'The choice between vaccination and incarceration is not really a choice at all': Legal experts SLAM New York judges for 'troubling' and 'dangerous' decision to order defendants to get COVID-19 shots as part of plea deals and bail conditions
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http://www.yourdestinationnow.com/2021/08/the-choice-between-vaccination-and.html
August 25, 2021
Legal experts and the American Civil Liberties Union have criticized a pair of New York judges for ordering defendants to get vaccinated if they want to make bail or be granted a plea deal.
The ACLU slammed the decisions as 'troubling' and one lawyer even called the rulings 'nonsensical' and abuse of power that could be seen as grounds for the judges to be censured or suspended.
The criticism comes after Manhattan judge Jed Rakoff granted the release of Elouisa Pimental, a woman accused of drug dealing, on the condition she get vaccinated.
Another order came from Bronx judge Jeffrey Zimmerman who made vaccination part of a plea deal.
The Daily Mail reached out to numerous legal experts and found agreement that while judges do have a lot of discretion in sentencing, these rulings go well past what the judiciary is supposed to be doing.
Jared Trujilio, policy council for the New York division of the ACLU, found these decisions troubling
Philip Hamburger, a law professor at Columbia University and the founder and president of the New Civil Liberties Alliance, said this ruling goes against what judges are put in place to do
Bruce Afron, a civil and constitutional rights attorney in New Jersey who has argued federal cases, called Rakoff's judgement 'nonsensical'
'Eliciting good behavior is not the role of a judge,' Hamburger, who made it clear he supports vaccinations and has defended scientific inquiry cases in the past, said. 'The role of the judge is to follow the law.'
Hamburger spoke highly particularly of Judge Rakoff, but said that while he might make a good legislator, he isn't one.
'The role of a judge is to rule based on due process under the law, not to be bound by policy,' he said.
Federal judge Jed Rakoff granted the release of a defendant, Elouisa Pimental, who had been charged with conspiracy to distribute fentanyl, if she agreed to get the shot
Bruce Afron, a civil and constitutional rights attorney in New Jersey who has argued federal cases, called Rakoff's judgement 'nonsensical,' especially one portion of the ruling that suggested her crime was selfish and that by getting vaccinated, she would be making up for it with an unselfish act.
'His ruling that this was a self-centered crime makes no sense, all crimes are selfish,' Afron told the Daily Mail.
Afron said that there was an abuse of power involved in these decisions and that these defendants should seek an appeal.
'There is a remedy,' he said. 'Even though the defendants didn't object, it's still overreach. It wouldn't be difficult to prove the case. It's a violation of basic due process.'
However, he suggested that the fallout from stories like these mean it's less likely we'll see them going forward.
Jared Trujilio, policy council for the New York division of the ACLU, found these decisions troubling.
Trujilio spoke out after reading the bail terms issued by Rakoff which stated that it should be 'obvious that the court has ample authority to impose (the condition of vaccination).'
'The purpose of bail is to ensure court appearance, not to coerce medical decisions,' said Trujilio in a statement to the Daily Mail. 'In this case, the choice between vaccination and incarceration is not really a choice at all. This is a troubling standard and a far reach of judicial discretion, especially considering that other more routine bail conditions could be well-tailored to legally justify the cited public safety rationale.'
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.
Hamburger said that the defendants should've refused them and contacted organizations like his to attempt to appeal the ruling.
Rocco Cipparone, a former federal prosecutor and current criminal defense attorney, told the Daily Mail that the defendants' lack of objection meant we wouldn't find out the true legality of these judgements. He noted, however, that the defendants would have been well within their rights to do so.
Afron agreed, suggesting the defendants could go straight to the United States 2nd Court of Appeals, saying the case wouldn't be difficult.
At least 63 percent of New Yorkers have had at least one dose of the coronavirus vaccine
One of the conditions to grant bail for the defendant is that she gets vaccinated against 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
'It would not set a precedent legally. Other judges wouldn't do this, especially since this story's already caused a reaction.'
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.
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.
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.
Hamburger noted that a knock-on effect in the case could be to make people take judicial rulings more seriously.
'Cases like these reveal to people that a power over peoples' bodies is dangerous,' he said. .
'There is a basis in some respects, but it violates body integrity and doesn't seem to address the nexus of the crime,' added Cipparone.
Both Cipparone and Afran noted that in a rare case, a person who transmits a communicable disease to someone else could see a vaccine as part of a potential ruling. But both said that these rulings had no relation to such a case.
It's not likely that these judges will face consequences, especially in the case of appointed officials like Judge Rakoff. However, someone like Judge Zimmerman, who faces re-election, could see electoral consequences for his decision, according Cipparone.
Afran noted that, in some cases, judges could face censure, suspension, or even a lawsuit. However, he suggest a suit was unlikely given that if you could easily sue judges, 'no one would become a judge.'
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.
Rocco Cipparone, a former federal prosecutor and current criminal defense attorney, told the Daily Mail that the defendants' lack of objection meant we wouldn't find out the true legality of these judgements
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 for a defendant
In the column, McCarthy argues that Rakoff does not have the authority to do so
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
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
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.
In another case, Bronx judge Zimmerman 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.
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.
