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Two New York judges ordered defendants to get vaccinated. Can they do that?

todayAugust 26, 2021 4

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Orders by New York judges — one in the Bronx and one in Manhattan — that two defendants appearing in their courts get vaccinated raise important questions about the line between civic responsibility and civil liberties, legal observers say, though neither defendant appeared to object.

A number of experts who reviewed the orders disagreed as to whether they were justified, or whether one or both could represent an overstep — a debate that underscores the legal and ethical complications that have emerged around vaccination requirements.

In one case, Judge Jeffrey Zimmerman, 61, of the Bronx County criminal court, explained that the defendant, William Gregory, had been accused of crimes — including drug possession, criminal trespass, shoplifting and criminal contempt — that showed he had placed his own interest above others’. In getting the vaccine, the judge argued, Mr. Gregory would be doing the opposite, and so vaccination would represent a form of rehabilitation.

The second order came from a federal judge in Manhattan, Jed S. Rakoff, who granted the release of a defendant, Elouisa Pimental, who was charged with conspiracy to distribute fentanyl, on the condition that she get vaccinated.

Judge Rakoff argued that it fell to him to determine whether a person seeking release represented a danger to their community. The unvaccinated, he wrote, did pose such a danger, given their “enhanced risk of infecting other, innocent people and even potentially causing their deaths.”

Judges have broad discretion in placing restrictions on people who are accused of crimes. It is not unusual for them to limit whom defendants talk to, where they go, even how frequently they use the internet. And judges do often order defendants to proactively engage in certain behaviors, such as receiving counseling or taking certain prescribed medications.

But the power of judges is not unlimited. Nadine Strossen, a professor at New York Law School who led the American Civil Liberties Union from 1991 to 2008, said that in order to fight a vaccination directive, a lawyer would have to demonstrate that a judge had abused his or her discretion.

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todayAugust 26, 2021 3