At least two judges in Ohio have made receiving Covid-19 vaccinations a condition of probation. While judges have leeway in setting such rules, it’s a murky area, experts said.,


Continue reading the main story

Supported by

Continue reading the main story

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday.

“I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates.

The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”

“The question here is whether there is such a compelling interest, and whether it pertains to the purposes of probation,” Mr. Carey added. “Judges do have a lot of leeway in imposing conditions on behavior while on probation. But that leeway is not unlimited. They still need to establish it has a clear connection to a person’s individual case.”

In Ohio, as in the rest of the country, private businesses can impose their own requirements on employees and patrons. Federal government employees are required to be vaccinated or face regular testing, but state and local government institutions set their own rules. In Ohio, more than 800 school districts and other local entities function independently, Dan Tierney, a spokesman for Gov. Mike DeWine, said on Monday.

Mr. DeWine said Ohio was a state that exemplified the dual risk of infection. “Those who are vaccinated are safe, those who are not vaccinated are not safe,” he said.

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections.

“Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine.

“Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded.

Michael Benza, a senior instructor at Case Western’s School of Law, said he believed other judges in other states were setting similar conditions for probation, but he was not certain it was a broad practice across the country.

Understand the State of Vaccine Mandates in the U.S.

College and universities. More than 400 colleges and universities are requiring students to be vaccinated for Covid-19. Almost all are in states that voted for President Biden.Hospitals and medical centers. Many hospitals and major health systems are requiring employees to get the Covid-19 vaccine, citing rising caseloads fueled by the Delta variant and stubbornly low vaccination rates in their communities, even within their work force. In N.Y.C., workers in city-run hospitals and health clinics will be required to get vaccinated or else get tested on a weekly basis.Federal employees. President Biden announced that all civilian federal employees must be vaccinated against the coronavirus or be forced to submit to regular testing, social distancing, mask requirements and restrictions on most travel. State workers in New York will face similar restrictions.Can your employer require a vaccine? Companies can require workers entering the workplace to be vaccinated against the coronavirus, according to recent U.S. government guidance.

By adding vaccination to conditions that included employment, the judges were staying within the probation order, he said, but added: “I think the problem for this type of order is if the defendant would challenge it, I think there is a significant chance that order would be found to be improper. It is a compulsion for a medical procedure.”

In court, Mr. Rutherford told the judge, “no, not really,” when asked whether he was scared about inoculation. “I just never went to get it,” Mr. Rutherford said, according to the transcript.

Carl Lewis, the lawyer for Mr. Rutherford, could not be reached on Monday. But Mr. Rutherford, speaking to WCPO 9 News recently, said he did not want to be vaccinated.


Brandon Rutherford was ordered by a judge in Ohio to receive the Covid-19 vaccine as a condition of his probation.Credit…WCPO

“I don’t plan on getting it. I don’t want it,” he said. “So, for him to tell me that I have to get it in order for me to not violate my probation is crazy because I’m just trying to do what I can to get off this as quickly as possible, like finding a job and everything else, but that little thing can set me back.”

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.”

He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”