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KIEJ Special Issue on Ethics, Pandemics, and COVID-19

The Kennedy Institute of Ethics Journal is extremely proud to present this special volume on ethical and social issues arising from the COVID-19 pandemic, featuring work that is practically relevant and engaged as well as conceptually rigorous.

From the issue co-editors:

It is with great pleasure and a sense of urgency that we present this KIEJ double issue on ethical issues raised by the COVID-19 pandemic. The sheer range of ethical concerns raised by the pandemic, combined with the speed with which these problems emerged, is staggering and unprecedented in our generation. We have tried to give space to papers that raise immediately pressing ethical issues that have not received much discussion in popular media. Topics range from fundamental questions about how we set up our public health infrastructure, to ethical issues in scientific communication and the translation of science into policy, to the impact of the pandemic on people with intellectual disabilities, to the ethics of lockdowns, to the case for decarceration during the pandemic, and more. Our authors represent five countries and a wide range of perspectives and disciplinary approaches. We hope readers will find these papers intellectually invigorating and practically illuminating. We wish all our readers safety and good health during these strikingly difficult times.

Quill R Kukla and Travis N. Rieder, Issue Co-Editors

The special double issue includes eleven articles. They will appear in print in the September issue of the KIEJ, and the double September issue will take the place of a fourth KIEJ issue that would have been published in December. We have provided advance copies of all articles here.

TABLE OF CONTENTS

Book Reviews

Imani Perry, Vexy Thing: On Gender and Liberation, Duke University Press, 2018.

Revolution begins with the self, in the self…It may be lonely. Certainly painful. It’ll take time. We’ve got time. That of course is an unpopular utterance these days. Instant coffee is the hallmark of current rhetoric. But we do have time. We’d better take time to fashion revolutionary selves, revolutionary lives, revolutionary relationships. Mouth don’t win the war. It don’t even win the people. Neither does haste, urgency, and stretch-out-now insistence. Not all speed is movement. – Toni Cade Bambara, The Black Woman (1970)

Writing in the midst of the disparate impact of the COVID-19 pandemic and the militarized white supremacist violence leveraged against protestors rebelling in defense and affirmation of Black life, I struggle to find a place to begin this review. And when I struggle with pulling together many interwoven threads and need guidance, I always turn to Black feminists of past and present. I do this is in part because Black feminism is my grounding praxis, but also because Black feminists are incredibly generous and timeless in offering gifts of mappings, frameworks, schematics, and analyses to navigate and understand complex, interwoven events and systems. Black feminist offerings include Audre Lorde’s (1984) ‘chaos of knowledge,’ Kimberle Crenshaw’s (1991) ‘intersectionality,’ Monique Morris’ (2016) “pushout,” Patricia Hill Collins’ (2009) “matrixes of domination,” bell hooks’ (2000) “oppositional worldview,” and Beth Richie’s (2012) “male violence matrix” to name just a few. In “On the Issue of Roles,” Toni Cade Bambara interrogates patriarchal notions of “the Black Woman’s Role in the Revolution” (p. 123)[1]. She offers a nuanced, historical mapping of the constructed binary of “masculine” and “feminine” roles as rooted in misogynistic and capitalistic traditions of domination. And as the above excerpt highlights, Bambara offers guidance for a way forward by beginning with one’s self and one’s relationships. In this Black feminist spirit, I am struck by the many offerings enclosed in Imani Perry’s Vexy Thing: On Gender and Liberation (2018).

            Perry continues in the Black feminist tradition by offering ‘liberation feminist praxis’ as guidance on how to take time to critically read the machinations of patriarchy interwoven in conceptions of personhood, property, empire, modernity, neoliberalism, digital media and technology, and the security state. She offers liberation feminist praxis as a way of curating relationships to others, our imaginations of a liberated future, liberatory social organization, and affective witnessing practices. Vexy Thing is an invitation and demonstration of a critical feminist reading of “multiple forms of domination that grew under a structure of patriarchal authority that was globally imposed during the age of empire” (p. 6). I see Vexy Thing as an important call to take time, as Bambara says, to develop an analysis of patriarchy that makes clear the insidious character of gender domination and exploitation as complex and layered. As Perry describes, the book is “a theoretical argument advocating the primacy of praxis rather than [taking a pro or con] position” (p. 9).

            The book is divided into three sections with two interludes. The first chapter, “Seafaring, Sovereignty, and the Self: Of Patriarchy and the Conditions of Modernity,” and the second chapter, “Producing Personhood: The Rise of Capitalism and the Western Subject,” make up the first section. In this first section, Perry homes in on patriarchy as an undergirding logic of modernity, globalization, and neoliberalism by analyzing the relationships between the legal formations of personhood, sovereignty, and property. She begins with a significant engagement with John Locke in chapter one, writing: “So I begin with the proposition that the economic liberalism of which Locke was a foundational thinker — and, specifically, the doctrine of personhood — entails a system whereby the subject before the state or the law was made into either patriarch, his liege (woman), or someone outside legal recognition, whether slaves or what in that time were termed “savages” but whom we can also term “nonpersons” in the judicial sense” (p. 21). Drawing on Hortense Spillers, Perry highlights the integral role of gender domination in philosophical and political formations of legal recognition in the works of thinkers like Adam Smith and Thomas Hobbes and in policy like the Relief of the Poor Act of 1782 and the Poor Law Amendment of 1834 (p. 40). The second chapter continues this line of inquiry into the nineteenth century to explore the structure of patriarchy and personhood during the rise of industrial capitalism and colonialism. This chapter interrogates the “modern, postfeudal global patriarchal order” through analysis of Mary Wollstonecraft Shelley’s Frankenstein (1869), the “Father of Gynecology,” Dred Scott v. Sandford (1857), and French colonial policy through Oscar Wilde’s “fantasy of domination” (p. 79).

            “How Did We Get Here? Nobody’s Supposed to Be Here” serves as a bridge between section one and two. This first interlude reckons with the impact and interconnectedness of post-World War II gender discourses and geopolitics. Perry begins with an analysis of the success of the film Norma Rae (1979) as in tension with the film’s real-life inspiration, Crystal Lee Sutton, who lived an economically vulnerable life. This helpfully sets the stage for her call to feminists to critically assess how the “language of liberalism…and the liberal democratic project” limits feminist articulations of gender domination and struggle (p. 93). Perry pointedly highlights the liberal politics of inclusion as a call “for an expansion of who can be patriarchs and ladies,” which foreshadows chapter three. The second section of the book, “In the Ether: Neoliberalism and Entrepreneurial Woman”, starts with an exploration of the rise of the “entrepreneurial woman” as a neoliberal, postfeminist companion to the “entrepreneurial man.” This chapter draws heavily on Wendy Brown’s (2009; 2003; 2015) analysis of neoliberalism to suggest that the modern structure of patriarchy has expanded who can compete as a patriarch or lady to the patriarch in the neoliberal marketplace. She offers musings on the “marketization of identity” (p. 108), representation politics in “a bureaucratized feminist (and civil rights) movement” (p. 111), and “conventional hetero-patriarchal concepts of desire” (p. 113).

            Next, in “Simulacra Child: Hypermedia and the Mediated Subject,” Perry utilizes Jean Baudrillard’s (1994) reading of spectacles and simulacra to understand self-representation, human connection, profitable personal data, the rise in sexually explicit material on the Internet, and truncated (and often decontextualized) history. In chapter four, Perry suggests that:

            Consumption and performance in the simulacra are primary modes of engagement with, and contestation of, gender and racial representation, particularly as democracy succumbs to neoliberal priorities. It is a stage for popular dissent, and yet it is also dependent on corporations and disciplined by oligarchic control of market flows, as is evident during moments in which corporations choose to silence certain forms of critique (e.g., Twitter suspension in the midst of the 2016 campaign of the @GuerrillaDems account that created the #WhichHillary hashtag to criticize Clinton’s waffling on liberal and progressive issues) (p. 131-132).

            This chapter highlights the importance of a critical feminist reading of the many layers of domination imbued in the digital arena. The chapter includes a robust discussion of explicit versus pornographic images on the Internet, reality television as performative spectacle, and Kara Walker’s installation The Marvelous Sugar Baby (2014). And the fifth chapter, “Sticks Broken at the River: The Security State and the Violence of Manhood,” closes the second section of Vexy Thing. In this chapter, Perry reads patriarchy through the life of Jeffrey Fort and the United States’ National Security Act (1947). She contends that the logic of the security state hinges on patriarchy to define and exert sovereign authority as a relationship of control and deprivation. This is evidenced by the continued rise in domestic, border, and global U.S. militarization and expansion of the reach of carcerality (including prisons and detention centers with school service providers who do ancillary police work). Additionally, Perry considers the appeal and harm of men, whom she calls “patriarchy seekers,” who are denied the recognition of legal personhood and aspire to have the power and dominance of patriarchs. This is done, in part, to say that aspirational patriarchy supports the continuation of patriarchy, even if the distribution of harm differs from more powerful patriarchs, like the state and state officials.

            The second interlude, “Returning to the Witches,” introduces the final section of the book – and my favorite section. Perry uses Alice Walker’s “In Search of Our Mothers’ Gardens” to frame the turn in the book from “reading through layers” to, what Walker names, ‘witch-artist’ traditions of rearranging and witnessing in the throes of injustice. Asking readers to go beyond calls to elevate women to the position of patriarchs or other integrationist feminist calls, Perry explains:

In this book, [witch-artists] carry us across the bridge from the first two sections, which offer descriptive readings of conditions and structures that create, sustain, and extend patriarchy, to the final section, which moves through an imaginative landscape in which we might ignite the capacity to make our way out from under the force of patriarchy on our minds and wills (p. 172).

            The final section of the book begins with chapter six, “Unmaking the Territory and Remapping the Landscape.” This chapter positions mapping as both “a tool of the sovereign authority, and its agents, in the form of men-cum-patriarchs” and a way of feminist witnessing from the margins (p. 179). Perry explores the former through Martin Waldseemuller’s world map of 1507 and analysis of what she calls “neocolonial cartographies of human value” (p. 180). And she highlights the latter through examinations of mappings of Black women and disability in novelist and elder, Toni Morrison’s Song of Solomon (1977) and works by painters, like Wangechi Mutu and Julie Mehretu.

            The final two chapters of the book are “The Utterance of My Name: Invitation and Disorder of Desire,” chapter seven, and “The Vicar of Liberation,” chapter eight. In chapter seven, Perry draws on Stanley Cavell’s (2006) conceptualization of the passionate utterance and Audre Lorde’s (1984) conceptualization of the erotic to affirm the importance of affect for liberation feminism. She clarifies her work in chapter seven in the following:

            More explicitly, I am concerned not simply with the things we “love” or relations we desire, but explicitly with the act of gesturing toward the possible that does not fit into logics of liberalism vis-a-vis a personhood status that comes with forms of ready-made social and legal recognition. I am interested in how considering passionate utterances might lead us toward the development of a practice of resourcefulness and creative praxis vis-a-vis being (collectively) that lies in contradistinction to the terms of market logic and both the neoliberal and liberal subject (p. 207).

            Hence, Perry is seeking to call readers to break with exclusionary logics of liberalism to imagine creative, liberation practices. This is further explained in the eighth chapter, where Perry looks to the practice of curation to suggest that liberation feminist praxis requires deliberate curational practices to be in relation to others and one’s self. She examines curation in conversation with Toni Morrison, Alabama’s Gee Bend Quiltmakers, Toyin Ojih Odutola, El Anatsui, and Wendy Chun. Throughout the final chapter, Perry is proposing liberation feminism as a “living curational project” to cultivate listening politics and analytics (p. 245).

            As feminists and others continue to grapple with analyzing and building toward liberatory futures during the vexing times of 2020, Vexy Thing is a helpful interdisciplinary offering to read for the ways the moves of patriarchy show up in legal and political formations of personhood, the neoliberal marketplace, the digital world, and in one’s practices and relationships. Vexy Thing is filled with numerous, interesting threads ripe for conversation for any reader. For instance, I am interested in thinking through the conceptual links drawn in Perry’s analysis of the entrepreneurial woman, personhood, gendered labor, and neoliberal capitalism. In particular, it is challenging to parse through the varying conceptions of entrepreneurial woman as a “market victor” and entrepreneurial woman as a “legal nonperson.” Using Perry’s terminology, what is the relationship between legal nonpersonhood, partial personhood, full personhood and one’s available options (or lack thereof) in the neoliberal marketplace as an entrepreneur? Are all people with differing legal recognition of personhood entrepreneurs? Perry seems to suggest this when she says, “in the United States, people who, under conditions of danger and secrecy, travel across borders to do the work of entrepreneurship into which we are all forced and fill jobs in the neoliberal economy are often perceived as competitive threats in low wage markets rather than as vulnerable” (p. 121). And how does the framework of personhood help one identify the harm and relative power of the entrepreneurial woman in the example given of the market for artificial hair and knockoff designer bags? Last, given that the neoliberal marketplace relies on gendered labor exclusion and precarity, how do we distinguish the ways that exclusion and precarity create the conditions in which people are entrepreneurial in informal economies as a means of survival, rather than as a means to approach the status of a patriarch or liege of the patriarch? These are all simply fascinating questions to ponder, so I am grateful that Perry’s work inspires such thought-provoking questions.

            Ultimately, Perry says the book “calls for us to treat “feminism” as a verb: to feel the resonances, answer the utterances, listen closely, and experience that as a doing, as a diachronic poesis of living in politics that is ever changing, uncertain, and vexed but that also, we hope, will bring us closer to freeing us all” (p. 253). And certainly, it is crucial to take time to treat feminism as a verb to fashion revolutionary selves, revolutionary lives, and revolutionary relationships that indeed bring us all closer to freedom.  

Ayanna De’Vante Spencer

Michigan State University

East Lansing, MI

References

Bambara, T. C. (1970). The Black woman: An anthology. New York: Penguin.

Collins. P. H. (2009). Black feminist thought: Knowledge, consciousness, and the politics of empowerment. New York: Routledge.

Crenshaw, K. W. (1991). Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review 43 (6): 1241-1299.

hooks, b. (1984). Feminist theory from margin to center. Boston: South End Press.

Lorde, A. (1984). Sister outsider: Essays and speeches. Trumansburg: Crossing Press.

Morris, M. W. (2016). Pushout: The criminalization of Black girls in schools. New York: The New Press.

Richie, B. (2012). Arrested justice: Black women, violence, and America’s prison nation. New York: New York University Press.


[1] I came to identify and hone my politics as Black feminist politics, in large part, because of my incredible community in the Toni Cade Bambara Scholars/Writers/Activists Collective at the Spelman College Women’s Research and Resource Center. Facilitated by Dr. M. Bahati Kuumba, Black feminist students met every Friday over pizza to read, discuss, and strategize together. This is my beginning. I am forever grateful to Bahati, Christine Slaughter, Hadiya Jones, Amoni Thompson, Banah Ghaban, AriDy Nox, Tanisha Jarvis, Ain Ealey, Madyson Crawford, Teri Davis, Veronikka Gittens, and many other sister-scholars.

Special Issue, Uncategorized

Surging Solidarity: Reorienting Ethics for Pandemics

Jordan Pascoe & Mitch Stripling

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. Public discourse about ethics in the COVID-19 pandemic has tended to focus on scarcity of resources and the protection of civil liberties. We show how these preoccupations reflect an established disaster imaginary that orients the ethics of response. In this paper, we argue that pandemic ethics should instead be oriented through a relational account of persons as vulnerable vectors embedded in existing networks of care. We argue for the creation of a new disaster imaginary to shape our own understandings of the interrelated social, political, and economic hardships under conditions of social distancing. We develop a pandemic ethics framework rooted in uBuntu and care ethics that makes visible the underlying multidimensional structural inequities of the pandemic, attending to the problems of resource scarcity and inequities in mortality while insisting on a response that surges existing and emergent forms of solidarity.

1. A Public Health Disaster

When the disease struck, the new administration determined they must be effective. Efficient. Do the most good for the greatest number. They built armies of contact tracers, who knocked on doors to collect symptoms. Neighborhoods with cases were asked to self-quarantine; a few neighborhoods were cordoned off to keep the ill from infecting others. But the disease continued to spread, especially in urban areas inhabited by people of color, where generations lived together in tight quarters. To better prevent spread, the city moved these residents a few miles away to isolation camps at full government expense. This fast, forceful action drove case rates sharply down, saving many lives (Phillips 2012). The newspapers were supportive—how well prepared the city was! How fair! It saved lives not just of the wealthy, but the poor of all races, too!

The year was 1904; the disease, plague. The isolation camp was named Klipspruit, later Pimville. Still later, Soweto. The city was named Johannesburg, and, two years later, still wrestling with plague, it would force all Africans into this isolation camp. The population’s fear of sickness allowed the white power structure to take action that would never have been allowed. Not at first, perhaps, because at first there was sympathy, since most victims were the domestic workers of white families. But the racialized fear that the city would descend into chaos proved stronger than the sympathy over time. As a nearby historian remarked, the plague allowed the town council to achieve what a few had desired “for the past forty years: to force many African residents in the inner locations out of town” (Phillips 2012). Thus, apartheid in South Africa sprang from the seeds of a public health order designed to do the most good for the greatest number and keep a racialized Hobbesian state of nature at bay.

Systems that, in better times, prioritize more egalitarian ethical approaches, often turn to utilitarianism in disasters. This turn tracks our moral intuitions that in times of great scarcity and competition, sacrifices will be necessary, and because they will be necessary, they will be acceptable. These choices are well-intentioned but infected by underlying biases and an “elite panic” (Drabek 2016) that disasters will cause society to descend into a state of nature: the history of disasters teaches that these events overwhelmingly exacerbate underlying inequities and that governmental responses tend to reinforce those inequities, not improve them (Tierney 2014).

As COVID-19 threatened to overwhelm Italy’s healthcare system, fear of scarcity took hold. A clinical association issued guidelines for how to allocate increasingly scarce medical resources. They told doctors to prioritize those “with a greater likelihood of survival, and second, who have more years of life left” for ventilators (Mounk 2020), “in order to maximize the benefits for the largest number of people” (Vergano et al. 2020). Doctors involved in developing the guidelines called them “soft utilitarian” principles and justified the choice as consistent with wartime triage and medical ethics in a catastrophe (Rosenbaum 2020; Ives 2020). 

Certainly, these guidelines were lifelines to tearful clinicians faced with two dying patients and one ventilator.But these cases were rare. In an interview with the Journal of the American Medical Association, Dr. Maurizio Cecconi denied that this kind of triage was happening in northern Italy, arguing instead that the region had created many hundreds of new beds in a few short weeks that were shared by hospitals across Lombardy. In fact, hospitals in northern Italy joined together in an ICU network to share resources. They committed jointly to giving an intensive care bed and ventilator, to anyone who needed it. The Italian government sent additional resources to fulfill this promise. Doctors improvised, finding new pathways of care that both used fewer ventilators and were more effective (AMA Ed Hub 2020; Grasselli, Pesenti, and Cecconi 2020; Begley 2020).

But this wasn’t the story that captured the world’s attention: “Italians over 80 ‘left to die’” read a Telegraph headline (di Blasi 2020). In the US articles about how utilitarian guidelines should be applied in ventilator shortages proliferated (Wikler 2020). In hospitals, these resource allocation guidelines are just one element of what is known as Crisis Standards of Care planning, which is itself only entertained once a healthcare system has reached the limits of its ability to surge care (Hick et al. 2020) But in the public imagination they loomed large, as hospital guidelines justifying limited care for those over 80 became public calls to sacrifice the elderly to keep unemployment numbers down. The lieutenant governor of Texas, Dan Patrick, argued that older people like himself should volunteer to die to save the economy (Levin 2020). Meanwhile, a utilitarian emphasis on “acceptable sacrifice” seemed to lead President Trump to suggest that sacrificing human life was warranted in order to keep the economy functioning (Haberman and Sanger 2020).Our existing moral frameworks for disaster and response shaped a set of moral dilemmas that pitted us against each other. In doing so, they undermined our perception of a wider set of moral hardships emerging as the pandemic unfolded.

In this paper, we argue that we need a more diverse set of moral frameworks to guide public health and economic policy in a pandemic and to shape our own understandings of the interrelated social, political, and economic hardships under conditions of radical social distancing. As we write, the moral dilemmas of COVID-19 are still unfolding around us. We focus, therefore, on how the collective narratives that shape our experience of this disaster inform what kinds of moral problems we see. These narratives, we argue, are disaster imaginaries, which orient our identification of moral dilemmas, shape the premises and priorities of planning and response, and ground moral motivation in disasters. They may harness or hamper the perceptual shifts that disasters produce, and they may warp or enrich the moral frameworks that guide response.

We understand this global pandemic as a peculiar kind of public health disaster in which persons are characterized by their vulnerability to and their status as vectors of contagion. As vulnerable vectors, persons are embedded in multidimensional networks of caregiving that produce new dimensions of vulnerability over time. To understand this context, we need new disaster imaginaries that understand human beings as interconnected in an unfolding public health and economic crisis, where our hardships are often the result not of scarcity, but of undermining or overburdening existing networks of care.

The basic structure of the argument is as follows. In §2, we unpack our existing disaster imaginary and ethical frameworks, arguing that utilitarian-driven disaster ethics, though helpful for distinct problems of resource scarcity, ultimately conceive of emergencies in terms of competition, deploying a “second state of nature” narrative that both racializes response and fails to capture the emergent nature of a pandemic. In §3, we argue that this ethics is ultimately not grounded in the sociology of public health disasters, and we draw on recent developments in feminist bioethics to reconceptualize autonomy through our relational account of vulnerable vectors. We then develop a new disaster imaginary in §4, drawing on the ethics of uBuntu to show how attentiveness to our interconnected vulnerability can help us reconceptualize the moral dilemmas and hardships of the pandemic through solidarity. With this moral orientation in place, in §5, we examine the problems of interdependency, vulnerability, and risk that arise in a pandemic where everyone is, in effect, both a vector and a caregiver, and reframe the moral labor of response using a care ethics framework. Finally, in §6 we argue that the totality of these ideas makes possible a pandemic response that surges and sustains existing and emergent forms of solidarity which would otherwise collapse. We conclude by exploring how the moral challenges of vulnerable vectors are not unique to pandemics, but instead we argue that disaster ethics more broadly should reorient its understanding of how disasters unfold in time, producing new dimensions of vulnerability along existing axes of marginalization.

2. Disaster Ethics and Imaginaries

At Memorial Hospital in New Orleans in the days after Hurricane Katrina, doctors euthanized as many as two dozen patients in the face of an uncertain evacuation and a lack of resources (Fink 2009). Hospital staff directed an ad hoc effort to triage patients; having decided which patients had the greatest likelihood of survival, they determined that euthanizing those least likely to survive would increase the chances of the greater number—a utilitarian moral principle similar to those used by doctors to prioritize ventilator allocation in COVID-19. Frightened of what waited outside the hospital, they looked at a lobby full of very sick patients and saw a trolley problem.

But this was still New Orleans, after all. There were Coast Guard crews and radiocommunication. Evacuation was happening consistently. Why did the staff at Memorial fail to look beyond their own walls? As in the Italian example, why do so many people in disasters imagine they are trapped within a trolley problem when, by connecting or sharing, they could escape from it? To understand why, we have to unpack the ethical frameworks of utilitarianism and autonomy that structure much disaster decision making, including during pandemics, and the “state of nature” disaster imaginary that grounds them. 

At Memorial, doctors’ prioritization of care was the inverse of what happens in “normal” times, when emergency room triage takes the most severe cases first, sometimes leaving those with minor ailments waiting for hours as they work to save all those who can be saved. Is this inversion justified? In Ethics for Disaster, Naomi Zack argues that disaster ethics should remain committed to the moral principles of ordinary times. She warns against a shift from the rule-utilitarian commitment to saving all who can be saved (SALL) towards the more limited saving the greatest number (SGN), noting that this shift often rests on a faulty fixation on scarcity and stress. Instead, we have a moral duty before disasters to prepare for them in ways that will limit these hard choices.

The choices doctors faced at Memorial were the result of failures at every level of management, from within the hospital, from its management and parent companies, and from local, state, and federal officials (Fink 2009). Clearly, failures of preparedness can produce impossible moral choices (Tessman 2017, 3). Yet Memorial was not significantly less prepared than other hospitals in New Orleans. The decisions made there show that the ethical tools we have to shape our formulation of these moral choices, in moments of crisis, matter. In this case, we see the limitations of utilitarianism as a guiding framework when resource scarcity is assumed. The urgency that drove the decision to euthanize patients was first, a failure of moral imagination: an expectation that in disasters, scarcity makes moral failure inevitable. Second, it was a flawed moral framework: once failure is inevitable, utilitarian frameworks move the question to which failures are most acceptable, a question ripe for bias. 

These failures are rooted in a deeper moral narrative that shapes our understanding not just of disasters, but of human communities in rupture. Naomi Zack argues that in the popular imagination—and often, in government policy—disasters trigger a kind of “second state of nature,” a condition in which our institutions and protections dissolve or are flooded into ineffectiveness, in which we find ourselves in some kind of Hobbesian war of every person against every person (Zack 2009, 74–79). The second state of nature story operates in disaster as what Bruce Jennings and Angus Dawson have called a “shaping sensibility—a vantage point that informs other normative principles and ideals rather than supplementing or competing with them” (2015a, 32). When our disaster imaginary leads us to expect a Hobbesian state of scarcity and competition, our orientation towards our ordinary moral commitments shifts based on that perceived threat.

The state of nature disaster imaginary, with its accompanying utilitarian emphasis on scarcity, competition, and anxieties over the suspension of “ordinary” rules has informed the priorities of pandemic planning for the COVID-19 pandemic. The CDC’s Ethical Guidelines for Pandemic Planning, for example, reflect this concern with scarcity and resource allocation, in the form of ventilators and vaccines (2015). These guidelines, however, reject pure utilitarianism as morally inadequate and offer three correctives meant to prevent a pandemic response of “saving all who can be saved” from harming the few in its quest to protect the many. These correctives, briefly, are that any response must refrain from harm, provide equal opportunity to resources within defined priority groups and, crucially, respect autonomy. Much of the guidance focuses on justifying the limited circumstances under which autonomy may be restricted in the interests of public health (Kinlaw and Levine 2007, 6–7). 

This emphasis on autonomy and individual rights reflects the degree to which the state of nature disaster imaginary is also a narrative that frames response as a kind of social contract, restricting the state’s authority to infringe rights and liberties (Kessler 2020; Zack 2009, 76–77). But as we will argue, conditions of contagion undermine “normal” conceptions of individual autonomy, making it impossible to distinguish when one is choosing for oneself or unwittingly choosing for others and, thereby, creating risk for them (Francis et al. 2005, 321). In this way, Leslie Francis and Margaret Battin argue that the threat posed by infectious disease may be analogous to the threat posed by concealed weapons: both concern our rights to pose unseen threats to one another in public spaces (Francis et al. 2005, 316). In the US, where gun rights differ from state to state, our “ordinary” conceptions of the risks we are entitled to pose to one another also vary. Thus, while public acceptance of social distancing and lockdown protocols have broken down along existing political and economic divides (Cunningham 2020; Brewster 2020), they have also tracked attitudes about gun rights and our right to pose threats to one another without government restriction. And, as Charlie Warzel argued in The New York Times, our failure to respond to the epidemic of gun violence sets a troubling precedent for our willingness to accept preventable death on a mass scale rather than accept collective responsibility and restrict civil liberties accordingly (2020). 

Our disaster imaginaries, then, shape both what we identify as moral dilemmas in disaster and the moral premises and priorities of response (Solnit 2010, 90–93). As Charles Mills has argued, the state of nature narrative itself, which emerges through Europe’s colonization of the New World, races both bodies and spaces, constructing non-white bodies and non-white spaces as embodiments of the state of nature, the medium through which the threat of the state of nature looms even in civilized society (1997). The image of Black neighborhoods and Black bodies as always already potential states of nature does a great deal of symbolic work in disaster narratives, where predominantly Black areas are assumed to “inevitably” slide into chaos, while the rights of white people, and white property owners in particular, must be protected (Mills 1997, 87; Solnit 2010, 248–54). At Memorial, fear of the “crazy Black people” outside in the streets is part of what drove doctors to euthanize patients, rather than waiting for aid (Fink 2009). 

This racialized disaster imaginary has shaped the impact of the COVID-19 pandemic; in New York City, enforcement of social distancing was heavily racialized, with only 7% of those arrested being white, even as people of color are disproportionately contracting and dying of the virus (Southall 2020). Racialized law enforcement and health care inequities are not emergent effects of the pandemic: they are well-entrenched patterns of inequality and vulnerability produced by our “ordinary” moral commitments in “normal” times, weaponized by the policies and pressures produced by the pandemic. 

This racialization of disaster narratives and response reflect the ways that the pre-disaster moral order is already deeply flawed, often feeding a disaster imaginary oblivious to the assumptions of utilitarianism, autonomy, and social contract theory. Zack and others argue that greater preparation before can ease the dilemmas we find within them. Zack bases our moral duty on the framing “Save All Who Can Be Saved, With the Best Preparation.” In current Crisis Standards of Care guidance for COVID-19, this is expressed as a “Duty to Plan,” a framework which charges healthcare systems and society, generally, with an ethical obligation to think proactively before the full impact of a pandemic or other hazard is upon them. 

It is not that we think this is wrong or unhelpful. Certainly, not thinking about these issues before a crisis can lead to “wasted resources, inadvertent loss of life, loss of trust, and triage/rationing decisions being made unnecessarily” (Hick et al. 2020). However, disaster ethics cannot rely on “preparedness” to fully address these inequalities precisely because preparedness frameworks remain committed to “ordinary” moral commitments and established disaster imaginaries. In Ebola and Learning Lessons from Moral Failures: Who Cares about Ethics?, Smith and Upshur (2015) chronicle dozens of failures from the 2014 global Ebola response, critiquing the health preparedness frame as “myopic” (7) when dealing with complex issues such as health systems fragility. These problems, they argue, are deep moral failures created by lapses in global values, which can only be addressed by new systems. Similarly, Sheri Fink argues that Memorial’s staff failed, in part, because of a “lack of situational awareness” (Fink 2013, 338) driven by biased or false narratives of events. Healing perception is not an act of preparation—it requires new ways to understand the moral challenges of disaster.

3. Vulnerable Vectors: Rethinking Pandemics

Pandemic planning has largely emphasized that “ordinary” moral principles can be adapted to emergent contexts and relied on to mitigate harms. We’ve seen how this can be problematic; it also assumes that a disaster is fundamentally a rational expansion of an everyday crisis or moral choice. Larger in scale, perhaps, but fundamentally the same as a car accident, say, or a fire (Zack 2009, 4–7). Disaster literature, however, teaches us that at the scale of a public health disaster (such as a pandemic), these events are much different, in three relevant ways: They alter perception, require imagination, and enhance community.

First, disasters alter perception. Saundra Schnieder (2014) argues that disasters break old societal norms and immediately create new ones to help adaptation. Second, catastrophic response requires imagination, as E. L. Quarantelli, the father of disaster sociology, makes clear (2005). Paradoxically, if a situation doesn’t break day-to-day systems and procedures, it is not a disaster, meaning that any disaster response will have to be partially improvised. Full preparedness is therefore not only ethically problematic but not possible. Since we can’t properly perceive disasters beforehand and must respond to them with imagination, the appropriate decisions can’t be made beforehand. The key question is the following: what moral grounding can we provide to that imagination to keep us away from problems of scarcity?

A partial answer lies in the third feature of disasters: They enhance community—unless people are redirected toward apathy by the response itself. Rebecca Solnit argues:

In the aftermath of 9/11, people had not a good time, but a deep, profound, rousing time, woke up from their ennui and isolation and trivialization to feel engaged, connected, purposeful, ready to give, to engage, to care, to learn. There was a tremendous opening in which the country could have gone in other directions, an opening in which people wanted to understand Islam and foreign policy, wanted to sacrifice and engage. I saw the Bush Administration wrestling these forces back into insignificance and urging people to fear, to shop, and to withdraw instead. (Vishwanathan 2017)


By rapidly shifting our imaginative horizons in a context in which we are deeply dependent on one another for survival, disasters tend to open up new moral possibilities and to drive communal innovation. In short, the history of disasters tells us that, for the most part, people are not worse moral actors during a disaster; they are better (Drabek 2016). Instead of looting and arming themselves, most people in disasters work together in existing and emergent communities to share resources and care for one another. In natural disasters, they jumpstart ad hoc search-and-rescue units and evacuation teams. In pandemics, they knit masks and design new treatments. 

If we take seriously the idea that much of what we believe about the moral breakdown of society during disasters is wrong, then new ethical possibilities emerge. We need philosophical interventions in disaster response that complement the sociological findings that community is the primary source of aid and support in disasters. While the CDC’s pandemic planning guidelines call for a suspension of some dimensions of autonomy to slow the transmission of a virus (Kinlaw and Levine 2007, 4), feminist bioethicists argue that a relational account of autonomy attunes us not to the suspension of liberties enacted in a pandemic, but to the transformations of relationships and rights required to keep us collectively safe (Bayliss, Kenny, and Sherwin 2008, 6; Sherwin and Stockdale 2017). By emphasizing the political dimension of our social locations and relationships, relational autonomy understands persons as inherently interconnected, attending to the ways that the options available to individuals are shaped by existing relationships, institutions, and axes of marginalization and risk (Sherwin and Stockdale 2017; Bayliss, Kenny, and Sherwin 2008, 6–7).

Relational approaches to autonomy are well-suited to the moral challenges of a pandemic, challenging standard accounts of bioethics developed in an era when many experts assumed that infectious diseases had been conquered by modern medicine. While standard accounts of autonomy in bioethics have assumed that it is possible to make choices for oneself without harming others, a relational approach can make sense of the ways that highly infectious diseases make this distinction untenable (Francis et al. 2005, 307; Selgelid 2005, 274). Accordingly, Margaret Battin and Leslie Francis urge bioethicists to understand patients of infectious disease as bearing both the rights of victims and the responsibilities of vectors (Battin et al. 2005). They distinguish their account of the relational autonomy of contagion from feminist formulations, attending to physical (rather than social) location and tracking collective responsibility in accidental encounters among strangers, rather than in intimate, dependent, and chosen relationships (Battin et al. 2008, 79). 

In a public health disaster shaping a global economic emergency, however, we argue that the ethical commitments of response must be grounded in an account of agents as vulnerable vectors who are embedded in relationships—specifically, relationships of caregiving. This account shifts the focus of any pandemic response from the rights of those who are infected to our universal but unevenly distributed vulnerability to the disease, directing our attention to the systemic and institutional structures that unevenly produce vulnerability and resilience (Bayliss, Kenny, and Sherwin 2008; Fineman 2010).

Our emphasis on vulnerability both aligns with and challenges new social vulnerability models for prioritizing “at risk groups” in disaster preparedness and response (Jennings and Arras 2008). The CDC’s Social Vulnerability Index uses demographics to categorize, rank, and map populations who share characteristics ranging from oxygen dependency, to advanced age, to poverty in an effort to help planners locate and assist them as they may be “disproportionately impacted by an incident or event” (CDC 2015). But, as critics have argued, indices such as these fail to capture the complex interdepencies of disaster vulnerability (Rufat et al. 2019). In COVID-19, as both the virus and fear of contagion “infect” people and lead to behavioral change, vulnerability is complex and fluid, spreading through existing and emergent matrices of inequality (Hynes et al. 2020).

Our collective status as vectors requires us to do more than identify “at risk” populations and the burdens of health care workers, but to track the ways that wealth and privilege were themselves vectors of the virus, spreading contagion around the world through travel, moving it from urban centers to rural communities via second homes (Peterson 2020), and in several notable cases, spreading it across communities through drunken, “coronavirus themed” parties (Waldrop and Gallman 2020; Williamson and Hussey 2020). Minimizing vulnerability and vectorhood through social distancing and telecommuting was itself an act of privilege, while acquiring everyday necessities like groceries made an already precarious class of “essential workers” shoulder the risks of infection. In doing so, they became vectors of contagion in their own families and communities. Thus, vulnerability analysis must be embedded into pandemic planning, understanding it not as a static characteristic of populations but something produced through the pandemic and the response itself. We can track how agents operate as vulnerable vectors only through a multidimensional account of the complex systems through which vulnerability produces vectors of both contagion and dependency in the ongoing public health, social, and economic fallout of pandemic (Fineman 2008; Hynes et al. 2020; May 2015).

Our account of agents in a pandemic as vulnerable vectors, therefore, calls us to shift both the moral frameworks that organize response and the disaster imaginary that shapes our moral sensibilities. We need not just new tools, but new stories. In the remainder of the paper, we suggest a disaster imaginary that makes sense of our status as vectors and an accompanying ethical framework for response that centers on the multidimensional experience and elaboration of vulnerability.

4. We Are The Essential Resources: A New Disaster Imaginary

 In the pandemic, our status as vectors of infection has made us aware of—and wary of—our interconnectedness in new ways. This awareness, we argue, calls for a new disaster imaginary to orient our moral awareness, including our formulation of ethical dilemmas, the premises and priorities that we bring to our normative reasoning, and our motivations for action.

Even as pandemic public discourse has focused on the scarcity of resources, calls to solidarity have been everywhere, as we have been called to social distance as “an act of love” (Zahniser and Smith 2020) and, amidst assurances that most of us would experience relatively mild symptoms, we shuttered schools and businesses in solidarity with those whose immune systems would not withstand the virus. Angus Dawson and Bruce Jennings argue that solidarity should be understood as a “shaping sensibility” for ethics, an orientation that makes ethical decision making possible (Jennings and Dawson 2015a, 32). But solidarity has largely been absent from pandemic preparedness and disaster ethics. Dawson and Jennings recount how, as the North Carolina Public Health Task Force formulated their pandemic plan, they rejected solidarity as “not important” to Americans, who were understood as primarily focused on their “individual lives” (Dawson and Jennings 2012, 71). When calls to solidarity do arise, they are sometimes dismissed as the solidarity of mutual survival or self-interest (Dawson and Jennings 2012, 74) which are often short-lived in a disaster (Jennings and Arras 2008, 12).

We argue that calls to solidarity are harbingers of an alternative, emergent disaster imaginary that harnesses our uneasy awareness of our interconnectedness as vulnerable vectors of contagion. Solidarity, for example, helps us to make sense of why pandemics are a particularly morally damaging kind of disaster. COVID-19 exploits our interconnectedness, spreading most quickly where community ties are the tightest, often through communal practices of mourning and celebration. In Albany, Georgia, a funeral became a “super spreader” event, giving this small city one of the highest rates of confirmed coronavirus in the country (Barry 2020); New Orleans’s Mardi Gras festival may have contributed to the high number of cases in the city (Faussett and Kravitz 2020). To slow the spread of the virus, we are called to close down local spaces for connection and suspend the institutions through which we rely on one another; the subsequent economic fallout is not the result of scarcity, but of our interconnectedness.

These obligations to social distance do not reflect a social contract (Kessler 2020), in which we are equal, rights-bearing agents, but a recognition that we are members of and vectors in a community as interconnected and vulnerable as a single organism. This conception of solidarity draws on the ethics of uBuntu, which coalesced in apartheid South Africa to shape a revolutionary solidarity from a context of brutal rupture. uBuntu’s central principle that “a person is a person through other persons,” conceives of us as embedded, embodied beings, interdependent on one another for our very identities and life projects—and, in a pandemic, for survival (Sambala, Cooper, and Manderson 2020; Berghs 2017; Shutte 2009, 93–94; Thomas 2008).

uBuntu transforms our disaster imaginary by treating us as one another’s most essential resources. In doing so, it allows us to see the mundane challenges of the pandemic as moral hardships and dilemmas. Social distancing reveals how deeply we are ourselves through and with each other; many of us are profoundly lonely. Others, meanwhile, are cloistered at home with our children of varying ages, standing up ad hoc homeschools, structuring hours and days and weeks without the everyday partnerships we rely on—without teachers, friends, grandparents, babysitters, coaches, counselors, and pastors. It is deeply strange, unnatural, and morally damaging not to share one’s children, not to share in the project of helping them grow. The burden is nearly impossible for one person or one set of parents to share. We are discovering how parenting is sustainable only because of one another, how our own moral projects depend upon communal and institutional arrangements that allow our children—and ourselves—to grow together.

This perspective helps to make clear how much a disaster imaginary grounded in the state of nature fixes our moral attention on scarcity and the allocation of resources. uBuntu helps us see that this is not the only moral priority. The tragedy of our dangerously overwhelmed health care system is not only that there are not enough ventilators to go around. It is also that people must suffer alone, must die alone, must give birth alone; it is that our system is so broken that even a basic right to human company must be surrendered (Goldstein and Weiser 2020). Many of us fear not just getting sick, not just dying, but dying alone. Many who are grieving are grieving because they could not be present for a person essential to them, for birth or for death or for suffering. We are grieving not just the inevitable moral failures that will come from lack of resources, but from the lack of humanness, of being human with and through one another. These, too, are moral failures.

uBuntu’s moral imaginary is relational and emergent in ways that reshape the moral priorities of response. It values a multidimensional appreciation of “otherness,” an awareness of how individuals shape their communities even as their communities shape them (Berghs 2017; Eze 2008). This sharpens our awareness of how our interconnectedness is organized through existing and emergent inequalities, as when already vulnerable “essential workers” and their families are required to disproportionately shoulder the risk of contagion, and sheltering in place is itself a mark of privilege. But uBuntu’s multidimensional conception of solidarity is also a shared commitment to the future, a process through which we are continuously becoming ourselves through one another even in conditions of rupture (Eze 2008). Unlike the state of nature imaginary, it does not conceive of disaster as a suspension of our normal priorities; its goal is not a “return” to our “normal” commitments. It understands us to be transformed by disaster. Nor is it consequentialist in the utilitarian sense, focused on measuring efficacy through concrete outcomes. Rather, it is futurist, orienting us towards the new world shaped by both the disaster and the response itself (Van Binsbergen 2001). In this sense, it is particularly well-suited to the extended nature of pandemics as our perceptions of ourselves, our communities, and our moral horizons are permanently reoriented.

The problems we encounter in disasters, and the responses we build, are transformed when our collective energy and imagination is oriented through the understanding that, as vulnerable vectors, we are “persons through other persons.” The history and sociology of disasters show that this inclination to solidarity is present in survivors already (Solnit 2010; Drabek 2016; Quarantelli 1999); reframing our story of disaster to unleash the powers of this perception would both alter the problems we see in disasters and increase our power to aid them. In the next section, we show how the perceptual shift that uBuntu’s disaster imaginary grounds is a multidimensional approach to supporting the networks that care for the vulnerable.

5. Vulnerable Vectors and the Labor of Care: Pandemic Care Ethics

In New York City, as COVID-19 cases surged and the city felt like a place under siege, traffic replaced by endless ambulance sirens, the federal government deployed the USNS Comfort to the city. The hospital ship docked in New York Harbor to celebrations, a symbol of rescue, staffed by navy medical personnel immediately greeted as heroes. But in fact, the ship treated only 182 patients over a three week period when the number of COVID-19 cases in New York City was well over two thousand a day (Fuentes 2020; NYC Health 2020); it was the existing, over-crowded hospitals that absorbed the surge, not the ship that had become a symbol of the impotence of a militarized, “heroic” response. The USNS Comfort sat on the edge of Manhattan, a visceral reminder that response is most effective when it fully empowers local responders.

In this section, we turn from our shared disaster imaginary to the ethics of response. We know that local responders are interconnected, each a vulnerable vector embedded in a set of caregiving relationships. To succeed, a pandemic response should somehow surge and support these existing care networks, including both responders and their dependent relationships. In making this move, we draw on the ethics of care, theorized originally by feminists seeking to transform our moral intuitions by insisting that what characterizes humanity is that all of us are vulnerable, and, at some point or another, dependent on one another for survival and flourishing (Engster 2005, 59; Kittay 2001). We argue that care ethics’ epistemic orientation towards the needs, capabilities, and preferences of the vulnerable should shape the institutional patterns and priorities of response (Engster 2005, 54–55) orienting a responsive state that surges existing and emergent response networks that care for the vulnerable (Fineman 2008). The shifts in perspective harnessed by uBuntu’s disaster imaginary of emergent solidarity enrich this multidimensional account of care, expanding our perception of the moral dilemmas of the pandemic and orienting our awareness to the ongoing transformation of our relationships and networks. 

Care begins with attentiveness to vulnerability, arguing that the universality of vulnerability produces a universal duty to care (Engster 2005). We discharge this duty through existing networks, relationships, and institutional arrangements, as well as by developing emergent strategies for extending those structures in emergencies both mundane and catastrophic. Emergency Management doctrine aligns with this, advocating that all emergencies are fundamentally local (FEMA 2017). We know from the sociology of disasters that neighborhood assets, like regular community members and clinics or hospitals, are much more likely to provide care than any mythical response entities or Navy ships. But care ethics complicates the distinction between “responders” and “victims,” instantiating the value of “whole community” response by recognizing survivors as participants in networks of care: much of the labor of disaster response, from search and rescue to the identification and protection of the vulnerable, is done by survivors themselves, through existing community ties and organizations (Drabek 2016). Understanding the labor of response as a collective project requires us to rethink the story of moral heroism in disasters, challenging savior narratives and reminding us that communities in rupture tend to save themselves. 

In the COVID-19 pandemic, support for first responders has too often taken the form of empty celebrations of heroism: We do not have masks for you doctors, but we will clap for you, is the unfortunate refrain. In a utilitarian framing of disaster response, heroes are those who take on the impossible task of determining which sacrifices are “acceptable”: which patient gets a ventilator, who makes it out of a flooded hospital. We are comforted by this familiar action-hero vision of heroism, even as it assures us that these sacrifices are acceptable in impossible circumstances. And the narrative of heroism also insists on the autonomy of the hero, thus absolving us of collective responsibility for the structural failures that produced circumstances requiring heroism. The “essential workers” we celebrate as heroes are often underpaid line staff doing difficult or mundane work without benefits or employment protections. Yes, these staff may be personally exceptionally brave and self-sacrificing, but proclaiming them “heroic” is theater. It imagines them as autonomous agents discharging a supererogatory duty, and thus it obscures the patterns of vulnerability and dependency that leave them little choice but to expose themselves to mortal danger (Jennings and Arras 2008, 117–120).

But care is rarely supererogatory; it is mundane by definition (Engster 2005). Grounded in the moral realities of mothering, care ethics orients our moral admiration away from discrete and awe-inspiring acts of heroism and towards the repetitive labor of reproducing ourselves and one another even in times of crisis. Responders and essential workers, in this framework, are best understood not as heroes but as caregivers—still entitled to admiration but reliant on something much more crucial: sustainable support. As New York’s existing hospitals surged to treat mountains of cases, doctors, nurses, EMTs, janitorial and other hospital staff were infected in alarmingly high numbers, and the state ran out of personal protective equipment (PPE) in the first weeks of response (Manjoo 2020). But PPE, although critical, is not the whole story. Since caregivers are vulnerable to contagion, they become vectors in their families and communities. Surging caregiving requires the state to provide, innovate, and invent resources to support this expanding chain of vulnerability to keep the chain of caregivers intact.

A response oriented through a multidimensional account of care must concern itself both with surging networks of care and with the sustainability of that surge. Care itself is a vector of vulnerability, what Martha Fineman calls a “derivative dependency,” arising as those providing care need additional resources and support in order to continue effectively supporting others (Fineman 2004, 57–58). Supporting health care workers means attending to new dimensions of vulnerability as other family members take on primary childcare duties, as health care workers deemed high risk are kicked out of apartment buildings or as new workers step in to take over when frontline responders become ill; it means tracking and redeeming the economic and mental health costs borne by civilians who form the front line of pandemic response. 

Against the consequentialist moral calculus of utilitarianism, always focused on the linear phases of disaster—impact, response, recovery—care harnesses uBuntu’s understanding of emergencies as unfolding in time, through repetitive labor as one vulnerability begets another. This is critical in a pandemic, in which the timeline of response is indeterminate; caring networks can be effective over time only when they support caregivers, rather than reproducing greater vulnerability. 

In the CDC’s ethical guidelines for a pandemic, little attention was paid to the distribution and elaboration of vulnerability within existing, essential networks of care (Kinlaw and Levine 2007; Jennings and Arras 2008, 115). While the protocols enacted to “flatten the curve” are best understood as a collective act of care that treat all of us as responders complicit in containing contagion, these policies have strained every system of caregiving in our society to its breaking point, from our state governments to our largest hospitals, from nursing homes to families. Nuclear and intergenerational families, with their embedded patterns of gendered labor, have been expected to absorb these shocks. Parents and other caregivers found themselves in the impossible position of juggling suddenly full-time care labor with full time work responsibilities or the stresses and uncertainties of unemployment.

The distribution of this strain has not been even; just as women shoulder the bulk of care labor in “normal” times, it is women whose caretaking labor has been strained to the breaking point in COVID-19. As women face increased duties of care within the home that will reduce working hours, they accounted for more than half of the jobs lost in April 2020, with unemployment rates for women of color creeping over 20% (Gupta 2020). Even among highly educated women, the strain will transform career and earning trajectories, as academic journals report an unprecedented drop in journal submissions by women and in some cases an increase in submissions by men (Fazackerley 2020; Kitchener 2020). Studies of recent epidemics, like Zika and Ebola, show that while income levels generally dropped immediately following the outbreak, men’s earnings eventually recovered, while women’s did not (Lewis 2020). In the current pandemic, as childcare providers are amongst the hardest hit, women may find it difficult work in an already strained economy (Kennedy and Mayshak 2020). And even as women face disproportionate hardships in the social and economic fallout from pandemic response, they also make up the bulk of essential laborers providing the caregiving of response (Robertson and Gebeloff 2020). Often caregivers themselves, responders and essential workers faced untenable obligations exacerbated by a persistent overlooking of the multidimensional nature of caregiving networks. 

Just as vulnerability is unevenly distributed, the labor of care is unequally shared, and those who take on the bulk of caregiving labor become additionally vulnerable. We misunderstand the nature of the disaster when we focus on moral dilemmas and heroic choices, rather than attuning ourselves to the matrix of ripple effects that produce a strikingly raced and gendered pattern of pandemic labor. A care ethics response framework calls us to expand our conception of disaster response by rethinking our “normal” moral priorities and practices, by prioritizing attentiveness to vulnerability and developing responsive structures that both surge caregiving and build collective responsibility for the resilience of caregivers. In this way, it offers us a concrete moral structure for enacting commitments to solidarity through sustainably extending existing networks of care.

6. Surging and Sustaining Solidarity

In New York City as March faded, COVID-19 cases spiked. At Elmhurst Hospital, in Queens, patients jammed hallways as the neighborhood death toll mounted. Ventilator allocation was at the forefront of many minds (Mcvane 2020; Correal, Jacobs, and Jones 2020). Ethical guidelines for allocating scarce medical resources in New York State organized around the modified utilitarian “save the most lives” approach, giving preference to health care and other essential workers, to the young over the old, to the healthy over the unhealthy (Wikler 2020; New York State 2015). Terrible decisions would have to be made.

Just like Lombardy, acceptable sacrifice was the utilitarian narrative these doctors had accepted to prevent chaos. Just like Johannesburg, the impact and response were racialized, with many more people of color dying based on underlying structures of racial injustice. Just like Memorial in New Orleans, staff accepted this descent into chaos and isolation as a natural part of the disaster. They believed it had to be that way.

But within twenty minutes of Elmhurst lay more than 3,000 empty hospital beds. Not reported in the news, perhaps, but there. Ready. Under the pressure of the pandemic, New York City, like Lombardy, had created a network of care designed to responsively share resources, the staff at Elmhurst were able to redefine their trolley problem. They recognized that their localized vulnerability was embedded in an interconnected network that surged to support them, and those patients were transferred instead of unfairly triaged (Dwyer 2020). 

As this perceptual shift at Elmhurst shows, once we understand ourselves as interconnected, we can collectively construct a disaster imaginary of solidarity. In this way, pandemics can be ethically innovative disasters. Their cruelty is in their exponential spread as they exploit our interconnectedness, infecting a network node by node. But in doing so, they make our interconnectedness, our relationships as vulnerable vectors, visible. We can use this new awareness to surge response by supporting those providing care. In COVID-19, we see uBuntu’s awareness of our interconnectedness, of the ways that the community makes possible the individual, and vice versa. In networks springing up to feed and transport frontline workers, to babysit their kids, we see care ethics’ attunement to the ways that surging caregiving through existing networks produces new vulnerabilities, requiring emergent strategies of care. The extended and uncertain nature of the pandemic requires us to learn to sustainably surge these networks of care (Tolentino 2020). 

But our interconnectedness as vulnerable vectors is not simply the result of the infectious nature of the virus. Our analysis of the derivative nature of dependency in care networks suggests that we are always vectors of vulnerability in crisis. In closing, we point to the ways that other disasters, too, are characterized by the strains on multidimensional networks of care, as emergent dependencies exacerbate existing inequalities and beget new dimensions of vulnerability. Our framework understands disasters as producing networks of interlinked people who need care and are giving it; the ethics we propose will help to surge and sustain that entire network, not force us to break it apart and choose between the pieces.

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Special Issue, Uncategorized

How Soviet Legacies Shape Russia’s Response to the Pandemic: Ethical Consequences of a Culture of Non-Disclosure

Nataliya Shok & Nadezhda Beliakova

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. The COVID-19 pandemic required strong state responsibility for the health of its citizens and the effective allocation of healthcare resources. In Russia, extreme circumstances reveal hidden Soviet patterns of public health. This article illuminates how Russia has implemented some changes within its health insurance structures but also has maintained the paternalistic style of state governing within public health practices. The authors examine key neo-Soviet trends in Russian society revealed during the pandemic: the ethics of silence, a culture of non-disclosure, and doublethinking. Additionally, we argue that both modern Russian medicine and healthcare demonstrate gaps in implementing robust bioethical frameworks compared with the United States. Using a robust analysis of healthcare and state practice during the COVID-19 pandemic within the framework of global bioethics, this article aims to respond to Russian history and culture in order to advance the development of bioethics.

INTRODUCTION

The global COVID-19 pandemic has quickly and radically changed the world. The healthcare system in Russia, as in other countries, is under incredible pressure, and Russian society likewise is tested by “social distancing” practices. The unceasing adaptation and mobilization of resources has become part of our everyday lives. The struggle against the epidemic continues to emphasize the priority of global social health. Accordingly, we must address questions recently raised by The Hastings Center in “What Values Should Guide Us?”. What will be the new ethical norm after the pandemic? What compromises will be in place between civil liberties and public health? Will such biomedical ethical themes concerning the priority of the patient’s interests, the principal of minimizing harm, the disclosure of medical errors, and balance of equality and justice receive new recognition? Should we equally weigh the basic ethical principles, and are they universal? The global context of the pandemic allowed us to see that the practice of applying bioethical principles varies greatly, and the development of these principles depends on the history and culture of each respective country.

The differences in fundamental ethical commitments and historical forces that shape cultures result in different priorities, goals, and understandings of appropriate restrictions on behavior. These gaps can be difficult to bridge in the context of international guideline development, and they pose special concerns where lack of coordination threatens public health or undermines the ability to pursue collaborative research to advance health interests. One of the greatest barriers to developing globally shared guidelines is a lack of understanding and appreciation of local history and culture. In reviewing global responses to the COVID-19 pandemic, we understand the importance of dialogue and information exchange between countries in extreme circumstances. Responses can drastically differ between countries, as evidenced in both European Union countries (Hirsch 2020) and China (Lei and Qiu 2020), even though the scientific conclusions and state measures may share some overlap. Russia is no exception. The struggle against the pandemic exposed the deep rift between the global bioethical discourse and Russia’s response to the pandemic. In the development of public health guidelines, we cannot simply replicate the experiences and responses of foreign countries.

Russia imposed “the regime of self-isolation,” which limited citizens’ mobility rights, as the main pandemic countermeasure (Stanovaya 2020a; 2020b); however, there is no such applicable legal term in Russian law. The Russian President called this “a days off regime,” meaning a vacation from work obligations. He did not declare a state of emergency or impose quarantine restrictions. Instead, the bulk of the responsibility for anti-pandemic countermeasures was placed on the regional governments. In our opinion, such decisions and shifting of responsibility can be ethically justified only if the measures are proportional to the severity of the epidemic, taken with no violation of individual freedom and rights, and transparent to the public. These requirements were not met: the state refused to offer financial aid to businesses or to the vulnerable population. Instead of supporting its citizens, the state imposed a series of administrative measures (i.e. penalties) that were aimed at punishing the healthy population for going out of their homes without a special digital code during the non-imposed quarantine. For those who were diagnosed with COVID-19 and their families, they were forced to use a social monitoring app that required sending selfies five times per day, even at night. These penalties increased social anxiety and mistrust.

While many have studied the collapse of the Soviet Union, few realize that Soviet policy and practice in healthcare is alive and has significant implications in Russia. Although the democratic state assumed the monopoly in the fight against the COVID-19 pandemic, it quickly returned to the patterns of Soviet policy in implementing public health strategies. In the mid-1990s The New York Times used the term ‘neo-soviet style of state governing’ to describe a pattern of returning to the Soviet Kremlin medical treatment practice and assumptions for responsibility within state leadership (Stanley 1995). The budget of this health bureaucracy, then and now, is secret. The current pandemic has brought about the return of several negative trends from the Soviet past such as ethics of silence, double thinking, state paternalism, and a culture of non-disclosure.

We will begin by sharing the meaning of these four key features of the Soviet legacy that influence medicine and healthcare. We then will highlight the implications of these commitments for medicine and bioethics within the context of the COVID-19 pandemic. We consider the history of Russian medicine and explore Soviet commandeering within health systems. We argue that by identifying pathways that respond to our history and culture, we can advance the development of bioethics in Russia by using robust analyses of healthcare and state practice during the COVID-19 pandemic.

Ethics of Silence, or Why Does Russia Not have Bioethics?

It is well-known that bioethics—as a research field—originated as part of the academic and social discourse in the United States. Although there are some research groups, independent researchers, and journalists working to study and implement bioethics in Russia, the country has not seen widespread academic development or widespread public discourse. Why does Russia lack organizations similar to the American Society of Bioethics and Humanities, The Hastings Center, the Kennedy Institute of Ethics, etc.? The answer is quite complicated (Stepanova 2019).

Until the late 1980s, bioethics was not represented in the Soviet academic discourse. This was, in many ways, due to the fact that it was a product of American academic culture (Callahan 1993). As the medical sociologists Fox and Swazey stated in their mid-1980s study, we should not suppose “that bioethics is a sufficiently neutral and universalistic term for it to be applied to medical morality in China or, for that matter, to medical ethical concern in whatever society or form it may now occur” (1984, 336–37). This perspective was critical of Professor Engelhardt’s material, published after the delegation of the US Kennedy Institute of Ethics returned from China (Engelhardt 1980). Sociologists described Professor Engelhardt’s approach as “cultural myopia”; according to them, Professor Engelhardt did not adequately appreciate the deep Western and American cultural influences on bioethics. These sociologists argued that he inappropriately considered bioethics as neutral and universal (Fox and Swazey 1984, 337). Sociologists emphasized that the term ‘bioethics’ was a neologism, which appeared primarily in American culture. In other cultures, its philosophical bases can be perceived as “acultural or transcultural,” which “can significantly limit its application in practice, allowing for the use of other terms” (337–38). In many ways, this is true for both Soviet and post-Soviet Russian development of medical ethics.

Perspectives within bioethical Soviet studies in the fields of Communist morality, medical ethics, and deontology differed radically from those that emerged within the United States (De George 1969; Tsaregorodtsev 1966; Petrovsky 1988). These differences are deeply intertwined within history and culture; differences are especially evident when we examine the issue of freedom. Soviet philosophy largely encompasses a determinist doctrine, which means that a person’s choice is an illusion, as it was determined by the interests of society (De George 1969, 35-38). Another important difference concerning Soviet ethics was noted by the Professor Graham in his Nature essay. He noted numerous attempts by Soviet philosophers to transfer the solution of complex problems to a future society, which would presumably be more just (Graham 1991). He agreed that this position allowed for neutrality in the struggle of conflicting concepts, but such abstracts proved to be of no use for those who were bound to make decisions in current society. In other words, this ethical model was not applicable. The problem was made more complex by a rather special understanding of the basic ethical categories. For example, freedom was not individual, but collective, which in turn complicated the perception of such categories as responsibility, wellbeing, duty, and consciousness—which were directly dependent on the understanding of freedom (De George 1969). Thus, the individual value of a human being was bound to the needs of society, and morality was an instrument of social control that guaranteed social stability. In the public discourse there was an “embryological perspective” of a person and the inner life of a human being, which were seen as “underdeveloped” and in the need of being “raised.”

The desire of the enlightened government to educate the “ignorant” people has deep historic roots, starting from the reign of Peter the Great. At that time, numerous disciplinary and oppressive campaigns were conducted under the guise of “enlightenment.” In the Soviet period, society was evaluated on an evolutionary scale, spanning from the primitive to the communist forms, which meant that there was no need to give a detailed analysis of its contemporary state. The ideas of constructing a new society, educating the new human being for the common socialist happiness, manifested its limitations as early as the 1950s, since this ideology could boast a purely humanitarian ideal for the future, but only offer limited guidance on how this would allow contemporary problems to be solved.

Relatedly, developments concerning a culture of silence share this intertwined history. The ethics of silence was shaped by the expansion of the “classified” zones and non-disclosure demands. In the Soviet Union, the term “state secret” received a maximally-broad interpretation, especially the context of the non-stop mobilization campaigns, carried out under pretense of war. Safeguarding “state secrets and showing discretion was the duty of every Soviet citizen” (Zelenov 2012, 147). Record keeping in Soviet institutions was also aimed at secrecy; indeed, entire departments were kept secret. In more open institutions, so-called “first departments” monitored the storage of state secrets.

The non-disclosure culture was enforced through institutions, whose employees internalized the non-disclosure norms, as well as through censorship and the state’s monopoly on mass media. As a result, Mikhailova describes the following:

Silence as a form of social protest behavior revealed its duplicity: under certain circumstances it allowed the individual to counter society’s oppressive machines, and to defend if not one’s life, then at least one’s honor. On the other hand, it provided the opportunity to sustain the fragile peace (even a questionable one), which was still preferable to the ‘good old fight,’ yet at the same time this very tendency aided the spread of lies, the formation of a pseudo-reality and the deepening of the anthropological crisis. (2011)

The “ethics of silence” and “non-disclosure culture” mechanisms, shaped in the Soviet Union, were supplemented by the phenomenon of duplicitous thinking. Soviet sociologist Yuri Levada actively used George Orwell’s formulation ‘doublethink’ to describe this practice (Orwell 1961). Levada also noted the following about late-Soviet society:

The doublethink dictatorship became total and unlimited: it was cemented that one must separate the sphere of social norms (to act, speak and think as you ‘were supposed to’), and the sphere of what was tolerated, which was basically dubbed as the ‘private’ life…The ‘minor’ and ‘major’ truths were locked together, struggling against one another, yet supplementing each other. (2006, 266)

In Levada’s opinion, post-Soviet society cemented the behavioral qualities of the Soviet period. In 2000, he called the post-Soviet person “sly”:

The sly person—on every level and in every essence of his or her existence – not only tolerates deceit, but is ready to be deceived, moreover—he or she has a need for self-delusion for reasons of the same (including psychological) self-preservation, for the overcoming of one’s internal split, for the justification of one’s own deceit. (2000, 20)

With the absence of strict barriers that would separate the proper and improper behavior, the dominant situation for post-Soviet society was not playing by the rules, but rather—playing with the rules.

The ideology of the totalitarian state, which routinely uses policies to impose state pressure on all spheres of life, also transformed the understanding of a doctor’s duty and medical ethics. This influence denied the essence of the physician’s mission and transformed the mission into a form of social work aimed at the benefit of the state, not individual interest. The late 1980s and early 1990s witnessed the appearance of first Western studies dedicated to the peculiar traits of the Soviet and post-Soviet healthcare systems (Rowland, and Telyukov 1991; Chazov 1992; Barr and Field 1996; Field 1995), especially medical ethics (Veatch 1989; Ryan 1990; Barr 1996).

In Soviet medicine, “medical privacy” received peculiar interpretations. The main ethical goal of the doctor was to aid in the creation of the “major” truth of the state. The strict paternalist model, the medical structure centralized on a pan-Soviet scale, and its moral obligation to ensure society’s healthcare (and not the healthcare of the individual patient) completely changed the term “medical privacy” throughout society. Policymakers did not protect the patient’s rights to confidentiality but rather strengthened the non-disclosure culture of the medical corporation. This naturally did not allow for the formation of bioethical institutions, as it was understood from a Western perspective. Still, academics were also interested in investigating the “second economy on an unofficial barter system” of healthcare (Barr 1996). This was a major part of the public consensus—underground payments to the doctors in underfinanced conditions and the low quality of the publicly free healthcare. This phenomenon is hard to understand, if one only depends on the official Marxist dogmas and Communist morality of the Soviet professions, which were supposed to be driven by the primacy of duty. For doctors, the expectation and acceptance of payment from a patient in exchange for medical services was officially considered bourgeois and unethical (Barr 1996, 38). Yet this also can be easily understood as a manifestation of the “doublethink” and the non-disclosure ethics in medicine.

Strict centralized control, the disregard for the specifics of regional healthcare, the priority of quantity over quality, the overall lack of resources, and lack of financing could not stimulate the doctors to improve their work. At this time, the average doctor’s salary equaled about 70% of the non-agricultural worker’s paycheck. These factors only led to an increase in mortality, a low life expectancy, and the public mistrust of the healthcare system (Rowland and Telyukov 1991). Further, independent professional associations of health care workers could not exist under the Soviet state. The state could not and did not evaluate the professional work of doctors. Soviet doctors, as state employees, were subject to disciplinary orders and could not fully control the field of their professional expertise, which was a necessity for their work. The social standing of doctors in USSR exhibited a “paradoxical combination of corporate powerlessness and bureaucratic power” (Field 1989).

In the post-Soviet landscape, and especially in Russia, the government—until recently —kept the Soviet organizational model for mass healthcare. The government began to gradually transfer the system into the sphere of “services” yet retained the paternalistic watch of the state over the medical institutions. It’s important to remember that by the 1980s, Soviet medicine was falling behind the healthcare levels of the developed countries. Researchers see the main reasons for this in the overbearing centralized management system of healthcare, the low levels of professional education, and insufficient funding (3.4% of USSR GDP in 1989, in comparison with the 11.4% in the United States) (Rowland and Telyukov 1991). As Dr. Rowland notes, “in theory, Soviet healthcare is a model of regional medical aid, which is based on local clinics. In reality, this system falls apart due to lack of finance, the indolence of centralized control, and lack of innovation” (Rowland and Telyukov 1991). The doctor’s clinical practice was not autonomous; the patient did not have the right to choose where and from whom he or she will receive medical aid. This, obviously, meant that there were no objective motivations for improving the quality of medical aid, and numerous services would only be available for an additional, informal payment. As The New York Times stated, “Communism may be dead…but its disparities and inefficiencies remain,” and “health care had never been one of the Soviet Union’s great successes….[D]octors were always relatively badly treated in the Soviet Union” (Erlanger 1992). The situation would not change for several years.

After 1991, Russia started developing the private medical care sector, which was more flexible but also expensive for population-based health needs. The last healthcare reform in Russia, which took place during 2015-2017, was driven by the logic of “optimizing” costs and raising the “economic efficiency” of the system. In Russia, the main direction of reform concerns the reduction and merger of clinics, the partial privatization of insurance, and in some cases, privatization of the actual delivery of services. In contrast, in the United States, the most important part of healthcare reform lies in the field of insurance, not in the actual delivery of healthcare services (Filatova and Schultz 2016). Russian policy changes have led to the bureaucratization of the system, a decrease in number of hospitals and hospitals’ enlargement and specialization, with a marked and forced decrease in numbers of doctors and nurses (Nurik 2015). Nurik notes the following figures from between 2005 and 2013:

The number of health facilities in rural areas fell by 75 percent from 8,249 to 2,085. That number includes a 95 percent drop in the number of district hospitals, from 2,631 to only 124, and a 65 percent decline in the number of local health clinics, from 7,404 to 2,561. (2015)

In 2014, a broad public campaign against the collapse of the Russian healthcare system was launched by the Deystvie Union, the Russian Confederation of Labour, the Pirogov doctors’ movement, the “Together for Decent Medicine” protest group, and other civil society organizations. This did not yield the desired results. Instead, with Russia’s huge territories and disproportionate population spread, the reduction or merger of hospitals partially led to the rise in inequality of people’s access to healthcare.

On one side, as Kleinert and Horton state in their editorial, “the health system itself is marred by an insufficient skill level of its too many doctors who are still underpaid and demotivated” (2017). On another, the Russian Constitution guarantees the right to health and free medicine in state hospitals for every citizen. But the scope of guarantees is not defined by law. The budgets for medical care are scattered: they are partly paid by the federal budget and partly by regional budgets. A citizen does not know who pays, when they pay, or for what. The population does not participate in financing public health care. Health resources are disintegrated, and their allocation cannot be considered equitable. Availability of health care depends on one’s location within the country and social status. As Sheiman and Shishkin (2010) noticed, an important part of the reforms should be raising the level of legal education in the field of healthcare. It is necessary to create conditions to facilitate patients’ choice of medical organizations on the basis of accessible and transparent information and ratings of clinics. This information might also include the results of assessing the quality of medical care based on patient’s opinions. It is necessary to specify what it means for the state to guarantee free medical care, to strengthen regulation of paid medical services, to make a serious revision of medical education on all levels.

The consequences of this healthcare reform became clear in light of the pandemic, which shed light on the most vulnerable groups and re-activated the ethics of silence. Professor V. Vlasov calls this “the continued misuse of health care for political purposes” (Vlasov 2017). For many years, the government used healthcare programs to solve demographic problems (e.g., suppressing access to abortions, increasing funding for in-vitro fertilization). Healthcare was a tool, aimed at the increase of manpower, instead of being an instrument focused on aiding sick people (Vlassov 2017).

L. Roshal, the chief physician in the National Institute of Emergency Children’s Surgery, recently confirmed that Russian healthcare was not ready for emergencies like COVID-19. According to him, a meeting took place almost a year ago on the preparedness of Russian healthcare to offer aid in various emergency situations. It was hosted by the All-Russian People’s Front, a civil initiative, with the participation of representatives from the Ministry of Defense, Ministry of Emergencies, the “Defense” Movement (Zaschita), the Ministry of Healthcare, the managers of the ambulance doctors’ union, and chief physicians of various clinics. The conclusion was extremely depressing: “We are not ready to provide aid to the country’s population.” Due to a combination of numerous state initiatives to “optimize” health are and decreases in total healthcare workers, Russia was primed to experience difficulties throughout a pandemic.

Moreover, this commentary also demonstrates another example of the non-disclosure culture: no one wants to bring healthcare reform failure to the public’s attention. The regime of “secrecy” (which demands silence) reemerged in Russian everyday life with the threat of COVID-19. Public discourse on responses to the pandemic focused on the high level of social mobilization and heroism, typical for the Soviet past and in tune with communist morality. Russians’ realities were penetrated by something that is directly connected with the ethics of silence and non-disclosure culture: The crash of Communism instilled hope that science would transform Soviet health care in the interests of humanity, but still, it serves mostly the ideology of the Russian State” (Vlasov 2017). The culture of non-disclosure persists in the neo-Soviet era.

Social Disparity and Culture of Non-Disclosure in COVID-19 Russia

The regime of “secrecy” came back into Russian reality with the threat of COVID-19, as part of the public discourse of mobilization that was a well-known part of Soviet morality accompanied with “the culture of non-disclosure.” According to the Blavatnik School of Government at Oxford University, the measures taken by the Russian government were among the strictest in the world, according to the global scale of state countermeasures to the coronavirus (2020).

The Russian National COVID Response Team was created on January 29, 2020. On January 31, Russia closed its border with China. Following that measure, self-isolation regimes and electronic passes were introduced. The government took unprecedented measures, initially stating that its care for its citizens was the prerogative. At the first stage, Russian society responsibly accepted the social isolation guidelines in spite of their numerous drawbacks. Yet the federal government refused to impose nationwide quarantine measures or even impose them on the large metropolitan areas. Responsibility for such measures was instead routed to the regional governments. Additionally, the state refused to offer financial aid to businesses or to vulnerable groups of the population. In the aftermath, the state continued to pursue the disciplinary-oppressive course, which was represented as an “educational” measure aimed at “irresponsible” citizens. Instead of supporting its citizens, the state imposed a series of administrative measures that were aimed at punishing the population for violating the non-imposed quarantine measures and for the spread of unverified information. The state also created a special procedure for registering and selling medicine, while maintaining limitations in trade and businesses.

The legal system has imposed strict measures in response to COVID-19. One of the specific measures was the Russian Supreme Court’s decision that forbade the discussion and spread of any coronavirus information under threat of criminal charges. Article 207.1 (“Public dissemination of knowingly false information about circumstances posing a threat to the life and safety of citizens”) was introduced into the Criminal Code on April 1, 2020. It focuses on filtering coronavirus distribution data. Accordingly, information concerning the pandemic that does not originate from official state channels is presupposed to be aimed at political and social destabilization.

Digital passes, isolation, and fines have also been imposed in Moscow vigorously. Regional authorities try to follow the capital’s example as best as they can. All of this was accompanied by the strengthening of social inequality—state officials of all levels, members of security services, journalists, and jurists were exempt from the restriction measures. The elder generation of Russian citizens characterized this situation as the imposition of “martial law.” Society’s perception of this time-period as a “time of war” allows us to analyze these events from the point of view of the history of Russian collective mentality . This approach allows us to see the “content plane” that lies beyond the “expression plane” of the social mindset (Ariès 1981, XIII–XVII). With the original cooperation of the population (who agreed to social distance and limit their movement), the level of the state’s communication with vulnerable people facing economic instability deteriorated to its usual forms—fines, bans, threats, and pressure. Under the conditions of the epidemic, the mental predisposition of almost all state officials becomes quite clear: the Russian president calls for social isolation, and thus it is unacceptable to say anything against social control. Following this idea, President Vladimir Putin signed the new federal law No. 123 on April 24, 2020:

On conducting an experiment to establish special regulation in order to create the necessary conditions for the development and implementation of artificial intelligence technologies in the subject of the Russian Federation—the city of federal significance Moscow.

This law amended Article 6 and 10 of the Federal Law “On Personal Data.” As a result, Russian citizens are facing a new ethical challenge to their rights to privacy; this is partially why the state’s actions are aimed at further enforcement of isolation. Nevertheless, the measures taken by the authorities in their fight against the coronavirus vary from region to region, as does the level of the pandemic’s spread (Volkov 2020).

In order to properly evaluate perception of the imposed restrictions, we must understand which measures will be repealed once the quarantine ends and which will remain permanently. For now, we can only say that only a minor percentage of the Russian population considers the state’s anti-COVID measures extreme. Here, we should examine Russians’ attitude towards similar restrictions: the law allowing security services to monitor private correspondence, the blocking of several foreign websites (including some universities), and punishment for “extremist” social media posts. These previous initiatives were actually met with support by a bulk of the population; however, public opinion on the matter was dominated by representatives of older generations and residents of rural regions. Both groups tend to traditionally see the state as the institution responsible for the safety and morality of the people. Younger, more educated, and socially active Russians and residents of major cities, on the contrary, were highly unhappy with these laws. They had a better understanding of the restrictions’ essence and “extrapolated” on themselves the possible punishments.

These contemporary state measures reinforce isolation measures. The lack of bioethics and a professional community of specialists, capable of articulating society’s interests who seek to balance individual freedom with social interests, has led to the restoration of the “ethics of silence.” This is verified by public opinion surveys. For example, Lev Gudkov, the director of the Levada Center notes that “over 60% of the population is neutral in their assessment of the President” (2020). Gudkov calls this the “base construction,” where this population concludes that “there is nothing we can do, so I will not say anything good or bad” (2020). In the post-Soviet period, Russian society went through a radical transformation and assumed a highly unstable structure. Post-Soviet Russia experienced several crises—e.g., 1998, 2000, 2014—with each one deepening the social and economic divide, creating new vulnerable groups in Russian society. Yet the problem of poverty, questions of inequality, or a search for solidarity did not become subjects of public discourse. Russian society exhibits a far greater level of income inequality than European and the majority of post-Socialist countries. The “middle class” is absent, as are the conditions that would allow for its formation, while the population is subject to a high mortality rate.

Meanwhile, individuals living in poverty were further marginalized. Poverty remained adamantly overlooked by Russian society. In 2014, sociologists marked the stigmatization of the poor; society would bestow them with highly negative characteristics (Mareeva and Tikhonova 2016). The concept of a two-level social inequality in modern Russia is applicable to healthcare access. Inequalities in health are not limited to inequalities in access to health services, however. The difference in the social status of patients creates different attitudes regarding health, reinforcing inequalities in maintaining the health of Russians. A high social status allows the patient to establish equal relations with the doctor and affects the degree of satisfaction they experience in contact with the doctor and treatment. Low social status limits the patient’s choice: they usually use the state medicine, not only because the low costs, but also because of prejudices in private medical services. The COVID-19 pandemic—aside from emphasizing the divide of the population of the large metropolitan areas with large and small towns and rural areas, intertwined with demographic factors such as age, education, and income—also brought into the open the crisis of public trust towards official medical institutions and doctors (the lack of transparency in medical statistics, malfunctioning tests, the cancellation of any medical treatment aside from COVID-19). The lack of professional associations and the political subjectivity of regional authorities leads to little legal accountability . With this in mind, it is noteworthy that the Moscow City Administration is actively promoting the values of transhumanism, that is, the improvement of a human being with digital technology and AI, through measures such as the “Smart City 2030” program and the new digital pass system testing that has been ongoing throughout the COVID-19 epidemic.

 In addition, there is a lack of accountability for the social, immunological, and psychological consequences for isolated people. Using their own clinical observations, several doctors have recently discussed the risks of prolonged isolation that directly challenge the currently imposed measures (Jalsevac 2020). However, information questioning the state’s responses will often be met with hostility on social media. The military mobilization of the health services allowed the state to go back to the comfortable and familiar forms of communication with society—a format of strength, stemming from paternalism and police control.

Healthcare Professionals During the COVID-19 Pandemic

During the epidemic, American medics have noted the moral suffering of doctors who are forced to make daily decisions on whom to help in the state of deficit. The United States’ medical community is troubled by the underestimation of psychological consequences of the doctors’ work during the COVID-19 pandemic. The current epidemic unexpectedly and radically destroyed our perceptions of the norms within medical practice, actualizing the need for transparency. The bioethics community agreed. They are certain that under the epidemic conditions, the main dilemma is the struggle between public healthcare ethics, oriented towards the just distribution of organic resources and social security, and the model of clinical ethics, oriented towards the individual patient’s wellbeing and interests. Are such statements equally applicable for all countries? What are the peculiar traits of the situation in Russia?

Russians have dedicated great attention to scrutinizing health professionals’ behaviors throughout the pandemic. On April 22, 2020, during the online conference “Ethical Dilemmas: Does the Crisis Write Everything Off?” the chief physician of one of Moscow’s largest hospitals—Alexei Svet—characterized the current situation as a “time of elastic morals.” Answering a question on what is to come after the pandemic, he stated, “Of course they will find those ‘responsible’ for the situation, who did not do enough to counter the epidemic…and it will be health workers.…They did their job poorly and did not do enough to protect us.” In other words, he expects medical professionals to be made into scapegoats for the shortcomings in the system, regardless of the state’s role in its weakening.

The main measure that impacted health professionals employed through the public health services was the re-orientation or closure of the state hospitals. From the moment the epidemic broke out in Russia and self-isolation was imposed, hospitals were directed to treat COVID-19 patients; these regional hospitals were charged with responsibility for monitoring COVID-19. Major state clinics focusing on other specialties or clinical practices were closed. Doctors were forbidden to have multiple practices (in two or more clinics); meanwhile, methods of calculating the mortality and infection rates were constantly being updated. For example, in Moscow hospital No. 57 with a specific department dedicated to treatment of pulmonology and cystic fibrosis for adults (the only one for the whole country) was closed. Patients were discharged without any support. During April–May 2020, in 11 regions (out of 85 Russian Federal units), their regional health ministers resigned or were dismissed. These measures raise many ethical issues.

The imposition of listed measures was subject to severe logistical errors, caused by the instability of the decisions made, the extraordinary transfer of financial resources, the constantly changing demands of the regional governments to the hospital administrations, and the threat of legal consequences for the spread of the infections. Under these circumstances, the social inequality of the health workers became clearer than ever. Professional medical vulnerabilities were exposed, since now the entire industry was quietly “mobilized” by the state. In our essay, we feel that it is our responsibility to state that in the current political situation, we need to expand the vulnerable categories of citizens (namely, the elderly, homeless, prisoners, children, and solitary people) to add doctors to the list. The epidemic exposed new forms of conflict on several levels: between state and private medicine (financing); between the hospitals fully and partially equipped for COVID-19; and between doctors of various specializations because of financial inequality, since the payment for treating COVID-19 patients is higher. Many private clinics retain the ability of continuing their practice unrelated to COVID-19. The salary levels in private clinics are significantly higher than in state clinics. Differences in doctors’ everyday life are also clear; for example, doctors working with COVID-19 receive hotel accommodations. Meanwhile, private clinics also retain the right to receive patients with either state insurance, with further state compensation, as well as privately for market-price payment.

Disparities in protection and communication exist between state hospitals and partially-equipped clinics. State staffs of the hospitals and emergency rooms that are dealing exclusively with COVID-19 patients were informed regarding the high levels of contamination. They were insured, and the information on the doctors contracting the disease is not being hidden. But within the partially-equipped clinics, doctors did not receive adequate self-protection kits against COVID-19, and an intense conflict between doctors and the hospital administrations is on the rise. For example, in Moscow’s 23rd Hospital, COVID-19 patients entered through several channels and found themselves in various treatment departments. Despite the fact that a separate block of the hospital was being prepared for COVID-19 patients, a significant number of young doctors contracted the virus. The hospital administration pressured its staffers not to take medical leave, and this pressure in part increased the number of virus-stricken doctors. Nevertheless, the doctors were not registered as “COVID-19 workers”: the workers did not receive security guarantees or financial compensation for their risks.

Infected doctors must continue to work for two reasons: to sustain “good” statistics, as information on their illness can hurt the hospital’s chief physician due to fines or penalties, and out of fear of being fired for the spreading the information in question. Moreover, doctors of different specializations often find themselves under the conditions of growing financial inequality, and the lack of inter-department cooperation protocols further undermine stability. Payment for treatment of COVID-infected patients is higher than for the treatment of other patients facing conditions like a cold or pneumonia. Nevertheless, not all doctors working with these patients receive adequate financial compensation, and doctors in state clinics are forbidden to continue any other medical practice.

Because of the low level of public trust in Russia’s health system, we now also face an incredibly low level of trust when it comes to doctors. This is evidenced by the growing number of lawsuits against doctors who supposedly infected their patients. In Russia, COVID-19 activated a culture of non-disclosure, contrary to the perspective of bioethics that Dan Callahan, founder of The Hastings Center, defines as foundational and conversational. According to Callahan, “bioethics has to ask hard, even nasty questions.…It shouldn’t be troublesome just for the sake of being troublesome, but because the very nature of ethics requires that it ask hard questions, they always bring trouble” (1993). In Russia, we see the rise of the “ethics of silence” and the dominance of the non-disclosure culture. The main problem for the doctor is the “pressure triangle”: the hospital administration; the threat of criminal charges from the state; and displeased patients and their relatives who may threaten lawsuits. In Russia, the culture of non-disclosure and the lack of a proper structure for clinical bioethics led to doctors, as a social group, becoming even more vulnerable during this pandemic.

We argue that there are three main epidemic-aggravated barriers in modern medicine in Russia. First, medical errors are a part of criminal law and therefore never should be acknowledged. It means that keeping all medical information as a secret is a part of doctor’s corporate code of behavior, a sort of life-keeping model. Second, we do not generally withdraw ventilators because it is considered euthanasia, which is forbidden.[1] Third, we have a different culturally-rooted meaning of the basic bioethical concepts. For example, among physicians we may find the point of view that medical ethics is aimed at avoiding patient complaints, and it is not connected to the idea of respect of patient’s autonomy. The last commitment led to the practice where clinical bioethics in the ICU is within a psychiatrist’s scope of responsibility. In the ICU, typically no one will ask a conscious patient about his agreement to use ventilators. Usually, physicians consider this treatment as a part of “life-saving” behavior. If a patient is against ventilators, according to the law, he may sign a refusal of this procedure, but the ICU team may ask a psychiatrist to check the patient. When this consultation is finished and the psychiatrist diagnoses the patient with depression, the patient will be intubated and prescribed antidepressants, using the psychiatrist’s permission. Based on the history of medicine in Russia, we believe that these barriers are rooted in the fear that physicians may be put in prison if a patient dies.

Additionally, three important factors contribute to viewing physicians as a vulnerable group in Russia: lack of personal protective equipment; violations of the labor rights of doctors (e.g., labor contracts for special working conditions are not provided and signed); and the fear of not receiving payments after dismissal. Today, the position of a doctor in Russia differs little from that of a doctor in the USSR and in Russia in the 1990s. Despite ongoing reforms, the social status of the doctor has not changed (Saks 2015). There were no conditions for the emergence of an independent union of healthcare professionals or an independent expert association of doctors able to assert their rights and focus attention on medical ethics. Additionally, these physicians face significant moral pressure. Doctors may fear the inability to help everyone, and they may feel pressure from extreme work exhaustion and lack of equipment. Lastly, they may have inadequate information and fear legal consequences at every turn; pressure also stems within the system from chief physicians, who can fire them for refusing to follow oral orders that violate the law. All of these factors force us to think about the high vulnerability level of doctors both as a professional and social group. The factors challenge us to speedily introduce clinical bioethics practices within Russian hospitals. This introduction will allow for significant relief for physicians and nurses throughout all levels of healthcare.

CONCLUSION

The impossibility of consolidating our panic-stricken society, the activation of Soviet patterns, the absence of joint collaboration between doctors, and the lack of bioethics specialists—these factors led to the current social tension and conflict during the pandemic. Undoubtedly, it would be fair to say that public health ethics is in permanent conflict with clinical ethics. However, in Russia—with its notable lack of a civil society and respect of human rights—this conflict assumes totally different forms. Although self-isolation, quarantine, and digital pass measures have been put into practice globally, these measures, in Russia, provide a unique opportunity for tightening state command. These measures resurrect patterns from the Soviet-era control and discipline but with newly equipped unique IT technologies. The easy introduction of the ethics of silence into public discourse was possible due to the “forms of secrecy” that have been gradually imposed since the mid-2000s. These forms of secrecy are now gaining in massive scale because of the pandemic. Moreover, the general “wartime” discourse has minimized the values of individual rights from the public mind, quietly bringing to life the Soviet ideals of duty and state’s monopoly on differentiating the population’s rights to access resources. In 2020, we definitively see that Western bioethics is absent in Russian practice.

Modern Russia clearly exhibits the old and well-known conflict between the healthcare system on one end, which remains largely state-controlled and paternalistic, and the professional medical community on the other. The independence of the latter is fully subsumed into the Soviet concept of medical deontology. Duty is seen as a level of socially restricting freedom of action and the base for moral responsibility in a model that is maximally-far from reality (with its ban on defending individual, personal interests). The healthcare professional received the status of state employees in wartime, without the rights to violate the orders and regulations or to oppose their superior. Just like 30 years ago, the Russian healthcare system does not account for the doctors’ independent professional practice, where a physician has the right to make his or her own decisions in various circumstances. Medicine became the “safeguard” of Soviet ethics of professional duty, professional duty having the connotation that “duty as well as the greater good is the goal,” both of which are determined by the state.

Simultaneously, the state began operating as the arbiter that enacts social control but does not dictate responsibilities; instead, it limits social interaction and communication. With the absence of bioethics, doctors found themselves in a very vulnerable position: they are forced to abide by the epidemic’s behavioral norms, imposed by the authorities. At the same time, the doctors are considered guilty for failing to fight the virus. The medical vulnerability of doctors is also evident, because of the high-infection rate among them and the lack of information on the subject (which merely proves the vulnerability of their position). The facts we examined do not give us any ground to believe that there is currently a bioethical discourse or a public dialogue aimed at social solidarity, which is seen in the United States, where bioethicists and healthcare leaders are looking for a joint solution to the problem. State officials in Russia, having taken on the external forms and terms of the WHO, filled them with Soviet instructions—leaving the doctors as the “guilty” and vulnerable group.

In Russia, people often discuss the traditions of the national medical ethics and deontology. Yet the controversies and memory wars surrounding the social history of the last century do not provide much hope for the monolithic perception of this phenomenon and its national exclusiveness. The fight against the epidemic uncovered the discourse divide in social meaning and bioethical projections between the Russian public healthcare practice within its clinics and practices globally. Currently, there is a risk that decisions will be made for expedience by separate agents, bypassing normal routes of consideration. Under these circumstances, we depend on the ties and interactions within the global bioethics community, striving for the swift development of an institution responsible for “clinical bioethics.” This will allow us to both provide the transparency in the field of medical aid and defend the interests of both doctors and patients.

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[1] Federal law 323, Article 45: “Medical workers are prohibited from carrying out euthanasia, that is, accelerating, at the request of the patient, his death by any action (inaction) or means, including the termination of artificial measures to maintain the patient’s life.”

Special Issue

Structural Stigma, Legal Epidemiology, and COVID-19: The Ethical Imperative to Act Upstream

Daniel S. Goldberg

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. The primary claim of this paper is that COVID-19 stigma must be understood as a structural phenomenon. Doing so will inform the interventions we select and prioritize for the amelioration of such stigma, which is an ethical priority. Thinking about stigma as a macrosocial determinant of health driven by structural factors suggests that downstream remedies are unlikely to be effective in significantly reducing stigma. This paper develops and defends this claim, setting up a recommendation to use a “bundle” of legal and policy levers at meso- and macro- levels to reduce the adverse and inequitable impact of COVID-19 stigma. In Section II, this commentary offers a basic account of the concept of stigma in general, the justification for conceptualizing it as a structural phenomenon, and some of the basic advantages of doing so. Section III moves on to frame infectious and communicable disease stigma in Western history not only as a way of demonstrating its structural features, but also to highlight the use of laws and policies as levers for public health change. Section IV urges explicit adoption of insights and methods from legal epidemiology and offers examples of specific legal and policy recommendations for addressing these stigmas. Section V concludes.

I. INTRODUCTION

The primary claim of this paper is that COVID-19 stigma must be understood as a structural phenomenon. Doing so will inform the interventions we select and prioritize for the amelioration of such stigma. Thinking about stigma as a macrosocial determinant of health driven by structural factors suggests that downstream remedies are unlikely to be effective in significantly reducing stigma. This paper develops and defends this claim, setting up a recommendation to use a “bundle” of legal and policy levers at meso- and macro- levels to reduce the adverse and inequitable impact of COVID-19 stigma.   

Historians of public health have long pointed out that outbreaks of communicable disease track social fault lines (Rosenberg 1992; 2009; Tomes 1999; Leavitt 1997; Kraut 1994). Epidemics illuminate stratifications, particularly among axes of power and social capital. Unsurprisingly, these demarcations often seem to intensify preexisting stigmas against marginalized and disadvantaged communities. Why outbreaks of communicable disease such as the COVID-19 pandemic seem to intensify preexisting stigmas so reliably is an important question this paper will explore. Nevertheless, there is little dispute that such stigmas are pernicious and virtually any ethic worth the name will provide a basis for the remediation of a pandemic- or epidemic-related stigma.

Yet there is something of a puzzle in this. Stigma is unlike most ethical quandaries in applied ethics, for it is generally not a social phenomenon on which reasonable people of good conscience differ. It is rare for a person to explicitly “stand up for stigma.” And yet all evidence suggests that it is a painfully common social experience, especially in encounters with health professionals. How can we explain this? Moreover, while the pressing question is obviously ‘how can we remediate stigma,’ an insufficient or shoddy conceptual grasp of stigma will lead to inadequate and ineffective interventions (Goldberg 2017).

The stigma that has followed the COVID-19 pandemic has thus far proven no exception to the history of epidemic-related stigma. Racial animus has tracked COVID-19 in virtually every society that has experienced outbreaks. Some of this animus has appeared as explicit, person-centered invidious racism. However, structural or institutionalized racism is also readily apparent in the devastating inequalities in COVID-19 prevalence, incidence, and severity. Perhaps unsurprisingly in a society “stamped from the beginning” with deeply entrenched racism (Kendi 2016), these inequalities have arguably been most apparent in the US.

In Section II, this commentary offers a basic account of the concept of stigma in general, the justification for conceptualizing it as a structural phenomenon, and some of the basic advantages of doing so. Section III moves on to frame infectious disease stigma in Western history not only as a way of demonstrating its structural features, but also to highlight the use of laws and policies as levers for public health change. Section IV offers examples of specific legal and policy recommendations for addressing these stigmas. Section V concludes.

II. STIGMA AS A STRUCTURAL PHENOMENON[1]

Most people experience health and disease stigma in an intersubjective context. Common sources of such stigma include public health and healthcare encounters, both in and out of formal clinical contexts. (The majority of healthcare work in the US occurs in informal and family caregiving settings, and family caregivers are unfortunately also active sources of health stigma.) Because the experience of stigma typically occurs in “local moral worlds,” this gives rise to the idea that stigma is fundamentally a product of these micro-level encounters. This is an illusion, albeit an understandable one. Stigma is a function of macrosocial, upstream factors. Both the concept and the empirical evidence of stigma support this claim.

For convenience, Link and Phelan’s (2014) five-component conceptual model of stigma can be distilled into two main aspects (without doing too much violence to the model): Difference + Deviance. Under the Difference phase, an ingroup marks an outgroup as different on the basis of a shared demographic characteristic. This branding is necessary but not sufficient to complete the stigma process. Instead, the ingroup must move on to judge the outgroup as deviant or inferior on the basis of that identifiable demographic characteristic (the Deviance phase).

While this account oversimplifies the process of stigma, it nevertheless generates several important points. First, while in theory it is possible to “arrest the stigma train” by preventing ascriptions of Deviance, the history of disease stigma in the West makes clear that, especially in cases of infectious disease, marking of Difference is inevitably followed by ascriptions of Deviance. That is, when we mark out a group as Different on the basis of a shared demographic characteristic, it is typically only a matter of time before we begin to ascribe Deviance to the outgroup on the basis of that characteristic. Hence, for example, the proposals to extend so-called immunity certificates, passports, or licenses to people who have COVID-19 antibodies on serological testing should trigger heightened normative scrutiny (Greely 2020; Kofler and Baylis 2020; Persad and Emanuel 2020), as by definition they mark out a group of people as different and overtly diminish their social status as a result. It does not follow that such proposals are ethically improper from the outset, but rather that given the immense harms that flow from linking social benefits and status to disease state, we should proceed with extreme caution in intentionally instantiating such processes in law and social policy.

Second, stigma is a function of social power (Phelan et al. 2014). The conceptual model demonstrates this: for an ingroup to make an outgroup as Different, the ingroup must be “in,” while the outgroup must be “out.” Social life is complicated, and most people belong to both ingroups and outgroups (and there are outgroups within ingroups and vice versa). But what happens when a person has the misfortune of belonging to many more outgroups than ingroups? On the basis of the model alone, we would predict that such a person is both much more likely to experience stigma, and to have the adverse consequences of that stigma—what Link and Phelan refer to as “stigma power” (2014)—be more severe.

There are two metaphors that can further illuminate what it means to take stigma as a structural phenomenon. The first is the idea of a script. Scripts are essentially habituated or routinized behaviors that are commonly deployed in various social contexts (Buchbinder et al. 2016; Gioia and Poole 1984). For example, in the US, the end of a meal at a restaurant commonly triggers the script of ‘asking for the check.’ Scripts are neither fate nor destiny. They are nevertheless dominant schemata that strongly influence behavior in certain contexts and in response to certain cues.

As noted above, stigma often does not generate significant moral disagreement. How many health workers wake up in the morning and decide that their day will be complete once they have effectively stigmatized six to eight people? And yet stigma is distressingly common in health- and disease- related contexts. We cannot make sense of this commonality of stigma absent—and sometimes even despite—any intentions to stigmatize people unless we expressly conceive of it as structural. Because stigma is shaped by social power and unequal access to it, social structures and institutions sustain and fuel the scripts through which stigmatizing behavior is enacted. Such structures can be physical, as in the case of the built environment—e.g., clinical spaces with chairs, tables, or gurneys that cannot accommodate fat people. They can also script interactions beyond the built environment, such as clinical intake forms that feature two boxes for gender identity. In the latter case, we could assume arguendo that the empowered parties who create and use the form do not explicitly hate gender nonbinary, gender-fluid, or genderqueer people. Rather, their behavior is scripted by upstream social structures that render such communities invisible; but like most structural phenomena, the adverse impact on marginalized and oppressed social groups persists in the absence of invidious intent.

The second metaphor that may be useful here is the idea of the background and set in a play, drama, or musical. Stagecraft professionals know that the background has an enormous effect on the construction of meaning in any theatrical performance. How the audience interprets dialogue and character, the mood, the tone, etc., are heavily influenced by the background and the set. However, the audience becomes so engrossed in the spectacle of the performance, often enough it ceases to consciously perceive the background (unless the audience expressly trains their perception on it). The rub, of course, is that the background and set continue to exert significant influence on the audience’s experience even when not explicitly perceived.

Disease stigma is often hegemonic (Burris, Kawachi, and Sarat 2002). It is frequently part of the social backdrop, invisible and perceived as natural and sensible, especially when inscribed and reified in important social institutions. In a 1993 paper, Australian healthcare workers reported that they thought people with type 2 diabetes experienced relatively little stigma, ranking it among the four lowest sources of disease stigma (Westbrook, Legge, and Pennay 1993). Similarly, in a 2013 review, people who did not live with the illness generally did not perceive it as an active nexus for stigma (Schabert et al. 2013). However, in a follow-up paper, researchers asked Australians who do live with type 2 diabetes about their lived experiences of stigma. Of the participants, 84% reported experiencing diabetes-related stigma.

Stigma is structural. It is a creature of social power, and is driven by the same upstream, deeply-rooted factors that determine distributions of power and social capital. Because stigma is fundamentally connected to power, the social spaces in which stigma occurs typically feature a number of intersecting stigmas. In few contexts is this as apparent as in the case of epidemic disease. The history of epidemic and pandemic disease shows how prominent stigmas tracking race, alienage, and disability are especially common in the West. In fact, the explicit stigma directed against Asian-Americans in the US during the COVID-19 pandemic has a close precedent over a century earlier, in San Francisco.

III. PLAGUE AND PREJUDCIE IN EARLY TWENTIETH-CENTURY SAN FRANCISCO

Outbreaks of infectious disease track existing social prejudices. While this is unsurprising, it does underscore the benefits of conceptualizing stigma as rooted in the same factors that drive networks of power and capital in society. Perhaps most relevant to the contemporary COVID-19 pandemic are two outbreaks of bubonic plague that occurred in San Francisco in 1900 and 1907, respectively (Risse 2012; Shah 2001; McClain 1988; Kalisch 1972). Anti-Asian racism in the US obviously antedated the plague outbreaks; infectious disease stigma typically amplifies various preexisting stigmas. Joanna Trauner (1978) classifies six forms that virulent anti-Asian racism of the last quarter of the nineteenth century typically followed: Economic, Cultural, Assimilationist, Explicitly racist (white homogeneity), Biological, and Medical.

White Americans expressed economic anxieties that East Asians would take their jobs. They denigrated the traditions of East Asian peoples, declaring their cultures less civilized and more primitive than that of White Americans. Americans doubted that East Asian immigrants would ‘properly’ assimilate into dominant culture, and sometimes expressed overtly racialized concerns that East Asian immigrants would dilute the (mythical) White homogeneity of the US. Over the long nineteenth century, public health activities centered on municipal boards of health expanded in scope (Warner and Tighe 2001; Duffy 1992). This increased authority converged with the increasing organization and professionalization of allopathic medicine (Starr 1982). The language and augmented social, legal, and political authority of medical and public health officials created an atmosphere in which physicians and public health leaders issued bromides against Chinese-Americans based on ideas of inferior biology—that because they were of less hardy ‘stock’ than White Americans, they were more susceptible to illness and disease. The increasing influence of scientific racism and American eugenics also shaped some of these biological arguments. Finally, even those who doubted the merits of the biological arguments often suggested that the particular conditions in which East Asian immigrants lived made them both more susceptible to disease and more likely to spread it. While this last claim can form the basis of a structural account of the effects of deprivation and racism, the “medical” argument was more commonly used to suggest East Asian communities and people were responsible for their living conditions.[2]

One critical idea that has significant implications for COVID-19 stigma is that racialized stigmas about infectious disease easily crossed causal theories during this time period. In the middle decades of the nineteenth century, the miasma theory still dominated causal attributions of infectious disease. Thus, contemporaries spoke of the “foul and disgusting vapors in Chinatown” and referred to it as a “laboratory of infections” (Trauner 1978). By the late 1890s and into the first decade of the twentieth century, the germ theory of disease had taken sufficient hold among physicians and public health officials. Yet racism and racialized ideas of plague and infectious disease easily crossed these different causal theories. This fact is unsurprising given that stigma is fundamentally structural. That is, there is almost nothing in the structural model of stigma that connects the existence of health and disease stigma to scientific and health illiteracy. Stigma is not even mostly a function of ignorance. The godfather of stigma studies, Erving Goffman, observed that people who live close together for centuries can know each other intimately and nourish mutual hatred and stigmatization (1963, 63). Historian Andrea Patterson (2009) has ably documented how advances in microbiology in the Progressive Era were easily assimilated into existing racisms in the Jim Crow South. Thus, the evidence that familiarity or technical understanding is an enduring, robust anti-stigma intervention is weak. Similarly, while there may be good independent reasons to educate people on the scientific and epidemiologic facts regarding COVID-19, there is little reason to mark such education as an effective anti-stigma remedy. Stigma is a creature of social power. Ignorance may in some circumstances exacerbate its prevalence and impact, but it is a serious conceptual mistake to think that remediation of such ignorance is a promising pathway to ameliorating COVID-19 stigma. This argument reinforces a point made earlier: If we do not understand the concept of stigma the interventions we design and prioritize to ameliorate it will almost certainly be less or even in- effective.

In 1880, well before plague struck San Francisco, the municipal health board declared the entire neighborhood of Chinatown a public nuisance (Risse 2012). Public health law scholars have argued that nuisance law can be a powerful form of public health governance (Gostin and Wiley 2016), as well as one that can be used to enact and intensify racial stigma (Godsil 2004). Indeed, laws regulating space and geography, such as housing, provide an effective and horrifying example of the ways in which racism structures power and resources against African-Americans in the US—with devastating health consequences (Osypuk and Acevedo-Garcia 2010; Bolin, Grineski, and Collins 2005). In 1896, the health board enacted a maritime quarantine against all Chinese and Japanese passengers. On March 6, 1900, an autopsy confirmed bubonic plague as the cause of death of a Chinese-American man.

The very next day, the health board drew a sanitary cordon around Chinatown, targeting about ten to fifteen thousand people inside its boundaries. Officials began to cordon off the neighborhood with barbed wire. Further details of this cordon, as well as the plague outbreaks of 1900 and 1907, are critical, and are covered in a rich and compelling historiography (Risse 2012; Shah 2001; McClain 1988; Kalisch 1972). For purposes of this commentary, it is especially important to note how public health law easily mediates preexisting stigma and racism (Burris 2002). Indeed, given the fact that law and social policy are more upstream social structures, it would be shocking indeed if they did not instantiate such stigmas (Goldberg 2017; Burris 2002). On March 22, 1900, the health board announced that (1) Chinatown was infected with plague, (2) Chinese people were concealing the scope of the disease, and (3) the media was suppressing news of the plague. The second and third of these claims should feel depressingly familiar to contemporary observers, which demonstrates why understanding history is so important to clear thinking in public health ethics, policy, and law: what is new is old.

In the upcoming weeks and months, various states and Canadian provinces quarantined California. In May 1900, President McKinley barred Chinese and Japanese people from traveling outside the state. The health board’s official public health orders declaring the involuntary quarantine of Chinatown became effective in late May, and almost immediately thereafter, a Chinese-American man named Jew Ho filed a lawsuit that formed the basis of the critical case of Jew Ho v. Williamson, 103 F. 10 (N.D. Cal. 1900).

Jew Ho is a hugely important case in the history of public health law in the US. The plaintiff faced an uphill challenge in prevailing. Although the full scope of state authority to regulate in the name of public health would not be established until the US Supreme Court’s 1907 decision in Jacobsen v. Massachusetts, there was little doubt even in 1900 that the state’s authority to regulate, especially in a public health emergency, was vast. The district court explained that

this court will, of course, uphold any reasonable regulation that may be imposed for the purpose of protection the people of the city from the invasion of epidemic disease. In the presence of a great calamity, the court will go to the greatest extent, and give the widest discretion, in construing the regulations that may be adopted by the board of health or the board of supervisors.[3]  

Indeed, as the COVID-19 pandemic illustrates, the scope of a state’s police power to regulate in the name of public health, especially in dealing with an epidemic disease, is immense. The breadth of state power in the US federalist system is arguably the basis for the study of public health law in the US—the expansive state powers can and have been used for great ill as well as for good, and balancing a commitment to individual rights and social justice with needed actions in the name of public health is a fraught and difficult endeavor (Gostin and Wiley 2016; Wiley 2012).

Yet, the court noted in Jew Ho, there are limits to those powers even in the face of an outbreak of communicable disease. The court expressed particular concern over the inefficacy of the cordon. There was no indication that plague was strictly confined to Chinatown; the cordon would be likely to intensify the outbreak, putting virtually everyone in the city in greater danger. Moreover, the court also noted the invidious racism of the law:

The evidence here is clear that this [law] is made to operate against the Chinese population only, and the reason given for it is that the Chinese may communicate the disease from one to the other. That explanation, in the judgment of the court, is not sufficient. It is, in effect, a discrimination, and it is the discrimination that has been frequently called to the attention of the federal courts where matters of this character have arisen with respect to Chinese.[4]

The court observed that the public health order specifically exempted dwellings within the cordon owned by White people and concluded that this was indisputable proof of the explicit racism embodied in the law. Ultimately, the court invalidated the law, concluding that it was “unreasonable, unjust, and oppressive,” and violated the Equal Protection Clause of the US Constitution.

The plague outbreaks in San Francisco in the early twentieth century, as well as Jew Ho, offer several important lessons for thinking about COVID-19 stigma and our ethical obligations to remedy such stigma. First, explicit racial stigma against people of Asian descent given an outbreak of epidemic disease in the US is not new. Second, public health law is a frequent and often effective prism for channeling preexisting stigma against marginalized and oppressed groups, especially along the axis of race. Third, where public health is a mediator of racial stigma, it can be wielded for good as well as for ill. Although the weight of history suggests law and social policy all too frequently are utilized to intensify racial and disease stigma, Jew Ho illustrates that they can also be used to ameliorate the impact of such stigma. As Blake and Hatzenbuehler (2019) recently suggested, antidiscrimination and civil rights law in particular, if enforced, are powerful vehicles for remedying stigma at the structural level. Moreover, using law and social policy to combat stigma is a high-priority anti-stigma intervention precisely because laws are upstream, macrosocial structures that can exert an enormous influence on behavior if not on norms.

Historians such as Randall Packard (1989) and Saul Dubow (1995) have also documented another excellent example of the structural connections between infectious disease stigma, racism, and law, this in modern South Africa. There, White settlers and medical authorities drew on similar ideas of biological inferiority and physiological differences “in explaining the apparently higher susceptibility of Africans to disease” (Packard 1989, 196). Moreover, medical officials used these racialized concepts of disease to initiate processes of residential and physical racial segregation (ibid., 195). Public health and sanitary laws were then enacted that codified these geographies, as Harriet Deacon has noted: “public health legislation for plague control permitted more systematic residential segregation of Africans from whites in many Cape towns in the early twentieth century” (1996, 289). And Susan Parnell explains how South African capitalists used public health legislation to “export British planning practices … [to] nurture the emerging racial and class differences” (1993, 472). Parnell also documents the explicit intention of Dr. Charles Porter, the powerful medical officer of health for the city of Johannesburg, to base town planning laws almost entirely on the public health justification for racial segregation (ibid). 

Ultimately, if stigma is an independent social determinant of health, and if law is a structural anti-stigma mechanism, it follows that law is a social determinant of health. The empirical evidence overwhelmingly supports this claim. Law is a powerful social determinant of health (Hoss 2019; Burris 2011). This fact has significant implications for priority-setting in countering COVID-19 stigma.

IV. LEGAL EPIDEMIOLOGY AND THE USE OF PUBLIC HEALTH LAW AS ANTI-COVID-19-STIGMA MECHANISMS

Legal epidemiology is “the scientific study and deployment of law as a factor in the cause, distribution, and prevention of injury and disease in a population” (Burris, Cloud, and Penn 2020, S4). In the field, laws are regarded as epidemiologic exposures. Consider the subfield of social epidemiology, which focuses on the links between socioeconomic conditions and population health outcomes. Pioneering social epidemiologist Nancy Krieger has developed the idea of embodiment, through which both salubrious and deleterious socioeconomic conditions become literally embodied in ways that powerfully determine health across the life span (Krieger 2005). It is axiomatic among social epidemiologists that laws and social policies, or their absence, is a primary mechanism through which affluence or deprivation becomes embodied. Thus, robust social welfare policies that protect the least well-off and buffer the impact of structural deprivation can limit the extent to which these conditions diminish health.

If laws and social policies are such powerful mechanisms for channeling the enormous impact of social conditions on health and its distribution in human population, it follows that the laws and policies themselves can fairly be regarded as epidemiologic exposures akin to any other (e.g., toxicants, tobacco, hazardous working conditions). Even so, until very recently laws and policies were not studied using prominent methods in epidemiologic science. One obvious reason for this lacuna is that studying law in this way requires inter- and transdisciplinary approaches (Burris et al. 2016); lawyers and legal scholars are not traditionally equipped with the needed epidemiologic and methodological training, and epidemiologists do not typically maintain legal expertise. A second reason is that studying law as an epidemiologic exposure is methodologically difficult. Polities are not closed systems, and given the myriad confounders, it is difficult to show how a change in a law caused a particular health outcome.

Nevertheless, there is every reason to believe that changes in laws and social policies do cause particular health outcomes, which makes the study of legal epidemiology worthwhile and important. While the emerging field has come relatively far in its short existence, the use of legal mechanisms to combat stigma at the structural level remains incipient. The vast majority of anti-stigma mechanisms remain targeted at downstream manifestations, and are plagued by what I have referred to as “methodological individualism” (Goldberg 2012). Methodologically individualist approaches see the individual as the primary unit of change, and there is excellent evidence that interventions characterized by such an approach tend to be ineffective (ibid.). While anti-stigma interventions focused on changing individual attitudes, practices, and beliefs do show some anti-stigma effects (Corrigan et al. 2001), these effects are both modest and transient (Gronholm et al. 2017).

This observation itself underscores an important point: whether a given intervention reduces COVID-19 or any other kind of stigma is an empirical question.[5] Public health and social science has many validated scales that can be used to measure stigma, and anti-stigma interventions should be rigorously evaluated for impact. Such interventions should also be evaluated for specificity—are they overtly directed at alleviating stigma or is that simply an expected co-benefit?

Wicked problems like stigma, especially in the face of a terrifying pandemic, are unlikely to be resolved by a single approach or intervention. Instead, what is required is a policy bundle that integrates a number of different interventions in the hopes of reducing the devastating impact of infectious disease stigma that so commonly tracks race, class, gender, and disability status. Within this bundle, there is room even for methodologically individualist interventions that demonstrate efficacy. However, it would be unethical for empowered moral agents to rely on such interventions alone, and at least ethically suboptimal to prioritize such interventions over interventions that are targeted at upstream, macrosocial structures (Goldberg 2012). Legal epidemiology suggests that law- and policy-centered approaches are promising because they are more closely connected to the root structural factors driving the stigmas that operate in the social space of epidemic disease. What might such laws and policies look like?

Yet again, understanding stigma as structural can be of assistance. There is no shortage of invidious, person-centered racism that COVID-19 has activated. At one point in mid-March, the advocacy group Stop AAPI Hate had documented more instances of anti-Asian-American racism (over 1,100) than COVID-19 deaths in the US. Explicit antisemitism has also waxed, with blood libel accusations in France that Jews were once again poisoning the proverbial wells, and ultra-Orthodox Jews in Brooklyn being shamed and beaten for congregating in small groups. The mayor of New York City came under significant criticism for angrily denouncing crowds of Jews gathering to mark the COVID-19 death of an important rabbi while he said little publicly about the many gatherings of non-Jewish people occurring contemporaneously in the city.

But stigma is insidious. It tracks existing networks of social power and deprivation, and therefore structural and institutional racism has made a powerful imprint on the course and impact of COVID-19 across and within the US in particular. The terrible inequalities in the prevalence, incidence, and severity of COVID-19 especially on Black and Brown people must be centered in any conversation on COVID-19 stigma and racism. The statistics are horrifying (Table 1).

Table 1 (data sourced from The COVID Racial Data Tracker, https://covidtracking.com/race)

State Black or African- American alone    
  % of Population % of Positive Cases % of Deaths
Michigan 14.10 39.02 42.94
Louisiana 32.70 56.73
Arkansas 15.70 38.83 37.93
Kansas 6.10 13.66 32.47

In Michigan, African-Americans comprise 39% of COVID-19 cases and 43% of deaths, despite making up only 14% of population. In Louisiana, data from early April indicated that African-American people constituted 57% of the deaths from COVID-19 (they make up 33% of the population). Similarly large differences for African-Americans are evident in Arkansas and Kansas, and for positive cases among Latinx populations in Colorado, Illinois, Minnesota, and Massachusetts (Table 2).

Table 2 (data sourced from The COVID Racial Data Tracker, https://covidtracking.com/race)

State Hispanic or Latinx Alone    
  % of Population % of Positive Cases % of Deaths
Colorado 21.70 40.84 17.32
Illinois 14.60 24.28 32.40
Minnesota 6.80 27.74 7.25
Massachusetts 8.90 15.44 9.20

And then there is the toll COVID-19 is taking on Indigenous Peoples in the US. At the time of this writing, the Navajo Nation has the highest per-capita rate of positive COVID-19 cases in the US. According to a recent Washington Post article, “One-third of the homes across the vast, dry reservation don’t have running water, forcing families to haul it in. Many in close-knit Navajo communities live in crowded houses where self-quarantine is impossible, and many must drive hours to the nearest grocery store” (Fonseca and Sullivan 2020). Native Americans make up about 10% of the overall population in New Mexico and account for 59% of the cases.

Although racial health inequalities are increasingly well-reported and well-documented, it is vital to see these inequalities as a product of the same kinds of structural stigma and racism discussed in this paper. The invidious, explicit bigotry directed at Asian-Americans and people of Asian descent in the US is racism. But racism is also the inequitable morbidity and mortality of COVID-19. The former is more likely to be individual and person-centered. The latter is structural and institutionalized, but no less a manifestation of stigma power.

In mid-March 2020, a Native American health center in Washington state requested needed personal and protective equipment (“PPE”) from state and federal agencies. In early May, the health center received: a box of body bags (Ortiz 2020). Indigenous health leader Abigail Echo-Hawk noted that “this is a metaphor for what’s happening” and asked “are we going to keep getting body-bags or are we going to get what we actually need?” (ibid.). The 2007 documentary film Unnatural Causes explicitly addressed the ways in which the attempted genocide of and historical racism directed at Native Americans caused the staggering inequalities in type 2 diabetes among the Tohono O’odham. The film notes the influence of the Coolidge Dam in diverting the water of the Gila River, which Native peoples had relied on for centuries. The racism here is literally embodied in a structure, but its downstream impacts are no less evident in the flows of COVID-19 at the present and its impact on Native Peoples and communities.

As noted above, a given intervention’s efficacy in countering stigma is an empirical question. Micro-level approaches are needed but are almost certainly insufficient. Meso- and macro-level approaches are more difficult to design and implement, but are likely to have much greater impact in reducing disease stigma and the linked stigmas that infectious disease typically intensifies in times of epidemic and pandemic. Blake and Hatzenbuehler’s (2019) recent article suggests antidiscrimination and civil rights laws as fruitful vehicles for macrosocial change. Similarly, researchers led by Nancy Krieger (Krieger et al. 2014) have documented the health impact of federal civil rights laws in the Jim Crow South. However, the time horizon for enacting such laws, especially on the federal level, is long indeed, and may depend significantly on the vagaries and preferences of administrations and political power. Even on the individual state level, the time horizon for such changes may be lengthy.[6]

In contrast, meso-level law and policy structures represent a promising pathway towards addressing structural stigma in a shorter time frame than that required to change laws and policies at the highest levels. Every health-oriented organization has local policies; some, like local health departments, have lawmaking power as well. These policies and laws can have an enormous influence on the extent to which a person touched by the given organization experiences stigma and racism. Some such interventions will require that lawmaking authority, as in the City of Reykjavik’s 2016 decision to change its Human Rights Policy to make weight a protected category (City of Reykjavik 2020). But even absent such authority, within the bounds of existing laws and regulations, health systems are empowered to change their own policies as they see fit. As to COVID-19, and for example, policies could be issued in ways that encourage appropriate language use, especially when care teams are serving people of color. This should not be understood as the mere policing of language; the power of naming is enormous, and the philosophy of language establishes beyond question that language is a primary conceptual scheme. Unsurprisingly, language is also powerful freight for stigma and racism, and therefore intentional changes in language can ameliorate structural stigma and racism (they can also perpetuate such stigma, as in the continued insistence in referring to the novel coronavirus as the “Chinese virus”). Decades of data also document the ways in which people of color’s testimony regarding their own illness symptoms are typically invalidated, disbelieved, and de-legitimized (Buchman, Ho, and Goldberg 2017). Scouring policies and guidelines for protocols that instantiate and sustain these cultures of epistemic injustice can help counter structural stigma and racism; a health system could, for example, issue a guideline reminding care teams that complaints about shortness of breath, fatigue, or pain must be trusted as prima facie valid even in the absence of laboratory findings that enable clinical correlation.

But meso-level approaches can also be used in ways that address the structural racism that drives racial COVID-19 inequalities. In partnership with states, local governments can change zoning and housing ordinances, suspend eviction proceedings and utility shut-offs, and minimize law enforcement activities against vulnerable populations for people experiencing homelessness and housing insecurity (Benfer and Wiley 2020). Local governments can schedule administrative hearings and agencies can issue findings. Table 3 summarizes some of the suggested meso-level approaches that embrace law and a policy as tools to alleviate structural stigma.

Table 3 Meso-Level Anti-Stigma Law/Policy Interventions by Sector

  Sector    
  Public (w/ lawmaking authority) Private  
Intervention Changing town/city charter Changing language policies  
  Changing municipal/county ordinances Changing forms, records, and associated protocols  
  Holding hearings Changing org policy guidelines for specific anti-stigma clinical practices  
  Issuing legislative or agency findings Changing hiring, promotion & retention policies  
  Strengthening existing antidiscrimination policies Strengthening existing antidiscrimination policies  

Law is a social determinant of health. The measurement of law as an epidemiologic exposure remains incipient, and this is certainly true with regard to structural stigma. Although stigma has been measured for decades, the unit of measurement has consistently been the individual, with group-level data obtained by aggregating measurements of individuals. While this method is both valid and useful, it is not truly a measure of stigma at the structural level. Different tools are needed to evaluate whichlaws and policies promote stigma and which inhibit it. Data like these can then be integrated in the design of laws and policies that promise greater efficacy in the remediation of structural stigma. 

V. CONCLUSION

Having accurate concepts of given health problems is crucial for designing, implementing, and delivering interventions for their remediation. Where a problem is misapprehended, the likelihood diminishes that the intervention will improve the problem substantially and/or with enduring effects. This is almost certainly the case with stigma, which has typically been measured in health contexts via methodologically individualist techniques.

Stigma is an independent social determinant of health, and like most such determinants, is primarily driven by upstream, structural factors connected to historical patterns of domination, subordination, and oppression. Interventions for stigma must therefore act on the structural level, even as part of a policy bundle that should include meso- and micro-level remedies. Legal and policy mechanisms are especially promising interventions precisely because they are often themselves upstream structural factors in producing health and its distribution. While, all too often in US history, laws and policies have been used to intensify preexisting stigmas during infectious disease outbreaks, the fact that public health law mediates stigma means it can be harnessed to ameliorate stigma. The basic insight at the core of legal epidemiology can help stakeholders harness the power of law and policy: law is a social determinant of health. It can be measured and assessed for its impact in promoting or inhibiting stigma, and such data can then be deployed in the design and implementation of law and policy approaches that promise greater efficacy in the remediation of structural stigma.

Although this analysis and approach can be utilized against virtually any form of health- and disease-related stigma, epidemic disease typically intensifies preexisting prejudices and stigmas that intersect with the disease stigma itself. COVID-19 is only the latest example, and shows well how outbreaks amplify both person-centered, explicit racism and the structural, institutionalized racism that is responsible for racial health inequalities in the US. Where stigma and racial animus are functions of power and oppression, it is critical to de-prioritize downstream, individualistic interventions that may provide ancillary benefits but do not demonstrate robust anti-stigma effects.

Ultimately, laws and policies should be prioritized as primary anti-stigma mechanisms, and can be targeted at both macro- and meso-levels given the different plausibility profiles and time horizons needed for each. The ethical imperative for countering stigma is clear, but there are also strong epidemiologic justifications for prioritizing anti-stigma interventions as well. These rationales are no weaker and are arguably stronger in times of epidemic and pandemic disease, like COVID-19.

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[1] Most of the substantive claims laid out in this section have been developed and rigorously sourced in (Goldberg 2017). Therefore, references in this section will be limited to substantiating novel claims or supplementing with newer research and data.

[2] This itself is a core part of older doctrines of “moral hygiene,” and its distinctly classist form is a well-studied topic in the history of public health and the history of nursing (Smith 2020; Rosenberg 1992).

[3] Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), at 21.

[4] Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900).

[5] The ethical obligation to remedy stigma is almost self-evident, although commentators have supplied the necessary arguments to ground the mandate (see Goldberg 2017, citing references; Courtwright 2009; 2013).

[6] It may be more tenable in the short to intermediate term to focus on changing enforcement priorities and approaches to existing antidiscrimination and civil rights laws. While there is no doubt enforcement is crucial, measuring commitment to and levels of enforcement is an enormous challenge. As an emerging field, legal epidemiology to date has focused on measuring codified law and has not yet emphasized assessment of enforcement and implementation.

Special Issue, Uncategorized

Intellectual Disability and Justice in a Pandemic

Ryan H. Nelson & Leslie P. Francis

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. Much of the discussion of care prioritization during the COVID-19 pandemic has focused on access to high-technology, intensive care under crisis conditions. This is understandable in light of initial fears that widespread triage and rationing measures would become necessary. However, as observations about the interplay between social determinants of health and COVID-19 infection rates and outcomes have become increasingly clear, attention has also been directed to inequalities in health and healthcare in the US. In this paper, we address another less-discussed set of issues: problems of discrimination and injustice involving people with intellectual disabilities confronted by COVID-19 that go beyond those seen in policies governing triage and rationing. After discussing the proper role of quality of life judgments in healthcare, we consider a range of issues relevant to people with intellectual disabilities, including staffing and structures in group-home facilities, the need for adaptive communication, and the role of support persons during care. Addressing some of these issues will require policy changes that may be widely beneficial; adjustments particular to individuals will also need to be evaluated from the perspective of whether they create undue risks. To address these issues, we draw insights from disability anti-discrimination law as it interfaces with the ethics of patient care, especially the distinction between accommodations for individual patients and modifications of policies addressing access to services and healthcare.

INTRODUCTION

If the COVID-19 crisis has brought any benefits, one is the increased attention paid to persons with disabilities in the contexts of clinical medicine and public health. There has been a great deal of insightful discussion since the outbreak about controversial disability issues the pandemic has brought to light. For a population often overlooked in both academic circles and the public square, mere visibility is a victory. There are at least two important respects in which the discussion remains underdeveloped, however.

First, much of the work being done has focused on disability considerations in policies governing triage and the rationing of critical care resources under crisis conditions. This is undoubtedly an important, and ethically complex, issue. Yet its immediate significance is limited since the vast majority of hospitals have not needed to implement their triage policies and thus have largely avoided the difficult “two patients, one ventilator” kinds of decisions initially feared. This being so, it is worth looking beyond crisis care to broader issues concerning contingency care, the health needs of persons with disabilities, and how the healthcare system can ethically respond to them in a pandemic.

Second, while disability in general has been a focal point throughout the crisis, intellectual disability (ID) in particular has received much less attention. ID is classified as a childhood onset neurodevelopmental disorder (APA 2013) involving a number of factors, including intellectual functioning (often measured with an IQ test) and adaptive behaviors (such as conceptual, practical, and social skills) (AAIDD 2010). The needs of people with ID, and the challenges they face, warrant independent consideration as they are often distinct from those of the broader disability community. Moreover, those with ID often face additional barriers to self-advocacy and are therefore less well represented in disability debates.[1] In this article, we aim both to broaden the COVID-19 discussion beyond triage and rationing and to focus it on the circumstances of people with ID.

We begin by outlining the recent debate over quality of life judgments in crisis care plans, highlighting how concerns about disability discrimination extend well beyond the context of crisis and apply to people with ID. We then consider how the unique needs of those with ID may impact their use of medical resources and affect ethical judgments about allocation. Next, we draw insights from disability anti-discrimination law as it interfaces with the ethics of patient care, particularly with respect to the distinction between accommodations and modifications. We conclude by identifying some additional forms of direct and indirect disadvantage associated with ID, considering whether any can be justified, and developing an ethical account of how they may be addressed.

INTELLECTUAL DISABILITY AND QUALITY OF LIFE

As state governments and private hospitals scrambled to develop crisis standards of care plans, triage protocols, and rationing guidelines in the early days of the COVID-19 crisis, disability advocates became increasingly concerned that people with disabilities were being unfairly disadvantaged. This concern appears to have been well founded. In its analysis of thirty state policies, the Center for Public Integrity (2020) found that “all but five had provisions of the sort advocates fear will send people with disabilities to the back of the line for life-saving treatment.” Antommaria et al. (2020) report that only around a quarter of allocation policies specify that decisions should not be based on disability, also noting “potential inconsistencies” in policies that “exclude disability discrimination but categorically exclude patients with certain preexisting conditions from receiving mechanical ventilation.”

Of particular concern has been the role of quality of life judgments in the plans. While the vast majority avoid explicit appeals to quality of life, a number of policies include provisions that, critics charge, discriminate against persons with disabilities and may rely on judgments that are at least indirectly related to quality of life judgments. Advocates have objected to ill-defined considerations related to “baseline functional status,” “comorbidity,” “health,” and “long-term survival” considerations as dogwhistles for disability bias (CPR et al. 2020; Stramondo 2020). Some argue that only criteria directly related to short-term survival—as calculated by SOFA or APACHE II scoring systems, for example—are legitimate for prioritization, thus rejecting categorical exclusion criteria and consideration of long-term prognosis (CPR et al. 2020). Other advocates go further, insisting that even differences in short-term survivability criteria risk being discriminatory against people with disabilities and that only strict “futility” provides legitimate grounds for denying treatment (DREDF 2020; Ne’eman 2020).

Concerns about potential discrimination may be compounded for people with ID, due in part to perceptions about the connection between intellectual functioning and quality of life. In an especially controversial example of guidelines disability advocates found objectionable, the state of Alabama initially emphasized a “successful outcome” with regard to “cognitive, neurological, and psychosocial” functioning, stating that “persons with severe mental retardation…may be poor candidates for ventilator support” (2020). A complaint from Alabama Disability Advocacy Program condemned the practice of “singling out and authorizing the denial of treatment to individuals with intellectual and cognitive disabilities based on misguided assumptions about the quality of life, the value of life, the prospects for survival, and the resource needs of people with disabilities” (ADAP 2020). Although Alabama has since withdrawn the guidelines, the ID advocacy group The Arc (2020) has filed similar complaints in Washington, Tennessee, Utah, Oklahoma, Connecticut, North Carolina, and Oregon.

While it is certainly worthwhile to point out the potential for ableist bias in crisis plans, we suggest that a more immediate concern lies in the role quality of life judgments play in contingency care, the space between convention and crisis in which a hospital “adapts available patient care spaces, staff, and supplies as part of the response to a surge in demand for services” (IM 2009). This concern is more immediate for two reasons. First, a number of hospitals have actually been operating in a contingency state due to the surge of COVID-19 patients, whereas very few have needed to implement crisis standards. Second, contingency care has the potential to be much more variable than that provided under crisis standards. However flawed their content, crisis plans typically include explicit protocols and oversight to ensure consistency of application. Contingency care, on other hand, can involve a range of less well-defined and more discretionary actions, which risks introducing a greater degree of inconsistency and bias.

Decisions that individual clinicians may be inclined, encouraged, or forced to make in a contingency state include those pertaining to hospital admissions from the emergency department, ICU admissions from the hospital floor, interventions offered and recommendations made, code status discussion, choices among resources to conserve and how aggressively to conserve them, and more. Granting that the vast majority of clinicians operate with good intentions, data about ableist bias in medicine gives us reason to believe that persons with disabilities may be disadvantaged in these kinds of unavoidably subjective, bedside decisions.

For example, the National Council on Disability has found that misperceptions about the quality of life of people with disabilities have “negatively influenced physicians’ medical futility decisions and resulted in the withholding/withdrawal of necessary medical care from people with disabilities” (NCD 2019, 9). Similarly, Putman et al. report that “physicians were half as likely to recommend full medical treatment when the patient had severe cognitive deficits” and that they were much more likely to use DNR orders in patients with diminished cognitive function (2016; see also Chakraborty and Creaney 2006). What is more, research into the phenomenon of “diagnostic overshadowing” has “consistently demonstrated that the cognitive deficits displayed by an individual negatively impacted the ability of clinicians to make accurate judgments with regard to other co-occurring disorders” (Kanne 2013).

It is plausible to suppose that the pressures of a pre-crisis pandemic surge would only amplify these effects. In this context, disability discrimination risks going unnoticed, since it may stem from relatively subtle forms of individual bias and because the relevant decisions tend not to be strictly governed by publicly available institutional or state policies. Without oversight, it will prove difficult to gather data about how the range of care decisions made under contingency conditions impact those with ID. This is important; one study already published reveals higher case-fatality rates from COVID-19 of people with intellectual and developmental disabilities especially among younger adults, notes the paucity of data about this population, and suggests that one possible explanation for these differences may be comorbidities (Turk et al. 2020). The study does not explore the potential role of differences in contingency care.

QUALITY OF LIFE: OBJECTIONS AND ARGUMENT

The debates surrounding COVID-19 and disability have given rise to two distinct objections to incorporating of quality of life judgments in healthcare, which we will call the ‘practical objection’ and the ‘principled objection.’ According to the practical objection, quality of life judgments are objectionable insofar as they are inaccurate. One form of the practical objection holds that it is infeasible to conduct accurate quality of life assessments under crisis conditions. For example, in their widely-cited discussion of triage protocols, Emanuel et al. (2020) argue that “limited time and information during an emergency…counsel against incorporating patients’ future quality of life, and quality-adjusted life-years, into benefit maximization.”

Another form of the practical objection appeals to the well-documented concern that quality of life judgments are fraught with ableist bias and often fail to account for the complexity of the relationship between disability and wellbeing (Peña-Guzmán and Reynolds 2019; Campbell and Stramondo 2017). Peña-Guzmán and Reynolds, for example, explore how physicians’ epistemic overconfidence rooted in ableism affects communication with patients with disabilities and judgments about quality of life, thus contributing to medical errors. The National Council on Disability reports that “providers often perceive people with disabilities to have a low quality of life when, in reality, most report a high quality of life and level of happiness” (NCD 2019). There is a particularly strong connection between clinicians’ perception of quality of life and “diminished cognition” (Putman et al. 2016). Moreover, discrimination against people with ID may be difficult to identify since “evaluative judgments about appropriate treatment based on subjective quality of life considerations are often framed as medical decisions” (NCD 2019).

The practical objection, then, holds that quality of life judgments are unreliable and risk introducing unnecessary subjectivity, inconsistency, and bias into medical practice. By contrast, the principled objection holds that quality of life judgments, even if feasible and reliable, are simply not ethically relevant to decisions about the allocation of healthcare. This argument has been based on the fundamental equality and dignity of persons: that all human life is valuable and worthy of protection. In a joint statement addressing various forms of bias in the response to COVID-19, Anderson et al. (2020) argue that

no…prioritization principles should be allowed to undermine a core conviction of our moral tradition, viz., that the lives of all human beings are of inherent, equal, and indeed incalculable value. We should eschew all invidious discrimination and recommit ourselves to treating all who are ill as bearers of profound, inherent, and equal worth and dignity.

Roger Severino, director of the Office of Civil Rights, echoed this point forcefully in a recent statement: “Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism” (HHS OCR 2020).

The idea of equal and inherent worth of human beings is certainly a powerful one. Yet the principled objection may be seen as wishing away some of the most difficult problems in medical ethics. How are we to allocate transplantable organs if all human life is equally worthy of protection? How can we make sense of the idea that some life-sustaining treatments are inappropriate if life is inherently valuable? Why do we allow determinations of death by neurologic criteria if cognitive functioning is an illegitimate consideration? In the context of a pandemic, the principled objection risks ignoring the fact that practicing medicine can involve unavoidable zero-sum tradeoffs among patients, as well as judgments about what counts as beneficial treatment and a successful outcome.

One important question, then, is how to avoid discriminating against people with ID while recognizing that drawing certain distinctions between patients is necessary—and, indeed, appropriate, especially in pandemic medicine. Our suggestion sketched here is that implausible sanctity-of-life commitments can be avoided without introducing the problematic comparative quality of life judgments that so often unfairly disadvantage those with ID. The key lies in distinguishing the subjective grounding of quality of life judgments from judgments about the existence of life itself.

Judgments about a person’s quality of life are about the value of the life for the person—the person’s good—and are thus conditioned on subjectivity. That does not mean that the individual must make these judgments for herself, but it does mean that they must be rooted in some experiential life of the individual (Francis and Silvers 2007). Our view also does not take sides on whether quality of life judgments are themselves subjective or objective; all we assume here is that a necessary condition for quality of life judgments to be made about a person is that the person has at least minimal experiential life to serve as a basis for judgments about what is in that person’s interests or for that person’s good.[2] Experiential life, in turn, requires a minimal level of cognitive functioning that may be absent in patients with certain disorders of consciousness and the most severe forms of ID. Attributing a quality of life judgment to these patients, therefore, involves a kind of category mistake. Distinguishing between patients who are and are not the subjects of quality of life is importantly different than actual comparisons of quality of life, in that the distinction does not depend upon judgments about whether a given quality of life is acceptable or superior to another quality of life. Instead, the idea is that patients can be said to benefit from medical treatment only if they are capable of being subjects of quality of life at all. This view potentially aligns with the Society of Critical Care Medicine’s recommendations regarding medically inappropriate treatment, which notes that patients should have “sufficient cognitive ability to perceive the benefits of treatment” (Kon et al. 2016, 1771), at least if “perceive” is understood to mean “experience subjectively.”

Healthcare is for the person’s good. While in situations of non-scarcity, we might be willing to offer healthcare (and even pay for it) for reasons other than the person’s experiential good (such as the value of life per se or the wishes of the family), prioritizing a scare resource is arguably different. If so, there is an argument for distinguishing being the subject of a quality of life from being a life in cases involving the allocation of scarce medical resources.

LEGAL CONTEXT: ACCOMMODATIONS AND POLICY MODIFICATION

In the previous section, we argued that quality of life judgments unfairly disadvantage people with ID by negatively impacting the medical care they receive in a pandemic, irrespective of any decisions about triage and rationing. We then argued that the rejection of quality of life judgments does not entail that no justified distinctions can be drawn between patients, since some patients are simply not subjects of quality of life in the relevant sense for the allocation of scarce healthcare resources.

In this section, we explain a distinction between two different forms of discrimination against people with ID in the legal context that, we argue, is also critical to contingency care decisions in pandemic conditions. Legal challenges for people with ID in pandemic conditions may involve both accommodations for individual differences and modifications of living circumstances, state reimbursement policies, or medical treatment protocols. Understanding these challenges requires a basic distinction between individualized accommodations and more general policy modifications. This distinction between accommodations and modifications is ethically important, too. The former are tailored to individuals in ways that enable them, but may seem unfairly costly; the latter may be available to everyone but may require changes in policies or programs that are seen as unacceptable. Our argument here is that accommodations for individuals must be available within structures of policy modifications that are fair.

Under the Rehabilitation Act and the Americans with Disabilities Act, “accommodations” are individualized adjustments that allow qualified persons with disabilities to perform their jobs or enjoy meaningful access to public services or accommodations. Common examples of accommodations for people with ID include altered forms of communication, decision-making supports, job coaches, or adjustments in how therapy is delivered. “Modifications” are changes in policies or the built world. Modifications are not tailored to individuals; they potentially affect many people. Curb cuts and ramps are quintessential examples of modifications in the built environment. Examples of modifications that are particularly relevant to people with ID are the establishment of home- and community-based service programs, changes in Medicaid reimbursement levels, or the formation of a Special Olympics sports program. This difference—between individual accommodation and programmatic modification—is woven throughout disability anti-discrimination law and ethics.

Moreover, the choice of whether to address disability through accommodation or modification matters, both legally and ethically. Legally, accommodations must be requested by the individuals seeking them. Individuals must be qualified for the jobs or services they seek, with or without the accommodation. Accommodations must be reasonable; they are not required if they impose undue hardship on the employer or undue burdens on public accommodations. Accommodations are not required, for example, if providing them would jeopardize the safety of the employee or the public. Modifications may be required for public services if they are reasonable and for public accommodations if they do not require a fundamental alteration of what the accommodation offers.

The distinction between individualized accommodations and programmatic modifications has been confused by courts since the seminal case interpreting the Rehabilitation Act, Southeastern Community College v. Davis.[3]Davis was a hearing-impaired applicant for Southeastern’s nursing program. She requested accommodations in the form of adjustments in communication, such as instructors facing her so that she could lipread and the availability of sign interpretation when lip reading would not suffice, and she wanted the College to make only those program adjustments that would be needed for her with these accommodations. The College refused to consider her capabilities with these accommodations; instead, they did not consider offering accommodations and instead asserted that the only possibility for her was to modify the nursing program so that she could graduate without participating in the clinical portion of the program. The Supreme Court agreed with the College and construed Davis’s request for “affirmative” relief as “affirmative action” on behalf of someone who was unqualified, echoing the criticisms of affirmative action programs involving race or sex that were growing at the time Davis was decided.

In the next major decision interpreting the Rehabilitation Act, the Supreme Court compounded its error in Davis. Alexander v. Choate involved Tennessee’s decision to address financial shortfalls by cutting back the number of days in the hospital available annually on its Medicaid program.[4] The decision set forth an ethically important standard: states must provide people with disabilities “meaningful access” to public services. However, the Court determined that this standard had been met: the state provided meaningful access to the benefit it defined—fourteen days in the hospital. So, the Court reasoned, the state had not discriminated, even though people with disabilities might be disadvantaged by the limitation. In so reasoning, the Court viewed the petitioners as asking for an unreasonable accommodation in the form of “affirmative action” that would give each the full amount of healthcare they needed, even though other Medicaid recipients did not receive this privilege. But here, the Court confused accommodations with modifications. The Choate petitioners were not asking for individually tailored healthcare. Instead, the petitioners were asking for a modification in the structure of the Medicaid program so that the costs of austerity might be distributed more equitably.

The confusion matters ethically, too. Accommodations—as the analogy to affirmative action suggests—may be construed as special privileges and as unfair to those who do not receive them. Conversely, when accommodations are misconstrued as modifications, the result may be the judgment that people are asking for inappropriate fundamental alterations in programs, as Davis was misunderstood to be asking to graduate as a nurse without any clinical training. In the context of ID and COVID-19, disentangling accommodations from modifications will be critical to understanding whether what is needed is a readjustment of state programs or public accommodations in a manner that can be fair to people with ID (a modification) or an individualized adjustment (an accommodation) that might pose undue risks to the individual or to others.

ACCOMMODATIONS AND MODIFICATIONS: CONSIDERING THE COSTS

In order to continue to benefit from public services or to enjoy public accommodations on a basis equal to others, some people with ID will require individualized accommodations during COVID-19 .[5] These include accommodations for adaptive communication, support during treatment, and care management. Under the law, individuals are only entitled to accommodations that are reasonable. The legal question is whether an individual accommodation such as a support person during treatment would be an undue hardship, a defense that has principally been invoked because of increased costs or risks. The ethical question would be whether any increased costs or risks from in-person contacts would be ethically acceptable. Here, law and ethics are intertwined, with the question being whether what the law might regard as an “undue hardship” tracks what might be regarded as ethically appropriate reasons for refusing to undertake any increased costs or risks. In what follows, we begin by describing several likely forms of accommodations then provide responses to arguments that they may be unreasonable because of their costs or the risks they may pose to others. One ethical conclusion we draw is that increased costs should not be a basis for denying accommodations but that unreasonable risks to others may be—if the assessment of risks is unbiased and based on an individualized assessment. Another is that some program modifications may be required in light of the costs of accommodations and that the increased costs of these modifications should be considered as part of a fair allocation of the overall costs of COVID-19, rather than being seen as a fixed limit on the reasonableness of accommodations.

Many people with ID require adjusted forms of communication to increase their understanding. With COVID-19, it may be difficult for people with ID to understand the need for social distancing, hand-washing, or different routines. Communication adaptations may include simple language, repeated explanations, pictures or videos, or support persons to help interpret complex information. Some of these forms of adaptive communication, especially those requiring in-person support, may be more difficult if social distancing is required to prevent COVID-19 spread. Yet the failure to provide adaptive communication might leave people with ID not only unable to enjoy some of their frequent daily activities but also lonely and frightened. It may be possible to address some individual needs by increased and imaginative use of technologies that do not require in-person contact. Just as Zoom and WebEx have become common modes of telecommuting, so robots and video images may be designed to soothe, instruct, or entertain people with ID who must isolate for their protection or the protection of others.

More generally, the need for support persons may be different and greater during COVID-19. While social distancing is in effect, routines will be disrupted. Staying home rather than enjoying favorite outings, day-center activities, or vocational training will be difficult. People who are working may be laid off or unable to go to work because of increased health risks. Public transit—an often-necessary mode of transportation for people who cannot get driver’s licenses—may be disrupted or more dangerous to use because of risks of infection. All of these disruptions may alter and intensify personal support needs.

Support needs may also be intensified in order to protect people with ID from putting themselves or others at risk. People with ID may have difficulty recognizing or communicating symptoms. They may be at greater risk of infecting others who live with them if their illness remains undiagnosed. They may have difficulty understanding the need to wear masks or how to do so correctly. They may require support in handwashing or other modes of personal hygiene. As people with ID are unlikely to live alone, supports for them may be critical to reducing infection spread to others. These are all accommodations that may matter to the ways in which people with ID receive contingency care in pandemic conditions.

These accommodations will increase costs, and the question is whether these costs are reasonable or an undue hardship. Answering this question requires understanding some of the policy determinations that are currently in place. Individuals with ID likely receive many of these services under Medicaid “home and community-based services” (§1915) waiver programs designed to allow people to receive a variety of medical and non-medical services to allow them to live in their homes or communities rather than in institutions. For approval, these waiver programs must demonstrate cost-neutrality to the federal government. States may exclude individuals from their waiver programs if they are likely to have home- and community-based service expenditures that are higher than their costs in an institution. As a result—and also due to state fiscal constraints—these programs typically impose significant cost constraints, including long waiting lists, restrictive eligibility requirements, and service unit limitations.[6] As state revenues contract, and service needs expand, the impact of cost constraints may become more severe. Already limited by cost controls, waiver programs may simply not have the resources to expand supports to accommodate needs during COVID-19.

Ethically, we argue, the conclusion should be just the reverse; program modifications may be needed for reasons rooted in both non-comparative and comparative justice. Non-comparatively, the problem is whether individuals with ID will be able to meaningfully access benefits to which they are entitled without support. Here, meaningful access to healthcare is a good example. People who do not recognize COVID-19 symptoms—but who might do so with support—will not identify the need to access healthcare. People who cannot communicate their symptoms may go longer without care and be far sicker if and when they do access care. Without support, they also may have more difficulty in tolerating what is involved in care, especially in the unfamiliar setting of a hospital. Isolation is difficult for everyone, but even more distressing for people who lack full understanding of why it is needed. Absent support, therefore, it is arguable that in a number of ways people with ID may not have meaningful access to healthcare for COVID-19.

Comparatively, expenditures by the federal and state government are vastly expanding to meet many other needs related to COVID-19. If the supports required by people with ID are not increased at least in a manner that is fair, these individuals will be subject to comparative injustice. Yet, aid programs such as the CARES Act do not provide any increased funding for Medicaid—indeed, state Medicaid expenditures are specifically designated as ineligible for CARES Act funding (USDT 2020). From this comparison, however, it does not follow that everyone should get all of the supports that they need—that would be to confuse accommodations with modifications. Rather, there should be modifications in funding for programs such as §1915 waivers to ensure that they receive their fair share of resources. Further consideration might be directed towards how to allocate additional funds for support, including whether they should be prioritized to services that reduce disease spread or individual distress, or that attempt to improve meaningful access to care.

ACCOMMODATIONS AND MODIFICATIONS: CONSIDERING THE RISKS

Risks may differ from costs, however. Arguably, with risks the undue hardship analysis should be whether the risks are minimally acceptable rather than whether they are fairly allocated. Here, our claim is that fairness does matter, at least insofar as it would be unfair to accept risks for others that are not similarly accepted for contingency care of people with ID. Many groups of people may be affected by COVID-19 risks associated with people with ID: people with ID themselves, people with whom they live, support persons, other patients receiving care, and healthcare providers treating people with ID who become infected with COVID-19.

We have already discussed how accommodations such as communication aids actually may mitigate some risks to people with ID by identifying the need for treatment, enabling people with ID to engage in social distancing or take other precautions against disease spread. These accommodations may, however, increase risks because they involve increased contacts with support persons. These risks presented by increased needs for contacts with support persons can and should be mitigated in the same way that other risks from COVID-19 are mitigated for people who live in group homes or other congregate living settings. Mitigation measures may include individual accommodations such as allowing trusted family members to provide increased support. Accommodations might also include allowing individuals to receive services in their homes so that they can return home for the duration of the pandemic, reducing risks to themselves as well as other residents, who may benefit from facilities becoming less fully occupied.

Some of these accommodations may be facilitated by policy modifications such as allowing family members to receive increased pay as caregivers.[7] Reductions in waiting lists for home- and community-based services are also policy modifications that might reduce risks to people with ID living in nursing homes or other congregate settings. Even if only for the duration of the COVID-19 pandemic, these temporary reductions might allow more people to move out of larger care facilities and return to their families, if they wish to do so. Policies such as health checks and sick leave for caregivers should also be implemented to reduce risks both to themselves and to those for whom they provide care.

Some support workers may be more willing than others to take risks associated with caring for people with ID during the COVID-19 pandemic. Family support workers, for example, may be more willing to take risks for their loved ones. Some of the changes in policies for paying these workers mentioned above may help shift support work to those who voluntarily assume it, as may changes in sick leave, pay, or protections for care workers. These policy changes, while not eliminating risks, at least attempt to increase the likelihood that people who take the risks are not compelled by their own dire circumstances to do so. To the observation that these forms of risk-mitigation may increase costs, we would make the same point as made above: that as modifications these increased costs should not be viewed as unfair privileges but as part of overall fair distribution of the increased resources being devoted to alleviating impacts of the pandemic.

Perhaps the most difficult ethical problem about the ethics of risks involves the potential of increased risks to others in healthcare facilities, including other patients and healthcare personnel caring for people with ID who become ill with COVID-19. To lower risks to hospital personnel and patients, hospitals have implemented strict no-visitors policies with limited exceptions. However, because hospital care and isolation may be particularly disturbing for people with ID, some policies do make exceptions to allow support persons into the hospital. For example, the University of Utah’s “no visitors” policy contains one-visitor exceptions for patients with disruptive behavior, in which a family member is key to their care, and patients who have altered mental status or developmental delays (where caregiver provides safety/information) (University of Utah Health 2020). But such policies are not uniform; for example, Connecticut’s no-visitors guidance for hospitals reportedly does not have an explicit exception for persons with disabilities who live at home (Abrams 2020). To the extent that hospitals allow visitors for other persons, such as partners in childbirth or family members of patients near death, we would argue, it is unfair to fail to allow similar visitor policies for persons with ID who may have increased difficulty with hospital care.

Finally, persons with ID may have more intense care needs than others who become ill with COVID-19, including longer hospital stays and more intense nursing care. A particular concern for healthcare workers is that persons with ID may require more sedation to deal with the hospital environment and thus potentially have increased needs for intubation. Intubation is one of the riskiest procedures for healthcare workers. Here, we would argue that general principles regarding risky care should be applied, in the same way they are for people who do not have ID. One recent ethical framework recommends that when benefits to patients are minimal, risky procedures such as cardiopulmonary resuscitation may be withheld (Kramer, Lo, and Dickert 2020). This framework also cautions that estimations of patient benefit must be evidence-based and free from the kinds of bias that we detailed in the beginning sections of this article, such as importation of quality of life judgments. Applying this framework would lead to the conclusion that if the benefits of resuscitation would justify providing it for patients without ID, resuscitation should also be provided for patients with ID.

CONCLUSION

In this article, we have sought to address some of the less-discussed problems of justice involving people with ID confronted by COVID-19. We have argued that quality of life considerations should not come into play for persons who are capable of having subjectively based quality of life judgments made regarding them. For such persons with ID, even severe ID, any judgments must be evidence-based and free from bias. We have then argued that justice may require both individual accommodations and policy modifications to address the impacts of the COVID-19 pandemic in this population.

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[1] See Coaston (2020) for perspectives on the pandemic from people with ID.   

[2] This minimalist assumption is, we think, consistent with both hedonistic and at least some perfectionist accounts of the person’s good. Hedonistic accounts assume at least some capacity to experience pleasure, pain, or happiness. Perfectionism of the sort defended by Shea (2019) relies on an account of human flourishing that involves at least some elements of subjectivity, such as the ability to engage in relationships and experience social thriving.

[3] 442 U.S. 397 (1979).

[4] 469 U.S. 287 (1985).

[5] Beyond the distinction between accommodations and modifications, we set aside here many other complex questions about the structure of anti-discrimination law but note them briefly here for reference. The Rehabilitation Act prohibits discrimination on the basis of disability in federally funded programs or activities, 29 U.S.C. § 794; § 1557 of the Affordable Care Act explicitly incorporates this ground of prohibited discrimination in any federally funded health care. Under the Rehab Act, people with disabilities must have “meaningful access” to federally funded programs or activities for which they are qualified, Alexander v. Choate, 469 U.S. 287 (1985). Title II of the ADA, applying to public services, programs, or activities, provides that it is discrimination to exclude or deny benefits to any individual with disabilities meeting essential eligibility requirements with or without auxiliary aids or reasonable modifications to rules, policies, or practices, 42 U.S.C. §§ 12132, 12131(2). Title II does not explicitly state an undue hardship defense, although one has been incorporated into the understanding of what modifications are reasonable, e.g., National Federation of the Blind, Inc. v. Lamone, 2020 WL 618674 (D. Md. Feb. 10). Title III of the ADA, applying to public accommodations (which include medical facilities and social service establishments, 42 U.S.C. § 12181(7)(F), (K), prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a). Accommodations must be provided to individuals in the “most integrated setting” that is appropriate, 42 U.S.C. § 12182(b)(1)(B). Failures to make reasonable modifications are discriminatory, unless the modifications would be fundamental alterations of the nature of the goods, services, facilities, privileges, advantages, or accommodations, 42 U.S.C. §12182(b)(2)(A)(ii). Failures to provide auxiliary aids and services is discrimination, unless the aids or services would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation, or would be an undue burden, § 42 U.S.C. § 12182(b)(2)(A)(iii). The Title III regulations define “undue burden” as “significant difficulty or expense” and list as factors to be considered in this determination the nature and cost of the needed action, the overall financial resources of the site, and legitimate safety requirements among other factors, 28 C.F.R. § 36.104. These complex differences have been largely bypassed in court decisions applying the same standards under the Rehab Act, ADA Title II, and ADA Title III.

[6] See Ng et al. (2015) and Hakshi (2019).

[7] Family members can be paid caregivers, but with significant limits. For example, one recent report indicates that only twelve states permit legal guardians to be paid caregivers. This would preclude parents who have become legal guardians of their adult children with ID from being paid. See Sarmah-Hightower (2019).

Special Issue, Uncategorized

Incarceration, COVID-19, and Emergency Release: Reimagining How and When to Punish

Lauren Lyons

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. The wide-ranging effects of the COVID-19 pandemic have amplified social inequalities and revealed vulnerabilities in public systems. These dual effects are especially salient in the context of criminal justice systems, and activists and policymakers have called for reconfiguring justice system practices in response. This paper discusses and defends one of these proposals: rapidly reducing the number of people currently incarcerated by releasing people from jails and prisons. Drawing on moral and political philosophy and criminal law theory, I provide a rigorous case for why it is morally unjustified to continue to incarcerate people as usual under present circumstances—this position is intuitive to many and already reflected in emergency policies in jurisdictions worldwide. The paper proceeds by way of two arguments. First, I argue that we ought to release people from jails and prisons to prevent meting out disproportionately severe punishments, which are unjustified on standard theories of punishment. The second argument appeals to what I call the public interest constraint on criminal law policy: defending the idea that we ought not make use of the instruments of the criminal law if the downstream consequences of doing so run contrary to public welfare and wellbeing or undermine the provision of substantive common goods. I argue that circumstances related to the coronavirus pandemic trigger the constraint. Though the idea that we ought to take broad social costs into account in designing criminal justice policy may seem intuitive, it has radical implications for thinking about decarceration and the ethics of justice system practices during the coronavirus pandemic and beyond. In the last part of the paper, I propose and discuss three concrete policies that work to mitigate some of the potential negative consequences of emergency release.

The effects of the present COVID-19 crisis transcend national and social borders, requiring all of us to adapt to ever-changing, unprecedented circumstances. While in some respects these experiences are shared, the impact of the crisis has been disproportionately harmful for those who were already socially vulnerable: low-income people and workers who are precariously employed, people with disabilities and chronic health issues, unhoused people, people who depend on now-defunct public services, and, as will be the focus of this paper, incarcerated people.

In response to the pandemic, state, local, and federal governments have enacted policies that would be politically unthinkable in normal circumstances. The US federal government, for instance, passed a $2 trillion relief bill, the largest stimulus package in the country’s history. At the same time, local governments have enforced unprecedented social distancing measures in response to stay-at-home orders. In these domains and others, the crisis has recalibrated the realm of political possibilities.

Correspondingly, given the unique, serious threat of illness outbreaks in jails and prisons, the coronavirus pandemic has sparked the proposal and implementation of new, radical changes to criminal justice system practices. In attempts to reduce jail and prison admissions, many prosecutors, citing their discretion, have opted to decline to prosecute many low-level crimes. There has also been pressure to rapidly decrease the number of people who are currently incarcerated. Some have proposed temporarily releasing people convicted of low-level offenses, while more radical voices have called for shutting down jails and prisons altogether.

Broadly speaking, the case of incarceration during COVID-19 offers an extreme example of how socially vulnerable people are especially burdened by disasters and crises. Correspondingly, the case invites us to radically rethink present policies. Reimagining the design of our criminal justice system is especially relevant in the context of ongoing demands for decarceration amidst mass #blacklivesmatter protests across the United States in response to the murder of George Floyd and other recent instances of police violence. By centering public health and safety when designing criminal justice policy, emergency release and other unprecedented strategies can offer a blueprint for reducing the size and scope of the criminal justice system during the present pandemic and beyond.

The moral impetus to change justice system practices because of the threat of the pandemic is felt worldwide. The Prison Policy Initiative reports that Turkey has reduced its prison population by 90,000, or 31 percent, since the onset of the crisis (Widra and Wagner 2020). Iran has followed suit in reducing its prison population by 70,000, or 29 percent (ibid). Other countries have implemented more modest reductions. In the United States, while local governments have made efforts to reduce jail populations, state and federal prison populations have remained staggeringly high. The number of people incarcerated in jails is estimated to have decreased by 25 percent since the start of the crisis, with jurisdictions implementing measures to release people charged with low-level crimes, awaiting trial, close to finishing their sentences, as well as elderly people and those with underlying health issues. On the other hand, the Federal Bureau of Prisons and several states, including South Carolina, Mississippi, Alabama, Arizona, and Pennsylvania have only reduced prison populations by less than 3 percent (ibid).

This paper discusses and defends the practice of releasing incarcerated people from jails and prisons in the face of the present pandemic. Drawing on moral and political philosophy and criminal law theory, I provide a rigorous case for an idea that is intuitive to many and already realized in public policies in several jurisdictions: that it is morally unjustified to continue to incarcerate people as usual under present circumstances, and that we ought to implement policies to radically reduce the number of people currently incarcerated.

I provide two arguments in defense of this position. The first, the proportionality argument, maintains that we ought to release people from jails and prison in order to avoid their punishments becoming disproportionately severe and, correspondingly, unjustified on standard theories of the justification of punishment. The second argument appeals to what I call a public interest constraint on criminal law policy: defending the idea that we ought not make use of the instruments of the criminal law if the downstream consequences of doing so run contrary to public welfare and wellbeing or undermine the provision of substantive common goods. Though the idea that we ought to take broad social costs into account in designing criminal justice policy may seem intuitive, it has radical implications for thinking about institutional design during COVID-19 and beyond; I discuss these issues further in conclusion of the paper.

I conclude the discussion by identifying some of the relevant classes of costs and benefits associated with implementing emergency release policies that we ought to take into account in applying the public interest constraint. In response to those considerations, I propose three concrete policy solutions that work to mitigate potential negative consequences of early release: the creation of emergency parole boards, the provision of testing for potentially-affected people (or, alternatively, non-carceral quarantine provisions), and comprehensive reintegration support for people released from jails and prisons.

While the proportionality argument is based in generally accepted justificatory standards in criminal law theory, the discussion of the public goods constraint asks that we reorient our normative theorizing by taking a broader set of costs into account in designing criminal law policy. Note that the arguments need not be accepted in tandem; I imagine many readers will be on board with the first but more hesitant about second.

Though my discussion centers on the case of the criminal justice system in the United States, since it is the context with which I am most familiar, the arguments are certainly applicable elsewhere. Moreover, the issues discussed here will largely apply to immigration detention and ICE (Immigration and Customs Enforcement) enforcement activities too, though jails and prisons are my focus.

THE PROPORTIONALITY ARGUMENT

Here are some relevant facts about the issue in the US context: Prior to the coronavirus pandemic, there were 2.3 million people in jails and prisons across the country. Many of these people, approximately 470,000, were awaiting trial and thus not yet convicted of a crime (Sawyer and Wagner 2020).

There is consensus among experts that elderly people and people who have preexisting health issues—like chronic lung disease, moderate to severe asthma, diabetes, kidney or liver disease, heart conditions, and immunocompromised people—are most likely to become severely ill if they are infected with COVID-19. Incarcerated people are disproportionately likely to have these serious health issues, which are often exacerbated by virtue of incarceration (Binswanger et al. 2012). Moreover, a substantial proportion of people incarcerated in the United States are elderly. The number of older incarcerated people has increased rapidly in recent years—a product of draconian sentencing and strict parole policies. A report by the Osborne Association predicts that by 2030, one third of the incarcerated population in the US will be over fifty (The Osborne Association 2018).

At the same time, prisons and jails have limited medical facilities that are ill-equipped to deal with COVID-19 outbreaks. Moreover, given the physical structure of jails and prisons, it is especially difficult to implement social distancing measures and contain the spread of communicable diseases. In an interview reported in The Intercept, a man incarcerated in a maximum-security facility in New York State remarked, “There’s no such thing as social distancing in prison. … How can an incarcerated individual maintain social distancing in a population of over 2,000? With 240 men to a block, minus the guards? With every man dwelling on all sides of one another, constantly?” (Speri 2020).

As a result of these conditions, many jails and prisons in the US and elsewhere have become hotspots for the virus. In May 2020, the New York Times reported that correctional facilities comprise ten of the fifteen “clusters” with the largest number of reported infections in the United States (The New York Times 2020). The Marion Correctional Institution in Marion, Ohio offers an especially grim example. By mid-May, over 2,000 people, 80 percent of those incarcerated there, have tested positive (The New York Times Editorial Board 2020). 154 members of the 350-person staff tested positive as well (ibid.).

As of May 2020, the Vera Institute of Justice reports that there are 20,000 confirmed cases of COVID-19 in jails and prisons and 325 related deaths (Vera 2020). The number is likely much higher—it is difficult to know the scale of the problem because, even in the United States, data is decentralized.

Given that people of color and members of other socially disadvantaged groups are vastly overrepresented at all levels of the criminal justice system, including in jails and prisons, the crisis of COVID-19 and incarceration is starkly racialized as well; the pandemic inherits and compounds existing disparities in the justice system. Correspondingly, quelling ongoing outbreaks in jails and prisons is a matter of substantive racial justice and justice for members of intersectionally oppressed groups. As I discuss in later in the paper, the impact of the criminal justice system in “normal” circumstances ought to be worrisome for prioritarians or anyone concerned with the wellbeing of socially disadvantaged people, given that the system’s structural features work to make those who are already poorly off worse off yet. To the extent that the COVID-19 crisis intensifies the effects of incarceration to make people even worse off, it is a disaster for social equality.

My concern in this section of the paper is whether the punishments endured by those incarcerated under present, non-ideal circumstances related to the COVID-19 epidemic can be morally justified. Punishment, by definition, involves the infliction of burdensome sanctions and deprivations. Punishment also expresses censure, or public condemnation, of people’s actions. In order for the state to inflict deprivations on its citizens, moral philosophers have generally agreed that legal punishment requires robust moral justification. Though there are a variety of approaches to justifying legal punishment, they fall into two major camps: retributivism and consequentialism.

Retributive justifications of punishment draw on the notion of desert, requiring that the state be justified in inflicting punishment X on person A. More specifically, A deserves X because of wrongdoing Y. For retributivists, punishment is a deserved response to wrongdoing. In addition to justifying why we can punish at all, retributivists must also consider how much punishment the state is justified in inflicting. There, they draw on principles of proportionality, which require that the severity of a punishment be a function of the seriousness of the crime. Less serious crimes merit less severe punishments, and vice versa.

Consequentialists require not that punishment is a deserved response to wrongdoing, but rather that we are justified in punishing people because doing so ultimately yields positive consequences. Correspondingly, consequentialists usually appeal to punishment’s ability to rehabilitate and incapacitate people, and to deter them—both the person punished and the general public—from committing (future) crime. Thus, punishment is justified because, though it involves imposing harm, it ultimately curbs crime and produces net good. Consequentialist theories of punishment must also account for severity, since punishment is only justified to the extent that it achieves the good at which it is aimed. Hence, consequentialists care about proportionality, too, albeit indirectly.

For both types of theories, then, whether some instance of punishment is justified depends on its severity. But how do we measure severity? Philosophers have proposed different metrics. Some have suggested measuring punishment severity objectively, by considering the extent to which a person is made worse off by virtue of being punished. Andrew von Hirsh, for instance, suggests measuring punishment severity in terms of how it impacts people’s “living standards,” or the resources and capabilities necessary to achieving an acceptable quality of life (1998, 60). An alternative approach, endorsed by Adam Kolber and others, is to measure punishment severity subjectively—in terms of the actual amount of suffering the person being punished endures (2009). Kolber’s approach obliges us to account for the psychological effects of punishment in addition to its observable, objective effects on wellbeing.

Drawing on the standard conceptions of punishment justification and metrics of punishment severity, I’ll provide a relatively simple argument for the unjustifiability of incarcerating people during the present pandemic. Let’s start by assuming that under normal circumstances—absent issues stemming from COVID-19—people were sentenced proportionally and that their punishments were justified.[1] We can then apply the following to principles to those cases:

PROPORTIONALITY-JUSTIFIABILITY: Only proportionately severe punishments are justified, and substantially increasing the severity of instances of justified punishment makes those instances unjustified.

COVID-19 SEVERITY: In many cases, circumstances related to COVID-19 substantially increase punishment severity.

The two principles lead us to the following conclusion:

COVID-19 JUSTIFIABILITY:In many cases, instances of punishment (given the circumstances of COVID-19) are unjustified.

Accepting the conclusion means that if we continue incarcerating people as normal under present circumstances, we will effectively enact many unjustified punishments. This outcome should clearly be avoided.

The rest of this section is structured as follows: first, I will defend PROPORTIONALITY-JUSTIFIABILITY and COVID-19 SEVERITY, the former discussion being much briefer than the latter. Then, I will consider and respond to an objection to COVID-19 SEVERITY: that we need not account for harms related to the pandemic in assessing punishment severity, given that they were not intentionally imposed on people by the legal system or its actors.

PROPORTIONALITY-JUSTIFIABILITYreflects the consensus among criminal law theorists: that punishment is only justified if it is appropriately severe. Correspondingly, inappropriately severe punishments are unjustified. We can understand appropriateness or proportionality in terms of retributivist and consequentialist theories of punishment.

For the retributivist, the severity of the punishment becomes disproportionate when compared to the seriousness of the crime. If the seriousness-severity calculus was justified at the outset, making a punishment for the same crime more severe disrupts it, in turn making this instance of punishment unjustified. For the consequentialist, the potential goods associated with justified punishment outweigh the harm it inflicts on individuals; similarly, increasing harms on individuals throws a wrench into the cost-benefit analysis, making previously justified harms potentially unjustified.

We can understand COVID-19 SEVERITYin terms of the accounts of punishment severity described above and the conditions in prisons and jails during the pandemic. I mentioned two possible metrics for evaluating severity above: (i) effects on “living standards” and (ii) subjective experiences of suffering. The present pandemic makes punishments more severe in both of these senses. On the living standard view, punishments are more severe to the extent that they threaten the capabilities and resources necessary to have a reasonable standard of life. Health is clearly among the relevant capabilities; long term effects on one’s health (and obviously, death) make it more difficult or even impossible for people to have a high quality of life. Even in minor cases, contracting an illness makes people temporarily worse off; in severe cases, those effects are even more pronounced.

The subjective case is analogous. Though subjective and objective effects can be difficult to pick apart, it is clear that serious illness makes people suffer, subjectively speaking. Moreover, the constant stress of living in a high-risk environment related to ever-present risk of contracting the disease can lead to mental anguish as well. This stress is compounded by being unable to visit with family, many of whom are suffering due to the virus at home. One person incarcerated in New York during the pandemic reported, “I haven’t been this stressed out since I was on trial … it’s the fear of calling home and finding out someone else I held close to the heart passed away. It’s the fear of never being able to see someone I love ever again and not being able to pay my proper respects” (Speri 2020).

Note that circumstances related to COVID-19 will make people’s punishments more severe in many, but not all cases. Some people who are incarcerated amidst the current crisis may not experience any increase in punishment severity because of present conditions. There are two variables that increase the possibility that cases of punishment will become disproportionately severe: (i) the likelihood that people will become seriously ill if they contract the virus and (ii) the severity of the punishment they were assigned in the first place. Though people contracting communicable diseases in part because of their incarceration is morally worrisome in all cases, it is especially so when people are serving short sentences for minor crimes and are at a high-risk of dying if they do become infected. As I will discuss in the last section of this paper, these variables ought to be taken into account in designing emergency policies.

The issue of the disproportionality is especially worrisome for those who are detained pretrial. People detained pretrial have not been deemed deserving of punishments at all since they are not yet convicted. Putting people at a high risk of becoming seriously ill despite their legal innocence requires robust moral justification. We cannot appeal to desert here since people are legally innocent and are thus left with consequentialist justifications, and more specifically, incapacitation. As I will discuss in the following section, it seems that we need to carefully evaluate whether people pose acute threats to public safety in making judgements about the justifiability of incarcerating them under present circumstances.

I’d now like to consider an objection to the view defended here: that we need not take the harms associated with (potential) COVID-19 infection into account when calibrating punishment severity because those harms are not intentionally imposed by legal system actors.

This objection reflects a commonplace condition that criminal law theorists place on punishment: to count as punishment, a harm or deprivation need be intentional. H.L.A. Hart, for instance, requires that punishment be “intentionally administered” and “deliberate[ly] impos[ed]” (Hart 2008). Correspondingly, criminal law theorists can avoid the burden of justifying the collateral consequences of incarceration or the violence that inevitably takes place in jails and prisons on the grounds that those deprivations are not intended and do not need to be justified as punishment or taken into proportionality calculations. Call this the “Unintentional Objection.”

I will provide a two-fold response to the “Unintentional Objection.” First, I argue that the notion that punishment need be intentional in the first place may be confused, given (a) our intuitions about punishment severity and (b) the lack of clarity about whose intentions matter and what the objects of the relevant intentions are. The second element of the objection is that even if intentions are necessary for punishment, punishment theorists must justify the unintentional consequences of punishment too; thus, even if unintentional, inordinately severe punishments may be unjustified.

Kolber draws on this idea in his “Unintentional Punishment” when he shows that “our intuitions about the severity of punishment take into account more than just intentionally produced hardships” (Kolber 2012, 5). Kolber asks us to imagine a case where two offenders—he calls them Purp and Fore—endure what appear to be identical 3-year prison sentences. However, while the judge who sentenced Purp intended the myriad harms she experienced in prison, the judge who sentenced Fore merely foresaw those harms, only intending that Fore’s freedom of movement be limited. The issue is that if one requires that only intended deprivations be counted when measuring the severity of punishment, then Purp’s punishment was significantly worse than Fore’s. But to any outside observer—and indeed to Purp and Fore themselves—the conditions of their confinement were identical, and their punishments comparably severe.

One way to frame the issue is to note that the intention requirement on punishment puts too much stake in what’s in the heads of decision-makers as opposed to existing institutional practices. As Kolber notes, we intuitively think that “the mental states of their punishers (be they judges, prison personnel, legislators, voters, or some combination of all of these) do not affect the severity of their sentence” (ibid., 16).

The counterintuitive implications in Kolber’s case reflect deeper worries about whose intentions matter in the first place, an issue to which—to my knowledge—no criminal law theorist has managed to respond successfully. Doug Husak describes the problem:

Thus we must decide whose intentions should be taken as decisive in categorizing an expression as an instance of censure. Should we focus on the intentions of legal officials, the beliefs of the person to whom the expression is directed, the public at large, or some other agent(s) altogether? Even if we restrict our attention to the expressions of legal officials—probably the most common answer—we must decide what to say when their intentions diverge. The problem is not simply that of locating a single intention in a legislative body composed of several individuals. Even if this familiar difficulty could be surmounted, the intentions of the legislature and that of a judge (not to mention those of other legal officials) might well differ in a particular case. (2019)

As Husak notes here, even if we can decide whose intentions matter in the first place, we will reasonably select a group of people (as opposed to an individual), which gives rise to another problem: what to do when their intentions diverge.

Another equally concerning worry pertains to what the content of the intention in question is and whether we can even coherently formulate it in the first place. Intentions are typically thought to be propositional attitudes, involving (i) a pro-attitude towards some desirable state and (ii) a belief that a certain action will achieve that desired state. Here, the pro-attitude would be directed towards proportional punishment—i.e., punishment of a specified severity. But given that criminal law theorists differ immensely in their accounts of how to measure severity, there are likely to be huge variations in what intentional infliction means for them; the issue is likely worse for actors in the criminal justice system, given that they may attach disparate objects to the intention. Thus, the problems for the intention requirement may run deeper—is it even coherent to think that we can form an object of intentions to punish?

I think that considering these counterintuitive implications of the intention requirement, and the lack of a clear account of (i) whose intentions matter and (ii) what the intention ought to look like, the case for the intention requirement does not look strong. Further, I think the requirement works to distance us—in our theorizing—from what normally looks like punishment in its lived reality.

But even if one does want to hang on the intention requirement, they cannot avoid the issues of justification upon which this critique rests; in other words, even if one thinks that the allegedly unintended features of incarceration described do not constitute punishment and should not be considered in the proportionality calculus, those foreseen consequences need still be justified somehow. Of course, just because an outcome is not intended but only foreseen does not mean that a foreseen side effect is de facto justified. For instance, if I intend to bake a cake, foreseeing that it would burn down your house if I do, the foreseen consequence of burning down your house is not simply justified because I did not intend it. The same applies to the unintended consequences of punishment.

Kolber defends the view that the state must justify the foreseen consequences of punishment by drawing on what he calls the Justification-Symmetry Principle.

JUSTIFICATION-SYMMETRY PRINCIPLE: any state actor who harms an offender in the name of just punishment must have a justification for doing so if you or I would need a justification for causing the same kind of harm to nonoffenders. (2012)

For Kolber, the state has the same justificatory burdens as individuals; if the state imposes a harm, they, too, like individuals, must justify it. This applies to both foreseen circumstances of punishment, as well as intended consequences. Applying the principle to the case of the pandemic, it is clear that exposing someone to a very high risk of contracting a virus against their will warrants justification.

Further, Kolber notes that if the punishment theorist still wants to maintain that they need not build the justification of foreseen consequences into their theory, theories of punishment become grossly “anemic.” They may defend what Kolber calls a “shadow theory,” wherein the many unintended deprivations associated with incarcerations need be justified not by a theory of punishment, but rather some other additional political or moral theory. Kolber notes that,

this strategy leads to a surprisingly anemic version of retributivism. By claiming that a theory of punishment need not justify a certain purposeful infliction, this strategy implicitly concedes that retributivism cannot, on its own, justify punishment practices like incarceration, because the incarceration of any particular offender will inevitably have foreseen and foreseeable side effects. (ibid., 16)

In other words, the strategy estranges the criminal law theorist from being able to justify anything that looks to be punishment in our present criminal law institutions.

Thus, on one hand, there is reason to doubt that intention should be a necessary condition of punishment in the first place, and if it is, theories of punishment need some account to justify those unintentional harms, or else they run the risk that their theory is too anemic to justify anything resembling punishment under present conditions.

I think these worries should lead us to abandon the intention requirement on punishment severity. But even if we want to hold on to the condition, the unintentional harms associated with incarcerating people during COVID-19 must be justified nonetheless. When we take these nonintentional harms into account, many individual instances of punishment will become disproportionately severe and, since justification requires appropriately severe punishments, unjustified.

If we continue incarcerating people as normal under present circumstances, we will effectively dish out many unjustified punishments. Clearly, we ought to avoid this outcome. One way to do is to implement emergency release policies, which I will describe in more detail in the following section.

THE PUBLIC INTEREST CONSTRAINT

The preceding section made a relatively simple argument from within the bounds of criminal law theory—on standard views of the justification of punishment and metrics of punishment severity, punishing people given the circumstances related to COVID-19 will often be unjustified. This section is more controversial, defending the idea that we ought to take a broader set of factors into account in evaluating the moral justifiability of criminal law policy. This discussion is especially salient in the context of the coronavirus crisis, though the approach works to reorient our thinking about the role of the criminal law more broadly.

My basic argument is that (1) we ought to think about the criminal law as a vehicle for promoting legitimate state interests, and correspondingly, that the justice system must be held to the same justificatory standards as other state institutions. Among these standards is the idea that (2) institutional policies must be in the public interest: public policies and practices are unjustified if they either undermine the wellbeing and welfare of the general public or undermine the provision of common goods (to the extent that those negative effects are not outweighed by comparably positive effects on public welfare or common goods). In the case of the coronavirus crisis, (3) enacting criminal law policy as usual ultimately threatens public welfare and wellbeing and undermines the provision of common goods, triggering the constraint. I will begin with a broad discussion of (1) and (2), moving to consider how the discussion bears on the present crisis (3) at the end of the section.

It is a mistake to think about justificatory questions related to the use of the instruments of the criminal law as existing on some normative island, where all that matters are a limited set of concerns related to interpersonal morality. It is important that we inquire not only about the wrongfulness of acts and the calibration of appropriate punishments but also about the broader unintended downstream consequences of the justice system, including, for instance, its impact on social equality or public health. On my view, in making policy-relevant normative claims in criminal law theory, we should take into account present, non-ideal realities and consider the impact of the criminal law on social goods, broadly construed.

My approach aligns with what has been called a public law conception of the criminal law. Vincent Chiao, who endorses a public law view, notes that the criminal law is

an integral component of society’s basic structure, and should be understood and justified in those terms, regardless of whether it does or does not additionally punish moral wrongdoing as such. (2016, 139)

Anthony Duff endorses a similar view of the criminal law and the state in his Realm of the Criminal Law, requiring that the goal of criminal justice systems be to “help to constitute as well as to sustain what we call the ‘civil order’ of the polity,” where the civil order is conceived as a “set of goals and values through which a polity constitutes itself … as a political community” (2018, 7). Duff maintains that “we must therefore theorize criminal law as part of the institutional structure of the political community…[I]ts institutions must be theorized in terms of their contribution to the polity’s existence and its good” (ibid., 149).

Conceiving of the criminal law as first and foremost a subsidiary of the state and vehicle for promoting its interests has important effects on normative theorizing. Specifically, it leads us to endorse a Justification-Symmetry Principle, not much unlike one defended by Kolber in his discussion of whether the state is justified in imposing unintentional harms on incarcerated people. Remember that Kolber requires that harm imposed by state actors warrants justification if any person, “you or I,” would need justification in imposing that harm (2012). Kolber’s principle requires that we hold criminal law practices accountable to standards outside of the criminal law’s domain; similarly, we may endorse:

CRIMINAL LAW JUSTIFICATION SYMMETRY: criminal law policy ought to be held, at minimum, to the same justificatory standards as other public policy.

The idea here is that the criminal law is not an exceptional moral domain; its institutional practices ought to be accountable to the same moral standards that bear on other public institutions. For instance, if criminal law policies have morally-relevant negative consequences, they need to justify them, in the same way other institutions must. Further, it is plausible that criminal law policy ought to be held to even higher justificatory standards given that the criminal law inherently involves infringements on individual liberties, both in terms of the acts it prohibits and the restrictions associated with legal punishment.

Now, determining the justificatory standards that ought to apply to state institutions is a controversial behemoth of a topic, tied to one’s big-picture views of what justifies the existence of the state and its practices. We can imagine, for instance, a Rawlsian application of CRIMINAL LAW JUSTIFICATION SYMMETRY. For Rawls, institutions are the subjects of inquiry about social justice given that “major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (Rawls 1971, 6). Rawls gives us two principles of justice that ought to apply to those institutions. First, institutional structures must be compatible with each person having an indefeasible claim to a fully adequate scheme of basic liberties compatible with a similar scheme for others. Second, social and economic inequalities that result from institutional practices are justified if they (i) are attached to offices and positions open to all (Equality of Opportunity) and (ii) are to the greatest advantage to the least advantaged in society (The Difference Principle).

If we accept Rawls’s approach and CRIMINAL LAW JUSTIFICATION SYMMETRY, we ought to hold criminal justice institutions accountable to these principles of justice, too. This has important results. Consider Rawls’s restrictions in light of the fact that socially disadvantaged people are more likely to be involved in the justice system and are usually made worse off by virtue of their involvement. Though more details of the case are needed, it may be that the inequalities generated by criminal justice system practices in general violate the Difference Principle and thus require revision.

Most criminal law theorists would likely accept a version of the CRIMINAL LAW JUSTIFICATION SYMMETRYprinciple. After all, rejecting it would require arguing that criminal law institutions are not sensitive to the same sorts of concerns as other state institutions, which seems implausible. The scope of morally-relevant questions related to criminal justice institutions is often neglected—these institutions are many-noded beasts! From policing to court processes to incarceration, the system presents an array of difficult normative concerns. Among these are questions about what to criminalize, what collateral consequences should be attached to convictions, how the police ought to behave, and when to refrain from using the instruments of the law altogether. How we answer them will have important, morally-relevant effects on individuals and society at large. The institutional architecture of criminal justice systems at all of these levels ought to be accountable to the justificatory standards to which we hold other public policy and take into account the presence of background inequalities. Below I will focus on one crucial node in the justice system apparatus: choices about what to criminalize.

Of course, it is well beyond the scope of this paper to defend a view of the moral limits of public policy. Rather, I want to present what I imagine to be a flexible and relatively uncontroversial constraint on public institutional practices.

THE PUBLIC INTEREST CONSTRAINT: A public institutional policy or practice is unjustified if it undermines the welfare and wellbeing of the general public or undercuts the provision of substantive common goods.

The constraint should be understood in terms of costs and benefits: either that a policy or practice does more harm than good for the welfare or wellbeing of the general public or it undermines the provision of common goods more than it promotes them. The concept of common goods is admittedly obscure. Here I intend to refer to a privileged set of interests that many of us share and that public institutions are tasked with promoting. Waheed Hussain’s Stanford Encyclopedia of Philosophy entry on the topic provides a helpful taxonomy of these.

The interest in taking part in the most choiceworthy way of life (Aristotle Pol. 1323a14–1325b31); the interest in bodily security and property (e.g., Locke 1698; Rousseau 1762); the interest in living a responsible and industrious private life (Smith 1776); the interest in a fully adequate scheme of equal basic liberties (Rawls 1971; 1993); the interest in a fair opportunity to reach the more attractive positions in society (Rawls 1971); and the interest in security and welfare, where these interests are understood as socially recognized needs that are subject to ongoing political determination (Walzer 1983). (Hussain 2018)

I will not defend any fleshed-out conception of the common good in this paper. I hope that the reader will accept the general form of the constraint, filling in the conception of public goods as they like. One may opt to include all concerns listed above, just some of them, or some that aren’t listed. Soon, I will argue in favor of the more modest idea that criminal justice policies that undermine public health, perpetuate inequalities, and communicate a public lack of concern for incarcerated people undermine the provision of common goods.

Together, CRIMINAL LAW JUSTIFICATION SYMMETRY and THE PUBLIC INTEREST CONSTRAINT leave us with the following principle: that criminal justice system practices are unjustified if they undercut substantive common goods, or where the negative effects on substantive common goods are outweighed by the practice’s positive effects on public goods. I take the two principles that yield this conclusion to be fairly uncontroversial, so perhaps the argument is convincing on its own. Moreover, though, the principle aligns with reasonable consequentialist and retributivist approaches to criminal law theory.

The public interest constraint and the idea that criminal law institutions are not immune to the norms that govern other public institutions reflect a consequentialist picture of the justificatory aims of the criminal law, since many of the relevant costs and benefits will likely be factored into consequentialist calculations in the first place. However, the constraint is not straightforwardly consequentialist and ought to be convincing to those who do not endorse that approach. More specifically, I am not committed to the idea that (i) consequences are all that matter or that (ii) all consequences matter. My view is, rather, that in thinking about the criminal law as a political instrument, there are some classes of costs we must care about—specifically, those that have negative effects on substantive common goods and threaten the welfare and wellbeing of the general public.

Those who opt to focus on more narrow aims like retributive justice in approaching justificatory questions about the criminal law ought to be concerned with public goods too. No plausible theory of the criminal law can mandate achieving retributive justice at the expense of all other social goods; rather, retributive justice should be conceived as one good among many. This idea is reminiscent of Chiao’s discussion of the functional priority of cooperative rule enforcement over punishment (2016). My contention is that among the costs that must be considered are those that are relevant to public interests.

This idea is supported by our intuitions in cases where enacting retributive justice (via criminal law policies) clearly runs contrary to public interest:

Expensive Enforcement: suppose that some state is considering whether to criminalize the distribution of some drug C. Drug C is not very popular, though it is harmful; stipulate that because of this, distributing C is wrongful, and people who do it deserve to be punished. However, because of some details about C, detecting people who distribute C is incredibly expensive. In order to detect and prosecute C distributors, the government considering criminalizing C would have to significantly reinvest funds from other social welfare programs: housing, education, etc. Suppose, too, that providing housing, education, and social welfare are in the public interest.

We would need to fill in more details of the case to conclude that the state would be unjustified in criminalizing C; nonetheless, it is clear that public goods must be taken into account in making a decision about C-criminalization, even for a staunch retributivist. Demands of legal moralism cannot trump all other concerns.

Applying the constraint allows us to frame the issue of COVID-19 and emergency release as follows: circumstances related to the present crisis have made it so that the extent to which incarcerating people threatens public welfare and wellbeing and risks undermining important public goods is greater than usual. These negative consequences warrant justification; morality demands that we take them into account in justifying criminal justice system practices. Continuing to incarcerate people as usual will be unjustified if doing so ultimately undermines public welfare or other public goods—if the negative consequences of justice system practices outweigh its public benefits.

Unsurprisingly, working out whether continuing to incarcerate people as usual does ultimately run contrary to public welfare and common goods leaves us with a messy cost-benefit calculus. In what follows, I will try to enumerate some important classes of costs and benefits. I will first consider three classes of negative effects of continuing to incarcerate people as usual that work against public welfare and other common goods. Second, I will consider some of the unwelcome consequences of implementing broad early release policies, considering how we ought to design policies in response to those challenges.

Though I have chosen to focus on the case of early release here, there are analogous reasons in support of changing other criminal justice system practices under present conditions—for instance, declining to prosecute low-level crimes, as many prosecutors have opted to do.

Let’s begin by considering the consequences of not making changes to criminal justice policy in light of the present crisis—continuing to require people to complete their sentences as usual­. I see there being three classes of new costs of continued incarceration that result from maintaining the status quo amidst the present crisis: (i) public health effects, (ii) effects on social equality, and (iii) communicative effects. Importantly, all of these results run contrary to public interest in the sense evoked in the public interest constraint.

Costs of Continued Incarceration

(i) Public health effects

The public health costs of many new COVID-19 infections—resulting in this case, from policy decisions—should be worrisome to everyone. One facet of this is the effects on incarcerated people directly: given the size of the criminal justice system in the United States, nonintervention may lead to the potential infection of millions of incarcerated people. These people are disproportionately high risk and will be most often exposed against their will.

But continuing to incarcerate people will have broader effects as well. A recent study produced by the ACLU noted that existing epidemiological models failed to account for the impact of the virus on the incarcerated populations. Given inevitable contact between carceral facilities and the “outside” world­, outbreaks in jails and prisons will have marked effects on the trajectory of the pandemic (ACLU 2020). The report estimates that if we fail to radically change present incarceration practices, as many as 200,000 people could die in the United States—double the number reported in many current models. The grim findings stem in part from the fact that prison staff and people who will unavoidably return home risk spreading the virus to their families and communities. And the increase in infections has indirect effects too, distressing the availability of healthcare resources for other people. The study suggests that we can save the lives of 23,000 people in jails and prisons and 76,000 in the broader community by stopping arrests for minor offenses and doubling early release rates.

Public health is clearly a central element of welfare and wellbeing and is central to protecting common goods of the sort listed above. These public health costs are factored into considerations about an array of emergency policy decisions, including the enforcement of social distancing measures. Similarly, they ought to be taken into account in designing emergency criminal justice policy.

(ii) Impact on social equality

It is well established that people in disadvantaged social positions are more likely to be involved in the criminal justice system. In a variety of contexts, racial minorities are disproportionately represented in jail and prison populations. Moreover, justice-system-involved people also tend to have lower levels of educational attainment, a problem compounded by limited access to education within carceral facilities. They also disproportionately live with serious mental and physical health issues.

The impact of the criminal justice system ought to be worrisome for prioritarians or anyone concerned with the wellbeing of the worst off given that, in practice, the system worsens their wellbeing; in a slogan, the criminal justice system works to make the worst off worse off yet. In this, it has worrisome effects on social equality.

This issue reminds us of the devastating toll the crisis is having on racial minorities more broadly. Data from several hotspots in the US illustrates that Black and Hispanic Americans are dying of the virus at rates much higher than white Americans. In Chicago, for instance, though Black Americans comprise only a third of the city’s population, they make up over 70 percent of COVID-19 related deaths (Yancy 2020). There are several plausible explanations of this effect. For one, people living in poverty, who are disproportionately members of racial minorities, are more likely to have chronic diseases like asthma, diabetes, and hypertension. At the same time, they have limited recourse to health resources, worsening the effects of poverty-related illness. These social determinants of health make it so that even in “normal” times, health and wellbeing, like other social goods, are not fairly allocated. In the case of a public health crisis, these effects are amplified.

To the extent that the COVID-19 crisis compounds the effects of incarceration to make people even worse off, it is a disaster for social equality. The perpetuation of social inequalities is an unwelcome outcome and likely runs contrary to common goods—depending, or course, on one’s worked out view of what should be involved in the common goods.

(iii) Communicative effects

Unwillingness to reconfigure criminal justice system practice amidst the current and future devastation related to COVID-19 in jails and prisons works to communicate a troubling public message: that the wellbeing of incarcerated people doesn’t matter. Against a backdrop of the historical and continued abuse and neglect of incarcerated people in the United States and elsewhere, this public-facing disregard is morally worrisome.

The communicative effects of nonintervention undermine people’s perception of the state’s priorities and values: mainly, that everyone, regardless of their membership in some social group, feels as though their interests are equally valued by the state. That everyone feels as though their interests is valued by the state clearly seems to be in public interest—perhaps constituting, on its own, a common good.

These three effects need to be taken into the justificatory calculus in determining what sorts of policies we ought to employ at the present moment. Even if all of the instances of incarceration under consideration were justified in the first place, these serious negative effects merit further justification. Note that these concerns need not be taken in tandem; public health effects alone may be sufficient to trigger the constraint. Those effects are less controversial common goods than the others; hopefully, many people will be on board with the public health costs, though I imagine people may be more hesitant about impact on social equality and communicative effects.

Costs of Early Release and Strategies of Mitigation

In order to consider whether nonintervention ultimately violates the public interest constraint, let’s now consider the negative effects of intervening by implementing broad policies that result in the release of people from prison. In my view, these issues can largely be addressed through policy design, by way of the three proposals I present below.

Three potential issues that may arise upon implementing broad emergency release policies come to mind, each of which has substantial costs. The first is the fairly obvious issue that people who are released may commit crimes, destabilizing public safety during this time of crisis. A second issue is that people may already be infected with the virus and risk spreading it elsewhere. A third issue is that people, upon being released from prison, will not have a safe place in which to return, given issues already facing the provision of social services—like services for unhoused people—during the crisis.

These are serious negative outcomes that may arise in response to the implementation of broad early release policies. However, they are not insurmountable, unlike the costs related to nonintervention. Rather, they give us important insights into how we ought to respond to the moral crisis at hand. In my view, they lend support to three concrete solutions: the creation of emergency parole boards, provision of widespread testing for those who have been exposed to the virus (and alternatively, strategies for non-carceral quarantine), and comprehensive reintegration support for those released.

(i) Emergency parole boards

For people convicted of serious crimes, decision-makers ought to be fairly confident that, upon release, they will not be serious threats to public safety, especially given the limited capacity of the justice system to deal with future crimes. Assessing recidivistic risk is notoriously difficult and many existing risk-assessment tools have worrisome discriminatory effects. Nonetheless, assessing risk in this context is very important and unavoidable. Consider, for instance, the disaster of releasing people who will commit intimate partner violence. This issue is even more worrisome given currently-in-place stay-at-home orders.

Perhaps to the dissatisfaction of the reader, it is not my goal to provide details about how these risk assessments ought to be conducted. But just as we are creating bodies of experts to deal with the impact of the crisis in other domains, we ought to do the same in creating a mechanism for making these difficult judgements. Along these lines I propose creating Emergency Parole Boards to play this role. The boards ought to be composed of social workers, health professionals, legal system actors, and community members.

It may be best if the Emergency Parole Boards proceed according to a multi-stage approach. First, people who are low-risk, including those convicted of drug offenses and non-violent crimes, along with those who are incarcerated for their inability to afford bail, ought to be released immediately. In that stage, the Emergency Parole Board should also evaluate the cases of those who are at high-risk of developing severe complications if they were to contract COVID-19. In order to substantially impact the number of incarcerated people, it is imperative to evaluate cases where people are convicted of more serious offenses as well. As Insha Rahman, Director of Strategy and New Initiatives at the Vera Institute of Justice, remarked, “If we don’t tackle the question of people serving time on violent convictions, we can’t meaningfully stop the spread of Covid-19. … That’s just not going to make a meaningful dent” (Speri 2020).

The number of people who do not pose pressing public safety threats may be higher than one assumes. A 2016 report by the Brennan Center for Justice found that 40 percent of people in US prisons and jails were incarcerated for no pressing public safety reason (Eisen et al. 2016). Drawing on criminal codes and data about recidivism and the effectiveness of non-carceral strategies, researchers found that many people incarcerated for lower-level crimes would be more effectively “punished” through alternatives to incarceration and that, in terms of public safety, we could safely shorten the sentences of many people convicted of more serious crimes.

Elderly people are especially unlikely to commit further crimes upon release. A 2017 report by the United States Sentencing Commission found that people who were over the age of sixty-five when released from prison had just a 13 percent chance of being rearrested within eight years (United States Sentencing Commission 2017). On the other hand, those under twenty-one are nearly 70 percent likely to be re-arrested. Given that the coronavirus is especially dangerous for elderly people, older people make ideal candidates for early release.

In addition to existing issues with risk-assessment tools, emergency release assessments will need to be calibrated to deal with issues related to present circumstances; data indicates, for instance, that there has been a substantial decrease in violent crime in many jurisdictions. It is likely the case that many people will not reoffend as usual.

Note that if many, but not all, people were released from carceral facilities, we could avoid many of the costs of nonintervention (i-iii above). Many of the public health costs and related consequences understood in terms of equality and communicative salience are directly related to crowding in prisons. Dramatically reducing the number of people in prisons would curb many of these effects.

Moreover, the parole boards would allow criminal justice actors and social workers to engage socially-distanced monitoring. Though I am proposing an immediate solution here, it is likely the case that issues related to COVID-19 will continue for the foreseeable future. Relatedly, the prospect of people returning to jails and prisons upon the relaxation of social distancing measures is possible, albeit logistically and administratively challenging in practice. That said, it will likely be best if the emergency release measures are permanent in many cases, following a period of virtual monitoring.

(ii) Widespread testing

Safely releasing people from prisons and jails is contingent on the availability of testing for those who have been in facilities with infected people. There is already a moral imperative to increase the availability of testing; the case of incarcerated people adds urgency to this challenge.

As a fallback, it may be possible in some jurisdictions to transfer incarcerated people to facilities where they can better practice social distancing while isolating. In this respect, New York City has made use of the city’s empty hotels, providing temporary shelter for unhoused people to slow the spread of the virus (Connelly 2020). Similar strategies could be adopted for people recently released from jails and prisons.

Along similar lines, people have proposed housing unhoused people in hotels in New York City. This could be a possibility as well.

Note that this need not apply to those incarcerated everywhere, since there are not confirmed infections in every jail and prison. In such cases, the risk of the harms above is still present and emergency release measures ought to still be implemented, though they may need not be contingent on widespread testing.

(iii) Reintegration support

For some—but notably, not all—incarcerated people, it is not obvious where they will “return” upon release. One worry is that these people may put additional stress on social services, which are already struggling to meet the needs of people who are unhoused in the face of the present crisis. As in the case with testing, I believe the case of incarcerated people adds more support to the idea that we ought to be putting substantial resources into dealing with the welfare of socially vulnerable people during the crisis.

However, it is not the case that all incarcerated people are in this position—many will have no trouble returning to friends and family. In Emergency Parole Board negotiations, the board should consider people’s reintegration plans, and people who do not have immediate plans for meeting basic needs including housing ought to be connected with social services.

This list is by no means exhaustive or comprehensive—I suggest these strategies specifically given their ability to mitigate the harms of nonintervention without running into the negative consequences of emergency release policies. Moreover, the policies need more detailed development, and their implementation will obviously be challenging. However, the problem of incarceration during COVID demands attention and radical solutions. In this domain and others, the crisis necessitates human ingenuity and the reimagination of political and institutional practices.

CONCLUSION

I hope this discussion leaves readers more confident in the moral imperative of radically changing justice system practices in light of present circumstances. I argued first that if we continue incarcerating people as usual, we will effectively dish out many punishments that are unjustified on standard justificatory theories given that circumstances related to the coronavirus crisis increase punishment severity. I then showed that there are serious issues with the idea that we need not take unintentional aspects of punishment, like the harms associated with COVID-19, into account in assessing severity and justification. Finally, I proposed an alternative approach to justifying criminal law policy: that we ought to take public welfare and wellbeing and the provision of common goods into account in assessing the justifiability of criminal law practices. I then suggested that continuing to incarcerate people as usual has substantial negative effects on public wellbeing and common goods. On the public interest view, then, those policies are potentially unjustified. I closed by proposing concrete strategies that work to mitigate the consequences of nonintervention while preserving other relevant common goods and public welfare.

This non-ideal, public interest-focused approach allows us to radically reimagine the design of criminal law policy beyond the present pandemic. Thinking of the criminal law as an institution tasked not with punishing wrongdoing but rather with promoting public interests reorients how to think about the design of the system. Correspondingly, emergency release policies implemented in response to the crisis can offer a blueprint for broader decarceration strategies. Many of the policies that contributed to the moral atrocity of mass incarceration in the United States and elsewhere do not ultimately protect common goods and promote public welfare. Thinking about emergency release in response to the coronavirus pandemic invites us to reconsider those policies in favor of less-harmful, non-carceral alternatives.

REFERENCES

ACLU (American Civil Liberties Union). 2020. “COVID-19 Model Finds Nearly 100,00 More Deaths Than Current Estimates, Due to Failure to Reduce Jails.” https://www.aclu.org/sites/default/files/field_document/aclu_covid19-jail-report_2020-8_1.pdf.

Aristotle. 1984. Politics. Translated by Carnes Lord. Chicago: University of Chicago Press.

Binswanger, Ingrid A., Nicole Redmond, John F. Steiner, and LeRoi S. Hicks.2012. “Health Disparities and the Criminal Justice System: An Agenda for Further Research and Action.” Journal of Urban Health 89:98–107. https://doi.org/10.1007/s11524-011-9614-1.

Chiao, Vincent. 2016. “What is the Criminal Law For?” Law and Philosophy 35 (2): 137–63. www.jstor.org/stable/44980957.

Duff, R. Antony. 2018. The Realm of Criminal Law. Oxford: Oxford University Press.

Eisen, Lauren-Brooke, James Austin, James Cullen, Jonathan Frank, and Inimai M. Chettiar. 2016. “How Many Americans Are Unnecessarily Incarcerated?” Report by the Brennan Center for Justice. December 9. https://www.brennancenter.org/our-work/research-reports/how-many-americans-are-unnecessarily-incarcerated.

Hart, Herbert Lionel Adolphus. 2008. Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Oxford University Press.

Husak, Doug. 2019. “The Metric of Punishment Severity: A Puzzle for the Principle of Proportionality.” In Of One-Eyed and Toothless Miscreants: Making the Punishment Fit the Crime?, edited by Michael Tonry, 97–126. Oxford: Oxford University Press.

Hussain, Waheed. 2018. “The Common Good.” Stanford Encyclopedia of Philosophy https://plato.stanford.edu/entries/common-good/.

Kolber, Adam J. 2012. “Unintentional Punishment.” Legal Theory 18 (1): 1–29.

——— 2009. “The Subjective Experience of Punishment.” Columbia Law Review 109: 182–236.

Locke, John. 1698 [1988]. Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press.

Rawls, John. 1971 [1999]. A Theory of Justice. Harvard University Press.

——— 1993 [2005]. Political Liberalism (Expanded edition). New York: Columbia University Press.

Rousseau, Jean-Jacques. 1762 [1997]. ‘The Social Contract’ and Other Later Political Writings, (Cambridge Texts in the History of Political Thought), edited and translated by Victor Gourevitch. Cambridge: Cambridge University Press.

Sawyer, Wendy and Peter Wagner. 2020. “Mass Incarceration: The Whole Pie 2020.” Prison

Policy Initiative, March 24. https://www.prisonpolicy.org/reports/pie2020.html.

Smith, Adam. 1776 [2000]. The Wealth of Nations. New York: Modern Library.

Speri, Alice. 2020. “Mass Incarceration Poses a Uniquely American Risk in the Coronavirus Pandemic.” The Intercept, May 6. https://theintercept.com/2020/05/06/coronavirus-prison-jail-mass-incarceration/.

The New York Times Editorial Board. 2020. “No One Deserves to Die of Covid-19 in Jail.” The New York Times, April 23. https://www.nytimes.com/2020/04/23/opinion/coronavirus-prisons.html.

The New York Times. 2020. “Coronavirus in the U.S.: Latest Map and Case Count.” The New York Times, May 15. Accessed May 15, 2020. https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#hotspots

The Osborne Association. 2018. “The High Costs of Low Risk: The Crisis of America’s Aging Prison Population.” May. http://www.osborneny.org/resources/the-high-costs-of-low-risk/the-high-cost-of-low-risk/.

United States Sentencing Commission. 2017. “The Effects of Aging on Recidivism Among Federal Offenders.” December. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf.

Vera Institute of Justice. 2020. “We Must Urgently Do More to Address COVID-19 Behind Bars and Avoid Mass Infection and Death: Guidance for Attorney General Barr, Governors, Sheriffs, and Corrections Administrators.” May 11. https://www.vera.org/downloads/publications/coronavirus-guidance-crisis-behind-bars.pdf.

von Hirsch, Andrew. 1998. “Seriousness, Severity, and the Living Standard.” In Principled Sentencing 2nd edition, edited by Andrew von Hirsch and Andrew Ashworth, 185, 189. Oxford: Hart Publishing.

Walzer, Michael. 1983. Spheres of Justice. New York: Basic Books.

Widra, Emily, and Peter Wagner. 2020. “While Jails Drastically Cut Populations, State Prisons Have Reduced Almost No One.” Prison Policy Initiative, May 1. https://www.prisonpolicy.org/blog/2020/05/01/jails-vs-prisons/

Yancy, Clyde W. 2020. “COVID-19 and African Americans.” Journal of the American Medical Association, Online First April 15. doi:10.1001/jama.2020.6548.


[1] I doubt that this is true in many cases, but the assumption allows us to work from the best-case scenario. In cases where the assumption does not hold, then the instance of punishment under consideration was unjustified to start, and so will still be unjustified in light of current circumstances. Thus, if you accept my argument, cases will be unjustified under present circumstances whether or not they were justified at the outset. 

Special Issue, Uncategorized

The Ethics of Lockdown: Communication, Consequences, and the Separateness of Persons

Stephen John

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. Are lockdown measures ethically justified? This paper outlines some of the key issues relevant to answering that question, paying particular attention to how decisions are framed. Section 1 argues that ethical reasoning about lockdown ought to be guided by a distinction between prudential and ethical reasons, grounded in a concern to respect the separateness of persons, but also that—as public health messaging implies—it can be unclear whether measures are in individuals’ prudential interests or not. Section 2 suggests that a similar set of problems affect attempts to adopt alternative cost-benefit-analysis frameworks for assessing lockdown. Section 3 suggests an answer to these shared problems: we need a process for determining when wellbeing claims and systems of categorization are ethically apt. Section 4 argues that settling the question of aptness is our key ethical task in assessing lockdown.

In many countries and regions across the world, the initial response to the massive health risks posed by COVID-19 has been the institution of lockdown measures. Although they vary from place to place, these measures all involve trade-offs between ethical goods and imperatives, imposing significant restrictions on central human capabilities—including citizens’ ability to work, socialize, exercise democratic rights, and access education—in the name of protecting population health. As such, it seems imperative for philosophers to ask whether lockdown measures are ethical. 

This is a difficult question. We are deeply uncertain about the possible effects of COVID-19 and of lockdown policies, raising questions about ethical decision-making under uncertainty. We are reliant on models that themselves embed value judgments (Schliesser and Winsberg 2020). Debates over lockdown are invariably highly politicized, with “lockdown sceptics” lumped in with Trump and Bolsonaro, and framed in philosophically unhelpful terms of “following the science” (Dupré 2020). It is hard to know which ethical frameworks to use to guide our assessments: should we think in terms of rights (and if so, which) or in terms of consequences (and if so, how)? Is this the kind of “emergency” situation, where rights must give way to consequentialist concerns (Sorell 2013)? There have been excellent rapid ethical analyses of COVID-19-related issues, such as privacy concerns about tracking apps (Schaefer and Ballantyne 2020), or principles for vaccine research (London and Kimmelman 2020). However, there is a mismatch between the topics we are equipped to discuss and the topic that most affects most of us. I have seen rich discussions of how to distribute scarce ventilators (Liddell et al. forthcoming), but very little on how to distribute the costs of lockdown. My aim in this paper, then, is to explore some core issues in assessing the ethics of lockdown.

Before going on, a note on my general argumentative strategy may be helpful. There are, of course, multiple frameworks for assessing the ethics of public health interventions: for example, Nancy Kass’s (2001) six-stage analytical tool for assessing interventions; Childress et al.’s (2002) nine moral considerations for assessing interventions; the UK’s Nuffield Council on Bioethics “intervention ladder” (Nuffield Council on Bioethics 2007); and so on. One obvious strategy for addressing my question would be to use one of these frameworks to list and assess the ethical challenges of lockdown. That is not my strategy. Rather, I want to point to a concern that arises before we use some framework. We apply frameworks to descriptions of the world, but how we describe the effects of lockdown itself involves making ethical decisions. That is to say, the inputs to our ethical reasoning are already partially “value-laden,” and so we need an account of when the descriptive inputs to reasoning are themselves ethically proper. To make this point as clearly as possible, then, I will largely leave conventional public health ethics frameworks to one side until Section 4, and, instead, sketch problems in the ethics of lockdown in general terms. This has some disadvantages, in that my arguments do not obviously map onto normal frameworks, but, I hope, the great advantage of clarifying some of the fundamental ways in which COVID-19 requires us to rethink public health ethics.

Specifically, I focus on the following problem: on the one hand, it seems that the ethical analysis of lockdown measures must take account of how their costs and benefits are unequally distributed across the population; on the other hand, the pandemic destabilizes familiar notion of “costs” and “benefits,” and familiar ways of dividing up the population to measure inequality. In Section 1, I set up this problem through a study of an apparent disconnect between the ethics of lockdown and how lockdown measures have been justified. In Section 2, I consider a way through this impasse: by thinking about the ethics of lockdown in terms of cost-benefit analysis. Unfortunately, however, consequentialist approaches face problems strikingly analogous to those explored in Section 1. In Section 3, I draw out a lesson from Sections 1 and 2: that the “inputs” to our ethical reasoning must, themselves, be ethically justified, and suggest a way of approaching that task. Section 4 sketches the implications of my arguments for thinking about both the ethics of lockdown and its communication.

1. JUSTIFIABILITY, JUSTIFICATIONS AND THE SEPARATENESS OF PERSONS

During the COVID-19 pandemic, my children are at home from school and nursery, isolated from their friends, complaining that they can’t go to the park. During the COVID-19 pandemic, my parents are also at home, missing out on long-planned holidays and social events. Social distancing is hard for both the young and the old. But there’s an important difference. The data suggests that, were my children to get infected, they would very probably suffer little more than a sniffle; their symptoms would be no worse than those of the common cold they pick up in the playground. By contrast, were my parents to get infected, they could end up very ill indeed (Spiegelhalter 2020). Social distancing has costs for both my parents and my children, but benefits my parents in a way in which it doesn’t benefit my children. In the first part of this section, I argue that this difference is ethically relevant, with apparent implications for how we think about current public health messaging. In the second half, however, I suggest a twist: claims about what is in my children’s or my parents’ interests are malleable.

The fact that my children don’t seem to benefit in a prudential sense from lockdown doesn’t necessarily imply that schools and nurseries should remain open. Children can spread illness throughout the community, risking others’ health. In turn, there are familiar ethical arguments for restricting individuals’ rights when exercise of those rights threatens to harm or infringe the rights of others (Wilkinson 2007). What it does mean, however, is that my children and my parents have different kinds of reasons to adhere to lockdown measures. My parents have reasons grounded in their own health; my children have reasons grounded in others’ health. I will now suggest this distinction should be central to the ethics of lockdown.

To explain why, let me take a step back. Imagine that you wake up after a mystery illness. The doctor at your bedside tells you that, while you were unconscious, she removed one of your kidneys, but, she explains, this was the only way in which to save your life. Imagine, now, a twist: you wake up to discover one of your kidneys has been removed, but this time the doctor tells you that this was the only way of saving a stranger’s life. In both hypothetical cases, you have suffered a harm—non-consensual removal of an organ—which has resulted in a valuable good—a life has been saved. However, from an ethical perspective, the cases seem very different: there’s a difference between harming you to save your life and harming you to save a stranger’s life. Philosophers often capture this difference by distinguishing between intra-personal justifications—which appeal only to yourbest interests—and inter-personal justifications—which balance your interests against others’ interests (Thompson 2018). The intra-/inter-personal distinction is central for understanding the limits on broadly utilitarian approaches to ethical reasoning. As is well-known, such approaches can lead to deeply counter-intuitive results; for example, that there is nothing wrong with killing one person to redistribute her organs to save five. In a memorable phrase, John Rawls claimed that these counter-intuitive results stemmed from the fact that Utilitarianism denies a deep normative fact, “the separateness of persons” (Rawls 1971). Otsuka and Voorhoeve (2009, 179) provide a more prosaic, but helpful way of understanding the underlying problem here:

A single person has a unity that renders it permissible to balance (expected) benefits and burdens against each other that might accrue to her. A group of people, by contrast, does not possess such unity. As a consequence, some forms of balancing benefits and burdens that are permitted when these accrue to a single person are impermissible in cases where these benefits and burdens accrue to different people.

Not only is the distinction between intra- and inter-personal justifications central to large-scale debates in normative ethics, but it is also important to the practical task of thinking about public health ethics (Thompson 2018). Although medical interventions and public health interventions both aim at improving health, they differ in important respects. One is that, typically, an individual can choose not to have some medical procedure, but, typically, individuals lack any choice as to whether they are affected by some public health program. Normally, you can refuse an operation, but you cannot opt-out of clean air or health-and-safety regulations. As such, notions of choice and consent cannot play the kinds of justificatory role they typically play in medical contexts (Wilson 2011; Verweij and Dawson 2013). What, then, can justify public health interventions? One tempting way to think about this problem is to say that the core question for assessing public health policy is whether individuals would or should consent to interventions; that is to say, whether our interventions are justifiable to each.

I claim, then, that we can understand the concept of justifiability as foundational to many debates in public health ethics. In turn, there seems to be an important distinction between two kinds of interventions: those which are intra-personally justifiable to each; and those which are intra-personally justifiable to some, but not to others (Thompson 2018). Plausibly, fluoridating the water supply might fall into the first category. While fluoridation imposes a small risk on each of dental fluorosis, each also gains from a substantial decrease in the risk of dental cavies. Each “gains” more from fluoridation than she “loses.”[1] By contrast, redistributing wealth to lower health inequalities falls into the latter category; diverting resources from richer to poorer areas may improve the expected health outcomes of the poor, but worsen those of the rich. Colloquially, some policies have only winners, whereas some policies have both winners and losers.[2]

Note that the point of distinguishing between “only winners” policies and “winners and losers” policies is not to imply that only the former kind of intervention is justified. (For what it’s worth, I think that radical forms of redistribution may be ethically justified, even if they have losers.) Rather, the point of the distinction is to keep track of the kinds of arguments and justifications that will be required for justifying interventions. In cases that have only winners, we can say that policies are justified to each in solely prudential terms. In cases where there are both winners and losers, we need to identify ethical reasons why these policies are justifiable to the losers; for example, we might need to justify redistributing resources on grounds of equity or justice.

Before going on, it may help the reader to take a step back. One core debate in public health ethics concerns the government’s ethical warrant to pursue and promote public health policies: is it, for example, because promoting health promotes aggregate wellbeing (Bayer and Fairchild 2016) or because public health policies promote justice by securing individual health, an important pre-condition for equality of opportunity (Daniels 2007)? My concerns above imply an obvious worry about the first sort of justification for public health policies (which I explore more fully in Section 2 below): that promoting aggregate health assumes that the population has a kind of unity. Nonetheless, strictly, my concern with justifiability in this section is orthogonal to these debates. My claim is that, regardless of the proper ends of public health, it is important to ask of specific health policies whether they can be justified to the individuals whose capabilities they affect. (By analogy, regardless of why a physician should operate, it is important that the patient gives consent.) In thinking about this question, I suggest that we should distinguish between intra- and inter-personal justifications. Different accounts of the proper grounds for public health policy can be seen as, in part, different accounts of the contents of inter-personal justification; for example, we might seek to justify lockdown measures inter-personally by saying that they are necessary to secure equal opportunity for all. (Or, indeed, we might justify these constraints without any appeal to “public health” at all, but as justified by basic ethical obligations not to risk harming others.) Strictly speaking, then, my claims about “justifiability” are separate from debates about the ends of public health policy; rather, they are a reminder that any policy, however noble, must always be justifiable to those it affects.

Let me return, now, to lockdown measures. I suggested at the start of this section that lockdown measures seem to be in the prudential interests of some—the elderly, those with underlying health conditions, and so on—but not others—the young. Therefore, we cannot use the same justifications for the young as for the elderly. However, I now want to suggest that matters are even more complex. To do so, I will turn to a related question: how do governments actually justify lockdown?

In the UK, we spent all of April 2020 constantly told that it was of the utmost importance that we “stay home, protect the NHS, save lives” (Hope 2020). A striking feature of this messaging was that, while there was explicit acknowledgement that these measures were costly to individuals, and required great sacrifice, there was very little acknowledgment that different sectors of society might have very different reasons to follow this advice. Rather, COVID-19 was presented as a threat to each of us and lockdown as the response to this shared threat; while we each had to pay a lot, we were paying for something that was, on balance, good for each of us. Perhaps unsurprisingly, then, it seems that many members of the public grew highly fearful of their own risks of suffering from COVID-19, far beyond any objective estimate (Spiegelhalter 2020). Of course, there are many determinants of public attitudes and beliefs, and some aspects of policy did acknowledge risk-differentials, but it seems that creating a sense that lockdown was in the prudential interests of each was a deliberate communications strategy. Recent press reports have suggested that senior politicians are now concerned that their messaging was “too effective,” because many people are now overly concerned about their risk of returning to study or work (Hope 2020). In short, there is an apparent gap between the ethics of lockdown—a policy with both “winners” and “losers” —and how we communicate lockdown, as having only “winners.”

Of course, public health messaging simply cannot always provide everyone with the most accurate account of their prospects. For example, an anti-smoking campaign can hardly take account of all of the slightly different ways in which each might respond to cigarette tar. Still, it seems deeply dubitable for a public health campaign to treat a policy that must be justified to some in inter-personal terms as if it is justified to each in intra-personal terms. The problem here is not just that messaging ignored some differences between individuals, but that it masked an incredibly ethically significant distinction; it would be like removing your kidney to save a stranger’s life while telling you the operation was necessary to save your own.

In turn, this concern seems separable from the question of whether lockdown is, in fact, justifiable. Assume that lockdown is justified. Given this assumption, there are clear reasons why the government might wish to paper over issues such as the inter-generational trade-offs involved, as a way of motivating compliance. (Arguably, these concerns might be particularly strong in the UK, suffering from inter-generational conflicts over Brexit.) Maybe blurred messaging was the only effective means for a good end. Still, even making these assumptions, it seems problematic to present the policy as if it only has winners. Justifying such presentation in terms of its consequences seems uncomfortably close to what Williams (1995) called Government House Utilitarianism where the state treats its citizens as if they were to be tricked into acting properly.

So far, so bad for public health messaging. Unfortunately, my arguments face a challenge: is it clear that lockdown is not in the interests of each? Consider, again, the claim that staying at home is not in my children’s best interests, and, so, not intra-personally justified. This claim consists of two elements. First, claims about which sorts of outcomes (going to school, getting sick) are good or bad for my children (what I will call “wellbeing”). Second, claims about the probability of those outcomes. There is always some possibility that my children might contract some deadly illness at school; whether going to school is in their best interests depends on how likely that outcome is.[3] Both claims about wellbeing and claims about probability are, though, contestable.

First, consider the mantra “stay at home, protect the NHS, save lives.” Does “protecting the NHS” promote my children’s wellbeing? Having a functioning NHS provides them with an assurance of care if they fall sick, but, also, they like the idea that others won’t suffer unnecessarily. The first concern seems clearly to promote their prudential wellbeing, but what about the second? On the one hand, their concern for others’ health is clearly not a concern for their own health. On the other, it’s not obvious that we should restrict our account of prudential interests to the concerns of sociopaths. Indeed, one might think that one of the few positives of a pandemic is precisely that, in making us aware of our inter-dependency, it fosters a broadening of our sense of what is good for us, beyond our “interests” narrowly conceived. If people feel miserable at the thought of others’ suffering, why not count the avoidance of that misery as promoting their wellbeing? That’s a rhetorical question, not an argument; there are countervailing considerations here (as far back as Sen 1970). My point isn’t to settle on the one true account of wellbeing. Rather, it is to show that it is not wildly implausible to expand an account of my children’s interests to include a concern for others.

Perhaps surprisingly, something similar is true of claims about the second element of “best interests” judgments: probability claims. All of our data about the probability that individuals will suffer some illness, such as COVID-19, is, ultimately, indexed to their membership of some population for which we have collected statistics. “Jim is at low risk of COVID-19” is, in effect, shorthand for a longer, more complicated claim, along the lines that “Jim is under 20, and the proportion of cases among under-20s is relatively low.” Unfortunately, any individual falls into many different sub-populations. For example, Jim’s risk of COVD-19 may be higher if we categorize him as a man, even higher again if we categorize him as someone who is immuno-suppressed, and so on. Which of these ways of describing Jim is “correct”? Unfortunately, there isn’t necessarily a single figure, “Jim’s true risk” out there, akin to, say, “Jim’s true blood pressure.” Rather, to a large extent, the answer is “it depends on what you’re doing”; for some purposes, it may be best to calculate Jim’s risk as a man, but for other purposes, it may be best to calculate his risk as someone who is immuno-suppressed (Hajek 2007; Fuller and Flores 2015).

Before going on, it is worth noting a tricky issue here: the problem above is a version of what philosophers of statistics call the “reference class problem.” Reichenbach famously set out an influential solution to that problem: that for purposes of calculating the probability of a one-off event, such as Jim contracting COVID-19, we should base our estimate on the narrowest available reference class for which reliable statistics can be compiled (Reichenbach 1949). Even placing to one side various technical worries about Reichenbach’s solution, it isn’t much help in our case. It is implausible to think that government messaging around a pandemic could ever provide each individual with an estimate of her risk relative to the narrowest available class. The government cannot send a letter to each individual giving her a “personalized” risk score (indeed, one of the most fascinating aspects of this pandemic is that it shows the limits to the hype around “personalized medicine”). Rather, the government’s public claims must assume coarse, wide reference classes. If so, it is hard to find a knockdown objection against talking as if everyone’s risk is indexed to the widest available reference class—the UK population—rather, than, say distinguishing the “young” and the “old.”

Here, then, is a general worry: claims about what is in an individual’s “best interests” —and, hence, the distinction between intra- and inter-personal justification—seem to rely on claims about wellbeing and claims about risk. However, both kinds of claim are contestable, malleable, and indelibly indexed to our interests. As such, we might be able to justify treating lockdown measures as in the interests of each by adopting capacious accounts of wellbeing and using very wide reference classes. Note that this is not to say that claims about interests are entirely malleable, completely unconstrained by the world. Simply saying that my children’s wellbeing is promoted when the rich get richer doesn’t make it true on any plausible account of wellbeing; simply saying that Jim has a high risk, regardless of the statistical data, doesn’t give him a high risk. My claim is that facts about the world, including facts about how we conceptualize wellbeing, underdetermine claims about our interests, rather than that they place no constraints at all.

Still, even with this caveat, the malleability of interests claims suggests a problem for the argument sketched in the first part of this section. I suggested that government messaging was clearly wrong to imply that lockdown measures benefit each of us; such messaging is, at best, a trick to get us to behave as we ought to. However, there may be accounts of our interests and ways of categorizing the population such that lockdown measures are, apparently, in the interests of each. In effect, we can turn what may seem a genuinely knotty ethical problem about justifying an intervention that has both winners and losers into the relatively easier problem of justifying an intervention that has only winners.

We face a problem. It seems that we have excellent reasons why our ethical reasoning in general, and hence our responses to COVID-19 specifically, should respect the separateness of persons. In turn, this concern gives us good reasons to be suspicious of public health messaging that seems to imply that we are all in this together. In a pandemic, however, it is natural to question the distinction between persons, as we all learn to think of ourselves as nodes in a larger framework of infection, and as we recognize the costs of being socially-distanced from friends and family. Pushing these thoughts, we can apparently legitimately redescribe our normative problem, such that the apparent clash of interests between my parents and my children, and the associated worries about public health messaging, simply disappears. Given the apparent instability of claims about interests, how can we even start to go about thinking about the ethics of lockdown?

2. COSTS AND BENEFITS

It has become standard to distinguish two broad ways of thinking about interventions that involve distributing costs and benefits across the population: through a broadly contractualist lens, focused on justifiability to affected individuals, and through a broadly consequentialist lens, focused on the (expected) aggregate costs and benefits of action (Suikkanen 2020). One way of understanding the previous section is as suggesting a serious problem for thinking about public policy—at least, this kind of public policy—in terms of justifiability. Doing so seems to require an unstable distinction between intra- and inter-personal justification. Beyond this simple argument from elimination, there are more positive reasons to adopt a broadly consequentialist approach to assessing lockdown measures (and their communication). By their very nature, public health policies operate at a population level, in ways that makes it next to impossible to identify individual beneficiaries (Cohen, Daniels, and Eyal 2015). For example, we might be able to say that the early and effective lockdown measures instituted in Germany saved many lives, but permanently unable to point to any individual German citizens and say “her life was saved.” Preventive public health policies such as lockdowns always deal in the currency of statistical lives. The core epistemic unit of public health policy is the population; it seems plausible that our ethical reasoning must follow suit.[4]

It should, therefore, be no surprise that most of the discussions of the ethics of lockdown measures have been framed in terms of cost-benefit analyses (CBA). For example, Peter Singer and Michael Plant (2020) have suggested that key to assessing lockdown measures is ensuring that the “cure” is not worse than the “disease.” The key challenge for academic researchers, they suggest, is to calculate lockdown’s effects, “not in terms of wealth or health, but in the ultimate currency, wellbeing”; if the costs to wellbeing outweigh the benefits, then lockdown measures are ethically wrongful. Alex Broadbent (2020) has argued for a more specific claim, that “the cost-benefit analysis of [lockdown] measures yields a different result in Africa than in Europe, North America and large parts of Asia,” and, as such, “lockdown is wrong for Africa.” These moves have great appeal. There are difficult problems in assessing when policies are inter-personally justified; for example, even placing to one side all the complexities of the previous section, it is difficult to assess whether we can justify greatly restricting the capabilities of younger people for the sake of helping older people, given that, strictly, young people pose a risk,rather than a certainty, of transmitting COVID-19. And we can’t just ignore the arguments of the previous section, but must face the problem that best-interests-claims are indeterminate! By assessing policies solely in terms of their aggregate consequences, we seem to cut through this Gordian knot of problems.

Despite their appeal, however, there are well-known problems with assessing public health interventions, including our response to COVID-19, in cost-benefit terms. I will not run through all of them here. Rather, I will point to two problems of interest because of their relationship to the previous section.

The first problem concerns the calculation of “costs” and “benefits.” To make claims about the aggregate costs and benefits of lockdown, we must be able to say how good or bad outcomes are for affected individuals. In Singer and Plant’s terms, we must translate claims about consequences into the currency of wellbeing. Of course, in principle, there are thoroughgoing techniques for calculating the goodness and badness of outcomes, for example on the basis of revealed preference. However, as the previous section noted, these ways of calculating what is good for individuals are contested. To make matters worse, even if we have a resolution of these theoretical disputes, it is unclear how they relate to practice.

For example, in their article, Singer and Plant suggest that we might commensurate concerns about the effects of lockdown on health and on economic goods using a formula where each gain in a Quality-Adjusted-Life-Year (QALY) is valued at c£25,000 on the grounds that it is employed by the NHS in the UK. However, this seemingly simple way of commensurating health concerns and economic concerns is beset by controversy. Strictly, the NHS has a general policy of not funding drugs with an incremental Cost Effectiveness Ratio (iCER) over £30,000/QALY and routinely funding drugs under £20,000/QALY (Badano, John, and Junghans 2017). (Singer and Plant’s £25,000/QALY figure is a (telling) over-simplification here of the fact that between these figures “social values” are used to guide distribution.) This policy is justified on the grounds that this is the best way to maximize health outcomes, given a set budget; it is supposed to represent an “opportunity cost,” not the “value” of saving a life. Furthermore, this figure is, itself, highly contested, and, in practice, drugs are often funded even when their iCER is over £30,000; for example, when they treat end-of-life conditions (Badano, John, and Junghans 2017). And all of these concerns arise before we even get to the more fundamental question of whether QALYs are a sensible way of thinking about health-related-quality-of-life at all (Hausman 2015). This is not to say that a £25,000/QALY measure for doing CBA is clearly wrong; it is to say that any such choice is eminently contestable. Plausibly, these specific problems about Singer and Plant’s use of this figure generalize: there is no simple, uncontestable way of placing a value on human life (Wolff 2007).

The second problem is slightly more complex. Modern tools for cost-benefit analysis differ from Utilitarianism in their theoretical underpinning (Schmidtz 2001). However, they share a common feature: typically, they assess policies in terms of whether aggregate benefits outweigh aggregate costs, and as I noted in Section 1, assessing policies solely in terms of aggregate outcomes can lead to counter-intuitive results. Of course, most applications of CBA are bounded by broader ethical norms, such that their use does not threaten clearly mistaken results. Still, in our case, a focus on aggregate outcomes can seem to overlook ethically salient aspects of the pandemic. For example, straightforward application of CBA implies that the fact that the young “lose” from lockdown is simply irrelevant to the ethics of lockdown; all that matters is the overall balance of effects. In principle, then, a CBA of lockdown policies might justify imposing huge uncompensated costs on the young, just as long as doing so helped “enough” older people. These unequal distributions of burdens and benefits might seem unfair in themselves. Furthermore, they are even more worrying when they intersect with historical or contemporary forms of systematic oppression. In our case-study, for example, there are important concerns that COVID-19-related mortality rates may be far higher in areas of social deprivation (Rubin and Offit 2020). For proponents of CBA, this clustering of disadvantage is not ethically significant (even if it is useful to know for designing effective policies). However, this seems problematic; when we know that a high fatality rate among certain groups is, at least in part, a result of other, discriminatory, social policies, it seems we have good reason to pay particular attention to these groups’ claims in policy-making. Of course, there is scope for disagreement over the relevance of distributive questions in assessing health policy (Hausman 2007). Nonetheless, it seems problematic to insist, on the one hand, that policy-makers must be alert to the fact that policies involve trade-offs between different goods (say, aggregate health and aggregate wealth), yet to fail to take account of the fact that they involve trade-offs between distinct groups of people (say, young and old).

The proponent of CBA has two options in response to such challenges: either she can ignore them; or she can take account of distributional issues in some way. In Section 1, I suggested a very general ethical reason to follow the second route: that doing so follows from a concern to respect the “separateness of persons.” Moreover, concerns about distribution seem to play an important role in some appeals to CBA. For example, in developing his argument that lockdown measures are inappropriate in sub-Saharan Africa, Broadbent (2020) suggests that lockdown measures have been rapidly adopted because COVID-19 targets the privileged, asking, provocatively, “would we care about the increased risk of fatal pneumonia that COVID-19 might cause in Africa, if it did not also greatly increase the risk of fatal pneumonia for prime ministers, business people, and university professors?”, going on to suggest that “we don’t care about COVID-19 because of how many it kills, but whom.” Although Broadbent’s argument is couched in terms of aggregate consequences, these comments suggest that his underlying ethical concern is tied up with broader, philosophically distinct, worries about equity and social justice.

If they are to capture the full spectrum of ethical concern, then, cost-benefit analyses should be sensitive to distributional concerns. Broadly, there are two ways of doing this: by allowing distributional concerns to shape our answers to some of the puzzles about how to calculate “costs” and “benefits” (for example, by using life-years-saved, rather than lives saved as a metric for success); or by adding “equity weights” to our analysis of the goodness or badness of outcomes (Bobinac et al. 2012).

Either way, we face a problem. In assessing differences in the distribution of costs and benefits, we focus on differences between different categories of individuals. For example, in assessing lockdown, we might consider the likely unequal distribution of consequences for younger and older generations. However, in principle, there are multiple different ways we could categorize the population for purposes of ethical analysis. Rather than focus on young and old, we could assess policies in terms of whether they generate inequalities between different racialized groups, or inequalities between men and women, or between rural and urban areas, and so on (Bartley 2016). These analyses may lead to radically different assessments of the policies: focusing on inter-generational inequalities may make us skeptical of lockdown, whereas focusing on issues around social deprivation might make us more supportive. Just as I suggested that the world itself does not tell us which reference classes to use for purposes of calculating individual risk, there is no straightforward naturalistic reason to prefer one way of categorizing populations over another. We must make choices about which inequalities matter and, again, those choices are contestable.

Many countries have rushed into lockdown measures, justifying this approach on the grounds of a moral imperative to save lives. Clearly, these justifications are problematic insofar as they overlook the fact that lockdown measures might themselves “cost” lives, and have other, ethically significant costs in terms of on human wellbeing. Some of these costs are direct; for example, we know that economic hardship can have significant effects on life expectancy (Wilkinson and Pickett 2010). Other costs are indirect opportunity costs; for example, as resources are diverted away from other health and social needs. Clearly, any full reckoning of lockdown must take account of the full range of costs, as well as benefits. Versions of CBA supply our best-developed tools for doing such reckoning. However, we must be extremely careful in how we use and interpret those tools. First, any CBA is highly sensitive to how we count “costs” and “benefits” in the first place; and choices about how to do this are highly contestable. Furthermore, appeals to CBA face a second challenge: whether or not to take account of the distribution of costs and benefits, as well as their aggregate sum. If so, then they also rely on a second set of highly contestable choices, about how best to categorize the population. CBA may seem to cut through the ethical thickets, but only by sweeping away a series of questions.

3. THE GENERAL PROBLEM

Section 1 drew on the notion of the separateness of persons to suggest that the ethics of lockdown should be centered around the question of when interventions are justifiable. Section 2 explored an alternative: that we should simply consider the net consequences of lockdown. These are very different approaches. Oddly, however, both face a similar set of problems. Regardless of our preferred ethical framework for deciding what to do, our decisions must take claims about wellbeing and ways of categorizing the population as inputs. However, neither individual wellbeing nor categorization schemes are simply “out there” in nature to be discovered by our measuring machines (or, at least, if they are, we lack the right kinds of measuring machines). In describing our problem, we are already making contestable judgments about wellbeing and about how to categorize the population. Clearly, this is a very general problem. It is, however, particularly striking in the case of COVID-19; we cannot even get started on thinking about whether the trade-offs inherent in lockdown measures are justifiable if we can’t decide whether there are trade-offs at all. Should we just give up on thinking about the ethics of lockdown?

No. The problems above can be seen as merely a rather abstract way of reframing a familiar phenomenon, that real-life ethical debates are often less concerned with abstract ethical principles and more concerned with how to frame decision problems at all. To take a non-COVID-19 example, consider heated debates around the ethics of population screening for early stage cancer. One key question in these debates is how and whether our account of the possible costs should extend beyond the health-related harms of overdiagnosis and overtreatment to include the psychosocial harms of medicalization (Malm 1999; Marmot et al. 2013). No ethical conclusion automatically follows from saying that psychosocial outcomes are relevant to assessing population screening. Rather, decisions about whether or not to count these outcomes as “costs” are debates over how we should frame the ethics of screening in the first place. In turn, these debates are not simply settled by the world. Although empirical studies can show that screening has psychosocial harms, no study can show that we must measure or list those harms. Rather, to settle that question, we must draw on other, broader, technical, ethical and political considerations; for example, over whether these costs can be “adequately” well-measured to play a role in policy-making, how we should conceptualize the ends of medicine, and so on.

We have a problem—claims about wellbeing and systems of categorization need to be settled before we can even discuss our ethical problems—but also a sketch of a solution: we need to appeal to broader ethical and political concerns. How can we do that in the case of COVID-19, where we need to settle on an account of wellbeing, and on an account of how to categorize the population? There is no shortage of literature on how we should conceptualize “wellbeing.” A particularly interesting proposal has been made by Anna Alexandrova (2017), discussing work on the science of wellbeing (for example, in claims such as “beyond a certain level, increases in income do not improve wellbeing”). Alexandrova suggests two worries about such claims: “inattention” (that we might use controversial, value-laden terms without recognizing that we are doing so), which leads to a risk of “imposition” (that using these terms might lead us to overlook or deny or override others’ values). In turn, she suggests that the use of mixed claims can be justified only when underlying value assumptions are made explicit and deemed acceptable after consultation with affected parties.

Elsewhere, drawing on the example of stratifying the population by poly-genetic risk scores, rather than by age, I have suggested we need an “ethics of apt categorization” (John 2013). I suggested that, even if the poly-genetic scheme is scientifically sound and broadly in-line with the aims of a screening program, it may be problematic along other, broadly ethical dimensions: for example, that they might threaten to perpetuate past or on-going social injustice, and that they are not “intelligible” to those thus categorized.

Both of these specific proposals can be challenged. Nonetheless, they suggest considerations for thinking about the proper framing of the ethics of lockdown. Alexandrova’s concept of “inattention” provides a useful label for thinking about cases such as the £30,000/QALY threshold discussed in Section 2. Imagine we could show that, in the context of NICE’s resource allocation problem, given its goals and local, UK-specific ethical and political constraints, it is appropriate for NICE to use this threshold. It doesn’t follow from this that when considering lockdown measures in some other country we must use the same number to decide on whether lockdown is beneficial; lockdown measures don’t involve rationing problems, and local values may differ from UK values. In using this apparently “objective” number, we are, in fact, smuggling presuppositions about goals and values into descriptions of lockdown.

More generally, both approaches stress the importance of ensuring that ways of calculating wellbeing and of categorizing the population must be justifiable to those whose wellbeing we measure or whom we assign to certain groups. In this sense, they return to a key theme in Section 1, that we should focus attention on whether our interventions are justifiable. When we describe the effects of policies on people we are not directly intervening in the world, but we do know that those descriptions will guide interventions; as such, we need to ask whether our ways of describing things are justifiable to those we describe. Of course, in deciding how to frame the ethics of COVID-19, we cannot sit down and consult everyone—or even a sub-set of everyone—that what we are doing is acceptable. What we can do, however, is to draw on very general forms of knowledge, embedded in existing structures, to decide which accounts of wellbeing and which systems of categorization are likely to be justifiable.

First, consider wellbeing. When deciding to assess lockdown policies in terms of QALYs, we can give arguments as to why these measures should be used, even if they distort or mangle certain aspects of lived experience; for example, because they provide a useful, broadly neutral way of comparing interventions. By contrast, we might be far more nervous about construing individuals’ interests to include the “benefits” of living in a society where care is provided by all. This is not because we doubt that people do often care about living in such a society. Rather, it is because there are obvious dangers to including such concerns within our account of interests or benefits. Doing so threatens a kind of exploitation, where natural instincts of care are twisted into justifications for abuse. People can and do have ethically admirable motivations of solidarity, but it does not follow that, for purposes of ethical analysis, the warm glow of solidarity can unproblematically be treated as an aspect of prudential wellbeing. As such, we should, I suggest, reject the idea explored in Section 1 that living in a society where care is offered to the sick and ill is, itself, something that counts as promoting individuals’ wellbeing. Rather, we have good reasons to maintain a narrow sense of interests.[5]

Second, consider the case of categorization, and the key question in Section 1: when we are thinking about the ethics of COVID-19, should we divide the population by age, allowing us to say that the old “benefit” more than the “young”? I suggest that categorizing the population this way is justifiable. First, the evidence for age-based differences in COVID-19 morbidity and mortality is very strong (Spiegelhalter 2020), and it is relatively easy to categorize people by age. Age is an epistemically robust category, which can be operationalized. Furthermore, we know that biological age correlates with a wide range of other normatively significant phenomena: for example, medical needs, social status, financial wellbeing, and so on. As such, using this category tracks a range of other, ethically significant concerns—such as concerns around economic precarity. Finally, we know that this category is “understandable”: that individuals’ self-identity is related, at least in part, to their biological age, such that the category maps onto (at least) some of their own reasons for action (John 2013). Therefore, there are strong reasons to think that it is justifiable to categorize the population by age.

Of course, none of these considerations show that we must categorize the population by age when considering the ethics of COVID-19. After all, this is a socially charged division, and one which carries with it risks of stigma and stereotyping, as, for example, when the young are accused of being “selfish” or the elderly are viewed as “drains on resources.” Therefore, using this category might risk creating or perpetuating forms of division and disadvantage. Nonetheless, it seems difficult to imagine how we might do health policy in a completely “age-blind” manner, given that age co-varies with so many other normatively relevant variables. Therefore, I suggest that we can justify using this category to think through the ethics of COVID-19. We should explicitly frame our decision problem in ways that acknowledge that lockdown affects different age-groups very differently.

The previous two sections set up a very general problem: thinking about the ethics of lockdown requires us to describe the likely effects of that policy. In turn, decisions about how to describe the effects of lockdown may implicitly reflect contestable value judgments: for example, saying that lockdown promotes feelings of social solidarity implies that such feelings are an ethically salient aspect of wellbeing; comparing the effects on the young and the old presupposes that we should care about equity between young and old. We could multiply similar examples beyond those I have discussed above: Should we treat a feeling of security as an ethically relevant effect of lockdown? Should we assess inequalities in the effects of lockdown on rural and urban dwellers? And so on. In this section, I have sketched a very general way of thinking about these problems. In turn, I have argued for a concrete claim: that we should think of lockdown as creating a problem of intergenerational justice, rather than as a policy which only has winners. My more general aim, however, has been more general: to suggest that we cannot do the ethics of lockdown without also thinking about how we describe that policy in the first place.

4. CONCLUSIONS

Even if we have some account of how to frame the ethical decision problem of assessing lockdown, we still have a further problem: how should we actually decide whether lockdown is justified? Furthermore, we still face a problem left over from Section 1: what is the relationship between an account of whether lockdown measures are ethically justified and the actual justifications we are given to adhere to those measures? In this concluding section, I take up these questions in reverse order.

Imagine that I am right and that our ethical reasoning about lockdown measures should be framed using an account of wellbeing and ways of categorizing the population such that the young are “losers” and the elderly are “winners.” Does it follow that it is wrong for the state to present measures asif everyone is a “winner”? This is tricky question, because an obvious corollary of my approach is that different accounts of “interests” might be appropriate in different contexts, much as the £30,000/QALY threshold might be appropriate when making resource allocation decisions at NICE, but inappropriate when thinking about the ethics of lockdown. Assume, then, that lockdown measures are, in fact, ethically justified, even though they have both winners and losers. Imagine further, however, that we know that the best way in which to get people to adhere to these measures is by presenting them as if they had only winners. Is there anything wrong in this scenario?

It’s complicated. We can and should distinguish between whether a policy is, in fact, justified and the reasons which we may legitimately give people to adhere to that policy. After all, what is important is that people do what they ought to do. In real life circumstances, where time is short, cognitive resources low, and emotions running high, trying to explain precisely why they ought to do those things may lead to ethically sub-optimal outcomes. Given our legitimate ethical ends, it may be permissible, for purposes of public health communication, to endorse an account of interests according to which lockdown is in the interests of each. To think otherwise requires an odd kind of moralism. However, having said that, as Section 3 argued, assessing whether policies are ethical requires that our framing of those policies are justifiable. One key way of ensuring this is through actual deliberation and discussion with those affected by our decisions. Blurred messaging—which presents our interests as if they are not in conflict—may block this important process. Furthermore, we run a risk of a form of inattention, insofar as it is easy to confuse the ways in which interests are presented in messaging with how they ought to be presented in ethical reasoning. Blurred messaging is not straightforwardly false or deceitful, but it does create significant epistemic and practical barriers to thinking properly about the ethics of lockdown.

What, though, about the first challenge, and the key motivating question of this paper: is lockdown ethically justified? Broadly, there are two ways of thinking about this question. One, discussed in Section 2, is to use the tools of cost-benefit analysis. A second, briefly mentioned in the Introduction, is to think through such policies using extant frameworks for public health ethics, which, typically, consider a wide range of different ethical principles and values. Perhaps disappointingly, I will not take a stand here on which of these approaches we should use. Rather, my concern has been to point to a very different sort of consideration: that, however we approach the ethics of lockdown, we need to do ethical work in deciding how to describe the effects of lockdown in the first place. In turn, I want to suggest that this process is an important, albeit easily overlooked site of ethical and political contestation. It is also a process that cannot be reduced to a question about which ways of describing the world have the best consequences, nor to the application of general ethical principles.

To illustrate these claims, consider two examples. First, consider the question of whether, when doing a cost-benefit analysis, of the sort discussed in Section 2, we should assess lockdown measures in terms of the number of lives lost or the number of life years lost. We cannot answer that question simply by looking it up in the Book of Nature. Nor, however, can we answer it simply by looking at the consequences of our decision; to do that would simply be to push the question back a level. Rather, that question must be addressed through a process of trying to figure out which measure is “apt,” where that process is essentially concerned with the question of which measure can best be justified to those affected by it.

Second, imagine that we seek to assess lockdown by asking how it relates to a mid-level framework for public health ethics, such as that proposed by Nancy Kass (2001). Kass lists six important considerations, covering a wide range of different ethical considerations: whether a program’s goals are proper; its means are effective; what burdens the program has; whether these burdens can be minimized or avoided; whether the program is implemented fairly; and whether its benefits and burdens are fairly balanced. Using the framework articulated in Section 1, I understand these considerations as putative justifications we might offer to individuals for interventions that affect them. I suggest that a striking feature of Kass’s list is that many of these considerations turn, again, in large part on how we describe the program in the first place. For example, in this paper, I have focused on one aspect of Kass’s sixth consideration: whether benefits and burdens are fairly balanced. On the face of it, it seems that the benefits and burdens of lockdown are not fairly balanced, given the very different effects on the young and the old. However, as I have suggested, we cannot simply take this appearance for granted; rather, we need to argue that it is ethically proper to conceptualize lockdown in ways that distinguish the young and the old, and that adopt a narrow account of the benefits and burdens of those policies. Before we can apply Kass’s framework, we need to decide how to describe the policy at all.

This may all seem very depressing. We all already know that there are many different ethical frameworks which we could use to assess lockdown, and that choice of a framework will be controversial. We also know that, even if we choose a particular framework, there are often disagreements over how to interpret particular principles and their application to specific cases. I seem to have suggested a further problem: that how we describe the world will also be controversial. Does that mean that the ethics of lockdown is impossible? I suggest not. Rather, my suspicion is that by the time we have decided how best to frame the ethics of lockdown, we will have gone a long way to settling the ethics of lockdown.

ACKNOWLEDGMENTS

Thanks to Joseph Wu for discussion of related ethical issues; to Anna Alexandrova and Jeff Skopek for feedback on an earlier version of this paper; to the audience at a special seminar COVID-19: HPS perspectives, hosted at the University of Cambridge, for useful questions; and to an anonymous reviewer and the editors for their speedy, insightful, and challenging comments. Particular thanks to Charlotte Goodburn for discussion of this paper and to Isaac and Clara for tolerating such discussion.

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Wilkinson, Richard, and Kate Pickett. 2010. The Spirit Level: Why Equality is Better for Everyone. Bloomsbury Publishing.

Wilkinson, Timothy M. 2007. “Contagious Disease and Self-Defence.” Res Publica 13 (4): 339–59.

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Wolff, Jonathan. 2007. “What is the Value of Preventing a Fatality?” In Risk: Philosophical Perspectives, edited by Tim Lewens, chapter 3. London: Routledge.

Wolff, Jonathan, and Anver de Shalit. 2007. Disadvantage. Oxford: Oxford University Press.


[1] At least, as long as we focus on individuals’ ex-ante interests.

[2] Maybe you think that this is all too fast, for two reasons. First, you might think that fluoridation is significant because it limits choice, a topic I haven’t discussed. Second, you might think, following Wilkinson and Pickett (2010), that more equal distributions might help each. In response: first, even if you think fluoridation has “hidden” costs, note that the costs are the same for everyone—the two policies differ; second, it may well be that equality is good for all, but, if so, pick another example—it’s simply wishful thinking to assume that all valuable public health policies are all good for everyone.

[3] It is worth noting here that it is not uncontroversial that we should think about interests in these ex-ante terms (Fleurbaey and Voorhoeve 2013). I defend this general stance in John (2014).  

[4] Note that in this section, I focus on consequentialist accounts of the ethics of lockdown, rather than its communication, but if we start from consequentialism, there is a fairly straightforward argument for viewing public health communication in highly instrumentalist terms (Bayer and Fairchild 2016).

[5] Note that my claims about “wellbeing” can be read as reflecting a long-standing concern in political philosophy, that there may be a gap between “ethical” accounts of “wellbeing” and political notions of “advantage.” For a useful, theoretically self-conscious, attempt to construct an account of “advantage,” see Wolff and de Shalit (2007). For in-depth discussion of many related issues, see Mitchell (2018). One thing I have tried to do here is to remind the reader of the importance of these debates; another is to extend them beyond “wellbeing” to categorization.

Special Issue

The Predictable Inequities of COVID-19 in the US: Fundamental Causes and Broken Institutions

Sean A. Valles

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT. The COVID-19 pandemic in the US has inspired conversations about which features of the pandemic’s impacts were(n’t) unexpected, as well as why and how. Looming in the background of these discussions are political questions about the blameworthiness of particular institutions and leaders therein, and what COVID-19 disasters within US institutions mean for future discussions about how to reform those institutions. This paper will argue that the inequitable harms of the COVID-19 pandemic in four especially hard-hit US institutions—jails and prisons, meat processing plants, hospitals, and eldercare facilities—were: (1) not so unpredictable as claimed by some commentators, (2) traceable to institutional flaws known prior to the pandemic, and (3) can be fruitfully understood through the lens of “fundamental cause theory,” which offers a model for why and how social resources and deprivations create predictable patterns of harms from health hazards, even when the hazards are new.

INTRODUCTION: HEALTH THEORY AND THE POLITICS OF ‘UNFORSEEABLE’ PROBLEMS

“Nobody had ever seen anything like this before.”
(Donald Trump, March 19, 2020)
“Nobody would have ever thought a thing like this could have happened.” (Donald Trump, March 26, 2020)
                                                                                   

There is a lot at stake in the current and forthcoming debates over what/why/how the COVID-19 pandemic’s effects on the US were unpredictable. These debates are crucial to both our assessments of backward-looking culpability (who should have known or acted better, and when?) and in the related but even more socially important task of guiding decisions about how to rebuild society after the pandemic subsides. The more we treat the harm as unexpected—a fluke—the more we bolster the argument that no major structural changes need to be made to the US health system. I come to this question as one of the scholars who has been participating in the vibrant multidisciplinary study of the ways that the US health system is abysmally ill-designed, as well as the study of the ways that this undermines health equity in the US. The presence of some kinds of uncertainty, including the uncertainties surrounding the biological nuances of a newly uncovered pathogen, does not entail that most of the pandemic’s health system failures were unpredictable, nor that it would be largely unpredictable which populations would bear the brunt of the harms of those failures. We already knew rather a lot about what is broken in the US health system—including its weaknesses during a potential pandemic—and fundamental cause theory provides a theoretically developed and empirically testable means of predicting which populations will suffer from health system failures and understanding why past suffering happened (Link and Phelan 1995).

Jails and prisons, meat processing facilities, hospitals, and eldercare facilities have all been hit especially hard by the US pandemic. These four institutions are also important pieces of the US health system. By “health system,” I mean the total set of components of a society that play significant roles in the shaping of the population’s health; this includes the healthcare system, but also includes the food system, social welfare safety nets, the designs of the spaces where people live/work/play, labor conditions, and so on (Valles 2018). This paper will examine the suffering of the people in those four institutions with the goal of illustrating how those patterns of harm are consistent both with what we know about the patterns of health inequities, and also with the deep institutional flaws pointed out in these institutions before the pandemic. The COVID-19 pandemic did not suddenly take well-functioning US health system institutions and turn them upside down. Rather, these institutions were already broken before COVID-19 arrived: inequitable, unsustainable, and detrimental to public health. The unethical harms of the COVID-19 inequities can be better understood by understanding them in light of the existing patterns of inequities.

THE LIMITS OF UNCERTAINTY

Rhetoric around COVID-19 has relentlessly emphasized uncertainty, debates among experts, and the uniqueness or novelty of the COVID-19 pandemic. For instance, philosophers of science Winsberg and Schliesser contrast “mature” climate science to the science of COVID-19:

Ultimately, what is needed is more and not less critical discussion of the science and politics behind our response to the coronavirus. “Trust the science” is a better slogan when the science, like climate science, is mature, multi-disciplinary, and has been subjected to intense scrutiny. (Schliesser and Winsberg 2020)

Here, the science surrounding COVID-19 is framed as relatively untrustworthy by virtue of its being immature and unvetted. I agree that trust must be earned. But it is a mischaracterization of epidemiology and other population health sciences to cast the relevant science of the COVID-19 pandemic as generally immature. Though the COVID-19 strain is new, the underlying public health sciences are mature and quite multidisciplinary (Keyes and Galea 2016; Valles 2018; Rosen 1993). It is easy to elide uncertainty about the underlying science of COVID-19 research in general with uncertainty about the details of how this coronavirus differs from other coronaviruses we know better, and uncertainty about how to effectively use, evaluate, and refine “non-pharmaceutical interventions” for COVID-19—e.g., the principles of social distancing that have been implemented in diverse ways in diverse settings around the world in 2020. Biology does not get rewritten when a new species evolves; ecology does not get rewritten when the new species begins interacting with existing species.

The fact that many global populations are implementing distinct and ever-evolving versions of these social distancing interventions also means that it will be very hard to interpret or to draw generalizable conclusions from the pandemic data collected. Of course, we have been unable to pinpoint all of the crucial epidemiological and pathological features of a disease studied for only a few months, while we simultaneously watch and interfere with a pandemic afflicting diverse bodies, communities, and places. Yet, rhetorically, when public discourse fixates on these uncertainties it serves to downplay the useful and well-vetted knowledge we do have at our disposal for understanding and responding to COVID-19.

Over two decades ago, Bhopal (1997) scrutinized the similarities and differences between twenty-five different epidemiology textbooks published since 1980, showing how different emphases, prioritizations, and methodological disputes created pedagogical diversity among works that are rooted in shared basic scientific ideas. For instance, Bhopal notes that texts disagree on the epistemic grounding of “case-control studies,” which make inferences about disease features by comparing a population with a disease against a control group of people who do not have the disease but who are otherwise similar to the first population (Bhopal 1997). This has remained philosophically and methodologically contentious (Broadbent 2013, 21–22), which in turn affects how we interpret and use COVID-19 case-control evidence, such as the evidence suggesting that gastrointestinal symptoms are a useful predictor of being infected and also of having a more gradual and less severe course of disease (Nobel et al. 2020). Uncertainty and ignorance are socially contingent (on the epistemic frameworks adopted by communities), socially constructed (by how we do/don’t interact with the world and with existing knowledge), and deeply political (Tuana 2004; Proctor and Schiebinger 2008).

Prior to the pandemic, Wucker coined the term “gray rhino”—a predictable but ignored problem—as a rebuttal to the inappropriate overuse of the notion of “black swan” problems (problems that are truly unlikely or hard to imagine). For instance, the 2008 financial crash had been preceded by a series of warnings from policymakers, journalists, etc. (Wucker 2020). Wucker explains that COVID-19 is also such a gray rhino, despite efforts to explicitly explain it away as black swan problem; efforts that, by strong implication, absolve those who failed to effectively prevent or respond to it. For instance, it must not be forgotten during current US debates over the feasibility of COVID-19 mass testing and contact-tracing that the May 2019 cover article for the American Journal of Public Health was “Public Health Workforce: Threatened by Mass Extinction?”

The rhetoric around COVID-19 being especially enigmatic and unpredictable are most acutely in tension with the fact that, in some concrete ways, the COVID-19 pandemic was not just predictable, it was predicted. Just months before COVID-19 appeared, the Department of Health and Human Services completed a simulation scenario of a new influenza strain appearing in China and then spreading to the US, killing 586,000 out of 110 million people infected (Sanger et al. 2020). Moreover, the COVID-19 virus, SARS-CoV-2, is closely related to two other viruses that happen to have garnered international attention as potential sources of global pandemics just within the last 20 years: SARS-CoV-1 (responsible for the 2003 SARS epidemic) and MERS-CoV (responsible for the 2012 Middle East respiratory syndrome epidemic) (Coronaviridae Study Group of the International Committee on Taxonomy of Viruses 2020). Four other coronaviruses have long been endemic in human populations and are common causes of respiratory infections (Corman et al. 2018).

There is an extensive health science literature on how various pieces of the US health system are clearly broken, or are so brittle that the shock of a new crisis would make that piece shatter (a good overview of the literature appears in: Woolf and Aron 2013). To extend Jones et al.’s cliff analogy for health equity, some new agent (i.e., COVID-19) could unexpectedly begin pushing people toward the edge of a cliff, and as it is happening, the agent may remain mysterious in many ways (Jones et al. 2009). But we already know a lot about the empirical and ethical problems surrounding which populations live nearest to the edge of the cliff, which populations will be protected by fences before they fall, which ones will be quickly met by ambulances after they fall, and which ones will get better care once they reach the hospital after a fall (ibid.). Such is the US health system: the protection of fences, distance from the edge of the cliff, and the speed/efficacy of the care that one receives after falling are all luxuries available on the basis of well-studied and disturbingly inequitable criteria.

FUNDAMENTAL CAUSE THEORY

My previous work has urged philosophy of epidemiology to take up fundamental cause theory as a lens for critically evaluating patterns of causation in unjust societies (Valles 2019). Looking through the lens of fundamental cause theory guides one to focus on the way that certain social resources serve as flexible buffers against the world’s hugely variable and constantly-evolving set of hazards (drought and famine one year; flooding and cholera the next) (Link and Phelan 1995). The three criteria that make a cause a “fundamental cause” are the following:

First, a fundamental social cause influences multiple disease outcomes through multiple risk factors among a substantial number of people. Second, a fundamental social cause involves access to resources—knowledge, money, power, prestige, and beneficial social connections—that can be used to avoid risks or minimize the consequences of disease once it occurs. Third, fundamental social causes are robustly related to health inequities across time and place. These enduring relationships occur because the association between the fundamental cause and health is reproduced over time via the creation of new intervening mechanisms. (Hatzenbuehler, Phelan, and Link 2013)

The fundamental causes: prestige, money, education, racial privilege, freedom from stigma, and a disputed/growing list of other social resources all allow one to evade harms of many different types (Valles 2019; Hatzenbuehler, Phelan, and Link 2013; Phelan and Link 2015). Consistent with the above criteria, individual fundamental causes can be delineated as either the presence of a benefit of the absence of a detriment. This gives a sort of ambidextrousness, in that, for example, the same fundamental cause can be characterized as ‘stigma’ or as ‘freedom from stigma.’ As explained next, since I find it easier to conceptualize fundamental causes as buffers or metaphorical armor, this paper reflects my preference for the positive versions: ‘freedom from stigma,’ etc.

Each fundamental cause individually (or in combination with others) serves as a sort of armor against a range of different types of health harms. Fundamental cause theory, in a sense, identifies patterns of protection and harm that hold remarkably stable across time and across different population contexts. The mechanisms by which money, prestige, etc., are helpful for one’s health vary enormously—a key piece of the theory—and those mechanisms can be quite unexpected (who knew that paid grocery delivery services and telework options would be such widely coveted health-protecting resources in 2020?)—but it remains stable that money, prestige, etc., remain helpful across time and geography (Valles 2019; Link and Phelan 1995). Money can’t help you buy your way out of a randomly-striking untreatable cancer, but if a hazard is preventable or treatable, then money almost certainly helps buy relative safety.

Looking at the case of COVID-19, Whitney Laster Pirtle has argued that “racial capitalism” should be recognized as a fundamental cause in its own right,[1] and that it has operated as a devastating fundamental cause of COVID-19 harms in Detroit. Racial capitalism protects some people and leaves others unprotected. Laster Pirtle writes the following:

Racism and capitalism mutually construct harmful social conditions that fundamentally shape COVID-19 disease inequities because they (a) shape multiple diseases that interact with COVID-19 to influence poor health outcomes; (b) affect disease outcomes through increasing multiple risk factors for poor, people of color, including racial residential segregation, homelessness, and medical bias; (c) shape access to flexible resources, such as medical knowledge and freedom, which can be used to minimize both risks and the consequences of disease; and (d) replicate historical patterns of inequities within pandemics, despite newer intervening mechanisms thought to ameliorate health consequences. (2020, 1)

These sorts of harms should not be too surprising to those familiar with the history of Detroit, and that is the point. The vulnerabilities faced by (predominantly low-income and Black) Detroiters are the result of explicit and implicit social policies, resulting in the population’s segregation, poverty, etc.

Fundamental cause theory helps perform a critical ethical analysis of the ongoing COVID-19 pandemic’s burden on the US. It cautions us to resist the impulse to infer that novel hazards (COVID-19) must therefore cause novel and unpredictable patterns of harm. Knowledge about the ways that socially-created vulnerability operates means that we can—and ethically must—prepare for unknown new hazards by scrutinizing and reforming the conditions that make people vulnerable to whichever hazard appears next. For instance, here is a prediction I published in 2018, based on fundamental cause theory:

It is a matter of historical inevitability that new infectious diseases will sporadically emerge, and the world will soon contend with the next SARS, MERS, strain of influenza, etc. When some groundbreaking new medication arrives, it will first benefit those with more status and resources—those who have the benefit of flexible social buffers such as prestige, money, racial privilege, and an absence of stigma against them. (Valles 2018, 122)

Interestingly, the SARS-CoV-2 virus’s closest relatives are the quoted SARS and MERS. And in one sense the prediction of medication benefits being inequitable remains to be tested since there are no clearly very effective new medications for COVID-19 available. As of writing, the current most promising experimental drug available, remdesivir, has only begun getting very limited distribution to hospitals in the US. Though, after the early days of distributing this scarce and coveted resource, the allocation of the resource appeared so misaligned with equity that the Infectious Diseases Society of America and the HIV Medicine Association wrote a joint letter to the White House coronavirus task force pleading for it to distribute remdesivir in a more transparent and equitable way (File and Feinberg 2020).

So far, the aforementioned ‘non-pharmaceutical interventions’ (stay-at-home orders with exceptions for essential workers, business closures, etc.) are the main tools used in the absence of highly effective treatments or vaccinations (Jones et al. 2009). These policies are novel formalizations of the ancient practice of reducing social contact during an epidemic, designed and refined to suit the needs of individual jurisdictions (whether effectively or not). These health-promotion interventions have already been bearing out those predicted patterns of which populations would be most harmed, based on fundamental cause theory.

As will be illustrated in the upcoming examinations of four US institutions whose socially marginalized members bore especially heavy burdens of COVID-19, fundamental cause theory provides a way of seeing commonalities and patterns across a diverse range of COVID-19 inequities. Often these harms will converge, such that multiple fundamental cause vulnerabilities afflict a single population, including low-income immigrants of color. This issue of converging socially-imposed vulnerabilities is a well-known problem and has been variously described and theorized—e.g., “a cascade of deprivations greater in their magnitude than each would have been in isolation” (Powers and Faden 2006, 30; also see footnote 1).

Fundamental causes serve as an organizing schema for health equity and the operation of the much-cited ‘social determinants of health.’ It addresses a vagueness in the notion of social determinants of health by looking at a layer of causal influence overlaying the patterns of social determinants—the causes hiding behind the causes—that Jones et al. conceptualize as the “social determinants of equity” (Jones et al. 2009). That is, fundamental cause theory guides us as we trace the connections between the local harms to marginalized social groups (e.g., infections and deaths among prisoners, who are disproportionately Black) through the social determinants/conditions that harm them (e.g., unsanitary prison living conditions) and a step further to the factors that differentially expose people to such social determinants (e.g., racism), and explains that the intervening mechanisms will vary and shift (e.g., policing and prosecution processes differ and evolve, but racism remains a constant background condition).

JAILS AND PRISONS

It is not an accident that two of the worst COVID-19 micro hot spots in the US are jails: New York’s Rikers Island and Chicago’s Cook County Jail emerged as COVID-19 infection hot spots within city hot spots (Lopez 2020). It is not a surprise that they and other jails and prisons have been hit hard, nor is it a surprise that the harms are spilling over into their surrounding communities. As Wanda Bertram of the Prison Policy Initiative explains, COVID-19’s pattern of harms is just a particularly glaring example of a familiar pattern:

It’s an exaggerated version of what we talk about all the time when we talk about the public health impact of mass incarceration—when we say that this is not just something that puts incarcerated people in danger but something that puts whole communities in danger. (Lopez 2020)

Mass incarceration has been a growing area of study in population health research (see, for example, the themed issues on the topic in the August 2018 and Supplement 1, 2020 issues of the American Journal of Public Health). In an attempt to quantify the net mortality harms of incarceration on the poorest 25% of the US population, Nosrati et al. used cross-state comparison data to estimate that “each additional prisoner per 1,000 residents (mean = 4.0, s.d. = 1.5) is associated with a loss of 0.468 years [of life expectancy at age 40]” (2018, 720). For reference, the US incarceration rate is roughly7 per 1,000 residents, while almost all peer high-income countries’ rates are under 2 per 1,000 residents (Wagner and Sawyer 2018).

The burdens of incarceration are anti-poor, and racist via clear disproportionate impacts—e.g., 40% of prisoners are Black despite only 13% of the US being Black (Sawyer and Wagner 2020). According to a Robert Wood Johnson Foundation report, one conceptual model of mass incarceration’s harms on public health is that it generates a vicious cycle of harmful phenomena that feed into one another: “Racism and/or lack of economic opportunity”—notably, these are both fundamental causes—leads to discriminatory policing/arrests/prosecution/sentencing, which in turn leads into a web of intertwined outcomes: “incarceration,” “desperate poverty; powerlessness; homelessness,” “worse physical and mental health,” and “social exclusion and marginalization; inability to earn income, obtain housing, or vote” (Acker et al. 2019, 10). In other words, mass incarceration offers a number of ways in which it contributes to the harms of three fundamental cause inequities in particular: it preys on those who lack the fundamental cause protections of money and racial privilege, and it also contributes its own variety of stigma to the world (stigma against those with criminal records).

Tschaepe has shown how US mass incarceration creates an ethical vicious cycle, akin to the way that it creates a vicious cycle of health harms. US society, in part intentionally, places prisoners into institutions with a vile winking expectation that part of the punishment is that they will be sexually abused inside a crucible of toxic masculinity. This gravely unethically harms prisoners, and then goes on to harm communities because toxic masculinity only gets further ingrained in culture, thus reinforcing the cycle of violence (Tschaepe 2015). Drawing on experiences doing work in prisons, McHugh notes that incarceration creates a number of epistemic injustices related to health, including the ways that the institution manipulates prisoners into losing a sense of agency, which is a psychological harm generally but also sabotages prisoners’ abilities to advocate for their healthcare needs while incarcerated (McHugh 2018).

While there have been piecemeal efforts to reform sentencing laws and other such modest reforms to the criminal justice system, the mass incarceration problem’s structure makes a piecemeal dismantling implausible. In reviewing the problem of mass incarceration as a driver of health inequity, Wilderman and Wang caution the following:

Were the USA to return to the levels of incarceration of the 1970s, at least a half a million people employed by the criminal justice system could lose their jobs, and 63 million individuals would still have criminal records. The criminal justice system is so deeply rooted in America’s political system and socioeconomic structures that the damage to the health of our communities cannot be mitigated without addressing the root causes of mass incarceration and the forces that inevitably seek to maintain it. (2017, 1472)

The advice here is similar to the recurring advice in fundamental cause theory, social determinants of health research, population health science research, and social justice scholarship of many sorts: the harms resulting from social injustices must—sooner or later—be addressed at the roots (Link and Phelan 1995). The US mass incarceration system is unethical all the way to its core, and there is no viable alternative other than its replacement (see arguments for prison abolitionism in: Davis 2003). This is not to claim that suitable institutional replacement(s) will be easy to identify and implement, nor that the process will magically stop the ripple effects of past harms, as Wilderman and Wang explain. But mass incarceration will remain a thorn in the side of US public health so long as it exists, whether or not there is a pandemic exacerbating and drawing attention to this institution.

MEAT PROCESSING PLANTS

Meat processing plants, like prisons, sit at the intersection of multiple kinds of avoidable injustices, preying upon those who lack the benefits of protection from fundamental causes of prestige, money, and racial privilege. Meat processing plant workers are predominantly people of color, approximately one third are undocumented immigrants, and the pay is low (Cain 2018). After meat processing plants began disruptions and closures due to COVID-19 outbreaks, the chairman of Tyson Foods declared in simultaneous full-page advertisements in multiple newspapers, “Tyson Foods places team member safety as our top priority” and “The food supply chain is breaking” (Tyson 2020). This rhetoric obscures the well-documented fact that Tyson Foods and the wider industry have vehemently fought against efforts to protect worker safety and well-being, contributing to meat processing plant work being among the most dangerous work in the US (Lowe 2017; Stuesse 2016). The fast pace of the factory line and repetitive work has led to widespread repetitive motion injuries and carpal tunnel syndrome, accompanied by less common but far more severe injuries, including amputations of fingers/limbs and deaths (Gerlock 2016). Under-reporting by (rightfully) fearful employees and the use of outside contractors make the problems even more dire than what official records report (Gerlock 2016). Trump responded to the added harms of COVID-19 infections by explicitly seeking to prevent plants with severe COVID-19 outbreaks from shutting down, declaring them part of “critical infrastructure” via the Defense Production Act (Telford, Kindy, and Bogage 2020).

Trump has infamously made it a centerpiece of his presidency to loudly decry the very presence of undocumented immigrants, and hurl racist accusations against them—the same people whom he has now deemed critical to the US and commanded to return to unsafe working conditions. All the while, it is disturbing to consider that workers in raw food processing facilities work in such unsanitary conditions that they cannot help but spread a viral disease amongst each other. In 1906, Upton Sinclair’s The Jungle famously sought to bring public attention to the plight of immigrant meat processors, remarkably succeeding in inspiring the US public to successfully demand sanitary reforms in the industry, but not labor or immigrant civil rights reforms (see discussion of the historical context in: Pacyga 2015).

The US meat mass production system’s strongest defense co-opts the aforementioned critiques that it is unethical, including harmful to its impoverished workers, by touting its ability to “feed the nation” with “affordable” food (Tyson 2020). To scholars of industrial agriculture, such claims ring false. The meat produced by this system is inexpensive in the same narrow sense that coal energy is relatively cheap: both industries offer lower price tags in the marketplace by passing on the costs of its harms to others in society and concealing the ethical costs. Garner and Rossi summarize the ethical problems of the industrialized animal farming system this way:

Significant evidence supports the conclusions that industrial farm-animal production is highly detrimental to animal welfare; contributes substantially to anthropogenic greenhouse gas emissions, environmental pollution, and the risk of zoonotic disease; lowers the quality of life in rural communities; lowers the overall amount of food available as compared to alternative agricultural systems; and promotes a diet rich in animal products that is detrimental to the public’s health. (2014, 1232) 

These problems are preventable. And even the rebuttals—e.g., that it provides cheap food the population—rest on the concealing of the full costs (Garner and Rossi 2014), since government farming subsidies and pollution regulations serve industry interests.

Strategically placing factories in locales with limited protections for collective bargaining and unions, meat processors have proceeded to recruit Latino/a/x workers, especially immigrants, cultivating and leveraging the fundamental cause vulnerabilities of the workers—lack of social prestige, lack of racial privilege, and lack of money—to maximize profits (Stuesse 2016). As Stuesse (2016) examines in ethnographic work on poultry processors in the US South, the fact that these jobs has previously been largely held by Black workers created complex new challenges in building sufficient worker solidarity to push back against the exploitive working conditions. This aligns with the public health research on unions, which has highlighted the wide range of benefits to the wellbeing of workers and their communities due to facilitating better living conditions, increased community engagement, etc. Wright (2016) summarizes, “the decline of American unions is a threat to public health,” in a an article that highlights some union benefits that have received renewed US public interest during the COVID-19 pandemic: safer working conditions, paid leave, living wages, stable health insurance, and in the specific case of nurses unions: better care for patients.

Meat processing plant workers’ suffering is one set of examples of how fundamental cause vulnerabilities combine in complex ways (see footnote 1). The burdens placed on immigrants are especially illustrative here, and not just the impoverished and racially ‘othered’ immigrants working in meat processing plants. One of the biggest obstacles to US resilience to the next health crisis—whatever it may be—is that a huge segment of the US lives on the edge of financial disaster every day. Only 61% of US households could afford to pay a hypothetical new $400 expense without borrowing money to pay it, with Black and Hispanic families having far less ability to pay. In the US fundamental cause context, immigrants suffer from low prestige and often also from lack of racial privilege, so it is unsurprising that federal too-little-too-late economic relief cash distributions (~$1,200 per eligible adult) barred non-citizens from receiving the funds, and even barred the citizen spouses of non-citizens, further harming the households of immigrants. Even the nuances of a new financial assistance program can follow predictable fundamental cause patterns by managing to find a novel way of remaining out of reach for people lacking fundamental cause protections.

HOSPITAL HEALTHCARE WORKERS

Healthcare workers in hospitals have suffered a disproportionate number of COVID-19 infections (Bellisle 2020). Intuitions about whether this is an ethically troubling inequity might go in either of two directions: either it’s a more-or-less necessary occupational hazard during a pandemic, or it’s troubling that healthcare workers are not being adequately protected against a virus that is primarily spread by contact with droplets of body fluids. In the analysis offered here, hospital healthcare workers make for a complicated case for examining via fundamental cause theory, health inequity and vulnerability. Some hazards faced by clinicians are regrettable but not necessarily inequitable—e.g., care work requires a certain amount of emotional burden that it is inextricable from the activity of caring (Forster 2009). Where it gets counterintuitive is that the best-known hospital caregiving professions—physicians and registered nurses—tend to make middle-class wages and have relatively high social prestige (e.g., nurses have long topped the list of professions most trusted to be honest and ethical, and doctors are near the top too [Reinhart 2020]), all while working within a moneyed institution. This would intuitively put workers in good shape entering into health crisis. After all, even if an infectious disease brings new risks to hospital workers, these sorts of workplace hazards are foreseeable in a hospital, and hospitals typically have financial resources available for adjusting to new conditions.

Despite those seemingly positive background conditions, COVID-19 has inequitably harmed a subset of hospital workers due to two vulnerabilities built into the ill-designed US healthcare system. First, despite being moneyed institutions, there is enormous economic inequity among hospital healthcare workers, combining in part with racial inequity. Despite the typically middle-class wages of nurses and upper-class salaries of physicians, many other healthcare workers are paid poverty wages. Second, COVID-19 gives a poignant new illustration of the bizarrely tragic phenomenon long discussed in by health policy scholars—the US healthcare system squanders its ample resources via a convoluted system that is organized around building viable businesses more than it is organized around benefitting patients.

An analysis of wages among female healthcare workers yields a disturbing picture of the intersections of racism, sexism, and economic exploitation in healthcare: “Of female health care workers, 34.9% … earned less than $15 per hour. Nearly half of Black and Latina female health care workers earned less than $15 per hour, and more than 10% lacked health insurance” (Himmelstein and Venkataramani 2019, 198). These imposed economic vulnerabilities and healthcare access vulnerabilities (an outrageous problem to have among healthcare workers)—are themselves rooted in racism and sexism (in part manifesting as low prestige inside a sexist institution), combined with lower occupational prestige—have resulted in higher COVID-19 burdens among female healthcare workers and among Black healthcare workers.

Based on preliminary data, Black healthcare workers seem to have been greatly disproportionately burdened by COVID-19. Only 11.6% of the healthcare workforce is Black (just below being representative of the US overall) (National Center for Health Workforce Analysis 2017), but early CDC data indicate that 21% of the healthcare workers who have contracted COVID-19 are Black (CDC COVID-19 Response Team 2020). Meanwhile, women (doing a disproportionate amount of undesirable work in the hierarchical and sexist medical system in which gender and prestige are tied) make up 73% of healthcare workers who contracted COVID-19 (CDC COVID-19 Response Team 2020). Again, those who lack the social protections of fundamental causes predictably face disproportionate harms from health hazards. This brings us to the related second reason that the intuitive affordances of working in healthcare somehow did not protect healthcare workers from harms: the precarity of socially marginalized healthcare workers rests atop the bizarre and precarious US healthcare system.

The US spends far more per capita on healthcare than peer nations—double the average of peer nations (Sawyer and Cox 2018). The US healthcare system is only gradually crawling away from a fee-for-service model, under which hospital revenue generally flows based on the services provided and what health care insurers are willing to pay for those services. Hospitals make money by having a financially viable portfolio of services provided to patients covered by insurers who pay favorable rates for those treatments. The results can be odd, such as that pediatricians (on average) make less than half the salary of plastic surgeons, and the only specialty making even less than pediatrics is … “public health and preventive medicine” (Kane 2019). Helping patients is sometimes profitable. But, as Burke and Ryan put it, the ethical problem is that “costs are not strongly related to quality in the United States” (2014, 125).  

The result of this bizarre financial model is that hospitals have struggled in counterintuitive ways during the COVID-19 pandemic. The US federal government, state governments, and individual healthcare facilities entered into a perverse bidding war over personal protective equipment such as masks since each of the entities is a business in a free market. At the same time, there was a sudden decline in patients seeking elective treatments. These elective treatments are the profit base of most hospitals and clinics. The result is that during a time of desperate healthcare shortages, many hospital workers have been laid off or furloughed (Derysh 2020). Not only are US hospitals not built to accommodate public health emergencies, they bizarrely are struggling to pay their bills and adequately equip their staff with basic protection gear just as society most relies on these institutions (Dixon, Erb, and Shamus 2020). And, when hospital financial models suffer, their employees with existing vulnerabilities are the ones that most suffer from loss of wages or continued work in dangerous conditions (due to lack of sufficient protective equipment, etc.).

ELDERCARE FACILITIES

As of early May 2020, about a third of all US COVID-19 deaths have been among eldercare facilities’ residents or caregivers (Yourish et al. 2020). While it has been widely discussed that COVID-19 risk is far higher among elders, this does not mean this terrible burden of mortality in eldercare facilities was unavoidable. Rather, it reflects the same pattern discussed throughout this paper: available evidence that such harms could foreseeably happen in an institution, the institution being fundamentally flawed and ill equipped to prevent or adapt to the crisis, and fundamental cause theory giving the grim prediction that the burdened populations will continue being at risk from future crisis until we reform the societal conditions that motivated the creation of this flawed institution.

It is important context that eldercare facilities such as nursing homes have long known about the dangers of infectious disease, with seasonal flu being a particularly deadly recurring threat.

Long-term care facility environments and the vulnerability of their residents provide a setting conducive to the rapid spread of influenza virus and other respiratory pathogens. Infections may be introduced by staff, visitors or new or transferred residents, and outbreaks of influenza in such settings can have devastating consequences for individuals, as well as placing extra strain on health services. (Lansbury, Brown, and Nguyen‐Van‐Tam 2017, 356)

In other words, eldercare facilities ought to be well prepared for controlling COVID-19 since effective physical resources, training, and protocols are things that responsible eldercare facilities ought to have in place in preparation for seasonal flu and other respiratory infections.

Many eldercare facilities tragically failed to effectively protect staff and residents. Seeking to avoid accountability, leaders of long-term eldercare facilities are now seeking exemption from lawsuits resulting from the deaths of their residents. Despite the fact that these needs have been predicted and described in detail as basic infection control standards for facilities that face annual threats from flu season, the (predominantly for-profit) long-term care industry is selling a different story: “Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment” (Condon, Mustian, and Peltz 2020).

“Direct care workers” do some of the most undesirable and low-paying work in healthcare, helping people with bathing, using the bathroom, assisting with everyday tasks, and a variety of other jobs, all for minimum wage or little more. Such jobs in nursing homes have a relatively low bar for minimum training and “because pay rates are low and many jobs are part-time, nearly half of direct care workers are eligible for public assistance” (Institute of Medicine 2015, 249). And, in keeping with the previously discussed racist and sexist patterns in healthcare personnel wages and status more generally, “about 90 percent are women, and 45 percent are African American or Hispanic” (Institute of Medicine 2015, 249). These problems are also not relegated to nursing homes and other long-term eldercare facilities. The chief alternative to institutional care—home care—brings lower risk of COVID-19 due to the lack of high-density housing of high-risk people, but does not solve the root ethical problems of societal devaluing and neglect.

The low wages of home care workers are rooted in the history of exploitation of labor based on race and gender, particularly the devaluation of women’s labor in the household. Because women often do this work for their families for “free,” it isn’t considered deserving of the same respect—and wages—offered to workers who are employed outside the home. Thus, the women—and, in particular, women of color—who do this work have long suffered from substandard wages. Of home care workers, 89 percent are women, and more than half are people of color. One in four home care aides is an immigrant to the US. (Paraprofessional Healthcare Institute 2015, 9)

Once again, racism, economic exploitation, and exploitation of women and immigrants’ low prestige lay beneath the observed problems.

In one sense, the eldercare crisis manifests a failure of societal design emerging from a devaluing of elders. Many US elders must choose between ‘aging in place’ (remaining in one’s home, perhaps with assistance of some sort) in houses/neighborhoods that tend to be ill-equipped for elders’ lives, or moving into eldercare facilities that vary enormously in quality, partly depending on cost. This is a serious ethical problem (Molinsky and Forsyth 2018). The proximate problem of COVID-19 devastating some eldercare facilities links up with much deeper fundamental cause root problems—racism and a social prestige (in a system that devalues the work of women of immigrants). These root causes manifest in the mid-level social problem of US society’s collective unwillingness to engage with the problem of elder care being a resource-intensive enterprise. In the absence of good solutions or even much collective discussion at all, precarious elders are kept out of sight and out of mind, tended to by members of society who are themselves devalued. An ethical society must foster the wellbeing of elders, a goal that depends on building flexibility into their surroundings, “from caregiving to medical care to accessible housing and transportation to a supportive cultural milieu” (Reynolds 2018, S35).

HOPE AND SOLIDARITY

There is a certain bleakness to looking at the US COVID-19 impacts through the lens of fundamental cause theory and the previous literature on the crumbling US health system. Yet I think there is room for optimism in the ways some temporary COVID-19 responses are cracking open the window of possibility for long-term change. For instance, many jurisdictions have been releasing some prisoners from overcrowded facilities, on the rationale that they are not community threats due to age, ill health, or behavior while incarcerated. This gives a new lens on the existing ethical prison reform/abolition debate, which has been asking why we would continue to incarcerate these and many/all other prisoners during non-emergency times. Similar ethical cases apply to other temporary measures that have been offered as ethical means of managing the temporary pandemic crisis: robust unemployment insurance, forbidding landlords from evicting tenants, flexible mortgage forbearance policies, even universal basic income.

What would it look like to build a society that fosters health in an ethical way, a society that is more resilient to the shifting landscape of health threats? Returning to fundamental cause theory, the advice is: “if one genuinely wants to alter the effects of a fundamental cause, one must address the fundamental cause itself” (Link and Phelan 1995, 88). Prisons and eldercare facilities will continue to be loci of health crises (who knows what crisis will come next?) until such time as they cease being places where we willfully hide away people we collectively choose to not value as a society (elders and their caregivers alike). So long as we allow some socially essential occupations—such as healthcare workers—to be paid poverty wages and given unreliably safe working conditions then we will continue to see them take the brunt of health harms. So long as we allow meat processing companies to exploit migrant workers (who typically lack the social protections of prestige and of racial privilege) and cause incalculable non-human animal suffering—and with no accountability for the hidden costs of the enterprise such as carbon emissions—then we will continue to see horrors all too similar to the ones Upton Sinclair decried in 1906. Solidarity does not follow automatically from being confronted with the suffering of our neighbors. But, bioethicists have indeed made a compelling case for solidarity being essential for the goal of building a world in which equitable health can exist (Sherwin and Stockdale 2017; Jennings 2015; Prainsack and Buyx 2012).

Now that the cracks in the foundations of these four US health institutions (and others) have opened more widely, it creates an opportunity to create something better. Those previously cited calls for solidarity are quite complementary to the calls for a complete “culture of health”—the de facto motto of “population health” advocates (Valles 2018), as popularized by the Robert Wood Johnson Foundation. The US’s health problems are as deep-seated as culture is, and as widespread as culture is. For instance, there is a US social value of “self-reliance” (Woolf and Aron 2013, 223–24), manifesting in contexts such as the protests against COVID-19 lockdowns and the rejection of the advice to use a mask in order to protect possibly unknowingly-infected people from harming others. This stands in stark opposition to a social value of “shared responsibility,” which would be more conducive to community health, and this difference seems to be contributing to the US having worse health than peer nations (ibid.).

Foundational population health scholar Rose declared at the start of his influential book, The Strategy of Preventive Medicine, “There is no known biological reason why every population should not be as healthy as the best” (Rose 1992, 1). He was well aware that this empirical and epistemic claim sets the stage for ethical and political work founded on a shared commitment to scrutinizing and fixing the social conditions that make some populations suffer more than their neighbors. In other words, health inequities between populations are not biological destinies; they are the results of political choices, ones that we can ameliorate if we find the collective will to do so.

The US lacks a culture of health, and that has shaped its creation of health system institutions—four of which are discussed here—that have long been badly flawed in ways that undermine public health. COVID-19 has greatly exacerbated the harms of those institutions, which have disproportionately hurt socially marginalized people in ways predicted by fundamental cause theory. This has led to an uncomfortable combination of knowns and unknowns regarding COVID-19. From the perspective of a scholar of the epistemology and ethics of public health equity and social conditions’ impacts on justice: I didn’t at all anticipate spending 2020 in lockdown, but when I read the unending stream of reports that COVID-19 is disproportionately harming socially marginalized populations that are relatively unprotected by the armor of fundamental causes—from low-income retail workers to residents of Navajo Nation—surprise rarely comes to mind.

ACKNOWLEDGMENTS

I am grateful to Helen De Cruz for comments on this paper and to the participants of the 2020 St. Louis Area Philosophy of Science Association (virtual) conference for their comments on an earlier version of this work.

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[1] For the purposes of this paper, I will not delve into the disputes over the assumptions, theoretical commitments, and tacit or explicit empirical predictions/claims of “racial capitalism” (Robinson 2000), nor how it meshes with “intersectionality theory” vs. alternative accounts of the dynamics between racism, capitalism, classism, sexism, colonialism, and other forms of domination. For a partial review of the disputes, see the debate between Foley (2019) and Bohrer (2019) regarding how to interpret the intersectionality work of Collins (2019) and the intellectual contributions of Crenshaw (1989). Here, it suffices to note that racism, poverty, and other social disadvantages can be posited as fundamental causes, and disputes over how to delineate them or understand their interactions are matters for ongoing theoretical work and testing of empirical predictions.

Special Issue, Uncategorized

Anarchist Responses to a Pandemic: The COVID-19 Crisis as a Case Study in Mutual Aid

Nathan Jun & Mark Lance

[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]

ABSTRACT: When central authority fails in socially crucial tasks, mutual aid, solidarity, and grassroots organization frequently arise as people take up slack on the basis of informal networks and civil society organizations. We can learn something important about the possibility of horizontal organization by studying such experiments. In this paper we focus on the rationality, care, and effectiveness of grassroots measures to respond to the pandemic and show how they illustrate core elements of anarchist thought. We do not argue for the correctness of any version of anarchist politics, nor claim that the bulk of this grassroots work was done with anarchist ideas explicitly in mind. Nonetheless, the current pandemic, like many social crises before it, serves as a sort experiment in political implementation.

Two things have been striking in the US response to the COVID-19 pandemic: the chaos, incompetence, irrationality, and often cruel misguidedness of the centralized government response; and the rationality, care, and effectiveness of grassroots measures in many parts of the country. In this paper we focus on the latter—especially the case of Washington, DC—to illustrate core features of anarchist politics. We do not argue for the correctness of any version of anarchist politics here, but merely illustrate guiding ideas that have been a part of anarchist theory and practice for well over a century. We also do not claim that the bulk of this grassroots work was done with anarchist ideas in mind, or explicitly out of a commitment to anarchist politics. Some was, and some arises out of related ideological commitments, but most simply functions out of no more than a desire to support one another.

The current pandemic, like many social crises before it, rather than providing a stand-alone argument or functioning as an implementation of any political theory, serves as a sort of laboratory experiment. When central authority fails in socially crucial tasks, mutual aid, solidarity, and grassroots organization frequently arise as people take up slack on the basis of informal networks and civil society organizations. We can learn something important about the possibility of horizontal organization by studying such experiments, including how it arises through spontaneous action. If political thought is best illustrated through its implementation in practice, the functioning of grassroots individuals and organizations in a time of crisis is one way to understand the political mechanisms core to anarchist thought.[1]

§1. THE SITUATION IN WASHINGTON, DC, MARCH–APRIL 2020

A. National Government Responses

It is widely recognized that the US government has largely failed to meet the demands of a dangerous emerging new disease. Despite the fact that public health experts in multiple countries and international organizations raised the alarm early and urged aggressive policies of social distancing and testing, the US government lurched between dismissing the worry and a range of different responses. The US was massively short of protective gear, of (accurate) testing equipment, of ventilators, and of ICU beds, and there was no coherent leadership from the top for dealing with these problems. The president downplayed the danger in direct contradiction of the consensus of experts. When he did offer public statements, they veered from bragging to insistence that keeping official US numbers down was more important than public health,[2] to incorrect statements of his own administration’s position,[3] to attacks on journalists,[4] and to outright falsehoods about test availability, time for a vaccine, numbers of infected, and status of an anti-viral treatment.[5]

In response to such an extraordinary failure, it fell to lower levels of social organization to mobilize a response. A great many layers of society took up the slack.

B. More Local Responses

            In contrast to the chaotic, inadequate, and often counter-productive national response, several governors and mayors instituted aggressive, empirically grounded, and scientifically supported policies on their own. But they were far from alone in taking initiative. At all levels of society—from state governments, to corporations, to major civil society organizations, to grassroots networks and organizations—groups of people began to provide services and support in novel ways. Major corporations closed operations voluntarily. Virtually all sporting events in the US were cancelled by professional leagues, the NCAA, etc. Universities nationwide moved to online instruction. Restaurants voluntarily instituted delivery and carryout-only policies. Civic organizations, clubs, and venues closed to implement social distancing. Much of this was eventually required by local governments in some areas—one of the worst aspects of the lack of national leadership has been the massive variation in response between states and even regions within states, variation that is disastrous in the face of a virus that is indifferent to political boundaries[6]—but most was initiated autonomously.

            Even more impressive, we claim, were the steps taken entirely at the grassroots, the steps that involved forming new coalitions and organizations. In tracing the way this happened, it is crucial to keep in mind a truism of social movement theory—that movements arise not utterly spontaneously out of nothing, but by way of existing networks, systems of contacts, and established organizations. Consider the DC Mutual Aid Network.[7] Originating in the easternmost wards of DC, Wards 7 and 8—a majority African American region that has the lowest family income in the District (DC Economic Strategy, n.d.)—it has spread to every other ward in the City. The network was initially convened by Black Lives Matter-DC (BLM-DC), an organization initially formed five years ago to combat police violence against African Americans. Since then, they have expanded their work to include food insecurity, grassroots domestic violence support, work against gentrification, support for public housing, and more. BLM-DC not only has a large number of direct participants, but it has also developed ongoing relationships with numerous other organizations in the city, some centered in the African American community, but many in others. These networks were easily called upon to quickly build the larger coalition in response to the pandemic.

In Ward 6, for example, the initial work was taken on by a group called Serve Your City (SYC). SYC is a youth-focused organization that primarily provides tutoring and youth sports opportunities for underserved youth in DC (SYC, n.d.). Since much of their typical work was shut down as a result of the municipal response to the pandemic, SYC was able to take on direct service work. Importantly, their previous outreach efforts in economically disadvantaged communities created contacts and a history of trust to draw on when providing new forms of support.

In other wards, the lead was taken by groups as vague as neighborhood listservs, or sometimes Neighborhood commissioners or churches. But in all cases, the work quickly spread through existing loose associational networks.

The outreach efforts of DC Mutual Aid Network involve work with the elderly, public housing residents, unhoused citizens, and other vulnerable people. People have made grocery runs for seniors and those at high medical risk. Programs have been established to feed at-risk children who are out of school. Fundraising has provided laptops for students learning at home. People have coordinated driving for essential needs and to medical care as well as in-home nursing visits. Social media sites provide centralized information on resources provided by the city, by NGOs, and by individuals. DIY solutions to a shortage of masks and numerous other problems are proposed and debated in real time. New scientific information is centralized and disseminated through the network and its social media platforms, and social pressure to follow best practices is disseminated by people trusted in local communities. (This network has been so effective that the DC government hotline has taken to directing people to DC Mutual Aid Network—without, of course, acknowledging or supporting its work (O’Gorek 2020).)

In DC alone, dozens of neighborhood listservs and social media sites offer skillshares and direct support—everything from money to rides to grocery deliveries to dog walking. Hundreds of efforts to support precarious workers exist in the city.[8] In all these ways a community of mutual aid has come into being in the midst of a disaster, largely without centralized leadership. And, of course, DC is not unique in this regard. Similar work is happening in numerous cities and rural areas.


§2. ANARCHISM

Among the classical nineteenth-century political philosophies, anarchism is the least studied within the academy and most widely mischaracterized. A systematic theory of non-hierarchical social organization designed to maximize both freedom and cooperation, with well over a century of sophisticated theory developed largely by anti-capitalist organizers and revolutionaries, it is routinely equated in popular discourse and the press with nihilism or chaos, while academics even coin oxymoronic notions like ‘anarcho-capitalism.’ In what follows, we move through the core elements of anarchist thought, illustrating how each can be found in the praxis of grassroots responses to COVID-19.


A. Mutual Aid

Mutual aid—solidarity, free cooperation—is a core concept of anarchist thought. It is the principle around which just social organization must be built. To embrace mutual aid as the sole legitimate organizing principle of society is to reject the institutionalization of any means of coercion, or of violence and the threat of violence. It is to embrace the idea that we can cooperatively reason with one another, and thereby instantiate our common inclination to build a society that benefits all without instituting any sort of hierarchy that functions to enforce such arrangements.

The grassroots DC response to COVID-19 is a clear and vivid illustration of mutual aid. The actions of DC Mutual Aid Network, neighborhood groups, etc., were all undertaken without any demands of local authorities or hope of personal gain. People saw a need, worked together through existing networks, offered help where needed, engaged in discussions of best practices, listened to established experts, and acted in concert with one another in the interests of all. In many cases, people volunteered activities that were dangerous—delivering materials to potentially sick community members, doctors coming out of retirement to serve[9]—and in no case do these fit the logic of self-interest and competition. As noted on the DC Mutual Aid Facebook page:

We want to take this moment to uplift the purpose and spirit of the group: mutual aid. This group is about solidarity, NOT charity. Protecting each other, not policing each other. Replacing oppressive systems and practices, not replicating them. And, as Dean Spade recently said, “banding together to meet immediate survival needs, with a shared understanding that the systems in place aren’t coming to meet us…fast enough, if at all, and that we can do it together right now.[10]

It is a presupposition of anarchist thought that humans have fundamental social inclinations—inclinations to live together and to care for one another. Anarchists have consistently maintained that the actualization of “the material, intellectual, and moral powers that are latent in each person” (Bakunin 1972, 261) and “the all-around development and full enjoyment of all physical, intellectual, and moral faculties” is not possible “outside of human society or without its cooperation” (Bakunin 1992, 46). For anarchists, the fact that human beings are “collective product[s]” born of “collective and social labor” implies that our most basic dispositions—which are “immanent and inherent, forming the very basis of our material, intellectual and moral being”—are ultimately social in nature (Bakunin 1972, 236). This suggests, in turn, that “the isolated individual cannot possibly become conscious of [his or her] freedom” and, by extension, that “the freedom of other [people], far from negating or limiting [individual] freedom, is, on the contrary, its necessary premise and confirmation” (1972, 237). Similar points are made by Errico Malatesta, who argues that solidarity “is the only environment in which [a human being] can express [his or her] personality and achieve [his or her] optimum development and enjoy the greatest possible wellbeing” (1974, 29), as well as by Emma Goldman, who contends that individual freedom is “strengthened by cooperation with other individualities” and that “only mutual aid and voluntary cooperation can create the basis for a free individual…life” (1998, 118).

It must be emphasized that none of this entails a “unitary concept of human essence” according to which human beings are naturally benevolent, altruistic, and cooperative, rather than selfish, acquisitive, antagonistic, and the like (May 1994, 13). In point of fact, anarchist thinkers have unfailingly rejected traditional conceptions of “human nature,” maintaining instead that individuals are socially constructed and that human personality is socially produced. Mikhail Bakunin, for example, argued that “the real individual”—no less than “his family, his class, his nature, [and] his race”—is constituted by “a confluence of geographic, climatic, ethnographic, hygienic, and economic influences” (1972, 89, 239–41). Like other anarchists, Bakunin resolutely denied that human beings possess “underlying intrinsic properties” or “innate ideas and sentiments.” For him, there is no such thing as “human nature” apart from basic biological capacities and inclinations—“rudimentary faculties without content”—that individuals express in different ways and to different degrees. Human personality results from the production of content within these faculties via the complicated array of social, cultural, economic, and political forces that act upon them. In a key sense, nothing is truly “natural” to a human individual-qua-individual except the forces that are “exercised over him.”

Even Peter Kropotkin—who, more so than any other major anarchist thinker, attempted to ground the human inclination toward sociability in biological fact—rejected the notion it is fully biologically determined. In his seminal work, Mutual Aid: A Factor of Evolution, Kropotkin’s overarching thesis is that although “there is an immense amount of warfare and extermination going on amidst various species, there is, at the same time, as much, or perhaps even more, of mutual support, mutual aid, and mutual defense,” which suggests that “sociability” plays as much of a role in biological evolution as “mutual struggle” (1902, 5).[11]

Just as the nature and development of biological species results from the tension between competing inclinations toward mutual struggle and mutual aid, so, too, is human personality constituted by the conflict between sociability and individual processes of self-development. From the outset, human beings inhabit a reality that is shaped by a struggle between diametrically opposed forces, both internal and external (Kropotkin 1924, 24). Far from being founded on any essentialized conception of human nature, the ethical significance of solidarity, cooperation, and mutual aid is itself a reflection of this struggle (Kropotkin 2002, 119–20).

Although the state, capitalism, and other institutions rooted in hierarchy, domination, and coercion serve to amplify the impulse toward competition and antagonism while simultaneously causing immense damage to human sociality, there nonetheless remain many ordinary contexts of life—friendships, clubs, churches, families—in which people routinely do things for and with one another from a sense that cooperation is good for all. Anarchism is a political philosophy built around this simple idea: that we can solve social coordination problems by talking about them and working together. In pursuing this aim, moreover, anarchism doesn’t just seek to tear down institutions, but also to marshal already-existing forms of cooperation and solidarity in the service of creating new social forms. As Kropotkin writes, the ultimate goal is not simply “to destroy authority in all its respects, [to] demand the abrogation of laws,…[to] refuse all hierarchical organization,” but rather “to build,…to maintain and develop such relations between men that the interests of each should be the interest of all” (2002, 136–37).

This is not to say that anarchists reject all coercion, or even all violence. In particular cases of harmful or anti-social action—say a person attempts a murder, rape, or assault—anarchism lacks specific prescriptions for what others should do to prevent this. As a revolutionary theory, moreover, anarchism acknowledges that coercion—and, on some accounts and in some contexts, violence—may be necessary “in order to put an end to the far greater, the permanent, violence that keeps the majority of mankind in servitude” (Malatesta 2015, 49). That said, anarchism is also fundamentally committed to prefiguration which, “in its most general form…denotes an identity between political methods and political goals or ends” (Franks 2017, 29). Because anarchists “explicitly distance themselves from the position that the end justifies the means” (Franks 2009, 99), the question of whether to engage in particular acts of coercion or violence must be addressed in relation to the ultimate aim of building a free and peaceful society. As Malatesta (2015) puts it, although “violence is justifiable when it is necessary to defend oneself and others from violence” (45), it must nonetheless “be controlled by such considerations as that the best and most economical use is being made of human efforts and human sufferings” (50). I might forcefully stop you from assaulting someone. If you persist in your attacks, our community might even gather and decide to restrain or expel you. What anarchists will not do is create an institution of police—a group of people whose social role, and, by extension, permanent power, is to engage in such coercive action. All of this is consistent with anarchist politics, which doesn’t (necessarily) reject coercion and violence per se so much as their use as organizing principles of society.

B. Organization vs. Rule

            Though superficially oxymoronic, anarchism can be thought of as a theory of organization. A clear illustration of this principle is the work of BLM-DC in the pandemic. An organization that was initially formed to confront the most violent civil institutions—police, prisons, etc.—is using its capacity to provide services that other aspects of hierarchical organization cannot adequately deliver. Thus, new horizontal relations between individuals and communities are developed in the work of meeting direct needs. According to anarchism, just social organization is motivated by and originates in mutual aid. It is sustained by instituting mutually beneficial forms of cooperation. As Malatesta writes:

Organization—which is, after all, only the practice of cooperation and solidarity—is a natural and necessary condition of social life; it is an inescapable fact which forces itself on everybody, as much on human society in general as on any group of people who are working towards a common objective. (2015, 77)

People strive to create and maintain just institutions because they see that it is in the interests of their own, and others’ lives to do so. As noted above, what anarchism opposes are unjust forms of organization built around coercion, domination, and exploitation—all of which come about as a consequence of people failing to organize themselves (2015, 79). One can see an at least implicit commitment to this structure of organization in the grassroots response to COVID-19.

First, grassroots networks of solidarity, being fully voluntary, have no choice but to be internally horizontalist. No one can be coerced to follow decisions of a group that they can simply leave at any time. And given that most of these groups were spontaneously brought together to deal with a sudden crisis, even more subtle patterns of coercion that can arise in longer term organizations that are embedded within a society marked by multiple dimensions of hierarchy are unlikely to arise here.

One can see a commitment to horizontalist organization as well in the ways that many mutual aid networks relate to the institutions of dominant society. The DC Mutual Aid Network explicitly refuses any cooperation with police. In the view of the collective, police are the distillation of coercive authority, an institution whose entire function in society is to enforce social organization by threat or use of violence. It is also an institution that, in the view of those involved in this project—especially but by no means exclusively BLM-DC—has a history of harming the very communities they aim to support.

Other institutions while not embraced, are seen as tactically useful allies for specific purposes. Though BLM-DC has been a consistent and outspoken critic of the current DC mayor, and the broader DC government, there is no prohibition on cooperating with city efforts to provide aid and resources in a time of crisis. In fact, the DC Mutual Aid Network collates lists of services and advertises these to at-risk populations, sometimes providing translations. As an ideology that encourages the unity of means and ends and scorns dogmatism of any sort more generally, anarchism has never objected to forming and deploying such tactical alliances—as is made clear, for example, by anarchists’ participation in the Popular Front during the Spanish Civil War. What anarchism repudiates, on the contrary, are vanguards—i.e., “particular group[s] with claims to either superior knowledge or more fortunate location in the political terrain…which can take strategic priority and win battles for others (and often speaks on behalf of the client group)” (Franks 2009, 99). Consequently, as Kropotkin writes, “the business of any revolutionary party is not to call for insurrection but only to pave the way for the success of the imminent insurrection” (1993, 41). Cooperating with other groups (which is not the same thing as deferring to them) is more often than not a strategic necessity in pursuing this aim.

A third category of mainstream institution includes groups like the Centers for Disease Control and Prevention or other scientific organizations. Grassroots work has been vastly better empirically grounded than national responses to COVID-19. Grassroots organizations facilitate social distancing in all manner of ways. They establish collectives to make masks and other supplies that government and capitalist industry have failed to produce in sufficient numbers. They pass on the latest scientific information on sterilization, social distancing, when and how to seek medical help, and more. All of this involves embracing the authority of serious scientific work.

C. Authority

This brings us to the question of authority. As Bakunin famously wrote:

Does it follow that I reject all authority? Far from me such a thought. In the matter of boots, I refer to the authority of the bootmaker; concerning houses, canals, or railroads, I consult that of the architect or engineer.…But I allow neither the bootmaker nor the architect nor the savant to impose his authority upon me. I listen to them freely and with all the respect merited by their intelligence, their character, their knowledge, reserving always my incontestable right of criticism and censure. (1972, 229–30)

Again, our claim is that this distinction arises spontaneously in the practice of groups like DC Mutual Aid Network. We just noted that the entire project was based upon a respect for science. Not an uncritical respect—a quick perusal of the Facebook page will show active debates about some dimensions of official guidance—but a respect nonetheless. Comments promulgating conspiracy theories, racist theories, and anti-science superstition are shut down or removed. Would that the elite institutions of US society were as able to recognize the difference between wishful thinking, nonsense, and outright lies.

In terms of internal process, authority here is based on a careful balancing of organizing experience and commitment to equality and democracy. Some of this is laid out in documents.[12] Other times practical matters do not conform to pre-existing rules, and tough decisions have to be made on the fly. At one point a number of highly damaging accusations were made against organizers in an online forum. Though no evidence was presented to support the allegations, they were taken seriously. A mediation process was proposed. Only after numerous efforts to work with this person were all rejected in favor of continued vitriolic attacks were they removed from the process and banned from DC Mutual Aid Network social media sites.

But is this not coercive? Is it not authoritarian to ban people?

Of course, social banning can be authoritarian, but two distinctions are in order: first, the “punishment” here was simply non-association. No one was assaulted, imprisoned, or even prevented from engaging in similar work with some new group that they could convince to work with them. Principles of non-coercive social organization are not violated every time we decide not to associate with someone.[13] Second, no one was institutionalized as the “banning minister.” The use of such a punishment was not institutionalized in ways that could coalesce around a power center. It was a decision taken collectively, after attempts to reconcile and mediate, by those responsible for the work.

Though a sort of coercive authority was deemed necessary in order to continue the work, it was exercised in a horizontal manner as a last resort, and with minimal harm to the status and freedom of the person coerced.

D. Localism

Localism is another core idea that emerges from many currents of anarchist thought: the idea that whenever possible, decisions should be left up to local communities.[14] This is both a principle that supports democracy and freedom—if there is no compelling reason to require uniformity, then it would be an assault on freedom to require all communities to act in the same manner—as well as an epistemic principle. Local communities know best what their own needs are, what local conditions are relevant to meeting those needs, and what social conditions and historical associations will constrain just solutions.

In the case of DC Mutual Aid Network, this meant that networks were organized by wards. While there were coordinating calls and sharing of resources, each ward organized autonomously, determining priorities for themselves. And, of course, many other initiatives within the city grew up either through informal regional networks, friend groups, sports clubs, etc.

In addition, leadership in these networks was local. One of the Ward 6 leaders is Maurice Cook, an adjunct instructor at the University of the District of Columbia and founder of Serve Your City, someone personally known to the residents of Ward 6 public housing neighborhoods and to youth throughout the city.[15] Here is the work in his own words:

It’s been one of those weeks. One of the longest weeks of my life. Since Tuesday I helped build the foundation of a hyper-localized bloc of organizers. The Ward 6 Mutual Aid Team has utilized the model initiated by an amazing group of DC organizers who formed the DC Mutual Aid Network. This grassroots, community-led effort initiated by Black Lives Matter DC, No Justice No Pride, Black Swan Academy, BYP 100 and others formed in response to the inevitability that our systems will not protect, support, or sustain the lives of poor, working class Black and Brown people here in Washington, DC. No political candidate, local public official, charitable foundation, higher education institution, corporate mitigation fund, public health reps…will do whatever is necessary to ensure that our people receive what is needed to live in dignity while facing this imminent catastrophe.…

The DC Mutual Aid Network is organizing ward by ward and have already helped thousands of residents across the city. We were so successful this week that at least two DC agencies called the various ward specific hotline numbers.…Serve Your City is serving as the network hub for our Ward 6 Mutual Aid Team connecting resources including food and supplies to the community-based, grassroots orgs and community leaders on the ground. Serve Your City had to cancel all of its programs this spring. That means that Black and Brown children won’t learn how to row, swim, snorkel, scuba, play tennis, practice yoga, receive college prep and early career engagement. And I think everyone can imagine how much that hurts me. I’m going to channel that pain and use the very same skills I practice bringing resources to the kids we support to bringing resources to the kids and families we support. The organization is called “Serve Your City” for a reason. I just never imagined that these skills would be necessary to mitigate the massive harm from something so powerfully devastating and destructive.

Serve Your City never works alone. It’s impossible to do what we do without the power of collectivism, unity, and a shared purpose and vision. We have the most powerful family of people, leaders, and organizations like AquariusVann-Ghasri, Beverly Smith, Frank Muhammed, Kareem, Amy Moore, Mommas Safe Haven, Brothas Huddle, the Capitol Hill Arts Workshop, and others, playing a role in the supply chain. Fighting to make sure those without won’t have too long to wait for support. Managed and organized by a team of incredible people representing the Ward 6 Mutual Aid Team who were strangers on Monday but forever comrades from a previous life.

…I’ve known a secret that the coronavirus is teaching and/or reinforcing for all of us. My wellbeing is connected to your wellbeing. The coronavirus is the greatest manifestation of equality that I have ever seen. It cares nothing about your identity, your perceptions, your values, your beliefs, your dogmas, your weapons, or your wealth.[16]

            These comments illustrate not only the leadership of deeply socially engaged people, but also the transformative effect that the work has on all involved.

Localism is not an absolute principle of anarchism. Obviously, some matters need to be addressed on a broader scale. What one community does with a river affects those down and upstream on the same river, to mention the classic example. And one might well think that dealing with a pandemic is a paradigm of something that calls for centralized coordination. Viruses do not recognize national, state, or ward boundaries. And anarchism has developed numerous mechanisms to institute genuinely democratic centralized decision-making, organization, and planning, without falling into hierarchical modes.

This recognition that localism is merely a defeasible principle is implicit in much of the work in DC. First, virtually all the local initiatives include demands being made of the DC and national government. One need not endorse government as an ideal structure to demand—in a world in which it is the mode of centralized organization—that it provide evidenced-based and morally decent support to communities. Second, the grassroots efforts are themselves coordinated where possible. Though ward by ward work is largely independent, organizers have regular calls to coordinate, share lessons and resources, and keep up on the latest science from around the world.

E. Congruence of Means and Ends

A final core anarchist concept is the congruence of means and ends. Unlike traditional Marxists, anarchists do not believe in bringing about a free society through seizing state power or other institutionalized authority.[17] The core reason for this is that freedom, according to anarchist thought, is a social skill. Anarchists embrace not merely negative freedom—an absence of coercion—but a rich and substantive sort of positive freedom.[18] This positive freedom requires both material and social conditions necessary to achieve meaningful and flourishing ends[19]—I am not free, in this sense, to be a jazz saxophone player if there are no saxophones and unless there is jazz with all the rich historical and social background that this genre implies—but also active and meaningful involvement in the construction of the conditions of one’s life. That is, one is not free in the sense embraced by anarchism merely by being the recipient of a range of life options, but one must as well be in a position to influence what those options are and how they are made available.[20] But to participate in politics, to construct with others a world in which all can flourish, requires skills, knowledge, and practice. And those capacities do not arise by fiat. If a new world is brought about by a vanguard party handing down even genuinely egalitarian conditions from on high, the only people who will gain skills at organizing society are those in the party. Of course, history gives no reason to suspect that this centralization of power will wither away. Hierarchical power protects itself and moves inexorably to ever greater control.[21] But even if it did not, no capacity for broader involvement is built through an authoritarian movement toward collective liberation.

Grassroots responses to this tragedy do build capacity. In the face of such a devastating and sudden disaster, there are obvious downsides to leaving the response up to the spontaneous organization of local grassroots networks. A meaningful government response would have vastly greater capacity to meet human needs and to control dangerous anti-social behavior—not just congregating in defiance of public health advice, but things like profiteering, abandoning the most economically vulnerable, etc. So, in these ways, grassroots responses to COVID-19, however successful, seem like distant second-best matters of necessity.

But in terms of their ability to build capacity and to show us new non-individualistic, non-competitive ways that we can be together, they are far superior to a competent government. Every time a neighbor delivers loaves of homemade bread to each house in their block, each time someone provides a ride to a medical appointment, a toy to a child, or a grocery run, we learn who we can count on and why. Each time we get together and build a food distro, a community porch singalong, or an online gaming night, we learn both that we can organize ourselves non-hierarchically and that we care enough to do so. These actions teach us new ways of being—ways that capitalism and a capitalist health system systematically hide. In the immortal words of the Industrial Workers of the World, it is building a new world in the shell of the old. And that would be worth doing even in the context of a competent government.

REFERENCES

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——— 1992. The Basic Bakunin, edited by Robert Cutler. Buffalo: Prometheus.

——— 1973. Michael Bakunin: Selected Writings, edited by Arthur Lehning. London: Jonathan Cape.

Collinson, Stephen. 2020. “Trump Address Sparks Chaos as Coronavirus Crisis Deepens.” CNN Politics. March 12. https://www.cnn.com/2020/03/12/politics/donald-trump-coronavirus-europe-travel/index.html

Dale, Daniel, and Tara Subramaniam. 2020. “Trump Made 33 False Claims about the Coronavirus Crisis in the First Two Weeks of March.” CNN Politics. March 22. https://www.cnn.com/2020/03/22/politics/fact-check-trump-coronavirus-false-claims-march/index.html

DC Economic Strategy. n.d. “Household Income by Race and Ward.” https://dceconomicstrategy.com/household-income/

DemocracyNow. 2020. “Solidarity Not Charity: Mutual Aid & How to Organize in the Age of Coronavirus.” March 20. https://www.democracynow.org/2020/3/20/coronavirus_community_response_mutual_aid?fbclid=IwAR1LmcYYaSA3Yemd7H8zaoyELVnOgMHfUkR0mtXIkygAAHeOWlgBKqdefsk

Fox5Dc. 2020. “Maryland Boy Uses $600 of Savings to Make Coronavirus Care Packages for Seniors, Feed 90 Students.” March 22. https://www.fox5dc.com/news/maryland-boy-uses-600-of-savings-to-make-coronavirus-care-packages-for-seniors-feed-90-students.

Franks, Benjamin. 2017. “Prefiguration.” In Anarchism: A Conceptual Approach, edited by Benjamin Franks, Nathan Jun, and Leonard Williams, 28–43. London: Routledge.

——— 2009. “Vanguards and Paternalism.” In New Perspectives on Anarchism, edited by Nathan Jun and Shane Wahl, 99–120. Lanham: Lexington Books.

Goldman, Emma. 1998. Red Emma Speaks, edited by A.K. Shulman. Amherst: Humanity Books.

——— 1910. Anarchism and Other Essays. New York: Mother Earth Publishing.

Gordon, Uri. 2018. “Anarchism and Nationalism.” In Brill’s Companion to Anarchism and Philosophy, edited by Nathan Jun, 196–215. Leiden: Brill.

Guérin, Daniel. 1998. No Gods, No Masters, edited by Paul Sharkey. Oakland: AK Press.

Kropotkin, Peter. 1902. Mutual Aid: A Factor of Evolution. New York: McClure Phillips & Co.

——— 1924. Ethics: Origins and Development, translated by Louis Friedland and Joseph Piroshnikoff. Dorset: Prism Press.

——— 2002. Anarchism: A Collection of Revolutionary Writings, edited by Roger Baldwin. New York: Dover.

——— 1993. Fugitive Writings, edited by George Woodcock. Montreal: Black Rose Books.

——— 1974. Fields, Factories and Workshops. Oakland: AK Press.

Malatesta, Errico. 1974. Anarchy, edited by Vernon Richards. London: Freedom Press.

——— 2015. Life and Ideas, translated by Vernon Richards. Oakland: PM Press.

Mark, Michelle. 2020. Trump is Reportedly Fixated on Keeping the Number of Official US Coronavirus Cases as Low as Possible — Despite Indications the Disease has Spread Wider than He Wants.” Business Insider. https://www.businessinsider.com/trump-reportedly-wanted-coronavirus-numbers-kept-as-low-as-possible-2020-3

May, Todd. 1994. The Political Philosophy of Poststructuralist Anarchism. University Park: The Pennsylvania State University Press.

——— 2009. “Democracy is Where We Make it: The Relevance of Jacques Ranciere.” Symposium 13(1): Spring/Printemps.

O’Gorek, Elizabeth. 2020. “Is The City’s COVID Helpline Directing Callers to DC Mutual Aid?” HillRag. April 16. https://hillrag.com/2020/04/15/is-dc-covid-19-hotline-directing-callers-to-get-help-from-neighbors/.

People of Color Leadership Summit. 1991. “Principles of Working Together.” October 27. https://www.ejnet.org/ej/workingtogether.pdf

Reuters. 2020. “Trump Attacks Journalists for Asking ‘Snarky’ Questions on Coronavirus Testing in US – Video.” The Guardian. March 30. https://www.theguardian.com/us-news/video/2020/mar/30/trump-attacks-journalists-coronavirus-briefing.

Rocker, Rudolf. 1998. Nationalism and Culture. Montreal: Black Rose Books.

Roig-Franzia, Manuel, and Sarah Ellison. 2020. “A History of the Trump War on Media — The Obsession Not Even Coronavirus Could Stop.” The Washington Post. March 29. https://www.washingtonpost.com/lifestyle/media/a-history-of-the-trump-war-on-media–the-obsession-not-even-coronavirus-could-stop/2020/03/28/71bb21d0-f433-11e9-8cf0-4cc99f74d127_story.html

Solis, Ruben. 1997. “Jemez Principles for Democratic Organizing.” Mothers Out Front. April. https://www.mothersoutfront.org/jemez_principles_for_democratic_organizing?fbclid=IwAR1Q6GXO87H3PuZUcL8oPBKOoJjyyxTv_LdOVaNZg6DJXeFqR2wikH2xzhw

Solnit, Rebecca. 2010. A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster. New York: Penguin Books.

SYC. n.d.. “Serve Your City.” https://www.serveyourcitydc.org/

Timm, Jane. 2020. “Fact-checking President Donald Trump’s Claims about Coronavirus.” NBC News. April 2. https://www.nbcnews.com/politics/donald-trump/fact-checking-president-donald-trump-s-claims-about-coronavirus-n1174356.


[1] The classic statement of an argument along these lines is from Rebecca Solnit (2010).

[2] “I like the numbers being where they are,” Trump said during a visit to the Centers for Disease Control and Prevention on Friday. “I don’t need to have the numbers double because of one ship that wasn’t our fault.” Mark (2020).

[3] See, for example, Collinson (2020).

[4] See, for example, Reuters (2020); Roig-Franzia and Ellison (2020).

[5] See, for example, Dale and Subramaniam (2020); Timm (2020).

[6] While California, New York, and DC, for example, were shutting down all large gatherings, the governor of Florida kept beaches open for Spring Break partiers. While Fairfax County, Virginia closed schools, the governor refused to do so.

[7] See https://www.facebook.com/groups/492881801379594/ and the broader online Mutual Aid Network: https://www.facebook.com/groups/MutualAidNetwork/

[8] One of us lives in DC and is at high risk due to age and underlying lung conditions. He has been contacted by at least a dozen different neighbors offering support and help.

[9] See, for example, Stickings and Dyer (2020); Fox5DC (2020); DemocracyNow (2020).

[10] For the group, see https://www.facebook.com/groups/492881801379594/. For the post, see https://pixel.facebook.com/groups/492881801379594/permalink/499132654087842/. For the full Spade quote, see DemocracyNow (2020).

[11] Further, “[I]f we resort to an indirect test, and ask Nature: ‘Who are the fittest: those who are continually at war with each other, or those who support one another?’ we at once see that those animals which acquire habits of mutual aid are undoubtedly the fittest. They have more chances to survive, and they attain, in their respective classes, the highest development of intelligence and bodily organization….In the animal world we have seen that the vast majority of species live in societies, and that they find in association the best arms for the struggle for life: understood, of course, in its wide Darwinian sense— not as a struggle for the sheer means of existence, but as a struggle against all natural conditions unfavourable to the species. The animal species in which individual struggle has been reduced to its narrowest limits, and the practice of mutual aid has attained the greatest development, are invariably the most numerous, the most prosperous, and the most open to further progress” (Kropotkin 1902, 3, 293).

[12] For example, Solis (1997); People of Color Leadership Summit (1991).

[13] Of course, things like shunning can be coercive, even violent in extremes. But deciding collectively not to work with someone in response to repeated aggressive actions that are seen as contrary to the point of our association is not such an extreme.

[14] See, for example, Kropotkin (1974), especially chapters 1–3. See also Bakunin (1973, 170–72) and Gordon (2018, 208–9).

[15] Serve Your City is an organization supporting underserved youth in DC, providing tutoring, sports, and material aid.

[16] Quoted from a public Facebook post. See, https://www.facebook.com/M4RJNow/posts/from-our-cofounder-maurice-cookits-been-one-of-those-weeks-one-of-the-longest-we/1559374354213857/

[17] Again, this is not to say that anarchists eschew coercion as a tactic in changing society. Classical anarchist certainly endorsed things like the expropriation of the means of production—which they took to be illegitimately seized by private or corporate power in the first place. But there is no temporary stage in which the anarchist “leadership” or “vanguard party” would take over such power “on behalf of the proletariat.” Rather, seized businesses are to be immediately controlled by those who labor within them.

[18] See Goldman (1998, 98); cf. Goldman (1910, 67).

[19] Goldman (1910, 61); cf. Bakunin (1972, 261); Guérin, (1998, 57).

[20] For a detailed version of this argument see May (2009).

[21] See Rudolf Rocker (1998, 63); cf. Malatesta (1974, 14).