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Economic justice—not criminalization—is the key to shelter in place orders in the U.S.

Article by Najia Humayun



I. Introduction:

In Italy, people with COVID-19 (coronavirus) symptoms who refuse to self-isolate could be charged with causing injury, a 6-36 month sentence. People who end up passing the virus to someone who dies could be charged with intentional murder, a 21-year sentence. With the rise of coronavirus in America, similar policies will surface here. For example, in Chicago, people with symptoms who violate the shelter in place order could be fined $100 to $500.

I interviewed Berkeley Law professor Andrea Roth on the potential use of criminalization to enforce shelter in place orders in the U.S. I found that hypothetical intentional murder charges for passing coronavirus in the U.S. are unlikely. Nevertheless, the dangers of criminalization as a means of enforcing shelter in place orders in the U.S. are alarming, due to the nature of sentencing and history of racism in our criminal justice system. Therefore, the U.S. should turn to economic justice measures, including universal basic income and rent forgiveness, as its primary method to ensure the effectiveness of shelter in place orders.

II. Hypothetical murder charges for spreading coronavirus in the U.S.:

a. Intentional murder

Professor Andrea Roth predicts that intentional murder charges for passing coronavirus in violation of a shelter in place order would be difficult to maintain under U.S. criminal law. She analogized to the early days of the AIDS crisis, when the only people prosecuted for intentional murder were those with an explicit statement indicating intent to spread AIDS, or purposefully lying about their status. Such statements were sufficient as circumstantial evidence to infer intent to kill. Merely exposing people to AIDS without sufficient evidence of intent to kill would not lead to intentional murder charges. State v. Smallwood, a 1996 case where an HIV-positive rapist’s status alone was insufficient to infer an intent to kill, is an example of this. Likewise, merely exposing people to coronavirus without evidence corroborating intent to kill would not lead to intentional murder charges.

b. Unintentional murder

Unintentional murder charges such as depraved heart murder, negligent homicide, and involuntary manslaughter would be more possible, Professor Roth explains. Completely unjustified risk can lead to depraved heart murder charges, regardless of the level of risk. If unjustified, the estimated 3.4% fatality rate of coronavirus could be sufficient risk for depraved heart murder charges. Preexisting conditions which make individuals more vulnerable to coronavirus would likely not create a causation issue, as two causes can work together without breaking the chain of causation.

c. Reckless endangerment

Professor Roth predicts that reckless endangerment charges are more likely than murder charges for exposing people to coronavirus. Recklessness requires only subjective awareness towards the resulting crime, which would be easy to prove given the high level of media saturation surrounding the importance of self-isolation. This reasoning on recklessness being easy to prove could also apply to some of the unintentional murder charges listed above, particularly, involuntary manslaughter. However, reckless endangerment charges would be even more likely to succeed than unintentional murder charges, because reckless endangerment only requires reckless conduct that is likely to produce death or grievous bodily harm.

III. The dangers of criminalization as a means of enforcing shelter in place in the U.S.:

A carceral logic, or punishment mindset, dominates many U.S. government functions­—even those far removed from prisons. It is not surprising, then, to consider that the U.S. may turn to criminalization as a means of enforcing shelter in place orders. Other countries, such as Italy, have already done the same. The U.S. criminal justice system boasts draconian sentencing laws and a blatant history of racism. Therefore, to avoid perpetuating injustice, the U.S. must precede any attempts at using criminalization to enforce shelter in place orders with economic justice measures to do so.

a. What criminalization looks like in the U.S: Nature of sentencing:

The U.S. makes up 5% of the world’s population, but has 25% of the world’s prison population. One of the main drivers of mass incarceration in the U.S. is unfair sentencing laws. Mandatory minimums, for example, have increased prosecutorial discretion, allowing prosecutors to charge defendants with crimes triggering mandatory minimums. Prosecutors can thereby coerce defendants to admitting guilt, even falsely. Three-strike laws require judges to issue life-sentences to defendants after a third crime, even if all three crimes were minor offenses. Truth-in-sentencing laws eliminate parole opportunities, requiring many prisoners to serve upwards of 75% of their sentence.

If violating a shelter in place order became a criminal offense, those charged with it would be subject to these draconian sentencing laws. The individuals most likely to violate a shelter in place order would be those working in service industries, or other hourly workers unable to survive at home without income from continuing their work. Though criminalization of violating a shelter in place order may serve as a last resort, the government must first ensure that no individual is obligated to leave their home in order to survive. To do so, it must implement measures of economic justice including, most importantly, a permanent, survivable universal basic income.

b. What criminalization looks like in the U.S: History of racism:

Racist institutions in the U.S. have never been abolished. Rather, they have simply transformed. As explained by Angela Davis in her book Are Prisons Obsolete, slavery, lynching, segregation, and now prisons, are racist institutions which have passed each other the mantle of legitimizing the oppression of African Americans and other people of color in the U.S. By using criminalization as the primary means of enforcing shelter in place orders, the government will inevitably end up targeting people of color and throwing them to the whims of the criminal justice system.

In order to enforce shelter in place orders without perpetuating this racist history, criminalization can only function in the background of effective economic justice measures, including a universal basic income, rent freezes, and other forms of welfare. By prioritizing economic justice and allowing criminalization to operate in the background, we can take a small step towards preventing the further expansion of prison populations, and in that way promoting a system “where the prison no longer serves as our major anchor.”

For example, Professor Roth described the difference between the opioid crisis which has mostly affected white individuals being treated as public health crisis, and the crack epidemic of the 80s which mostly affected black individuals being treated as a criminal justice issue. She described the value of viewing criminalization as a last resort means of controlling people’s behavior, especially when there is a public health crisis.

IV. Comparative Perspective

The U.S. criminal justice system is particularly ill-suited to use criminalization as a method to enforce shelter-in-place orders, for the reasons outlined above. This conclusion is corroborated by comparisons of U.S. criminal legal system to other criminal legal systems.

Scholars have suggested that the continental European criminal legal system does a better job at being merciful to the convicted criminal. Though the U.S. system does a better job at protecting the innocent from conviction in the first place, they state that it would be better off emulating the “more humane approach” of the continental model, especially by “showing more concern for the guilty.” The Italian system in particular might offer more protections to defendants than the U.S. system does.

V. Conclusion

Now is not the time to question the authority of the government to take control to prevent the spread of coronavirus. But it is the time to question what methods of control the government should prioritize to do so. By prioritizing economic justice measures and leaving criminalization to operate in the background, the U.S. government can ensure the effectiveness of coronavirus shelter in place orders without perpetuating the injustices of our criminal justice system in a new context.

Many may disagree and believe that criminalization should be the primary means of enforcing shelter in place orders, particularly for deterrence purposes. However, I urge any such individuals to ask themselves: Is your goal decreasing the spread of coronavirus? If yes, do you believe that sending people to crowded prisons with minimal health standards will do so? The answer to this question is almost certainly no.

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