October 26, 2020 Feature

Criminal Justice and COVID-19

Mark E. Wojcik and David W. Austin

The Coronavirus Disease 2019 (COVID-19) has raised not only public health issues but many legal issues, including civil and criminal liability for transmission, criminal law issues related to COVID-19, and the early release of individuals from jails and prisons. This article presents a snapshot of some of the constantly evolving criminal justice issues in the United States relating to COVID-19.

COVID-19 and Crime Rates

Decreases in the Overall Crime Rate

Crime rates dropped in many categories as states issued orders to “stay at home” or “shelter in place.” In New York City, felony and misdemeanor cases dropped 43.3 percent from March 18 to March 24 as compared with the same period in 2019. Crime rates in St. Louis, Missouri, fell by 21 percent in one month. Chicago reported a 30 percent decline during April 2020 in major crime (a combination of homicides, robberies, sexual assaults, felony thefts, burglaries, and aggravated batteries). And from March 22 to April 23, Chicago police made 1,406 arrests, compared with 4,985 arrests during the same period in 2019, a decline of nearly 72 percent.

Although crime rates dropped in most categories (including violent crime), many jurisdictions reported increases in their murder rates from the rates reported the previous year. Because of changes in how crime statistics are reported, comparing crime rates from year to year may not be as effective as comparing crime rates over time. Taking a longer view reveals that even though the crime rates for murder are higher for this year, they are similar to lower rates reported in past years.

Domestic Violence Increases (Even if Reporting Didn’t)

Stay-at-home orders meant that many victims of domestic violence are stuck in close quarters with their abusers, often in stressful and dangerous situations. These stay-at-home orders reportedly fueled incidences of domestic violence. Many jurisdictions reported an increase in reports of domestic violence, a danger that increased the longer people are confined by sheltering restrictions. Tensions may further increase from economic stress where family members or domestic partners are among those recently unemployed.

In Chicago, domestic-related crimes were reported at a higher rate from March 22 to April 23, 2020, than over the same periods in the previous four years. But in New York City, fewer victims of domestic violence called the police or the city’s domestic abuse hotline. But rather than signaling a drop in domestic violence, the lower number of calls may indicate that abuse victims had difficulties when reaching out for help during a stay-at-home order. They may be unable to use a phone or computer to reach out for help. Some victims of domestic abuse also decided not to go to shelters for fear of contracting COVID-19.

In some early cases, it may have been more difficult to get orders of protection when the government has ordered people to stay at home. Judges were thought to be reluctant to exclude people from their homes when the state or local government has ordered them to stay there and they had no other place to go.

Restaurant Burglary Rates Increase

Restaurants and other businesses were forced to lay off employees and to close their doors under emergency orders to reduce further spread of COVID-19. These forced closures not only jeopardized the financial health of these businesses, but they turned suddenly empty buildings into tempting targets. Instead of breaking into homes occupied by residents sheltering in place, thieves found easier targets with empty restaurants, gas stations, and nonessential businesses, at least in the early weeks of the shutdown. Thieves were especially drawn to well-stocked liquor cabinets and stores with iPads and other equipment. After New York City ordered nonessential businesses to close on March 12, 2020, the number of commercial burglaries surged from 330 the previous year to 763, of which at least 140 were at restaurants.

Fraudulent Contact Tracing

The Federal Trade Commission warned that scammers had started posing as healthcare workers and doing fraudulent contact tracing. The scammers attempt to obtain social security numbers and other personal information that they may use for identity theft or other financial crimes.

Other Crimes

Intentional Transmission of COVID-19 and Related Offenses

The intentional transmission of an infectious disease has often been prosecuted as a criminal offense. The relatively recent HIV/AIDS pandemic provides a concrete example of a public health crisis that has left a significant mark on criminal law: More than 30 states have enacted statutes to criminalize the “transmission” of HIV, even when there was no risk of HIV transmission.

Two members of the New Jersey legislature introduced legislation (N.J. S2361) to amend the existing state statute on terroristic threats. The proposed legislation would make it a second-degree crime to credibly threaten to infect another person with COVID-19. If passed, the legislation would provide for punishment of up to 10 years in prison and a fine of up to $150,000. The need for disease-specific legislation is questionable given that other jurisdictions have been able to prosecute specific offenses under other existing laws. In New Jersey, for example, a number of individuals who claimed to have COVID-19 were arrested after coughing and spitting on law enforcement officers; the criminal charges filed against them included counts for aggravated assault and making terroristic threats during a state of emergency.

Existing criminal laws can be used to charge individuals who intentionally transmit the virus or attempt to do so. In Illinois, Governor J.B. Pritzker noted that criminal penalties could attach under the state’s reckless conduct laws; according to a local State’s Attorney, a reckless conduct charge would be appropriate if an individual who has tested positive for the virus went out in public and coughed on others. In New York, individuals claiming to be infected with COVID-19 who spat at or coughed on police officers were charged with a variety of crimes, including attempted assault, menacing, and harassment in the second degree. In California, a local sheriff’s department is determining whether to prosecute prisoners for intentionally spreading the virus after surveillance video showed numerous inmates drinking from the same glass and breathing into a shared cloth facemask. Initial reports suggest that the conduct was linked to an attempt to deliberately infect each other with COVID-19 so that the inmates could qualify for early release. In Massachusetts, a 65-year-old man was taken into custody after coughing and spitting on produce in a grocery store; although there was no evidence that the individual had COVID-19, authorities were contemplating charges for assault and battery, and destruction of property. Similar incidents have been reported in grocery stores in other states, including Missouri, New Jersey, and Pennsylvania.

On a federal level, the Deputy Attorney General urged all heads of law enforcement components, heads of litigating divisions, and U.S. Attorneys to consider charging those who engage in similar behavior with violations of the United States’ terrorism statutes because “coronavirus appears to meet the statutory definition of ‘biological agent[.]’” This advice was promptly followed by the U.S. Attorney’s Office for the Middle District of Florida in a case involving a St. Petersburg man who falsely claimed he had COVID-19 and coughed on a police officer who was responding to a domestic violence call involving the man; the defendant was charged with perpetrating a biological weapons hoax under 8 U.S.C. § 1038(a)(1). Similar charges were filed against a man in Texas who posted on Facebook that he had hired someone to spread the virus in local grocery stores to discourage customers from shopping there.

The use of federal terrorism statutes to prosecute individuals who are alleged to have spread COVID-19, or threaten to do so, has been criticized as an unwarranted or misguided expansion of federal power.

Violation of Public Health Orders

In an effort to curb the pandemic, states have adopted a variety of measures designed to promote social distancing and limit the spread of the virus. These orders do not always contain specific guidance with respect to how they should be enforced, with some critics noting that the lack of uniformity could lead to unsafe practices. In some states, like Hawai’i, noncompliance with these measures has led to arrests and conviction on criminal charges. Hawai’i was the first state in the country to require all residents and tourists to shelter in place for 14 days upon arrival in the islands. Travelers must initial and sign a self-quarantine form acknowledging that they have received notice of the requirement and the criminal penalties that stem from violating the order (up to a $5,000 fine and a year imprisonment). The law is enforced, for example, by giving hotel guests a room key that will work only once in the 14-day period. If the guest asks for another key, they will be reported to the police for violating the quarantine order.

These prevention efforts seem to have had a positive impact but depend for their success on compliance by tourists and the collaboration of airport health officials and members of the tourist industry. Airport health officials are required to verify contact information provided upon arrival and hotel staff provide guests with reminders of their obligations. They are also trained to report violators to the police; this has led to multiple arrests over the past several months involving residents of multiple states.

In New Mexico, the failure to self-quarantine in violation of a public health order is considered a misdemeanor; there, a woman was arrested after she entered a restaurant, informed the personnel that she was infected, and used the restroom. She faces a fine of up to $100 and up to six months in jail. In New Jersey, violations of COVID-19 executive orders are treated as disorderly persons offenses and carry a sentence of up to six months in jail and a fine of up to $1,000. Some examples of the conduct that resulted in charges include failing to wear a mask in a store, failing to maintain an appropriate social distance from other customers, hosting a large party, and keeping a business open.

Other states have preferred to focus their efforts on educating the public about the health benefits to be derived from compliance with executive orders rather than on enforcing them through punitive measures. In Connecticut, residents can be arrested on a Class D felony for violating executive orders related to the COVID-19 pandemic, although the Chief State’s Attorney advised police departments to avoid doing so. Focusing on alternatives to criminal enforcement as a way of achieving compliance with executive orders reflects a concern for the general well-being of the community and a recognition that punitive measures represent poor public policy: An arrested person might contract the virus as the result of even a brief stay in police custody and then infect others after being released.

Enforcement of social-distancing measures through arrests and criminal prosecutions has raised concerns about the potential for racial profiling and the disparate impact this type of police activity might have on communities of color.

Concerns about racial profiling have also been cited as a factor that has kept some Black men from feeling comfortable wearing a protective mask. In March, a police officer kicked two Black men out of a store on the grounds that they were wearing masks and, therefore, breaking the law. This led the mayor of Atlanta, Keisha Lance Bottoms, to issue an executive order directing the Atlanta police not to enforce a state law prohibiting the wearing of face masks in public. The NAACP has sought similar measures nationwide on the ground that “[n]o person should be fearful of engaging in lifesaving measures due to racialism.”

Police enforcement of social-distancing orders has, in some cases, led to the orders being revised for the benefit of the offenders. For example, after a Dallas salon owner violated a stay-at-home order by refusing to close her business and was sentenced to seven days in jail, Texas Governor Greg Abbott modified his executive order “to ensure confinement is not a punishment for violating an order.” In Oklahoma, the mayor of Stillwater amended an order that required customers to wear masks in stores and restaurants after employees were “threatened with physical violence and showered with verbal abuse” for attempting to enforce the order. The mayor concluded that he could not, “in clear conscience, put [the] local business community in harm’s way, nor can police be everywhere”; consequently, the modified order merely asks local stores and businesses to encourage, but not require, patrons to cover their faces.”

Some commentators have suggested it may be appropriate to introduce legislation to criminalize intentional denials or mismanagement of the pandemic. Examples of criminal conduct could include the intentional failure “to provide timely and widespread testing for the virus,” “to acquire personal protective equipment for health workers,” or “to order critical social-distancing measures.” Conversely, some jurisdictions, like New York, have enacted legislation that would grant immunity from civil and criminal liability to nursing homes and long-term-care facilities for any harm that results to patients as a result of a good faith effort to provide care pursuant to an emergency rule or state directive.

Attempted Sale of Nonexistent Surgical Masks

Pandemics create incentives for fraud. With the COVID-19 pandemic, fraudulent schemes arose as a result of scarcities in the supply of personal protective equipment. In one case filed in Brooklyn, two men from Southern California tried to get $4 million for a supposed stockpile of surgical face masks. The problem was that the surgical face masks did not actually exist. To promote their scheme, the men wrapped empty boxes and put fake 3M labels on them. The men were charged with conspiracy to commit wire fraud and face up to 20 years in prison and fines of up to $250,000.

COVID-19 Testing, Wire Fraud, and Mail Fraud

Henry Gindt II was charged in New York with wire fraud, mail fraud, and conspiracy to commit wire fraud and mail fraud for selling stolen COVID-19 test kits and not providing the test results to those who purchased the stolen kits on his telemedicine website, YouHealth. The federal charges carry a maximum penalty of 20 years in prison and a $250,000 fine.

Wrongful Claims for Paycheck Protection Program Money

A federal government Paycheck Protection Program (PPP) intended to provide financial relief to small businesses found itself run dry when larger businesses applied for and received the financial relief. The $660 billion program was intended as a lifeline to small businesses battered by the pandemic, allowing them to keep employees on the payroll. Large companies, instead, qualified for small-business loans from a hastily devised government program.

In May 2020, the Secretary of the Treasury threatened “to hold big companies criminally liable if they did not meet the program’s revised criteria for accepting loans.” But some observed that it would be “a heavy lift” to pursue criminal claims against companies that had been approved for loans based on government guidelines. After the Treasury Secretary announced potential criminal liability and audits of companies that had taken money under the program, some recipients of the government money quickly returned the money. Other companies that received the bailout money were hesitant to spend it, fearing they might incur criminal liability under vague and quickly changing government guidelines.

In July 2020, federal authorities in Los Angeles arrested Andrew Marnell on charges that he fraudulently obtained approximately $9 million in federal PPP loans, some of which he then allegedly used on gambling at the Bellagio Casino in Las Vegas and some that he transferred to his stock-trading accounts. He had submitted fraudulent applications to insured financial institutions on behalf of different companies, making numerous false and misleading statements about the companies’ business operations and payroll expenses. He also submitted “bogus federal tax fillings and employee payroll records.” He was charged with federal bank fraud, a charge with a statutory maximum sentence of 30 years in federal prison.

Failure to Vacate

The economic hardships that millions of Americans have experienced as a result of the COVID-19 pandemic have made it increasingly difficult for many people to pay their rent. Several jurisdictions enacted eviction moratoriums to ensure that impoverished renters could continue living in their homes. But in at least one state, Arkansas, the inability to pay rent can result in the forfeiture of any right to continue occupancy, and the failure to vacate within 10 days of receiving an eviction notice is a criminal offense. Unlike his counterparts in dozens of other states, Governor Asa Hutchinson of Arkansas has resisted calls to issue an executive order banning evictions for those suffering hardships related to COVID-19. At least three “failure to vacate” cases were filed in April 2020, the first full month of mandated closures in Arkansas, and an attorney for Arkansas Legal Aid predicts that things could get worse in the coming months.

Criminal prosecutions for failure to vacate offenses are also likely to be complicated because tenants may find it difficult to find a moving company willing to provide services or they may simply be too ill to relocate within the narrow timeframe provided for by the statute.

Other Criminal Justice Issues and Prison Administration

Cash Bail Eliminated for Most Crimes

To reduce the number of people who must be incarcerated, some jurisdictions such as California eliminated cash bail for most crimes. The order from California’s judicial council ending cash bail for most crimes allowed thousands of people awaiting trial to be released from jails. California voters will decide in November whether other risk-assessment tools should permanently replace cash bail. For example, a judge could instead consider a person’s individual and family connections to the community.

Prisoners at Risk

People simply cannot “social distance” in a jail or prison. Jails and prisons are understandably among the worst places to be during a pandemic. People are packed into cells where they sleep mere feet apart without proper access to masks, hand sanitizer, or medical care.

The Federal Bureau of Prisons publishes statistics relating to the number of inmates who have tested positive for COVID-19 on its website. These statistics show that many thousands of inmates who have been infected continue to be housed in federal prison facilities. As of July 17, 2020, the Bureau of Prisons reported that 3,591 federal inmates and 315 BOP staff had confirmed positive test results for COVID-19 nationwide. Additionally, 5,434 inmates and 631 staff have recovered. There have been 97 federal inmate deaths and one BOP staff member death attributed to COVID-19 disease.

The first federal prisoner to die of COVID-19 in custody was Patrick Jones, who died on March 28, 2020. He was serving time for a nonviolent drug offense. He worked in a prison textile factory at the Oakdale Federal Correctional Complex in Louisiana. By the third week of April, seven more inmates had died. Prison factories around the country remained open, subjecting workers to increased risks of infection.

The first female federal prisoner to die of COVID-19 in custody was Andrea Circle Bear of Eagle Butte, South Dakota. She had been sentenced to serve 26 months for using a residence on the Cheyenne River Indian Reservation to sell drugs. In March 2020, Ms. Circle Bear was transferred from a jail In Winner, South Dakota, to Federal Medical Center Carswell, a prison with approximately 1,625 female prisoners. She was brought to a hospital because of concerns about her pregnancy, but she was sent back to the prison that same day. A few days later she showed symptoms of infection with COVID-19. She was brought back to the hospital and, on April 1, her baby was born by cesarean section. Three days later, on April 4, her coronavirus test came back positive. She died on April 28 at the age of 30.

The Marshall Project has been tracking data related to the numbers of federal and state prisoners and prison staff infected with COVID-19. These figures are, understandably, much higher than the figures reported by the federal Bureau of Prisons. By May 6, 2020, 20,119 inmates had tested positive, with a 39 percent rate of increase from the previous week; 6,193 prison staff members tested positive. These numbers are merely indicative: The lack of systematic testing makes the numbers unreliable as a measure of the true extent of infection within the prison population. Over 304 inmates and at least 22 staff members have died of COVID-19 in prisons across the United States.

There is an increasing recognition that prison populations are especially vulnerable to infection. Seven out of the top 10 outbreaks in the country have occurred in prisons or jails. In April 2020, three-fourths of the 1,800 inmates in a prison in Marion, Ohio, tested positive for coronavirus, making that prison the largest source of coronavirus cases in the United States. At least two inmates and one staff person had died. The coronavirus also spread through Rikers Island in New York and the Cook County Jail in Chicago.

Professor Marie Gottschalk of the University of Pennsylvania, writing in the magazine In These Times, wrote that the Texas Department of Criminal Justice has refused to abide by key health and safety guidelines. She notes the “grim achievement” that Texas “may end up leading the nation in reducing its prison population—by releasing a record number of people in body bags.”

Early Release of Prisoners

An editorial in the New York Times stated simply that “[n]o one deserves to die of COVID-19 in prison or jail.” It noted that releasing prisoners during the COVID-19 crisis “is not just an act of mercy to protect prisoners’ health, and the health of the prison staff” but that having fewer sick inmates would mean “less strain on the already burdened prison hospital system.” The editorial further stated that if prisons were “unwilling to release some inmates outright, they could send eligible people into home confinement, at least for the duration of this crisis.” The editorial concluded that at least “in the very short term, while inmates and staff members are dying, prisons need to release people immediately.”

Several initiatives have been taken to reduce overcrowding. Some of these changes have followed on the heels of lawsuits seeking the release of incarcerated persons. Others resulted from administrative responses and judicial action. Many prisons and jails reduced their populations by double-digit percentages. The number of federal prisoners released to home confinement, however, seems to be lagging notwithstanding an acknowledgment of the grave health risks these inmates face.

In a memo dated March 26, 2020, Attorney General Barr recognized that some inmates “might be safer serving their sentences in home confinement” and therefore directed the Bureau of Prisons to “prioritize the use of [its] statutory authorities to grant home confinement for inmates seeking transfer.” In the six weeks following the release of the Attorney General’s memo, there was an increase of 85.9 percent in the number of federal inmates confined at home. However, by the end of April 2020, “home confinement went up by only 1,027 under the new guidance set out by the attorney general—about half of 1 percent of the more than 174,000 people” in the federal Bureau of Prison’s custody at the start of that month.

Some states have also released prisoners. California, for example, released nearly 10,000 inmates from state prisons or jails. In Massachusetts, the Supreme Judicial Council ruled that “a reduction in the number of people held in custody” was necessary. In Washington, more than 1,000 inmates who had been convicted of nonviolent crimes were released from state prisons pursuant to an emergency proclamation and commutation order signed by the governor. Prisoners’ rights advocates contended that this was insufficient in light of the severe health risks faced by inmates and sought judicial relief. The Washington Supreme Court, however, denied a petition seeking the release of inmates on the ground that their detention during the pandemic violated the state constitution’s “cruel punishment” clause. In Wisconsin, nearly 1,600 inmates were released in the two-month period between March and May; almost all of them were inmates who had been detained for violating probation, parole, or extended supervision terms. In some jurisdictions, authorities released those who were near the end of their sentences, those who were serving short weekend sentences, or those who were being held pretrial or had been sentenced for misdemeanor or nonviolent offenses.

Although the early-release measures are designed to reduce the likelihood of infection within the prison population, there is evidence that in some instances it may have the opposite effect. In California, surveillance video taken at a Los Angeles County correctional facility provided evidence that inmates were purposefully attempting to infect themselves with COVID-19 so that they could qualify for early release.

Differing Views on the Early Release of Prisoners

Some crime victims and their families expressed anger upon learning that inmates were released from prison because of COVID-19. Victims have not always received advance notification, or any notification, of the release of those who perpetrated crimes against them. This failure to notify may contravene statutory and constitutional requirements in some jurisdictions.

Prosecutors and prison officials will continue to struggle with determining which inmates can be released early. Releasing inmates early carries risks, but so does keeping them in overcrowded facilities. Factors in deciding whether inmates qualify for early release include the severity of the underlying crime and the amount of time already served.

Advocates for ending mass incarceration expressed hope that the legacy of the coronavirus pandemic will be to demonstrate that as state and local budgets collapse, the high cost of incarceration is tougher to justify. Others argue that it is “absurd” to release “hardened criminals from jail to prevent the spread of COVID-19” only to incarcerate those who fail to comply with stay-at-home orders and reopen their businesses. Finally, the early release of criminals may have increased fears for personal safety and may even have contributed to an upsurge in gun sales in some jurisdictions.

Conclusion

The criminal law and criminal justice issues relating to COVID-19 will continue to develop as the disease continues to spread. Neither the disease nor the proliferation of legal issues shows any sign of slowing down.

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Mark E. Wojcik

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Mark E. Wojcik is a professor at the University of Illinois at Chicago John Marshall Law School. He is the Editor of the Criminal Justice Section’s annual publication, The State of Criminal Justice.

David W. Austin

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David W. Austin is a professor at California Western School of Law in San Diego.