“The plaintiffs ignore the harm that their requested injunction would cause incarcerated people.”
On Friday, Oct. 15, US District Court Judge Timothy Hillman denied the Massachusetts Correction Officers Federated Union (MCOFU) a preliminary injunction to prevent Gov. Charlie Baker’s vaccine mandate from applying to them. The mandate allows exceptions from vaccination “due to a medical disability or a sincerely held religious belief.”
“As did the Massachusetts State Troopers in a similar case addressed in Massachusetts state court, plaintiffs frame the public interest too narrowly, by focusing on its members to the exclusion of everyone else,” Judge Hillman wrote in his decision. He acknowledged, “Vaccination benefits not only the person receiving the vaccine, but also others in that person’s community.”
In September, MCOFU sued both Baker and their Department of Correction (DOC) boss, Carol Mici, stating that their contract was violated, the Governor overstepped constitutional boundaries, and their union members had a right to refuse “unwanted medical treatment without having to forfeit their employment security.”
In Thursday’s remote hearing, attended by more than 140 people, Hillman remarked that correction officers’ (COs) efforts to contain the virus have been “heroic but not successful.” Baker’s Executive Order (EO 595) is a “reasonable and appropriate way to advance the significant goal of stopping the spread of COVID-19 in the state prison system,” he wrote.
The vaccination requirements for some 42,000 executive branch employees and 2,000 contractors were set to go into effect on Sunday, Oct. 17. Legal analyst and law professor Daniel Medwed told me, “Litigation will continue perhaps, but I suspect this is a green light to start enforcing.”
Lawyers for MCOFU did not respond to questions about a possible appeal. On MCOFU’s website, the union’s response to Judge Hillman’s ruling includes this statement to the membership: “Firing you is no way to thank vital first responders once hailed as heroes by this same administration.”
Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, emphasized in an email that this is not only about the officers “charged with caring for incarcerated people.” He wrote, “Those behind bars are in an incredibly vulnerable position and throughout the pandemic we have heard horror stories of people who were locked up and getting sick with a highly contagious [virus].”
Much of the discussion from both MCOFU and Baker/Mici attorneys at Thursday’s hearing ignored the health and wellbeing of the more than the 6,150 prisoners in state custody, men and women who come into contact daily with COs. Prisoners’ Legal Services (PLS), along with medical experts who filed an amicus brief opposing the injunction, commented, “The plaintiffs ignore the harm that their requested injunction would cause incarcerated people.”
As we first reported, by mid-February, almost half the COs in Mass had refused the vaccine. The current number of unvaccinated officers disclosed by the MCOFU lawyers in a letter to Judge Hillman is 40%, or 1,411.
“Unvaccinated individuals are at much higher risk of infection, and therefore at much higher risk of transmitting COVID-19 to their contacts both in their homes and communities and in the occupational setting,” Hillman said in his decision. Per the latest report by the special master, an attorney commissioned to fairly assess the carceral/COVID situation in Mass, as of Sept. 15, 2021, there were 766 correctional officers who disclosed contracting COVID.
That means 21.8% of Mass officers have had known COVID cases. Studies have shown that “infection rate among correctional officers drove the infection rate among incarcerated individuals.”
According to the amicus brief, 21 prisoners in Massachusetts have died of COVID, but Tufts University researcher Bridget Conley says the DOC may be undercounting this number, attributing DOC deaths to other causes. At least 2,615 people, or 42% of incarcerated people in Mass state prisons have contracted the virus, per the special master report.
The concern of spread in prisons and in communities where COs live has led to vaccination mandates in state prisons in Colorado, Illinois, Oregon, Washington, Nevada, and New Mexico, and in all federal prisons. In spite of the fact that vaccination rates of prisoners in many states (including Mass) are higher than vaccination rates of officers, guard unions have protested the mandates and gone to court over this issue. In California, litigation is ongoing as a superior court judge there recently granted a request from the state prison guards’ union to block a vaccine mandate that was imminent.
On Oct. 12, Gov. Baker activated 250 members of the National Guard as a “contingency” in case there are staff shortages at the DOC, due to “non-compliance” with the executive order and a reduction in COs across the state. The National Guard is expected to help with “transportation and exterior security functions,” according to a press release from the governor’s office.
On Twitter, there was a letter posted, dated Oct. 14, sent to all executive office employees, directing them to report to work on Oct. 18, and relating that individual departments and managers will “confirm vaccination status” and take steps as needed for “progressive discipline.”
In response to the judge’s decision, Elizabeth Matos, executive director of PLS, said in a telephone interview, “Population density is a major way the virus spreads in facilities. We should be looking at more than vaccination considerations. Getting the infirm and more vulnerable people out should be front and center.”
This article was reported in collaboration with the Boston Institute for Nonprofit Journalism. To see more reporting like this, contribute at givetobinj.org.
Jean Trounstine is a writer, activist, and professor whose latest book is Boy With a Knife: A Story of Murder, Remorse, and a Prisoner’s Fight for Justice. She is on the steering committee of the Coalition for Effective Public Safety.