How the coronavirus is revealing America’s over criminalization problem

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For weeks now, “Reopen NC” protestors have repeatedly gathered in Raleigh to demand that Governor Roy Cooper lift his lockdown order. But whether you agree or disagree with the protests, the police’s handling of them should give us all pause.

Again and again, police in North Carolina have treated these protestors like criminals, threatening them with criminal prosecution and even arrest. State and local authorities in North Carolina are using criminal law to intimidate and punish violators of the governor’s stay-at-home order. But not only is criminal prosecution a terrible way to solve a public health challenge like COVID-19, but it’s also a dangerous misuse of criminal law. 

Criminal law exists to curtail morally wrong behavior that harms individuals and communities. We use criminal law to punish thieves and trespassers, fraudsters and scammers, drug dealers and drunk drivers. Criminal law works because it threatens bad actors with imprisonment, loss of property and other grievous consequences. But because criminal law is such a serious weapon, it needs to be carefully limited in its use and application. 

Unfortunately, too many in government have forgotten this lesson. Today, criminal law is overused and misused. Instead of merely punishing wrong behavior in a narrowly circumscribed way, criminal law now enforces social control and regulatory compliance on a broad swath of issues. This is a problem known as “overcriminalization,” and the coronavirus outbreak is revealing just how widespread of a problem it really is.

North Carolina is a case in point. From 2009-14, North Carolina lawmakers added 204 new crimes to the books. From 2015-2016, they added another 114. But North Carolina’s overcriminalization problem doesn’t stop there. Under North Carolina state law, every public authority from a metropolitan sewage district to a city or town has the power to create new crimes at will. In North Carolina, any and every local, municipal or state ordinance automatically carries the criminal penalty of a Class 3 misdemeanor. So, every time the state governor or any city mayor passes new social distancing regulations, they are effectively creating a new class of criminals.

Yet North Carolina is not alone. Across the country, state and local governments have criminalized otherwise innocuous and benign behavior during the pandemic. At the start of the coronavirus outbreak, the Department of Public Safety in Newark, New Jersey, promised to criminally prosecute anyone who posts “false information” about the coronavirus. Last month, Malibu police pursued and arrested an isolated paddle boarder. At the start of May, Hawaii police arrested two honeymooning newlyweds for breaking quarantine. California police have arrested over 30 protestors. And from March 17 to May 4, the NYPD has arrested 40 New Yorkers for violating social distancing requirements.

This rampant proliferation of crimes and criminal penalties is a clear abuse of power. And it’s thoroughly misguided too. America is a nation of resilient, independent and caring communities. We can care for each other best when we aren’t constantly under the threat of criminal prosecution for incomplete home improvement projects or for watching our neighbor’s kids. The coronavirus outbreak is no different. People shouldn’t be jailed for going outside or protesting at the state capitol; we need our government to protect, not prosecute us. 

But while relatively few people end up in prison for protests or regulatory non-compliance, America’s overcriminalization problem is still part and parcel of a larger problem with over-incarceration. Currently, the United States incarcerates 698 out of every 100,000 people, giving us the highest incarceration rate out of any country in the world.

In America today, thousands of people — an overwhelming majority are black men — are jailed or imprisoned for low-level offenses like technical violations of parole, misdemeanors, and unpaid fines. Over 550,000 people are incarcerated without convictions in local jails simply because they cannot afford to pay extremely high bail costs. Across the country, draconian and overly complex criminal codes put people in prison for “crimes” that have more to do with poverty and unfair social circumstances than with any criminal intent. 

America’s high incarceration rate reflects the ugly realities of a legal system that is putting criminal prosecution before local service, moral solidarity, and community care. And this is reflected in the racial disparities of our incarcerated populations. African Americans are incarcerated at a rate nearly six times higher than white Americans and three times higher than Hispanics.

As a nation, we need to applaud every politician and government leader who fights to shrink the prison population and slash regulations carrying unnecessary criminal penalties. President Trump has already spearheaded this fight in criminal justice reform and brought America’s incarceration rate to a 20-year low, but we need to do more.

In particular, we need state and local politicians to put a stop to the madness of overcriminalization. Especially during a national crisis like the coronavirus outbreak, we can’t afford to waste time, energy and resources in policing ordinary citizens for ordinary behavior. Let’s treat lockdowns and social distancing requirements for what they are: civil ordinances, not criminal law. Not only will doing so protect our fundamental freedoms, but it will also help us find the best way forward out of this pandemic.

Timothy Head is the executive director of the Faith and Freedom Coalition.

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