At least two judges in Ohio have made receiving Covid-19 vaccinations a condition of probation. While judges have leeway in setting such rules, it’s a murky area, experts said.

Some judges are requiring people on probation to get vaccinated as part of the terms of their release.Credit...Saul Martinez for The New York Times

By Christine Hauser

Aug. 9, 2021

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday.

“I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates.

The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”

“The question here is whether there is such a compelling interest, and whether it pertains to the purposes of probation,” Mr. Carey added. “Judges do have a lot of leeway in imposing conditions on behavior while on probation. But that leeway is not unlimited. They still need to establish it has a clear connection to a person’s individual case.”

In Ohio, as in the rest of the country, private businesses can impose their own requirements on employees and patrons. Federal government employees are required to be vaccinated or face regular testing, but state and local government institutions set their own rules. In Ohio, more than 800 school districts and other local entities function independently, Dan Tierney, a spokesman for Gov. Mike DeWine, said on Monday.

Mr. DeWine said Ohio was a state that exemplified the dual risk of infection. “Those who are vaccinated are safe, those who are not vaccinated are not safe,” he said.

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections.