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Colorado’s governor says prisoners won’t be prioritized for a coronavirus vaccine. A state plan outlines otherwise.

Gov. Jared Polis’ comments Tuesday run counter to the ethical framework in a plan drafted by his administration. Colorado officials say the plan will be revised next week.

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Speaking to reporters on Tuesday, Gov. Jared Polis forcefully denied criticism that Colorado’s plan for prioritizing allocation of coronavirus vaccines will place incarcerated individuals ahead of healthy older Coloradans.

“That won’t happen,” Polis said. “There’s no way that prisoners are going to get it before members of a vulnerable population . … There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime. That’s obvious. So those are just false.”

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But the draft plan for prioritizing vaccine allocation that the state sent to the federal Centers for Disease Control and Prevention in October specifically places people in prisons and jails in a higher priority tier than healthy adults who are age 65 or older.

The draft plan includes inmates with other people who live in congregate housing situations, such as college students living in dorm rooms or seasonal workers at ski areas. People living in those situations are considered to be vulnerable not because they may suffer severe complications from a coronavirus infection but because they are less able to socially distance. That puts them at greater risk of a disease outbreak that could spread into the broader community.

And Polis’ comments also contradict the ethical framework of the Colorado plan, which states that no one will be discriminated against when it comes to vaccine allocation based on their criminal history.

Spokespeople for both Polis and the Colorado Department of Public Health and Environment later clarified that the state intends to release a revised version of the allocation plan next week. The governor’s office says the ethical framework for the plan will not be changed.

But neither the governor’s office nor CDPHE would explain where incarcerated individuals would be placed in the revised allocation plan or what the public health rationale is for moving them out of the tier with others living in congregate housing.

“We expect the CDC to release updated guidance in the coming days,” Conor Cahill, a spokesman for the governor, said in a written statement. “… After reviewing forthcoming CDC guidance, the state will be releasing Colorado’s distribution prioritization that will be focused on ending the crisis.”

A statement from CDPHE added: “We are continuing to determine the exact phasing of the vaccination distribution, which will be done to be as fair and effective as possible.”

The Colorado Territorial Prison in Cañon City. (Frank Carey, via Creative Commons)

11 deaths in Colorado prisons

Polis’ comments drew quick criticism on social media and worried civil liberties advocates. 

“If the governor doesn’t care about the individuals in prison, he should care about the people that work there,” said Denise Maes, the public policy director for the ACLU of Colorado. “Those individuals come and go from the facility. They come home. They  go into their communities.”

Prisons have had some of the largest coronavirus outbreaks in Colorado. The state Department of Corrections on Tuesday reported four new deaths among inmates due to COVID-19, bringing the total number of state inmates who have died from the disease in Colorado to 11. There are 1,558 active COVID-19 cases among inmates, meaning that 11% of the state’s prison population is currently infected.

One inmate in the Weld County jail also died of COVID-19, and the state reports two other deaths tied to outbreaks at halfway houses. On Tuesday, the ACLU settled a lawsuit against the Weld County Sheriff’s Office that alleged the office wasn’t doing enough to protect inmates at its jail from the coronavirus. Some correctional facilities have failed to provide masks or other protective measures to inmates.

It’s unclear whether Polis’ comments are meant also to include people incarcerated in county jails. Maes said the majority of people in the state’s county jails have not been convicted of a crime but are instead awaiting trial and unable to afford the amount needed to post bail.

A three-phased plan

CDPHE officials, doctors, ethicists and other medical experts have worked for months on creating the state’s plan to fairly and effectively distribute what are expected to be initially limited quantities of coronavirus vaccine. What started as a proposed four-tier structure was later condensed to three tiers. The state submitted that plan to the CDC in mid-October.

Health care workers, first responders and public safety workers — including correctional officers — and people living in nursing homes are given top priority in the plan. That roughly matches with the recommendation issued Tuesday by a CDC committee, creating little doubt that those groups will remain top priority in the state’s final plan.

But who should be given priority in the second phase has been more controversial.

The state’s draft plan places people living in congregate housing situations in Phase 2A. Following them in Phase 2B are people at higher-risk of severe coronavirus infections, including people over the age of 65 and people with underlying medical conditions like diabetes or obesity.

A slide from a Colorado Department of Public Health and Environment presentation on Nov. 12, 2020, shows the state’s planned allocation tiers for coronavirus vaccines. Health care workers are expected to be first in line, with most of the general public eligible in phase three. (Screenshot)

But some federal officials have proposed moving older adults higher on the priority list, arguing that it will reduce the number of deaths in the pandemic. A World Health Organization committee last month released a “roadmap” suggesting that older adults should be among the first vaccinated, before even first responders, if countries are experiencing widespread community transmission, as the United States is.

And Polis’ comments on Tuesday were touched off by a question from a reporter who referenced a weekend opinion column by 18th Judicial District Attorney and one-time Republican gubernatorial candidate George Brauchler, who criticized the state for putting the lives of convicted murderers ahead of the elderly.

Offense vs. defense

The reason for the order in the state’s draft plan is a matter of strategy.

In writing the plan, the state’s experts talked about using a vaccine not just to provide protection to individuals but also to attack the virus on a community-wide scale. By vaccinating places where outbreaks are most likely to occur and spread outward, the thinking goes that the state can lower overall community transmission of the virus while people who are able to socially distance wait their turn to be vaccinated.

There’s also a logistical consideration. The state estimates there are about 330,000 people eligible to be vaccinated in Phase 1 of the plan. The current Phase 2A has about 670,000 people.

But Phase 2B is the largest of any group in the plan. More than 2.3 million people would be eligible under the current Phase 2B — more than even the final Phase 3, when vaccination is opened to all healthy individuals ages 18 through 64. More than 800,000 people in Colorado are age 65 and older.

If Phase 2A and 2B are flipped, it would make a huge number of Coloradans now eligible to be vaccinated while there are still relatively few doses available to go around. And that would go against the state’s reasoning in developing the structure.

“In general,” the state wrote in the draft plan submitted to the CDC, “the goal is to try to match progressively increasing population size in each phase with a corresponding increase in vaccine availability through increased manufacturing, as it does not make sense to have an extremely large phase early in the vaccination process before a sufficient supply is available.”

A man receives a dose of an experimental coronavirus vaccine as part of a clinical trial for a vaccine candidate developed by BioNTech, which is based in Germany, and Pfizer. (Provided by BioNTech)

Ethical concerns

Experts who worked on the plan have said prisons cannot be thought of as contained places from where the virus can’t escape. Even if vaccinated, correctional officers could still get sick because no vaccine is expected to be 100% effective. And inmates are released daily from prisons and jails back into the community.

There’s also an ethical concern. Health care workers pride themselves on treating everyone equally, regardless of background. When the National Academies of Sciences, Engineering and Medicine in October proposed a framework for equitable distribution of a coronavirus vaccine, it also included incarcerated individuals in a higher-priority phase, noting that they are at greater risk of catching and spreading the virus.

“These criteria treat all people equally,” the NASEM committee wrote in its final report. “… If more vaccine goes to members of one population group than another, it will not reflect who they are, but what they do, and what has happened in their lives.”

In drafting its plan, the state adopted this commitment, as well.

“At no point should decisions to deny vaccines be based on age, gender, race, ethnicity, ability to pay, disability status, national origin, primary language, immigration status, sexual orientation, gender identity, HIV status, religion, veteran status, ‘VIP’ status, housing status, or criminal history other than as described in the vaccination phases,” the state wrote.

Polis said Tuesday that inmates who fit into other high-priority groups — like the elderly — would likely be vaccinated along with those groups. But Maes, with the ACLU of Colorado, said her organization has not yet considered whether it would bring a lawsuit if Polis separates incarcerated individuals from others who live in congregate housing.

“It certainly is bad policy,” she said.

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