Nation’s Criminal Defense Bar Decries Criminalization as Response to COVID-19, Warns of Disparate Impact --

Washington, DC (May 11, 2020) – On Saturday, May 9, 2020, NACDL’s Board of Directors unanimously adopted the “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,” provided in full below.

“All too often, the United States turns to the criminal justice system as the tool of first resort to address all manner of socially undesirable conduct,” said NACDL President Nina J. Ginsberg. “So it comes as no surprise that authorities in many jurisdictions are turning to criminal penalties in connection with efforts to address this pandemic. The nation’s criminal defense bar knows first-hand the consequences of such ill-advised criminalization. In adopting the principles below, NACDL decries criminalization as a response to COVID-19 and implores policymakers across the nation to reconsider this terribly ill-advised response to the pandemic.”

“As the nation confronts a raging virus and a collapsing economy, the misguided reliance on criminal law enforcement must be avoided,” said NACDL Executive Director Norman L. Reimer. “Overcriminalization inevitably results in selective law enforcement that hits minority communities the hardest. Let us not repeat the mistakes of the past when we turned public health concerns associated with drugs into an instrument of oppression and put the nation on a path to mass incarceration. Let us be smart this time and rely on civic education rather than criminal prosecution.”

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

May 9, 2020

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.

Footnotes

[1]The March 4, 2020, Statement is available at https://www.nacdl.org/newsrelease/Coronavirus-Detention-Facilities.

[2]The March 19, 2020, Statement of Principles is available at https://nacdl.org/document/March-19-2020-NACDL-Statement-of-Principles.

[3] A link to the April 10, 2020, Coalition Letter to U.S. House and Senate Judiciary Committee Leadership Concerning Criminalization and COVID-19 is available at https://www.nacdl.org/Document/Letter-SHJud-OvercrimOverenforcedCOVID19-04102020. (“We, the undersigned organizations, are dedicated to the health, safety, and dignity of Black, Indigenous and People of Color (BIPOC), people living with HIV, people involved in the sex trade, substance users, people who access harm reduction services, migrant populations, lesbian, gay, bisexual, transgender and queer (LGBTQ) people, disabled people, and no- and low-income people. We write today to urge local, state and federal authorities to refrain from using laws punitively in response to the novel coronavirus (COVID-19) pandemic. Such laws and their enforcement invariably and incommensurately target and harm our communities….communities already heavily surveilled, policed, and criminalized will likely bear the brunt of COVID-19 related surveillance, policing, criminal charges and/or penalty enhancements. A response rooted in policing and criminalization not only undermines public health and human rights, but jeopardizes the long-term survival of our communities.”) (emphasis added)

[4] NACDL’s May 21, 2016, Board Resolution Concerning HIV Criminalization is available at https://www.nacdl.org/Content/BoardofDirectors~5-21-2016 (“NACDL opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.”)

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.