ACLU News

Amendment 4 is Back in Court as Florida Fights Our Victory Over its Modern-Day Poll Tax

Betty Riddle, a grandmother and university graduate, stood in line to vote for the first time in her life in Florida’s 2020 presidential primary. Marq Mitchell, a peer support specialist and advocate, also proudly voted for his first time in March. Jeff Gruver, a local activist for people experiencing homelessness, is yet another of our clients who cast his vote and finally had a say in our democracy earlier this year.
 
It is on their behalf, and on behalf of all returning citizens’ behalf across Florida, that we return to court this month to fight for their access to the ballot box in elections to come.
 
Nobody should be denied their voting rights because they lack sufficient wealth. Courts have repeatedly held wealth-based barriers to voting are unconstitutional. Yet Florida wrongly asks the U.S. Court of Appeals for the Eleventh Circuit to permit the state to charge returning citizens money to vote and to reverse our clients’ latest victory before the trial court in May, which rejected Florida’s modern-day poll tax.
 
The case concerns Amendment 4, which restores voting rights to more than one million people with felony convictions who have completed their sentences. A resounding majority of Floridians voted to pass Amendment 4 in 2018. But soon after, Gov. Ron DeSantis and the Florida Legislature enacted a poll tax requiring newly-eligible voters to pay off all outstanding fines, fees, costs, and restitution, or legal financial obligations (LFOs), to vote. They transparently attempted to undermine the wishes of Florida’s voters and to eliminate and silence disproportionately Black voters from exercising their fundamental right to vote.
 
The ACLU immediately sued Florida in partnership with the ACLU of Florida, the Brennan Center, and the NAACP Legal Defense and Educational Fund. The district court issued a preliminary injunction in October of 2019. The Eleventh Circuit later affirmed the victory in February of 2020. The district court heard our clients’ claims during a remote trial in April and May 2020. In May, it ruled in our clients’ favor, saying SB 7066’s LFO requirements violate the U.S. Constitution by discriminating on the basis of wealth. The court also held requiring the payment of LFOs violates due process and the National Voter Registration Act. It also violates the 24th Amendment’s prohibition of poll taxes. Florida appealed.
 
Now, we return to court to defend our clients’ victory. If the appeals court affirms the lower court’s judgment, it may enable hundreds of thousands of returning citizens to register to vote in time for the November election.
 
Florida’s illegal poll tax has left voters hanging through several election cycles and confused about their voting eligibility. To this day, Florida still has no centralized database where returning citizens can determine how much they owe, and what records exist are often inaccurate, conflicting, or scattered across the state.
 
Many returning citizens, like our client Betty Riddle, have convictions dating back decades. It took Betty many calls, visits, and letters to learn she owed over $1,000, which she could not afford to pay. She explained to the ACLU the unfairness did not hit her right away: “I didn’t realize that it wasn’t right until I asked myself, ‘Why are we paying to vote?’”
 
What’s worse, Florida requires returning citizens seeking to register to swear under penalty of perjury they are eligible to vote. If they cannot determine their eligibility, they risk criminal prosecution for registering. Given how difficult — even impossible — it is for returning citizens to determine if they have any outstanding LFOs, policies like these undoubtedly prevent countless people from even registering out of fear of prosecution.
 
Florida has proven incapable of administering its poll tax. Voters should not have to pay the price for Florida’s unworkable system. SB 7066’s system is irrational, cruel, and unfair. It is also unconstitutional.
 
Before Amendment 4, Florida was one of four states that permanently revoked the right to vote for all people with past felony convictions. One in 10 voting-age Floridians could not vote for life, including one in five Black Floridians. Amendment 4 is historic for Florida and the entire nation. It is the single largest expansion of voting rights in the United States since the 26th Amendment lowered the voting age to 18 almost 50 years ago. Without Amendment 4, Florida would be the only remaining state with lifetime disenfranchisement.
 
Conditioning voting rights on the ability to pay is simply unconstitutional. We proudly fight for our clients against Florida’s attempt to put a price tag on voting. 

Tracking Apps are Unlikely to Help Stop COVID-19

Proposals to use the tracking capabilities of our cell phones to help fight COVID-19 have probably received more attention than any other technology issue during the pandemic. Here at the ACLU, we have been skeptical of schemes to use apps for contact tracing or exposure warnings from the beginning, but it is clearer than ever that such tools are unlikely to work, and that the debate over such tracking is largely a sideshow to the principal coronavirus health needs.
 
We have said from the outset that location-based contact tracing was untenable, but that the concept of “proximity tracking” — in which Bluetooth signals emitted by phones are used to notify people who may have been exposed — seemed both more plausible and less of a threat to privacy. Indeed, a number of serious institutions began working on this concept early in the pandemic, most notably Apple and Google, which have already implemented a version of the concept in their mobile operating systems.
 
Some of the problems with tech-assisted contact tracing have been apparent from the beginning, such as the social dimensions of the challenge. Smartphone ownership is not evenly distributed by income, race, or age, threatening to create disparate effects from such schemes. And even the most comprehensive, all-seeing contact tracing system is of little use without social and medical systems in place to help those who may have the virus — including access to medical care, testing, and support for those who are quarantined. Those systems are all inadequate in the United States today.
 
Other problems with technology-assisted contact tracing have become more apparent as the pandemic has played out. Specifically, such tracing appears to be squeezed from two directions. On the one hand, a tool shouldn’t pick up every fleeting encounter and swamp users with too many meaningless notifications. On the other, if it is confined to reporting sustained close contacts of the kind that are most likely to result in transmission, the tool is not likely to improve upon old-fashioned human contact tracing. Those are the kinds of contacts that people are likely to remember. And those memories, relayed to human contact tracers, are more likely to identify a patient’s significant past exposures than an automated app that can’t determine, for example, whether two people were separated by glass or a wall.
 
A difficult disease to trace
 
The first problem — the danger of generating far too many “exposure notifications” — is considerable. As one commentator put it, “actual transmission events are rare compared to the number of interactions people have.” Swamping users with false notifications would be useless and annoying at best, and seriously disruptive and counterproductive at worst. Ultimately, people will stop taking the notifications seriously, or just uninstall the app.
 
That problem is made worse by the fact that COVID-19 is a more difficult disease to trace than many. As a group of prominent epidemiologists from the University of Minnesota explained in a report on contact tracing, contact tracing is less effective when:
 
1. Contacts are difficult to trace, such as when a disease is transmitted through the air. Respiratory transmission appears to be the primary way COVID-19 is transmitted. Compared to the kind of contact tracing that has long been done with HIV, where transmission takes place through sex or blood, the virus that causes COVID-19 is much harder to track. One cough or sneeze from a stranger may be enough to infect an unlucky passerby — as can sharing an interior space with a “super-spreader” who is on the other side of a large room.

2. The infection rate in a community is high. In the U.S., as of this writing (July 2020), there are currently around 50,000 new coronavirus cases being identified every day. As the Minnesota report puts it, “contact tracing is most effective either early in the course of an outbreak or much later in the outbreak when other measures have reduced disease incidence to low levels.” The U.S. may someday reach the point where cases are once again sporadic rather than widespread, but for now experts recommend concentrating contact tracing on contacts within households, healthcare and other high-risk settings, and case clusters — an approach much more amenable to manual contact tracing.
 
3. A large proportion of transmissible infections are from people without symptoms. In May the CDC estimated that 40 percent of new COVID-19 infections come from asymptomatic carriers.
 
The Technology is Not Reliable Enough
 
These factors increase the risk of generating too many exposure notifications to be useful. Serious technical challenges with using smartphones for contact tracing also increase that risk. One of the biggest questions has always been how to use Bluetooth to judge which encounters are worthy of being recorded as potential transmission events. Judgments have to be made about how close a person needs to be, and for how much time, to meet the warning threshold. That becomes even trickier since Bluetooth can’t reliably measure distances. The strength of a Bluetooth signal varies not only with distance, but also from phone to phone, and from owner to owner. The frequency at which Bluetooth operates (2.4 GHz) is one that is easily absorbed by water, including the water in the human body, which means that signal strength can vary significantly depending upon whether a person has their phone in their front or back pocket, and how much that person weighs.
 
Complicating matters is the fact that existing contact-tracing apps are being thrown together very quickly. Google and Apple moved from concept to a finalized product in less than 12 weeks. They should be commended for stepping up in an emergency, but we shouldn’t expect it to work well anytime soon. As is clear to any experienced software developer, their product is basically an early prototype that’s being pushed into production. In a normal world, they would be testing their app on groups of hundreds and then thousands of people in cities and a variety of other real-world situations. Through no fault of Apple and Google, there simply hasn’t been the opportunity to do the kind of engineering development and refinement that a project like this really needs.
 
And of course, what is true of software developed by Apple and Google is even more true of apps developed in a rush by state governments like North Dakota and Rhode Island, or other nations like South Korea. South Korea has been lauded for its high-tech coronavirus response. But the quarantine app the country has been using put people’s names, locations, and other private information at risk by failing to follow basic cybersecurity practices.
 
Compliance
 
While effective technology-assisted contact tracing apps must avoid generating too many exposure notifications, they must also establish that they can improve upon or significantly augment old-fashioned human contact tracing.
 
Epidemiologists emphasize that contact tracing has always been a tricky and sensitive job. Getting people to trust any official enough to open up about their potentially privacy-sensitive whereabouts and contacts is a skill — one that requires “training and development of a specialized skill set” as well as “consideration of local contexts, communities, and cultures.”
 
That is especially true since those who are identified as having been exposed to the coronavirus are asked to self-quarantine for two weeks — putting much or all of their life on hold, and possibly risking the loss of a job or income, necessitating the finding of new caregivers for dependents, and imposing various other costs. That’s something that a friend will be reluctant to impose upon another friend by giving their name — especially where no social support is provided to those asked to self-quarantine. As the Minnesota report warned, “If people perceive the economic, social, or other costs of compliance with contact tracing are greater than its value, it won’t be successful.”
 
There are many reasons to doubt that these tricky issues can be navigated better through technology. As report co-author Michael Osterholm put it, “Having been in public health for 45 years, and having cut my teeth in surveillance in many different ways — I don’t think most people would comply. If I got notifications that I’d been exposed to [someone] with COVID, would I self-isolate for 14 days at home, because I got a text on my phone?”
 
The sensitive privacy and trust issues that human contact tracers face are likely to be amplified in the technology realm. People who are reluctant to tell contact tracers where they’ve been are likely to be even more reluctant to let an app carry such information. By building tools with very strong, cleverly constructed privacy protections, Apple, Google, and others have created the best possible chance of engendering trust in those apps, but those protections still have gaps. People who refuse to wear a mask are unlikely to deliberately install tracking software on their phone, whatever privacy assurances they are given. Nor are many members of Black, Brown, and immigrant communities for whom “trust in the authorities is non-existent.”
 
Some experts have estimated that at least 60 percent of a population would have to run an app for it to become effective. Others think apps can be modestly helpful even with much smaller adoption rates. But aside from trust issues, the number of people willing to participate seems to have gone down since the first months of the outbreak, as “social distancing fatigue” has set in and public panic over the virus has given way to a more measured caution (and in too many cases, an abandonment of all caution whatsoever).
 
The bottom line is that there are too few reasons to think that apps will prove more helpful than human memories elicited by experienced contact tracers. The promise of exposure notifications lies in the space between the large pool of incidental contacts that people have, and the smaller number of significant contacts that they remember. The apps promise to track contacts that are close and sustained enough to pose a serious risk of exposure yet beyond the subject’s memory. For most people, that space may simply not be large enough to be useful.
 
Real-World Experiences in States and Other Countries
 
Unsurprisingly, given these problems, the states and countries that have experimented with using technology-assisted contact tracing have not been met with much success. The use of technology by China and some other Asian countries has received a lot of attention, but as the Minnesota epidemiologists point out, “we don’t know exactly what methods were used, how many cases were involved, and what the estimated impact was in reducing transmission since other mitigation strategies were employed at the same time” in those countries.
 
That lack of measurement is true throughout the world. An MIT survey of global digital contact-tracing efforts found 43 countries in some stage of offering a product. Ten of those countries are relying on the privacy-preserving Apple/Google protocol, with the rest a jumble of different architectures and policies. It may not be quite true, as UK Prime Minister Boris Johnson declared on June 24, that “No country in the world has a working contact tracing app” — Germany has launched an app that has been downloaded over 14 million times so far, and India claims 131 million downloads for its app and 900,000 users who have been contacted and told to self-isolate. But we don’t know if those numbers represent a high enough proportion of the populations to actually have an impact on slowing the disease in Germany and India, let alone in countries with lower adoption rates. We also don’t know how effective it is to simply tell people to self-isolate, in the absence of social support for them to do so.
 
It’s also worth noting that in some countries such as China and India, digital tracking is imposed in authoritarian ways that would cause most people who value civil liberties to recoil.
 
In the U.S., a few states have attempted to launch apps, including Utah, where things went so badly that one program was shut down within 72 hours of its launch, and another one had not led to any contract tracing a month after its launch. An app in North and South Dakota ran into trouble quickly when it was revealed to be sharing data with a private location-data company. Overall, state efforts so far have been plagued by “technical glitches and a general lack of interest by their residents.” A survey by Business Insider found that only three states planned to use the Apple/Google technology. Others had not decided, but 17 states reported that they had no plans to use smartphone-based contact tracing at all.
 
Those who have worked on privacy-preserving exposure notification apps should be commended for stepping up. They have dedicated their skills toward trying to save lives and restore people’s freedom, and they did a very good job creating a privacy-preserving approach that was not only the most likely to be trusted and effective, but also the least likely to permanently change our world for the worse. 
 
Nevertheless, it does not appear to be working out. “A lot of this is just distraction,” Osterholm concluded of all the talk over digital contact tracing. “I just don’t see any of this materializing.” Given what we know about the technology, we are inclined to agree.

Retired Federal Probation Officer: Stop Sending People to COVID-Filled Prisons Unnecessarily

In early April, the Rikers Island jail complex in New York City suffered its first coronavirus death: Michael Tyson. Mr. Tyson, 53, had been arrested in late February not because he had committed a crime, but for a technical violation of his parole. As a retired federal probation officer, I can tell you that incarcerating someone for a technical rule violation should be a last resort. But during a pandemic, it should be ceased completely. Our federal, state, and local probation and parole systems should act immediately to protect public health and safety and choose alternatives to unnecessary incarceration. 

For 22 years of service as a probation officer, I saw first-hand how difficult it is for individuals to follow all the technical rules of supervision. These conditions range from adhering to a curfew to abstaining from cigarettes and alcohol, meeting with parole or probation officers regularly, keeping treatment appointments, and maintaining employment. They regulate daily behaviors that most of us take for granted, which in many cases leads to failure. People with drug addictions are required to test negative, even though experts agree that it is normal to relapse multiple times before successfully entering recovery. 

Mr. Tyson is not the only person who may have received a death sentence for a technical violation. In Arizona, where the ACLU has filed COVID-related lawsuits against both a federal and a local jail, many of the detainees are there for these types of technical violations. One person at the CoreCivic federal facility in Florence, Arizona was sent back to prison for smoking a cigarette in the hallway of their halfway house. 

Probation and parole officers are taking a heavy-handed response to minor infractions in Arizona and across the country. One recent study found that 45 percent of all state prison admissions were a result of probation and parole violations, and 25 percent were due to technical violations — the same kind Mr. Tyson allegedly committed.

In normal times, these are troubling statistics. In the middle of a pandemic, they are deadly. Social distancing and other important safety practices like handwashing and wearing masks are not happening in correctional facilities. Jails and prisons account for most of the country’s worst hotspots for COVID-19.

Unnecessary incarceration is dangerous not only to incarcerated people and corrections officers but to all of us. People in jail are usually there less than a month, plenty of time to contract the virus and bring it home with them. The phenomenon has been documented: In Illinois, one in six of all coronavirus cases were linked to people who were jailed and released from the Cook County jail in Chicago.

This is a fixable problem. Parole and probation officers have vast discretion in responding to technical violations. Now more than ever, officers should not register formal violations that result in incarceration for technical violations. We can also stop issuing violations for minor infractions and work with our agencies to design a series of graduated responses that do not jump straight to incarceration.  

The current approach to community supervision is putting all of us at risk. To stop more avoidable deaths like Mr. Tyson’s, probation and parole officers and our agencies should take immediate action and suspend the use of incarceration for technical violations. It is our responsibility and duty to guard against the unique dangers of this pandemic and to protect the community. 

Clemency, Redemption, and Justice: A Personal Story

In 1998, at the age of 21, I was sentenced to life without parole plus 320 years for drug-related offenses that were committed mostly in my teens. In 1998, 16 years into my sentence, I received clemency from President Obama after writing a letter to him asking for forgiveness, asking for mercy, asking for understanding that I wasn’t a bad kid, just a kid who made a bad decision. That I wasn’t that person who roamed those streets long ago or the same person who stood in front of the judge and received a life sentence, and as a result I shouldn’t die in prison.
 
President Obama agreed.
 
I was extremely fortunate. Those who sought a commutation of their sentence before Obama’s presidency, when George W. Bush was in office, had a 1 in 1,000 chance of success. While conducting research as I prepared my own clemency application, I learned that only one other person serving life without parole for a drug offense had ever been granted clemency. Because of this, I have always compared my clemency to hitting the lottery. But instead of winning millions of dollars, I won my freedom.
 
Unfortunately, I am just one of the thousands upon thousands of people who after years or even decades in prison, have matured and changed their way of thinking. But because of mandatory minimums and truth in sentencing laws(another supposedly “tough on crime” sentencing scheme that is really just tough on people), and the inaccessibility or unreliability of parole, there are no judicial remedies to acknowledge the transformations of these individuals.
 
However, there is an extraordinary executive power that allows a show of mercy to be made: clemency.
 
Clemency has historically been relied upon in America as an olive branch extended to those unduly harmed by our system of mass punishment. It has been used as a tool to heal people, communities, and our very nation, and in doing so, has engendered reconciliation among its citizens. Clemency is a corrective measure that counteracts some of the effects of a flawed system. But the degree to which it can do so is mirrored by the degree to which it is used. Though it may often be overlooked today, clemency has been a key facet of our republic since its founding.
 
Alexander Hamilton, who played a pivotal role in ratifying the Constitution, saw the value of investing in the office of the presidency the ability to grant clemency to groups during periods of national crisis. Hamilton outlined this in the Federalist Papers: “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
 
Not long after this statement, President George Washington would use his pardon power after the suppression of the Whiskey Rebellion of 1794. The President pardoned two people who were considered leaders of the rebellion and had been sentenced to death. Washington’s legacy was later echoed in President Lincoln’s choice to issue 64 pardons for war-related offenses. They were part of his Proclamation of Amnesty and Reconstruction, his blueprint for the reintegration of the South into Union.
 
In the century that followed, between 1918 and 1920, more than 2,000 people were convicted of sedition and other violations of the Espionage Act for speaking out against the American involvement in World War I. In 1921, President Warren Harding reacted by issuing blanket pardons to all those convicted under the Espionage Act. Still decades later, attempting to bring a close to the era of American conflict in Vietnam, President Jimmy Carter offered a blanket pardon to any American who had dodged the draft during the war.

These are all examples of how Presidents exercised their clemency power during and after periods of war to bring the nation together so that it might move forward in unity. That legacy must be resurrected again today to combat the legacy of another war: the war on drugs and related “tough on crime” policies that have actually been a war on Black and Brown communities.
 
These pervasive modern wars have left about 80 million people in this country with arrest records, 8 million with felony convictions, and more than 2 million people currently in our jails and prisons. With statistics like these, and decades of harsh crime policies in place, we can debate which policies should have been implemented and which shouldn’t have. But one thing is clear: America’s “tough on crime” movement was misguided, ill-advised, and has hurt the communities it intended to help.
 
From former President George Bush to current President Donald Trump, and from Govs. Tom Wolf of Pennsylvania to Kevin Stitt of Oklahoma, elected officials have exercised their clemency power to give individuals back their freedom, many of whom have been in prison for years or decades under “tough on crime” laws enacted in the 1980s.
 
I was one of those fortunate souls, and my release granted me more than freedom. It was a chance at redemption.
 
Clemency is not and should not be viewed as a tool used by officials who are “soft on crime.” Instead, it is a tool whose use signals an official’s wisdom about our nation and the nature of our mass punishment system, whose roots lie in slavery but whose functions are present in the lives of too many people today. These punishments that may have appeared necessary and just at one time, but their lie has been exposed: Putting too many people in prison for too long does not keep people safe, and it certainly does harm to the loved ones of those who are incarcerated.
 
In a 2003 speech, former Supreme Court Justice Anthony Kennedy referred to pardon power as a necessity to ensure justice is administered and adjusted over time:
 
“A people confident in its laws and institutions should not be ashamed of mercy. The greatest of poets remind us that mercy is ‘mightiest in the mightiest. It becomes the throned monarch better than his crown.’ I hope more lawyers say to chief executives, ‘Mr. President,’ or ‘Your Excellency, the Governor, this young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him Liberty.’”
 
I know personally that when the gift of clemency is given to a person, it reverberates throughout our souls that we are not only a nation of opportunity, but also of second chances, of mercy and hope — even for those who may have done wrong — even for those in prison. For as Justice Kennedy said in his closing remarks on clemency, “[S]till, the prisoner is a person. Still he or she is part of the family of humankind.”

From Punishment to Promise: The Power of Redemption

My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
 
Why isn’t it?
 
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
 
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
 
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
 
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
 
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
 
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
 
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
 
The system needs more of that change, and it needs it now.
 
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
 
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
 
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.

In Pompeo’s New Hierarchy of Rights, Religion and Property, Not Humans, Are at the Top

The Trump administration is advocating for a new hierarchy of rights that would elevate religion and property over basic human rights. Secretary of State Mike Pompeo is leading this dangerous endeavor through his Commission on Unalienable Rights, which published a 60-page draft report and initiated a two week public comment period following the proposal. Sec. Pompeo then delivered a preposterous speech to support the ideological initiative. The commission and its glossy report are designed to lend a veneer of legitimacy to an endeavor that is both dangerous and a waste of taxpayer money — at a time when the government should be focusing on responding to the public health and economic crisis.

This commission isn’t fooling anyone. Its main purpose is to weaken international human rights protections and propose a new, politically-charged framework of rights that elevates a specific vision of religious freedom and ignores well-established, globally accepted norms. This was already evident last year, when we warned that the commission would diminish the progress made to advance the universal rights of women and LGBTQ people, as well as socioeconomic rights, especially of vulnerable and historically marginalized populations. 

The report asserts that the United States should “vigorously champion human rights in its foreign policy,” and that “America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” Yet the report is stunningly silent about the racist policies and xenophobic rhetoric of the Trump administration, which have been widely condemned by international human rights bodies. It also fails to account for the Christian favoritism that Pompeo has displayed time and time again, implying that there is a hierarchy even among religious groups. 

A hierarchy of rights is inconsistent with human rights law and our constitutional framework. The report presents a selective and revisionist history, emphasizing the “primacy of the American political tradition” and the founding era of American history. The result is a crude and erroneous attempt to constrain the notion of the U.S. Constitution as a living document. As the ACLU has repeatedly stated, “There is an obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.” It seems that the 11 members of the commission have missed the fact that our constitutional rights are evolving, not static. 

Sec. Pompeo’s commission ignores the bedrock principle that all human rights have equal status, and they are not hierarchical. The consistent refrain in the report, and from Sec. Pompeo, is that “[f]oremost among the unalienable rights that government is established to secure … are property rights and religious liberty.” This is in fact a new and novel hierarchy of rights, designating religious freedom and property rights as the most important. This is a political and ideological decision that contravenes international law, and ignores lived experiences and structural inequities. It’s also counterproductive to democratic participation and fundamental freedoms because it excludes certain types of people from all human rights, including people living at or near the poverty line, such as low-wage workers.   

We must reject any proposal that prioritizes religious liberty over equal rights and human dignity. All too often, religion has been invoked to sanction violence and discrimination against people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people. A recent report by the United Nations Special Rapporteur on freedom of religion and belief documents how this dynamic has taken place in all regions of the world. The Special Rapporteur concluded that “[i]nternational law is clear that the manifestation of religion or belief may be limited by States in situations where doing so is necessary to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” 

While religious freedom must be protected and faith organizations are entitled to autonomy, such deference should be extended within a holistic conception of rights grounded in the universality, indivisibility, and interdependence of the full range of human rights. 

The right to property has long been wielded as a justification for atrocities committed against people of African descent and Indigenous peoples in the U.S. The report attempts to wash over most historical rights violations, though it curtly acknowledges slavery as a wrong. In an effort to further rationalize its rights hierarchy, the authors link property rights to freedom from slavery: “…only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” 

While the report acknowledges that historically states’ rights have been invoked to prevent freedom and justice for enslaved people, it fails to mention that this has also been true for Indigenous peoples. This practice continues to this day, despite the latest U.S. Supreme Court decision in Mcgirt v. Oklahoma regarding tribal lands in Oklahoma.

The commission’s report asserts that economic and social rights are best compatible with America’s founding principles when they serve as “minimums that enable citizens to exercise their unalienable rights, discharge their responsibilities, and engage in self-government.” The commission bizarrely concludes that guaranteeing a basic social safety net and fundamental human rights such as the right to health, education, and housing, would “curtail freedom — from the rights of property and religious liberty to those of individuals to form and maintain families and communities.” 

Additionally, the report sets up the premise that social and economic rights create a “clash of claims” with other rights like religious liberty. If anything, the correct interpretation is that social and economic rights are complementary and enabling rights. People cannot exercise freedom — political or otherwise — if their social and economic rights are in jeopardy.   

While the report rightly considers the Universal Declaration of Human Rights (UDHR) as a foundational document for the modern international human rights framework, it fails to mention that the U.S. has continuously undermined the UDHR by ignoring and selectively enforcing basic universal rights. Different groups throughout American history, including Indigenous peoples, enslaved African people, and women, among others, have all suffered from America’s double-standard and failure to practice what it preaches. 

Notably, the U.S. is one of a handful of nations that has not yet ratified the Convention on the Elimination of All Forms of Discrimination against Women, and is the only country in the world that has yet to ratify the Convention on the Rights of the Child. More importantly, the report glosses over the government’s failure to uphold its legal obligations under ratified treaties including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Ongoing poverty, and racial disparities in health and economics, are some of the clearest indicators of the impact of failing to prioritize rights on equal footing. 

Last week, the ACLU joined 230 human rights organizations, faith-based groups, activists, academics, former senior U.S. government officials, and others to object to the commission’s mandate as well as the fundamentally flawed analysis and recommendations contained in the report. As the coalition letter concludes, the report “undermines American commitments to human rights and provides cover for those who wish to narrow certain categories of rights protections, resulting in a weakening of the international human rights system and its protections in the process.” 

At a time when the Trump administration is resorting to authoritarian measures to suppress Black Lives Matter protests, and failing to protect our basic human rights during the COVID-19 crisis, we must fight any attempt to shake the foundations of our global humanity. Pompeo’s ideologically motivated initiative aims to quash equal protection of human rights and dignity, and we must reject it.

ACLU Seeks Information on Government’s Aerial Surveillance of Protesters

In the midst of nationwide protests against police brutality, local, state, and federal law enforcement agencies have reacted with brutal force and widespread surveillance. Not only are many agencies suppressing protest and intimidating protestors with batons and tear gas on the ground — they are also circling overhead. The government is using a deeply invasive, coordinated aerial surveillance campaign to monitor Black Lives Matter protests, gather information, and surveil people exercising their First Amendment rights.
 
Today, we submitted Freedom of Information Act (FOIA) requests to the Federal Aviation Administration, Department of Homeland Security, and the Department of Justice calling for more information on the use of aerial surveillance on protesters.
 
The government has deployed helicopters, airplanes, and border drones over American cities to systematically monitor peaceful protests . An investigative report by the New York Times found that the Department of Homeland Security alone had logged at least 270 hours of surveillance footage on these racial justice protests this spring and summer. The collected footage was ultimately channeled into a digital network — accessible by federal and local law enforcement agencies for use in future investigations — with the ominous name “the Big Pipe.” Other law enforcement and military agencies, including the FBI, National Guard, and local police departments also requested deployment of private or government-owned aircraft for the purpose of surveilling protests. This widespread surveillance has been carried out across the country — from the big-city protests in NYC, Portland, Chicago and LA, to 20-person protests in small towns across the country.
 
This surveillance has also been carried out with an unjustifiable level of secrecy. Agencies like the FBI regularly try to hide the identity of their aircraft by registering them through dummy corporations. For weeks, U.S. Customs and Border Protection refused to say which agency had requested use of its Predator border drone over Minneapolis protests in May. Protesters and communities still have no idea what kind of cutting edge, high-tech equipment these aircraft — piloted and unpiloted — may be carrying.
 
As aerial surveillance continues, the public deserves much more information. In our FOIA requests, we are asking for information about the involvement of private companies; coordination between different law enforcement agencies; the processes by which surveillance flights are proposed, approved, or authorized; the scope of surveillance; the capabilities of the cameras and other surveillance tools deployed; and the surveillance footage itself.
 
We live in a democracy and Americans have a right to decide what kinds of surveillance law enforcement is permitted to engage in over our communities. But we can’t do that if we don’t know what’s going on.
 
A prime example of government policymaking that needs more sunlight is the FAA’s issuance of a “temporary flight restriction” over Portland in July, as that city became the center of renewed nationwide protests over police abuse in general and abusive practices by federal officers, sent to the city over local objections, in particular.
 
Unfortunately, there is a history of the FAA creating flight restrictions over protests at the request of law enforcement to limit the ability of reporters and community members to engage in aerial photography of police behavior. The agency restricted airspace over the Dakota Access Pipeline protests in 2016, and before that in Ferguson, Missouri during the 2014 protests following the death of Michael Brown. In 2014, documents and audio recordings proved that the purpose of the Ferguson no-fly zone was not the protection of public safety, as government agents claimed, but to keep news helicopters away.
 
In Portland, Oregon, the FAA’s restrictions prohibit drones except for those with “an approved special governmental interest airspace waiver that has been granted for operations in direct support of an active national defense, homeland security, law enforcement, firefighting, search and rescue or disaster response mission.”
 
In short, this flight restriction leaves room for government agencies to use aircraft to surveil the public, but severely limits the ability of the public to record the government. That may be how law enforcement agencies like it, but it’s exactly backward: Government surveillance of the public should be strictly regulated, but the public’s ability to monitor what law enforcement officials are doing should be broadly free and unrestricted. That is why protesters should be able to record the police using drones — and that is why we have filed a FOIA request to find out more about aerial surveillance of protests by law enforcement.

Undocumented Youth Won on DACA, but Trump’s a Sore Loser. So What’s Next?

After a rebuke from the Supreme Court, President Trump is again trying to end the Deferred Action for Childhood Arrivals (DACA) program — a program that protects over 700,000 people from deportation and allows them to work and attend school in the United States, their home. The White House is replacing the full DACA program with a skeleton program that will accept no new applicants and renew protection for only one year, instead of two. 

I served in the Obama administration at U.S. Citizenship and Immigration Services, the government agency responsible for creating and launching DACA. It was the result of over a decade of brave advocacy by undocumented youth, who rallied the country’s support by sharing their stories and demanding that the United States see them as the Americans that they are. While we were proud of the program, we knew that DACA was not the end goal for this movement. While critically important, it would only temporarily protect Dreamers for two years at a time. Without permanent, legislative protections, the fate of Dreamers and their families would continue to be at risk. 

When President Trump took office, our fears came true. In the first year, his administration threw the lives of DACA recipients into limbo and attempted to end the program, leaving Dreamers unable to plan for their futures, living under a constant threat of potential deportation. As the country waited for a DACA decision from the Supreme Court, ICE promised to start deporting DACA recipients if given the opportunity. 

But on June 18, 2020, DACA recipients — and America — won. The Supreme Court sided with the lower courts and the American people by declaring the Trump administration’s process of rescinding DACA illegal, “arbitrary, and capricious.” The Trump administration was ordered to accept DACA renewals and new DACA applications, and restore the DACA program to its original state. Instead, the White House is hell-bent on ripping the rug out from underneath 700,000 Americans in waiting, even though he knows that the American people, including most Trump supporters, support Dreamers. Trump’s recent changes to DACA shut hundreds and thousands of immigrant youth out of the program’s protections, leaving them at continued risk of deportation. We know and fear that his next step is a complete end to DACA.  

Our immigration system remains unjust, inhumane, and irrevocably broken, and the ACLU will continue to fight in Congress for permanent legislative protections for all undocumented youth. We will also keep fighting for automatic extensions of DACA and Temporary Protected Status (TPS) work permits during the pandemic.

The Senate must act now to take up and pass the American Dream of Promise Act, which would provide protection from deportation and a fair path to citizenship for Dreamers and immigrants eligible for TPS and Deferred Enforced Departure (DED). While the ACLU remains troubled by provisions in the bill that run counter to basic due process principles, it would nonetheless benefit more than two million people and represent a crucial step toward fundamental reform of an unjust system. 

And as Black and Brown communities fight for historic, overdue reforms to state and local law enforcement, it is critical not to forget that ICE and Customs and Border Protection sow fear and uncertainty in communities of color every day. Congress must divest funding from the federal police forces within these agencies that threaten DACA recipients, their families, and our communities writ large.

We will also be fighting for so much more. States must take steps to vastly improve the wellbeing of undocumented youth and protect them from the Trump administration’s anti-immigrant crusade. States should remove barriers that prevent Dreamers from pursuing their education and careers by allowing access to in-state tuition, financial aid, and professional licenses for all, regardless of immigration status. They must also reject the administration’s promise to deport Dreamers and refuse to do ICE and CBP’s bidding. Governors should take steps to restrict their states from spending any resources to collaborate with immigration enforcement agencies. 

As long as Congress refuses to provide a path to citizenship for undocumented youth, we will advocate for broad administrative relief that expands the number of people eligible for protection. DACA was designed narrowly, and forces recipients to spend enormous resources — $495 for the application, plus legal fees —  to renew their status originally every two years, and now every year. We will advocate for DACA to provide longer periods of protection between renewals and for application fees to be truly affordable. And finally, we will keep fighting for a fair, humane, and affordable path to citizenship in Congress so that DACA recipients, their undocumented family members, and all immigrant communities can access full citizenship. 

While Dreamers won in the Supreme Court, Trump continues his anti-immigrant crusade. The fight for permanent protections and a humane immigration system continues.

Police Divestment Efforts Must Include Universities

Despite their intended role as peacekeepers, private university officers are often responsible for violence against students and local residents alike. In July 2015, a University of Cincinnati police officer fatally shot unarmed 37-year-old Sam DuBose. Tyrone West, a 44-year-old Black man, was killed by Morgan State University police in 2013 during a traffic stop. And in 2018, a University of Chicago police officer shot and killed fourth-year student Charles Thomas. 

Sam DuBrose, Tyrone West, and Charles Thomas are just three names on an ever-growing list of people who have lost their lives at the hands of private police officers. Student dollars go toward the upkeep of these oppressive institutions, which are responsible for the violence and mutilation of bodies.

The presence of these forces on and off campus is not welcome — not by students, and not by the communities at large. 

More than one third of four-year colleges across the country are equipped with their own well-funded, private, and armed police forces that make arrests every day. Yet despite functioning as full-fledged law enforcement, these departments are able to evade public record laws, allowing countless cases of police abuse and force to go unseen and unpunished.

In most states, public record laws apply to private organizations that employ government authority to perform a governmental function. There is no question that campus police fall into this category. But universities continue to argue their private status makes them exempt from such records requests, protecting themselves and displaying a flagrant disregard for accountability. 

The Clery Act, signed in 1990, aimed to create accountability for campus police forces. But the law does not go nearly far enough. For example, while it requires the maintenance of a daily crime log, campus forces often provide little detail and are easily able to withhold information. This statute is the sole measure in place to ensure the accountability of armed campus police officers. 

The majority of these private forces are not just policing their respective campuses, but also have jurisdiction deep in local cities. For example, the University of Chicago is home to one of the largest private police forces in the world. The student body numbers under 15,000, but the UC Police Department puts boots down in surrounding neighborhoods, placing 65,000 city residents under the watch of a force with virtually no accountability. 

This arrangement is not unique to Chicago. In cities like Detroit, New Orleans, Philadelphia, and South Bend, Indiana, campus police departments also patrol in the city, often in predominantly Black neighborhoods which already suffer from devastating structural inequalities. People of color, especially Black folks, feel afraid of the people meant to make them feel safe. Educational institutions and the spaces around them can be emancipatory; yet, people of color find themselves in chains.

Young people have started to take notice, and have called for the end to private police on campus. Last year, students at Johns Hopkins University in Baltimore demanded the university reverse its decision to create its own police department. Coalitions of students, faculty members, and neighbors at Harvard University, University of Virginia, Columbia University, and Ohio State University have also called for the removal of private police forces. 

But let’s be clear: Universities without private police forces are not spared from the horrors of police brutality. Partnerships with local police are also bringing unwanted publicly funded officers onto campuses. 

While these forces may not run into the same issues with open-record laws, they come with their own array of atrocities. Public police departments with known patterns of corruption, excessive use of force, and racial profiling are welcomed onto campuses with open arms by university administrators. 

Following demands organized by students, the University of Minnesota recently agreed to cut ties with the Minneapolis Police Department. Northwestern University, Columbia University, and New York University students are also calling on their administrators to cut ties with local police. Administrators should follow the lead of student activists and institutions like the University of Minnesota and cut ties with local police departments. Universities are responsible for the safety of their students and the surrounding community  — and police have proven time and time again to pose a threat to safety, rather than promote it.

As calls to defund the police grow, it is imperative that private police forces with no accountability are prioritized. Heavily armed police forces with no transparency are inexcusable, and university administrations must move to defund them. On college campuses, our nation’s playgrounds for research and discovery, we must protect our young minds and the precious communities that surround them at all costs.

Any other choice is a blatant denial of safety and justice to people across the country 一 those who pay to attend these institutions, and those who live in the communities intruded upon by them.

Prosecutors Disappoint During the Pandemic — 3rd Edition

As the COVID-19 pandemic threatens to become a death sentence for people trapped in prisons and jails across the U.S., the actions — or inaction — of prosecutors to decarcerate have had a tangible life or death impact. We examined the responses from prosecutors in the 20 biggest cities in this country. This is the third post in the series — you can also read the first and second.

11. Austin, Texas
 
Austin’s Margaret Moore understood the need to respond to the pandemic’s threat to people living and working in local jails. She played a significant role in bringing judges to the table to proactively work to save lives during COVID-19. The judges decided to grant no-cost bonds whenever practical to clear jail space, resulting in a dip in the jail population. As of May 12, Travis County’s adult jail system held about 1,600 people and had no positive test results. But test accessibility is distressingly low — only about 1 percent of the county’s average jail population was tested during the pandemic.

Unfortunately, Moore otherwise had an unclear role in Travis County’s pandemic decarceration efforts — unlike prosecutors across the country declining to prosecute various offenses, identifying people to be released from jail, and fighting back against short-sighted restrictions by the Texas governor’s executive order limiting pretrial releases. By mid-March, her re-election opponent, Jose Garza, publicly called upon her and other city officials to do more to decarcerate jails and prisons, thereby removing hotbeds for the spread of the disease. In mid-July, voters weighed in on her limited action, choosing Garza as the Democratic candidate for November’s prosecutor election. 

12. Jacksonville, Florida 

Jacksonville’s Melissa Nelson took early, swift action to save lives facing the pandemic in local jails. By late March, she made a temporary plan to release a significant number of people, directing her office to offer plea deals that avoid jail time, release some people pre-trial, not filing charges in non-violent “marginal” cases, and determining whether a time-served and/or probationary sentence is appropriate in any nonviolent case where the state is currently offering one year of jail time or less. 

The result of these policies: By late April, the number of people held in the Duval County jails fell by 21 percent. These are positive outcomes, but Nelson’s policies still fall short of helping everyone potentially vulnerable to the virus by unilaterally choosing not to consider those accused or convicted of violent or sexual offenses, rather than reviewing their circumstances before making a decision.

13. Fort Worth, Texas 

Fort Worth’s Sharen Wilson has been extraordinarily silent as the pandemic sweeps across the country, despite the deathly threat it poses to those trapped in jails and prisons. But Tarrant County judges and sheriffs picked up her slack, holding court proceedings to grant bonds or shorten sentence lengths so people could get released sooner. 

Unfortunately, Wilson seems to have continued business as usual — including seeking enhancements against people for low-level offenses, such as trespassing, failing to acknowledge that forcing people to spend more time behind bars during a pandemic could have fatal consequences.
 
14. Columbus, Ohio 

In Columbus, Ohio, two prosecutors share responsibility for the city’s criminal system — Franklin County Prosecutor Ron O’Brien handles felony cases, while Columbus City Prosecutor Zach Klein has jurisdiction over misdemeanors. Both made small steps towards helping people behind bars as the coronavirus spread throughout the country, but fell short of making the deep changes necessary to save lives.

In late March, Klein announced that his office was already working on criminal justice reform that would “jail only those that need to be locked up,” without providing any details on who that would include. He also expressed concern about crafting blanket policies for release. Instead, jail drops between the start of the pandemic and March 24 largely flowed from sheriffs using alternatives to arrest more often to avoid bringing people to jail.

O’Brien has taken a few steps in the right direction, including limited court proceedings and only pursuing new, serious felonies. However, he did not proactively review cases involving people serving their sentences. Moreover, O’Brien expressed concern about not being more involved in court decisions to release eight youths from a juvenile detention center where the outbreak struck nearly half of the incarcerated youth and about a quarter of the staff. 

These small gestures toward release simply do not go far enough.

15. Charlotte, North Carolina 

Charlotte’s Spencer Merriweather quickly worked to change his pretrial policies in response to COVID-19. At the beginning of the pandemic, his office released a statement saying they have and will continue to work diligently to ensure that the only people in pretrial custody during this crisis are the people he believes pose a risk to public safety. Merriweather claims the initiatives launched by his office to limit pretrial custody of people accused of nonviolent offenses have reduced incarceration by 14 percent since the start of the pandemic. 

Although he has shown flexibility on pretrial policies, Merriweather has not focused at all on those already serving sentences, even as nearby prosecutors do. Decarcerate Mecklenburg, a coalition of community activists, attorneys, and religious leaders, held rolling protests in vehicles circling Mecklenburg County Detention Center, the District Attorney’s Office, and Charlotte-Mecklenburg Police headquarters, demanding in part that Merriweather release people held on bond along with those with six months or less on their sentence, pregnant women, and everyone over 50 years of age. 

Without action for those vulnerable but already serving time, Merriweather is leaving hundreds if not thousands of people behind bars to face a deadly virus. In fact, in late July, more than 40 people at the Mecklenburg County Detention Center have tested positive for Coronavirus.

Prosecutors Disappoint During Pandemic — 2nd Edition

As the COVID-19 pandemic threatens to become a death sentence for people trapped in prisons and jails across the U.S., the actions — or inaction — of prosecutors to decarcerate have had a tangible life or death impact. We examined the responses from prosecutors in the 20 biggest cities in this country. This is the second post in the series. You can read the first here.

6. Philadelphia, Pennsylvania 

Philadelphia’s Larry Krasner’s response during this pandemic has been both frustratingly slow and limited. After COVID-19 had already reached the city, his office was still considering ways to alleviate the local jail population. In March, Krasner signed onto a national joint statement urging local officials across the country to stop admitting people to jail, when they pose no serious risk to the physical safety of the community. Then, when turning to action in his own office, he ultimately instructed his office to limit bail requests to serious cases, asked his prosecutors to consider the virus in making charging decisions, and agreed to work with public defenders to identify who could be released from jail

But results came slowly. By April 3, only about 7 percent of the city’s approximately 5,000-person jail population had been released — a smaller percentage than virtually every other major city in America. Krasner has pointed to judicial inaction as a barrier to success, but judges point back to his office, citing that he took several weeks to approve lists of incarcerated people for release. Moreover, Krasner ran for office campaigning for and has already implemented bail reform policies requiring recommendations of the minimal necessary terms of release for people awaiting trial, but court watchers found in 2019 that Philadelphia prosecutors consistently recommend more than what the court deems necessary. Even through the coronavirus peak, where each bail set could be a death sentence, court watchers have found that the rate of cash bail stayed consistently between 40 to 50 percent of all cases. 

7. San Antonio, Texas 

Early on, San Antonio’s Joe Gonzales embraced the need for decarceration in response to the coronavirus. In March, Gonzales signed onto a national joint statement urging local officials across the country to stop admitting people to jail, where there’s no serious risk to the physical safety of the community. He also challenged Governor Abbott’s jail order, which limited the release of individuals who are incarcerated to those who can pay bail, as a threat that would overcrowd local jails at a dangerous time. Moreover, he asked his office’s prosecutors to lower bail requests for people accused of nonviolent offenses. 

But Gonzales could have done more. As a prosecutor, he could have focused less on getting through as many cases as possible, and more on lowering the amount of cases there are to begin with. Unfortunately, Gonzales continued to insist that grand juries should meet to allow charges to proceed rather than dismiss them. A more decarceration-oriented approach would have been for Gonzales to dismiss a larger swath of cases, especially where individuals are at high risk of contracting the virus, or don’t pose a safety risk to the general public. 

8. San Diego, California 

As the coronavirus spread through the country, San Diego’s Summer Stephan announced in late March that her office was working closely with the local sheriff’s department to identify people in jail to approve for release. Stephan said the offices would focus particularly on those who are medically fragile and vulnerable, whether pretrial or already serving their sentence. 

However, public defenders believe Stephan’s office is not doing enough. For example, in April, California’s Judicial Council set bail at zero statewide for most misdemeanor and lower-level felonies in an attempt to limit the further spread of the virus. Despite these efforts aiming to reduce the number of people who enter jails, Stephan tried to circumvent this rule, arguing in a letter to the Chief Justice that the rule needed a carveout that would allow for prosecutors to argue that a person’s criminal history should prevent release more often, and add conditions for those who are able to avoid jail during the pandemic.

9. Dallas, Texas 

Dallas District Attorney John Creuzot swiftly decided that decarceration was the best route to slow the coronavirus in jails. In March, he signed onto a national joint statement, urging local officials across the country to stop admitting people to jail so long as public safety is unlikely to be harmed. The following month, he joined three other Texas prosecutors in challenging Gov. Abbott’s jail order, which limits the release of people to those who can pay bail. Creuzot, for his part, announced that his office has worked with defense attorneys to identify who could be released pretrial and criticized police officers for continuing to arrest people for minor charges such as drug possession.

Unfortunately, releases from the county jail have been slow, to Creuzot’s frustration. In fact, in March, the jail held almost 1,000 people over its usual average — at the height of the pandemic. Unfortunately, by April 26, the jail’s population had only dropped by 500, from 5,879 to 5,309, and had one of the highest numbers of incarcerated people in the state who tested positive for the virus. 

Despite his expressed frustrations and advocates demanding reform to help people trapped in jail, Creuzot did not publish changes to his office’s COVID-19 decarceration policies that would leverage his authority to support declining charges, releasing people pretrial or post-conviction, or recommending non-incarceration sentences. 

10. San Jose, California 

Santa Clara County, which encompasses San Jose, was among the first places to report cases of the coronavirus. Yet San Jose’s Jeff Rosen has not taken much action during the pandemic. Certainly, his office has embraced some change — prosecutors there report they are no longer considering risk of future property crimes worth keeping someone in jail pretrial, reviewed and agreed to 150 people getting released whom they had already argued should await trial behind bars, and were identifying people serving short sentences who should leave early to alleviate jail populations. While steps in the right direction, each of these actions is quite limited. 

Moreover, Rosen was far more vocal about policies others were passing to help slow the virus’ spread in jails than his own efforts. For example, he publicly expressed reservations about pretrial releases in April, when he admitted concerns about a recent court order that would allow people accused of misdemeanors and non-violent felonies to be released before their trials without bail. 

Not taking enough initiative may be par for the course for Rosen. Even before the pandemic, public defenders have thrown mud at Rosen for maintaining stark racial disparities in his office’s decisions and influences over who goes to jail and who doesn’t. While Rosen has discussed the issue at length, his inaction — much like his limited action during COVID-19 — speaks volumes. 

Communities Deserve Better Than Bayonets and Grenade Launchers: The Defense 1033 Program Must End Now

Police do not need an 18th Century infantry sword to “protect and serve” communities. Nor do they need Mine Resistant Ambush Protected Vehicles (MRAPs), grenade launchers, or other weapons of war. Despite the dangerous nature of these weapons, local police departments continue to have access to them, free of charge, through the Department of Defense 1033 program. As we face a past due reckoning over our nation’s policing practices, it is time our leaders take the steps necessary to prevent these weapons of war from being used on the nation’s people, protestors, and Black and Brown communities.
 
Last week, the Senate decided to limit reforms to the 1033 program to just bayonets, tanks, weaponized drones, and some grenades. “Modest” would be a charitable way to describe the amendment to the defense authorization bill offered by Senate Armed Services Chairman Sen. Jim Inhofe. Weaponized vehicles and armed drones were never transferred under 1033, and most grenades can still be secured through the program, so that leaves bayonets as the most significant reform in this package.
 
The House could have taken up amendments to end or rein in 1033 last week with proposals from Reps. Nydia Velázquez and Hank Johnson. Instead they skipped the opportunity for real reform by passing on those amendments. The Senate voted down a more meaningful 1033 amendment from Sen. Brian Schatz. Despite passing Rep. Johnson’s Stop Militarizing Law Enforcement Act last month with the Justice in Policing Act, it seems Congress caved to pressure from the law enforcement lobby to leave 1033 reforms out of the must-pass defense bill.
 
With the administration maintaining militarized federal agents in Portland, and following their violent attack on protesters in Lafayette Square, Congress should take every oversight and legislative action available to stop the Trump-Barr “law and order” roadshow. This administration has followed those vile attacks with promises to “surge” federal law enforcement in Kansas City, Chicago, Albuquerque, Philadelphia, Cleveland, Detroit, Milwaukee, Baltimore, and Oakland. We can also expect to see the administration’s response in Portland replicated in Seattle.
 
If this dispatch of federal agents throughout the country looks anything like Portland, this means more unidentifiable federal agents in camouflage, using tear gas, rubber bullets, and pepper balls in their war against protestors. As federal agents bring their warrior mentality to tackle “violent crime” through Operation Legend and Operation Relentless Pursuit, it is essentially old fashioned over-policing, with its trademark profiling and excessive force.
 
The federal government has opened up its war chest to federal, state, and local law enforcement since 1990, transferring $7.4 billion dollars of military weapons and equipment to date. While some limited reforms that provided transparency were achieved under the Obama administration and through defense authorization bills in more recent years, 1033 has continued to put military weapons in the hands of law enforcement since the program first came under scrutiny during the protests that followed Michael Brown’s death in 2014, to the present day protests that followed George Floyd’s death.
 
The 1033 program is the vehicle that enables militarized responses against protestors, at the Southern border, and to advance the failed drug war. The program instigates the “surge” of various federal law enforcement that have been deputized to “lay down the law” in Portland and cities throughout the country. It is beyond time to end the 1033 program and the wave of brutality, racialized policing, and curtailing of civil liberties that it leaves in its wake.

Prosecutors Disappoint During the Pandemic

From the outset of the COVID-19 crisis, it was clear that the impact on people living and working in jails and prisons was potentially catastrophic. Advocates, including the ACLU, were sounding the alarm by early March in the United States. Five million people cycle through jails every year — where people live in close quarters and lack basic sanitary supplies — creating a petri dish for the transmission of COVID-19. Of course, prison walls can’t contain the virus — which can just as easily leave those facilities and spread into surrounding communities and beyond.

Swift action from every criminal system stakeholder — from police and public defenders to judges and corrections officials — was necessary to prevent a health crisis behind bars. The person with the most power to increase or decrease incarceration rates, the prosecutor, had the most opportunity to spur action by protecting people from unnecessary contact with the criminal legal system.

Once COVID-19 reached the United States, prosecutors should have swiftly used their immense discretion to reduce the number of people who are held pretrial or were sentenced to a confined facility, especially those most vulnerable. This includes outright dismissing low-level cases, recommending release without bail before trial, making full use of available diversion programs or alternatives that don’t involve confinement, offering non-confinement sentences in plea bargaining and sentencing recommendations, and supporting the release of particularly vulnerable people from jails and prisons.

Yet, despite early warnings, COVID-19 has raged throughout U.S. jails and prisons. Tens of thousands of people behind bars have tested positive for the virus, and hundreds have died — the result of sluggish and insufficient efforts from all criminal legal actors across the country.

As COVID-19 levels continue to spike around the country, prosecutors remain best poised to coordinate with all system stakeholders to slow the spread inside jails and prisons. In order to do so effectively, they must reflect on the policies they’ve incorporated so far, analyze their results, and identify new ways they can better protect people in jails and prisons to ensure contact with the system does not result in death.

This analysis series focuses on the 20 largest cities in the United States, and the policies local prosecutors implemented there to slow the spread of the virus into jails and prisons. This is the first post in the series.

1. New York, New York
New York City is home to five district attorneys — one in each borough. After hearing alarms from advocates as COVID-19 reached the city, many of the NYC prosecutors agreed to support decarceration to fight its spread in jails. In March, Manhattan’s Cy Vance and Brooklyn’s Eric Gonzalez signed onto a national joint statement urging local officials across the country to stop admitting people to jail when there was no serious risk to the physical safety of the community. The same month, Gonzalez took individual action to save lives, announcing his office would stop prosecuting low-level offenses that don’t jeopardize public safety. By May, three other borough prosecutors joined him and vowed to no longer prosecute social distancing arrests, though a recent article uncovered thousands of protest-related summons that they have not intervened to dismiss despite having the authority to do so.

While it remains unclear the extent to which these initiatives actually slowed jail intakes, the city reported that over 1,500 people were released from the city jails between the start of the pandemic and April 10. City prosecutors played a role, proactively reviewing the circumstances of each person in jail related to a case from their office and responding to both city and defender requests for review to determine whether to consent to release. Almost all of these offices regularly reported their consent numbers publicly — though the Staten Island DA’s office did not respond to repeated requests for their consent data, preferring to keep its COVID-19 policy actions behind closed doors.

Despite these efforts, many people who were vulnerable to the virus were left behind. On April 17, the Legal Aid Society filed a lawsuit against Vance’s office, calling for the release of 76 incarcerated New Yorkers that the office had been unwilling to consent to release previously. A few days earlier, Queens’ Melinda Katz drew criticism when Walter Ance — a man who had been serving time while awaiting his trial for over a year — died handcuffed to a bed after Katz’s office refused to consent to his release, despite his high risk of contracting the virus due to his ongoing health issues. In May, Staten Island’s McMahon penned an op-ed urging advocates to stop demanding drastic declines in jails, claiming that doing so would harm public safety.

Unfortunately, these jail declines did not stop COVID-19: As of April 13, Legal Aid reported that 7.8 percent of incarcerated New Yorkers tested positive for COVID-19 — a percentage almost six times higher than the city’s population.

2. Los Angeles, California

Los Angeles County District Attorney Jackie Lacey leads the largest local prosecutorial office in the nation. In mid-March, Lacey directed her office to consider individual health risks, delay filing new cases, consider recommending release for people awaiting trial for nonviolent crimes, and expand the use of pre-filing diversion.

By the end of March, LA County had already released over 1,700 people. But Lacey’s policies may only tell part of the story — local sheriffs and public defenders also actively identified and released people from jail in reaction to the pandemic. In April, California’s Judicial Council set bail at zero statewide, temporarily ending wealth-based, pretrial incarceration for most misdemeanor and lower-level felonies in an attempt to limit the further spread of the virus.

Lacey’s office directives leave wiggle room for significant, life-endangering exceptions. For example, despite the office’s directive to avoid pretrial detention during this pandemic, LA County prosecutors have carved out an exception to pursue bail for people accused of looting. Moreover, in an April email obtained by HuffPost, a deputy district attorney noted that the office would consider an overly broad definition of “looting” so that it includes thefts involving property valued at $950 or more — a value that an iPhone 11 Pro alone surpasses. George Gascón, who is running to replace Lacey, accused her office of continuing to pursue low-level cases despite the pandemic, including panhandling, drinking in public, driving with a suspended license, drug possession, and loitering. Rather than addressing these critiques head-on, Lacey declined an invitation to a town hall hosted by justice organizations, including the ACLU of Southern California, on May 12 to discuss LA district attorney policies during COVID-19 with the public.

3. Chicago, Illinois

Early on in the outbreak, the State’s Attorney for Cook County, Illinois Kim Foxx committed to working with local sheriffs and public defenders to identify paths toward decarceration to slow the spread of the coronavirus. For her contribution, on March 20, her office announced it would not be prosecuting new low-level drug offenses during the pandemic. Her office was also reviewing thousands of cases to identify people to recommend release from jail when they would not pose a threat to public safety in emergency bail hearings. She later crafted a policy not to prosecute individuals charged with minor offenses related to peaceful protests, a move that kept people out of harm’s way in jails.

Unfortunately, these changes did not always reach the courtroom. The public defender’s office has publicly called out that local prosecutors have not agreed to a majority of motions to reduce bond or release defendants from the Cook County Jail during the outbreak. Foxx has been clear that her office will not support mass release, but is working hard to find people who are ideal for immediate release, and hopeful that this effort will clear the path to broader and long overdue bail reform in the future.

4. Houston, Texas

In the early days of COVID-19, defenders criticized Harris County, Texas District Attorney Kim Ogg’s slow response to the pandemic, including her delayed remote working office policy. While local officials across the state began to release people awaiting trial to slow the spread of the virus, Ogg overtly fought judicial efforts by filing an emergency motion to block judges from considering “public health matters” when deciding bail. In April, a lawyer representing misdemeanor judges in a cash bail suit sent a letter to DA Ogg, accusing her of also misrepresenting Gov. Abbot’s executive order on limitations of release during the pandemic to deny the release of people on low-level offenses.

Ogg’s efforts to prevent decarceration have led to drastic consequences. The state’s system is now at a crisis point as a backlog of people crammed in local Texas jails builds up — both those held pretrial and those waiting to transfer to prison are trapped together despite the pandemic’s threat.

5. Phoenix, Arizona

Maricopa County, Arizona, the fourth most populous county in the nation and home to Phoenix, has successfully cut down the number of people going to jail while awaiting trial to slow the spread of the coronavirus. Many of these reduced filings have been credited to the Maricopa County sheriff and the Phoenix police chief, who have developed policies to issue summons and citations for many offenses on the front end of the system. While Maricopa County Attorney Allister Adel agreed to pause the filings of some cases, she made clear that these cases would not be dismissed at any point, leading advocates to fear a flood of backlogged cases could inundate the system in the near future. Further, vowing to prosecute low-level cases related directly to the pandemic’s impact on the economy, such as theft or trespassing, does more harm than good for the community.

Adel certainly understood some need to alleviate the number of people behind bars during the pandemic. She directed her office to consider this broader public health needs when making charging decisions and to respond appropriately to defense attorneys’ requests for release. But advocates, including the ACLU of Arizona, asked her early on to implement a variety of more specific proposals, which Adel declined to even meet to discuss. Instead, she authored an op-ed vilifying advocates’ intentions and arguing that people in prison should not be released — a sign that she does not grasp how this virus can turn jail stints into death sentences.

How I Finally Met John Lewis

The first time I didn’t meet John Lewis was at a 2010 gala dinner celebrating the 90th anniversary of the ACLU of Massachusetts.

As President of the ACLU, I had been invited to present a civil liberties award to Lewis, who had agreed to accept the award and give the keynote address. On the train to Boston for the dinner, I received an email from the affiliate’s executive director, Carol Rose, telling me that Lewis would not be able to attend the dinner after all and asking if I would deliver the keynote speech instead.

It was easy enough for me to choose a subject: John Lewis, whose reason for not attending the dinner was that he needed to stay at his post in the House of Representatives to vote for the repeal of the Don’t Ask Don’t Tell law. Lewis recorded a video apologizing for his absence. The audience not only forgave him, but honored his decision to act rather than speak as a reflection of his abiding commitment to the fight for equality. Like the ACLU, Lewis connected the dots between racial equality and LGBTQ equality: No one should suffer discrimination on the basis of who they are. Just as he had in the 1960s, he devoted himself daily to doing everything he could to make that aspiration a reality.

The second time I didn’t meet John Lewis was in the Capitol Building, in February 2013. After attending a meeting on behalf of the ACLU, I observed the crowd gathered for the installation of a statue of civil rights icon Rosa Parks. I learned later from colleagues that Lewis was not present for that occasion as, again, he had more urgent business. He was across the street at the Supreme Court, watching the oral argument in the case of Shelby County v. Holder.

Rather than celebrating a symbol of how far the country had come in the fight against racism, he chose to witness the latest chapter in Alabama’s campaign for retrogression. Alabama was attacking a central provision of the Voting Rights Act of 1965, the essential civil rights law he and his colleagues had forged through their persistence and courage — even through their brutal treatment on the now-infamous bridge in Selma, Alabama. As Lewis must have feared, the court chose states’ rights over voting rights and eviscerated that hard-won landmark law. Lewis’s response was to stay at his post in the House and keep fighting.

I finally met Lewis quite by accident in a parking lot at the Atlanta airport. I was heading for a flight home after chairing a national ACLU board meeting when a colleague noticed Lewis exiting the building we were about to enter, heading for a car at the curb. Lewis was more than gracious in delaying the final leg of his trip home in order to chat with our group of civil libertarians from around the country, and kindly posed for numerous photos and selfies. On learning about our ACLU connection, he expressed his admiration of our work for civil liberties as we expressed our awe of his own.

Lewis never strayed far from the nexus of the fight against injustice — whether in the streets, the courts, or Congress. His absence in one room, I found, guaranteed his presence in another, where a more consequential fight for equality was usually taking place.

John Lewis was and will continue to be a force in all of our lives, reminding us that the arc of justice does not bend easily — and doesn’t always stay bent. As ACLU founder Roger Baldwin memorably said, no civil liberties battle ever remains won. We honor John Lewis best not by our words, but by recognizing that awards, obituaries, and commemoration ceremonies can fuel but must not distract from our ongoing actions to preserve and promote equality for all.

D.C. Statehood is a Racial Justice Issue

As the movement for D.C. statehood gains undeniable momentum, anxious cries from its detractors are reaching a fever pitch. Following the House of Representatives’ recent approval of the Washington, D.C. Admission Act, H.R. 51, which would finally grant statehood and full voting representation in Congress to over 700,000 people living in our nation’s capital, critics emerged in the Wall Street Journal, the National Review, and elsewhere to wring their hands over the alleged “partisan advantage” that statehood would bring. Further, they argued, D.C. statehood can only spring from a constitutional amendment.

This focus on the potential partisan leaning of the new state’s federal delegation misses the point: D.C. statehood would correct an overt act of racial voter suppression with roots in the Reconstruction era. In 1867, President Andrew Johnson vetoed a bill granting adult citizens of the District — including Black men — the right to vote. Congress overrode the veto, granting significant political influence to Black Washingtonians. But just as Black voters started to exercise their power, Congress replaced D.C.’s territorial government with three presidentially appointed commissioners.

The goal of that move was obvious: disenfranchising an increasingly politically active Black community. As Sen. John Tyler Morgan of Alabama explained in 1890, after “the negroes came into this district,” it became necessary to “deny the right of suffrage entirely to every human being.” As he put it more simply, and shamefully: It was necessary to “burn down the barn to get rid of the rats.” 

In one cautionary opinion piece, attorneys David Rivkin and Lee Casey raise some policy concerns against the House bill. But their stated arguments are not constitutional barriers. Relying on Attorney General Robert F. Kennedy’s 1964 memo opposing D.C. statehood, the authors conclude that “abolishing the permanent seat of the federal government would be a profound change — the sort that can be accomplished only with a national consensus implemented through a constitutional amendment.” But H.R. 51 does not abolish the national capital — it only shrinks it, making a new state out of most of the resized District’s surrounding areas.

Congress can do this, because the Framers knew how to say what they meant. They gave Congress authority to “exercise exclusive legislation in all cases whatsoever” over the District, stating only that it could not be larger than ten square miles. That sweeping authority includes the power to shrink the District to less than its current size. As Viet Dinh, Assistant Attorney General under President Bush, explained to Congress in 2014, Kennedy’s policy concern “is just that: a policy concern,” and would not override a constitutional act of Congress.

There’s no better proof that the Framers meant to give Congress the power to shrink the District’s boundaries than the fact that it immediately did so after the District was first established. Congress gave back most of Arlington and Alexandria to Virginia in 1846. But the first Congress also changed the District’s configuration in 1791, less than four years after the Constitutional Convention. This bolsters the constitutionality of the House bill, because, as the Supreme Court said in Marsh v. Chambers (1983), acts of the first Congress offer “contemporaneous and weighty evidence” of the Framers’ intent. And when the court addressed the 1846 retrocession in Phillips v. Payne (1875), it strongly hinted that Congress had vast authority over the District’s boundaries, saying the case involved “action of the political departments” that “bound” the courts.

Nor does the House bill violate the Twenty-Third Amendment, which gives the District of Columbia three votes in the Electoral College. That amendment would lead to a curious result: It would give the few residents of the smaller, reshaped national capital outsized influence in presidential elections. But there’s no constitutional conflict between the House bill and the Twenty-Third Amendment. As Viet Dinh explained, “the Constitution is not violated anytime the factual assumptions underlying a provision change.” Indeed, the Amendment gives the current District three — and only three — Electoral College votes even if its population somehow quadrupled tomorrow, and the bill provides an expedited process for removing those three electors. And importantly, as noted by Rivkin and Casey, the House-passed bill establishes expedited procedures for the House and Senate to repeal the Twenty-Third Amendment.

Critics continue to ignore the essential argument in favor of statehood: ending the continued disenfranchisement of a non-minority Black jurisdiction that has left hundreds of thousands of Americans without representation in Congress. They also overlook the fact that in 2016, almost 80 percent of D.C. voters supported statehood in a referendum.

Admitting a new state will always have political implications. That’s why the Framers fully left the matter to Congress’s discretion. Rivkin and Casey are right that D.C. statehood would be a “profound change,” —  a profound, constitutionally viable change — that would bring our country one step forward to an inclusive democracy.

Incarcerated People are Still Dying of COVID-19, and We’re Still Fighting to Save Them

The recent spikes in COVID-19 cases across the country are a stark reminder that the pandemic is still very much with us. As John Oliver recently noted, nowhere is that more true than in jails and prisons. The top five clusters of cases in America, and eight of the top 10, are in corrections facilities. The reason is simple: Most law enforcement officials, judges, and lawmakers have been unwilling to use their capital to protect these apparently expendable human beings — even though doing so will protect all of us and help eradicate the virus faster. In other words, politics and fear have trumped public health and the Constitution, and now we’re all worse off.
 
In response to the pandemic, the ACLU has embarked on one of the largest legal and advocacy mobilizations in our history. Alongside our affiliates and partners, we have filed over 30 lawsuits and pressed advocacy in every state to release vulnerable detainees and force officials to implement social distancing, augment hygienic practices, and expand testing. By many accounts, we are winning. In response to these suits, officials have improved conditions inside and done so faster than they would have otherwise. This has unquestionably saved lives and slowed the spread of the virus.
 
For example, we sued Oakdale Federal Correctional Institution in Louisiana — where five men died in the two weeks before filing — and forced the Bureau of Prisons to accelerate its review of medically vulnerable prisoners for home confinement. When that effort failed and cases continued to spike, the warden was fired. Across the federal prison system, we have exposed Attorney General Bill Barr and his BOP’s sluggish, cruel response to the pandemic, extracting improved conditions, teeing up compassionate release petitions, and spurring a Congressional investigation.
 
We also sued the Dallas County Jail for failing to protect incarcerated people from a rapidly-spreading COVID-19 outbreak. Immediately after we filed, people living and working at the jail described a “scurry of activity,” once jail officials realized their actions would come under scrutiny. Masks were distributed for the first time, sanitation measures adopted, and soap and hand sanitizer provided. We elicited testimony revealing that county officials were refusing to release sick people even after they had paid their bail, and successfully pressed for their release upon uncovering this practice.  
 
In Memphis, Tennessee, we sued the Shelby County Jail a day after jail officials forced dozens of people who had tested positive for COVID-19 back into general housing, and pepper sprayed those who protested the move out of what they felt was a moral obligation not to infect others. While the case is ongoing, the jail has been ordered to undergo an independent inspection and produce a list of the many medically-vulnerable people it is incarcerating in the midst of this deadly pandemic.
 
Despite these victories, not all judges have risen to the occasion. For example, the federal prison at Butner, North Carolina houses some of the sickest and most COVID-vulnerable people in the federal system. By mid-June, 21 people were dead and more than 600 had tested positive. The judge called these numbers “tragic,” and yet held that they were somehow not proof that the prison had acted unconstitutionally — even though one of the leading Supreme Court cases in this arena requires wardens to prevent the spread of communicable disease. There are now 26 dead at Butner, including one staff member. In another case, a federal court of appeals even ruled that it was too harmful to the jail to require officials to provide soap and disinfecting supplies to incarcerated people, because the county may feel it is better to divert those supplies elsewhere. And in the Oakdale case mentioned above, a federal judge ultimately ruled against the prisoners in part because he was afraid of becoming a “superwarden” of the facility.
 
These and other judges have defied public health consensus and denied the limited remedy of temporary release. Some of those who even considered release down the road have been promptly reversed or stayed, including by the U.S. Supreme Court.
 
These disappointing decisions on the question of detainee release highlight two fundamental problems. First, lawmakers have deliberately stripped incarcerated people of the ability to have their day in court through procedural barriers such as the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act. Both laws make it much more difficult for incarcerated people to seek release from unlawful imprisonment. Second, judges have placed unjustified faith in the machinery of incarceration and deferred to officials who, for far too long, have subjected our clients to inhumane conditions out of plain sight.
 
Together, these factors allow judges tasked with the difficult work of evaluating these cases to adopt a hands-off approach to enforcing the law, and to avoid facing the tragic reality of mass incarceration during a pandemic. The truth is that our clients are being subjected to unconscionable conditions and are unable to keep themselves safe. They and their loved ones are terrified, and the Constitution requires judges to protect them.
 
This reticence to do what is right — this state-sanctioned relegation of human bodies, especially Black bodies, to death and disease — is not specific to COVID-19 and cannot be assessed in a vacuum. Unfortunately, we have long had a legal system fueled by structural racism that devalues “violent convicts” (never mind that many are neither violent nor convicted). At every turn, our system is animated by the dehumanization and criminalization of people, particularly people of color. This gives cover to judges when they fail to grant meritorious COVID-19 emergency requests. This enables prosecutors to bring aggressive and unnecessary charges against people to coerce them into pleading guilty instead of exercising their right to trial.
 
Most recently, this racism and subverting of humanity led to a Minneapolis police officer to crush George Floyd’s windpipe and kill him. It allowed an Attorney General to kneecap the federal consent decrees that attempt to prevent such killings. It allowed white vigilantes to hunt down Ahmaud Arbury on a jog. This same racism and inhumanity allowed a future president to call for the death penalty for five innocent Black boys in Central Park. And it allowed our jails and prisons to fill up with 2.2 million people in the first place, making them so crowded and filthy that COVID-19 will always be a problem — unless judges, jailers, police, prosecutors, and politicians are forced to confront this systemic human devaluation head on. 
 
This fight to prevent people from dying of COVID-19 in jails and prisons is just one urgent component of the broader movement to end mass incarceration, over-policing, and state-sanctioned anti-Black violence. This work in and out of the courts — including in Congress, in statehouses nationwide, and at the ballot box — must continue until no human life is treated as expendable by our governments.

10×10: Join THE FIGHT

THE FIGHT is an inspiring, emotional tribute to the courtroom heroes defending our civil liberties. The film is more than an insider look at some of the most important legal battles of our time; above all, it shows us that we can all take a stand against injustice. We can all become heroes in our own lives, in our own ways. In honor of 100 years of the ACLU, commit to 10 actions that take 10 minutes each to join THE FIGHT.

1. We are facing an unprecedented health crisis as COVID-19 continues to impact communities around the world. While the pandemic shouldn’t be a political issue, with ongoing federal primaries and the general election quickly approaching, the coronavirus is also impacting our politics. We need to protect not only our health, but our civil liberties as well — including the fundamental right to vote.

For many, the safest way to vote while safeguarding your health during this time will be to vote by mail or to early vote. Look up your state with the ACLU’s Vote By Mail Campaign to learn how to apply for an absentee ballot, important deadlines, and voting practices for your area. Already applied? Reach out to three friends and ask if they’re registered to vote by mail. If they’re not, walk them through it.

Learn about vote by mail this election cycle.

2. Now that you’re prepared to vote safely, take action to ensure that everyone around the country has that right too. Congress must address COVID-19’s impact on the 2020 elections by ensuring everyone can vote by mail and expanding early voting — to safeguard our health and our democracy. Visit this page to send a message to Congress and urge them to pass legislation that would require all states to provide vote at home and early vote options during a public health emergency.

3. This June, the Supreme Court ruled that under current federal law, LGBTQ+ people cannot be fired from their jobs just because of sexual orientation or gender identity. This ruling is historic, but there are still critical gaps that must be addressed. The Senate must follow the House of Representatives in passing the Equality Act — and build upon the momentum of the Supreme Court’s ruling. Send a message to your senator, urging them to support the Equality Act. Find out who your senator is, and send your message here.

Congress: Pass The Equality Act | American Civil Liberties Union

4. THE FIGHT shows us how the lawyers of the ACLU took a stand in key cases. Wondering whether your elected official voted in line with the ACLU’s positions in recent years? Visit the ACLU’s Legislative Scorecard to find your member of Congress’ record during the 116th Congress, and previous sessions. Know your member of Congress’ position on key issues. The accountability of your elected officials has never been more important, so take 10 minutes to read up on your Congressperson and see where they stand.

5. COVID-19 has highlighted the lack of resources allocated to many communities in the United States. Currently, tens of millions of immigrants — including some green card holders, DACA recipients, TPS holders, and undocumented people — are being denied access to COVID-related testing and treatment. Public health experts agree: We need universal access to testing and treatment to stop the spread of this virus. Message your member of Congress and tell them to make COVID-related testing and treatment available under emergency Medicaid and provide cash assistance to everyone who files taxes, and tell Trump and all state governors to free people detained in immigration jails during this pandemic.

Stop the Spread of COVID-19: Release Vulnerable Communities from Immigrant Detention, Jails, and Prisons

6. The importance of the census is highlighted in THE FIGHT, as the ACLU goes to court to block the inclusion of a citizenship question that would threaten the safety of millions of immigrants. The federal government uses census numbers to allocate more than $675 billion in federal funds for community programs and services; Congress uses the data to determine how many seats your state will have in the House of Representatives. Visit 2020census.gov to fill out this year’s census, providing information that will lead to funding, grants, and Congressional seat allocation for your area.

7. The essential calls for justice on behalf of George Floyd, Breonna Taylor, Tony McDade and all Black lives have made it clearer than ever: The policing institutions in our country are rooted in systemic racism and violence. We cannot allow it to continue. Join Black Lives Matter and its millions of advocates by demanding real transformation — call upon your cities and states to immediately divest from the police and reinvest in the Black and Brown communities they unjustly target. Sign Black Lives Matter’s petition here to add your name to this movement, and learn about the ACLU’s commitment to support BIPOC led initiatives.

Divest From Police. Invest in Black and Brown Communities.

8. The film follows one Jane Doe’s fight to access reproductive health care in government custody. Reproductive rights remain under attack and the struggle for gender equal medical care is ongoing — as further illustrated in the Supreme Court’s most recent ruling in Trump v. Pennsylvania. Today you can take action toward health justice by urging Congress to pass the Women’s Health Protection Act, which is legislation to provide a nationwide safeguard against abortion bans and medically unnecessary restrictions that push abortion care out of reach.

Defend Abortion Access for All

9. Now that you’ve taken action to ensure you’re ready for the 2020 election, lend 10 minutes to helping other people learn how to vote, educate themselves, and get involved: Sign up to volunteer with People Power, the ACLU’s platform for grassroots action. You can volunteer by making calls, sending texts, or translating materials into Spanish — for as little or as much time as you’re able. Sign up here.

10. Fighting for the issues you believe in doesn’t have to happen in a courtroom; it can happen at the dinner table, in a classroom, or even in line at the grocery store. Pledge to start an important conversation with a friend, a family member, or a colleague, and talk about the issues that matter to you.

***

Did we miss something in this list? Use the hashtag #thisishowifight to share how you take action, and add your voice to the conversation. You can also use the film’s social media toolkit to help spread the word, and motivate others to join THE FIGHT.

https://www.youtube.com/embed/eK8Pj4kN0YQ

Decarceration and Crime During COVID-19

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.) 

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

Note: Police data is often dynamic, and constantly updated based on new reports. Reported incidents may have changed since time of analysis (early July, 2020). Note: Police data is often dynamic, and constantly updated based on new reports. Reported incidents may have changed since time of analysis (early July, 2020).

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years. The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

The team’s findings were in line with recent reports that documented certain types of crime have gone down during the COVID-19 pandemic, which many attribute to stay-at-home orders and decreased overall activity. City-level crime trends are complex and influenced by many factors, including temperature, with crime rates typically rising in the summer months. The analysis confirmed that the amount by which a county changed its jail population wasn’t correlated with the amount of change in crime. 

This confirmation comes at a time when reducing jail populations is urgently necessary. The epidemiological model the ACLU developed in partnership with academics in April illustrated the profound risk COVID-19 presents to people in carceral facilities and their surrounding communities. The model found that swift action to reduce jail populations could save lives, but inaction could lead to an estimated 100,000 deaths in jails and the surrounding communities. Since then, COVID-19 has continued to spread rampantly through jails, prisons, and immigration detention centers — more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. Further research has confirmed what we feared: Cycling through a jail is one of the largest risk factors for COVID-19 transmission. For Black and Brown people already disproportionately harmed by the criminal justice system, this system only exacerbates COVID-19’s unequal impact. 

Arresting fewer people and releasing people from jail during a pandemic, as the 29 localities highlighted here have done, has undoubtedly saved lives in jails and in surrounding communities. What’s more, crime was lower this spring in nearly every location, and the amount of decarceration or incarceration appears uncorrelated with crime patterns. No state has gone far enough, and all should continue to reduce their jail, prison, and detention center populations, particularly for those who are most vulnerable. The potentially fatal threat of COVID-19 in jails and prisons, and the risk of transmission between jail staff and the surrounding populations, should be reason enough to release as many people as possible. 

As states struggle to return to “normal,” many life-saving policies are being quietly ended. California rescinded a statewide policy setting bail to $0 for low-level offenses, even as Los Angeles County continues to see record levels of new coronavirus cases. The threat of COVID-19 is still very much alive, and it highlights the arbitrary nature of our criminal legal system. Any and all policies to reduce arrests in light of COVID-19 should extend indefinitely, and should not be replaced with a system of fines and fees. 

The data shows: We don’t have to choose between public safety and public health. Reducing jail populations saves lives, and these reductions must continue.  

METHODOLOGY
  • We found crime data individually for each city or county. A spreadsheet tracking the datasets used for each location can be found here.
  • Because each location’s crime dataset was drawn from separate sources and contained varying categorizations of crime, crime patterns should not be compared between cities. Additionally, because police data is often dynamic and constantly updated based on new reports, incidents may have changed since the time of analysis (early July, 2020).
  • We analyzed only “Part 1” crimes (as defined by UCR) because they represent the offenses most likely to be consistently reported to the police. This classification was often manual, so should be viewed as estimates. Our code to clean and analyze the data can be found here. Some cities report crime data at the offense level, which sometimes includes multiple rows of charges per incident; others report at the incident level, only identifying the individual’s highest offense, and other cities report their data already aggregated at the monthly incident level. For each location with daily data, we aggregated the number of incidents to the month level, using each set of data’s unique identifier to mark one incident of crime. For data with many missing or null unique identifiers, we created a unique identifier based on time, date, and location where possible to reasonably estimate.
  • When calculating the percent change in crimes between 2020 and 2019, we used the average number of crimes between March and May for both years. One exception was Portland, OR, where data was only available through April 2020. We calculated the percent change using just March and April data for both years.
  • We primarily used the Vera Institute’s tracking of jail populations during COVID-19 to calculate incarceration/decarceration rates. We used the dates of 2/29/20 and 4/30/20 to look at change in jail populations. When jail population data on 2/29/20 and 4/30/20 was not available through Vera’s tracking or other public collection efforts, we obtained jail population numbers from local news reports. Date ranges of the “decarceration” time periods in these localities and accompanying alternative data sources are available here.

Permission Required to Change Your Tampon

After three grueling years of law school, aspiring attorneys have one last hurdle to overcome in order to practice law: the bar exam. In normal times, the bar exam is daunting, as the multi-day test determines the professional fates of lawyers-to-be. This year, with the COVID-19 pandemic raging, the bar exam has gone from being unnecessarily burdensome to unnecessarily deadly.

Some states have granted bar admission to graduates of accredited law schools — a policy known as “diploma privilege.” But others are plowing ahead with exams — in-person or remote, on time or delayed. The policies and procedures for these exams are in constant flux. And the civil rights and civil liberties issues presented by this year’s bar exams are extensive.
This year, states are limiting law grads’ access to menstrual products and opportunities to pump breastmilk during the bar exam. This policing of when someone can change their tampon or if and when someone can pump raises serious sex discrimination concerns. 

Take the West Virginia bar exam, for example. “Feminine hygiene products” are explicitly prohibited in the testing room. Instead, the West Virginia Board of Law Examiners (WVBLE) requires those who are menstruating go to proctors to retrieve tampons or pads during the all-day exam. In response to rightful confusion from West Virginia bar examinees, the WVBLE has since stated that “there is no prohibition on bringing menstrual products to the test,” but it remains unclear if test takers can have the products with them in the testing room or not. 

Montana’s policy is even worse: Menstrual hygiene products are not included in the list of permitted items (although “medical items” are allowed), and the exam instructions do not otherwise indicate that these products will be provided to test-takers. And in Nebraska, one examinee was told that she needed permission in order to change her tampon more often than every two hours.

The notion that anyone can use a tampon to cheat would be laughable if it weren’t being used to disadvantage menstruating test-takers. In any event, other states have allowed examinees to bring menstrual products into exam rooms for years without incident.

States are also putting up unnecessary roadblocks for test-takers who are lactating. For example, administrators in Oklahoma refused to extend the 15-minute break for one woman to pump, even though that isn’t nearly enough time to prepare the equipment, pump, and clean and sanitize the equipment. Sadly, this problem isn’t unique to the pandemic: exam administrators have long created roadblocks for menstruating and breastfeeding test takers. But this creates further barriers to new parents entering the legal profession who are already facing an unprecedented lack of childcare.

Blocking access to menstrual products and opportunities to pump breastmilk during the bar exam is also a gender equity issue. First, more often than not, menstrual products are placed in women’s restrooms only. Failing to provide menstrual products in facilities that are accessible to everyone who needs them, including some transmen and non-binary people, leaves some test takers with no access to necessary products at all.

Also, what products will be provided? Menstruation is different for everybody, and those who menstruate know the products that work best for them. Not to mention the privacy concerns raised by needing to disclose personal medical information to proctors. Test takers who are breastfeeding are similarly negatively affected when exam administrators refuse to allow them to safely express breastmilk during the exam at an appropriate time and place, effectively preventing many new parents from sitting for the bar.

Bar examiners should be working to make the legal profession more accessible to those who already face barriers to success in the legal profession — including women, trans and non-binary people, and new parents — not less. Fortunately, some states have already reversed course in response to public outcry. But it shouldn’t take going viral on Twitter for all students to be able to sit for the bar exam in safety and dignity.

Should We Abolish the Police?

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase “defund the police” can be heard in cities across the country. As the concept of slashing police budgets and reinvesting those resources into Black and Brown communities goes increasingly mainstream, a more radical call is also gaining attention: Abolish the Police.

On At Liberty this week, attorney, author, researcher, and organizer Andrea Ritchie and senior staff attorney for the ACLU’s Trone Center for Justice, Carl Takei, joined us to talk abolition, divestment, and what a world without police might look.

“[Abolition is] about recognizing the instinct in all of us to punish people who hurt us, or to seek retribution instead of repair, and to acknowledge that actually in order to create a society that is free from violence, we have to move away from mobilizing the state and giving the state a monopoly on violence to respond to violence,” says Ritchie. “Instead, we need to dig to the root causes of violence and transform those conditions and causes, such that we can all have an opportunity to live in a world free of violence, not just people who are in positions of privilege in the current political, social, economic structure.”

https://api.soundcloud.com/tracks/862651330

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