At the height of this pandemic, it is shocking that the US federal government has no legal right to enforce a national lockdown and mask-wearing warrant of the kind we’ve seen in Italy, Spain and France. The powers of the state police stand in the way, making governors and county leaders the real locus of authority for these measures.
We know that many states and counties have not imposed them. However, even in places where these ordinances are in effect, overall enforcement is far from optimal. The holiday season is still happening, the wearing of masks is not ubiquitous, social distancing is being ignored and law enforcement is nowhere to be found.
This seems inconsistent in a country where under normal circumstances police will fine you up to $ 500 for loud music disturbing neighbors on a weekend evening.
In other democracies, arrests for violating lockdowns and seriously endangering others are not aberrations. The vast majority of citizens accept them as legitimate and regard them as temporary – even draconian – measures of last resort to fight a health crisis of monumental proportions.
The potential for abuse – especially in weak democracies and dictatorships – that a central government charged with enforcing such sweeping orders represents should not be minimized. However, the idea that just because governments do this does not mean democratic institutions are doomed to die is not a logical conclusion to draw.
Spain, France and Italy do not sink into tyrannies devouring freedom. Neither Chile nor Argentina, developing countries that have put in place fairly strict and lasting lockdowns since the start of the COVID-19 crisis.
What is surprising about the situation in the United States is that the lax application of public health measures during this pandemic is incompatible with the comprehensive approach to crime in the country. When it comes to punishment, the United States is a fairly ruthless society: Legal penalties for misconduct are generally harsher than in other well-established democracies.
Despite intuitions about the great respect for individual liberty that Americans have, everyday social life seems to be more regulated than in other liberal societies. Take the example of the presence of the police in schools, which often results in minors leaving the school building handcuffed for offenses which, not long ago, were the subject of a reprimand or a suspension.
For non-Americans, this is truly amazing, but it is consistent with a pervasive culture of criminalization that is likely to disproportionately hurt minorities because they are seen as stereotypical more likely to act illegally and violently.
The American penal system and the political culture that underlies it is prison-centric and designed to punish petty crimes that don’t seem to justify it or at least not so harshly. Examples of acts that have elicited severe criminal backlash from the justice system and the police include public urination, disorderly conduct, consuming alcohol on the sidewalk (or on your own porch) and even playing a musical instrument in the subway.
There are also a large number of surveillance cameras widely deployed in public places, which are commonly used by the police to detect petty crimes and are often misused.
We know that central to this culture of hypercriminalization is the so-called “broken window” law enforcement policy, aided by mandatory minimum sentences for drug use and other low-stake crimes. The broken windows approach to policing favors mass arrests for petty offenses in an attempt to maintain order in communities, despite the fact that the poor and people of color are victims overwhelmingly. By this logic, keeping petty criminals off the streets is as important to good society as catching the big fish of organized crime and warding off murderers.
However, we see that the police do not crack down on violators of stay-at-home orders and mask-wearing warrants with the same greed as sidewalk drinkers and cannabis smokers. Are the police reluctant to disturb large groups of apparently non-threatening white middle-class citizens?
Why aren’t the authorities taking a stronger stand against those who don’t want to do their fair share of work to slow this pandemic? Is it the sacred respect for personal freedom that explains this under-application of important public health measures?
But if so, why doesn’t the same concern apply to those communities largely made up of minority and low-income citizens, who have been so negatively affected by the culture of criminalization that the police have contributed to solidify in recent years? Many of the offenses that bring members of these communities to their knees do not really threaten the public and could be better dealt with with fines or civil lawsuits.
In contrast, mere contempt for others in the midst of a pandemic is certainly dangerous. So why don’t the police punish offenders?
Beyond the pandemic, this not-so-clandestine bias against people of color when it comes to policing in America was abundantly evident in the events that unfolded on January 6 on Capitol Hill. A predominantly white group of pro-Trump rioters stormed the iconic building and violently disrupted the certification of Joe Biden’s presidential victory. Even though arrests have taken place, the double standard in response has not escaped many. It is no exaggeration to think that if they had been black protesters the police response would have been more forceful and bloody.
The revered value of individual freedom is not at risk when governments apply temporary protective measures in the midst of a serious public health crisis. Governments have the essential duty to protect the lives of all. Good governments must guarantee freedom and security for all impartially. These are valuable goals for all of us – not just those who live in good neighborhoods.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.