Academic journal article Brigham Young University Law Review

Criminalizing Non-Evacuation Behavior: Unintended Consequences and Undesirable Results

Academic journal article Brigham Young University Law Review

Criminalizing Non-Evacuation Behavior: Unintended Consequences and Undesirable Results

Article excerpt


Contrary to the maxim that natural disasters function as a great equalizer, Hurricane Katrina has reminded us that "natural disasters occur in the same social, historical, and political environment in which disparities . . . already exist."1 The inequalities already present in Hurricane Katrina's path were given a fiercer breath of life, disproportionately exacerbating the already dire circumstances of New Orleans' most vulnerable populations.

One such disparity became apparent when government officials began ordering mandatory evacuations. After experiencing Hurricane Georges in 1998 and Hurricane Ivan in 2004, emergency planners responsible for evacuating New Orleans were already aware of many of the risks facing vulnerable populations.2 For example, the "city already knew that at least '100,000 New Orleans Citizens [did] not have means of personal transportation' to evacuate in case of a major storm."3 Notwithstanding this knowledge, the city's emergency plan had no solution for the evacuation problem and instead "called for thousands of the city's most vulnerable population to be left behind."4 In fact, "little attention was paid [during disaster planning meetings predating Katrina] to moving out New Orleans' 'low-mobility' population-the elderly, the infirm and the poor without cars or other means of fleeing the city."5

A 2005 post-Katrina survey confirmed these inadequacies, finding that, among respondents, forty-two percent of those who did not evacuate had no way to leave.6 Others reported that although they could have left, other circumstances, such as vulnerable loved ones, convinced them to stay behind.7 Despite these realities, many citizens and government officials blamed the victims for their misfortunes. One study found that the public characterized non-evacuators as "passive (e.g., lazy, dependent), irresponsible (e.g., careless, negligent), and inflexible (e.g., stubborn, uncompromising)."8 These results come as no surprise in light of the government's rhetoric concerning non-evacuation following the disaster. Michael Brown, the Federal Emergency Agency Director at the time, attributed the rising death toll in New Orleans to "people who . . . chose not to leave."9 He explained, "[W]e've got to figure out some way to convince people that whenever warnings go out it's for their own good."10 Michael Chertoff, Secretary of Homeland Security, remarked, "[L]ocal and state officials called for a mandatory evacuation. Some people chose not to obey that order. That was a mistake on their part."11

The public's perception of non-evacuators, combined with comments from government officials,12 reflects the policy judgments many state legislatures have made and are beginning to make. Rick Santorum's remark13 during a television interview is representative of the direction that many states have taken: "[Y]ou have people who don't heed those warnings and then put people at risk as a result of not heeding those warnings. There may be a need to look at tougher penalties on those who decide to ride it out and understand that there are consequences to not leaving."14 In the spirit of "tougher penalties," several states have passed statutes that criminalize non-evacuation, thereby subjecting violators of evacuation orders to potential incarceration and financial penalties. In light of the vulnerabilities common among non-evacuators, these criminalization and sanctioning policies are impractical and unjust, regardless of whether they are enforced. Further, many such statutes reflect an erroneous judgment that non-evacuators are blameworthy for their failure to comply.

Part I of this Comment will examine the developing body of law aimed at curing the non-evacuation problem. In particular, this Part will address two criminal frameworks that state legislatures have employed to penalize non-evacuation: the traditional framework and the public welfare offense doctrine. Part II will look at specific state laws in an effort to categorize them within the traditional or public welfare offense framework. …

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