A needle is filled with vaccine ahead of a shot. Courtesy of NIH

The N.C. Department of Health and Human Services and the state Department of Public Safety, which control vaccine distribution and the prison system, respectively, continue to move the goalposts for who qualifies to be vaccinated and when. 

Prison staff and people in prison are prioritized to get the vaccine, though DHHS moved both groups, especially incarcerated people, down in the order of distribution after the national Centers for Disease Control and Prevention released updated guidance in December and January. 

Now, DPS is using an apparent loophole to set its own rules and move prison staff, but not prisoners, back up to the top priority for vaccine distribution. 

If some assumptions about the vaccine are accurate, this move could make some public health sense, according to Natalia Linos, executive director of the Harvard FXB Center for Health and Human Rights. 

One assumption is that the vaccines decrease transmissibility of the virus, which is expected but has not yet been shown in research on the Pfizer or Moderna vaccines. Other assumptions are that enough prison staff will volunteer to be vaccinated, that new prison intakes will continue to be tested and quarantined to prevent them from bringing in the virus, and that visitations will remain suspended. 

“If your priority was to limit spread to the outside community, you would prioritize it that way,” Linos said. “But I don’t think that is what people should be prioritizing. We want to be limiting deaths.”

To date, 42 people in North Carolina’s prisons have died from COVID-19 infections, along with at least six prison staff, which puts mortality rates in the prison population well above that of the state as a whole, according to calculations from the COVID Prison Project

But there are other ways to think about who should get the vaccine and when. 

“From a human rights perspective, it doesn’t make sense,” Linos said. 

That’s because people in prison are in a unique situation. They do not have freedom of movement and therefore cannot socially distance themselves, while at the same time the state is constitutionally responsible for their care

By not providing vaccines to people in prison, “you’re basically leaving them in a state of increased vulnerability and risk and not doing anything about that increased risk,” Linos said. 

Setting its own rules, with DHHS’ approval 

As both a distributor and recipient of the vaccine, DPS appears to have greater authority over how it allocates vaccines than state officials previously disclosed. 

DHHS’ statewide guidelines for vaccine rollout identify health care workers and support staff as the highest priority for inoculation, followed by anybody 65 years or older, then by front-line essential workers, which include prison staff, and then all adults at high risk for exposure to COVID-19 or severe illness. That last group would include the entire prison population. 

But DPS has classified all staff members who work in prisons as health care staff, therefore making them eligible to get the vaccine before the state moves on to Group 3, where correctional workers are explicitly identified. 

In early January, DPS started having weekly press calls to answer questions about vaccine distribution in the prisons. In the first two calls, on Jan. 7 and Jan. 14, DPS officials described health care staff getting vaccinated at local health departments. They did not mention custody officers being classified under the Group 1 vaccine criteria. 

Then, in the week when DPS got its first 1,300 doses of the vaccine, DPS officials said on the Jan. 21 press call that prison staff working on units with confirmed COVID-19 cases would be eligible to get the vaccine in Group 1. The next week, on Jan. 29, DPS officials said that actually any prison staff members who interact with prisoners could be classified in Group 1. 

“I won’t go deeply into the old criteria versus the new criteria, but it’s all individuals who have direct exposure to COVID-positive individuals,” said Dr. Arthur “Les” Campbell, chief medical officer for prisons. 

“In the prison setting, virtually every correction officer has the potential to be exposed to COVID-affected individuals.” 

By that same logic, all people in prison have the potential to be exposed to COVID-affected individuals. But DPS is not choosing to move the people in its custody up to a higher priority group the way it is choosing to do with its staff.

Campbell said that prisoners are specifically identified in Group 4 of DHHS’ vaccination plan, which is why they don’t also qualify under DPS’ “direct exposure” rule. But that is also true for prison staff, who are specifically identified in Group 3. 

“The offenders, you can imagine, this is almost like their house, right?” Campbell said. “This is kind of where they live. The corrections officers can’t necessarily always maintain social distancing. … They’re the ones who have to occasionally go through and check temperatures on these offenders. … There could be an incident they need to respond to where they’re going to have very close contact with offenders.”

In June, a Wake County Superior Court judge ruled in a case called NAACP v. Cooper that North Carolina’s prison conditions were likely unconstitutional due to the risk of COVID-19 to people in prison, largely because of the impossibility to socially distance while incarcerated. 

Court documents describe people in prison sleeping and eating within an arm’s reach of other prisoners, sharing a bathroom with 60 other people and working prison jobs, including some that would appear to qualify them for vaccination in Group 1 by DHHS’ standards, that put them in close contact with other inmates with little protection. Of the over 46,000 people who have been incarcerated in state prison since last March, more than 9,000 have tested positive for COVID-19. 

DPS’ justification for vaccinating staff before the state moves on to Group 3 vaccinations is to “reduce the potential for viral spread to the offender population as well as to the general public,” according to John Bull, a department spokesperson.

DHHS approves

The federal government allocates vaccine doses to the states, which then allocate doses to providers, who then get the vaccine shipped to them directly and distribute the doses to patients. 

DPS administered its first vaccines on Jan. 20. That first week, DHHS approved DPS for 1,300 doses of the Moderna vaccine. DHHS approved DPS for 2,000 doses each week over the next two weeks. 

These dose amounts are based on information that DPS provides to DHHS, according to Catie Armstrong, a spokesperson for DHHS.

“We ask DPS to notify us of the amount they need per week based on the current phase and their capacity,” Armstrong wrote in an email. “We then supply what we can based on the state’s allocation.”

But in the first two weeks of vaccine allocation, DPS vaccinated all staff and prisoners who would obviously qualify under groups 1 and 2 of the distribution plan, which DPS officials say they are following. 

“Every medical staff member and all staff and offenders age 65 and older who desire vaccine have indeed received it,” Bull said in an emailed statement.

Now, DPS has an additional 2,000 vaccines in this week’s allocation that it decides what to do with. DHHS seems to approve allocating those vaccines to correctional officers, though the state as a whole has not yet moved on to vaccinating front-line essential workers. 

“It is up to DPS to determine individuals who are eligible in Group 1 with in-person patient contact,” said Christine Mackey, director of communications for DHHS. 

This allows DPS to redefine all people in prison as “patients” and all correctional officers as administrative or support staff to health care workers.

DHHS did not answer questions as to why DHHS does not mention correctional officers in its extensive description of who qualifies in Group 1 or why correctional officers, but not other front-line essential workers such as teachers, can be reclassified into Group 1 prioritization. 

It’s also not clear if DPS’ definition of correctional officers as health care staff would work with any other vaccine distributor. 

“Our staff are always welcome to, you know, pursue external vaccination, if they would like,” said Todd Ishee, the commissioner of prisons. 

But Leah Holdren, communications consultant for the Wake County government, said correctional officers could only get vaccinated at the local health department if they “hold a health care worker role.” She referred Carolina Public Press to the DHHS guidelines, the same ones DPS is using to justify placing correctional officers under Group 1. 

Neither DPS nor DHHS has responded to records requests showing how DPS notified DHHS of the amount of vaccines needed per week, so it is not clear when DPS came up with this idea or when DHHS was made aware of this recategorization. 

As of Jan. 1, DPS had 7,566 correctional officers. As of Feb. 2, DPS vaccinated 1,987 of its health care and correctional officers. Another 457, presumably medical staff who were vaccinated at local health departments, got their vaccinations elsewhere. 

The Division of Prisons has about 14,000 staff members in total, though it is not clear how many of them will qualify for the vaccine, even in Group 3, where staff members have to work in person to qualify. Since vaccination is voluntary, it is also not clear how many staff will opt in to getting immunized. 

But under DHHS’ current plan, incarcerated people will not get another dose until all essential front-line workers in the state get their vaccines. As of Feb. 2, 853 prisoners ages 65 or older have gotten the vaccine. Those who declined the vaccine can still change their mind and would still currently qualify to get their shot. 

Inflating county numbers 

DPS uses four prisons as regional hubs for distributing the vaccines. They are Alexander Correctional Institution in Alexander County, Central Prison in Wake County, Maury Correctional Institution in Greene County and Scotland Correctional Institution in Scotland County. 

This week, DHHS allocated 500 vaccine doses to each of those prisons. From there, a prison’s “Incident Command” makes daily decisions about where to send the vaccines within the prison system, according to Bull. 

In DHHS’ reporting for vaccine distribution, the department calculates the number of doses per person in each county. The allocations to prisons are skewing those numbers. 

Take Alexander County. This week, DHHS allocated 300 doses to the county health department and 500 doses to the prison. Though there is no guarantee that those 500 doses will be used for correctional officers at the Alexander prison and not other prisons in the region, they get counted in the county’s people-per-dose ratio. 

This makes it seem as if there are more doses available to people in the county than there actually are. 

The change doesn’t make much of a difference in the people-per-dose calculations in Wake County, where the number of vaccines and the population are much higher. But in Scotland and Greene, two other rural counties, the impact on the apparent number of vaccines available is also significant.

DPS has not to date provided geographic information about where its vaccines are being distributed after they arrive at these four prison distribution hubs.

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.