News & Commentary

In the wake of the killings by police of George Floyd, Breonna Taylor, and many others, we are seeing a massive popular political realignment around the role and scope of policing in the United States, led by Black organizers and Black-led movement groups. More than ever before, this movement is calling for divestment from police departments, and reinvestment into the life-affirming services that help communities thrive. It’s not enough for local governments to make small cuts, to invest in yet another set of flawed training programs, or to paint the streets with slogans. Cities, towns and local leaders must undergo a reckoning with the political power of law enforcement organizations which have a long history of vigorously opposing any reduction in police power; the amount of money that has been stripped away from necessary public services in favor of militarized weaponry and surveillance technology; and violence by law enforcement that has been enabled by racist, invasive, and abusive police practices. The current spotlight on police violence provides a golden opportunity for local elected leaders across the country to take bold and swift action to reduce the footprint of police in Black communities and reallocate resources into alternatives to policing that keep communities safe and help them thrive. To achieve substantive change, local officials need to commit to:

On Monday, the U.S. Supreme Court ruled in a 6-3 decision that Title VII of the Civil Rights Act of 1964, the federal ban on sex discrimination in employment, protects LGBTQ workers from discrimination. The decision was based on a straightforward reading of the law: Discriminating against someone because they are LGBTQ is inherently sex discrimination. In his dissent, Justice Alito raised concerns about implications for employers with religious objections to hiring LGBTQ people, but the questions before the court in Monday’s monumental victory for LGBTQ workers did not involve whether the employers had a religious right to fire LGBTQ people. The court made clear that the scope of any religion-based defenses offered by Title VII, the Religious Freedom Restoration Act, and the constitutional protections for religious exercise would be addressed in future cases.

Last week, IBM, Amazon, and Microsoft announced they would pause or end sales of their face recognition technology to police in the United States. The announcement caught many by surprise. For years, racial justice and civil rights advocates had been warning that this technology in law enforcement hands would be the end of privacy as we know it. It would supercharge police abuses, and it would be used to harm and target Black and Brown communities in particular.   But the companies ignored these warnings and refused to get out of this surveillance business. It wasn’t until there was a national reckoning over anti-Black police violence and systemic racism, and these companies getting caught in activists’ crosshairs for their role in perpetuating racism, that the tech giants conceded — even if only a little.   But why did IBM, Amazon, and Microsoft’s sale of face recognition to cops make them a target of the Black Lives Matter movement? How is face surveillance an anti-Black technology?   Face surveillance is the most dangerous of the many new technologies available to law enforcement. And while face surveillance is a danger to all people, no matter the color of their skin, the technology is a particularly serious threat to Black people in at least three fundamental ways.   First, the technology itself can be racially biased. Groundbreaking research conducted by Black scholars Joy Buolamwini, Deb Raji, and Timnit Gebru snapped our collective attention to the fact that yes, algorithms can be racist. Buolamwini and Gebru’s 2018 research concluded that some facial analysis algorithms misclassified Black women nearly 35 percent of the time, while nearly always getting it right for white men. A subsequent study by Buolamwini and Raji at the Massachusetts Institute of Technology confirmed these problems persisted with Amazon’s software.   Late last year, the federal government released its own damning report on bias issues in face recognition algorithms, finding that the systems generally work best on middle-aged white men’s faces, and not so well for people of color, women, children, or the elderly. The federal government study concluded the rates of error tended to be highest for Black women, just as Buolamwini, Gebru, and Raji found. These error-prone, racially biased algorithms can have devastating impacts for people of color. For example, many police departments use face recognition technology to identify suspects and make arrests. One false match can lead to a wrongful arrest, a lengthy detention, and even deadly police violence.   Second, police in many jurisdictions in the U.S. use mugshot databases to identify people with face recognition algorithms. But using mugshot databases for face recognition recycles racial bias from the past, supercharging that bias with 21st century surveillance technology.   Across the U.S., Black people face arrest for a variety of crimes at far higher rates than white people. Take cannabis arrests, for just one example. Cannabis use rates are about the same for white and Black people, but Black people are nearly four times more likely to be arrested for marijuana possession than white people. Each time someone is arrested, police take a mugshot and store that image in a database alongside the person’s name and other personal information. Since Black people are more likely to be arrested than white people for minor crimes like cannabis possession, their faces and personal data are more likely to be in mugshot databases. Therefore, the use of face recognition technology tied into mugshot databases exacerbates racism in a criminal legal system that already disproportionately polices and criminalizes Black people.   Third, even if the algorithms are equally accurate across race, and even if the government uses driver’s license databases instead of mugshot systems, government use of face surveillance technology will still be racist. That’s because the entire system is racist. As journalist Radley Balko has carefully documented, Black people face overwhelming disparities at every single stage of the criminal punishment system, from street-level surveillance and profiling all the way through to sentencing and conditions of confinement.   Surveillance of Black people in the U.S. has a pernicious and largely unaddressed history, beginning during the antebellum era. Take 18th century lantern laws, for example. As scholar Simone Browne observed: “Lantern laws were 18th century laws in New York City that demanded that Black, mixed-race and Indigenous enslaved people carry candle lanterns with them if they walked about the city after sunset, and not in the company of a white person. The law prescribed various punishments for those that didn’t carry this supervisory device.”   Today, police surveillance cameras disproportionately installed in Black and Brown neighborhoods keep a constant watch.   The white supremacist, anti-Black history of surveillance and tracking in the United States persists into the present. It merely manifests differently, justified by the government using different excuses. Today, those excuses generally fall into two categories: spying that targets political speech, too often conflated with “terrorism,” and spying that targets people suspected of drug or gang involvement.   In recent years, we learned of an FBI surveillance program targeting so-called “Black Identity Extremists,” which appears to be the bureau’s way of justifying domestic terrorism investigations of Black Lives Matter activists. Local police are involved in anti-Black political surveillance, too. In Boston, documents revealed the police department was using social media surveillance technology to track the use of the phrase “Black Lives Matter” online. In Memphis, police have spied on Black activists and journalists in violation of a 1978 consent decree. The Memphis Police Department’s surveillance included the use of undercover operations on social media targeting people engaged in First Amendment-protected activity. In New York, the police spent countless hours monitoring Black Lives Matter protesters, emails show. And in Chicago, activists suspect the police used a powerful cell phone spying device to track protesters speaking out against police harassment of Black people.   These are just a few examples of a trend that dates back to the surveillance of Black people during slavery, extending through the 20th century when the FBI’s J. Edgar Hoover instructed his agents to track the political activity of every single Black college student in the country. It continues to this day, with Attorney General Bill Barr reportedly giving the U.S. Drug Enforcement Administration — a scandal-ridden law enforcement agency tasked with spearheading the racist drug war — the authority to spy on people protesting the police killing of George Floyd.   The war on drugs and gangs is the other primary justification for surveillance programs that overwhelmingly target Black and Brown people in the U.S. From wiretaps to sneak-and-peak warrants, the most invasive forms of authorized government surveillance are typically deployed not to fight terrorism or investigate violent criminal conspiracies like murder or kidnapping, but rather to prosecute people for drug offenses. Racial disparities in the government’s war on drugs are well documented.   To avoid repeating the mistakes of our past, we must read our history and heed its warnings. If government agencies like police departments and the FBI are authorized to deploy invasive face surveillance technologies against our communities, these technologies will unquestionably be used to target Black and Brown people merely for existing. That’s why racial justice organizations like the Center for Media Justice are calling for a ban on the government’s use of this dystopian technology, and why ACLU advocates from California to Massachusetts are pushing for bans on the technology in cities nationwide.   We are at a pivotal moment in our nation’s history. We must listen to the voices of the protesters in the streets and act now to make systemic change. Banning face surveillance won’t stop systemic racism, but it will take one powerful tool away from institutions that are responsible for upholding it.

The Supreme Court has ruled that

During the COVID-19 pandemic, jails and prisons have become infection hot spots due to notoriously unhygienic conditions and the inability to socially distance. Overcrowded facilities — a symptom of our longstanding national addiction to mass incarceration — are creating an unconstitutional health crisis. Advocates are calling upon judges across the country to release medically vulnerable people from prison and jails. But despite acknowledgment of the urgency from Attorney General William Barr, state officials, and judges, very little has actually been done to release people from prisons in particular.   While advocates have succeeded in securing the release of some people, particularly from jails, many judges have dismissed release as a viable option for people accused or convicted of violent charges. “Many of [the incarcerated people] are violent offenders,” wrote District Judge Robert Dow Jr. in a recent opinion, in a case challenging dangerous conditions in Illinois Department of Corrections’ facilities. “Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare … The question is not simply what is best for the inmates — the public has vital interests at stake, too.”   The message behind this and similar rulings is that the rights and safety of incarcerated people are secondary to the public’s comfort and safety during a pandemic, particularly when it comes to incarcerated people accused or convicted of violent charges. Even if the conditions inside prisons and jails indisputably endanger the lives of those incarcerated, these rulings justify their continued incarceration by alleging their release is too dangerous for the community. While concerns for public safety are understandable, in this instance they are unfounded. This is a cowardly and dangerous position, which ultimately puts many more lives at risk.   First, the problems courts are imagining with mass release just don’t exist when you look at the data. The people we’re asking judges to release are either elderly or have serious medical conditions. A subgroup of these people are in for “violent” offenses, which can range from murder to more benign actions like failing a urine test repeatedly. Because these people have been incarcerated for such a long time, much of their sentences have already been served. Further, data shows that most people age out of “violent crime” and older people are least likely to re-offend, making draconian sentences unnecessary and counterproductive, even in non-pandemic times.     For people released pretrial on felony charges, less than two percent are ever re-arrested for a violent felony while awaiting trial. There is simply no statistically significant evidence that the medically vulnerable jail and prison population poses a safety or flight risk. The risk of incarcerated people catching COVID-19 and getting severely ill or dying, on the other hand, is quite high and has been well documented.   Second, it’s crucial to remember that people accused or convicted of violent crimes are just that: people. They have the same inalienable rights that all human beings are entitled to. Advocates should not have to respond with “the risks are not that bad” arguments. The fearmongering and repeated cries for law and order are the same rhetoric that created the mass incarceration crisis in the first place. If we are to truly address it, and prevent senseless, preventable death from this pandemic, we must go beyond advocating for nonviolent, low-level offenders.   Unfortunately, this necessary work is undermined by the fact that many criminal justice reform efforts focus on reducing punishments for low-level crimes, and avoid addressing more serious charges. For example, when picking plaintiffs to represent in a class action, impact litigators — including those at the ACLU — often avoid choosing clients with violent charges or convictions so that conservative judges will be more comfortable granting relief.     When we design our arguments to appeal to the “tough on crime” narrative, we reinforce the idea that people accused or convicted of violent crimes are somehow less deserving of mercy. We risk building reforms around an exclusionary narrative that may hurt the movement in the long run and make it more difficult to go back later and seek justice for those we left behind. Sometimes, an incremental approach is necessary to get judges or the public more comfortable with alternatives to imprisonment. But until we stop relying on caging people as a response to violence, the U.S. will continue to have the highest incarceration rate in the world.   We need to challenge the “law and order” rhetoric that drove mass incarceration in the first place. This starts by unpacking how we define concepts like “danger,” “criminal,” and “violence.” Many studies have shown that Black men receive harsher charges, especially when the victim is white. This means that what society chooses to prosecute as violent is political and heavily influenced by race. Standard definitions of what and who we consider dangerous are not natural or self-evident; they are made.   For medically vulnerable people in jails and prisons, the courts’ concept of danger is irreparably undermining both health and safety by putting them, prison staff, and the general public at risk. That’s why the ACLU is asking the courts to release those most in harms’ way from infection. Judges do not have to overturn someone’s sentence or free them without obligations prior to trial. For people serving sentences, judges can let them continue to serve their time in home confinement or another appropriate setting until the pandemic has passed. For people awaiting trial, judges can order reporting requirements or more restrictive measures like home confinement.   In either case, underlying allegations or offenses should not guide courts’ decisions on how to protect the public. The burden has to be on the government to show with compelling evidence that someone is a credible threat of flight or violence, so much so that this threat outweighs the risk of severe illness or death that comes with continued incarceration.   Fortunately, some courts have bucked the trend and ordered the government to prioritize medically vulnerable people for review for home confinement, including those whose primary or prior offense was classified as violent. But this is not enough. More judges need to reject the unsubstantiated and racially charged cries for harsh punishment. Further, communities must demand that other actors — law enforcement, governors, and prosecutors — expand their vision beyond the “low hanging fruit” of reforms that prioritize the rights of a few, while leaving many others behind. Genuine reform will require us all to rethink how we address serious crimes and question whether incarceration is the best solution, rather than a more holistic economic and political approach.    

In a landmark win for LGBTQ people, the Supreme Court today ruled that firing employees because of their sexual orientation or gender identity is sex discrimination that violates federal law. Today’s decision clarifies for the first time that LGBTQ people are protected from employment discrimination from coast to coast, including in states and cities that have no express protection for LGBTQ people in their own laws.   While this ruling is a groundbreaking advance for LGBTQ people, there are still significant gaps in federal civil rights law that Congress must fill by passing the Equality Act. 

As a former Hill staffer, I know how the sausage gets made: the backroom deals, the pet projects, and the extreme partisanship. Our current moment requires far more than the ego, moderation, and compromise that is typically reflected in federal legislation. This country’s recognition — finally — of the devastation and destruction that comes from the over-policing and over-criminalization of Black bodies and communities warrants real, meaningful change. The acknowledgment that Black Lives Matter — finally — demands bold and visionary leadership at the national level. That audacious vision is divestment. We must stop investing in racist and brutal policing systems. Instead, we must start resourcing the Black and Brown communities that have been harmed by these “law and order” institutions. Elected officials must dramatically reduce law enforcement budgets and put that savings into systems that could enfranchise Black and Brown people — housing, education, employment, and health care. And providing full access to these segments of our society means removing police from them. School discipline, mental health crises, and homelessness should not be met with a police response. Divesting from police must happen at all levels of government. At the federal level, divestment looks like an end to the Department of Defense’s 1033 program, which gives law enforcement military weapons and equipment that are used against communities and protestors. It is an end to COPS grants that put police in schools and fuel the school to prison pipeline. Divestment is prohibiting Byrne JAG dollars from being used to continue low-level arrests, the failed drug war, and the destruction of Black and Brown communities. These dollars can and need to be better spent. We know what policies and practices will not work because we have been here before. Michael Brown. Eric Garner. Breonna Taylor. George Floyd. The list of names does not stop here. Their lives deserve more than hashtags and slogans. They deserve much more than what elected officials have done to date. Members of Congress cannot continue to throw taxpayer money at another commission or study to determine the failings of law enforcement. Federal dollars cannot support more training, more technical assistance, more “checking the box” in the name of reforming the police. The federal government must invest in state and local communities differently. It must get out of the business of funding arrests and incarceration. And in the limited instances in which there would be law enforcement and community encounters, there must be measures to protect against police violence and ensure accountability when there is misconduct. Congress must model a national use of force standard that makes deadly force a rare, last resort. This respect for the sanctity of life must also be reflected in federal laws that prohibit the use of chokeholds and carotid holds. And if these laws are violated, there must be transparent and certain policies with which to hold police responsible.    As we mourn and protest the Black lives lost, 21st Century policing should look dramatically different than the current status quo. If federal lawmakers are truly up for taking on the country’s entrenched, racist, and violent policing systems, born out of slave patrols, they have the vocal and organized backing of constituents to get this done. Now is not the time to dust off old bills and offer them as the way forward. Now is the time for divestment.  

Journalists covering protests against police brutality across the country are facing an influx of violence, suppression efforts, and arrests by police. Since the George Floyd protests began, there have been more than 400 claims of aggressions against the press, according to the U.S. Press Freedom tracker. Violations include being assaulted with pepper spray and rubber bullets, dealing with damaged equipment, and even facing arrest. This week, At Liberty is joined by Jared Goyette, a freelance reporter who was hit in the eye with a police projectile while covering a protest in Minneapolis.  “There’s always been a degree of tension between police, protesters, and media,” said Goyette of the protest at which he was attacked. “They are tense environments…But based on my experience in these types of events, this was markedly different than anything I’d seen before. It was different by the degree of the lack of clear communication. And it was different in the degree to which the projectiles coming from police seemed continuous, and to some degree arbitrary.” Goyette is now the named plaintiff in a lawsuit the ACLU of Minnesota filed last week against the City of Minneapolis, seeking justice for the violence he and other journalists experienced covering the protests. “There’s a feeling of just being in a historic and important moment and wanting to do as good a job as possible to document it,” Goyette told At Liberty. “And there’s just so much happening at once. As journalists, we’re doing the best we can.”

I never expected to get an abortion. But I knew I could tell my mother. I grew up in New York and abortion was still illegal when I was born. One of my earliest memories is being in the car with my mother when she turned to me and told me that if I ever needed an abortion, I should let her know, because she “knew a lot of doctors.” My mother survived the Holocaust by hiding in a Catholic boarding school in the South of France. Her parents were active in the Jewish French resistance, and my grandmother helped my grandfather escape from Beaune-la-Rolande, a French-run Nazi transit camp which fed Jews to Auschwitz. My mother knew a thing or two about defying unjust laws.    Any day now, the U.S. Supreme Court is due to hand down its decision on an unjust law in Louisiana. The Court’s decision in June Medical v. Russo could drastically alter the ability of people in the United States to access abortion. June Medical involves a law in Louisiana that requires doctors at abortion clinics to have admitting privileges at a local hospital. This is so even though abortion is one of the safest medical procedures and admitting privileges for abortion providers have no correlation to women’s safety. If left in place, Louisiana will be left with one doctor in the entire state permitted to perform abortions. One doctor to serve the 1 million women of reproductive age in Louisiana. The politicians in Louisiana justify this law as “protecting women’s health,” even while Louisiana has the highest maternal death rate in the country. The politicians also ignore that autonomy is intrinsic to health. Women cannot be healthy if we cannot control our destiny. And the Supreme Court does not need to overturn Roe v. Wade to make abortion an impossibility for millions of women. Already, abortion access is dying the death of a thousand cuts. As of 2017, 89 percent of counties in the U.S. lacked an abortion provider, and 38 percent of women of reproductive age lived in a county without a clinic.   If I had not been able to control my reproductive life, I do not think I would have been able to craft my resulting career. When I unexpectedly became pregnant in my twenties, I was just starting out in my legal career, and not ready personally or professionally to be a parent. When I was more settled, I did have two wonderful children. I dedicated my professional life to fighting gender-based violence. I worked for more than 20 years as a legal aid lawyer representing low-income domestic violence survivors (some of whom were prevented by their partners from getting abortions), and then joined the local government in my city to improve policies on intimate partner violence and human trafficking. And now I get to fight for reproductive rights at the mothership — the ACLU of Southern California.    Even though I had my abortion over 25 years ago, and I have never hidden it from friends and family, this past year is the first time that I have spoken publicly about it. I feel obligated to normalize this experience — to add my story to the multitude of others that show how many people have exercised their right to have an abortion, and how our lives were saved by this ability. I am privileged to be able to share my story with support from my personal and work families, and I recognize that not all people enjoy this option. I feel impelled to speak out since I can, particularly since so many others cannot. One in four women in the United States will get an abortion in their lifetime, but many don’t feel they can talk about it.   Access to abortion enables us to control our destiny, to be truly free. I was privileged from a young age to know that I would always be able to control that destiny — because my parents knew doctors; because I had a job that gave me health insurance; because I lived in a state that protected my rights. But it shouldn’t matter where you work, what your ZIP code is, or whom your parents know, to be free. Let’s hope the Supreme Court doesn’t leave freedom to the states.