ACLU News

COVID-19 Deaths in Nursing Homes are Not Unavoidable — They are the Result of Deadly Discrimination

COVID-19 has ripped through nursing homes, psychiatric hospitals, and other congregate settings for people with disabilities. People living in these settings make up less than 1 percent of the U.S. population, but nearly 50 percent of COVID-19 deaths.
 
Some have said these deaths are inevitable. Some have even called for “weeding out the weak” as part of herd mentality. But these deaths are far from inevitable. They arise from decades of indifference, invisibility, and deadly discrimination against the people who live and work in these settings. They also arise from our government’s abdication of its responsibility to regulate and monitor these segregated institutions.  
 
Congregate settings for people with disabilities include nursing homes, psychiatric facilities, and intermediate care facilities for people with developmental and intellectual disabilities. Long before COVID-19, these facilities already had a poor track record with insufficient oversight, poor infection control, under-staffing, and inadequate training. Combined, these conditions created the powder keg. COVID-19 lit the match.  
 
How has this happened? This is the first in a series of ACLU blogs addressing this crisis, in which we will break down the causes at the institutional level and the personal effect on individuals such as staff and residents. The focus today is on the U.S. Department of Health and Human Services (HHS), and its agency, the Centers for Medicaid and Medicare Services (CMS). Together, HHS and CMS are charged with regulating and monitoring the vast majority of the institutions where we have warehoused people with disabilities. HHS is responsible for the primary funding and for ensuring the safety of people in these facilities. And it has failed miserably in the age of COVID-19. 
 
On January 31, 2020, HHS declared a national public health emergency to respond to COVID-19. As a primary response to the pandemic, all of our medical and political leaders demanded social distancing. We closed schools and dormitories, required employees to work from home, and shuttered bars, restaurants, and ball parks. But we did not extend this disease prevention tactic to nursing homes, psychiatric hospitals, and developmental disability facilities. In fact, HHS has done the opposite. It has instructed nursing homes to take new patients without first confirming that they are not infected with COVID-19, and it has waived regulations to help divert people from entering institutions.
 
HHS has mechanisms at its disposal to reduce the overcrowding and dangerous conditions in these institutions. It can increase its funding for Home and Community Based Services and community mental health services, so people can stay in their own homes to get support. It can encourage states to advertise a provision allowing family members — so many of whom are sheltering in place without work — to take their relatives out of nursing homes and get paid to provide their care. And, it could increase the discharged planning process to move those who wish to be back in the community to move there. But it has failed on all counts.
 
HHS also has obligations to step up infection control and safety for the people who cannot yet leave these institutions. But it has not required states to prioritize personal protective equipment (PPE) or testing for staff or residents, and it has failed to increase the consequences for facilities that violate infection prevention measures. As a result, these institutions, rather than being havens from infection, are ‘death pits’ — among the most dangerous places in the country during this pandemic.
 
And finally, HHS should provide transparency, so that individuals and families can decide for themselves whether to enter — or stay — in an institution. Instead, more than four months passed before HHS started to require nursing homes to publicly report COVID-19 infection and death rates. And even this is incomplete — as nursing homes can choose not to report deaths before May 8, and other congregate settings — such as psychiatric hospitals, group homes, and institutions for people with intellectual and developmental disabilities — have no reporting obligations at all. 
 
Yesterday marked the twenty-first anniversary of Olmstead v. L.C., the landmark Supreme Court decision that recognized that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” The court went on to observe that institutional confinement limits every part of a person’s life, and that such confinement “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
 
Today, we filed a petition calling on HHS and its agencies to meet their obligations under Olmstead and under federal law. We are asking HHS to get people out of institutions as quickly and safely as possible, to provide genuine infection prevention and control measures for those who remain, and to provide true transparency as to who is living, working, and dying in these institutions. 
 
HHS must respond. Collectively, we have much more to do. As a society, we must reckon with our relentless marginalization and de-prioritization of people with disabilities and the people who support them. We must look at the tens of thousands of deaths inside congregate care settings as a collective, systemic tragedy. These victims of COVID-19 are mothers, fathers, brothers, sisters, grandmothers, grandfathers — all of us. We must end the disregard and discrimination that took their lives and that threatens — if we do not act quickly — to take many more.

“All Hell Broke Loose.”

When Kishon McDonald saw the video of George Floyd’s murder at the hands of four officers from the Minneapolis Police Department, he could tell it was going to turn the country upside down.
 
“I knew it was going to catch fire,” he said.
 
McDonald, a former sailor in the U.S. Navy, watched over the following days as demonstrations against police brutality spread from Minneapolis to cities and towns across the country, eventually reaching Washington, D.C., where he lived.
 
On June 1, he heard that people were planning to peacefully gather at Lafayette Square, a small park directly across from the White House, and decided to join them. By then, police had begun to attack and beat demonstrators in Minneapolis, New York, and others in states everywhere, escalating tensions as smaller groups broke into shops and set fire to police cars.
 
But when McDonald arrived at Lafayette Square, he found a crowd of a few thousand people cheering, chanting slogans, and listening to speeches. Washington D.C. Mayor Muriel Bowser had imposed a 7 p.m. curfew after clashes the night before, but that was still an hour away.
 
“Everybody there was like, it’s alright, we’re going to be here until 7 o’clock,” he said. “It was a very good energy.”
 
It wouldn’t be long before that would change.

Kishon McDonald, 39, originally of Cleveland, Ohio, poses for a portrait in his neighborhood in Washington, D.C., June 13, 2020. Allison Shelley for the ACLU

In the days following George Floyd’s murder, President Trump had focused his attention on the relatively small number of people who had damaged property, threatening to use the “unlimited power of our military” and tweeting “when the looting starts, the shooting starts.” What the protesters gathered in Lafayette Square that day didn’t know was that he was planning to stage a photo opportunity at a nearby church that evening.
 
Unbeknownst to McDonald, as he and the others chanted “hands up, don’t shoot,” the U.S. Park Police and other law enforcement agencies were just out of sight, donning riot gear and checking the weapons they would shortly use against the crowd to pave the way for the president’s walk to the church.
 
At 6:30 p.m. — half an hour before Washington D.C.’s curfew — dozens of battle-clad officers rushed the protest, hurling stun grenades and firing tear gas canisters, rubber bullets, and pepper balls into the crowd. McDonald says there were no warnings, just an onslaught of violence.
 
“All hell broke loose,” he said.
 
As the deafening explosions from the stun grenades gave way to thick clouds of tear gas, terrified protesters began to run from the batons and riot shields that police were using to force them out of the square.
 
“It was just straight fear. Everybody was scared and running for their lives,” he said.
 
McDonald tried to plead for instructions from the advancing officers, asking them what they wanted people to do. Instead, one threw a stun grenade at him.
 
“As it exploded, hot shrapnel hit my leg,” he said. “It felt like somebody put a cast iron skillet on my leg, it was just so hot. I started jumping up and down trying to get away from it, but shrapnel was going everywhere.”
 
Suffocating tear gas enveloped him and the other protesters, making them gasp and cough as they ran down the street.
 
“I saw a young boy, he must have been about 15, and he was choking a lot. Somebody put a shirt over his face and kind of ran him out,” he recalled.
 
McDonald had seen enough. Bruised from being hit with riot shields and with his vision still blurred from the tear gas, he walked home. In a phone interview with the ACLU, he said that the experience had made him more wary of attending protests, but it also illustrated why he’d gone there to begin with.
 
“It seems like everything is getting to be a military type thing in our society, and we were protesting to calm that down,” he said. “And the message we got is, ‘No, we aren’t calming down.’”

“I hope someone gets held accountable,” he added.

**** Law enforcement officers clearing protesters from Lafayette Square in Washington, D.C., June 1, 2020.Derek Baker

In the wake of George Floyd’s death, Americans poured into the streets to voice their condemnation of police brutality against Black people. The weeks that followed were a milestone in American history, with protests and displays of solidarity reaching towns as small as Cadillac, Michigan, and cities as large as Atlanta. As months of a painful COVID-19 lockdown gave way to incandescent fury over the killing of Floyd and the violent response of the Minneapolis Police Department towards the initial protests, a few people went as far as burning police precincts or destroying upscale shopping districts.
 
The vast majority of protests, however, were almost entirely peaceful.
 
Still, police departments across the country deployed staggering levels of violence against protesters. On social media, the world watched a near-instantaneous live feed of police in dozens of cities firing tear gas, rubber bullets, and other projectiles into protests, using pepper spray against protesters and journalists alike, and beating people with batons.
 
This widespread and indiscriminate deployment of what are often called “less-lethal” weapons – LLWs – injured countless people, some severely.
 
In Austin, Texas, 20-year-old college student Justin Howell suffered a skull fracture after being shot in the head with a “beanbag round” filled with lead pellets. Linda Tirado, a journalist and photographer, lost her left eye to a “rubber bullet” fired by police in Minneapolis. In Seattle, 26-year-old Aubreanna Inda nearly died after a stun grenade exploded next to her chest.

According to Carl Takei, a senior staff attorney at the ACLU’s Trone Center for Justice and Equality who focuses on police practices, this widespread and violent use of LLWs during the George Floyd uprising was an attack on the protesters’ constitutional right to free speech.
 
“There’s just no justification under the existing Fourth Amendment framework for the use of these weapons,” he said. “And it’s happening over and over again, with patterns that are so similar across the different cities.”
 
For years these weapons were referred to as “non-lethal.” But in practice, they have a long history of causing serious injuries and deaths.
 
A 2016 report by the International Network of Civil Liberties Organizations analyzed 25 years of available data on the use of LLWs by law enforcement across the world. It found that between 1990 and 2015, “kinetic impact projectiles” — a category that includes rubber bullets and beanbag rounds — caused at least 1,925 injuries, including 53 deaths and 294 instances of permanent disability.
 
Tear gas, which is banned for use in warfare under the 1925 Geneva Protocol, injured at least 9,261 people over the same time period, including two deaths and 70 permanent disabilities.
 
The report also found that LLWs are most commonly used to stamp out political protests and shut down aggressive demands for greater rights.
 
According to Takei, even the term “less lethal” downplays the damage they can inflict.
 
“Beating somebody with a baseball bat, as long as you’re not hitting them in the head or other sensitive areas of the body is ‘less lethal,’ but it’s still incredibly violent,” he said.

During the civil rights and anti-war demonstrations of the 1960s, police used tear gas and other LLWs extensively to disrupt and disperse protests. But after three federal commissions found that abuse of those weapons provoked aggressive responses by protesters and contributed to a cycle of violence, they fell out of favor with U.S. law enforcement as a method of controlling crowds. According to the Marshall Project, in subsequent decades, some police departments adopted a “negotiated management” approach to protests, working with organizers in advance to establish ground rules meant to prevent violence.

But any movement toward de-escalation evaporated in the wake of large anti-globalization protests that took place during a 1999 World Trade Organization meeting, in an event that would come to be called the “Battle for Seattle.” In a prelude to how many police departments would later approach the George Floyd uprising, Seattle police attacked the mostly non-violent protesters with LLWs, provoking a handful to respond aggressively in kind.
 
“The response of a lot of police departments after that was, well if some people won’t act as predicted, we should have a hyper-aggressive response for everybody,” said Takei. “But when police adopt this type of response to Black-led protests against police violence, they are repeating a pattern of brutality that goes back to the origins of American policing in Southern slave patrols.”
 
Now, as outcry over the indiscriminate use of LLWs against Black Lives Matter protesters mounts, some municipalities are weighing restrictions on the weapons. After the ACLU sued the Seattle Police Department in early June for its violent response to protests in the city, a judge ordered police there to cease using the weapons against peaceful demonstrators, saying they had “chilled speech.”
 
Days later, Seattle’s city council voted unanimously to prohibit their use against protesters. Legislators in Atlanta and other cities have also proposed similar bans.
 
The ACLU spoke to a number of people who were attacked with LLWs by police during demonstrations over George Floyd’s murder in recent weeks. This is how they described their experiences.

**** Gabe Schlough at his home in Denver, Colorado.Jimena Peck for the ACLU

Gabe Schlough wasn’t surprised that the Minneapolis Police Department had killed another one of its Black residents. He lives in Denver now, but he’d gone to college years earlier in Minneapolis. Just before he graduated, he’d been shot in the back with a stun gun by police who entered his home and tried to arrest him in a case of mistaken identity.
 
Schlough had been invited to a protest at downtown Denver’s Capitol Building that night, but instead he decided to drive his motorcycle up into the mountains with a friend.
 
“In one of the areas where people were hiking and snowboarding and skiing down I saw three Black people, and I was just fucking happy,” he said. “I was like, thank God not every Black person thinks they need to be at the Capitol right now.”
 
But when he got back home later that night and saw images of the Denver Police Department’s response to the protest, he felt his blood start to boil.
 
“We can’t even give doctors and nurses facemasks, but we can give our police access to militarized weapons that are exceedingly more expensive and hard to create than the protective mechanisms we need for health care workers,” he recalled thinking.
 
Schlough has a degree in public health anthropology, and he’d worked in health care across the world, including a stint in an Ebola clinic in Sierra Leone. He had medical training and had participated in protests before, so he decided to defy the curfew along with a few friends to see if he could offer help in case anyone got hurt. Donning his face mask along with sunglasses to protect his eyes, Schlough set off towards the Capitol Building.
 
When he arrived, he saw a crowd of two or three hundred people facing down a line of police.
 
“They were standing just a little bit more than shoulder to shoulder apart with full riot gear, with their face shields and full protective armor on,” he recalled.
 
Schlough moved up toward the front of the crowd. Behind him, somebody set a pile of garbage on fire. That was all the police needed to begin their advance. As they moved forward, they shot canisters of tear gas into the crowd and tossed stun grenades.
 
“I was going around and telling people who didn’t have eye coverings to watch their eyes and protect their face,” he said. “Just running up and down the line and getting people educated, like this is happening and this is what you need to know.”
 
As a canister of tear gas landed next to him, Schlough bent down to try and cover it with a traffic cone so the gas wouldn’t spread. Suddenly, he felt sharp blows to his face and chest.
 
“A shock hit me and my head popped up,” he said. “I felt like somebody had punched me in the chest.”
 
Schlough had been shot with rubber bullets, although he didn’t know it yet. As he fell back further into the crowd of protestors, someone told him he was bleeding.
 
“You need to go to a hospital,” they said. “Your face is falling off.”
 
Another bystander pulled out his phone and showed Schlough his injury. The bullet had left a gaping wound on his chin, and blood was pouring down onto the front of his shirt. In retrospect, Schlough says he thinks he was specifically targeted, and that police knew exactly where they were aiming when they shot him.
 
He and a friend left and started walking toward a nearby hospital where he did volunteer shifts. But when they arrived, Denver police were also there.
 
“There were cop cars there and more pulling up, and I understood that it was not a safe place for me to get treated because of the amount of police presence there,” he said.
 
Instead, Schlough had to drive outside Denver to be treated at a different facility. Doctors cleaned his wound and gave him 20 stitches. More than a week later, part of his chin is still numb. He worries that he may have suffered nerve damage.
 
Last Christmas, while visiting his mother in Wisconsin, he says one of her friends asked him what the most dangerous place he’d ever been was.
 
“I told her that I’m the most scared when I’m in the U.S. and around a police officer,” he said. “Because I know that no matter who I am or what I’ve done in my life, I can be shot and killed, and nothing will matter.”

**** Toni Sanders, 36, poses for a portrait at her home in Washington, D.C., June 13, 2020.Allison Shelley for the ACLU

Toni Sanders arrived at Lafayette Square along with her wife and 9-year-old stepson in the late afternoon of June 1 – the same day that Kishon McDonald was there. Their son — identified in court papers as J.N.C. — had been watching the news over the preceding days, and the family had been having difficult conversations about George Floyd and why there was unrest rocking the country.
 
“We spoke about Aiyana Stanley-Jones and Tamir Rice, and people right here in D.C. who had been killed by Metropolitan Police — Raphael Briscoe, Terrence Sterling, Marqueese Alston, and explained to him that was why people were protesting,” Sanders said.
 
He said that he’d like to accompany Sanders and his mother to Lafayette Square.
 
“I assured him that it would be safe because it was a peaceful protest and that we would leave before the curfew started,” she said.
 
At first, she was glad that she’d agreed to bring him to what felt like a “community environment.” People in the square were passing out snacks, chanting, and kneeling in solidarity with George Floyd.
 
“Everything started out wonderful, it was a great experience,” she recalled. “We even took a picture when we first got down there just to remember the date we all stood together.”
 
Then, the attack began.
 
“I just heard the loud bah bah bah bah, and smoke started to fill the area.”
 
Sanders was immediately terrified for her young stepson.
 
“I just started screaming to my family, run, run, run,” she said. The three sprinted away from the sound of detonating stun grenades and the shrieks of injured protesters. After making it a few blocks away, they stopped to catch their breath and check in with one another.
 
“He said, ‘I can’t believe I just survived my first near-death experience.’ And it literally broke my heart because there’s honestly nothing I could say to him. I couldn’t tell him this wasn’t a near-death experience.”
 
Sanders was furious that police hadn’t warned protesters to disperse before violently clearing the park. If they had, she said, she would have quickly brought her stepson to safety.
 
“If we had been asked to either move back or leave, we would have. We would not have protested that because we have a child that we must look out for,” she said.
 
After the attack, Sanders’ son expressed anger and hurt over how police had treated them. Sanders had refused to allow the experience to scare her away from attending protests, but now when she left the house he would ask her to promise that she wouldn’t die.
 
“I wanted to show him that even though you’re afraid, if someone is trying to take your rights and do you wrong, you have to stand up for who you are and what you believe in,” she said.
 
The couple decided to put him into therapy to work out how that day affected him. Sanders says he told his therapist that he thinks that it’s the end of the world now, and that the government is at war with Black people.
 
“Now we have to have uncomfortable conversations with him about systemic racism, overt racism, covert racism,” she said. “And it’s horrible to have to take that innocence from him.”
 
Along with Kishon McDonald, Sanders is one of two plaintiffs in an ACLU lawsuit over the attack on Lafayette Square protesters that day. Over the phone, she recites the poem ‘If We Must Die’ by Claude McKay.
 
We’ll face the murderous, cowardly pack,
Pressed to the wall, dying, but fighting back!
 
“We’re here to show you that we’re still citizens, and we’re going to exercise our rights, and there’s nothing you can do about it.”

**** Alexandra Chen, a law student at Seattle University and a plaintiff in the lawsuit Black Lives Matter Seattle-King County v. City of Seattle, poses for a portrait in Seattle, Washington on June 15, 2020. David Ryder for the ACLU.

On May 30, first-year law student Alexandra Chen marched to a police precinct in downtown Seattle along with a few hundred other demonstrators. It was the second protest she’d attended, the first being the day before. When they arrived at the precinct, there were police in riot gear out in front, with others standing in the windows and watching the crowd from above.
 
“People were clearly agitated, but I didn’t see anyone really try to push the ticket,” she said. “Folks were just crowding around and leading chants.”
 
A few scattered water bottles along with a road flare were thrown at the precinct, but aside from that, Chen said nobody in the crowd was signaling that violence was coming.
 
“I remember thinking to myself, ‘You know, this would be a great opportunity for someone to come out with a megaphone and make a statement about how you understand why we’re so angry and you want to work with us on how to fix this,’” she said.
 
Instead, just like in Washington, D.C., Denver, and dozens of other cities, the Seattle Police Department began to throw stun grenades and tear gas into the crowd.
 
“There was no warning at all,” she said. “It was just absolute chaos.”
 
When the first stun grenade detonated near her, she felt a “deep percussive feeling” in her chest. People began to scream and run as tear gas filled the street. As she and her friend tried to move away from the precinct, she noticed another young woman desperately trying to find fresh air.
 
“There was a gap in a wall that was about six to eight inches between buildings, and she was trying to escape the gas. It looked like she was trying to crawl into that space, and you could hear her retching,” she said.
 
Tear gas is by its nature indiscriminate. It can’t be controlled or targeted to incapacitate specific people. As soon as a canister or grenade is launched, it becomes the property of the wind. Young and old alike are subject to its effects, which Chen says go from “uncomfortable to intolerable in a short amount of time.”
 
Chen says that when the group first arrived at the precinct, nearly everyone was wearing masks to prevent the spread of COVID-19. But after the tear gas was fired, people began to rip them off as they choked, coughed, and gasped for air.
 
“First, you think to yourself, “Okay, I can tolerate this,’” she said. “You don’t really expect that it’s going to get worse, but it does. It moves deeper into your face and once it gets into your sinuses, everything it touches burns.”
 
All around her, people were calling out for their friends and loved ones through the thick smoke.
 
“It was hard to tell which direction to run because when they threw the canisters, they rolled down the hills spewing tear gas the whole way. So effectively, you had not just the immediate area in front of the police station gassed, you had the whole block, and when you’re in the middle of it, you can’t tell where it ends,” she recalled.
 
After Chen and her friend emerged from the cloud, a medic nearby helped flush her eyes out with water, and the two walked back to her apartment. She is now a plaintiff in an ACLU lawsuit brought against the Seattle Police Department over its use of tear gas and other LLWs.
 
“I don’t care what they want to say about how people are violent,” she said. “What I saw was peaceful protesters met with an immediate and overwhelming show of force to get us to disperse.”

**** Jared Goyette stands in front of the remains of the Minnesota Police Department’s Third Precinct. Brandon Bell for the ACLU

Jared Goyette moved to Minneapolis five years ago to be close to his daughter. As a journalist, he’d covered protests over police brutality before — first at the Mall of America during the Ferguson uprising, and then later after the killing of Philando Castile.
 
Over the years, he’d developed ties to the city’s activist community, and in the hours after the video of George Floyd’s murder was released, his phone began to buzz.
 
“I started getting texts from different Black activists in the Twin Cities,” he said. Goyette could tell that Floyd’s killing would lead to unrest, and before long national news outlets began reaching out to ask for his help covering the story.
 
On May 27th, two days after Floyd’s death, Goyette heard the sound of helicopters buzzing over the Minneapolis Police Department’s Third Precinct. The Precinct had already become a flash point for demonstrations, and Goyette decided to head to the area to see what was happening.
 
“When I started surveying the scene, it was entirely different from anything I’d seen in my previous years of covering protests against police violence in Minnesota,” he said.
 
Several hundred people had surrounded the precinct, and officers in riot gear were standing on the roof firing tear gas and rubber bullets at them. Goyette had his camera and notepad with him and, along with other journalists there, was visibly covering the standoff in his role as a reporter.
 
He saw that a young man had been shot in the head with a ballistic projectile, and moved towards him to try and see if he could do anything to help.
 
“He was just writhing on the ground in clear, severe pain,” he said. “People were screaming, ‘Call 911.’”
 
Goyette noticed that his ten-year-old daughter had texted him to ask where he was, so he moved off to the side to text a response. Suddenly, he was on the ground.
 
“There was a searing pain in my eye,” he recalled. “It wasn’t like I was hit and then I fell, it was like I’m standing and then wait, I’m not standing and everything is black.”
 
Goyette had been shot in the head with a rubber bullet. His nose was bleeding and his eye was swollen and black. People moved towards him to help, but tear gas began to flood the area.

Policing the Press: A Journalist on the Frontlines

Journalists covering protests against police brutality across the country are facing an influx of violence, suppression efforts, and arrests by police…

Listen to this episode

He managed to woozily make his way to safety, and after gathering his composure for a few minutes, found his car and drove home. Initially, he didn’t think he needed medical attention, but his girlfriend told him he had to visit a community clinic. Health workers there said that if he’d waited longer for treatment, he might have lost sight in that eye.
 
He says he thinks it’s unlikely that officers didn’t know he was a journalist when they shot him.
 
“I wasn’t running, I wasn’t chanting,” he said. “Protesters aren’t normally dressed in a dress shirt and slacks.”
 
Goyette wasn’t the only journalist who was targeted by Minneapolis police that week. Many documented being pepper sprayed despite clearly identifying themselves as reporters. Others were arrested, gassed, threatened, or ⁠— like Goyette ⁠— shot with rubber bullets. In a clip that went viral, CNN reporter Omar Jimenez was arrested on live television, despite the fact that he was accompanied by a full news crew with cameras and sound equipment.
 
“I worry that the sort of ‘fake news’ doctrine is leading to journalists being targeted,” said Goyette. “And this is the first time that I think we saw that at a systematic scale.”
 
On June 3rd, the ACLU filed suit against the City of Minneapolis over the attacks on journalists that were carried out by MPD officers. Goyette is the lead plaintiff in the case.
 
“I don’t want this to come out wrong, but I feel angry, and a little bit afraid,” he said. “The Police Chief made an apology to journalists who were fired upon, but there wasn’t anything behind that apology. No promise to investigate and hold people accountable, nothing other than a sentimental gesture. And I fear that people are just going to move on.”

‘Black Lives Matter’ is About More than the Police

Every time another Black person is murdered by the police, it’s easy to point to a single officer as the culprit. George Floyd was killed under the knee of officer Derek Chauvin — we saw it ourselves. But Chauvin is just one officer in a culture of police violence, and policing is just one of the systems responsible for taking Black lives. COVID-19 exposed a number of the others.
 
It’s no coincidence that Black people, who are more likely to be killed by the police, are also dying at disproportionate rates of COVID-19. While some say it’s due to the prevalence of underlying health issues like diabetes and high blood pressure in the Black community, the conversation doesn’t end there, and pointing a finger at these conditions misses the bigger picture. We need to ask ourselves — how did we end up here?
 
The Black community is not inherently vulnerable to COVID-19. We’ve been made vulnerable through decades of unequal access to health care. We are made vulnerable every time a doctor or other health care provider dismisses us because they don’t believe our symptoms. We are made vulnerable through over-policing, which has led to not only our murders, but to our overrepresentation in jails and prisons, where the virus is spreading rapidly and has already killed hundreds. Even though public health experts have warned of the severe risk that incarcerated people face due to the conditions they live in, most have been left to languish as COVID-19 threatens to turn their detention into a death sentence.
 
In fact, jails and prisons are where multiple systemic failings that take Black lives converge — over-policing, over-incarceration, inadequate health care, and the deadly result.
 
When we say Black Lives Matter, we’re talking about more than police brutality. We’re talking about incarceration, health care, housing, education, and economics — all the different components of a broader system that has created the reality we see today, where Black people are incarcerated at more than five times the rate of white people, where Black people are given harsher sentences for the same offenses, where Black people are more likely to be held on bail pretrial, and where Black people are dying not only at the hands of police, but because of an unequal health care system. Black lives should matter in all stages of life — and to honor that truth, we must radically transform the system from its roots.
 
Systemic problems aren’t easy to fix, but we can take steps toward progress by re-examining the way we fund and rely on law enforcement in this country. A huge amount of public resources are put toward law enforcement agencies, at the expense of critical social services like education and health care. This doesn’t make us safer. It puts Black lives in danger of police brutality and of getting ensnared in the mass incarceration system. More law enforcement is not the answer. It’s what got us here in the first place.
 
Our culture of law enforcement puts the police in places they don’t need to be. Police don’t have to be the first responders to all crises, and they shouldn’t be. Social workers, doctors, and others can serve in place of police for issues including mental health crises, domestic violence, addiction, and homelessness. However, to create this reality we need to de-prioritize law enforcement — and cutting funding is a good start. Lawmakers should divert funding for police departments and put it to better use in community-led initiatives. Investing in services like health care and education will reduce the role of police in society, protect Black lives, and shift the focus to helping people rather than harming them.
 
When I co-founded Black Lives Matter almost seven years ago, the conversation about police brutality was just beginning to enter the mainstream discourse — not because police violence was anything new, but because of the work of activists and advocates who brought the issue to light with the help of technology that allows us to capture incidents on our phones. Today, more people are rallying for Black Lives than I would have ever imagined. That in itself is a sign of progress. But to turn Black Lives Matter into more than a rally cry, we must roll up our sleeves and do the work. Let’s tear down systems that harm us and strengthen systems that will advance true equality.
 
Let’s make sure that Black life matters at every stage and in every facet of society, well before a cop has his knee on a man’s neck.

Black Communities Can Not Wait Any Longer. The Time to Divest Is Now.

In the wake of the killing of George Floyd, we are seeing a massive popular political realignment around the role and scope of policing in the United States, led by Black organizers and Black-led movement groups. More than ever before, this movement is calling for divestment from police departments and reinvestment into the life-affirming services that help communities thrive. Further still, these protests are not confined to cities and towns across America — they have crossed our borders and are taking place globally.
 
These calls are being heard, and the power of the people has already led to momentum for meaningful local change, where the vast majority of policing policy decisions take place. As Black people continue to be murdered by law enforcement in communities across the country, local change is not just necessary, but vital.
 
George Floyd’s tragic murder has galvanized progress in the city he called home, Minneapolis. Officials heard and have begun to act on calls from grassroots organizations to divest from police and reinvest in communities that have been over-policed, criminalized, and deprived of the basic ability to go about their daily lives unharassed; deprived of their ability to thrive.
 
The Minneapolis City Council has begun the process of going even further than divestment — they are not only diving into police funding and malfeasance, they are actively looking into disbanding the police department in favor of a new set of services and first responders, moves informed by community-led public safety. In Minneapolis, there is a veto-proof majority of the city council in favor. This bold action is promising, and it is not isolated. 
 
In Los Angeles, Mayor Eric Garcetti has pledged to cut between $100 and $150 million from the city’s policing budget, and declared that those funds can and should be reinvested into Black communities across the sprawling city. This is one of the first localities where a concrete number has been articulated and lifted up. This goes beyond rhetoric and reaction, and is key to beginning programmatic change; much more will be needed for actual change.
 
Advocates are all too familiar with the empty promises and attending inaction of the past, making this an important step toward divestment and reinvestment. Still, activists have been critical of Garcetti’s pledge, and rightly so — the proposed budget cut only amounts to 6 percent of the nearly $2 billion discretionary budget.
 
Meanwhile on the East Coast, New York City Mayor Bill de Blasio has agreed to propose budget cuts as well. Yet unlike the progress seen in Los Angeles, specific numbers have not yet been made public. De Blasio’s initial reluctance gave way after weeks of persistent pressure from protesters and Black-led organizations demanding significant cuts to the budget. A proposal has since been floated by the city’s comptroller and by activists for a budget cut of $1.1 billion, but de Blasio has not commented.
 
Other municipalities nationwide are also acting: Hartford, Connecticut; Baltimore; Washington D.C.; Chicago; St. Louis; Durham, North Carolina; Philadelphia; Dallas; Austin, Texas; San Diego; San Francisco; Seattle; and Portland, Oregon have all rolled out proposals to cut police budgets and reinvest those funds into the community.
 
These plans vary in scope and specificity, but make no mistake: This is a movement. This is a national recognition of the scourge of police violence, the money that funds it, and the obligation of cities to do better by their residents by reinvesting those funds. Cities can choose to promote health and opportunity, not the canard of “public safety” that too often takes the form of criminalizing the daily lives of Black and Brown people. Cities can choose to not fund a corrupt system that enables brutality and death, protects no one, and perpetuates the traumas of racial injustice and underdevelopment.
 
Elected officials can pledge right now to start on the path toward meaningful change. Now is the time for those who were elected to be our nation’s leaders to show political courage and a commitment to championing the way forward. All elected officials, especially mayors and county executives, can take the first step right now by committing:

  1. Not to accept any political contributions or donations from organizations or unions directly representing police officers if the organization or union opposes reducing the size, power, or budgets of police forces;
  2. To decrease current policing budgets, and reinvest funds from policing into community services and programs, guided by community input
  3. To limit or eliminate the role of police in situations where social interventions are safer and more effective.

These commitments are just a start. We still have far to go — we must push ALL municipal governments, even those who have begun to make progress, and demand that they do better. Divestment and reinvestment is long-term work, centered in rooting out the violence at the core of oppression and replacing it with support that is as deserved as it is needed. This work will help realize the equity so often preached to Black and Brown communities, and so infrequently delivered.
 
It’s not enough for local governments to make small cuts, to invest in yet another inadequate training program, or to paint the streets with slogans. Cities must reckon with the political power of law enforcement organizations; the amount of money that has been stripped away from necessary and life-affirming public services in favor of militarized weaponry and surveillance technology; and the racist, invasive, and abusive police practices that enable violence by law enforcement.
 
Black communities, LGBTQ communities, people with disabilities, and so many other impacted groups have experienced the daily harm and long-term damage of underfunded and overtaxed public services. Educational infrastructure has crumbled. Public health services have been stripped away. Housing and family care resources have dwindled. Disability services have vanished. Libraries have closed down. And all the while, police budgets have grown massively.
 
Police departments across the country use the vast resources they have to terrorize the Black and Brown communities they were sworn to serve, often doling out physical and mental harm, fear, and death. They fatten their coffers even as municipalities make budget cuts that further inequality. Meanwhile, their unions throw their financial weight behind elected officials to ensure that any questioning of their agenda is silenced, and stays silent. This is not new. But now, this systemic oppression is being met by a swelling tide of resistance.
 
For years, Black activists and organizations like the Movement for Black Lives have been calling for the reckoning we now see in the streets, and we have a responsibility as a nation to meet their call. Elected officials and organizations who work in the policing space cannot change their past inaction or tepid reform efforts. But we can dig in and put in the work now to fight; to ensure we never see the death of another Breonna Taylor, Tony McDade, or George Floyd. To center the work of the communities who asked over and over again for their governments to invest in their communities and the services they need. To stand with them and fight for their rights — for their very lives.

A Landmark Supreme Court Decision Affirms LGBTQ Rights

It’s been more than 50 years since Black and Brown trans women led the revolutionary Stonewall Riots, fighting back against police brutality and discrimination and launching a movement for equality. This week, we celebrated another incredible landmark in the fight for LGBTQ rights.

In a 6 to 3 decision, the Supreme Court affirmed that it is illegal for employers to fire or otherwise discriminate against someone simply because they are LGBTQ. Though more work remains to protect the rights of the LGBTQ community, this decision will go a long way towards affirming legal protections in education, housing, credit, and health care — areas where too many LGBTQ people, particularly Black and Brown LGBTQ people, still face discrimination.

Chase Strangio, the Deputy Director for Transgender Justice for the ACLU’s LBGT and HIV Project, joined the podcast to help breakdown this historic decision.

A Landmark Supreme Court Decision Affirms LGBTQ Rights

It’s been over 50 years since Black and Brown trans women led the revolutionary Stonewall Riots, fighting back against police brutality and discrimina…

Listen to this episode

Local Officials: Pledge to Divest from Police and Reinvest in Black Communities

In the wake of the killings by police of George Floyd, Breonna Taylor, and many others, we are seeing a massive popular political realignment around the role and scope of policing in the United States, led by Black organizers and Black-led movement groups. More than ever before, this movement is calling for divestment from police departments, and reinvestment into the life-affirming services that help communities thrive.

It’s not enough for local governments to make small cuts, to invest in yet another set of flawed training programs, or to paint the streets with slogans. Cities, towns and local leaders must undergo a reckoning with the political power of law enforcement organizations which have a long history of vigorously opposing any reduction in police power; the amount of money that has been stripped away from necessary public services in favor of militarized weaponry and surveillance technology; and violence by law enforcement that has been enabled by racist, invasive, and abusive police practices.

The current spotlight on police violence provides a golden opportunity for local elected leaders across the country to take bold and swift action to reduce the footprint of police in Black communities and reallocate resources into alternatives to policing that keep communities safe and help them thrive.

To achieve substantive change, local officials need to commit to:

  • Not accept any political contributions or donations from organizations or unions directly representing police officers if the organization or union opposes reducing the size, power or budgets of police forces;
  • Decrease current policing budgets and, guided by community input, reinvest funds from policing into community services and programs;
  • Limit or eliminate the role of police in situations where alternative interventions or responses would be safer and more effective.

ACLU affiliates have called on 42 elected officials – and counting – to publicly pledge their commitment to this vision.

ELECTED OFFICIALS: SUBMIT YOUR PLEDGE

SCOTUS Must Now Ensure LGBTQ People Are Not Turned Away From Taxpayer-Funded Programs

On Monday, the U.S. Supreme Court ruled in a 6-3 decision that Title VII of the Civil Rights Act of 1964, the federal ban on sex discrimination in employment, protects LGBTQ workers from discrimination. The decision was based on a straightforward reading of the law: Discriminating against someone because they are LGBTQ is inherently sex discrimination. In his dissent, Justice Alito raised concerns about implications for employers with religious objections to hiring LGBTQ people, but the questions before the court in Monday’s monumental victory for LGBTQ workers did not involve whether the employers had a religious right to fire LGBTQ people. The court made clear that the scope of any religion-based defenses offered by Title VII, the Religious Freedom Restoration Act, and the constitutional protections for religious exercise would be addressed in future cases.

The court will have a chance to weigh in on these questions sooner than you might think, since the next big LGBTQ rights case is already on the docket for the fall.

In Fulton v. City of Philadelphia, Catholic Social Services (CSS) is challenging a Philadelphia requirement that agencies contracting with the city to provide government services must not discriminate. The ACLU represents the Support Center for Child Advocates and Philadelphia Family Pride, and we are supporting the city’s right to require all of its contracted foster care agencies to accept all qualified families and put the best interests of children first.

CSS receives public money to provide foster care services, a core government service, and argues that because of its religious beliefs, it has the right to discriminate against same-sex couples interested in becoming foster families. CSS says both that the city’s policy singles it out for unfair treatment — even though CSS requires all foster care agencies to follow the same policy — and that the Supreme Court should make it easier for anyone with any kind of religious objection to refuse to follow any law, including our laws against discrimination. The Third Circuit Court of Appeals ruled against CSS, and the Supreme Court granted review in February.

Fulton isn’t the only case where these arguments are coming up, it just happens to be the one the court has already agreed to hear. In another case, Minton v. Dignity Health, a Catholic hospital system is asking the Supreme Court to reverse a lower court ruling that rejected the health care chain’s claim that religious objections give it a right to deny gender-affirming healthcare to transgender people, in violation of California law. And in the long-pending case of Ingersoll and Freed v. Arlene’s Flowers, a business is once again asking the Supreme Court to rule that because the owner of the business has religious objections to marriages of same-sex couples, Washington State’s nondiscrimination law is unenforceable against the business with respect to its refusal to sell a same-sex couple flowers for their wedding.

If the question in the workplace discrimination cases brought by Aimee Stephens, Donald Zarda, and Gerald Bostock was what the law means, the question in these next cases is when and whether the law matters. Don’t get me wrong: It is a tremendous victory for the court to say that the plain words of the law protect LGBTQ people, just like everyone else. But that victory is fragile and will be eroded if the court furthers the agenda of the Trump administration by giving anyone who objects on religious grounds a free pass to violate the law.

Decades ago, the fight for our civil rights laws was led by Black people who demanded legal protections from rampant discrimination. Those bedrock civil rights laws have been under attack since their passage, including by demands for religious exceptions. The latest attacks on civil rights protections in the Fulton case and the others that follow it won’t just compromise the Bostock decision and LGBTQ rights. Members of minority faiths, women, and people of color are all at risk, and those who live at the intersection of multiple identities are even more vulnerable. These next cases are about whether laws intended to allow full participation in public life will continue to apply to us all, or if those who object can use their religious beliefs to humiliate, exclude, reject, and deny access and care. While we know well that legal protections don’t automatically translate into full equality, they are an important step, and a rule saying that anyone who wishes to discriminate can do so would gut those hard-fought laws.

Since it already has the Fulton case before it, we hope the court will take this opportunity to declare that there is no constitutional license to discriminate.

How is Face Recognition Surveillance Technology Racist?

Last week, IBM, Amazon, and Microsoft announced they would pause or end sales of their face recognition technology to police in the United States. The announcement caught many by surprise. For years, racial justice and civil rights advocates had been warning that this technology in law enforcement hands would be the end of privacy as we know it. It would supercharge police abuses, and it would be used to harm and target Black and Brown communities in particular.
 
But the companies ignored these warnings and refused to get out of this surveillance business. It wasn’t until there was a national reckoning over anti-Black police violence and systemic racism, and these companies getting caught in activists’ crosshairs for their role in perpetuating racism, that the tech giants conceded — even if only a little.
 
But why did IBM, Amazon, and Microsoft’s sale of face recognition to cops make them a target of the Black Lives Matter movement? How is face surveillance an anti-Black technology?
 
Face surveillance is the most dangerous of the many new technologies available to law enforcement. And while face surveillance is a danger to all people, no matter the color of their skin, the technology is a particularly serious threat to Black people in at least three fundamental ways.
 
First, the technology itself can be racially biased. Groundbreaking research conducted by Black scholars Joy Buolamwini, Deb Raji, and Timnit Gebru snapped our collective attention to the fact that yes, algorithms can be racist. Buolamwini and Gebru’s 2018 research concluded that some facial analysis algorithms misclassified Black women nearly 35 percent of the time, while nearly always getting it right for white men. A subsequent study by Buolamwini and Raji at the Massachusetts Institute of Technology confirmed these problems persisted with Amazon’s software.
 
Late last year, the federal government released its own damning report on bias issues in face recognition algorithms, finding that the systems generally work best on middle-aged white men’s faces, and not so well for people of color, women, children, or the elderly. The federal government study concluded the rates of error tended to be highest for Black women, just as Buolamwini, Gebru, and Raji found. These error-prone, racially biased algorithms can have devastating impacts for people of color. For example, many police departments use face recognition technology to identify suspects and make arrests. One false match can lead to a wrongful arrest, a lengthy detention, and even deadly police violence.
 
Second, police in many jurisdictions in the U.S. use mugshot databases to identify people with face recognition algorithms. But using mugshot databases for face recognition recycles racial bias from the past, supercharging that bias with 21st century surveillance technology.
 
Across the U.S., Black people face arrest for a variety of crimes at far higher rates than white people. Take cannabis arrests, for just one example. Cannabis use rates are about the same for white and Black people, but Black people are nearly four times more likely to be arrested for marijuana possession than white people. Each time someone is arrested, police take a mugshot and store that image in a database alongside the person’s name and other personal information. Since Black people are more likely to be arrested than white people for minor crimes like cannabis possession, their faces and personal data are more likely to be in mugshot databases. Therefore, the use of face recognition technology tied into mugshot databases exacerbates racism in a criminal legal system that already disproportionately polices and criminalizes Black people.
 
Third, even if the algorithms are equally accurate across race, and even if the government uses driver’s license databases instead of mugshot systems, government use of face surveillance technology will still be racist. That’s because the entire system is racist. As journalist Radley Balko has carefully documented, Black people face overwhelming disparities at every single stage of the criminal punishment system, from street-level surveillance and profiling all the way through to sentencing and conditions of confinement.
 
Surveillance of Black people in the U.S. has a pernicious and largely unaddressed history, beginning during the antebellum era. Take 18th century lantern laws, for example. As scholar Simone Browne observed: “Lantern laws were 18th century laws in New York City that demanded that Black, mixed-race and Indigenous enslaved people carry candle lanterns with them if they walked about the city after sunset, and not in the company of a white person. The law prescribed various punishments for those that didn’t carry this supervisory device.”
 
Today, police surveillance cameras disproportionately installed in Black and Brown neighborhoods keep a constant watch.
 
The white supremacist, anti-Black history of surveillance and tracking in the United States persists into the present. It merely manifests differently, justified by the government using different excuses. Today, those excuses generally fall into two categories: spying that targets political speech, too often conflated with “terrorism,” and spying that targets people suspected of drug or gang involvement.
 
In recent years, we learned of an FBI surveillance program targeting so-called “Black Identity Extremists,” which appears to be the bureau’s way of justifying domestic terrorism investigations of Black Lives Matter activists. Local police are involved in anti-Black political surveillance, too. In Boston, documents revealed the police department was using social media surveillance technology to track the use of the phrase “Black Lives Matter” online. In Memphis, police have spied on Black activists and journalists in violation of a 1978 consent decree. The Memphis Police Department’s surveillance included the use of undercover operations on social media targeting people engaged in First Amendment-protected activity. In New York, the police spent countless hours monitoring Black Lives Matter protesters, emails show. And in Chicago, activists suspect the police used a powerful cell phone spying device to track protesters speaking out against police harassment of Black people.
 
These are just a few examples of a trend that dates back to the surveillance of Black people during slavery, extending through the 20th century when the FBI’s J. Edgar Hoover instructed his agents to track the political activity of every single Black college student in the country. It continues to this day, with Attorney General Bill Barr reportedly giving the U.S. Drug Enforcement Administration — a scandal-ridden law enforcement agency tasked with spearheading the racist drug war — the authority to spy on people protesting the police killing of George Floyd.
 
The war on drugs and gangs is the other primary justification for surveillance programs that overwhelmingly target Black and Brown people in the U.S. From wiretaps to sneak-and-peak warrants, the most invasive forms of authorized government surveillance are typically deployed not to fight terrorism or investigate violent criminal conspiracies like murder or kidnapping, but rather to prosecute people for drug offenses. Racial disparities in the government’s war on drugs are well documented.
 
To avoid repeating the mistakes of our past, we must read our history and heed its warnings. If government agencies like police departments and the FBI are authorized to deploy invasive face surveillance technologies against our communities, these technologies will unquestionably be used to target Black and Brown people merely for existing. That’s why racial justice organizations like the Center for Media Justice are calling for a ban on the government’s use of this dystopian technology, and why ACLU advocates from California to Massachusetts are pushing for bans on the technology in cities nationwide.
 
We are at a pivotal moment in our nation’s history. We must listen to the voices of the protesters in the streets and act now to make systemic change. Banning face surveillance won’t stop systemic racism, but it will take one powerful tool away from institutions that are responsible for upholding it.

What Today’s Supreme Court Ruling Means for the LGBTQ Community

The Supreme Court has ruled that LGBTQ people cannot be fired because of their sexual orientation or because they are transgender as a matter of federal law, affirming legal protections from job discrimination for millions of people. Here’s what today’s ruling means for the LGBTQ community, employers, and Congress’ next steps.

What did the Supreme Court’s decision say?

The Supreme Court ruled that the federal law prohibiting sex discrimination in the workplace (Title VII of the Civil Rights Act of 1964), protects people from discrimination for being LGBTQ. This decision follows decades of lower court cases and agency decisions holding that such discrimination is unlawful sex discrimination.

LGBTQ Discrimination Cases at the Supreme Court | American Civil Liberties Union What does this decision mean for LGBTQ workers?

Title VII covers employees in workplaces with 15 or more employees. In every state across the country, it is now unlawful to fire someone just for being LGBTQ. Other types of anti-LGBTQ workplace discrimination, like harassment and failure to hire, are also illegal. In addition, state or local protections still apply. 

What about religiously-affiliated employers?

Title VII applies to religiously-affiliated employers. There are some exemptions, including for ministers or other individuals whose job involves teaching or leading the faith. But in general, it applies to most job positions.

How will this impact my rights in school, health care, or housing?

Federal law also prohibits sex discrimination in housing, healthcare, education and credit. The reasoning from this Supreme Court decision should mean that it is also unlawful to discriminate against LGBTQ people in those contexts. With respect to healthcare, these protections in law override the anti-trans regulations recently issued by the Trump administration under Section 1557 of the Affordable Care Act.

What more do we need to do?

While federal law now offers many protections nationwide, it does not protect LGBTQ people in some important areas of life, such as in businesses open to the public, and federally-funded programs. And the law has some serious gaps in protections for all of us. Especially in this moment, updating the law to address modern forms of discrimination is critical.

We can seize on the momentum of this victory and pass the Equality Act now. The House of Representatives passed this critical legislation in May 2019. Urge your Senators to move this bill forward and ensure that LGBTQ are fully protected by our civil rights laws.

We also must continue to rally in the streets and in all aspects of life to defend Black trans people from deadly violence. In doing this work, we must follow the leadership of Black trans people.

What if I still experience discrimination because I’m LGBTQ?

Contact a lawyer, or a legal organization like the ACLU.  We may be able to help.

Trans People Belong

We Won’t Address Our Mass Incarceration Crisis Until We Rethink Our Approach to “Violent Crime”

During the COVID-19 pandemic, jails and prisons have become infection hot spots due to notoriously unhygienic conditions and the inability to socially distance. Overcrowded facilities — a symptom of our longstanding national addiction to mass incarceration — are creating an unconstitutional health crisis. Advocates are calling upon judges across the country to release medically vulnerable people from prison and jails. But despite acknowledgment of the urgency from Attorney General William Barr, state officials, and judges, very little has actually been done to release people from prisons in particular.
 
While advocates have succeeded in securing the release of some people, particularly from jails, many judges have dismissed release as a viable option for people accused or convicted of violent charges. “Many of [the incarcerated people] are violent offenders,” wrote District Judge Robert Dow Jr. in a recent opinion, in a case challenging dangerous conditions in Illinois Department of Corrections’ facilities. “Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare … The question is not simply what is best for the inmates — the public has vital interests at stake, too.”
 
The message behind this and similar rulings is that the rights and safety of incarcerated people are secondary to the public’s comfort and safety during a pandemic, particularly when it comes to incarcerated people accused or convicted of violent charges. Even if the conditions inside prisons and jails indisputably endanger the lives of those incarcerated, these rulings justify their continued incarceration by alleging their release is too dangerous for the community. While concerns for public safety are understandable, in this instance they are unfounded. This is a cowardly and dangerous position, which ultimately puts many more lives at risk.
 
First, the problems courts are imagining with mass release just don’t exist when you look at the data. The people we’re asking judges to release are either elderly or have serious medical conditions. A subgroup of these people are in for “violent” offenses, which can range from murder to more benign actions like failing a urine test repeatedly. Because these people have been incarcerated for such a long time, much of their sentences have already been served. Further, data shows that most people age out of “violent crime” and older people are least likely to re-offend, making draconian sentences unnecessary and counterproductive, even in non-pandemic times.  
 
For people released pretrial on felony charges, less than two percent are ever re-arrested for a violent felony while awaiting trial. There is simply no statistically significant evidence that the medically vulnerable jail and prison population poses a safety or flight risk. The risk of incarcerated people catching COVID-19 and getting severely ill or dying, on the other hand, is quite high and has been well documented.
 
Second, it’s crucial to remember that people accused or convicted of violent crimes are just that: people. They have the same inalienable rights that all human beings are entitled to. Advocates should not have to respond with “the risks are not that bad” arguments. The fearmongering and repeated cries for law and order are the same rhetoric that created the mass incarceration crisis in the first place. If we are to truly address it, and prevent senseless, preventable death from this pandemic, we must go beyond advocating for nonviolent, low-level offenders.
 
Unfortunately, this necessary work is undermined by the fact that many criminal justice reform efforts focus on reducing punishments for low-level crimes, and avoid addressing more serious charges. For example, when picking plaintiffs to represent in a class action, impact litigators — including those at the ACLU — often avoid choosing clients with violent charges or convictions so that conservative judges will be more comfortable granting relief.  
 
When we design our arguments to appeal to the “tough on crime” narrative, we reinforce the idea that people accused or convicted of violent crimes are somehow less deserving of mercy. We risk building reforms around an exclusionary narrative that may hurt the movement in the long run and make it more difficult to go back later and seek justice for those we left behind. Sometimes, an incremental approach is necessary to get judges or the public more comfortable with alternatives to imprisonment. But until we stop relying on caging people as a response to violence, the U.S. will continue to have the highest incarceration rate in the world.
 
We need to challenge the “law and order” rhetoric that drove mass incarceration in the first place. This starts by unpacking how we define concepts like “danger,” “criminal,” and “violence.” Many studies have shown that Black men receive harsher charges, especially when the victim is white. This means that what society chooses to prosecute as violent is political and heavily influenced by race. Standard definitions of what and who we consider dangerous are not natural or self-evident; they are made.
 
For medically vulnerable people in jails and prisons, the courts’ concept of danger is irreparably undermining both health and safety by putting them, prison staff, and the general public at risk. That’s why the ACLU is asking the courts to release those most in harms’ way from infection. Judges do not have to overturn someone’s sentence or free them without obligations prior to trial. For people serving sentences, judges can let them continue to serve their time in home confinement or another appropriate setting until the pandemic has passed. For people awaiting trial, judges can order reporting requirements or more restrictive measures like home confinement.
 
In either case, underlying allegations or offenses should not guide courts’ decisions on how to protect the public. The burden has to be on the government to show with compelling evidence that someone is a credible threat of flight or violence, so much so that this threat outweighs the risk of severe illness or death that comes with continued incarceration.
 
Fortunately, some courts have bucked the trend and ordered the government to prioritize medically vulnerable people for review for home confinement, including those whose primary or prior offense was classified as violent. But this is not enough. More judges need to reject the unsubstantiated and racially charged cries for harsh punishment. Further, communities must demand that other actors — law enforcement, governors, and prosecutors — expand their vision beyond the “low hanging fruit” of reforms that prioritize the rights of a few, while leaving many others behind. Genuine reform will require us all to rethink how we address serious crimes and question whether incarceration is the best solution, rather than a more holistic economic and political approach.
 
 

Supreme Court Says Firing Workers Because They Are LGBTQ Is Unlawful Discrimination

In a landmark win for LGBTQ people, the Supreme Court today ruled that firing employees because of their sexual orientation or gender identity is sex discrimination that violates federal law. Today’s decision clarifies for the first time that LGBTQ people are protected from employment discrimination from coast to coast, including in states and cities that have no express protection for LGBTQ people in their own laws.  

While this ruling is a groundbreaking advance for LGBTQ people, there are still significant gaps in federal civil rights law that Congress must fill by passing the Equality Act

Today’s ruling came in three cases raising related issues. Harris Funeral Homes, Inc. v. EEOC and Aimee Stephens, involved Aimee Stephens, who worked for six years as a funeral director at a funeral home in Detroit. Her boss knew her as a man, but Aimee knew since she was little that she was female. After decades of hiding who she really was, Aimee realized she had to come out to the world as her true self or she couldn’t go on living. Gathering enormous courage, Aimee told her co-workers and her boss that she was a woman. Her co-workers didn’t have a problem, but her boss fired her.  

Don Zarda was the plaintiff in another of the cases decided today, Altitude Express, Inc. v. Zarda. Don was a sky diver who found his dream job teaching sky diving on Long Island, New York. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. While preparing for a jump, Don told a female customer that he was gay in an effort to make her more comfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer. Heterosexual people don’t get fired for telling people they’re straight, so Don understood this was discrimination.  

The third case was brought by Gerald Bostock, who was fired from his job as a social worker for at-risk youth after his employer learned he was gay.  

All three workers sued, asserting that it was sex discrimination to fire them for being gay or transgender. The Supreme Court agreed, holding that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Indeed, it’s clear that each employee’s sex was central to the reason they were fired. If Don Zarda or Gerald Bostock had been women attracted to men, instead of men attracted to men, they wouldn’t have been fired. And there is no way to understand Harris Funeral Homes’ decision to fire Aimee without talking about her sex and her decision to transition her gender.  What else could this be other than a decision based on her sex?  

But even with this victory, our work is not done. Today’s decision should mean that LGBTQ people are protected from discrimination not only in employment, but in every context under federal law where sex discrimination is prohibited. In addition to employment, federal laws against sex discrimination cover housing, education, health care, jury service, and credit.  But there are important contexts where sex discrimination is still legal under federal law: businesses open to the public and recipients of federal grants, like soup kitchens and drug treatment programs. The Equality Act would plug those holes and protect LGBTQ people as well as all women from these kinds of discrimination. It would also update the range of businesses covered under the federal civil rights law so that forms of discrimination like racial profiling in stores and by ride-sharing services become illegal.  

Tragically, neither Aimee nor Don lived to see the decisions from the Supreme Court in their landmark cases. Aimee died last month from kidney failure that was exacerbated by her loss of health insurance when she was fired because she was transgender. Don died several years ago in a sky-diving accident.  

Today is not just a day to celebrate progress for LGBTQ people, it’s a day to thank Aimee, Don, and Gerald for putting themselves forward through these cases in order to help millions of people all across the country. And it’s a day to thank Aimee and Don’s families for continuing their cases in their honor. Without heroes like them, the protections in our legal system would not work.  

It’s also a day to tell Congress to finish this work, update the Civil Rights Act, and ensure comprehensive anti-discrimination protections for all of us nationwide.  

Congress Can Lead the Charge on Divesting From Law Enforcement

As a former Hill staffer, I know how the sausage gets made: the backroom deals, the pet projects, and the extreme partisanship. Our current moment requires far more than the ego, moderation, and compromise that is typically reflected in federal legislation. This country’s recognition — finally — of the devastation and destruction that comes from the over-policing and over-criminalization of Black bodies and communities warrants real, meaningful change. The acknowledgment that Black Lives Matter — finally — demands bold and visionary leadership at the national level.

That audacious vision is divestment. We must stop investing in racist and brutal policing systems. Instead, we must start resourcing the Black and Brown communities that have been harmed by these “law and order” institutions. Elected officials must dramatically reduce law enforcement budgets and put that savings into systems that could enfranchise Black and Brown people — housing, education, employment, and health care. And providing full access to these segments of our society means removing police from them. School discipline, mental health crises, and homelessness should not be met with a police response.

Divesting from police must happen at all levels of government. At the federal level, divestment looks like an end to the Department of Defense’s 1033 program, which gives law enforcement military weapons and equipment that are used against communities and protestors. It is an end to COPS grants that put police in schools and fuel the school to prison pipeline. Divestment is prohibiting Byrne JAG dollars from being used to continue low-level arrests, the failed drug war, and the destruction of Black and Brown communities. These dollars can and need to be better spent.

We know what policies and practices will not work because we have been here before. Michael Brown. Eric Garner. Breonna Taylor. George Floyd. The list of names does not stop here. Their lives deserve more than hashtags and slogans. They deserve much more than what elected officials have done to date. Members of Congress cannot continue to throw taxpayer money at another commission or study to determine the failings of law enforcement. Federal dollars cannot support more training, more technical assistance, more “checking the box” in the name of reforming the police.

The federal government must invest in state and local communities differently. It must get out of the business of funding arrests and incarceration. And in the limited instances in which there would be law enforcement and community encounters, there must be measures to protect against police violence and ensure accountability when there is misconduct. Congress must model a national use of force standard that makes deadly force a rare, last resort. This respect for the sanctity of life must also be reflected in federal laws that prohibit the use of chokeholds and carotid holds. And if these laws are violated, there must be transparent and certain policies with which to hold police responsible.   

As we mourn and protest the Black lives lost, 21st Century policing should look dramatically different than the current status quo. If federal lawmakers are truly up for taking on the country’s entrenched, racist, and violent policing systems, born out of slave patrols, they have the vocal and organized backing of constituents to get this done. Now is not the time to dust off old bills and offer them as the way forward. Now is the time for divestment.
 

Policing the Press: A Journalist on the Frontlines

Journalists covering protests against police brutality across the country are facing an influx of violence, suppression efforts, and arrests by police. Since the George Floyd protests began, there have been more than 400 claims of aggressions against the press, according to the U.S. Press Freedom tracker. Violations include being assaulted with pepper spray and rubber bullets, dealing with damaged equipment, and even facing arrest. This week, At Liberty is joined by Jared Goyette, a freelance reporter who was hit in the eye with a police projectile while covering a protest in Minneapolis. 

“There’s always been a degree of tension between police, protesters, and media,” said Goyette of the protest at which he was attacked. “They are tense environments…But based on my experience in these types of events, this was markedly different than anything I’d seen before. It was different by the degree of the lack of clear communication. And it was different in the degree to which the projectiles coming from police seemed continuous, and to some degree arbitrary.”

Goyette is now the named plaintiff in a lawsuit the ACLU of Minnesota filed last week against the City of Minneapolis, seeking justice for the violence he and other journalists experienced covering the protests.

“There’s a feeling of just being in a historic and important moment and wanting to do as good a job as possible to document it,” Goyette told At Liberty. “And there’s just so much happening at once. As journalists, we’re doing the best we can.”

Policing the Press: A Journalist on the Frontlines

Journalists covering protests against police brutality across the country are facing an influx of violence, suppression efforts, and arrests by police…

Listen to this episode

My Abortion Allowed Me to Control My Own Destiny. Millions of Others Deserve The Same Chance.

I never expected to get an abortion. But I knew I could tell my mother. I grew up in New York and abortion was still illegal when I was born. One of my earliest memories is being in the car with my mother when she turned to me and told me that if I ever needed an abortion, I should let her know, because she “knew a lot of doctors.” My mother survived the Holocaust by hiding in a Catholic boarding school in the South of France. Her parents were active in the Jewish French resistance, and my grandmother helped my grandfather escape from Beaune-la-Rolande, a French-run Nazi transit camp which fed Jews to Auschwitz. My mother knew a thing or two about defying unjust laws. 
 
Any day now, the U.S. Supreme Court is due to hand down its decision on an unjust law in Louisiana. The Court’s decision in June Medical v. Russo could drastically alter the ability of people in the United States to access abortion. June Medical involves a law in Louisiana that requires doctors at abortion clinics to have admitting privileges at a local hospital. This is so even though abortion is one of the safest medical procedures and admitting privileges for abortion providers have no correlation to women’s safety. If left in place, Louisiana will be left with one doctor in the entire state permitted to perform abortions. One doctor to serve the 1 million women of reproductive age in Louisiana. The politicians in Louisiana justify this law as “protecting women’s health,” even while Louisiana has the highest maternal death rate in the country. The politicians also ignore that autonomy is intrinsic to health. Women cannot be healthy if we cannot control our destiny. And the Supreme Court does not need to overturn Roe v. Wade to make abortion an impossibility for millions of women. Already, abortion access is dying the death of a thousand cuts. As of 2017, 89 percent of counties in the U.S. lacked an abortion provider, and 38 percent of women of reproductive age lived in a county without a clinic.
 
If I had not been able to control my reproductive life, I do not think I would have been able to craft my resulting career. When I unexpectedly became pregnant in my twenties, I was just starting out in my legal career, and not ready personally or professionally to be a parent. When I was more settled, I did have two wonderful children. I dedicated my professional life to fighting gender-based violence. I worked for more than 20 years as a legal aid lawyer representing low-income domestic violence survivors (some of whom were prevented by their partners from getting abortions), and then joined the local government in my city to improve policies on intimate partner violence and human trafficking. And now I get to fight for reproductive rights at the mothership — the ACLU of Southern California. 
 
Even though I had my abortion over 25 years ago, and I have never hidden it from friends and family, this past year is the first time that I have spoken publicly about it. I feel obligated to normalize this experience — to add my story to the multitude of others that show how many people have exercised their right to have an abortion, and how our lives were saved by this ability. I am privileged to be able to share my story with support from my personal and work families, and I recognize that not all people enjoy this option. I feel impelled to speak out since I can, particularly since so many others cannot. One in four women in the United States will get an abortion in their lifetime, but many don’t feel they can talk about it.
 
Access to abortion enables us to control our destiny, to be truly free. I was privileged from a young age to know that I would always be able to control that destiny — because my parents knew doctors; because I had a job that gave me health insurance; because I lived in a state that protected my rights. But it shouldn’t matter where you work, what your ZIP code is, or whom your parents know, to be free. Let’s hope the Supreme Court doesn’t leave freedom to the states.

Defunding the Police Will Actually Make Us Safer

This OpEd first appeared on Cosmopolitan.

Almost exactly six years after NYPD officers murdered Eric Garner in New York City, Minneapolis police officers murdered George Floyd. Activists, advocates, and protestors are still screaming “I can’t breathe” and begging government officials for police reform that will end police violence in Black communities. But today’s demands are bigger and bolder: Now, protesters are advocating for systemic changes that require a complete reimagining of law enforcement in the United States.

American policing has never been a neutral institution. The first U.S. city police department was a slave patrol, and modern police forces have directed oppression and violence at Black people to enforce Jim Crow, wage the War on Drugs, and crack down on protests. When people ask for police reform, many are actually asking for this oppressive system to be dismantled and to invest in institutions, resources, and services that help communities grow and thrive. That’s why many protestors and activists, following in the footsteps of Black-led grassroots groups, are demanding immediate defunding of police departments.

The idea of defunding, or divestment, is new to some folks, but the basic premise is simple: We must cut the astronomical amount of money that our governments spend on law enforcement and give that money to more helpful services like job training, counseling, and violence-prevention programs. Each year, state and local governments spend upward of $100 billion dollars on law enforcement—and that’s excluding billions more in federal grants and resources.
 
Budgets are not created in a vacuum. They can be changed through targeted advocacy and organizing. We can demand that our local officials (including city council members and mayors) stop allocating funds for the police to acquire more militarized equipment and instead ask for that money to go toward community-run violence-prevention programs.
We can demand that our federal government redirect the money that funds police presence in schools to putting counselors in schools instead.

Funneling so many resources into law enforcement instead of education, affordable housing, and accessible health care has caused significant harm to communities. Police violence is actually a leading cause of death for Black men: A recent study found that 1 in 1,000 Black men can expect to be killed by police, and public health experts have described police violence as a serious public health issue. For a country like ours, which considers itself a modern democracy that pushes ideals of freedom and justice for all, that number should be truly shocking.

We can demand that our federal government redirect the money that funds police presence in schools to putting counselors in schools instead.
Funneling so many resources into law enforcement instead of education, affordable housing, and accessible health care has caused significant harm to communities. Police violence is actually a leading cause of death for Black men: A recent study found that 1 in 1,000 Black men can expect to be killed by police, and public health experts have described police violence as a serious public health issue. For a country like ours, which considers itself a modern democracy that pushes ideals of freedom and justice for all, that number should be truly shocking.

We have little evidence, if any, to show that more police surveillance results in fewer crimes and greater public safety. Indeed, funneling police into communities of color and pushing officers to make arrests just perpetuates harm and trauma. Yet since the 1980s, spending on law enforcement and our criminal legal system has dramatically outpaced that in community services such as housing, education, and violence prevention programs. Those are the institutions that help build stable, safe, and healthy communities.
 
For example, Los Angeles’s budget gives police $3.14 billion out of the city’s $10.5 billion. Spending on community services such as economic development ($30 million) and housing ($81 million) pale in comparison to the massive LAPD budget. (On Wednesday night, after years of Black Lives Matter grassroots activists demanding a cut in LAPD’s budget, Los Angeles Mayor Eric Garcetti announced he would cut $100 million to $150 million from the LAPD budget and reinvest those funds in communities of color.) Similarly, in New York City, the government spends almost $6 billion on policing, which is more than it does on the Department of Health, Homeless Services, Housing Preservation and Development, and Youth and Community development combined.
 
By shrinking their massive budgets, we can help end decades of racially driven social control and oppression as well as address social problems at their root instead of investing in an institution that further oppresses and terrorizes communities.

In addition to divesting from police and reinvesting the savings in nonpunitive programs that benefit public safety and health, there are other critical steps we need to take to foster the systemic change people across the country are calling for:

  1. End enforcement of minor offenses that drive street-level harassment. We can do this by repealing laws across the country that criminalize minor behaviors and passing laws that legalize activities such as marijuana possession and distribution.
  2. End the presence of police in schools, which exacerbates racial inequalities, puts immigrant students at risk of deportation, and limits opportunities accessible to low-income students. (Minneapolis Public Schools just voted to end its contract with the city’s police department.)
  3. Develop mobile crisis services, peer crisis services, and crisis hotlines and warmlines (where people can call when they just need to talk to someone who understands what it’s like to live with mental health problems) to support people who have a behavioral or mental health crisis.
  4. Ban pretextual stops and consent searches that act as common mechanisms for police to engage in racial profiling and circumvent legal standards.
  5. Implement common-sense, civilly and criminally enforceable legal constraints so there will be only rare instances in which officers are able to use force against community members.

For too long, the focus on police reform has been dominated by reforms that try to reduce the harms of policing rather than rethink the overall role of police in society. But six years after the Black Lives Matter movement rose to national attention, activists across the country are coming together to demand what many have known has been the solution all along: defund the police.

Microsoft Says It Supports Racial Justice. Will They Refuse to Power Discriminatory Police Surveillance?

As major tech companies rush to claim solidarity with the Black Lives Matter movement, they’re being rightfully called out for the ways their products and workplace conditions actively undermine the rights and safety of Black people. IBM has listened and stopped development of face recognition, a technology that supercharges police surveillance and has repeatedly been shown to disproportionately misidentify Black and Brown people. Amazon, after two years of doubling down on the sale of this harmful police surveillance technology, today announced it too would stop selling the technology to police for one year. 

But these aren’t the only tech companies that deserve our scrutiny. Microsoft, which has issued a number of statements in support of Black Lives Matter, has not prohibited the sale of its face recognition system to police departments — institutions with a long record of systemic racism and disproportionate targeting of Black and Brown communities.

Face surveillance threatens the privacy rights of all, but the harms of this technology are not experienced equally. A recent comprehensive government study conducted by the National Institute of Science and Technology found that African American and Asian people were up to 100 times more likely to be misidentified than white men, depending on the algorithm and type of use. Even one wrong match can lead to false arrests, lengthy interrogations, or even deadly police encounters — all too common racist police abuses that people of color already experience on a daily basis.

This technology is a threat to civil rights even if the algorithms are cured of issues that currently make many systems less accurate for Black faces. Police have already deployed these systems against people protesting the police killing of Freddie Gray in Baltimore. Florida police have used facial recognition to charge and convict people under racist drug laws, even when the results may be wrong. Facial recognition — by making the tracking and scrutiny of people automatic and easy — grants police unprecedented and dangerous power to expand intrusive patrols and the enforcement of racist laws and policies.

Not only does Microsoft build and sell face surveillance technology, it is also on a mission to enact laws to protect that business. This year in California, Microsoft supported a pro-surveillance bill that would have legitimized the use of these systems by both cops and private companies. The ACLU of California and a coalition of 65 groups — including those fighting for racial justice, immigrants’ rights, and economic justice — fought for months to stop Microsoft’s bill.

That bill, AB 2261, failed last week because of our coalition’s efforts. But we have no reason to believe Microsoft will stop trying to write rules that support its surveillance technology business. In fact, similar legislation was recently signed into law in Washington state.

The world Microsoft seems to want is one where police have an invisible but inescapable surveillance presence in our communities. Where an infrastructure exists to scan your face and identify you as you walk down the street, go to a protest, attend a place of worship, and participate in public life. Building a surveillance apparatus this big would have severe consequences — chilling demonstrations, fueling a for-profit surveillance industry, and creating racist watchlists that governments and businesses will use for discriminatory ends.

Microsoft’s legislative efforts are also deeply anti-activist and anti-democratic. The bill introduced in California sought to erase local bans on government facial recognition championed and secured by grassroots racial justice organizations in partnership with the ACLU. These bans have now become law in half a dozen U.S. cities.

Microsoft may say it is ready to champion racial justice — but the truth is that some of its business practices risk perpetuating police abuse. Microsoft has reportedly sold its facial recognition software to at least one American prison and funded an Israeli facial recognition firm that surveils Palestinians in the West Bank. It is no surprise that 250 Microsoft employees just called on Microsoft to cut off its contracts with police.

Technology companies with face surveillance products should follow the first steps taken by IBM, which in addition to ceasing development of its facial recognition product, is reconsidering police sales altogether. This decision follows groundbreaking research by Joy Buolamwini and Timnit Gebru to uncover the racial bias in facial recognition systems sold by IBM and others.

The ACLU and our civil rights allies will stay vigilant and focused on what companies like Microsoft do, not just what they say. We continue our calls on Microsoft and other companies selling this technology to demonstrate a commitment to racial justice by divesting from facial recognition that fuels the over-policing of communities of color. If these companies believe that Black Lives Matter, the least they can do is announce that they will refuse to perpetuate and profit off our racist criminal justice system.

Sex Work is Real Work, and it’s Time to Treat it That Way

Sex workers aren’t always a part of the conversation about police brutality, but they should be. Police regularly target, harass, and assault sex workers or people they think are sex workers, such as trans women of color. The police usually get away with the abuse because sex workers fear being arrested if they report. If we lived in a world that didn’t criminalize sex work, sex workers could better protect themselves and seek justice when they are harmed. 

Protecting sex workers from police violence is just one of the reasons we need to decriminalize sex work. It would also help sex workers access health care, lower the risk of violence from clients, reduce mass incarceration, and advance equality in the LGBTQ community, especially for trans women of color, who are often profiled and harassed whether or not we are actually sex workers. In 2020 the call for decriminalization has made progress, but there are still widespread misconceptions about sex work and sex workers that are holding us back. Some even think that decriminalization would harm sex workers. That isn’t true. 

Here are five reasons to decriminalize sex work that would protect sex workers, help hold police accountable, and ensure equality for all members of society, including those who choose to make a living based by self-governing their own bodies.

Decriminalization would reduce police violence against sex workers

Police abuse against sex workers is common, but police rarely face consequences for it. That’s partly because sex workers fear being arrested if they come forward to report abuse. Police also take advantage of criminalization by extorting sex workers or coercing them into sexual acts, threatening arrest if they don’t comply. Criminalizing sex work only helps police abuse their power, and get away with it. 

If sex work were decriminalized, sex workers would no longer fear arrest if they seek justice, and police would lose their power to use that fear in order to abuse people.

Decriminalization would make sex workers less vulnerable to violence from clients

Like the police, sex workers’ clients can also take advantage of a criminalized environment where sex workers have to risk their own safety to avoid arrest. Clients know they can rob, assault, or even murder a sex worker — and get away with it — because the sex worker does not have access to the same protections from the law. 

Sex workers became even more vulnerable to abuse from clients after the passage of SESTA/FOSTA in 2018. The ACLU opposed this law for violating sex workers’ rights and restricting freedom of speech on the internet. SESTA/FOSTA banned many online platforms for sex workers, including client screening services like Redbook, which allowed sex workers to share information about abusive and dangerous customers and build communities to protect themselves. The law also pushed more sex workers offline and into the streets, where they have to work in isolated areas to avoid arrest, and deal with clients without background checks.

Decriminalization would allow sex workers to protect their own health

Sex workers sometimes go without medical care out of fear of arrest or poor treatment by medical staff if it comes out that they are a sex worker. And because the law doesn’t treat sex work like a real job, sex workers do not have access to employer-based health insurance, which means that many cannot afford care. 

Criminal law enforcement of sex work comes with unjust police practices, like the use of condoms as evidence of intent to do sex work. As a result, some sex workers and people who are profiled as sex workers may opt not to carry condoms due to the risk of arrest. This puts them at risk of contracting HIV and other sexually transmitted diseases.

Decriminalization would advance equality for the LGBTQ community

Sex work criminalization laws impact the whole LGBTQ community because members of the community — particularly LGBTQ people of color, LGBTQ immigrants, and transgender people — are more likely to be sex workers. The passage of anti-sex work laws like SESTA/FOSTA harms the community by dramatically decreasing incomes, which further marginalizes members of the trans community, people of color, or those with low incomes to begin with. 

Trans women of color feel the impact of criminalization the most, whether or not we are sex workers. Police profile us and often press prostitution charges based on clothing or condoms found in a purse. We can’t go about our lives without fear of being targeted by police. 

If sex work is decriminalized, police would have one less tool to harass and marginalize trans women of color. Sex workers, and especially trans women, would be more able to govern their own bodies and livelihoods. Decriminalizing sex work would promote the message that Black trans lives matter.

Decriminalization would reduce mass incarceration and racial disparities in the criminal justice system

The criminalization of sex work feeds the mass incarceration system by putting more people in jail unnecessarily. Those incarcerated tend to be trans and/or people of color, two groups that are already disproportionately incarcerated. One in six trans people have been incarcerated, and one in two trans people of color. 

Incarceration is violent and destructive for everyone, and even more so for trans people. While incarcerated, trans people are often aggressively misgendered, denied health care, punished for expressing their gender identity, and targeted for sexual violence. 

An arrest on charges of sex work can result in life-changing consequences that last long past the end of a sentence. A criminal record can prevent you from accessing an accurate ID, jobs, housing, health care, and other services. It can also lead to deportation for immigrants. Members of the trans community and sex workers already face discrimination in many of these systems. A criminal record further marginalizes and stigmatizes being trans or engaging in sex work. 

Decriminalizing sex work would be a major step toward decarceration and reducing racial disparities in the criminal justice system. It would keep sex workers from being harmed by the collateral consequences of a criminal record. It would help prevent the marginalization of sex workers and destigmatize sex work.

How to decriminalize sex work

The ACLU has supported decriminalizing sex work since 1973, and it became an official board policy in 1975. Since then, affiliates across the country have advocated for decriminalization at the state level by striking down laws restricting sex workers’ rights, such as condoms-as-evidence laws. 

The fight continues in 2020, with active decriminalization bills in several state legislatures and advocates pushing elected officials like district attorneys to take pledges to not prosecute sex work. At the federal level, Congress has introduced the SAFE SEX Worker Act, which would study the effects of SESTA/FOSTA. There is a chance for progress if we educate each other on sex workers’ rights and pressure elected officials to decriminalize. 

Sex workers deserve the same legal protections as any other people. They should be able to maintain their livelihood without fear of violence or arrest, and with access to health care to protect themselves. We can bring sex workers out of the dangerous margins and into the light where people are protected — not targeted — by the law. 

Three Missouri Voters Explain Why Everyone Should be Able to Vote by Mail in 2020

The COVID-19 pandemic has changed the way the world operates, but as the presidential election approaches, many states have failed to respond when it comes to voting. The safest way to vote during the pandemic is to vote by mail, but state restrictions block many voters from doing so. The ACLU has sued 10 states for restricting access, including Missouri, where the state legislature just voted to expand access in 2020. While the Missouri legislature win was a major step toward progress, the state is still restricting access by requiring most voters to notarize their mail-in ballots — which means they have to violate social distancing recommendations to vote by mail. 

The ACLU is fighting the notarization requirement on behalf of voters like Cecil Wattree and Javier Del Villar — two Missourians who joined the original lawsuit because they wanted to exercise their right to vote by mail. Cecil, Javier, and fellow Missouri voter Kamisha Webb shared their stories with the ACLU to show why voting by mail should be accessible — and safe  — for all. 

Vote by mail to protect Kamisha

For Kansas City resident Kamisha Webb, going to the polls could put her life in jeopardy. Kamisha has asthma and a condition called hereditary angioedema, which requires her to use a nebulizer machine, various medications, and biweekly injections to manage her health. A cold or flu could land her in the ICU. Contracting COVID-19 could be fatal.

Kamisha is doing everything she can to be safe. She stays at home on paid leave from her job because teleworking isn’t an option. She talks to her grandmother virtually, despite wanting to see her in person. But she’s worried she may not be able to take similar safety precautions when it comes to voting. 

“I feel like I have to choose whether to exercise my right to vote, or risk putting my life on the line,” she tells the ACLU. “And no one should have to mix the two, ever.”

Kamisha first learned about absentee voting when she overheard people signing up at a polling place during the 2018 midterm election. She learned that it was an option for people who are sick, for example, or have a disability that hinders their ability to vote in person. 

“I just thought, wow, that’s so cool to have a process in place for individuals to still vote if they’re not able to physically go to the polls,” Kamisha tells the ACLU. “It would be wonderful if we could take that same idea and make an exception due to COVID-19. Whether or not someone has a health condition, we have a deadly virus on the loose. We should all have the right to not only vote, but to be safe in doing that.”

People of color will likely be harmed most by restricting access to voting by mail. Voter suppression efforts already target people of color nationwide, and COVID-19 disproportionately affects people of color, particularly the Black community, to which Kamisha belongs. She attributes this to the prevalence of underlying health conditions, lack of access to health care and insurance, and discrimination in medical care. On the higher death rates in the Black community, Kamisha is “saddened, but not surprised.”

Kamisha joined the Missouri lawsuit not only because she is at risk, but because she believes everybody should be able to vote by mail during the pandemic. If the court rules in her favor, she says she will be overcome with joy: “I’m kind of filled with emotion just thinking about it.”

Vote by mail to protect Cecil’s daughter

By the time she turned eight, Cecil Wattree’s daughter, Allyn, had gone through open heart surgery, multiple strokes, was placed on a ventilator, and was on a waiting list for a heart transplant — among other ailments and surgeries resulting from her being born with hypoplastic left heart syndrome. 

“It’s a gift of God that she recovered to the point where she is able to function,” says Cecil. “But it still leaves her immunocompromised when it comes to her lungs and her heart.” That makes Allyn high risk to COVID-19. When the ACLU sued Missouri, he joined the lawsuit, explaining, “I’m in a unique position to be able to advocate for my daughter.”

Cecil constantly worries about exposing his daughter to the virus, especially because he still has to go to work at a primary care clinic. The clinic has taken precautionary measures, and Cecil is being “super hyper vigilant” at home because of his daughter. 

“When I come home, I have to pretty much take all my clothes off in the garage or the cellar and then run into the bathroom and take a shower before I even see Allyn,” says Cecil. “Even after that, it’s a struggle to be safe when you have a highly affectionate eight year old who wants to be in your arms. I always worry that I might have encountered the virus in some way.”

It doesn’t help that as a Black man, Cecil has to navigate a world where his race directly impacts his ability to stay safe. He thinks twice about visiting a store wearing a mask in a white neighborhood. And he’s seen discrimination in medical care firsthand with his own daughter: “When Allyn had a stroke, the doctors didn’t believe she had one, even though she showed symptoms. I had to advocate so hard just to get them to look at her and give her a CT scan.” 

He worries about what this means when it comes to COVID-19, which has symptoms similar to the flu or cold: “How am I going to get them to take it seriously?”

Cecil wants to be as safe as possible and vote absentee in November — but having a vulnerable daughter, being Black, and being an essential worker doesn’t make you eligible in Missouri. 

“A lot of people have fought and died for my ability to vote,” says Cecil on why voting is so important to him. “Being able to vote by mail would give me a sense of protection while also ensuring that I can exercise my right to have a say in the direction this country’s going.”

No matter the outcome of the lawsuit, however, Cecil knows he’s privileged to have the option to vote in person when it comes down to the wire. “There are people who have no availability, no transportation, whose health is already compromised. To tell them to social distance while not allowing their voices to be heard is to take advantage of the current situation to suppress voters.”

Vote by mail to protect Javier’s community

As a 29 year old without pre-existing medical conditions, Javier is not considered by the CDC to be high risk to COVID-19. But Javier works for the national delivery service, making him an essential worker who comes into contact with the whole community on a daily basis. 

“In delivery, I feel like I’m helping people get what they need, because we do a lot of medical supply deliveries,” says Javier. “So it feels good. At the same time, it feels uncomfortable just knowing that the people receiving those deliveries are often out of work, while I am working.”

While millions of people have lost their jobs in the past few months, Javier’s work has gotten even busier, with longer hours and more packages delivered each day. He calls it “Christmas volume.” Due to stay-at-home orders in the community, he’s also encountering more people when he delivers packages to their homes. Often, they want to come out and talk to him. “You really get the vibe that people just want to talk and see someone and interact,” he says. 

He’s noticed a range in responses to COVID-19 safety measures in the people he encounters.

“Some customers wave through their window and then will come out with a bleach bottle and spray down the package I just left at their door. Parents will yell at their kids to not touch the package if they come running out. And then there are some people who will just pick up the package and take it inside like it’s any other day. Everyone’s handling it differently.”

Javier can’t control what others do, but he takes his own precautions like wearing latex gloves while working, even though it’s not required by his job. When a customer wants to chat, he tries to keep his distance. If he comes down with symptoms similar to COVID-19, like he did in March, he stays home. Javier does what he can to stay safe in all areas of his life, so he wants to do the same when it’s time to vote in November. 

He knew voting by mail would be the safest way to vote during the pandemic, but he was surprised to find out how restrictive Missouri’s absentee voting criteria are. He says it’s a concern for the people he encounters on his delivery route, too. 

“I’ve talked to a good amount of people about it within the last two weeks,” he explains. He thinks that people will be more likely to vote if they can do it from home with an absentee ballot — especially considering the pandemic. 

“Voting is a basic, fundamental part of a democracy and it needs to be viewed more as a celebration and an essential part of every American’s duty if you will, to vote or not vote, but it still should be looked at as like a national holiday.”
 
“I picture Missouri at the forefront of changing ideology in the United States,” says Javier. “If we’re able to do something progressive in Missouri, I think the rest of the country would be able to see that as a positive thing.”

The stories of Kamisha, Cecil, and Javier show why voting by mail is a necessary option for everyone, regardless of their circumstances. There have been bipartisan efforts to expand access to vote by mail in states including Alabama, Indiana, New Hampshire, New York, and West Virginia. States should take additional measures, such as expanding early vote periods, preparing for a surge in absentee ballots, and doing away with unnecessary requirements like getting a witness signature or having to pay for postage. At the same time, states must ensure safety for those who choose to vote in person as well as poll workers. Nobody should have to risk their health to vote. 

For information on how to vote by mail, see the absentee voting guide

Why is it so Hard to Hold Police Accountable?

Police are supposed to “protect and serve” the community, but that’s a far cry from what modern-day policing often looks like in our country. The recent murders of Breonna Taylor, Tony McDade, George Floyd, and others highlight the need for drastic systemic change, yet again, as Americans across the country take to the streets in protest.

“The reason I’m out here is because I have two college degrees, but yet I’m still treated like I’m nothing,” one protester in Brooklyn told At Liberty this week. “I’m tired of hearing, there are a few rotten apples. There’s not a few rotten apples. The tree is rotten. The tree is rotten from the roots up.”

ACLU Policing Policy Advisor Paige Fernandez joined us on the podcast this week to walk us through the history of our problematic policing systems, and explains both why it’s so hard to hold police accountable, and how the ACLU plans to address this immense problem moving forward.

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Why is it so hard to hold police accountable?

Police are supposed to “protect and serve” the community, but that’s a far cry from what modern-day policing often looks like in our country. The rece…

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Reimagining the Role of Police

Over the last week, ACLU staff across the country have worked as legal observers; educated protesters about their rights; been arrested, tear-gassed and hit with rubber bullets; challenged curfews; organized town halls; talked to victims of police abuse; donated money to Black Lives Matter, local bail funds and other groups; and strategized about transformational change.

The ACLU is busier than ever — let’s not forget this is happening amidst a pandemic and during the Trump administration — but we don’t hesitate to prioritize this work at this time because we have witnessed this reality of police violence all too often.

The ACLU’s advocacy against police violence began in the 1920s, shortly after our founding, and has continued for the next 100 years. In 1931, we spearheaded the issuance of a government report, “Lawlessness in Law Enforcement.” In 1965, in response to the Watts Rebellion, we opened our first storefront office to directly document police abuse. In 1991, following the police beatings of Rodney King, we launched a fight against racial profiling, resulting in litigation and a vibrant nationwide advocacy effort. In 2015, we published “Picking up the Pieces,” a report documenting biased policing in Minneapolis. ACLU reports from New York, Chicago, Newark, Philadelphia, Boston, Detroit, and Nebraska have all documented police departments that reserve their most aggressive enforcement for people of color generally — and Black people in particular.
 
Despite the tireless work done by so many in the ACLU to address police violence in communities of color, there’s a fundamental truth that we must confront: It has not worked. Black people continue to be murdered and brutalized by police with near impunity. More of the same won’t fix this problem.

As we look to the future, the ACLU unites behind the profound fight that groups like Movement for Black Lives have been leading: the fight for a completely reimagined vision of the role, presence, and responsibilities of police in America.
 
The fight will be complex, but in practice what we want can be clearly stated: We need to fundamentally change the role of police in our society, and that role has to be smaller, more circumscribed, and less funded with taxpayer dollars. Money saved from reducing the size and scope of police departments must be reinvested into community-based services that are better suited to respond to actual community needs. Doing so will foster improved safety and health outcomes, and present opportunities in Black communities, where decades of underinvestment in everything except police has helped fuel a mass incarceration crisis.

HOW WE GOT HERE

Let’s talk about policing the way we too often don’t. The underlying problem with policing isn’t just the lack of oversight policies, more training, and better procedures. While radically changing these three areas remains essential for harm reduction, the problem itself is more insidious.

The core problem is modern policing itself. The original sin of policing in this nation is its attachment to the nation’s first and most devastating sin: chattel slavery. Modern police forces in this country can be traced back to slave patrols used in Charleston, South Carolina. From their inception, police have been tasked with protecting power and privilege by exerting social control over Black people.

Built upon Jim Crow-era racist constructs, spurious social science, and sprawling legal codes, law enforcement has sought to control Black and Brown people through racialized targeting and the criminalization of Black people generally. Since inception, police in the U.S. have been empowered to act as an occupying force in low-income communities and communities of color across the country, funded by astronomical sums of taxpayer dollars.

Every three seconds a person is arrested in the United States. According to the FBI, of the 10.3 million arrests a year, only 5 percent are for offenses involving violence. All other arrests are for non-violent offenses — these include many relatively minor infractions like money forgery, the alleged crime that the cops who killed George Floyd arrived to investigate; or selling single cigarettes without a tax stamp, the crime Eric Garner lost his life for; or for marijuana or other drug possession.

There is a different world, one in which people need not be arrested for many of these offenses or be otherwise racially targeted and criminalized. We can shrink outsized and misused police power and responsibilities, along with their budgets, and strive to ensure they don’t come into regular, unnecessary contact with community members.

We know this is possible because this different world exists today, for communities that are largely white. The harsh reality is that policing in communities of color looks very different than it does in wealthy, white communities. In those communities, police are often only present when responding to specific serious disruptions to the community, rather than just constantly intruding on people’s everyday lives. To understand the impact of this approach, one only has to look at the approach to policing marijuana — which is used at almost equal rates by Black and white people, though Black people are still arrested at a rate that is almost four times that of white people. Racialized policing is the best way to understand this disparity.

White communities are also more likely to see significant investment in community resources that are purposefully and programmatically used to maintain safety, health, and stability, all without police intervention. The lived reality that white communities already enjoy and take for granted is what we are demanding for communities across the country — an end to over-policing, an end to constant surveillance and harassment, an end to enforcement of non-serious offenses, and an end to the targeting of people of color.

WHAT COMES NEXT

Our Vision for 21st Century policing can be accomplished for a fraction of what we currently spend. Current police budgets are enormous, totaling more than $115 billion per year, collectively. Spending on police and the criminal legal system has dramatically outpaced expenditures in community-based services that help people build stable, safe communities. We have an obligation to change this paradigm and support efforts in Black and Brown communities to develop and build community-controlled institutions and interventions that have been proven to improve public safety and health more effectively than oppressive, terrifying, ineffectual, and deadly modern policing.

There are few instances that warrant the deadly use of force we have witnessed in recent years. Certainly not “knee-to-neck” restraint for an allegedly counterfeit bill. Or a chokehold for selling loose cigarettes. Nor a fatal shooting for jaywalking. Or failing to comply with orders to put your hands above your head.

It’s time to prohibit the use of lethal force unless it is absolutely necessary. The “necessary” standard that was just enacted in California, offers an example that we hope to build off in other states and federally by adding an exhaustion of alternatives requirement. 

It’s time to embrace alternatives like civilian-led crisis intervention teams composed of highly trained professionals, including nurses, doctors, psychiatrists, and social workers, to respond to incidents with people who are in mental health crises.
 
It’s time to put more counselors and more teachers — not police — into our schools.
 
It’s time to stop criminalizing families experiencing homelessness.

That is the future worth fighting for. The health and wellbeing of our society depends on it, as do the values we have subscribed to as a nation.

Reducing funding to police departments and reinvesting those funds into Black and Brown communities are necessary steps to prevent further harm and to restore the promise of our Constitution for all people.
 
The ACLU will work to support Black- and Brown-led community organizations to implement a three-part formula to bring an end to our country’s long nightmare with police violence:

  • Prohibiting police from enforcing a range of non-serious offenses, including issuing fines and making arrests for non-dangerous behaviors, thus eliminating many of the unnecessary interactions between the police and community members that have led to so much violence and so many deaths;
  • Reinvesting savings from the current policing budgets into alternatives to policing that will keep local communities safe and help them thrive;
  • Implementing enforceable legal constraints so that there will be only rare instances in which police officers can use force against community members.

These three steps are the most urgent, impactful steps we can take as a country to protect communities from police harm. Together with our partners and allies, the ACLU will help reimagine an effective and far more limited role for police in our country; implement changes that will save lives, advance civil rights and safeguard liberties; and create the conditions to start repairing decades of harm and violence inflicted on overpoliced communities of color.

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