Deja Lewis was walking down a sidewalk in Salem, New Jersey, in the early, frightening days of the Covid-19 pandemic in April 2020, when she was stopped by police.
Lewis, 28, was arrested on warrants related to failure to pay traffic tickets, and an incident in which she “escaped” from a police vehicle. She had been a witness to a fight and left the back of the patrol car, her attorney said.
While she was in custody, police said she coughed “in close proximity” to officers, and said she had Covid-19, though no dashboard, body or in-station videos exist to prove the assertion either way.
The allegation has landed Lewis, who otherwise has no criminal history, with a potentially ruinous terrorism charge – one that could land her in prison for 10 years and leave her with a $150,000 fine.
The rare and serious penalty was available to prosecutors only because New Jersey was in a state of emergency, in this case because of the Covid-19 pandemic.
Lewis is among nearly four dozen people hit with life-altering terrorism charges – the sort of charges normally brought against people who perpetrate bomb threats – after the former New Jersey attorney general led a campaign to show law enforcement “we have their backs” amid the early days of the pandemic.
“It’s a miscarriage of justice,” said Lewis’s attorney, public defender Logan Terry. The most recent plea agreement offered to Lewis would sentence her to five years in state prison with restitution. “This is a poor person, and if this was a rich white lady this would not be happening. This is a poor black lady and they’re going to stick it to her, and I think it’s wrong.”
The charges brought by New Jersey prosecutors are formally called “terroristic threats in the second degree”. Each count can result in a possible 10-year prison sentence and a $150,000 fine and prosecutors may bring this heightened charge only during a state of emergency.
The first apparent terroristic threat charges in New Jersey came on 14 March 2020, two days before the White House would call on Americans to stay home for 15 days to “slow the spread” of Covid-19. The charges were brought against a Bergen county woman who allegedly coughed on an officer during a domestic violence incident.
From there, the former New Jersey attorney general Gurbir Grewal would continue to bring serious charges against people throughout New Jersey, tacking them on to otherwise minor arrests.
Grewal has since joined the Biden administration as the director of enforcement for the Securities and Exchange Commission.
“By ensuring that prosecutors filed serious charges in each of these cases, we let our officers know that we have their backs and that we appreciate the dedicated and professional way that they have met the challenges of this unprecedented emergency,” Grewal told the Guardian in June, before he joined the administration.
However, defense attorneys for people charged with second-degree terroristic threats said the cases are rarely as clearcut as prosecutors make out. Instead, they argued charges often hit the poorest and most vulnerable residents of the state, those living with mental illness and addiction disorders, and are brought against people accused of otherwise minor crimes.
“New Jersey was unusually aggressive early on in saying, ‘We’re going to prosecute these to the full extent of the law,’ not just charging assault,” said Chad Flanders, a professor at St Louis University School of Law who wrote a law review article on anti-terrorism statutes deployed during the pandemic.
Flanders said it would be more appropriate for prosecutors to bring charges under less severe assault statutes or disorderly persons statutes. “The idea we’re going after knuckleheads with 10 years and $150,000 fine – there’s sort of a disconnect to me.”
Anti-terrorism statutes “carry pretty serious penalties”, said Flanders. “And if you look at the history of the laws, they’re originally designed for people who call in bomb threats to buildings and cause a serious disruption.”
The charges echo how prosecutors once used anti-terrorism laws to charge people who allegedly threatened to transmit HIV and Aids. These kinds of charges have made the US a world leader in punishing HIV transmission, alongside Russia, eastern Europe and sub-Saharan Africa.
In some cases that attorneys described to the Guardian, New Jersey prosecutors specifically cited precedents set by HIV prosecutions in the 1990s to try to compel Covid-19 test results or to further prosecution.
One notorious case prosecutors cited is State v Smith, in which a New Jersey appeals court upheld the conviction and 25-year prison sentence of an HIV-positive inmate. The inmate, Gregory D Smith, threatened to kill corrections officers by biting or spitting on them. HIV cannot be spread through saliva, a fact known for more than a decade by the time the conviction was upheld.
In all the Covid-19 cases, the charges came as public health authorities called on law enforcement to release people from jail to avoid spreading the virus, and when New Jersey had the highest per-capita Covid-19 death rate of any state in the nation.
Despite these warnings, some New Jersey defendants charged under anti-terrorism statutes found themselves detained for far longer periods than they might during a non-emergency situation. That is because New Jersey waived a requirement that defendants be indicted within 90 days of arrest, as backlogged courts struggled to adapt to the pandemic.
In one case, a northern New Jersey man spent eight months in jail awaiting indictment. His crime, his attorney said, was telling arresting officers, “I have corona,” when he was asked if he had any health problems.
“It’s obviously not a threat in the common definition of the threat nor in the legal definition of the threat, and it was a direct response to their questioning,” said the man’s attorney, who asked not to be named to protect their client from retaliation.
After release, he was asked to return to jail indefinitely to get a coronavirus test.
“It was just so absurd and offensive to me for him to go in [to jail] to prove he was a Covid-negative, when obviously he could get tested on the street,” the man’s attorney said. They described the case as an example of how “Covid is used to hurt some of the most vulnerable people, and to continue to hurt them.”
All told, the New Jersey attorney general’s office publicized charges of terroristic threats in the second degree against at least 45 people, possibly the most concerted campaign to criminalize threats of Covid-19 transmission in the US.
It is possible the campaign was influenced by the Trump Department of Justice. In March 2020, the then deputy attorney general, Jeffrey Rosen, issued a memo arguing anyone threatening to spread Covid-19 could be prosecuted under federal anti-terrorism statutes, especially charges of perpetrating a biological weapons hoax.
New Jersey prosecutors also distinguished themselves by bringing the only known criminal case against a health worker in the pandemic for alleged Covid-19 transmission. Prosecutors in Camden county charged a home health aide, Josefina Brito-Fernandez, with the equivalent of four felonies for allegedly transmitting Covid-19 to an elderly patient who later died.
Her patient’s death and the case brought against her “destroyed” her life, she told the Guardian. Brito-Fernandez earned $11 an hour at the time she was charged, was threatened with deportation as a result of the case and has lost her license to practice.
“At the beginning of the pandemic, there’s a lot of uncertain information and the gut reaction in a lot of jurisdictions – not only in New Jersey, not only in US – is criminal law,” said Nina Sun, an assistant clinical professor and deputy director of global health at the Drexel University Dornsife School of Public Health.
Sun said many anti-terrorism threat statutes date from the 9/11 era, when anthrax-laced letters were sent to prominent politicians and journalists.
“That situation of bioterrorism is arguably quite different from what we’re seeing now with a naturally occurring infectious disease,” said Sun.
Prosecutors have apparently stopped bringing new second-degree terroristic threats charges. The last anti-terrorism charge related to the pandemic, according to the attorney general’s office, came in December 2020, when a Secaucus man arrested for drunk driving coughed on police and said he had coronavirus.
“We will not tolerate those who endanger the first responders working on the frontlines of this pandemic,” the acting attorney general of New Jersey, Andrew J Bruck, said in a statement to the Guardian.
“We are committed to safeguarding our law enforcement officers and other emergency workers, and we will hold accountable individuals who deliberately threatened to expose these heroes to a deadly virus,” he said.
Since then, at least some of the people who were charged pleaded guilty to lesser charges, served or are serving time in jail, or have entered prosecution deferment programs. But others said their lives have been “ruined” by the case against them. More said they believed the charges were unjust, but feared speaking out because of potential retaliation from police or prosecutors.
“People lives [sic] are being ruined because of these kind of charges with no proof of having Covid at all,” said Lewis, the woman arrested on warrants related to traffic tickets, via an email. “How can u [sic] assault someone who hasn’t gotten Covid?”