Bland on Decriminalizing Disease

Sean E. Bland (Santa Clara University School of Law) has posted Decriminalizing Disease: A Health Justice Approach to Infectious Diseases and Criminal Law (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:

For more than a century, the United States has used criminal law to respond to infectious diseases. From the start, this response was not grounded in evidence. Not only is criminalization ineffective at preventing transmission, it often is counter-productive to public health interventions and is selectively enforced against marginalized groups. The story of the criminalization of HIV provides a powerful indictment of this response. This criminalization emerged in a climate of fear and moral panic and in the absence of effective treatment, and yet it continues today. Without a full reckoning with the harms caused by the criminalization of public health problems, we risk perpetuating them.

This article argues that infectious diseases are primarily a public health issue and should be decriminalized. It uses HIV as an extended case study to show how infectious disease prosecutions exemplify and amplify social hierarchies and undermine public health. The article makes three novel contributions. First, it elaborates a health justice approach to critique the criminalization of infectious diseases. As articulated by Professor Lindsay Wiley, Professor Emily Benfer, and others, health justice is a framework for understanding how to better remedy health inequities through recognizing the way they manifest in systems of subordination. Health justice focuses on addressing root causes of health inequities, prioritizes basic rights and needs, centers community engagement, and emphasizes evidenced-based public health strategies. Second, the article offers a critical assessment of recent efforts to repeal or reform HIV criminalization and notes their limitations. Third, it adds to the scholarship about infectious disease criminalization by examining diseases other than HIV, namely hepatitis and COVID-19. The article ends with a pragmatic analysis of two strategies that center health justice and aim to marginalize the use of criminal law.