Two judges issue two very different orders regarding COVID vaccine mandates for California prison guards.
San Quentin State Prison was the site of a deadly inmate COVID outbreak in 2020. Jesstess87 / Wikimedia Commons C.C. 4.0 Share-Alike License
UPDATE: At a hearing on Friday, Oct. 22, Kern County Superior Court Judge Bernard Barmann reversed course, lifting the restraining order he placed on the state a week earlier which prevented a COVID-19 vaccination mandate from being imposed on prison guards, according to a report by the Sacramento Bee.
The state may now continue with the mandate that had originally required all state prison employees to receive a COVID vaccine by Oct. 14, according to the new order by Barmann. The powerful union that represents prison guards, the California Correctional Peace Officers Association (CCPOA), has argued against the vaccine mandate, but Barmann said that with the global pandemic still going on, “something has to give.”
“The court is not in a position to second guess the state as to how to address the pandemic and satisfy their obligations to inmates in their care in our state prison system,” Barmann said on Friday, as quoted by the Bee.
California Gov. Gavin Newsom has established himself as a leader among United States governors when it comes to setting COVID-19 vaccination mandates. In July, California became the first state to require state employees as well as health care workers to be vaccinated against the disease (or to regularly get COVID tests). In October the state also became the first to require vaccinations for school children.
So why is Newsom now going to court to oppose vaccine mandates for one specific group of state employees?
The situation is confusing for a number of reasons, the first being a pair of judges’ decisions that appear to directly contradict each other—one at the state level blocking a vaccine mandate for that group, and another by a federal judge ordering the state to require COVID vaccinations for the same group of public employees.
The public employees in question are California prison guards, members of the politically powerful California Correctional Peace Officers Association (CCPOA), a union that poured $1.75 million into Newsom’s ultimately successful effort to fight a recall attempt in 2021.
In August, the state’s Department of Public Health issued an order for all prison employees including correctional officers to be vaccinated against COVID-19 by Oct. 14. Just a few weeks earlier, Newsom announced his order for health care workers to be vaccinated, but the new order from the state public health department extended that mandate to prison workers who may be exposed to the SARS CoV-2 virus that causes COVID, even if they did not work in prison health facilities.
According to California Department of Corrections and Rehabilitation data as of Oct. 14, 44 prison staff employees had died of COVID-19 statewide. Out of more than 54,000 cases of inmates testing positive for the virus, 241 ended in death. The California Institution for Men in Chino, San Bernardino County, was hit the hardest with 30 inmate deaths. San Quentin State Prison in Marin County was second at 28 inmates deceased from COVID.
On the day set to be the deadline for full vaccination, Kern County Superior Court Judge Bernard Barmann—who was appointed to the bench by Newsom in 2020—slapped the state with a temporary restraining order, stopping enforcement of the mandate.
Judge Barmann's order came in a lawsuit brought by seven correctional workers, six of whom said that because they had previously contracted COVID-19, they believed that they were now naturally immune to the virus, and that being mandated to receive the vaccine would violate their “bodily autonomy and integrity.”
According to research data, “natural” immunity from previous COVID infections is simply not as good as immunity from vaccination, and in more than one of three cases infection produces no immunity at all, according to a Centers for Disease Control and Prevention study. Natural immunity by itself is less than half as protective as natural immunity supplemented by vaccination, according to existing data.
The seventh prison employee in the lawsuit claimed that he suffered a stroke nine days after receiving his first dose of the Pzifer COVID vaccine, and therefore did not want to receive a second dose to become “fully” vaccinated.
In rare cases, incidences of ischaemic stroke (the most common kind of stroke, caused by blockage of arteries leading to the brain, as opposed to hemorrhagic stroke, which is caused by bleeding in the brain) have been linked to the mRNA version of the COVID vaccine. However, contracting the COVID virus itself carries a “substantially higher and more prolonged” risk of stroke, according to a peer-reviewed study published by BMJ, the journal of the British Medical Association.
Saying that he did not want to “put somebody in a situation where there’s something that happens to them that truly is irremediable,” Barmann blocked the mandate at least until Oct. 22, when a new hearing is scheduled. The judge’s order applied only to prison employees who are members of the CCPOA. Workers not in the union remain subject to the state mandate.
What remains unclear is how Barmann’s order would be compatible with an order by Federal Judge Jon S. Tigar, of the Northern District of California, issued on Sept. 27. The judge’s order came in response to a 27-page report by federal, court-appointed receiver J. Clark Kelso. In his report, submitted to the court in August, Kelso stated that only 40 percent of California correctional officers were fully vaccinated, a rate “far too low to safeguard the health” of patients in the state prison health care system.
As receiver, Kelso has day-to-day operational control over the state’s correctional department health care system—except for mental and dental health services—as the result of a 20-year-old lawsuit against the state which charged the prison health care system with being so inadequate that it violated inmates’ rights under the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments.”
The state settled the suit in 2002, but four years later a federal judge found that California was not living up to the settlement agreement and placed the correctional health care system under federal receivership. The receiver since 2008, Kelso answers to a federal judge, not the state of California. That judge is Tigar, who as a result has expansive powers to direct the prison health care system’s policies and operations.
Following the San Quentin COVID crisis that killed 28 inmates in 2020, a bipartisan group of state legislators authored a letter to Tigar calling on him to remove Kelso as receiver, alleging that his “reckless actions” and “harmful leadership” led to the deadly outbreak.
Tigar himself called the San Quentin disaster, which resulted from a transfer of infected inmates from Chino to San Quentin, a “significant failure of policy and planning.” But he did not relieve Kelso of his position.
In his August report, Kelso was apparently attempting to get ahead of a possible future outbreak, saying that typical non-medical interventions such as masking and social distancing are unworkable in prison settings, and that vaccination would be the only effective way to safeguard inmate patients from exposure to the COVID virus.
He wrote that the percentage of prison employees who were vaccinated was “alarmingly” low in some state facilities. In High Desert State Prison, for example, a mere 16 percent of corrections officers were vaccinated, Kelso wrote in the report. In six other prisons, that percentage was lower than 30.
Those numbers have gone up since Kelso filed his report. According to data from the state corrections department, published by the San Francisco Chronicle, 61 percent of all prison staff were vaccinated as of Oct. 14, the deadline to get it done under the state’s own mandate, which was blocked on that day by Barmann—data appearing to indicate that the state’s mandate was at least somewhat effective. In the High Desert prison, 35 percent were vaccinated by Oct. 14.
Meanwhile, 77 percent of inmates, more than three of every four, are now vaccinated against COVID-19.
“No one contests” the fact that the main way the virus enters prisons is through infected correctional officers and other staff members, Tigar said in his order.
Kelso commended the efforts of the state to increase the vaccination rate, but said that they ultimately proved not enough for the prison guards, whose union opposes vaccination mandates.
And Newsom, who strongly supports and has ordered mandates affecting millions of Californians, also opposes mandates for correctional officers. His administration filed a notice saying that it planned to appeal Tigar’s order. The judge gave the state’s prison officials two weeks to present him with a plan to put the vaccine mandate in place.
The Department of Corrections and Rehabilitation responded with a plan that would begin disciplinary actions against prison employees who failed to get at least one dose of a vaccine by Nov. 14, 2021.
Why the seemingly contradictory positions by Newsom? In an editorial, the Mercury News said that the difference simply comes down to money. The CCPOA’s $1.73 million donation to Newsom’s recall defense came just a few weeks after the state legislature approved what the Mercury News called “Newsom’s sweetheart deal for the politically powerful prison guard union,” namely, a new contract that would pay prison guards a top salary of more than $100,000 per year starting in 2022—even though the guards were already paid at a rate about 40 percent higher than their “local government counterparts.”
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