With the number of COVID-19 cases skyrocketing across the world, many governments are taking drastic measures to prevent the spread of the novel coronavirus. Public buildings and schools are closing, small towns and big cities alike are being placed on lockdown, and all who can are being urged to stay home.
In an effort to promote compliance with these restrictions, many policymakers are imposing fines or jail time on people who violate these orders.
In Albania, a person that organizes a social, cultural or political gathering as defined by the law may be fined 5 million leks (roughly $45,700). And in Italy, those with coronavirus symptoms who fail to self-isolate can be incarcerated.
No doubt these policies are well-intended, but using fines or jail time to punish people who violate public health restrictions, particularly when they have good cause, is more likely to lead to greater harm than good. Their use should be avoided in all but the most egregious cases.
After all, these penalties are likely to disproportionately harm the poor and those who work for less flexible employers. An individual who is allowed to telework is less likely to leave his home than someone whose income is dependent on their physical presence at work. And someone who has paid leave benefits is more likely to stay at home than someone whose income-flow may rapidly halt if quarantined.
Individuals living paycheck-to-paycheck may understandably feel forced to take greater risks to support themselves or their families.
Even if the likelihood of violating public health restrictions doesn’t differ by income level or occupation, the imposition of fines or criminal charges still automatically favors those who have more financial flexibility.
The ability to pay a fine or bail if charged with a crime protects the rich from the imposition of the harshest, most damaging penalty: jail. Some may advocate that taking away the jail penalty fixes part of this problem.
But individuals unable to pay fines are routinely held in contempt of court and thereafter jailed, even if avoiding the use of jails was the whole point of using fines in the first place.
Given that poverty and workplace flexibility clearly differ across racial and ethnic lines, a jail and fines strategy would also likely wreak greater havoc in our black and brown communities. A 2017-2018 national survey found that Hispanics and African Americans were significantly less likely to work from home than their white or Asian counterparts.
Hispanics also reported a less flexible work schedule. Additionally, poverty rates among Hispanic, Native American/Native Alaskan and black Americans are roughly double or more than double the poverty rate among whites. Our justice system is already littered with clear racial and ethnic disparities.
Do we really want to enact policies that would amplify this travesty?
Finally, using jail time—or large fines that can lead to jail time—as punishment may actually enable rather than deter the spread of the coronavirus. After all, it’s not like American jails are sitting empty and primed for social distancing; many jails are overcrowded and operating at far over 100 percent capacity.
Their confined quarters and the consistent cycle of people exiting and entering jails creates a perfect hotbed for spreading the virus to and from communities.
Making matters worse, jails struggle to provide adequate healthcare to jailed residents. Their healthcare systems are not equipped to confront or control a coronavirus pandemic, even before creating an even larger jail population.
For this reason, local sheriffs and officials in places such as Cook County, Illinois, are already working to release defendants held in pretrial detention without undermining public safety and are asking police to reduce arrests for minor violations.
In light of these facts, policymakers must find better tools to encourage compliance. Some suggestions include new social welfare packages to ease the fears and concerns of those who don’t have the savings or cash flow to be absent from work and lose paychecks. Others include strategies to execute credible public information campaigns underlining the true fallout that could occur if individuals don’t stay home.
These are, without a doubt, scary and confusing times. But in the midst of this chaos, we should be actively trying to innovate and advance health and safety—even when it comes to compliance and accountability—rather than returning to old, broken models of fines and incarceration. In this manner, we will avoid unjustly penalizing Americans and public health will be better as a result.
Emily Mooney (@emilymmooney) is a resident criminal justice policy fellow at the R Street Institute, which works to promote free markets and limited, effective government.