Category Archives: Current Events

Some Further Thoughts on Masks

Andrew J. Cohen argues that we are morally obligated to wear masks (technically, face- coverings) when we are in an enclosed indoor space with others, because doing so reduces the chances that we will harm others by transmitting Covid-19. See here. (In cases where a mask causes the wearer to be harmed, he or she is released from the obligation because that person has a duty not to harm him or herself.) He does not endorse a legal requirement to require masks indoors, because “a legal requirement should only be instituted if we have clear evidence that significant harm is likely to otherwise be imposed on non-consenting others” and Andrew doesn’t think there is that kind of evidence. This is because the harm is somewhat limited, and the others are likely consenting since they went to the places indoors voluntarily. In cases where the harm is likely to be high and the persons present indoors cannot easily leave—nursing homes, assisted living facilities, etc.—masks should be legally required, on his view. And, of course, businesses are free to require mask wearing, and customers should follow their decisions.

I don’t think Andrew’s reasoning that there shouldn’t be a legal requirement to wear masks indoors succeeds. The degree of harm to which one is subjected to indoors by those that don’t wear masks varies with circumstances such as age, the state of one’s immune system, the degree of exposure, how close the non-mask wearers are, the prevalence of the virus in your area, etc. Under some circumstances, the harm could be quite severe; under other conditions, minor (I will return to the point about the variability of harm below). Moreover, the voluntary assumption of risk claim doesn’t apply to nonconsenting third parties. E.g., suppose person A assumes the risk of getting ill by going into a store, gets the virus in the store from person B but A doesn’t know this, and later makes person C sick outside of the store. The voluntary assumption of risk has no application to C.

I think there are better grounds for opposing legal mandates of indoor mask wearing.

One size-fits-all versus local knowledge and variation

A non-mask wearing healthy 20-year old in a business full of other healthy 20-year-olds in a rural area where the virus has not produced any significant serious illness is likely not imposing significant risks of harm on others.[1] A not-so-healthy non-mask wearing person in a crowded urban environment with other not-too-healthy people could very well be imposing significant risks on others. A legal requirement to wear masks is going to be quite insensitive to these kinds of individual and local conditions as well as to individual’s knowledge of these conditions. This holds even if the requirements are state by state rather than federal, given variability within states. Hence a requirement to force mask wearing will violate individual rights in cases when not doing so is morally innocent. One might argue in response that rights violations are going to be worse if we don’t have a legal requirement to wear masks (assuming those who get sick from others negligently failing to wear masks in enclosed areas have their rights violated). However, there is the alternative of using moral persuasion, business prudence, and social pressure to maintain a norm of mask wearing when the risks of harming others are high–which leads me to my second point.

The Costs of Enforcement

Legislation or mandates require enforcement. If a mask mandate has criminal penalties or is enforced by the police this runs the serious risk that it will be enforced unfairly or perhaps brutally. In New York City summons and arrests for violating social distancing rules were given overwhelmingly to African American and Latinos. and there were a couple of very ugly incidents. See this and this.

Admittedly, it is possible that the summons and arrest statistics merely reflect the pattern of those who violated the rules, but given the history of New York City police (recall the now abandoned Stop and Frisk program) skepticism is warranted.

Coercive enforcement is lessened if it is assigned to the Health Department or something similar and applied to businesses (fines for failing to require masks) rather than individuals. However, unfair enforcement is still likely given limited resources of these departments.

Philosophy professors (even those who are retired professors, like me) are fond of imagining that someone asks what appears to be stupid or silly questions, so here goes: what’s wrong with unfair and coercive legal enforcement? After all, won’t the alternative of moral pressure, business prudence, and social pressure also be unfair to some—namely those who are pressured to wear masks but are not imposing serious risks upon others or who get ill because some who should have worn masks won’t? Andrew’s last line of his post provides the right response: “we have too many” laws. And that is a polite understatement. We are drowning in a sea of overcriminalization. Jason Brennan and Chris Surprenant in Injustice for All: How Broken Financial Incentives Corrupted and Can Fix the Criminal Justice System estimate that something like 90% of Americans are criminals in that at some point in their life have committed a felony! Even if that figure is somewhat high, it’s astonishing. No one even knows just how many criminal laws there are. I don’t know of studies that estimate how many civil laws there are, but it’s likely also to be astonishingly high. The bottom line is that whatever problems exist in commercial and civil society regarding enforcement of norms regarding mask wearing, better that we deal with those problems rather than adding another task to our already overburdened, coercive, and unfair system.  This is especially so during this difficult time when there is there is resentment and protest over shutdowns, and police brutality and racism.

Thanks to Tom W. Bell, Andrew J. Cohen, Mark LeBar, and Ilya Somin for helping me think through these issue. Thanks to Jason Brennan for directing me to studies on the way social distancing rules were enforced in NY.

[1] Though it may matter what kind of business. A bar, for example, is a far riskier environment than other retail establishments.

Proportional policing and criminal patrol

One of the (many) moral problems of policing in the US is that law enforcement strategies often fail a proportionality requirement. The principle of proportionality is often invoked in discussions of the morality of the use of force, whether it is force used to achieve military or police goals, or for individual self-defense. It is impermissible to use force that causes significantly more harm than the benefit caused by achieving one’s goal. Police are not permitted to shoot fleeing robbery suspects, for example. Proportionality also informs distributional concerns. Justice requires not just that we minimize errors in criminal trials, but that we achieve a particular distribution of errors. We tend to accept an increase in false findings of innocence as a cost of reducing false findings of guilt. A legal system that imposes costs on the innocent too frequently in the course of punishing the guilty will be disproportionate because the harm required to punish the guilty would be too great. Here I’ll argue that proportionality constrains not just use of force policies, but also the selection of strategies for enforcing law.

I’ve argued elsewhere that a proportionality principle constrains the tactics police officers are permitted to use when responding to protests and demonstrations. But there are some police strategies that fail a proportionality requirement even if officers rarely resort to physical force. Most strategies that rely on “filtering” are unlikely to meet the requirement.

Consider the stop and frisk strategy employed by the NYPD during the 2000s and early 2010s. This practice became intensely controversial because a majority of the New Yorkers stopped, questioned, and frisked where Black or Hispanic. At the time, Mayor Bloomberg insisted that officers stopped people based on their behavior, not their appearance. At the peak of stop and frisk, the NYPD averaged around 1200 stops per day which resulted in around 70 arrests, and only 2 on illegal gun possession charges. In other words, with a success rate of around 6 percent, the NYPD did not appear to have a great sense of which behaviors indicated criminal activity. Even putting aside the threat of force required in each stop, police stops are not trivial incursions into a person’s life. Around 94 percent of the people the NYPD stopped in a day who had to bear those costs were innocent. This means that the strategy, even granting that it reduced crime and successfully enforced legitimate laws (both of which are controversial), has a significant number of false “findings of guilt.” Given the huge number of innocent people stopped as part of the strategy, it is not proportional.

Similarly, consider the use of traffic stops for criminal law enforcement. The LAPD, like most police departments, uses traffic stops to find illegal guns and drugs. Even if this is a common way for officers to make arrests and remove illegal guns from the streets, it is unlikely that one can make accurate judgements about who is breaking the law simply by looking at the exterior of one’s vehicle. This leads to officers pulling motorists over for violating traffic laws just to examine the driver and the inside of the vehicle. There are serious concerns about racist police activity in this context too. Black drivers are less likely to be pulled over at night when the driver’s race is “masked.” Even if there weren’t concerns about racist enforcement, however, the concern about proportionality remains. The ultimate reason for the traffic stop is to investigate criminal activity, but most of the people stopped are innocent. Filtering strategies that rely on stopping large numbers of people, most of whom are innocent, to find a small number of guilty people, fail a proportionality requirement.

Evaluating these strategies in terms of proportionality is useful because it lets us avoid arguing about the presumption of innocence. You might think that these strategies undermine the presumption of innocence (I do), but that objection is less useful against strategies that rely on pretextual stops. Traffic laws, or anti-loitering laws, are tools for enabling more invasive police interactions. The goal is rarely to enforce the law that an officer witnesses one violating, but rather to look for criminal activity.

If this is right, then proportionality is also a tool for evaluating law enforcement strategies. This is useful because determining the just administration of law is separate from the question of which laws are just. Though the former has gotten less attention, it is still important. This kind of argument about proportionality plays a role in some of the work on policing I’m doing now.

Wearing Masks

Given the big issues we face today—COVID-19 and BLM as well as reactions to both—I thought I’d make my first post about a COVID-19 issue: masks (really: face-coverings). I’ve seen and heard a lot of discussion about wearing masks. Some condemn anyone unwilling to wear one; others condemn anyone wearing one. Each group seems to consider the other sheeple. And both seem often to confuse beliefs in moral requirements with beliefs about legal requirements.

Here’s my view: most of us should—that is, I think most of us are morally required to—wear a mask anytime we go into an enclosed space with others. The reason is simple and straightforward: wearing a mask is likely the best way to reduce the spread of COVID-19. (See this Nature article.) Why does this matter? On my view, simply because we have a moral duty to try to not harm others and spreading COVID-19 is a way of harming others.

Many who oppose mask-wearing (and mask-wearers) claim to suffer when they don a mask, indicating difficulty breathing. That sort of claim is best saved for the protests against police officers actually preventing someone from breathing. Face coverings don’t significantly reduce your oxygen intake. (See this amusing piece.) If they did, surgeons wouldn’t be able to wear masks for hours as they do. Still, if you have a genuine medical condition that makes wearing a mask burdensome, the duty to protect yourself by not wearing one likely outweighs the duty to others. I’m not sure what sorts of medical conditions do this, but there certainly may be some (and no one should have to prove they have such a condition). Unfortunately, the sort of racism that might result in real risks to your life if you are African-American and that could be compounded by wearing a mask, gives the same good reason not to. Simple discomfort does not. People wear seatbelts in cars and planes even with whatever discomfort they cause—without complaint—for good reason.

To be clear, I don’t advocate wearing masks outside unless you are in a crowd. The odds of outdoor transmission when you are alone or with your regular intimates is low. (See this Forbes piece.)

Importantly, nothing I said thus far indicates endorsement of a legal requirement. On my view, a legal requirement should only be instituted if we have clear evidence that significant harm is likely to otherwise be imposed on non-consenting others. This is so in large part because a legal requirement involves state power and the force it brings—which should only be used sparingly. Whereas some harm is likely caused if you don’t wear a mask indoors when others are present for more than a short time, the harm is somewhat limited and, on the assumption that others are there voluntarily, not imposed on non-consenting others. However, because the results are extreme for the elderly and those with certain pre-existing conditions, it seems reasonable to legally require masks for anyone entering hospitals, assisted living facilities, etc (where, moreover, the residents can not easily leave). That something isn’t legally required and oughtn’t be legally required does not mean you oughtn’t do it. Apologies for broken promises, e.g, aren’t legally mandated, but are nonetheless morally required or at least advisable. So, wear a mask indoors when others are present. (And if the evidence I’m aware of changes, my thinking about legal requirements might also change.)

It’s also important to remember that private business owners have the (moral) right to require masks in their establishments. Or to forbid wearing masks therein. If you enter a private business, abide by their rules. If you can’t, don’t go into that establishment. And don’t feel insulted or make a fuss because they are insisting on something you disagree with. You make the rules in your house, they make the rules in theirs.

So wear a mask inside when others are likely to be there but don’t advocate for a law—we have too many of them anyway.

ADDITION, 7/22/2020: worth looking at: