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Vaccine mandate struck down as cases climb in Calif. prisons

The court sided with CDCR over a federal healthcare receiver who had initiated the vaccine directive

By Wes Venteicher
The Sacramento Bee

SACRAMENTO, Calif. — An appellate court struck down a coronavirus vaccine mandate for California state prison employees April 25, siding with the state Department of Corrections and Rehabilitation over a federal health care receiver who had initiated the vaccine directive.

The newly-canceled mandate was issued last fall by a U.S. District Court judge on the recommendation of J. Clark Kelso, the federal receiver who oversees health care in California’s state prisons under a long-standing court order.

Kelso said in his recommendation that the delta variant, which was circulating at the time, presented “enormous risks” to those incarcerated in the tight quarters of the prisons.

Gov. Gavin Newsom and the corrections department appealed the court order, saying the department’s efforts encouraging voluntary vaccination were sufficient. Included in their arguments was a concern that too many employees would quit over a mandate.

Meanwhile, the delta variant drove the second-largest outbreak in the prisons over the winter.

Now another wave could be coming. The corrections department reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April.

New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons.

The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

“Our state prisons remain superspreader sites,” said James King, a legislative campaign manager with the Ella Baker Center for Human Rights. “So if the uptick goes up slightly in the surrounding area, that means more guards will be going in who will then deal with dozens if not hundreds of people they infect.”

Fifty prison employees and 254 prisoners have died from the virus, according to CDCR’s covid tracker.

King said he supports a vaccine mandate for state prison employees – correctional officers in particular – on the grounds that they are charged with protecting people in custody. A mandate would support that mission, he said.

As of Tuesday, 81% of the incarcerated population and 73% or prison employees were vaccinated, corrections department spokeswoman Dana Simas said in an email. Unvaccinated employees are tested once to twice a week.

The rate among the California population in general is 75%, according to the Department of Public Health.

“The department appreciates the court’s ruling and affirmation of the various measures we have taken in mitigating and responding to the COVID 19 pandemic, including access to vaccines for our staff and incarcerated population,” Simas said in the email.

Simas said that cases are starting to trend downward, and noted that there are currently no COVID-19 hospitalizations.

In its ruling, the appellate court said the corrections department had not exhibited “deliberate indifference” toward prisoners’ health by opting for a voluntary vaccination policy, identifying the high legal standard the appellate judges said was needed for a court to intervene.

The ruling was welcomed by the California Correctional Peace Officers Association, which opposed the mandate.

“Since 2020, the union and prison officials have taken aggressive steps to fight the pandemic in prisons,” CCPOA president Glen Stailey said in a statement emailed by spokesman Nate Ballard. “The court recognized this fact, and issued a reasonable ruling.”

The union, which contributed $1.75 million to Newsom’s recall defense, joined Newsom in the lawsuit, and also tried unsuccessfully to stop a narrower mandate for prison employees who work in health care settings.

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