CHLP's Anne Kelsey spoke to The Guardian about a case in New Jersey of Josefina Brito-Fernandez, a home health worker charged with inadvertently exposing an elderly patient to Covid-19. The charges against her are exceedingly harsh, especially when compared with the relative slap on the wrist given to a white gym owner who repeatedly and publicly subverted public health mandates. Brito-Fernandez faced five charges and had to give up her home health aid license to avoid prosecution.
“'The criminalization of disease and disease transmission hurts marginalized people. Period,' said Kelsey. The same history has repeated through tuberculosis, typhoid and HIV, she said, as sexual and racial minorities and the poor have been disproportionately prosecuted for public health problems."
Read the full article below or at The Guardian.
Attempt to hold a worker criminally liable for the spread of Covid resulted in Josefina Brito-Fernandez losing her license to work, fearing deportation
by Jessica Glenza
Friday, June 4, 2021
Prosecutors in Camden, New Jersey, charged a home health aide accused of inadvertently exposing an elderly patient to Covid-19 early in the pandemic in what appears to be the only case of its kind. The patient, an 80-year-old woman, died of the illness in May last year.
The attempt to hold an essential worker criminally liable for the spread of Covid-19 resulted in the worker, 51-year-old Josefina Brito-Fernandez, permanently losing her license to work and entering a probation program for fear she would be deported.
Brito-Fernandez, through tears, said she was “destroyed” by the charges.
“I have a family here,” she said through a Spanish interpreter. “Five children, and small children who need me.” Her youngest are seven and eight years old. “All my children were suffering watching me cry at night.”
Over the year prosecutors pursued charges against Brito-Fernandez, she said she “saw everything gray” and suffered in a way she would wish on no one. “It was the strength of God that carried me forward,” Brito-Fernandez said.
Brito-Fernandez is a legal permanent resident from the Dominican Republic whose children and husband live in New Jersey. Even a minor conviction would have resulted in the loss of her legal immigration status. Brito-Fernandez was charged with the equivalent of a five felonies.
“I do believe it was outrageous that she was charged in the first place, and equally outrageous that she had to give up her home health license permanently to get this resolved,” said her attorney, Teri Lodge.
“I would have loved to have tried this case, and I think she would have prevailed. But juries are unpredictable and the risk of deportation was too great,” said Lodge.
Experts said Brito-Fernandez’s case is a “unique” and “disturbing” example of the US criminalizing disease transmission among vulnerable members of society.
“It’s really impossible to know who transmitted a disease as infectious as Covid, and of course there’s so much asymptomatic transmission out there,” said Dr Christopher Beyrer, a professor of epidemiology at Johns Hopkins University whose work has focused, in part, on how HIV has been criminalized. “The idea you would let a court and a jury try to figure it out is really disturbing.”
Covid-19 has sickened more than 33 million people and killed more than 590,000 in the US.
“It’s really emotional for her to even think about these things,” said her son, 26-year-old Jose Fernandez. “It was a nightmare,” considering she might “go to jail or think she might have to leave her children behind”.
Meanwhile, around the same time as Brito-Fernandez’s initial charges and just 10 minutes away, a nearby New Jersey gym was becoming a conservative cause célèbre by advertising its intention to subvert public health guidance.
In one instance just days after Brito-Fernandez was charged, co-owners of the Atilis Gym encouraged a protest outside their gym, which was broadcast live on the Fox News show Fox & Friends. The show’s presenter, Pete Hegseth, was unmasked, as were most participants.
When local police arrived, they told protesters they were in “violation” of state executive orders. Then, they said, “have a good day” and walked away. A video of the incident promoted by Atilis shows the crowd erupting in cheers.
Later, gym owners received the equivalent of a misdemeanor ticket for disorderly conduct. The next day, Atilis owners again reopened, and again saw protests. This time police gave the co-owners tickets that could lead to a $1,000 fine.
The incidents would precede months of refusal to follow public health guidelines and an accompanying legal battle with the state, which is trying to collect more than $100,000 in fines. Most recently, the gym’s co-owner has advocated against vaccines, offering free memberships to people who refuse a shot. The Atilis Gym has appeared on Fox News at least 29 times during the pandemic.
“Hers is a unique case in that it’s a healthcare worker, but we’ve seen social distancing rules being enforced against groups of young black men hanging out,” said Anne Kelsey, a staff attorney at the Center for HIV Law and Policy.
Prosecutors pursued the case against Brito-Ferandez until spring 2021, even as the Centers for Disease Control and Prevention (CDC) said some health workers may need to return to work while still positive for Covid-19 to mitigate staffing shortages.
Pursuit of the case also continued as then Donald Trump disregarded public health advice, and held campaign rallies which became “super-spreader” events. In one Trump event in the White House Rose Garden, attendees were seated so close together that even outdoor seating did not prevent several from becoming infected with Covid-19.
“The criminalization of disease and disease transmission hurts marginalized people. Period,” said Kelsey. The same history has repeated through tuberculosis, typhoid and HIV, she said, as sexual and racial minorities and the poor have been disproportionately prosecuted for public health problems.
“Unfortunately, this is in some ways a paradigmatic example of why punitive and legal approaches to public health problems almost invariably end up causing new problems, and not addressing any of the public health imperatives,” said Beyrer.
New Jersey prosecutors charged Brito-Fernandez on five counts in May last year. The charges stem from a month earlier, when Brito-Fernandez was caring for an elderly, bed-ridden 80-year-old Camden woman and two developmentally disabled siblings. Two more adults also lived in the household.
Brito-Fernandez bathed, fed, cooked and cleaned for the family. For these services, she earned $11 an hour from a staffing agency.
In mid-April, when New Jersey’s lockdown was so strict Brito-Fernandez had to carry a dispensation to travel as an essential worker, she sought care for what she assumed was a urinary tract infection.
She got a Covid test to be safe. No one at the testing center spoke Spanish, although she was given a fact sheet in Spanish, which she did not read. Brito-Fernandez speaks no English.
While she was caring for her patients the next day, Brito-Fernandez got a phone call telling her she could be positive for Covid. She ran from the house so quickly she forgot her purse. She never returned. Two days later, she would get test results confirming she had Covid.
About a month later, police questioned Brito-Fernandez at her home. The 80-year-old woman had died. Police said in an early report they were notified by the woman’s sister. Brito-Fernandez was charged the day after police questioned her.
In part, prosecutors hung the case against Brito-Fernandez on the fact she was not wearing a mask in her patient’s home, although she wore one while she traveled there.
Problematically, the scientific understanding of the importance of mask use was rapidly evolving at that time, as was government guidance. Often, this guidance was muddied by the highest office-holder – the president.
“The CDC is advising the use of non-medical cloth face covering as an additional voluntary public health measure,” Trump told reporters on 3 April, two weeks before Brito-Fernandez got a phone call letting her know she had tested positive. “This is voluntary. I don’t think I’m going to be doing it.”
Brito-Fernandez’s attorney said prosecutors never tested the genetic strain of Covid-19 that allegedly was transmitted, and that a second home health aide who worked in the home also did not wear a mask indoors.
A brief filed on Brito-Fernandez’s behalf said the family of the victim did not want her prosecuted.
Local prosecutors only recently approved Brito-Fernandez for pre-trial intervention, a program which avoids conviction but requires fees. Her admission to the probationary program was conditional on permanently giving up her license to be a home health aide.
However, because of a press release issued by the state prosecutors, it is unlikely she would have ever been able to work in healthcare again. The announcement of Brito-Fernandez’s charges was covered by national media, including NPR and Fox News.
Brito-Fernandez will join more than 155,700 people in New Jersey and 4.5 million people nationally in supervised release programs, according to a recent estimate by the Pew Charitable Trusts.
“A case could be resolved, sure, but once you have any contact with the criminal justice system it so easily multiplies,” said Kelsey. “One slip-up becomes another, and there could be really long-lasting repercussions.” Those potential complications could be “in addition to her own stress and trauma, because she’ll carry that with her too”.
The case also has potential to dissuade people who know Brito-Fernandez from getting tested, because had she never received the call, she probably would not have been criminally charged.
“You can go all the way to ‘Typhoid Mary’, an Irish immigrant woman who was detained for many years on the basis of being a spreader of typhoid,” said Beyrer.
Laws used to criminalize disease transmission, Beyrer said, “so often, as so many things in our criminal justice system are, ends up really, really persecuting the poor and people of color, and those most vulnerable at the margins”.
The Camden county prosecutors declined to comment on the case.