ACLU News

Tony Winner Ali Stroker Reframes Disability Representation and Identity

Over the past several years, we have witnessed a heightened demand for marginalized communities to be better represented in the media, in boardrooms, and every sector of society. While some progress has been made, representation of people with disabilities often takes a backseat in the conversation.

In fact, it was only in 2015 that actress and singer Ali Stroker made history when she became the first person using a wheelchair to perform on a Broadway stage — immediately breaking barriers for people with disabilities. Four years later, she did it again, becoming the first person using a wheelchair to win a Tony award.

“This award is for every kid watching tonight who has a disability, who has a limitation or challenge, who has been waiting to see themselves represented in this arena,” she said while accepting the award.

Stroker’s representation is undoubtedly historic, but there is still so much more work to be done. Although there are around 133 million Americans who live with visible or invisible disabilities, their representation in media and entertainment remains bleak and in many cases, nonexistent. Across the top 100 movies of 2019 only 2.3 percent of all speaking characters had a disability. Even more alarming, when a character with a disability is portrayed, they often aren’t even played by someone with a disability. In fact, one study found that in the top 10 TV shows during 2018, only 12 percent of disabled characters were depicted by actors with the same diagnoses in real life. That’s why disability representation is more important than ever, as we strive to create a more equitable and inclusive world.

Since her historic broadway debut, Stroker has blazed the trail for more disabled representation, on and off the stage. This week, she sat down for a conversation with us on our podcast to discuss the importance of not just representation, but the celebration of disabilities in the entertainment industry and beyond.

Listen to Episode 166 of ACLU's "At Liberty" Podcast Below:

https://soundcloud.com/aclu/ali-stroker/s-Lv90HAzfHLG

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How Face Recognition Fuels Racist Systems of Policing and Immigration — And Why Congress Must Act Now

Face recognition technology may sound futuristic, or perhaps too abstract to seem harmful. But we are already living in a reality in which face recognition and other forms of biometric surveillance pervade our daily lives. These technologies threaten our privacy and free speech rights and, when used by police and immigration enforcement, serve as yet another dangerous system to abuse Black and Brown people on a massive scale. Big Tech companies are profiting off these abuses because they are the ones developing and selling face recognition to government agencies. And it’s our communities — particularly communities of color — that face the harmful consequences.

The good news is that there is a national movement against face recognition that is gaining momentum every day. Recently, a coalition of grassroots organizations from across the country called on Congress to take immediate action to stop government use of dangerous face recognition. Here in Washington state, a place where companies like Amazon, Microsoft, and Palantir loom large, we know firsthand how tech companies collaborate with immigration and law enforcement agencies to build large-scale surveillance tools that facilitate and fuel racist systems that harm both immigrants and U.S. citizens.

Face recognition technology is racist, from how it was built to how it is used. It’s been used by police departments to wrongfully arrest Black men, by ICE and CBP to target and track immigrant families, and by the FBI to surveil Black Lives Matter demonstrators exercising their First Amendment rights. Face recognition massively expands the government’s power to track our movements and target people based on their race, religion, political affiliation, or speech — and while everyone’s rights are at stake, Black and Brown people are harmed the most when this racist technology collides with our racist systems.

Our law and immigration enforcement systems are rooted in this country’s racist history, including slavery, and were created to uphold white supremacy. This is why it’s often those who sit at the margins — folks of color, immigrants, the poor, disabled, women, and trans or gender nonconforming people — who face systemic violence and brutality. Face recognition technology, which was created by those with the most power in society, will only exacerbate this legacy and pattern of state-sanctioned violence against our communities. We’re already seeing this dynamic at work.

In Detroit, police use of face recognition led to the wrongful arrest of Robert Williams, a Black man who was arrested at his home in front of his family. Face recognition’s proven track record of inaccuracy when used against people of color makes us even more likely to be targeted, arrested, or detained. But even if this technology was perfectly accurate, it would still harm communities of color by facilitating systems that are already racist.

The Department of Homeland Security and its sub-agencies ICE and CBP have already committed horrific abuses. With face recognition, they could potentially pinpoint the location of immigrants across the country, marking them for detention and deportation on an unprecedented scale. In 2017, for example, DHS, ICE, and the Department of Health and Human Services used technology supplied by Palantir to tag, track, locate, and arrest 400 people in an operation that targeted the family members and caregivers of unaccompanied migrant children. Face recognition would only expand the power of agencies like ICE to target and tear apart communities of color throughout the country.

 

Congress is starting to respond. Last week, Sens. Edward Markey and Jeff Merkley and Reps. Pramila Jayapal and Ayanna Pressley reintroduced the Facial Recognition and Biometric Technology Moratorium Act, an important bill that responds to the imminent threat of this dangerous surveillance technology. This bill comes as grassroots-powered coalitions continue to pass bans on face recognition across the country. King County, Wash. became the latest jurisdiction to ban face recognition after a unanimous vote by its county council. Big Tech companies — most recently Amazon — have also been forced to make commitments to stop selling face recognition to law enforcement. These wins are not an accident; they are the result of years of local organizing and activism from the communities most impacted.

There’s no doubt these victories are important, but any moratorium is still a temporary solution. Our communities have been clear: We want new systems to keep us safe — systems not rooted in slavery and racism. We need Congress to not only stop face recognition technology, but permanently divest from our racist punishment systems and reinvest in our communities. Until the federal government takes action, our communities will remain in danger.

Big Tech companies like Microsoft are already lobbying for weak regulations that protect their corporate interests and effectively greenlight these dangerous systems. In addition to stopping government acquisition, use, and funding of face recognition technology for state and local face surveillance, the federal government must support local grassroots-powered progress by rejecting Big Tech efforts to preempt state and local bans and moratoria. We can’t let Big Tech stamp out our hard-won advancements.

We are at a critical moment. The fight against face recognition comes alongside a nationwide reckoning with racism and policing led by the Black Lives Matter movement. We must take this opportunity to recognize the role of surveillance in exacerbating the inherent racism of our law and immigration enforcement systems. We must stop face and other biometric surveillance and confront these systemic harms. Only then will we be on the path to equity and justice.

What you can do:Stop Face Surveillance TechnologiesSend your message

Montana is Failing its Constitutional Promise to Teach Native American History

All young people should have equal access to an education that includes learning the complete history of this country, including the experiences and viewpoints of marginalized communities. Unfortunately, in the United States, too many public schools fail to teach about diverse communities in their curriculum. For Native Americans, this disparity is even more stark. According to the National Congress of American Indians, 27 states make no mention of Native Americans in their K-12 curriculum, and 87 percent of state history standards do not mention Native American history after 1900. Access to learning about Native American heritage and culture in our educational institutions is a racial justice issue, and it’s one we’re fighting to preserve.

Although it is encouraging that some states have worked toward building their state curricula to more thoroughly and accurately discuss Native Americans — even passing laws requiring schools to do so — those states must also be held accountable when they fail. That’s why the ACLU, the ACLU of Montana, and the Native American Rights Fund, are suing the state of Montana for violating its legal obligation to ensure that all public school students have access to education about Native American culture and history.

In 1972, as a result of powerful organizing by Native American communities, the Montana Constitution adopted a provision that made a promise to all public school students that “Indian education” would be incorporated across all grades, subjects, and curricula. More than two decades later in 1999, the Montana State Legislature passed the Indian Education for All Act (IEFA), which underscored the state’s constitutional mandate to preserve the cultural integrity of Native Americans through education. The IEFA intended to make good on Montana’s unique constitutional promise after years of failing to deliver.

The IEFA created educational requirements for Montana public schools to ensure that every Montana school child, whether Native American or not, has the opportunity to learn about the distinct and unique heritage of Native Americans. Yet for decades since its enactment, the state has repeatedly broken that promise. In many schools, the cultural heritage and integrity of Native Americans is not being preserved, and students are not learning about Native American heritage.

Although the Montana Supreme Court has ruled that the state has a responsibility to implement the IEFA, the Montana Office of Public Instruction and the Montana Board of Public Education have failed to create uniform standards for implementing, monitoring, and enforcing Indian education as required by law. For example, only a small fraction of Montana’s public school districts fully report whether and how they are spending IEFA funding, which means a school district might be using money specifically dedicated for Indian education for alternative purposes. In fiscal years 2019 and 2020, about 50 percent of IEFA funding to Montana public school districts went unaccounted for, according to annual trustees’ reports the ACLU obtained via public records request.

But it’s not just a failure to account for dedicated funding. Some schools are actually using IEFA funds for things that may be harmful to students. One Montana elementary school used IEFA funds to purchase the book “Squanto and the Miracle of Thanksgiving,” which tells the story of English traders who captured a 12-year-old Native American boy, Squanto, and sold him into slavery. The book “approaches the holiday from an evangelical point of view” and fails to provide a Native American viewpoint, which can be damaging to Native students. This is just one example of how public educational systems in the United States historically have erased Native Americans and their perspectives.

In addition to learning about the importance of Native American histories and modern-day contributions, teaching all students about Native culture and heritage can help reduce cultural misunderstandings, racial stereotyping, and fear-based ignorance. For Native American students specifically, culturally responsive education can help foster a feeling of belonging within the education system, support the growth and development of their identities, and help uphold the established political and legal sovereignty — independent governance — of their tribes. All of these things can lead to greater academic success.

Every student should have the right to receive an inclusive education and have an open and honest dialogue about America’s history. But unfortunately, states across the country are trying to prevent this by banning discussions about gender and race in schools. This effectively erases the history and lived experiences of people of color, and censors discussion around racism and the critical role it has played in American history. The echoes from our colonial past and the history of using education as an assimilationist tool continue to haunt students in our current schools.

Equal access to learning about Native American heritage and culture in our education institutions is a racial justice issue. Representation matters.

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Secretary Mayorkas Pledged to End His Agency’s Anti-Immigrant Abuses. Here’s What He’s Delivered.

In the days after his nomination, Homeland Security Secretary Alejandro Mayorkas signaled his willingness to make a decisive break from Donald Trump’s racist and anti-immigrant policies. Mayorkas is the first Latino and the first immigrant to lead the Department of Homeland Security, the government agency that is most responsible for delivering the “fair and humane” immigration system President Joe Biden promised as a candidate.

As he approaches the sixth month anniversary of his confirmation, Mayorkas’ progress report is mixed: Despite some notable high marks, the incremental approach Mayorkas has embraced is not doing enough to reverse the drastic restrictions of the Trump administration and to end the ongoing trauma inflicted by America’s inhumane immigration enforcement system.

While there’s been a sharp decrease in ICE arrests, a trend that began before he assumed his position, some ICE agents are flouting the administration’s directives and ICE continues to intimidate immigrants across the country in collaboration with local police.

Mayorkas moved to close two detention sites in Georgia and Massachusetts, but ICE has doubled the number of immigrants and asylum seekers locked up in detention centers under his watch, and kept open dozens of facilities with appalling records of abuse and neglect. And while Mayorkas ended the “return to Mexico” policy implemented under Trump, he has largely continued Trump’s illegal misuse of the Title 42 public health authority to expel people seeking asylum without due process.

Here’s how Secretary Mayorkas’ record in three key areas — reining in ICE abuses, closing ICE detention centers, and taking a fair and humane approach to border policy — matches up with his rhetoric and voters’ mandate to dismantle Trump’s anti-immigrant policies and bring humanity and fairness to our immigration system.

REINING IN ICE ABUSESProgress Report:

ICE arrests are down sharply, yet some ICE agents are flouting the administration’s directives. Meanwhile, ICE continues to be entangled with local law enforcement through programs like 287 (g), which were massively expanded under the Trump administration. Secretary Mayorkas should use his power to fundamentally reform and reorient ICE so that it protects and supports communities rather than targets them.

For four years, former President Donald Trump weaponized ICE, brandishing the threat of mass raids and deportations to further a racist agenda and score points with his base. Under Mayorkas’ leadership, ICE’s immigration enforcement practices are changing.

In February, Secretary Mayorkas directed ICE to focus its civil immigration enforcement resources on threats to national security, border security, and public safety. While seriously flawed, the directive went further than the Obama administration’s in limiting deportations, and evidence suggests that it has made a real impact on the ground. DHS has also moved to limit enforcement actions at courthouses and vaccine distribution centers, while working to find solutions for survivors of crime and deported veterans. And in May, a memo to ICE attorneys relayed new guidance on which groups to prioritize for civil enforcement and arrests.

However, Mayorkas has repeatedly declined to rein in ICE agents in other ways. He rolled back the Biden administration’s initial move to largely prohibit agents from conducting street arrests, which have involved “snatch and grab” operations, where agents in plain clothes force people off the street into unmarked cars, and agents masquerading as local police — in violation of the Fourth Amendment.

Agents are now justifying arrests by categorizing people as “priorities” even though they do not meet the criteria set out in the May memo, resulting in thousands of people wrongly deported.

Mayorkas’ DHS has also not done enough to reduce ICE’s tentacular reach into communities across the country. Since the early 2000s, ICE has tapped state and local police, sheriffs, and corrections officials to participate in arrests and deportations through the 287(g) program, Secure Communities program, and ICE detainers. These programs have emboldened local police to engage in racial profiling, incentivizing pretextual arrests made on state or local criminal grounds — with the actual goal of identifying immigrants to detain for ICE.

The Trump administration used these programs to intimidate immigrant communities and drive a wedge between them and local law enforcement. The 287(g) program expanded to an additional 116 partner agreements with local law enforcement under Trump. Despite promises President Biden made on the campaign trail, DHS has only ended one 287(g) agreement, and has left in place Trump-era changes making these partnerships last indefinitely instead of three years.

Secretary Mayorkas has the power to end the 287(g) program, fundamentally reform ICE, and decouple its work from local policing.

CLOSING ICE DETENTION CENTERSProgress Report:

Two ICE detention centers have been closed, but ICE has doubled the number of immigrants and asylum seekers locked up in detention under Secretary Mayorkas’ watch, and kept dozens of detention facilities open. Secretary Mayorkas should work to close ICE detention centers and end contracts with prison operators.

Mayorkas oversees more than 200 ICE detention facilities scattered across the country, including many with documented patterns of inhumane treatment and conditions.

In May, DHS announced the closure of two sites: Bristol County House of Corrections in Massachusetts and Irwin County Detention Center in Georgia, the site of horrific allegations of abuse, including the use of tear gas against detained people seeking safety from COVID-19, forced hysterectomies, and systemic medical neglect. In July, ICE announced a policy against detaining and arresting pregnant, postpartum, and nursing individuals — a shift long sought by the ACLU and other advocates.

These were positive steps, but Mayorkas failed to seize the opportunity to shrink the ICE detention machine. In February, after Mayorkas was sworn in, ICE held approximately 13,500 people in detention each day — compared to a high of 56,000 people per day under the Trump administration. Instead of taking the opportunity to close detention sites — saving millions in taxpayer dollars — and expand the use of community-based alternatives to detention, ICE in recent months has doubled the average daily population of detention facilities. As of July, DHS reports an average daily detained population of 26,200 people.

The Trump administration signed unusually wasteful contracts that expanded the use of private prison companies and opened detention centers in facilities with lengthy histories of abuse. The ACLU called on Mayorkas to shut down these and other facilities, identifying 39 detention sites with inhumane and life-threatening conditions and extremely limited access to legal counsel. Yet the administration has only closed two, and asked Congress to fund 30,000 detention beds in the coming year.

While the Biden administration moved to end the Justice Department’s contracts with private prisons operating criminal detention sites, it has not extended that to immigration. Immigrants and people seeking asylum continue to languish in privately operated prisons that are incentivized to keep conditions poor and even unsafe to maximize their profits.

Perhaps most galling, as detention sites close, ICE is choosing to transfer people to other detention facilities rather than release them to their communities and families — undermining hard-won progress and jeopardizing the health of detained people, as well as their ability to effectively present their cases.

Mayorkas still has an opportunity to bring lasting change to this system. He should recommit to closing ICE detention sites that fail to ensure the health and safety of detained people, and make a new commitment to review and close detention sites where people do not have meaningful access to counsel. Moreover, as detention sites close, he should require that ICE prioritize the release of detained people — rather than their continued detention elsewhere.

A FAIR AND HUMANE APPROACH TO THE BORDERProgress Report:

More must be done to ensure families severely traumatized by Trump’s family separation policy are made fully whole.

While some progress has been made to end harmful Trump-era asylum policies, until the federal government brings a complete end to the misuse of “Title 42” public health authority to expel people seeking asylum with no due process, the continuation of this cruel and unlawful policy will overshadow other developments.

The Biden administration rescinded the “zero tolerance” policy devised by the Trump administration, correctly understanding that its function served as a horrific tool for separating families at the border. Mayorkas is leading a task force to reunite separated parents with their children. Recently, a small number of families were reunited. The process has been slow-moving and serious trauma lingers. Mayorkas’ task force should focus not only on reuniting these families, but on ensuring that they have legal status, access to social services, and other resources that they need in order to recover.

In February, Mayorkas announced that he would rebuild the asylum process, which is supposed to offer people who flee persecution in their home countries a fair opportunity to seek protection and safety in the U.S., but which the prior administration attempted to dismantle. He has made some progress toward this goal, such as formally ending Trump’s “return to Mexico” policy. But he has largely kept in place the Trump administration’s Title 42 order, which effectively closes the borders to people seeking safety in the U.S., purportedly because of the pandemic. Under Title 42, people seeking asylum are being returned to Mexico or their countries of origin, where many face persecution and violence. Title 42 imposes particular harms on Black migrants, This policy is not only inhumane, it is illegal. Public health experts have made clear that Title 42 has no scientific basis as a public health measure; even under Trump, experts at the CDC were opposed to issuing the order in the first place. It is long past time for the Biden administration to end the Title 42 order and restore people’s ability to seek protection from persecution in the United States, as U.S. and international law require.

Moving Forward

Mayorkas and the Biden administration have a mandate from voters to reform an immigration system that has been weaponized, politicized and made increasingly punitive. We will continue urging Mayorkas to prioritize major reforms to undo the harm the Trump administration caused to families and communities, and to make substantial progress toward rebuilding the asylum process and reining in abuses by ICE and its agents.

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The ACLU National Advocacy Institute is Building the Next Generation of Leaders — Including Me

I stumbled upon the ACLU’s National Advocacy Institute by total coincidence. A friend mentioned that she attended the institute in a previous year, and I happened to see a post about it on my Instagram feed. I took a chance and decided to apply, but never thought I would get in, let alone that it would spark in me a passion for organizing and advocating for my community in Austin, Texas. But now, two years after I attended the institute, I can see just how important this program is to building the next generation of civil rights leaders, advocates, and organizers.

The ACLU was still very new to me when I applied to the institute. I knew the organization fought for civil rights and liberties, but it wasn’t until I attended the program that I realized just how broad the ACLU’s mandate is. Now, I know the ACLU is one of the most progressive organizations in the U.S. The ACLU is committed to training young people to be disciplined and pragmatic, to stand up when something isn’t right, and to commit to giving back and making a difference, no matter where we are.

After I was accepted into the institute, I started setting goals for myself to build my understanding of social justice and my skills in organizing, and learn to be a better advocate for my community. During the week-long program, I did all of these things and so much more: I learned about the intersectional nature of race and power, how our institutions have been structured to oppress some groups while entrenching the power and influence of others, and why we must work urgently to dismantle these systems if we ever want to achieve racial equity and justice in this country.

When I arrived, I was nervous and a little overwhelmed. Knowing I wasn’t alone in the struggle to build a more equitable and just world is something I will always remember. Seeing dozens of protests, demonstrations, and rallies is just a typical week in Washington, but it was all new to me. These people took to the streets to demand change and refused to be silent, even in the face of intense opposition.

That week, I had the opportunity to meet students and speakers from all over the country with a range of perspectives, identities, and passions. It was a humbling experience meeting so many dedicated and involved people who were willing to travel across the country and sometimes thousands of miles across the ocean to learn about how to be a better activist and the power of young people getting involved in the political process. I went to a high school with many exceptionally intelligent and well-rounded students who were recruited because of their academic achievements, but I still never felt more intellectually stimulated as I did when I was in D.C.

Aaron Booe at a protest in Austin, Texas in 2020.

All photos from Aaron Booe

For the past two years, the institute has been held virtually due to the pandemic, but it is as relevant and important today as it was when I attended. Attendees still get to hear from civil rights experts, meet other like-minded, politically engaged students, and learn the ropes about how to bring out the organizer and activist that lives within us all. And now, it can be done from home, opening up the opportunity for students who may not have been able to travel long distances for the week-long in person institute, like students with disabilities and those living in rural communities.

One part of the institute that stood out for me was Jeffery Robinson’s presentation, “A Chronicle of Racism in America.” He put words to ideas that I had long been thinking about, but could never articulate, including the structural phenomenon of race infecting our institutions, and how these systems are responsible for the continued oppression of marginalized groups. Growing up, I always heard people talk about individual responsibility and how if you just work hard, you can succeed in this country. But that’s not always true — these systems of oppression still hold back Black and Brown people from reaching their full potential. His presentation still sticks with me, and I think everyone should learn about the history of racism in the U.S.. These are not “divisive concepts” and it’s more important now than ever that people understand the truth about how race has impacted our country, from its founding to today.

After the institute, I came home inspired and ready to act. Last year, I founded an organization to advocate for marginalized communities in Austin. We’ve marched in solidarity with the Movement for Black Lives and their demands for racial justice. Additionally, we’ve advocated on behalf of people experiencing homelessness, organizing to ensure they have basic necessities for life, and organized demonstrations to support their right to live free of stigma and cruelty. Using the skills I gained at the institute, I took the lead to organize these events, and I know they are helping me to become a better organizer. People have thanked me for my service, but I’m just getting started.

I knew that I was interested in going to college in D.C., but the institute clarified that I needed to be in the heart of the action. I’m now a student at Howard University, and I feel like this is right where I need to be. Because of the pandemic, I’m still in Austin fighting for my community while I study and learn more about how to be the best advocate that I can.

There are hundreds of stories just like mine: a student goes to Washington D.C. and becomes inspired by the tireless work of the ACLU and others in fighting to protect and advance the rights of all people, but especially the communities too often left behind and ignored. I hope that students who are considering the institute know that it will change their lives for the better, and teach the critical skills needed to be an effective, disciplined organizer and activist.

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The UN’s George Floyd Resolution is a Vital Step Toward International Accountability

More than one year after the brutal murder of George Floyd at the hands of police, it is clear that international accountability is critical to complement and bolster domestic efforts to dismantle systemic racism in law enforcement in the United States.

Last month, the United Nations High Commissioner for Human Rights Michelle Bachelet released a highly anticipated and historic report detailing the “compounding inequalities” and “stark socioeconomic and political marginalization” that Black people and people of African descent in many countries, including in the U.S., continue to face. The report found that “no State has comprehensively accounted for the past or for the current impact of systemic racism” and called for a “transformative agenda” to uproot systemic racism and address law enforcement violence against Black people and people of African descent.

The report, which references the U.S. more than any other country, calls for “reimagining policing and reforming criminal justice systems that do not keep racial and ethnic minorities safe and which have consistently produced discriminatory outcomes for Africans and people of African descent” and urges states to address racial profiling in law enforcement, the militarization of law enforcement, and the lack of accountability and transparency regarding police violence.

Building on the momentum of the report, Bachelet formally presented her report and agenda for transformative change to the U.N. Human Rights Council last week. There is, she said, “an urgent need to confront the legacies of enslavement, the trans-Atlantic slave trade, colonialism, and successive racially discriminatory policies and systems, and to seek reparatory justice.”

Advocates immediately recognized the groundbreaking nature of this report and the impact it could have — if the U.S. actively responds. In a video statement on behalf of the ACLU, Collette Flannigan, executive director of Mothers Against Police Brutality, commended the U.N. High Commissioner for “listening to the voices of families of victims of police violence and centering the lived painful experiences of people of African descent more broadly” and called on the Biden administration, Congress, and state and local governments to heed the report’s recommendations.

U.N. member states, led by the Africa Group, also saw the need to capitalize on this moment. In a landmark resolution adopted by consensus the Human Rights Council, the U.N. will create an independent expert mechanism to focus on examining and combating systemic racism worldwide, especially in the context of law enforcement.

Up to the last minute, former colonial powers such as the United Kingdom pushed for a weaker resolution, but an unprecedented international coalition of civil society organizations and NGOs — many of which are led by Black women — successfully urged the council to maintain the core elements of the resolution. The pillars of the resolution call for enhanced global accountability for human rights violations by law enforcement against Black people in the U.S. and globally, and an investigation into the impacts of slavery and colonialism on contemporary forms of systemic racism. This is monumental step toward international accountability for systemic racism in law enforcement.

Following the adoption of the resolution, Secretary of State Antony Blinken released a statement pledging the Biden administration’s cooperation with the new expert mechanism, as the ACLU and the Leadership Conference on Civil and Human Rights have been demanding.

For years, the ACLU and civil society organizations have urged administrations to extend similar invitations to thematic human rights experts. In 2019, the ACLU, the National Council of Churches, and a diverse civil society coalition called on the Trump administration to extend an invitation to the U.N. Special Rapporteur on contemporary forms of racism. The ACLU also led a coalition effort which called on the Obama administration to invite the U.N. Special Rapporteur on torture to visit U.S. detention facilities and prisons, including Guantanamo Bay.

The Biden administration’s invitation to U.N. independent experts signifies a new chapter of U.S. engagement with its international human rights bodies, particularly on racial justice and equality. We are encouraged by the administration’s promise to cooperate with the new international probe on systemic racism, but the U.S. government must take further action to confront the impacts of slavery and Jim Crow on systemic racism in the U.S.

Specifically, we’re calling on President Biden and Secretary Blinken to firmly and publicly support:

  • The passage of domestic legislation that is strongly aligned with the U.N.’s report, including H.R. 40, to study reparations for slavery;
  • The establishment of a National Human Rights Institution and the appointment of a senior Human Rights Coordinator with a mandate to implement a national plan of action to fulfill international human rights obligations, especially on racial justice; and
  • Transformative and meaningful changes to our public safety and criminal legal systems, including initiatives to divest from police departments and reinvest in the communities most harmed by police violence and over-policing.

The significant actions taken this week by the highest international human rights body signals a turning point in the struggle against racism and racial discrimination worldwide, and the scourge of systemic racism against Black people, particularly in the context of policing. The implementation of the historic U.N. resolution, which is informally but aptly called the “George Floyd Resolution,” coincides with the 20th anniversary of the Durban Conference Against Racism, which must continue to guide the global fight against racism. The resolution’s implementation should be followed by the creation of a U.N. Permanent Forum on People of African Descent, and work specifically to remedy past and current racial injustices through acknowledgment, recognition, reparations, and guarantees for non-repetition of the crimes against humanity of slavery and the trans-Atlantic trade in enslaved Africans. The onus is now on the Biden administration to lead by example in the work to dismantle systemic racism.

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Do Black People Have the Right to Bear Arms?

With 233 mass shootings so far this year, the issue of gun violence in the U.S. is all too familiar. Tragic events like the Pulse nightclub and Parkland shootings go from being media spectacles to quotidian events at an alarming rate in a country that often heralds the Second Amendment above meaningful safety for all its citizens. The vigilantism of widespread gun ownership puts Black Americans in an especially vulnerable position given the brutality and human cost of discriminatory policing.

The gun violence epidemic continues to spark debate about the Second Amendment and who has a right to bear arms. But often absent in these debates is the intrinsic anti-Blackness of the unequal enforcement of gun laws, and the relationship between appeals to gun rights and the justification of militia violence. Throughout the history of this country, the rhetoric of gun rights has been selectively manipulated and utilized to inflame white racial anxiety, and to frame Blackness as an inherent threat.

In this week’s At Liberty podcast episode, you’ll hear from historian Carol Anderson, author of The Second: Race and Guns in a Fatally Unequal America, and Charles Howard Candler, Professor of African American Studies at Emory University, who interrogates the elegiac worship of the Second Amendment and how racism determined its very inclusion in the Bill of Rights.

https://soundcloud.com/aclu/do-black-people-have-the-right-to-bear-arms#t=0:00

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Texas Voting Rights Attacks Warrant Congressional Action

Earlier this week, Texas Democrats fled the state in a last-ditch effort to prevent the passage of a restrictive new voting law by the Republican-controlled legislature. At the same time, Hervis Rogers, a 62-year-old Black man, was recently charged with two counts of illegal voting in Texas. After waiting more than a year, the state now claims that Rogers voted in the 2018 and 2020 elections while he was still on parole. He faces up to 40 years in prison if convicted.

Tomorrow marks the first anniversary of the death of civil rights hero Congressman John Lewis, and the actions of Texas officials underscore that his march for justice must continue — the right to vote is still severely under attack. Congressman Lewis dedicated his life to expanding access to the ballot box. In his early adulthood, Lewis was the chairman of the Student Nonviolent Coordinating Committee (SNCC), a civil rights organization that fought to ensure President Lyndon B. Johnson signed the Voting Rights Act (VRA) into law.

The VRA is a landmark piece of federal legislation that prohibits racial discrimination in voting. In March 1965, Lewis put his life on the line, leading a historic march calling for the passage of the VRA on Edmund Pettus Bridge. State troopers and police violently attacked the marchers for protesting the horrific racial segregation happening around the country. Following the horror of “Bloody Sunday,” President Johnson sent a voting rights bill to Congress where it was eventually passed as the VRA in August of that year. This legislation, which for so long protected the right to vote for communities of color across the country, was weakened by the Supreme Court in Shelby County v. Holder.

Prior to this decision, states and counties with the worst histories and recent records of voting discrimination had to obtain federal “preclearance” — that is, approval from the Department of Justice or a federal court — before implementing any changes to voting laws and practices, to ensure they did not curtail the right to vote. Shelby County struck down the formula used to identify which states were required to do so, gutting the heart of the VRA, the crown jewel of the civil rights movement.

After Shelby County, the attacks on the right to vote have only increased, and not just in Texas. This year alone, more than 400 voter suppression bills have been introduced in 47 states. These bills seek to make it more difficult for people to register to vote, vote by mail, or vote in person. Many place a disproportionate burden on communities of color. And, earlier this month, the Supreme Court dealt another blow to the critical protections provided in the VRA. In Brnovich v. Democratic National Committee, the court erected significant new barriers to lawsuits brought under Section 2 of the VRA. Congress enacted this section to specifically address racial discrimination imposed by voting laws. While Section 2 remains as a means to combat racial discrimination in voting, the court has made those challenges much more difficult, potentially insulating all but the most egregious and obviously discriminatory laws and practices.

To address the severity of these attacks on the ballot box in Texas and around the country, Congress must pass the John Lewis Voting Rights Advancement Act. This critical legislation would restore the pre-clearance regime. On the first anniversary of Congressman Lewis’s passing, and as we reflect on his magnanimous life, Congress must continue John Lewis’s march for justice by passing the John Lewis Voting Rights Advancement Act to more explicitly protect the right to vote.

What you can do:Congress: Protect Our Voting RightsSend your message

The International Olympic Committee is Failing Black Women

In just 10.86 seconds, Sha’Carri Richardson made history when she crossed the finish line for the Women’s 100-meter dash at the U.S. Olympic track and field trial. In an instant, the 21-year-old became an overnight sensation as she set her sights on representing the nation in Tokyo.

“I just want the world to know that I’m THAT girl,” she exclaimed to the world, as fans and onlookers fixated on her poise, ambition, and, yes, bright orange hair.

But only a few days later, the world received very different news: Richardson was suspended for a month over a positive marijuana test, which ultimately resulted in her complete exclusion from the Olympic Games.

Her story became an all too familiar symbol of the barriers that Black women have to endure in every sector of life, including elite sports. Time and time again, the select obstacles reserved for Black women athletes are harsh reminders of the hurdles Black women have to continuously clear — on and off the field.

Just this year, the International Federation that governs swimming (FINA) banned swimming caps designed for natural Black hair because the caps did not “fit the natural form of the head.” The decision was telling because of whose hair — and heads — were excluded from FINA’s definition of “natural.” FINA decided to reassess the ban only after its initial decision was met with backlash. Shortly after the swimming cap ban, two Namibian runners were disqualified from the Olympics for their natural testosterone levels — reinforcing the harsh reality that the policing of who counts as a “woman” has always been deeply racialized. And when hammer thrower Gwen Berry practiced her right to peacefully protest racial injustice at the track and field trials, some lawmakers called for her to be removed from the Olympic team altogether.

The very differences that are overlooked, and even celebrated for other athletes, are weaponized against Black women. Take Michael Phelps’ “unique genetic blessings,” including unusually long arms, double-jointed ankles, and a body that produces half the lactic acid of the average athlete. Phelps has been praised as a marvel for these genetic mutations, which enhance his ability to excel in his sport. Meanwhile, athletes like Christine Mboma and Beatrice Masilingi — whose bodies naturally produce testosterone at a higher level than the average woman — are shamed and ultimately disqualified from competing at all.

The double standard is glaring: Black women are required to alter their bodies and practices, inside and out, simply to step onto the playing field. And once they finally have a spot, their achievements are denied and their work is undermined, punished, and disqualified for reasons that are profoundly unfair.

Richardson, for example, has said she used marijuana (a depressant) for relief from what she described as “emotional panic” following the news of her biological mother’s death only days before the race. Her resilience in the face of the tragedy took center stage during her post-event interview when she broke the news about the passing. While many sympathized with her situation then, little grace was offered when it came to how she chose to grieve, even though there still remains no scientific evidence that marijuana can create bigger, stronger, or faster athletes.

Richardson’s exclusion cannot be divorced from racial disparities in marijuana enforcement, however. Even though Black people and white people use marijuana at similar rates, Black people are still 3.64 times more likely than white people to be arrested for marijuana possession.

Richardson’s excellence challenges notions of white supremacy — making her success a threat to the very Olympic team that she qualified to be on. In fact, the legacy of chattel slavery in the United States burdens Black women because of their race and their gender. From generational wealth inequality — caused in large part because they carry the biggest burden of the student loan debt crisis — to the increased violence against Black women, nearly every system in America has failed Black women. The International Olympic Committee shouldn’t be one of them.

Although Sha’Carri will not compete in Tokyo, she isn’t giving up. Instead, she’s looking ahead to next year.

“I’m sorry, I can’t be y’all Olympic Champ this year but I promise I’ll be your World Champ next year,” she wrote on Twitter.

But the International Olympic Committee doesn’t have to wait until then to address the exclusionary effects of its policies, as Black women across the country make clear that they will no longer be pushed off the podium.

What you can do:Further Racial Justice: Attend a Systemic Equality EventRSVP

Inequity Starts the Day a Child is Born

A year after the pandemic and resulting economic crisis shut down much of America, President Biden and Congress took an important step forward by passing the American Rescue Plan. The law rightly prioritizes those hit hardest by the pandemic, such as communities of color and people with low incomes, and begins to address some of the systemic inequities that COVID-19 only exacerbated — inequities that begin from the day a child is born.

The relief package includes a one-year expansion of the Child Tax Credit and an increase from $2,000 to $3,600 per child under six and $3,000 for children aged six to 17. Starting today, the first monthly installments of the tax credit will flow into eligible families’ bank accounts. This is a major sign of progress that will boost family and economic well-being for millions of children. However, child poverty is not a temporary or short-term crisis, and its impact can last generations. To effect systemic change, President Biden and Congress must do more: They must make the expanded Child Tax Credit permanent and include critical improvements so that it functions more like a child allowance and reaches all children. Doing this would cut child poverty by 40 percent and instantly lift over 50 percent of Black children out of poverty.

Not only would this action change millions of children’s lives, but it has the support of a majority of voters across most demographic groups. A poll conducted by YouGov found that 58 percent of registered voters support legislation making the Child Tax Credit expansion permanent, including a significant majority of voters self-identified as liberal or moderate. A majority of voters in urban and suburban areas (69 percent and 55 percent respectively) are in support, as well as half of rural voters. Supporters of the Child Tax Credit expansion are more likely to be younger (almost three-quarters of voters aged 18-29 compared to slightly more than half of voters aged 55 and up) and lower-income (72 percent compared to 50 percent of those who make $100k – $150k and 54 percent of voters who make more than $150k). And along racial lines, an overwhelming majority (84 percent) of Black voters support the expanded Child Tax Credit compared to 61 percent of Latinx voters and 54 percent of white voters.

Child poverty is a national crisis. Every day in the United States, 1,683 children are born into poverty, and a majority of those children are Black and Latinx. A child’s circumstances at birth can determine outcomes for a lifetime; children growing up in poverty are more likely to live in school districts with low-quality education and, as an adult, more likely to encounter barriers to employment and become entangled with the criminal legal system. By age 30, they are more likely to be poor than peers who never experienced poverty.

While the current Child Tax Credit system does provide some relief for its recipients, it is not permanent and does not go far enough to reach all children. We know that families need regular, consistent, and increased cash support permanently, not just for one year. Raising children and affording basic necessities to support their needs in this country is expensive and the cost continues to rise. Our families’ security, their healthy development, and their future depend on improving the Child Tax Credit so that it is permanent, reaches all children, and is easy to access.

This crisis must be treated with urgency and as a matter of racial and economic justice. Staggering as these statistics are, experience shows us that child poverty can be solved by government intervention. President Biden and Congress can and must respond by making the Child Tax Credit permanent with critical improvements so that Black, Latinx, Asian American and Pacific Islander, Indigenous, and immigrant children — who are too often excluded from support services — can receive the benefit. If we are truly committed to racial justice and systemic equality, the choice is clear. Systemic equality starts from the day a child is born.

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Five Things to Know About Gender-Affirming Health Care

Across the country, lawmakers have enacted sweeping attacks on transgender people — particularly transgender youth. After initially focusing primarily on restroom restrictions, opponents of trans rights have switched their target to sports. This year, Arkansas went even further, passing a ban on gender-affirming healthcare for transgender youth. Four transgender youth and two doctors joined with the ACLU to sue the state.

Arkansas’s new health care ban, scheduled to go into effect at the end of July, would not only prohibit healthcare professionals from providing or referring transgender youth for medically necessary health care, it would also allow private insurers to refuse to cover gender-affirming care for transgender people of any age. If it is allowed to go into effect, the law will have detrimental effects on the mental, emotional, and physical health of transgender people across the state.

The first court hearing addressing the constitutionality of a ban on gender-affirming care for trans youth will take place on July 21. Here are five things to know about the Arkansas ban on gender-affirming care, taken directly from the personal testimonies and briefs submitted to the court.

Trans youth know what is best for them.

“[After starting hormone therapy,] I now feel a level of confidence I never knew was possible. I can easily and confidently interact with other people, whether I know them or not. My body is finally beginning to match who I am.” — Dylan Brandt

15-year-old Dylan Brandt and the three other transgender youth in our case know who they are.

https://twitter.com/ACLU/status/1412184811305844738?s=20

“Hormone-therapy treatment has been life-changing. Since starting hormone therapy, I have become genuinely happy and confident for the first time since I can remember. I can finally see a future for myself. My depression has subsided. I have not engaged in self -harm. I have become more engaged with my family and community.” — Sabrina Jennen, another transgender youth relying on gender-affirming healthcare.

Parents see what gender-affirming care means to their kids.

“[After accepting Brooke’s new pronouns,] it was as if a cloud lifted and Brooke’s smile came back. We had a happy, bright-eyed child again, and we were relieved to see our child flourishing once more.” — Amanda and Shyne Dennis, parents of 9-year-old Brooke Dennis.

https://twitter.com/ACLU/status/1413635619826323465?s=20

Amanda and Shyne Dennis are just two of the many parents of transgender children who have seen the positive impact that gender-affirming care has had on their children.

“Since starting hormone therapy…she has become more engaged with her family. Treatment has made her happy, confident, and has helped her become the thriving child we love so dearly.” — Aaron and Lacey Jennen, parents of 15-year-old Sabrina.

Many young people who are not trans access gender-affirming health care.

“If House Bill 1570 (the “Health Care Ban”) takes effect, I will be prohibited from providing these treatments to my transgender patients because they relate to ‘gender transition’ but I will be able to continue providing the same treatments to my cisgender patients to help bring their bodies into alignment with their gender.” — Dr. Michelle Hutchison, one of the doctors suing the state.

Across pediatric practices, cisgender youth rely on this critical care for a variety of reasons — including to treat precocious puberty and polycystic ovarian syndrome. A Harvard Medical School and Fenway Institute study found that doctors have been using these safe medicaitions for decades for cisgender children who go through puberty too early.

“There is nothing inherently harmful about undergoing hormone treatment to sustain one’s health and it is a common practice in many non-transgender patients for reasons unrelated to treatment of gender dysphoria. I regularly treat cisgender patients with the same hormone therapy that is provided to transgender patients.” — Dr. Deanna Adkins.

https://www.aclu.org/news/lgbtq-rights/doctors-agree-gender-affirming-care-is-life-saving-care/

Gender-affirming care saves lives.

“Gender-affirming care, including puberty suppression and hormone therapy, is potentially lifesaving.”

That’s what the Pediatric Endocrine Society made clear in their brief to the court.

“Proper gender-affirming care can mitigate a patient’s clinical distress and lead to significant improvements in the overall well-being of youth and adolescents who are at risk of or have been diagnosed with gender dysphoria … studies show that transgender adults who received appropriate treatment during adolescence had a lower incidence of lifetime suicidal ideation than those who wanted but could not obtain such treatment.” — The American Academy of Pediatrics.

In light of this, it is not surprising that child and adolescent psychiatrists have attested that, should the Health Care Ban take effect, “the lives of some of our patients will be put at risk.”

Laws attacking trans youth will hurt the Arkansas economy.

A group of businesses in Arkansas told the court that “if the Health Care Ban takes effect, the backlash — from consumers and businesses alike — is likely to be fierce, causing a decline in economic activity within the state. This will inflict substantial harm on amici, Arkansas businesses, and all Arkansans, because all benefit from a strong economy.”

This is in large part because many of the families who will be affected by the Health Care Ban are considering leaving their homes, their extended families, their communities, and even their jobs to ensure that their children are able to receive gender-affirming care.

The ban could also discourage other LGBTQ individuals and their families from moving to the state altogether, impairing “the ability of [Arkansas businesses] to attract and retain a diverse, inclusive, and talented workforce. As a result, it will place Arkansas’ businesses at a competitive disadvantage, both domestically and on the global stage.” — Liveramp Holdings, Inc. and Additional Business Organizations.

What you can do:Congress: Pass the Equality ActSend your message

I Did Nothing Wrong. I Was Arrested Anyway.

I never thought I would be a cautionary tale. More than that, I never thought I’d have to explain to my daughters why their daddy got arrested in front of them on our front lawn. How does one explain to two little girls that a computer got it wrong, but the police listened to it anyway — even if that meant arresting me for a crime I didn’t commit?

This is what happened to me: As I was getting ready to head home from work one day in January of 2020, my wife called me and told me that a police officer had called and said I needed to turn myself in. She was scared and confused. The officers called me next, but wouldn’t explain why I was supposed to turn myself in or what I was accused of, so I thought it was probably a prank. I couldn’t imagine what else it could be. But as I pulled up to my house, a Detroit police squad car was waiting for me. The squad car swooped in from behind to block my SUV — as if I would make a run for it. One officer jumped out and asked if I was Robert Williams. I said I was. He told me I was under arrest.

By then, my wife, Melissa, was outside with our youngest in her arms, and my older daughter was peeking around my wife trying to see what was happening. I told my older daughter to go back inside, that the cops were making a mistake and that daddy would be back in a minute.

But I wasn’t back in a minute. I was handcuffed and taken to the Detroit Detention Center.

As any other person would be, I was confused, scared — and yes, angry — that this was happening to me. And as any other Black man would be, I had to consider what could happen if I asked too many questions or displayed my anger openly, even though I knew I had done nothing wrong.

When we arrived at the detention center, I was patted down probably seven times, asked to remove the strings from my shoes and hoodie, and fingerprinted. They also took my mugshot and DNA sample. No one would tell me what crime they thought I’d committed.

After that, a full 18 hours went by. I spent the night sleeping on the cold concrete floor of a filthy, overcrowded cell next to an overflowing trash can. No one came to talk to me or explain what I was accused of — or why. Meanwhile, my family spent the night at home without me, scared for me and for what my false arrest would mean for all of us.

I eventually got more information after the American Civil Liberties Union of Michigan connected me with a defense attorney. Someone had stolen watches, and the store owner provided surveillance footage to the Detroit Police Department. They sent a blurry, shadowy image from that footage to the Michigan State Police, who then ran it through their facial recognition system. That system incorrectly matched a photograph of me pulled from an old driver’s license picture with the surveillance image.

I’ve since learned that federal studies have shown that facial recognition systems misidentify Asian and Black people up to 100 times more often than white people. Why is law enforcement even allowed to use such technology when it obviously doesn’t work? I get angry when I hear companies, politicians, and police talk about how this technology isn’t dangerous or flawed or say that they only use it as an investigative tool. If any of that was true, I wouldn’t have been arrested.

What’s worse is that, before this happened to me, I actually believed them. I thought, “What’s so terrible if they’re not invading our privacy and all they’re doing is using this technology to narrow in on a group of suspects?”

 

Lawyers at the ACLU and the University of Michigan’s Civil Rights Litigation Initiative filed a lawsuit against the police department on my behalf, but winning that case can’t undo the damage to me and my family. My daughters can’t unsee me being handcuffed and put into a police car. They continue to suffer that trauma. For example, after I returned from jail, they started playing cops and robbers games where they tell me that I’m in jail for stealing. And even today, when my daughters encounter the coverage about what happened to me, they are reduced to tears by their memory of those awful days. We just don’t know what kind of long-term impact this might have on them; we do know that this was their first ever encounter with the police.

But my daughters can see me use this experience to bring some good into the world. That means helping make sure they don’t grow up in a world where their driver’s licenses or Facebook photos could be used to target, track, or harm them — or anyone else. That’s why I brought the case with the ACLU and it’s why Congress should stop law enforcement from using facial recognition technology. As it is, it’s just too dangerous.

I keep thinking about how lucky I was to have spent only one night in jail, as traumatizing as it was. Many Black people won’t be so lucky. My family and I don’t want to live with that fear. I don’t want anyone to live with that fear. Congress should do something to make sure no one else has to.

What you can do:Stop Face Surveillance TechnologiesSend your message

How America Disguised 35,000 Prison Beds

Fifty years ago, as the U.S. began building the world’s largest infrastructure for human caging, many Americans envisioned a future without prisons. Prisons, in the eyes of many, were irrevocably broken and incompatible with democracy. A committee convened by Lyndon B. Johnson to study law enforcement wrote that “life in many institutions is at best barren and futile, and at worst unspeakably brutal and degrading” and lamented that many prisoners labored “under conditions scarcely distinguishable from slavery.”

In 1970, a group of judges spent a single night at Nevada State Prison, and emerged to share their experience of “men raving, screaming and pounding on the walls.” A Kansas judge said, “I felt like an animal in a cage” and urged the state to “send two bulldozers out there and tear the damn thing to the ground.” A federal judge in Arkansas said imprisonment in that state amounted to “banishment from civilized society to a dark and evil world.” A judge in Wisconsin predicted that “the institution of prison probably must end. In many respects it is as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some standards, and probably less rational.”

Mainstream outlets such as Time magazine and The New York Times Magazine asked whether prisons should be abolished. As a mass movement for deinstitutionalization forced mental asylums — the nation’s other and, at the time, even larger institution for involuntary confinement — to go to ruin, it seemed that prisons might crumble, too.

Of course, instead of disappearing, prisons expanded over the next 40 years to become defining features of American life. Not only did U.S. criminal legal systems grow large enough to confine 2.4 million people and surveil one in 31 American adults, their logics of punishment and control came to define and permeate other realms of politics.

Why did prison systems metastasize so devastatingly when they seemed so vulnerable? And what can we take from this history as a massive social movement again challenges the legitimacy of U.S. criminal legal systems?

Part of the blame, as I lay out in a recent article in The Journal of American History, lies with so-called “alternatives to incarceration,” which the public and policymakers — especially liberals — embraced with zeal. And no alternative to prison was more ubiquitous and insidious than the correctional halfway house.

Though they had humble religious origins — Episcopal, Catholic, and Quaker groups opened the first halfway houses in the 1950s in order to help people reenter society — halfway houses caught the imagination of many policymakers in the 1960s and 1970s. They offered a model of “community treatment” that promised to address crime, drug addiction, and other social ills more effectively, cheaply, and humanely than traditional prisons.

Enthusiasm for community treatment brought millions of dollars in government funding for halfway houses. Funding poured in through President Johnson’s Great Society programs, and millions more would come through the Law Enforcement Assistance Act and the Nixon administration’s wars on drugs and crime. Halfway houses numbered only around a dozen in 1960, but by the late 1970s, they were more common in the U.S. than roller skating rinks. The capacity of the nation’s 2,000-plus halfway houses totaled more than 65,000 beds — roughly the contemporaneous prison capacities of California, Texas, and New York combined.

The major appeal of community treatment — then as now — was that it seemed not just an alternative to the prison, but even its opposite. The Johnson administration’s Commission on Law Enforcement and the Administration of Justice touted halfway houses as an “entirely new kind of correctional institution” that would be “architecturally and methodologically the antithesis of the traditional fortress-like prison.” In some ways, halfway houses did look like opposites to prison. They were small (generally around 20 beds), located in urban areas rather than far from them, and for a time elided the power dynamics characteristic of prisons. Residents, for instance, usually wore their own clothes rather than uniforms, and the earliest halfway houses were organized around discourses of “family.”

These superficial qualities, however, belied the structural similarities between halfway houses and traditional prisons. Like prisoners, the 65,000 people in halfway houses were involuntarily confined. They were subject to systematic surveillance. Their movements were tightly controlled. And they were forced to labor for others’ benefit. Indeed, one reason for the proliferation of halfway houses was their ability to appeal to reformers and prison administrators at the same time. They departed from what were seen as prisons’ most objectionable characteristics while maintaining systems for surveillance and control.

Just how closely halfway houses resembled traditional prisons changed over time with modifications in how they were funded and administered, but even the least coercive halfway houses suffered from their proximity to the rest of the criminal legal system. Despite the promise that they would be an alternative to prison, community treatment initiatives tended to expand the reach of the carceral state.

Not only did they dramatically expand the capacity of states to confine people against their will, their promise of “treatment” encouraged judges, prosecutors, and other policymakers to apply these interventions to groups of people who had not been in the system before. To give just one example, after the Texas Youth Commission embraced the halfway house model in the 1970s, it began to incarcerate hundreds more children each year in community-based facilities, including “pre-delinquent” children who had not committed a crime.

Today’s discontent with prisons and policing closely resembles that of half a century ago. Many of the solutions being proposed are also near carbon copies. Community-based alternatives, rehabilitation, education, drug treatment, and mental health interventions were all part of the appeal of halfway houses. New technologies for face recognition, location monitoring, online surveillance, and electronic forms of identification threaten to make the next iteration of “alternatives” even more harmful.

As we work to combat mass incarceration and create what comes next, it will be important not to be fooled by superficial differences or by changes in rhetoric. Ending mass incarceration will require dismantling — not replicating, reproducing, or relocating — systems for involuntary confinement, surveillance, and control.

 

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A New Texas Law Threatens to Eliminate Abortion Access. We’re Suing to Stop It.

During the Texas Legislature’s regular session in May, anti-abortion politicians yet again targeted the constitutional right to abortion care. They not only introduced a slew of extreme anti-abortion restrictions, they were laser-focused on eliminating abortion access altogether for people in Texas.

Several of those bills passed and became law, including SB 8, which bans abortions at about six weeks — before most people know they are pregnant. The law is blatantly unconstitutional: The Supreme Court has held for almost 50 years that states may not ban abortion prior to viability. Other states have passed this type of unconstitutional law, and courts have consistently blocked them. But Texas’ law is uniquely egregious. Rather than have the state enforce the law, the legislature chose a more sinister route.

SB 8 authorizes any person anywhere to sue a person who performed, aided and abetted, or intended to aid and abet an abortion in violation of the ban. That means that anyone — even someone unconnected to the person having the abortion — can try to dismantle abortion support networks by suing abortion providers and those who assist them, or even sue to try to stop the abortion and prevent the health care center from providing abortion care after approximately six weeks. The law also authorizes a significant bounty: a minimum of $10,000 in damages paid to the person who brought the lawsuit, if they are successful.

Whether incentivized by zealotry or monetary gain, SB 8 authorizes people to use the courts to harass and intimidate those who provide critical care and support to ensure that abortion access remains a reality in Texas. This means that abortion clinic staff, family members, clergy, domestic violence and rape crisis counselors, or referring physicians could be subject to tens of thousands of dollars in liability to total strangers.

Of course, this law won’t curb the need for abortion care. It will, however, make it much more difficult, costly, and dangerous to obtain one. If the law takes effect, many will not be able to overcome the obstacles to access care and will be forced to carry their pregnancies to term. And the people who will bear the brunt of the horrific effects of this law the most are our communities of color, our low-income communities, and our youth.

Not on our watch. Anti-abortion politicians may think it can use Texans like pawns in their ideological and extremist fight. But we’re calling their bluff, and will do everything we can to stop this dangerous law.

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How Artificial Intelligence Can Deepen Racial and Economic Inequities

Proponents of expanding the use of artificial intelligence (AI) often point to its potential to stimulate economic growth — increased productivity at lower costs, a higher GDP per capita, and job creation have all been touted as possible benefits. The promise of an economic boost via machine learning is understandably seductive, and private and government actors are now regularly using AI in key areas of economic opportunity, including education, housing, employment, and credit, to name just a few. But as AI adoption is cast as a smart economic investment in the future, it’s important to pause and ask: Whose futures and whose wallets are we talking about?

There is ample evidence of the discriminatory harm that AI tools can cause to already marginalized groups. After all, AI is built by humans and deployed in systems and institutions that have been marked by entrenched discrimination — from the criminal legal system, to housing, to the workplace, to our financial systems. Bias is often baked into the outcomes the AI is asked to predict. Likewise, bias is in the data used to train the AI — data that is often discriminatory or unrepresentative for people of color, women, or other marginalized groups — and can rear its head throughout the AI’s design, development, implementation, and use. The tech industry’s lack of representation of people who understand and can work to address the potential harms of these technologies only exacerbates this problem.

There are numerous examples of the harms that AI can have. AI tools have perpetuated housing discrimination, such as in tenant selection and mortgage qualifications, as well as hiring and financial lending discrimination.

For example, AI systems used to evaluate potential tenants rely on court records and other datasets that have their own built-in biases that reflect systemic racism, sexism, and ableism, and are notoriously full of errors. People are regularly denied housing, despite their ability to pay rent, because tenant screening algorithms deem them ineligible or unworthy.

These algorithms use data such as eviction and criminal histories, which reflect long standing racial disparities in housing and the criminal legal system that are discriminatory towards marginalized communities. People of color seeking loans to purchase homes or refinance have been overcharged by millions thanks to AI tools used by lenders. And many employers now use AI-driven tools to interview and screen job seekers, many of which pose enormous risks for discrimination against people with disabilities and other protected groups. Rather than help eliminate discriminatory practices, AI has worsened them — hampering the economic security of marginalized groups that have long dealt with systemic discrimination.

That’s why today, the ACLU, the Leadership Conference on Civil and Human Rights, Upturn, and two dozen partner organizations are calling on the Biden administration to take concrete steps to bring civil rights and equity to the forefront of its AI and technology policies, and to actively work to address the systemic harms of these technologies. Just two weeks ago, many of the same groups also joined together in an in-depth response to a request for information by federal financial agencies on the use of AI, raising many of the same concerns. Many groups have also offered concrete policy recommendations to federal agencies on addressing technology’s role in discrimination in the domains of hiring, housing, and financial services.

Thus far, federal agencies that regulate industries using AI have not taken the steps necessary to ensure that AI systems are accountable to the people they impact or that they comply with civil rights laws. Federal legislative and regulatory efforts have not yet methodically undertaken the task of ensuring our civil rights laws protect vulnerable people from the harms exacerbated by today’s technologies. In fact, while the Biden administration has made an overarching commitment to center racial equity throughout federal policymaking, the administration’s emerging AI and technology priorities have lacked the necessary focus on equity for people of color and others who have been subject to discrimination and bias. The administration to date has overlooked necessary civil rights and civil liberties perspectives as AI and technology policies are being developed, which risks further perpetuating systemic racism and economic inequality.

The bottom line is that the administration and federal agencies must prioritize and address all the ways that AI and technology can exacerbate racial and other inequities and ensure that its policies and enforcement activities lead to more equitable outcomes. Decades of discrimination have left people of color and Black people in particular, women, and other marginalized groups at an economic disadvantage in the U.S. The Biden administration must work to reverse the trends that continue to this day, which must necessarily include an emphasis on how modern digital technologies perpetuate inequity. The economic and racial divide in our country will only deepen if the administration fails to do so.

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At End of SCOTUS Term, Where Are We on LGBTQ+ Rights?

The Supreme Court took action on three cases directly affecting LGBTQ+ rights, and now the term is over. One of the rulings may well turn out to be a watershed moment in trans rights, while the other two suggest that the court has reached a stalemate on the scope of religious exemptions to LGBTQ+ non-discrimination laws. While this stalemate lasts, we need to keep fighting both in court and in legislatures to protect non-discrimination laws from being pock-marked with exceptions that could render them meaningless.

Respect for transgender people

The Supreme Court decided not to take up the school district’s appeal in Gloucester County School Board v. Gavin Grimm, in which a federal appeals court ruled that a Virginia school district violated federal civil rights law when it barred transgender students from using the restroom that matches their gender.

While that’s not a ruling on the merits of the issue, it leaves in place not only the lower court’s trans-affirming ruling in Gavin Grimm’s case, but also similar rulings by two other federal appeals courts. That means that school districts throughout the 11 states covered by those appeals courts must now respect a student’s gender and allow them to use restrooms and locker rooms that match their gender. That’s a huge deal. And since there is no federal appellate law going the other way, school districts in other parts of the country should do the same thing.

Indeed, Gavin’s case is the third time in three years that the Supreme Court has declined to take up cases involving disputes over whether trans students could use restrooms that match who they are. The fact that SCOTUS left those rulings alone, too, is more evidence that the court is letting a trans-affirming reality take hold. And since Gavin’s case started seven years ago, we’ve seen that a majority of our country is ready for this reality.

The denial of review in Gavin’s case reminds me of another moment when the Supreme Court refused to take up an LGBTQ+ civil rights issue and that ruling had significant on-the-ground consequences. In October 2014, the court denied review in five cases where lower courts had all ruled that same-sex couples had a right to marry. That order didn’t decide the marriage question for the country, but it meant that same-sex couples were suddenly able to marry in 12 new states, making it that much more difficult for the court to rule against the freedom to marry down the road. This could be a similar moment for trans rights.

Non-discrimination laws at risk

The court’s other two LGBTQ-related actions this term came in the context of whether a government contractor (here a foster care agency) or a business (here a flower shop) can violate non-discrimination laws when they have a religious justification for the discrimination. The stakes are enormous, because a constitutional right to discriminate could potentially override every non-discrimination law in the country. That would be catastrophic and give a get-out-of-jail-free card to anyone who asserts a religious basis for discrimination in the workplace, in housing, in health care, and more.

With these two actions the situation is more complicated and the news a bit more ambiguous.

In Fulton v. Philadelphia, the court considered whether a religiously affiliated foster care agency had a constitutional right to override the non-discrimination requirement in its contract with the city to evaluate prospective foster parents. The contract said no sexual orientation discrimination and the foster care agency objected on religious grounds.

The good news is that, for the second time in three years, the Supreme Court refused to rule that there is a constitutional right to discriminate. In Fulton, the court issued a narrow decision based on a quirk in Philadelphia’s non-discrimination contract that the court interpreted as failing to treat all city contractors equally. The court issued a similarly narrow ruling three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, basing its decision on some anti-religion comments made by the state agency that initially heard the discrimination complaint.

While there were not five votes in Fulton to hold that there is a right to discriminate, we have to recognize that there were also not five votes to hold that there isn’t such a right.

That’s profoundly troubling, because such a ruling should not be difficult. Courts have rejected a right to discriminate in other civil rights contexts, such as when courts rejected religious schools’ claim that they could pay women less than men for doing the same job based on the schools’ religious belief that men are heads of household. There is no reason that the rule should be any different when the discrimination is based on sexual orientation or gender identity rather than sex or race.

The second action came in Arlene’s Flowers v. Washington State, where the Washington Supreme Court unanimously ruled that a flower shop’s religious objection to a same-sex couple getting married didn’t give it a right to refuse to sell them flowers for their wedding. The U.S. Supreme Court denied review in Arlene’s Flowers, dashing the hopes of anti-LGBTQ+ advocates that this would be the case where the court finally gave them a right to discriminate.

The combination of the court ducking the license-to-discriminate issue in Fulton and declining to take up the same issue in Arlene’s Flowers suggests that even this profoundly conservative court isn’t ready to undermine the nation’s civil rights laws. The current stalemate on the court about this issue may endure for a while, perhaps even for years. But when the court takes up the next case like Arlene’s Flowers or Fulton, I fear that it will signal that the court is ready to authorize discrimination against us.

What's Next?

Just like we shouldn’t have a country where LGBTQ+ people are celebrated only during Pride month, we shouldn’t have a country where we are protected from discrimination only in some circumstances. While the Supreme Court has put the religious exemptions issue on hold, we need to continue to tell policymakers — as well as our friends and neighbors — that discrimination hurts and that opening the door to legalized discrimination in the name of the religion will cause harm. We need to fight against these exemptions not just in court, but also in legislatures, where anti-LGBTQ+ advocates are seeking to add religious exemptions to existing non-discrimination laws and bills, such as the Equality Act. LGBTQ+ people have fought too hard and for too long to allow our community’s civil rights laws to incorporate a license to discriminate.

What you can do:Congress: Pass the Equality ActSend your message

Why Britney Can’t Get Out of Her Conservatorship

Conservatorships, which often strip people with disabilities of their civil liberties, have gained media attention through Britney Spears’ efforts to bring her own conservatorship to an end. July is Disability Pride Month, and though Spears’ conservatorship has been highly publicized, she is only one of the more than an estimated one million disabled Americans living under some form of conservatorship or guardianship.

Spears’ story has revealed to the public how restrictive conservatorships are. Under this repressive legal structure, people with disabilities, or people who are perceived to have disabilities, are stripped of their autonomy, losing the ability to spend their own money, choose their own medical care, or even choose who they spend time with.

Although conservatorships are often perceived as protective or neutral, largely because they are court sanctioned, they are reflective of a profound and pervasive paternalism towards people with disabilities.

During Spears’ harrowing 24-minute court statement calling for an end to her conservatorship in June, amid descriptions of being constantly surveilled and confined against her will, Spears also revealed that although she would like to have children, her conservators refuse to let her have her intrauterine device (IUD) removed. Spears’ experience is part of a long history of people with disabilities — most often people of color — being robbed of their reproductive freedom.

Conservatorships send the harmful message that it is appropriate to trample the rights of people with disabilities. Disabled people deserve autonomy and full access to education, homes, health care, jobs, families, voting, and civic engagement.

In this week’s episode of At Liberty, Zoe Brennan-Krohn, a staff attorney with the ACLU’s Disability Rights Project, discusses the implications of conservatorships for Spears and many others.

Listen to Episode 164 of ACLU's "At Liberty" Podcast Below:

https://soundcloud.com/aclu/al21-britney-conservatorship-fm-v01/s-m1uTlRQSng9

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Why Net Neutrality Can’t Wait

On July 8, as part of an extensive executive order covering a range of technology related issues, President Joe Biden wrote that he “encourages the FCC to restore Net Neutrality rules undone by the prior administration.” While President Biden’s statement of support for net neutrality is welcome, it rings somewhat hollow given that his failure to appoint a fifth FCC commissioner is the sole reason efforts to restore net neutrality are stalled in the first place.

In light of the ongoing public health and economic crisis, it’s no surprise that restoring net neutrality wasn’t at the top of the Biden administration’s to-do list on January 20, 2021. But six months into his administration, it is considerably less excusable that all President Biden has done to restore a free and open internet to the American people is issue an executive order stating he supports the concept. An overwhelming majority of Americans across the political spectrum support the internet’s anti-corporate censorship rules known as net neutrality. COVID-19 has only emphasized how valuable our internet is, and how critical it is that it remains free, open, and accessible to all.

If President Biden really cares about net neutrality, he can begin the process of restoring it through the simple act of nominating a pro-net neutrality commissioner to fill a current vacancy on the Federal Communications Commission, which oversees our internet infrastructure. Once in place, a pro-net neutrality majority on the FCC will have a clear path to restoring the protections lost under the Trump administration.

It has been three and a half years since former FCC chair and Verizon employee Ajit Pai eliminated net neutrality protections that protect our right to access a free and open internet. Net neutrality was put into place specifically to ensure that internet service providers (ISPs) cannot block or slow down users’ access to internet content it disapproves of for business or political reasons, or to speed up access to content it favors. But since the loss of net neutrality, powerful ISPs like Verizon and Comcast have been free to do just that — and they have. When we talk about net neutrality we are not talking about hypothetical scenarios or what-ifs. We are already living the very real consequences of its repeal. Here are some examples of how ISPs are violating our rights, right now:

Tampering with speeds

  • Sprint is slowing traffic to Skype, which is owned by its competitor, Microsoft.
  • The largest telecom companies are slowing internet traffic to and from popular apps like YouTube and Netflix.

Playing favorites with data caps

  • AT&T is openly advertising that cellular customers can stream the company’s DirecTV Now product without it counting against monthly data caps. Meanwhile, all of the competing video services like Sling TV, Hulu, YouTube TV, Netflix, or Amazon Prime count against AT&T data caps — and video can quickly chew through a monthly data plan’s download allotment. AT&T’s behavior is almost a pure textbook example of why net neutrality rules were put into place — to stop ISPs from putting competitor’s products at a disadvantage. AT&T is the biggest cellular provider in the country and this creates a huge advantage for DirecTV Now. All of the major cellular carriers are doing something similar in allowing some video to not count against the monthly data cap, but AT&T is the only one pushing their own product.

Throttling bandwidth and network traffic

  • A study led by Northeastern University and the University of Massachusetts Amherst found that internet service providers are “giving a fixed amount of bandwidth — typically something in the range of one and a half megabits per second to four megabits per second — to video traffic, but they don’t impose these limits on other network traffic.” This slowing down of internet speeds is called throttling, and according to researcher Dave Choffnes, “nearly every U.S. cell phone provider” is doing it.
  • Verizon has been throttling County Fire, the fire department charged with responding to California wildfires. “This throttling has had a significant impact on our ability to provide emergency services,” says Fire Chief Anthony Bowden. “Verizon imposed these limitations despite being informed that throttling was actively impeding County Fire’s ability to provide crisis-response and essential emergency services.”

Orchestrating “free” giveaways

  • Verizon FiOS recently began giving free Netflix for a year to new broadband customers. AT&T also started giving out free HBO to new customers last year. This practice is more subtle than the cellular carrier practice of blocking or throttling content. One of the purposes of net neutrality was for ISPs to not discriminate against web traffic. By giving away free video services, the landline broadband companies are promoting specific web services over competitors. Smaller, start up ISP providers who don’t have large media services to give away for free are placed at a disadvantage, even though their cost or service may be superior.

The digital divide between those with broadband internet access and those without — disproportionately people of color, rural, and low-income — has never been more stark than it has been during the pandemic, as schools, health care providers, jobs, and other everyday necessities have moved online. As such, broadband access has rightly been a focal point of the American Jobs Plan and the latest COVID relief package. But we need to talk about what broadband access really means. If ISPs are dictating what content we can access, then a subscription to broadband service is considerably less meaningful. To fulfill its purpose, the internet must remain free and open. That means we need to restore net neutrality now.

Net neutrality is overwhelmingly popular across the political spectrum, and for good reason: it benefits everyone. The only ones who lose by restoring net neutrality are the ISPs trying to turn a profit off selling our right to access information. ISPs know they face an uphill battle in garnering much public support. Last month, it came out that ISPs submitted 8.5 million fake comments in support of the Trump administration’s repeal of net neutrality in 2017. When you have to invent people who support your agenda, you’ve already lost in the public arena.

Nobody would argue that President Biden hasn’t had his work cut out for him since day one of his administration, but at this point it is fair to ask why he seems content to be moving at a glacial pace. When the ability to restore the free and open internet is as easy as it is for this president, and the best he can do 170 days into his administration is express general support for net neutrality, his commitment to the effort feels half-hearted at best.

Mr. President: If you really care about restoring net neutrality for the American people, it’s time to take real action and appoint a fifth FCC commissioner immediately.

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Biden’s Domestic Terrorism Strategy Entrenches Bias and Harmful Law Enforcement Power

For the first time in this country’s history, a president has announced a national strategy to address domestic terrorism. The strategy is grounded in good intentions, rightly emphasizing America’s history and present escalation of white supremacist violence and the chronic contributors to that violence, including racism and bigotry. The strategy also emphasizes adherence to cherished civil rights and civil liberties in any responsive actions the government takes, and the need to foster resilience in the face of disinformation and hate.

But despite these heartening words, we have major concerns about what the strategy does — and doesn’t do. Communities of color and rights groups like ours hoped the Biden administration would rein in overbroad law enforcement powers and confront the structural bias that’s baked into domestic national security and counterterrorism policy. That policy reflects the government’s ever-expanding authority to surveil and monitor American communities; law enforcement guidance that permits profiling on the basis of race, religion, or national origin; and the use of abusive tools such as the watchlisting system against people for constitutionally protected speech and association. For the past 20 years — and longer — these approaches have disproportionately targeted Black, Brown, Muslim, and immigrant communities through the lens of “security threat,” and harmed our rights to free expression, due process, and equal protection under the law.

Biden’s strategy fails to address these wrongs, let alone reverse them. A core reason for this failure is that despite lip service to the contrary, it relies too heavily on law enforcement suspicion, investigation, and policing of beliefs rather than actual conduct — violence or attempted violence. For example, even as the strategy acknowledges the dramatic escalation of white supremacist violence, it replicates the Trump administration’s approach of instructing agencies to focus on a broad category of “racially motivated violent extremism,” lumping in a range of beliefs that aren’t demonstrably connected to political violence. Compounding this flaw, the strategy invites expansion of intrusive and abusive police powers in three key ways.

First, the strategy explicitly leaves open the possibility of enacting a new law criminalizing domestic terrorism, which rights groups have repeatedly explained is unnecessary and would be dangerous. Federal law currently defines “domestic terrorism” broadly and vaguely, and already criminalizes myriad specific or attempted acts that meet the definition; it also criminalizes hate crimes. Law enforcement agencies’ current authority to investigate and prosecute white supremacist violence is entirely adequate. A new law that criminalizes the malleable, fraught, and politicized concept of terrorism would only expand authorities that target Black and Brown communities and people engaged in dissent for unjustified surveillance, investigation, and prosecution. A new, catchall crime of domestic terrorism should be off the table.

Second, the strategy speaks of the need to “ensure that law enforcement operates without bias as it identifies and responds to domestic terrorism threats,” but it ignores a key reason why counterterrorism policy is rife with racial and religious bias: The Departments of Justice and Homeland Security permit it. Both agencies have issued guidance that purports to ban biased profiling by federal law enforcement, acknowledging that “biased practices are ineffective” and “simply not good law enforcement.” But the guidance includes gaping exceptions permitting biased profiling for national security investigations or at the border. The FBI and other agencies have used those exceptions to spy on and infiltrate Muslim communities, surveil Black activists under the spurious label of “Black Identity Extremists,” monitor protests against family separation, and “mapentire racial and ethnic communities based on crude notions about their propensity to engage in crime. These practices are not only unfair and harmful, they also entrench racism and bigotry in society.

It’s not enough for the Biden strategy to condemn biased profiling when federal law enforcement agencies openly allow it. As a matter of priority, the administration should instruct the Departments of Justice and Homeland Security to remove these loopholes.

Third, the strategy envisions continued reliance on counterterrorism programs that have proven deeply harmful to Black and Brown communities. Those include the federal government’s watchlisting system, which has metastasized to include well over one million people, disproportionately harms Muslim and immigrant communities, and stigmatizes them as security threats. The strategy refers to “robust mechanisms that are available” for people to contest their placement on a watchlist, but the existing redress process for watchlisted people is not robust — it’s a due process nightmare. Federal agencies also routinely use placement on a watchlist to exploit vulnerable people and pressure them into becoming informants on their communities, practices that are possible because the system lacks safeguards against abuse. Any policy that entrenches counterterrorism systems like this is headed in the wrong direction.

The strategy also seeks to expand social media surveillance, which law enforcement and intelligence agencies also use overwhelmingly against communities of color. Government auditors and agencies themselves have repeatedly concluded that dragnet surveillance of social media is unreliable and ineffective, flooding agencies with information about innocuous speech while dampening free expression — which is integral to democracy.

We understand the impulse to “do something” in the face of growing white supremacist violence, but that “something” should not be to double down on the authorities, systems, and practices that for decades have harmed the very communities the Biden administration says it wants to protect. The administration could have taken concrete actions that demonstrate adherence to the civil rights and liberties it wants to protect by implementing the safeguards communities of color seek. It’s not too late.

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Coerced Out of Justice: How Prosecutors Abuse Their Power to Secure Guilty Pleas

A prosecutor’s primary duty is “to seek justice … not merely to convict,” according to the American Bar Association. Prosecutors in Maricopa County’s Early Disposition Courts (EDCs) do precisely the opposite. The Maricopa County Attorney’s Office (MCAO) has an iron clad policy of making plea offers in the EDCs “substantially harsher” — their words, not ours — if an accused person seeks a preliminary hearing or rejects a plea offer to go to trial.

It doesn’t matter that the preliminary hearing — a defendant’s first opportunity to challenge whether the prosecution has enough evidence to proceed — is a right under the Arizona Constitution, or that the right to trial is enshrined in the Sixth Amendment. It also doesn’t matter if the person simply wants more evidence or is innocent of the crime. This blanket policy applies to every person in the EDCs, regardless of who they are or what they’ve done. It is also unconstitutional, and the ACLU and ACLU of Arizona are suing to stop it.

Unfortunately, if you believe your job is to convict people rather than to seek justice, this policy really gets the job done. Every year, thousands of people waive their rights and plead guilty under the weight of MCAO’s retaliation policy, terrified of receiving that “substantially harsher” offer. Worse yet, line prosecutors openly admit that the purpose of the policy is to extract quick pleas and avoid the hassle of complying with their constitutional obligations.

As one deputy county attorney put it in an email:

The purpose of EDC is to facilitate speedy resolutions … because once the case leaves EDC, MCAO must expend significant resources for trial preparation.

Another was even more blunt:

If we had to collect, review, and produce [body worn camera footage] in every case, or even the subset of cases where the defendant thought there was a legal or factual defense, given the high volume of cases in EDC, it would bog the entire system down.

Never mind that prosecutors accepted these cases from police in the first place, knowing full well they wouldn’t be able to try them while respecting the constitutional protections that defendants are entitled to.

The retaliation policy is particularly galling because Maricopa County initially created the EDCs to quickly move cases involving minor offenses or drug possession through the system and toward drug treatment and other services, in order to avoid convictions. Its website even claims that “most” EDC defendants are diverted. But this is false. MCAO’s own data shows that between 2017 and 2021, less than 7 percent of EDC cases actually ended in diversion.

Instead, MCAO funnels an ever-growing number of people through the EDCs with the express goal of quickly notching felony convictions. It’s important to note that prosecutor-led diversion is no panacea; prosecutors shouldn’t be in charge of things like drug treatment or mental health. However, it’s telling that MCAO says to the public that it supports helping people in need of treatment while quietly, quickly, and illegally convicting those people instead.

It’s clear why Maricopa prosecutors use the retaliation policy so aggressively: It’s in the best interest of prosecutors and their police partners. For example, the policy pressures the accused to waive their preliminary hearing. If MCAO doesn’t have the evidence, the hearing could kill or weaken the case, including by exposing misconduct by, or insufficient evidence from, the police. And even if the defendant doesn’t win the preliminary hearing, prosecutors must start producing more discovery thereafter. As the Arizona Supreme Court noted in 1919, the preliminary hearing exists to protect people from the “unwarranted zeal of prosecuting officers.”

It is little wonder then why MCAO is so fond of this policy: it eviscerates this vital check on their power, saves them work, avoids potential embarrassment, and still leads to convictions. In other words, the retaliation policy is the modern embodiment of the very unwarranted zeal the Arizona high court warned us about a century ago.

We are suing on behalf of all EDC defendants, now and in the future, who are either staring down the barrel of this horrific policy or have already succumbed to the unconstitutional pressure. For example, our client, Michael Calhoun, was arrested and charged for selling $20 worth of methamphetamine. Instead of diverting him into treatment — as MCAO claims is the goal of the EDCs — the office is offering him 10 years in prison. And if Mr. Calhoun rejects the offer or seeks his preliminary hearing, that draconian offer will get “substantially harsher.” He is currently weighing this unconscionable choice, terrified of dying in prison.

Coercive plea bargaining, of course, isn’t unique to Maricopa County, Arizona. Despite the constitutional guarantee of a trial by one’s peers, based on our review of MCAO data the vast majority of people nationwide who are accused of a crime resolve their case by pleading guilty. The U.S. Supreme Court has taken notice: “plea bargaining … is not some adjunct to the criminal justice system; it is the criminal justice system.” State and federal prosecutors around the country have increasingly wielded tools like mandatory minimum sentences, pretrial detention, and aggressive bargaining tactics to scare many of these people into deals they may not have taken otherwise. Coercive plea bargaining also disproportionately impacts poor and minority communities — communities that are already over-targeted by police, and often cannot afford lawyers or cash bail. This is going on everywhere; prosecutors in Maricopa are simply yelling the quiet part out loud. And we heard them.

Eliminating coercive plea bargaining is essential to ending mass incarceration. This case won’t do it alone. We need to push prosecutors and judges to be better; elect ones committed to change; and legislate away their most harmful coercive tools. This case is our first shot across that bow.

What you can do:Divest From the Police. Invest in Communities.Add your name

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