A New York judge ordered a defendant to get the COVID-19 vaccine as part of his plea deal, while another made it part of a drug dealing suspect's bail terms, as an attorney said judges have no unilateral authority to mandate vaccination.
Recently, in a rare move, Manhattan judge Jed Rakoff granted the release of Elouisa Pimental, a woman accused of drug dealing, on the condition she get vaccinated.
'A condition of bail that is reasonably necessary is to require that the defendant receive a COVID-19 vaccination before being released.
'It seems obvious that the court has ample authority to impose such a condition,' read the bail terms issued by Rakoff's court.
He used the Bail Reform Act 1984, which allows judges to impose rules to avoid suspects freed on bail from posing a danger to the public.
But former Southern District of New York District Attorney and National Review Columnist Andrew C. McCarthy contended that Rakoff had no power to impose such a mandate.
'Judge Rakoff...is certainly free to believe everyone should get vaccinated. But he has no unilateral authority to order that they get vaccinated,' McCarthy wrote in a column for the Review.
McCarthy pointed out in the article that he also believed everyone should be vaccinated, but that no district court has the authority to enforce a vaccination mandate.
He said Rakoff had made the mistake of acting as if ordering Pimental to have the vaccine in return for bail was an act of kindness. McCarthy said Rakoff had read the law 'backwards' and should have presumed that Pimental was eligible for bail unless there were strong signs that she would pose a risk to the community.
In the bail terms for Elouisa Pimental, Rakoff notes that as he feels that the unvaccinated pose a serious risk, 'enhanced risk of infecting other, innocent people and even potentially causing their deaths,' he would not release her without the condition of vaccination.
Former district attorney Andrew C McCarthy wrote a column in the National Review in response to Judge Rakoff's decision to make COVID-19 vaccination a bail requirement. McCarthy argues that Rakoff does not have the authority to do so
One of the conditions to grant bail for the defendant is that she gets vaccinated aginst COVID-19, to which she has agreed
'Judge Rakoff...is certainly free to believe everyone should get vaccinated. But he has no unilateral authority to order that they get vaccinated,' McCarthy wrote in a column for the Review
As New York continues to place various sectors under vaccine mandates, two local judges have recently attempted to make plea deals with criminals on the condition that they be vaccinated
Neither defendant appeared to object, according to the New York Times. But it is a sign of New York edging closer towards attempting to mandate vaccines in every part of public life.
According to the bail terms, the Bail Reform Act of 1984 covers Rakoff's decision to demand vaccination for Pimental.
The act focuses on the danger a defendant might pose for the community, in light of the crimes they have been accused of.
McCarthy rebutted in his column that the potential and unassessed COVID-19 risk that Pimental poses has no correlation to the criminal charges against her.
The act leans towards more immediate and imminent threats- when there is evidence that a defendant could be an arsonist or a terrorist.
McCarthy also argued that ordering a defendant stay off booze or drugs was an acceptable use of the bail reform act, but that mandating a COVID vaccine was not.
He explained that this was because either substance could directly contribute to a suspect's behavior, and potentially cause harm to the public, but that this was not the case with a COVID vaccine.
The writer - who served as a prosecutor for the same district that Rakoff's court sits - argued
McCarthy said that If congress was to require everyone be vaccinated, they would have to wait for vaccines to be fully approved and to grant medical and religious exemptions for individuals that meet the requirements.
The possibility of Congress doing so is becoming more likely, as the Pfizer vaccine received full approval from the FDA on Monday.
But for a group of people to be singled out, say defendants trying to be released on bail or to obtain a plea-deal, there must be a inherent and sensible reason.
'For example, a law requiring the vaccination of medical practitioners who deal constantly with sick people,
'Merely being accused of a crime...has no discernible connection to a heightened risk of COVID that would justify a discriminatory vaccine mandate,' McCarthy said.
He concludes that Pimental's 'danger to the community,' simply refusing to get vaccinated, is indeed lawful behavior and completely unrelated to the crime she is said to have committed.
'I do not see how this ruling can stand,' he wrote.
Another order came from Bronx judge Jeffrey Zimmerman who made vaccination part of a plea deal.
Judge Zimmerman told a defendant charged with drug possession, shoplifting and criminal contempt, that the crimes showed he put his own interest above others. By getting the vaccine, he said, it would be a form of rehabilitation by doing the opposite.
Zimmerman compared it to a case in which a judge tried to force a defendant accused of drunk driving to place a neon sign on his car saying he was a drunk driver. A New York Court of Appeals ruled that this judgement was punitive, rather than rehabilitative, and therefor inappropriate.
At least 63 percent of New Yorkers have had at least one dose of the coronavirus vaccine
However, city data show that only 28 percent of black NYC residents between the ages of 18 and 44 are fully vaccinated, compared to 49 percent of Hispanics, 52 percent of whites, and 82 percent of Asians in the same age group.
It's also the most recent known case of a judge mandating a defendant be vaccinated. A similar case occurred in Louisiana, where a judge ruled that criminals could skip community service if they got vaccinated.
At least 63 percent of New Yorkers have had at least one dose of the coronavirus vaccine
Earlier Monday, it was announced that every staff member at New York City's public schools will need to be vaccinated by the end of September with no option for weekly testing.
Mayor Bill de Blasio said Monday that every department of education employee must receive at least one dose of a coronavirus vaccine by September 27, as the city escalates attempts to slow the spread of the hyper-contagious Delta variant.
There will be no option of a weekly test instead.
'We know this is going to help to ensure that everyone is safe,' he told reporters.
Outgoing Governor Andrew Cuomo, who has often clashed with de Blasio on handling the coronavirus, indicated in his pre-recorded farewell address Monday that he thinks all teachers should be vaccinated.
The announcement comes as public bodies and private businesses in the United States grapple with boosting vaccination rates.
On Monday the US Food and Drug Administration fully approved the Pfizer-BioNTech Covid vaccine, which is expected to trigger a slew of new vaccine mandates around the country.
New York's directive comes after Los Angeles and Chicago announced their own vaccine mandates for teachers.
Neighboring New Jersey announced a similar mandate Monday, but will allow unvaccinated teachers if they agree to once-a-week testing. Similarly, all state agencies, public colleges and universities in the Garden State face the same mandate.
The Big Apple now requires proof of vaccination for people attending indoor venues such as restaurants, gyms and shows, as the city tries to get back on its feet.
The order, which took effect last week as new COVID cases soar in the city and across the nation, requires proof of vaccination to enter restaurants, bars, entertainment venues, and gyms or fitness centers.
The vaccination mandate aims to persuade more people to get vaccinated with the threat of missing out on city amenities.
Since New York announced its vaccine mandate, New Orleans and San Francisco have issued similar orders for patrons and staff of indoor businesses.
Nevada´s governor enacted a similar policy this week, and the Las Vegas Raiders responded by becoming the first NFL team to require proof of vaccination to attend games in 2021.
Los Angeles is considering similar measures. All are led by Democratic mayors, underscoring the political divide over mandates on vaccines, masks and other measures.
The vaccine mandates are fraught with complications, as restaurant servers, bartenders and ticket agents at already understaffed businesses now must enforce the vaccination rules.
Mindful that another economic shutdown could be disastrous, some restaurant and bar owners are embracing the the mandates as a way to control the virus and keep their doors open.
The United States has recorded over 37 million positive COVID-19 tests, while 628,504 have lost their lives to the virus.
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