Judges are often given credit for creativity in sentencing, probation, and parole decisions. While it is laudable to fashion societal remedies in criminal cases and some civil matters that benefit society, it can hardly be the case that coercing defendants into arrangements that require them to give up Constitutionally-protected rights to medical freedom and privacy leads anywhere good.
In recent months, the nation has seen several judges using COVID vaccination shots as a condition in just such matters.
In what is believed to be the first such ruling of its kind, a Cook County Illinois judge in a child support case asked the mother if she had been vaccinated against COVID-19. An attorney did not represent the mother at the time. When the mother said that she had not because of medical advice against the shots due to previous adverse reactions to vaccines, the judge ordered that she lose all parenting time with her son.
After retaining an attorney, significant local media attention, and three weeks away from her child, the judge changed his decision and recused himself from the case. The mother’s attorney stated that the judge had exceeded his jurisdiction.
An Ohio judge ordered a 21-year-old defendant to get a COVID vaccination last month as part of a sentence to two years of probation instead of prison time. The judge gave the defendant two months to get vaccinated due to his guilty plea to drug possession and told him that the vaccination was “safer than fentanyl.”
After being challenged, the judge changed his ruling four weeks later, admitting that it was not his role to “teach” the defendant to “be a better person.” The judge told the defendant that he would not “make a martyr” by incarcerating him for not getting the shots.
Earlier this year, judges in two Georgia counties offered reduced sentencing in several dozen cases for defendants who could show the court proof of a COVID vaccination. A Louisiana judge has offered defendants the choice of getting a vaccine in exchange for a reduction in ordered community service.
A federal judge in New York has ordered that defendants receive vaccinations to be released on bail while awaiting trial, stating that the unvaccinated are a “danger to the community.”
In a political and media environment where any excuse to compel people to receive the vaccines has reached a fever pitch, it is helpful to remember the recent commentary by Supreme Court Justice Neil Gorsuch. In the court’s ruling last November against then-New York Governor Andrew Cuomo’s lockdown of religious services because of COVID concerns, Gorsuch reminded Americans that “we may not shelter in place when the Constitution is under attack. Things never go well when we do.”