News & Commentary

The first time I didn’t meet John Lewis was at a 2010 gala dinner celebrating the 90th anniversary of the ACLU of Massachusetts. As President of the ACLU, I had been invited to present a civil liberties award to Lewis, who had agreed to accept the award and give the keynote address. On the train to Boston for the dinner, I received an email from the affiliate’s executive director, Carol Rose, telling me that Lewis would not be able to attend the dinner after all and asking if I would deliver the keynote speech instead. It was easy enough for me to choose a subject: John Lewis, whose reason for not attending the dinner was that he needed to stay at his post in the House of Representatives to vote for the repeal of the Don’t Ask Don’t Tell law. Lewis recorded a video apologizing for his absence. The audience not only forgave him, but honored his decision to act rather than speak as a reflection of his abiding commitment to the fight for equality. Like the ACLU, Lewis connected the dots between racial equality and LGBTQ equality: No one should suffer discrimination on the basis of who they are. Just as he had in the 1960s, he devoted himself daily to doing everything he could to make that aspiration a reality. The second time I didn’t meet John Lewis was in the Capitol Building, in February 2013. After attending a meeting on behalf of the ACLU, I observed the crowd gathered for the installation of a statue of civil rights icon Rosa Parks. I learned later from colleagues that Lewis was not present for that occasion as, again, he had more urgent business. He was across the street at the Supreme Court, watching the oral argument in the case of Shelby County v. Holder. Rather than celebrating a symbol of how far the country had come in the fight against racism, he chose to witness the latest chapter in Alabama’s campaign for retrogression. Alabama was attacking a central provision of the Voting Rights Act of 1965, the essential civil rights law he and his colleagues had forged through their persistence and courage — even through their brutal treatment on the now-infamous bridge in Selma, Alabama. As Lewis must have feared, the court chose states’ rights over voting rights and eviscerated that hard-won landmark law. Lewis’s response was to stay at his post in the House and keep fighting. I finally met Lewis quite by accident in a parking lot at the Atlanta airport. I was heading for a flight home after chairing a national ACLU board meeting when a colleague noticed Lewis exiting the building we were about to enter, heading for a car at the curb. Lewis was more than gracious in delaying the final leg of his trip home in order to chat with our group of civil libertarians from around the country, and kindly posed for numerous photos and selfies. On learning about our ACLU connection, he expressed his admiration of our work for civil liberties as we expressed our awe of his own. Lewis never strayed far from the nexus of the fight against injustice — whether in the streets, the courts, or Congress. His absence in one room, I found, guaranteed his presence in another, where a more consequential fight for equality was usually taking place. John Lewis was and will continue to be a force in all of our lives, reminding us that the arc of justice does not bend easily — and doesn’t always stay bent. As ACLU founder Roger Baldwin memorably said, no civil liberties battle ever remains won. We honor John Lewis best not by our words, but by recognizing that awards, obituaries, and commemoration ceremonies can fuel but must not distract from our ongoing actions to preserve and promote equality for all.

As the movement for D.C. statehood gains undeniable momentum, anxious cries from its detractors are reaching a fever pitch. Following the House of Representatives’ recent approval of the Washington, D.C. Admission Act, H.R. 51, which would finally grant statehood and full voting representation in Congress to over 700,000 people living in our nation’s capital, critics emerged in the Wall Street Journal, the National Review, and elsewhere to wring their hands over the alleged “partisan advantage” that statehood would bring. Further, they argued, D.C. statehood can only spring from a constitutional amendment. This focus on the potential partisan leaning of the new state’s federal delegation misses the point: D.C. statehood would correct an overt act of racial voter suppression with roots in the Reconstruction era. In 1867, President Andrew Johnson vetoed a bill granting adult citizens of the District — including Black men — the right to vote. Congress overrode the veto, granting significant political influence to Black Washingtonians. But just as Black voters started to exercise their power, Congress replaced D.C.’s territorial government with three presidentially appointed commissioners. The goal of that move was obvious: disenfranchising an increasingly politically active Black community. As Sen. John Tyler Morgan of Alabama explained in 1890, after “the negroes came into this district,” it became necessary to “deny the right of suffrage entirely to every human being.” As he put it more simply, and shamefully: It was necessary to “burn down the barn to get rid of the rats.”  In one cautionary opinion piece, attorneys David Rivkin and Lee Casey raise some policy concerns against the House bill. But their stated arguments are not constitutional barriers. Relying on Attorney General Robert F. Kennedy’s 1964 memo opposing D.C. statehood, the authors conclude that “abolishing the permanent seat of the federal government would be a profound change — the sort that can be accomplished only with a national consensus implemented through a constitutional amendment.” But H.R. 51 does not abolish the national capital — it only shrinks it, making a new state out of most of the resized District’s surrounding areas. Congress can do this, because the Framers knew how to say what they meant. They gave Congress authority to “exercise exclusive legislation in all cases whatsoever” over the District, stating only that it could not be larger than ten square miles. That sweeping authority includes the power to shrink the District to less than its current size. As Viet Dinh, Assistant Attorney General under President Bush, explained to Congress in 2014, Kennedy’s policy concern “is just that: a policy concern,” and would not override a constitutional act of Congress. There’s no better proof that the Framers meant to give Congress the power to shrink the District’s boundaries than the fact that it immediately did so after the District was first established. Congress gave back most of Arlington and Alexandria to Virginia in 1846. But the first Congress also changed the District’s configuration in 1791, less than four years after the Constitutional Convention. This bolsters the constitutionality of the House bill, because, as the Supreme Court said in Marsh v. Chambers (1983), acts of the first Congress offer “contemporaneous and weighty evidence” of the Framers’ intent. And when the court addressed the 1846 retrocession in Phillips v. Payne (1875), it strongly hinted that Congress had vast authority over the District’s boundaries, saying the case involved “action of the political departments” that “bound” the courts. Nor does the House bill violate the Twenty-Third Amendment, which gives the District of Columbia three votes in the Electoral College. That amendment would lead to a curious result: It would give the few residents of the smaller, reshaped national capital outsized influence in presidential elections. But there’s no constitutional conflict between the House bill and the Twenty-Third Amendment. As Viet Dinh explained, “the Constitution is not violated anytime the factual assumptions underlying a provision change.” Indeed, the Amendment gives the current District three — and only three — Electoral College votes even if its population somehow quadrupled tomorrow, and the bill provides an expedited process for removing those three electors. And importantly, as noted by Rivkin and Casey, the House-passed bill establishes expedited procedures for the House and Senate to repeal the Twenty-Third Amendment. Critics continue to ignore the essential argument in favor of statehood: ending the continued disenfranchisement of a non-minority Black jurisdiction that has left hundreds of thousands of Americans without representation in Congress. They also overlook the fact that in 2016, almost 80 percent of D.C. voters supported statehood in a referendum. Admitting a new state will always have political implications. That’s why the Framers fully left the matter to Congress’s discretion. Rivkin and Casey are right that D.C. statehood would be a “profound change,” —  a profound, constitutionally viable change — that would bring our country one step forward to an inclusive democracy.

The recent spikes in COVID-19 cases across the country are a stark reminder that the pandemic is still very much with us. As John Oliver recently noted, nowhere is that more true than in jails and prisons. The top five clusters of cases in America, and eight of the top 10, are in corrections facilities. The reason is simple: Most law enforcement officials, judges, and lawmakers have been unwilling to use their capital to protect these apparently expendable human beings — even though doing so will protect all of us and help eradicate the virus faster. In other words, politics and fear have trumped public health and the Constitution, and now we’re all worse off.   In response to the pandemic, the ACLU has embarked on one of the largest legal and advocacy mobilizations in our history. Alongside our affiliates and partners, we have filed over 30 lawsuits and pressed advocacy in every state to release vulnerable detainees and force officials to implement social distancing, augment hygienic practices, and expand testing. By many accounts, we are winning. In response to these suits, officials have improved conditions inside and done so faster than they would have otherwise. This has unquestionably saved lives and slowed the spread of the virus.   For example, we sued Oakdale Federal Correctional Institution in Louisiana — where five men died in the two weeks before filing — and forced the Bureau of Prisons to accelerate its review of medically vulnerable prisoners for home confinement. When that effort failed and cases continued to spike, the warden was fired. Across the federal prison system, we have exposed Attorney General Bill Barr and his BOP’s sluggish, cruel response to the pandemic, extracting improved conditions, teeing up compassionate release petitions, and spurring a Congressional investigation.   We also sued the Dallas County Jail for failing to protect incarcerated people from a rapidly-spreading COVID-19 outbreak. Immediately after we filed, people living and working at the jail described a “scurry of activity,” once jail officials realized their actions would come under scrutiny. Masks were distributed for the first time, sanitation measures adopted, and soap and hand sanitizer provided. We elicited testimony revealing that county officials were refusing to release sick people even after they had paid their bail, and successfully pressed for their release upon uncovering this practice.     In Memphis, Tennessee, we sued the Shelby County Jail a day after jail officials forced dozens of people who had tested positive for COVID-19 back into general housing, and pepper sprayed those who protested the move out of what they felt was a moral obligation not to infect others. While the case is ongoing, the jail has been ordered to undergo an independent inspection and produce a list of the many medically-vulnerable people it is incarcerating in the midst of this deadly pandemic.   Despite these victories, not all judges have risen to the occasion. For example, the federal prison at Butner, North Carolina houses some of the sickest and most COVID-vulnerable people in the federal system. By mid-June, 21 people were dead and more than 600 had tested positive. The judge called these numbers “tragic,” and yet held that they were somehow not proof that the prison had acted unconstitutionally — even though one of the leading Supreme Court cases in this arena requires wardens to prevent the spread of communicable disease. There are now 26 dead at Butner, including one staff member. In another case, a federal court of appeals even ruled that it was too harmful to the jail to require officials to provide soap and disinfecting supplies to incarcerated people, because the county may feel it is better to divert those supplies elsewhere. And in the Oakdale case mentioned above, a federal judge ultimately ruled against the prisoners in part because he was afraid of becoming a “superwarden” of the facility.   These and other judges have defied public health consensus and coerce them into pleading guilty instead of exercising their right to trial.   Most recently, this racism and subverting of humanity led to a Minneapolis police officer to crush George Floyd’s windpipe and kill him. It allowed an Attorney General to kneecap the federal consent decrees that attempt to prevent such killings. It allowed white vigilantes to hunt down Ahmaud Arbury on a jog. This same racism and inhumanity allowed a future president to call for the death penalty for five innocent Black boys in Central Park. And it allowed our jails and prisons to fill up with 2.2 million people in the first place, making them so crowded and filthy that COVID-19 will always be a problem — unless judges, jailers, police, prosecutors, and politicians are forced to confront this systemic human devaluation head on.    This fight to prevent people from dying of COVID-19 in jails and prisons is just one urgent component of the broader movement to end mass incarceration, over-policing, and state-sanctioned anti-Black violence. This work in and out of the courts — including in Congress, in statehouses nationwide, and at the ballot box — must continue until no human life is treated as expendable by our governments.

THE FIGHT is an inspiring, emotional tribute to the courtroom heroes defending our civil liberties. The film is more than an insider look at some of the most important legal battles of our time; above all, it shows us that we can all take a stand against injustice. We can all become heroes in our own lives, in our own ways. In honor of 100 years of the ACLU, commit to 10 actions that take 10 minutes each to join THE FIGHT.

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order.  While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.)  Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

After three grueling years of law school, aspiring attorneys have one last hurdle to overcome in order to practice law: the bar exam. In normal times, the bar exam is daunting, as the multi-day test determines the professional fates of lawyers-to-be. This year, with the COVID-19 pandemic raging, the bar exam has gone from being unnecessarily burdensome to unnecessarily deadly. Some states have granted bar admission to graduates of accredited law schools — a policy known as “diploma privilege.” But others are plowing ahead with exams — in-person or remote, on time or delayed. The policies and procedures for these exams are in constant flux. And the civil rights and civil liberties issues presented by this year’s bar exams are extensive. This year, states are limiting law grads’ access to menstrual products and opportunities to pump breastmilk during the bar exam. This policing of when someone can change their tampon or if and when someone can pump raises serious sex discrimination concerns.  Take the West Virginia bar exam, for example. “Feminine hygiene products” are explicitly prohibited in the testing room. Instead, the West Virginia Board of Law Examiners (WVBLE) requires those who are menstruating go to proctors to retrieve tampons or pads during the all-day exam. In response to rightful confusion from West Virginia bar examinees, the WVBLE has since stated that “there is no prohibition on bringing menstrual products to the test,” but it remains unclear if test takers can have the products with them in the testing room or not.  Montana’s policy is even worse: Menstrual hygiene products are not included in the list of permitted items (although “medical items” are allowed), and the exam instructions do not otherwise indicate that these products will be provided to test-takers. And in Nebraska, one examinee was told that she needed permission in order to change her tampon more often than every two hours. The notion that anyone can use a tampon to cheat would be laughable if it weren’t being used to disadvantage menstruating test-takers. In any event, other states have allowed examinees to bring menstrual products into exam rooms for years without incident. States are also putting up unnecessary roadblocks for test-takers who are lactating. For example, administrators in Oklahoma refused to extend the 15-minute break for one woman to pump, even though that isn’t nearly enough time to prepare the equipment, pump, and clean and sanitize the equipment. Sadly, this problem isn’t unique to the pandemic: exam administrators have long created roadblocks for menstruating and breastfeeding test takers. But this creates further barriers to new parents entering the legal profession who are already facing an unprecedented lack of childcare. Blocking access to menstrual products and opportunities to pump breastmilk during the bar exam is also a gender equity issue. First, more often than not, menstrual products are placed in women’s restrooms only. Failing to provide menstrual products in facilities that are accessible to everyone who needs them, including some transmen and non-binary people, leaves some test takers with no access to necessary products at all. Also, what products will be provided? Menstruation is different for everybody, and those who menstruate know the products that work best for them. Not to mention the privacy concerns raised by needing to disclose personal medical information to proctors. Test takers who are breastfeeding are similarly negatively affected when exam administrators refuse to allow them to safely express breastmilk during the exam at an appropriate time and place, effectively preventing many new parents from sitting for the bar. Bar examiners should be working to make the legal profession more accessible to those who already face barriers to success in the legal profession — including women, trans and non-binary people, and new parents — not less. Fortunately, some states have already reversed course in response to public outcry. But it shouldn’t take going viral on Twitter for all students to be able to sit for the bar exam in safety and dignity.

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase “defund the police” can be heard in cities across the country. As the concept of slashing police budgets and reinvesting those resources into Black and Brown communities goes increasingly mainstream, a more radical call is also gaining attention: Abolish the Police. On At Liberty this week, attorney, author, researcher, and organizer Andrea Ritchie and senior staff attorney for the ACLU’s Trone Center for Justice, Carl Takei, joined us to talk abolition, divestment, and what a world without police might look. “[Abolition is] about recognizing the instinct in all of us to punish people who hurt us, or to seek retribution instead of repair, and to acknowledge that actually in order to create a society that is free from violence, we have to move away from mobilizing the state and giving the state a monopoly on violence to respond to violence,” says Ritchie. “Instead, we need to dig to the root causes of violence and transform those conditions and causes, such that we can all have an opportunity to live in a world free of violence, not just people who are in positions of privilege in the current political, social, economic structure.”

In the past week, unidentified federal officers in camouflage fatigues, labeled only “police,” abducted people off the streets of Portland in unmarked vehicles and threatened the “Wall of Moms” standing up for our Constitution. The administration later confirmed the unidentified officers were Border Patrol agents.   This blatant demonstration of

As the Coronavirus pandemic continues to sweep through the country, especially in prisons and jails, the opioid epidemic has also seen a resurgence. The Washington Post reported that suspected overdoses jumped nationally by 18 percent in March, 29 percent in April, and 42 percent in May. This fits a nationwide pattern of excess deaths — deaths above the typical number anticipated by the CDC — unrelated to Coronavirus, such as the increased toll from heart attacks, strokes, and cancer, all as our medical infrastructure is pushed to its limits. There has never been a more critical time to provide medication for addiction treatment (MAT) for people with opioid use disorder (OUD). MAT consists of three FDA approved medications — methadone, buprenorphine, and naltrexone — that treat OUD, the disease at the root of opioid addiction. MAT is basic healthcare and a cornerstone of care for tens of thousands of people in our communities who have OUD. The need for MAT is particularly strong in jails and prisons: Without access to their medication, recently incarcerated people are left with few tools to battle their addiction. If provided with MAT, they are 74 percent less likely than people who are deprived of MAT to die of any cause while they are still incarcerated, and 85 percent less likely than people who are deprived of MAT to die of an overdose in the weeks after their release. Yet in the face of these stark numbers, 98 percent of jails and prisons still deny this lifesaving treatment to incarcerated people. The small but growing number of prisons and jails that have implemented programs to provide MAT to incarcerated people with OUD have seen success. One study of the Rhode Island prison system, which was among the first to implement a robust MAT program, found that providing MAT reduced post-release deaths by 60 percent, and all opioid related deaths in the entire state by 12 percent. Sheriff Chris Donelan in Franklin County, MA reported a reduction in recidivism, overdose deaths, disciplinary concerns, and contraband after providing access to MAT. In addition to saving lives, courts have found that providing MAT is a constitutional and civil right for incarcerated people. The Eighth Amendment to the U.S. Constitution bans “cruel and unusual punishment,” which the Supreme Court has interpreted as prohibiting “deliberate indifference to serious medical needs.” Further, the Americans with Disabilities Act (ADA) prohibits discrimination in public services, such as health care in jails, based upon a recognized disability, like OUD. Last year, the First Circuit affirmed a ruling in the District of Maine under the ADA that a jail could not deny a woman serving a 40-day sentence access to the MAT prescribed to her by a doctor. This followed a decision by the District of Massachusetts that required a jail to provide an incarcerated individual with his prescribed MAT dose throughout his time in custody, holding that the denial of his medically necessary MAT was likely cruel and unusual punishment in violation of the Eighth Amendment as well as unlawful disability discrimination under the ADA. As of July 22, more than 100,000 incarcerated people have been infected with COVID-19 and more than 760 have died. Even in the best of times, incarcerated people often receive substandard medical care, or no care at all. As COVID-19 cases make a resurgence in parts of the U.S. and continue to dramatically spike in jails, prisons, and detention facilities across the country, it has never been more important to provide evidence-based care for people with opioid use disorder in order to conserve hospital resources and save lives. Our prisons and jails aren’t designed to be drug rehab centers, and we must stop using them as such. Keeping people out of jail in the first place by making sure that they have reliable access to MAT both inside jails and prisons, and when they are out in the community, will help stop the rampant spread of COVID-19 and reduce the burden on our medical system. Further, as researchers have pointed out, the symptoms of opioid withdrawal and COVID-19 can overlap. Without access to MAT for OUD, there is an increased danger that prison officials will miss suspected cases of COVID-19, assuming that the symptoms exhibited are a result of opioid withdrawal, when in fact they are symptoms of COVID-19. This creates a danger that a positive COVID-19 case could be missed by a correctional facility, allowing a positive individual to spread the disease to others with whom they share close quarters. The answer to this problem should never be solitary confinement. Denying incarcerated people access to MAT adds a strain on the American health care system, even in the best of times. Nearly one quarter of America’s prison and jail population of 2.2 million have OUD. During this crisis, it is even more imperative that people with OUD get access to the MAT they need. Instead of letting unlawful and scientifically unsound jail policies fill our hospital beds with people experiencing post-release overdoses, let’s provide MAT to incarcerated people and use our hospitals to fight the COVID-19 crisis at hand. We’ve already seen the federal government take some positive steps once thought impossible. This includes letting MAT patients take home their buprenorphine for twenty-eight days in order to limit social contact while maintaining MAT treatment. While the federal Bureau of Prisons (BOP) has taken steps to expand access to MAT, the Department of Justice has supported recommendations from the Government Accountability Office aimed at making BOP improve the implementation of its MAT program so that it can serve everyone in need. It is time for Congress and state legislatures around the country to follow the lead of states like Rhode Island, and require MAT in all jails and prisons for everyone it is clinically appropriate for.