CINCINNATI — A Hamilton County judge defended ordering a probationer to get a COVID-19 vaccine shot by comparing the order to court-mandated drug treatment and mental health counseling as conditions of probation.
"The court's responsibility when issuing a community control sanction is to rehabilitate the defendant and protect the community," wrote Judge Christopher Wagner in a statement emailed Friday to the WCPO 9 I-Team. "Judges make decisions regularly regarding a defendant's physical and mental health, such as ordering drug, alcohol, and mental health treatment."
On Wednesday, Wagner ordered Brandon Rutherford, 21, to get vaccinated within 60 days as a condition of his probation for a drug offense after Rutherford told the judge he was wearing a mask in court because Rutherford hadn't received the COVID-19 vaccine.
Wagner's office also provided a copy of the transcript of Rutherford's hearing.
"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," Wagner told Rutherford, according to the transcript. "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?"
According to the transcript, Wagner threatened to send Rutherford to state prison for up to 18 months if he violated conditions of Community Control, which is commonly referred to as probation.
Rutherford didn't question the order during the hearing, but in a Thursday interview with the I-Team, Rutherford said it was unfair to force him to get a shot that he doesn't want or believe he needs.
Philip Lee
"Because I don't take a shot they can send me to jail? I don't agree with that," Rutherford said. "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 (COVID vaccine) can set me back."
Rutherford's attorney, Carl Lewis, said he was "taken aback" by Wagner's order.
"When you hear that, you're like 'whoa,'" Lewis said Thursday. "I don't think the judges are within their powers to do that."
In his statement, Wagner mentioned that Rutherford and Lewis didn't object to his order during the sentencing hearing.
"We will have to see what happens now that the defendant is expressing opposition," the judge said in his statement. "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.”
In response to the judge's statement, Lewis told the I-Team he will request a hearing on the matter.
