News & Commentary

The requirement that only men — but not women — register for the draft is one of the last examples of overt sex discrimination written into our federal law. Today, we joined two young men and the National Coalition For Men (NCFM) to urge the U.S. Supreme Court to put an end to it.   Under the 1948 Military Selective Service Act, men in this country are required to mark their 18th birthdays by registering for the Selective Service System, the list of people who could be called up for military service if the government authorized a draft. Although there hasn’t been a draft since 1973, young men are still required to register or they may face severe penalties.   As long as the government requires young people to register for the draft, requiring men but not women to do so is sex discrimination. That’s why we’re asking the Supreme Court to declare men-only registration unconstitutional.   The ACLU joined two young men and the NCFM, who initially brought a challenge to men-only registration in 2013, to help bring their case to the Supreme Court. Representing an organization called the “National Coalition For Men” may seem like an unlikely way to advance women’s rights, and to be clear, the ACLU firmly opposes some of NCFM’s positions and activities. In this case, however, we share the common goal of ending an antiquated federal law that harms both men and women. And if the Supreme Court agrees, it could be one of the most significant constitutional advances in sex discrimination law in 25 years. Like many laws that appear to benefit women, men-only registration actually impedes women’s full participation in civic life. Limiting registration to men sends a message that women are unqualified to serve in the military, regardless of individual capabilities and preferences. It reflects an outmoded view that, in the event of a draft, women’s primary duty would be to the home front — and, on the flip side, that men are unqualified to be caregivers. The Military Selective Service Act not only perpetuates these stereotypes, it enshrines them in federal law.   Limiting draft registration to men also devalues the contributions of women who serve in the military. That’s why military women’s organizations like the Service Women’s Action Network support extending registration to women. National experts agree: A congressional commission formed to study the Selective Service System recommended that Congress update the Military Selective Service Act to allow women to be registered, too, and the Department of Defense has advised Congress that doing so would promote military preparedness — as well as fairness.   But, to be clear, this case isn’t about whether women should ultimately be required to register alongside men. If the Supreme Court declares men-only registration unconstitutional, it would be up to Congress to choose an appropriate path by extending registration to everyone regardless of gender or eliminating registration for anyone. What Congress may not do is design a registration system that discriminates on the basis of sex.   Men-only registration was first challenged more than 40 years ago, when several young people — represented by the ACLU — asked the Supreme Court to strike the Military Selective Service Act as unconstitutional sex discrimination. But the Supreme Court upheld the law in Rostker v. Goldberg. The Supreme Court reasoned that Congress could choose to require only men to register since the draft was aimed at replacing combat troops, and military women at that time were categorically ineligible to serve in combat roles. In other words, instead of examining whether the ban on women in combat was itself discriminatory, the court relied on one form of sex discrimination to justify another — and let both forms of discrimination stand.    In 2012, the ACLU filed a lawsuit challenging the ban on women in combat, one of two cases that led the Department of Defense to lift the ban. Now that women are eligible to serve in combat roles, the sole justification for men-only registration has evaporated into thin air. It’s time for the Supreme Court to revisit — and overturn — its previous decision and end this antiquated law.   Justice Thurgood Marshall, the first civil rights lawyer to sit on the Supreme Court bench, called men-only registration “one of the most potent remaining expressions of ancient canards about the proper role of women.” That was in 1981. It’s long past time for the Supreme Court to call men-only registration what it is: unlawful sex discrimination.

Secretly, and without consent, a company called Clearview AI has captured billions of faceprints from people’s online photos, amassing what it claims to be the world’s largest face recognition database. Much like our fingerprints and DNA profiles, our faceprints rely on permanent, unique facts about our bodies — like the distance between our eyes and noses or the shape of our cheekbones — to identify us. Using our faceprints, Clearview offers its customers the ability to secretly target and identify any of us, and then to track us — whether we’re going to a protest, a religious service, a doctor, or all of the above — and even to reach back in time to find us in old selfies, school and college photos, and videos. In other words, it might end privacy as we know it. It also threatens our security and puts us at greater risk of identity theft by maintaining a massive biometric database, akin to a secret warehouse of housekeys. Clearview’s nonconsensual capture of our faceprints is dangerous. It is also illegal in at least one state. In May of last year,

Pamela Winn was sent to federal prison when she was six weeks pregnant. In prison, she fell down attempting to step into a van while shackled. She was not given prenatal care and she miscarried a little over three months later, shackled to a prison bed.   Winn, who was released from prison in 2013, is now an activist for the rights of incarcerated women. She helped enact a law to prevent the shackling of pregnant people in Georgia and is leading a mission to end prison birth altogether  But her story is not unique. There are currently thousands of pregnant people in prison. Many are not given proper medical attention, some are shackled even while giving birth, others miscarry — some have even birthed their children, alone in a cell.

An earlier version of this blog appeared in The Hill. This year marks 50 years since President Richard Nixon declared drugs “public enemy number one,” launching a war on drugs that has pumped hundreds of billions of dollars into law enforcement, led to the incarceration of millions of people — disproportionately Black — and has done nothing to prevent drug overdoses.   As President-elect Joe Biden and Vice President-elect Kamala Harris prepare to take office, they have an opportunity to begin to put an end to this failed war. And it is abundantly clear that they have a mandate from the electorate to tackle this issue.   Today there are more than 1.35 million arrests per year for drug possession, with 500,000 arrests for marijuana alone. Every 25 seconds a person is arrested for possessing drugs for personal use, and on average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. At least 130,000 people are behind bars in the U.S. for drug possession.   While tens of billions of dollars are spent each year to prosecute this war, more than 70,000 people still die of drug overdoses. Deaths from heroin overdose in the United States rose 500 percent from 2001 to 2014. Overall deaths from drug overdoses remain higher than the peak yearly death totals ever recorded for car accidents or guns.   The war on drugs has failed, and Americans on the right and left are ready for it to end. These views were on display at the ballot box in 2020, when voters across the country approved every ballot measure on scaling back the war on drugs. From Arizona, Oregon, and Montana to South Dakota, New Jersey, and Washington D.C., Americans turned out in droves to say that it’s time to stop criminalizing drug use.   The effort in Oregon, led by the Drug Policy Alliance and supported by the ACLU, was the most groundbreaking. This ballot measure decriminalized the possession of drugs for personal use, funding drug addiction treatment and recovery programs with the savings and tax revenue from marijuana legalization. Measure 110 will prevent more than 3,000 arrests a year for drugs such as heroin, cocaine, and methamphetamines. Oregon is now the first state in the nation to decriminalize all drugs, laying the foundation for reorienting the government’s response to drugs to a public health approach rather than a criminal law one.   Other states also showed that drug law reform is a winning issue on both sides of the aisle. Arizona, Montana, New Jersey, and South Dakota all legalized marijuana, joining 11 other states and Washington D.C. South Dakota, where Trump received 62 percent of the vote, showed that legalizing marijuana is a bipartisan issue, as did Montana, which elected Republicans to every major office in the state, while also voting to legalize marijuana.   Then in December, Congress delivered two victories, joining states in the movement for reform. On Dec. 4, the House of Representatives passed the most comprehensive marijuana reform legislation in Congress, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884; S. 2227), which decriminalizes marijuana by removing it from the list of scheduled substances, expunges past convictions and arrests, and taxes marijuana to reinvest in communities targeted by the war on drugs. Sen. Harris is the primary sponsor of the MORE Act, but its fate in the Senate is uncertain despite bipartisan support. Then on Dec. 21, Congress passed a COVID-19 stimulus package that included repealing the prohibition on students with drug convictions from receiving federal financial aid, helping thousands of students get an education.   With resounding victories in red and blue states, President-elect Biden and Vice President-elect Harris now have a clear decree from voters. Here are the five things they can do to begin ending the war on drugs.   First, President Biden should issue an executive order within his first 100 days declaring an end to the war on drugs and directing his federal prosecutors and law enforcement to use their discretion to stop prosecuting the war on drugs. Thousands of people are prosecuted in federal court for drug possession and prosecutors have failed to adequately use their discretion to decline these cases, let alone to not seek incarceration as sentence. This must end. An executive order by President Biden should also incentivize states to end the war on drugs, where the large majority of incarceration for drugs takes place.   Second, President Biden should commute the sentences of people currently incarcerated for the war on drugs, and pardon people living with the consequences of this failed war. Candidate Biden committed to “reform[ing] the criminal justice system so that no one is incarcerated for drug use alone.” This is his chance to follow through on this promise by at the very least commuting sentences and pardoning people who fall under this category. That would be a good start.   Third, President Biden should direct federal funds to pilot new depenalization approaches to drug-related issues, as recently recommended in a report issued by the FXB Center for Health and Human Rights at Harvard University. This should include overdose prevention centers, where people can use illicit substances while under medical supervision and can access various treatments and referral services. Such models have existed for many years in countries such as Canada, Germany, and Denmark, and have reduced the likelihood of overdoses.   Fourth, President Biden should direct the Department of Justice to withdraw from litigation challenging overdose prevention centers that have been approved at the local level. As cities across the nation attempted to address record number of fatal overdoses, the Trump administration cracked down on cities and challenged them in court. President Biden should reverse this policy and refrain from filing new lawsuits.   Finally, the Biden administration should work with Congress to pass legislation such as the MORE Act. Polling has consistently shown that marijuana legalization is a bipartisan issue. Five Republicans voted for the MORE Act in the House. A Biden-Harris administration should use their influence to convince Republicans in the Senate to support the MORE Act.   Today, policymakers and the public alike are increasingly adopting approaches that treat substance use as a public health issue rather than a criminal justice one. This recognition is bipartisan, as the war on drugs has not differentiated between blue states and red states, and the public understands the importance of addressing addiction through public health measures. The Biden-Harris administration can begin healing our nation by moving decisively on this issue and beginning to repair the harm caused by 50 years of this failed war.  

This weekend the Trump administration released a 332-page report purporting to offer recommendations on police reform. The findings of this sham commission — composed primarily of police and prosecutors — show what most already knew to be true. The Trump administration never had any plans to implement transformative changes to policing that would curtail police violence, truly hold law enforcement accountable, or conduct any legitimate federal oversight of even the most troubled law enforcement agencies. This report was never meant to enhance safety for all communities; it was meant to advance the Trump administration’s “law and order” political agenda.  The Trump commission’s flawed recommendations are, in many cases, literally the opposite of what’s necessary to address the epidemic of police violence and mass incarceration. While the Trump commission simply restates a laundry list of recommendations focused on protecting police, here are a few recommendations for what we need to do instead.  We must transform the role of police and prosecutors in the criminal legal system.  The Trump commission report demonizes reform-minded prosecutors who use their discretion to racist technology misidentifies people of color at high rates and threatens to supercharge over-policing of communities of color. But the Trump commission calls for an expansion of these dangerous technologies — exactly the opposite of what we need. By ending law enforcement reliance on face recognition algorithms we can limit false arrests of Black men, and ensure community members are free from the threat of pervasive government surveillance every time we leave our homes.    We must abolish qualified immunity.  Across the country there has been a bipartisan effort to reign in qualified immunity — a court-created legal defense that shields police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability as recognition of the policy as one of the main doctrines used to defend police officers in cases of police violence has grown. Officer Derek Chauvin, the police officer who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity. By abolishing the doctrine of qualified immunity, many families, victims, and survivors of police violence will have the opportunity to obtain some form of justice in our legal system. Yet the Trump commission flat-out rejects the idea of abolishing or even limiting qualified immunity. We need to implement enforceable legal guidelines that clarify when police officers can use force against members of the communities they are charged with protecting.   Policies that limit officers’ use of lethal force so it is used only when absolutely necessary and after exhausting other alternatives such as de-escalation must be implemented on the local, state, and federal level. Instead, however, the Trump commission asserts that “the most effective measure to prevent police from using force remains for citizens to comply with officer commands” and that community members who are being unlawfully abused by police officers should “Comply, Then Complain.” The “comply, then complain” framework means that people in America must bow down to law enforcement, no matter what their behavior may be. This may be true in totalitarian regimes, but in America, the police work for the people. From its inception, it was clear that the President’s Commission on Law Enforcement and the Administration of Justice was a thinly veiled attempt to use the idea of “police reform” to promote President Trump’s “law and order” agenda, even as historic numbers of people marched in the streets to demand structural changes and an end to police violence. The commission’s goal of “promoting public confidence and respect for the law” was a thinly-veiled threat to advocates and organizers fighting to end police violence. Its mandate to look at “refusals by State and local prosecutors to enforce laws” was a rebuke of the movement to fix a corrupt, punitive, and harmful legal system and its mere composition an attempt by the Attorney General to advance a one-sided agenda. This flawed, bad faith approach should be buried along with the rest of the Trump administration’s terrible ideas on Jan. 20.

When people took to the streets this year to protest racial injustice and police brutality against Black people, they faced a repressive, violent response from local police and federal agents. Some of these agents arrived with militarized uniforms, riot gear, and weapons, but, notably, no visible name labels, badges, or even insignia marking their government agency. Congress just put a stop to this corrosive and undemocratic secrecy, requiring federal agents to identify themselves. Tucked inside the National Defense Authorization Act (H.R. 6395), which just became law, is a new requirement for federal military and civilian law enforcement personnel involved in the federal government’s response to a “civil disturbance” to wear visible identification of themselves and the name of the government entity employing them. That’s good news, because requiring such identification should be a no-brainer in a democracy. When government employees are interacting with members of the public and exercising government authority, such as the power to arrest people, the public should have the right to know who the employees are and which agency employs them. Furthermore, when government personnel engage in wrongdoing, such as attacking protesters, one of the first steps in holding them accountable is knowing who they are. It’s no surprise that rights-violating law enforcement would want to obscure their name plate and badge number before committing some unethical or even illegal act. Impeding transparency blocks oversight and accountability. What the nation witnessed in Washington, D.C. and Portland, Oregon underscores the vital need for the legislation. In Portland, incognito federal officers who refused to identify themselves snatched civilians off the street and whisked them away in unmarked vehicles. Only later did U.S. Customs and Border Protection and the U.S. Marshals Service reveal that they were involved. In our nation’s capital, the Trump administration swarmed the city with heavily-armed, unidentified officers with unclear governmental affiliations. When asked by journalists to give their names or specific governmental affiliation, these federal officers refused. The resulting images provoked outcries of our government resorting to the kinds of unaccountable “secret police” used by authoritarian regimes to silence dissidents and terrify ordinary citizens into submission. Protesters and security experts also flagged that the unidentified government forces’ appearances can be practically indistinguishable from the kinds of right-wing armed extremists that have, among other things, shot racial justice protesters on the streets of Kenosha, plotted to kidnap Michigan’s governor, and engaged in violent clashes around the country. This creates the risk that members of the public will treat law enforcement agents as illegitimate armed vigilantes, or defer to vigilantes who are posing as law enforcement.  In an important step forward for government transparency and accountability, lawmakers like Rep. Houlahan and Sens. Murphy and Schumer heeded the calls for reform and sought to ensure that a new identification requirement would be part of the final defense bill. Thankfully, they were successful. Even with this provision poised for enactment, additional reform is still urgently needed at all levels of government. For example, it is always better to have the officer’s name displayed rather than allowing a non-name identifier, such as a badge number, to be used as a substitute. Names are usually easier to remember than numbers or letters, thus making it easier for people to later identify and report officers. The nature of the existing exceptions should be narrowed, in addition to the total list of exceptions. Still, the message that Congress is sending to the executive branch and enshrining into statute is unmistakable: Secret police forces patrolling our neighborhoods in response to protests and other mass gatherings, in anonymity and shielded from accountability, are unacceptable. They do not belong in a democracy such as the United States.  When the next president takes office this month, his administration should affirm the principle as it implements the new law in the strongest possible manner — and keep its goal of a transparent and accountable government in mind as it works with Congress and civil society to respond to the inequities highlighted by the recent protests. 

Governor Jared Polis of Colorado — otherwise a trailblazer when it comes to criminal legal reform — recently said, “There’s no way [the COVID-19 vaccine] is going to go to prisoners before it goes to the people who haven’t committed any crime.” Under fire from activists like us, he walked back that statement a few days later. But his initial instinct to throw incarcerated people under the bus is sadly typical, and we shouldn’t allow sentiments like that to poison the national discussion around vaccine access and distribution.   Following the U.S. Food and Drug Administration’s approval of a COVID-19 vaccine, the critical question for lawmakers — who should get the vaccine first — is still roiling. As with anything important, the devil is in the details. And in this instance, the details can determine life or death for thousands of incarcerated individuals.    Protecting them is a matter of science, law, and basic humanity.    Let’s start with science. Carceral settings have consistently been listed among the top coronavirus hotspots and the source of much suffering and death because they are too crowded and unhygienic to allow for social distancing. The death rate in prisons has been three times that of the general population. The infection rate of COVID-19 among those in immigration detention between May and August was 13 times higher than that of the general the rate of the U.S. population.   Individuals living in carceral settings also have higher rates of disability and chronic health issues that heighten their risk of severe illness or death from COVID-19. As just one illustration, public health experts note that incarcerated people should be treated as though they are 10 to 15 years older than their biological age. These vulnerabilities are due in part to the physical stress and strain imposed by their imprisonment. Prior to COVID-19, these facilities already denied detainees access to adequate nutrition, health care, hygienic supplies, and fresh air — a situation worsened by a woefully harmful and inadequate response to the pandemic.     Prison, jail, and detention administrators have consistently failed to take the necessary steps to prevent outbreaks that endanger both the people inside and outside their facilities, as the virus does not stop at the prison walls. Staff and contractors churn in and out constantly, allowing the virus to spread both within the facility and in the broader community. As a result, dozens of public health experts have supported lawsuits and advocacy by the ACLU and other organizations to increase protective measures and significantly reduce incarcerated populations. Just last week we won an order to cut the Orange County jail population in half, because social distancing was impossible without it. The science-driven arguments apply equally to vaccine distribution: The faster we get vaccines into detention settings, the faster we can protect everyone, both inside and out.        The law also supports the science. The Constitution protects individuals who are incarcerated and therefore unable to protect themselves. To that end, government officials must take reasonable efforts to protect those in their custody from becoming infected with COVID-19. Nothing is more reasonable than vaccinating the most vulnerable populations first, wherever they live. The fact that incarcerated people may be fighting for asylum, or have been convicted or accused of a crime, is irrelevantto the analysis here, and it should be.Now more than ever, federal and state officials must honor their oaths to these constitutional principles. Lives are at stake.   Finally, this is about basic humanity. COVID-19 has disproportionately decimated the poor, the medically vulnerable, people with disabilities, and Black and Brown communities, including immigrants. Many people fall into several of these categories at once, and far too many find themselves incarcerated — often because of this country’s legacy of systemic racism. Already at increased risk of infection, many are also at the mercy of their government to protect them. And, so far, governments have largely failed.     But because of ACLU litigation and advocacy, criminal defendants now have the right to remain silent and the right to a court-appointed attorney. We fought the racist war on drugs in the 1980s and have never stopped. We are ending the caging of migrant children nationwide. Our work since March protecting the nation’s most vulnerable from COVID-19 is a continuation of this legacy. Today, we are proud to say that people in prisons, jails, and immigration detention — along with people with disabilities and seniors in congregate settings, communities of color, and other vulnerable groups who have been most impacted by the pandemic — should be a first-tier priority for the COVID-19 vaccine. And if officials fail to prioritize incarcerated individuals for the vaccine, we will do what we do best: We will take those officials to court. 

How to sum up 2020: Stressful? Uncertain? Hard? If you’re like some ACLU staffers, one note of help came quite literally from listening to music. For a special year-end holiday episode, we asked a few staffers to tell us which song provided the service of escape or inspiration or just comfort.  It’s been a really long year, so we hope you enjoy this momentary departure from our usual talk of the latest civil rights and civil liberties battles in service of the songs that got us through this year. Here are a few of the songs that made us dance, jump, or simply keep going.

This week, the ACLU is back in court working to protect the constitutional right to abortion in Arkansas. In 2017, the state legislature passed four anti-abortion laws to severely restrict access to abortion. If allowed to take effect, these laws would ban the only method of abortion provided in Arkansas after approximately 14 weeks in pregnancy; require that patients’ partners or others be notified of their abortion; force the health care center to report teenage patients’ abortion to local police where there is no reason to suspect a crime; and force physicians to request a vast number of medical records for each patient with no medical justification, violating physician-patient confidentiality and delaying — or outright blocking — access to abortion care. While the ACLU has successfully blocked these laws since their passage, we are still fighting in court to keep them blocked. The stakes of this fight could not be higher. In the few hours this week the laws were in effect, patients’ appointments were cancelled, and the consequences would be devastating if these laws are upheld. Five patients provided testimony in our lawsuit, sharing their stories of what access to abortion in Arkansas has meant for their lives. For Joan Doe, the partner notification requirement would have been untenable. “My boyfriend was abusive and controlling. If the clinic had had to notify him about the procedure, he would have used that information to exert even further control over me. He would not have wanted me to get an abortion, and would have attempted to prevent me from having one. [If this requirement was in effect at the time of my abortion], I would have had to try to travel out of state to avoid the clinic hav[ing] to notify him, even though I do not know how I would have been able to afford to do that. I barely had enough money to afford the procedure at the time, and the cost of traveling out of state would have been prohibitively expensive.” Mary Doe explained the burden these laws place on minors. “At 16 years old, I had an abortion at Little Rock Family Planning. At that time, I lived in my rural hometown of about 600 people with my mother and step-father …We lived in a secluded area, and we didn’t have enough money for many expenses. When I got pregnant, I knew I needed to have an abortion … my parents provided parental consent … But we could not tell [my boyfriend’s] parents … we were terrified what would happen if they found out. [We] were really scared that his parents would beat him up or kick him out of the house if they knew. “If the clinic were required to tell the local police about my abortion … This is especially concerning for me because I have family members on the local police force. I fear that they would disown me if they knew about my abortion. Even if it were meant to be kept confidential, it is a small community and the fact that I had an abortion would get around … I probably would not have gotten an abortion in Arkansas if notification to my boyfriend’s parents or the local police were required. I likely would have tried to travel out of state to get the abortion. I couldn’t afford this, so I would have to go without eating much for a week or two to be able to save up to travel.” Kate Doe suffered life-threatening complications during a prior pregnancy, and spoke about the impact that delaying care to collect a wide array of medical records would have. “I would have been frightened and intimidated if I could not have had an abortion unless the clinic first requested medical records from my prior doctors. That would be a huge invasion of my privacy. Seeking an abortion is a private decision, and I do not think it is necessary or appropriate to inform all of my previous doctors of my decision … I am concerned that if I had to contact my prior physician, information [about] my abortion would leak into my community. “Obtaining all prior medical records would also take additional time, and I am worried about the emotional and physical toll that delaying an abortion could place on women. Delaying the abortion could have put my body at risk for more complications, as with my last pregnancy. It would have been emotionally stressful as well, because it was important to me to terminate the pregnancy as soon as possible after I made up my mind that an abortion was the right thing for me and my family.” May Doe came to the decision that she needed an abortion when she received news of a life-threatening fetal diagnosis in the second trimester later in her pregnancy. After being denied care in her home state, she traveled to Arkansas: “If I hadn’t been able to get the abortion because of the new laws, it would have been torture. I had already waited nearly six weeks since receiving the diagnosis, and any further delay would push me beyond the gestational age limit to have an abortion in Arkansas. I am not sure what I would have done, or if there is another place I could go to get an abortion. I may have had to remain pregnant, and give birth to a baby that would shortly die. This would have been horrible for both my mental and physical health. “I feel fortunate that the Arkansas laws did not yet go into effect, and I was finally able to get the abortion I needed. I feel a lot of relief now that this ordeal is over. But if these laws go into effect, I know there are others like me who would not be able to access the care they need.” The ACLU will never stop fighting for the many people who, like these patients, need access to abortion care in Arkansas. Abortion is a right, and access to it should never depend on where you live. We’ll continue to remind Arkansas politicians of that for as long as it takes.