A federal court ruling requiring Oregon to begin immediate vaccinations of state prisoners could help revive a legal battle to speed vaccine distribution to incarcerated people in Colorado, the American Civil Liberties Union of Colorado said.
In ordering immediate action Tuesday, U.S. Magistrate Judge Stacie F. Beckerman found that Oregon “must fulfill its duty” to protect inmates from the virus, since they are unable to protect themselves as prisoners of the state.
“The Oregon case holds that it is unconstitutional in Oregon to ignore the urgency of vaccinating prisoners in the same way that Gov. (Jared) Polis has ignored the urgency of vaccinating prisoners here,” said Mark Silverstein, the ACLU of Colorado’s legal director, calling it a decision of “national significance.”
While Beckerman’s ruling doesn’t carry the force of law in Colorado, Silverstein said it bolsters the ACLU’s ongoing effort to move Colorado inmates up the priority list for receiving the vaccine. Failure to do so constitutes “deliberate indifference” to inmates’ health and welfare given crowded, unsanitary conditions in correctional facilities, the ACLU has argued, echoing the claims in a similar class-action suit that led Beckerman to order that vaccinations of Oregon inmates begin right away.
“In legal terms, it’s not mandatory authority,” Silverstein said. “But it’s what lawyers call ‘persuasive authority.’ … We have the same facts, and the same constitutional provisions apply.”
A spokesman for Polis declined to comment on the Oregon ruling, citing the pending litigation with the ACLU.
Colorado initially had inmates and others in congregate housing environments near the top of its vaccine priority list. But that plan was nixed after criticism, with Polis declaring at a news conference soon after the release of the state’s draft vaccination plan that inmates would receive no special consideration because they are incarcerated.
Instead, the state plans to vaccinate prisoners along the same timelines as those who aren’t incarcerated, according to where they fit given their ages and health conditions.
The ACLU took up the issue of vaccinating inmates in December as part of an ongoing lawsuit in Denver District Court that sought to improve coronavirus protections in state prisons. A judge dismissed the case later the same month, and the ACLU asked the Colorado Supreme Court for expedited review of the decision in an appeal filed last week.
Silverstein said the ACLU will file a “notice of supplemental authority” asking the state’s highest court to review the Oregon decision as part of its request that the state’s high court intervene.
The Denver judge also found that Polis wasn’t a “proper defendant” for the claim, which the ACLU disputes, arguing that he is ultimately responsible for prison policy.
In trying to revive the lawsuit, the ACLU will also ask the Supreme Court to take notice of its own ruling, issued Monday, rejecting a request to remove Polis as a defendant in an ongoing lawsuit by seven transgender inmates alleging a violation of their constitutional rights. That ruling batted down an argument that Polis shouldn’t be held liable for prison policies.
Oregon’s federal ruling applied to state prisoners, but led Multnomah County, Ore., to begin vaccinating jail inmates the day it was issued, county officials said in a statement. At least 108 inmates were given the vaccine in the first wave of vaccinations.
Colorado could likewise act to change its stance and order vaccinations of state inmates, Silverstein argued.
“Colorado authorities don’t need to wait for a Colorado court to issue a ruling. They should do the right thing, follow the Oregon ruling and save some lives,” he said.
As of Wednesday, nearly 8,300 inmates have contracted COVID-19 since the pandemic started, and 28 of them died, either as a result the disease or of other causes while they were ill with the virus.
Outbreaks at prisons, jails and other correctional facilities across Colorado account for 15 of the 20 largest outbreaks of COVID-19 in the state, according to a recent study by the Colorado Health Institute.
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