As the billions of people around the global under shelter in place orders are discovering, public health has significant power to restrict our liberty in times of crisis. But what are the origins of that power? And how has it been used and abused historically? This chapter from my book Punishing Disease traces the history of quarantine in public health practice, from the Bubonic plague to Typhoid Mary and beyond. As I show, public health powers to restrict our freedom and liberty can approach that of the criminal law. But the key difference between public health law and the criminal law is that quarantine is not supposed to be a form of punishment. Or is it? This chapter analyzes moments in history when public health has abused its power to target stigmatized minorities. From the selective quarantine of San Francisco’s Chinatown in the early 1900s, to the rounding up of commercial sex workers during World Wars I and II, when crisis hits, we often blame those we do not like. These examples of what I call “punitive disease control” blur the line between public health practice and punishment. With each new epidemic we face as a society, is critical that we do not repeat the errors of history. I hope that this chapter will help bring historical and critical perspective as we move to protect the public’s health.

The following is an excerpt from Chapter 1 of Punishing Disease: HIV and the Criminalization of Sickness. Chapter 1 in its entirety can be read here.

Quarantine and Coercion in Public Health History

On an otherwise ordinary winter afternoon in 1907, authorities arrived at a Park Avenue home in New York City to take the cook, Mary Mallon, into custody. Mallon was accused not of theft or murder but instead of unwittingly spreading typhoid to several members of the households in which she worked as a cook. Authorities had tracked Mallon down by following a trail of “breadcrumbs” left in her wake: a string of typhoid infections and deaths. Antibiotics did not yet exist, and nearly 10 percent of those infected with the disease died.

Authorities told Mallon that she could have her freedom if she allowed them to remove her gallbladder (where the disease was believed to be festering) or agreed to change her profession. Mallon refused, in large part because she did not believe that she was a carrier of the disease, and, as such, she argued that her detention was unjust. In 1910, Mallon finally relented and agreed to stop cooking and work instead as a laundress. However, after her release, she became frustrated with the lower wages of laundry workers. Adopting an alias to conceal her widely reported identity, she returned to cooking. In 1915, authorities detained her again after food she had prepared was found to be the source of another outbreak. She spent the next twenty-three years in isolation on North Brother Island at Riverside Hospital, which was largely used to quarantine tuberculosis patients. The facility was notoriously isolating and poorly managed. One historian describes the site in this way:

Five miles up the East River, approximately 1,500 feet east of 140th Street in the South Bronx and, on a bad day, downwind from the city’s garbage dump on Riker’s Island, was the city lazaretto, Riverside Hospital on North Brother Island. Even a century later, when one stands on the rocky shoals of the island, peering into the distance, the city seems remote and inaccessible. The sense of loneliness on North Brother Island is almost palpable. The site had been used as a small hospital for the poor afflicted with contagious diseases since the 1850s. . . . The facilities lacked space, financial resources, adequate medical equipment, and nursing personnel.

Mallon spent the remainder of her life on North Brother Island’s “rocky shoals,” where she died in 1938. Soon after her first quarantine, a 1908 issue of the Journal of the American Medical Association labeled her “typhoid Mary”—a moniker that would live on in notoriety long after her death.

Although Mallon’s case is perhaps the most widely reported quarantine in public health history, she was hardly the first person in history to be quarantined. The fact that the hospital she called home was located on an island is the relic of a much longer history that begins in medieval Europe during the fourteenth century. The bubonic plague—colloquially known as the Black Death—claimed the lives of millions. (It has been estimated that 75–200 million Europeans died of the plague between 1346 and 1353.) Scholars believe the epidemic began in central Asia and traveled along trading routes to Western Europe by way of Italian merchants. Sicily was wracked by one of the first known outbreaks in October 1347, followed quickly by Genoa and Venice in January Confronted with this rapidly spreading and poorly understood affliction, officials in the Italian city states forced ships from plague-infested countries to remain anchored for a period of time at island isolation stations known as lazarettos. Infected sailors were confined to hospitals on the island. Sailors and ships were originally confined for thirty days under a trentino policy; when it was extended to forty days, the policy became known as quarantino.

On land, infected people were isolated to their homes in cities across Europe. Authorities erected cordons sanitaires, blockades that sectioned off whole neighborhoods to prevent anyone from entering or leaving. Unfortunately, cordons sanitaires were rarely successful because the plague was not primarily spread by human-to-human contact. Instead, most scholars today agree that the disease was spread primarily through rodents infested with a species of flea that carried the bacteria Yersinia pestis in its gut; while blockades could restrict the movement of humans, they did little to prevent rodents from freely moving across cities. But this fact was not yet known so authorities continued to cordon off homes and entire neighborhoods.

When colonists left Europe for the New World, they brought these practices with them. Quarantine and isolation were widely used from the seventeenth through the nineteenth century as America faced epidemics of smallpox, yellow fever, cholera and typhus. Although the late-eighteenth-century sanitarian movement—which focused on providing clean water, sewage disposal, and hygienic housing—had a profound impact on infectious disease long before effective medical treatments or vaccines were developed, equally important were the more coercive practices of quarantine and isolation.

In the United States, two systems of quarantine gradually emerged. In ports, a system of maritime quarantine stations—eventually managed by the federal government—detained and inspected cargo, crew, and immigrants from countries with outbreaks of contagious diseases. In cities and towns, local outbreaks were managed by state and local health officials. In the wake of the Industrial Revolution, overcrowding, unsanitary living conditions, and urban poverty led to frequent outbreaks of infectious diseases. Local officials ordered the isolation and confinement of infected individuals and suspected carriers to “pesthouses,” hospital wards, or their homes. Nineteenth-century public health officials adopted other methods that were only slightly less coercive: compulsory vaccination, imposing fines or confinement of those who refused, mandatory reporting of infected patients by physicians to disease registries, contact tracing, and other surveillance techniques.

Better nutrition, improved sanitation, and the advent of vaccines and modern medicine began to turn the tide against many widespread infectious diseases in the twentieth century. In the wake of these shifts in mortality and morbidity, many public health experts came to view coercive strategies for containing epidemics as old-fashioned or even regressive. Medical historian Eugenia Tognotti describes the perspective at the turn of the century:

In 1911, the eleventh edition of Encyclopedia Britannica emphasized that “the old sanitary preventive system of detention of ships and men” was “a thing of the past.” At the time, the battle against infectious diseases seemed about to be won, and the old health practices would only be remembered as an archaic scientific fallacy. No one expected that within a few years, nations would again be forced to implement emergency measures in response to a tremendous health challenge.

That challenge came in the form of the devastating influenza epidemics that traveled around the world in 1918, claiming the lives of between 20 and 40 million people. In the face of such a rapidly spreading and deadly disease, local municipalities closed churches, schools, and movie theaters and prohibited attendance at funerals and other public gatherings

New York City health authorities tried to control the rapidly spreading influenza outbreak while allowing for a certain amount of freedom of movement. Instead of shutting down businesses altogether, the city’s health commissioner, Dr. Royal S. Copeland, implemented staggered business hours in an attempt to limit congestion in public places. “Offices opened at 8:40 a.m. and closed at 4:30 p.m., while wholesalers started their days earlier, and nontextile manufacturers moved their start time to 9:30.” The effectiveness of these policies is not known, but historical analyses suggest the death rate may have been slightly mitigated in the Big Apple as compared to its neighbors, Boston and Philadelphia, which did not implement similar policies.

Confinement and isolation continued through the first half of the twentieth century, used occasionally during outbreaks of scarlet fever and polio and more frequently for tuberculosis. Until antibiotic treatments for tuberculosis were developed in the 1940s, confinement in a sanatorium for three to six months was the standard treatment for tuberculosis. Even with the development of antibiotics, however, coercive practices for containing tuberculosis did not end. Tuberculosis patients who refused treatment were handled especially aggressively. In 1949, for example, Seattle’s Firland Sanatorium established a locked ward intended for the treatment of only the most noncompliant and “recalcitrant” of tuberculosis patients, who were deemed a threat to public health. In practice, however, the facility was used much more widely and ultimately housed over a thousand patients. The vast majority of patients quarantined at Firland were poor alcoholics living in one destitute neighborhood, Seattle’s Skid Road, who were detained even if they were noncontagious or adhering to treatment protocols. Medical historian Barron Lerner describes the facility in stark terms:

Known as Ward 6 and located in the old naval brig, the unit was equipped with both locked doors and heavily screened windows. All patients admitted to Ward 6 (most of whom were intoxicated) spent the first 24 hours in one of seven locked cells, which contained only concrete slabs covered by thin mattresses.

Historical examples like Firland reveal how well-intentioned disease control strategies can turn punitive when disproportionately applied to specific marginalized groups. The facility—described as a “model” for others around the country—persisted and even expanded for over a decade despite accusations that the facility had effectively institutionalized quarantine as a form of punishment without due process for poor alcoholics.

Sexually transmitted infections (STIs) were also the target for a wide array of coercive policies aimed at controlling infectious diseases in United States history. During World War I, states implemented policies in response to public anxiety over “venereal diseases,” such as mandatory screening to obtain a marriage license and screening of newborns. However, just as Seattle’s tuberculosis program targeted poor alcoholics, America’s venereal disease response during World War I reserved the most invasive and punitive policies for commercial sex workers. Authorities believed prostitutes were carriers and repositories for STIs. By March 1918, over thirty-two states had passed laws requiring that individuals arrested for prostitution be screened for STIs. Just as in Seattle, this frequently involved medical detention that was not subject to the normal legal safeguards of the criminal justice system. Medical historian Allan Brandt offers a telling example:

In San Francisco, the Department of Health provided arrested women with circulars explaining, “You are in quarantine and cannot be released on bail. . . . If you are found ill with venereal disease you will go to the hospital and stay there until found negative. . . . No lawyer or other person can obtain your release.”

That their detention was done in the name of public health rather than in the name of punishment perversely allowed the state to more severely restrict the liberty of commercial sex workers. Despite the public health label attached to their detention, however, the fact that women engaged in a criminal offense, prostitution, were singled out for detention by the state suggests a punitive motive.

On the other side of the country, the Virginia State Board of Health provided its officers with the authority to detain anyone “reasonably suspected” of carrying an STI, which included “vagrants, prostitutes, keepers, inmates, and frequenters of houses of ill fame, prostitution and assignation, persons not of good fame, persons guilty of fornication, adultery, and lewd and lascivious conduct.” Despite such broadly construed categories, however, no efforts were made during the time to quarantine men for STIs; these policies were systematically enforced against women.

STIs again became the subject of coercive and punitive policies during World War II. For example, a 1945 Baltimore ordinance gave public health officials the power to isolate patients with syphilis or gonorrhea who refused penicillin treatment. But just as before, the most aggressive tactics were reserved for female sex workers. The Army appointed former Prohibition champion Eliot Ness (whose efforts to take down Al Capone were fictionalized most recently in the HBO series Boardwalk Empire) to lead a campaign against prostitution. Sex workers were once again detained in large numbers, subjected to mandatory STI screening, and placed under quarantine until treated. During this time, estimates suggest that over seven hundred cities and towns closed down their redlight districts. With so many women arrested for sex work, many jails became overcrowded. Ness attempted to ease the strain on local corrections facilities by setting up nearly thirty “civilian conservation camps” to house detained prostitutes. These facilities offered more than just medical testing and treatment. Public health scholar Troy Thompson describes one Florida woman who ended up in such a camp in 1944:

In light of the 1943 Florida laws on prostitution, the police apprehended Jean and gave her an invasive vaginal examination. The court then convicted her and sent her to one of Florida’s newly converted civilian conservation camps. Jean spent the next five weeks there receiving treatment, job training, and lessons in socially sanctioned morality.

Despite detaining thousands of prostitutes, the Army’s efforts failed to eliminate new STI infections among troops. Officials lamentingly changed their tune, blaming not prostitutes but “amateur girls—teenagers and older women—popularly known as ‘khaki-wackies,’ ‘victory girls,’ and ‘good-time Charlottes.’ ”

Estimates suggest that more than thirty thousand prostitutes were detained between World War I and World War II. These strident efforts reflect a pattern noted by historians: from their inception in the Middle Ages, campaigns to control the spread of infectious disease through coercion have frequently targeted particular groups: disfavored immigrant groups, the poor, the “deviant,” and the “disenfranchised.” Typhoid Mary is a telling example not just for her brazen resistance to public health quarantine but also because she was a poor immigrant woman working in service for wealthier families—a woman in a precarious social position, a woman without the resources to contest her detention. Mary Mallon became historical legend not just for her actions, but also because of her denigrated social standing. Other typhoid carriers living at the same time are all but forgotten—carriers such as Frederick Moersch, a German-born immigrant working as a confectioner, who infected more people with typhoid fever than Mallon. Moersch, like Mallon, was confined on North Brother Island in 1915 but, as a father and “skilled workman,” was viewed far more favorably by the staff ; after a brief detention, he was allowed to live at home, where the state even arranged for his rent to be paid. Despite the similarities in their cases, Moersch was treated far more leniently, and his case is all but unknown to history.

This disparity is not unique to American public health history: public health measures have been enforced in deeply discriminatory ways for centuries, with the harshest, most coercive measures reserved for the most marginalized communities and people. It is in these historical moments that coercion becomes punitive. It would be impossible to review every example of this trend. Instead, figure 1 illustrates key examples of coercion and discrimination in public health history. In each case listed in figure 1, coercive measures intended to combat disease were aimed at marginalized groups. In fact, labeling a person or a community a threat to public health casts the sick as hostile aggressors rather than sympathetic victims. During epidemics, fear and stigma of contagion have heightened the social exclusion of already-stigmatized groups. Viewed in this light, quarantine comes dangerously close to being a metaphor for the need of elites to protect themselves from the “dangerous” classes.

The policies that this chapter describes did not go uncontested. Coercive measures, such as compulsory vaccination programs, mandatory treatment, quarantine, and isolation, often provoked popular resistance and were the subject of many legal challenges. However, these challenges rarely proved successful. Presented with a choice between promoting the freedom of the sick and protecting the health of the masses, U.S. courts have typically deferred to public health authorities and affirmed their prerogative to use coercive measures to control epidemics.

Perhaps the most important such decision came over a century ago with the Supreme Court’s ruling in Jacobson v. Massachusetts. The case was brought by a Swedish immigrant to the United States, Henning Jacobson, who objected to an order from the Cambridge, Massachusetts, city council requiring that all adults be vaccinated for smallpox. The penalty for not complying was set by the state at $5 (about $100 today), and there was no set procedure for actually forcing anyone to be vaccinated. Jacobson was already familiar with state vaccination programs, which were in place in his home country of Sweden, but he objected to Cambridge’s program on the grounds that he and his son had experienced adverse reactions to previous inoculations. The court ruled 7–2 against Jacobson, ruling that the state had the power to impose punishment (either a fine or imprisonment) for failing to comply, but that it could not force anyone to be vaccinated.

The sweeping power of public health authorities to quarantine and isolate sick people against their will falls within the civil law, but it rivals the power of the criminal justice system to infringe on individual liberties. Moreover, “until relatively recently,” notes medical ethics expert Ronald Bayer, “the protections accorded to defendants in criminal prosecutions have not been extended to those viewed as a threat to the public health.” This changed during the 1970s when courts began to reconsider due process claims from mental patients who were facing civil commitment against their wishes. After a federal district court struck down Wisconsin’s commitment law in Lessard v. Smith (1972), other courts began to rule that patients were entitled to the due process protections of the Fourteenth Amendment: the rights to notice, to a fair hearing, to be represented by counsel, to cross-examine witnesses, and to hold the state to a clear and convincing standard of proof. One of the most important doctrines to come out of these decisions was the least restrictive alternative doctrine, which holds that patients have the right to be treated in the least restrictive setting that meets their needs.