Bozelko: Hyperfederalism, science can't easily co-exist

Chandra Bozelko

As we reach the one-year anniversary of the official start of the COVID-19 pandemic, the lessons pile up: Stock up on paper goods even when it appears unnecessary, comfortable office chairs are necessary in the home and, perhaps most importantly, federalism and science don’t really jibe.

To understand this, one must first know how federalism works. Federalism is a style of government in which power is divided between states and national authority. When the federal government makes a law, that law trumps any statute made by states even if - especially if - they conflict with the federal law. It’s a concept called federal supremacy, and it has the potential to allow the national government to control every aspect of daily life.

A few crucial exceptions to federal supremacy balance it out, though, and they include criminal and public health laws whose hot little intersection houses all 2.3 million incarcerated people in the United States who have either died from COVID-19, caught it in preventable ways, or have just sweated in anxiety for the past year in fear of contracting the novel coronavirus.

Federal law reigns - except when it comes to criminal law and laws related to protecting the health and safety of state residents; then the 10th Amendment to the United States Constitution kicks in and allows states to run their own shows. It’s the 10th Amendment that allows states like Texas to open all businesses and threaten municipalities like the city of Austin with litigation when they insist on maintaining mask mandates, even though the country’s top infectious disease experts and public health agencies urged Texas Gov. Greg Abbott to wait until the “numbers” - the epidemiological data - reveal the best course of action.

It’s also the 10th Amendment that allowed Gov. Andrew Cuomo to run his state as he saw fit when New York was hardest hit by the virus about a year ago, when the federal government was providing very little effective leadership out of this epidemic. The 10th Amendment can protect as much as it sacrifices.

That amendment has been twisted, though, so that empirical data, research findings that have been tested by scientific method - and what we’ve been calling “science” throughout the pandemic, and even a little before because the Trump administration insisted on gutting respect for evidence, for facts - cease to matter.

A perfect example of how this hyperfederalism and science are at odds with one another is the vaccine rollout for incarcerated populations.

Last year, august scientific boards - the National Academies of Sciences, Engineering and Medicine and the Johns Hopkins Center for Health Security - recommended prioritizing prisoners as a best practice for infectious disease control, both within the facilities and outside them in the community. Despite that, only six states promised to vaccinate prisoners with some priority.

But then a columnist in one of those states that planned to prioritize inmates, Colorado, explicitly compared his father’s life to people he called “incarcerated murderers, rapists and child molesters,” and Gov. Jared Polis quickly backtracked.

The number of states that specifically state their intentions for inmate inoculation is now up to 10, partially owing to litigation. But even among those 10, not all of them honor their written promises. Connecticut, for example, pledged to include inmates in Phase 1b, but then switched its distribution to a solely age-based strategy.

At least the Pandemic Vaccine Planning Stakeholder Group in Tennessee was honest about it. At a meeting last week, they admitted the topic of following the science and vaccinating prisoners was a “public relations nightmare.”

To be clear, the import and binding nature of those initial vaccination plans filed with the CDC last December is easy to overstate. For instance, California didn’t even list prisoners on its original plan, but the state has vaccinated almost half of the people in state custody. Wisconsin’s plan omitted inmates but vaccination has started there and has already inspired legislative backlash, even though over half of the state’s 19,539 inmates contracted the virus. Both California and Wisconsin were among the states whose prisons were hit the worst by the virus. Alabama and Wyoming, on the other hand, promised the shots to inmates, but no one’s seen them yet.

Even looking beyond these initial plans, some states aren’t entirely faithful to scientific data and guidance. Inmates live in the same settings as nursing home residents; they can’t socially distance, they can’t leave of their own volition, and initially they had inadequate supplies of personal protective equipment.

The Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, the body tasked with helping to guide vaccination rollout, didn’t expressly equate nursing homes and prisons when it first issued guidance in December.

But it could have. The committee defined long term care residents as “adults who reside in facilities that provide a variety of services including medical and personal care, to persons who are unable to live independently,” which could easily apply to prisoners - correctional facilities provide medical care and inmates are certainly not allowed to live independently - as well as nursing home residents.

That might explain why the states who have performed most admirably with regard to vaccinating inmates include prisons and jails within their definitions of congregate living settings. For example, Minnesota (which has commenced correctional vaccination), North Carolina (which started distributing the Moderna shots in prisons in January), Virginia (which is more than halfway done distributing it in prisons) and Wisconsin all include prisons and jails within their definitions of congregate living facilities. Only Wisconsin prioritized inmates in their original plans.

There are exceptions, of course. California’s definition of congregate care settings doesn’t include corrections; neither does Massachusetts’ or Pennsylvania’s, and they’re vaccinating now. In May 2020, Missouri defined congregate settings to include prisons and jails along with nursing homes but failed to prioritize inmates with long term care residents. Ohio defines prisons as congregate living facilities, but the state isn’t vaccinating inmates.

Our current form of government and public health science are too often incompatible with each other. The ability to define identical living settings differently, the authority to dispute crunchable, tested data, shouldn’t be powers enumerated to any government; they can’t be. But that’s exactly what the United States is doing - and it’s what caused so much illness and took so many lives.

This work was supported by the National Association of Science Writers Diversity Reporting Grant.

Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at outlawcolumn@gmail.com.