Is It Ethical to Mandate Vaccination among Incarcerated Persons? Consider Enforcement and Ask People Living in Prisons and Jails

Dear Editor,

I was pleased to see a recent piece by Lao-Tzu Allan-Blitz entitled “Is It Ethical to Mandate SARS-CoV-2 Vaccinations among Incarcerated Persons?” I agree with the author that incarcerated individuals have suffered a disproportionate burden of SARS-CoV-2 and I think the ethical implications of incarceration during a global pandemic have been understudied. While the author’s arguments were well reasoned, a critical component was missing from the analysis that undermines the key recommendation: how would such a mandate be enforced? While it is possible that there could be effective and ethical manners to enforce a mandate in carceral settings, I am concerned that measures could easily become punitive.

While this piece aptly describes the unique vulnerability to COVID-19 faced by incarcerated individuals, it seemingly ignores the unique oppression faced by people living in prisons and jails. Vaccine mandates among incarcerated and free individuals cannot be evaluated with the same rubric. In California, where I live and work, more than 80% of those incarcerated in state prisons are fully vaccinated. Yet, despite this, incarcerated people have continued to be subjected to long periods of lockdowns, reduced access to programming and mental health services, canceled visitation, and limited exercise and outdoor time. For this population, the promise of vaccination went beyond the reduction of risk of hospitalization and death promised to us all. The decision to be vaccinated was based in a shared hope of the reinstatement of basic rights and privileges and the ability to move beyond the walls of their cells. I worry that instituting mandates in carceral settings would only further limit the rights and autonomy of an already marginalized population and potentially lead to the infliction of further punishment.

I am concerned the author argues that a vaccine mandate is justifiable because “incarcerated persons may constitute a core group of individuals with the potential to sustain the transmission of SARS-CoV-2 in the general population … .” People who are incarcerated are not inherently more at risk for COVID-19. Their risk is defined by congregate living, overcrowding, high rates of turn over, and the presence of staff moving in and out of the facility each day. In the prison population, much of the risk comes from staff movement, rather than the incarcerated individuals themselves who could easily be cohorted to avoid the spread of disease. These are structural factors which could be addressed with structural solutions. While I agree these solutions would take time and considerable political will, those barriers are not enough to justify the forced vaccination of a vulnerable population, especially for the protection of the broader society which has continued to allow for their confinement.

By all metrics, incarcerated individuals recognize their COVID-19 risk and are already taking all available steps to mitigate that risk. In 26 of 30 states with available data, vaccination rates among incarcerated populations are higher than the general population (Anon 2021; Ritchie et al. 2020) and 12 of 14 states have higher rates among incarcerated population than carceral staff (Anon n.d.), all despite the fact that in 19 states, incarcerated populations were deprioritized or not included in vaccine roll out plans (Maner 2021). Why then would we impose the burden of mandates, with the potential for punishment or retaliation for noncompliance, among the incarcerated population who is seemingly more willing to be vaccinated than those charged with their safety. In consenting to vaccination inside a prison, incarcerated patients overcame heightened levels of distrust. The high levels of acceptance of the vaccine demonstrate that incarcerated persons are already engaged in activities to prioritize the health of themselves and their communities and already willing to take on the burdens of public health at higher rates that the systems and societies that incarcerate them. Given this, it is possible that people who are incarcerated may agree with implementing mandates. This highlights the need to include the voices of incarcerated people in the debate.

The author presents the argument that it is justifiable to limit individual freedoms to “avoid catastrophic moral horror.” What is difficult is that prison itself is the embodiment of catastrophic moral horror; a horror that only intensified during the pandemic and one that has been justified based on a “utilitarian ethic” wherein flawed notions of public safety were seen worth the loss of individual freedom of millions of citizens (Hornblum 1997; Rothman 1987). As bioethicists, I think we must advocate for the inclusion of people who are incarcerated in the decision-making process around assessing what is and is not ethical in their care. Further, we must be cautious about labeling an intervention as ethical without a clear implementation strategy determined; given the long history of unethical treatment of people who are incarcerated (Hornblum 1999; Washington 2008), we unfortunately cannot assume that mandated care would be delivered in a manner divorced from punishment.