Friday, March 05, 2021

COVID-19 update -- and a non-political question about mask mandates

As we approach the first anniversary of our two-week shutdown, let us take stock of where we are:

  • The Cook County Chief Judge's Office announced on Tuesday of this week that two more employees had tested positive for COVID-19, one who works for the Adult Probation Office in Bridgeview, the other in the Social Service Department at the George N. Leighton Criminal Courthouse. This brings to 280 the current total of employees of the Chief Judge's Office who have tested positive for COVID-19. There have also been 21 judges (out of a total of about 400) who have testested positive;

  • The Chief Judge's Office announced on February 24 that criminal jury trials will resume this month, with the first of these planned for 26th Street on March 22 and in Bridgeview on March 29;

  • The number of COVID-19 cases is unquestionably going down in Illinois, at least at the moment. Last October 25, there were 4,062 new cases. The day before, a Saturday, there had been 6,161. I looked at the numbers again in November -- and on November 10 there were 12,623 cases reported. But, then, the State had started counting, and reporting, cases differently: In early November the State began reporting actual and probable cases. This is still how things are being done -- but yesterday, according to IDPH, there were 1,740 new and probable COVID-19 cases. That's a lot more than the 12 -- not a typo -- actually just a dozen -- cases that were reported on March 16, 2020, just before the world ended -- but, clearly, a considerable improvement over last fall;

  • The one-shot Johnson & Johnson vaccine is now being administered in the Chicago area. That brings to three the total number of vaccines that none of us can get yet. And, actually, that is already an exaggeration: My wife and my youngest son, both teachers, have received their first doses of vaccine. While most people I talk to have not yet received a vaccine, almost everyone actually knows someone who has. It is coming. Eventually.

And with the decline in cases, and the increase in vaccine availability, government officials are starting to ease restrictions of businesses, including restaurants and bars, here and across the State. There will be an NCAA Men's Basketball Tournament this year, with some fans permitted, although the tournament will be played in a "bubble" in Indianapolis instead of at sites around the country. Fans are sitting, socially distant, in the stands at Spring Training games in Arizona. Many of these moves---most of them, I believe---have been met with relief and even cautious applause.

Governors in Texas and Mississippi have gone so far as to lift mask mandates in their states, however, and the media, and my Facebook and Twitter feeds, are all in high dudgeon. President Biden has chastisted these as "Neanderthal" moves.

Do not worry: This in not going to be a Political Post. Some readers grouse when I stray too far from #CookCountyJudicial posts, admonishing me to stay in my lane. I don't see how I'm ever going to get a cushy gig on a Sunday morning news panel if I don't branch out into national topics -- I can be just as loud and just as wrong as any of them if only given the chance. That, and a good toupee.

But put that aside for the moment. At this point in the electoral cycle, we are mostly lawyers and judges here. Words are our stock and trade. Words like "mandate."

When we use the word "mandate" or "mandatory" we mean that something must happen or someone must do something. When a mandatory disclosure date is set, and passes, and nothing happens, we lawyers can expect more than just a rueful sigh from the judge presiding. A mandatory deadline can be extended, of course (and thank God for that, too, or I'd have been disbarred a hundred times over), but, at some point, a line is drawn in the sand, and consequences will obtain if we fail to comply with that last and final, double-secret probation deadline.

I assume that all of you reading here are compliant with our local mask mandates. I have heard masks analogized to pants -- neither is required for Zoom meetings, but both are essential when going to the store.

But I further assume that most of you also know people, or at least see people, who do not wear masks. I certainly have: People who put on a mask to get past the 'mask required for entry' sign -- and take it off again as soon as they are safely inside the store. Perhaps they think themselves clever. Perhaps you have harrumphed at some of these people and gotten an earful of abuse for your pains.

Are these scofflaws arrested? Are our criminal dockets crowded with maskless offenders? Are our prisons bulging with chronic mask refusers? Are our municipal coffers overflowing with fines remitted by maskless miscreants? Not that I've heard. Or read. Have any of you heard or seen differently?

Now let me turn the question around, just a little. Suppose our own Governor Pritzker decides to lift the mask mandate here in Illinois. Not because COVID-19 is over, but solely because it becomes, for some reason, politically expedient. This is obviously not going to happen here anytime soon, I know, but we are lawyers. We are used to answering hypothetical questions in argument.

Upon the hypothetical lifting of our own mask mandate, keeping in mind that you still have not been vaccinated, and neither have most members of your family, and that COVID-19 is still coursing through the community, would you immediately cast aside your mask and gambol madly down Madison Street or Michigan Avenue, shaking hands with everyone you meet (no more elbow bumps for you)?

Of course not.

At least, I hope not.

You wear your mask in public, not because some politician says so, but because, from what you've read, and heard, and seen, and experienced, you are persuaded that mask-wearing protects you and yours and those around you. So do I. (I bet a lot of folks in Texas and Mississippi feel that way, too, whatever their governors may say, but I promised not to go there, and I won't.)

So... despite what we call it, the mask "mandate," here or anywhere in this country, is more of a strong suggestion than a mandate. We don't punish people who disobey it.

And this, for me, is a problem. I don't mean that I want to punish the scoffers. (Well, maybe just a little....) My concern is that calling a suggestion, or request, a mandate undermines the rule of law.

Our system depends on people respecting and obeying the law. When specific laws (or mandates) are seen to be ignored, or not enforced, people may be encouraged to ignore other laws, too. Or think they may choose which laws to obey and which laws not to. This is not something new in America. See, Prohibition. See also, the "War on Drugs." I could do a pretty lengthy string cite here, and I'll bet you could, too.

There will be a lot to rebuild when this two-week shutdown eventually ends. The economy, including our own personal economies, for one. But can we also give some thought to how we will repair the damage caused to the rule of law by well-intentioned "mandates"?


Anonymous said...

As long as we are discussing numbers... There were only 3 positive cases in CCDOC as of 3/4/21. My math may be bad but I think that's a .05% positivity rate for in-custody defendants.

Anonymous said...

Or you can just run . . . while you wear your mask.

Anonymous said...

Let’s mandate these judges to return to work.