Your Mini Guide to Discussing Abortion Rights at the Dinner Table

With multiple abortion cases at the Supreme Court and a continuing onslaught of anti-abortion restrictions sweeping the states, abortion is likely to come up in conversations about the news — including among friends and family during the holidays.

Here, we share a handy reference guide on this timely issue — full of the quick, crucial facts on abortion rights you’ll want to be equipped with if it comes up at your dinner table.

  • Abortion is overwhelmingly safe
  • The right to abortion is supported by an overwhelming majority of Americans.
  • Abortion is common. One in four women who are able to get pregnant will have an abortion at some point.
  • Abortion is essential health care, a constitutional right, and a human right.

Abortion should be accessible to anyone who needs it. Period.

  • When it comes to discussing abortion access, the focus should remain centered on the people who need, or will need, this critical care — and the direct harm forced pregnancy places on lives.
  • Despite how anti-abortion politicians may frame it, forced pregnancy is not some political talking point: Forced pregnancy is taking away a person’s constitutional and human right to control their body and their future.
  • Denying someone abortion care has devastating and lasting consequences for the pregnant person — it can jeopardize their health, economic well-being and ability to determine their own future, for not only themselves but their family.

Forced Pregnancy laws include:

  1. All bans on abortion
  2. Medically unnecessary restrictions designed to shut down clinics so that people have to travel further to get abortion care
  3. Creating medically unnecessary hoops to jump through in order to discourage and block people from getting an abortion
  4. Laws that require insurance plans to exclude abortion coverage
  5. Laws designed to run out the clock that force people to delay their abortion care
  6. Medically unnecessary laws that increase the cost of care but do nothing to increase patient safety
  7. Denying people under 18 years of age access to confidential care by requiring the consent of others
  • While it has been a legal right for five decades, almost since the beginning politicians have passed laws that push abortion out of reach. The impact of those policies fall disproportionately on those struggling financially, Black, Indigenous, and people of color, undocumented people, young people, and LGBTQ people.
  • Black, Indigenous, and other people of color do not have equal access to health care, from abortion to prenatal care to preventive care. Their concerns are often ignored or not taken seriously. They have worse outcomes for COVID-related health issues, higher rates of maternal and infant death, and are more likely to be investigated, prosecuted, and punished for their pregnancy outcomes.
  • Some people have the resources to overcome the obstacles imposed by anti-abortion laws, but people with low incomes, young people and undocumented people are more likely to be forced to continue a pregnancy even if that’s not the outcome they want.
  • Abortion access for all means ALL. Restrictions on abortion care directly impact transgender men and nonbinary people — and we’re fighting to protect the reproductive freedom of everyone who can get pregnant.
  • Since January, states have introduced more than 560 medically unnecessary and politically motivated abortion restrictions. This year alone, more than 100 abortion restrictions were enacted — more than any time since Roe was decided.
  • All of these attacks show anti-abortion politicians’ true agenda: To push abortion out of reach, shut down clinics, and criminalize patients and health care providers.
  • Anti-abortion restrictions are chipping away at Roe, creating a web of barriers to safe and affordable abortion care and forcing people to remain pregnant against their will.
  • The Supreme Court is considering several abortion cases right now. The decisions in these cases will have a tremendous impact on the availability of abortion in this country and even whether we continue to have any constitutional right to abortion at all.

The Mississippi case: Dobbs v. Jackson Women’s Health Organization

  • The state of Mississippi has asked the court to expressly overturn Roe v. Wade and take away the federal constitutional right to abortion. Full stop. It’s also possible that the court stops short of that but dramatically reduces our ability to get abortion care. The case will be argued by the Center for Reproductive Rights before the Supreme Court on Dec. 1.

The Texas cases: Whole Woman’s Health v. Jackson and U.S. v. Texas

  • On Nov. 1, the court heard two cases challenging Texas’ extreme ban on abortion (SB 8): one brought by the ACLU and our coalition partners, and one brought by the Justice Department. Since Sept. 1, when the ban took effect and the Supreme Court initially declined to block the law, most Texans have been unable to access abortion in the state.

The Kentucky case: Cameron v. EMW Women’s Surgical Center

  • SCOTUS is also considering whether to grant Kentucky Attorney General Daniel Cameron’s last-minute request to intervene in a case in order to try to revive an abortion ban that two courts have already declared unconstitutional. The court’s ruling will determine whether Cameron is allowed to keep the case going to try to reinstate the ban.

No matter how the Supreme Court rules, we’ll continue to fight forced pregnancy laws because we all deserve the ability to get an abortion if we need one. We will continue urging Congress to enact safeguards for abortion rights by passing the Women’s Health Protection Act (WHPA), which would give us a new tool to fight many of these attacks on abortion access. And together with our partners, we will continue to use all of our tools to create and shore up other avenues to ensure that everyone who has made the decision to get an abortion can actually get the care they need, no matter where they live, how much money they have, or who they are.

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Livestreaming Police is a Critical First Amendment Right

In 2018, Dijon Sharpe, a Black civil rights activist in North Carolina, was the passenger in a car that got pulled over by two police officers. Having previously experienced a violent beating by police officers during a traffic stop, he began livestreaming the interaction on social media. The officers on the scene told him he wasn’t allowed to livestream, and tried to physically obstruct the stream by seizing his phone from his hand. Mr. Sharpe filed a lawsuit arguing that the officers had violated his First Amendment right to record and livestream the police.

The right to record police conduct — without which the public’s right to criticize the government and expose government misconduct or systemic abuse would be considerably weakened — has been widely upheld by the courts. But the district court in this case drew a line between recording and livestreaming, concluding that, while the First Amendment may protect the right to record, it doesn’t protect the right to livestream. And it also held that, even if the First Amendment protects bystanders, it doesn’t protect passengers during traffic stops.

As we argue in a friend-of-the-court brief filed last week, the district court was wrong on both counts.

People have been recording persistent, horrific law enforcement violence against Black people and other people of color for decades. Notably, a bystander recorded LA officers beating Rodney King on a Sony video camera almost 30 years ago. Last year, bystander video of Minneapolis police killing George Floyd played a key role in Black Lives Matter protests that spanned more parts of the country and involved more people than any public movement in recent U.S. history. And years of Black-led organizing in the wake of such bystander videos has generated widespread calls — which the ACLU supports — to shift many roles and resources away from policing and into reinvesting in Black and Brown communities.

Livestreaming has also been part of our public discourse for decades. It’s as old as TV and radio news. Indeed, news reporters are perhaps the “bystanders” we are all most familiar with, and they regularly report live — including from the scene of breaking news. These broadcasts are protected by the First Amendment: Speech is protected regardless of medium, and the choice of when to publish is part of freedom of speech.

The significance and necessity of protecting livestreaming has only become clearer since internet-connected phone cameras have come into widespread use, and the rise in social media has helped bring cases of police abuses to public light.

In 2016, Diamond Reynolds, Philando Castile’s girlfriend, famously livestreamed the moments immediately following Minnesota police fatally shooting him. In doing so, she shared and preserved the horrific reality of a deadly police interaction. And, had she not been livestreaming, the footage might never have made it to the public eye, because police handcuffed Diamond during her livestream, causing her phone to fall to the ground. Because she was livestreaming, however, the conduct and words of the police were still shared and preserved after the phone fell.

This is not uncommon. Although they can go to jail for it, officers sometimes seize or destroy phones, memory cards, and cameras, meaning that livestreaming may be the only option for sharing footage. This includes during traffic stops, which are the most common contexts in which people interact with — and are abused by — law enforcement in public.

Protecting the rights not only of bystanders, but also of those involved in the police interaction is critical. While the most comprehensive and easily shared recordings often come from bystanders — and those recordings can spark or support nationwide calls for justice — people who are part of the police interaction itself are even more vulnerable to experiencing violence and not being able to document it. And they have a unique perspective to share.

Recording and livestreaming interactions is a critical tool for communities that are over-policed and disproportionately targeted by law enforcement because it often serves as the only “proof” that police misconduct has occurred. Police body cameras, which were originally intended to increase transparency and police accountability, are not an adequate substitute for civilian-captured videos. Too many jurisdictions have not enacted good, enforceable body camera rules, giving police officers considerable discretion to frequently switch off those cameras, block them intentionally during unlawful action, or make it difficult to retrieve the footage later on. Even if the footage works as intended, captures all conduct, and is preserved and turned over properly, footage is often illegitimately withheld from the public. And even if preserved and released to the public, police body cameras inherently capture the point of view of the police, not of those who are being policed.

Recordings and livestreams have contributed to a growing societal understanding of how frequently this type of violence occurs against the Black community and other over-policed communities of color. Such footage is by no means a perfect safeguard — for every violent police interaction that goes viral, many others occur without being documented. But that makes protecting the First Amendment right to record and livestream those that are captured all the more important, as it sheds light on at least a fraction of existing abuses. It is critical that the courts maintain robust First Amendment protections for people to record, share, and stream police interactions. Our ability to speak about police abuses depends on it.

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Congressional Drunk Driver Detection Mandate Raises Privacy Questions

Congress has mandated that starting later this decade, all cars must have a built-in ability to detect drunk drivers and to disable their cars. However, Congress left the Department of Transportation wide latitude to figure out how best to implement such a technology, creating a very real potential that we’ll end up with a system that could be a privacy disaster.

The measure, which was included in the $1.5 trillion infrastructure bill signed by President Biden last week, says vehicles must be equipped with “advanced drunk and impaired driving prevention technology.” What is that? Nobody really knows, but Congress defines it as a system that can either “passively monitor the performance of a driver” to detect if they are impaired, or “passively and accurately detect” whether the driver’s blood alcohol level is above the legal limit. If impairment or an illegal blood alcohol limit is detected, the system is required to “prevent or limit motor vehicle operation.”

Driving under the influence of alcohol is a serious problem that results in thousands of preventable deaths every year. But of course, mandating something called “advanced drunk driving technology” doesn’t mean that Congress can conjure such a capability into existence, and it’s far from clear how it would work — or how well.

One key word in the measure is “passively.” Some states already require in-car breathalyzers for people with DUI convictions. Known as “ignition interlock devices,” they require drivers to blow an alcohol-free breath into a tube before their car will start. But Congress has ordered that cars with technology produced to meet this mandate must “passively” detect impairment or intoxication. That means they don’t want breathalyzer tubes; they want a system that will work automatically without drivers having to do anything.

One possibility is that such a system would involve video analytics. Some automakers have already begun equipping their cars with AI cameras that warn drivers if they appear distracted or drowsy. Employers such as Amazon have imposed similar machine-vision nannies on the workers who drive for them. This kind of an ignition interlock system would raise a lot of questions:

  • How would it work? Video analytics technology (as we discussed in this report) has made great strides but continues to work poorly in many respects. In particular, a number of driver monitoring products are based on “emotion recognition” algorithms that are so problematic as to basically constitute snake oil. The visual detection of intoxication would seem to be an even harder problem.
  • Would such a system falsely classify people with certain disabilities as being intoxicated?
  • Such a system would require every car to have a built-in camera focused on the driver. Would that video be stored, or processed in real-time? Would that camera be available for other applications? If so, would the data all flow to the same place?
  • Would the system check the driver when they start their car, or continuously monitor them while they’re behind the wheel? The latter concept would involve the collection of far more data. It would also raise questions about how a car that is in motion — and potentially in the middle of merging onto a highway — could be safely disabled.
  • Will the system minimize false negatives (allowing some people to drive even though they’re drunk) or false positives (missing fewer drunk people but preventing more sober people from starting their cars)? Every system has errors, but depending on how sensitive you make it you can tilt the balance between false positives and false negatives.

It’s also possible that DOT or automakers (if DOT issues performance-based regulations that leave it up to carmakers to select their own technology) could turn to some kind of system that remotely analyzes the driver’s breath or gathers other physiological information.

In any case, any technology imposed to fulfill Congress’s mandate will involve sensors that collect data about drivers’ bodies, and no technology should be implemented that doesn’t strongly protect that data. Cars today are basically computers on wheels, and the state of privacy of those computers/cars is shameful, with automakers collecting all sorts of data without the meaningful knowledge or consent of drivers. It would be utterly unacceptable for data from AI interlock devices to become part of that data stream. Any system should be required to be designed at an architectural level to prevent the sharing of data. No data should be permitted to be collected that isn’t necessary for the operation of the system or stored any longer than necessary. The purpose of this system is not forensic — it is not to help catch and prosecute drunk drivers. The purpose is to prevent drunk people from driving at all.

This is not some free online ad-supported service that people are choosing to pay for with their privacy or can opt out of; it would be mandated by the federal government. Privacy protection must be included.

Congress mandated that regulations implementing this mandate be issued within three years of the bill’s enactment, with the option for another three-year extension if necessary. That means there will likely be many years in which to consider this issue and to debate how it’s implemented. We will be carefully watching every step of the way.

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School is For Learning – Including Learning About Race and Gender

Learning about dynamics of race and gender is an integral part of any student’s education and necessary to understand U.S. history. But instead of fostering an open and honest dialogue, a handful of states — including Texas, Tennessee, Idaho, and Oklahoma, among others — are passing censorship bills that ban conversations about race and gender in public schools. These bills chill students’ and educators’ First Amendment right to learn and talk about the issues that impact their everyday lives. They further marginalize communities, create an unsafe learning environment, and shortchange students of their right to receive an inclusive education, free from censorship or discrimination.

Anthony Crawford, Regan Killackey, and Lilly Amechi are part of a group of students and educators who sued Oklahoma for its censorship bill, HB 1775, which passed in May. Their stories show how the bill has already had a detrimental impact in classrooms and campuses and why learning about race and gender benefits all students, no matter their background.

Anthony Crawford

It’s not the first time America has tried to eradicate certain truths out of history books. When I was a junior in high school, I was kicked out of AP History class when I asked the teacher when we were going to learn about Black history. It was Black History Month, and we weren’t learning anything about any Black people. My question made the teacher uncomfortable. I remember his face turning red. He said, ‘You’re not going to disrupt my class, so please step out.’ So I tossed the books on the floor and left the class.

Later, when I became a teacher, the first thing I noticed was that students still didn’t have a clue about what was going on in society. They didn’t understand what happened during the Jim Crow era. They didn’t understand Reconstruction. They didn’t understand slavery one bit. So I made it my goal to catch them up and equip them with the knowledge they need to navigate society when they graduate. That means creating a curriculum that incorporates readings on race and gender and gives them an accurate picture of history and the systems that created the realities we see today.

Most of the time, my students are the ones who want to talk about race and gender, because these are the issues they deal with in their everyday lives. It helps them make sense of what they witness when they step outside school, like police brutality, mass incarceration, and the school-to-prison pipeline. It also helps them understand themselves, their communities, and each other.

Regan Killackey

As an English teacher, my classroom discussions often center themes of race, sex, gender, and equity. These discussions are critical to my students’ understanding of literature, society, and each other.

Most importantly, as a teacher, I must ensure all my students can see themselves reflected in course material — not just the white students. When we unpack To Kill A Mockingbird and Their Eyes Are Watching God, my Black students get to reflect on pieces of their stories by connecting with the author and content within the narrative, which is critical for their development. Their peers — often for the first time learn through literature what it is like to be Black in America and the discrimination that my Black students and students of color experience every day. To share that experience with others is empowering for my students. Students of color and from other marginalized communities should have their voices heard in a predominantly white classroom. A diverse authorship and the themes that necessarily accompany it allows them the space to do that.

Oklahoma’s HB 1775 causes school districts to distrust teachers’ ability to lead these discussions, and, as a result, schools are attempting to silence teachers for fear we may violate the bill. School officials specifically instructed us to avoid books by authors of color and women authors, leaving two books written by white men — The Great Gatsby by F. Scott Fitzgerald and The Crucible by Arthur Miller — as our only remaining anchor texts. English teachers in my district can possibly face formal admonishment or lose their Oklahoma teaching licenses if they don’t comply with this directive and are found to be in violation of HB 1775.

As a result of the censorship bill, my school is endorsing a whitewashed version of English literature that is detrimental to all my students and prohibits me from providing an inclusive education to the next generation of responsible citizens. In essence, it prohibits me from doing my job.

Lilly Amechi

After two racist incidents in February 2020, BERT led a sit-in and created a list of demands for OU. One of those demands was to create a new diversity, equity, and inclusion (DEI) course that would enable students to be more aware of how bias and discrimination impacts minorities. When HB 1775 was passed, OU no longer made the course a requirement. I think the impact will be detrimental to all students. And, to students of color, it sends a message that there is no willingness for people to understand our experiences.

The reality is that race pervades the classroom even when it’s not the main subject. In a political science class, we discussed President Andrew Jackson’s role in the Trail of Tears, a mass atrocity committed against Indigenous people, without acknowledging the horrors they faced and continue to experience today.

I’ve been similarly uncomfortable during conversations about slavery. In one class, a student argued that the Three Fifths Compromise is evidence that the Constitution is anti-slavery because it could have not counted slaves as people at all. These kinds of ignorant and racist comments create an uncomfortable learning environment for students of color. The censorship bill will make it worse because it targets anti-racist messages and viewpoints.

The university also removed a sexual harassment training as a requirement supposedly in order to comply with the censorship bill. The training teaches students about consent, respect, and human decency. It is rape and assault prevention. Sexual assault has also been a huge worry for women on campus, and particularly Black women, women of color, and LGBTQ+ women, and we are already seeing the negative effects of no longer requiring this training.

The sexual harassment training and DEI course served as early interventions for students who might consciously or unconsciously engage in harmful behavior. Now we feel we are much more on our own trying to stand firm and push back.

In October, Anthony, Regan, and Lilly were among a group of students, teachers, and organizations that sued the state of Oklahoma with representation from the ACLU, the ACLU of Oklahoma, the Lawyers’ Committee for Civil Rights Under Law, and pro bono counsel Schulte, Roth & Zabel. The other plaintiffs include the Black Emergency Response Team (BERT); the University of Oklahoma Chapter of the American Association of University Professors (OU-AAUP); the Oklahoma State Conference of the National Association for the Advancement of Colored People (NAACP-OK); and the American Indian Movement (AIM) Indian Territory.

Learn more about the case:

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Kyle Rittenhouse Didn’t Act Alone: Law Enforcement Must Be Held Accountable

For two weeks, we’ve heard trial testimony and seen evidence of the events that occurred on August 25, 2020 — the night that Kyle Rittenhouse shot and killed two people and injured another during a Black Lives Matter protest in Kenosha, Wisconsin. While Rittenhouse was not held accountable, he was not the only one whose conduct on that deadly night should be scrutinized. The actions — and inaction — of the Kenosha Police Department and the Kenosha County Sheriff’s Department in the preceding 72 hours played a critical part in the tragic events that took place.

As we reflect on that night, we must remember what ignited these protests. Two months after the murder of George Floyd, on August 23, 2020, Kenosha Police shot a Black man, Jacob Blake, in the back multiple times, paralyzing him. Faced with this latest manifestation of law enforcement’s systemic mistreatment and disregard for the lives of Black and Brown people, people took to the streets of Kenosha. Kenosha County Sheriff David Beth oversaw law enforcement’s response to these protests, including the coordination of over 40 local, state, and federal agencies.

The day after Kenosha Police shot Mr. Blake, former city alderman and self-proclaimed commander of the Kenosha Guard Kevin Mathewson wrote a racially charged “call to action” inviting armed civilians to protect Kenosha from “evil thugs” the following day. The comments on his Facebook invitation, corresponding Reddit threads, and Infowars degenerated into racist threats to kill and maim protestors.

On the night of August 25, law enforcement not only failed to protect protestors calling for police accountability and more humane treatment of Black people, but actively put them in harm’s way. Officers enabled and encouraged predominantly white, right-wing armed civilians and militia groups that night, creating a situation in which tensions escalated and people were killed.

Following the violence in Kenosha, an investigative team at the ACLU filed approximately 40 public records requests to local, state, and federal law enforcement agencies; reviewed more than 800 records and 50 hours of video footage; and conducted over 40 in-depth interviews with community members to better understand what happened in Kenosha and how we can avoid these tragedies in the future. Here is what we found:

Kenosha law enforcement was aware of the threats that these armed civilians and militia groups posed to protestors exercising their First Amendment rights. Mathewson asked Sheriff Beth and Kenosha Police Chief David Miskinis to deputize these armed civilians and militia groups, noting that more than 3,000 people accepted the online invitation to “protect” the city. In addition to this correspondence, community members in Kenosha contacted law enforcement with concerns for their safety after reading this online vitriol. Meanwhile, the Department of Homeland Security told local law enforcement that the Boogaloo Bois, a right-wing group with a history of violence, were planning an event in Kenosha on August 24. The Federal Bureau of Investigation also warned that the conflicting ideologies of protestors and these armed civilians and militia groups could “potentially be a flashpoint for violence” the next day.

Despite the obvious safety threats, law enforcement embraced the incendiary presence of armed civilians and militia groups. In a widely seen video, law enforcement thanked and even offered water to the armed civilians and militia groups attending the protests, as they instructed those protesting police brutality to leave. In text messages retrieved through our public records requests, after someone circulated a video of the Rittenhouse shootings, a Waukesha County Sheriff’s Department officer commented “nice video” in a message to colleagues and added that he was “[l]istening to gunfire. Such a nice night.”

In fact, it appears Kenosha law enforcement coordinated an effort to push protestors south on Sheridan Road, towards armed civilians and militia groups. Ryan Thomas Balch, an armed civilian affiliated with the Boogaloo Bois, was recorded saying on the night of the shootings, “Do you know what the cops told us today? They were like, ‘We’re gonna push them down by you, because you can deal with them, and then we’re gonna leave.’” In an August 26, 2020 written statement, Balch added, “K[enosha] P[olice] D[epartment] made a conscious decision to abandon the people of Kenosha to people they felt justified in using machines and weapons of war against. And were going to piss them off and drive them at us and let the chips fall where they may.”

The Kenosha County Sheriff’s Department, led by Sheriff Beth, commanded law enforcement agencies to clear Civic Center Park and push protestors south towards the danger that lay multiple blocks from the park at the intersection of 60th and Sheridan. Multiple law enforcement officers documented their knowledge that armed civilians and militia members were concentrated in that direction, near 60th and Sheridan. Officers from various law enforcement agencies described the use of armored vehicles, foam bullets, tear gas, and flash bangs to herd protestors from the park toward the intersection, and to prevent the return of protestors to the park. After pushing the protestors south for over an hour, Kenosha law enforcement took a strategically timed break, consistent with Balch’s description. These efforts were well documented in the records our investigative team obtained:

  • 9:43 pm: The Kenosha County Sheriff’s Department documented “gas being deployed in front of the courthouse, goal to push crowd south.”
  • 10:32 pm: Kenosha Police Department dispatched patrol to 58th and 8th to “keep crowd moving south on Sheridan.”
  • 10:40 pm: Three bearcats moved south from 56th on Sheridan.
  • 10:44 pm: Law enforcement continued to push protestors down the road.
  • 10:57 pm: Law enforcement took a break.
  • 11:12 pm: The Waukesha County Sheriff’s Department reported that protestors “have been pushed south and we are holding our position at the park.”
  • 11:40 pm: Bearcats from Racine, Walworth, Waukesha, and Sauk Counties held protestors at 60th and Sheridan, and noted a loud crowd at the gas station.
  • 11:44 pm: An Oneida County bearcat moved to 60th and Sheridan.
  • 11:50 pm: Rittenhouse shootings begin at 63rd and Sheridan.

The West Allis Police Department also described its actions:

At the request of tactical command, the armored vehicles and crowd control [o]fficers would direct the protestors south and hold or move the protestors south and back away north. Tactical command requested several times for this process to occur which led to the protestors being directed as far south as 60th St. & Sheridan.

Three important lessons emerge from this tragedy.

First, entrenched racism contributed to the events that unfolded. Make no mistake, the shooting of Jacob Blake and the related protests and fatalities stem from the deep-seated white supremacy that pervades our criminal legal system. Police officers brutalizing people of color who are protesting that very brutality and leaving people of color and their supporters at the mercy of armed white vigilantes is a pattern that recalls the origin of American police in slave patrols. These patrols sought to capture and return formerly enslaved people to the violence of enslavement, and their later connections to white supremacist agitation during the Civil Rights movement are echoed in the violence seen in Kenosha. In today’s world, Black and Brown people are not only targeted by police and frequently treated as presumptively guilty, but white people brandishing weapons of war are given the benefit of the doubt and even encouraged by officers of those same police agencies.

Second, law enforcement must not be permitted to weaponize the presence of armed civilians and militia. Jacob Blake’s shooting and the subsequent tragic, fatal shootings by Rittenhouse should usher in a significant wave of change, not only in Wisconsin but across the nation. Kenosha is not even the latest example of this pattern of police ignoring (at best) or facilitating (at worst) white mob violence: Following the January 6 insurrection, it was revealed that over 30 off-duty police officers attended the rally, and several joined the mob that stormed the Capitol. We must reexamine the roles and powers of police in American society, and listen to the communities of color in Kenosha and elsewhere that are calling for new approaches to public safety that protect all people, regardless of the color of their skin.

Finally, more officers and weapons do not increase safety. Law enforcement should play no role in protests, unless it is to protect our First Amendment rights, and they should not use violence to control the crowd or silence those they disagree with. Beyond the context of protests, there is little evidence that police effectively prevent or reduce violence, while there are many alternatives to policing that do make communities safer.

As our investigation illustrates, approximately 40 local, state, and federal law enforcement agencies responded to the protests in Kenosha, utilizing various forms of force against protestors. This massive show of force failed to keep people safe — and in fact facilitated grave harm by pushing protesters into close proximity with Kyle Rittenhouse and other armed white civilians. The violence that night is a further reminder that well-resourced law enforcement agencies are failing to protect and even harming the communities they are sworn to serve. It’s time to acknowledge this failure and invest in measures that actually keep communities safe.

What you can do:End Over-policing in Our Communities Now.Send your message

We are Holding Arizona Accountable for the Needless Suffering and Deaths of Incarcerated People

A prison sentence should not mean people lose fundamental human rights such as access to health care or humane conditions of confinement. In Arizona, after almost a decade of broken promises, the ACLU, the Prison Law Office, and their co-counsel are in court proving that state prison officials continue to disregard their constitutional obligations to incarcerated people.

In 2012, the ACLU National Prison Project, the ACLU of Arizona, the Prison Law Office, the Arizona Center for Disability Law, and the law firm of Perkins Coie filed a class action lawsuit against the Arizona Department of Corrections (ADC) in federal court. The lawsuit challenged ADC’s years of inattention to the health needs of state prisoners and the inhumane conditions of solitary confinement so harsh that they violated the Eighth Amendment ban on cruel and unusual punishment. That case resulted in a court-approved settlement in 2014 that was meant to protect the rights and health of incarcerated people in ADC’s prisons. What ensued was not reform, but rather years of intransigence by Arizona officials and promises they seemingly never intended to fulfill.

In the seven years since we settled the case, we repeatedly detailed in court filings the preventable suffering and deaths, including deaths by suicide in solitary confinement, that have occurred in Arizona’s prisons. Former prison employees and incarcerated people have bravely come forward to blow the whistle about the inadequate health care and gratuitously cruel treatment of people in isolation units.

The federal judges overseeing the implementation of these reforms have issued numerous enforcement orders and have twice found Arizona officials in contempt of court, fining the state more than $2.5 million for their for-profit health care contractors’ failure to live up to promises to provide basic health care to the people in their prisons. One of the judges wrote in June 2018 that prison officials “are at times more interested in obtaining compliance with the stipulation by playing a shell game than by providing care to the Plaintiff Class.” In February 2021, a different judge overseeing the case again found ADC in contempt of court, writing that “nearing compliance is not enough to avoid sanctions.”

On July 16, 2021, Judge Roslyn O. Silver withdrew the court’s approval of the settlement agreement due to the State’s failure to live up to its constitutional duty to provide adequate health care and prison conditions to incarcerated persons, and set the case for trial to begin Nov. 1, 2021. It is extraordinary not only in prison litigation but in all civil rights impact litigation for a federal court to find state officials in contempt twice in three years, and then to re-set a settled case for trial.

Since July, we have amassed a devastating amount of evidence that we are now presenting to the court during a three-week trial. The evidence shows that ADC has abdicated its responsibility to deliver health care through its merry-go-round of for-profit correctional health care vendors, and incarcerated people continue to suffer excruciating pain and permanent injuries and preventable deaths because of that failure. The evidence also shows that the conditions in ADC’s isolation units are gratuitously cruel, including the indefinite incarceration in solitary confinement of seriously mentally ill persons and children who were convicted as adults. The evidence presented at trial includes expert testimony regarding unconstitutional medical care, mental health care, the psychological effects and conditions in isolation units, and health care staffing.

A large contributing factor to the problems we are presenting to the federal court is Arizona’s overreliance on incarceration. Arizona has the fifth highest incarceration rate in the United States and disproportionately incarcerates communities of color. Black people constitute 5 percent of the state’s population, but 15 percent of people in Arizona’s prisons; 32 percent of the state’s population is Latinx or Hispanic, but they constitute 40 percent of the incarcerated population.

Charging misdemeanors as felonies, throwing thousands of people behind bars instead of offering drug treatment or diversion services, and abusing prosecutorial power to secure guilty pleas are just some of the tactics used that have led to Arizona’s exceedingly high rate of incarceration.

The burden for paying for this broken system largely falls on the back of Arizona taxpayers. Taxpayers pay more than $1.3 billion a year to maintain the prison system — more than they spend on higher education. ADC pays more than $200 million per year to subcontract its medical services to a series of private, for-profit prison health care providers.

More than seven years ago, the state of Arizona made a promise to meet its constitutional obligations to tens of thousands of incarcerated people to improve conditions inside its prisons. We believe that the court will make sure that these promises are finally kept.

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We Must Get Racism Out of Automated Decision-Making

In 1956, the Eisenhower administration launched the multibillion-dollar Interstate Highway System, creating a transportation network that indisputably paved the way for immense economic growth. But it also exacted a devastating cost: The new highways were often routed through older, thriving communities, displacing more than 1 million Americans – the vast majority of whom were Black and low-income. In some cities, they cut off Black neighborhoods from quality jobs, schools and housing, solidifying racial and economic segregation. The impact of this disruption is still felt today.

Now, the Biden administration is involved in a similarly game-changing investment – the development of artificial intelligence. The National Artificial Intelligence Research Resource Task Force, launched in June, is President Joe Biden’s first contribution to a growing number of federally authorized advisory committees guiding development of AI systems across public and private sectors from housing, employment and credit to the legal system and national security.

But despite Biden’s announced commitment to advancing racial justice, not a single appointee to the task force has focused experience on civil rights and liberties in the development and use of AI. That has to change. Artificial intelligence, invisible but pervasive, affects vast swaths of American society and will affect many more. Biden must ensure that racial equity is prioritized in AI development.

The artificial intelligence at issue refers to computer models, or algorithms, that mimic the cognitive functions of the human mind, such as learning and problem-solving. AI is widely used for automated decision making — analyzing massive amounts of data, finding correlations and then making predictions about future outcomes.

The impact on the daily lives of Americans is unprecedented. Banks and other lenders use AI systems to determine who is eligible for a mortgage or student loan. Housing providers use AI to screen potential tenants. AI decides who’s helped and who’s harmed with influential predictions about who should be jailed pretrial, admitted to college or hired.

So when AI systems are developed in ways that do not adequately take into account existing racism, sexism and other inequities, built-in algorithmic bias can undermine predictive decisions and result in invisible but very real discrimination. As these systems are deployed, they exacerbate existing disparities and create new roadblocks for already-marginalized groups.

For example, the “Educational Redlining” report by the Student Borrower Protection Center found in 2020 that Upstart, a fast-growing AI lending platform, charged higher interest rates and loan fees to borrowers who attended historically Black Howard University or majority Latinx New Mexico State University than it charged those who went to New York University, where Black and Latinx students combined make up only about 30% of the population.

Another example shows how hard such discrimination will be to overcome. In 2018, the ACLU sued Facebook for using algorithms that excluded women from the audience for traditionally male job opportunities such as truck driver or technician, and the social media giant announced sweeping reforms to fix the problem. But an audit three months ago by researchers at the University of Southern California found that Facebook’s ad-delivery system still showed different job ads to women and men.

Despite the reforms, the researchers noted, “Facebook’s algorithms are somehow picking up on the current demographic distribution of these jobs” — which is exactly the kind of historically based bias that needs to be monitored and corrected.

That’s why the Biden administration must act. As the new task force, like other AI advisory committees, helps guide federal policy for AI uses, it’s crucial that its members include civil rights experts who can identify and root out sources of algorithmic bias and push for appropriate oversight mechanisms.

At the same time, the Biden administration must correct President Donald Trump’s willingness to back burner civil rights in pursuit of rapid AI development. In executive orders and a memorandum issued by the Office of Management and Budget, the Trump administration authorized development and expansion of AI in the name of national security without requiring transparency, external oversight, and accountability for biased and discriminatory outcomes. None of these directives has been rescinded.

Back in the 1960s and ’70s, as the collateral damage of interstate highway construction became apparent, “freeway protests” across the country slowed and sometimes stopped the wholesale demolition. But it was easier to mobilize opposition in that case, because the destruction of neighborhoods was plain for all to see.

In contrast, the dangers of AI’s algorithmic bias are invisible, complex and hard to describe. But AI is far more pervasive than a highway system, and far more consequential in the long run. We need to build fair, equitable AI systems so that the United States of the 21st century is equally accessible to everyone. Let’s learn from the mistakes of the past.

The Biden administration must challenge AI’s power to preserve and exacerbate systemic racism. If the president is to carry out his promise of a more just society, voices representing civil rights groups, scholars and impacted communities must have a seat at the table.

This piece was originally published in the Washington Post on August 9, 2021.

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Alabama’s New Electoral Lines are Racially Gerrymandered — Here’s Why

The state of Alabama recently adopted new congressional and state legislative districts as the result of its once-in-a-decade redistricting process. These new maps are unconstitutional and grossly gerrymandered in a way that harms Black Alabamians, communities of color, and all Alabamians who care about fair representation. That’s why the ACLU and our partners filed two federal lawsuits today challenging Alabama’s newly drawn state legislative and congressional districts.

Racial gerrymandering occurs when a state uses race as the primary factor in drawing district lines in a way not closely tied to complying with Section 2 of the Voting Rights Act. This often occurs through the practices of “packing” people of color into districts and “cracking” people of color across districts to limit their voting power. “Cracking” refers to splitting communities of color into different districts to prevent them from exercising greater political power. “Packing” refers to placing people of color into the same district in greater numbers than necessary to elect candidates of choice, to prevent people of color from exercising greater political power in surrounding districts.

Using race in drawing district lines can be permissible and indeed necessary in many areas of Alabama to ensure compliance with Section 2, but that was not what the state of Alabama carried out. Rather, the newly drawn maps use race as a means to maintain power.

Alabama’s newly drawn state legislative and congressional districts continue to harm Black Alabamians and other communities of color in several ways. For congressional seats, the new map creates only one district out of seven in which Black Alabamians can elect preferred candidates despite comprising more than 27 percent of Alabama’s voting-age population. It does so by packing a larger number of Black Alabamians into Congressional District 7 than necessary, while cracking other areas of the state with significant Black populations across Congressional Districts 1, 2, and 3.

In the state legislature, the maps pack Black voters into districts in ways that unfairly limit their political power in a number of districts in Jefferson County, Montgomery, Mobile, and Tuscaloosa, while cracking Black communities of interest in Huntsville and Talladega and Calhoun Counties. In majority-minority Jefferson County, where Birmingham is located, the state legislative maps also allow a collective nine districts, all majority white, to cross county lines to change the makeup of the county’s legislative delegation and dilute the power of voters of color.

Alabama’s tactics this cycle are not new. The state carries a sordid record of using racial discrimination to maintain the power its white citizens. While Alabama has made important changes over the past 50 years — most of them in response to court orders or intervention by the U.S. Department of Justice — it has not learned its lesson when it comes to drawing fair and constitutional districts. Even after a three-judge court struck down 12 state legislative districts as unconstitutional racial gerrymanders in the 2010 redistricting cycle, Alabama’s tactics persist.

One reason may be that until 2013, Alabama was covered by a provision in the Voting Rights Act of 1965 that required either the DOJ or a federal court to approve any changes in voting practices, including legislative districts. But the Supreme Court struck down the formula that covered Alabama in 2013 in a case brought by an Alabama county — Shelby County. Lawsuits like this one are necessary to fill that void and prevent the use of discriminatory maps.

Alabamians were kept in the dark throughout a secretive map drawing process, and at the eleventh hour, they were presented with maps that revealed that race was a predominant factor in determining those district lines. The new maps reflect Alabama’s longstanding efforts to use race as means to maintain power through the packing and cracking of Black voters in certain districts, while paying lip service to fair districting by inconsequentially unpacking Black voters in others.

All the people of Alabama, no matter their race, deserve fair state legislative and congressional districts. Redistricting affects representation, and representation affects everything else, from our schools to our health care to our criminal justice system. Alabama’s electoral maps fail to meet the Constitution’s guarantee of equal protection under the laws to citizens of all races, and fail the test of fundamental fairness as well. Alabamians deserve better.

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ICE’s Detention Oversight System Needs an Overhaul

Every day, ICE locks up over 20,000 people in a sprawling nationwide network of more than 200 detention facilities. The ACLU believes that this system of mass incarceration of immigrants should be dismantled — it’s unnecessary and inhumane. For as long as ICE maintains its detention network, though, it has a responsibility to create an oversight system that is actually effective at detecting, addressing, and deterring abuse of detained people. Our analysis of recent ICE inspection documents shows that ICE’s inspection system remains ineffective at identifying violations by detention facilities and ensuring compliance with detention standards, allowing facilities with clear records of poor conditions, including some of the deadliest facilities, such as the Stewart Detention Facility in Georgia, to evade accountability.

Virtually all detention facilities are required to adhere to detention standards that establish consistent conditions of confinement and ensure minimum standards of care for people who are detained by ICE. ICE currently monitors compliance with these standards primarily through external audits performed by a private contractor called The Nakamoto Group. Nakamoto’s fitness to serve as ICE’s auditor has been called into question by multiple oversight bodies. In 2018, the Department of Homeland Security Office of Inspector General (OIG) found that Nakamoto’s “inspection practices are not consistently thorough.”

ICE employees in the field and managers at headquarters told OIG that Nakamoto inspectors “breeze by the [detention] standards” and do not “have enough time to see if the [facility] is actually implementing the policies.” They also described Nakamoto inspections as being “very, very, very difficult to fail.” One ICE official suggested these inspections are “useless.” The House Homeland Security Committee issued a similarly scathing critique of Nakamoto. In September 2020, the committee’s majority staff reported that Nakamoto “has demonstrated a lack of credibility and competence.”

We reviewed every inspection report that Nakamoto issued in 2021 and found that little has changed. The same problems identified by OIG and the House Homeland Security Committee continue to plague Nakamoto’s inspections.

First, virtually no facility fails their inspections. Even facilities that are deficient in 30 or more components receive a rating of “meets standards.” Moreover, we found that inspections fail to account for clear indications of poor conditions. For example, Nakamoto’s inspection of the Stewart Detention Center in Georgia found that the facility “meets standards,” identified only one deficient component in the standard of “Correspondence and Other Mail,” and stated that “there were no areas of concern or significant observation.” Yet more detained people have died at Stewart than any other ICE facility in the last four years; since May 2017, eight people have died in custody at Stewart. Felipe Montes, a 57-year-old man from Mexico, died there only a few weeks before Nakamoto’s inspection. Yet Nakamoto’s inspection failed to note any concerns about the provision of medical or mental health care or COVID-19 protocols at the facility.

Second, Nakamoto continues to conduct only pre-announced inspections, often remotely or partially remotely, making a meaningful audit all but impossible. Pre-announced inspections permit facilities to temporarily cure or mask deficiencies to pass inspection. (This is on ICE though, because they are the ones that put this requirement into Nakamoto’s contract.)

Third, Nakamoto’s detainee interviews remain flawed, often occurring in non-confidential settings where detainees will feel less free to speak their mind about detention conditions. We also found that detainee complaints are rarely taken seriously.

Finally, Nakamoto inspectors appear to continue to trust, rather than verify, the representations of jailers and ICE officers. For example, at the Prairieland Detention Center in Texas, one detainee housed in the Special Management Unit (SMU), which is how ICE refers to segregation or solitary confinement, “stated he had not seen an ICE officer while housed in the SMU.” Nakamoto accepted the facility’s documentation that “ICE officers routinely visit the SMU,” even though “[d]ocumentation that an ICE officer had visited this particular detainee was not available.”

These and other examples make clear that Nakamoto’s inspections lack integrity. As appropriators in Congress have indicated, it’s past time for DHS to terminate its contract with Nakamoto.

ICE’s detention oversight problem is ultimately bigger than Nakamoto. ICE must ensure that it holds facilities accountable for violating ICE’s own standards. A meaningful inspection and monitoring system requires rigorous inspections of facilities and a commitment from the agency to impose sanctions, including contract termination, for facilities that do not pass inspection. And the public deserves transparency. We need to know which standards detention facilities are failing to comply with, and what consequences, if any, ICE imposes on them.

Effective oversight and transparency, though, are not enough. When the Immigration and Naturalization Service — ICE’s precursor agency — first rolled out its detention standards, the then-head of the agency told the New York Times that the goal was to “provide safe, secure and humane conditions of detention.” That goal is based on the flawed premise that detention can be safe and humane. It cannot. ICE’s record of abuse, neglect, and death proves that point. Ultimately, ICE must shut down its mass immigration detention machine.

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Stop-and-Fingerprint Can’t Become the Next Stop-and-Frisk

Two cases being heard today by the Michigan Supreme Court deserve close attention because of the widespread impact their outcomes could have on policing, the right to privacy, and the ever-expanding technological capability of law enforcement to collect, store, and use our personal data. The cases also highlight an issue that has plagued America for as long as police have existed: Black people being disproportionately stopped and searched by authorities with badges and guns, creating a climate of fear, instilling trauma, and poisoning relationships between law enforcement and the communities they are sworn to protect.

The discrimination is particularly disturbing when the targets are children, which is what Keyon Harrison and Denishio Johnson were when, in separate instances a decade ago, police in Grand Rapids, Michigan violated their constitutional rights by photographing and fingerprinting them on the side of the road, even though they had done nothing wrong. Keyon Harrison was 16 years old when stopped by police while walking home from school in 2012. Denishio Johnson was just 15 when police detained him at a bus stop in 2011. But they were far from being the only ones to have their rights violated.

For more than 30 years, police in this western Michigan city have engaged in the egregious, unconstitutional practice of fingerprinting and photographing people they stopped for being “suspicious,” even when no crime occurred, and no arrest was made. Even when people answer officers’ questions and identified themselves, police have routinely fingerprinted them if they happen not to be carrying an ID. As a result, biometric information wrongfully taken from potentially tens of thousands of people remains stored in a police database.

As argued in the lawsuits, this practice violates the United States Constitution’s Fourth Amendment protections against unreasonable searches and seizures. In an opinion piece recently published in the Detroit News, we explain why what’s happening in Grand Rapids is so concerning:

“We should all be alarmed by the privacy implications of policies that allow the police, just by deeming someone suspicious, to deploy advanced technology that will collect and analyze highly sensitive biometric information and store it in a law enforcement database indefinitely.”

The two cases being heard today by the Michigan Supreme Court — Harrison v. VanderKooi and Johnson v. VanderKooi — are about photographs and fingerprints, but soon we may be confronting iris scanners or even DNA harvesting.

The ACLU has been tracking the development of biometric identification technology — for fingerprints, DNA, retinas, voices, faces, and even gait, among others — for many years, urging caution in its deployment and stringent safeguards in its use. These simple measurements add up to an extraordinary threat to privacy when they are collected, analyzed, and stored in readily searchable databases.

What’s at stake is anonymity as we know it.

Clearly, anyone stopped by the police but innocent of any wrongdoing should never have their biometric information placed in such a database. Which is why one of the goals of the lawsuits in front of the Michigan Supreme Court is to force the destruction of such data wrongly collected by Grand Rapids police. The photographs and fingerprints of Mr. Harrison and Mr. Johnson, and everyone else who had their information similarly taken, should be purged from police records so that privacy can be restored, and justice served.

Unfortunately, this threat to privacy is not borne equally by all of us. What can’t be over-emphasized is the extent to which Black people and other people of color are disproportionately singled out for this sort of abuse. A review of 439 stops under this policy from 2011 and 2012 found that 75 percent of the people stopped by Grand Rapids police were Black, while just 15 percent were white. This is a huge disparity from the city’s overall racial makeup, which is 21 percent Black and 65 percent white.

The unconstitutional fingerprinting program widens the disparities even further for young people of color, who are less likely to be carrying an ID because they aren’t old enough to drive, can’t afford an ID, or rely on public transit and so have no need for one. Subjecting these young people to unconstitutional fingerprinting and storing their identifying data in a police database is stigmatizing, traumatizing, and increases the chances of police interactions in the future.

As we have seen repeatedly, a simple interaction with law enforcement on the street can turn deadly for Black and Brown people. We need to reduce interactions with law enforcement, not enable police to gather even more information about people during often harassing stops on the street.

As we have explained — supported by amicus briefs from a diverse array of organizations, including the Cato Institute, the Washtenaw County Prosecutor, and the NAACP Legal Defense and Education Fund — the Michigan Supreme Court can put a stop to these unconstitutional practices once and for all. If police have probable cause for an arrest, they have long been able to capture fingerprints as part of the post-arrest booking process. But allowing police to compel a person to provide fingerprints while going about their business on the street puts people at the mercy of police whims whenever officers wish to gather this sort of sensitive biometric information, for practically any reason or, in some cases, seemingly no reason at all.

We all have the right to be free from the fear of that happening to any of us.

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Congress Can’t Discriminate Against Puerto Rico Residents Just Because They Live There

In 2012, José Vaello-Madero, a U.S. citizen born in Puerto Rico but living in New York, applied for and received Supplemental Security Income (SSI) benefits because severe health problems left him unable to support himself. A year later, he moved to Puerto Rico to rejoin his family and care for his ailing wife. He continued to receive SSI benefits, unaware that federal law excludes Puerto Rico residents from the program, simply because they live in a U.S. territory rather than a state. In 2016, the federal government sued Vaello-Madero to collect over $28,000 it claimed it “overpaid.” On Tuesday, the Supreme Court will hear his case in United States v Vaello-Madero, a case that could help put an end to unconstitutional discrimination against residents of Puerto Rico and other U.S. territories.

SSI is a nationally-applicable program that provides benefits and support for seniors and people with disabilities with limited means. Eligibility should be solely based on one’s disability and financial means, but as Vaello-Madero learned, it also is dependent on where one lives. The law extends benefits to residents of all 50 states, and to residents of the Northern Mariana Islands, a U.S. territory. But it denies assistance to the elderly and people with disabilities who happen to live in Puerto Rico or any other U.S. territory—even though most of them are U.S. citizens and all are entitled to equal protection under the Constitution.

In denying Puerto Rico residents access to SSI benefits, Congress continues a troubling and discriminatory pattern of affording residents of U.S. territories—overwhelmingly, people of color—second-class status. Congress, for example, also disfavors residents of the territories access to Medicaid and Supplemental Nutrition Assistance Program (SNAP) funding. Residents of U.S. territories are also often on the losing end of receiving emergency funding like the federal Coronavirus Relief (CARES) law or funds to rebuild after a devastating hurricane like the one that hit Puerto Rico in 2017.

In the Supreme Court, Vaello-Madero argues that denying him benefits simply because he now lives in Puerto Rico rather than New York is unconstitutional discrimination. His needs are exactly the same, whether he lives in Brooklyn or San Juan. And as a U.S. citizen, he is entitled to equal protection of the laws. However, the United States argues that the only way for Mr. Vaello-Madero and other residents of the territories to remedy this discrimination “is action by Congress.” But that reasoning ignores the fact that residents of the territories have virtually no real representation. In the Senate, they have no representation at all. In the House, residents of the territories have only a single non-voting delegate. People like Mr. Vaello-Madero cannot “resort to the polls” “for protection against abuses by [the] legislature.” Living in a territory the United States has held in limbo for over a century, representation in Congress remains closed to them by constitutional design.

Despite this systemic second-class treatment, residents of Puerto Rico, like those of Guam, American Samoa and the U.S. Virgin Islands, are entitled to equal protection of the laws of the United States.

This piece was originally published in The Hill on 11/8/21. The full piece can be found here.

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The Final Religious Request of a Man on Death Row is in the Supreme Court’s Hands

Texas plans to execute John H. Ramirez, but state officials are not satisfied with merely taking his life. They are also intent on denying him the right to practice his faith when it matters most—in his final moments. Mr. Ramirez, a Christian, has asked that his longtime pastor be able to touch him and pray aloud over him as he dies. When the state refused this modest religious accommodation, the Supreme Court stepped in, delaying the execution and agreeing to hear Mr. Ramirez’s case. Oral argument is set for November 9.

In Mr. Ramirez’s Baptist tradition, the practice of spiritual touch by a pastor is often referred to as “laying hands on” the congregant. Laying hands on a person, along with audible prayer, is not only a matter of spiritual comfort, but, in the context of dying, it’s also intended to guide the individual into the afterlife and provide a final opportunity for them to engage with their faith at the most critical time.

During the oral argument, Texas will no doubt contend that granting Mr. Ramirez’s religious request would threaten to disrupt the execution and present a safety and security risk. However, as the ACLU explained in an amicus brief filed on behalf of spiritual advisors who have been present in the death chamber during executions and former prison officials who have overseen executions, the state’s claim is hard to square with its own history. Allowing spiritual advisors to deliver audible prayers during executions and place their hands on individuals during their final moments has been common practice in Texas. It’s well-documented that chaplains present in the death chamber in Texas have been permitted to touch the leg or ankle of individuals being executed and pray aloud with them to offer spiritual comfort. None of these instances caused a disruption to the proceedings.

Texas’s past embrace of this practice is not surprising; spiritual touch and praying aloud over people have been adopted by various faiths and denominations. For example, the ACLU’s amicus brief notes that Catholic priests who visit hospitals are trained to touch the patient (with permission) while praying aloud because it establishes a sacred bond and provides religious support. Indeed, many Catholics believe that last rites are not valid without touch. For that reason, during the federal government’s execution of Dustin Honken last year, Father Mark O’Keefe was permitted to administer last rites to Mr. Honken in the death chamber. He placed a host on Mr. Honken’s tongue, put holy oil on Mr. Honken’s head and hands, and delivered several prayers out loud. During other federal executions held last year and earlier this year, spiritual advisors of various faiths were likewise permitted to pray out loud or — in the case of one Buddhist individual who was executed — chant throughout the entire proceeding.

Former prison officials who have been responsible for overseeing executions agree that any concerns Texas has with his request can be addressed through the implementation of basic protocols. As discussed in the ACLU’s amicus brief, the state could limit Mr. Ramirez’s pastor to touching his shoulder, ankle, or foot, where there are no intravenous lines present and any disruption thus unlikely. In advance of the execution, officials could also conduct a thorough background check and provide an orientation and training. In addition, officials could assign an escort to stand by the pastor at all times to further reduce any risk.

Federal law — the Religious Land Use and Institutionalized Persons Act — provides heightened protections for incarcerated individuals’ religious exercise, recognizing that prison officials’ reasons for interfering with or prohibiting religious practices are often arbitrary and unsupported by evidence. Texas must meet a very high legal threshold for justifying its refusal to accommodate Mr. Ramirez’s religious beliefs. It simply has not met this standard here.

The ACLU has long worked to end the death penalty. But until that day arrives, the legal ability to execute people does not mean that states can trample other fundamental rights in the process. Every person is entitled to religious liberty—even those who will die at the hands of the government. Especially those who will die at the hands of the government.

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How the FBI Spied on Orange County Muslims – And Attempted to Get Away With It | American Civil Liberties Union

In 2006, the FBI ordered an informant to pose as a Muslim convert and spy on the congregants of several large, diverse mosques in Orange County, California. The agent, Craig Monteilh, professed his conversion before hundreds of congregants during the month of Ramadan. Renaming himself “Farouk,” the informant quickly made friends and impressed members of the community with his seeming devotion. The whole time, he was secretly recording conversations and filming inside people’s homes, mosques, and businesses using devices hidden in everyday objects, like the keychain fob of his car keys.

Among those subjected to FBI spying were Sheik Yassir Fazaga, the imam of the Orange County Islamic Foundation (OCIF), and Ali Uddin Malik and Yasser Abdelrahim, congregants at the Islamic Center of Irvine (ICOI). Together, they sued the FBI in 2011 for unlawfully targeting Muslim community members in violation of their constitutional rights to religious freedom and privacy. The FBI attempted to stop the litigation of the plaintiffs’ religious discrimination claims by arguing that further proceedings could reveal state secrets. After an appeals court ruled in the plaintiffs’ favor in 2019, the FBI appealed to the Supreme Court, which will hear the case on Nov. 8.

Ahead of their Supreme Court hearing, the three plaintiffs joined At Liberty to discuss how FBI surveillance impacted their lives and communities, how the harmful effects linger 15 years later, and what they hope to achieve in challenging the FBI.

Sh. Fazaga: “Generally speaking, when a person converts to Islam, they really are taken into the community as new members. So the tendency is that people will embrace them, literally embrace them. You get lots and lots of hugs when people come in … the assumption here is that people have made a lot of sacrifices and potentially they have lost their social support system. So the community tries to compensate for that.”

In 2006, Monteilh reached out to Sheik Fazaga to discuss his apparent interest in converting to Islam. He said he was of Syrian and French descent and wanted to embrace his roots. Days later, he announced his conversion at Friday prayer, reciting the shahada (the Islamic declaration of faith) before hundreds of congregants at the mosque. Monteilh renamed himself Farouk and started attending prayers multiple times per day, every day.

“6:00 a.m all the way to 10:00 p.m.,” says Hussam Ayloush of the Council on American-Islamic Relations – California (CAIR-CA), one of the organizations serving as co-counsel on the case, along with the ACLU. “That’s a lot of dedication to come to these prayers. Very impressive.”

Word spread about the new convert within ICOI and other mosques in the Orange County area, which Monteilh also frequented on a regular basis. Congregants reached out to him to introduce themselves, buying him books on Islam, showing him the movements of prayers, taking him out for tea, and inviting him into their homes for dinners, where he would often meet congregants’ families and friends. Many young congregants were drawn to him, dazzled by his stories about working as a personal trainer in Hollywood and the NFL. “We spent the time either hanging out, talking, praying, playing FIFA, or watching [the] news every once in a while,” says Abdelrahim.

Conversations about working out and other small talk eventually dissipated, however, as Monteilh began to talk about violence, including by expressing a warped interpretation of jihad, a term referring to any internal or external struggle facing an individual or community. Younger members of the congregation, like Malik and Abdelrahim, noticed the strange shift but initially gave him the benefit of the doubt. Some thought that Monteilh’s comments were based on misguided ignorance about Islam. Amidst widespread, post-9/11 Islamophobia, it wasn’t hard to believe. But when congregants tried to explain to Monteilh that Islam does not condone violence, he pushed back.

Ali Malik: “He just wanted to talk about [jihad] the whole time. And I was like, this is really awkward, you know? And I gave him what I learned about jihad, which is like the spiritual struggle, you know, and the fight against one’s own desires and caprice and whatnot. And he didn’t buy it. He just wanted to know about violence.”

One day, while returning to his car on his way out from a last-minute chiropractor’s appointment, Abdelrahim was met by FBI agents waiting for him in the parking lot. “Obviously, I was a little shocked,” he says. “A lot of questions [were] going through my mind. Number one, how do you know I’m here?” The FBI agents took him to a nearby Starbucks, where they questioned him about his opinions on terrorism. Abdelrahim realized they had been spying on him. “I really was laughing at the question itself because it’s just absurd.”

Soon it became evident that the convert was not who he said he was, and that he was potentially dangerous. Congregants reported Monteilh to community leaders, the police, and eventually the FBI itself. But they didn’t learn he was an informant until two years later, when he was publicly identified and began to speak openly about the operation.

They learned that between 2006 and 2007, Monteilh had indiscriminately gathered names, phone numbers, and email addresses as he secretly filmed and recorded congregants in their homes, mosques, and businesses. He used hidden cameras and recording devices to spy on community members even when he was not physically present. Monteilh’s FBI handlers told him they had a listening device in Fazaga’s office, where he had confidential conversations with congregants who sought his guidance in therapy sessions. Monteilh also had an audio recorder hidden in the keychain fob of his car keys, which he would leave behind, seemingly by accident, in the prayer hall. When anybody found the keys, they would bring them to the imam’s office, which served as a lost and found. There, the device could potentially record confidential conversations between the imam and people who sought his guidance.

Yasser Abdelrahim: “One of my friends brought up the fact that he just was acting very, very weird. ‘He pulled me to the side and started to talk to me about jihad.’ And then all of us were like, Wait a minute, he did the same thing with us.”

“I promised my clients confidentiality,” says Sheik Fazaga. “I don’t say anything without their permission. But to know that the FBI was actually recording these sessions, that is illegal, it is unethical, it is not constitutional, and it puts a lot of people’s lives in jeopardy and their well-being and their rights of privacy.”

The FBI had been surveilling Muslims in Southern California, home to one of the largest Muslim populations in the United States, since late 2001. The agency had created a list of names, religious leaders and mosques, and would often send agents to show up unannounced at people’s homes and question them about their religious practice without any discernible relationship to criminal activity.

Ali Malik: “To be honest, I was like, ‘This can’t be, he can’t be working for the FBI, because there’s no way they can be this dumb and this blunt.’ He was so blunt and upfront that I thought he’s a threat to me, himself, the community and the country, and he needs to be reported ASAP and with urgency.” (HuffPost)

“FBI agents told [Monteilh] to focus on people who are more devout, like Ali Malik, who was wearing religious clothing, and like Sheik Fazaga because he was a religious leader,” says Ahilan Arulanantham, one of the lead attorneys on the case. “Once we learned that information, we filed a lawsuit challenging the FBI’s conduct on constitutional and federal statutory grounds.”

While Monteilh left the Orange County Muslim community after community members took action, his impact was widespread and enduring. Sheik Fazaga had worked for years to foster trust between congregants and the U.S. government in the aftermath of 9/11, even inviting the FBI to speak with members of his mosque in a community town hall. “They looked us all in the eyes and assured us unequivocally that they were not spying on us,” says Fazaga. “We trusted them. But they lied, and our sacred community was shaken to its core.”

Since 9/11, the government has frequently abused the “state secrets privilege” to escape accountability, including by shutting down lawsuits by survivors of torture, ending litigation of unlawful government surveillance, and covering up misconduct and other abuses in the name of national security.

“The government cannot hide behind state secrets to pretend everything is national security,” says attorney Ahilan Arulanantham. “An independent judge or entity should be able to sort through the evidence and decide whether this constitutes state secrets or not.”

The federal district court accepted the FBI’s state secrets argument and dismissed the plaintiffs’ claims that the FBI unlawfully targeted them based on their religion. The Ninth Circuit Court of Appeals then disagreed and instructed the district court to consider the religious discrimination claims under procedures mandated by Congress in the Foreign Intelligence Surveillance Act, which specify how courts should handle cases involving surveillance conducted for national security purposes. The FBI appealed the case, and the Supreme Court agreed to hear it. Oral arguments will be held on Nov. 8.

The plaintiffs are represented by the Center for Immigration Law and Policy at UCLA School of Law, the ACLU of Southern California, the American Civil Liberties Union, the Council for American-Islamic Relations – California (CAIR-CA), and the law firm of Hadsell Stormer Renick & Dai.

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I Want to Play Golf with Other Boys. I’m Suing Tennessee for That Chance.

In March, Gov. Bill Little signed into law a bill (SB 228/HB 3) that bans trans students from participating in school sports. Two federal courts have blocked similar laws in Idaho and West Virginia, while a federal court in Connecticut has dismissed a challenge to that state’s policies that supports participation for trans students. Luc, along with his parents, have sued Tennessee because he is now denied the opportunity to try out for the boy’s golf team.

I was introduced to golf when I was about to turn 11. My mom took me to a golf clinic for kids at a local driving range. I got a free golf lesson from a coach and right away I was so hooked that my parents signed me up for weekly lessons. At the time, all I knew was I had fun and wanted to have a sport to get better at and was having a hard time finding one. I had tried soccer and basketball, but I was not interested in those sports and wanted to try and find something I liked better.

Over time, after getting better at hitting the ball and putting, it just got fun trying to work on my aim and technique. When I was in 7th grade, I found out there was a golf team at my school and I thought it would be good to have a team to play with. I wanted to get tips and watch other people play and see what I would have to improve on or what I was doing right.

After playing with the girl’s golf team previously, it started to feel wrong because I did not feel like I fit in with them, even though they were all kind to me. I felt out of place. It wasn’t just that I wanted to wear pants when all the girls on the team wanted to wear skirts — I felt awkward and knew this wasn’t the team for me. I am a boy, and I want to be on the boys’ golf team so I can play among other boys.

Luc aspires to play golf with other boys, freely. Here’s pictured here with his mom, Shelley.

Shawn Poynter/ACLU

My favorite experience playing on the team was when we were in a competition against other schools. We did not win the whole competition, but there were also prizes we could win on specific holes. My best friend L. and I both won prizes that day. I was so proud of myself and L., and our whole team!

Since Tennessee’s ban on trans kids in sports passed, the main reason I’m suing the state is because it bothers me a lot to think some kids won’t play sports at all and other kids could feel as out of place as I did, especially if they aren’t on a team with their best friend like I was. It’s depressing to imagine other kids feeling so out of place and without a friend.

I have a strong peace of mind when I think how my parents are there to help me with golf, the lawsuit, and life. Filing this lawsuit lets me say that I feel disrespected and mistreated. I can’t control the law that was passed, but just because it was passed, it doesn’t mean it was right. I have standards for how I want to be treated. I want to be respected. That’s what my parents want, and it’s what I feel my peers would want. What the state has done has not even come close to those standards.

To other trans youth: I want to tell you to fight for what you believe is right and to stand up for yourself. Nothing gets done if you don’t do anything about it.

Learn more about attacks on trans student athletes and ACLU lawsuits in other states.

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

A Mississippi City Blocked a Proposed Mosque Due to Anti-Muslim Prejudice, We’re Suing.

There are 13 churches in Horn Lake, Mississippi. But there are no mosques, and there never will be if city officials get their way. Earlier this year, the city’s Planning Commission and Board of Aldermen denied site-plan approval for the Abraham House of God mosque, even though the property for the proposed mosque is zoned for houses of worship and the city’s own staff determined that the application met or exceeded all requirements. One Alderman ominously warned, “if you let them build it, they will come,” exhorting his fellow board members to “stop it before it gets here.”

This type of bigotry has no place in our government. It violates the law, so the ACLU and the ACLU of Mississippi, along with the law firm Simpson Thacher & Bartlett LLP, filed a federal lawsuit against the city today. Brought on behalf of Abraham House of God and its co-founders, the lawsuit asserts that Horn Lake officials violated the First Amendment and the federal Religious Land Use and Institutionalized Persons Act, which provides heightened legal protections for houses of worship in local zoning proceedings.

Abraham House of God, Horn Lake, MS, exterior and plan

Not only is there no mosque in Horn Lake, but there is no mosque within all of DeSoto County (the third largest Mississippi county by population) where Horn Lake sits. Without a local mosque, Muslim residents of the Horn Lake region, including our clients Riyadh Elkhayyat and Maher Abuirshaid and their families, must travel 35 to 40 minutes each way, across state lines, to worship communally at a mosque in neighboring Tennessee. It’s a significant hardship on their ability to practice their faith. For example, Friday is the Muslim holy day; it is observed during Friday afternoon worship services. But the families are often unable to attend these services because of the distance they must travel to reach the Tennessee mosque. More generally, because there is no local mosque, Muslim residents in the area have been unable to establish a local congregation to enjoy the type of spiritual bonds and close support system with their neighbors that a local church or other house of worship typically helps facilitate.

Wanting better for themselves and their families, Mr. Elkhayyat and Mr. Abuirshaid felt a religious calling to open a mosque closer to home. They established the Abraham House of God as a non-profit religious organization; purchased a piece of Horn Lake property already zoned for houses of worship; hired an architect and engineering firm to design the mosque; and submitted all the required paperwork to the city.

Abraham House of God, Horn Lake, MS, side view

Unfortunately, the anti-Muslim backlash was immediate. After one planning commission meeting, one person told Mr. Elkhayyat and Mr. Abuirshaid that they would only be allowed to build a mosque “over our dead bodies.” At another meeting, one resident asserted that, as Muslims, Mr. Elkhayyat and Mr. Abuirshaid “are not subject to our laws, they’re subject to their laws.” Though city staff reported that the site plan application met or exceeded all requirements, the commission voted against it, offering no reason except “majority rules.” The “majority” that ruled was presumably the anti-Muslim group of residents that had gathered at the meeting.

The mosque appealed the planning commission’s decision to the Horn Lake Board of Aldermen. That meeting, too, was packed with an audience opposed to the house of worship. During the meeting, board members asserted that the mosque would violate local noise ordinances because of speakers announcing the call to prayer. In fact, the design plans did not include any outdoor speakers, and Mr. Elkhayyat repeatedly told the board there would be none. Board members also claimed that the mosque would create traffic hazards. But that wasn’t true. Finally, one board member contended that the city water mains would not provide adequate water pressure for a sprinkler system for the mosque. There was no evidence to support his claim, and there are various methods for ensuring that the mosque has adequate protection against fires.

Abraham House of God, Horn Lake, MS, rear view

All three excuses that the board cited for shutting down the mosque project were pretexts meant to distract from the only true reason the Board offered: the fear that, “if you build it, they will come.” Then-Alderman John Jones, who made the anti-Muslim comment during the board’s hearing, later raged, “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” And, in case there was any doubt that anti-Muslim prejudice was at the heart of the city’s actions, a few days later, another alderman, Charlie Roberts, admitted that the board had “stepped over the line” by discriminating against the mosque, Mr. Elkhayyat, and Mr. Abuirshaid “because they’re Muslims.”

Roberts, who voted against the site plan but had a change of heart after visiting a mosque in Memphis, called Mr. Elkhayyat to apologize for the board’s bigotry. He also texted a message to Mr. Elkhayyat: “M-Muslims D-Deserve W-Worship.” We could not agree more. Sadly, this is not the only instance of local government officials discriminating against mosques. We will do everything in our power to vindicate our clients’ rights and ensure that Muslims in the Horn Lake area can worship at the Abraham House of God as soon as possible.

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CVS Wants the Supreme Court to Gut Non-Discrimination Protections for People with Disabilities. It Could Set Us Back Decades.

“I’m sorry, we don’t serve people with disabilities.”
“That’s okay, I don’t eat them.”

This is a long-standing joke in the disability community, but it is based in reality. Many younger people might be surprised to learn that, not long ago, people with disabilities could be refused service with impunity. College students with disabilities were — if allowed to go to college — housed in the infirmary, not with their peers. Teachers who used wheelchairs — if able to get a teaching degree — were denied jobs because their wheelchair posed a “fire hazard.”

Just decades ago, disability rights activists led protests and sit-ins at federal buildings across the country to bring light to these experiences. One of these sit-ins in 1973, lasting 25 days, became the longest occupation of a federal building in history. The effort was a rallying cry for lawmakers to implement Section 504 of the Rehabilitation Act — the first federal disability civil rights law.

It took years of advocacy, education, and protest to achieve this victory. Now, this very law is under threat again.

In December, the Supreme Court will hear arguments for CVS v. Doe, a case that threatens to roll back decades of disability rights progress. The case is about a relatively small issue: whether people living with HIV/AIDS can opt-out of a “mail-delivery only” program to receive their medications from CVS. But CVS, instead of addressing the case on its merits — or, frankly, just allowing these plaintiffs the reasonable accommodation they seek — has decided to attack the very foundation of disability rights laws.

CVS has chosen to argue that disparate impact cases can no longer be brought under Section 504 of the Rehabilitation Act. Once obscure outside of legal circles, disparate impact is the backbone under which legal challenges to practices that disproportionately impact people with disabilities are brought.

We often think of discrimination as fairly personal. For example, when the wedding cake maker refuses to bake a cake for a same-sex couple, they have deliberately, and intentionally decided to discriminate against the same-sex couple. Disparate impact cases are different. They address situations in which seemingly neutral policies have discriminatory effects. In disability rights litigation, these cases are critical. People with disabilities regularly face exclusion and segregation, not because of anyone’s intention to exclude them or segregate them, but because people with disabilities aren’t being considered. The discrimination is one of “benign neglect” or thoughtlessness, not hatred or disapproval.

Disparate impact cases brought under the Rehabilitation Act address discrimination that denies people with disabilities full participation in society. The cases address apparently neutral discriminatory policies like: failing to provide wheelchair-accessible public transportation, creating zoning ordinances that exclude group homes for people with developmental disabilities, or providing college course materials in formats that are unreadable by blind students.

CVS now argues that people with disabilities only have a right to bring discrimination claims if the discrimination was intentional, not merely thoughtless. If disability laws were confined to only intentional acts of discrimination, civil protections that allow people with disabilities to fully participate and contribute to society would become meaningless. A company that makes huge profits from providing medications — many of which are for people with disabilities — now has the audacity to attack our ability to be included in the fabric of society.

Before Section 504, people with disabilities had no legal ability to challenge these practices. Yes, a restaurant could simply shut their door in the face of a person in a wheelchair, or with a white cane, or missing an arm, or with cerebral palsy. Sidewalks had no curb cuts, buildings were completely inaccessible to wheelchair users, and no blind person had a right to materials in Braille. Children with disabilities were routinely excluded from school with their peers, and often warehoused in institutions. This reality is what led disability activists to fight for the Rehabilitation Act.

We can’t go back to the old days of exclusion and discrimination. CVS should drop this argument, and remove this case from the Supreme Court docket. The disability community – and the ACLU – will fight this outrageous attack on our rights and our history.

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ICE Makes It Impossible for Immigrants in Detention to Contact Lawyers

Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the U.S., he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.

Despite passing the government’s initial screening and having a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”

Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent today by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.

This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.

Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.

The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet the vast majority of detained people — over 70 percent — faced immigration courts without a lawyer this year.

ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.

Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.

As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.

The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.

Even when detained people can speak with lawyers, ICE detention facilities cut these calls short, leaving legal providers like the Florence Immigrant and Refugee Rights Project in Arizona unable to complete intakes for potential clients in complex immigration cases in less than 20 minutes.

ICE detention facilities also fail to deliver legal mail on time to detained people, refuse to give detained people faxed documents, prevent access to email, and even confiscate legal paperwork, all of which violate ICE’s own policies.

For example, as an attorney with Mariposa Legal Services in Indiana reported that the Boone County Jail in Kentucky, which detains immigrants for ICE, has failed to replace a faulty fax machine — the only mechanism for requesting client calls or visits. Boone County has also refused to allow any calls on Thursdays, brought incorrect people to meet with attorneys, and has used attorney-client rooms as housing cells when the facility is overcrowded. The attorney also reported that the facility failed to deliver legal paperwork sent via FedEx to a client in detention.

This is only the tip of the iceberg. Legal advocacy groups have documented how ICE and telecommunications corporations inhibit communication between detained immigrants and their families, advocates, and allies. On multiple occasions, federal lawsuits have forced ICE to make improvements designed to provide immigrants in detention access to counsel and the courts in select facilities. ICE must continue to do so at those select facilities and expand those protections to all facilities in the detention system.

Immigration detention is inhumane, and it is a key barrier to access to justice. But so long as people are detained, ICE must ensure that detention facilities provide immigrants with timely access to counsel.

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My Life Was Derailed By a Traffic Ticket

The morning started out like any other. I was on my way to work at a food safety lab, in a new car with tinted windows and a temporary plate displayed behind tinted windows. A highway patrol officer pulled me over and gave me a ticket for the windows and for not having a license plate, because he couldn’t see it. I thought it was a minor infraction. I didn’t know it would kick off an ordeal that has cost me thousands of dollars and three jobs for over a decade since. That traffic ticket changed my life and I am still feeling the effects every day.

I ended up facing fines of about $500 in total, including about $140 for tinted windows. The fine for the license plate was dismissed, but I still had to pay court costs. It was about $350 just for stepping into court, even though I did nothing wrong. At the time, I was making $20 per hour. So I got on a payment plan to pay it off.

Not long after, the lab I worked at closed down and I lost my job — and my ability to make those payments. Meanwhile, the interest piled up and my court debt continued to grow. I thought things were looking up when I got another job, this time at a plastic manufacturing company in Loveland, Colorado. But I got pulled over again on my way to work. That’s when I found out that my driver’s license had been suspended for failing to make payments during that period when I didn’t have a job.

I missed work that day because I was sitting in jail, without the ability to call in. When I finally got out and tried to explain the situation to my employer, I found out I’d been automatically fired due to their strict no call, no show policy. “Sorry,” they said. “There’s nothing we can do.”

For the second time, I was in the predicament of having no job and a continuously growing amount of fines and fees. This time, though, I knew I didn’t have a license, which meant most jobs were out of reach since I’d have to drive to get there. At that point, I felt like I had no choice: either drive without a license, or miss out on an opportunity to make a living again and make those payments. I’d be breaking the law either way.

When I was pulled over that morning in 2011, I had no idea what was happening to me and how it would impact the rest of my life. Until then, my life felt like it was on track. I had a great job that allowed me to provide for my three kids and start the process of buying a house. I had no criminal record. And yet, I’ve spent the past 10 years entangled with the criminal legal system and mired in seemingly endless debt. My career has taken a hit and I’ve been unable to keep a steady, good-paying job since then. If I were rich, I would have been able to avoid all of the troubles of the past decade. But instead, I’m being punished for not having enough money.

Today, I still don’t have a driver’s license. My fines and fees now total about $3,000. I’ve been paying what I can but barely making a dent in my debt because of the interest rate. I don’t know how long it will take to pay off my debt and get my license back with the $12 per hour I make at my current job as a dishwasher at a sushi restaurant. My job is unstable, especially now with restaurants closing due to the pandemic. If I lose my job, I will once again have to make the choice between driving without a license and making those payments. Right now, I walk or use city bikes to get to work, but winter is coming.

What happened to me happens to millions of Americans who struggle to pay off government-imposed debts for minor traffic violations. State and local governments use these fines and fees to fund law enforcement and other government operations, but the inability to afford expensive tickets has no bearing on public safety and should not be treated as if it does. Punishing the inability to pay through driver’s license suspension criminalizes poverty and traps people in a cycle of debt and incarceration. The burden of this unfair system falls primarily on Black and Brown communities who are already overpoliced and have lower incomes as a result of documented systemic racism.

Many states have already started rethinking this system. Nevada, for example, has decriminalized minor violations like speeding tickets, driving with a broken tail light, and parking tickets so that they don’t result in arrest warrants, driver’s license suspension, or incarceration for people who can’t afford to pay them off. However, 12 states still have laws on the books that trap people in endless cycles of debt for these minor infractions. I’m not saying that people should not face consequences for violating these laws. But it shouldn’t destroy your life.

There is a bill in Congress right now that would go a long way in ending the cycle of poverty caused by the imposition and collection of fines and fees. The Driving for Opportunity Act would provide grants to states that do not suspend, revoke, or refuse to renew a driver’s license for failure to pay a civil or criminal fine or fee. The government should not use law enforcement to make money and should not punish people who can’t afford to pay. Courts and other public services should be fully funded through tax dollars, not through predatory tickets, fines, and fees that lead to policing for profit. Passing these reforms would protect millions of Americans from remaining trapped in poverty and being forced into making impossible decisions — like whether to pay off your fines or put food on the table.

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Internal Watchdog Finds ICE Violations of Solitary Confinement Policy

Last week, the Department of Homeland Security’s Office of Inspector General (OIG) published a shocking report detailing the failure of ICE detention facilities and field offices to comply with rules governing the use of solitary confinement or segregation. The report also discusses ICE’s destruction of documents regarding its use of solitary confinement, which raises serious red flags considering the agency’s troubled history of transparency.

Solitary confinement refers to a form of confinement in which people are held in total or near-total isolation — generally 22 hours or more per day with virtually no human contact. The use of solitary confinement is exceedingly common in the U.S. immigration detention system: According to ICE’s own data, detained immigrants were placed in solitary confinement more than 14,000 times over four years from 2015 to 2019. This uptick occurred even after ICE adopted standards that should have restricted the use of solitary confinement. ICE uses two forms of segregation: administrative segregation, which is supposedly non-punitive, for purposes like protecting the detainee, and disciplinary segregation, which is a punitive form of segregation allowable only when a person has been found to have violated jail rules.

ICE policy recognizes that placing a person in solitary confinement is a “serious step that requires careful consideration of alternatives.” But what happens in lock up across ICE’s detention machine is another matter. An astonishing 72 percent of cases examined by OIG investigators showed that ICE and its contractors are throwing people into solitary confinement without first considering less-restrictive alternatives, like denial of access to the commissary or removal from group activities. Even more alarming, detention facilities failed to consider alternatives to solitary in two-thirds of cases involving individuals with special vulnerabilities, like members of the LGBTQ community and people who experience mental illness. For those individuals, ICE policy explicitly states that solitary confinement may be used only as a last resort.

ICE and its contractors’ abuse of solitary confinement, especially against those with mental illness, has led to record levels of death by suicide in recent years. Jean Jimenez-Joseph and Efrain De La Rosa took their own lives at ICE’s Stewart Detention Center in Lumpkin, Georgia. Both men had histories of severe schizophrenia and psychosis, which was known to ICE, but jail officials sent them to solitary confinement anyway.

The OIG report also found that ICE often failed to comply with its own segregation reporting requirements. According to ICE policy, whenever an individual with a special vulnerability is placed in solitary confinement, and whenever any other person has been placed there for 14 days, ICE is required to notify ICE headquarters of the development. But in over 1 in 10 cases the OIG examined, no report was filed with headquarters at all. One such case involved a person with schizophrenia who spent 30 days in segregation. Moreover, OIG found that in cases where ICE did report a solitary confinement placement, it often did so late. One person’s placement in solitary was not relayed to headquarters until 88 days into a 250-day segregation placement. This is no mere paperwork failure. As the report explains, “[d]elays in segregation reporting could impact ICE’s ability to mitigate possible misuse of segregation and prevent unnecessary, prolonged segregation placements.”

The OIG also uncovered ICE’s violations of document preservation rules. ICE was not able to provide OIG with nearly 10 percent of the detention files requested, because they had been unlawfully destroyed or were lost. Many files were destroyed months after ICE agreed to a litigation hold in connection with a case brought by good government groups and historians for the very purpose of stopping ICE from destroying such records.

Prolonged solitary confinement lasting longer than 15 days — as it very often does in immigration detention — constitutes torture, and is a violation of international standards outlined in the U.N.’s Nelson Mandela Rules. Shorter periods of solitary confinement, according to the U.N. Special Rapporteur on Torture, “can also amount to cruel, inhuman or degrading treatment or punishment where the physical conditions of prison regime … fail to respect the inherent dignity of the human person and cause severe mental and physical pain or suffering.”

This report is by no means the first time watchdogs have identified failures by ICE to adhere to solitary confinement policy. OIG itself previously found significant segregation placement reporting failures like the ones described in last week’s report. The DHS Office for Civil Rights and Civil Liberties sounded the alarm over abuse of the segregation policy at the Adelanto Correctional Facility in California. Similarly, nearly a decade ago, the National Immigrant Justice Center and Physicians for Human Rights, reported on ICE’s failure to enforce consistent solitary confinement standards in its detention facilities.

Abuse of solitary confinement in the U.S. immigration detention system has persisted despite years of oversight reports, investigations by state officials, Congressional hearings, proposed legislation sponsored by influential members of the Senate, lawsuits, and death.

At the beginning of the Biden administration, the ACLU called on DHS to follow through on Biden’s commitments during the campaign and ban the use of solitary confinement (whether for administrative, protective, or disciplinary reasons). We have not seen progress to date. At the very least, DHS Secretary Alejandro Mayorkas should respond to the OIG’s findings by placing an immediate moratorium on the use of solitary confinement and requiring a detailed, facility-by-facility review of solitary confinement practices. Congress should use its appropriations powers to prohibit the use of federal funds for solitary confinement. Moreover, Congress should aggressively question DHS and ICE officials about the agency’s unlawful destruction of records and its continued use of solitary confinement for prolonged periods.

The latest OIG report underscores the reality that immigration detention is inherently inhumane. It’s time to put an end to ICE’s detention machine.

What you can do:Shut Down the ICE Detention MachineSend your message

We Need Accountability for Those Who Commit Violence Against Native Women

CONTENT WARNING: The following content contains details of sexual violence and may be harmful or traumatizing to some readers.

When L.B., a Northern Cheyenne woman, called the Bureau of Indian Affairs (BIA) to her house for help, she was hoping to receive support. Instead, she was sexually assaulted by a law enforcement officer who was sworn to protect her.

In October 2015, L.B. called the police to report that her mother was driving while intoxicated. Shortly after, a BIA officer arrived at L.B.’s house dressed in uniform in what started out as a routine visit. The officer entered her home and asked L.B. if she was alone. L.B. explained that her children were sleeping in another room and admitted to having a couple of drinks that evening. The officer proceeded to administer a breathalyzer test. When she did not pass the test, he accused her of child endangerment, threatened to arrest her, and then threatened to contact social services and have them take her children away from her.

The threats left L.B. visibly distraught and fearful of losing her children and her job. The officer then used his threats and power as a law enforcement officer to prey on her and force her to have sex with him. What started out as a call for help quickly turned into a threatening situation that ended in sexual assault.

Reports of sexual violence against Native women and the failure of law enforcement agencies to address these abuses are, unfortunately, far too common within Native communities. More than four in five Native American women reported being survivors of sexual violence during this last year. But on reservations in Montana and across the country, reports of sexual violence are almost never prosecuted as a result of racial and gender-based discrimination and legal loopholes that leave Native women unprotected against sexual violence.

One of these legal loopholes stems from a 1978 U.S. Supreme Court decision that eliminated tribal criminal jurisdiction over non-Indian perpetrated crimes on tribal lands. This prevents tribes from being able to prosecute the majority of violent crimes committed against their citizens in their own homes, including crimes of sexual violence. The Supreme Court’s decision in Oliphant, in most cases, leaves the federal government as the only government with jurisdiction to prosecute a sexual assault committed against a Native woman on tribal lands. But when federal law enforcement officers are the perpetrators themselves, it’s even more unlikely these women will receive justice. This is why we filed an amicus brief in support of L.B. and calling for law enforcement to be held accountable for committing and perpetuating sexual violence against Indigenous women.

Federal law enforcement has historically failed to protect against, and has often perpetuated, racialized and gender-based violence against Indigenous women and girls. Law enforcement is typically unresponsive to tribal needs, open cases languish unresolved, and wrongdoers exploit these gaps to prey on Native women and girls. This is critical for tribal citizens where sexual assault, human trafficking, and other forms of violence have reached crisis levels, especially for women and girls.

Native communities have frequently expressed frustration about the difficulty of being heard by federal authorities. Fear and mistrust of the government is the result of generations of broken promises and is an ongoing barrier to reporting. Because reservations can be policed by as few as half a dozen BIA officers, survivors of sexual misconduct by these officers rightly are concerned that they will have to interact with their abusers again in the future, discouraging them from coming forward. And when survivors do come forward, they face legal barriers to receiving justice.

In the L.B. case, the Montana Supreme Court will decide whether state law holds federal agencies accountable when one of its law enforcement officers uses their power and authority over a citizen to commit sexual assault. The officer who raped L.B. was convicted of rape and sentenced in May 2018 to three years in federal prison. In L.B.’s ensuing civil lawsuit for damages, however, a federal judge found the government was not liable for the BIA officer’s actions because the officer was “not acting in the scope of his employment” at the time of the rape. L.B. appealed to the Ninth Circuit Court of Appeals, which in August sought guidance from the Montana Supreme Court.

In the 1990s in Maguire v. State, the Montana Supreme Court suggested that sexual assault falls outside the scope of ordinary employment, which arguably includes law enforcement. The consequence of the Montana Supreme Court’s decision in Maguire is that women and children who are sexually assaulted by federal law officers within the state of Montana cannot sue the federal government, nor can they hold a federal law enforcement agency responsible for the actions of its officers.

This hole in the law disproportionately affects Native women living on tribal lands, since they are the population in Montana most likely to encounter federal law enforcement. Native women already experience the highest rates of sexual assault and violence in the United States, leaving them vulnerable to sexual assault in the hands of federal law enforcement officers — with no institutional recourse. If federal law enforcement isn’t held accountable when their officers abuse their authority, it only ensures that sexual violence against Native women Montana will continue to escalate.

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