Pregnant Workers Are Still Fighting for the Right to Work

In 2015, Michelle Durham, an ACLU client, was faced with an impossible choice: continue working and risk the health of her pregnancy or give up her paycheck.

She was working as an Emergency Medical Technician (EMT) for Rural/Metro Corporation, a company in Alabama that provides emergency medical care to people living in areas that lack basic medical services. Shortly after joining Rural/Metro Corporation in Alabama, Michelle learned she was pregnant with her first child and was advised by her health professional not to lift more than 50 pounds. She was confident the company would grant her a temporary reassignment, given her employer had a policy of giving “light duty” or “modified duty” job assignments to EMTs when they had lifting restrictions, like a back injury, and dispatcher jobs were available.

Instead, her manager told her that the company only provided such accommodations to EMTs injured while working. The company wouldn’t allow Michelle to continue working as an EMT, forcing her to take an unpaid leave of absence. The news was shattering. As Michelle said:

I was stunned. At that point, I was about six months away from my due date. How was I supposed to live for six months without a paycheck? How could I buy what I needed to prepare for my baby’s arrival? How would I support my son after he was born?

As a result, Michelle was unemployed for seven months, moved in with her grandmother, and accrued credit and medical debt. With so few emergency care jobs in her community, Michelle’s nascent EMT career ended the day Rural/Metro put her on leave.

Unfortunately, Michelle’s story isn’t isolated or unique. Too many pregnant workers continue to face insurmountable obstacles in their workplaces, where employers misunderstand their obligations, and in courtrooms, where judges hinder access to needed accommodations. Despite the clear mandates of the Pregnancy Discrimination Act, the current legal landscape leaves pregnant workers who want to continue working while maintaining a healthy pregnancy exposed and unprotected.

Michelle illustrated this problem in powerful testimony during an October 2019 hearing on the Pregnant Workers Fairness Act (PWFA), legislation that would ensure pregnant workers are no longer denied reasonable accommodations.

Next Tuesday, the House Committee on Education and Labor will move us one step closer to eliminating this form of pregnancy discrimination by holding, for the very first time, a markup and vote on the bipartisan Pregnant Workers Fairness Act (H.R. 2694). This long overdue legislation would protect the health and economic security of workers who, too often, are penalized because of their pregnancy.

Despite the passage of the Pregnancy Discrimination Act more than 40 years ago, we know that discrimination persists and manifests in myriad ways, including through policies that grant some workers a temporary job modification but deny that same accommodation to a pregnant worker with medical needs. This discriminatory treatment overwhelmingly impacts women in low wage, physically demanding, or male-dominated jobs. When pregnant workers are forced to quit, coerced into taking unpaid leave, or fired because their employer refuses to provide a temporary job modification, the economic impact can be severe; if they are the sole or primary breadwinner for their children, as nearly half of working women are, their entire family will be without an income when it is needed most. 

That is why passing PWFA is a dire necessity. The bill would make clear that employers must provide reasonable accommodations for pregnant employees – like a stool to sit on, a schedule change, or a break from lifting heavy boxes – unless doing so would place an undue burden on the business. This is a framework modeled after the Americans with Disabilities Act and one which employers are very familiar with.

PWFA also promotes women’s health. Accommodations make a difference in physically demanding jobs (requiring long hours, standing, lifting heavy objects, etc.) where the risk of preterm delivery and low birth weight are significant. The failure to provide accommodations can be linked to miscarriages and premature babies who suffer from a variety of ailments. This bill would be an important contribution in the fight to improve maternal and infant health and mortality. 

Providing pregnant workers with temporary and reasonable accommodations is a thoughtful, measured, and necessary approach that has been adopted in 27 states – red, blue and purple – across the country. It’s time for members of Congress to act in the best interests of their constituents and ensure that no pregnant worker will have to choose between a healthy pregnancy and a paycheck that supports their family.

It’s time for Congress to pass the Pregnant Workers Fairness Act. 

“Clemency:” Exposing the Machinery of Death

People on death row are the direct object of a deeply flawed system of state killing that is infected by racial and economic disparities and riddled with fatal errors. We currently know of at least 166 innocent people who were wrongfully condemned to die. 

 “Clemency,”  a new film starring Alfre Woodard as a prison warden, explores the brutalizing effect the death penalty has on everyone else in the system — the wardens, prison guards, chaplains, defense lawyers, and their families, as well as the families of the victims and the condemned. The searing power of “Clemency” is its ability to portray the price paid by everyone involved in the death penalty, including, by extension, our society — you and me.

In 1994, after having consistently voted to uphold capital punishment for almost 25 years, Supreme Court Justice Harry Blackmun declared, “I shall no longer tinker with the machinery of death” because “the death penalty experiment has failed.” “Clemency” looks searchingly at all the broken cogs and wheels in that deadly machinery.

The writer and director of “Clemency,” Chinonye Chukwu, was inspired to make this film the morning after a Black, potentially innocent, man named Troy Davis, was executed in a Georgia state prison in 2011. Leading up to his execution, hundreds of thousands of people protested against it, including a handful of retired wardens. These wardens urged the Georgia governor to grant Troy clemency, not just on the grounds of his potential innocence, but also because of the emotional and psychological consequences they knew killing Troy would have on those sanctioned to do so.

After Troy was executed, Chukwu decided to make a film that explores the emotional and psychological consequences of having one’s livelihood tied to the taking of human life. Informed by the experiences of wardens, corrections officers, death row lawyers, and formerly incarcerated as well as exonerated individuals, “Clemency” is grounded in the experiences of those closest to the system of incarceration and depicts a startlingly realistic look into the soul-killing toll the death penalty is taking on our country.

Late in the film, wracked by fits of sleeplessness and nightmares, her marriage on the rocks, Warden Williams cries out, “I am alone and nobody can fix it.” We don’t know what she will do. But after watching “Clemency,” we are reminded that those who care about justice and the dignity of every human life are not alone. We can fix it. We can abolish the death penalty once and for all. 

Iranian Americans Have Rights, Too — No Matter What’s Happening Abroad

Like most Iranian Americans, my family immigrated to the United States in the aftermath of the 1979 revolution in Iran, hoping to find safety and acceptance in a country that prides itself on diversity and freedom of expression. We learned and embraced the principles of the Constitution, including freedom of speech and religion, due process, and equal protection — protections that apply to every person, citizen and non-citizen alike. But what happened at the U.S. border this past weekend was a painful reminder that sometimes, we are still considered outsiders.

In the state of Washington this weekend, U.S. border authorities summarily detained and interrogated Iranian Americans and lawful permanent residents who were on their way home from Canada. Many were returning from holiday trips to visit family in Vancouver, which is also home to a large Iranian community. Many had gone there for a pop concert. Many were simply on vacation. But that’s not the point. The point is that these people — families, young and old, even small children — were singled out because of their Iranian heritage.

The news is highly disturbing, but it isn’t the first time Iranian Americans have faced discrimination based on political tensions outside of our control. Nor is it the first time border and law enforcement officers have conducted unmerited abuses targeting vulnerable communities. We’ve seen the government abuse the rights of Americans of Somali, Afghan, and Pakistani descent following military action as well. But amid the anti-immigrant, Constitution-flouting policies of the current administration, this news was chilling.

The government has the authority to question travelers to verify identity, citizenship, or legal status, and to conduct reasonable searches for contraband. The government cannot, however, question them about their political views, associations with others, and religious beliefs. That raises serious First Amendment concerns. Everyone has basic constitutional protections at the border and ports of entry — and U.S. citizens and lawful residents cannot be denied entry if they refuse to answer such questions.

This administration continuously espouses anti-immigrant rhetoric and follows up with unconscionable abuses — the Muslim ban, family separation, the inhumane detention of children, and many more. It has upended many immigrants’ lives through denaturalization and rescinding Temporary Protected Status, as well. The ACLU has long raised concerns about discriminatory questioning and detention at the border, and our concerns are particularly heightened in the current political climate.

As political tensions continue to flare between the U.S. and Iran, it is important to know our rights — and assert them.

The Constitution guarantees equal protection under the law and protects against discriminatory profiling and violations of First Amendment rights. We cannot allow actions abroad to be exploited as justifications for illegal and unfair discrimination at home.

It Is Time for a New Way Forward

In 1996, at the height of the “tough on crime” era, President Bill Clinton signed two laws that dramatically changed the criminal legal system and radically altered the U.S. immigration system. Just as the 1994 crime bill instituted unjust mandatory minimum sentences and ballooned the prison population, the immigration bills of that same era led to similarly disastrous consequences for immigrants — an explosion in the growth of detention and unfairly harsh punishments for immigrants, including mandatory deportations for minor crimes. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) resulted in today’s draconian immigration enforcement system. The system only expanded with the increased criminalization of immigrants, who are then funneled into the detention and deportation pipeline — often with little to no due process. 

Reps. Jesús “Chuy” Garcia, Pramila Jayapal, Karen Bass, and Ayanna Pressley, in December 2019, introduced the New Way Forward Act (H.R. 5383), groundbreaking legislation that reimagines what a fair and just immigration system looks like. The bill restores fundamental due process protections for immigrants by ending the mandatory detention of immigrants without the right to release on bail while a judge reviews their case — sometimes subjecting people to years of incarceration. The legislation also breaks down automatic pipelines to deportation from the criminal legal system. For example, the bill would end the 287(g) program, which allows local police to act as federal immigration agents, exacerbates racial profiling, and empowers sherriffs, as was the case with Joe Arpaio. The bill would also end the automatic deportation of people who have had contact with the criminal legal system. This legislation also decriminalizes migration by ending federal criminal prosecutions for improper entry and reentry to the U.S. Not only is this a waste of government funding, it also misguidedly treats migration as a criminal act. 

Decades after the failures of the 1994 crime bill, Congress is tackling the injustices of our criminal legal system. Yet many of those same injustices are replicated in the immigration system, and should be similarly addressed. Take for example U.S. Army veteran and ACLU of Southern California client Hector Barajas. After being honorably discharged, Hector — like many veterans who return to civilian life with little support from our government — had difficulty adjusting and served three years in prison for a crime involving a firearm. Hector, a legal permanent resident, was immediately subject to the 1996 immigration laws. During his deportation hearing, the law prevented an immigration judge from considering the equities in his case, including his years of military service. Instead, the law mandated his incarceration in immigration jail, and ultimately required the judge to order him deported. In 2017, Hector received a pardon from Governor Jerry Brown and in 2018, he became a U.S. citizen.

Mark Hwang is another example of someone impacted by the 1996 laws. An ACLU client, Mark was stopped by ICE for changing lanes without a signal. He was on his way to meet his wife and newborn twins, and had his one-year-old in the car. After his arrest, Mark, who was a legal permanent resident, was subjected to mandatory detention and detained without a bond hearing for six months — kept from his children and leaving his wife to care for their three infants — because of a decade old marijuana possession conviction for which he had already served his sentence. Just as he was on the brink of  signing deportation papers, Mark got a bond hearing, thanks to a federal court order in an ACLU lawsuit. Mark was finally released on bond, allowing him a real shot at fighting his deportation. He was able to work with an attorney to have his marijuana charge vacated, removing the threat of deportation. 

People like Hector and Mark are in a small minority. Far too many immigrants are locked up and summarily banished from this country without real due process. The ACLU enthusiastically supports the New Way Forward Act, which if passed will change the lives of countless immigrants and communities and restore due process in our immigration system. The bill sets a framework for Congress to recognize and fix our broken immigration system and build a new one that gives everyone their fair day in court. It is past time for Congress to pave a new way forward in our U.S. immigration system.

Tulsa’s Troubling Past is Not Far Removed from Its Present

The Tulsa massacre of 1921 may have become known to many Americans because of a fictional HBO series, but it actually happened. Is the probable discovery of heretofore undiscovered mass graves in Tulsa enough to propel the city to a reckoning — an unambiguous admission of responsibility for horrific acts and a determined mind to make right what was wrong? We are about to find out.

In a recent public oversight committee meeting in Tulsa, it was announced that a team of forensic scientists using ground-penetrating radar at sites around the city found anomalies consistent with mass graves at two locations, suggesting that the scale and scope of the massacre may be even more extensive than previously admitted by authorities. Until the truth is reckoned with, the stench of racism will hover on Tulsa.

The original narrative around the 1921 Tulsa massacre was that Blacks were armed, intoxicated and unjustifiably violent. The local paper described the Greenwood section of the city not as Black Wall Street, but as “Niggertown,” and original official estimates were about 36 people killed. These reports were contradicted by American Red Cross Worker Maurice Willows, who spoke of mass graves and estimated the dead at 300.

The racist narrative around the 1921 massacre was false. The Black community was preventing a lynch mob from killing a young Black man who had been unjustly arrested. The only shot fired by a Black person while confronting the lynch mob came during a struggle with a white man and resulted in no one being injured. During the massacre, people took private airplanes and flew over Greenwood dropping burning balls of turpentine on the buildings and homes, causing many of the structures to burn from their top. Blacks were gunned down in the street when they fled burning buildings.

This was not a riot or a disturbance — it was a massacre. And the findings suggest a deliberate attempt to cover-up what happened — an attempt that was successful for decades.

The mayor of Tulsa has called these possible mass grave sites potential crime scenes. Why? Because nobody was prosecuted for their role in the massacre, despite the existence of photographs showing whites walking down the street carrying guns and the ability to identify whites who had access to planes on the day of the massacre.

Over the last 99 years, prosecutors and law enforcement turned a blind eye to this atrocity committed against the Black community of Tulsa. Even if no one alive can be prosecuted, naming names and placing responsibility where it lies is a critical part of a reckoning. 

The narrative the 2016 killing of Terence Crutcher by Tulsa police reflected the narrative about the 1921 massacre. Both narratives suggest that the deaths of Black people were ultimately their own fault. 

When the findings of the forensic team were announced Monday, Terence Crutcher’s twin sister Dr. Tiffany Crutcher was in the audience. She left her career to establish the Terence Crutcher Foundation, and she has led the way in making sure the false narrative about her brother does not survive. The not-guilty verdict in the criminal trial of Crutcher’s killer simply means the state did not prove the case beyond a reasonable doubt. 

The verdict does not change the fact that Terence had his hands in the air and was unarmed, was not advancing toward the officers when he was shot, and never made an aggressive move toward the officers. The verdict does not change the fact that the officer who killed Crutcher admitted that she had cleared his car and determined that there were no weapons in it before she killed him. The verdict doesn’t change the fact that the same jury that acquitted the officer appended a note to the verdict questioning her training and her actions, and whether she should be allowed to return to law enforcement. 

A reckoning for the massacre and the murder is required and overdue. Tulsa can reject the false racialized narrative it has clung to for a century and start a new 100 years of progress away from racism. 

Apologies and commemorations are a necessary part of the reckoning process, but they are not enough.  A true reckoning requires action — and leaders of impacted communities in Tulsa should expect action when they speak to the city about making what is wrong right again.  

Across the Country Harsh Sentencing Laws are Tearing Apart Families and Communities

During the holiday season, in the picturesque town of Petoskey, Michigan, Kimiko Uyeda, and her son Marshall celebrate with an annual tradition of selecting a new ornament to add to their tree. Year after year, Kimko and Marshall add to their collection of ornaments as a part of their tradition.

For years, however, they were separated from one another and unable to enjoy this holiday tradition together. It all began in 2013 when Kimko was arrested for filing what the local sheriff believed to be a false police report. Because of broken sentencing laws, the prosecutor in the case was able to add four additional criminal charges that would result in Kimko spending years separated from Marshall.  

Kimko was not only raising her son at the time but the owner of a building trades company with nine employees. She also managed to run a special needs riding program with 26 horses.

What legal experts say should have resulted in probation, ended with Kimko facing 20 years behind bars because of outdated sentencing laws that feed Michigan’s mass incarceration crisis.

Though Michigan is a particularly bad actor, states across the country continue to apply outdated sentencing laws that keep people locked behind bars for excessively long times. These laws are implemented despite large bodies of research that show that longer prison sentences ultimately do not make our communities safer.

Decades of “tough on crime” policies have left this country with criminal systems riddled with mandatory minimum sentences, sentence enhancements, and an overuse of life sentences that keep people in prison for decades, if not the rest of their lives. 

In Michigan, a habitual sentencing penalty can increase a sentence by 50 percent for up to 20 years. The law mandates that judges consider decades old, unrelated convictions. The result is that thousands of people like Uyeda stay in prison for far much longer than they otherwise would.

In Kimko’s case, this meant that filing a single false police report resulted in a multitude of criminal charges, automatically enhancing her sentence to decades behind bars. 

Similar to other unfair sentencing laws across the country, prosecutors in Michigan are able to selectively choose when to seek this additional punishment, meaning that the state’s habitual sentencing penalty is used inconsistently and unequally across the state. In some counties, like Oakland and Saginaw, the penalty is used in 90 percent of cases in which it is eligible, while counties like Washtenaw use the penalty only 10 percent of the time. Across counties, Black people are more likely to be given the penalty than their white counterparts.

“I had no idea how bad the system was until I lived it,” says Kimko, who served six years behind bars, losing time with her son, who was just 7 years old when she was locked up. “Now, I want to prevent others from going through what I experienced.”

Earlier this year, Kimko shared her story at an ACLU of Michigan press conference in Lansing to show that sentencing reform will not only save taxpayers’ dollars but also keeps communities safe and families together.

At that same press conference, along with a group of bipartisan lawmakers, we announced plans to overhaul Michigan’s sentencing laws.

Thanks to Kimko’s help, the Michigan Senate introduced SB 697, SB 698, and SB 699 earlier this month. These bills allow for judicial discretion in cases similar to Kimko’s and limit the use of the punitive habitual sentencing penalty. 

In passing this bill, Michigan will join bipartisan efforts in states across the country, including California and Oklahoma, to dismantle the cruel, expensive, and ineffective sentence enhancements that are used to unjustly and excessively punish people for simply coming into contact with the criminal legal system more than once.

Michigan’s trio of reform bills sets an example for other states, as they would apply to anyone convicted of a crime in Michigan, regardless of what kind of charge they are currently facing.

After losing her home and belongings during the six years that she was incarcerated, Kimiko and Marshall are starting their ornament collection from scratch. This year, they’ll be choosing an ornament together that represents hope. Kimiko is only one of the thousands across this country unjustly locked behind bars due to outdated sentencing laws. Michigan shows us that the fight to reform those deeply entrenched remnants of the tough on crime era can be won.

Four Lawyers. Four Projects. One Non-Stop Year.

It isn’t news that the Trump administration has kept ACLU attorneys working at breakneck speed for the past three years. In 2019 alone, we saw historic moments and victories—from defeating the citizenship question on the 2020 census and bringing the first trans civil rights case to the Supreme Court, to blocking a wave of abortion bans and many of the administration’s attempts to dismantle the asylum system. To name a few.  

Here are some of our attorneys’ takes on 2019 and the year ahead—what’s changed for the better and for the worse, and how the outcome of the 2020 presidential election will affect the fight for civil rights and liberties in years to come. 

Chase Strangio Deputy Director for Transgender Justice, LGBT and HIV Project

What was your favorite moment of 2019?

A lot happened so it’s hard to pick just one moment, but for me one of the most memorable was the October 8 argument for the Aimee Stephens case at the Supreme Court. Obviously the moment itself was historic. Working on the case was pivotal in my life and my work. But even more than the hearing itself, I’ll never forget the feeling of coming out of the Supreme Court and seeing a crowd of trans people and allies chanting to Aimee while we walked across the plaza. It’s a special reminder that it’s not about what happens in court, it’s about how we move forward. 

What was the biggest challenge?

This was a challenging year. Two things stand out: The Supreme Court taking on the Title VII cases and the increasing attacks on trans people in sports. 

When we heard about the Title VII cases in April, it was a devastating blow. Aimee had already won in the lower court, and we didn’t want the Supreme Court to undo her win. It’s difficult existing in this political context with so many attacks on the trans community and going up to the Court knowing that no matter what, something would be lost—whether something rhetorical or in the public discourse or in the legal outcome of the case itself. 

There’s also been a rise in attacks on the idea of trans people participating in sports. It’s disappointing seeing people we’d expect to be allies side with our opponents. It’s just another context that’s being leveraged in public conversations and policy debates to argue that trans people aren’t “real” and that we don’t deserve to participate equally in society. It’s painful and the people who are going to be the most hurt are the trans youth who are being singled out and demeaned by the adult lawmakers who are supposed to protect them. 

How will the outcome of the 2020 election affect trans rights?

There’s a long way to go no matter who’s in the White House. But for trans rights, the shift from Obama to Trump was drastic. If Trump loses, we’ll continue to sue the government because the government will continue to discriminate, and it will take a lot of work to undo the anti-trans agenda of the last three years. But hopefully we will have a president that is less concerned with decimating us and our lives and we can work towards rebuilding some protections. No matter what happens, our resolve to fight and defend our communities will persist. 

How do you unwind after preparing for a big case?

I operate at a constant state of stress, so it’s always a struggle. Maybe I haven’t done a good job of unwinding. I do love theatre, going to shows, engaging in creative processes to get me out of my head.

What got you into this work? 

As a queer, trans person with access to resources I felt that I could serve my community by working within systems of power to disrupt and distribute power. It isn’t always easy and I don’t always do it perfectly but I could never imagine doing any other work.

Brigitte Amiri Deputy Director of the Reproductive Freedom Project

What was the biggest challenge of 2019? 

2019 was the year of the abortion ban, so it’s not so much one challenge in particular but the onslaught—we’re fighting battles at the federal and state level in a rapid succession. The states have been emboldened by the Trump administration and by changes in the judiciary, and it’s been a breathless fight against their attacks on abortion and access to contraception. Some of our most important victories of the year included blocking the abortion bans in Alabama, Arkansas, Georgia, Kentucky, Missouri, Ohio, and Utah.

Still, in 2019 there were also some great legislative victories for reproductive rights. A number of states have passed proactive measures that expand access. A perfect example is Maine, where the reproductive rights and justice movement got the state to pass a law expanding who can provide abortions and not just limit provision to doctors but to expand it to advanced practice clinicians. Another new law in Maine ensures that people can access abortion with Medicaid as insurance if they qualify. States like Maine will be a haven for abortion access if Roe v. Wade is ever overturned. 

What will 2020 look like for abortion rights?

The attacks on abortion will continue in 2020, unfortunately. The states restricting access have been doing so for decades. And even if there’s a change in the presidential administration, the federal judiciary has now been changed for generations, so states that want to pass restrictions are still going to do so in an aggressive manner, in hopes that the courts will uphold their restrictions. So I think 2020 will be very busy. 

Most people in this country support reproductive freedom, but anti-abortion politicians have their own agenda and refuse to listen to the majority of their constituents. Restricting abortion has always been used as a political tool that has been wielded by some politicians regardless of what the public wants. 

What got you interested in reproductive freedom?

Ever since I was a little girl, I was always interested in fighting for what was fair. My mom was a feminist and a stay-at-home mom who took me to political rallies, and I used to babysit for a mom who worked at Planned Parenthood. These strong women instilled in me the idea that people should be able to make decisions about their own bodies and everyone should be treated equally in society. Eventually I went to law school because I wanted to use the law to promote social justice.

Is there a particular client from 2019 who stands out?

The staff at the EMW Women’s Surgical Center in Kentucky. Dr. Marshall, who owns it, and staff are amazing people and our heroes. They make sure patients get the care they need with compassion and dignity. They’ve endured so much in addition to the legal onslaught—including anti-abortion people blockading the clinic doors and vandalizing the clinic. They are my heroes. 

Personally, my favorite moment of 2019 was calling the clinic and telling them the good news that the judge blocked the state abortion ban. 

Dale Ho Director of the Voting Rights Project

What was your favorite moment of 2019?

The census win. From the beginning I thought we had the better argument, but there were so many predictions that we would lose. I understand why we got those predictions, because we were the underdog, but it was hard not to let that seep in and affect my outlook. When we won, I felt vindicated. 

What was the most important legal win?

Again I’d say the census case. If we lost, representation would have shifted away from diverse states and areas, and many communities would have lost their fair share of federal funding. It was a massive case of major significance. 

No one believed that the Trump administration wanted to add the citizenship question to support voting rights. The Court’s decision affirmed how much we need honesty from the government on why it’s doing what it’s doing. And the case was a test for the Supreme Court, to see whether it would stand up to the kind of lawlessness that has become standard in this administration. It was nerve-inducing that four justices were willing to go along, but the center held. 

The census case was also litigated at a breakneck pace—from a trial decision to the Supreme Court in only three months. It was maybe the most significant challenge in my professional life. I’m still recovering. 

How do you handle stress when you’re on the road? 

I always, always buy WiFi on planes, and take my noise canceling headphones with me.  Sometimes I’ll get a Bloody Mary (virgin!) so I can work throughout the flight. When I’m flying out of New York, I get the same bad Italian hoagie from the CEBO Express in the airport—something I probably wouldn’t eat anywhere else. 

How will the presidential election affect the Voting Rights Project?

I don’t think the outcome of 2020 will affect our work, because most of our work is in the states. We need to modernize our states’ antiquated registration and voting systems. Those are bad now and they’re going to be bad no matter who wins in 2020. We’re going to have to do that work and also focus on redistricting after the census happens, as local, state, and federal districts get redrawn all around the country. So we have a busy 2020 and a busy 2021 ahead of us, regardless.

What do you look forward to in 2020?

Election season is always an exciting time to be a voting rights lawyer. It can be challenging because you know in advance that it’s going to be very busy. But there’s a lot you don’t know that’s going to pop up—you know things will pop up but you don’t know what. It’s challenging to stay ready for that but I feel like every election I’ve been here, we’ve done some of our best work in that emergency, rapid response posture. I’m looking forward to it. 

Omar Jadwat Director of the Immigrants’ Rights Project

What is one moment from 2019 that stands out to you?

I’ll cheat and tell you two. The first was when we blocked the Remain in Mexico policy (or Forced Return to Mexico, or Migrant Protection Protocols, as it goes by a lot of names). We knew the policy would be a disaster and we were really glad to block it.

The second was when a higher court allowed the policy to be implemented while an appeal is pending. Under this stay roughly 60,000 people have been dumped in Mexico in awful conditions. Cartels are preying on them, waiting for people to get off the buses and kidnapping them immediately. It all goes to show what an awful policy it is and how important it was to challenge it. The fact that we were able to stop it briefly was an important victory. Now the litigation continues.

What was the biggest challenge? 

Protecting the asylum system. The administration has a multi-pronged strategy to attack asylum and basically eradicate the system unilaterally. A major focus of our work in the last year has been taking on these policies—we’ve challenged the standard for asylum, gang violence exceptions, detention of asylum seekers. There’s the first asylum ban, the second asylum ban, Return to Mexico, and more. A whole set of cases. 

How has IRP’s work changed this year? 

Our team has built a new set of muscles as we adapt to new challenges—challenges that would have been extraordinary and unusual in the past, which are now the norm. The administration often announces drastic policy changes with little or no warning, and the pressure is on our team to figure out what they’re doing, to analyze it legally, and put together a lawsuit as quickly as possible if there’s a legal problem. The administration has been so aggressive with its immigration policies and the scale of what they’re trying to do is getting more ambitious. It’s caused us to be more aggressive in terms of taking them to court, and then if we win that causes them to move fast to try to get rid of our victories. Everything is happening much more quickly than usual. 

What got you into immigrants’ rights?

I come from a family of immigrants, including people who struggled with getting and maintaining status. I took a class with Judy Rabinovitz in law school, and she inspired me to follow this professional path. 

What do you look forward to in 2020?

The possibility of a new administration to deal with and a humane, respectful system in the future. It’s refreshing to see so much public disapproval of anti-immigrant policies, and that sentiment has strengthened in the last couple of years. I hope that the sympathy and support we’ve seen for immigrant communities will continue to carry through.

A Fair Chance at Opportunity: The U.S. Government Bans the Box

When Rep. Elijah Cummings (D-Md.) reintroduced the Fair Chance Act earlier this year, he said: “This bill would give individuals who are reentering society from prison a fair chance at truly achieving the American dream.” The Fair Chance Act would ban the box that employers use to ask about arrest and conviction history on job applications. It also requires that federal agencies and contractors subject a prospective employee to a criminal background check only after a conditional job offer is made. 

As such, qualified workers with arrest or conviction records can now compete fairly for employment with the largest employer in the world, the U.S. government.

This week, Rep. Cumming’s — who until his death in October, was advancing “common sense criminal justice reforms” for Marylanders and the more than 70 million Americans who have criminal histories — dream has been realized with Congress sending the Fair Chance Act to the president’s desk.

In addition to Congressman Cummings, Rep. Doug Collins (R-Ga.) and Sens. Cory Booker (D-N.J.) and Ron Johnson (R-Wis.) led the effort to “ban the box” at the federal level. Our organizations were pleased to rally for this bill’s enactment as part of a bipartisan coalition that included All of Us or None, JustLeadershipUSA, Center for American Progress, and Justice Action Network

Gainful employment is critical to a person’s successful reentry to society after incarceration and the single most important predictor of whether or not a person will return to prison. But 75 percent of formerly incarcerated people are unemployed a year after release because of employer discrimination against people with criminal records. For Black people, a criminal record means not getting a job interview 40 percent more often than white people with similar histories. With 650,000 Americans returning to communities from prison each year, employers must eliminate barriers to jobs. 

Now, the federal government will serve as a model for fair chance hiring, along with 35 states, the District of Columbia, and over 150 cities and counties that have ban the box policies. This cohort includes many private sector entities as well, with over 100 companies joining the Fair Chance Pledge issued by the Obama White House, which coincided with federal ban the box regulations implemented under that administration in 2015. The impetus for the Obama administration’s actions was the Fair Chance Act that had first been introduced months before in the 114th Congress.             

Four years later, the Fair Chance Act is now law, standing to benefit more than 700,000 new job applicants every year. Fair Chance is a laudable accomplishment for congressional leaders, like Congressman Cummings, and criminal justice reform advocates, like our organizations, who understand that a criminal history should not deny anyone an opportunity to succeed in our economy. Though our work will continue to advance additional fair chance hiring practices in local and state government and the private sector, this week’s win on Fair Chance is a critical step in the right direction.

A Fair Chance at Opportunity: The U.S. Government Bans the Box

When Rep. Elijah Cummings (D-Md.) reintroduced the Fair Chance Act earlier this year, he said: “This bill would give individuals who are reentering society from prison a fair chance at truly achieving the American dream.” The Fair Chance Act would ban the box that employers use to ask about arrest and conviction history on job applications. It also requires that federal agencies and contractors subject a prospective employee to a criminal background check only after a conditional job offer is made. 

As such, qualified workers with arrest or conviction records can now compete fairly for employment with the largest employer in the world, the U.S. government.

This week, Rep. Cumming’s — who until his death in October, was advancing “common sense criminal justice reforms” for Marylanders and the more than 70 million Americans who have criminal histories — dream has been realized with Congress sending the Fair Chance Act to the president’s desk.

In addition to Congressman Cummings, Rep. Doug Collins (R-Ga.) and Sens. Cory Booker (D-N.J.) and Ron Johnson (R-Wis.) led the effort to “ban the box” at the federal level. Our organizations were pleased to rally for this bill’s enactment as part of a bipartisan coalition that included All of Us or None, JustLeadershipUSA, Center for American Progress, and Justice Action Network

Gainful employment is critical to a person’s successful reentry to society after incarceration and the single most important predictor of whether or not a person will return to prison. But 75 percent of formerly incarcerated people are unemployed a year after release because of employer discrimination against people with criminal records. For Black people, a criminal record means not getting a job interview 40 percent more often than white people with similar histories. With 650,000 Americans returning to communities from prison each year, employers must eliminate barriers to jobs. 

Now, the federal government will serve as a model for fair chance hiring, along with 35 states, the District of Columbia, and over 150 cities and counties that have ban the box policies. This cohort includes many private sector entities as well, with over 100 companies joining the Fair Chance Pledge issued by the Obama White House, which coincided with federal ban the box regulations implemented under that administration in 2015. The impetus for the Obama administration’s actions was the Fair Chance Act that had first been introduced months before in the 114th Congress.             

Four years later, the Fair Chance Act is now law, standing to benefit more than 700,000 new job applicants every year. Fair Chance is a laudable accomplishment for congressional leaders, like Congressman Cummings, and criminal justice reform advocates, like our organizations, who understand that a criminal history should not deny anyone an opportunity to succeed in our economy. Though our work will continue to advance additional fair chance hiring practices in local and state government and the private sector, this week’s win on Fair Chance is a critical step in the right direction.

10 LGBTQ Moments that Defined 2019

1. Aimee Stephens goes to the Supreme Court

In October, the Supreme Court heard its first trans civil rights case ever. The case was brought by our client Aimee Stephens, who was fired from her job at a funeral home solely for being transgender. That’s sex discrimination and it violates Title VII of the Civil Rights Act of 1964. 

We have yet to see whether the Supreme Court will uphold the civil rights of trans people. But no matter what, history has already been made. 

“I’ll never forget the feeling of coming out of the Supreme Court and seeing a crowd of trans people and allies chanting to Aimee,” said Chase Strangio, Deputy Director of Transgender Justice. “It’s a special reminder that it’s not about what happens in court, it’s about how we move forward.”

Hear Aimee’s story in her own words — from the brave letter she sent to her boss coming out, to the notice of termination she received in response.

At the Emmys this year, actress and LGBTQ activist Laverne Cox used her red carpet moment to raise awareness about Aimee and her historic case.

2. Transgender people’s access to healthcare under attack

This year the Department of Health and Human Services proposed a change to the Affordable Care Act that would restrict healthcare access and insurance coverage for all trans and nonbinary people. It’s part of a coordinated effort to redefine sex discrimination across federal law. Over 20,000 ACLU supporters submitted comments to HHS opposing this rule, and if it goes into effect, we will sue. 

3. Another historic win for Gavin Grimm

Gavin Grimm’s high school denied him access to the boys’ restroom and refused to give him an accurate transcript listing him as a boy. We sued, and in August, a federal court agreed with us and ruled in Gavin’s favor. 

“It is such a relief to achieve this closure and vindication from the court after four years of fighting not just for myself, but for trans youth across America,” said Gavin. “I promise to continue to advocate for as long as it takes for everyone to be able to live their authentic lives freely, in public, and without harassment and discrimination.”

4. The fight against the trans military ban continues

Soon after President Trump came into office, his administration banned transgender people from serving in the military. We sued on behalf of trans service members like Brock Stone, an 11-year Navy veteran who served in Afghanistan. In March this year, the Supreme Court ruled to uphold the ban while litigation continues. We’re still fighting for Brock Stone, because transgender people belong in the military — trans people belong everywhere.

5. The 50th Anniversary of Stonewall

In 1969, trans women of color led riots against police brutality and harassment at the Stonewall Inn, in one of the most important events in the history of LGBTQ activism. Their legacy continues 50 years later as we fight in the Supreme Court to protect transgender people and others from discrimination. Congress can do its part by passing the Equality Act to close the gaps in our civil rights laws and ensure explicit and comprehensive legal protections.

ACLU Trans Justice Campaign Manager LaLa Zannell discussed Stonewall and Pride 2019 on Full Frontal with Samantha Bee. 

6. Trans Day of Remembrance

Trans lives are on the line every day — and in 2019 alone, 25 trans women of color were murdered. Tragically, their lives were taken because they lived in this world that too often fails to value black, brown, and gender non-conforming bodies.

In an interview with Democracy Now, LaLa Zannell explained that Trans Day of Remembrance “is a day for trans people across the country to take a moment to celebrate the living while using that moment to honor the ones we have lost in this movement.” 

7. Trans student athletes fight for the right to participate in sports

Terry Miller and Andraya Yearwood are following their dreams as track stars at their Connecticut high school, but anti-trans advocates want to keep them out of sports. That’s discrimination. 

Thousands have pledged their support for Terry and Andraya and for all transgender athletes who have the right to live as their authentic selves, including in sports. Girls who are transgender are girls.

The ACLU also stopped a bill attacking trans student athletes in South Dakota. We’re already seeing bills like this planned for 2020 state legislative sessions.

8. Government greenlights workplace discrimination

Nearly one-quarter of employees in the United States work for an employer that has a contract with the federal government. If the Department of Labor goes through with a new proposed rule, government-contracted employers could soon be able to fire employees for being LGBTQ or belonging to another minority or marginalized group. Over 64,000 ACLU activists submitted comments opposing the proposed rule.

9. California court rules against anti-trans discrimination in healthcare

ACLU SoCal won a landmark case protecting the rights of transgender patients trying to access medical care. The plaintiff, Evan Minton, was denied medical care because he is transgender, in what has become an increasing pattern of healthcare providers using religious freedom to discriminate against trans people. Religion should never be a license to discriminate.

10. We won an Emmy

Our documentary film Trans in America: Texas Strong won an Emmy Award for best documentary. The film is an intimate portrait of Kimberly and Kai Shappley, a mother and daughter navigating life in a religious community where Kai’s rights as a trans girl have been under attack — including her right to use the girls’ bathroom at school.

A Tennessee City Banned Surgical Abortion Within the City Limits. We’re Taking Them to Court.

For 30 years, I have worked in reproductive health care. In my current role as Chief Operating Officer of carafem, a nonprofit with a national network of health centers, I know the difference compassionate and comprehensive reproductive health care makes in the lives of our clients. I have witnessed the personal impact when people who have the legal right to have a child or to have an abortion are denied those rights due to outrageous societal barriers. Abortion providers are used to opposition, but we’ve never experienced the kind of explicit targeting we received from politicians in the city of Mt. Juliet, Tennessee. It took the local politicians less than 48 hours after we opened our doors to try and shut us down, but after serving the community for the past nine months with services limited by politics, today, we’re fighting back in court.

At carafem, we strive to expand access to compassionate and convenient abortion care as well as other reproductive health care services. With offices in three different states, we served clients in the Atlanta, Washington D.C., and Chicago communities. Late in 2018 we learned that many people in Tennessee were forced to drive hours to reach an abortion care provider, as we started to see many clients from Tennessee at our health center in Atlanta, Georgia. We decided then that carafem needed to bring services to central Tennessee so we looked for space in the area to open our fourth health center. Soon thereafter, we found an accessible location in the Nashville suburb of Mt. Juliet, where we could provide medical services in a private, secure, and professional environment.

We quickly learned that our presence was not welcomed by city government when we were met with open hostility by local politicians. But, unlike many politicians who seek to restrict access to abortion, Mt. Juliet’s public officials did nothing to even attempt to hide their intent or political agenda. Instead, they promised loud and clear to do whatever they could to prevent individuals from exercising their legal right to abortion.

One city commissioner stated, “The members of the commission I have talked to are 100 percent behind shutting this abomination down.” Another said, “I was disgusted to hear they plan to open in my district and my town. If there is anything we can legally do to keep them from opening in Mt. Juliet, we will do it.”

These politicians immediately followed through on their threats. As soon as Mt. Juliet’s zoning commission got word that we had opened a health center, it convened and amended its zoning code to treat surgical abortion care providers differently from all other medical services. In effect, the new ordinance makes it impossible for us to offer surgical abortion care within city limits.

We are still able to provide medication abortion in Mt. Juliet and have provided care to hundreds of clients in this office — but medication abortion isn’t an option for everyone, and we’ve been forced to turn away many clients who need aspiration, or surgical, abortion care. The provision of aspiration abortion is central to carafem’s mission of ensuring full access to reproductive health care. 

It’s clear that this ordinance is yet another attack by hostile politicians on reproductive rights. If this zoning ordinance remains in place, Mt. Juliet politicians will have prevented us from providing comprehensive care options to our clients and will have denied our clients the right to choose what is medically best for them. Those seeking a procedure will be forced to travel elsewhere to access the kind of abortion care they want or need — care that we could otherwise provide.

This is not just wrong — it’s illegal. We are filing this lawsuit with the ACLU because we will not be intimidated. The people of central Tennessee deserve access to safe, comprehensive abortion care — rather than having their options limited by some political agenda. Mt. Juliet officials have tried their best to stop us, but we have decided to fight.

A Secret CBP Team is Targeting and Detaining Innocent Travelers. We’re Suing.

U.S. Customs and Border Protection is deploying secret teams that target, detain, and interrogate innocent travelers. We’re suing to expose their activities.

In November 2018, three CBP officers detained Andreas Gal, a former chief technology officer at Mozilla Corporation and current Apple employee, at San Francisco International Airport after he landed from a business trip to Sweden. Andreas was offered no reason for the detention, except a receipt from a Global Entry kiosk that was marked with the letters “TTRT.”

The officers asked Andreas questions that focused on his First Amendment-protected speech and activism. Andreas is an outspoken proponent of online privacy and has spoken publicly about his opposition to warrantless mass surveillance and views on the current administration’s policies. The officers also repeatedly sought to search Andreas’ electronic devices, which included the contact information of his family and friends, correspondence, and further information about his opinions and views.

Andreas, a U.S. citizen, was eventually allowed to leave. Abdikadir Mohamed, an immigrant, was not so lucky.

Abdi was at JFK International Airport in December 2017. On his way to board a connecting flight to reunite with his pregnant wife and his daughter in Columbus, Ohio, two CBP officers approached him. By that point, Abdi had already cleared immigration and security screenings. Nevertheless, the officers asked to examine Abdi’s stamped documents, and his boarding pass, which he provided. Unsatisfied, they asked him to come to a separate room for additional questioning, and told him to unlock his cell phone.

After 15 hours of interrogation, the officers declared Abdi ‘inadmissible’ and sought to deport him. Abdi chose to contest his deportation and seek asylum, following which he was sent to ICE detention in New Jersey. After 19 months in detention, an immigration judge granted Abdi’s asylum claim and reunited him with his family in the United States.

CBP’s treatment of Andreas and Abdi is disturbing, and they are not isolated incidents. We now know that the officers that targeted Andreas and Abdi are part of a secretive team CBP has deployed to at least 46 airports and other U.S. ports of entry. We also learned during Abdi’s asylum proceeding that these teams are called Tactical Terrorism Response Teams, which we now know explains the acronym, TTRT, printed on Andreas’ Global Entry receipt.

While TTRTs operate largely in secret, we know from public statements by CBP officials that the teams are explicitly targeting individuals who are not on any government watchlist — as flawed as even those are — and who the government has never identified as posing a security risk. Even more concerning, former CBP Commissioner and former acting Secretary of Homeland Security Kevin McAleenan has indicated that TTRT officers may rely on their “instincts” or hunches to target travelers.

An officer’s reliance on “instincts” creates the risk that these secretive teams are targeting travelers based on explicit or implicit biases. Such targeting may result in unlawful profiling if officers detain, search, and/or question travelers on the basis of their race, religion, ethnicity, or national origin. It may also result in officers detaining and questioning travelers because of their speech or associations, which may be protected by the First Amendment. Finally, these teams’ activities raise due process and fairness concerns when information inappropriately gathered by them results in further government scrutiny, such as placement on a government watchlist. 

In fiscal year 2017 alone, these teams denied entry to over 1,400 individuals with valid travel documents.

There is still a lot that we don’t know about these secret teams, and CBP failed to respond to our request for information. Now, together with the New York Civil Liberties Union, we’re asking a federal court to order the agency to turn over information about these secretive teams.

The public has a right to know how these teams operate, how their officers are trained, and whether the guidelines that govern their activities contain civil liberties and privacy safeguards. We also want to know just how many individuals are subject to detention, questioning, and/or denial of entry into the U.S. by these teams, and the basis for these decisions.

There can be no meaningful accountability if there is no transparency. For too long, the government has acted as if it has carte blanche at the border. It’s time to shed light on the shadowy operations of CBP’s secret teams.

We’re Suing to Make Sure that CBP Can’t Keep Asylum Seekers from Their Lawyers

This year has been one filled with outrage over the appalling conditions that asylum seekers face while in the custody of Customs and Border Protection (CBP). We’ve read about children and teenagers dying, people being denied medication, and one hielera — or “icebox” due to its freezing temperatures — where some people were reportedly forced to drink out of a toilet.

Now, that very facility is also where the Trump administration is rolling out its newest attempt to destroy the asylum system. For the first time, it is where vulnerable, exhausted people who’ve fled persecution will face the interviews that will determine whether they’re able to pursue their claim for asylum or protection. The purpose is to make it as hard for them as possible by rushing them through the process in horrible conditions, without meaningful access to lawyers.

At the Border Patrol station, located in El Paso, Texas, the government is piloting a new policy where asylum seekers are held effectively incommunicado throughout the asylum screening process. Asylum seeking families and individuals are prevented from reaching attorneys and others who can help them while they are rushed through a “credible fear” interview and review by an immigration judge over the phone. If they don’t pass, they are sent back to the country they’ve fled. That’s it — the whole process starts and finishes within a few days, and it’s all playing out in a Kafkaesque CBP detention site at the border.

If you haven’t heard about this, you’re not alone: the administration secretly rolled out the policy back in October through two programs — “PACR” (for non-Mexican asylum seekers) and “HARP” (for Mexican asylum seekers).

Like so many of the Trump administration’s policies designed to harm asylum seekers, these programs break with decades of agreement that people fleeing threats and violence should have a fair chance to prove they need protection. Never before have asylum seekers been jailed in CBP custody during the credible fear process. That’s because the conditions in CBP facilities are completely incompatible with what’s needed to ensure that the process is conducted fairly.

These facilities have always been short-term jails used to process people who cross paths with Border Patrol. They have never been adequate even for those short-term stays, and they do not provide people detained in them with access to attorneys, family, or the public. People detained in them can’t meet with a lawyer or make regular phone calls. There aren’t even beds, so they must sleep on aluminum blankets, mats, or directly on cold concrete floors. The agency has even said it has “no obligation to notify family or counsel” that it is holding someone.

Before PACR/HARP was launched, asylum seekers in the El Paso area were typically transferred to ICE jails for their credible fear interviews. Those jails are at least required to facilitate access to attorneys and permit calls to family members — though they often fail to do so. The credible fear interview is intimidating — it involves a detailed discussion of what are often the most traumatic moments people have ever experienced — and newly arrived asylum seekers may not understand the purpose or critical importance of the interview. The government has a legal obligation to let asylum seekers work with attorneys in preparing for and going through the credible fear process. CBP detention makes it impossible.

Because of these new policies, asylum-seekers who deserve protection could be wrongly sent back to the countries they fled. It is all but guaranteed that some of them will die as a result.

So we sued. We intend to stop the Trump administration from implementing PACR and HARP. It’s their latest attempt to eviscerate our most basic asylum protections.

Our plaintiffs include two families who are both now hiding in El Salvador after being rushed through the asylum process with no access to an attorney. CBP held them incommunicado in tents and hieleras without beds for days during their credible fear process. They each had only a single thirty-minute window in which to make phone calls to the outside world. Officials gave them a list of lawyers known as “the list of ghosts,” because no one ever picked up or returned their calls.

Since there was no way for attorneys (or loved ones) to call them back or otherwise reach them while they were in CBP custody, and no other opportunities to make phone calls, they went through their credible fear processes alone. No attorney explained to them what was happening or how an asylum officer would be evaluating their case.

Both families fled after gang members threatened to kill them and the Salvadoran police said they could not protect them. Without an attorney, they did not pass their credible fear interviews. The government put them on a plane back to El Salvador, where they are now hiding in fear from the gangs they fled, afraid to even leave the place in which they are living.

This administration is systematically destroying our longtime commitment to asylum. We must fight back. People seeking safety in the U.S. deserve a meaningful opportunity to plead their case before being sent back to danger and possible death — both the law and our values require it.

A Little-Known Privacy Battle Is Being Waged Over Encrypting the Nuts and Bolts of the Internet

An important fight is brewing over the nuts and bolts of the Internet that has significant implications for the privacy and security of all Internet users. The fight has already pitted Google and Cloudflare against American telecommunications companies, which are lobbying Congress to complain about the search giant. The fight is complicated, but at its core are questions about control over data, centralized power, and who should bear privacy risks. We believe that everyone deserves to be able to use the Internet without being subject to mass surveillance.

This particular fight centers over a new layer of encryption that Internet technologists (including one of us) have developed to further protect the privacy and security of Internet users. The ACLU is increasingly engaged with these kinds of battles over technical standards that shape Internet infrastructure in important ways — determining, for example, whether that infrastructure facilitates the violation of privacy and centralization of power, or autonomy and secure communication for all. These fights usually take place far outside of the limelight, but the brewing fight between the telecoms and providers like Google and Cloudflare is getting more attention than most.

To understand what is at stake requires explaining a little about how the Internet works — specifically about something that people online use every day: the Domain Name System (DNS). If you enter “” into your browser, your computer reaches out to a server known as a DNS “resolver,” which tells your computer the IP address that it needs to download a web page. The DNS server then tells your browser that the web site with that name can be found at the IP address Obviously, for humans, that’s a lot harder to remember than “,” but your browser needs the IP address to reach our site.

Where does your computer find that DNS resolver? One of the strengths of the Domain Name System is that there are many DNS resolvers that can give you the same answer. You can manually direct a computer, router, or application to talk to a specific DNS resolver, but if you’re like most people, then your devices default to using whatever resolver your Internet service provider (ISP) offers, or to the resolver recommended by the WiFi or other network you’re connected to.

There are two major problems with the DNS, however.

The first is that whoever operates the DNS resolver gets to see the names of all the web sites that you visit (and potentially other Internet metadata as well). These days, that’s a valuable set of information, and a significant privacy problem. The second is that our communications with DNS servers have long been carried out in unencrypted plaintext. That means that your Internet activity is visible not only to whoever operates your DNS resolver, but also to anyone in the network who passes along the data that is exchanged between you and the DNS server. This not only creates privacy problems, but also security problems as it opens up avenues for hostile hackers to phish people, trick people into unknowingly visiting spoof web sites, or deliver malware or ads.

The first problem is to some extent unavoidable, but we can mitigate it in two ways: a) people should connect to DNS resolvers run by entities that are not in the businesses of collecting, storing, and monetizing people’s online activities; and b) make sure that there is a large diversity of actively used DNS resolvers, so that our information is not all centralized in one place.

The second problem — the lack of encryption — has been solved by new standards that use encryption to protect your data as it flows between your device and a DNS resolver. Such “private DNS” techniques, however, are relatively recent standards, and are offered only by some DNS resolvers.

That is where the telecoms’ complaint to Congress comes in. Google has proposed programming its Chrome browser and its Android operating system to automatically default to using Private DNS whenever a user’s existing DNS resolver supports it. That would certainly be a good thing. But the telecoms are also accusing Google of planning to route all Chrome and Android DNS traffic (a substantial portion of the world’s DNS queries) to Google’s own (private) DNS resolvers, thereby leading to a dangerous centralization of DNS lookups.

But contrary to the telecoms’ claims, Google’s stated plans do not actually involve centralizing DNS lookups to a specific resolver. Rather, they intend to automatically upgrade existing cleartext DNS traffic to private DNS when the user’s existing resolver is known to offer a secure channel. The nonprofit Mozilla Foundation, maker of the Firefox browser, has, however, announced that it plans to route DNS traffic generated by some future Firefox browsers to the resolvers run by a single entity, the company Cloudflare. Th. Firefox has been scrupulous in only doing this under a strict privacy agreement with Cloudflare, but users under different legal jurisdictions from Cloudflare might not appreciate their data ending up at this service provider, despite the privacy agreement.

Critics have pointed out that the telecoms are hardly being good Samaritans by pushing back against private DNS here. After the major ISPs successfully pushed the Trump administration and Congress to roll back ISP privacy protections, the telecoms have continued gearing up to try to make money by spying on their customers’ Internet usage. One of their big worries appears to be that they’ll lose out on their money-making surveillance if their customers are induced to shift to DNS servers that are not run by them and that are encrypted so they can’t spy on them.

Rather than hindering the deployment of private DNS and its resultant gains to end user privacy, the ISPs should upgrade the resolvers they already operate to also offer private DNS. If an ISP is a good steward of user data, then they should make it easy for people to use their services securely. They should be advocating for, not against, private DNS.

The ISPs are not wrong, however, in pointing out that centralization of DNS lookups would be a bad thing — including for privacy. We wouldn’t want one company having access to a list of all the people who visited, for example, or a list of all the sites that a particular person has visited. (In 2017, President Trump signed a measure removing privacy protections that prohibited ISPs from doing just this kind of spying; those need to be restored.)

We want private DNS to become the standard, available to all, and we want a diversity of DNS resolvers so that lookups and the information they reveal don’t become centralized — especially in the hands of any company bent on monetizing personal information. The way to fix centralization is through diversity, not by preserving the spying ability of ISPs.

There are tensions between these goals that will need to be solved along the way. Asking all users to make technical choices about which DNS resolver their devices and applications use is probably not the way to go — yet if particular private resolvers are selected globally by default by major players, that risks centralizing DNS queries around a few companies and undercutting the distributed nature of the Internet.

These tensions are resolvable, however. Among other things, we need more user-interface research to improve the experience of choosing among diverse DNS resolvers, and better systems for making reasonable, non-centralized choices for users who don’t have the time or interest to choose for themselves. Ultimately, the important thing is that policymakers, people who work in the tech community, and other interested Internet users should all push for the dual goals of making private DNS the standard and ensuring a diversity of DNS resolvers.

Private DNS protocols can help protect privacy online, and an increasing amount of software is capable of taking advantage of them, or will be soon. But it doesn’t stop there. There is a larger journey toward a more private and secure Internet that is underway. Diverse private DNS resolvers are one step in that journey, but there are others that also need to be taken (such as protecting DNS traffic between resolvers and “authoritative” DNS servers and minimizing metadata leakage in other Internet protocols). Piece by piece, we’re making the Internet more privacy-friendly and more secure.

Menstruation-Related Discrimination is Sex Discrimination —We Don’t Need to Erase Trans or Non-Binary People to Make That Point

Around the country and the world, people are mobilizing for menstrual equity. Central to the policy agenda: accessible and affordable period products for everyone who needs them. As legislative interventions gain traction, advocates are also readying legal arguments to challenge unfair policies. Constitutional law scholar and dean of UC Berkeley Law Erwin Chemerinsky recently co-authored a Los Angeles Times op-ed proposing that the failure of states to exempt menstrual products from sales tax — the tampon tax — amounts to denial of equal protection under the Constitution.

In forging these claims, a question emerges: How can we recognize that barriers to menstrual access are a form of sex discrimination without erasing the lived experiences of trans men and non-binary people who menstruate, as well as women who don’t? Some arguments that challenge discriminatory laws based on sex-linked characteristics have made the point that “only women” menstruate, get pregnant, or breastfeed. But that is not a full or accurate portrayal — and menstrual stigma and period poverty can hit trans and non-binary people particularly hard: 

  • Trans people are three times as likely to be unemployed and more than twice as likely to be living in poverty as the general population. Those who are disabled, people of color, or undocumented immigrants are especially likely to be unemployed and living in poverty.
  • While free menstrual products are not uniformly provided in women’s restrooms, they are almost never available in men’s restrooms, even for pay. Men’s restrooms are also less likely to have a place to dispose of these products conveniently, privately, and hygienically.   
  • Similarly, women’s homeless shelters sometimes provide menstrual products, but men’s typically don’t. Some domestic violence shelters exclude trans and non-binary people — even though more than half have experienced intimate partner violence. Those shelters often provide a variety of types of support, including access to menstrual products for those who need them.
  • While access to menstrual products in women’s prisons is often inadequate, it is far worse in men’s prisons. Trans and non-binary people may be incarcerated in either.
  • Menstruation is not the only reason trans and non-binary people may need menstrual products. Trans women and non-binary people may also need pads and liners for months after vaginoplasty, and occasionally at other times. Some who take estrogen also experience period symptoms such as pain and nausea and may need medication to manage these symptoms. Those who experience endometriosis or adenomyosis, conditions that can cause continuous heavy bleeding, often face barriers to treatment, as well as an ongoing and often unmet need for pads and tampons.

Simply stated: because limited access to and the cost of menstrual products can hit trans and non-binary communities especially hard, as a matter of policy, a holistic agenda for menstrual equity and access must include trans people. (We have a Menstrual Equity Toolkit for those interested in how to create one

But what about in the court of law?

The constitutional argument is straightforward. Any law that targets one sex — or one race, or one religion — is inherently discriminatory. In the context of the tampon tax, for example, Dean Erwin Chemerinsky harkened to a famous remark by Supreme Court Justice Antonin Scalia that a tax on yarmulkes is a tax on Jews. By analogy, a tax on menstrual products is a tax on women — even though not all women menstruate, and some men and non-binary people do.

Legally, the focus is on the intention behind the action. Targeting something associated with one group can show intent. This doesn’t require that allor only people from the targeted group do the activity.

Take yarmulkes again. Not all Jewish people wear yarmulkes, and some people who aren’t Jewish do wear yarmulkes (for example, if attending a Jewish religious service). Still, if a legislature decided to tax people for wearing yarmulkes, or to impose sales tax on yarmulkes but not similar items, that would be anti-Semitism, and it would violate the constitution. Similarly, imposing a sales tax on menstrual products but not similar items is sexist, and violates the constitution.

Discrimination is illegal even when it affects members of multiple groups. Feminist scholars have long pointed out that sexism can harm people other than women. For example, Paula England has pointed out the tendency to devalue labor traditionally done by women, even when it is done by men. Ruth Bader Ginsburg famously challenged a rule that denied widowed fathers benefits that widowed mothers received. The rule both discriminated against women workers, who couldn’t earn the same benefits for their families that men did, and against men who wanted the opportunity to care for their children.

We don’t need to erase trans or non-binary people to show that barriers to menstrual equity, such as the tax on menstrual products, are unconstitutional sex discrimination. This tax targets a bodily function associated with women for less favorable treatment. It relies on sexist ideas that women’s needs are frivolous and unnecessary. It is irrational, and it directly affects cis and trans women, trans men, and non-binary people. It’s unfair, unconstitutional, and illegal.

It’s Clear: In Oklahoma Cash Bail is Being Used as Ransom to Keep People Who Are Poor Behind Bars

Imagine you are one of the 4,000 people arrested every year in Canadian County, Oklahoma, a county with less than 200,000 people. Maybe the police find marijuana in your car during a traffic stop, maybe the police have mistaken you for someone else, or perhaps you can’t afford the $40 per month you owe the court from a different charge.

After you’re arrested, things will go one of two ways. You may spend an hour or two in the jail for booking and then go home until your court date. Or, you might sit in jail for weeks or months until your court date, eating substandard food and sleeping on a linoleum floor.

What decides which way things will go for you? It’s not how serious the charges are. It’s not whether or not you pose a flight risk. The calculus is simple, and illegal: If you have money, you get out. If you are poor, you stay in. That’s why we sued.

Our client, Jermaine Bradford, was arrested on November 20, 2019 for misdemeanor charges and brought to the Canadian County Jail. He didn’t see a judge until he’d been in jail for almost a week.

When he was finally able to see a judge, it was hardly the kind of fair, robust hearing you would expect after being held in a cage and forced to sleep on the floor while longing for a chance to explain why you should get your freedom back. During the hearing, neither the judge nor Jermaine were in a courtroom. The judge met with Jermaine on a video monitor from her office, behind a closed door, away from the prying eyes of the public. The system provided no lawyer to represent Jermaine. The judge did not ask Jermaine he could afford for bail or let Jermaine ask any questions. At the end of the hearing, the judge told Jermaine his bail was set at $2,000. The whole encounter lasted less than three minutes.

Jermaine has now been sitting in jail for 19 days because he can’t afford his $2000 bond. Because he is poor, he can’t even afford the $200 he would have to pay a bondsman to get out. He is sitting in jail because the state is demanding a ransom for his freedom that he cannot pay. Ironically, he is caught in an awful cycle where every day he sits in jail he accrues even more fines that he cannot pay. To make matters much worse, if Jermaine could scrape together enough money from family or friends to pay the bond amount, he would lose his constitutional right to a public defender. In Canadian County, if you bond out of jail, you are deemed too wealthy to qualify for a public defender. Thus, every poor person is faced with having to choose between their constitutional right to freedom and their constitutional right to a lawyer.

This cycle is cruel, and unconstitutional. And that’s why we sued. Jermaine — and every person locked in the Canadian County jail — deserve a real, in-person hearing with a lawyer to represent them, in a courtroom open to the public and presided over by a judge who asks questions about whether they have a job and what they can pay. Jermaine — and all of us — deserve a system that makes sure he doesn’t sit in jail, just because he’s poor.

In the Midst of Trump’s Attacks, Offshoots of Progress in Congress for Immigrants’ Rights

From the continued separation of families, to attacks on asylum-seekers, to the largest immigration raid ever in a state, to an unprecedented number of immigrants jailed by ICE, this year was filled with new lows for the Trump administration.

The ACLU, partners, and activists have been fighting nonstop for immigrant communities across the country. ACLU activists took over 400,000 actions against Trump’s anti-immigrant agenda and in support of humane immigration policies. Even in today’s challenging political climate, we are seeing our immigrants’ rights movement grow and gain momentum. This year, Congress introduced important legislation and carried out a steady stream of oversight hearings. Below are some highlights from this year.

The Trump administration rescinded a number of critical programs that protected two million immigrants from deportation, including protections for Dreamers through Deferred Action for Childhood Arrivals (DACA), and immigrants from countries including Nepal, El Salvador, and Liberia through Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). In June, after months of advocacy and massive public support, the House of Representatives passed the Dream and American Promise Act (H.R. 6). This was the first bill focused on granting a pathway to citizenship to pass a chamber of Congress since 2010. ACLU activists sent over 10,000 messages in support of the bill. 

The House of Representatives passed Rep. Veronica Escobar’s bill, the Homeland Security Improvement Act (H.R. 2203), which would increase oversight and provide meaningful accountability of ICE and CBP’s actions. Senator Udall introduced a Senate counterpart of the bill.

There were also a number of bills introduced this year that serve as the gold standard for a future administration and Congress committed to immigration reform. Last week, Rep. Chuy Garcia introduced the New Way Forward Act, which if enacted would lead to a dramatic and large scale reform of our existing punitive immigration enforcement system. The Act corrects injustices embedded in our immigration laws, many of which have enabled this administration’s cruel and inhumane assaults on noncitizens in our country and at the border. This bill would dismantle the draconian immigration laws passed in 1996 and would restore fundamental principles of due process and compassion to a deeply imbalanced immigration system.

Other important bills include Representative Jayapal and Senator Booker’s bill the Dignity for Detained Immigrants Act; Senator Durbin’s bill on solitary confinement; legislation by Senators Leahy and Murray to curtail the existing “100-mile border zone;” and Representative Brown’s bill on access to counsel for immigrants. 

And right now, funding for the Department of Homeland Security — specifically its sub-agencies ICE and CBP — is at the center of budget negotiations for the next fiscal year. Through extensive advocacy from organizations and constituents, there is an ongoing fight to ensure that our government’s budget does not give another raise to the president for continued attacks on immigrants. ACLU activists have made and sent almost 30,000 calls and emails to their representatives on the issue. 

Legislation, however, is just the tip of the iceberg. One of the best ways Congress wields its power is demanding answers of government officials through oversight hearings. Members can also call on non-government witnesses to provide a firsthand account of the impact of immigration laws and policies on real people. The ACLU has testified or been involved with numerous hearings this year — perhaps more than we’ve ever seen in a single calendar year. 

ACLU staff and clients provided expertise, submitted statements, and testified this year on numerous issues including: family separation; the deportation of veterans and service members; the lack of oversight, expansion, and abuses in detention; Trump’s attacks on asylum and immigrants along the border; deferred deportation for people with serious medical conditions; and the unprecedented Mississippi ICE raids

The threat to immigrants’ rights is far from over. The ACLU will continue the fight against Trump’s abuses and hold members of Congress accountable to our values and the Constitution. 

Part of an end of year wrap-up series. Read more:

2019 was a Watershed Year in The Movement to Stop Solitary Confinement

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

The 2020 Election Promises Record Turnout

Under Attack by Trump, Immigrant Justice is Advancing in the States

The Battle for Abortion Access is in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

2019 was a Watershed Year in the Movement to Stop Solitary Confinement

Back in 2016, then President of the United States, Barack Obama, called solitary confinement “an affront to our common humanity” and ordered the Justice Department to implement reforms to the practice in U.S. prisons. Although just three short years ago, in too many ways it seems a different age: We have seen a resurgence of the “tough on crime” rhetoric that favors harsh policies and approaches that we know don’t work. Despite these painful setbacks in other areas, the strength of grassroots movements, political leadership, and growing public awareness have created a robust and growing movement to end solitary conferment — known to those of us in the justice community as Stop Solitary — dedicated to ensuring that this torturous practice ends up in the dustbin of history where it belongs.

In 2019, we saw national momentum to reign in the abusive use of solitary confinement expand faster than ever before. This year was record-setting in terms of reforms we saw introduced in state legislatures. Twenty-eight states introduced legislation to ban or restrict solitary confinement, and twelve states passed reform legislation: Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those in Connecticut and Washington, present tentative and piecemeal approaches to change. But most represent significant reforms to existing practices that promise to facilitate more humane and effective prisons, jails, and juvenile detention centers.   

New Jersey passed the strongest law yet in the nation, limiting the length of solitary confinement to 20 consecutive days for all prisoners and detainees. Before the passage of this law, New Jersey put people in solitary for months or even years at a time. The new law ends that practice and also protects vulnerable populations from the harms of solitary, including people under 21 and over 65, pregnant and post-partum people and those who have recently suffered a miscarriage or terminated a pregnancy, LGBTQ people, those with serious medical conditions, and those with various forms of mental health or developmental disabilities.

Nebraska’s law also stands out: It bans any practice that looks like solitary for minors, pregnant people, and those with serious mental illness, developmental disabilities, or traumatic brain injuries. New Mexico also moved aggressively to ban solitary for minors and pregnant people and ban its use on individuals with serious mental illness. Several states, including Georgia, Texas, Montana, and Maryland passed laws prohibiting the use of solitary on pregnant people, and Montana, Maryland, and Arkansas also passed prohibitions on the use of solitary confinement on minors. In total, five states limited the use of solitary confinement on minors, and six prohibited its use on pregnant people. We even saw this issue taken up at the federal level, with the first briefing in the U.S. House of Representative highlighting The Solitary Confinement Study and Reform Act of 2019, a bipartisan bill which would establish a national commission to study the problem of solitary confinement and recommend national standards for reducing its use.

The one major disappointment came from New York, where the widely-supported HALT Solitary Bill was never brought to a vote after legislative leaders cut a deal with New York Governor Cuomo to let the prison administrators write their own reform policies. Those proposed rules have already been widely panned as woefully inadequate to stop the torture of solitary in New York State. Despite these setbacks, advocates in New York continue to push for passage of HALT and the implementation of real reform in the state, including a 15-day limit on solitary confinement that conforms with the international human rights standards set forth in the United Nations Standard Minimum Rules on the Treatment of Prisoners, now known as the Mandela Rules. If HALT passes in 2020, New York will be the first state in the nation to incorporate the Mandela Rules into its laws.  

Advocates across the country are now gearing up to introduce more legislation to Stop Solitary and to ensure that the significant reforms passed in 2019 are actually implemented by corrections institutions as the laws require. State by state and community by community, solitary survivors, civil rights advocates, faith leaders, medical professionals, politicians, and interested members of the public are joining together to bring an end to the torture of solitary confinement in the United States. Much has changed since President Obama spoke of “our common humanity” in 2016, but that humanity remains the same. It demands that we end solitary confinement once and for all — to the protect the people it harms and the communities they will return to, but also so we can be the type of country we aspire to be.           

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We won on Multiple Fronts

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

Trump’s War Pardons Are Sabotaging the Military Justice System

Last month, in an unprecedented move, President Trump pardoned war crimes charges against three U.S. military service members. The decision provoked opposition from former military leaders and many veterans, but was applauded by some lawmakers and media.

The three men forgiven by the president — Lt. Clint Lorance, Maj. Mathew Golsteyn, and Chief Edward Gallagher — had committed or were accused of horrifying crimes. Lorance was serving a 19-year prison sentence for ordering the murder of two unarmed Afghan villagers. Platoon members who turned him in described Lorance as aggressive, ordering them to shoot indiscriminately at civilians in order to “make them afraid of us.” Golsteyn was set to go on trial next year for killing an unarmed Afghan man.  

Gallagher was charged with shooting at civilians for sport, including an Iraqi school girl and an elderly man. Witnesses testified that he stabbed a wounded teenage captive multiple times and posed with his mutilated corpse. Eventually convicted on a minor count of bringing discredit to the armed forces, Gallagher was demoted one step. Overriding internal military processes, the president restored his rank.

President Trump’s intervention evinces a callous disregard for the lives of victims and survivors, the rule of law, and the military justice system. For him, it was irrelevant that the service members violated clearly established laws of war. The fact that they did so while wearing an American uniform made them beyond reproach. “We train our boys to be killing machines, then prosecute them when they kill!” he lamented on Twitter in October.

Citing harms to the integrity of the military legal system and undue command influence, former military leaders expressed concern that the pardons may encourage more impunity for war crimes. They aren’t wrong, but they are very late.

This country has been on a war footing for more than 18 years, with no end in sight. Since U.S. troops were first stationed in Afghanistan and Iraq, there have been numerous reports of war crimes committed by service members and military contractors. A self-described “kill team” was accused of hunting Afghans for the thrill of it. There was systemic abuse of prisoners by the military and the CIA in Afghanistan and at Abu Ghraib. Contractors massacred Iraqi civilians in Fallujah and Haditha and Nisour Square.

American systems of civilian and military legal accountability for crimes and other abuses committed since 9/11 have not held up. Some of the troops accused of being involved in these horrific incidents were never charged or were acquitted. Others received a slap on the wrist. Virtually no senior level official has been held meaningfully accountable for systemic wrongs. The record of incomplete accountability for war crimes in Afghanistan prompted the International Criminal Court prosecutor to seek authorization for a war crimes investigation, an effort that the Trump administration tried to scuttle but is now on appeal — arguments took place in the Hague last week.

It may be tempting to view the Trump pardons as exceptional, yet another example of denigrating established norms. It is true that no other president has pardoned war crimes as Trump has done. It is also true that the record of accountability for abuses committed in the name of America’s fight against terrorism is abysmal.

But that poor accountability record started in the Bush administration and continued during the Obama administration. By looking forward as opposed to looking backward, this country failed to reckon with some of the most shameful episodes in its recent history. No senior U.S. government official has been held accountable for authorizing the CIA’s torture program. The military detention camp at Guantánamo Bay, where many survivors of CIA and military torture were imprisoned without charge, still holds 40 men.

Victims and survivors of illegal and abusive U.S. counterterrorism policies have found it exceedingly difficult to obtain justice in U.S. courts. Courts give excessive deference to executive branch justifications and secrecy in cases implicating national security. As a result, government officials have largely been shielded from liability. Courts have also abstained from deciding the legality of controversial counterterrorism policies such as the lethal strikes program abroad, which has targeted U.S. citizens with drones and killed many hundreds of civilians, at least.

Litigants challenging abuses committed on U.S. soil have hardly fared better. In the immediate aftermath of the September 11 attacks, the FBI detained hundreds of Arab and South Asian immigrant men and treated them as terrorism suspects because they were Muslim. The detainees were confined for months in maximum-security prisons and subjected to harsh treatment. In two separate cases challenging this detention policy, the Supreme Court ruled in favor of limiting accountability for federal officials. The Court even made it harder for victims to bring civil rights lawsuits and limited the ability of plaintiffs to obtain damages when federal officials violate their constitutional rights.

As avenues for redress for victims narrowed over the years, the military legal system offered some reassurance — however imperfect — that flagrant violations of the law would at least be investigated. Trump’s pardons are sabotaging even that avenue. We owe it to the victims of America’s abuses to start grappling with the tremendous harm that our counterterrorism policies have caused, and strive to repair this harm by holding perpetrators accountable.

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

America made big strides in 2019 on its path to dismantle the racist, unfair, and inhumane death penalty. Today, dramatically fewer states permit the death penalty than any time in the modern era, and the number of people on death row is at a 27-year low.

Bi-partisan supermajorities in the New Hampshire legislature abolished the death penalty in May, making it the 21st state to formally reject the punishment. Governor Gavin Newsom imposed a sweeping moratorium on executions in California, closing the death chamber in the state with the largest death row in the country and prohibiting the execution of 737 death row prisoners. Four states — California, Oregon, Colorado, and Pennsylvania — are now under official Governor-imposed moratoria, bringing the total number of states that wouldn’t carry out an execution to 25. Ten years ago, just 12 states prohibited executions. In other words, the number of states prohibiting executions has more than doubled in the last decade — a remarkable pace of change.

The shift in states rejecting the death penalty is mirrored by the movement in public opinion away from capital punishment. The Gallup Poll has tracked public opinion about the death penalty versus life imprisonment since 1985. This year, for the first time since Gallup began tracking public opinion on this issue, a majority of Americans (60 percent) prefer life imprisonment to the death penalty. 

Part of this shift is the clear proof that the government does not always get it right — innocent people have been sentenced to death, including the 166 people who have been formally exonerated. This year brought even more proof that the death penalty cannot shake its innocence problem. In 2019, two men, Charles Ray Finch and Clifford Willians Jr., both of whom were convicted and sentenced to death in 1976, were exonerated and released. Additionally, the Texas Court of Criminal Appeals granted an indefinite stay to Rodney Reed after a groundswell of public opposition clamored against his execution in light of powerful new evidence of his innocence. Other names like James Dailey, Richard Glossip, and Larry Swearingen also made headlines for credible innocence claims. For Swearingen, those news stories came too late

While a year of much progress, 2019 was also a year plagued by shameful state executions and the reckless attempt by the federal government to rush the executions of five men after a nearly two decade de facto moratorium. The Supreme Court allowed Alabama to execute Dominque Ray, a Black Muslim who was denied access to the spiritual advice of his Imam — a comfort guaranteed to Christian prisoners. Just weeks later, the Court stopped the execution of Patrick Murphy, a white Buddhist man, triggering concerns that race and religion played a role in the disparate outcomes. 

Other unconscionable executions from 2019 include: Georgia’s execution of Ray Cromartie without permitting a simple DNA test that could have fully exonerated him; Missouri’s execution of terminally ill Russell Bucklew in the face of evidence that his execution was likely to be torturous; and Tennessee’s execution of legally blind Lee Hall, Jr. The Supreme Court and the government of South Dakota alike failed Charles Rhines, allowing his execution despite evidence that his jurors sentenced him to death because of their anti-LGBT prejudice.    

This year was mixed in terms of the courts willingness to grapple with intractable problems of racial discrimination in the death penalty. The U.S. Supreme Court declined to hear cases from Oklahoma that challenged the systemic racial bias in the imposition of the death penalty, as well as from California, where the state supreme court had upheld the outrageous claim that a prosecutor’s decision to exclude jurors who did not oppose the OJ Simpson verdict was unrelated to race.

But the North Carolina Supreme Court granted review in six cases where the petitioners were yanked from death row, to life without parole, and back again — without due process or new trials — after they had proved racism infected their cases and the state legislature repealed its anti-discrimination law. And the U.S. Supreme Court issued a powerful decision in Flowers v. Mississippi, reaffirming its commitment to overturning cases in which prosecutors secured death sentences by systematically excluding qualified Black jurors from jury service. 

The modern death penalty has churned along for over 40 years since the Supreme Court permitted its reinstatement in Gregg v. Georgia, after finding it unconstitutionally biased and arbitrary in 1972. After more than 40 years, none of the major problems with the death penalty have been addressed. An outgrowth of lynching and slavery, the modern death penalty is still racially biased. Supposed to be reserved for the “worst of the worst” defendants, the death penalty is handed down more often for those with the worst lawyers — not the worst crimes. Geography, money, and race are still the best predictors of who will receive the death penalty. The good news from 2019 is that the country is accelerating in its efforts to finally break with the inhumane and unjust punishment.      

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout