NACDL - National Association of Criminal Defense Lawyers

May 9, 2020, NACDL Supplemental Statement of Principles and Further Call to Action Concerning COVID-19 and America’s Criminal Justice System: Avoiding Criminalization in Confronting COVID-19 (via May 11, 2020, NACDL News Release)

It is abundantly clear that the COVID-19 pandemic presents unprecedented threats to society in many ways. In addressing those threats, however, it is important that society not repeat the mistakes of the past through overcriminalization of disfavored social behavior. Jurisdictions across the nation are unfortunately embracing the criminalization of all manner of personal and social behavior in response to alleged violations of public health guidance and orders.

All individuals should be guided in their conduct by the compelling public health concerns underlying efforts at social distancing, the wearing of masks, and other civically responsible practices. Looking to a harsh and unforgiving criminal justice system as the enforcement option of first resort is precisely what has led the United States to be the world leader in incarceration, a situation that was catastrophic prior to the COVID-19 pandemic and one which is now revealing itself to be cataclysmic, with American detention facilities among the hardest hit by the pandemic. Apart from the deeply-rooted American practice of overcriminalizing disfavored personal and social behavior, the idea of arresting people, in particular, for activities that increase the risk of their own infection and as well community spread of the virus, and introducing them into America’s already vulnerable detention facilities, makes no public health sense whatsoever.

NACDL calls upon federal, state, and local officials to implement the following principles, which expand upon the concerns expressed in NACDL's March 4, 2020, Statement[1] and NACDL’s March 19, 2020, Statement of Principles and Further Call to Action Concerning COVID-19 and America’s Criminal Justice System.[2]

1. Jurisdictions should avoid criminalization altogether as a response to the public health crisis presented by COVID-19. Such criminalization, as in the balance of America’s criminal justice system, will be borne disproportionately by people of color and other socially and economically disadvantaged and stigmatized communities, and that is unacceptable. Indeed, in recent weeks, we have witnessed disparate treatment by law enforcement authorities as well as pronouncements by elected political officials adversely impacting groups including African Americans, Asian Americans, Hasidic Jewish Americans, and Hispanic Americans, among others. Scores of criminal justice, civil rights, public health, economic justice, and other advocacy organizations, including NACDL, have endorsed several recommendations concerning criminalization and COVID-19, emphasizing the threat of disparate enforcement against communities of color and other at-risk populations.[3]
2. Jurisdictions should not criminalize alleged violations of stay-at-home orders. Such orders are a constantly changing patchwork across the nation and within each state, and are inherently ambiguous as to what constitutes permissible bases for leaving one’s residence (e.g., exercise).
3. Jurisdictions should not criminalize breaches of quarantine instructions following the administration of a COVID-19 test. Such criminalization can deter testing, leading to worse public health and safety outcomes for individuals and communities.
4. Criminalization of alleged breaches of public health directives during the pandemic also operates to undermine public health and safety by increasing law enforcement’s interaction, and the accompanying risk of escalation, with members of the public (through the accompanying breaches of social distancing-related guidance) and their own risk of infection. It also undermines public health by introducing additional at-risk, or even infected, individuals into already overcrowded, COVID-19-affected, and vulnerable detention facilities.
5. Criminalization of the violation of statutory or executive public health guidance or orders may clash with constitutionally-protected activities, including the freedom to worship and to assemble under the First Amendment.
6. Criminalization as a response to the COVID-19 pandemic also introduces the significant risk of improper surveillance, digital and otherwise, raising profound concerns about the safeguarding of individuals’ Fourth Amendment rights. NACDL, in the coalition letter referenced in footnote 3, has made clear its opposition to “the use of GPS and cell phone data to monitor or track movements of people who are suspected of or have tested positive for COVID-19, and of applications relying on assigned or perceived risk to regulate access to public and private spaces and institutions” as well as law enforcement “surveillance of individual health status and biometrics, including temperature and heartbeat data.”
7. Criminalizing the actual or potential transmission of COVID-19 is a prescription for repeating the same tragic and unjust mistakes made in the context of HIV. Indeed, NACDL strongly supports reform of HIV criminalization statutes lacking strong principles of intent and proportional punishment, and embraces those same principles here.[4]
8. Access to diagnostic testing, treatment, and the availability of all forms of relief from the medical and economic impact of COVID-19 should be equally available to all persons without regard to their criminal history.
9. While all members of the public should abide public health guidance and orders for their own well-being and that of their communities and the larger social order, the enforcement tool of first resort cannot be criminalization. And in a context in which clear and consistent messaging and leadership by government officials is  lacking the criminal enforcement of such guidance and orders further operates to undermine the rule of law and the perceived fairness and equal justice that are meant to be the hallmarks of the U.S. legal system. Public education; clear, consistent, and unambiguous messaging from public health authorities; leadership by example at all levels of government, including the highest; and support for civic and religious leadership taking the initiative to impart upon their constituents the virtue of abiding public health guidance is far more sensible than repeating the same mistakes of the past that have led the United States to lead the world in incarceration, especially now that it leads the world in COVID-19 infections and mortality.
10. To the extent that governmental enforcement of public health requirements arising from COVID-19 is necessary to achieve compliance, enforcement mechanisms should be exclusively civil in nature and should be calibrated to avoid undue harm to less advantaged populations.

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