The Volokh Conspiracy
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Judges "Need Not Accept a Prisoner's Self-Diagnosed Skepticism About the COVID-19 Vaccines"
“as an adequate explanation for remaining unvaccinated.... A prisoner who can show that he is unable to receive or beneﬁt from a vaccine still may [seek compassionate release for health risk reasons], but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release."
In U.S. v. Broadfield, decided yesterday by the Seventh Circuit (in an opinion by Judge Easterbrook, joined by Judges Kanne and Kirsch), the court considered a prisoner's claim for "compassionate release under 18 U.S.C. §3582(c)(1)(A). For a prisoner who is younger than 70, this relief depends on a ﬁnding that 'extraordinary and compelling reasons warrant such a reduction.'" The court discussed some specific details of the case, but also added this more general point:
When Broadﬁeld ﬁled his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America's prisons, where people cannot engage in social distancing. Today, however, eﬀective vaccines are available…. The Bureau of Prisons reports that 1,300 prisoners at FCI Seagoville, where Broadﬁeld is conﬁned, have been fully vaccinated against COVID-19. This is short of the prison's full population of roughly 1,700, but some may have been vaccinated before arrival, while others may have declined the opportunity.
Broadﬁeld has not contended that he wants to be vaccinated but that the Bureau of Prisons has failed to inoculate him. Because risk of COVID-19, which can bear especially hard on people with pre-existing breathing conditions, is Broadﬁeld's sole reason for seeking compassionate release, a remand would be pointless. Vaccinated prisoners are not at greater risk of COVID-19 than other vaccinated persons. (A more cautious statement would be that published data do not establish or imply an incremental risk for prisoners—either a risk of contracting the disease after vaccination or a risk of a severe outcome if a vaccinated person does contract the disease.) And a prisoner who remains at elevated risk because he has declined to be vaccinated cannot plausibly characterize that risk as an "extraordinary and compelling" justiﬁcation for release. The risk is self-incurred.
In a supplemental ﬁling after oral argument, Broadﬁeld informed us that he was oﬀered a vaccine but declined. He maintains that he fears an allergic reaction, but he does not contend that he has suﬀered such a reaction to any other vaccine. The Bureau of Prisons' policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward, but Broadﬁeld does not come within this category…. The federal judiciary need not accept a prisoner's self-diagnosed skepticism about the COVID-19 vaccines as an adequate explanation for remaining unvaccinated, when the responsible agencies all deem vaccination safe and eﬀective.
Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends. But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more eﬀective than a judicial order. A prisoner who can show that he is unable to receive or beneﬁt from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an "extraordinary and compelling" reason for immediate release.
Thanks to Howard Bashman (How Appealing) for the pointer.