By Beth Werlin, American Immigration Council & Kristin Macleod-Ball, American Immigration Council
Each week, in immigration courts across the United States, hundreds of children, some as young as a few months old, come before immigration judges and are called upon to defend themselves against deportation. Among them is Arturo,* a three year old who arrived at the United States border in April 2014 because family members feared for his life in El Salvador. Although he is only a toddler, the government has put Arturo into deportation proceedings on his own. He has no attorney to help him explain to the court why he should not be deported.
Arturo's case is not unusual. According to the Transactional Records Access Clearinghouse, less than a third of children with immigration cases pending in June 2014 had legal representation.
On Tuesday, the child plaintiffs in J.E.F.M. v. Holder, a nationwide class action seeking to ensure that all children in immigration court have legal representation, asked the federal court presiding over the case to add Arturo and two other children to the lawsuit. In J.E.F.M., the plaintiffs are challenging the government's long-standing failure to provide counsel to children in immigration court and asking the court to order the government to appoint legal representation for unrepresented children facing deportation.
The government has moved to dismiss the suit, arguing that none of the children has been harmed by the lack of representation. But the new plaintiffs and countless other children across the country are being deprived a fair immigration court hearing and are suffering real harm from the government's failure to provide them legal representation.
Arturo was conceived when his mother was raped when she was only 15 years old. After she faced continuing threats from her rapist, Arturo's mother fled El Salvador and left her son in the care of his aunt. However, because his family continued to fear for his safety in El Salvador, Arturo was brought to the border in Texas, taken into custody by the government, and put into deportation proceedings. He is now in the care of his mother in Los Angeles, who is a lawful permanent resident. Without legal assistance, Arturo has no way to explain to the immigration court whether he may be eligible for protection in the United States.
Arturo and other children bringing the case illustrate just how critical it is that children have legal representation in their immigration court proceedings. And yet, in recent months, the government has instituted policies that actually exacerbate the problem. Over the summer, the government announced that it would prioritize the immigration cases of children over those of most adults, creating new "rocket dockets" that give children even less opportunity to find legal help.
Although the government claims that immigration judges have authority to provide children with time to find legal assistance, attorneys and court observers around the country report that children are receiving less time to find attorneys. The problem is made worse because the government is initiating deportation cases against increasing numbers of children, severely straining the limited pro bono legal services available. Moreover, court observers report that immigration judges are asking children to complete complex forms like asylum applications, which must be completed in English, not their native language.
As plaintiffs in J.E.F.M. argue, children simply cannot adequately prepare for these cases on their own. An immigration court system that requires them to do so is fundamentally unfair and violates due process.
The J.E.F.M. child plaintiffs are represented by the American Civil Liberties Union, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.
*Name changed to protect our client's identity
Blog post adapted and cross-posted from Immigration Impact.
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
In honor of Free Speech Week, let's take a moment to acknowledge the obvious. Free speech is incredibly, almost unbelievably important, especially in a democracy.
It can also be unpleasant, uncomfortable and even downright offensive. Which can make defending it rather awkward at times.
Let's take a trip back to Boston during this week in 1923:
Beantown's Democratic machine boss and chief executive is the flamboyant Mayor James Michael Curley, a felon, rake, and hometown hero. As the Boston Globe put it, he "served four terms as mayor, four terms in Congress, one term as governor, and two terms in jail."
Another popular political force in those days was the Ku Klux Klan. At its height in the 1920s, it effectively ran several states and would stage rallies seeking support in the rapidly urbanizing northern cities, including Boston, where racial and religious tensions were taut.
Mayor Curley—a hero among the city's Irish-American working class—saw a campaign issue. On October 23, 1923, while calling himself a "stout stickler for freedom of meeting, speech and press," he banned peaceful Klan meetings in Boston. In response to a letter from the local ACLU condemning the KKK but strongly defending the group's right to speak and gather, Curley said, "The Klan cannot expect to shelter itself behind the rights it denies and the guaranties it repudiates."
The argument has some appeal. Why should we tolerate intolerance, especially by a group as objectionable as the Klan? Consider, however, another move against unpopular speech by the good mayor. In 1925, Mayor Curley banned Margaret Sanger—the birth control activist and founder of Planned Parenthood—from speaking in Boston. In doing so, he lashed out against the ACLU and explicitly linked the Sanger ban to his moves against the KKK.
Having banned the Klan, silencing Sanger was just another step down that road. When you put some lawful speech outside the protection of the First Amendment because it is unpopular or even offensive, speech you like will invariably be lumped in as well. The KKK of the 1920s was a horrific thing. But Mayor Curley proved that progressive social reformers could be painted as equally horrific and their speech just as deserving of suppression.
Fortunately, despite the efforts of Curley and many like him, free speech protections grew muscle in the decades to follow. And support for contraception and similar social reforms started to win in the marketplace of ideas, while the Klan ate dust in the bin of history.
The ACLU continues to support free speech for all precisely because of these historical experiences. We understand that our position will allow some speech that is not just unpopular, but possibly deplorable. But our defense of speech regardless of speaker comes down to a simple truth: once you give the government the ability to silence unpopular speech, no one is safe. Once you start playing favorites with the protections of the First Amendment, you put yourself at the mercy of shifting political whims.
Free speech only for some translates directly into free speech for none.
To read more and join in the celebration of Free Speech Week, please visit http://www.freespeechweek.org.
For more on free speech history, check out Professor Sam Walker's Today in Civil Liberties History.
By Ujala Sehgal, Deputy Communications Director, New York Civil Liberties Union
You may not have heard of the lawsuit Hurrell-Harring v. New York, but you've probably heard of your "right to an attorney" as an American.
As seen on just about every episode of "Law & Order," when people are arrested, they are informed that they "have the right to an attorney, and if they cannot afford one, one will be provided for them." In fact, the Supreme Court called the right to counsel "an obvious truth" more than 50 years ago. But states' failure to provide attorneys to people too poor to afford them has become an ongoing nationwide crisis.
But not 50 years too soon, things might finally get better.
This afternoon, the New York Civil Liberties Union and the law firm Schulte Roth and Zabel LLP announced an 11th hour settlement that will overhaul public defense in five New York counties and lay the foundation for statewide reform of public defense.
It's a victory that has significance for equal justice across the country because the reforms are more progressive than anything we've seen in any indigent defense case in the United States.
Why is the right to counsel so fundamental? Because our adversarial criminal justice system requires both a robust prosecution and defense so what really happened in any circumstance can be judged. That's why New York's failure to provide poor people with meaningful public defense services creates a two-tiered criminal justice system where whether or not you go to prison is based on how much money you make.
No one benefits in a system where someone like nursing aide Kimberly Hurrell-Harring spent months in a Washington County jail and lost her job and home over a simple misdemeanor.
Or where James Adams, accused of stealing deodorant, was saddled with bail he couldn't afford and sat in a Syracuse jail for three months while his family was evicted from their home.
Or where Donald Telfair of Suffolk County had to defend himself in court while his jaw was wired shut and was sentenced for up to three years for a crime he didn't commit.
People like Kimberly, James, and Donald represent countless Americans who lost their jobs, homes, and, in some cases, families because they had no meaningful legal help, and all Americans have paid the price -- both the moral cost and the financial cost as taxpayers, funding needless incarcerations and court proceedings that could have been avoided with public defense.
That's why seven years ago, the NYCLU and Schulte Roth and Zabel sued New York State over its failed public defense system. And why in one of his last public acts before announcing his resignation, Attorney General Eric Holder submitted a statement of interest supporting the Hurrell-Harring lawsuit, the first ever U.S. Department of Justice show of support in a state court proceeding on public defense.
Finally, after a seven-year lawsuit and more than 50 years of constitutional violations, New York State is accepting its responsibility to provide public defense. The state has agreed to provide justice for New Yorkers rather than passing the buck off to counties that have failed in the process. Today's agreement lays the groundwork for creating a system of justice throughout the state, and perhaps throughout the country, where guilt and innocence aren't determined by how much money you make.
The right to counsel may not just be a right that people watch on television shows, but one that all people, rich or poor, are granted. This has been a long time coming.
Or as Mr. Telfair put it: "The Constitution was written for everybody, not just for people who make $100,000 a year."
Please join us in thanking the people at the heart of today's victory, the many poor New Yorkers who suffered tremendous losses in the state's broken public defense system yet stood up to fight for equal justice as plaintiffs in this lawsuit for more than seven years.
By Jamil Dakwar, Director, ACLU Human Rights Program
Twenty years ago, the United States ratified an international treaty banning the use of torture and cruelty worldwide. Three successive American presidents, with bipartisan support, threw their weight behind the treaty – Ronald Reagan signed it in 1988, George H.W. Bush approved it, and Bill Clinton signed implementing legislation into law in 1994.
But less than a decade later, the administration of George W. Bush took it apart. To justify the torture of prisoners in American custody abroad, the Bush administration decided that the sweeping prohibitions enshrined in the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment just didn't apply.
President Obama took a critical step on his second day in office when he signed an executive order reinforcing the ban on torture. But the legacy of the torture program is still with us in many ways. This past weekend, we learned from a New York Times report that the Obama administration is considering reaffirming the Bush-era position that the ban on cruel treatment doesn't apply when the United States is operating abroad.
This is nothing more than a fabricated loophole that does terrible damage to one of the world's most important human rights instruments. Simply put, the ban against torture and ill-treatment is universal and applies everywhere the U.S. government exercises, directly or indirectly, de facto or de jure control over people in detention. We echo the call of the New York Times editorial board to "close the overseas torture loophole."
The United Nations will review American compliance with the convention in November. Ahead of the review, the ACLU has submitted a report to the U.N. Committee Against Torture, highlighting the areas in which the U.S. government has failed to uphold its human rights obligations under the convention.
In the meanwhile, we continue to wait for the release of the Senate Intelligence Committee's report on the CIA torture program. The summary of the comprehensive report, the product of years of work, is being held up by negotiations over the executive branch's excessive redactions, no doubt attempts to keep secret some of the most damning findings and evidence of the terrible crimes our country committed.
In case you're rusty, we are releasing today an interactive infographic that covers most of the top architects of the U.S. torture program. You'll see plenty of familiar faces from the highest levels of power.
So brush up – because the torture secrets are coming. Accountability, we hope, will follow.
Not Easy, But She’s Not Sorry: Elle Magazine’s Must-Read Personal Story on Why Guilt Shouldn’t Factor Into the Abortion Equation.
Blog of Rights: Official Blog of the American Civil Liberties Union
Research shows that nearly one in three women will have an abortion by age 45. So why are we so afraid to talk about it?
Elle Magazine certainly isn't. This month's issue, which hits newsstands this week, brings us a lengthy, first-person essay that breaks down some commonly held assumptions about abortion and a woman who has one.
First and foremost, the piece shatters the too-long-held belief that a woman who has an abortion must feel guilty about it.
For a small segment of women—and the number is small, by any reasonably scientific account—abortion is indeed a tragedy, a trauma with long-lasting reverberations. But I want to tell a different story, the more common yet strangely hidden one, which is that I don't feel guilty and tortured about my abortion. Or rather, my abortions. There, I said it.
The piece is a thoughtful, seldom-heard account of the true story many women don't tell. Avoiding an unintended pregnancy for 30 years—the length of most women's fertility—is complicated and hard. But sometimes the decision to have an abortion isn't.
Read the full piece here.
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project
Once you've seen the Abu Ghraib photos, they're not easily forgotten.
The hooded man, the electrodes, the naked bodies piled upon each other, and the grinning soldier with a thumbs up. The images are the stuff of nightmares. They're also incontrovertible evidence that our government engaged in torture, and their publication sparked a national conversation that helped end the Bush administration's torture program.
Nevertheless, the Obama administration is still fighting to keep the full truth about torture – including photos the public hasn't yet seen – from the American people. But recently the courts and the Senate have been pushing back, resisting the government's claims that it can't reveal its torture secrets. As a result, those secrets may finally be dragged into the light.
The government is holding back as many as 2,100 never-released images from Abu Ghraib and other detention centers overseas. The ACLU first sued for their release 10 years ago, and in August, District Court Judge Alvin Hellerstein ruled that the government must publish the photos unless it can defend withholding them on an individualized basis.
Tomorrow the government will appear in court and tell Judge Hellerstein and the ACLU what it plans to do.
The government based its suppression on a 2009 statute, enacted after the ACLU won the release of the images in the trial and appeals courts, that permits the secretary of defense to withhold an image for up to three years if the secretary certifies that its release would endanger Americans. In 2012, then Defense Secretary Leon Panetta issued a half-page certification for the entire collection, of more than 2,000 images.
"Standing alone," Judge Hellerstein wrote in his August ruling, Mr. Panetta's certification is "insufficient." The government must prove that the secretary reviewed each photo by itself and "show why" the publication of each image risked national security.
The American people are entitled to know what took place in U.S. detention centers. And it would be completely backwards to suppress images of government misconduct on the grounds that they are too powerful to be disclosed when it is often disclosure, accountability, and ensuing reforms that prevent misconduct from recurring.
These principles aren't just about righting the historical record; they have practical applications to this day. Just this month, another federal judge ordered the unsealing of 32 videos of force feeding and cell extractions at Guantánamo Bay. These videos form part of the basis of Syrian detainee Abu Wa'el Dhiab's challenge to the force feeding practices the government inflicts on him today, practices that have been condemned internationally and which constitute cruel, inhuman, or degrading treatment, possibly even torture.
Judge Gladys Kessler rejected the government's justifications for keeping the videos from the public as "unacceptably vague, speculative...or just plain implausible." Citing an earlier opinion by Judge Hellerstein in the ACLU case, Judge Kessler dismissed the government's argument that the videos could be used as propaganda by Al Qaeda. Last week, she granted the government's request for a 30-day reprieve while it decides whether to appeal her orders.
Outside of the courts, the Senate Intelligence Committee is also signaling that it, too, has had enough of the administration's efforts to conceal the truth about torture from the public. The committee voted six months ago to release the summary, findings, and conclusions of its landmark study on the CIA's torture program. Now the committee is pushing back against the administration's efforts to black out so much of the summary to make it unreadable. The ACLU has separately sued the CIA for the full Senate report, the CIA's response, and a contemporaneous internal review ordered by then CIA Director Leon Panetta. The CIA must "process" the summary, CIA response, and Panetta review by October 29, which means the agency will be required to justify any withholdings or produce the three reports.
With the courts and the Senate holding the line, we may soon know more than ever – not only about our past – but also about our present abusive practices. Only then can we truly move forward, and not backward.
By Joanne Lin, Washington Legislative Office
In a letter to Secretary of Homeland Security Jeh Johnson yesterday, 10 Democratic senators, including all of the party's leaders, wrote: "Mothers and their children who have fled violence in their home countries should not be treated like criminals."
We couldn't agree more.
The letter – which was signed by Senate Majority Leader Harry Reid (D-Nev.), Judiciary Chairman Patrick Leahy (D-Vt.), Senate Majority Whip Richard J. Durbin (D-Ill.), and Sens. Charles E. Schumer (D-N.Y.) and Patty Murray (D-Wash.) – voiced unified opposition to the Obama administration's recent treatment of mothers and children fleeing violence in Central America.
In 2009, the administration wisely decided to stop detaining families at the T. Don Hutto Detention Center in Taylor, Texas, following years of ACLU litigation and other advocacy on the deplorable conditions of confinement and treatment of children at the facility. In the summer 2014, however, the administration reversed course and ramped up its efforts to detain families.
Virtually overnight the Department of Homeland Security (DHS) opened two new family detention facilities in Artesia, New Mexico, and Karnes County, Texas. And in November, ICE will start detaining families at a new detention facility in Dilley, Texas, which will have a 2,400-bed capacity and will be the single largest immigration detention facility in the nation. In just a few short months, family detention will jump from fewer than 100 beds as of May 2014 to nearly 4,000 in 2015.
That's a staggering increase of 3,900 percent in less than one year. That's not a typo.
Many of the moms and kids arriving in the United States have fled gang-related or severe domestic violence in Central America. Nonetheless, a recent complaint prepared by the Mexican American Legal Defense and Educational Fund and Human Rights First documents allegations involving guards and staff at the detention facility in Karnes, Texas, engaged in sexual abuse and harassment of detained mothers.
History has shown that imprisoning families limits access to due process, harms the physical and mental health of children, undermines the family structure by stripping parents of their authority, and results in abuse of detainees. Moms and kids should not be locked up by our government. Rather they should be given mental health treatment and care appropriate for trauma survivors. Instead of scaling up family detention facilities, DHS should be investing in effective, humane, and cost-effective alternatives to institutional detention.
As the senators made clear in their letter to DHS, "The ongoing detention of women and children who have made credible claims that they have been victims of [domestic and sexual violence] is unacceptable."
Institutional detention must always be the last resort, not the first. The Senate Democrats understand this, and so should the Obama administration.
By Kara Dansky, Senior Counsel, ACLU Center for Justice
Misti Barrickman has scoliosis. Since she was a teenager, it's been debilitating. It hurt to lie down. It hurt to stand up.
She started taking Oxycontin to help with the pain and became addicted. She came to Seattle to find large quantities of the drug. Unable to find it and feeling increasingly desperate, Misti tried what was readily available: heroin. For the next seven years, she struggled with addiction. She lived between a tent and a jail cell, racking up charges for possession and prostitution.
Her story is all too common.
Almost 30,000 people were arrested for drugs in New York in 2012. Over 117,000 people were arrested for drugs in California in the same year. Nearly 10,700 people were arrested for drugs in Washington that year.
Some of these people, like Misti, have been arrested multiple times – their addictions haven't been helped by stint after stint behind bars. Too often, the cycle just keeps repeating itself.
Seattle is trying something different.
Since 2012, the city's Law Enforcement Assisted Diversion program (LEAD) cuts out the criminal justice middleman. Instead of jailing people struggling with addiction, officers connect people directly with the treatment and services that can actually help them get sober.
Instead of wasting time and money with a court hearing and saddling people with a criminal record before they can access treatment and services, LEAD doesn't waste time. And unlike drug courts, LEAD participants who relapse are not threatened with jail time and expulsion from the program.
For the people we interviewed, the program is working. Misti's been sober now for two years. She no longer lives in a tent, and her pain is under control. She is in school. The latest video in our "OverCriminalized" series – produced in partnership with Brave New Films and The Nation – tells Misti's story and the story of others whose lives have improved after police took them to services, not to jail.
For decades, this country has been waging a failed war on drugs. Drug use hasn't gone down. Drugs are just as available as they used to be. Instead of solving our drug problem, we've become a society that seemingly disregards millions of lives – particularly the lives of black and brown people.
Although the majority of people who use and deliver drugs in Seattle are white, the black drug arrest rate was 13 times higher than the white drug arrest rate in 2006. Aggressive over-policing has ravaged communities. Large swaths of the population have been locked up. And billions of dollars have been wasted that could have been much better spent on interventions that could have actually changed the course of people's lives.
Drug addiction has become one of the many social problems that we've relegated to the criminal justice system. But as with homelessness and mental illness, handcuffs and jail cells haven't made things better and have cost much more than the treatment and services that can. It doesn't have to be this way. America can safely reduce our reliance on incarceration. Several states have reduced their prison populations while crime rates have dropped.
Addiction should not be a crime.
"OverCriminalized," a new series produced Brave New Films in partnership with the ACLU and The Nation, profiles three promising and less expensive interventions that may actually change the course of people's lives. It's time to roll back mass criminalization and focus on what works.
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
The Associated Press ran a story (along with two sidebars) this week on the use of voiceprints by big banks and other institutions. Those companies say they are using the technology to fight fraud, but in the process they are apparently compiling large databases of voiceprints without customers' knowledge or permission.
Voiceprint recognition is the use of various techniques to recognize the timbre of a person’s voice. It is a technology I was aware of, but I did not know that it was being used so widely—and I suspect few Americans did. This technology raises a number of issues:
- Effectiveness. Although vendors of course tout its accuracy, it's not clear what the false-positive and false-negative rates are for this technology as deployed in the real world by the banks. It could well be effective enough to increase banks' profits, but still have a high enough error rate that particular individuals get unfairly treated due to false-positive matches with fraudsters. In the national security context, the consequences of false positives could be much more serious—including in some circumstances even death. As the Intercept reported, the NSA has used its "state-of-the-art" voice recognition systems to help the Turkish government kill Kurdish rebels (or, we should say, those believed to be Kurdish rebels).
- Consent. It's one thing if a company says, "If it's okay with you, we'd like to use your voiceprint to authenticate you, and if you don't want to participate, here's another method we can use." It's quite another for companies to be compiling large databases of voiceprints without customers' knowledge or permission. The AP obtained an internal document that recommended that "this call may be recorded" notifications be supplemented with "and processed" to cover the collection of voiceprints—hardly genuine notification. Enrollment in a biometric database is something that, by global consensus, should generally not be done without subjects' meaningful knowledge and consent.
- Security. It's not clear how easy it would be to spoof or otherwise defeat voiceprint systems. Current deployments by banks may be based on an assumption that the technology is not widely known about or understood, but such ignorance of course never lasts, and human beings are clever at finding ways to game things. What if a fraudster figures out how to spoof your voice and empties your bank account? And possibly lands you on a blacklist to boot.
- Anonymous speech. This technology promises to erase yet another major avenue for anonymous speech, which has been a core American speech tradition at least since the publication of The Federalist Papers and other anonymous colonial writings. Sometimes people need to make anonymous phone calls—to call in a crime tip, for example, or to call a psychological support hotline. (True, caller ID has already made this more difficult, but it is still doable.) When an individual calls a radio talk show, their caller ID may be apparent to the station, but they are not generally identified by full name on the air. The possessor of a giant voiceprint database listening to the radio, however, could identify those callers, and gather information about their opinions. If people lose faith that they can be anonymous in various contexts, that will create chilling effects that will impoverish our society.
- Tracking. A database of voiceprints is in some ways just another compilation of valuable personally identifiable data, and is susceptible to the full range of uses to which such databases are often put. One can imagine its use to identify shoppers as they chat in the aisles, for example. I have written before about the threat that surveillance cameras will begin featuring microphones collecting audio from public spaces; this technology sharply increases the stakes of that battle.
In many ways the closest parallel to voiceprint technology is face recognition. In both cases, unique attributes that we cannot help but project out into the world are recorded and analyzed by powerful institutions. Regulating the collection of such data can be tricky, but we have every right to expect that institutions that are supposed to answer to us (as customers or citizens) will be honest and transparent in how they are doing so.
Ultimately, the question with this technology, as with any tracking technology, is whether and in what ways its use will go beyond the narrow goal reported by the AP of trying to stop fraud, and how any such uses are likely to affect innocent people, be used for social control, and shift power from individuals to large institutions.
By Brigitte Amiri, ACLU Reproductive Freedom Project
At 7:15 on Tuesday night, we learned that the U.S. Supreme Court temporarily blocked enforcement of part of the notorious Texas law that had shuttered 80 percent of the state’s abortion clinics.
The Court’s decision was only a few sentences long, but the effect of those sentences is literally life-altering for women and families in the state. Because of this decision, clinics will be allowed to reopen, and they will be able to provide high-quality, compassionate care to women.
Texas' HB 2 has wreaked havoc on women and the health centers that provide them care. After the Fifth Circuit Court of Appeals allowed the new law to take effect, clinics were forced to immediately close their doors because they were unable to make prohibitively costly, medically unnecessary renovations to their facilities.
Patients had to be turned away at the door. Appointments were cancelled. And the remaining providers were inundated. One of my clients, Routh Street Women’s Clinic in Dallas, turned dozens of patients away, including a 13-year-old rape victim who was scheduled to come to Dallas from a town 170 miles away.
These closures come on the heels of many other clinic closures after the first part of HB2, which makes doctors enter into an unneeded business arrangement with hospitals, took effect. In total, HB2 had left only eight clinics for the 5.5 million women of reproductive age who live in Texas. The Supreme Court’s temporary blocking of the law is a breath of relief to the women and families of Texas. For the moment, more women in Texas are able to get care, and these truly amazing providers are able to see patients again.
But this victory is tenuous, and the court battle is far from over. In early 2015, the Fifth Circuit is set to make a final decision about whether HB2 can again force clinics to close, and the case is likely to end up in the Supreme Court again.
We hope justice will prevail, and that women in Texas will always be able to get the quality health care that they need.