Curbing COVID-19 Means A Moratorium On Unnecessary Arrests

In Boston, it’s worse than business as usual at the police department as the pandemic spreads. On a recent day, officers arrested people for charges the district attorney has publicly declined to prosecute.

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

By Wednesday, life in Boston had largely ground to halt because of the COVID-19 pandemic. Schools were closed, MBTA subway service was scaled back, restaurants were empty. But there was one glaring exception: the Boston Police, who were out making arrests for nonviolent misdemeanors and property crimes.

According to data collected by the city, police generated 228 incident reports on Wednesday. Some of these reports included additional actions taken on investigations that began on prior dates, and many were for issues other than crimes, such as towed vehicles and verbal altercations. Out of 172 incident reports written that day as a result of new police interventions, only six were for “serious” alleged crimes: two robberies, a rape, and three cases of aggravated assault. So people in Boston were detained and booked by the police largely for alleged offenses like receiving stolen property, and even trespassing. These charges do not increase public safety, and in Suffolk County, trespass is presumptively not prosecuted by District Attorney Rachael Rollins, a reformer.

These arrests created a chain of dangerous potential exposures to the virus, with no one involved able to practice social distancing. The officers were exposed to the people being arrested, who were in turn exposed to the police. Arrestees were brought to police precinct lockups throughout the city and exposed to each other. Defense attorneys—many of whom are older or otherwise considered high risk—visited their clients in the precincts and then appeared in court to argue for bail, thus negating the prophylactic measure of declining to bring the defendants to the court.

When Boston Mayor Marty Walsh was asked Wednesday whether he would order police to stop arresting people for misdemeanors and nonviolent crimes, he demurred. “I checked with the police this morning, we’re really not having a lot of crime in the city,” he told the Boston Globe. “If there’s no crime, there’s no need for arrests.”

As states and municipalities attempt to flatten the curve of COVID-19 cases, police punch huge holes in our collective defenses. While some departments are pledging to reduce arrests for “low level” offenses, others remain blasé or, worse, take advantage of the health crisis to make more unnecessary arrests. In Bristol County, Massachusetts, Sheriff Thomas Hodgson said he opposed plans by DA Rollins to release incarcerated people because of COVID-19. Incredibly, Chicago Police Superintendent Charlie Beck told officers who came in contact with an officer infected with COVID-19 to “continue to report for work and self-monitor for any symptoms.”

Poor policy making comes as incarcerated people and police alike become infected. On Thursday, the Washington, D.C., police said that 70 officers self-quarantined over COVID-19 concerns; the same day, D.C.’s deputy mayor said that 65 incarcerated people were quarantined because they came into contact with a deputy marshal at D.C.’s Superior Court who tested positive for COVID-19. On Monday, New York City reported that 39 people in custody at Rikers Island tested positive, while 21 staff members tested positive. The same day, the NYPD said that 98 employees tested positive. The Massachusetts Department of Correction also announced its first positive case among incarcerated people in the state; less than 36 hours later, the DOC confirmed that two more people in custody, along with a corrections officer, had contracted the disease. And the Boston police said an officer tested positive for COVID-19.

Drastically reducing arrests in the era of COVID-19 does not harm public safety. Indeed, declining to make an arrest on-scene does nothing to impede the criminal legal system. No arrest does not mean there will be no legal proceeding. In Boston, police routinely interview individuals they believe have committed a crime—a process called a “FIO,” or Field Interaction/Observation—release them from the scene, and later apply for a criminal complaint. Currently, many courts are taking active measures to reduce bails and release people on their own personal recognizance in light of the epidemic. The Suffolk County Trial Courts and the district attorney’s office are continuing most cases for at least two months. Detaining someone who will be released a few hours later does nothing but place every person involved in the process at risk of infection.

Police departments are charged with public safety; during this emergency, these agencies must recognize that when a single COVID-19 infection can spawn 1,000 more, detaining people when it is not absolutely necessary does nothing but put both the police and the public at large at risk. It is also a serious misallocation of resources; police officers who find themselves infected or exposed will have to quarantine, which will make them unavailable as first responders should the health crisis worsen.

A lesson we have learned repeatedly as we confront COVID-19 is that once it’s too late, it’s too late. Our prisons and jails are poised to become major infection vectors. Gregg Gonsalves, an assistant professor at the Yale School of Public Health, recently said that the prison system could become “ground zero for the pandemic.” We must make every effort to suppress the spread of the virus, and right now that means demanding that police agencies not place us or themselves at risk by making unnecessary arrests, and that these arrests stop today, before a police officer or detainee becomes infected and spreads the disease further. Municipalities must immediately and unambiguously order their police agencies to refrain from making arrests for drug, property, and “quality of life” crimes. Pretending that law enforcement can operate as if everything were normal when the entire nation watches the growth of COVID-19 cases is no one’s idea of public safety.

Will Isenberg is a public defender in Boston and a partner at Isenberg Groulx LLC. Follow him on Twitter @Wiloceraptor.