As the COVID-19 pandemic persists, concern regarding vaccination rates continues increasing. The Delta variant has raised additional concerns about community spread and underscored the importance of vaccination. As a result, many employers, universities, and private businesses now mandate vaccines for in-person return. However, the vaccine mandates continue to generate considerable debate and litigation.
Continuing the trend in vaccine mandates, a handful of judges have issued orders requiring criminal defendants to be vaccinated as a condition of their release. Judges issuing such orders include Judge Jed Rakoff of the U.S. District Court for the Southern District of New York and two state judges in Ohio. While these orders appear superficially similar to vaccine mandates for students or employees, these orders potentially elevate the goal of public safety at the expense of the rights of an already vulnerable group.
II. The Legality of Vaccine Mandates Generally
Historically, U.S. courts have upheld the constitutionality of vaccine mandates. Id. The earliest example of this is Jacobson v. Massachusetts,in which the Supreme Court held a smallpox vaccine mandate to be a legitimate exercise of the state’s power to protect public health and safety. Jacobson argued that compelled vaccination was “inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state.” However, the Court disagreed, stating that protection of the public welfare warranted such infringement.
Seventeen years later, in Zucht v. King,the Court once again held that neither due process nor equal protection prevented the city of San Antonio from conditioning school attendance upon vaccination status. These cases played a critical role in establishing widespread acceptance of school vaccine requirements and in acknowledging the importance those requirements play in protecting public health.
The Seventh Circuit Court of Appeals exemplified this widespread acceptance in a recent challenge to Indiana University’s COVID-19 vaccination mandate, stating that “vaccinations against other diseases . . . are common requirements of higher education.” The court observed that the students could choose to go to a school that does not require the COVID vaccine and that masks and tests for exempt students are “requirements that are not constitutionally problematic.”
III. Discretion in Pretrial Release Orders
Judges possess wide latitude in creating pretrial release orders for criminal defendants. The Bail Reform Act of 1984 requires court orders for pretrial release to be “subject to the least restrictive further condition, or combination of conditions, that [the court] determines will reasonably assure the appearance of the person as required and the safety of any other person and the community . . . .” The statute sets forth an illustrative list of conditions, and states that judges have the authority to impose conditions not specifically enumerated, provided the conditions facilitate reasonable means to ensure appearance and enhance community safety.
Judge Jed Rakoff of the U.S. District Court for the Southern District of New York recently ordered that a defendant receive the COVID-19 vaccination as a condition of release, citing the court’s “responsibility  to set conditions on that release that will prevent a danger to the community, in this case, an enhanced risk of infecting other, innocent people and even potentially causing their deaths.” Judge Rakoff stated that the court has the authority to impose such a condition comparing it to common requirements applied to accused drug dealers, including home confinement, ankle bracelets, weekly urine tests, wearing a drug-detecting skin patch, or undergoing physical and mental examinations. Judge Rakoff further indicated that, if courts can impose these “onerous restrictions[,]” then courts can certainly take the “much more modest step” of requiring vaccination.
IV. Ethical Issues Surrounding Vaccine Mandates in Pretrial Release Orders
Despite the general legality of vaccine mandates and the latitude that judges have in crafting orders of pretrial release, there is some concern regarding the coercive nature of these orders, especially given the vulnerability of criminal defendants. In a bail system that already has a disproportionate impact on minorities, criminal defendants face a fundamentally meaningless “choice” between vaccination and incarceration. Studies show that, in addition to losing their liberty, defendants who remain in jail may have difficulty participating in their own defense, have a heightened incentive to plead guilty even with a valid defense, and are convicted more frequently. While many factors contribute to a decision to require vaccination as a condition of release, to some degree, such requirements make loss of bodily autonomy a condition of freedom.
The Seventh Circuit’s ruling on the Indiana University vaccine mandate indicates that it may be permissible to make vaccination a condition in circumstances where the repercussion for one choice is a loss of opportunity. The ability of judges to condition release on vaccination broadens their authority to include threatening a loss of freedom in its entirety. Although a global pandemic appears to make this type of latitude legally permissible, the legal community must carefully consider whether these orders are ethically desirable.
*Samantha Laulis is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a Royal Graham Shannonhouse III Honor Society Distinguished Scholar. Samantha serves as a teaching assistant for Professor Nancy Modesitt’s Introduction to Lawyering Skills class, a law scholar for Prof. Hugh McClean’s Criminal Law class, the Vice President for Students Supporting the Women’s Law Center, and a Policy Coordinator for If/When/How: Lawyering for Reproductive Justice. She interned for the Honorable Joseph M. Getty on the Court of Appeals of Maryland during summer 2021. Prior to law school, Samantha worked as a child welfare social worker for the State of Maryland.
 See The Associated Press, Derek Hawkins et al., Daily Vaccination Rate is Rising Among Americans Getting Their First Shot, Officials Say, Wash. Post (Aug. 24, 2021, 10:39 PM), https://www.washingtonpost.com/nation/2021/08/24/covid-delta-variant-live-updates/.
 See What Should I Know About the Delta Variant?, AP News (Aug. 3, 2021), https://apnews.com/article/science-health-coronavirus-pandemic-ac6ef8534bffeec97e9dc771b7990fe6.
 See Zeke Miller, Sweeping New Vaccine Mandates for 100 Million Americans, AP News (Sept. 9, 2021), https://apnews.com/article/joe-biden-business-health-coronavirus-pandemic-executive-branch-18fb12993f05be13bf760946a6fb89be.
 See State Efforts to Ban or Enforce COVID-19 Vaccine Mandates and Passports, Nat’l Acad. for State Health Pol’y, https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/ (Oct. 1, 2021); see also Anuja Vaidya, Providers Will Likely Face More Lawsuits Against Vaccine Mandates. But They Are Also More Likely to Win, MedCity News (Aug. 4, 2021, 4:47 PM), https://medcitynews.com/2021/08/providers-will-likely-face-more-lawsuits-against-vaccine-mandates-but-they-are-also-more-likely-to-win/.
 See Madison Alder, Legal Scholars Skeptical of Court-Ordered Defendant Vaccination, Bloomberg L. (Aug. 20, 2021, 4:45 AM), https://news.bloomberglaw.com/us-law-week/legal-scholars-skeptical-of-court-ordered-defendant-vaccination?context=.
 See id.
 197 U.S. 11, 39 (1905).
 Id. at 24.
 Id. at 26–27; Ben Horowitz, Comment, A Shot in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During a Public Health Emergency, 60 Am. U. L. Rev. 1715, 1720 (2011).
 See 260 U.S. 174, 177 (1922).
 See Jeannie Suk Gersen, Should the Government Impose a National Vaccination Mandate?, New Yorker (Aug. 26, 2021), https://www.newyorker.com/news/our-columnists/should-the-government-impose-a-national-vaccination-mandate.
 See Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021) cert. denied, No. 21A15, 2021 U.S. LEXIS 3677 (2021) (order denying preliminary injunction).
 Id. at 593.
 See Kevin Grasha, Hamilton County Judge Who Ordered COVID-19 Vaccine Not the First or Only Judge to Do That, Cincinnati Enquirer, https://www.cincinnati.com/story/news/2021/08/09/hamilton-county-judge-chris-wagner-not-only-one-order-covid-19-vaccine/5519252001/ (Aug. 9, 2021, 2:22 PM).
 18 U.S.C. § 3142(c)(1)(B).
 See id.
 United States v. Pimental, No. 21-CR-451, 2021 WL 3639469, at *1 (S.D.N.Y. Aug. 17, 2021).
 See Alder, supra note 5.
 See Barry Mahoney et al., Nat’l Inst. of Just., Pretrial Services Programs: Responsibilities and Potential 4–5 (2001), https://www.ojp.gov/pdffiles1/nij/181939.pdf.
 See Alder, supra note 5.
 See Gersen, supra note 12.
 See Alder, supra note 5.