Stay-at-home orders issued as the COVID-19 pandemic spreads across the U.S. are “reigniting” long-standing concerns about charge stacking—the practice of piling on multiple charges for the same criminal act, says the Center on American Progress.
In a paper examining how police have been enforcing quarantines and other measures imposed by states and cities, the Center found that most jurisdictions were using restraint in enforcing health measures.
But examples of stacking, which “can result in unduly harsh sentences for relatively low-level offenses, exacerbating overcriminalization and mass incarceration,” suggest that more hardline policing tools could become widely used if infection numbers and public resistance grow.
California issued the nation’s first stay-at-home order on March 19. Since then, 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 similar orders.
Some jurisdictions are misusing a “vital” public health tool, the Center said in the paper released Thursday.
In one 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. Under Indiana law, the charge represented a Class B misdemeanor, carrying a fine of up to $1,000 or 180 days in jail.
In Ohio, a traffic stop resulted in the arrest of two individuals for both drug possession and violating the governor’s stay-at-home order.
In Hawaii, the emergency declaration was deployed to enhancing penalties for some crimes. An individual was arrested for allegedly attempting to steal a car battery. But that offense, classified as a petty misdemeanor and punishable by up to 30 days in jail or an $1,000 fine, turned into a Class B. felony, carrying a maximum sentence of 10 years in prison, because the incident occurred during a state of emergency.
Concerns around enforcement are “particularly salient” for communities of color and other marginalized communities that have experienced higher police activity, the Center said.
“To date, most jurisdictions have resisted the approach of arresting people, especially as the first response for failing to comply with executive orders,” it added. “But this trend may change as the pandemic deepens.”
Some jurisdictions are taking a softer line. A spokesperson for the San Francisco Police Department told the authors of the Center paper that enforcement actions connected to the pandemic will only be used as “last resort.”
“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.”
Washington, D.C. has set penalties of up to 90 days in jail or a $5,000 fine for anyone who violates the District’s stay-at-home order. But D.C. cops were told to avoid arrests if possible.
“The goal of any interaction is to ensure voluntary compliance, not to make arrests,” according to guidelines from D.C. Police Chief Peter Newsham, which are being read to officers as they go out on their shifts.
Health considerations may also be a factor. Two senior policing officials warned Friday in an op ed for The Crime Report that the New Orleans Police Department policy of continuing to make arrests on other offenses endangers officers and correctional staff.
Nevertheless, some states have signaled they may take a harder line as the crisis continues.
After issuing his stay-at-home order, Maryland Gov. Larry Hogan warned that violators of the order would be subject to an arrest and incarceration.
It was clear he meant business. Since Hogan’s order, two people were charged with violating the ban. They face a year in jail or a $5,000 fine, or both.
Maryland residents appear to support a crackdown. Police have received nearly 600 calls reporting violators, authorities said Thursday.
In one of the most notorious cases, police in Tampa, Fl. arrested Pastor Rodney Howard-Browne after he ignored several warnings not to hold Sunday services. The pastor, charged with unlawful assembly and violation of a public health emergency order, was released after posting bail.
Howard-Browne, who claimed that he will cure Florida of coronavirus, insisted his church was “the most sterile building in America,” because it contains 13 machines that can instantaneously kill any virus.
In New Jersey’s Bergen County, police have gone beyond their mandate by requiring residents who tested positive for COVID-19 to place quarantine signs on their front doors. They were told by Bergen County Prosecutor Mark Musella that such requirements were not authorized and were “totally inappropriate,” reported NJ.Com
On Wednesday, frustrated New York authorities closed all children’s playgrounds in the city after noting that many individuals were consistently ignoring warnings to obey social distancing requirements. after repeatedly warning people to stop congregating there.
“I warned people that if they didn’t stop the density and the games in the playgrounds — you can’t play basketball, you can’t come in contact with each other — we would close the playgrounds,” said Gov. Andrew Cuomo.
Violators could be subject to fines of between $250-$500.
Police have already closed down several bars and churches which have refused warnings to close and all non-essential construction—in a city where construction sites mushroom daily—have been ordered to stop. Although fines and citations are still seen as a last resort, New York police could start getting more aggressive as the disease approaches what officials fear will be a peak in community spread over the next week or two.
Meanwhile, however, they are promising restraint mixed with sympathy.
“We’re not necessarily looking that somebody needs to be further hurt when it’s already real tough times,” said New York Police Commissioner Dermot Shea in a recent address to rank-and-file officers.
And with other epicenters emerging as the virus spreads through the country, the “tread softly” policies could quickly be replaced by stricter enforcement.
For more information on how various jurisdictions are enforcing stay-at-home orders, see the Center for American Progress paper on “Tracking Enforcement Measures for Violation of Stay-at-Home Orders.
The Crime Report has opened a resource file of stories mapping COVID-19’s impact on the criminal justice system to keep you abreast of fast-moving developments. Updated daily. Check it out here.