2 New York Judges Ordered Defendants to Get Vaccinated. Can They Do That?

NEW YORK — The defendant was charged with a number of minor crimes, including drug possession and shoplifting. He was prepared to plead guilty, and prosecutors agreed. But a Bronx judge approving the deal added his own unusual condition.

The defendant had to get a COVID-19 vaccine.

A week later, a Manhattan judge made the same order, this time of a woman seeking bail before a trial.

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Neither defendant appeared to object. But legal observers said the two judges’ orders — made in different courts and for different reasons — raise important questions about the line between civic responsibility and civil liberties.

A number of experts who reviewed the orders disagreed as to whether they were justified, or whether or one or both could represent an overstep — a debate that underscores the legal and ethical complications that have emerged around vaccination requirements.

In one case, Judge Jeffrey Zimmerman of the Bronx County criminal court, explained that the defendant, William Gregory, had been accused of crimes — including drug possession, criminal trespass, shoplifting and criminal contempt — that showed he had placed his own interest above others’. In getting the vaccine, the judge argued, Gregory would be doing the opposite, and so vaccination would represent a form of rehabilitation.

The second order came from a federal judge in Manhattan, Jed S. Rakoff, who granted the release of a defendant, Elouisa Pimental, who was charged with conspiracy to distribute fentanyl, on the condition that she get vaccinated.

Rakoff argued that it fell to him to determine whether a person seeking release represented a danger to their community. The unvaccinated, he wrote, did pose such a danger, given their “enhanced risk of infecting other, innocent people and even potentially causing their deaths.”

Stephen Gillers, an expert in legal ethics at the New York University School of Law, said that Rakoff was likely on firm footing, as long as Pimental was not reluctant to get vaccinated because of health issues or “legitimate religious objections.”

“Those aside, I think that this requirement fits within the broader category of the judge’s responsibility for the safety of individuals or the public generally,” Gillers said.

An attorney for Pimental, Ian Marcus Amelkin, said Pimental had told Rakoff that she did not object to being vaccinated. But Cheryl Bader, a professor at the Fordham University School of Law, said that while she admired Rakoff’s creativity, there was a “potential hole in the underlying logic.”

Bader said it was the premise of the law that Rakoff was tasked with evaluating a defendant’s danger to the community, but not in a general sense — in connection with the criminal charges in question. And the danger of spreading the virus was not clearly connected to the distribution of fentanyl.

Judges have broad discretion in placing restrictions on people who are accused of crimes. It is not unusual for them to limit whom defendants talk to, where they go, even how frequently they use the internet. And judges do often order defendants to proactively engage in certain behaviors, such as receiving counseling or taking certain prescribed medications.

But the power of judges is not unlimited. Nadine Strossen, a professor at New York Law School who was the president of the American Civil Liberties Union from 1991 to 2008, said that to fight a vaccination directive, a lawyer would have to demonstrate that a judge had abused his or her discretion.

For example, she said, the ACLU filed in 2003 to reverse the order of a Michigan judge who had compelled a woman to begin taking a form of birth control after she was accused of physically neglecting her children. The ACLU argued that the judge had infringed on her constitutional right to privacy. (The case reached the state’s court of appeals, and the order was eventually rescinded.)

Strossen, noting that Zimmerman had framed his order as a matter of Gregory’s personal improvement, said she did not see the logical connection between what Gregory had been accused of and his being vaccinated.

“That made it seem to me like an abuse of discretion,” she said. “That the judge has this guy in his power and he can impose whatever hobbyhorse is important to him.”

But Bruce Green, a professor at Fordham Law and a former federal prosecutor, said that he did not see Zimmerman’s order as an “incredible intrusion into someone’s bodily integrity.”

“It’s actually doing the defendant a favor because it’s keeping them safe and it’s doing the community a favor by making sure this person’s less likely to transmit the virus,” he said.

State criminal courthouses in New York City are an area of particular concern when it comes to the coronavirus, as they are widely acknowledged to be filthy and poorly ventilated. Last month, a group of state senators sent a letter to the state’s chief administrative judge, Lawrence Marks, demanding the court system address “conditions such as stained surfaces, dust-encased air intake vents, evidence of pests like insects and rodents, moldy chairs, and insufficient ventilation systems.”

And as the courts have reopened, the coronavirus has spread. In the last week alone, more than a dozen people who were present in New York City court buildings have tested positive for COVID.

Zimmerman, in explaining his order to Gregory, did not mention the renewed ubiquity of the virus. He was focused on the value of good citizenship.

He referred to another case, in which a judge had attempted to order a defendant accused of drunken driving to put a neon sign on his car saying that he was a convicted drunken driver. The state Court of Appeals said that sentence was inappropriate because it was punitive, rather than rehabilitative.

“By contrast, the condition that I am putting on Mr. Gregory’s sentence I don’t believe is punitive at all,” the judge said in the courtroom. “It only inures to his benefit and the benefit of society.”

The judge declined an interview request, saying that he could not comment on ongoing cases. But Lucian Chalfen, a spokesman for the court system, noted that the plea had been agreed to by the Bronx district attorney and Gregory’s attorney at Legal Aid. (A spokeswoman for Legal Aid did not respond to a request for comment.)

“The judge, using his discretion, instead of imposing a sentence solely around punishment for the defendant’s anti-social behaviors, chose to compel the defendant to contribute to society and his own health and safety by getting vaccinated,” Chalfen said.

Gillers thought Zimmerman might be overstepping his authority.

“We give the judge this power over the lives of others but they have to use it sparingly,” he said. “Zimmerman is saying, as a judge, I’m going to help you be a better person. And I don’t think that’s his job. As a therapist, perhaps, but not as a judge.”

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