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Oregon's failure to include prisoners in Phase 1A for prompt vaccination is unconstitutional, judge orders.

FILE - Deer Ridge Correctional Institution in Madras is shown here.A federal judge on Tuesday, Feb. 2, granted a preliminary injunction ordering Gov. Kate Brown and the Oregon Department of Corrections to vaccinate state prisoners just as quickly as other vulnerable populations in Phase 1A, saying state officials' failure to already do so amounted to "deliberate indifference" to prisoners' well-being.

The change was ordered by Federal Magistrate Judge Stacie F. Beckerman, granting an early win in a lawsuit seeking to represent all state prisoners in a federal class action.

The weight of evidence showed the state's previous decision to consider inmates for vaccination only in Phase 1B — after corrections officers and contractors received it in 1A — amounted to a violation of the U.S. Constitution's ban on cruel and unusual punishment, Beckerman found.

She said the legal team suing the state — a coalition including attorneys like David Sugerman as well as Juan Chavez of the Oregon Justice Resource Center — provided convincing evidence the state's policy amounted to "deliberate indifference" to the serious harm that awaited inmates who contracted COVID-19.

"Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless," Beckerman wrote. "Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody."

As of Feb. 1, the judge wrote, nearly 3,400 inmates had tested positive for COVID-19 out of a population of just over 12,000 inmates spread across 15 facilities, or a rate of 28 percent. The rate of known infections in the general population in Oregon has been 3.3 percent, she added.

State prison "administrators acknowledge that current measures are inadequate to stop the spread of COVID-19," Beckerman wrote. "Primitive structures, older ventilation systems, crowding and dormitory-style housing make it difficult to control the spread of the virus. In addition, social distancing is nearly impossible in ODOC kitchens, laundry facilities and dormitories."

State prison administrators admit the only way to achieve proper social distancing would be to cut the prisoner population by at least half, Beckerman wrote.

"The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state's care," she wrote.

"Plaintiffs' recent evidence demonstrates that individuals in ODOC custody continue to lack the means to protect themselves from exposure to COVID-19 and, in some cases, risk being disciplined in attempting to do so," she added.

"Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and (inmates) and have chosen to protect only the staff. This inaction indicates deliberate indifference to a substantial risk of serious harm," she concluded. "Denying the vaccine to (inmates) in institutions suffering from high infection and death rates indicates deliberate indifference."


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