News & Commentary

In the middle of the 2020 pandemic, America was shaken by the murders of George Floyd and Breonna Taylor, and the protests that erupted in the aftermath. But the disturbing trends we see today in police violence are the same patterns we’ve seen over the last 100 years. Again and again, commissions convened to examine why police brutality sparks unrest have come to the same conclusion: We must address the poverty and systemic racism that go hand in hand with policing communities of color.   This week, we launched a series of four short films taking a critical look at what we’ve learned from the last 100 years of racism in policing. The solution to healing this long-standing problem is clear: It’s time to divest from the police and reinvest in communities of color.

On our podcast, At Liberty, we learn a lot about history, civil rights and civil liberties issues, and how we can use legal advocacy to move the needle. This week, we spent time talking about how we can best share that knowledge with others, especially the people in our lives who may not be as tuned into these conversations.  Bestselling author Glennon Doyle, who knows a thing or two about difficult truth-telling, joined us to break down how those of us who are invested in civil rights work can better draw the people closest to us into our fights for justice and equality. Doyle is also the founder and president of Together Rising, a nonprofit organization that fundraises for women, families, and children in crisis. “My job as a white woman right now is to quietly understand and listen to what Black activists and strategists and organizers have been doing for so long, and then just show it to my people,” Doyle tells At Liberty. “My job is to be so grateful for any time that I’m invited into the meetings and minds of these women who have been on the ground for so long, and just a little bit at a time to [put their work] in front of my communities and say: ‘Join this. Humbly and quietly, join this.'” 

President Trump’s relentless destruction of our immigration system is well documented. However, the myriad ways in which he attacked and targeted Black and Brown people seeking immigration benefits or citizenship, and even U.S. citizens is less discussed.    There have been three substantial attacks on citizenship for Black and Brown immigrants:

People with disabilities face enormous barriers in the United States today — from a pandemic that is killing disabled people, especially those in institutions, at staggering rates; to schools that too often fail, traumatize, and criminalize students with disabilities; to a criminal legal system that unnecessarily targets, incarcerates, and kills Black and Brown people with mental disabilities. The administration must make disability rights a priority from day one, with a commitment to addressing head-on these harms and the intersection of discrimination and marginalization around disability, race, and poverty. Here are just a few of the many items that should top the Biden-Harris administration’s to-do list: Ensure that people with disabilities can live in their communities, not in institutions, and support the direct care workforce:

The approximately 15 million residents of the Southwest border region live under a massive  federal police presence and extensive surveillance: the ever-present hum of Customs and Border Protection (CBP) helicopters overhead; residents’ information collected by CBP surveillance cameras, drones, license plate readers, and blimps; and Border Patrol vehicles roaming their neighborhoods and questioning them at interior checkpoints. It’s all at enormous U.S. taxpayer expense, and it does not make us safer.  A meaningful shift in border policy to restore the civil rights and liberties of border communities means an end to walls, wasteful militarization, intrusive surveillance technology, and the removal of Border Patrol, CBP’s law enforcement arm, from policing U.S. communities.   Border Patrol not only executed the Trump administration’s cruelest border policies, from detention system, the agency also further expanded its over-policing and militarization of U.S. communities. Reversing Trump’s abuses is not enough. The next administration must reign in this rogue agency.    CBP’s violent tactics cause pervasive racial profiling, injuries, and deaths. Border Patrol vehicle chases increased under the Trump administration, injuring at least 250 people, a 42 percent increase, and killing 22 people. Despite clear legal boundaries, Border Patrol commonly flouts constitutional protections against racial profiling, often providing flimsy, pretextual reasons to stop or search Black and Brown community members. Border Patrol’s training materials even claim that a car riding too low or too high, or when someone makes too much or not enough eye contact, can justify a stop. CBP operates over 40 permanent interior checkpoints, which block border communities from essential services — including medical care during a pandemic — and limit free movement.    Consequently, U.S. citizens, legal permanent residents, tourists, and others are frequently pulled over or questioned by Border Patrol for no reason, near and far from the border — such as when a Border Patrol agent interrogated two U.S. citizens for speaking Spanish at a Montana convenience store. We sued and, in the course of litigation, CBP agents admitted to profiling “Mexicans.”    The Trump administration also flooded the border region with Border Patrol agents and, in unprecedented fashion, deployed CBP personnel and surveillance assets to monitor Black Lives Matter protests in cities nationwide. Immigration personnel’s over-policing and militarization of border and interior communities is rooted in our nation’s history of over-policing Black people and must end.   President-elect Biden stated that, “the border between Mexico and the U.S. shouldn’t be treated like a war zone.” To solidify that pledge, the Biden administration should issue an executive order directing CBP to comply with Fourth Amendment standards against unreasonable search and seizure throughout the U.S., including in any border zone, and direct the Attorney General to conduct all necessary investigations to assess steps to bring CBP policy and practice into compliance with those standards. Permanent interior checkpoints should be eliminated, and the number of Border Patrol agents should immediately be reduced by 50 percent.    Biden must also tackle the destructive border infrastructure that has further militarized the region, wasted tax dollars, and violated the law. Through unlawful money grabs, the Trump administration funded construction of over 300 miles of unauthorized border wall, devastating sensitive ecosystems, damaging communities, and funneling migrants into more deadly regions. Not only should all wall construction immediately cease, the Biden administration should assess how to dismantle existing walls and barriers through consultation with environmental experts and border and tribal communities, and rapidly remove unlawfully constructed border wall.    The Trump administration also deployed, through multiple operations, over 16,000 Defense Department personnel to the border. His administration issued various memos and directives expanding permissible use of force guidelines for military personnel at the border, including permitting the use of deadly force in certain circumstances. Retired military generals called these deployments “dangerous” and “wasteful,” and Border Patrol’s own union called them a “colossal waste of time.” Troops should be withdrawn from the border and not deployed again, and this region must not be subject to forever expanding surveillance.   Surveillance technology, justified as a means of border security, frequently spreads across border communities, degrading privacy rights of all residents. A recent study found 230 instances of local law enforcement using advanced technologies in border communities. CBP also operates an air force of drones, planes, and helicopters equivalent to Brazil’s entire combat air force, yet drones are responsible for only 0.5 percent of border apprehensions. The drones are more often loaned to other law enforcement agencies, including during recent protests over the killing of George Floyd. CBP must abandon its use of drones.   The Trump administration has begun to deploy hundreds of mobile surveillance towers, to be installed across the border over the next five years, adding to the dragnet of existing cameras across the region. This is despite CBP spending $1 billion on its last failed attempt to create a “virtual border fence.” These efforts don’t come with any of the necessary privacy protections, nor does peppering sensitive lands with mobile surveillance towers respect the environment or border communities. Invasive surveillance technologies are not a viable alternative to physical border barriers absent strict privacy protections. Other mass surveillance devices — like tethered blimps and surveillance towers — must never be used to surveil border communities or other interior areas of the U.S. President-elect Biden pledged to “ensure our values are squarely at the center of our immigration and enforcement policies.” A smart border policy that both restores the civil rights and liberties of border communities and upholds our values requires an end to walls, wasteful militarization, intrusive surveillance technology, and the removal of Border Patrol from policing U.S. communities. 

Over the last four years, the Trump administration has embraced a distorted view of religious freedom that is rooted in bigotry against minority faiths and atheists and promotes an official preference for Christianity. They’ve targeted Muslims for no reason other than rank prejudice and favored certain types of Christians in law and policy, with no regard for the harms those actions have inflicted on everyone else. President-elect Biden and his administration must make restoring religious liberty for all and protecting the separation of church and state among their top priorities.   Here are just a few of the many actions that should be at the top of the Biden administration’s religious-freedom to-do list: Rescind the Muslim ban and affirm that Muslims are a valued part of America’s pluralistic religious tapestry Within days of taking office, President Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from visiting the United States and prohibiting refugees from entering the country. The order followed through on Trump’s bigoted promise as a candidate to enact “a total and complete shutdown of Muslims entering the United States.” Although the ban’s terms and criteria shifted slightly over time as the administration tried to defend it in court, the Supreme Court upheld the ban and that shameful policy remains in place today. President-elect Biden must fulfill his campaign promise to rescind the Muslim ban. He must also a license to discriminate, no matter the harm to others. In October 2017, the Department of Justice issued religious-liberty guidance for all executive agencies, declaring that federal law “might require an exemption or accommodation for religious organizations from antidiscrimination law … even where Congress has not expressly exempted religious organizations.” In fact, the ultimate federal law — the U.S. Constitution — has long been understood and interpreted to prohibit religious exemptions that impose harm on others, in part because these exemptions violate the separation of church and state by elevating some faith beliefs over the rights of others. But that hasn’t derailed the Trump administration’s effort to gut health care protections by enacting rules that allow any health care worker to refuse care to patients based on the worker’s personal religious or moral objections, or permit any employers to deny their employees contraception coverage. Nor has it stopped the administration from giving special privileges to certain religious groups by, for example, proposing or implementing rules that allow federal contractors with the Department of Labor to discriminate against LGBTQ employees and others, or that make it easier for federally funded social services providers to turn away religious minorities and LGBTQ people, all based on the contractors’ and providers’ religious beliefs. The Trump administration has even gone so far as to argue in the Supreme Court that religious groups contracting with the government to provide foster care services for children should be able to discriminate against prospective LGBTQ foster parents—potentially opening the door to all manner of discrimination by those performing core government services with taxpayer dollars. And it has argued that the First Amendment protects the ability of businesses to turn away same-sex couples based on the business owners’ religious beliefs. In other words, the Trump administration has advocated for a far-reaching constitutional right to discriminate. The Biden administration must take every action necessary to reverse these positions, which misinterpret religious liberty to enable discrimination and undermine our basic rights to be treated equally. It must immediately rescind the DOJ’s 2017 religious freedom guidance and withdraw all proposed and non-final regulations permitting discrimination based on religious beliefs against LGBTQ people and people seeking reproductive care. Recommit to the separation of religion and government President Trump and his administration have demonstrated a sweeping, dangerous contempt for the separation of church and state. The right to believe what we want and to exercise our faith, so long as we’re not harming others, is unquestionably a fundamental component of religious freedom. But the First Amendment also guarantees, through the Establishment Clause, an equally vital aspect of religious liberty: the right to be free from governmental imposition and promotion of religion. Our government represents us all and should remain neutral on matters of faith. Instead, President Trump continually singled out and discriminated against Muslims and privileged Christian beliefs over the rights of others. He encouraged public schools to teach biblical doctrine. His Secretary of State, Mike Pompeo, used government resources to deliver a sermon, called “How to be a Christian Leader,” to a religious organization. And Attorney General William Barr has repeatedly

In the last four years, the Trump administration has aggressively dismantled federal protections that ensure equal treatment against racial discrimination, amplified racist rhetoric, and explicitly targeted communities of color with harmful executive actions. The Biden-Harris administration must both reinstate federal rules that protect against racial discrimination, and take meanginful steps to further advance racial justice in the U.S. Here are just a few of the many items that should top the Biden Administration’s to-do list:  Support H.R. 40 The Biden-Harris administration must support H.R. 40, a bill that would set up a long overdue commission to examine the institution of slavery, its legacy, and make recommendations for reparations to Congress.  During slavery, Black people were forced to labor for the enrichment of America. After slavery, the emancipated suffered violent repression and exploitation under Jim Crow laws and Black codes in the South and de facto segregation across the nation. Since then, the vile policies of enslavement, codified in American culture and the Constitution, shifted to take on new forms of injustice and drivers of oppression that are still woven across our institutions today — from education and healthcare to our criminal legal system. The U.S. government has continued to perpetuate and often profit from racially-exclusionary policies and practices that  disadvantage Black people in all aspects of society. This is evident in modern day voter suppression, policies that deny Black people fair housing opportunities, redlining practices that perpetuate segregation, legislation such as the Homestead Act, which actively denied economic justice opportunities to Black people, and mass incarceration.  H.R. 40 is a critical first step toward addressing the fundamental injustice, cruelty, brutality, and inhumanity of the institution of slavery in the United States and its legacy. Reparations for slavery are necessary if we are to advance racial justice in this country.  The Biden administration must support H.R. 40. End attacks on racial and gender equity trainings The Biden-Harris administration must rescind President Trump’s

Imagine waking up one day, unlocking your phone, and realizing that you could no longer send or receive messages through your favorite app. Or make or receive calls. Or scroll through your social media feed. Imagine that all of these functions were rolled into one essential app that you and your friends, family, and co-workers depended on, and that the U.S. government had decided to ban it. That’s exactly what the Trump administration is attempting to do with WeChat, a communications app that millions of people in the United States depend on to connect with friends, family, and business contacts across the world.    On Friday, we and the ACLU of Northern California asked the Ninth Circuit Court of Appeals to block the Trump administration’s autocratic effort to ban WeChat. Our friend-of-the-court brief, filed in support of a group of WeChat users who have challenged the ban, explains why the administration’s actions violate the First Amendment. The First Amendment protects our freedom of speech. It applies here because WeChat users depend on the app for a wide variety of speech and expression. Nineteen million Americans, primarily Chinese Americans, rely on WeChat daily to call and message with friends, family, and colleagues. The app is no ordinary communications tool: It’s also a platform for social media, news, money transfers, and e-commerce. It hosts an enormous community — more than one billion users worldwide — that simply can’t be replicated. For many of WeChat’s users, the app is their primary or only source of communication with friends and family in China, where the government blocks popular messaging platforms like Facebook, WhatsApp, and Instagram. In August 2020, the Trump administration issued an executive order declaring WeChat a threat to national security. As we

Millions of people took to the streets this year demanding racial justice and an end to racism in policing and the criminal legal system more broadly. On Election Day, voters provided their own stamp of approval by passing ballot measures in red and blue states alike to reform drug policy and other laws that have led to our mass incarceration crisis. Prosecutors and sheriffs committed to tackling mass incarceration won elections from Florida and Michigan to Texas and California. In fact, it is fair to say that a future Biden-Harris administration has a mandate to fight against mass incarceration. An Associated Press poll from June found that 94 percent of Americans believe that the criminal justice system needs to change — including a large majority of Republicans — and 69 percent of Americans support major changes or a complete overhaul of the system.   President-elect Biden and Vice President-elect Harris have already indicated that they will make racial justice a priority in their administration, including by reforming the criminal legal system. This is welcomed. The ACLU believes that now is the moment for bold action to tackle this crisis. The U.S. leads the world in incarceration and in police violence. Now is the time for visionary steps to end mass incarceration.  Here is our top to-do list for the first 100 days: End the War on Drugs A Biden-Harris administration should issue an executive order declaring an end to the war on drugs, directing federal prosecutors to no longer pursue drug cases, commuting the sentences of people serving time for drug-related cases, and pardoning people with past criminal convictions for drug-related offenses. Moreover, the administration should support reform bills like the MORE Act, which would remove marijuana from the list of scheduled substances, expunge many past convictions and arrests, and support racial justice efforts. Grant Mass Clemency   The Executive has complete authority to grant clemency or demand the initiation of a mass clemency process, either of which President-elect Joe Biden could do in his first 100 days in office. Doing so would show he is serious about ending this country’s mass incarceration crisis and addressing the harms caused — disproportionately against Black and Brown people — by the 1994 crime bill and other failed “tough on crime” policies. There are tens of thousands of people who could be released within the first 100 days, by granting categorical clemency to the following groups:  1. People who would serve a lesser sentence than they are currently serving if convicted under current laws; 2. People convicted of drug offenses; 3. People incarcerated for technical probation or parole violations; and 4. Older incarcerated people. And for everyone who is granted clemency, it is incumbent on leaders across the federal government and in local communities to thoughtfully and holistically support people leaving prison.  Embrace Use of Force Standard An important first step in reining in police use of force is to set clear national standards, requiring all police departments to adhere to common-sense limitations and best practices based on principles of necessity, proportionality, and de-escalation. Notably, research has found that when police departments adopt such policies, they not only kill fewer people, but also suffer fewer officer deaths in the line of duty. President-elect Biden has already identified the creation of a national, model use-of-force standard as one of his racial equity priorities. It’s important that this use-of-force standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which permit officers to use force only when necessary, proportional, and less extreme alternatives are exhausted. Dramatically Reduce Pretrial Detention The federal system, which rarely uses cash bail, should be a model for states and localities. But the federal pretrial detention rate is an appalling 75 percent. The Biden-Harris DOJ must seek detention for only the most extreme cases and aim for a pretrial detention rate no higher than 5 percent, instruct prosecutors to make charging decisions that avoid presumptions of detention, and invest in supportive services — such as transportation and child care assistance to make it easier for people to attend their court dates — instead of bias-enforcing risk assessment tools that do not address the underlying problems. The administration should also support legislation to eliminate presumptions of detention, which violate the basic tenant that people are innocent until proven guilty. In encouraging local reform, the administration should align with these same principles and focus on funding evidence-based support rather than discriminatory algorithms or onerous conditions. End Private Prisons   Criminal justice policy should be driven by public safety needs, not by the greed of private corporations. But more than 100,000 people in the United States are incarcerated in private prisons, where profit-seeking takes priority over safety, security, and rehabilitation. In 2016, the Obama administration announced that it would end the use of private prisons by the federal Bureau of Prisons, but that order was reversed in the early days of the Trump administration.  The Biden administration should end the use of private prisons by the Bureau of Prisons, the U.S. Marshals Service, and all other federal agencies.    End the Federal Death Penalty The federal death penalty is plagued by racial bias, geographic arbitrariness, and unfairness — just like the death penalty in the states. The Biden-Harris administration must honor its pledge to work toward federal legislation to end the federal death penalty. The Trump administration recklessly carried out an unprecedented number of federal executions, all during the pandemic, leading to spikes in COVID-19 cases and subjecting staff, witnesses, loved ones of the victims, and people incarcerated in federal prisons alike to escalated risk of the disease. The Biden-Harris administration should immediately suspend all federal executions while it works to end the federal death penalty once and for all.   End Solitary Confinement   The United States is the world’s leader in solitary confinement, with tens of thousands of men, women, and children locked in isolation on any given day. Although international human rights standards require that solitary confinement be used only as a last resort and for no more than 15 days, it’s common for people in U.S. prisons to be isolated for months, years, and even decades. The Obama administration enacted limited reforms at the federal level, but much more needs to be done. The Biden administration should ban solitary confinement lasting longer than 15 days for people in federal custody, and create incentives for states and localities to do the same.