Ethical Approaches to Vaccine Allocation and Administration in Carceral Settings, With a Focus on Youth

Abstract

COVID-19 has disproportionately impacted Americans in carceral settings and secure facilities. A disproportionate number of persons who are confined to carceral settings and secure facilities are members of racial, ethnic, and socioeconomic groups who experience a significant burden of COVID-19 morbidity and mortality. The pandemic-related disparities experienced by minoritized and detained adult populations have received national attention, but the burden of COVID-19 risk among justice-involved youth has been largely absent from these national conversations. With more than 40,000 youth in carceral settings, their COVID-19 risks and prevention needs warrant specific consideration, especially as vaccine distribution programs expand. Youth have been assigned a lower priority status in most state vaccine allocation plans, but youth in carceral settings are at increased risk compared with their peers, raising important questions about how to ethically allocate and administer vaccines to them. In this article we examine ethical issues that arise in the health care of minors in carceral settings and identify an ethical model that could be used to reconsider the allocation of COVID-19 vaccines.

Disparities in Incarceration and COVID-19 Morbidity and Mortality

There is strong evidence of systemic racial disparities across all criminal–legal systems (i.e., police, courts, corrections, and community supervision) that result in disproportionate confinement of Black Americans (Bailey et al., 2017; Schleiden et al., 2020). Approximately 33% of prisoners are Black, though Black Americans comprise only 13% of the general U.S. population (Gramlich, 2019). In 12 states, more than half of state prisoners are Black, and in 11 states, 1 in 20 adult Black men are incarcerated (Nellis, 2016).

These patterns persist among youth involved in the criminal–legal systems. Across all age groups, Black males are six times more likely to be incarcerated than their White counterparts and Black females are twice as likely than their White counterparts. But these differences are more pronounced among youth. Between the ages of 18–19 years, Black males and females are nine and five times more likely to be incarcerated compared with their White counterparts, respectively (Blankenship et al., 2018). In addition, LGBTQ youth of color are overrepresented in the juvenile justice system and report harsh treatments (Wilson et al., 2017).

Similarly, Black Americans are among those most severely impacted by the 2019 novel coronavirus (SARS-CoV-2), which causes the disease COVID-19. Nationally, Black Americans are more likely than their White counterparts to be infected with COVID-19 and more likely to experience morbidity and mortality due to infection. The death rate from COVID-19 in Black Americans is two to three times higher than that of White Americans. Although comprising only 13% of the U.S. population, Black Americans account for 24% of COVID-19 deaths (CDC, 2022a). This disproportionate infection and death rate is believed to be due to systemic racism as well as health comorbidities and poverty (Anaele et al., 2021; Bogart et al., 2021; Yancy, 2020).

The disparate burden of COVID-19 among Black Americans is exacerbated within the U.S. prison system, which has been significantly impacted by the pandemic. As of late February 2021, more than 380,000 people in prison tested positive for COVID-19 (Akiyama et al., 2020). At least 2,445 individuals in prison have died from COVID-19-related causes. In addition, more than 100,000 prison staff members have tested positive for COVID-19, with 189 deaths reported (Marshall Project, 2021).

Juveniles as an Overlooked and Vulnerable Population in Carceral Settings During COVID-19

The American Academy of Pediatrics (AAP) called for special consideration of justice-involved youth during the COVID-19 pandemic. The AAP notes that justice-involved youth are more likely to be youth of color, socially vulnerable, victims of traumatic or adverse life experiences, and sexual and gender minorities than youth in the general population. More than 40,000 youth are in secure facilities (prison or juvenile detention centers), placing them at high risk of COVID-19. The AAP defines youth as persons under the age of 18 years. Nineteen states have reported COVID-19 cases in their juvenile detention facility (AAP, 2020). Yet, justice-involved youth have been largely absent from the national conversations about mitigating COVID-19 disparities in carceral settings.

There have been some efforts to mitigate COVID-19 risks for youth in carceral facilities. Some states have released youth into their communities to reduce overcrowding and risk of COVID-19, yet this has been a limited effort (León et al., 2021). Other measures are designed to counter the challenges of overcrowding and restricted space that rendered social distancing challenging to implement but pose risks to youths' mental health. For example, symptomatic youth are often placed in isolation, which may protect other youth from COVID-19 but poses risk of psychiatric distress for the isolated youth (AAP, 2020).

Restriction of visitors has been another infection control strategy. The majority of youth incarcerated in secure facilities have an existing mental health diagnosis and/or substance use disorder, the symptoms of which may be exacerbated by isolation and restricted visits from loved ones. Thus, primary prevention of COVID-19 among incarcerated youth must be expanded to include vaccination, which may improve both physical and mental health during the pandemic (Fazel et al., 2008).

The Allocation of COVID-19 Vaccines: Where Do Incarcerated Persons Fit?

Although there have been calls for individuals placed in secure facilities to be prioritized for the distribution of the COVID-19 vaccine, the federal government allows individual states to make their own vaccine prioritization plans (Kronfli & Akiyama, 2020). The U.S. Centers for Disease Control and Prevention (CDC) recommends that persons in secure facilities and staff be prioritized for vaccination at the same time, but as of mid-March 2021 only 33 states specified plans to vaccinate residents in secure facilities, including prisons, jails, and detention centers (CDC, 2022b; Guth, 2021). An ethical framework for vaccine allocation could help resolve differences between states' plans for vaccine allocation to universally include residents of secure facilities (Emanuel et al., 2020; Gupta & Morain, 2021; Jecker et al., 2021; Liu et al., 2020).

Ethical Frameworks and Their Implications for Vaccine Allocation

Ethical frameworks provide a guide to answering the question, What ought to be? when one's moral obligations to another are unclear or result in multiple “right” courses of action. There are multiple ethical frameworks that could be used to guide vaccine distribution programs. Each framework has implications for prioritization of subgroups at risk of COVID-19.

The National Academies of Sciences, Engineering, and Medicine (NASEM) recently convened an ad hoc committee to develop a framework for the equitable allocation of COVID-19 vaccine. The committee examined multiple ethical frameworks, including those established in 2020 to guide the allocation of scarce health care resources during the COVID-19 pandemic. It also reviewed and collated lessons learned from prior public health emergencies requiring mass vaccination (e.g., the 2009 H1N1 influenza pandemic and the Ebola virus epidemic in West Africa 2013–2016). The committee synthesized key principles of ethical frameworks and lessons learned from prior pandemics to develop its final framework.

The NASEM framework is instructive for placing incarcerated persons within the broader population under consideration for vaccine prioritization. It is designed to meet the goal of reducing severe COVID-19 morbidity and mortality as well as negative social impacts of the pandemic by prioritizing people who are at highest risk of acquiring infection, experiencing severe morbidity and mortality, experiencing negative societal impacts, and transmitting infections to others, all of which are true for Black American youth in carceral settings (National Academies, 2020).

The key principles of the NASEM vaccine allocation framework support the prioritization of incarcerated persons, who clearly meet three of the four allocation criteria. First, as already noted, this population is at high risk of infection—1 in 5 individuals in prison have had COVID-19 compared with 1 in 20 members of the general population (Schwartzappel et al., 2020). Second, due to their high prevalence of underlying chronic conditions, individuals in prison are at very high risk of severe COVID-19-related morbidity and mortality, meeting the second allocation criterion.

Third, the framework prioritizes allocation of vaccine to individuals who are likely to transmit infection to others. Given the high prevalence of COVID-19 in carceral settings and the rapid cycling of justice-involved individuals between their communities and carceral settings (especially jails and detention centers), there is a significant risk of onward transmission of infection.

The fourth allocation criterion—negative societal impact—is the one that is most often leveraged to exclude incarcerated persons from vaccine prioritization. It argues that persons should be prioritized when societal function (e.g., health care, transportation) or individuals' lives would be negatively impacted by their infection with the virus. Given that individuals in prison are removed from society and are, therefore, not “essential” to its functioning, governors and other stakeholders have argued against their prioritization.

For example, when facing criticism for his state's draft plan to prioritize incarcerated persons, Colorado Governor Jared Polis said, “There's no way that prisoners are going to get it before members of a vulnerable population. … There's no way it's going to go to prisoners before it goes to people who haven't committed any crime. That's obvious” (Ingold, 2020. para. 2).

There are several problems with Polis's argument that prisoners should be vaccinated after vulnerable populations and those who have not committed crimes. First, the argument assumes individuals in prison are not a vulnerable population, which is demonstrably false.

Second, it assumes that individuals in prison have committed a crime, which relies on a fair system of justice in which only the guilty are punished. The criminal justice system is racially biased across points of interaction from arrest to trial proceedings, to sentencing, and disciplinary actions in carceral settings (Schleiden et al., 2020). The latter point should be carefully considered when evaluating the fit between individuals in prison and the NASEM vaccine allocation criterion. Individuals in prison cannot contribute to society due to their confinement, but if their confinement is owed, at least in part, to systemic racial bias, we must consider whether it is fair or right to apply this criterion to them.

The NASEM framework and its allocation criterion are guided by three ethical principles that support the need to consider the notion of societal benefit against the larger backdrop of racism in American society broadly and the criminal justice system specifically. The ethical principles are maximum benefit, equal concern, and mitigation of health inequities. Maximum benefit refers to ensuring the greatest benefit to society writ large, which is accomplished by following the allocation criteria that are designed for this purpose. Equal concern refers to the right for each individual to be considered worthy and valuable, with the intention of preventing discrimination in vaccine allocation.

This principle provides a strong counterargument to the notion that prisoners are somehow less worthy of medical care, including vaccines, by virtue of their conviction of a crime. Finally, mitigation of health inequities can only be accomplished by considering the populations most affected by them, which include incarcerated persons.

Where Do Justice-Involved Minors Fit in?

The NASEM vaccine allocation framework mirrors many states' vaccine distribution plans in that it places children in the final phases of vaccine distribution. This is due in part to evidence that children are both less efficient at transmitting the virus and less at risk of severe morbidity and mortality (Mehta et al., 2020). However, justice-involved minors should be considered separately from the general population of children, given their high risk of infection and transmission and their multiple intersecting vulnerabilities.

The provision of health care to minors in secure facilities presents unique ethical issues because they are considered a vulnerable population due to age as well as circumstance. The ethical complexities of their care are heightened in the context of an epidemic marked by poor federal response, misinformation, and medical mistrust. One of the most critical issues is consent to treatment. When a youth is detained in a local, county-run detention facility or state-run prison facility, the court acts as in loco parentis, which allows for the provision of care in the place of a parent (Chappell, 1938). Although some states require parental consent or an attempt to obtain parental consent, other states permit adolescent self-consent for vaccination with authorization by the facility superintendent (Henderson et al., 2010).

There is a distinction, however, between what is permissible by policy and what is right by an ethical standard. In our work with justice-involved youth, we have encountered frequent and significant community concern about vaccinating youth in secure facilities for COVID-19 without parental permission, even when this is allowed by law. We are currently exploring ethical approaches to vaccine provision while also honoring valid community concerns.

The AAP notes there are very limited data on vaccination rates among youth in secure facilities, but studies indicate as few as 3% of youth received all the generally recommended childhood immunizations at the time of first detention. Its policy argues detention may provide an opportunity to improve immunization rates among vulnerable youth (Owen et al., 2020). However, we can look to previous vaccine campaigns to identify potential consent-related barriers to vaccination.

Human papillomavirus (HPV) vaccination is a useful comparator. In Kansas, carceral staff encountered significant barriers to administering the vaccines to detained juveniles, largely due to low prioritization of vaccination and difficulties reaching parents to obtain their consent. In the study, only two juveniles were successfully vaccinated while in a secure facility (Emerson et al., 2020). Another study examined the consent process in 39 states that offered the HPV vaccines to youth in secure facilities. In some states, the HPV vaccine was given through authorization by the facility superintendent—rather than a parent—with assent from the minor, which increased vaccination uptake in incarcerated youth (Henderson et al., 2010).

Ethical Considerations When Vaccinating Incarcerated Youth

The AAP's policy statement does not make formal recommendation regarding the role of parental consent in vaccinating youth in secure facilities. Medically, when decisions are made regarding the risk and benefits of administering the vaccine to youth in secure settings, the best interest of the minor should be considered. The best interest principle realizes that the child is dependent on others, often voiceless, has no legal status, and thus requires any action taken to provide for the best benefit to the child and outweigh the risk of inaction (Pierik, 2020).

As the loco parentis, the juvenile justice system can consent and administer the COVID-19 vaccine to all incarcerated youth over the age of 16 years. Vaccinating youth in secure settings will decrease the likelihood of morbidity and mortality associated with COVID-19 as well as reduce periods of isolation due to exposure and allow minors to be active with their counterparts. However, careful consideration should be given to the role of parents, guardians, and community advocates in COVID-19 vaccine programs for youth in secure settings. Views of and trust in the COVID-19 vaccine vary significantly by demographic characteristics, including race, political affiliation, and rurality (KFF, 2022).

Perspectives on the vaccine must be considered in context, particularly for communities of color, whose experiences with research, health care, and the criminal justice system have been and continue to be discriminatory and often harmful. Vaccination of minors in secure settings without an effort to obtain parental consent may increase distrust and ultimately negatively impact vaccine uptake in these communities.

Conclusion

Significant attention has been paid to inequities in COVID-19 morbidity and mortality, particularly in Black communities across the United States. However, these inequities cannot be fully attended and resolved without addressing carceral systems, in which Black Americans are not only overrepresented but also placed at even higher risk of COVID-19. Carceral settings make it difficult—and in some cases harmful—to enact recommended social distancing and other nonpharmacological interventions for COVID-19. Vaccination of persons in secure settings offers a mechanism of protection that cannot be otherwise achieved.

Although some states are prioritizing the immunization of adults in secure settings, fewer states have focused on the immunization of juveniles. There is a strong need to incorporate an ethical framework to guide vaccine distribution, and the NASEM model provides a good starting point. One of its limitations, however, is the consideration of children as a broad group at lower risk of COVID-19 transmission and illness. Minors in secure settings are a unique population of children whose needs for COVID-19 intervention should receive special attention.

Finally, the complexities of consent for vaccination of minors in secure settings raise questions about who is best positioned to determine whether vaccination is in the child's best interest. In some states, the court acts as loco parentis and applies the best interest standard. However, given the known differences in perspectives on COVID-19 vaccine acceptability as well as the history of abuse and harm of communities of color within health care, research, and criminal justice systems, we need to reconsider the role of parents and communities in vaccination programs.

Authors Contribution

S.C.E., M.C.A., and A.S.K. collaborated on this project, and each contributed equally to the writing.

Author Disclosure Statement

The authors disclosed no conflicts of interest with respect to the research, authorship, or publication of this article. The contents of this article are solely the responsibility of the authors and do not necessarily represent the official views of NIDA or the participating sites.

Funding Information

This research was supported by the JCOIN cooperative, funded by the National Institute on Drug Abuse, National Institutes of Health. The authors gratefully acknowledge the collaborative contributions of NIDA and support from the following grant awards (NIDA UG1DA050070; UG1DA050066).