By Sarah Martinson

Law360 (December 20, 2020, 8:02 PM EST )

As states across the U.S. prepare to distribute limited quantities of COVID-19 vaccines within their borders, criminal justice advocates, scientists and politicians are debating whether incarcerated people should be prioritized for vaccination.

Advocates and scientists have urged government officials to follow the science and put vulnerable individuals, including incarcerated people, first in line when drawing up their vaccine rollout plans. But some officials, like Colorado's Democratic Gov. Jared Polis, have turned vaccine distribution into a criminality issue.

At a Dec. 1 press conference with Dr. Anthony Fauci, Polis said of the vaccine, "There's no way it's going to go to prisoners before it goes to the people who haven't committed any crime," according to a recording of the press conference posted to the governor's social media.

Criminal justice advocates have called this unwise because research shows that coronavirus outbreaks in prisons and jails infect surrounding communities, and unfair because a prison sentence isn't meant to be a death sentence.

"If we don't prioritize releasing or vaccinating people, keeping people who are incarcerated safe, we're saying we are comfortable allowing them to essentially face a de facto death sentence, even if that's not what they were sentenced to, because we know that getting sick from this virus can result in people dying," said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a nonprofit research and policy organization that works with the government to improve justice systems.

According to a December report from the National Commission on COVID-19 and Criminal Justice, prisons had almost four times more confirmed coronavirus cases and twice as many deaths as the general public.

Stanford University researchers found in September that jails and prisons are "epicenters" for coronavirus transmission in which the disease spreads faster than it did on the Diamond Princess cruise ship that suffered a major outbreak early in the pandemic, or in Wuhan, China, where the pandemic started.

The reason for the high infection rate in jails and prisons is because incarcerated people can't practice social distancing and their living conditions are unsanitary, according to the studies.

In addition, research shows that virus outbreaks in prisons and jails spread to nearby communities. An analysis of data from the Cook County Jail in Chicago found that almost 16% of confirmed coronavirus cases in the state as of April were linked to people coming in and out of the jail.

John Raphling, a senior U.S. criminal justice at the international nongovernmental organization Human Rights Watch, told Law360 that prisoners' punishment for committing a crime shouldn't be suffering and the risk of death from a disease.

"Even if you take this very wrong and immoral view of, 'Well, they committed a crime, so whatever happens to them happens,' it's still wrong because the disease doesn't just stay in the jails and prisons," Raphling said.

According to a study from the Prison Policy Initiative, a nonprofit think tank focused on criminal justice reform in prisons, only five states — Connecticut, Delaware, Maryland, Nebraska and New Mexico — have included incarcerated people specifically in the first phase of their COVID-19 vaccine distribution plans.

North Carolina, meanwhile, specifically includes incarcerated individuals who are older and have other health conditions in phase one or two of its plan, according to the study.

After PPI released its study, Massachusetts' Republican Gov. Charlie Baker announced a vaccine rollout plan Dec. 9 that places individuals in congregated settings, including correctional facilities, in phase one, according to the governor's office website.

As for prison staff, they will be prioritized in the federal Bureau of Prisons' vaccine rollout, according to documents obtained by The Associated Press.

At the local level, 12 states specifically included correctional staff in phase one of their vaccine distribution plan and 12 more states might also include correctional staff in the first phase of their plans, according to the Prison Policy Initiative's study.

But only vaccinating prison staff and correctional officers will not stop coronavirus transmission within prisons and their surrounding communities, Rahman said.

"The average person stays in jail four days," she said. "So that's just enough time to be exposed to the virus, pick it up and bring it back to the community upon release, and it might not even be detected at that point."

At the very least, incarcerated people should be included with similarly situated people in states' rollout plans, said David McGuire, executive director of the American Civil Liberties Union of Connecticut. If nursing home residents are included in phase one, incarcerated people should be, too, McGuire said.

"In addition to having a moral responsibility to do the right thing by people in their custody, the state has a constitutional duty to provide medical care and keep people in their custody safe," he said.

A report from John Hopkins University also found that incarcerated individuals should be prioritized alongside nursing home residents and workers for the coronavirus vaccine.

"If we don't prioritize vaccinating incarcerated people, it will certainly be a moral crisis, and it will also be a public health crisis," Rahman said.

--Editing by Breda Lund.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

For a reprint of this article, please contact reprints@law360.com.