Equitable Enforcement of Public Health Laws

Read our COVID-19 Response & Recovery blog series

By Katie Hannon Michel & Maya Hazarika Watts

COVID-19 has urgently demonstrated that everyone needs to live in safe and healthy communities. The people most affected by COVID-19 are communities of color, people with low income, immigrants, and other underserved groups. These groups are most vulnerable because of existing laws and policies that affect the fundamental drivers of health inequities. Communities and local governments that take steps to ensure health, safety, housing, food, and economic stability for all of their residents will be helping to prevent the spread of COVID-19 and laying the groundwork for health equity and prosperity for future generations.

To help communities and local governments strengthen their response to COVID-19 and advance health equity, we’re publishing a blog series about policies that they can enact right away. This post is the second in the series.

As we discussed in a previous blog post, mandatory orders that jurisdictions use to implement social distancing (sometimes called physical distancing[1]) measures — such as stay-at-home orders and isolation and quarantine orders — are key to slowing the spread of COVID-19. Such orders can be effective only if they are enforceable.

To avoid potential inequitable impacts, however, jurisdictions should think carefully about how they enforce stay-at-home orders. Consequences like fines and jail time — which some jurisdictions use to enforce mandatory stay-at-home orders — can inequitably impact low-income communities and people of color and can exacerbate health inequities. In addition, some jurisdictions pursue “charge stacking,” in which a charge for violating a stay-at-home order is stacked on top of a charge for a separate minor offense, resulting in an unduly harsh sentence. This practice may unnecessarily increase incarceration rates at a time when the risks of COVID-19 are disproportionately high for incarcerated individuals and prison employees.

Jurisdictions should also carefully weigh the benefits and drawbacks of suspending enforcement of protective public health laws during the pandemic. For example, some jurisdictions have slowed or halted the enforcement of local housing codes, except in emergency situations. On one hand, measures like this can ensure social distancing for housing inspectors and the public. On the other hand, such measures leave the public at increased risk of exposure to mold, pests, and other unsafe housing conditions associated with asthma and breathing difficulties during an outbreak of a disease known to cause respiratory failure. Each jurisdiction will have to analyze and determine the costs, benefits, and equity implications for their own community members.

Fortunately, several localities are taking steps to minimize or counteract inequities that can result from unjust enforcement (or lack of enforcement) of social distancing measures and other public health laws during the COVID-19 pandemic. Consider the following approaches that have been pioneered in localities around the country:

  • Issuing guidance documents that clarify enforcement strategies and reduce the use of criminal penalties for stay-at-home orders: County sheriffs’ offices, police chiefs, or mayors can issue guidance documents to avoid confusion and maintain transparency in regard to enforcement of stay-at-home orders. These guidance documents might recommend that law enforcement officers use alternatives like warnings and public education, and only impose criminal penalties as a last resort, as has been done in San Diego County.
  • Minimizing incarceration and reducing the risk of COVID-19 exposure in detention facilities: County sheriffs’ offices, police chiefs, and local courts can reduce the risk of COVID-19 at detention facilities by minimizing arrests for minor and nonviolent offenses or releasing people who are low-risk offenders from jails. In addition, both Colorado governor Jared Polis and the County Sheriffs of Colorado, a professional association, recommend practices like screening and treating people for COVID-19 before they are incarcerated; increasing cleaning and sanitization inside detention facilities; and minimizing in-person visitation with incarcerated individuals.
  • Reducing court fees and fines: Local courts can minimize or suspend the enforcement of fines, fees, and court debt obligations that can cause economic hardship or affect people’s ability to meet their basic needs during the pandemic, as has been done in Macon County, Georgia; Buffalo, New York; and many other jurisdictions.
  • Strategically reducing the risk of COVID-19 exposure among people without permanent housing: Localities can place a moratorium on “sweeping” homeless encampments, as the Mayor of the City of San Jose has done, to protect people’s ability to safely sleep in tents and maintain social distancing instead of staying in mass facilities. Localities can also follow the example set by San Francisco’s Healthy Streets Operation Center. This agency is redirecting personnel and resources previously dedicated to enforcement against unhoused populations to focus on public education and outreach related to COVID-19. Instead, redirected staff will help people experiencing homelessness to maintain social distancing and will facilitate the provision of shelter to individuals who need to be quarantined.
  • Shifting enforcement activities toward businesses and institutions: Localities can carefully consider the targets of enforcement actions and can prioritize enforcement against businesses and institutions that violate stay-at-home orders, instead of targeting individuals who may have less ability to pay civil or criminal penalties.
  • Using innovative strategies to maintain enforcement of laws designed to protect people’s health: Local code enforcement officials who are looking to adjust how they enforce housing and building codes could explore opportunities to conduct virtual building inspections, create online portals to report housing code violations (and support the availability of internet access), or provide funding for emergency healthy housing repairs and remediation, to reduce the prevalence of respiratory illnesses.

Health department staff and other public officials are working incredibly hard to address challenges and craft innovative solutions in response to this evolving epidemic. Early data show that the pandemic is exacerbating inequities that existed before the pandemic began and that people of color face increased social, health, and economic risks associated with COVID-19. Strategies that jurisdictions pilot and implement to respond to the emergency can be extended or can directly inform long-term solutions to address pre-existing inequities. Decisionmakers and community leaders can start with the solutions highlighted earlier in this article to ensure more equitable enforcement of public health laws.

For more information on enforcement considerations and COVID-19, refer to the Fines and Fees Justice Center, the Vera Institute of Justice, the Brennan Center for JusticeThe Appealand Public Health Law Watch (view the 6/2/20 briefing). Also see ChangeLab Solutions' guide Equitable Enforcement to Achieve Health Equity. Be sure to find out whether the policies you are considering are permitted under your state's laws.

[1] We recognize that terminology is evolving toward physical distancing instead of social distancing as we collectively realize that although we are physically apart, we are all facing this pandemic together. Additionally, we recognize the effects of social isolation on stress, mental health, and well-being. We’ve used the term social distancing in this post so as not to confuse people who are following the news and may not be familiar with the term physical distancing.

Please check out the next installment in this series, which discusses policy responses related to housing: expanding tenant protections; placing a moratorium on evictions; and ensuring access to water, heat, and power.

4/23/2020; updated 7/1/2020

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