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The federal government has not done a good job helping states battle the coronavirus, providing only a fraction of the medical supplies some states requested and sometimes even seizing supplies states and hospitals have purchased for themselves. But there is one way the federal government is offering to help: by suggesting new crimes to prosecute. The Department of Justice issued a memo to federal law enforcement on March 24 suggesting a list of coronavirus-related crimes they should prosecute. Many of the criminal activities listed in the memo are precisely the types of crimes that federal law enforcement should target—crimes like internet-based frauds, illegal price fixing, and Medicare fraud and abuse. Those sorts of crimes can be difficult for states to enforce because they cross state borders. It is also appropriate for the federal government to protect its own programs, like Medicare, and to target illegal schemes that affect the national economy. But the memo also included crimes that do not require any federal involvement. Most notably, it encouraged prosecution of threats to intentionally infect other people with the coronavirus. The memo claimed that the virus qualifies as a “biological agent” under federal law, so these threats could be prosecuted under a number of different federal criminal laws that carry sentences of up to five years in prison.
Does the coronavirus truly fall within the federal definition of a “biological agent?” It does, but only because the federal definition is unbelievably broad. Federal law defines a biological agent to include any virus or bacteria that is capable of causing “death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism.” The coronavirus is obviously capable of causing death or disease in humans. But so is the flu, the chickenpox, and even the common cold. This law labels any disease, no matter how minor, a “biological agent.” Intentionally transferring that disease to another person—say, by purposefully coughing or spitting on them—carries a maximum sentence of life in prison.
This expansive biological agent definition is hardly unique. Congress has passed many criminal laws that are incredibly broad in scope. For example, federal law defines the term “chemical weapon” so broadly that one federal court observed that the law “turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” And federal officials have used that broad definition to charge minor offenses as very serious crimes.
For instance, in 2007, federal prosecutors brought chemical weapons charges against a Pennsylvania woman, Carol Anne Bond, who had put a minorly caustic chemical on the doorknob and mailbox of her husband’s lover. The chemical, potassium dichromate—which Bond purchased on Amazon—caused a minor chemical burn on the lover’s thumb, which the lover treated by rinsing the thumb with water. Federal prosecutors charged Bond with violating the Chemical Weapons Convention Implementation Act, a crime that is so serious that it does not limit the prison sentence that a judge can impose after conviction. Bond obviously had no business putting anything on anyone’s doorknob or mailbox, but her actions could have easily been prosecuted by Pennsylvania officials under a more appropriate state statute.
The Supreme Court has pushed back on these broad criminal laws, stating that they are inconsistent with the Constitution’s division of authority between the federal governments and state governments. While Congress can criminalize activities that harm the federal government, implicate foreign relations, and affect interstate commerce, whether to criminalize purely local activity is a power reserved to the states by the 10th Amendment. That is why, in 2014, the Supreme Court reversed Bond’s conviction. Even though Congress defined “chemical weapons” very broadly, the court refused to interpret the statute to include Bond’s purely local criminal conduct. As Chief Justice John Roberts explained, “Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility.”
The Supreme Court is likely to be just as hostile if federal officials decide to use harsh federal laws criminalizing the use of biological weapons to prosecute a person who coughs or spits on someone else. It is true that the plain language of the biological agent law includes the coronavirus and various other illnesses. But interpreting the law so broadly would upset the “usual constitutional balance of federal and state powers.” Before the court will consider upsetting that balance, it requires a “clear statement” from Congress that it intended for a federal criminal law to reach purely local activities. The court didn’t find such a statement in the chemical weapons law, and it is highly unlikely to find one in the biological agent law.
States have their own criminal laws that they can use to prosecute people who try to infect others with the coronavirus. Indeed, there are several reports of states using their own criminal laws to prosecute people who have threatened to infect others by coughing on them—despite the fact that criminal law is not the best way to deal with a public health crisis.
The states need the federal government’s help right now to secure ventilators and protective equipment for medical personnel. The states don’t need any help putting people in prison for crimes that are purely local—they are already quite proficient at that task. The federal government should concentrate on helping states weather the medical and economic effects of the coronavirus rather than using the pandemic as an excuse to sweep local crimes into the federal courts.