News & Commentary

This OpEd was first published in Slate. Americans have just completed another round of one of our grimmest national rituals: shaking our heads while cops who killed an unarmed Black person get away with murder. This time the victim is Breonna Taylor, whose name has galvanized nationwide protests for racial justice, but whose family will receive no justice themselves. Yesterday, Kentucky Attorney General Daniel Cameron announced a single charge from the grand jury against only one of the three officers involved in her shooting, and even that was for shooting a wall, not Breonna Taylor. The other two will walk. And a community that has already waited six months for closure will just keep waiting. Many are rightly pointing out that these cops should not avoid charges based on self-defense when they created the danger in the first place. Accordingly, whether the grand jury result makes sense under the criminal law will be hotly debated in the coming days. But even when there is substantial evidence of wrongdoing, police officers are almost never prosecuted, let alone convicted. And with each press conference announcing that an officer’s actions were justified, the public’s faith in the law — and in the prosecutors tasked with enforcing the law — erodes just a little bit more. Prosecutors often claim they are simply hamstrung by the law, which does confer a great deal of protection on police. But there are many actions a prosecutor can take to create lasting, systemic police accountability—if they want to maintain any credibility with the people they’re supposed to serve. Prosecutors—both the local elected versions and Attorneys General at the state level—can and must do so much more. The work starts well before an officer causes harm.  The everyday working relationship between police and prosecutors is inherently conflicted; prosecutors rely on police for case leads and in-court testimony, and police need prosecutors to win cases and boost clearance rates.  (Sadly, trial wins and not public health outcomes are still the coin of the criminal justice realm.)  Prosecutors must institutionally separate themselves enough from police to judge them objectively.  This means refusing police union donations during their own elections.  It means mandatory reporting of cops to ethics investigators when the cops screw up.  It means putting a hard stop on lobbying in lockstep with police unions to thwart reform, as prosecutor associations so often do.  Prosecutors who are serious about accountability should also lobby for efforts like civilian oversight of police, shrinking law enforcement—including their own offices—and reinvesting in communities. Second, prosecutors till the ground for police violence when they ignore or actively cover up misconduct or corner-cutting in everyday cases. This happens all. The. Time. For example, right after a suspect is arrested, prosecutors have to decide whether to take the case forward or “screen” it out. A substantial number of those cases involve uncorroborated police testimony, manufactured defendant resistance, outright violence or coercion, or just plain uncertainty.  If prosecutors go along to get along, taking virtually all those cases forward (even if they drop them later), this validates predatory police tactics that ought to be discouraged. As that case moves forward, a prosecutor may also offer the defendant a deal to plead guilty to lesser charges, which then avoids judicial scrutiny of police misconduct. The prosecutor may also knowingly allow the officer to lie on the stand, a practice so common it’s got a nifty portmanteau: testilying. Don’t believe that these underhanded tactics occur? Consider that Louisville prosecutors offered Breonna’s ex-boyfriend, Jamarcus Glover, a supremely lenient plea deal if he would just implicate Breonna in an “organized crime syndicate.” This was a dirty trick to smear her name and bolster the cops’ story—and it only failed because Glover, heroically and against his own interest, turned down the deal. These day-in, day-out violations of public trust are virtually impossible to catch, but help create the bond between police and prosecutor that makes independence so difficult. To stop it, elected prosecutors and legislators need to ratchet up the professional penalties for prosecutors who cover for their friends to the detriment of the community. And we need to create standalone legal proceedings—a sort of constitutional small claims court—for victims of police misconduct that don’t depend on the prosecutor to represent those victims. Finally, when police do commit violence against the American people, prosecutors at the local, state, and federal levels must inflict far more fulsome, lasting accountability that is not limited to criminal prosecution.  Of course, the local prosecutor and maybe even the state AG, who all work directly with the offending cops, should be recused from any criminal investigation; this much is table stakes.  Any appointed, independent prosecutor should also consider foregoing a secret grand jury so the community can be confident that they made the strongest possible case.  (We are already seeing calls for AG Cameron to release the grand jury evidence in Breonna’s case.) But then the state Attorney General or the US DOJ should open a mandatory civil rights investigation that results in both resignation and decertification of the individual officers plus systemic changes to the office. That settlement would also require the local prosecutors to put the officers on a standing, public list and commit not to call them to testify in any case going forward. Police chiefs and mayors often complain that union contracts and arbitration makes firing bad cops so hard. Prosecutors can and should do it for them. And they should do it regardless of whether a grand jury returns an indictment. Of course, prosecutors won’t altruistically take on all these reforms voluntarily. These fundamental changes would make churning out convictions much more difficult, would strain their mutually beneficial relationship with the cops, and create more red tape. But that strain and that red tape is worth preventing the senseless loss of another Black life. The people marching in the streets can push both police and prosecutors to to conjure a vision of justice broader and deeper than criminal prosecution.  Breonna Taylor deserves it.  We all do.

Half a century ago, in October 1970, I became the executive director of the ACLU. I had a wish list, and foremost on the list was the establishment of a Women’s Rights Project.   I had been involved in a few women’s rights cases in my previous post as director of the New York Civil Liberties Union. My wife, who was a young corporate executive at a time when not many women held such posts, encountered discrimination against women on a regular basis. Most importantly, a feminist movement had been reborn in the late 1960s, and I wanted the ACLU to be part of it and to contribute expertise in litigation. Though the era of the Warren Court had just ended, and our prospects for extending constitutional rights to those previously denied such protections were drastically curtailed, I thought the re-emergence of a feminist movement might be the chance we needed to succeed in promoting women’s rights.   The ACLU board readily endorsed the establishment of a Women’s Rights Project (WRP). The next hurdle was raising the funds for it. The ACLU had only recently established a tax-deductible entity that could receive foundation grants, and it took me a while to get funding.

It is now well known that our country’s widespread use of money to determine someone’s freedom after arrest — a practice commonly referred to as cash or money bail — is harmful, unnecessary, and against the core principles of our Constitution. Over the past several years, a massive wave of political and legal action has taken aim at addressing the tremendous suffering and bad public policy embodied in our cash bail systems. Just this summer, “ending cash bail” was one of the agreed upon policies in the platform released by Bernie Sanders and Joe Biden. Jails are among the most dangerous clusters of COVID-19 transmission, and cause further spread in surrounding communities. The work of diverting people from unnecessary incarceration is thus all the more urgent. While stakeholders across the ideological spectrum seem to care about addressing the evils of wealth-based pretrial jailing, it remains to be seen whether any of those efforts are actually working. Sadly, our recent study in the Georgia Law Review suggests we have a long way to go even after claiming reform victory. Alongside two law professors, two computer science students, and a cadre of amazing student and community volunteers, I studied whether bail reform has worked in a state that has heralded numerous “bail reforms” over the past few years. In 2018, Georgia passed legislation aimed at improving fairness in misdemeanor cases, which included requiring authorities setting bail to consider a person’s finances. Later that year, the 11th Circuit Court of Appeals issued a ruling in a class action lawsuit challenging Georgia jurisdictions’ use of money bail to incarcerate people who are unable to pay to secure their freedom. The court found “presumptively constitutional” a system in which all arrestees, including those too poor to post bail, were guaranteed release from jail within 48 hours of arrest and provided individualized hearings with the assistance of a lawyer. Our study examined whether the constitutional principles outlined by the 11th Circuit as well as the updated Georgia law were actually being followed in practice. Examining a representative sample of 51 Georgia counties through court observations, review of court records, interviews, and surveys of court and jail staff, we assessed each county’s compliance with legal mandates required by bail reform. What we found was disheartening: Not one of the counties studied was in full compliance with the law, as none of them practiced all four of the legal requirements we studied. Most counties only satisfied one or two of the requirements, and many failed on all four:

My wife and I have made music together for the past 8 years, in an independent band named Unsung Lilly. We are passionate about creating epic, empowering pop music. As a same-sex couple, we have been heartened recently by the improved representation of LGBTQ people on television, and we are grateful that most people we meet are accepting of our relationship. It’s enough to make you think that maybe society has fully accepted that ‘love is love.’ Unfortunately, our recent experience with Facebook suggests otherwise. When Facebook’s platform refused to allow us to fully express ourselves as both artists and a same-sex couple, it brought back painful memories of discrimination against the LGBTQ community. Like all musicians, COVID hit us hard. We lost all our income, and because we were in the United States on work visas, we were unable to claim unemployment benefits without risking our visas. We were in a difficult spot, and we turned to our community on Facebook for help. We asked our fans to join our Patreon community and go behind the scenes of the creation of our new album, in the hopes that their support would keep us afloat in these unprecedented times. We posted a video on Facebook, announcing our new album and encouraging fans to join our Patreon page. We made it a sponsored ad so we could reach as many of our fans as possible. The ad, unfortunately, was rejected. While this happens sometimes, I couldn’t believe it when I saw the reason: Facebook had labeled our video as containing “adult sexually explicit content.” Assuming there must have been a mistake, we sought multiple appeals and resubmitted the ad several times, but each time received the same rejection message. We wracked our brains wondering what could be sexually explicit about our video…and then realized that it might be the image of us early in the video. It’s a romantic image of us with our foreheads touching. We use the image for all our profile photos across all platforms because we believe it’s a beautiful artistic shot of two people in love. You can watch the video here. When we talked about what happened on our social pages, many of our friends and fans shared our outrage. Some people even came up with possible explanations for why the ad was rejected. These ideas included theories such as “Facebook doesn’t allow intimacy of any kind in their advertisements, it would have been the same with a hetero couple,” and “what about the nature of some of the dancing shown later in the video.” We wanted to understand why our ad was rejected. So, we ran a test. We posted another ad with the exact same video and copy, but we changed the photo of us to a ‘nonromantic’ photo. The ad was approved. Next, we tried the same video and copy but replaced the photo of us with a picture of a heterosexual couple in the same romantic pose. Guess what? The ad with the heterosexual couple was approved too.

On Sept. 11, Gov. Ron DeSantis and state Republican leaders won their legal battle to disenfranchise hundreds of thousands of people with prior felony convictions. The U.S. Court of Appeals for the 11th Circuit embraced Republican politicians’ specious arguments that ex-felons should be required to pay all fines and fees before voting.   This decision dealt a blow to Floridians who care about racial justice and basic principles of democracy. The ruling also spited an unlikely and less discussed constituency: Republican voters.   This story starts in 2018, when DeSantis and Republican politicians campaigned against Amendment 4. The ballot measure abolished the permanent disenfranchisement of people convicted of most felonies. Vowing to be a “tough on crime” governor, DeSantis opposed the initiative.   Republican voters disagreed with him. Before Election Day, poll after poll showed a clear majority of Florida Republicans supported Amendment 4. Support among Florida Republicans climbed to 62%.   These numbers were not outliers. Nationally, 58% of people who voted for Donald Trump in 2016 support restoration of ex-felons’ voting rights.   On Election Day, the Sunshine State’s Democratic hubs turned out in force for the measure. So did the state’s most Republican regions. Amendment 4 won in 61 of Florida’s 67 counties. Conservatives, from the ruby-red Panhandle to the sea-green suburbs of Sarasota, voted for the measure.   Consider election results from individual counties. Voters in Gadsden and Broward counties, where Hillary Clinton received more than 65% of votes in 2016, supported Amendment 4. But so did a majority of voters in Dixie County, where Donald Trump garnered over 80% of votes in 2016. As did a majority of voters in Calhoun, Liberty, Walton and Washington counties, where Donald Trump earned more than 75% of votes cast in 2016.   In an era of rancorous politics, this resounding, bipartisan consensus over voting rights might seem unexpected. But attentive observers of Florida politics weren’t surprised.   The political strategists and grassroots activists behind Amendment 4 built an inclusive campaign that directly appealed to conservatives. Desmond Meade, a civil rights activist who spearheaded the campaign for Amendment 4, recruited a Republican staffer named Neil Volz to be the effort’s political director.   They enlisted Christian conservatives, who told voters that “redemption and second chances” were at the “heart of the Christian faith.” They recruited business executives who discussed the economic harms of permanent disenfranchisement and mass incarceration. They accepted support from liberal billionaire George Soros — but also from the archconservative Koch brothers and the religious right.   Together, this motley alliance — of the ACLU and the Christian Coalition, of libertarians and labor unions — won. And won big. A supermajority of Floridians supported Amendment 4, which amassed 1,072,740 more votes than DeSantis received on the same ballot.   Even before assuming office, DeSantis and his allies began plotting to undermine the will of Florida voters and, importantly, the will of Republican voters. They devised a scheme that conditioned ex-felons’ rights restoration on how much money they have. This “pay-to-vote system,” according to Judge Robert Hinkle of the Northern District of Florida, amounted to a modern-day poll tax.   Fast forward to Sept. 11, when the 11th Circuit sustained this poll tax. Commentators were quick to depict the ruling as a win for Republicans. In reality, the decision was a win for Republican party elites and a loss for voters of all partisan affiliations.   Sadly, this is not the first time that Republican party elites have ignored the wishes of regular Republican voters. A majority of Florida Republicans want the state to expand Medicaid under the Affordable Care Act. DeSantis refuses. 86% of Florida Republicans are concerned about climate change. DeSantis earns a “D” from the Sierra Club for his climate-change record. Blocking voting-rights restoration is just the latest episode of Republican leaders pandering to the far-right fringes and special interests at the expense of the majority of Republican voters.   It’s easy to look at this episode and get cynical about American politics. But that would be the wrong lesson to take from the Amendment 4 saga. At a time of bitter, partisan division, a supermajority of ordinary Democrats and Republicans joined forces to pass the most significant expansion of voting rights since 1965. Even if DeSantis scored a pyrrhic victory before the 11th Circuit, he can’t hold back this broad, bipartisan coalition forever.   This op-ed was originally published in the Orlando Sentinel.

Last week, a hideous allegation emerged in a complaint filed on behalf of immigrants detained at the privately operated Irwin County Detention Center (ICDC) in Georgia. In the complaint, nurse Dawn Wooten blew the whistle on “jarring medical neglect” she says she learned about while working at the facility, including an allegation that a government-contracted doctor repeatedly performed sterilizing procedures on women in Immigration and Customs Enforcement (ICE) custody without their knowledge or consent.   These allegations have an eerie familiarity: the U.S. has a long history of forcibly sterilizing Black, Brown, and Indigenous people. And the whistleblower complaint raises the concern that reproductive abuse is not just a part of our country’s past.   The issues are not limited to the allegations at the ICDC. The Trump administration’s hostility toward the reproductive freedom of immigrants in its custody has long been evident. In 2017, groups working with young immigrants discovered that the Office of Refugee Resettlement (ORR), which has custody over immigrants under age 18 who come to the country without parents, had instituted a policy of blocking pregnant young people from accessing abortion care and trying to coerce them to carry pregnancies to term against their will.   After learning of that anti-abortion policy, we sued on behalf of Jane Doe, a then 17-year-old Central American immigrant. Jane found out she was pregnant after being placed in a government-funded shelter, and immediately asked for an abortion. Federal officials responded by ordering the shelter to block her access to abortion care and forcing her to receive counseling at a religiously affiliated “crisis pregnancy center.”   Jane took the administration to court, fighting back to protect not only her own right to reproductive freedom, but the rights of a class of hundreds of other young immigrants like her who were also subject to the ORR’s anti-abortion policy. As a result of a protracted legal battle that went all the way up to the Supreme Court, Jane was able to receive the care she needed, and won a court order blocking ORR from obstructing all pregnant immigrant minors in its custody from making their own decisions about their bodies and their lives.   But the hostility against immigrants’ reproductive autonomy continued. In 2018, the Trump administration reversed an Obama-era policy that presumed pregnant people should not be detained. Now, ICE is making opaque, “case-by-case” decisions about whether a pregnant woman should be caged. In 2019, the ACLU of San Diego & Imperial Counties and ACLU of Texas Border Rights Center filed a series of administrative complaints to the Department of Homeland Security’s Office of Inspector General (OIG) based on interviews with more than 100 people soon after their release from Customs and Border Protection (CBP), including Border Patrol, custody. One pregnant woman said she was repeatedly slammed against a chain link fence by a Border Patrol agent. Another said she experienced a miscarriage while detained in a Border Patrol facility for 12 days, but did not receive any hygienic products or medical care.   Numerous pregnant women detained by Border Patrol recounted being told by officers to get abortions, all while being held in crowded, unsanitary facilities with little access to food or water. Medical attention for these women was often delayed or denied, all while they endured verbal abuse. This neglect and mistreatment has devastating results: During the first two years of the Trump administration, the number of undocumented women who miscarried while in government detention nearly doubled.   In February 2019, a 24-year-old Honduran woman went into premature labor and delivered a stillborn child four days after being detained by ICE. This spring, the ACLU of San Diego & Imperial Counties and Jewish Family Service of San Diego filed a complaint to the DHS OIG on behalf of a pregnant woman who was forced to deliver a child in a Border Patrol hielera while standing and still wearing pants, after Border Patrol agents repeatedly denied her requests for medical attention. And these cases only represent the experiences of immigrants in detention that have thus far come to light.   The evidence is clear: Immigrants are routinely abused, silenced, traumatized, and even killed by the U.S. immigration detention system, and it has to stop. Irwin Detention Center must be shut down. And to protect all immigrants and the reproductive freedom of those in detention, we must defund ICE and CBP, dismantle the cruel immigrant detention system, and ensure that everyone has the ability to make their own reproductive health care decisions.

Justice Ginsburg is often quoted as having said, “Fight for the things that you care about, but do it in a way that will lead others to join you.” She did exactly that when it came to reproductive rights and abortion in particular. Justice Ginsburg fought, she cast decisive votes, and she led in a way to bring others along by speaking the truth about why abortion matters: Abortion rights are about equality, restrictions on abortion about the forever story to treat women as second-class citizens. Her mark is in the jurisprudence, it’s on our protest posters, and it’s in our hearts. Writing in dissent in Gonzales v. Carhart, a case in which the court upheld a federal restriction on abortion, Justice Ginsburg plainly stated: “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” It was a point she had been making since her 1993 Senate confirmation hearings. In that hearing, Justice Ginsburg emphasized: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. … When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” Justice Ginsburg wrote about women and women’s equality as she spoke about abortion. (At the time, there was not yet a broader awareness of the importance of abortion for transgender men and nonbinary people). She recognized that when legislatures spoke of banning or restricting abortion, women were their target. Restrictions on abortion were part of the forever effort and set of laws restricting women that Justice Ginsburg could not abide. She spoke most robustly in her dissent in Gonzales about the sexism that is foundational to abortion restrictions, and that infected the majority opinion. In that case, Justice Kennedy, writing for the court, upheld a federal law outlawing certain abortion procedures. In the decision, he infamously wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort” and further opined that women’s regret could be greater upon learning about the procedure used for their abortion. The court’s solution: Ban the abortions to avert regret. Justice Ginsburg, in turn, is famous for her response. “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.” She pointed as illustration to Supreme Court cases from the late 19th and early 20th century upholding a state’s refusal to license a woman to practice law and upholding “protective” legislation that limited the number of hours a woman could work — provisions that had been justified by “our delicacy.” She pointed to passages in which the court justified limited working hours given our “physical structure” and the demands attendant to “a proper discharge of her maternal funct[ion].” She quoted the court in the lawyering case reasoning that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.” Men, one of the cases pointed out, were, “or should be, woman’s protector and defender.” In other words, she called out the court — the five men who constituted the majority — for assuming the role of protector in 2007, for denying women the choice of how to proceed to protect us from regret. As she said, “The solution the court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. … Instead, the court deprives women of the right to make an autonomous choice, even at the expense of their safety.”   Her implicit message was even more pointed. One of the decisions to which she pointed had language more explicit than that which she quoted:

Did you know the U.S. Postal Office existed before the Declaration of Independence? The USPS’ role in this country is so essential that it was written into the Constitution. This year, it’s preparing for an unprecedented task: delivering millions of mail-in ballots for Election Day.  In this week’s episode of At the Polls, we answer voters’ questions about absentee voting along with Joyce Harris, a veteran employee who has been with the USPS for more than 30 years, and Bobby Hoffman, the deputy director of the ACLU’s Democracy Division -— and coincidentally, a former letter carrier for USPS.

For millions of students, this school year will be like none other — not only because of the pandemic. States and the federal government are pushing a spate of anti-trans legislation and policies aimed to ban trans students from participating in sports like their peers and to undermine their abilities to fully participate in school and public life. The Department of Education is backing these efforts by threatening to withhold funding from any schools that refuse to enact anti-trans policies.  These attacks come after a Supreme Court