US judge mulls orders on vaccine priority for state’s prisoners

As California considers curbing the number of COVID-19 vaccines being given to the state prisons department for inmates, a federal judge in San Francisco refused to force the state to maintain its current supply of doses to the agency.

But at the same time, U.S. District Judge Jon S. Tigar did not rule out ordering California to immediately provide more vaccines to the California Department of Corrections and Rehabilitation in the future since, he said, "There's a public health benefit to everyone for getting incarcerated people vaccinated."

"We know that COVID in prisons increases the spread of COVID in surrounding communities," he said.

In a major shift to its vaccine distribution program, the state in January dropped inmates from its prioritization plans in favor of simplifying eligibility to include people over 65 and workers in education and child care, health care, emergency services and food and agriculture. Prisoners were initially in the second tier of Phase 1B to receive doses along with homeless residents, who were also omitted in the revised plans.

The change has sparked controversy about where groups that are especially vulnerable to the virus because of their living conditions should be prioritized amid a limited supply of vaccines. Plata v. Newsom, 01-cv-01351 (N.D. Cal., filed April 5, 2001).

During a monthly Zoom hearing assessing the prisons department's efforts to contain the spread of the virus, Tigar acknowledged the heightened risk inmates suffer of contracting the virus and emphasized the public health benefits to immunizing them. He cited a study from Prison Policy Initiative concluding that correctional facilities produced an additional 114,000 cases of COVID-19 in California from May to August.

"Making sure we have an adequate supply of vaccines for the incarcerated population is the right thing to do for everyone," he said. "That brings me to the question of whether we have adequate supply."

"This is a very fluid situation where we go week to week not quite sure what the allocation for the coming week will be," responded court receiver Clark J. Kelso. "I've had continuing good conversations with officials in the administration for our needs and our capacity."

While there's been adequate supply, he explained there's no predetermined number set aside for prisoners because there are rapid changes to how the vaccines are utilized and how many the state gets from the federal government.

Roughly 26% of the inmates and 38% of prison staff have received at least one dose of the vaccine, according to California Correctional Health Care Services.

Plaintiffs sought a court order mandating the state continue to supply the prisons' health services approximately 14,000 doses per week, which was the number the agency received for the first week of February.

Donald Specter of the Prison Law Office argued the department's inability to immunize inmates, regardless of vaccine supply, would be a violation of the Eighth Amendment. He urged Tigar to adopt an order ensuring that California "provide the number of vaccines Kelso deems appropriate for each period of time."

"For someone to get a vaccine is a serious medical need," he said. "They've provided it without qualification to every staff member that wants to receive it even though the incarcerated population has a lot less ability to prevent infection."

Prisons department attorney Paul Mello said that the issue is not relevant right now since to date, the prisons had a sufficient supply. He stated that the agency's due process rights were violated because plaintiffs' attorneys inappropriately requested relief in a joint case management conference statement.

While he agreed that there's no need for him to intervene in the state's vaccine distribution rollout right now, Tigar warned that he might impose an order for the state to give more doses to the prisons on an emergency basis if the need arises.

"In this situation, I just need to tell the state that if Mr. Kelso notifies me that he doesn't have enough vaccines, I might conclude that even on the fastest, shortest briefing schedule, there's simply not enough time," Tigar said. "I might conclude that I need to order the state to either immediately or on short notice, provide enough vaccines."

A federal judge in Oregon ordered that state's prison system in February to offer vaccines to all incarcerated people at the same time they are offered to staff. The order was the first in the nation to prioritize them to such an extent.

Oregon had completely excluded incarcerated people from its initial distribution of vaccines, unlike California, which has prioritized those who are medically vulnerable.