Prisoner rights advocates frustrated by Mills’ decision not to prioritize inmate vaccination

After Gov. Janet Mills announced a series of updates Wednesday to the state’s COVID-19 vaccine distribution effort, advocates expressed frustration that the new plan includes no specific phase for incarcerated people, calling for those in prisons and jails to be prioritized because of the already demonstrated dangers of the virus spreading in such settings.

At a virtual media briefing, the governor said phase 1a of the vaccine plan — which the state hopes to complete by February — will be expanded to include police, firefighters and other law enforcement personnel, such as correctional officers, among others. 

Mills, a Democrat, also announced that phase 1b of the vaccine effort will be updated to focus first on inoculating older Mainers, beginning with those over 70. The phase will then focus on vaccinating people with high-risk medical conditions. 

In a response to a question Wednesday, Mills said inmates will not be included in phase 1a of the vaccine plan, even though that phase now contains correctional officers. The governor did not specify a particular phase that incarcerated people will be included in, saying it is “undetermined.”

“I think [inmates] would go into the general phases following phase 1a, 1b etc.,” Mills said. “Correctional officers, vaccinating them serves a double purpose. It protects them and their families and it protects the people in their care, the people in those facilities. So we think it’s first and foremost important to vaccinate the staff. Inmates, residents will come at a later time. Undetermined.” 

Mills also said incarcerated people who fit into the categories being prioritized in phase 1b — those over 70 and those with a high-risk medical condition — may or may not be included in that phase. 

“They’re not excluded, they’re not specifically included,” Mills said. “We don’t have a facility specifically for people 70 and above who are incarcerated. We don’t have that kind of concentrated population whereas we do have concentrations of populations 70 and above in the general population. That makes it a lot easier to vaccinate people.”

But advocates said the state not prioritizing inmates in its vaccine plan is the wrong decision, with the ACLU of Maine calling for the state to fulfill its legal responsibilities to incarcerated people. 

“People outside prison walls who are elderly or medically vulnerable will soon be able to receive a life-saving vaccine,” Meagan Sway, policy director at the ACLU of Maine, said in an email Thursday. “But people in prison, who fit the same criteria, will be denied that access, simply because they are in prison. Being denied medical care was not part of their sentence. It is the state’s constitutional obligation to provide adequate medical care to people in its custody.” 

An examination of the Maine Department of Corrections prisoner search tool shows 41 people in the MDOC system who are over the age of 70. Two of those inmates are incarcerated in other states. In addition, in a motion filed by the ACLU of Maine in May, the MDOC said there were over 900 medically vulnerable Mainers under the department’s sole custody. MDOC did not respond to a request for an updated number of medically vulnerable inmates in its facilities. 

Tina Nadeau, a defense attorney who works in Portland, also criticized Mills’ decision not to prioritize inmates in the state’s vaccine plan.

“There are many older, infirm incarcerated people throughout the state,” Nadeau said in an email. “The governor’s comments about the impossible logistics of vaccinating the most vulnerable people in an already vulnerable population defy reason.”

Nadeau added that there’s no guarantee that every corrections officer will consent to receiving the vaccine, meaning inmates could still potentially be infected by staff even after phase 1a is completed.

Allocation of the vaccine should be determined by risk of contracting the virus, Nadeau argued.

“Vaccine distribution is not about who ‘deserves’ it,” she said. “It’s about who needs it. Incarcerated people need to be vaccinated because they live in congregate settings and have no control over how or when they could be exposed to COVID.”

Prisons and jails a dangerous place during a pandemic

From the start of the pandemic, advocates have called for Maine to protect its incarcerated population, pointing out that it’s nearly impossible to maintain social distance in prisons and jails.

“The reality of a COVID-19 outbreak in Maine’s jails and prisons is not a question of ‘if,’ but ‘when’,” a coalition of groups wrote in a letter to Mills and MDOC Commissioner Randall Liberty in April. “The closed, confined nature of correctional facilities — in which people eat meals side by side, share bathrooms with dozens of others, sleep multiple people in a room, and come in frequent, close contact with staff — makes them especially susceptible to the rapid spread of the COVID-19 virus,” the letter continued. 

In September, as a large COVID-19 outbreak in the York County Jail continued to spread, advocates castigated the state for its lack of action to protect incarcerated people. The Portland Press Herald later reported that masks were not allowed or were discouraged before the outbreak at that facility. 

York County Jail | Sheriff’s Office Facebook page

An additional outbreak of the virus spread quickly at the Maine Correctional Center in Windham in November, and other facilities in the state have also seen cases. 

Nadeau said the large number of cases in Maine’s prisons and jails shows that Mills has not taken the actions needed to keep inmates safe.

“Time after time during this nearly year-long pandemic, Governor Mills has refused to recognize the very real dangers of COVID exposure and infection for our incarcerated citizens,” she said. “Hundreds have tested positive for the disease already. It is a dangerous game that is being played with the health and safety of vulnerable people.”

Since the approval of multiple COVID-19 vaccines in December, rights groups have turned their attention to the vaccination process, urging the state to prioritize inmates.

“Prisons and jails are congregate facilities,” Michael Kebede, policy counsel at the ACLU of Maine, told Beacon in December. “Nine other states have recognized this, and have prioritized getting vaccines to incarcerated people in the first phase of their vaccine distribution plans. We hope Maine follows suit.” 

The state’s Permanent Commission on the Status of Racial, Indigenous and Maine Tribal Populations has also focused on the issue, questioning Dr. Nirav Shah, director of the Maine Center for Disease Control and Prevention, in December about moving inmates up in the state’s vaccination plan. Shah told the commission the decision would ultimately be made by Mills. But it wasn’t clear until the briefing on Wednesday that the governor had decided not to include incarcerated individuals in the initial phases of the state’s vaccine plan. 

Joseph Jackson, executive director of the Maine Prisoner Advocacy Coalition, said Mills’ decision is disappointing. With virus cases high in Maine, he said the risks for inmates are massive, particularly for those who are older or have medical issues. 

As the virus rages in the state, Jackson said incarcerated people he’s heard from don’t feel safe. He added that the pandemic has made an already difficult setting even more challenging.

“Life is not that great on the inside right now,” he said. “Rehabilitative programming has been almost brought to a standstill by the pandemic. … It seems to me that the vaccine will play a vital role in normalizing operations inside facilities.” 

In calling for Mills to change her stance and move incarcerated people up in the vaccination process, Jackson pointed out that officials in other states have decided to include inmates in initial vaccination tiers.  

“We know that Republican governors in other states have prioritized incarcerated individuals,” Jackson said. “And so I’m confused about why our governor has not.”

Top photo: Gov. Janet Mills speaks at a press conference in March on the COVID-19 pandemic | Dan Neumann, Beacon