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Published On June 15, 2020

POLICY

How Should We Police a Pandemic?

The role of law enforcement has never been so fiercely debated. So should health officials rethink how the rules of COVID-19 get enforced?

COVID-19 stay-at-home orders, social distancing guidelines and bans on large gatherings are still in effect across the country. But they haven’t stopped demonstrators from coming out en masse to protest the March 25 killing of George Floyd, an unarmed black man, at the hands of the Minneapolis police. Protesters have denounced a long line of abuses from law enforcement, and in some cases those abuses have again been on display. Marchers have been met with rubber bullets, tear gas and mass arrests. One Sacramento woman was blinded after she was shot in the face with a rubber bullet at close range, and a 75-year-old peace activist in Buffalo was hospitalized after being shoved to the ground by police.

The killing, unrest and police response have sparked conversations about the role law enforcement should play in society, and especially the harm that racism in the police force can do. For public health experts and epidemiologists, these debates bring up another question that couldn’t be more pressing: To what degree should the police continue to play a role in enforcing the lockdowns, social-distancing efforts and other badly needed rules of the COVID-19 pandemic?

Pandemic times have historically ushered in sweeping new powers for civic authorities, changes that nearly always cut close to the lines of personal liberty. In the plague of Rome in 1656, local authorities executed a 13-year-old girl after she ran out of her house to retrieve a chicken—an act that was chillingly echoed on April 10 of this year when, in Kenya, the police shot a 13-year-old boy who was out after a COVID-19 curfew on his balcony.

Coronavirus policing in the United States has not included any tragedy of that magnitude, but pandemic-related arrests have made headlines. Authorities in Hawaii have been taking tourists into custody when they violate a mandatory 14-day quarantine, threatening them with up to a year in prison. In Kentucky, people who test positive for COVID-19 have been required to wear ankle monitors; in some cases, their close contacts have also had to submit to electronic monitoring. One woman wearing a monitor was tracked into a Kroger supermarket in Louisville and dragged out by law enforcement.

Some threats to public welfare do seem to cry out for a police response. In a few cases, people have threatened to spread COVID-19 intentionally, and others have endangered the public through overt negligence. On May 14, for instance, a home health aide in New Jersey was arrested on criminal charges for infecting her 80-year-old patient, who subsequently died of related complications. The aide, who had tested positive for the virus but didn’t follow instructions to quarantine herself, now faces five charges of endangering the welfare of others.

Yet too much zeal in enforcing quarantine rules can backfire, interfering with the very strategies aimed to curb the spread. “Policing for infectious disease has not been an effective strategy historically,” says Jen Balkus, assistant professor in the school of public health at the University of Washington. An aggressive police response can stigmatize disease, she says, making those who get sick avoid testing and treatment because they fear the consequences. The approach also tends to put poor and minority communities in the crosshairs.

Cracking down on minorities during a pandemic follows a long, bleak history. During the Black Death, the outbreak of Yersinia pestis that wiped out half of Europe’s population in the fourteenth century, Jewish people and lepers were targeted, often tortured into false confessions that they had poisoned wells and then put to death. In the United States, outbreaks of cholera in the 1830s and polio in 1916 were unfairly blamed on the Irish and the Italians, respectively, and in 1900, after a Chinese immigrant in San Francisco died of bubonic plague, that city’s Chinatown was quarantined amid threats to burn it down, the city’s mayor calling it “a constant menace to public health.” The spread of HIV in the late twentieth century was targeted with criminal statutes that have been overwhelmingly enforced against sexual and racial minorities.

Preliminary data suggest that poor and minority communities have borne the brunt of policing in the COVID-19 pandemic, too, offering a compelling argument for looking twice at how the disease gets policed. Figures from the New York Police Department show that more than 80% of summonses related to the coronavirus were issued to black and Hispanic residents, with most arrests made at social gatherings. And in Brooklyn, 35 of 40 people arrested for allegedly failing to practice social distancing were black. Only one was white.

An investigation in Ohio by ProPublica, an investigative journalism non-profit, showed that while crowds of mostly white people protesting stay-at-home orders weren’t bothered by police, Black people have been arrested for such negligible offenses as taking a bus without a good enough reason, hanging out on a lawn or standing within six feet of one another. In three of the state’s most populous jurisdictions, Black people were four times more likely than white people to get arrested for violations.

Part of the problem is that minorities are more likely to work in essential services or to face economic pressure to stay on the job, and may be targeted by police as they travel to and from work. “I have a job that lets me work from home,” says Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “Somebody who cleans houses, if she doesn't work, she doesn't get paid.”

From an epidemiological standpoint, arrest may also be also one of the worst tools for slowing the spread of COVID-19. Police have suffered high rates of infection and jails have been hotbeds of disease transmission. Even fines can be counterproductive to containing the disease, forcing people to take more risks to pay them and still provide for their families.

A more effective approach may start with reduced and more nuanced policing, says Shachar. “It’s important to provide a lot of training and support to police officers so that they don't just wake up overnight and they're now the public health police,” she says. When pandemic rules do get violated, education should come first, with fines and jail time reserved for only the most severe cases—and even then, punishment should be deferred until jails are safer and the economy has recovered. In Shachar’s town of Cambridge, Massachusetts, for example, officials announced a $300 penalty for not wearing a mask in public but suspended fines in favor of education during the first weeks.

There is a strong motive to rethink policing on all fronts, which has been one of the main takeaways of the George Floyd protests. But the protests themselves have sparked a conversation among those whose job is to curb the spread of COVID-19. How rigorously should a protest march, focused on issues of endemic racism, be policed for violating laws around social distancing?

The first week of June, a group of more than 1,000 epidemiologists and other health experts signed a letter in support of the demonstrations, despite the risk they pose for contagion. Racist police violence is its own lethal public health crisis, the authors wrote, while systemic racism has driven the disproportionate burden of COVID-19 on communities of color. And certainly, policing the current protests at a minimal level would be in line with the restraint shown towards armed anti-quarantine protestors who were active around the country a month ago.

As health officials try to puzzle out the way ahead, some police departments are doing the same. “Police must now apply the public health model of ‘do no harm first’ in making decisions, from arrests to uses of force,” Ron Davis, former police chief of East Palo Alto, California, and former head of the Office of Community Oriented Policing Services at the U.S. Department of Justice, told The Center for American Progress. “Making arrests must transition from being a common tool used by law enforcement to becoming literally a tool of last resort.” It’s a good reminder as protestors and police continue to clash and the end of the pandemic remains a distant hope.