Opinion
CR-007068-20BX
10-06-2021
The PEOPLE of the State of New York v. D.R., Defendant.
Darcel D. Clark, District Attorney (Samantha Miller of counsel), for plaintiff. The Bronx Defenders (Jill Greco of counsel) for defendant.
Darcel D. Clark, District Attorney (Samantha Miller of counsel), for plaintiff.
The Bronx Defenders (Jill Greco of counsel) for defendant.
Jeffrey M. Zimmerman, J. Can a defendant be required to get vaccinated for Covid as a condition of a conditional discharge? During a court appearance in this case on September 30, 2021, the Court expressed the view that such a condition is permissible and included it as part of the defendant's conditional discharge sentence. The Court writes this opinion to explain its reasoning in more detail.
PROCEDURAL HISTORY
The criminal court complaint alleges that on or about April 22, 2020, while Fire Department emergency medical services professional Laura Karol was treating the defendant, he struck her with a closed fist, causing substantial pain, redness, bruising, soreness and swelling to her left bicep. The defendant was charged with, among other charges, assault on an emergency medical services professional pursuant to PL § 120.08, a Class C felony. He was arraigned in Bronx County Criminal Court on April 23, 2020 and held on $5,000 bail. After a bail review, new bail conditions were set: $2,500 partially secured bond, $1,000 fully secured bond, $500 cash or $500 credit card. The defendant subsequently posted bail on May 8, 2020 and was released.
The case was administratively adjourned several times during the Covid epidemic. During a court appearance on January 12, 2021, the People offered a more lenient plea to the charge of Assault in the Second Degree, PL § 120.05(3), a Class D felony, with a sentence of a conditional discharge. The defendant rejected this offer.
On May 12, 2021, the People sweetened the offer again, giving the defendant the opportunity to plead to the misdemeanor charge of Assault in the Third Degree, PL § 120.00, with a conditional discharge. The defendant was not present in court to consider the offer. After he missed two more court appearances, a bench warrant was issued for his arrest. On August 10, 2021, when the defendant was returned on the warrant, he was again offered the misdemeanor assault plea, which he declined. Three weeks later, on September 30, 2021, the People reduced their offer yet again, this time giving the defendant the opportunity to plead to the non-criminal violation of Disorderly Conduct, PL § 240.20, with a Conditional Discharge. The Court asked the People why the offer had changed from a felonious assault to a violation, and why the People believed the violation was an appropriate offer. They responded that "there was [sic] minimal injuries," that "the defendant has a limited criminal history," and that "the complaining witness was ok with this disposition" (tr at 4). The Court pointed out that the minimal injury and the defendant's record were both known to the People when they were insisting on the felony plea (Id. ). The People's only response was that the victim "became OK with this offer" (tr at 5).
For those readers practicing in other jurisdictions in the State, this "offer keeps getting better" progression might seem unusual. Not so in the Bronx. In the Hall of Justice, prosecutors frequently don't make their "best offer" up front, and the defense bar knows that defendants have a good chance of getting a more generous offer as time goes on. This uniquely inefficient Bronx Tale increases the arraignment-to-disposition time of hundreds of cases that are left to wither and die in the "F" parts like so many un-watered plants, resulting in unnecessary court appearances for defense attorneys, defendants, court staff, judges and the ADA's themselves.
The Court asked the defendant whether he had been vaccinated for Covid, and he responded in the affirmative, although he did not have proof of the vaccine with him (tr at 5, 11). The Court expressed the view that the People's offer was extraordinarily generous, given the nature of the conduct in question (assaulting an emergency medical worker trying to do her job), and that it would therefore accept the plea only if the defendant, as a condition of the conditional discharge, provided proof of his Covid vaccine. While acknowledging that the Court has broad discretion to impose rehabilitative conditions as part of a conditional discharge, defense counsel objected to the vaccine condition, arguing that it "should [not] be a condition on any plea in this courthouse or anywhere" because the defendant "should have the right to choose the vaccine or not" (tr at 6-7). The Court made clear that it was not requiring the defendant to be vaccinated, since he was free to decline the Court's offer and proceed with the case (tr at 6). The Court further explained why it believed the vaccine condition to be rehabilitative, and therefore allowable (tr at 7).
After consulting further with counsel, the defendant decided to plead guilty to the disorderly conduct violation, and was sentenced to a conditional discharge, a condition being that he present proof of Covid vaccination within three months (tr at 11-13).
THE COVID-19 PANDEMIC
The United States is in the throes of the worst pandemic in a century. Over 700,000 people have died (Centers for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker /No.cases_casesper100klast7days [last accessed Oct. 6, 2021]). New York State — and New York City in particular — bore the brunt of the pandemic in its earliest days. To date, over 56,000 New Yorkers have died of Covid; over 34,000 of them lived in New York City, and 6,723 of them were from the Bronx (Worldometer, New York, https://www.worldometers.info/coronavirus/usa/new-york/ [last accessed Oct. 6. 2021]).
The Food and Drug Administration gave emergency approval to three vaccines it found to be both safe and highly effective in preventing serious injury and death from Covid, and gave final approval to one of those vaccines (Pfizer) on August 23, 2021 (Lisa Maragakis & Gabor Kelen, Johns Hopkins Medicine, Full FDA Approval of a COVID-19 Vaccine: What You Should Know , https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/full-fda-approval-of-a-covid-19-vaccine-what-you-should-know). Nevertheless, large swaths of the population remain unvaccinated, for various reasons that are beyond the scope of this opinion. Here in the Bronx, 30% of adults over 18 are not fully vaccinated (Centers for Disease Control and Prevention, COVID-19 Integrated County View, Bronx County, New York, https://covid.cdc.gov/covid-data-tracker/#county-view|New% 20York|36005|Risk|community_transmission_level [last accessed Oct. 6, 2021]). The result has been what epidemiologists have described as a "pandemic of the unvaccinated," in which the overwhelming number of hospitalized individuals are those who have not taken advantage of the vaccine (Berkeley Lovelace Jr., CDC study shows unvaccinated people are 29 times more likely to be hospitalized with Covid , CNBC, Aug. 24, 2021, also available at https://www.cnbc.com/2021/08/24/ cdc-study-shows-unvaccinated-people-are-29-times-more-likely-to-be-hospitalized-with-covid.html). This creates a situation in which the disease can mutate while it is allowed to run rampant in the unvaccinated community, increasing the risk of new strains that are immune to the currently available vaccines (Nicoletta Lanese, Vaccine-resistant coronavirus ‘mutants’ are more likely when transmission is high, new model finds , Live Science, Aug. 6, 2021, also available at https://www.livescience.com/ coronavirus-vaccine-resistance-mutation-model.html). The bottom line is that whether somebody is vaccinated affects not only that individual, but her friends, family, and fellow citizens. We are all, very much, in this together.
The federal, New York State and New York City governments have responded to the current situation with a raft of vaccine mandates designed to stem the transmission and possible mutation of the virus. The federal government has mandated vaccinations for all federal employees and contractors, and for all healthcare workers at hospitals and nursing homes treating Medicare and Medicaid patients (The White House, Remarks by President Biden on Fighting the COVID-19 Pandemic, Sept. 9, 2021, https:// www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/ [last accessed Oct. 6, 2021]). Additionally, all businesses employing more than 100 people are required to ensure that their employees either get vaccinated or regularly tested (Id. ). Closer to home, all New York State healthcare workers must be vaccinated (New York State Governor, Department of Health Issues Section 16 Orders to Hospitals and Long-Term Care Facilities Requiring Policy to Ensure All Employees Are Vaccinated, https://www.governor.ny.gov/ news/ governor-cuomo-announces-covid-19-vaccination-mandate-healthcare-workers [last accessed Oct. 6, 2021]). New York City has mandated vaccinations for all public school teachers (Eliza Shapiro, Educators Will By First N.Y.C. Workers to Face Full Vaccine Mandate , NY Times, Aug. 23, 2021, also available at https://www.nytimes.com/2021/08/23/nyregion/nyc-schools-vaccine-mandate.html), and that all New York City employees and contractors either get vaccinated or be subject to regular Covid testing (Karen Matthews & Jennifer Peltz, NYC to require vaccines or weekly testing for city workers , AP News, July 26, 2021, also available at https://apnews.com/article/government-and-politics-health-coronavirus-pandemic-662b50089c314a8083a1aa0be26549bd). Starting on September 27, all the clerks and court officers in this courthouse are required to have at least one vaccination before reporting to work, unless they demonstrate a sincerely held religious belief or medical condition that prevents them from getting the vaccine (Ryan Tarinelli, NYS Court System Sets Date for Mandatory Vaccination Requirement for Judges, Court Employees , NYLJ, Aug. 26, 2021, also available at https:// www.law.com/ newyorklawjournal/ 2021/ 08/ 26/nys-court-system-sets-date-for-mandatory-vaccination-requirement-for-judges-court-employees/). Outside of the employment context, New York City has mandated that people be vaccinated in order to partake in much of what makes New York City special: theater, movies, restaurants and nightclubs, sports arenas, museums and other entertainment (NYC Health, Vaccination Proof for Indoor Activities (Key to NYC), https:// www1.nyc.gov/ site/ doh/ covid/ covid-19-vaccines-keytonyc.page [last accessed Oct. 6, 2021]). In short, vaccine mandates are the "new normal" in New York City.
These employment mandates have proven remarkably successful. For example, as of the deadline for school employees to be vaccinated, 99% of school principals and 96% of teachers have had at least one shot (Eliza Shapiro, N.Y.C. School's Vaccine Mandate Is in Place. 96% of Teachers Got a Shot , NY Times, Oct. 4, 2021, also available at https://www.nytimes.com/ 2021/10/04/nyregion/vaccine-mandate-teachers-nyc.html).
LEGAL DISCUSSION
Our analysis begins, as usual, with the relevant statute. PL § 65.10 sets forth the criteria for what sorts of conditions can be imposed in connection with both probation and a conditional discharge. In general, a court can impose conditions that "the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so" (PL § 65.10[1]). In particular, a court is permitted, among other conditions, to require a defendant to "[u]ndergo available medical or psychiatric treatment" (PL § 65.10[2][d]), perform a broad range of community service, including, but not limited to, graffiti removal and grave digging (PL § 65.10[2][h]), or "[s]atisfy any other conditions reasonably related to his rehabilitation" (PL § 65.10[2][l]).
The leading case interpreting the scope of Section 65.10 is People v. Letterlough, in which the Court of Appeals considered whether a sentencing court could, as a condition of probation, require a defendant convicted of driving while intoxicated to affix to the license plate of any vehicle he drove "a fluorescent sign stating ‘CONVICTED DWI’ " ( 86 N.Y.2d 259, 261, 631 N.Y.S.2d 105, 655 N.E.2d 146 [1995] ). The sentencing court indicated that its purpose in mandating this condition was to "warn the public" of the defendant's status as a convicted drunk driver ( Id. at 262, 631 N.Y.S.2d 105, 655 N.E.2d 146 ). The Court of Appeals found this condition to be improper because the conditions allowed by Section 65.10 must serve rehabilitative functions, rather than punitive or deterrent ones. The sentencing court's "true design was not to advance the defendant's rehabilitation, but rather to ‘warn the public’ of the threat presented by his presence behind the wheel," and the sentencing court "in large part intended to punish defendant ..." ( Id. at 266, 631 N.Y.S.2d 105, 655 N.E.2d 146 ). The Court further found that the punitive and deterrent nature of the "scarlet letter" condition "overshadows any possible rehabilitative potential that it may generate," and that the public shaming ordered by the sentencing court "may even negate any positive effect derived from the imposition of other therapeutic conditions ..." ( Id. ). The Court also noted that while conditions placed on a defendant pursuant to Section 65.10 may have "incidental punitive and deterrent effects," the primary purpose must be rehabilitative ( Id. at 265-265, 631 N.Y.S.2d 105, 655 N.E.2d 146 ).
While Letterlough dealt with conditions of probation, rather than a conditional discharge, the governing statute and attendant legal issues are identical.
Unlike the public shaming at issue in Letterlough , the vaccine condition in the instant case was intended to be primarily rehabilitative. The defendant was charged with assaulting an EMS worker, thus placing his own interests and aggressions above those of public safety employees and society as a whole. As this Court made clear at sentencing, by mandating proof of vaccination, it was giving the defendant the opportunity to engage in an activity that would do exactly the opposite, allowing him to experience the sense of community and well-being that comes with doing something that benefits others (tr at 7). There is absolutely nothing punitive about the condition, since the vaccine has been demonstrated to be safe and effective by the FDA, and by the real-life trial of hundreds of millions of doses administered around the world.
It goes without saying that the Court would not have imposed this condition had the defendant pointed to any medical conditions he had that made the vaccine unsafe for him. He did not do so.
At the plea and sentencing hearing, defense counsel objected to the vaccine condition on the grounds that the defendant "should have the right to choose the vaccine or not" (tr at 6). First, the Court notes that this choice was not taken away from the defendant: if he did not want to present proof of vaccination, he could have simply declined the Court's offer and proceeded to trial. Defendants are required to make many difficult choices during the course of a criminal case, and this particular choice is no different than ones being made by New Yorkers every day — from the extremely consequential to the mundane -- in the face of the various vaccine mandates discussed above. Do I want to be vaccinated, or give up my job as a teacher? Do I want to be vaccinated, or give up my generous court officer's pension? Do I want to be vaccinated, or not go out to dinner and the movies?
Second, while defense counsel is correct that the defendant has the right to choose whether to be vaccinated or not, many philosophers and religious leaders have concluded that citizens have a moral and ethical duty to vaccinate themselves. University of Chicago ethicist Laurie Zoloth, for example, argues that "vaccines ... are a perfect instantiation of the ethics of responsibility," and that vaccines are "part of our ethical duty to one another" (Max Witynski, Ethicist Laurie Zoloth says it's our duty to get a COVID-19 vaccine and wear masks , UChicago Times, Jan. 26, 2021, also available at https://news.uchicago.edu/story/your-neighbor-your-kin-how-putting-others-first-can-help-us-get-through-pandemic). According to Zoloth,
Social solidarity is the most precious tenet of our democracy ... [i]t begins with the notion that you should care about others, even strangers. And the idea that you should love your neighbor as profoundly as you love yourself — even placing their concerns and needs ahead of your own — is the great moral lesson and the core of justice in many religions.
(id. ). Similarly, Pope Francis has argued that "morally everyone must take the vaccine" (Joshua McElwee, Pope Francis suggests people have moral obligation to take coronavirus vaccine , National Catholic Reporter, Jan. 11, 2021, also available at https://www.ncronline.org/news/vatican/pope-francis-suggests-people-have-moral-obligation-take-coronavirus-vaccine). Encouraging a defendant, as a condition of his conditional discharge, to become part of this human covenant is fundamentally rehabilitative.
This Court is mindful that the vaccine condition benefits others beside the defendant, and therefore may accomplish goals in addition to the primary purpose of rehabilitation. However, these ancillary benefits do not render the sentence invalid (see e.g. People v. McNair , 87 N.Y.2d 772, 775, 642 N.Y.S.2d 597, 665 N.E.2d 167 [1996] ["[A] condition of probation that is fundamentally rehabilitative will be upheld notwithstanding incidental punitive or deterrent effects"]). Moreover, the Court is under no illusions that it can end the pandemic by vaccinating the Bronx one defendant at a time; clearly, this benefit is secondary to the primary rehabilitative purpose of the condition. Indeed, some ethicists who have found a moral obligation to vaccinate have reached this conclusion despite the acknowledged fact that "any single vaccination does not make a significant difference to vaccination coverage rates" (Alberto Giubilini, Thomas Douglas & Julian Savulescu, The moral obligation to be vaccinated: utilitarianism, contractualism, and collective easy rescue , Medicine, Health Care and Philosophy 21, 547-560 [Feb. 10, 2018], also available at https://link.springer.com/article/10.1007% 2Fs11019-018-9829-y). The vaccine condition is about rehabilitation, not solving the world's problems.
This Court has made the vaccine condition available to several other defendants over the last few months, leading to much discussion in our courthouse as well as in the press (see e.g. Jonah Bromwich, 2 New York Judges Ordered Defendants to Get Vaccinated. Can They Do That? , NY Times, Aug. 23, 2021, also available at https://www.nytimes.com/2021/08/23/nyregion/covid-vaccine-judge-order.htm). It is appropriate, therefore, to address some other concerns that have been voiced about the condition, even though they were not necessarily raised by the defendant's counsel in this case.
The Nexus Argument — Some have taken issue with the vaccine condition on the grounds that it is not sufficiently "related" to the crime with which the defendant is charged. However, such a direct relationship is not required by the Penal Law; the only "nexus" required by the statute is a connection between the condition and rehabilitation (see PL § 65.10[2][l] [allowing the imposition of "any other conditions reasonably related to ... rehabilitation"]). Significantly, the legislature knew how to create a more particular sentencing nexus when it wanted to: defendants convicted of graffiti-related crimes are required to participate in a graffiti removal program as a condition of their conditional discharge, and defendants convicted of cemetery desecration must perform community service in a graveyard if sentenced to a conditional discharge (PL §§ 60.28, 60.29). There are no similar requirements in Section 65.10 that defendants convicted of any other crimes have conditions imposed that are more directly related to their offenses. Furthermore, except for graffiti and cemetery desecration offenses, the "Community Service Standards" promulgated by the State's Division of Criminal Justice Services, which lay out detailed guidelines for such programs, make no mention whatsoever of a required connection between the offense and the type of community service ordered (New York State Division of Criminal Justice Services, Community Service Standards, https://www.criminaljustice.ny.gov/ opca/ community servicestandards. htm [last accessed Oct. 6, 2021]).
Indeed, if there were a requirement that rehabilitative conditions be directly related to the substance of the crime, then dozens of sentences handed down every week in the Bronx would be illegal. While defendants are often sentenced to programs that have some relationship to the crimes with which they were charged — anger management programs for assault cases, narcotics treatment for drug convictions — countless other defendants charged with crimes ranging from petit larceny to disorderly conduct to criminal mischief are all sentenced to the same catch-all "community service" as a condition of their conditional discharge. In the Bronx, this usually means one thing: picking up garbage. There's nothing wrong with this as a rehabilitative condition: it is clearly a "giving back" exercise designed to reintegrate the defendant into society. But it generally has no subject-matter "nexus" at all with the crime the defendant committed. If demonstrating one's commitment to his or her fellow citizens by getting vaccinated during a once-in-a-century pandemic is not an allowable condition because it lacks a nexus with the crime charged, then picking up trash for a few hours in the urine-scented Grand Concourse underpass on East 161st Street undoubtedly suffers from the same infirmity.
Even though there is no "nexus" requirement in the statute — or in practice in the Bronx — and the vaccine condition would be allowable without one, in the instant case, there actually is a direct connection between the rehabilitation condition and the alleged crime. This defendant was accused of punching an EMS worker. Healthcare workers have been on the frontlines of this pandemic for over 18 months now; although the daily 7 p.m. din of pots and pans banged in appreciation of doctors, nurses and first responders while ambulance sirens blared through empty streets is now largely a memory (All Things Considered, Every Night, New York City Salutes Its Health Care Workers , NPR, April 10, 2020, https://www.npr.org/2020/04/10/832131816/every-night-new-york-city-salutes-its-health-care-workers [last accessed Oct. 6, 2021]), what it commemorated was — and is — very real. By agreeing to a vaccine condition, the defendant is demonstrating his appreciation for the very worker he slugged, and for all healthcare workers and first responders who continue to put their own health on the line as they treat Covid patients.
"This is a medical decision" — Others have argued that medical treatment of this nature is an inappropriate condition of a conditional discharge, since the vaccine is intrusive and invasive. This argument ignores the language of the relevant statute, as well as the relevant science.
First, PL § 65.10(2)(d) specifically allows a court to require "available medical or psychiatric treatment" as a condition of a conditional discharge. It is telling that the subsection refers to medical or psychiatric treatment, thereby clearly contemplating the inclusion of medical treatment other than psychotherapy.
Second — and sometimes the most colloquial way of saying something is the most effective — the Covid vaccine just isn't a big deal. It is extremely unfortunate that the science of vaccination has been coopted by the politics of the moment. The oft-misinformed reasons people have for not wanting to get vaccinated need not be addressed in this opinion, because this Court deals in fact, not fiction. The facts are that FDA-approved vaccines are not intrusive medical procedures at all, but routine facets of American life. Children enrolling in pre-K in New York City are required to have no fewer than eight different vaccinations (Letter from Medical Director, NYC Department of Health and Mental Hygiene, June, 2021, https://www.schools.nyc.gov/docs/default-source/default-document-library/immunization-requirements-letter-and-chart [last accessed Oct. 6, 2021]), each of which was approved by the FDA under the same procedures and processes as the Pfizer Covid vaccine. Furthermore, although in this Court's experience psychotherapy and counseling are more frequently mandated as conditions of a conditional discharge than medical treatment, being required to divulge one's innermost truths to a stranger is no more intrusive than a vaccine that has been proven safe and effective, hundreds of millions of doses of which have been administered "under the most intense safety monitoring in U.S. history" (Centers for Disease Control and Prevention, Safety of COVID-19 Vaccines, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/safety-of-vaccines.html [last accessed Oct. 6, 2021]).
"The court is making policy decisions on its own" — It is true that courts should not impose conditions pursuant to PL Section 65.10 that would involve "difficult policy choices ... and the need for uniform State-wide standards," as that would invade the province of the legislature ( McNair, 87 N.Y.2d at 774, 642 N.Y.S.2d 597, 665 N.E.2d 167 ). However, the vaccine condition breaks no new policy ground. New York's governor and New York City's mayor, using powers delegated to them by their respective legislatures, have imposed all nature of vaccine mandates. In New York City, if you want to work for a City agency, teach in its schools, work in its hospitals or for its police force, eat in its restaurants, go to its movies, or work out in its gyms, you need to be vaccinated. Vaccine mandates are, in simple terms, already the law of the land, and this Court is in no way "out in front" of the legislature in imposing a condition that is becoming more commonplace with each passing day.
The "Parade of Horribles" — Does this mean that judges can require defendants convicted of sex crimes to undergo forced chemical sterilization or participate in dangerous medical experiments? Of course not. For one thing, there is no policy consensus — unlike with the Covid vaccine — that these are acceptable burdens for the government to impose. More important, though, those are not the conditions that this Court is offering. This Court offered the defendant the opportunity to participate as a contributing member of society by taking a vaccine that has been proven to be safe and effective, during a unique period in our history when coming together as a society to fight a common medical enemy, in the face of an unprecedented level of political factionalism and division, is perhaps the most important civic duty we can perform. This is not "horrible;" rather, in the words of Pope Francis, it's "an act of love" (The Associated Press, In A Message To Americans, Pope Francis Says Getting Vaccinated Is ‘An Act of Love’ , NPR, Aug. 18, 2021 https://www.npr.org/sections/coronavirus-live-updates/2021/08/18/1028740057/in-a-message-to-americans-pope-francis-says-getting-vaccinated-is-an-act-of-love). It is difficult to see how this particular "act of love" is not rehabilitative.
This constitutes the decision and order of this Court.