Bigotry Backfires: How a Serious Threat to LGBT Equality Has Turned into an Asset

Last week, Indiana brought a startling transformation: The primary tactic of opponents of LGBT equality turned instead into a driver of LGBT equality all across the country. 

Over the past several years, opponents of LGBT equality have pushed so-called “religious freedom” laws as their Plan B since their Plan A – just stopping us from winning marriage equality and nondiscrimination protections – is no longer working. These bills aim to give individuals and organizations a license to discriminate against LGBT people and others, all in the name of religion. It’s a strategy we’ve seen before in the context of race, sex, and reproductive rights. Our opponents have put their all into these discriminatory bills, pushing them in 22 states this year. 

But last week in Indiana, Gov. Pence made national headlines when it became clear that the “religious freedom” law he signed was intended to authorize anti-LGBT discrimination. The outcry not only prompted a partial rewrite of the law, but it also included a chorus of national business leaders calling for affirmative LGBT non-discrimination protections nationwide. Our opponents’ primary tactic for undermining our equality has instead begun to highlight for the entire country that LGBT discrimination exists and that LGBT people lack the same civil rights laws that protect many other communities. 

That’s a watershed moment for our movement. 

This fight isn’t over, since we didn’t get affirmative statewide protection from LGBT discrimination in Indiana, and the revised “religious freedom” law still could authorize people to use religion to discriminate or cause harm, including against LGBT people in contexts like schools and access to health care. But the country’s new understanding that these so-called religious freedom laws are designed to authorize discrimination has helped us defeat similar proposals in Georgia and Nevada, pare back another one in Arkansas, and has made prospects for passage much dimmer in North Carolina and Michigan. And the newly invigorated support for LGBT civil rights laws from the business community gives us hope of passing such laws in states and municipalities all across the country. (We’re also working for the day when the country rises up in the same manner against the ways these religious freedom laws can be used against all women.) 

The ACLU is proud to have had a central role in this moment, working with allies in Indiana and nationally. The ACLU of Indiana staffed Freedom Indiana, which was the public face of the LGBT rights movement there and led the successful effort to focus national attention on the state’s license-to-discriminate law. And we worked with our affiliate offices in Arkansas, Georgia, and several other states to narrow or defeat similar bills. Finally, we’re working for LGBT non-discrimination protections in Arizona, Indiana, Florida, Ohio, and Pennsylvania. 

It’s not every day that we can turn a serious threat into an asset in our fight for equality. Last week was a tipping point for LGBT equality that we can all celebrate. 

The Internet of Kafkaesque Things

Last week I wrote about how the Internet of Things will provide an opportunity for various bureaucracies (corporate and governmental) to inject not only their information-gathering functions but also their rule-imposing functions ever more deeply into the technologies that surround us, and thus into our daily lives. In short, violating our privacy and increasing their control. But the situation is actually even scarier than that, because buried within the activity of "rule imposing" lies another function that is inherently a part of that: "judgment making." And a whole lot more trouble lies there.

As I argued last week, computers and bureaucracies share many similarities. Both take input in standardized form, process that data according to a set of rules, and spit out a result or decision.

But they also share similar weaknesses. Computers are mentally “stiff” and prone to laughable, child-like errors that even the dumbest human would never make. Computers can be mindless and inflexible, unforgetting and unforgiving, yet simultaneously quirky and error-prone. Bureaucracies are also notorious for their mindless application of rules and the dumb, irrational decisions that often result.

Both bureaucracies and today’s computers face the same fundamental limitation: they are unable to cope with the boundless variety of human life. Both try to jam the rich diversity of human life and individual circumstances into a finite set of rigid categories. But because human existence is so varied, individuals cannot be assured of fair treatment unless they can be judged according to their individual circumstances, on a case-by-case basis, by broadly intelligent, flexible minds exercising discretion. (I have touched on these themes in prior blog posts, including here and here.)

Judges and discretion

In the 19th century, American judges often envisioned themselves as kinds of computers or automatons, with the job of impersonally applying the law to individual cases, with no room for personal judgment. As legal historians have described, this naïve formalist view was challenged in the early 20th century by the more sophisticated Legal Realists, who understood what was to many a radical, mind-blowing concept: general rules cannot be applied to particular circumstances without the use of discretion. In other words, because general rules can never cover the vast variety of unique circumstances that crop up in real human life, applying those rules to a given case of any complexity can never be done objectively or automatically—there’s no escaping the need to use judgment. No algorithm will be sufficient, whether that algorithm is applied by a computer, a bureaucracy, or a 19th century judge.

Another way of putting it is that no matter how detailed a set of rules is laid out, no matter how comprehensive the attempt to deal with every contingency, in the real world circumstances will arise that will break that ruleset. Applied to such circumstances the rules will be indeterminate and/or self-contradictory. This is sort of a Godel’s incompleteness theorem of law.

As libertarian conservatives (such as Frederick Hayek and Ludwig Von Mises) pointed out, this insight poses a serious problem for the concept of the “rule of law not men.” How can the law be applied fairly, impartially, and predictably when we recognize that judges must use discretion to apply it? (And "judge" here means anyone who must apply or enforce rules in individual circumstances, including bureaucratic clerks and the cop on the beat as well as proper judges.) What is the difference between a judge free to exercise her own discretion, and a dictator? How can businesses and individuals act with the confidence that they understand the law when it can never be pinned down?

This is a knotty conundrum of administrative law (but one that won’t go away by trying to deny its existence as some conservatives would do). The way I think about it is that rules are like fractals: they have an undeniable basic shape, and there are always points that clearly lie inside their boundaries and points that clearly lie outside, but they’re fuzzy at the margins. From afar, those boundaries appear solid, but upon close examination they dissolve into an impossibly complex, ever-receding tangle of branches and sub-branches. And we must be alert to the possibility that even a point that appears to fall far inside or outside the boundary may not be what it seems.

So far the best that humans have come up with is what might be described as "guided discretion." First, judges must work within the core currents of the law, but apply their own judgment at the margins. Second, such discretion must be subject to review and appeal, which, while still vulnerable to mass delusions and prejudices such as racism, at least smoothes over individual idiosyncrasies to minimize the chances of unpredictably quirky rulings.

This duality—a rough, macro-level outline of hard law with soft individual judgment and discretion at the edges—is essential if we want individuals to be treated fairly. On the one hand, if we allow judges (or police officers, or clerks) to work without the guiding framework of law, they become nothing more than petty tyrants, and we become totally vulnerable to their racism or other prejudices, quirks, and whims. On the other hand, if we remove all discretion, the inevitable result is injustice, such as resulted in the United States when Congress took away judicial discretion over sentencing. (Just one example: a federal judge haunted by a 55-year-sentence he was forced to give a 24-year-old convicted of three marijuana sales. See also this discussion.)

As computers are deployed in more regulatory roles, and therefore make more judgments about us, we may be afflicted with many more of the rigid, unjust rulings for which bureaucracies are so notorious. The ability to make judgments, and account for extenuating circumstances, is one that requires a general knowledge of the world; it is what computer scientists call an "AI-complete problem," meaning that programming a computer go do them is basically the same problem as programming a computer with human-level intelligence.

Escape valves

For all their similarities, there's an important way that bureaucracies are actually the opposite of computer programs. Computers’ basic building blocks are exceedingly simple operations, such as “add 1 to the X Register” and “check if the X Register is bigger than the Accumulator.” Despite this simple machine-language core, when millions of those operations are piled one on top of one another, we get the amazingly (and often frustratingly) subtle and unpredictable behavior of today’s software. Preschool-level mathematical operations, when compiled in great numbers, together produce a mind far smarter than the constituent elements.

Bureaucracies’ building blocks, on the other hand, are highly intelligent human beings who, when assembled, form a mind that is often far dumber than its constituent parts. The madness of mobs is a cliché, but the same principle applies to the seeming opposite of a mob: the cold cubicles of a bureaucracy. It may be made up of intelligent beings, but the emergent intelligence that results from the interaction of those beings can be considerably less smart than any one cog in the machine, making judgments that any one member of the bureaucracy, if extracted from his or her role as cog, could instantly perceive as off-base.

Part of the reason is that humans who work in a bureaucracy are forced to limit the application of their intelligence—to become dumber. Max Weber, one of the first to think deeply about bureaucracy, noted that

Its specific nature . . . develops the more perfectly the more the bureaucracy is “de-humanized,” the more completely it succeeds in eliminating from business love, hatred, and all purely personal, irrational, and emotional elements which escape calculation.

A bureaucrat is a person who is more dedicated to the operation of the machine—the process—than to the substantive goal to which the machine is supposed to be dedicated. The legal equivalent is the judicial conservative who, terrified of admitting any role for discretion, is more committed to “procedural due process” than to “substantive due process”—i.e. if the guy got a proper trial, then it is not a justice’s job to care whether or not he might actually be innocent before we execute him. For a computer, of course, there is nothing BUT process—there is no question of caring about substantive ends because computers don’t know anything about such things.

Bureaucracies are constituted by humans, however, and not all humans cower in the illusory shelter of objective process. As a result, bureaucracies often have something that computers do not: logical escape valves. When the inevitable cases arise that break the logic of the bureaucratic machine, these escape valves can provide crucial relief from its heartless and implacable nature. Every voicemail system needs the option to press zero. Escape valves may take the form of appeals processes, or higher-level administrators who are empowered to make exceptions to the rules, or evolved cultural practices within an organization. Sometimes they might consist of nothing more than individual clerks who have the freedom to fix dumb results by breaking the rules. In some cases this is perceived as a failure—after all, making an exception to a rule in order to treat an individual fairly diminishes the qualities of predictability and control that make a bureaucratic machine so valuable to those at the top. And these pockets of discretion can also leave room for bad results such as racial discrimination. But overall they rescue bureaucracies from being completely mindless, in a way that computers cannot be (at least yet).

The Internet of Kafkaesque Things

The bottom line is that the danger is not just that (as I discussed in my prior post) we will become increasingly subject to the micro-power of bureaucracies as computer chips saturate our lives. There is also the danger that the Kafkaesque absurdities and injustices that characterize bureaucracies will be amplified at those micro levels—and without even being leavened by any of the safety valves (formal or informal) that human bureaucracies often feature.

And the situation gets even worse. Just as applying general rules to specific circumstances inevitably involves discretion, so does translating human rules and policies into computer code. As Danielle Citron details in a fascinating paper entitled "Technological Due Process," that process of translation is fraught for a variety of reasons, including:

  • The alien relationship between human language and computer code.
  • The fact that like all translations, the process requires interpretative choices.
  • The biases of programmers.
  • Programmers' policy ignorance.
  • The fact that real-world institutions may also have pragmatic, informal "street-level" policy practices to fix the more obvious contradictions or blind spots in a written policy, and those practices may not be reflected in computer code.

Looking as a case study at how the Medicaid program has been administered via computer rules, Citron describes the numerous problems, distortions, and injustices that resulted as the administration of the program was shifted to computers.

Overall, in a world where room for some discretion is vital for fair treatment, the mentally stiff and inflexible nature of computers threatens to extend the infuriating irrationalities of bureaucracies deep into our daily lives. But the interesting question is this: as our computers become increasingly intelligent—less mentally stiff and inflexible—what effect that will have on this situation? Some speculations on that in a future post.

Discrimination Is Written Into the Fabric of Ferguson’s Government

Discrimination in Ferguson works in not-so-mysterious ways. 

As the Department of Justice reported, the police disproportionately stop and impose fines on African-American drivers, forcing them into an odious obstacle course that can lead to deep debt or imprisonment. Regardless of whether officers act with intentional or subconscious bias, their actions perpetuate inequality among Ferguson’s residents. 

The same holds true for Ferguson-area elections, which will be held tomorrow.

The systematic bias in local elections may not be intentional, but the lived result is no less real. African-Americans have been consistently underrepresented in local government, in part because the electoral system puts African-American voters at an unlawful disadvantage by diluting the power of their vote.  

In particular, the ACLU has challenged  the Ferguson area’s school board election system as racially discriminatory, charging that the elections are structured to dilute African-Americans’ votes and prevent African-American voters from electing the candidates of their choice.

Here’s how “vote dilution” works when Ferguson residents vote for their school board representatives. Ferguson-Florissant School Board members are elected “at-large,” meaning each of the seven school board seats is elected by the entire district, instead of “single-member,” which would allow voters to elect a representative to a particular seat designated to their neighborhood.  As a minority of the voting age population, African-American voters are systematically unable to elect the candidates of their choice because they are a minority with regard to all board seats.  If board members were elected using single-member districts, African-American voters would have a majority in some single-member districts and would consistently be able to elect candidates of their choice to seats on the board.

Not surprisingly, the Ferguson-Florissant School Board has had few African American members and is currently comprised of six whites and one African-American, even though many neighborhoods are majority African-American and the student body is 77 percent black.

Zooming out, we can understand how the historic trajectory of discrimination in the Ferguson area created this disadvantage. Explicitly discriminatory laws, such as housing and school segregation, created lasting inequality in access to housing, education, employment, and other resources. Although current laws are facially neutral, and do not expressly differentiate by race, they reinforce historically entrenched patterns of discrimination and perpetuate resource disparities and segregation. Even though discrimination no longer shows up on the face of a statute, in the context of voting and elections, the failure to account for persistent, documented inequity is often discriminatory in and of itself.

Tomorrow, Ferguson’s citizens will go to the poll to vote in local elections. But true representative democracy in Ferguson requires reforming its electoral system to ensure that all citizens’ voices can be heard.

Discrimination Is Written Into the Fabric of Ferguson’s Government

Discrimination in Ferguson works in not-so-mysterious ways. 

As the Department of Justice reported, the police disproportionately stop and impose fines on African-American drivers, forcing them into an odious obstacle course that can lead to deep debt or imprisonment. Regardless of whether officers act with intentional or subconscious bias, their actions perpetuate inequality among Ferguson’s residents. 

The same holds true for Ferguson-area elections, which will be held tomorrow.

The systematic bias in local elections may not be intentional, but the lived result is no less real. African-Americans have been consistently underrepresented in local government, in part because the electoral system puts African-American voters at an unlawful disadvantage by diluting the power of their vote.  

In particular, the ACLU has challenged  the Ferguson area’s school board election system as racially discriminatory, charging that the elections are structured to dilute African-Americans’ votes and prevent African-American voters from electing the candidates of their choice.

Here’s how “vote dilution” works when Ferguson residents vote for their school board representatives. Ferguson-Florissant School Board members are elected “at-large,” meaning each of the seven school board seats is elected by the entire district, instead of “single-member,” which would allow voters to elect a representative to a particular seat designated to their neighborhood.  As a minority of the voting age population, African-American voters are systematically unable to elect the candidates of their choice because they are a minority with regard to all board seats.  If board members were elected using single-member districts, African-American voters would have a majority in some single-member districts and would consistently be able to elect candidates of their choice to seats on the board.

Not surprisingly, the Ferguson-Florissant School Board has had few African American members and is currently comprised of six whites and one African-American, even though many neighborhoods are majority African-American and the student body is 77 percent black.

Zooming out, we can understand how the historic trajectory of discrimination in the Ferguson area created this disadvantage. Explicitly discriminatory laws, such as housing and school segregation, created lasting inequality in access to housing, education, employment, and other resources. Although current laws are facially neutral, and do not expressly differentiate by race, they reinforce historically entrenched patterns of discrimination and perpetuate resource disparities and segregation. Even though discrimination no longer shows up on the face of a statute, in the context of voting and elections, the failure to account for persistent, documented inequity is often discriminatory in and of itself.

Tomorrow, Ferguson’s citizens will go to the poll to vote in local elections. But true representative democracy in Ferguson requires reforming its electoral system to ensure that all citizens’ voices can be heard.

Bishops’ Policy for Immigrant Teenagers: Sorry You Were Raped, but We Won’t Help You

This piece originally appeared at The Washington Post's PostEverything

Indiana isn’t the only place where people want to use their religious beliefs to discriminate against others. Currently, the United States Conference of Catholic Bishops receives millions of dollars from the federal government to provide care to the surge of children and teenagers who have crossed the U.S. border alone, often fleeing torture and abuse in their home countries. These are some of the most vulnerable people in the United States, and their journeys are often terrifying, particularly for girls and women, up to 80 percent of whom are sexually assaulted. Nevertheless, the bishops refuse to provide teens with critical reproductive health care — such as emergency contraception and abortion — as required by U.S. law.

The Catholic organization insists that laws protecting religious freedom mean that the government must continue to award it millions of dollars in contracts — $73 million overall and $10 million to care for unaccompanied minors in 2013 alone — even though it says it won’t provide all the services stipulated in the contract and required by law.

That’s a big problem. Today, my team at the American Civil Liberties Union filed a lawsuit to uncover how the bishops’ policy is working. Six months ago, we asked the government to share documents about how often religious organizations refuse to provide reproductive care — and what measures teen refugees and immigrants are forced to take to get that care. The government has not answered that request and repeated inquiries under the Freedom of Information Act. We’re suing for this important information because when you contract with the government, the public has a right to know if you’re not following the rules.

To finish reading, please click here

These are some of the most vulnerable people in the U.S., having often fled torture and abuse in their home countries.

Bishops’ Policy for Immigrant Teenagers: Sorry You Were Raped, but We Won’t Help You

This piece originally appeared at The Washington Post's PostEverything

Indiana isn’t the only place where people want to use their religious beliefs to discriminate against others. Currently, the United States Conference of Catholic Bishops receives millions of dollars from the federal government to provide care to the surge of children and teenagers who have crossed the U.S. border alone, often fleeing torture and abuse in their home countries. These are some of the most vulnerable people in the United States, and their journeys are often terrifying, particularly for girls and women, up to 80 percent of whom are sexually assaulted. Nevertheless, the bishops refuse to provide teens with critical reproductive health care — such as emergency contraception and abortion — as required by U.S. law.

The Catholic organization insists that laws protecting religious freedom mean that the government must continue to award it millions of dollars in contracts — $73 million overall and $10 million to care for unaccompanied minors in 2013 alone — even though it says it won’t provide all the services stipulated in the contract and required by law.

That’s a big problem. Today, my team at the American Civil Liberties Union filed a lawsuit to uncover how the bishops’ policy is working. Six months ago, we asked the government to share documents about how often religious organizations refuse to provide reproductive care — and what measures teen refugees and immigrants are forced to take to get that care. The government has not answered that request and repeated inquiries under the Freedom of Information Act. We’re suing for this important information because when you contract with the government, the public has a right to know if you’re not following the rules.

To finish reading, please click here

DHS Wants Contract for Access to Database of Innocent Drivers’ Locations

The Department of Homeland Security’s effort to get its hands on information about the road travels of all Americans is back. In a Privacy Impact Assessment (PIA) issued yesterday about a plan for using license plate reader data, Immigration and Customs Enforcement describes a plan to “procure the services of a commercial vendor of LPR information.” The agency pays lip service to public concerns about license plate readers and offers some improvements to the government’s current more or less unrestrained use of location tracking technology. It does not, however, remedy the fundamental civil liberties problems with such a project.

About a year ago, DHS cancelled its plan to purchase access to a nationwide automatic license plate reader database after its revelation triggered an outcry. The scope of what the government expected from this database had shocked the public and legislators: over two billion location data points, growing at a rate of 70 million scans per month, that were shared with and received from law enforcement agencies and private contractors across the country (although ICE field offices had paid the company Vigilant Video for location information for years and continue to do so).

It’s appropriate to use license plate scanners to check for wanted vehicles, but the technology should never be used to store up databases of the movements of vehicles that are not on any hot lists. Unfortunately, it’s just this kind of mass surveillance of movement that ICE’s proposal relies upon and encourages. The privacy assessment says that such data would be “useful” to ICE. No doubt that will occasionally be the case, as it would be with any surveillance technology used to record the activities of private citizens en masse—but it violates the longstanding tenet that the government not monitor citizens unless it has individualized suspicion of involvement in wrongdoing.

The bottom line is that DHS is incentivizing the growth of an industry whose business model is monitoring the location and movements of Americans en masse and selling it to the government. Whether by government or its contractors, such mass monitoring should not be done in the first place, and should not be encouraged by the government, and its results should not end up in the hands of the government.

If DHS pays a private company to collect data for it (turning that company into an agent of the government), the private company should be bound by the same policies, principles and law that the government would have to follow, if it were to do the work itself. The PIA makes it clear that this is not the case.

While the PIA describes how DHS will access data in a commercial database and transfer the data to its own database, the document does not address the many important decisions that the company makes about collection, accountability, retention, or others. For example, DHS may have a policy and protections against racial profiling (which we think are incomplete), but the PIA doesn’t suggest that Vigilant Video (the most likely company to receive this type of contract) will need one. It would be unconstitutional for an ICE agent to target a location for ALPR surveillance based on race or ethnicity, but the policies outlined in the PIA would not stop its contracted company from doing the same thing. Similarly, ICE may have policies against enforcement around sensitive locations like schools, but the PIA does not stop the contracted company from targeting those same areas for collection.

More notes from the Privacy Impact Assessment:

  • We object to ICE buying access to license plate reader data to further target immigration enforcement priorities that are not public safety or national security risks. There are many, many people targeted by ICE that should be neither locked up nor deported. This new contract would only further ICE’s mass deportation regime.
  • While it is good that DHS has placed any restrictions at all on how far back in time it can access location records, the limits are too narrow. Five years of location records will likely give law enforcement agents a detailed picture of someone’s life. And this is not a retention policy; the company can retain the records forever. The only limit is on DHS’ ability to query the data—and ICE can make exceptions to this policy and ignore the limits “if approved by a supervisor.”
  • The PIA requires the ability to audit DHS’ queries of the private database, but it does not create an audit for additions to a hot list. The document suggests that ICE will create a hot list that it will submit to the private database, which will automatically alert ICE if the plate is detected. DHS should require the same reporting for adding a license plate to the hotlist as it does for querying the database.
  • The PIA reminds the public that DHS still has no policy on the use of license plate reader systems that it owns and operates itself.
  • The PIA claims that two ICE field offices have current subscriptions to private LPR databases. This may be true currently but many more have had subscriptions or have attempted to get subscriptions.

Some positive notes from the PIA:

  • DHS recognizes that that license plate reader data is “Personally Identifiable Information” (PII). There shouldn’t be any doubt about this, but the International Association of Chiefs of Police disagrees.
  • The PIA suggests that investigators cannot query the database for a partial plate, or ask to receive a list of all license plates from a certain area or time period. This is an important protection that makes it harder for employees to conduct fishing expeditions.
  • The PIA recognizes that LPR data in aggregate may detail individual’s travel over time and provide details about an individual’s private life, such as frequenting a place of worship or participating in protest and meetings, thereby implicating constitutionally protected freedoms.
  • ICE says it will not be contributing data to the LPR database, and recognizes the importance of audits and accountability, and of regular review and "cleaning" of hot lists.

Everything That Is Wrong With U.S. Prisons in One Picture

A disturbing image hit the newswires this week, highlighting the barbaric conditions that are all too common in the American prison system. The photo shows a young prisoner in Georgia, who appears to be badly beaten, on his knees with a makeshift leash around his neck, while two other prisoners pose behind him, one holding the leash.

Incredibly, Georgia prison officials have focused their public reaction on the fact that the photo was apparently taken with a contraband cellphone, as if that were the cause of the brutality on display.

Although that fact is part of the narrative, it is not the story.

The real issue here is the apparently widespread and longstanding failure of Georgia officials to keep prisoners safe. In a 2014 report, the Southern Center for Human Rights documented horrifying incidents of violence that had taken place in Georgia prisons without the intervention, or in some cases even the knowledge, of prison staff.

American prisons hold hundreds of thousands of people serving time for nonviolent crimes. Indeed, there are over 3,000 U.S. prisoners serving sentences of life without parole for drug crimes and other nonviolent offenses. But some prisoners, at some times, do act out in violent ways. One of the most important duties of prison staff is to protect prisoners from attack by their fellow prisoners. The Supreme Court has made it unmistakably clear that such protection is required by the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishments. 

As the court put it, “Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’” This shocking photo graphically shows how officials all too often neglect this paramount constitutional duty. 

Sadly, Georgia is not an anomaly. 

In a 2011 case involving California prisons, the Supreme Court cited an incident in which a prisoner was beaten to death in a crowded gymnasium; staff were not even aware that the assault had taken place until the prisoner had already been dead for several hours. 

The ACLU has gone to court repeatedly, all across the country, to enforce prisoners’ fundamental right to basic safety – a constitutional guarantee no one should have to argue or fight for. One case involved a private prison in Idaho that had more assaults than the state’s other eight prisons combined, a grim distinction that had earned it the nickname of “Gladiator School.” Right now in Jackson, Mississippi, the ACLU is in federal court arguing that rampant violence at the privately run Walnut Grove Correctional Facility poses a lethal risk to the prisoners confined there.

Some people don’t care what happens to prisoners, believing that they deserve whatever they get.  But what’s done in our prisons is a powerful statement about the kind of society we are. Jonathan Simon, a criminal justice expert at the University of California-Berkeley, puts it this way:

“You have to ask yourself: If the basic story that we tell ourselves is that it’s all about laws and sending people to prison because they violated laws and harmed other people, how can we possibly justify sending them to a place where that is happening to them?” 

That’s a question that Georgia prison officials – and all of us – need to keep in mind.

Every prisoner has a fundamental right to basic safety.

Everything That Is Wrong With US Prisons in One Picture

A disturbing image hit the newswires this week, highlighting the barbaric conditions that are all too common in the American prison system. The photo shows a young prisoner in Georgia, who appears to be badly beaten, on his knees with a makeshift leash around his neck, while two other prisoners pose behind him, one holding the leash.

Incredibly, Georgia prison officials have focused their public reaction on the fact that the photo was apparently taken with a contraband cellphone, as if that were the cause of the brutality on display.

Although that fact is part of the narrative, it is not the story.

The real issue here is the apparently widespread and longstanding failure of Georgia officials to keep prisoners safe. In a 2014 report, the Southern Center for Human Rights documented horrifying incidents of violence that had taken place in Georgia prisons without the intervention, or in some cases even the knowledge, of prison staff.

American prisons hold hundreds of thousands of people serving time for nonviolent crimes. Indeed, there are over 3,000 U.S. prisoners serving sentences of life without parole for drug crimes and other nonviolent offenses. But some prisoners, at some times, do act out in violent ways. One of the most important duties of prison staff is to protect prisoners from attack by their fellow prisoners. The Supreme Court has made it unmistakably clear that such protection is required by the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishments. 

As the court put it, “Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’” This shocking photo graphically shows how officials all too often neglect this paramount constitutional duty. 

Sadly, Georgia is not an anomaly. 

In a 2011 case involving California prisons, the Supreme Court cited an incident in which a prisoner was beaten to death in a crowded gymnasium; staff were not even aware that the assault had taken place until the prisoner had already been dead for several hours. 

The ACLU has gone to court repeatedly, all across the country, to enforce prisoners’ fundamental right to basic safety – a constitutional guarantee no one should have to argue or fight for. One case involved a private prison in Idaho that had more assaults than the state’s other eight prisons combined, a grim distinction that had earned it the nickname of “Gladiator School.” Right now in Jackson, Mississippi, the ACLU is in federal court arguing that rampant violence at the privately run Walnut Grove Correctional Facility poses a lethal risk to the prisoners confined there.

Some people don’t care what happens to prisoners, believing that they deserve whatever they get.  But what’s done in our prisons is a powerful statement about the kind of society we are. Jonathan Simon, a criminal justice expert at the University of California-Berkeley, puts it this way:

“You have to ask yourself: If the basic story that we tell ourselves is that it’s all about laws and sending people to prison because they violated laws and harmed other people, how can we possibly justify sending them to a place where that is happening to them?” 

That’s a question that Georgia prison officials – and all of us – need to keep in mind.

Why David Brooks Is Wrong About Discrimination and Indiana’s RFRA

Let me get straight to the point – David Brooks’ column this week encouraging gay and transgender people to simply accept discrimination for as long as it takes for society to come around was more than misguided. It undercuts core American values of fairness and equality and advances the idea that’s it is acceptable to treat some people like second-class citizens because of who they are.

If David Brooks really thinks it’s smart for gay and transgender people to accept discrimination until “gentle persuasion” convinces people that it’s not, I have to ask: Would he have been so bold to make such proclamations in other moments of history when religion was invoked to justify various forms of discrimination?

For instance, something that seems unfathomable to us today but occurred not too long ago: Would he have argued that the barbeque franchise owner who believed mixing races violated his understanding of the Bible should have been allowed to tell African-Americans they weren’t welcome to a seat?

Or that the school run by folks who believed as a matter of faith that the role of men is to be the head of households should be allowed to pay women less money?

Or to use examples from the moment: That schools should be able to fire women teachers for using IVF or hospital staff should be able to fail to tell women miscarrying that ending the pregnancy is the safest medical option?

Or what about a school counselor who doesn’t agree with the “homosexual lifestyle”? Should she be allowed to turn away a gay or transgender youth considering suicide as long as she does it with “respectful politeness”?

In these cases, should the law say it’s okay to deny services, employment, or information – and really fair treatment – until society comes around?

Because whether actively or through ignorance, that is certainly what he has argued.

Undergirding Brooks’ argument is a dangerous concept: That the only possible harm in these scenarios is to religious belief, not to those turned away. That’s simply not true. The sit-in at the Woolworth’s counter wasn’t about wanting a hamburger. It was about fairness and equality.

We’ve made a decision as a country that religious freedom matters. But so does the dignity of others.

Brooks has twisted the idea of religious freedom. Based on his argument, what would stop a business from hanging up a big, flashing sign that says they don’t serve gay people? Brooks’ argument asserts that gay and transgender people should allow that because “religious tolerance” and “[d]eep politeness means we make accommodations” for those who aren’t ready to stop discriminating.

One has to ask, do we really want to value “deep politeness” over equality?

Brooks is right about one thing – religious freedom is a deeply important value that’s woven into the fabric of this country. And it must be protected. But what Brooks, and many others who would use religion to justify discrimination and harm, fails to recognize is that religious freedom gives us all a right to our beliefs. But that right, like all others, has limits. And those limits stop when acting on our belief hurts someone else.

Religious liberty couldn’t be used in the ’60s to turn away people of color. And we shouldn’t tolerate its use today to let businesses turn away lesbian and gay couples seeking to celebrate a relationship or to allow religiously associated nonprofits or businesses to treat women like they’re less than men by denying contraceptive coverage, equal pay, or health care coverage.

To put it simply, the promise of equality is not real or robust if it has exceptions. There’s nothing polite about having the door slammed in our face because of who you are.  

We’ve made a decision as a country that religious freedom matters. But so does the dignity of others.