Coronavirus: Prosecuting Our Way Out Of A Pandemic

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

In late January, the Public Security Department of China’s Hubei province, whose capital is Wuhan, announced that carriers of the novel coronavirus may face criminal charges if they intentionally spread the pathogen to other people by spitting at them. Officials also announced that people believed to have the virus who refuse to be screened, quarantined, or treated could also face charges if they transmit the disease to others. In Italy, prosecutors opened an investigation into hospitals amid reports that doctors initially delayed testing an Italian “super-spreader,” possibly allowing the disease to proliferate.

Where there is fear and panic, criminal charges are never far behind. No matter how unproductive or even counterproductive prosecutions may be, people continually call for them to solve society’s gravest problems.

In mid-February, the Philippine National Police announced that a person had been arrested after he was identified as the author of a Facebook post stating falsely that a person believed to have coronavirus had died at a Philippine hospital. On discovering that the information was false, the person was charged with violating a law which criminalizes publishing inaccurate information that may endanger the public order. Police have warned others not to post unverified information related to the virus that may create panic and confusion, saying that they will take legal action as they deem necessary. The Philippine minister of justice had earlier ordered an investigation of various cases of alleged dissemination of misinformation about the coronavirus, and ordered criminal charges against those believed responsible. Meanwhile, police in the Philippine city of Legazpi filed criminal charges against an individual who pretended to be sick with coronavirus by lying down in front of a shopping mall, which reportedly caused “unnecessary panic.”

The government of Seoul, in South Korea, recently filed a complaint asking prosecutors to charge Lee Man-hee, the founder of the Shincheonji Church of Jesus, and 11 other church leaders, with homicide, causing harm, and violating the Infectious Disease and Control Act. They are accused of hiding the names of some members as officials tried to track patients before the virus spread. A 61-year-old member of the church was among the first to be infected in the country, and she initially refused to be taken to a hospital to be tested and attended several church gatherings before testing positive. As of late February, 9,000 members of the church had reported symptoms. Of the country’s reported 3,730 cases, more than half of all infections involved members of the Shincheonji Church. One senior member, Kim Shin-chang, told the BBC that some church members had initially been afraid to reveal their identities. “We were worried about releasing this kind of information because of the safety of our members.”

Of course, bringing criminal charges after the fact does nothing to promote trust and transparency between authorities and community members; it does the opposite. But it is often what ordinary people call for. In the U.S., an employee at the Dartmouth-Hitchcock Medical Center in New Hampshire recently showed signs of possible coronavirus and was told to self-quarantine, but instead he went to a mixer at a crowded music venue. Three days later, he was confirmed as the state’s first coronavirus case and later a close contact of his became the second. The man was subsequently officially ordered by New Hampshire’s health commissioner to isolate himself at home, but questions remained on how to enforce directives to self-quarantine, as thousands of people across the country have been ordered to do. On Facebook, some people called for the coronavirus patient to be jailed, according to the New York Times.

Under New Hampshire law, a person who refuses to comply with a formal isolation order issued by the health commissioner is guilty of a misdemeanor. In other states, refusing to comply is a felony. But at the time of the mixer, the patient had not been diagnosed, and had merely been advised by a healthcare worker to stay home, so he was acting irresponsibly, not violating any laws. “You can’t bring criminal charges for being a bonehead or just not doing what you were told was advisable to do,” Wendy Parmet, faculty director of the Center for Health Policy and Law at Northeastern University, told the New York Times. “It’s not illegal to ignore the advice of your health care provider, or even the health department, until officials follow the particular procedures to issue a formal health order, and those procedures vary by state.” And it’s also bad policy. “We certainly don’t want people to think that they shouldn’t get tested because if they do, they’ll open themselves up to criminal liability, or a policeman at the door enforcing quarantine,” she said. “Those are consequences that deter testing, treatment and compliance.”

When a St. Louis-area father and daughter attended a school dance while another member of their family was being tested for the virus, people made similar calls for them to be jailed. “Disparaging remarks made against the family on social media prompted police to patrol the family’s home,” reports the Washington Post. “Community members on Facebook expressed outrage at the possibility that the patient’s father ignored officials’ direction to self-quarantine, and some suggested the man should face legal consequences.”

“A person theoretically could be held civilly or criminally liable for transmitting the virus after disregarding a self-quarantine request, but Parmet said those consequences are unlikely,” reports the Post. “A lawsuit would have to show the infected person caused someone else’s illness and failed to take reasonable care.” In the strictest scenario, Parmet said, police can enforce legally binding quarantine orders, but an in-between scenario also exists in which government officials threaten to file a legally binding quarantine order but do not do so. Parmet added that criminal prosecution would be a bad way to make public health policy.

According to the Centers for Disease Control and Prevention, “the Commerce Clause of the U.S. Constitution grants the federal government isolation and quarantine authority,” reports USA Today. “The Secretary of Health and Human Services can take actions to prevent the spread of communicable disease from foreign countries into the United States and between states,” and “within states’ borders, state and local health officials have quarantine and isolation enforcement power.” The CDC notes, though, that these laws can vary from state to state. In most states, breaking a quarantine order is a criminal misdemeanor. Fines and imprisonment are possible punishments for breaking a federal quarantine, but federal quarantines are rare.

There is one use of criminal law that might be somewhat less destructive and possibly even productive: Yesterday, the Justice Department threatened to prosecute any individual or company seeking to profit off fear by gouging the prices of items people are buying to combat the virus. In a statement, the DOJ said that any individual or company that violates U.S. antitrust laws relating to producing or selling public health products such as face masks, respirators, and diagnostics will be held accountable. “In particular,” reports the National Review, “entities that ‘fix prices’ or ‘rig bids’ for personal health protection equipment like sterile gloves or face masks could face criminal prosecution.” The Justice Department also threatened to prosecute competitors who divide up consumers of public health products among themselves. Also yesterday, the Food and Drug Administration and the Federal Trade Commission sent a letter to seven companies about accusations that they were selling fraudulent health products.

There is some logic in threatening companies that might otherwise seek to take advantage of a fearful populace to make money. But given that most antitrust enforcement options available to the government could be pursued with civil charges, the threat of criminal enforcement seems unnecessary. Civil charges are preferable to criminal charges in a variety of contexts, but especially so in these cases. What sense could it possibly make to place possibly infected people in close quarters with others who cannot leave? What purpose could it serve, other than feeding a desire for revenge?