The nation’s criminal defense attorneys issued a plea Monday to states, counties and cities to stop throwing coronavirus-shutdown violators in jail, saying authorities are overcriminalizing the pandemic.
The National Association of Criminal Defense Lawyers approved a set of principles over the weekend that includes discouraging criminal charges or incarceration across-the-board for coronavirus crimes. They said the push to put people behind bars seems odd at a time when many of the same officials are emptying prisons and jails to try to stop the spread of the virus in those facilities.
And when behavior is criminalized, minority communities end up suffering more, the NACDL said.
Their stance comes at a critical time in the coronavirus response.
Two months of shutdown orders have begun to wear on many Americans, and folks across the political spectrum are increasingly suggesting it’s time to relax some of the penalties.
“As the nation confronts a raging virus and a collapsing economy, the misguided reliance on criminal law enforcement must be avoided,” said Norman L. Reimer, executive director of the NACDL.
Better to rely on civil education to combat “socially undesirable conduct,” the organization said.
Their stance puts them on the same side as Texas Gov. Greg Abbott, who last week rewrote his shutdown orders to make clear nobody should be sent to jail for violating them. He moved after a salon owner in Dallas drew national headlines for refusing to shutter her business, and getting tossed in jail for seven days by a judge who found her in contempt of court.
“Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Mr. Abbott said.
He and the NACDL both said it seemed ridiculous to be adding to the jail population with coronavirus offenders.
The NACDL also said the average American can’t figure out what the rules are, with so many patchwork policies out there. Sometimes that means different guidance from state and local officials.
Other times the officials themselves aren’t clear, such as in the District of Columbia, where WAMU reported that the mayor said people are required to wear masks in stores, but her written policy only requires that stores post notices — not that they enforce the rule.
John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies, said he is sympathetic to some of the concerns over criminalizing coronavirus shutdown conduct.
And with coronavirus tensions are at an all-time high, he said it behooves those in authority to help cool things down.
“Judges and law enforcement officers need to use some common sense and calm nerves,” he said, adding that governors could also help by making clear whether they really do want to see people tossed in jail over violations.
“If governors want to attach potential criminal penalties but don’t want it to include a period of incarceration they should say so up front because judges are then in the positions of enforcing these edicts and if you have people who flout them on a repeated basis you have to have some way of enforcing them,” Mr. Malcolm said.
There are no comprehensive lists of coronavirus-related crimes, but there have been some that have drawn national attention.
In Maryland, Charles County made headlines when the sheriff’s department in March arrested Shawn Marshall Myers on charges of failing to comply with the governor’s emergency shutdown orders. He reportedly held two parties larger than the limit Gov. Larry Hogan had set.
Mr. Myers faces up to a year in prison and a $5,000 fine on each count. He’s already spent three weeks in jail, according to court records that show he was held without bail from March 28 until April 22, when he was released on his own recognizance.
Other notable arrests include Shakeem Sanders, who was attacked last month while operating a recording studio in Paterson, New Jersey. Police at the time hadn’t caught Mr. Sanders’ attackers, according to local reports, but charged Mr. Sanders with running a non-essential business — his studio — during the shutdown. He faces up to 6 months in jail and up to $1,000 in fines.
In California, sheriff’s deputies issued citations in early April to 22 people who were watching the sunset or having picnics near the beach in Encinitas. The citations carry penalties of up to six months in jail and up to $1,000 in fines.
The NACDL said criminalization goes beyond violating shutdown orders. The lawyers criticized the Justice Department for pursuing terrorism charges against people they accused of claiming to have spread the virus.
One Florida man is accused of spitting in the mouth of a police officer who was arresting him, while another posted to Facebook that he’d paid people to spread the virus at grocery stores in Texas.
The NACDL said using criminal penalties to enforce social norms usually hurts minority communities, with police and prosecutors more likely to pursue cases against them than against whites.
ProPublica, an investigative nonprofit, said it reviewed early data from Ohio and saw evidence that black people were “being disproportionately arrested” for violating the state’s stay-at-home and social distancing orders.
What happened in Texas suggests the press plays a role in highlighting cases.
The white salon owner in Dallas drew national headlines and sparked statements of support from Mr. Abbott and the state’s lieutenant governor and attorney general. But a few weeks earlier, when two Hispanic women in Laredo were cited for operating their beautician businesses during the shutdown, they drew scant attention.
Mr. Abbott, in revising his executive order, made sure to note that those two women were also covered by his new policy erasing jail time for violations.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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