COVID-19, Vaccine Mandates, the BOP and Judges — What a Mess

When you read the words “COVID-19 vaccine mandates,” you probably have an instant reaction. Some of you think vaccine mandates are the key to ending the COVID-19 pandemic. Some of you think vaccine mandates are comparable to some of the most egregious human-rights violations in history. And some of you probably have views that fall somewhere in between.

Regardless of your views on COVID-19 vaccine mandates, though, most of us aren’t fans of the idea of forcing people to get the COVID-19 vaccine or a booster. For people open to vaccine mandates, they still see the value in having a choice. If, for instance, your employer has a vaccine mandate, you can find a different job. In this sense, you still have a choice. And, for many Americans — even those facing COVID-19 vaccine mandates in their workplace or city — that choice will always be there. But that “choice” feels a lot different if you’re behind bars.

For the past few months, the BOP and federal courts across the country have been pressuring those in BOP custody to get the COVID-19 vaccine. If you don’t get vaccinated, the BOP and federal courts say, no compassionate release for you. But, if you get the vaccine, the BOP and federal courts use that as a reason to deny compassionate release. This double-edged sword has figuratively killed compassionate release under the CARES Act. And it could literally kill some of the most vulnerable people in prison.

Elected officials want those most vulnerable to COVID-19 released from prison.

In March 2020, Congress authorized the BOP to release nonviolent people in its custody who are especially vulnerable to COVID-19. Lawmakers did so through the CARES Act. COVID-19 has overwhelmed prisons across the U.S. In hopes of slowing the spread, Congress expanded the BOP’s authority to grant compassionate release to a narrow class of eligible prisoners.

The decision to do so fell neatly in line with CDC guidance. As the CDC has explained, “[i]ncarcerated populations have experienced disproportionately higher rates of COVID-19–related illness and death compared with the general U.S. population….” These disproportionately high rates are “due in part to congregate living environments that can facilitate rapid transmission of SARS-CoV-2, the virus that causes COVID-19, and the high prevalence of underlying medical conditions associated with severe COVID-19….”

Slowing the spread of COVID-19 was the goal of elected officials. They achieved that goal by passing the CARES Act. The BOP’s approach, on the other hand, wasn’t as effective. As I wrote earlier this month, BOP officials invented criteria to narrow the group of individuals eligible for compassionate release under the CARES Act. This criteria, like how much time someone has been in prison already, had nothing to do with COVID-19 or what makes COVID-19 dangerous to those in BOP custody.

The BOP isn’t the only thing in the way of compassionate release under the CARES Act.

The BOP’s feet-dragging when it comes to CARES Act releases has been extraordinary. A June 2021 article from The Marshall Project put a number on this extraordinary feet-dragging: 36 out of 31,000. As Keri Blakinger and Joseph Neff wrote in their headline, “31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36.” That headline says all you need to know.

But the BOP wasn’t alone in pushing back against Congress’s intent. That’s where the COVID-19 vaccine comes in. As two federal court decisions released earlier this week make clear, federal courts have been using a person’s decision to get or not get the COVID-19 vaccine against them when it comes to compassionate release.

United States v. Norman

First, in a case called United States v. Norman, U.S. District Court Judge Jane J. Boyle of the Northern District of Texas’s Dallas Division relied on a prisoner’s decision not to get the vaccine to deny relief. Alexis C. Norman is 50-year-old woman with chronic obstructive pulmonary disease, obesity and respiratory issues. According to Norman, these conditions are related, at least in part, to a prior bout with COVID-19 and make her even more vulnerable to contracting the virus again. But, Judge Boyle said, you should have gotten vaccinated.

“Norman, like all inmates at Carswell FMC, was offered the opportunity to become vaccinated against COVID-19 but refused,” she wrote. As Judge Boyle had already done once before, she said refusing to get vaccinated was the problem: “In denying Norma’s first motion for compassionate release, the Court emphasized that a defendant cannot refuse the vaccine to prevent against COVID-19 on the one hand and then argue for compassionate release because [s]he faces an increased risk of severe illness or death should [s]he contract COVID-19 on the other hand.” (Internal quotation marks omitted; alterations in original.) In this sense, incarcerated people are at least pressured into getting vaccinated.

United States v. Kopfstein-Penk

Conversely, in a case called United States v. Kopfstein-Penk, U.S. District Court Judge Theodore D. Chuang of the District of Maryland relied on a prisoner’s decision to get the vaccine to deny relief. Charles Kopfstein-Penk is a 76-year-old man with bronchial asthma and pulmonary conditions that make him especially vulnerable to COVID-19. But, Judge Chuang said, you’re safe because you’re vaccinated.

“However, even accepting that Kopfstein-Penk has conditions that place him at higher risk from COVID-19, the risk that he faces has been reduced significantly since the onset of the pandemic because of the availability of the COVID-19 vaccine,” he wrote. “Kopfstein-Penk acknowledges that he has been vaccinated.”

Therefore, Judge Chuange concluded, “even considering Kopfstein-Penk’s high-risk conditions, the Court does not find that the present impact of COVID-19 on Kopfstein-Penk establishes ‘extraordinary and compelling reasons.’ “

If Congress wanted CARES Act releases to stop after the vaccine became available, it would have said that. It didn’t.

“[A] defendant cannot refuse the vaccine to prevent against COVID-19 on the one hand and then argue for compassionate release because [s]he faces an increased risk of severe illness or death should [s]he contract COVID-19 on the other hand.” (Internal quotation marks omitted; alterations in original.) But, if you get the COVID-19 vaccine, “the risk [you] face[] has been reduced significantly since the onset of the pandemic because of the availability of the COVID-19 vaccine….” So, either way, now that we have vaccines available, compassionate releases under the CARES Act are few and far between.

Is that what Congress intended? If it is, Congress forgot to mention that. The CARES Act limits the BOP’s authority to expand compassionate release through the end of the COVID-19 pandemic. But nowhere does it limit that authority based on the availability of vaccines. In other words, these courts are writing words into the CARES Act that simply aren’t there — judicial activism that’s expressly prohibited by the rules of statutory construction.

Would it be a better policy to end CARES Act releases now that vaccines are available? Maybe. But if these judges believe that’s the case, they should run for Congress, not continue legislating from the bench.