A Clockwork Contagion
Joseph D. Nohavicka for New York Law Journal
“What’s it going to be then, eh?”
That is the opening line to Anthony Burgess’s 1962 tour de force, A Clockwork Orange, a story set in a dystopian future where crime had evolved into a juggernaut threatening the existence of ordered society. A medical panacea emerges in the novel in the form of voluntary alternative-sentencing behavior modification: The subject criminal is given an injection that makes him debilitatingly ill while being forced simultaneously to watch films depicting graphic violence.
The Pavlovian result over a period of treatments is that the subject becomes ill anytime they are exposed to violence. After choosing the alternative sentence, the criminal’s choice to be law-abiding is gone. Law and medicine solved the problem presented by the pandemic of violence.
Alternative Sentencing in the Time of COVID-19
Bronx Criminal Court Judge Jeffrey M. Zimmerman raises a vexing philosophical and moral question penned in a recent decision where he asks, “Can a defendant be required to get vaccinated for COVID as a condition of a conditional discharge?”
The case is People v. D.R., In that case, the defendant, “D.R.”, was offered what the judge believed to be an overly-generous plea bargain that needed an additional term—the COVID-19 vaccine. Judge Zimmerman expressed the view that such a condition is permissible and included it as part of the defendant’s conditional discharge sentence. The informative decision lays out Judge Zimmerman’s authority, rationale, and the justification for imposing the unusual condition.
Case Background
On April 22, 2020, while Fire Department EMT Laura Karol was treating the defendant, he struck her with a closed fist. He was charged with assault on an emergency medical service professional pursuant to PL §120.08, a Class C felony. He was arraigned in Bronx County Criminal Court on April 23, 2020 and held on $5,000 bail. The defendant posted bail on May 8, 2020, and was then released.
After multiple appearances, the defendant was given the opportunity to plead to the non-criminal violation of Disorderly Conduct, PL §240.20, with a Conditional Discharge.
Before approving of the negotiated plea agreement Judge Zimmerman asked the defendant whether he had been vaccinated for COVID-19, and he responded that he was, although he did not have proof of the vaccine with him. The court expressed the view that the People’s offer was extraordinarily generous and that it would accept the plea only if the defendant, as a condition of the conditional discharge, provided proof of his COVID-19 vaccine.
Significantly, Judge Zimmerman was not requiring the defendant to be vaccinated, since he was free to decline the offer and proceed with the case. The judge believed the vaccine condition to be rehabilitative, and therefore allowable.
Nevertheless, defense counsel objected to the vaccine condition, arguing that it “should [not] be a condition on any plea in this courthouse or anywhere” because the defendant “should have the right to choose the vaccine or not”.
The Sentencing Judge’s Rationale
The court pointed out that over 56,000 New Yorkers have died of COVID-19; over 34,000 of them lived in New York City, and 6,723 of them were from the Bronx. And that here in the Bronx, 30% of adults over 18 are still not fully vaccinated.
The result, the court noted, has been what epidemiologists have described as a “pandemic of the unvaccinated,” in which the overwhelming number of hospitalized individuals are those who have not taken advantage of the vaccine.
The court concluded as follows: “The bottom line is that whether somebody is vaccinated affects not only that individual, but her friends, family, and fellow citizens. We are all, very much, in this together.”
Judge Zimmerman’s legal analysis began with PL §65.10, which sets forth the criteria for what sorts of conditions can be imposed in connection with both probation and a conditional discharge, which gives the sentencing court discretion. The sentencing judge need only establish that the condition is “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so,” even so far as to require a defendant to “[u]ndergo available medical or psychiatric treatment,” perform a broad range of community service, including, but not limited to, graffiti removal and grave digging,” or “[s]atisfy any other conditions reasonably related to his rehabilitation.” PL §65.10.
The Reasonable Relationship Between the Crime and the Condition
Criminal defendants are often given community service as a punitive measure for low-level crimes that are not obviously related to the specific crime committed. Addressing the issue of the relative nexus, Judge Zimmerman wrote: “If demonstrating one’s commitment to his or her fellow citizens by getting vaccinated during a once-in-a-century pandemic is not an allowable condition because it lacks a nexus with the crime charged, then picking up trash for a few hours in the urine-scented Grand Concourse underpass on East 161st Street undoubtedly suffers from the same infirmity.”
That analogy was cap-stoned with the conclusion: “the Covid vaccine just isn’t a big deal … and [it] is extremely unfortunate that the science of vaccination has been coopted by the politics of the moment.”
“What’s it going to be then, eh?”
In the Burgess novel, during a home invasion the story’s anti-hero, Alex, discovers a manuscript being worked on by the home’s owner titled A Clockwork Orange, which protests the nation’s increasingly authoritarian government, declaring, “‘The attempt to impose upon man, a creature of growth and capable of sweetness … laws and conditions appropriate to a mechanical creation, against this I raise my sword-pen.’”
After consulting further with counsel, the defendant in Judge Zimmerman’s case finally decided to plead guilty to the disorderly conduct violation, and was sentenced to a conditional discharge, a condition being that he present proof of COVID vaccination within three months.
He was cured all right.