Has A New York Judge Just Violated the Constitution?

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A judge in Manhattan, New York ordered on Tuesday that a prisoner who has not been vaccinated for COVID-19 be denied bail until they agree to immunization.

The Background

Until then, bail had two principles: it cannot be extreme (it is a popular misunderstanding that the Constitution gives a “right to bail”; the Eighth Amendment simply states that in instances in which bail is suitable, it may not be “extreme”), and it can be rejected, due to a risk of flight.

The Bail Revision Act of 1984 adds a new reason for bail denial: risk to society. If the court determines that there is no mix of restrictions that can ensure the safety of any individual (or the society at large if the offender is released), pre-trial parole may be refused.

This was contentious as it technically undermined the assumption of innocence. If an individual is imprisoned because the accusations against them show a proclivity for committing (especially) serious crimes (and/or intimidating witness testimony or jury members), it assumes that the court has indicated that the accusations are true.

The Situation At Present

Judge Jed Rakoff, on the other hand, believes that “risk to the public” encompasses legitimate activity — such as declining to be immunized against COVID-19 — that has nothing to do with the offense being tried or, indeed, to any criminal behavior in which the accused engaged.

First, courts will give deference to requirements required by government entities with the power to do so, such as legislators or executives operating under clear legal power. It is not for the judges to assume legal power by interpreting the law which has nothing to do with population health or the administration’s strong interest in limiting the spread of illness.


In the small, specific context of those accused of offenses, the Bail Reform Act addresses danger to the country. It concentrates on whether their claimed criminal conduct poses a continuing threat to specific people or the entire society. This is similar to how a person is apprehended or prosecuted on probable cause proof of being a violent criminal.

Judges do not reject bail to smokers on the grounds that secondary smoke is detrimental to the community. That is because the act did not authorize judges to arrest based on legal behavior that the courts find excessively risky.

It’s correct that jail terms frequently require offenders to abstain from drinking (which is lawful) and using illegal drugs. However, those circumstances are rationally linked to criminal behavior.

If a person has a history of commiting violent acts, they are more likely to do so while inebriated. However, whether or not a person has been vaccinated against contagious diseases has no bearing on the possibility that he or she will threaten the community by committing criminal activities.