Ohio judge orders man to get a COVID-19 vaccine as part of his sentence

CINCINNATI – Last week, a Hamilton County judge became one of a handful in Ohio who have either ordered someone to get a COVID-19 vaccine or used getting vaccinated as a way to reduce a sentence.

On Aug. 4, Common Pleas Judge Chris Wagner ordered a man who pleaded guilty to possession of a fentanyl-related compound, a low-level felony, to get a vaccine within two months. It was one of several conditions Wagner imposed in sentencing Brandon Rutherford, 21, to two years of probation.

Wagner told the Enquirer he has imposed vaccination in only that case and declined to say whether he would do it again. 

"We'll see how this develops," Wagner said Friday.

Wagner is not the first judge to use the COVID-19 vaccine in a sentence. 

The vaccinated are angry:That's understandable but unproductive, health experts say

Two months ago, the Columbus Dispatch reported that Franklin County Common Pleas Judge Richard Frye mandated vaccine as a condition of probation in some cases. Two Cuyahoga County judges offered defendants the opportunity to reduce their probation terms if they got vaccinated.

A spokeswoman for the Hamilton County Prosecutor's Office said she was not aware of any other judges who have imposed a COVID-19 vaccine.

Rutherford's attorney, Carl Lewis, did not challenge Wagner's order. Lewis said he expects Wagner won't take any action if Rutherford doesn't get vaccinated.

Wagner could extend Rutherford's probation term or even send him to prison. If that happens, Lewis said, "that opens to door for lawyers to litigate the issue."

Lewis said he believes Wagner's intentions are good.

"I just don't believe he can do this, legally," he said. 

Will COVID-19 vaccine booster shots be needed? It's likely, experts say, but the immunocompromised should be prioritized.

At the sentencing Aug. 4, Rutherford wore a face mask – a requirement for anyone in Wagner’s courtroom who hasn't received a COVID-19 vaccine. Wagner asked him why he hadn’t been vaccinated.

“I just never went to get it,” Rutherford told him.

When the judge asked Rutherford if he was worried about getting a vaccine, Rutherford responded, “No, not really.”

Wagner told him vaccines are “a lot safer than fentanyl, which is what you had in your pocket.”

Wagner told the Enquirer that a court’s responsibility is to rehabilitate a defendant and protect the community. Judges, he said, “make decisions regarding a defendant’s physical and mental health all the time, including ordering drug, alcohol and mental health treatment.”

The Ohio Supreme Court has not created any guidance on this issue, spokeswoman Anne Yeager said.

“Local courts have a great deal of discretion in crafting probation terms,” Yeager said. The Supreme Court “does not generally get involved in those matters except through cases brought before it through its appellate docket.” 

No further hearings have been scheduled in Rutherford's case.