USA Today, by Geoffrey S. Corn and Rachel E. VanLandingham: We can’t lock up the coronavirus in a jail cell and throw away the key, as much as we’d like to. But we should consider giving our justice system an opportunity to prevent some of the COVID-related recklessness we continue to see all around us by doing what criminal law is supposed to do — deter harmful behavior.
First, let’s be frank. Any proposal to leverage the power of criminal laws to deal with the COVID-19 crisis carries obvious risks, most notably arbitrary or discriminatory enforcement that would contribute to skepticism about the legitimacy of government efforts to control the virus. This skepticism already exists as a result of racial inequities, and sanctions could exacerbate it.
For example, sanctioning the failure to wear a mask vests police with vast discretion to decide who should be cited, opening the door to potentially abusive enforcement. Even so, do these legitimate systemic concerns justify completely ignoring the criminal sanction as a means to respond to dangerous behavior?
Criminal laws can prevent harm
When carefully and fairly applied, criminal law — a reflection of society’s collective moral condemnation of behavior — is intended to deter and prevent harmful conduct. Consider the increased enforcement of criminal penalties for drunken driving in the latter decades of the 20th century. When individuals faced the real possibility of arrest for DUIs, drunken driving typically decreased. While the magnitude of such an ounce of prevention depends on factors such as speed of case processing in courts, the point is valid: Criminal law, when enforced, can prevent harm.
It is time to ask whether we are at a similar point with the pandemic. The United States has now surpassed 319,000 COVID-related deaths, yet too many Americans continue to ignore simple and potentially lifesaving safety measures with full knowledge that their conduct creates unjustified risk to others. Sadly, this risk not only spreads anxiety and disease but at times also has deadly consequences. There should be no impunity for such reckless conduct.
An American student was jailed in the Cayman Islands last week for violating the British territory’s strict COVID-19 rules. The United States needs to start treating the reckless exposure of others to such risk as what it is: a crime. Whether charged as a violation of public health regulations, reckless endangerment or even criminal assault, the bottom line is that at some point people need to be held accountable for their indifference to the health and safety of others they interact with. And with the evolving ability to establish a real evidentiary link between such reckless indifference and a resulting COVID-19 death, even the prospect of involuntary manslaughter prosecution is not out of the question.
Proving such a serious crime might seem implausible, but it’s not as much of a leap as some may assume. One example is a recent report about nursing home workers in Washington State whose decision to attend a wedding appears to be directly linked to the deaths of some of their patients. As with drunken driving, where prosecutors can prove a victim’s death was a reasonably foreseeable consequence of a defendant’s recklessness, involuntary manslaughter is an appropriate charge.
Criminal prosecution for reckless conduct serves to deter others from putting the rest of us at risk. We recognize prosecuting such cases would be neither routine nor easy, and that it would be challenging to prove a causal link between a defendant’s reckless conduct and a subsequent COVID-19 death. Nonetheless, do these challenges justify continuing to simply shrug our collective shoulders at such blatant, knowingly risky — that is, reckless — conduct? Should those who recklessly endanger the rest of us as the result of this behavior do so with impunity?
Liberty is not license to be reckless
We think it is time for prosecutors to take a hard look at these questions and how the exercise of their prosecutorial authority may contribute to the overall effort of mitigating this risk of this pandemic.
Ultimately, the question is not whether such a prosecution would present challenges. Instead, Americans need to ask themselves this: Is it still acceptable to allow those among us who are fully aware of the risk they inflict on others by ignoring COVID-19 safety measures to continue to act with impunity?
Individual liberty is a cherished American value, but it does not entitle individuals to knowingly put others at risk. As the Supreme Court explained over a century ago in a case challenging criminal punishment for refusing a mandatory smallpox vaccination, “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
Those who confuse protected liberty with irresponsibility, who choose to ignore public safety measures and put others at risk, deserve to face the consequences of their recklessness. Pursuing such cases will hopefully deter others similarly inclined from doing the same, saving precious lives in the process.
Will the keeping of the Sabbath when it is forbidden by law be twisted into a harmful-to-others argument too?
“This argument will appear conclusive; and a decree will finally be issued against those who hallow the Sabbath of the fourth commandment, denouncing them as deserving of the severest punishment and giving the people liberty, after a certain time, to put them to death. Romanism in the Old World and apostate Protestantism in the New will pursue a similar course toward those who honor all the divine precepts.” Great Controversy, page 615.2.