HomeColumnsLegal Myths & Reality: by Judge Joan Shkane

Legal Myths & Reality: by Judge Joan Shkane

Legal Myths & Reality

 

 

by Judge Joan Shkane

Legal Myths & Reality

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH: No-one can order anyone to have a covid vaccination because it is a civil liberty to refuse the vaccine.

REALITY: So far it appears this is not legally true. Judges across the country are moving to protect children and adults from the covid virus in a variety of ways. One out of state judge recently changed custody to the father because the custodial mother refused the covid vaccine, thereby jeopardizing her child’s health.

Closer to home, a Bronx, New York judge recently ordered that a criminal defendant had to be covid vaccinated as part of his criminal sentence. The defendant was willing to plead guilty after being charged with crimes like drug possession and shoplifting. The Bronx judge ordered the defendant to accept the covid-19 vaccine. The judge reasoned that the type of crime the defendant committed showed the defendant placed his interests above others. Getting the vaccine would show rehabilitation, and that the defendant is now taking steps to put community safety before his own. The judge directly related the covid order to the crimes the defendant committed.

In Manhattan a woman was charged with crimes relating to distributing fentanyl. The judge made accepting the covid vaccination a condition of the woman’s bail. The judge argued that one of the factors in deciding whether the defedant should be permitted to post bail and thereby be released from jail before trial, is whether the defendant posed a danger to her community. The judge found that the unvaccinated pose such a danger, because of their “enhanced risk of infecting other, innocent people and even potentially causing their deaths.”

   Legal scholars are making arguments on both sides of the discussion. Essentially the discussion is about civic responsibility and civil liberties. Some unvaccinated see this as an either/or, you cannot have both civic responsibility and civil liberties. Others disagree.

One ethics law professor argues that the bail condition is probably legally okay as long as the Manhattan woman seeking bail did not have health issues or legitimate religious objections that would permit her to refuse the vaccination. The professor argues that the judge has a responsibility for individual and public safety. Others also argue that such a vaccination order both keeps the defendant safe and helps protect her community from transmission of the virus. They argue that the order of vaccination is not

punitive, that is, to punish the defendant, but rather to rehabilitate her. It is about good citizenship.

   Another legal expert argues the other side of the issue. She says that the danger of spreading the virus has nothing to do with to the distribution of fentanyl, and therefore is not legally permissible. Others against the vaccination order also argue that it may well be a therapist’s job to make a defendant a better person, but not a judge’s job.

   All experts agree that judges can order restrictions on a defendant. Some of the restrictions may include regulating to whom the defendant can talk or associate with, where s/he can travel, and can also limit use of internet. A defendant can be ordered to engage in counseling or to take prescribed medication.

   No doubt this issue will go to higher courts in New York State and other states in the future, since it seems that pandemics will not be easily going away. This will remain an unsettled issue until decided by an appellate court.

MYTH: If the United States Supreme Court makes a ruling, then all states are bound the ruling, regardless of a state’s wish otherwise.

REALITY: The example that best illustrates the contrary principle is the issue of abortion. Some analysts believe that the U.S. Supreme Court has turned ultra conservative. They ask who elected those nine people, anyway? And where does the U.S. Constitution give the Supreme Court so much power, regardless of whatever individual states want? They argue that a woman’s right to choose legal abortion or not, will be limited or eliminated if states are bound by U.S. Supreme Court decisions.

As of December, 2020, at least five District Attorneys, or candidates for District Attorney, pledged that if the U.S. Supreme Court strikes down the abortion case, Roe v. Wade, thereby outlawing legal abortion and a woman’s right to choose, they have a remedy.

The District Attorneys argue that they have an obligation to uphold the U.S. Constitution. They also explain that they have a duty that is greater than that. That duty is to exercise discretion and independent judgment. They sometimes already refuse to prosecute particular crimes or entire categories of crimes. For instance, committing adultery remains a crime in over 20 states, but it is not prosecuted anywhere. The states and major cities with prosecutors who have signed on to the pledge to refuse to prosecute abortion cases include New York, California, Tennessee, Colorado, Georgia, Massachusetts, and Vermont.

   The public can expect vast and deep 

arguments involving states’ rights in enforcement proceedings if a woman’s right to choose legal abortion is impaired by a Supreme Court ruling against the Roe case. And one thing is clear: neither side will give up quietly.

   Attention to legal myths is not wrong. It can be a starting point for developing an interest in the law.

   However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

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