Cincinnati — Last week, a Hamilton County judge became one of Ohio’s few judges, ordering someone to get the COVID-19 vaccine or using vaccination as a way to shorten their sentence.
On August 4, Judge Chris Wagner of Common Pleas ordered a man convicted of possession of a low-level felony, a fentanyl-related compound, to be vaccinated within two months. This was one of several conditions that Wagner imposed when declaring 21-year-old Brandon Rutherford a two-year probation.
Wagner told Enquirer that he did it only then, and did not say whether to impose such conditions again.
“See how this evolves,” Wagner said on Friday.
Although the ruling led to national media coverage, Wagner was not the first or only judge to use the COVID-19 vaccine in the ruling.
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Two months ago, The Columbus Dispatch reported that Franklin County’s common petition judge, Richard Fry, began mandating vaccines as a condition of probation. The two Kaiyahoga County judges also offer some defendants the opportunity to shorten probationary periods in the event of vaccination.
Other judges in Hamilton County are not known to impose requirements for the COVID-19 vaccine. A Hamilton County Prosecutor’s Office spokesman said she knew nothing.
Rutherford’s lawyer, Carl Lewis, has not yet challenged Wagner’s orders. Lewis said he expected Wagner to take no action if Rutherford was not vaccinated.
However, Wagner could even extend the probationary period of Rutherford or even send him to jail. If that happened, Lewis said, “It opens the door for lawyers to sue the matter.”
Lewis also said he believed Wagner’s intentions were good.
“I don’t think he can do this legally,” he said.
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In a ruling on August 4, Rutherford wore a face mask. This is a requirement for those in Wagner’s court who have not been vaccinated with COVID-19. Wagner asked him why he was not vaccinated.
“I’ve never been to get it,” Rutherford told Wagner.
When the judge asked Rutherford if he was worried about vaccination, Rutherford replied, “No, it isn’t.”
Wagner then said the vaccine was “much safer than fentanyl in his pocket.”
He ordered Rutherford to be vaccinated within two months.
Wagner told Enquirer that the court’s responsibility was to rehabilitate the defendant and protect the community. “We always make decisions about the defendant’s physical and mental health, including orders for drugs, alcohol and mental health treatments,” the judge said.
The Ohio Supreme Court has not provided guidance on this issue, spokeswoman Ann Jaeger said.
“The district court has a great deal of discretion in creating probationary periods,” Jaeger said. The Supreme Court “usually does not take part in these matters, except in cases filed through the Court of Appeals.”
In the case of Rutherford, no further hearings are scheduled.
Ohio judge ordered men to be vaccinated with COVID vaccine as part of the sentence
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