By Deborah J. Vagins, ACLU Washington Legislative Office
In an important moment of bipartisanship, Congress unanimously passed a bill this month that honors the thousands of people who marched for voting rights 50 years ago in Selma, Alabama, with the Congressional Gold Medal, Congress’ highest civilian honor. This legislation was co-sponsored by 149 Republicans and 227 Democrats.
On March 7, 1965 at the foot of the Edmund Pettis Bridge, they suffered beatings and the fear of death to peacefully protest for a national voting rights law. Ultimately, they prevailed and that law – the Voting Rights Act of 1965 – changed the face of America and combated ongoing discrimination to the present day.
Unfortunately, in 2013, the Supreme Court crippled one of the most effective protections of that act in its Shelby County v. Holder decision by rendering ineffective the requirement that certain jurisdictions with a history of voting discrimination get pre-approval for voting changes. The elections last November was the first time in 50 years that voters of color were not fully protected at the polls. The lack of these protections created a chaotic election landscape that confused both voters and election officials.
The Voting Rights Amendment Act of 2015, introduced by Reps. Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.), seeks to repair the damage done by the Supreme Court by protecting voters in states that engage in recent and repeated acts of racial discrimination, while providing stronger enforcement tools nationwide to ensure fair elections.
We are grateful to the members of both parties who have that supported this bill, however, there has not been as strong a bipartisan showing as needed for the legislation that would repair and modernize the Voting Rights Act, the very law for which these foot soldiers fought and bled. In fact, we urge those members of Congress who have signed onto the commemoration of the Selma marchers, to realize there can only be meaning in this honor if the law these citizens fought for fully protects our citizens.
As John Legend eloquently said in his accepting the Oscar for best original song for the civil-rights drama “Selma”: “Selma is now because the struggle for justice is right now … the Voting Rights Act that they fought for 50 years ago is being compromised right now in this country today.”
Honoring the foot soldiers of Selma is a great step forward on the march toward justice for those who sacrificed for us. However, the momentum must continue. There must be just as strong a showing of bipartisan support to fix the legislation for which they sacrificed, starting with congressional hearings and votes to move the bill forward.
As we approach the commemoration of the 50th anniversary of both Bloody Sunday and the enactment of the Voting Rights Act this year, now is the time for Congress to work together to restore and strengthen the law. Congress can fulfill the legacy of these foot soldiers by supporting the Voting Rights Amendment Act of 2015.
By Ian S. Thompson, ACLU Washington Legislative Office
Edward Snowden recently pointed out how the victories of the LGBT movement in this country might never have happened if the government had the ability to conduct “perfect surveillance.” For decades, LGBT people had to fight official government persecution, including aggressive surveillance and targeting by law enforcement.
Some of the earliest organized advocacy efforts on behalf of LGBT rights came about in direct response to the intrusive surveillance and persecution that characterized the lavender scare of the 1950s. During this period, government officials – led by FBI Director J. Edgar Hoover – worked feverishly to ruin the lives of untold numbers of gay men and lesbians and to intimidate members of groups like the Mattachine Society , which dared to advocate for the basic dignity of gay people.
Those who bravely fought back during this period used their constitutional rights to free speech and association to move the ball forward in critical ways. The very first Supreme Court victory for LGBT people came about during this period when the court ruled in One, Inc. v. Olesen that a magazine of, by, and for gay people was not obscene and that the U.S. Postal Service could not refuse to distribute it through the mail. Following its landmark Supreme Court victory, ONE told its readers:
For the first time in American publishing history, a decision binding on every court now stands....affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity.
As Snowden made clear in his remarks, this would not have been possible if the government had enjoyed the unfettered ability to suppress this movement out of existence. This reality, and the lessons of history, has not been lost on the LGBT movement of today. LGBT advocates and organizations have spoken out against aggressive law enforcement profiling and surveillance, including against leaders of the Muslim community.
It is important to always remain mindful of the fact that minority communities cannot enjoy the equality and dignity afforded them by the Constitution when they are routinely subjected to discriminatory profiling and perfect surveillance by the government.
That is what Edie Windsor imagined her late spouse, Thea Spyer, would have said after their love story brought down the core of the federal Defense of Marriage Act in United States v. Windsor. Edie and Thea did do it. They brought down DOMA and – along with hundreds of thousands of other same-sex couples and their families– they transformed our nation’s understanding of same-sex couples and their families.
Their victory, however, wasn’t total, as states could still deny same-sex couples their right to marry and the recognition of their existing marriages. But they started a fire that couldn’t be put out. Just weeks after the Supreme Court struck down DOMA, another couple facing one of life’s greatest tragedies embarked on a journey that now will end before the nation’s highest court as well. Only this time, a win would end marriage discrimination for good.
Jim Obergefell and John Arthur, long-time residents of Cincinnati, Ohio, had been together over 20 years when John was diagnosed with amyotrophic lateral sclerosis, or ALS, also known as Lou Gehrig’s disease. With John already in hospice care, the court’s Windsor decision gave Jim and John a chance to marry and receive the federal benefits that flow from marriage before John’s death. So on July 11, 2013, Jim and John flew to Maryland, where same-sex marriage was legal, in a medically equipped plane. John was too sick to leave the plane so they wed on the tarmac before flying back to their home in Ohio.
A few weeks later, the two men filed a lawsuit in federal court challenging Ohio’s refusal to recognize the couple’s marriage, including on the last official document of John’s life – his death certificate. On that form, the state was going to say that John died “single,” leaving blank the line for surviving spouse.
Almost two years after filing the case, and 18 months after John’s death in October of 2013, Jim’s case, Obergefell v. Hodges, is at the Supreme Court. Just like Edie before him, Jim is about to make history.
On behalf of Jim and the other petitioners in the Ohio marriage cases – Obergefell v. Hodges and Henry v. Hodges – as well as the petitioners in the Kentucky marriage cases – Bourke v. Beshear and Love v. Beshear, – we today filed two briefs at the Supreme Court arguing for the freedom to marry. In addition, there are other couples at the Supreme Court from Michigan and Tennessee fighting for a right already recognized by 37 other states.
Arguing that Ohio’s marriage recognition bans violate the due process and equal protection provisions of the 14th Amendment, our brief in Obergefell begins:
Petitioners married seeking a cherished status that protects families throughout life, from cradle to grave. But Ohio refuses to respect the dignity and status conferred on Petitioners' marriages by other states. From the start of the marriage to the birth of children to the death of one spouse and beyond, Ohio erases the legal relationships of Petitioners' families. Ohio treats these spouses as legal strangers to one another and recognizes only one member of each couple as the legal parent to their children. Ohio even cruelly refuses to recognize Petitioners‘ marriages on death certificates when one spouse dies. Through its marriage recognition bans, Ohio strikes out at a class of individuals whose intimate, personal relationships have been afforded a solemn and special status by other states—men and women who love and marry a person of the same sex.
We call on the court to strike down the marriage bans because, among other things, “No more children should be demeaned by states like Ohio; no more loving spouses should die without the dignity that accompanies respect for their marriages, while the democratic process grinds its slow way towards justice.”
Jim and John had to wait too long to marry because the government thought it permissible to treat people different because of their sexual orientation. As Jim explained at the very first hearing in his case:
[T]his is about more than money or benefits. John will die soon. I love him deeply; more than any other person on earth. I want the world to know that we share the highest commitment two people can make to each other in our society. I recently reviewed a blank death certificate. When John dies he should be listed as married on that document and I should be listed as his surviving spouse. This is the last official record of his life. It breaks my heart to think that this record would omit the most important fact of his life – our marriage.
Now at the steps of the Supreme Court, with the nation watching, we fight for Jim and John, for Edie and Thea, for all the brave couples, families, widows and widowers who have dared to tell their love stories and fight for the rest of us.
By Lindsay Nash, Skadden Fellow, Immigrants' Rights Project
Inside the family detention facilities in Karnes County and Dilley, Texas, hundreds of women wait, wondering what the English-only documents say, whether anyone will help them present their asylum cases, and how to care for their children and themselves in the prison-like environment.
Family detention is extremely costly to taxpayers, profits private prison companies, violates due process, and has led to the deaths of children deported to Central America. If the Department of Homeland Security (DHS) appropriations bill passes as is, DHS would receive $362 million to continue to imprison thousands of mothers and children.
A look into DHS’s new family detention facilities shows why we cannot let this happen.
I spent 12 days meeting with more than 30 detained mothers and children at DHS’s new privately owned and operated family detention centers in Texas. In the roll-out of these facilities, DHS made a significant effort to rebrand them as “family-friendly.” “Detainees” became “residents” who are “housed” rather than “detained” in these massive detention complexes. Even the “guards” became “resident assistants.” Fortunately for the government, few make it out to the remote areas where these facilities are located and, consequently, few see the actual conditions in which these women and children are held.
From the outside, the family detention center in Karnes looks like a penitentiary, foreboding and impenetrable in the dusty oil fields of Karnes County. Inside this facility run by the GEO Group – a for-profit prison corporation – over 500 mothers and children are detained behind cinderblock walls and sally port doors. They are subjected to restrictions on every aspect of their daily lives, most troublingly on the way they care for their children. Virtually every mother I interviewed told me that her child or children would not eat and that the water tasted so strongly of chlorine that they rarely drank it.
And notwithstanding the intense security measures, the women and children that I interviewed still did not feel safe. One woman reported feeling terrified at night because detainees cannot lock the doors to their cells and that she often awoke screaming, with visions of her persecutors in her room with her. Others reported that their teenage children had become afraid to sleep alone and crawled into bed with their mothers each night.
The physical toll on the detained children was especially alarming.
During one of my first visits to Karnes, I met Maile, a young mother who was desperate to see me – or anyone – who could help her. She needed a lawyer to explain what was happening in her immigration case and why she and her children had been detained for more than two months. But the more pressing issue for her was Elana, her young daughter, who sat listlessly, staring vacantly at the wall with dark circles under her eyes. Elana had changed since their detention and was receding from the world. Large chunks of her hair had started to fall out and no one at the prison knew why. Maile was therefore considering a decision that no mother should have to make: She wanted to know how to get her daughter out, even if that meant being separated from her child. Sadly, Maile was not the only mother who asked me this question.
Being detained at Karnes also impairs the women’s access to legal counsel and ability to care for their children. To meet with counsel, mothers often have to bring their children with them to the legal visitation room. This means that mothers concerned for their children’s emotional health cannot fully describe the dangerous – and often sexualized – persecution from which they fled. These conditions make attorney-client meetings difficult and time consuming.
It took several interviews with Amalia, a young mother detained at Karnes, to get her full story. At our first meeting, Amalia explained that Lolia, her daughter, was in turmoil after witnessing men repeatedly sexually assault her mother. Since they arrived at the detention center, Amalia had been punished for Lolia’s acting out. We cut our meeting short so that we could continue without Lolia present. However, Lolia came to our second meeting and was clearly very ill. Her eyes looked glassy, her hair was stringy, and she leaned on the table, lifting her head only to cough. Amalia picked up Lolia’s matted hair, explaining apologetically that Lolia had been vomiting as they waited several hours at the medical clinic that morning. Eventually, Lolia’s coughing became so severe that I worried she might choke.
“Do you want to give her some tea?” I asked. Amalia looked at me blankly and said, “We can’t, we are only given cold water.” When I asked three guards idling in the visitation area for hot water for Lolia, they refused and said that Amalia and her daughter would have to return to the clinic – and presumably wait another few hours. Because Amalia couldn’t give up a rare opportunity for legal counsel, she simply drew Lolia close, rubbed her back, and continued to describe the brutal rape and beatings from which she and Lolia fled. As a mother detained at Karnes, she had little choice but to do this.
In contrast to Karnes, the facility in Dilley, Texas, doesn’t look like a traditional prison. Instead, this sprawling ex-labor camp, encircled by a chain-link fence resembles an internment camp. The Dilley facility, run by the for-profit Corrections Corporation of America through a contract with Eloy, Arizona, is remote and still under construction. Once completed, it will hold 2,400 women and children.
As I approached the trailer where legal visits are held, I saw a young boy. He sat in the foyer, swinging his legs and plaintively asking “Cuando vamos a ir?” – “When are we going to leave?” – in an endless loop as his mother spoke to the guards.
What is most surprising about the visitation center in the facility is that it looks utterly untouched. I noticed, and continued to note over the course of four trips, the complete absence of attorneys. Unsurprisingly, word spreads like wildfire when there’s any attorney around, and I spoke to more women than planned. I unfortunately couldn’t answer their most pressing question: What do I have to do to get an attorney here?
Nor are there good answers for attorneys who want to help. The Dilley facility is far from any major cities. Attorneys who are able to make the trip will find it difficult to confirm that they can see their client before driving hours to the detention center. My many calls to the main facility number to get confirmation were rarely unanswered. The facility’s isolation makes the representation crisis acute. If, as DHS intends, Dilley’s population will increase six fold by the end of 2015, it will be yet another example of DHS’s enforcement tactics creating a “crisis squared.”
There’s nothing “friendly” about how the government is treating children and mothers fleeing brutal violence and seeking protection in the U.S. As Sen. Patrick Leahy (D-Vt.) said during a Senate floor speech this week, opposing the new funding for family detention, “Incarcerating women and children fleeing violence runs contrary to our long history as a nation that offers refuge to those most in need.”
*The names in the blog have been changed to protect the identity of those listed.
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
The people have spoken. And, today, the Federal Communications Commission listened. A majority of FCC commissioners voted in favor of historically strong open Internet rules.
It appears they have done what the ACLU and other free speech groups have been suggesting for years: put net neutrality rules on firm legal footing to prevent large internet companies from using their market power to extract money from content companies that rely on their networks to reach Internet users.
But some in Congress are looking to roll back these protections. Tell them you won't stand for it.
These are key protections for free speech online.
As the Internet has grown from dial-up to broadband, the underlying telecommunications providers have become the "gatekeepers" between content providers like Google or Netflix and their consumers. Further, because few companies have the infrastructure to carry the vast amount of data we consume every day, there's not that much competition for high speed broadband. That gives these gatekeepers an enormous amount of economic power over the content and service side of the internet.
To check that power in the public interest, the FCC will "reclassify" Internet service under Title II of the Communications Act, which applies to things like landline telephone and wireless voice services. Doing so will very likely mean that the new rule will be sufficient to ensure that Internet service providers can't slow down lawful services, charge big companies extra to reach consumers faster on a digital fast lane, or block services that are either controversial or compete with the ISP.
Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel deserve major plaudits for voting in favor of these strong, and legally defensible, network neutrality rules.
Today's proposal will apply only those regulations that are absolutely necessary to address the problem, while still providing ample space in the market for broadband providers to invest in new capacity and to promote broadband adoption. That said, it's worth noting that there is at least one new rule we'll need to look at carefully. As our friends over at EFF explain, the proposal includes an "open internet conduct standard," which sounds quite vague and could result in undue regulation of the Internet in the future.
Also, despite today's good news, there's more work to be done. Some companies and trade groups are likely to challenge the rule in court, and Congress is also threatening to gum up the works. Legislation is pending that would gut the new rule, and one senator has gone so far as to call the regulations "Obamacare for the internet."
The FCC did something very rare in Washington this week. It did the right thing by listening to the millions of Americans – including tens of thousands of ACLU supporters – that demanded a free and open internet. And it also made an awfully shrewd political move. Although the large broadband providers have pilloried the commissioners who voted for the rule today, a vastly more powerful constituency, the American public, is foursquare behind the commission.
There's a great line in the movie Serenity: "If you can't do something smart, do something right." The FCC did both today.
By Galen Sherwin, ACLU Women's Rights Project
Late last year, Shahzeen Karim, an Illinois attorney and applicant to the Texas bar, tweeted: "Real time: Told TX #barexam will not accommodate me nursing/pumping my baby, due Feb 7th. Option? Pump in bathroom during break for 3 days."
Needless to say, she did not view this as an acceptable option – and she decided not to take "no" for an answer.
The Texas bar exam was scheduled less than three weeks after her baby was due. She wasn't certain she was going to be sitting for the exam at all, given how close it was to her due date. Because Shahzeen has another child whom she breastfed, she knew that her newborn would just be establishing a breastfeeding schedule and that she would likely be nursing around the clock. But at least she wanted to have the option of taking the test if everything went well.
If this was going to work at all, Shahzeen knew she would need to pump breast milk during the grueling, multi-day exam. If not, she would be in serious pain and at risk of infection (which is what happens if breastfeeding moms don't pump when their babies would normally nurse). She would also run the risk of not having enough milk for her baby while threatening her milk supply.
Furthermore, Shahzeen would need additional break time to take care of other necessities (like eating and going to the bathroom—you, know, details) and a private place so she could pump in peace. She did not want to have to go through the experience of pumping on the floor of a public restroom, while all the other test-takers lined up waiting for a stall during the allotted break period – an experience not exactly conducive to either pumping or excelling on grueling licensure examinations like the bar.
Shahzeen had also heard that the Illinois Board of Bar Examiners had just granted another woman, Kristin Pagano, the same type of accommodations for nursing. After receiving a letter from the ACLU of Illinois, the board decided to go further and change their policies so that anyone who needed this type of testing modification would receive it.
So Shahzeen promptly sent a letter to the Texas Board of Law Examiners, making the case for why she should be allowed additional break time and a private place to pump breast milk. And her letter did the trick – the board agreed to grant her the accommodations she requested.
She tweeted, "Ecstatic! TXBd approved my nursing accommodation during the #barexam. Big thanku 2 @KPaganoEsq 4 paving the way in IL! #pregnant&winning" and "thank u to the @ACLU for offering their help! Hopefully more nursing mothers won't hv 2 put their careers on hold for any more exams!"
But Shahzeen is not stopping there. Like Kristin Pagano, she wants the Texas Board of Law Examiners to make the same accommodations available to all applicants who need them – that's why she reached out to the ACLU for help.
On Monday, we sent a letter to the Texas Board of Law Examiners asking them to change their policies on granting accommodations for pumping – and, like Shahzeen, we won't take "no" for an answer.
Lend your voice in support by signing this petition.
Do you have a story about needing accommodations for pumping during a standardized or licensure test? Tell us your story!
By Julia Harumi Mass, Staff Attorney, ACLU of Northern California & Hugh Handeyside, Staff Attorney, ACLU National Security Project
The federal government will have to produce information on a vast and secret domestic surveillance program and defend the program's legality in open court. That's the result of a decision issued Friday by the federal judge presiding over our lawsuit challenging the Suspicious Activity Reporting program, part of an ever-expanding domestic surveillance network established after 9/11.
The program calls on local police, security guards, and the public — our neighbors — to report activity they deem suspicious or potentially related to terrorism. These suspicious activity reports ("SARs" for short) are funneled to regional fusion centers and on to the FBI, which conducts follow-up investigations and stockpiles the reports in a giant database that it shares with law enforcement agencies across the country.
The decision is significant.
Surveillance programs have largely been shielded from judicial review, as many courts have accepted the government's position that people cannot prove they have been under surveillance, and thus lack standing to sue. In this case, we represent clients who were confronted by law enforcement or know that SARs were uploaded to a counterterrorism database based on their entirely lawful activity. The government will now have to turn over information about a program that has never been subject to public scrutiny.
The problems with the Suspicious Activity Reporting program are manifold, beginning with the fact that government doesn't require reasonable suspicion of criminal activity — an already low threshold — for a SAR to be maintained and shared. That violates a binding federal regulation, which is part of the basis for the lawsuit.
Because the government's loose standards define practically anything as suspicious, SARs end up targeting innocent, First Amendment-protected conduct and inviting racial and religious profiling. Some of our clients, who you can read about here, have been reported for taking photographs. We believe that others were targeted because of racial or religious bias.
The SARs program calls to mind another initiative that is currently all the rage within the government: countering violent extremism, or "CVE." A key part of the CVE initiative would encourage teachers, religious leaders, and even parents to monitor and report to law enforcement individuals at potential risk of drifting toward violent extremism. Like the SAR program, the CVE initiative uses vague, expansive guidelines to decide what should be monitored — factors that can include expressing political or religious beliefs. Under CVE, normal teenage behavior could be an indicator of the potential to engage in terrorism.
The National Counterterrorism Center has even proposed a system for rating individuals on things like "connection to a group identity," families on "parent-child bonding," and communities on access to health care and social services, in order to produce a numerical score reflecting the risk of "susceptibility to engage in violent extremism."
Reducing individuals, families, and communities to a risk score based on subjective assessments of their health and well-being – or perfectly innocuous activity – is both repugnant and unsupportable. Like many of our nation's post-9/11 national security programs, and despite assurances to the contrary, the focus of the CVE initiative has clearly been on American Muslim communities, increasing the stigma to which they have been subjected and their distrust of law enforcement.
Friday's ruling in our SARs challenge is a step toward transparency and accountability. We'll now have the opportunity to seek information from the government on the scope and effects of the SARs program — an opportunity the public should have had before the program was implemented. All indications are that the CVE initiative requires the same public scrutiny too.
By Carl Takei, ACLU National Prison Project
Originally posted on The Marshall Project.
Life inside the infamous Willacy immigration prison.
No one who has been to Willacy County Correctional Center or the other dozen private, for-profit "criminal alien requirement" prisons around the country could have been surprised by this weekend's riot. As many as two-thirds of the men incarcerated at Willacy refused to participate in work details and then set fire to three of the ten housing tents, apparently in protest of poor conditions.
The Management & Training Corporation — the nation's third-largest private prison company — houses most of the roughly 2,800 men at Willacy not in buildings, but in ten Kevlar tents that contain all but a few hundred of the prison's approximately 3,000 beds. You get a cell only if you're sent to solitary, which can happen for no reason other than that there are too many prisoners to fit in the tents (each tent is filled with about 200 closely-spaced bunks).
The CAR detention center, outsourced by the federal Bureau of Prisons, house low-custody (i.e., those whom the authorities consider generally well-behaved), non-U.S. citizens who are serving sentences for federal crimes. They essentially fall into two groups of people: immigrants serving time for drug offenses, and immigrants serving time for the felony of reentering the United States after they had previously been deported.
There are thirteen CAR prisons holding around 25,000 people nationwide, spread across Georgia, Mississippi, New Mexico, North Carolina, Oklahoma, Pennsylvania, and Texas. The amount of time people spend in the facilities varies widely depending on why they landed there. Sentences for illegally reentering the United States average around 18 months. Thanks to mandatory minimums, prisoners serving sentences for drug offenses can spend decades in a CAR prison.
In 2013, I visited Willacy to interview prisoners as a part of the ACLU's report on the five CAR prisons in Texas. The 2014 report was based on nearly five years of interviews and document review. We found that men held in these private prisons are subjected to shocking abuse and mistreatment, including getting thrown into isolation cells for complaining about bad food and poor medical care, being denied both urgent and routine medical care, and being cut off from contact with their families. Bureau of Prisons policies also exclude immigrants from many types of rehabilitative programs — schooling, vocational training, and the like.
At Willacy, the men we spoke to described squalid and overcrowded conditions in the prison's tents, with insects crawling into their bunks and malfunctioning toilets constantly backing sewage water into the living areas. When people protested to get the toilets fixed, the protest leaders were locked in isolation cells.
The Bureau of Prisons' contracts with private prison companies have contributed to such circumstances by exempting the companies from complying with most bureau policies, creating financial incentives to overcrowd the facilities up to 115 percent of the originally contracted capacity, and setting perverse incentives to overuse solitary cells. For the last decade, the contracts have had a quota requiring at least 10 percent of the prison to be devoted to isolated confinement, which is nearly double the percentage of prisoners kept in isolated confinement at facilities managed by the Bureau of Prisons. (Last summer the bureau reduced the quota to 5 percent.) The social media comments from Management & Training Corporation guards and former guards suggest that a toxic corporate culture may also be to blame.
MTC built Willacy in 2006 as an Immigration and Customs Enforcement (ICE) detention facility to hold people in civil deportation proceedings. Following widespread condemnation by nonprofit organizations and a Frontline report about sexual abuse at Willacy that included multiple allegations of guards forcing themselves on detained women, ICE ended its contract. But barely a month after the last detainees left, MTC announced that it had signed a new, $532-million contract with the Bureau of Prisons to reopen as a CAR prison.
CAR prisons didn't exist before 1999, but the program has grown rapidly as the lines between immigration enforcement and the federal criminal justice system have grown increasingly blurred. Traditionally, federal authorities handled immigration cases through the comprehensive enforcement scheme available under civil immigration laws. In the past decade, however, new federal policies demanding aggressive use of the criminal justice system for immigration enforcement have caused the number of criminal prosecutions for unlawful border crossing to skyrocket. The tipping point came in 2009 when, for the first time, more people went to federal prison for immigration offenses than for violent, weapons, and property offenses combined. Between October 2012 to September 2013, more than half of all federal criminal prosecutions initiated nationwide were for illegally entering or reentering the United States.
If ICE's civil detention system is closed to outsiders and too often evades sunlight, then the CAR prisons exist entirely in the shadows. Although the isolated locations of ICE detention facilities often make it difficult for attorneys and family members to meet with detainees, the situation is far worse at CAR prisons. At one, the warden denied the ACLU's request for attorney visitation with a curt letter demanding to know why our meetings with prisoners "might be appropriate" and asserting that the Bureau of Prisons' policies allowing confidential attorney visits "do not apply at this facility." (His intransigence was rewarded; later that year, the warden was promoted to a managing director position at his private prison company.)
When we were able to interview prisoners, they described not only abuse and mistreatment, but a system that made it difficult or impossible for them to even complain about their mistreatment. Grievance systems often allowed no appeals above the private prison warden. Some staff refused to accept grievance forms written in Spanish — a particularly effective way of quashing grievances for a population of largely Latino immigrants. Many prisoners reported that they were threatened with solitary confinement — and in some cases, actually thrown in isolation cells—for assisting others with drafting grievances or filing lawsuits.
And the Bureau of Prisons' oversight mechanisms offer little protection. In one case, the agency renewed a private prison contract even after its own monitors noted that the prison was "unable to successfully achieve their own plans of action to correct deficient areas." The conclusion: "Lack of healthcare has greatly impacted inmate health and wellbeing." Since then, the ACLU has continued to receive reports of medical understaffing, the spread of contagious diseases, policies that obstruct access to medical care, and even deaths at this prison.
As Martin Luther King, Jr. observed in a different context, "a riot is the language of the unheard." Willacy is the third CAR prison to experience a major uprising in the past several years. In 2009, prisoners at a CAR prison in Pecos, Texas, took guards hostage and set fire to the prison to protest the death of Jesus Manuel Galindo, who died from a seizure while in solitary confinement. In 2012, prisoners at a CAR prison in Natchez, Mississippi, rioted and killed one guard after their protest of bad food, poor medical care, and mistreatment by staff spiraled out of control.
The same perverse incentives to cut corners, and the same silencing of prisoners, exist at each CAR prison; any one of them could be the site of the next major uprising.
By Marshall Thomas, ACLU Criminal Law Reform Project
That's the number of people imprisoned in America's jails "on any given day," according to the Vera Institute of Justice's new report on America's swollen jail system. While too little attention has been paid to the size and deplorable conditions of our prisons, even less light has been cast on the ills of our nation's jails.
Stuck in jail and awaiting trial, the Vera report provides a sharp reminder that thousands of Americans – disproportionately people of color – are lost in the criminal justice maze without much hope of escape.
In theory, jails are meant to house narrow categories of arrestees: those considered too dangerous to release, those determined to be flight risks, and those serving a short sentence. (Though commonly conflated, prisons are different from jails in that they almost exclusively house people serving sentences of over one year.) Yet according to the report, 75 percent of people in jail are detained for nonviolent misdemeanors, namely small-scale drug possession, petty theft, or minor property damage. These are hardly the people we need to keep locked up.
Defenders of the status quo might think that the majority of our jail population is made up of people who have already been convicted. But that isn't the case either. In fact, 62 percent of people in jail have not yet been proven guilty. So if they're not dangerous, and they're presumed innocent, why are they languishing in a jail cell?
Too often, the answer is directly related to poverty, not public safety.
Insurmountable financial obstacles are key contributors to the rise in jail populations. For one, low-income defendants are often trapped by their inability to afford bail. Bail should not be used to punish people, and incarcerating people solely because they cannot pay for their release violates the 14th Amendment's equal protection clause.
Bail's primary purpose is to ensure that the accused appear in court, but bail figures often wildly surpass the amount needed to accomplish that goal. The Vera report notes that in New York City in 2013, "more than 50% of jail inmates held until case disposition remained in jail because they could not afford bail of $2,500 or less. Most of these were misdemeanor cases."
Furthermore, the average bail amount for felony defendants jumped 43 percent from 1992 to 2009, despite the absence of empirical evidence supporting the need for higher bail. What's worse, bail amounts are not necessarily set in relation to an individual's ability to pay; rather, they are often arbitrary and even, at times, unconstitutionally determined only by a fixed bail schedule.
Beyond bail, unfair fees and fines – and the rising trend of "offender-funded" justice – act as another set of bars keeping defendants locked up. A rash of state and local governments have responded to budget squeezes by forcing the costs of courts and jails onto defendants, charging them for services like room and board in jail, medical care, and even the use of a public defender. (These practices imitate those of private probation, detention, and bail bonds companies.) The people accused of crimes in state and local courts are often the people for whom these costs impose the greatest financial hardship.
Indeed, for many, poverty is at the root of their involvement in the criminal justice system in the first place, as shown in the Vera report, a recent ACLU lawsuit in Georgia, and elsewhere. As a result, an inability to pay these fees and fines needlessly keeps poor defendants in jail — or sends them back — while their richer counterparts walk free because they can afford proper representation. Adding to these injustices, as with so many criminal justice, economic, and social policies, the myriad problems with our jail system disproportionately harm communities of color.
The Vera report is chock full of local success stories and practical recommendations, from simply making fewer arrests to establishing pretrial diversion programs to reforming the burdensome monetary obligations discussed above. In addition, we can help reduce jail populations by strengthening indigent defense systems to ensure that anyone facing deprivation of their liberty is promptly afforded appointed counsel that can help them obtain release. The loss of human capital as a result of our current system is too costly for America to bear – these people have the potential to be activists, educators, and parents. We should harness that potential rather than quashing it.
Most people in jail aren't dangerous, and they can be expected to show up to court. Yet every day tens of thousands of people – presumed innocent – are being incarcerated unnecessarily and unfairly while awaiting resolution of their case. With the right reforms, we save money, reduce the enormous harm caused by unwarranted detention, and lower our jail populations, allowing many of the 731,000 people waiting in jail right now to return to their homes and families.
By Jamil Dakwar, Director, ACLU Human Rights Program
Should we take the Department of Justice's word on how federal prosecutions of police officers are being conducted and resolved, or do we need to see the data?
After a police officer is accused of a crime and the Department of Justice decides to investigate, virtually no data is available on how many officers are convicted or dismissed of these charges – or even what crimes police were charged with in the first place.
Recently during a hearing before the Inter-American Commission on Human Rights, U.S. Attorney of the Southern District of Ohio Carter Stewart stated:
In the past 5 fiscal years, the Department of Justice's Civil Rights Division has opened over 20 investigations into police departments to address unconstitutional policing practices—more than twice as many investigations than were opened in the previous 5 fiscal years… In addition to this civil work, we have criminally prosecuted 337 individual police officers for misconduct in the last 5 years. The Department believes in broad reform as a key tool to addressing racial tensions in the justice system.
While the Department of Justice provides detailed information on its pattern and practice investigations and settlements against police departments, very little data or documents have been provided to back up the numbers of federal criminal civil rights prosecutions or to see how they have changed over time.
The ACLU, in the fight for transparency and police reform, filed a Freedom of Information Act request with the Justice Department. The request is in search of information regarding the number of federal criminal civil rights prosecutions, including convictions, acquittals, and dismissal of charges brought against police officers within the last five years. Among other records and documents, the request demands data related to federal prosecutions for excessive use of force and killings of people of color and persons with mental disabilities.
In addition to the ACLU's work, the U.N. has been very critical of the Justice Department's failure to provide further information or statistics on the details of criminal civil rights prosecutions of police officers.
While noting the information provided by the delegation that over the past five years 20 investigations were opened into allegations of systematic police department violations, and over 330 police officers were criminally prosecuted, the Committee regrets the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations.
There remains an urgent need for national comprehensive data on police use of force and accountability measures taken to combat impunity. Providing more data regarding federal prosecutions involving police officers who abuse their power is a critical step toward building a culture of transparency and accountability for policing in America and helps the U.S. comply with its international human rights obligations, especially concerning policies and practices around the use of force by law enforcement officers.
Americans put a lot of faith in police. The Department of Justice should reward it by assuring the public that it does its very best to remove police officers from the job who can no longer be trusted with a badge and a gun. Democracy and public safety demand it.