Resolution on Over Criminalization and Pandemics

Summary

COVID-19 has caused states and localities to reassess what conduct should in fact be criminalized. Public emergencies, such as a pandemic, generally expand the police power, but said powers should nevertheless be subject to limitations. For over a decade, the ALEC Criminal Justice Task Force has generally agreed that criminalized conduct that lacks a criminal intent element should be rigorously scrutinized or revisited.

Resolution on Over Criminalization and Pandemics

WHEREAS, epidemics and pandemics threaten public health and well-being, and thus justify expansions of the police power[1] that, in ordinary circumstances, would be intolerable infringements on individual liberty;

WHEREAS, these expansions of power are nevertheless subject to reasonable limitations to ensure that government is no larger than necessary to secure “certain unalienable Rights [such as] Liberty”[2];

WHEREAS, criminal sanctions, while sometimes necessary, are a blunt instrument and a generally disfavored approach for furthering public policy goals;

WHEREAS, any expansion of government power—even a reasonable one—expands the discretion of individual agents of law enforcement, and discretion is subject to potential abuse;

WHEREAS, policy decisions about how to limit police power expansion during an epidemic or pandemic is of course dependent upon the unique pathologies of particular diseases;

THEREFORE, LET IT BE RESOLVED, that expansions of police power during pandemics are subject to the following reasonable limitations:

  • The policies must only be implemented during the time of the pandemic, and governments must provide reasonable benchmarks for assessing the end of the pandemic. Governments rarely return powers they have been granted, and indeed, even well-intentioned governments tend to convince themselves that crises are endlessly “ongoing” to justify a refusal to relinquish new powers.
  • Impositions on liberty must be as narrowly crafted as possible. Only in the most extreme circumstances, for example, should a business or civil society entity be forced to cease all operations. When safe alternatives are available (e.g., allowing home delivery of items because it is unsafe to have crowds inside restaurants or stores), these should be permitted;
  • Criminal sanctions should do no more than required to satisfy the basic objectives of criminal justice. These objectives are generally described as incapacitation, deterrence, rehabilitation, and retribution;[3]

FURTHER RESOLVED, a government policy that cannot satisfy these three requirements is an example of overcriminalization and an unacceptable burden on individual liberty;

FURTHER RESOLVED, because epidemics and pandemics may prompt governments to suspend the enforcement of certain criminal laws (e.g., licensing restrictions on health care providers) and revise their incarceration policies in order to limit the spread of a disease in a jail or prison, they are opportunities for decriminalization, not just overcriminalization; and

FURTHER RESOLVED, that governments should take these opportunities to assess:

  • What is truly necessary to criminalize, even in the absence of a pandemic?
  • When a behavior does demand law enforcement intervention, what methods of detention and prosecution are actually necessary for public safety, whether in a public health crisis or not.

FURTHER RESOLVED, when making these assessments, governments should, as always, consider the importance of public safety and accountability—in addition to public health.[4]

[1] The Police Power is defined as the “inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.” Black’s Law Dictionary ___ (10th ed. 2014).

[2] The Declaration of Independence para. 2 (U.S. 1776).

[3] [3] Antony Duff and Zachary Hoskins, “Legal Punishment,” Stanford Encyclopedia of Philosophy (Winter 2019 ed.), Edward N. Zalta (ed.).

[4] See Paul Robinson & Sarah Robinson, Pirates, Prisoners, & Lepers: Lessons from Life Outside the Law, 32-50 (Potomac Books 2015) (noting that For certain crimes in certain circumstances, societies demand accountability, and governments that ignore those demands by making sweeping, non-targeted decisions to ignore crimes or release prisoners may forfeit their democratic legitimacy).