Courts and the Coronavirus
This is
the first in a series of blog posts about judicial systems’ response to the
coronavirus (SARS-CoV-2 is its technical name; Covid-19 is the disease it causes)
outbreak and the justice systems’ active participation in a whole-of-society-approach
(WOSA) to national security and safety threats such as Covid-19.
On January 30 the World Health Organization (WHO) declared the coronavirus a global-health emergency. As health authorities and governments struggled to control the advance of the dangerous disease, and experts scrambled to figure out how it is transmitted, what the duration of the incubation period might be (generally between three and seven days, with the longest period being 14 days), how many other people each infected person will infect (epidemiologists call this the reproduction number), and how and when people without symptoms can spread the disease, the use of quarantine and isolation of people created urgent civil liberty issues for courts. Generally, for example, quarantine and isolation must be carried out in the least restrictive setting and manner necessary to maintain public health.
Isolation and quarantine are used to protect the public by preventing exposure to infected persons or to persons who may be infected but show no symptoms. Isolation separates people known or suspected to be infected from those who are healthy. Quarantine is used to separate and restrict the movement of well persons who may have been exposed to the virus to see if they become ill within a specified time from their suspected exposure.
How is the need for quarantine or isolation established? By whom? How are people screened? On what basis and criteria? On what legal authority can people who are asymptomatic be confined against their will? (There is legal precedent for the confinement of people who are a threat to themselves and others but who have not committed a crime, but there are clearly articulated restrictions.) How long? Where? What are the entitlements and rights of those isolated or quarantined? What are the penalties for non-compliance with orders of isolation or quarantine? How many court orders may need to be issued to compel those who try to evade quarantine or isolation? How can we answer these questions when we have sparse and imperfect data on the outbreak and advance of the virus?
In the United States, state and local governments are primarily responsible for controlling the spread of deadly diseases within state borders; state laws authorize isolation and quarantine of people infected or exposed to the virus (see the National Conference of State Legislatures). The federal government, through the Centers for Disease Control and Prevention (CDC), has the authority to exercise quarantine and isolation powers for specific diseases across national borders and state borders if the state governments are unable or unwilling to respond effectively (see the Centers for Disease Control and Prevention).
In a paper published in the Court Manager in December, my colleagues and I made urgent pleas for courts’ proactive participation in a whole-of-society approach (WOSA) to unprecedented threats we face to our safety, security, and welfare. Courts must get ready for a riskier world today. We and, therefore, they face threats to our safety, security, and welfare not only from dangerous diseases like the coronavirus, but also terrorist attacks, biological and chemical attacks, and cyberattacks. Such threats warrant the immediate attention of courts and their justice partners, not just to mitigate the risks to the continuity of their own operations but to protect society as a whole.
In our December 2019 paper, which was mostly focused on other threats, we warned that courts have not prepared for a potential pandemic like the coronavirus:
As a follow-up to our paper, we are developing a project combining information gathering, training and education of judges and court administrators, and dissemination of curated resources and tools to address the threats we face today as part of a whole-of-society approach. Our thinking about the project at beginning of this year was focused on cybersecurity of courts, but this was before the coronavirus began to appear daily in the headline news around the world, and people wearing face masks became commonplace. Maybe we need to refocus.
As I was ready to post this blog, I picked up the latest issue of the Economist with the ominous picture on its cover of the earth wearing a facemask covering China and surrounding regions (see accompanying picture). Will the virus become a global pandemic? How deadly will it be? How many cases are unrecorded? We may not know the answers for at least a few weeks but we, public health authorities, and the courts must plan and be prepared today.
Copyright CourtMetrics 2020. All rights reserved.
On January 30 the World Health Organization (WHO) declared the coronavirus a global-health emergency. As health authorities and governments struggled to control the advance of the dangerous disease, and experts scrambled to figure out how it is transmitted, what the duration of the incubation period might be (generally between three and seven days, with the longest period being 14 days), how many other people each infected person will infect (epidemiologists call this the reproduction number), and how and when people without symptoms can spread the disease, the use of quarantine and isolation of people created urgent civil liberty issues for courts. Generally, for example, quarantine and isolation must be carried out in the least restrictive setting and manner necessary to maintain public health.
Isolation and quarantine are used to protect the public by preventing exposure to infected persons or to persons who may be infected but show no symptoms. Isolation separates people known or suspected to be infected from those who are healthy. Quarantine is used to separate and restrict the movement of well persons who may have been exposed to the virus to see if they become ill within a specified time from their suspected exposure.
How is the need for quarantine or isolation established? By whom? How are people screened? On what basis and criteria? On what legal authority can people who are asymptomatic be confined against their will? (There is legal precedent for the confinement of people who are a threat to themselves and others but who have not committed a crime, but there are clearly articulated restrictions.) How long? Where? What are the entitlements and rights of those isolated or quarantined? What are the penalties for non-compliance with orders of isolation or quarantine? How many court orders may need to be issued to compel those who try to evade quarantine or isolation? How can we answer these questions when we have sparse and imperfect data on the outbreak and advance of the virus?
In the United States, state and local governments are primarily responsible for controlling the spread of deadly diseases within state borders; state laws authorize isolation and quarantine of people infected or exposed to the virus (see the National Conference of State Legislatures). The federal government, through the Centers for Disease Control and Prevention (CDC), has the authority to exercise quarantine and isolation powers for specific diseases across national borders and state borders if the state governments are unable or unwilling to respond effectively (see the Centers for Disease Control and Prevention).
In a paper published in the Court Manager in December, my colleagues and I made urgent pleas for courts’ proactive participation in a whole-of-society approach (WOSA) to unprecedented threats we face to our safety, security, and welfare. Courts must get ready for a riskier world today. We and, therefore, they face threats to our safety, security, and welfare not only from dangerous diseases like the coronavirus, but also terrorist attacks, biological and chemical attacks, and cyberattacks. Such threats warrant the immediate attention of courts and their justice partners, not just to mitigate the risks to the continuity of their own operations but to protect society as a whole.
In our December 2019 paper, which was mostly focused on other threats, we warned that courts have not prepared for a potential pandemic like the coronavirus:
Quarantine laws and statutes in many states have not been
updated or tested since the influenza outbreak of 1918, which killed more than
675,000 Americans, and for that and other reasons the courts are not prepared
to address a potential pandemic. On October 30, 2014, Chief Judge of the Maine
District Courts, Charles LaVerdiere, received a call that the state had filed a
petition to quarantine a nurse returning from Ebola-stricken West Africa who
had planned to attend a large social function that evening. He needed to decide
quickly whether to allow the nurse’s quarantine. He determined that Maine had
not met its burden of proof and denied the quarantine although it did require
cooperation with monitoring and placed limits on her travel. A lot of “what
ifs” went unanswered, underlining the need for pandemic planning efforts. “I
was forced to make a life-or-death decision immediately. No decision was, in
fact, a decision with potentially deadly consequences,” LaVerdiere said.
As a follow-up to our paper, we are developing a project combining information gathering, training and education of judges and court administrators, and dissemination of curated resources and tools to address the threats we face today as part of a whole-of-society approach. Our thinking about the project at beginning of this year was focused on cybersecurity of courts, but this was before the coronavirus began to appear daily in the headline news around the world, and people wearing face masks became commonplace. Maybe we need to refocus.
As I was ready to post this blog, I picked up the latest issue of the Economist with the ominous picture on its cover of the earth wearing a facemask covering China and surrounding regions (see accompanying picture). Will the virus become a global pandemic? How deadly will it be? How many cases are unrecorded? We may not know the answers for at least a few weeks but we, public health authorities, and the courts must plan and be prepared today.
Copyright CourtMetrics 2020. All rights reserved.