The NY Times reported yesterday that a State judge and a Federal Judge made getting a vaccine a requirement to a deal with criminally accused person appearing before them.
In the Bronx, State Supreme Court Judge Jeffrey Zimmerman was taking the guilty plea of a man accused of drug crimes, trespass, criminal contempt, and shoplifting. After the lawyers explained the terms of the plea deal, Judge Zimmerman said he would accept it only if the defendant agreed to get the covid-19 vaccine. He said that the charges reflected that the defendant had put his needs and interests above society’s and that agreeing to accept the vaccine would be doing the opposite. The defendant agreed and took the deal.
In Manhattan federal court, Judge Jed Rakoff was deciding bail conditions of a woman accused of distributing fentanyl. He said that the bail law allows him to consider if a person is “a danger to the community” and that the unvaccinated are a demonstrated danger to the community, so he made getting a vaccine a condition of the woman’s release. The defendant’s lawyer told the court that his client did not object to getting the a vaccine, so the condition was imposed.
The issue in these two cases is made easier because the parties “consented” to getting the vaccine. Of course, criminal practitioners will know that the power leverage is greatly in favor of the bench that is deciding the fate and freedom of the accused; so how willingly was the consent being given? The coercive element of having to make your mind up while standing there in front of the judge hearing your case cannot be ignored. As far as the legal basis for it, courts routinely place conditions on bail and pleas involving getting medical or psychological treatment; anger management; and parent training. So as long as the plea is voluntarily entered into, these scenarios seem legal. It is ironic though that Judge Rakoff wrote a whole book on how the legal system forces even the innocent to plead guilty on occasion.
The bigger issue will arise if a judge decides to impose a vaccination requirement on a defendant who does not consent to the vaccine. I think the Constitution prohibits a judge from forced vaccination of a defendant. In 1927, SCOTUS Justice Oliver Wendell Holmes in the case of Buck v. Bell, ordered that mandatory sterilization of a woman whose family claimed she had Down’s syndrome who had given birth to child who also had Down’s Syndrome. (The woman was 17, got pregnant after having been raped by a family member, and was later found not to have Down’s Syndrome, oh well, sorry! ) Justice Homes infamously wrote, “Three generations of imbeciles is enough.” That decision led to 70,000 forced sterilizations in the United States from 1927 to 1983. Lest you think that’s a vestige of our brutal past, well, the court had an opportunity to overturn it in 1942 in a case challenging the Oklahoma forced sterilization law and they specifically chose not to. The Court struck down the Oklahoma law but on very narrow grounds, and the justice who wrote the decision later opined they deliberately chose not to overrule Buck v. Bell. And it is was used just twenty years ago. In 2001, a forced sterilization was upheld by a U.S. Court of Appeals – one step below the Supreme Court – citing Buck v. Bell.
In 2003, the ACLU obtained a reversal of an order from a Michigan judge who had forced a defendant to begin taking birth control, after she had been found to have been in neglect of her children. The ACLU argued that was an invasion of the woman’s privacy under Roe v. Wade and Griswold v. Connecticut.
So a legal challenge to a forced vaccination would fall somewhere between those two cases and their progeny. My issue is that in cases where courts order drug treatment or anger management, the prescribed treatment is somehow related to the charged crime and the accused’s alleged behavior. Right or wrong, in those cases, the court is trying to rehabilitate the defendant regarding the conduct that led them to being in the criminal justice system. Not being vaccinated has nothing to do with the charged crimes. And that’s why I think a challenge by a person who was forced against their will to get a vaccine would likely win. This type of governmental imposition is different than States requiring masks or vaccines to attend movies or go to restaurants. You have no Constitutional right to do either. And this seems like it could open the door to a judge imposing all kinds of restrictions or requirements on a defendant that have nothing to do with the charged crime.
After all, if judge can impose this health treatment because the judge thinks its best for the accused and society, why can’t a judge tell a morbidly obese defendant to lose weight? Or to get a shingles or chicken pox vaccine? The reality is that judges will play it safe and not make it mandatory. They will just make it part of any plea bargain or bail package the defendant is interested in. And as we know, people always make the decision they want with a sword hanging over them or a gun pointed at their head.
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