By Zain Lakhani, Alice Miller, Kayla Thomas, with Anna Wherry
When it comes to public health intervention in a contagion, policing remains a primary enforcement tool. And where a health state is intertwined with carceral logics, enforcement becomes coercive; emphasis is placed on the control of movement and behavior, rather than on support and care.
Our experience in New Haven during the first few months of the COVID-19 pandemic well illuminates this, while also revealing a logic of exceptional force lying dormant in municipal health practices.
Attending to the local is all the more important, albeit difficult, for fast moving and intensely quotidian practices, as COVID in the U.S. seems to be settling in as a pandemic of the local.
Our experience as activist-scholars working with a New Haven-based sex worker-led harm-reduction service and advocacy group, SWAN, suggests that by focusing on municipal practices, we can better understand what public health police power actually is. By orienting our scholarship toward the way social movements engage with local politics, we can then address how these police powers complicate the ability of those most at risk of both disease exposure and police abuse to engage with local authorities. Absent this engagement and critique, progressive policies for constructive state public health powers may be more vulnerable to attack from the right.
On March 10th, 2020, Connecticut Governor Ned Lamont declared a State of Emergency in response to the COVID-19 pandemic, still in force. Subsequent orders authorized state officials to depopulate shelters and provide housing alternatives, responding to concerns that shelters would become hot spots for COVID-19 transmission. Many of us in the public health community concurred, given that many shelter residents have conditions that place them at greater risk of severe illness.
However, the city’s subsequent steps in securing safe social distancing sites and isolation facilities for its marginalized residents took a questionable and carceral turn.
First, it established hotel-based social distancing facilities that were heavily inflected with surveillance and reports of abuse. The hotel facilities also restricted access for drug users or persons requiring access to medication assisted therapy (MAT) — a treatment for opioid drug use that combines medication (i.e., methadone, buprenorphine, or naltrexone) with counseling and behavioral therapy. This decision, in effect, required residents with drug use treatment needs to either seek shelter elsewhere or chose shelter over medical treatment.
Second, rather than isolate COVID-positive patients from across New Haven together, the city established a separate, standalone facility for members of the homeless population, oftentimes referred to as “Career Isolation Shelter”. Plans for the “Career Isolation Shelter” were rolled out and dismantled over the course of the pandemic’s response. The process of the life and death of the CIS shows how social movements engaged with local municipalities to demand answers and seek a different response, while also revealing glimpses of un-remediated police powers lying latent in the law.
From its inception, plans for Career Isolation Shelter were opaque, fluid, and contested. The city never clarified how it would set up testing to identify COVID positive unhoused persons, or whether individuals would be housed at Career Isolation Shelter by order, or by choice. (Connecticut’s public health emergency powers require that a court issue individual enforcement order pursuant to a mandatory isolation order before police can arrest or detain persons for public health violations. Public health isolation must also be by the least restrictive means necessary.)
Protocols for medical management at the facility were also not publicly released, including protocols for clearance to leave. Given the affected population, it was particularly disturbing that the city was unclear about its systems for case management and continuity of non-COVID care, including medication-assisted therapy (MAT) for people with substance use disorders. At one point, it was unclear if persons with a methadone prescription would even be admitted to Career Isolation Shelter. SWAN and its allies continually pressed (through Zoom meetings and letters) for clarity.
The city’s management of Career Isolation Shelter also revealed the role that stigma against drug users and street populations plays in shaping the policies that govern their treatment. At various moments, the city stated — in response to neighborhood concerns — that the Shelter would have police monitoring exits, with video surveillance. The surveillance was justified as a necessary to ensure that patients testing positive for COVID residing (or held) at the isolation center would not leave and infect neighboring residents. These rules differed substantially from the “voluntary isolation” facilities set up by Yale University for its COVID positive community members — there was no suggestion of police guards nor video surveillance.
Career Isolation Shelter dissolved within weeks with little fanfare, and the city moved to both tolerating encampments, organized by the affected communities themselves, and providing more options in hotels and outdoor facilities for the unhoused.
The early days of disorganization in March 2020 seem to have receded in most of our memories or have been blocked out as an aberrant moment in the longer course of COVID’s progression. Yet remembering and questioning early responses to this pandemic is essential to a meaningful revisioning of public health police powers. Whenever a new pandemic disease erupts, there will be barriers to organizing an initial coherent response due to the uncertainty about the disease itself, including who is at what kind of risk and who can and should act.
Since we cannot perfectly predict or even prepare for the kind of chaos that results from early days of imperfect knowledge during a pandemic, we need better underlying frameworks for how the state acts in such moments of uncertainty, and how legal advocates and scholars can contribute to knowledge of local actors, like SWAN, whose knowledge is immediate and informed by historical experience. We contend that, overall, scholars have paid insufficient attention to the actual practices that constitute the enforcement powers of public health policy on the ground, particularly as pertaining to potentially coercive practices done under cover or in service of permitted practices of isolation and quarantine, despite egregious historical examples of abusive policies, and some excellent scholarship on them. (Social justice advocates have, of course, also addressed these concerns.)
It is necessary to pay more attention to the local because there will be more “novel diseases,” where scientific uncertainty maps onto stigma, and policing will track inequality. It is imperative to review the connection of these eruptions to underlying structures of authority at the municipal level. In flagging the misuse of state power in the name of public health, it is not our intention to align with right-wing efforts to challenge state mandates — we support well-coordinated action that enables all to move safely through a pandemic.
Yet, the fact that state- and municipal-level public health laws, which enable police action, remain unreformed, often vaguely worded, and written for 19th century understandings of disease, coupled with remarkably thin documentation of local action, compels deeper inquiry of the local power, both conceptually (moving beyond the individual civil liberties-style review of state action) and practically, lest we inadvertently leave a wide range of state powers vulnerable to cynical attacks from the right (against mask mandates, for example).
Foregrounding the local also calls attention to the inextricable connections of state action, health, and on-the-ground work for justice: the groups we collaborated with were simultaneously raising concerns about police harassment and the carceral nature of Career Isolation Shelter, while meeting with city officials to support dignified and equitable access to showers, bathrooms, and health services.
This is to say that the local should be held more accountable. We suspect most “locals” have a similar story, but municipal myopia and a kind of socio-political health amnesia means we often fail to see aggregate effects from local actions, and we miss our potential for shifting local power toward a dignity-centered health justice and an effective, fair, and non-carceral state in a contagion.
Zain Lakhani holds a PhD in U.S. History from the University of Pennsylvania. She is currently a 3L at Yale Law School.
Alice Miller is an Associate Professor (Adjunct) of Law at Yale Law School and the Co-Director of the Global Health Justice Partnership.
Kayla Thomas is a Sociology PhD student at Yale University.
Anna Wherry is a third-year J.D. candidate at Yale Law School and PhD student in anthropology at Johns Hopkins University.