SERIES: COVID-19’s Long-Term Policy Implications - COVID-19’s Impact on Criminal Justice and the Black Lives Matter Movement
The COVID-19 pandemic has rightly become the sole focus of the public health policy world, but it is also having far reaching effects into policy landscapes way beyond healthcare. This blog post is the tenth in a series that will explore how COVID-19 is changing American life, and as a result, impacting various policy areas. This series will explore changing American attitudes, examine new policy ideas, and project on legislative and regulatory activity we may see as a result of the virus in the months ahead.
The coronavirus epidemic presented new challenges for law enforcement officers when community transmission sped up in mid-March. Tensions between police and communities of color that they patrol have risen since then and were elevated even before the death of George Floyd and the resulting civil unrest. These recent events, coupled with ongoing efforts to respond to the pandemic, have resulted in demand for policy reforms.
Police Brutality and Inequality
In the nation’s capital, community advocates in primarily Black neighborhoods have noted the Metropolitan Police Department (MDP) was disproportionately targeting Black people in their enforcement of social distancing and the stay-at-home order in the District. An Instagram video from April, which showed a brawl between MPD officers and residents of the Trinidad neighborhood in Washington, raised questions about how the epidemic affects Black people in America differently than other communities. Indeed, the recent civil unrest and wider acceptance of Black Lives Matter as a statement and a movement could be tied to restlessness after three months in lockdown.
Across the country, Black people have had much higher mortality rates from COVID-19 than any other racial group. In Louisiana, over 70 percent of patients who have died of COVID-19 were Black, but Black people only make up 32 percent of Louisiana’s population. Similar health disparities exist around the country, and public health experts have attributed them to systemic racism. Many workers who have been deemed essential to the economy during the pandemic are Black, meaning that Black households are far more likely to be exposed to the virus than any other race. From difficulty accessing healthcare to environmental health concerns in Black neighborhoods, there are many factors that contribute to disproportionately negative health outcomes for Black communities. Despite these alarming trends in COVID statistics, efforts to collect data on race and ethnicity in the pandemic remain patchwork across the country. States have not been mandated to report data of the race or ethnicity of patients to the U.S. Centers for Disease Control and Prevention (CDC) thus far.
Black communities have also been disproportionately affected by the economic downturn resulting from the coronavirus lockdowns and stay-at-home orders. Black-owned businesses have been less likely to receive aid from any of the Coronavirus Aid, Relief, and Economic Security (CARES) Act programs, including the Paycheck Protection Program (PPP). Black Americans hold less than three percent of the country’s wealth, meaning many are not able to financially support themselves or their families if they stop working. For many Black essential workers with older or immunocompromised people in their households, not working is the only way to protect themselves and their families. Many Black people found themselves in truly disastrous circumstances and have struggled to make it through the past two months of lockdown. These factors have all contributed to a growing inability to continue tolerating issues that make life as a Black person in America more challenging, such as police brutality and harassment of Black communities.
Demands for Change in the Middle of a Pandemic
Thousands of Americans have been flooding the streets across all 50 states in solidarity behind the push for police reform and the need for racial equality. On June 5, it was estimated somewhere between 100,000 to 200,000 protesters attended a march from the U.S. Capitol to the White House. Other major cities that have witnessed these protests include, London, Berlin, and Sydney, along with some smaller gatherings throughout Canada, Netherlands, and New Zealand.
These protests were sparked by the killing of 46-year-old George Floyd of Minneapolis, Minnesota. On May 25, Floyd was accused of purchasing a pack of cigarettes from a convenience store with counterfeit money. He was then arrested and restrained by four officers. One of the present officers, Derek Chauvin, has since been charged with second-degree manslaughter and second-degree murder after restraining Floyd to the point of death. The three other officers present were charged with aiding and abetting murder. A video has surfaced illustrating Chauvin placing his knee on Floyd’s neck for over eight minutes causing him to die of cardiopulmonary arrest due to excessive restraint. No attempt was made by the White officers to revive Floyd after there was no pulse present. This incident has caused many activists to revitalize their cause and push for change within the criminal justice system.
Floyd’s death is not the only recent incident of fatal police brutality motivating activists. The deaths of Breonna Taylor and Ahmaud Arbery have also received significant attention and grown tensions between Black communities to police forces. In the case of Breonna Taylor, a 26-year-old African American emergency room technician of Louisville, Kentucky, police entered her apartment early in the morning on March 13 with the use of a no-knock warrant. The police claim that upon entry they were greeted with gunfire, but Kenneth Walker, Taylor’s boyfriend, and licensed gun owner, said he was shooting out of self-defense against intruders. Black Lives Matter activists have highlighted Breonna Taylor’s case as an example of why no-knock warrants are dangerous and contribute to mistrust of policing in Black communities.
In the case of Ahmaud Arbery, a 25-year-old Black man that was pursued and killed by White residents while jogging in a South Georgia neighborhood, many had forgotten about his case until a video of the murder surfaced in May, three months after the incident had occurred. This video brought about great suspicions on why the men in the video who had been recorded attacking and shooting Arbery had not been arrested. Some prosecutors believe it had been within the attacker’s rights to pursue and engage with Arbery based upon Georgia’s citizen arrest and self-defense statutes. However, once the video went viral in May, public outrage ensued, leading to the arrest of the three men involved. These cases may have been before that of George Floyd, but they have played a crucial role in the vitality of the Black Lives Matter movement and have helped in providing fuel to the many protests ensuing around the world.
More recently, demonstrators in Atlanta, Georgia have continued protests following the June 12 shooting of Rayshard Brooks, a 27-year-old who was killed by police who approached him on suspicion of driving under the influence. Brooks was shot twice in the back after running off with a police taser. His death has been ruled a homicide and the incident has prompted Atlantic Police Chief Erika Shields to resign. Garrett Rolfe, the office who killed Brooks, was fired from the police force, and Devin Brosnan, the other officer involved in the sobriety stop, was placed on administrative leave.
With this revival of public demonstrations for the Black Lives Matter movement coming at a time where the world is engulfed in the fight against COVID-19, jurisdictions have struggled to support citizens’ First Amendment rights while remaining cognizant of public health concerns. Health professionals report the increase in size and number of public gatherings create inevitable risks of continued the spread of the virus. At the moment, 19 states have seen spikes in their number of hospitalizations of COVID-19 patients. Around the country, some frontline healthcare workers have joined in on the protests, claiming that staying safe from the disease parallels the need to protect equality.
As stated by Danielle Belardo, M.D., a cardiologist in Philadelphia, PA who was sent to work with critically ill COVID-19 patients in an interview with Women’s Health Magazine, “Everyone, every day takes a personal risk assessment to determine their health needs. And we cannot ignore that human rights are an undeniable need.” While protesters may be putting themselves at risk to the current pandemic, these civil rights issues are seen as something that can no longer be ignored.
Prospects for a Legislative Response
In the past week, a number of proposals for nationwide police reform have been unveiled or are in progress, in addition to more localized reforms and budgetary reallocations across the country. In the respective chambers were they hold majorities, Democrats in the House and Republicans in the Senate are working on proposals to reform police departments. Aside from these leadership-driven proposals, individual members are also putting forward new legislation.
On June 8, House Democrats revealed their plan during a press conference held at the Capitol. Democrats’ bill, the Justice in Policing Act, would ban chokeholds, no-knock warrants in drug cases only, and compile data on the use of force by law enforcement officers across the country. The bill creates grants to allow state attorneys general to research police use of force. Also included in the bill is language that would make lynching a federal hate crime. Finally, the bill would end the judicial doctrine of qualified immunity, which provides police officers significant protections against wrongful death lawsuits. Democrats are pursuing an aggressive timeline. A preliminary hearing on the bill was held on June 10. House leadership is calling members, who have been working remotely during the pandemic, back to Washington on June 25-26 for a floor vote.
In the Senate, Majority Leader Mitch McConnell (R-KY) has handpicked Senator Tim Scott (R-SC), the only Black Republican senator, to lead Senate Republicans’ effort to develop a legislative response to police brutality. Since his election to the Senate in 2014, Senator Scott has been a powerful voice in the Republican Party on issues of systemic racism in America. His bill, which could be unveiled June 17, is expected to increase funding for police departments to buy body cameras and reduce grants for states that fail to report statistics on police killings to a national system. It could also launch studies on the use of force by police, including the use of chokeholds.
The U.S. is being closely watched by the rest of the world as it attempts a legislative response to police brutality and racial inequality. It is likely the U.S. under-reports the number of people killed by police officers because states are not required to report fatal encounters with police. Since 2015, the Washington Post has kept a detailed database of police killings, a project sparked by the killing of Michael Brown and subsequent protests in Ferguson. In 2019 alone, American police officers killed 1,003 people. Peer nations regularly report numbers well under 100 people killed by police annually. In fact, the U.S. is outranked in this statistic by only Brazil, Venezuela, and the Philippines.
These statistics have led activists across the country to call for defunding police departments, or disassembling them to build new models of law enforcement. Calls to defund or abolish the police have been largely ignored in Washington, but some municipalities have embraced these policies. For example, Camden, New Jersey dissolved its police force in 2013 and replaced it with a county police force. This change saw dramatic decreases in crime rates, although Camden still struggles with a crime rate well above the national average. More recently, City Councilors in Minneapolis have announced they intend to dissolve the Minneapolis Police Department and replace it with a department more focused on de-escalation and public health and safety. In Washington, DC, activists have lobbied Mayor Muriel Bowser and the City Council to cut the budget of the MPD, but these demands have largely been rebuffed.
Reactions from President Trump and the Biden Campaign
After a week of protests, on June 1, President Donald Trump announced his intentions to activate the Insurrection Act of 1807. Moments later, the Secret Service and U.S. Park Police cleared peaceful protesters from the streets surrounding Lafayette Square in Washington with tear gas.
By way of background, the Insurrection Act allows the President to deploy military forces to states to aid in the suppression of public unrest and to aid the efforts of the domestic law enforcement services. The powers under this law have been questioned by officials due to amendments made in 2006 to expand the authority given to the president under this law. Provisions originally established in the Civil War were removed making it more challenging to prevent an abuse of power of the president under this law. Originally, in order to implement these powers, state governors were required to request the assistance of the federal government, but with the revisions made, these requests are now seen more as a recommendation, rather than a necessity.
Since President Trump’s remarks, governors in many states, such as New York, Illinois, and Minnesota, have made clear the deployment of armed forces is not welcome. Secretary of Defense Mark Esper has said that he does not think that the deployment of troops is necessary and should only be used as a “last resort” measure. Since the creation of the Insurrection Act in 1807, its powers have only been activated 20 times, with the majority of these uses being at the request of state governors. The last time the Insurrection Act was utilized was in 1992 by George H. W. Bush at the request of California Governor Pete Wilson to help tame the Rodney King Riots. It is Esper’s belief that the protests happening today do not parallel those of 1992.
President Trump made headlines again on June 9 with his tweet in response to an incident in Buffalo, New York, where 75-year-old activist, Martin Gugino, was pushed by police, causing him to fall and be hospitalized from a head wound. This encounter was filmed and posted to social media before quickly spreading on the national news media. In response, President Trump tweeted his belief that Gugino had exaggerated the fall in order to carry out a police “set up”. President Trump expressed his view that Gugino had been attempting to scan police communication systems with his phone in order to black out the equipment. This conspiracy theory has brought great skepticism among the public about President Trump's intentions behind opposing the demilitarization of police forces.
President Trump originally intended to restart his campaign rallies on June 19 in Tulsa, Oklahoma. Activists were enraged by this choice and have pointed out layers of symbolism. June 19, also known as Juneteenth, is a day meant to celebrate the freeing of the last American slaves in 1865. On June 12, President Trump tweeted to say that he was moving his rally to June 20, out of respect for Juneteenth. Activists have also pointed out that President Trump is holding his rally in Tulsa, which was the site of Black Wall Street, a district that had a high concentration of Black-owned businesses. The Black Wall Street was burned to the ground in the Tulsa Race Riot of 1921 when White residents of the city killed up to 300 Black people and destroyed 35 city blocks. President Trump is expected to address recent protests and the Black Lives Matter movement at this rally.
Vice President Joe Biden has taken a very different approach in responding to recent social unrest. On June 8, Vice President Biden traveled to Houston to meet with George Floyd’s family. He had originally planned to attend Floyd’s funeral service but decided to organize a private meeting with the family so as not to disrupt the integrity of the service. In a meeting that lasted over an hour, Vice President Biden listened to Floyd’s family’s concerns about police reform and how they are coping in such a public manner. Vice President Biden also promised the family he will push for changes in policing. Additionally, he recorded a video message to be played at the funeral service.
On policy, Vice President Biden’s campaign disappointed some activists by announcing opposition to defunding police forces. Instead, Vice President Biden has said he believes federal aid should be conditioned on proper conduct in police departments. More specifically, the Biden campaign has called for “standards of decency and honorableness” that should be exemplified within law enforcement agencies.
Due to the public’s attention towards the Black Lives Matter Movement and Vice President Biden’s commitment to announcing a running mate by August 1, the Biden campaign has faced increased pressure to select one of the Black contenders thought to be on his short list.
It is thought growing concerns about racial inequality have boosted prospects for Senator Kamala Harris (D-CA), although some might have concerns surrounding her record as a prosecutor. Similarly, Sen. Amy Klobuchar’s (D-MN) prospects for joining the Democratic ticket may be declining due to the revelation that she failed to prosecute many cases of police brutality, including brutalities committed by Derek Chauvin, during her time as Hennepin County’s lead prosecutor. Others thought to be getting a serious look by the Biden campaign include Georgia Democratic gubernatorial candidate Stacey Abrams, former police chief Representative Val Demings (D-FL), and Atlanta Mayor Keisha Lance Bottoms.
Other Observations from COVID-19
Although police reform appears to be foremost in the national dialogue, it is important to note additional changes taking place as law enforcement continues to adapt to COVID-19 conditions. Prisons and jails have historically been known as the ideal place for illness to spread. COVID-19 has already resulted in significant casualties among incarcerated populations. As of June 2, 40,656 prisoners have tested positive for COVID-19 with only 21,832 of those individuals fully recovering and 496 prisoners dying from the illness.
Varying jurisdictions have been working to develop solutions to protect inmates from COVID-19 while still upholding the rulings of the justice system. Many jail systems have resorted to allowing early release of inmates who are not deemed a danger to society or themselves. The same cannot be said for state prisons. Across the U.S., jail populations have been reduced between 31 and 63 percent, with Detroit establishing the highest reduction rate. Meanwhile, in state prisons, the populations have only fallen between 1 and 19 percent. Aside from reducing incarcerated populations, some jails have placed their facilities under a 14-day lockdown period, forcing the population to quarantine to help stop the spread of COVID-19.
During the pandemic, prison and jail systems have also undertaken efforts to help make contact with the outside world more accessible to inmates. Since in-person visits are now banned in an attempt to decrease foot traffic in and out of confined facilities, video calls are now available to inmates to facilitate remote visitation. Additionally, many jails and prisons have either reduced or eliminated calling costs.
Other measures are being taken to make prison and jail communities safer for inmates during the pandemic. This has been complicated by the large number of inmates with pre-existing conditions, making them especially vulnerable to COVID-19. In some jurisdictions, law enforcement officers have been advised to limit the number of arrests for minor, petty crimes in order to limit the number of inmates being booked. Most institutions have also eliminated co-pays for medical services within facilities in order to encourage the use of these resources if inmates believe they may be infected. To date, co-pay costs have been suspended in all state prison systems, with the exception of Nevada and Hawaii.
COVID-19 has also prompted a new review of criminal sentencing and bail procedures, with each state implementing different coping strategies. For example, California recently passed an emergency bail schedule, which allows individuals who are charged with misdemeanors and low-level, non-violent felony offenses have their bail amount reduced to $0. This plan has allowed for different townships to reduce their jail population by up to 40 percent. Additionally, the Massachusetts Supreme Court recently ruled in favor of allowing pretrial release for non-violent offenders. Further, there has been a slight increase in the number of parolees since the first case of COVID-19 was reported in the U.S. This has allowed for an increased number of prisoners to serve the remainder of their sentences under community supervision. This change excludes anyone convicted of a violent offense or returned to prison under a parole violation.
To date, the criminal justice system’s response to COVID-19 has been focused on reducing overcrowding and increasing access to healthcare. Many of the most immediate solutions are still being implemented to try to eradicate illness from these facilities. In the longer-term, COVID-19 is likely to lead to more research to determine best practices for managing contagious infections within confined jails and prisons.