Civil Liberties in the Age of Coronavirus: Californians Ask Questions About More Government Control Over Their Lives

By Sarah Mizes-Tan

As Gov. Gavin Newsom continues to put restrictions on people’s movement and daily lives to curb the coronavirus outbreak, Californians are feeling a certain amount of new government control.

Many CapRadio listeners had questions about their civil liberties during this era of COVID-19. They’re concerned about how their freedoms will be affected, and what can be compromised during this time of national crisis.

Some are concerned about more draconian measures seen across the globe, such as the total lockdown of residents in India, being imposed upon Americans. For many, this is the first time in their lives the government has taken such aggressive steps to change their personal habits. 

Constitutional law professors have said the government does hold some amount of power to do what’s right for the good of the people. In the past during crisis situations, the government has enacted laws, and challenges have followed, such as the Japanese-American Internment during World War II, or New York City’s “stop and frisk” policy. 

To get answers, CapRadio spoke with professors like Leslie Gielow Jacobs of the McGeorge School of Law in Sacramento about ways the government has been careful to not overdo measures. 

Americans so far have seen orders that aren’t strongly enforced by law, she said, while other countries that are not democracies, such as China, have taken stronger, legal steps to limit personal freedoms.

She said as things progress, citizens should be wary of the following infringements on civil liberties: 

• Violations of freedom of speech due to restrictions on public gatherings, particularly if these restrictions continue into election season
• Violations on privacy if the government takes measures to try to track peoples’ movements to slow an outbreak

• Discriminatory practices to try to contain an outbreak within a certain demographic. 

Here are some other legal experts’ responses to CapRadio listener and reader questions:

Why haven’t we gotten stronger orders? Those might be more effective?

John Sims, a professor emeritus at McGeorge School of Law, said the federal government is trying to toe the line between becoming too authoritarian and curtailing the spread of the disease. He called it a balancing act. 

“Obviously, a week ago, we couldn’t imagine things being as bad as they were today,” he said. “But I’d just say that’s really what constitutional law is about: It’s about a balancing act among various interests, and we have a lot of important — and very important — time honored rules that allow us to conduct the balancing.” 

That said, experts don’t believe that measures like tracking peoples’ movements via their cell phones will ever become a method of containment in this country, in part because the United States is already past the point of containment, and such monitoring would be of little help now. 

Advocates generally say there is no reason to be concerned about civil liberties infringement just yet, but most are worried that, if these containment measures extend into election season, how they could be seen as impacting freedom of speech and First Amendment rights.

What about people in jail right now? Are jails doing anything to contain the spread of the virus among their inmate population?

Experts agree that jails are not prepared to handle an outbreak among their inmates. There are shortages on soap and other sanitizing products, and jails suffer from overcrowding. 

Advocates from the California ACLU have been asking all state-run jails to release the “pre-trial” portion of their inmates — inmates awaiting trial who don’t have money to post bail — and inmates whose terms are ending within the next 45 days. 

According to the Board of State and Community Corrections, pre-trial inmates make up about 68% of the jail population. 

So far, Los Angeles County has taken the most aggressive steps and released about 1,200 inmates as of March 19, 2020, about 6 percent of their jail population, to lessen the spread of coronavirus. 

Sacramento County has released a portion of its inmates whose term sentences were almost over, but the sheriff's office said these releases cover only a small portion of the inmate population. 

The Vera Institute of Justice, a nonprofit organization that advocates for the incarcerated, has released guidelines for how jails can manage the coronavirus.