determined the Bureau of Prisons (BOP) will be among the first government agencies” to receive vaccines. The BOP policy is that the vaccine will be for staff and not the general inmate population. The BOP did, however, vaccinate some high-risk inmates. [5]

Public health is largely a state responsibility, which leads to differences among state implementation plans, and sometimes confusion. More than 10 years after the availability of a safe, effective vaccine for hepatitis A, and the evidence that jails were a key point for community spread, vaccination policy among the states had a significant number of differences. [6]

We can expect a similar variety of policies with the COVID-19 vaccination. States are beginning to communicate their distribution priorities and policies:

  • Maryland and Massachusetts have put inmates “among the first” [7];
  • Colorado’s Governor commented “it won’t happen,” that inmates receive the vaccine before “vulnerable” Coloradans [8];
  • A Texas sheriff is hoping detainees will be prioritized to help him in his crowded jail. [9]

Attitudes to vaccination also vary widely. In Rhode Island, 100% of corrections staff have opted to take the vaccine, [10] but a comprehensive national survey found that 38% of law enforcement officers would not take the vaccine under any circumstances. [11] A Police Executive Research Forum reported that only 3% of agencies are likely to mandate officers to take the vaccine, even as they expressed concerns about being able to serve the public with an unprotected force. [12]

Consideration must be given to the inmate population, as 95% of those in jails and prisons will be reentering society. Each state and locality will need to have a policy that includes detainees to prevent spread among the wider populations. The infection of COVID-19 in the prisons and jails should be treated as a public health issue. The National Commission on COVID-19 and Criminal Justice, led by former Attorney Generals Alberto Gonzalez and Loretta Lynch, recommended the incarcerated be given the same priority status as police and correctional officers. [13]

State and local agencies should be preparing to address these and other predictable questions:

  • Should there be mandates for regular and contracted staff to receive the vaccine?
  • What are the legal issues, challenges and obstacles if inmates are not prioritized for receiving the vaccine? Would it be considered “cruel and unusual” treatment given the lack of protection and ability to self-isolate?
  • Will existing union rules and bargaining arrangements supersede or support vaccine policy goals?
  • Will states, localities and correction administrators incur higher healthcare costs and other operational as a result of delaying vaccination of inmates?
  • Does the agency have the legal resources to incorporate a large number of religious, disability act and EEOC workplace objections [14] to their vaccine policy?
  • Will rules and requirements for frontline staff be the same as management?
  • Will vendors with contracts in multiple states and localities be willing and able to administer a variety of locally determined policies?
  • Will consent decrees mandating early release programs be more politically acceptable to the public than vaccinating inmates?
  • Should early release programs for inmates include vaccination as a condition for release?

In the first weeks of the vaccine program, significantly fewer vaccines have been administered than planned and projected. Nationally less than 20% of the distribution goal had been met by the end of 2020. The delay will only put more pressure on decisions to prioritize vaccination of inmates and the development of staff mandates because the outbreak will last longer and cause more illness.

The effort to vaccinate to bring an end to the COVID-19 pandemic will challenge all operational assumptions. We assume corrections leaders will be up to the task if they develop a plan of action now.

NEXT: I’ve been offered the COVID-19 vaccine. What do I do now?

References

1. Advisory Committee on Immunization Practices, December 1, 2020 meeting. 

2. Dooling K. Phased Allocation of COVID-19 Vaccines, December 1, 2020 ACIP meeting presentation.

3. Hendrickson M. Cook County Jail was one of the nation’s largest COVID-19 hot spots last spring. It’s worse now.” Chicago Sun-Times, December 15, 2020.

4. Sarat A. Here's why inmates should get vaccinated against COVID-19 before the rest of us. USA Today, December 11, 2020. 

5. Balsamo M. BOP: Some high-risk inmates have received virus vaccine. Corrections1, December 23, 2020. 

6. Gondles EF. A call to vaccinate the correctional population for hepatitis A and B. The American Journal of Medicine, 118:10, Supplement p. 84-89, October 1, 2005. 

7. Becker D. Mass. Prisoners Among The First To Get COVID Vaccines. WBUR News, December 13, 2020.

8. Ingold J. Colorado’s governor says prisoners won’t be prioritized for a coronavirus vaccine. A state plan outlines otherwise. The Colorado Sun, December 3, 2020.

9. Menezes S. Smith County sheriff hopes East Texas inmates will be among first to receive COVID-19 vaccine. CBSTV-19, December 15, 2020.  

10. Amaral B. Most inmates, 100% of staff opt for COVID vaccine so far at Adult Correctional Institutions. The Providence Journal, Providence, Rhode Island.

11. Perry N. 3,300 officers respond to COVID vaccine poll: 38% say ‘Yes’ to vaccination. Police1, December 22, 2020.

12. Police Executive Research Forum. Police leaders discuss mandating COVID vaccinations. Police1, December 22, 2020.

13. Langford C. Commission Says Prisoners Should Be Prioritized in Covid-19 Vaccination Plans. Courthouse News, December 14, 2020.

14. Nagele-Piazza L. What employers can do if workers refuse a COVID-19 vaccination. December 18, 2020 


About the authors

Tim Stephens, MA, is the CEO of SafeJail, a partnership of public health, facility designers, engineers and corrections experts focused on making jails safe. Tim has spent more than 30 years in developing population health innovations and public health preparedness programs. For 10 years he served as the Public Health Advisor to the National Sheriffs Association. Contact him at tstephens@safejail.com.

Don Hulick served the Illinois Department of Corrections for 20 years, before retiring as Warden of Menard Penitentiary. More recently he worked as a Vice President of Operations for Wexford Health Sources.

Gary Maynard has worked in corrections since 1970. He served in leadership roles in the Arkansas and Oklahoma prison systems, as at the Director of Corrections in South Carolina, Iowa, and as the Maryland Secretary of Public Safety.  Most recently he served the federal court as the Director of the Orleans Parish Jail.

Keith Neely, CJM, leads American Correctional Consultants, LLC. Keith oversaw the successful process for the Broward Sheriff’s Office, Department of Detention to maintain accreditation recognition from the American Correctional Association (ACA), Florida Corrections Accreditation Commission (FCAC), and the National Commission on Correctional Health Care (NCCHC). He served as a Commissioner for the FCAC from 2010–2016 and chaired the Nominating and Standards Review & Interpretation Committees.

John Walsh, Ph.D., is Co-Director of the Vanderbilt University Medical Center Program in Disaster Research and Training. He served a tour of duty in Vietnam as a Marine before following his father into a career in corrections and law enforcement. He served as sheriff in Oklahoma and was the director of the Oklahoma Sheriffs Association. He is a co-author of the 2019 book "Three Seconds to Midnight," which described how the United States was not prepared for a pandemic.

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