On New York State’s list of ten “guiding principles” for the rollout of the COVID-19 vaccine, No. 4 promises “equitable & clinically driven distribution”—in other words, the government will prioritize people based on their risk of catching the virus or of developing severe illness from it. “Unrelated factors, such as wealth or status,” the guideline adds, “will not influence distribution.” Governor Andrew Cuomo has publicly endorsed this pledge. “COVID has revealed from the very beginning the underlying injustice and inequity in this society,” he said in November, while hosting a press call with Black leaders about the federal government’s early vaccine plans. And yet, two months since the first New Yorker received a vaccine, the latest state data show that vaccine-eligible Black and Hispanic New Yorkers, the same people who disproportionately got sick and died this past year, are receiving shots at rates well below those of vaccine-eligible whites and Asians. And, though Cuomo has taken steps to address these numbers—on Wednesday, he announced that the state would open special vaccination sites in “socially vulnerable communities”—there is one easy, basic step toward equity that the Governor has so far refused to take.
A week ago, five legal-aid groups sued Cuomo and the state health commissioner, Howard Zucker, for withholding vaccine eligibility from the more than thirty thousand people currently incarcerated in New York’s prisons and jails. The lawsuit argues that refusing to vaccinate incarcerated people puts lives in danger, violates public-health guidelines, raises civil-rights issues, and undercuts the very equity that Cuomo says he’s committed to achieving. The lawsuit notes that incarcerated people were left out of the first phases of the state’s vaccine rollout, even as people in other so-called congregate settings—nursing homes, homeless shelters, state-run treatment centers for mental-health issues and drug addiction—and corrections officers, who work in prisons and jails, were made eligible. (The C.D.C.’s current guidance, the lawsuit points out, recommends that staff and inmates in prisons and jails be vaccinated at the same time.) What distinction could the state be drawing between these groups of people? Isn’t the inmates’ status as inmates the kind of “unrelated factor” that the state had promised to ignore?
You can pick your argument in favor of vaccinating inmates. Outbreaks in prisons and jails threaten the communities outside the walls as much as the people inside. The walls mean nothing to a virus. In New York, at least one outbreak, at a prison near Albany, was linked to infections at an assisted-living facility and an elementary school, according to the Times. “These are semipermeable membranes,” Gregg Gonsalves, an infectious-disease epidemiologist at Yale who filed an affidavit in support of the lawsuit, said. “If you’re going to keep your investments in your prison systems, if you’re going to keep people incarcerated, at least give them the friggin’ vaccine.” Then, there’s the unique burden that the pandemic has placed on incarcerated people, especially those being held pre-trial. For nearly a year, courts have been operating at limited capacity, visits prohibited, and contact with lawyers constrained. “Our clients are languishing,” Meghna Philip, a lawyer with the Neighborhood Defender Service of Harlem, one of the groups that brought the case, told me. Rachael Bedard, a geriatrician who works with some of the oldest and sickest people at Rikers, called vaccination “an essential step toward being able to open the facilities back to baseline function.”
Nationwide, the vaccine rollout has been plagued by short supply. In developing a plan to distribute a limited number of doses, New York pledged to follow the science. But there’s a widespread sense that the Governor ultimately has the final say on eligibility. New Yorkers already approved for vaccination include those older than sixty-five, hospital workers, police officers, firefighters, teachers, grocery-store workers, forest rangers, and field investigators at the State Liquor Authority. At the beginning of February, after Cuomo announced that New York restaurants would be allowed to serve diners indoors again in time for Valentine’s Day, restaurant workers clamored to be added to the eligibility list. Pressed by reporters, Cuomo at first dismissed the outcry as “a cheap, insincere discussion,” and described the eligibility list as a zero-sum document. “You want to add someone?” he said. “Who do you want to remove?” But the next day, he reversed course, adding restaurant workers to the list, without removing anyone. Is it a knock on field investigators working for the State Liquor Authority to wonder whether there might be an equity issue in making them eligible for the vaccine ahead of incarcerated people? “You can’t keep people safe in prisons,” Gonsalves said. “Just because I stole a car when I was seventeen doesn’t mean I deserve a death sentence because my governor won’t do the right thing.”
In New York, since the start of the pandemic, more than five thousand incarcerated people have tested positive for the coronavirus, and thirty-one have died. Inequity is embedded in those numbers. According to the legal-aid groups’ lawsuit, there have been days when as many as ninety per cent of the people housed in COVID-19 wards on Rikers Island and in other New York City jails have been either Black or Hispanic. The legal-aid groups brought the case on behalf of Charles Holden and Alberto Frias, two men who have spent the bulk of the past year at Rikers. In court filings, Holden, who is fifty-two, describes living in a fifty-bed dormitory that houses forty-eight men, who share eating spaces, toilets, sinks, showers, telephones, televisions, and recreation spaces during the day, and who sleep inches from each other’s beds at night. Frias, who is twenty-four, has asthma, which has made him that much more anxious about catching the virus. “My unit eats our meals at tables that are in the dayroom,” Frias says, in an affidavit filed as part of the lawsuit. “Each table seats six people and I am often shoulder to shoulder with other incarcerated people while eating. No one wears a mask while eating meals. In general, the incarcerated people in my unit do not wear masks in the shared spaces of the housing area.”
Before the lawsuit was filed, last Thursday, a small number of state inmates with underlying health conditions had been vaccinated. After the suit was filed, the state government announced that it would begin vaccinating all incarcerated people older than sixty-five. To Philip, at the Neighborhood Defender Service, the quick reaction only betrayed the lengths that the state has gone in order to keep vaccines from people behind bars, since, technically, according to the state’s own plans, everyone older than sixty-five became eligible for the vaccine in mid-January. The state has yet to say when it will make the rest of its incarcerated population eligible for the vaccine, putting New York behind twenty-seven states that have already included inmates in their public plans, and well behind states such as Massachusetts that made incarcerated people eligible at the very beginning of the vaccine rollout. In Oregon, a federal judge recently ordered the state to begin offering the vaccine to every inmate who wants it. “Our constitutional rights are not suspended during a crisis,” Judge Stacie Beckerman wrote, in her opinion. “Even when faced with limited resources, the state must fulfill its duty of protecting those in custody.”
I asked the Governor’s office when the vaccine will be offered to the state’s entire incarcerated population. On Wednesday, I received an e-mail reply from Thomas Mailey, a spokesperson for the Department of Corrections and Community Supervision. “DOCCS began vaccinating staff and incarcerated individuals 65 years or older, on Friday, February 5,” Mailey wrote. “To date, approximately 1400 vaccinations have been administered. Vaccination efforts are continuing this week.” Research has shown that, though the infection and death numbers in the New York prison system are grim, the numbers in almost every other state are even worse. Nationwide, nearly four hundred thousand people in prison have tested positive since the beginning of the pandemic, and more than twenty-four hundred have died. New York officials tout the fact that more than three thousand state inmates have been granted early release during the pandemic, and that the over-all incarcerated population in state facilities is down to its lowest level since 1984. But, until the entire incarcerated population is vaccinated or the pandemic ends, comparatively lower infection numbers are no guarantee against future outbreaks, illness, and death.
The issue of vaccinating incarcerated people is also another point of disunity on pandemic policy between Cuomo and New York City’s political leadership. In December, Dave Chokshi, the city’s health commissioner, told a City Council hearing that prisons and jails, like nursing homes, “will be part of the prioritization for phase one.” Since then, elected, public-health, and corrections officials in the city have all voiced support for making all inmates eligible for the vaccine. “The state undertakes this responsibility when it puts people in, that is one of the reasons why it has to be looked at differently,” Robert Cohen, a doctor and a former Rikers health official, told me. Cohen now serves on New York City’s Board of Correction, which oversees the city’s jails. “I think that the Governor has a lack of respect for the people inside.” Bill Neidhardt, Mayor Bill de Blasio’s press secretary, was blunt when I asked him for the Mayor’s stance. “The Governor is wrong, and incarcerated people should be vaccinated,” Neidhardt said. “The reason to not vaccinate incarcerated people has everything to do with politics, and nothing to do with health, science, or racial justice.” Vaccination programs in prisons and jails, Neidhardt added, could be set up “quickly” and “efficiently.” “It should be done immediately,” he said. I asked if de Blasio had conveyed his position to Cuomo. “It’s been made very clear to the Governor and his team that we want to vaccinate incarcerated people,” Neidhardt said.