by Maya Chaudhuri, Sharon Dolovich, and Aaron Littman

The UCLA Law COVID-19 Behind Bars Data Project collects and reports on the rates of COVID-19 in prisons, jails, and immigration detention centers across the country, in addition to tracking related legal filings and court orders, releases, and grassroots organizing. Since December, we have been advocating vaccine priority for people living in correctional facilities. There is an urgent need to vaccinate incarcerated people, who are close to 5 times more likely to be infected and about 3 times as likely to die of COVID-19 as their non-incarcerated peers; as of mid-January, more than 2,100 people have died of COVID-19 behind bars.

Even beyond an outsized risk of infection and death, people in prison have experienced considerable hardship since the pandemic began, including the loss of family and legal visits, free movement around facilities, access to programming, law libraries and more. There is an urgent need to stop the spread of the virus in American prisons.

As we approach the pandemic’s one-year mark, we have a more hopeful landmark on the horizon: the largest (and fastest) vaccination campaign in human history. Vaccines could not come at a more crucial moment.

COVID-19 death rates are soaring, scientists continue to discover new strains of the coronavirus around the world—at least one of which, spreading fast, is 50% more contagious—and physicians are now seeing people who previously recovered from COVID-19 becoming re-infected and falling ill again. The U.S. Food and Drug Administration (FDA) has already approved two vaccines for emergency use and their administration has begun, with doctors, nurses, and other essential health care providers receiving the first available doses.

These vaccines, developed by Pfizer and Moderna, are incredibly effective, preventing about 95% of illness, and virtually all severe illness. The vaccines are also extremely safe; although a vaccinated person may feel ill for a few days, patients are not being injected with the virus and cannot contract COVID-19 from the vaccine.

Incarcerated people have understandable concerns about the medical care they are provided and about their treatment by public officials, and some may feel skeptical about vaccination. In this case, perhaps the best evidence of the vaccine’s efficacy and safety is the fact that people in the Free World are eager to be at the front of the line to get the shots.

Medical providers have administered over 12 million doses in the United States (including to most doctors and nurses), and over 40 million around the world, as governments face calls to increase scarce supplies as quickly as possible. Since the vaccines were approved, we and other advocates have been urging officials to prioritize incarcerated people, given their heightened risk. Unfortunately, because demand is so high, many jurisdictions have declined to do so, making people in prisons and jails wait for an opportunity to receive a potentially life-saving vaccine.

COVID-19 Vaccines

In early 2020, pharmaceutical companies began working to develop COVID-19 vaccines. Throughout development, the companies published their data for independent review by the scientific community as well as the FDA. Each vaccine underwent three trial phases before being submitted to the FDA, and the vaccine developers continue to monitor for unusual side effects both patients from the trial and members of the general public who have received the vaccine.

There is universal consensus that the COVID-19 vaccine development process has been safe and reliable. The current vaccines are based in scientific research that began decades ago, and researchers were already testing their approaches to creating vaccines on viruses in preparation for a potential pandemic. This preparation allowed for quick vaccine development. The COVID-19 vaccine became available so quickly because companies dramatically ramped up production, thanks to an unprecedented amount of government funding supporting these efforts.

At present, two COVID-19 vaccines—Pfizer’s and Moderna’s—have received emergency FDA approval, although two more vaccines look set to be approved in the next month: a single-dose vaccine from Johnson & Johnson and a double-dose vaccine from AstraZeneca. Other contenders proved less effective or had concerning side effects and their trials were discontinued.

Each of the two currently available vaccines requires patients to receive two doses. Pfizer’s two doses should be administered 21 days apart, and Moderna’s doses 28 days apart. These vaccines become fully effective two weeks after the second dose and have 94–95% efficacy. The small number of vaccinated people who developed symptomatic COVID-19 experienced less severe cases. Patients should not receive the vaccine while infected and must be vaccinated before exposure to achieve the benefits.

The Pfizer and Moderna vaccines use messenger RNA (mRNA), which exists in our cells all the time and allows them to make proteins. The vaccines contain mRNA that triggers cell production of harmless pieces of the distinctive “spike protein” found on the surface of the COVID-19 virus. Once a person’s cells have made spike proteins, those cells react by creating antibodies to immediately recognize and destroy any COVID-19 virus they confront. mRNA vaccines do not change a person’s DNA, nor do they—unlike some other common vaccines—contain live virus. This technique has been so effective at combatting COVID-19 that other mRNA vaccines are already in development to treat other serious illnesses, including multiple sclerosis.

It is normal to experience mild side effects after vaccination. These side effects do not mean the patient has been infected or is ill, but only show that the vaccine is triggering the intended immune system response and is therefore working the way it is supposed to work. It is not possible to be infected by the vaccine.

The most common side effect of the COVID-19 vaccine is soreness at the injection site, but many patients also report fevers, headaches, tiredness, muscle pain, joint pain, or chills. To ensure that a person does not experience unusual side effects, patients should be monitored for 20 minutes after they receive the vaccine; no one has experienced severe side effects more than 20 minutes after receiving the vaccine.

Studies have not yet demonstrated significant differences in efficacy between the two vaccines currently in use, nor are medical professionals recommending one over another. There are ongoing studies to determine whether people will need to be vaccinated regularly, as is necessary with the flu shot, but scientists estimate that the approved COVID-19 vaccines will provide months and potentially more than a year of protection.

Studies are also ongoing as to whether vaccinated people can transmit the coronavirus, and people have been advised to continue social distancing and mask-wearing after vaccination until there is more research. It is, however, certain that the vaccine will reduce the number of people who develop COVID-19 and thus increase hospital capacity to treat sick patients.

Vaccine Prioritization

Though efforts are underway to increase vaccine production and distribution, there are currently a limited number of doses available. As a result, officials have developed prioritization plans for each state.

The first person to be vaccinated in the United States was a Black nurse in Queens who has been working with COVID-19 patients throughout the pandemic and had seen firsthand that people of color are dying at higher rates. Doctors and nurses, including Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, began receiving vaccinations in mid-December and many elected officials, including President Biden, Vice Presidents Harris and Pence, and members of Congress, have been vaccinated.

Other people around the world have received the vaccine because they are elderly and at greater risk of severe symptoms, including Queen Elizabeth, Martha Stewart, and Hank Aaron. (Charles Barkley has been advocating for NBA and NFL players to receive vaccine priority, especially NFL players in advance of the Super Bowl.) In addition to healthcare workers, officials also identified other essential workers like teachers, immunocompromised people, and people living in congregate care settings as priority groups, but with varying orders of prioritization among states. People who are not yet eligible are clamoring to get the vaccine; they are flooding their doctors’ offices with phone calls, lining up in grocery stores for hours in hopes of getting an extra dose, and trying to sneak into vaccination sites intended for medical staff.

We, along with hundreds of experts in medical ethics, epidemiology, and public health, called on the Centers for Disease Control and Prevention’s (CDC) Advisory Committee to prioritize incarcerated populations and correctional staff to receive the COVID-19 vaccine. Our recommendations are based on the increased risk of COVID-19 exposure people face in prison settings. A few states have begun vaccinating people living or working in prisons, but these efforts are going too slowly, and some states still have not made plans to begin vaccinating people in prisons and jails, who will receive the same vaccines being distributed in the community. We at UCLA Law, along with other advocates, will continue to push state governments to expedite vaccination programs for those behind bars.

Vaccine Concerns

It is common to have questions about the COVID-19 vaccine, and vaccines generally. Vaccines provide patients with the immunity that people typically develop after experiencing a disease, saving countless lives in the process. Doctors have been using various methods of creating this immunity for hundreds of years on almost every continent.

The first vaccine was developed in England over 200 years ago to ward off smallpox. The advent of vaccines has transformed human health worldwide, turning deadly pandemics from frequent occurrences into once-in-a-century events and dramatically increasing life expectancies. Patients have had concerns about vaccine safety since the first vaccine, and scientists have developed rigorous testing protocols to ensure that vaccines are safe and that any side effects are limited and well understood before vaccinations are publicly offered. Today, the FDA approves and monitors all vaccines administered in the United States, using some of the most rigorous standards in the world.

Many faith leaders are encouraging people to get vaccinated because doing so is in line with religious values. None of the COVID-19 vaccines that have been approved or are in development contain pork or any other animal products, nor were any such products used in vaccine development. Indeed, many Islamic and Jewish leaders around the country and the world have recommended vaccination. Pope Francis, the leader of the Catholic Church, has already been vaccinated, stating that everyone has an ethical obligation to be vaccinated against COVID-19 to prevent themselves from inadvertently giving the virus to others.

The CDC has advised that people with underlying medical conditions or suppressed immune systems can safely receive the vaccine, but that anyone who has had a severe allergic reaction to a vaccine in the past should first consult their doctor. According to the CDC, getting the vaccine if you are pregnant is a personal choice; there is no reason to believe that it will be harmful to pregnant people or their fetuses, but more data is required. Pregnant people were not included in vaccine trials, but a small number of people did become pregnant during their participation in the trial, and none reported adverse effects.

There is no denying the history of unethical medical experimentation and testing on incarcerated people and people of color without their informed consent. For example, people incarcerated at Holmesburg Prison in Philadelphia between 1951 and 1974 were exposed to microwave radiation, sulfuric acid, and carbonic acid, underwent surgery to remove sweat glands or to have parts of cadavers stitched to their body, and were infected with the flu variants in the name of scientific research.

We strongly condemn this practice and firmly believe incarcerated people should not be subjected to research without their informed and voluntary consent. It is valid to be concerned about whether the vaccines were tested on incarcerated people or if there has been sufficient testing before vaccines are made available to incarcerated people. But in this case, none of the COVID-19 vaccines were tested on incarcerated people. Each vaccine trial involved people across racial and ethnic groups and found no variation in efficacy or side effects among the groups. A diverse group of scientists was involved in vaccine development. The lead scientist on the Moderna vaccine was a Black woman; the married couple that founded and leads BioNTech, which developed the vaccine in conjunction with Pfizer, is Muslim.

Right to Give Informed Consent

Incarcerated people have a right to give informed consent before receiving medical treatment, meaning that they have a “right to such information as is reasonably necessary to make an informed decision to accept or reject proposed treatment, as well as a reasonable explanation of the viable alternative treatments that can be made available in a prison setting.” Prison and jail policies and accreditation standards generally recognize the right to refuse unwanted treatment, but may have exceptions for certain situations in which treatment is very important to protect public health. For example, because tuberculosis is highly infectious, many facilities require that incarcerated people undergo testing and, if they test positive, to accept treatment or else be placed in isolation.

Although states have the power to require people who are not incarcerated to receive vaccines during public health emergencies, they are currently encouraging but not requiring people outside carceral institutions to receive the COVID-19 vaccine. We are presently unaware of any prison or jail that plans to require incarcerated people to receive the vaccine.

If this does occur and a person challenges the decision, courts may conclude that although the “forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty,” the policy of mandatory vaccination reasonably relates to a legitimate penological interest in “preventing the spread of . . . a highly contagious and deadly disease,” and is therefore constitutional.  Although a higher standard (“strict scrutiny”) would likely apply to a claim that vaccination violated the religion of an incarcerated person, a court might similarly conclude that the prison or jail has a sufficiently compelling interest in preventing an outbreak to justify mandatory vaccination.

Over the past year, the burdens of the pandemic have fallen disproportionately on incarcerated people, many of whom lack the space to socially distance and have failed to receive appropriate medical care when they have fallen ill. There is every reason to expect that vaccination will lessen these burdens and hardships. Widespread vaccination will bring facilities closer to normalcy, including resumed programming, visitation with loved ones, and freedom of movement. With each person that is vaccinated, we all become safer and move together toward the end of the pandemic. Although we at UCLA Law are able to socially distance by working from home, we all intend to get vaccinated as soon as we are offered the vaccine, to protect ourselves and others.

If you would like more information, a number of organizations have prepared fact sheets and FAQs for incarcerated people and their loved ones, including AMEND at the University of California, San Francisco (https://amend.us/wp-content/uploads/2021/01/COVID-Vaccine-FAQ-for-Correctional-Residents-Amend.pdf) and Families for Justice as Healing in Massachusetts (https://justiceashealing.org). 

Maya Chaudhuri is a third-year student at the UCLA School of Law. Sharon Dolovich is Professor of Law at the UCLA School of Law and Director of the UCLA COVID-19 Behind Bars Data Project. Aaron Littman is a Binder Clinical Teaching Fellow at the UCLA School of Law and Deputy Director of the UCLA COVID-19 Behind Bars Data Project.

End Notes:

1 Carolyn Y. Johnson, A gamble pays off in ‘spectacular success’: How the leading coronavirus vaccines made it to the finish line, Washington Post (Dec. 6, 2020), https://www.washingtonpost.com/health/2020/12/06/covid-vaccine-messenger-rna/.

2 Noah Weiland et al., Moderna Vaccine Is Highly Protective Against Covid-19, the F.D.A. Finds, New York Times (Dec. 15, 2020), https://www.nytimes.com/2020/12/15/health/covid-moderna-vaccine.html.

3 Ltr. from Leonard Rubenstein et al. to CDC Advisory Committee on Immunization Practices, et al. (Dec. 17, 2020), available at https://docs.google.com/document/d/1Rlz5lCDHLCJ4Pnhl0mdNl3VeRSuBu8QWblRtjXu6zN0.

4 Basit Mahmood, Fact Check: Is Pfizer COVID-19 Vaccine Not Halal, as Viral Video Claims? Newsweek (Dec. 18, 2020), https://www.newsweek.com/fact-check-pfizer-covid-19-vaccine-halal-1555998; Victoria Milko, Concern among Muslims over halal status of COVID-19 vaccine, AP (Dec. 19, 2020), https://apnews.com/article/immunizations-jakarta-indonesia-coronavirus-pandemic-china-fca994ba765735d277f736d9badb397c.

5 Pope Frances to have COVID-19 vaccine, says it is the ethical choice for all, Reuters (Jan. 9, 2021), https://www.reuters.com/article/us-health-coronavirus-pope/pope-francis-to-have-covid-19-vaccine-says-it-is-the-ethical-choice-for-all-idUSKBN29E0LY.

6 Allen Hornblum, Acres of Skin (1998).

7 Camila Strassle, Covid-19 Vaccine Trials and Incarcerated People—The Ethics of Inclusion, N. Engl. J. Med. (Nov. 12, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2025955.

8 White v. Napoleon, 897 F.2d 103, 113–14 (3d Cir. 1990).

9 See Jacobson v. Massachusetts, 197 U.S. 11, 25–39 (1905).

10 Washington v. Harper, 494 U.S. 210, 229 (1990).

11 Turner v. Safley, 482 U.S. 78 (1987).

12 McCormick v. Slate, 105 F.3d 1059, 1061-62 (5th Cir. 1997).

13 See Jolly v. Coughlin, 76 F.3d 468, 474-80 (2d Cir. 1996); see also Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.

14 See, e.g., Karolis v. New Jersey Dep’t of Corr., 935 F. Supp. 523, 527-28 (D.N.J. 1996).

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