Criminalization during the Coronavirus Pandemic
In May 2020, The New York Times paid tribute to the 100,000 people who had died from the coronavirus in the United States. Short descriptions written by loved ones followed 1,000 names. Amidst immeasurable loss, the piece urged the nation to remember the individual. 150,000 additional deaths later, there exists no cohesive or effective national strategy. As the US transitions to a new administration, the individual should continue to motivate not only the way the country mourns, but also the way the government develops an effective and fair coronavirus response.
Distinct ideas underlie government responses to public health crises. Some countries roll out national strategies with economic stimuli, material support, and consistent messaging. Others rely heavily on individual responsibility. Most governments threaten fines or detainment for rule violations. However, relying on punishment ignores the fact that during crises, drivers of behavior often are rooted in access to support, or lack thereof.
A comparison of the American and Taiwanese government responses to the coronavirus pandemic shows that a successful public health response considers individual needs before relying on punitive measures. During health crises, governments like Taiwan that provide individualized resources and incentives put fewer people in a position to be criminalized, while improving outcomes. In contrast, by not providing the support needed to weather the pandemic, the US government has made its people vulnerable not only to the virus, but to the harsh measures that might ultimately be employed to control it.
The United States and the Pandemic
The US government has executed one of the worst pandemic responses in the world. Over 1 in 1,400 people in the country have died from the coronavirus. Aside from a single stimulus check that many Americans have yet to receive, there has been little individual relief for record unemployment, hunger, and unstable housing. Testing is not always accessible or affordable. People of color are more likely to work in essential industries, like grocery stories, food and delivery services, and sanitation--jobs that are not only riskier but in higher demand. Healthcare costs are crushing families. For many, it is not economically viable to follow best practices. The federal government responded with industry bailouts, travel bans, and campaigns of misinformation.
These broad strokes approaches were indifferent to individual needs, while criminal law began demanding individual responsibility. Most states created rules to limit spread: issuing stay-at-home orders, requiring masks, and restricting business operations. To enforce the new rules, jurisdictions began using their criminal codes. In March 2020, Deputy Attorney General Jeffrey Rosen sent a memo to law enforcement heads and U.S. Attorneys, writing that intentional coronavirus infections could potentially be prosecuted under terrorism-related statutes. Between March 17 and May 4, the NYPD arrested 40 people in Brooklyn for not social distancing. By mid-April, 1,700 people in New Jersey had been charged with coronavirus-related offenses. Despite these punishments not being applied on a large scale, the elements of the American response that touched daily life the most were the rules and the punishment for breaking them.
Some might see people flouting health measures or protesting lockdowns, feel justifiably resentful, and advocate for broader application of the criminal law. The rules are indeed necessary, as strict social distancing and mask-wearing has and will continue to save lives. However, as seen in both criminal law and other health contexts like the HIV or opioid epidemics, threat of punishment does not always serve its aim of deterrence. Unbalanced enforcement magnifies inequities that are already magnified by the virus, and severity of punishment may escalate beyond what is scientifically sound, proportionate, or effective. Relying on punishment distracts from more effective preventative measures like financial support, affordable testing and treatment, and access to reliable information.
Taiwan and the Pandemic
Taiwan has carried out one of the most successful coronavirus responses in the world. With a government response including both sweeping policy and individual financial and material support, there have been seven deaths attributed to the coronavirus in a nation of 23 million.
Three days after the first confirmed case in the country, the government assumed control over domestic production of face masks and restricted their export. To ensure supplies for essential workers and prevent stockpiling, everyone on national healthcare was permitted to purchase 9 masks every two weeks for a total cost of 1.73 USD. The digital minister rolled out a real-time map showing pharmacies’ mask inventories.
Those entering or returning to the country undergo health screening at the airport, receive a subsidized taxi ride to their location to avoid public transit, and follow a mandatory 14-day quarantine. The government pays quarantiners a stipend of 33 USD a day, provides free Wi-Fi, and delivers meals and supplies. Family members who need to leave work to assist those in quarantine, are also paid the stipend. National healthcare covers testing and doctor visits. With an existing culture of mask-wearing and faith in the government strategy, adults remain at work and children remain at school.
While the Taiwanese government provides a plethora of resources to incentivize compliance, it employs punitive measures when all else fails. While in quarantine, failing to answer the phone or the door when a contact-tracer calls can bring about a police visit. Violating mandatory quarantine is punishable by a potential fine of 33,000 USD, and may lead to arrest or imprisonment. However, because the incentives and support system are so robust, punishment is rarely used and the virus remains under control.
What Comes Next?
The final word has not been said on either country’s handling of the virus. The Taiwanese government remains vigilant, while the US government will soon attempt a new national strategy. If the next administration allows punishment to serve as the primary intervention at the individual level, it will fail to consider the contexts in which people violate health guidelines. After a year of chaos and great loss, the criminal law will bring neither the common sense nor compassion that the current US approach lacks. Rather, to improve prevention, a successful government response will address unmet material needs to make compliance possible.
An additional and critical benefit of providing individual support is its potential to inspire confidence in a government that has lost significant public trust over the course of the pandemic. The slow, ineffective, and at times non-existent US response to the coronavirus has had the tragic implication that those dying are expendable. The new administration will be receiving a country that has been completely changed. Providing ground-level support will affirm the government's primary responsibility to care for the individuals it represents. This demonstration of good faith will not only make compliance feasible for many, but will also encourage cooperation among a country exhausted by the pandemic.
 "Coronavirus and the same old stories" by muffinn is licensed with CC BY 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by/2.0/