Abstract
Excerpted From: Sean E. Bland, Decriminalizing Disease: A Health Justice Approach to Infectious Diseases and Criminal Law, 77 Arkansas Law Review 441 (2024) (388 Footnotes) (Full Document)
Infectious diseases, also called communicable diseases, are largely a public health issue and should not be criminalized. These diseases are caused by infectious agents such as viruses or bacteria and can be transmitted from person to person. Due to fears of contagion, public responses to the threat of infectious diseases have relied heavily on punitive approaches placing blame on individuals with these diseases and using the criminal legal system to punish transmission as a purported way to prevent new infections. Health and legal experts have critiqued the criminalization of infectious diseases, i.e., the use of criminal law to prosecute people for the non-disclosure, exposure, or transmission of an infectious disease, as ineffective and harmful. This criminalization does not reflect the current scientific and medical evidence around infectious diseases in many instances and conflicts with the goals of public health. Public health focuses on improving population-level health outcomes, but it should also build systems that promote health equity and are responsive to the lives of marginalized populations. In contrast, the criminalization of infectious diseases reveals an enduring punishment mindset. This mindset views retribution and control as central components of public safety and is part of a longstanding tendency to hold individuals responsible for societal problems instead of addressing root causes.
This Article seeks to re-frame the discussion around the legal framework for infectious diseases in a way that moves beyond a punishment mindset and toward a health justice mindset. My focus in this Article is on health justice rather than traditional understandings of public health, defined as the science and practice of improving the health of people and their communities. Public health utilizes a range of tools including disease surveillance and intervention, education, prevention, and treatment, as well as policy and regulation, to reduce the risk of infectious disease transmission. Typically, public health is understood to necessitate constraining individuals and their risk behaviors to protect the health of whole populations. As a result, it can conflict with individual rights and civil liberties. Protecting population health and protecting personal interests are often in tension within public health and public health law. While public health can be in synergy with rights and liberties, this Article embraces a health justice approach over a public health approach. Health justice is related to public health, but it is also distinct in making social justice a core value of health law, broadly conceived.
I argue that health justice, when applied to infectious diseases, requires decriminalization. Health justice aligns with the abolitionist project to dismantle carceral practices and implement non-carceral approaches. In contrast to a criminal legal framework, health justice is a framework for understanding and supporting how to better remedy health inequities. It recognizes how inequities manifest through structural subordination, prioritizes access to rights, protections, and supports in place of behavioral mandates, and centers collective action grounded in community engagement and empowerment. The framework additionally focuses on evidence-based strategies, prevention, and coordination with a broad range of institutions and actors in sectors relevant to health justice, including not only public health and healthcare, but also law, human services, education and youth development, community development, business, and philanthropy.
A health justice approach requires asking questions that foreground health outcomes and health equity, therefore allowing for a broader way to think about the decriminalization of infectious diseases. From a health justice perspective, decriminalization involves something more than just removing or reforming ineffective or harmful criminal laws. Decriminalization involves creating institutions and institutional practices that address poor health outcomes and inequities as well as their underlying social determinants. It also involves providing legal protections, financial resources, social support, power, and control to individuals and communities most affected by structural discrimination and subordination. As a matter of health justice, what is needed is a move away from criminal law enforcement as a response to infectious diseases. To be successful, this response should be led by institutions, organizations, and individuals knowledgeable about infectious diseases and conversant in the decades-old struggle for patient-centered care, autonomy, and privacy. Such a response also requires standards and procedures that prioritize evidence-based infectious disease prevention, emphasize the provision of appropriate services, and promote antidiscrimination and equity.
Historically, the response to infectious diseases has not been driven by a health justice approach. Instead, it has been primarily driven by fear, stigma, and moral panic, which contributed to the criminalization of HIV and other infectious diseases. Even though HIV can now be effectively prevented and treated, HIV criminalization still occurs today. In the United States, this criminalization varies substantially by state and has undergone law repeal and reform efforts. While some states have criminal laws that specifically apply to people living with HIV, many states have infectious disease criminal laws that apply more generally to people with an infectious disease, including but not limited to HIV. For example, Iowa imposes criminal penalties on any person who knows they are “infected with a contagious or infectious disease and exposes an uninfected person to the contagious or infectious disease” with either the intent or reckless disregard as to whether “the uninfected person contracts the contagious or infectious disease.” Even in the absence of HIV-specific criminal laws or infectious disease criminal laws, states have general criminal laws such as assault and reckless endangerment statutes which can be used to prosecute people for infectious disease exposure or transmission. Efforts to end unjust HIV criminalization are ongoing, but most states have not acted to repeal or otherwise reform their laws. States that have acted have taken different approaches. However, each decriminalization approach, whether through litigation or legislation, comes with challenges. As a result, criminalization can persist. While it is possible to end infectious disease criminalization, it requires a multi-layered approach.
Legal scholarship must account for this varied legal landscape and examine the challenges, consequences, and limitations of decriminalization approaches. For instance, where decriminalization approaches involve eliminating HIV-specific criminal laws, those approaches may be less effective if they do not also address general criminal laws under which people living with HIV are frequently prosecuted. What is needed is more than just repealing outdated HIV-specific criminal laws or infectious disease criminal laws more generally. In 2022, New Jersey became the third state to completely repeal its HIV-specific criminal laws after Texas and Illinois. Despite the Texas repeal occurring in 1994, people living with HIV have been prosecuted in Texas since then under general criminal laws including attempted murder and aggravated assault. Merely reforming criminal laws by requiring specific intent to transmit HIV or requiring actual transmission of HIV is not enough to end unjust criminalization, and many HIV advocates have previously noted this.
Furthermore, legal scholarship on the criminalization of infectious diseases has centered on the criminalization of HIV. However, criminal laws can be used to prosecute people with infectious diseases such as viral hepatitis and COVID-19. It is important for legal scholarship to explore the criminalization of infectious diseases other than HIV and examine what decriminalization efforts pursued with HIV in mind mean for these other diseases. As states have reformed their laws, some have shifted away from singling out HIV for criminal punishment. This shift has resulted in updated laws that are not HIV-specific and that contemplate the prosecution of infectious diseases beyond HIV. In other states, legal reform has included making laws reflect the current scientific and medical evidence of HIV transmission. Given these developments, it is important not only to end the ineffective and harmful criminalization of HIV, but also to prevent similar criminalization of other infectious diseases. The need for this broader approach has become apparent considering recent prosecutions involving hepatitis and COVID-19. These infectious diseases are more prevalent and more transmissible than HIV, meaning that many more people could potentially face criminal prosecution. Even so, these infectious diseases have different stigmas and behaviors associated with them and impact different populations. For example, HIV is associated with sexual behaviors and disproportionally impacts stigmatized groups, including gay and bisexual men, transgender individuals, and sex workers, especially those from communities of color. This may contribute to higher rates of criminalization in the HIV context and explain the fewer criminal prosecutions to date against people with hepatitis or COVID-19 relative to people living with HIV.
Given the prospect of ongoing HIV, hepatitis, and COVID-19 epidemics and of newly emerging epidemics, this Article uses a health justice framework to analyze the criminalization of infectious diseases and to examine various options for changing law enforcement decision-making in ways that support decriminalization. The individual decisions of law enforcement are important because they drive criminalization and contribute to its downstream harm. The United States has often used criminal law to deal with public health issues and has a long history of mass incarceration and social injustice, particularly affecting people of color and other marginalized groups. Given this context, it is important to embrace an approach that prioritizes what makes sense from the perspective of public health and affected communities and that limits the discretion to prosecute people in connection with infectious diseases.
The Article makes three novel contributions. First, it applies a health justice framework to the critique of infectious disease criminalization. The Article explores the origins of the criminalization of infectious diseases through this lens. It surveys the existing landscape of laws and uses HIV as a case study to consider how infectious disease prosecutions exemplify and amplify social hierarchies and undermine public health and health justice.
Second, the Article assesses the implications of recent efforts to repeal or reform laws criminalizing HIV. It draws on scholarship calling into question the justifications for HIV criminalization and argues for decriminalization, but it further argues that most repeal and reform efforts aimed at HIV-specific criminal laws have been insufficient. Eliminating these criminal laws still leaves people subject to prosecution under general criminal laws for conduct where HIV transmission is unlikely. Moreover, excluding people from prosecution based on HIV viral suppression could exacerbate the disparate impact of criminal laws on people of color, unhoused people, transgender people, and other groups with lower levels of viral suppression. Finally, criminal reforms made with HIV in mind may not limit or prevent prosecutions of other infectious diseases.
Third, this Article examines the criminalization of infectious diseases other than HIV, in particular, hepatitis and COVID-19. It is important to consider the details of different infectious diseases and how criminal laws are applied to these diseases to make the full implications of criminalization apparent. The Article ends with a pragmatic analysis of two strategies that center health justice and aim to marginalize the use of criminal law.
The Article will proceed as follows. Part I discusses the history of the criminalization of HIV through the lens of health justice. After introducing the main elements of the health justice framework, the Article uses this framework to critique the criminalization of infectious diseases. In response to the HIV epidemic, state legislatures in the 1980s enacted HIV-specific criminal laws to prosecute the non-disclosure, exposure, or transmission of HIV in ways that are contrary to health justice.
Part II provides an overview of current laws enabling HIV criminalization (in the following referred to as HIV criminalization laws) and describes the use of these laws in recent years. HIV criminalization continues to exist and is still harmful today. This Section first details the various components of existing laws, how they work, and data on their enforcement. It then critically discusses reforms to these laws and explores where criminalization remains a threat despite these reforms. One goal of this article is to update the conversation around HIV criminalization in light of recent developments. Another goal is to glean lessons from past and current infectious disease criminalization for improving the legal and policy landscape.
Part III considers how criminal laws have been applied to infectious diseases such as viral hepatitis and COVID-19 and explores the ramifications of these applications. Given the infectious disease consequences of the enduring opioid crisis and, more generally, the likelihood of more frequent and more severe epidemics in the future, we are likely to see further attempts to use criminal law in response to infectious diseases. I argue that we should resist such attempts. I use a health justice framework to examine and evaluate two potential strategies for limiting criminalization and its harm, even if no single strategy is the solution. The Article concludes with some takeaway lessons for public health and criminal law.
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The criminalization of infectious disease largely emerged from fear and moral panic around HIV and STIs due to ignorance about disease transmission and associations with stigmatized groups. Infectious disease criminalization continues to occur today. Criminalization is not the right way to deal with infectious diseases because it is not an effective prevention approach and it is harmful to both public health goals and vulnerable communities.
A health justice approach is the more appropriate way for responding to infectious diseases. This approach requires decriminalization of infectious diseases to dismantle subordination as a root cause of health inequities, but it also involves creating institutions and institutional practices that support public health and social justice. To think strategically and effectively about decriminalization from a health justice perspective, attention must be given to what fills the void when infectious disease criminal laws are eliminated or to whether and how reformed criminal laws are used. Reform efforts addressing HIV criminalization have been successfully implemented in some states and are being considered in more states. However, as I have shown in this Article, eliminating or modernizing criminal laws does not necessarily end the criminalization of HIV. The criminal law is flexible enough that law enforcement can use general criminal laws. Public health authorities can also act in ways that reflect a punishment mindset.
This insight into the flexibility of criminal law is important when considering the government response to infectious diseases and other public health issues. Infectious disease criminal laws and general criminal laws have been applied to hepatitis and COVID-19. On the one hand, the United States did not embrace the most severe uses of criminal law in response to COVID-19. On the other hand, in the right circumstances, criminal law could return as a response to other infectious diseases, especially when marginalized and stigmatized groups are predominantly affected. That is why scholarly attention needs to be paid to how criminal laws have been and continue to be used to prosecute people with infectious diseases and to criminalize public health issues more generally. Without a full reckoning with the harms caused by the criminalization of public health problems, we risk perpetuating them.
Since criminal law and carceral practices are not going away, it is important for activists and legal academics to consider health justice-oriented strategies for moving away from a punishment mindset. The priority must be achieving effective prevention and remedying health inequities. This would likely mean responding with evidence-based strategies and institutionalizing critical consultation and partnerships, such as between law enforcement and public health and between government officials and community stakeholders. Legal protections, financial resources, and social support also should be prioritized over criminalization. There may be a few, rare instances when the use of criminal law would be appropriate, for example, when a person has the specific intent to transmit a disease. Even then, it is important to lead with health justice principles. In the context of COVID-19, where criminalization may have been contemplated for seemingly good reasons at the height of the epidemic, a better approach is to address the social determinants of health. This would mean providing access to personal protective equipment (PPE) and health care, income and housing assistance, and paid sick and family leave. Community engagement and empowerment are also key. When communities are heard, it becomes clear that people often do not intend to transmit infectious diseases, but rather lack needed education, resources, and support. Health justice provides a framework not only for understanding the social determinants of diseases and the problems caused by criminalization, but also for imagining how to transform health care, public health, and criminal legal systems.
Assistant Professor of Law, Santa Clara University School of Law,
