Don't criminalize COVID-19 rule breakers

by Keli'i Akina, Ph.D., President / CEO Grassroot Institute, June 4, 2021

When you turn ordinary behavior into criminal behavior overnight, you need to be prepared for some unjust results. 

That’s exactly what happened after the governor and Hawaii’s four mayors imposed their COVID-19 emergency orders: People who had never been arrested or convicted of crimes in their entire lives suddenly were being handed criminal citations by police enforcing arbitrary and ever-changing coronavirus lockdown rules.

Over the past 15 months, since the lockdowns were first imposed, we have highlighted the absurdities of the often-confusing lockdown restrictions; for example, the fact that you could walk on the beach but not stand on it, or walk next to the park but not in it. On the one hand, these strange and ever-shifting rules were ridiculed and laughable. On the other hand, tens of thousands of Hawaii residents were being given criminal citations that could result in jail, fines and criminal records. 

State public defender weighs in

On the most recent episode of my “Hawaii Together” program on ThinkTech Hawaii, I spoke with Hawaii Public Defender James Tabe about the mess created by the COVID-19 citations. As bad as you might have imagined the situation to be, the truth is even worse.

Tabe explained that the sheer number of violations issued during the lockdown was overwhelming. At one point toward the end of the summer in 2020, there had been 60,000 citations issued on Oahu for violating the emergency order. The year before, Oahu had only seen 20,000 criminal cases in total. Tabe said it didn’t take long for the situation to spiral out of control.

“Police agencies were not giving warnings. They were just issuing what we call citations for all sorts of things. Everyone thinks it's just masks or not wearing masks in public places or indoor places. But back then, it was you couldn't go to the beach, couldn't go to the park. [Then it’s OK] to go to the park, it's OK to go into the water. There's a lot of confusion on just that alone, so people we're getting cited left and right on that.”

At one point, even those who worked in government were confused about which actions were allowed and which were forbidden, and therefore criminal. It was so difficult to understand the rules that even the U.S. Surgeon General received a citation while enjoying the view and taking photos in Kualoa Park.

Sadly, when the legality of an action depends on whether you’re moving or standing still, or how “essential” is the errand you’re running, objectivity and fairness go out the window. Tabe has plenty of stories of residents getting cited for innocuous behavior, especially during the height of the pandemic, when police pursued a zero-tolerance policy for violations. 

For example, there’s the story of the family taking graduation photos on the beach. They were told they couldn’t be there by an officer who cited each of them — even the 18-year-old high school graduate. 

Or the family of four who wanted to get out of the house during the lockdown and went for a drive. They drove up to Round Top and didn’t even get out of the car, but still received citations. 

There are stories of people getting citations for getting off the bus after work or walking home after getting a coffee. 

And there are stories of homeless individuals getting cited multiple times a day, despite the fact that the governor’s orders specifically exempted them.

'Citation' or criminal misdemeanor?

As Tabe pointed out, even the term “citation” is misleading here because COVID-19 violations are misdemeanors, punishable by up to one year in jail. While no one has received that sentence yet for a COVID-19 violation, it’s important to remember that every person given a COVID-19 citation is dealing with a potential criminal record.

“When you're being charged with a misdemeanor offense like the emergency order violation ... if you're found guilty, it's a crime,” Tabe said. “It'll go on your permanent criminal record. This is a big deal, because if you ever fill out a job application or scholarships or just [the] question: ‘Have you ever been convicted of a crime?’ This is something where you have to check ‘yes’ on.’” 

A criminal record also has professional implications, Tabe added, that can affect your professional license or your job. 

While those who received citations could choose to fight the charges, that only contributed to the backlog of cases in our courts. What’s more, not everyone has the resources, time or knowledge required to deal with the misdemeanor charge. In short, the situation requires a change.

Wide agreement on what to do

Tabe said it quickly became obvious that the government needed to do something. The result was SB540, a bill from the 2021 legislative session that would remove the automatic misdemeanor for violations of emergency orders and allow for such an offense to be treated as a noncriminal infraction. Instead of facing criminal charges, violators would get a ticket and a fine, like a parking ticket.

"The judiciary, the attorney general, prosecuting agencies, our office, police departments, we all agreed upon this,” Tabe said. “The attorney general drafted bill SB540, which made it so that this type of offense can be treated as an infraction, a noncriminal matter.”

Under SB540, those who receive a ticket still would have the opportunity to contest it, but the risk of having a criminal conviction on your record would be removed. Now awaiting action by the governor, the bill was supported by virtually all of Hawaii’s judicial and law enforcement agencies and by the Legislature. Now I hope the governor will support it, too.

The past year has been very instructive when it comes to the power of government and the exercise of civil liberties. Above all, we’ve learned why it is important to reform our emergency management law. At the moment, we are lacking balance and accountability in the way our state deals with emergencies. A system that makes criminals out of families taking a drive or visiting a beach for a graduation photo shoot is a system greatly in need of common sense reform.

E hana kākou! (Let's work together!)