Decriminalizing Disease: A Health Justice Approach to Infectious Diseases and Criminal Law

Infectious diseases, also called communicable diseases, are largely a public health issue and should not be criminalized. This Article seeks to re-frame the discussion around the legal framework for infectious diseases in a way that moves beyond a punishment mindset and toward a health justice mindset. The focus in this Article is on health justice rather than traditional understandings of public health, defined as the science and practice of improving the health of people and their communities. The Article makes three novel contributions. First, it applies a health justice framework to the critique of infectious disease criminalization. Second, the Article assesses the implications of recent efforts to repeal or reform laws criminalizing HIV. Third, this Article examines the criminalization of infectious diseases other than HIV, in particular, hepatitis and COVID-19. Part I discusses the history of the criminalization of HIV through the lens of health justice. Part II provides an overview of current laws enabling HIV criminalization (in the following referred to as HIV criminalization laws) and describes the use of these laws in recent years. Part III considers how criminal laws have been applied to infectious diseases such as viral hepatitis and COVID-19 and explores the ramifications of these applications. The Article concludes with some takeaway lessons for public health and criminal law.