To contain the spread of the new coronavirus, which causes the disease COVID-19, jurisdictions nationwide have issued lifesaving directives that order residents to stay home and practice physical distancing unless performing essential activities. According to estimates from The New York Times, at least 37 states, 74 counties, 14 cities, the District of Columbia, and Puerto Rico have issued stay at home orders as of April 1, 2020—less than two weeks after California issued the nation’s first stay-at-home order on March 19. As these vitally necessary “stay-at-home” orders proliferate, questions have emerged as to how they will be enforced, given that public officials are beginning to consider the COVID-19 pandemic to be both a public health and public safety issue. Concerns around enforcement are particularly salient for communities of color and other marginalized communities that have experienced overcriminalization and arrests as the primary responses to substance misuse and mental health crises, among other public health issues.
Below is an overview of the range of approaches that jurisdictions have authorized to enforce COVID-19-related stay-at-home directives, from warnings to civil enforcement to criminal punishment. To date, most jurisdictions have resisted the approach of arresting people, especially as the first response for failing to comply with executive orders. But this trend may change as the pandemic deepens.
Many stay-at-home orders include language specifying that noncompliance will be enforced through civil or criminal penalties. Civil penalties can include fines, orders to suspend business operations, and/or revocation of licenses. For example, Kansas City, Missouri’s stay-at-home order states that a violation of any of its provisions “constitutes an imminent threat, creates an immediate menace to public health, and shall be considered a violation of Section 50-155 of the City’s Code of Ordinances.” This can include “fines, orders to suspend business operations, and other penalties.” Another example is Indiana’s executive order to discontinue in-person dining, which can result in the “suspension or revocation of an alcoholic beverage permit.”
Criminal enforcement has generally referred to an arrest for a misdemeanor and a fine or possible imprisonment. For instance, Mecklenburg County, North Carolina’s joint proclamation declares that any person who violates any of its prohibitions or restrictions shall be guilty of a Class 2 misdemeanor. Meanwhile, Wisconsin’s emergency order specifies that a “[v]iolation or obstruction of this Order is punishable by up to 30 days imprisonment, or up to $250 fine, or both.” Other jurisdictions do not specifically reference the criminal penalty in executive orders but add language specifying that a violation of the order will be enforced through existing authorities, which in many cases includes criminal penalties.
Although most jurisdictions have the legal authority to enforce stay-at-home orders, some have taken a measured approach to enforcement. Most policymakers and law enforcement officials are focused on educating the public about the importance of social distancing measures, rather than arresting or citing individuals who are noncompliant. In San Francisco, for example, the shelter-in-place order issued by the Department of Public Health explicitly states that any violation of the order is a misdemeanor offense, punishable by fine, imprisonment, or both; however, these enforcement actions will only be used as “last resort,” according to a spokesperson for the San Francisco Police Department. “We are not interested in using a criminal justice approach for a public health challenge,” the spokesperson said. “This is about educating the public about voluntary compliance.”
For many communities and families, the stay-at-home orders are a new and unprecedented test, but some jurisdictions are proactively taking steps to avoid confusion and build transparency behind the enforcement measures in use. For example, in San Diego, the sheriff’s office published a document specifying all statutes and penalties relevant to enforcement while clarifying the underlying goals that should be driving all enforcement actions:
While we fully expect the people in San Diego County to recognize the seriousness of this public health threat and we are hopeful no enforcement action is necessary, this information can be used in the event no other resolution can protect public safety. The Sheriff’s goal is to reduce the spread of the disease and thereby protect public safety.
Similarly, the sheriff of Washtenaw County, Michigan, created a resource page including frequently asked questions on enforcement of the governor’s stay-at-home order. In Pennsylvania, Gov. Tom Wolf (D) issued guidance to police on enforcement of business closures that is freely and publicly available on the state’s coronavirus response website. And the New Hampshire state attorney general published a memo clarifying the discretion that officers have in enforcing the governor’s order and the mandatory enforcement behind a Department of Health’s quarantine order for an individual who has tested positive for COVID-19.
Other public officials have taken the opposite tack and specifically emphasized that stay-at-home orders will be enforced through the criminal justice system. When Maryland Gov. Larry Hogan (R) recently issued a stay-at-home order, he specifically warned that violations of the order would be subject to an arrest and incarceration. But even in these circumstances, local police officials have stated that they hope to resort to arrests only if people do not comply after the order’s potential violations have been explained.
Most policymakers recognize that stay-at-home orders are a vital tool for protecting public health, not a tool for enhancing sentences for other criminal behaviors. Nonetheless, these orders are reigniting long-standing concerns about “charge stacking”—the practice of piling on multiple charges for the same criminal act. This can result in unduly harsh sentences for relatively low-level offenses, exacerbating overcriminalization and mass incarceration.
Unfortunately, some jurisdictions are starting to use stay-at-home orders to engage in charge stacking. For example, a man in Indiana who was arrested for operating a motor vehicle while intoxicated was also charged with violating the statewide stay-at-home order—a Class B misdemeanor under Indiana law, carrying a fine of up to $1,000 or 180 days in jail. And in Ohio, a traffic stop resulted in the arrest of two individuals for drug possession and violating the governor’s stay-at-home order.
Other jurisdictions are using emergency declarations as a tool for enhancing penalties for crimes. In Hawaii, for example, an individual was arrested for allegedly attempting to steal a car battery, an offense classified as a petty misdemeanor and punishable by up to 30 days in jail or an $1,000 fine. Because the incident occurred during a state of emergency, however, prosecutors upgraded the charge to a Class B felony, carrying a maximum sentence of 10 years in prison.
The novel coronavirus is an unprecedented and rapidly developing emergency situation, and jurisdictions are working hard to respond to a full-blown public health crisis where physical distancing is essential. As this pandemic intensifies, officials must be vigilant in educating and persuading the public to adhere to stay-at-home orders and should only use the criminal justice process as a last resort.
Betsy Pearl is an associate director for Criminal Justice Reform at the Center for American Progress. Lea Hunter and Kenny Lo are research associates for Criminal Justice Reform at the Center. Ed Chung is the vice president for Criminal Justice Reform at the Center.