COVID-19 Vaccination as a Condition of Federal Community Supervision

Abstract

In the two years since the start of the pandemic, COVID-19 continues to acutely affect those in the criminal legal system. In response, judges have considered a vaccine requirement as a condition of community supervision. Courts have justified the condition because remaining unvaccinated can harm both the individual on community supervision, as well as pose a risk to the public at large. This Article considers the legality and desirability of requiring COVID-19 vaccination as a condition of federal community supervision. The vaccine condition might ultimately meet statutory and constitutional requirements, as it is not particularly intrusive compared to other medical conditions that courts have previously upheld.

However, using the government’s power to mandate compliance (or risk incarceration) may not be the best way to encourage individual health decisions. Ultimately, the question of a vaccine condition on federal supervision suggests the need for a more robust discussion to be had about the responsible use of probation and supervision conditions. While we regularly incarcerate individuals for technical violations of discretionary conditions, we have scant empirical evidence about the impact of these conditions on the individual, and public safety overall.