The plan, which put incarcerated people in line for coronavirus immunization ahead of the elderly and those with chronic conditions, had been released by the state health department. It was the product of months of deliberation by members of the state’s medical advisory group — physicians, public health officials and experts in bioethics. But their framework, when subject to the machinery of online outrage, quickly unraveled.
Asked by a Fox reporter about the prioritization, and the criticism touched off by the op-ed, Colorado Gov. Jared Polis (D) said at a December news briefing there was “no way” the limited supply of shots would “go to prisoners before it goes to people who haven’t committed any crime.” He let out a short laugh as he pronounced the word “prisoners.”
As promised, a revised version of the state’s plan, released a week later without input from the advisory panel, put incarcerated people in no particular phase. It similarly demoted people living in homeless shelters and other congregate settings, while guaranteeing access for front-line workers and adults 70 and older as part of the priority group following medical workers and residents and staff of long-term care facilities.
The shift in Colorado offers an early sign that prisons and jails, which disproportionately hold people of color and have reported some of the most virulent coronavirus outbreaks, are creating daunting dilemmas for state leaders apportioning finite shares of the vaccine. The episode illustrates how a system of preferences geared to stop the virus where it is most destructive may clash with other values in a nation that incarcerates more people than does any other.
More broadly, the makeup of the second tier is exposing sharply different priorities across the country, with some governors bucking expert advice to focus on vulnerable workers and high-risk living settings and instead rushing shots to the elderly.
Experts advising Polis said they could not be sure why he discarded their recommendations to prioritize congregate living settings — he has not expounded on his thinking — but said they were troubled that he seemed to bow to criticism from political adversaries.
Polis spokesman Conor Cahill declined to make the governor available for an interview but issued a statement defending the state’s plan, stressing the “moral obligation” to prioritize elderly people most at risk of dying from the virus and “front-line health-care heroes” caring for the sick.
“Inmate status will not make a difference in terms of timing of receipt of the vaccine,” Cahill said. “Someone who falls into a category for early priority of the vaccine and is in custody will receive the vaccine at the same time as someone in the same category who is outside our correctional facilities.”
About a dozen states take a similar approach, according to a review of draft plans by the Prison Policy Initiative, a Massachusetts think tank. Several states, including New Jersey and Washington, have already begun vaccinating inmates. Another seven — Connecticut, Delaware, Maryland, Massachusetts, Nebraska, New Mexico and Pennsylvania — put incarcerated people after health-care workers and the residents and staff of long-term care facilities, according to the think tank.
Plans in about half the states suggest inmates will gain access at some point ahead of the general population. But details are preliminary and subject to political winds.
“It’s a very stigmatized population, and there are people who say, ‘They’re in prison, they must have done something terrible, and they don’t deserve a place in line,’ ” said Matthew Wynia, director of the Center for Bioethics and Humanities at the University of Colorado and a member of the state’s medical advisory group. But viewing the priorities in terms of who deserves to be inoculated, he said, “might end up prolonging the pandemic and killing more people.”
Anyone making a “moralistic argument,” Wynia said, should focus more on the math — 14 of Colorado’s 15 largest outbreaks have occurred in prisons, jails or college dorms. Nationally, more than 40 of the 50 largest clustered outbreaks have occurred in jails and prisons, according to a “call for urgent action” published in the Lancet medical journal in October. Inmates live in crowded conditions and have high rates of hypertension, heart disease and other conditions linked to serious risk from covid-19, the illness caused by the coronavirus. They are disproportionately Black and Hispanic, part of communities stricken by the pandemic.
More than 7,000 people in the care of the Colorado Department of Corrections have tested positive for the virus, and the state says 24 have died. Anuj Mehta, a Denver pulmonologist who chaired the advisory group addressing vaccine prioritization, said he thought Polis was operating on a principle of “trying to save the most lives,” though he disagrees with the governor’s approach. Viral spread hardly stays within prison walls, he noted, mainly because corrections officers return to their families, often in minority and low-income communities.
For these reasons, immunization experts tapped by the Centers for Disease Control and Prevention to develop federal recommendations to guide state planning have highlighted the needs of incarcerated populations and people living in homeless shelters. Guidance approved recently by the CDC’s Advisory Committee on Immunization Practices put corrections officers in what is known as Phase 1b, along with other front-line workers and people aged 75 and older, recommending states immunize inmates at the same time or, depending on vaccine supply, in the next phase. Colorado’s plan essentially strips them from that tier.
“All these groups, in various facilities, are very vulnerable,” said Sharon Frey, a committee member and clinical director of St. Louis University’s Center for Vaccine Development.
The point was brought home in public testimony, when Joseph Bick, director of health-care services for the California Department of Corrections and Rehabilitation, told the CDC advisory group that, “Prisons are essentially long-term care facilities with bars.” California, where more than 40,000 inmates have been infected and about 130 have died, has already begun vaccinating some high-risk inmates. Officials have not yet decided how to prioritize the broader inmate population, said Ali Bay, a spokeswoman for the state health department.
A number of states place prison and jail staff ahead of inmates. Asked about the rationale for that approach, Gavin Lesnick, spokesman for the Arkansas Department of Health, said staff “come and go from the facility and into the community and may have a higher risk.” Shannon Litz, a state health department spokeswoman in Nevada, said the state considered “chance of exposure to covid-19 and the guidance provided by federal partners.”
Peter Wagner, executive director of the Prison Policy Initiative, said it was difficult to spot trends among the states putting incarcerated people near the front of the line. Connecticut, Wagner said, is a “big reformer,” but some other states pursuing significant criminal justice reform have not publicly committed to early vaccination of inmates.
In Massachusetts, the priority given to incarcerated people stems from the broader focus on congregate settings, said Paul Biddinger, medical director for emergency preparedness at Mass General Brigham and chairman of the state’s vaccine advisory group.
“Congregate settings are congregate settings, and they are high density and at risk whether they’re long-term nursing facilities or prisons,” said another committee member, Massachusetts state Sen. Cindy Friedman (D). That inmates are in such dire need of inoculation, she said, shows the failures of criminal justice in America, revealing the “extent of the breakdown and the gaps and the poor access to behavioral health care.”
But the pandemic has put vows of reform to the test.
In remarks last year before the coronavirus began spreading out of control, Polis said he would “like to see Colorado lead the nation in criminal justice reform.” He issued an executive order in March allowing the Department of Corrections to reduce the state prison population, but the rule expired in May, and he faces litigation by the American Civil Liberties Union of Colorado accusing him and his corrections director of failing to protect vulnerable inmates.
Mark Silverstein, legal director of the state branch of the ACLU, said he initially thought Polis had made an error and misstated his own health department’s plan when, responding to an interview question in Spanish, he said, “Free people must receive it before incarcerated people.”
The following week, the governor reiterated his position in even stronger terms, “seemingly in response,” Silverstein noted, to the position staked out by the Republican district attorney, George Brauchler.
Brauchler said the Democratic governor had demoted inmates even more drastically than his Denver Post op-ed had demanded. Though outraged that his elderly father might be put in line after inmates, Brauchler, 51, said people locked behind bars should gain access before he does.
“I have other options, and they don’t,” he said.