Two New York judges have ordered two separate defendants to get the Covid-19 vaccine, raising questions about the line between civic responsibility and civil liberties.
In the first case, the defendant was charged with a number of minor crimes, including drug possession and shoplifting. He was prepared to plead guilty, and prosecutors agreed. But a Bronx judge approving the deal added his own condition – the defendant had to get the Covid-19 vaccine.
A week later, a Manhattan judge made the same order, this time of a woman seeking bail before a trial.
In both cases, neither defendant appeared to object. However, legal observers said the two judges’ orders – made in different courts and for different reasons – raised questions regarding civil liberties and freedom of choice.
The orders have sparked disagreements as a number of experts who reviewed the orders could not come to an agreement as to whether they were justified, or whether or one or both could represent an overstep. The debate adds to ongoing legal and ethical complications that have emerged around vaccine requirements.
In one case, Judge Jeffrey Zimmerman of the Bronx County criminal court, explained that the defendant, William Gregory, had been accused of crimes – such as drug possession, criminal trespass, shoplifting and criminal contempt – that indicated that he had placed his own interest above others’. By getting the Covid-19 vaccine, the judge explained, Gregory would be doing the opposite, and so vaccination would represent a form of rehabilitation.
Similarly, federal Manhattan judge, Jed S. Rakoff, granted the release of defendant Elouisa Pimental, who was charged with conspiracy to distribute fentanyl, on the condition that she get vaccinated.
Judge Rakoff argued that it was his responsibility to determine whether a person seeking release represented a danger to their community. He suggested that the unvaccinated posed such a danger, given their “enhanced risk of infecting other, innocent people and even potentially causing their deaths.”
Stephen Gillers, an expert in legal ethics at the New York University School of Law, said that Judge Rakoff was likely not breaking any laws, as long as Ms. Pimental was not reluctant to get vaccinated due to health reasons or “legitimate religious objections.”
Gillers said: “Those aside, I think that this requirement fits within the broader category of the judge’s responsibility for the safety of individuals or the public generally.”
Ian Marcus Amelkin, a lawyer for Ms. Pimental, said that she had told the judge that she did not object to being vaccinated. Although, Cheryl Bader, a professor at the Fordham University School of Law, said that while she admired Judge Rakoff’s creativity, there was a “potential hole in the underlying logic.”
She argued that Pimental’s criminal charges and the evaluation of her danger to society cannot be compared to the danger of spreading Covid-19, and was clearly not connected to the distribution of fentanyl.
Nadine Strossen, a professor at New York Law School, said that Judge Zimmerman framed his order as a matter of Gregory’s personal improvement, and said that she did not see the logical connection between Gregory’s accused crimes and his being vaccinated.
Strossen said: “That made it seem to me like an abuse of discretion. That the judge has this guy in his power and he can impose whatever hobbyhorse is important to him.”
It seems like the vaccine really is the key to freedom, as criminals are being told to get jabbed and be allowed to reenter society…