COVID-19 Vaccine as Condition of Probation

Some judges in Ohio are getting creative with probation: Obtain the Covid-19 vaccine or go to prison. Is this legal? Could it happen in Michigan?

Several judges in Ohio have ordered defendants to obtain the Covid vaccine as a condition of probation. (Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases,  At least two of the cases involved drug convictions. One judge explained that “the vaccine’s a lot safer than fentanyl, which is what you had in your pocket.” The second judge reasoned that, under Ohio law, probation conditions must be reasonable and should focus on rehabilitation and protection of the community. According to this judge, the vaccine protects others and keeps those on probation safe as they search for and work at jobs.

A representative of the American Civil Liberties Union of Ohio could find no “clear cut” violation of civil liberties but noted there are often legitimate concerns when it comes to bodily autonomy.

It’s too soon to tell how the Ohio appellate courts will respond, although a recent decision of the Ohio Supreme Court provides some limited guidance. Reviewing a community control (i.e., probation) condition that required an offender convicted of failing to pay child support to make all reasonable efforts to avoid procreating during the period of supervision, the Court looked to whether the condition advanced the interests of justice, promoted rehabilitation, and insured good behavior. The Court concluded that the condition was not reasonably related to the goals of probation and unnecessarily impinged on personal liberties. State v Chapman, 163 St. 3d 290 (Ohio, 2020).

Could compulsory vaccination for probationers become the trend in Michigan? Trial judges have discretion to impose “other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.” MCL 771.3(3). Probation conditions must be pertinent to the offense and relevant to the offender’s rehabilitation. Detroit v Del Rio, 10 Mich App 617, 620 (1968). Put another way, probation conditions should be guided by factors “lawfully and logically related to the defendant’s rehabilitation,” People v Johnson, 210 Mich App 630, 634 (1995), and demonstrate “a rational relationship between the restriction and rehabilitation[,]” People v Miller, 182 Mich App 711, 713 (1990).

If rehabilitation is the primary goal of probation, a judge may be hard-pressed to explain how a compulsory vaccination condition aids in the offender’s rehabilitation. The vaccine may be helpful for employment purposes, but most employers have not instituted a vaccine mandate. The vaccine may promote the probationer’s continued good health, but the same could be said of a condition that defendant not smoke cigarettes or cigars.

Yet there may be an additional goal of probation: protecting society. One of the articulated principles of sentencing is protection of society. People v Snow, 386 Mich 586, 592 (1972). There are several reported instances where probation conditions have been imposed (and upheld) for the protection of others. See e.g., People v Graber, 128 Mich App 185 (1983) (upholding probation condition that defendant not associate with wife without permission, intended as protection for wife); People v Dickens, 144 Mich App 49 (1985) (upholding condition that defendant not drive in a drunk driving case). See also MCL 771.3(1)(a) (mandatory condition of all probation orders that defendant not violate any criminal laws).

If protection of others is a legitimate goal of probation, a compulsory vaccination requirement may withstand legal scrutiny. Public safety has justified vaccination requirements for adults in a non-probation setting for more than a century. See Jacobson v Massachusetts, 197 US 11, 29 (1905) (upholding smallpox vaccination requirement for adults). As the Jacobson Court explained, personal liberty “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” The Michigan Supreme Court likewise affirmed public school vaccination requirements for students and school staff in People ex rel Hill v Lansing Board of Education, 224 Mich 388 (1923). See also Rogowski v City of Detroit, 374 Mich 408 (1965) (fluoridation of drinking water upheld).

Yet public safety as a justification may have its limits when it comes to probationers and bodily integrity. In People v Gauntlett, 134 Mich App 737 (1983), modified on other grounds 419 Mich 909 (1984), the Court of Appeals struck down a probation condition requiring a sex offender to take Depo-Provera medication to reduce the risk of reoffending. The drug was experimental at the time and had not gained acceptance in the medical community as a safe and reliable medical procedure, let alone one that should be used to treat sex offenders. Moreover, the condition required involuntary medication and there were multiple obstacles in the implementation. In this setting, the Court of Appeals concluded that the condition was unlawful and invalid under MCL 771.3. See also People v Beckett, 349 Mich 476, 488 (1957) (questioning validity of sterilization condition of probation).

Probationers may retain some interest in bodily integrity and personal autonomy, but that interest may be a narrow one. Many probationers are already subject to mandatory urinalysis, People v Roth, 154 Mich App 257, 258-259 (1986) (upholding urinalysis as a condition of probation), and many offenders must provide DNA samples upon conviction. MCL 28.176. Moreover, probationers have a lesser expectation of privacy when it comes to Fourth Amendment rights and must submit to a warrantless search of the home when a probation condition and reasonable suspicion support the request. United States v Knights, 534 US 112 (2001).

On balance, it’s difficult to predict how the Michigan courts would view compulsory vaccination of probationers. It may be telling, however, that Michigan prisoners do not currently face a vaccine mandate. And it may be persuasive that Michigan probation officers are likewise unrestricted at this time. But as the pandemic continues, and should vaccine mandates increase, the calculation may change. The Covid-19 outbreak is “one of the most threatening public-health crises of modern time.” In re Certified Questions, 506 Mich 332, 337 (2020). A trial judge’s frustration with those who are unvaccinated, or a judge’s compassionate desire to protect the probationer, may lead to novel probation conditions and new law.

NOTE: After submitting this column, the author read of two New York judges who ordered the Covid-19 vaccine as a part of a plea bargain (state judge) and as a condition of pretrial release (federal judge).

by Anne Yantus

Anne Yantus is a sentence consultant, working with court-appointed and retained attorneys to promote more favorable sentencing outcomes.  Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office.  Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC.  Anne welcomes your Michigan felony sentencing questions and is happy to arrange a no-cost consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds.