Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans

Some states are including correctional facilities in their rollout plans. All states and the BOP should do so - and put incarcerated people near the top of the list.

by Katie Rose Quandt

As the approaching rollout of a COVID-19 vaccine brings hope of an eventual end to the pandemic, it also introduces ethical dilemmas. With various groups of Americans at heightened risk of exposure, and others at increased risk of severe cases, who should be vaccinated first?

By any reasonable standard, incarcerated people should rank high on every state's priority list. The COVID-19 case rate is four times higher in state and federal prisons than in the general population -- and twice as deadly. And despite the danger of close quarters and high rates of preexisting health conditions among incarcerated people, prisons and jails have widely failed to reduce their populations enough to prevent the spread of the virus. Since March, at least 227,333 people incarcerated in state and federal prisons have tested positive for COVID-19, and at least 1,671 have died. There have also been at least 56,496 cases and 105 deaths among prison staff.

The federal Bureau of Prisons announced in November that it plans to reserve its early allotments of the vaccinations for staff, not incarcerated people. Curious whether this was indicative of broader policy decisions, we investigated how states are planning to address incarcerated populations and corrections staff in their early rounds of vaccination, which may begin as soon as mid-December. To do so, we looked through all 48 publicly available draft vaccination proposal plans, which states were required to submit this fall using guidelines provided by the Centers for Disease Control (CDC). (Complete plans from Minnesota and Pennsylvania were not available.)

In the draft proposals, states were encouraged to create three-phased plans for vaccine distribution, structured around availability of the vaccine. (Many states further subdivided the three phases into priority tiers, such as Phase 1A and Phase 1B):

• Phase 1: Potentially Limited COVID-19 Vaccine Doses Available
• Phase 2: Large Number of Doses Available; Supply Likely to Meet Demand
• Phase 3: Likely Sufficient Supply

We examined 48 state vaccine distribution proposals to see how the states mentioned incarcerated people and corrections staff. Some states were not specific, but used references and terms that we concluded “probably” or “might” have been meant to include incarcerated people or staff.

Of course, if our value judgements are incorrect for some of these states, that would mean that the states are not planning to prioritize incarcerated people or staff at all. Readers should use caution in comparing the different phase numbers between states for two reasons: Not all states used the federal government’s suggested three phases, and whether a later phase implies a longer wait for a vaccine is dependent upon how many people are in the earlier phases.⁴ The most important decision is whether incarcerated people and staff are mentioned at all. For the details from each state and a link to the original plan, see the appendix to the web version of this article.

Our most positive finding is that 36 of the 48 states addressed (or seemed to address) incarcerated people as a priority group at all. But in many states, correctional staff are prioritized before incarcerated people (staff were also more likely to receive PPE early in the pandemic).

Missouri, for example, placed corrections staff in Phase 1B, while implying incarcerated people would be in Phase 3, which is also when the state plans to vaccinate "every Missourian who qualifies and needs or wants a COVID-19 vaccine." The Missouri proposal rationalized this plan by pointing to staff as the likely entry point of the virus into facilities, and claiming that the spread can be controlled inside facilities. "Inmates' confined nature has been amenable to procedural controls to reduce the likelihood of correctional facility outbreaks," the report states. "As a result, staff now represent the most likely source of a facility outbreak. Vaccination of corrections staff can vastly reduce this source of potential attacks." The report did not cite any data or other reports supporting these claims. The Missouri Department of Corrections has reported 36 COVID-19 deaths among its incarcerated population since March, as well as four deaths of staff members.

Furthermore, in a New York Times opinion piece, Emily Bazelon argued that the BOP's similar prioritization of staff over incarcerated people, especially older detainees, "seems dubious, epidemiologically and ethically, without evidence that staff vaccinations would be enough to stop the spread of infection."

State plans are often unclear and not specific

It is important to note that many of the states were unclear and unspecific in their plans, making it difficult to determine their intent. For example, many states included a CDC-produced graphic that assigns "critical populations" to Phase 2. Some, but not all, of these states provided further explanation as to how they define "critical populations." For instance, Illinois immediately followed the graphic with an explanation of who falls within "critical populations," specifically listing, "People who are incarcerated/detained in correctional facilities." We categorized these states as putting incarcerated people in Phase 2, since the intent was clear.

Other states were somewhat less clear. Virginia, for example, included the CDC chart without any additional context. Elsewhere in the report, however, incarcerated people were included on a list of critical populations. Although it is not completely clear whether this list can be linked directly to Phase 2 on the graphic ("critical populations" is used in varying contexts throughout the reports), this additional attention to incarcerated people led us to categorize these states as "probably" including incarcerated people in Phase 2.

Other states, however, simply included the graphic without further explanation as to what "critical populations" means in their plans. For example, Kansas included the CDC graphic, but never specifically mentioned incarcerated populations as part of a priority group anywhere else in the report. Due to our government's history of medical mistreatment of incarcerated and detained populations, we did not give these states the benefit of the doubt by assuming they intended to include incarcerated people among "critical populations." However, when states implement their plans, they certainly should include incarcerated populations in the prioritized "critical populations" category.

Similarly, some states were unclear on whether they intended to prioritize corrections staff. The same CDC graphic includes "other essential workers" in Phase 1B. Some states specifically interpreted this to include corrections staff. Other states implied this might include corrections staff, by referring to a document from the Cybersecurity and Infrastructure Security Agency (CISA), which provides an extensive list of who may be considered essential workers (that list includes corrections) -- but without specifying corrections workers specifically in their reports (in these cases, we labeled corrections staff as "Maybe Phase 1B").

The appendix to the web version of this article includes explanations of how we categorized the states that did not explicitly place incarcerated people and staff into phases. Of course, if our judgement calls are incorrect in some instances, we may have listed a state as "maybe" or "probably" including these groups in a phase, when the state did not intend to assign a phase at all.

Another important point to note is that even among states that were specific, some used phrasing like "persons living in correctional facilities." While we hope these states intend to prioritize those in jails and detention centers, as well as prisons, we cannot be sure -- especially since there is a history of locally-operated jails falling through the cracks in state policy. And some states specifically excluded jails, such as New Mexico, which provided this explanation: "Because of the two-dose requirement, it may be difficult to ensure effective vaccination of facilities where people move in and out frequently such as homeless shelters and county adult detention centers. Two doses could be offered to inmates at state prisons and to adult residents at state and county juvenile justice centers."

States should prioritize vaccinating those in county jails as well as prisons, both because jails can easily become COVID-19 hotspots, and because this is a way to reach large populations who might otherwise be missed.

Recommendations

• Incarcerated people and corrections staff should be prioritized for vaccination against COVID-19. States and the BOP should not consider vaccination of staff as sufficient to stop the spread of COVID-19 in correctional facilities.
• Governors and state health officials should resist inevitable pressure to deprioritize incarcerated people. For example, earlier this month, when Colorado Gov. Jared Polis was questioned about his state's decision to place incarcerated people in Phase 2A, ahead of some other vulnerable groups, he responded: "There's no way it's going to go to prisoners before it goes to the people who haven't committed any crime." This type of posturing violates the state's duty to protect the health of people in its care, as well as to slow the spread of the virus in the places where it is poised to spread the fastest.
• Prisons and jails should decarcerate. Since March, public health and medical officials have warned that the only way to protect incarcerated people (and limit the inevitable spread of the virus out of facilities and back into the community) is by drastically decreasing prison and jail populations. Prisons and jails have largely failed on this front.

Footnotes

1. California indicated that incarcerated populations may fall in Phase 1. And Kentucky included conflicting charts that implied incarcerated populations would either be in Phase 1B or 2.

2. Hawaii placed incarcerated people in Stage 2 of 4; Montana in Tier 3 of 5; Nevada in Tier 3 of 4; and New York implied incarcerated people would be in Phase 2 of 5.

3. Hawaii placed corrections staff in Phase 2 of 4; New York implied they would be in Phase 2 of 5. (Montana and Nevada also did not follow the CDC phases, but Montana implied corrections staff might be in Tier 1 of 5, and Nevada placed them in Tier 1 of 4, so they are included with the Phase 1 states listed earlier, because that is more clearly comparable.)

4. For example, Maryland put incarcerated people in Phase 1, but that state's Phase 1 was quite large, encompassing an estimated 14% of the state population.

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The web version of this article includes an appendix with the details for each state and a link to each state's original plan.