Commentary

Polis let himself be bullied on vaccination for inmates

Exposure to deadly disease should never be part of prison sentence

December 4, 2020 8:45 am

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Gov. Jared Polis let himself be bullied by George Brauchler. And the result is that Colorado’s coronavirus vaccination plan could be compromised.

Brauchler, the outgoing attorney for the 18th Judicial District and one-time candidate for governor, published an op-ed in The Denver Post on Sunday that falsely accused the Polis administration of wanting “to prioritize the health of incarcerated murderers, rapists, and child molesters over the lives of law-abiding Coloradans 65 years and older.” He added, “As the son of a 78-year-old father, I ask this: What in the hell is Gov. Polis doing?”

Colorado’s COVID-19 vaccination plan assigns people who live in congregate housing, including incarcerated adults, a slightly higher priority than people who are 65 or older. Whatever the merits of such a ranking, it does not say that murderers deserve to live more than innocent grandmothers. Its purpose is to outline a way for Colorado to distribute a limited supply of vaccine in the most “fair, equitable, and efficient” way possible.

Nevertheless, when Polis appeared for a news briefing on Tuesday with Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, Fox News’ Faith Mangan asked Polis to respond to Brauchler’s piece.

“There’s no way that prisoners are going to get it before members of the vulnerable population,” Polis said, missing the obvious point that incarcerated people are among the most vulnerable of populations. Prisoners who are over 65 might qualify for priority distribution, Polis added, but then he said, “The vast majority of people 65 and up are free. It’ll first go to people in nursing homes, veterans facilities, frontline workers. So there’s no way it’s going to go to prisoners before it’s going to go to people who haven’t committed any crime. That’s just obvious.”

To borrow a phrase from Brauchler, what in the hell is Polis doing?

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The implication in the way both Brauchler and Polis framed the issue is that inmates, because they’re inmates, are morally less deserving of protection from COVID-19 than everyone else. Polis was in fact explicit in this judgment when he contrasted “prisoners” with “people who haven’t committed any crime.”

When a person is sentenced to a form of incarceration, exposure to a deadly disease is never part of the punishment, nor should it later be added to the sentence by executive policy. The condition of incarceration is irrelevant when it comes to inmate access to a vaccine, because inmates retain the same moral status as human beings as they did before they were convicted. The authority a society exercises in depriving people of freedom comes with the awesome responsibility of protecting those people from harm when their lack of freedom renders them incapable of protecting themselves. A state that cages people and then out of an extension of judgment exposes them to disease is guilty of extrajudicial punishment and is itself morally diseased. Furthermore, it’s estimated, when accounting for inmates in local jails awaiting resolution of their cases, that up to 60% of people incarcerated in Colorado haven’t even been convicted of a crime.

This is not to say that inmates inherently are more deserving of priority vaccination, and the state’s final vaccination strategy might very well rank people who are 65 and older ahead of inmates. But such prioritization must be based solely on epidemiological and clinical factors. The science-denying prejudice displayed by Brauchler and Polis has no place in these decisions.

There already are many indications that Colorado officials are failing to adequately protect inmates and corrections workers from COVID-19. This week the ACLU of Colorado asked a Denver District Court judge to issue an emergency order to force the state to reduce prison populations as a way to better protect inmates from the coronavirus. The advocacy group had already filed a class-action lawsuit alleging that the state’s failure to protect inmates from the virus resulted in “cruel and unusual” punishment. COVID-19 has already killed 11 state inmates, and 11% of the state’s prison population — or more than 1,500 people — is infected. There’s also an equity issue here, given that Black and Hispanic people are overrepresented in Colorado prisons compared to the general population.

Frequent COVID outbreaks in prisons point to another reason why it’s important to account for the value of vaccinations in correctional facilities — it’s a form of protection for the community, not just individual inmates. Correctional staff interact with inmates and then go home to their families. A COVID outbreak in a prison represents a risk not just to the prison community but also to the wider community.  

Brauchler claims toward the end of his piece that he believes people in prison “deserve humane treatment,” and that his argument derives solely from a concern for the “math” of saving lives. But this feeble justification for what in the balance of the op-ed amounts to cruelty is belied by another of his assertions, that promoting the health of the free over the caged is just a matter of “decency.”

His piece attempts to draw support from the Centers for Disease Control and Prevention and the World Health Organization. He purports to show that the CDC’s Advisory Committee on Immunization Practices lists only four priority groups — health care personnel, workers in essential and critical industries, people at high risk due to underlying medical conditions, and people 65 years and older — and that none of the groups includes “incarcerated child abusers.” But Brauchler’s representation of the ACIP’s priority guidance, besides using language meant only to inflame his readers, is incomplete. The passage he apparently relied on for his op-ed also does not specifically mention residents of long-term care facilities, police officers and other groups that are often assumed to warrant vaccine priority. And if Brauchler had only looked, he would have noticed that the CDC elsewhere lists “people who are incarcerated/detained in correctional facilities,” along with people who are 65, as one of the “critical populations for COVID-19 vaccination.”

Brauchler notes that the WHO Strategic Advisory Group of Experts on Immunization priority chart ranks incarcerated people lower than older adults. But there’s more to the story. For one, the WHO issues many caveats for its prioritization chart, which it says could change according to epidemiological circumstances, the characteristics of particular vaccines and other factors. And it does not dehumanize incarcerated people by referring them to them in Trumpian fashion as “murderers, rapists,” like Brauchler does. The WHO says that as a basic principle vaccine distribution strategies must “recognize and treat all human beings as having equal moral status and their interests as deserving of equal moral consideration.”

This is a principle that Brauchler in his op-ed and the governor he successfully bullied have failed to uphold. It must be hoped that, when vaccines arrive, state authorities will behave according to a higher ethical standard when carrying out distribution policy in the name of Coloradans.

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