Judges in New York oblige defendants to get vaccinated against COVID-19: is it legal

The New Yorker was charged with a number of petty crimes, including drug possession and shoplifting. He was ready to plead guilty, and the prosecutor's office agreed. But the Bronx judge who approved the deal added his unusual clause to it. The accused should have been vaccinated against Covid-19, reports New York Times.

A week later, a judge in Manhattan issued the same order. This time it concerned a woman seeking bail pending trial.

None of the defendants objected. But human rights activists said that the orders of the two judges, made in different courts and for different reasons, raise important questions about the difference between civil liability and civil liberties.

A number of experts who studied these court orders disagreed as to whether they were acquitted or constituted an abuse of power.

On the subject: Why many Americans and even healthcare workers refuse to get vaccinated against COVID-19

In one case, Judge Jeffrey Zimmerman of the Bronx Criminal Court justified his decision as follows: According to him, the defendant William Gregory committed crimes that showed that he put his own interests above the interests of others (he was accused of drug possession, shoplifting and insulting an organ authorities). The judge argued that after being vaccinated, Mr. Gregory would do the opposite - put the interests of others ahead of his own. Therefore, vaccination will be a “form of rehabilitation”.

A second similar ruling was issued by Manhattan federal judge Jed S. Rakoff. He released suspect Eluisa Pimenthal on bail, accused of conspiracy to distribute fentanyl, on condition that she be vaccinated.

Judge Rakoff argued that he must determine whether a person seeking release is a danger to society. In his opinion, the unvaccinated do represent such a danger through "an increased risk of infecting other, innocent people and even potentially causing their death." Therefore, vaccination, in his opinion, can be a condition for bail.

Expert opinion

Stephen Gillers, a legal ethics expert at the New York University School of Law, said Judge Rakoff probably had a reason for such a decision. After all, Pimenthal did not resist vaccination because of health problems or "legitimate religious objections."

“Beyond that, I think this requirement falls under the broader responsibility of a judge for the safety of people or society as a whole,” Gillers said.

According to Pimenthal's lawyer Jan Markus Amelkinay, his client told Judge Rakoff that she did not object to vaccinations. But Cheryl Bader, a Fordham University law professor, said while she admired Judge Rakoff's work, there was a "potential hole" in his logic.

Bader said that by law, Judge Rakoff was tasked with assessing the defendant's danger to society, but not in a general sense, but in connection with the criminal charges at stake. And the danger of the spread of the coronavirus is clearly not related to the spread of fentanyl.

Judges can oblige defendants to take certain medications

Judges have broad powers to impose restrictions on those accused of crimes. It is not unusual for them to limit who the defendants talk to; where do they go; and even how often they use the Internet. Judges often order defendants to actively participate in certain activities. For example, getting medical advice or taking certain medications.

But the power of judges is not unlimited. Nadine Strossen, a New York City law school professor, was president of the American Civil Liberties Union from 1991 to 2008. According to her, the vaccination directive can be fought, the lawyer must demonstrate that the judge has abused his right in making such a decision.

For example, she said the ACLU filed a lawsuit in 2003 to overturn a Michigan judge's order. He forced the woman to start taking contraception after being accused of physically neglecting her children. The ACLU alleged that the judge violated her constitutional right to privacy. The case went to the state court of appeal, and the order was eventually overturned.

Strossen noted that Judge Zimmermann formulated his decision as a matter of the defendant's personal development. She stressed that she does not see a logical connection between what the accused Gregory was accused of and his vaccination.

“It felt like an abuse of discretion to me,” she said. "Demonstrating that the judge has power over this guy and can impose on him any idea that is important to him."

But Bruce Greene, a law professor and former federal attorney, said he did not consider Judge Zimmerman's decision "an incredible attack on someone's bodily integrity."

“It actually does the accused a favor because it keeps him safe and provides a service to the community by making sure that person is less likely to transmit the virus,” he said.

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Judge Zimmerman, explaining his decision regarding Gregory, did not mention the new wave of the spread of the coronavirus. He focused on the value of civic duty.

He referred to another case where the defendant was charged with drunk driving. The judge in this case tried to order the defendant to hang a neon sign on his car that said he had been convicted of drunk driving. The State Court of Appeals then stated that such a sentence was inappropriate and that it was punitive, not rehabilitative.

“On the contrary, the condition that I put on the verdict of Mr. Gregory, I do not consider punitive at all,” said the judge. "It will only benefit him and society."