Covid-19 is spreading in prisons and jails throughout the United States and South Carolina is not immune to this trend.
People in prisons and jails are at heightened risk of contracting and dying from COVID-19. They are housed in close quarters, and are often in poor health and physically unable to follow the social distancing guidelines.
South Carolina should be doing everything in its power to reduce the number of people currently incarcerated, and thankfully some counties are doing this.
Yet, while some judges, solicitors, and law enforcement leaders in South Carolina have recognized the need to reduce the number of incarcerated people in their jurisdictions, Governor McMaster has issued a number of executive orders that could upend this progress.
Many of the Executive Orders issued in response to the COVID-19 outbreak include provisions that expand police powers. These expanded powers lack clear definition and have raised serious concerns from vulnerable community members.
While individual rights may give way to the greater good during a disease outbreak, the use of any measure that deprives individuals of their liberty must be scientifically supported and proportional. Some provisions of Governor McMaster’s Executive Orders fail to meet this basic test.
Many of these provisions ask law enforcement officers to enforce criminal laws without clear guidance and/or proper training. For example:
- Executive Order 2020-13 provides individual law enforcement officers with discretion to disperse and criminally charge groups of three or more people. But, this does not apply to all groups of three or more people, just groups the individual officer, who is not required to be a trained public health professional, determines to be “a threat to public health.”
- The press release accompanying Executive Order 2020-13 says the order “does not apply to private businesses nor to responsible South Carolinians continuing to make the best out of this situation.” The term “responsible” is not a defined legal term.
- Executive Order 2020-11 “direct[s] any and all law enforcement officers of the state, or any political subdivision thereof, to do whatever may be deemed necessary to maintain peace and good order during the state of emergency, … .”
- Executive Orders 2020-13, 2020-14, and 2020-15 all provide law enforcement with the power to arrest and criminally charge any person who “‘refuse[s] to disperse upon order of a law enforcement officer,’ ‘wilfully fail[s] or refuse[s]to comply with any lawful order or direction of any law enforcement officer,’ or otherwise violates any provision of any Order issued by the undersigned in connection with the State of Emergency.”
Trust between law enforcement and the community is a key component to advancing public safety. As the Vera Institute of Justice noted, in “communities where distrust in police is high, people are less likely to report a crime or offer witness testimony, which impedes effective policing.”
We have heard from community members who are deeply concerned about how the recent expansion of police powers may be enforced. As we face the COVID-19 crisis together in South Carolina, it is essential that law enforcement refrain from any actions that could undermine community trust in law enforcement and increase tensions that already exist because of this pandemic.
In addition to strengthening trust between community members and law enforcement, limiting the use of the criminal sanctions provisions would better align the COVID-19 response with public health experts’ recommendations, specifically, the need to reduce the public health risks of unnecessary incarceration. Because of the grave risks of COVID-19 exposure for people in custodial settings, the use of custodial arrest to enforce these restrictions is not an appropriate public health measure and should almost never be the outcome of these enforcement efforts. Such arrests should be prohibited unless necessary to prevent imminent and serious bodily harm to another person and all non-incarceration alternatives have been exhausted.
We sent a letter to every police chief and sheriff in South Carolina asking them to publicly commit to:
- Refraining from any actions that could undermine community trust in law enforcement and increase tensions that already exist because of COVID-19;
- Prohibiting the use of arrests as a method of enforcing Governor McMaster’s orders unless necessary to prevent imminent and serious bodily harm to another person and all non-incarceration alternatives have been exhausted; and
- Guaranteeing that all enforcement will be carried out in a way that is non-discriminatory and fair.
We cannot achieve this goal alone, so we created an organizing toolkit you can use to take action in your community. This social distancing-friendly resource can serve as a guide for securing pledges from your sheriff and police chief. Safeguarding against the abuse of expanded police powers during COVID-19 requires teamwork, and we look forward to partnering with you to protect the safety and health of our communities.