News & Commentary

Since the inception of this pandemic, it has been clear that incarcerated people are particularly at risk from COVID-19. In addition to the clear, consistent guidance from public health experts, incarcerated families, corrections staff, and data scientists urged states to take action to prevent tragedy.   Unfortunately, states failed to heed these warnings and have failed to protect incarcerated people, facility staff, and communities at large from the looming threat of COVID-19.   This is the core finding of a new ACLU report: “Failing Grades: States’ Responses to COVID-19 in Jails & Prisons,” co-authored with Prison Policy Initiative. The report evaluated states based on four criteria:

As a Buddhist priest to a man on death row, I have prepared myself for the difficult, yet necessary role of attending the execution of a man I’ve been advising for 11 years in order to provide support as he crosses over from this life. I want nothing more than to fulfill my priestly duty to Wes Purkey, but because of the Federal Bureau of Prison’s decision to schedule his execution during a pandemic, I feel substantial pressure to abandon my religious commitments to him. I’m being asked to make an impossible decision — violate my religious beliefs or risk my health and life by attending an execution that could become a “super-spreader” event for COVID-19. I first met Wes  in 2009. As a Zen Buddhist, Wes sought my spiritual guidance to answer questions and share religious insights about life and death. While I knew Wes would eventually be executed, I was shocked and horrified when he finally received an execution date. That date was originally set for December of last year, but was postponed. His new execution date is just days away, and remains in place despite posing significant risks to the health of all involved due to COVID-19. 

In 1851, Sojourner Truth delivered a speech best known as“Ain’t I A Woman?” to a crowded audience at the Women’s Convention in Akron, Ohio. At the time, slavery remained in full force, a vibrant enterprise that fueled the American economy. Various laws protected that system, including the Fugitive Slave Act, which resulted in the abduction of “free” Black children, women, and men as well as those who had miraculously escaped to northern cities like Boston or Philadelphia. Bounty hunters then sold their prey to Southern plantation owners. The law denied basic protections for Black people caught in the greed-filled grasps of slavery.   Ms. Truth condemned this disgraceful enterprise, which thrived off not only uncompensated labor, but also physical and psychological terror. Most will remember Ms. Truth’s oration for its vivid descriptions regarding physical labor; Black women were forced to plough, plant, herd, and build — just as men. Yet far too little attention centers on her condemnation of that system, which made sexual chattel of Black women, and then cruelly sold off Black children. This was human trafficking in the American form, and it lasted for centuries. Ms. Truth pleaded:   “I have borne 13 children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?”   Following the Supreme Court’s decision in June Medical Services v. Russo this week, it is worth reflecting on the racist origins of the anti-abortion movement in the United States, which date back to the ideologies of slavery. Just like slavery, anti-abortion efforts are rooted in white supremacy, the exploitation of Black women, and placing women’s bodies in service to men. Just like slavery, maximizing wealth and consolidating power motivated the anti-abortion enterprise. Then, just as now, anti-abortion efforts have nothing to do with saving women’s lives or protecting the interests of children. Today, a person is 14 times more likely to die by carrying a pregnancy to term than by having an abortion, and medical evidence has shown for decades that an abortion is as safe as a penicillin shot—and yet abortion remains heavily restricted in states across the country.   Prior to the Civil War, abortion and contraceptives were legal in the U.S., used by Indigenous women as well as those who sailed to these lands from Europe. For the most part, the persons who performed all manner of reproductive health care were women — female midwives. Midwifery was interracial; half of the women who provided reproductive health care were Black women. Other midwives were Indigenous and white.   However, in the wake of slavery’s end, skilled Black midwives represented both real competition for white men who sought to enter the practice of child delivery, and a threat to how obstetricians viewed themselves. Male gynecologists claimed midwifery was a degrading means of obstetrical care. They viewed themselves as elite members of a trained profession with tools such as forceps and other technologies, and the modern convenience of hospitals, which excluded Black and Indigenous women from practice within their institutions. History would later reveal that it was literally on the backs of Black women’s bodies that such tools were developed. Dr. Marion Sims famously wrote about his insomniac-induced “epiphanies” that stirred him to experiment on enslaved Black women, lacerating, suturing, and cutting, providing no anesthesia or pain relief. Only recently have the terrors that Black women endured through nonconsensual experimentation by gynecologists of the 19th and 20th centuries been acknowledged.   Successful racist and misogynistic smear campaigns, cleverly designed for political persuasion and to achieve legal reform, described Black midwives as unhygienic, barbarous, ineffective, non-scientific, dangerous, and unprofessional. Dr. Joseph DeLee, a preeminent 20th century obstetrician and fervent opponent to midwifery, stated in a much-quoted 1915 speech, “Progress Toward Ideal Obstetrics”:

When COVID-19 first reached the U.S., the epicenter was a single nursing home in Washington State, where 45 people died. That nursing home outbreak was a precursor of what was to come. Ever since, the virus has been devastating nursing homes across the country, due in part to

Today, in an unprecedented decision, the Supreme Court ruled that the state of Montana must provide funding for religious education as part of its school voucher tax credit program — despite the fact that the Montana Constitution forbids government aid for religious education and activities. The court’s opinion in Espinoza v. Montana Department of Revenue marks an alarming sea change in the law and calls into question the continued validity of similar provisions in dozens of other state constitutions, which aim to prohibit government funding for religious institutions.   The Supreme Court has held that school vouchers for religious education are permissible under the First Amendment because, according to the court, the aid is indirect, meaning it is not provided directly to schools but instead funneled to individual students and families who then decide which schools to attend. However, the court has also recognized that state constitutions can, and often do, provide stronger protections than the federal Constitution against government funding of religion.   Today’s decision disregards that longstanding precedent and will be detrimental to both religious freedom and public education: The court’s ruling could effectively mean that, when states offer school vouchers or similar funding involving indirect aid — such as Montana’s tax credit scholarship program — they now must extend the aid to religious schools, too. This is despite the fact that millions more in government funds will be diverted from public schools as a result, and taxpayer dollars will be used to support religious indoctrination and training for future religious leaders and adherents. This also means that the government will fund discrimination against minority-faith and LGBTQ students and job applicants, as well as students and prospective employees with disabilities, whom many religious schools refuse to admit or hire. Indeed, earlier this year, the court heard arguments in two cases that could expand the ability of religious schools — the very same ones that often receive voucher funding — to discriminate in hiring and firing based on any ground the schools want, including race and ethnicity.   With today’s ruling and its 2017 decision in Trinity Lutheran v. Comer allowing — for the first time ever — direct funding of a church as part of a playground resurfacing program, the Supreme Court appears to be marching toward a legal paradigm that would virtually destroy a fundamental principle on which the Establishment Clause of the First Amendment was built. As James Madison, the architect of the First Amendment, explained, even “three pence” in compelled aid to religion was too much of a threat to religious liberty. Madison believed that forcing individuals to financially support religion was a direct assault on the fundamental human right of freedom of conscience. He and the other framers also worried that taxpayer funding of religion would weaken religious institutions by making them dependent on the government aid and engender religious divisiveness.   Dozens of states, including Montana, took Madison’s concerns seriously. They enacted constitutional provisions like Montana’s to protect their taxpayers’ consciences when it comes to matter of faith, preserve the vitality of their public school systems, respect religious institutions’ autonomy, and facilitate peaceful religious pluralism in their communities. But increasingly, the Supreme Court appears not to care about these values. Instead, religious freedom these days goes only one way — in favor of religious institutions and against the separation of church and state.

After a month of unprecedented protests against police brutality across the country, in which encrypted communications have been essential for organizers and protesters to communicate safely, the Senate Judiciary Committee plans to take up a bill that will strike at the heart of encrypted communications and undermine free expression on the internet. The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act) amends an existing federal law to force online platforms into changing how they moderate content online by scanning and censoring more of their users’ communications. In addition to the harms against protesters, the EARN IT Act — like SESTA/FOSTA, which amended the same provision a few years ago — threatens our online speech and privacy rights in ways that will disproportionately harm LGBTQ people, sex workers and others who use the internet to privately communicate and share information and resources. The Senate Judiciary Committee is getting ready to vote on it on Thursday, July 2. We sent a letter yesterday urging committee members to vote against this dangerous bill. The EARN IT Act purports to require online platforms to “earn” certain protections from liability. Current federal law, through a provision known as Section 230 of the Communications Decency Act (CDA 230), generally shields platforms from legal liability for content provided by users, something that is foundational to modern online communications. The EARN IT Act conditions this shield on “voluntary” compliance with best practices to combat online child sexual exploitation and to limit children’s access to certain content through age gating and age rating practices, which are policies designed to keep youth from exposure to certain content. Most troubling, the bill tasks an unelected commission with writing the best practices. The commission will not include representation from the LGBTQ, sex worker, or other marginalized communities. And to make matters worse, the bill provides the commission too much discretion to recommend policies that undermine strong encryption and free speech. For good measure, the bill stacks the deck to coerce platforms into certifying compliance with best practices and backs any false certifications with criminal penalties. In other words, the “voluntary” best practices are mandatory. To be clear, child sexual exploitation is a serious problem that Congress should address. But this bill is not a solution. For one thing, the existing law does not protect platforms from liability for federal crimes like child sexual exploitation. Also, the bill does not at all tackle known deficiencies in our response to this problem. For instance, it provides no assistance for prevention programs and makes no attempt to address the root causes of the problem. Rather than provide measured solutions that would protect children, the EARN IT Act instead needlessly threatens our privacy and online speech rights. Attorney General William Barr, who will head the commission that writes the best practices and have near veto power over them, has identified strong encryption as one of the primary bars to effective law enforcement. Thus, it is particularly concerning that the EARN IT Act provides broad latitude for “best practices” that involve building vulnerabilities into encrypted communications — vulnerabilities like “back doors” for law enforcement that are really open doors for bad actors or mass scanning of private communications. Any threat to encryption is a threat to the privacy and safety of every American, but particularly to the LGBTQ community, sex workers, and to other vulnerable and marginalized groups. Strong encryption can be vital to many in the LGBTQ community who rely on the internet to access a support network, seek resources to combat discrimination and abuse, and find doctors and treatment to assist with transition, HIV prevention, and other health concerns. Now, as many in our country take to the streets to demand racial justice, encryption is critical for organizing protests and ensuring the safety of protesters. Even more, when companies weaken encryption for U.S. consumers, they are poorly positioned to resist requests by foreign governments to apply the same standards to products abroad.  This can pose a particular threat to individuals abroad that live in countries that actively persecute and criminalize LBGTQ people. Encryption also safeguards domestic violence victims, allows journalists to communicate with confidential sources, and protects our military and national security in conflict zones. The EARN IT Act, with its broad mandate and the authority it grants to an anti-encryption Attorney General, endangers the protection encryption offers. That’s not the EARN It Act’s only problem. In addition to undermining encryption, the bill poses serious dangers to online free speech by requiring platforms to engage in broad content moderation practices or lose the protections from liability afforded to them by CDA 230. Congress has abrogated CDA 230’s liability shield only one other time. SESTA/FOSTA, introduced in 2018,eliminated 230’s protections for sex trafficking advertisements. That experience taught us two things. First, to avoid liability, online speech platforms will engage in broad content moderation and censorship. Entire web sites that provided forums for sex workers to connect, share critical health and safety information, and build community disappeared after SESTA/FOSTA. Google and other remote storage sites began to scan for sex-related content and remove it from their systems. Second, the censorship of sex-related speech will disproportionately harm the LGBTQ community. Under the EARN IT Act, much like SESTA/FOSTA, best practices will not only apply to illegal child sexual exploitation. By requiring platforms to broadly monitor and censor speech to which children might be exposed online, the EARN IT Act’s commission may recommend best practices that disproportionately censor, among other things: sex education materials, online support systems and communities for youth who are transgender or non-binary, and all other youth who are in any way questioning their gender or sexual identity to communicate with each other and with community members, any sex-related speech, particularly the speech of sex workers and of those in the sex industry, and any communication or speech involving youth. Paradoxically, the best practices could harm children’s ability to engage fully and experience the tremendous benefits to education and enrichment the internet offers. The bill’s sponsors want us and their fellow lawmakers to ignore all of that, though. They’re saying that their bill will hold powerful companies accountable for their failure to protect children from dangers on their services. The idea that big online platforms will risk liability rather than silencing our speech and undermining our privacy simply to avoid that liability risk is laughable, and we already know from experience with SESTA/FOSTA that they won’t. They will sacrifice our privacy and our ability to communicate freely to ensure their bottom line. Child sexual exploitation online and anywhere else is a serious problem that deserves serious solutions. Congress should spend its time devising methods to properly safeguard children from child sexual exploitation, not undermining the privacy and speech rights of the LGBTQ community, protesters, and all of us.

For well over a year, the U.S. government has held Adham Hassoun in a detention facility without trial, without criminal charge, and without end in sight. Today, a court ordered the government to release him and expressed contempt for the government’s frivolous and alarming legal position: “Distilled to its core, [the government’s] position is that [it] should be able to detain Mr. Hassoun indefinitely based on the executive branch’s say-so, and that decision is insulated from any meaningful review by the judiciary. The record in this case demonstrates firsthand the danger of adopting [the government’s] position. [The government’s] position cannot withstand constitutional scrutiny.” The Court gave the government until July 2 at noon to seek an emergency appeal to block Mr. Hassoun’s long-awaited release, even as the Court told the government it didn’t have “a serious chance” of persuading a higher Court of its baseless arguments. Failing what would be an unwarranted intervention by an appellate court, Mr. Hassoun will finally be free from his illegal imprisonment. “These government officials have gamed the courts to drag out my detention,” Adham said to the court. “Now they apparently want to drag it out for many more months in appeals while I stay in detention. All I want is for someone to recognize the truth and to set me free.” Though the ruling is a victory for due process, Adham will never get back the nearly 17 months he’s already spent locked up on false pretenses. That Adham has been deprived of his liberty for this long is an alarming example of the government’s abuse of overbroad national security powers.  The government claims it can indefinitely detain Adham based on a never-before-used provision in the 2001 Patriot Act that — it argues — lets the executive branch indefinitely detain someone it deems a “threat to national security.” The government also relied on an obscure immigration regulation which it said gave it sweeping powers of detention, and which the judge declared a “legal nullity” in December. In rejecting the government’s arguments, the Court warned that adopting the government’s position would give it a chillingly powerful weapon for imprisoning people without charge and without credible evidence. Like many Muslim men in America, Adham became a subject of unfounded government suspicion in the years after 9/11. In 2007, he was convicted of violating a deeply problematic federal statute that allows prosecutors to charge people with “material support” for terrorism. In Adham’s case, that “material support” consisted of charitable aid to organizations supporting Muslims suffering in military conflicts abroad in the 1990s. After Adham served his criminal sentence, he was placed in immigration detention, where the government held him for several months. Once it couldn’t hold him under immigration law any longer, the government turned to the Patriot Act, dredging up a litany of false accusations to make it seem as though releasing Adham would endanger national security. Adham filed a habeas petition to challenge his indefinite detention and vigorously denied the government’s allegations. In response, the government tried to

As cases of COVID-19 in immigration detention facilities have exploded in recent months, Immigration and Customs Enforcement (ICE) has continued to argue that it has done all that it possibly can to manage this crisis. A new report by the Department of Homeland Security’s Office of Inspector General (OIG) — the department’s oversight body — however, sheds new light on ICE’s failure to do so, and the continued danger faced by detainees and detention staff alike.   Notably, the OIG’s report is based purely on surveys of ICE personnel themselves, without actual inspections of facilities or any interviews with detainees, as is typically expected for such investigations. But even with this limited set of self-reported data, the OIG’s report provides startling insight into ICE’s failure to control the spread of COVID-19 in detention — and the fears of ICE’s own personnel regarding their inability to address outbreaks in individual facilities.   Since the start of the pandemic, ICE has claimed in

This piece was originally published in Slate. Just one month ago, the world saw a video of Minneapolis officer Derek Chauvin kneel on George Floyd’s windpipe with an eerily calm demeanor, while officers Tou Thao, J. Alexander Kueng, and Thomas Lane acted as the lookout men. Despite what we all saw, however, Hennepin County Attorney Mike Freeman at first refused to arrest or indict any of the four men, insisting, “I will not rush to justice.” This was keeping with his prosecutorial instinct: In his first 16 years in office, Freeman did not charge a single officer for a civilian killing. After days of relentless local and national protests, Freeman finally brought a third-degree murder charge against Chauvin. Minnesota Attorney General Keith Ellison soon stepped in, announcing on Wednesday that he would enhance the original charge against Chauvin and also bring charges against the three officers who watched and held the crowd back. However, it took a nauseating video, the herculean efforts of protesters, and global outrage simply to trigger criminal proceedings. That is because the local prosecutor’s instinct was to protect the officers he works with rather than the citizens he serves. Freeman’s initial reaction is a normalized pathology that extends beyond Minneapolis. Many prosecutors around the nation have a toxic, co-dependent relationship with police. Prosecutors and police are more than just institutional allies in law enforcement; they are often partners in the police’s crimes. The seemingly unending list of young Black people killed by police without local repercussions—Michael Brown, Philando Castile, Stephon Clark, Eric Garner, Tamir Rice, Alton Sterling, and more—speaks to this phenomenon’s persistence and national scope. So, while many will focus on the short-term victory of criminal charges, prosecution alone will not prevent the next atrocity. We need a complete overhaul of the prosecutor-police relationship. As we argued recently in the Boston University Law Review, police exert significant control over prosecutors in both formal and informal ways. For example, in sociological research examining police and prosecutorial practice in Chicago, prosecutors relied on police testimony to win trials, and those trial wins were essential to earning promotions within the office. Prosecutors described an overt pressure to comply with a police culture of “silence and violence” that all but dictated that prosecutors operate with “blinders” on. This meant that questioning an officer’s version of events, whether there was a dead suspect or just a missing bag of drugs, was seen as a sign of “disrespect” to the officer. Conscientious prosecutors who questioned the legitimacy of a police report or the word of an officer could end up with tarnished reputations amongst law enforcement, resistance from officers, and marginalization in the office. This perverse incentive structure normalized police perjury and created the conditions upon which police misconduct could thrive in small and big ways. These practices stacked the deck in favor of the state in run-of-the-mill prosecutions and often violated the law—both state and constitutional. But, in the most extreme cases, where a suspect was shot or killed, they helped ensure that there was no justice for the victim or community, no accountability for the police, and the officer involved was allowed to continue walking their beat. Despite the power that police exert over prosecutors, however, prosecutors are not exactly potted plants either. The law gives prosecutors vast discretion to criminally charge and otherwise decide the course of criminal cases. But when police are the ones committing crimes, prosecutors often deploy that power to cover for and effectively encourage the criminality, rather than to combat it and seek justice. After all, prosecutors know where their bread is buttered This occurs in overt ways, like charging (though later dropping, under pressure) Breonna Taylor’s boyfriend in order to whitewash a murderous no-knock warrant. But it also takes more mundane forms. Failing to disclose a witness statement that contradicts a favorite officer; dropping charges that involve police misconduct, before a judge can hold the officer accountable in open court; even quietly but effectively lobbying against police reform. These subtle manipulations of the criminal justice system allow the gravy train to keep running and, eventually, make the failure to charge an officer like Chauvin not a momentary lapse, but the natural culmination of a career-long partnership. This is why, even if officers like those in Minneapolis—or nationwide—are eventually charged for their crimes, those one-off instances are unlikely to stop police and prosecutors writ large from continuing their mutually beneficial dance. There are straightforward fixes to this state of affairs, including increased oversight, ending police-protective doctrines like qualified immunity, and electing truly independent prosecutors. When it comes to officers like Chauvin who have a history of complaints, prosecutors can refuse to call them to testify in criminal cases. However, we need to properly diagnose the problem before discussing solutions. Much like Americans tend to ignore voting rights until election years, or pandemic prevention until after one hits, we tend to scrutinize the prosecutor’s role in police violence only in the wake of high-profile killings. And rarely do we consider police-prosecutor co-dependence as a systemic, national phenomenon, rather than a static, local one. But we need to start. Only then will we understand how Chauvin could remain so calm and at ease, with his hands in his pockets, as he killed George Floyd—even with numerous cameras and his own bodycam running. Perhaps it was the near assurance that Floyd’s death would be of little importance to his prosecuting counterparts, at least compared with the hundreds of cases they would need Chauvin for in the future. Perhaps he believed that prosecutors would, as so many had before, step in and clean up the scene of his crime.