COVID-19: Where are the prisoners?

Let’s all agree on this: to extract the greatest benefit from the apparently promising crop of COVID-19 vaccines, now touching down at an airport near you, we should in general provide this currently scarce resource to those with the most immediate need.

Which begs the question: where are the prisoners?

Two weeks ago, the Centers for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices released its recommendations for prioritizing the distribution of COVID-19 vaccines. It placed health care workers and nursing home residents at the top of the list. Next up would be essential workers, followed by people 65 and older and those with underlying medical conditions.

I’m not here to quibble with those initial priorities. Health care workers have put their lives on the line in this crisis; at least 864 have paid with their lives, and their wellbeing is critical to keeping the health care system functioning for all of us. And residents and employees of long-term care facilities together comprise a stunning 39 percent of COVID-19 deaths in this country.

But strikingly absent from the CDC’s presentation on phased allocation of vaccines was any mention of the 2.3 million people currently in prisons, jails and other detention centers — a group drawn disproportionately from minority communities. Literally every one of the top 20 COVID-19 outbreak clusters in the U.S., and 47 of the top 50, has taken place in prisons and other correctional facilities. By Dec. 14, there had been over 266,000 COVID-19 cases among people incarcerated in prisons and 1,663 deaths. In addition, more than 58,000 staff working in prisons had contracted the virus and 84 had perished; how many passed the virus on to their family members, friends and neighbors is unknown. Interestingly, corrections officers are in the top priority tier in some states.

The omission of incarcerated people from the advisory committee recommendations is all the more striking because a blue ribbon panel convened by the National Academies of Sciences, Engineering, and Medicine came to a different conclusion. In its October report, the academies recommended health care workers and first responders as their first priority but included residents of prisons and jails among the next group, which also included nursing home residents, persons over 65 and those with underlying medical conditions.

In Colorado, the state health department submitted a plan that placed prisoners ahead of healthy adults 65 and older in the vaccine queue. But Gov. Jared Polis (D-Colo.) demurred, saying, “There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime. That’s obvious.” 

Interestingly, as far back as 1976, in Estelle v. Gamble, the Supreme Court established that deliberate indifference to the serious medical needs of incarcerated persons could constitute “cruel and unusual punishment” under the Eighth Amendment. When the state decides a person’s actions are so serious that it justifies depriving that person of his or her liberty, the state also assumes the responsibility of providing appropriate housing, food and medical care. Almost one-fifth of those incarcerated haven’t even been convicted — they’re simply awaiting trial, and some will never be convicted. The levels of infection in our overcrowded prisons — over five times higher than in the general population and three times as likely to be fatal — more than justify providing vaccination as an early priority.

It’s true that criteria other than epidemiologic ones should also be weighed. But these — like feasibility and mitigating health inequities — if anything tilt the scale still further in the direction of vaccinating prisoners.

So far the CDC Advisory Committee has only voted on the highest priority tier, so there’s still time for a course correction. And the states make the ultimate decisions about vaccine priorities. Some, like North Carolina and New Mexico, place prisoners in the top tier for vaccination, while in 13 states they’re not on the list at all.

But the clearest lesson of this pandemic is that we depart from the policy consequences of science at our peril. Let’s make sure that the exciting opportunity offered by safe and effective vaccines is not squandered by failing to provide it to those who need it most.

Peter G. Lurie is president of the Center for Science in the Public Interest and formerly associate commissioner for Public Health Strategy and Analysis at the Food and Drug Administration.