At the apex of this pandemic, it is shocking that the US federal government has no legal right to enforce a nationwide lockdown and a mask-wearing mandate of the sort that we have seen in Italy, Spain, and France. State police powers stand in the way, making governors and county leaders the proper locus of authority for these measures.
We know that many states and counties have not imposed them. However, even in those places where these orders are in effect, general enforcement is less than optimal. Holiday parties still happen, mask-wearing is not pervasive, social distancing is ignored, and law enforcement is nowhere to be found.
In other democracies, arrests for violating lockdowns and seriously endangering others are not aberrations. The vast majority of citizens accept them as legitimate and see them as temporary – even if draconian – measures of last resort to fight a healthcare crisis of monumental proportions.
One should not minimise the potential for abuse – especially in weak democracies and dictatorships – that a central government charged with enforcing these far-reaching orders represents. However, the idea that just because governments do this, democratic institutions are bound to die is not a logical conclusion one can draw.
Spain, France, and Italy are not devolving into liberty-devouring tyrannies. Neither are Chile or Argentina, developing nations that have established quite strict and long-lasting lockdowns since the COVID-19 crisis began.
What is surprising about the situation in the US is that the laxity of enforcement regarding public health measures during this pandemic is inconsistent with the overall approach to crime in the country. When it comes to punishment, the US is quite an unforgiving society: legal sanctions for misconduct are generally harsher than in other well-established democracies.
Despite intuitions about the great respect for individual freedom that Americans supposedly hold, every day, social life seems to be more regulated than in other liberal societies. Take police presence in schools, which many times results in minors leaving the school building handcuffed for offences that not long ago were treated with a reprimand or a suspension.
To non-Americans, this is truly unbelievable, but it is consistent with a pervasive culture of criminalisation that is prone to hurt minorities disproportionately more because they are seen as stereotypically more likely to act illegally and violently.
The American criminal system and the political culture undergirding it are jail-centred and designed to dispense punishment for minor offences that do not seem to warrant it or at least not so harshly. Examples of acts that are met with severe penal responses by the justice system and by the police include public urination, disorderly conduct, drinking on the sidewalk (or your own porch), and even playing a musical instrument in the subway.
There is also a huge number of surveillance cameras extensively deployed in public places, which are routinely used by police to detect petty crimes and are often misused.
We know that at the centre of this hyper-criminalisation culture is the so-called “broken windows” law enforcement policy, aided by mandatory minimum sentencing for drug use and other low stakes crimes. The broken windows approach to policing promotes mass arrests for minor offences with an eye on keeping communities orderly, despite overwhelmingly victimising the poor and people of colour. According to this logic, keeping petty offenders off the streets is as instrumental to a good society as catching the big fish of organised crime and keeping murderers away.
However, we see that the police do not crack down on violators of stay-at-home orders and mask-wearing mandates with the same avidity as they do on sidewalk drinkers and cannabis smokers. Are the police unwilling to inconvenience large arrays of the middle class, seemingly non-threatening, white citizens?
Why are the authorities not taking a tougher stand on those unwilling to do their fair share of work to slow down this pandemic? Is it sacred respect for personal liberty that explains this underenforcing of important public health measures?
But if it is, why is the same concern not applied to those communities largely composed of minority and low-income citizens, who have been so adversely affected by the criminalisation culture that the police have helped solidify in the last years? Many of the offences that bring members of these communities to their knees do not truly threaten the public and could be better addressed with fines or civil proceedings.
By contrast, plain disregard for others amid a pandemic is surely dangerous. So why are the police not punishing the violators?
Beyond the pandemic, this not-so-surreptitious bias against people of colour when it comes to policing in America was abundantly evident in the events that transpired on January 6 on Capitol Hill. An overwhelmingly white group of pro-Trump rioters stormed the emblematic building and violently disrupted the certification of Joe Biden’s victory in the presidential election. Even though arrests have ensued, the double standard in response did not escape many. It is not far-fetched to think that, if they had been Black protesters, the police reaction would have been more forceful and bloody.
The revered value of individual freedom is not in danger when governments enforce temporary protective measures in the middle of a serious public health crisis. Governments have an essential duty to safeguard all people’s lives. Good governments should secure freedom and safety for everyone impartially. These are valuable goals for all of us – not just those that happen to live in the right neighbourhoods.