Criminal Justice

Some Ohio Judges Are Mandating Vaccinations as a Condition of Probation. That's an Abuse of Power.

Threatening somebody with prison for refusing a shot is no way to end a pandemic.


A Cincinnati judge has ordered a man to get a COVID-19 vaccination as condition of probation. Other judges in Ohio are apparently doing the same thing, even though getting vaccinated has nothing to do with preventing criminal behavior.

WCPO reports that when Brandon Rutherford was before Hamilton County Pleas Court Judge Christopher Wagner to be sentenced for a drug conviction, Wagner asked if he had been vaccinated. When the 21-year-old said he hadn't been planning on getting the shots, Wagner ordered him to do so within two months of his probation release (known as "community control" in Ohio).

Rutherford complained to WCPO that "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."

If Rutherford refuses to get vaccinated, his probation could be extended—or he could even be forced into prison. That makes the threat bizarrely ironic, as our jails and prisons have been COVID-19 incubators and a dangerous place to send the unvaccinated.

Ohio's probation regulations do give judges leeway to "impose any other conditions of release under a community control sanction that the court considers appropriate." While the rules focus on forbidding probationers from abusing drugs while released, the construction of the law doesn't confine the judge's authority to drug use.

Wagner subsequently told The Cincinnati Enquirer that it's the court's responsibility to "rehabilitate" a defendant and "protect the community." He noted that judges have the authority to order drug, alcohol, and mental health treatments as conditions for probation.

But those treatments are at least connected to addressing issues that could contribute to a person's criminal behavior. Whether a person has been vaccinated against COVID-19 is not an indicator of whether that person will engage in subsequent crimes.

The Cincinnati Enquirer has found some other examples of judges in Ohio either mandating vaccinations or offering reduced probation terms as an incentive to get the shots. A Columbus judge has ordered at least 20 people to get vaccinated as part of probation sentences. He told the Ohio Capitol-Journal that he sees this as "a reasonable condition when we're telling people to be employed and out in the community."

It is not a "reasonable condition." It's an abuse of judicial authority. Yes, these people should, for their own good and for the good of people around them, get vaccinated against COVID-19. But probabtion isn't a public health tool; it exists to give a person an opportunity to leave prison early or avoid incarceration entirely by demonstrating that they won't commit further crimes.

The American probation system has a big problem with what's known as "technical violations." These are situations where a person violates the terms of his or her probation but does not actually violate the law. Millions of Americans are under some form of post-release supervision. Every year, about 350,000 of these people are sent back to jail or prison. Some of them, of course, commit new crimes while out on release. But many end up back for things like missing meetings or being late to court dates. In areas where marijuana use has been legalized, judges can nevertheless threaten to revoke people's probation if they consume it.

Season 3 of the podcast Serial focused on judges' "discretion" in setting probation rules in Cleveland's courts. Episode after episode showed how judges use the threat of prison to control people's lives in condescending and unforgiving ways that have little to do with actually preventing crime.

So it shouldn't come too much as a surprise that Ohio judges see their vast discretionary powers as an excuse to force people to get vaccinated. But as much as we may want people to get their COVID-19 shots, it is an abuse of power to demand that they do so in order to be free from jail.