Policing a pandemic: Criminalization isn't the answer to a public health crisis

The high cost of COVID-19 lockdowns go beyond the economy — civil liberties and racial justice are at risk too

By Sophia Tesfaye

Senior Politics Editor

Published April 8, 2020 8:00AM (EDT)

William Barr | Woman in a medical mask behind bars (AP Photo/Getty Images/Salon)
William Barr | Woman in a medical mask behind bars (AP Photo/Getty Images/Salon)

In his belated response to the spread of the novel coronavirus in the U.S., President Trump has often employed war metaphors to address the public health crisis. 

"I view it as — in a sense — of wartime president," Trump said as the cases of COVID-19, the disease caused by the novel coronavirus, quickly spread to all 50 states. "I mean, that's what we're fighting. I mean, it's a very tough situation here."

Framing the response to the coronavirus as a war fought by doctors and nurses on the front lines conveniently absolves those responsible for the mishandling of the response. If the president can successfully get enough Americans to buy into the idea that suffering and loss is noble and part of a nationalist ideal of good citizenship and patriotism, he may be able to obfuscate his malicious neglect and disregard for human life. 

More importantly, this "invisible enemy," as Trump describes it, manifests in human bodies — and any necessary war will be waged against those who are believed to embody the deadly pathogen. This is a recipe for disaster in a country that cannot yet imagine how to address health without carceral punishment. For years, while hospitals around the nation have been shuttered, millions in public funding went to build new jails. Time and again, attempts to criminalize a disease have negatively impacted public health and human rights — especially those of marginalized communities. 

Since California issued the nation's first stay-at-home order on March 19, 37 more states, as well as Washington, D.C., and Puerto Rico, have implemented similar measures. About 90% of the United States' population is currently living under unprecedented shelter-in-place orders. Police across the nation now have the power to charge residents with misdemeanors if they violate the stay-at-home orders — and a conviction can carry jail time and fines in the thousands. The Supreme Court has upheld such broad power to protect people during a public health crisis under the "police power" provided by the 10th Amendment to the Constitution. So in a sweeping shift, law enforcement officials are now arresting people for allegedly defying self-isolation rules and limits on public gathering and, in some cases, for transmitting the coronavirus that causes COVID-19.

The Department of Justice recently declared that federal anti-terrorism laws can be used to prosecute anyone who threatens or attempts to spread the coronavirus, notifying its prosecutors that the coronavirus meets the statutory definition of a biological agent. The DOJ also asked Congress for sweeping new powers, including the ability to detain people indefinitely without trial and to eliminate legal protections for asylum seekers, before backing down due to bipartisan pushback. 

And while most local jurisdictions have so far resisted the approach of arresting people, we are quickly seeing the over-policing of a health crisis.

In Rhode Island, the National Guard and local police conducted house-to-house searches to find people who traveled from New York, the nation's hardest-hit region, to force them into self-quarantine. In New Jersey, Bergen County police required residents who tested positive for COVID-19 to place quarantine signs on their front doors before the local prosecutor stepped in to ban the mandate. A judge in Kentucky is ordering ankle monitors for some residents who have been in contact with coronavirus patients. 

It's not just law enforcement either. 

Neighbors have turned on each other, as some local officials have set up "snitch lines" for people to report on others they worry may spread the coronavirus. In Maine, a group of locals reportedly cut down a tree and dragged it into the middle of a road in an attempt to forcibly quarantine three roommates from New Jersey they believed could have the new coronavirus. 

Across the country, landlords are even threatening eviction or backing out of rental agreements with hospital workers.

Meanwhile, viral coronavirus maps, like a tool to be launched by Google that will publicly track people's movements, help illustrate the potential spread of coronavirus infections. And as the Wall Street Journal reported, "officials across the U.S. are using location data from millions of cellphones to better understand the movements of Americans during the pandemic."  

To be sure, criminal prosecution can be a needed tool in the arsenal of public health. As we've seen in the past few weeks, sometimes you need all the weapons you can get against those who willingly and knowingly endanger others. It's crucial, however, that our public response delineates between someone who spreads a contagion inadvertently and the far smaller number of people who knowingly and intentionally spread contagion with malicious intent.

Take, for instance, the domestic violence suspect in Orlando, Florida, who shouted, "I have the coronavirus," and coughed directly in a paramedic's face. That person is now facing felony battery charges. Then there is the Tampa pastor who was charged with unlawful assembly and violation of a public health emergency order after claiming he would cure Florida of coronavirus and insisted his church was "the most sterile building in America" because it contains 13 machines that can kill any virus.

And while emergency measures like lockdown are needed, using criminal laws for public health often does more harm than good. From a public health standpoint, criminalization can be counterproductive. 

"Communicable diseases are public health issues, not criminal issues," the HIV Justice Worldwide steering committee wrote in its statement on COVID-19 criminalization. Noting parallels between the AIDS epidemic and COVID-19, the committee said that because criminal laws usually require some prior knowledge, people can be disincentivized from testing. If you do not know your status, you are less likely to be prosecuted for knowing transmission. 

Conversely, it is much easier for prosecutors to charge someone with violating a quarantine order, an observable misdemeanor, than to prove culpable negligence for those who intentionally try to spread the disease. This is where knee-jerk responses to slow the spread of contagion are most likely to exacerbate overcriminalization and mass incarceration. 

Disadvantaged communities, already over-policed, lack ready access to health care and often work or live in conditions that limit their ability to self-isolate. Staying home isn't an option for people who have no place to stay. So beyond bearing the brunt of the health risks, poor communities of color are left most vulnerable to charges of noncompliance. 

There is a potential for harassment of the very people tasked with our basic survival, like those essential workers at the grocery store and driving delivery trucks, for whom working from home isn't possible. Furthermore, people of color are disproportionately stopped by police officers, and their interactions with law enforcement can come with violent or fatal consequences. Adding face masks to the equation can prove downright dangerous. 

In Illinois, a viral video showed a black man being followed by police in a Walmart and ordered to take off his surgical mask. The cops wrongly claimed store policy required his face remain uncovered. In Miami, the local NAACP chapter launched a campaign to oust the chief of police after shocking videos surfaced of a young black woman being shoved to the ground and choked by an officer, reportedly for loitering. Curiously, the throngs of white spring break revelers also crowding Miami's beaches did not seem to attract the same police attention. 

The nation's jails and prisons, whose crowded and unsanitary conditions have long been known to encourage the spread of disease, reportedly have little access to coronavirus tests. Of course, incarcerated people don't have the option of "social distancing." So states and counties are now forced to choose between allowing potentially massive numbers of deaths inside these facilities or the release of people without adequate resources or support amidst a pandemic. 

Los Angeles, Cleveland and Boston have already decided to release prisoners deemed low-risk, elderly and otherwise medically high-risk. Baltimore prosecutors are no longer prosecuting most drug, prostitution and other public order offenses. Meanwhile, Michigan's Democratic Gov. Gretchen Whitmer issued an executive order that anyone who tests positive for COVID-19, or who displays a symptom such as fever, unusual cough or shortness of breath, should stay home and can't be punished for not going to work. Everyone, that is, except prison workers, who were exempted. In New York state, prisoners are being forced to manufacture hand sanitizer that they are banned from using. And while Attorney General Bill Barr issued a memo ordering the federal Bureau of Prisons to begin considering who can be released into home confinement, as Reuters reported, federal prosecutors have urged courts to deny bond to defendants who are in jail awaiting trial — even as the rate of deaths in custody due to COVID-19 spikes.

It's important to note, again, that several local police departments, like Los Angeles, San Francisco and Washington, D.C., have made clear they don't plan to employ more heavy-handed tactics — yet. As California's Democratic Gov. Gavin Newsom made clear when he dispatched the National Guard, martial law is not off the table. 

If our public health emergency gets worse, a police state must be resisted. COVID-19 can be handled with community education and accountability, not cops.

Using a criminal justice approach for a public health challenge will only lead to lasting and far-reaching harms caused by this authoritarian precedent. With few safeguards, the carceral legacy these policies will have on the right to assemble for decades to come may be devastating.

By Sophia Tesfaye

Sophia Tesfaye is Salon's senior editor for news and politics, and resides in Washington, D.C. You can find her on Twitter at @SophiaTesfaye.

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