No New Crimes: COVID-19 social distancing failures should not be punishable by law

By: Anne Zimmerman, JD

Anne Zimmerman, a 2020 candidate for an MS in Bioethics at Columbia University, received a J.D. from Fordham University School of Law and a B.A. from St. Lawrence University. She is an attorney in New York, most recently focused on policy research, criminal justice reform, and mass incarceration.

Having an interest in racial inequality and poverty, I was grateful to write this short piece about the value of preventing crime creep—new crimes often target marginalized people. In the US, police forces step in where civil enforcement or some other mechanism should exist. Armed police are not the right tool for traffic tickets or enforcing liens due to overdue payments and civil court rewards, and they are not the proper tool for public health authorities trying to enforce health measures. With the recent racial turmoil in the US, a new crime that would heavily affect black and Hispanic people in urban areas is most unwelcome, therefore it was a pleasure to answer Cafe Bioethics’ prompt about whether health measure violations should be punishable by law.

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Social distancing measures should not be punishable by law. When accompanied by police power, criminal punishments, or significant fines, social distancing measures overstep the typical justification for emergency powers: necessity. Fines and jail time are not proven methods of improving social distancing compliance. Where social distancing is impossible, masks provide backup. The public health authority for social distancing laws, based on emergency powers, should be civil, not criminal (1). Unlike police and prosecutors, the public health authority is not a branch of any law enforcement organization. Other tactics to compel behavior include neighborhood watch programs, enforcement by civilians rather than police or military, and campaigns that encourage buy-in. When facing noncompliance, governments should take advantage of every opportunity to govern a space rather than a person. While emergency powers are well documented, abuse of emergency power is an established global problem.

Of the many reasons social distancing should not be punishable by law, the most pressing is the inherent inequality of the law. On its face, a social distancing order applies to everyone equally. In practice, social distancing becomes increasingly difficult as income level drops. Social distancing with a house and a yard is easy; social distancing in impoverished inner cities is not. Social distancing when working from home is effortless; many low-income workers cannot work from home and those who are able to work during the pandemic (essential workers or workers in places without strict stay-at-home orders) have an increased risk of violating social distancing measures. At lower income levels, more people use public transportation, rely on public spaces as their only outdoor recreational space, and frequent crowded stores for groceries and other essential goods.

In New York City, Mayor Bill DeBlasio instituted a $1,000 fine for social distancing violations. While civil fines are a tool of enforcement, social distancing violations do not warrant more than nominal fines that are more an inconvenience than a punishment. In the US, there is a pattern of law enforcement taking part in civil infractions like failure to pay parking tickets, lien enforcement, and licensing and permitting violations. Using police power to enforce civil infractions is a source of angst, puts marginalized people at elevated risk of arrest, and burdens the vulnerable disproportionately. There is no time to research how behaviors will change based on the threat of a fine, i.e., whether fines will deter violators and have an actual impact on public health. Many well-intentioned people want to distance for the sake of public health and their own health. When they need to take a subway or they unexpectedly find themselves in a crowded area, a mask is a good option. A punishment is not. Law enforcement would have trouble ascertaining intent to violate social distancing laws. The application of even a meager fine is fraught with ethical challenges. So far, 81 percent of the criminal summonses have gone to New Yorkers who are black or Latino. While to the city, the fines do not add up to much, a $1,000 fine can be the difference between the ability to pay rent for many New Yorkers especially those unemployed or underemployed due to COVID-19.

By regulating spaces rather than people, governments can encourage social distancing without punishing those who have less access to open space or are already marginalized. For example, New York City took down basketball hoops and rims. The city achieved the goal of discouraging pick-up games which violate social distancing measures. Without scouting basketball courts and nabbing a class of newly created criminals, the city implemented a physical deterrent. Leaving the parks open for exercise and other socially distanced activities was a bonus compared to places like Florida where beaches were closed altogether because creative measures were not implemented at first. After closures, beaches reopened to walkers and swimmers with the use of chairs forbidden. Beaches and parks could also control access throughout the day or accept appointments. Designating areas of open lawns (using white paint like that used on sports fields) could clarify the amount of space each small group or individual should have. Arrows, tape, and civilian officials could direct people the same way grocery stores are managing to keep customers at a safe distance from each other and employees.

Technology could even help regulate the number of people on sidewalks. Electronic signs on subways signaling cars with the fewest people in them (like airport parking lots that list the number of open spaces) or designating express cars and controlling doors in certain stations could help passengers distribute themselves evenly throughout cars. Staggered work hours can also reduce crowds on public transportation and sidewalk traffic. The amendment of municipal codes that have maximum capacity requirements can prevent people from getting into spaces in which they have trouble distancing. Bars, restaurants, gyms, stadiums, and theatres can be regulated to reduce the chance of social distancing violations. Policies and technologies designed to allow use of public spaces, parks, or stores in an orderly and fair way should be embraced.

While some social distancing violations are inevitable, neighborhood watch, technology, and civilian public health officials should enforce social distancing civilly, fairly, and nominally. Social distancing relies on a social pact between the public and public health officials. Social distancing requirements have the effect of targeting people based on their race and income level. Creating new crimes under the guise of public health should be avoided while the all-out effort to combat COVID-19 should creatively continue.

1. Galva, Jorge, Christopher Atchison, and Samuel Levy, “Public Health Strategy and the Police Powers of the State.” Public Health Reports (2005 Supplement) Vol. 120, p. 25.