This is certainly creative . . . as judicial legislating often is: On Tuesday, a federal judge in Manhattan (the Southern District of New York, SDNY) ordered that a defendant who is unvaccinated against COVID-19 may not be released on bail unless she submits to vaccination.
A couple of weeks ago, with Charlie sitting in for Rich in the anchor chair for our TMR podcast, we had a great discussion of federal bail law in the context of the Capitol riot cases. As I observed at the time, the Reagan-era Congress, at a time of rampant crime, controversially supplemented the law of pretrial release.
Until then, the two pillars of bail were that (a) it could not be excessive (it is a common misconception that the Constitution safeguards a “right to bail”; the Eighth Amendment merely says that, in cases where bail is appropriate, it may not be “excessive”); and (b) it could be denied based on a prohibitive risk of flight (i.e., when the likelihood that a defendant will abscond is unacceptably high due to, e.g., the nature of the crime, the accused’s history of fleeing, or the accused’s lack of ties to the jurisdiction and/or access to wealth that would enable flight).
The 1984 Bail Reform Act added a new ground for denying bail, danger to the community. Pretrial release could be denied if the court found that there was no combination of conditions that could assure the safety of any person or the community at large if the person were released. This was controversial because it theoretically undermines the presumption of innocence: If a person is detained because the allegations against him show a propensity to commit (particularly) violent crimes and/or to intimidate witnesses or jurors, it implies that the court has concluded that the allegations are true, even though they have not yet been proved beyond a reasonable doubt at trial.
Nevertheless, the Supreme Court upheld the Bail Reform Act, and in the ensuing 30-plus years, pretrial release has routinely been denied on danger-to-the-community grounds. In fact, the act now sets forth (in §3142(f)(1)) a rebuttable presumption that, for certain charged crimes (mainly violent crimes, especially those for which the death penalty or life-imprisonment sentences are possible), there is no set of conditions that will reasonably assure community safety.
That is about as close to a presumption of guilt as it gets in our law. But for present purposes, note that the presumption, and the concept of dangerousness as a rationale for pretrial detention, springs from what is to be inferred from thecriminal behavior charged.
Some of us may have objections about the propriety of denying bail based on unconvicted criminal behavior (I would not presume to speak for Charlie, but I imagine he would be more uncomfortable with this concept than I am). But few would doubt that, when it addressed dangerous behavior that could justify pretrial detention in the Bail Reform Act, Congress was talking about criminal behavior — usually violent, and usually arising out of the charge that triggers the issue of bail.
Judge Jed Rakoff, however, concludes that “danger to the community” includes lawful behavior — specifically, refusing to be vaccinated against COVID-19 — that is utterly unrelated to the crime being prosecuted (or, indeed, to any criminal behavior in which the accused may ever have engaged).
I do not see how this ruling can stand. And I say that as someone who believes people should get vaccinated, and that the courts will be deferential to state and federal officials who issue vaccine mandates (as they have been to this point).
First, courts will be deferential when mandates are imposed by the departments of government that have the authority to impose them — legislatures, or executives who are acting pursuant to clear legislative authority. It is not for the courts themselves to usurp this legislative authority under the guise of interpreting statutes that have nothing to do with promoting public health and furthering the government’s compelling interest in preventing the spread of infectious disease.
The Bail Reform Act addresses dangerousness to the community in the narrow, specialized context of people charged with crimes. It focuses on whether their alleged criminal conduct could pose a continuing danger to particular people (e.g., witnesses and jurors), or to the overall community (the way a person arrested or indicted on probable-cause evidence of being, say, a terrorist, an arsonist, or an organized-crime member could continue imperiling the public while his trial is pending). The act did not empower judges to detain based on legal conduct that the judges find unacceptably risky: Courts do not deny bail to smokers on the ground that secondhand smoke is dangerous to the community.
It is true that bail conditions frequently direct that defendants refrain from alcohol consumption (which is legal) and illegal drug use. But those conditions are rationally related to criminal conduct. A person with a propensity to commit violent acts is more likely to commit them if intoxicated. But a person’s status as either vaccinated or unvaccinated against an infectious disease has no nexus to the likelihood that the person will endanger the community by engaging in criminal acts.
Notwithstanding my assumption that courts will give legislatures a wide berth, I am skeptical that they would uphold even a congressional statute singling out charged defendants for a COVID vaccine mandate as a condition precedent to bail.
I believe if Congress required everyone to get vaccinated, such a law would likely be upheld — provided that (a) the government first got the vaccines fully approved by the FDA (rather than approved on only an emergency basis, as is now the case — see Jim’s “America’s Crisis of Competence, Part Two” from the Jolt a couple of days ago); and (b) the law provided exemptions for medical conditions or religious objections. But if Congress singled out a group for mandatory vaccination, there would have to be a rational relation between some attribute of the group and a heightened risk of spreading infection — for example, a law requiring the vaccination of medical practitioners who deal constantly with sick people. (To be clear, I am brainstorming a hypothetical that might pass muster; I do not favor discriminatory mandates.)
Merely being accused of a crime — and thus presumed innocent — has no discernible connection to a heightened risk of COVID that would justify a discriminatory vaccine mandate.
Patently, the understanding of dangerousness as that concept was expressed in the Bail Reform Act had nothing to do with infectious disease. In enacting the law, Congress was not mandating vaccination.
Judge Rakoff has no unilateral authority to mandate vaccination, despite his curious assertion that “it seems obvious that the Court has ample authority to impose” a vaccine mandate as a bail condition — which cites no authority.
In lieu of jurisprudential support, Rakoff offers an analogy that does not support his theory. An accused drug dealer, he points out, may be released on the condition that he remain confined at home and wear an electronic bracelet, restrictions that secure not only against flight risk but “also to protect others against any danger the defendant might pose to the community through continued drug dealing.” Yes, because the danger is the drug dealing, not that the defendant might infect someone with COVID if he leaves his house.
Rakoff elaborates that a judge would have the power to impose on the same defendant the requirement to submit to drug testing, as well as physical and mental examinations. These, he reasons, are more onerous conditions than merely being vaccinated.
This, however, conflates dangerousness with comparative inconvenience. As noted above, courts may order drug and other examinations because they are directly related to the dangerousness inherent in violent crimes — the intoxicated or disturbed person is more apt to engage in violent behavior of a nature similar to the underlying charges. (Federal law deems felony drug dealing to be an inherently violent enterprise.) Whether other bail conditions may also be imposed is a function of whether they, similarly, are rationally related to the likelihood of violent behavior; it has nothing to do with whether they happen to be more or less onerous than drug testing.
Finally, Judge Rakoff rationalizes that bail is essentially an act of judicial largesse: “When, as here, a defendant requests that the Court exercise its authority to release her from custody on bail, then the Court’s responsibility is to set conditions on that release that will prevent a danger to the community.” But he has it backwards. A defendant should presumptively get bail unless the offense charged or the person’s prior criminal history raise reasonable grounds to believe the community would be imperiled by release. If there are no such grounds, the court’s responsibility is to release the defendant on bail, not look for reasons unrelated to the charges to deny bail on dangerousness grounds.
Interestingly, the court’s order does not indicate that Justice Department prosecutors sought pretrial detention. Although the judge rationalizes his vaccine mandate under the Bail Reform Act provisions that apply when there is a government motion for pretrial detention on dangerousness grounds, it does not appear that there was such a motion in the case. Rather, in a case where bail was granted, Rakoff — on what appears to be his own initiative (he nowhere claims the prosecutors asked for it) — added vaccination as a condition of release.
Judge Rakoff, a Clinton appointee to the SDNY, is certainly free to believe everyone should get vaccinated. But he has no unilateral authority to order that they get vaccinated. I have not seen any reporting on whether the defendant, Elouisa Pimental, is appealing the district court’s edict.