A 21-year-old black man convicted on a drug possession charge was ordered to accept a COVID-19 injection by a Cincinnati judge as a condition of his probation. If he chooses to decline, he will be imprisoned.
In an Aug. 5 report by WCPO, a Cincinnati-based ABC affiliate, Brandon Rutherford said Judge Christopher Wagner, a Common Pleas Court official, asked him if he was vaccinated during sentencing, “I told him no. And he asked me if I planned to get vaccinated, and I told him no.”
After Rutherford declined the injection, Wager issued an order requiring him to get vaccinated within 60 days as part of his probation requirements.
“I don’t plan on getting it. I don’t want it…So, for him to tell me that I have to get it in order for me to not violate my probation is crazy because I’m just trying to do what I can to get off this as quickly as possible, like finding a job and everything else, but that little thing can set me back,” said Rutherford.
Defense attorney Carl Lewis corroborated the story, “When you hear that, you’re like, ‘Whoa, I don’t think the judges are within their powers to do that’,” he said, adding its the first time he’s heard of a judge in his area ordering a mandatory injection as a condition of parole.
WCPO said there was “a question mark next to the judge’s requirement for Rutherford to get vaccinated” on his computer-printed court papers.
Lewis said, “If he truly believes that he’s within authority to order the individual to get a vaccine, then we’ll have a legal issue to address.”
Rutherford lamented, “It’s not like I’m out here getting into any more trouble or anything like that…But because I don’t take a shot, they can send me to jail. I don’t agree with that.”
WCPO said the judge and his staff failed to respond to an email and two phone calls requesting comment on the decision. However, the next day, Wagner replied in a written statement where he claimed, “The court’s responsibility when issuing a community control sanction [probation] is to rehabilitate the defendant and protect the community.”
Wagner opined that his mandate was the same thing “as ordering drug, alcohol, and mental health treatment.”
The outlet also received a copy of the transcript of Rutherford’s court proceedings. During the hearing, Wagner said “I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket.”
“You’re going to maintain employment. You’re not going to be around a firearm. I’m going to order you, within the next two months, to get a vaccine and show that to the probation office. Okay?” asked Wagner while threatening Rutherford with 18 months imprisonment if he violated the conditions.
Wagner also said in his statement that neither Rutherford nor his attorney objected to the condition during the hearing, “We will have to see what happens now that the defendant is expressing opposition,” the judge added. “We might have to hold a hearing if the defendant has good reason not to take the vaccine. The defendant’s attorney, as of now, is not asking for a hearing.”
Lewis told WCPO they would be requesting a hearing on the matter. In a statement given to Daily Mail, Lewis said further action would have to wait until the 60-day time limit passed and would depend on whether Wagner enforces a penalty on Rutherford for not accepting the vaccine, noting they will sue if he does.
The case is not an isolated one. In June, an Ohio Franklin County Judge Richard Frye made vaccination a condition of probation in three cases he oversaw in a week, according to Cincinnati-based The Enquirer.
The article says that during sentencing, Frye interrogated defendants as to why they had not accepted a vaccine yet. When they said it was because of “procrastination,” Frye imposed the mandate as a condition of parole, “It occurred to me that at least some of these folks need to be encouraged not to procrastinate,” said the judge, adding, “I think it’s a reasonable condition when we’re telling people to get employed and be out in the community.”
Frye claimed “I just wanted them to be safe in the community.”