News & Commentary

Just like tens of millions of people sheltering in place in the U.S., I’m adjusting to the new realities and worries of day-to-day life during the COVID-19 pandemic. But on top of worrying about my elderly family members, U.S. hospitals’ shortage of basic medical equipment, or where I can find toilet paper and eggs, I have another fear. Like other Americans of East Asian descent (including citizens and non-citizens), I worry that I might be attacked on the street or in a store because of my race.   There are so many news reports that spur my concerns. For example, on March 14, a man in Midland, Texas, attacked an Asian American family shopping at a Sam’s Club store, stabbing three members of the family, including a two-year-old and a six-year-old child, as well as an employee. The attacker said that he targeted the family because he believed, based on the family’s race, that they were spreading the COVID-19 virus. The FBI categorized the attack as a hate crime, and more generally warned of a potential surge in bias-based attacks on Asian Americans.   The FBI’s warning is all too accurate. Civil rights organizations Chinese for Affirmative Action and the Asian Pacific Policy and Planning Council logged more than 650 reports of bias-based attacks on Asian Americans in the two weeks before March 26. Some of those reports included cases in which people of Asian descent reported being refused service at grocery stores, spit on and verbally assaulted, and in some cases, physically assaulted.   President Trump, Secretary of State Mike Pompeo, and other U.S. officials have deliberately referred to SARS-CoV-2 as “the Chinese virus” or the “Wuhan virus.” This runs against the advice of the World Health Organization and the Centers for Disease Control that such labels lead to dangerous scapegoating and widespread ignorance, just when accurate public health information is critically needed. In propagating this smear, these officials have fomented racism and overt acts of harassment and violence against Asian Americans. Even when confronted by reporters’ questions about links to the rise in anti-Asian bias attacks and the WHO’s stern warnings not to tag diseases with a geographical or ethnic label, the President continues to insist that “Chinese virus” is appropriate and “not racist.”   History teaches us that the scapegoating of immigrants and their U.S.-born descendants is nothing new. Immigrants have been similarly blamed for infectious diseases throughout our history, according to Professor Alan Kraut: Irish immigrants were blamed for cholera outbreaks in the 1830s, Jewish immigrants for tuberculosis in the late 19th century, and Italian immigrants for polio in the early 20th century. In 1900, fears of the bubonic plague in San Francisco spurred calls for Chinatown to be burned to the ground and, horrifically, public health officials forcibly seized Chinese residents on the streets and injected them with an experimental vaccine.    Physicians and medical historians also note that even though immigrants historically have not in fact been responsible for “importing” contagion, ethnic communities in the U.S. have still been characterized as “dirty” and blamed for spreading disease. This type of xenophobic and racist scapegoating can have fatal consequences.   Even when people of color are not themselves physically injured, racist scapegoating can leave an indelible mark. In 1982, a Chinese American named Vincent Chin was beaten to death by two white autoworkers in a Detroit suburb. His attackers believed he was responsible for the loss of jobs in the U.S. auto industry based upon his perceived identity. One of Chin’s killers, Ronald Ebens, began the attack by crying out, “It’s because of you little motherfuckers that we’re out of work!” I was only eleven years old when Vincent Chin was murdered, and his death has stayed with me ever since. Chin’s death by racism shook my childhood sense of safety and belonging in my own country. Violence spurred by yesterday’s fears of lost jobs or past pandemics are today’s COVID-19 crisis — a way for people to vent their fears and rage, and place the blame on someone they can turn into a foreigner, a nobody, a thing less than human.   We have to learn from this history. No pandemic, public health, or economic crisis, and no amount of fear, should give rise to prejudice and discrimination by any American — much less by the President of the United States. We need to collectively unite to fight scapegoating and discrimination, and each of us can take responsibility.   First, when elected officials like our President foment racist scapegoating, all Americans need to denounce him and call on other leaders, such as our local and state officials, to join the fight against his divisive actions.     Second, Asian Americans, like everyone else in the United States, should stand in unity with people across the country and other marginalized groups who are especially vulnerable during this pandemic. The answer is not, as former presidential candidate Andrew Yang proposed recently, to “show our American-ness in ways we never have before.” Asian Americans don’t need to prove our patriotism to anyone. But we all need to step up and help raise the alarm that African Americans are contracting and dying of coronavirus at disproportionate rates because of racial disparities in health care — just as African Americans are joining Asian Americans in decrying President Trump’s anti-Asian slurs. We should support Native and Indigenous communities, who are also suffering disproportionately from a lack of adequate health care and basic infrastructure such as running water. We must show solidarity with the disability community, which is contending with the potential for deadly discrimination in the allocation of scarce medical interventions.   Finally, we must all remember: Any response to COVID-19 should be grounded in science and public health, not xenophobia. Everyone deserves to feel safe, without fear of violence and discrimination, especially during these extraordinary times.

With 10 deaths and more than 500 positive COVID-19 cases in the nation’s federal prisons, wardens must “move with dispatch” to “move vulnerable inmates out of these institutions.” These are the words that Attorney General William Barr used on April 3rd when he directed the Federal Bureau of Prisons (BOP) to reduce the federal prison population in the wake of COVID-19. This instruction – though still lacking in concrete guidelines and timelines for release – is nearly a 180-degree turn for the Department of Justice (DOJ), which was taking a less urgent approach a just few weeks ago, even suggesting that “many inmates will be safer in BOP facilities.” Now realizing this is not the case, BOP wardens have been given the directive to protect lives against COVID-19. Having failed to prevent the suffering on their own to date, they must reverse course as well. Since BOP reported its first case of COVID-19 on March 21, the virus has spread through its facilities “like wildfire.” In a matter of days, the COVID-19 infection rate increased nine-fold according to BOP’s own accounting, which is likely an undercount. Over the course of two weeks, those who tested positive for COVID-19 increased 8,600 percent according to the Federal Defenders. Today, more than 350 incarcerated persons and almost 200 staff have COVID-19. And with 70 percent of the BOP population Black and Latinx, people of color will bear the brunt of prison outbreaks.    Public health experts warned that jails and prisons could become “incubators” for COVID-19. It is impossible to heed the primary recommendations of the Centers for Disease Control and Prevention (CDC) when incarcerated or working in a prison. You cannot practice social distancing behind bars. Hand sanitizer is contraband at most facilities. Soap costs money and can otherwise be hard to come by. And 45 percent of the federal prison population has chronic conditions. Experts say that prison systems are like “outpatient clinics,” and “should not weather the coronavirus on their own.” The clear solution is to reduce the size of the incarcerated population. With the issuance of the April 3rd memo, DOJ and BOP suggested that they were taking those steps, as advocates, federal defenders, elected officials, and public health experts had called for. The recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act gives DOJ and BOP somewhat broader authority to reduce the federal prison population in the wake of COVID-19. It is this authority that Attorney General Barr invoked on April 3 when he said “time is of the essence” to move “all at-risk inmates” to home confinement. However, BOP wardens are not moving fast enough to safely reduce the federal prison population. Their proposed “plan” to review prisoners for release at the federal facility at Oakdale, Louisiana — where six men have already died and we had to sue to get the plan in the first place — is woefully insufficient and lacks any enforceable timelines. This shows that certain wardens — and perhaps BOP as a whole still — do not grasp the severity of the moment. Before utilizing the CARES Act provisions, BOP moved 566 people from prison to home confinement in response to the pandemic. Now, over 900 people are on home confinement. But thousands should be going home with DOJ’s charge to immediately transfer “the most vulnerable inmates” at “the most affected facilities.” DOJ must now be clear that all facilities require population reduction to mitigate or prevent a COVID-19 outbreak, and that all incarcerated persons susceptible to COVID-19 — those who are older and elderly, as well as those who have underlying conditions — be sent home or to another facility where they can socially distance. BOP should not limit release based on facility or racially-biased risk assessments.    A third of BOP facilities are currently reporting COVID-19 cases. One third. Prisons in Oakdale, Louisiana; Danbury, Connecticut; Butner, North Carolina; Lompoc, California; and Yazoo City, Mississippi each report several dozen cases. These numbers are unacceptable, and preventable.   ACLU advocacy has already led to thousands of people being released from local jails and state prisons. The ACLU will continue pushing (and suing) from every angle to stem the outbreak in our nation’s jails and prisons. The wardens overseeing the 122 federal prisons have no time to spare. It is critical that they use every tool at their disposal to get people home.  

The COVID-19 pandemic has closed down many businesses, but the work of preserving civil liberties and civil rights continues, as essential as ever. Reports of courts closing down can be misleading. While public trials that require jurors and in-person testimony have been suspended, most courts and lawyers can do their work remotely. The filing of legal briefs continues, and oral arguments and hearings are being held remotely. The work of securing justice continues. At the ACLU, our most immediate focus has been on civil liberties and civil rights issues arising from the government’s response (or lack thereof) to the pandemic. We and our affiliates have filed nearly 40 lawsuits across the country on a range of civil liberties and civil rights issues. Our top priority right now is to secure the release of individuals who held in government detention centers, jails, and prisons. Detention should not be a death sentence, and most prisons, jails and detention centers cannot ensure that those in their charge are held under the social distancing guidelines the CDC urges all of us to follow. Many are held without posing any danger to the community, and should be released if they cannot be held safely.    So far, we have filed over 13 immigration cases, and another 16 cases focused on prisons and jails. Through our litigation and advocacy, we have secured the release of over 10,000 individuals from prisons and jails, and dozens of immigrants from the detention centers. In each one of these instances, we may have very well saved human lives. We have also been pushing back against states that have exploited the pandemic to further their anti-abortion agendas. In Alabama and Ohio, we obtained court orders barring state officials from denying people access to abortions during the crisis and following an ACLU affiliate lawsuit in Iowa, the government walked back its threat to issue a blanket abortion ban.  Because we must preserve our democracy even as we engage in social distancing, we’ve been advocating — and suing — to expand access to no-excuse absentee voting. This crisis may well still be with us in November, and we are committed to ensuring that everyone has the right to vote and that they do not have to risk infection to exercise the franchise. We’re in court in Georgia,

Imagine a day in the future when everyone, from the moment they step outside their home, has to live with the knowledge that their every movement is being recorded by powerful cameras circling in the skies above. Not just where they work, shop, eat and drink, and whose homes they visit, but details about their political, religious, sexual, and medical lives — all captured and stored in databases without a warrant and available to law enforcement upon request.   That day is here.   The city of Baltimore is about to deploy a new program that, if allowed to move forward, would do just that. It would be the most significant new surveillance system to be deployed in the U.S. in decades, and it would fundamentally change what it feels like to venture out in public in this country. It also violates our constitutional rights to freedom of association and privacy, and — on behalf of a group of Baltimore community activists — we are suing to stop it today.   The technology is called wide-area aerial surveillance. It involves stationing an aircraft equipped with ultra-high-resolution cameras over a city to continuously track all visible pedestrians and vehicles within that city. Currently, the technology can cover a 32-square mile area, though better cameras are just an upgrade away. It was originally developed by the military for monitoring overseas battlefields in Iraq and Afghanistan in a program called “Gorgon Stare.” Now, a company called “Persistent Surveillance Systems,” founded by a colonel who worked on that program, wants to turn this mega-powerful “eye in the sky” inward onto American cities.   Although this company has been pitching American cities for years, no police department until now has been willing to embrace this truly dystopian technology. The term “Big Brother” is bandied about a lot these days, but rarely has a technology lived up to the term so well.   It’s no coincidence, of course, that this program is being unveiled in Baltimore, a city that’s more than 60 percent African American. Black and Brown communities in the U.S. are always first in line to come under surveillance by new technologies. Baltimore in particular has a terrible history of racism and a lack of accountability for abuses by police that makes it an especially problematic place to deploy this technology. In fact, the city is currently under a federal consent decree for routinely violating people’s constitutional rights.   Also quick to come under surveillance are those who seek to exercise their rights to demand change: political activists, protesters, and dissidents of all kinds. This includes our plaintiffs: Leaders of a Beautiful Struggle, a grassroots think-tank that advances the public policy interests of Black people in Baltimore, Erricka Bridgeford, co-founder of the Baltimore Ceasefire 365 project to end gun violence in the city, and Kevin James, a community organizer and hip-hop musician. Unfortunately, this country has a long history — continuing to the present day — of law enforcement using surveillance technology against people not because they are suspected of committing a crime, but because of their beliefs. In Baltimore, that has meant the targeting of Black Lives Matter protesters, who have been subjected to sweeping surveillance, including aerial surveillance.   If this program moves forward in Baltimore, we can expect it to quickly spread to other cities with large Black and Brown populations and histories of racial bias. But nobody in America should think that they’ll be able to evade this technology. If it moves forward in Baltimore, we can expect police departments around the country to start adopting it. Eventually, when drones are able to fly freely over our cities, making this kind of constant surveillance cheap and automatic, it wouldn’t be surprising if much of the country ends up covered.   Persistent Surveillance Systems is a tiny company, but if it succeeds in winning acceptance for its trial pilot program in Baltimore, there are much bigger companies waiting in the wings — companies that already advertise wide-area surveillance devices and would no doubt love for a domestic market to open up. These are companies that could put much more powerful technology overhead, including automated AI analysis, multi-spectral imaging, and night vision capabilities, not to mention much higher camera resolutions.   We are filing a lawsuit in the hopes of stopping this train. Based on ample precedent — including a landmark 2018 case that the ACLU won in the Supreme Court, Carpenter v. United States — we argue that tracking individuals in the way that this technology does is something the government cannot do without a warrant. There is no doubt, we argue, that people’s long-term physical movements, even in public places, enjoy constitutional protection.   The government certainly can’t track everyone in a city, because even with a warrant, that would violate the Constitution’s ban on “general warrants” — the kind of broad, non-individualized authorization to carry out searches that angered the Founders so much. If the Baltimore police want to track a citizen over wide areas and extended periods of time, they have to seek a warrant specific to that person. They don’t get to fill a data warehouse with records of everyone’s movements, which they can then pluck at will without asking a judge. In this respect, Baltimore’s plan echoes the National Security’s Agency’s secret seven-year collection of Americans’ telephone records — which was found to be unlawful in another ACLU lawsuit, ACLU v. Clapper.   Finally, we argue that this system violates not just the Fourth Amendment’s prohibition against “unreasonable searches,” but also the First Amendment’s protection of the right of assembly. As the Supreme Court has found, overbroad searches will have an “inevitable chilling effect” on constitutionally protected activity like protests and marches.   The Supreme Court has repeatedly made clear that, when faced with new technologies, it views the courts’ role as protecting the “degree of privacy against government that existed when the Fourth Amendment was adopted.” If the Founders could see what today’s police would like to do, they would be horrified — as should be every American today.

On Monday, I ended a 12-hour day returning emails to incarcerated queer folks, providing direct aid for housing to folks living with HIV & AIDS who have been incarcerated and challenging the state of Nebraska to provide humane conditions for incarcerated individuals and decided to mindlessly scroll on Twitter.   I found the quote from the show Ellen DeGeneres filmed from her multimillion-dollar, multi-room mansion: “One thing that I’ve learned from being in quarantine is that people — this is like being in jail, is what it is,” she said. “It’s mostly because I’ve been wearing the same clothes for 10 days and everyone in here is gay.”   What Ellen is experiencing, as well as what many people around the country are experiencing, is nothing like jail. You have choice. You can actually social distance. I assume you were not only allowed to shower that day, you could shower for more than 10 minutes and likely as many times as you like.   This is not at all what incarcerated people who have been locked down as a protective measure in institutions all across America are experiencing. The protective measures inside jails and prisons that many incarcerated individuals are now experiencing bear a striking resemblance to solitary confinement.   When you are in solitary, your partner is not there with you. You are not calling or FaceTiming your mother as many times as you like.   At Black & Pink, which seeks to liberate LGBTQIA2S+ people and people living with HIV who are affected by the criminal justice system, we are currently fighting for access to mail and phone calls for people all across the county. The cost of contacting a loved one is extremely expensive. A video call using the JPay system currently costs $1.25 for a 30 second video.   Incarcerated people are filing lawsuits for access to toilet paper and soap. Those of us who have been incarcerated have always viewed these items as high-demand. For us, this is not new.   Here’s my message to Ellen:

COVID-19 is ravaging many parts of the United States, but nowhere more than in Black communities. Early data from the Midwest and the South reveal that Black people are contracting and dying from the virus at far higher rates than whites. Louisiana just released data which shows that African Americans account for 70 percent of all deaths in the state. In Milwaukee County, 81 percent of those that have died are Black. In Chicago, 70 percent of COVID-19-related deaths are Black. This disease threatens us all, but the Black community has seen the worst effects. These effects point to deeper discrimination throughout society.   There is still a lot more to learn about the virus, but the reason for this racial divide is rooted in governmental failings and bias at federal, state, and local levels. Before the first coronavirus case emerged in the U.S., Black people had higher rates of underlying chronic conditions like asthma, diabetes, and heart disease that reduce survival rates. As the coronavirus spreads and our economy comes to a virtual stand-still, many employees have shifted to remote work arrangements, but less than 1 in 5 African Americans have. The low-wage, no-benefit jobs deemed “essential,” like grocery store clerks, warehouse employees, and home health aides are the jobs that Black and brown people disproportionately fill. Without health insurance, sick leave, or savings, these workers still show up, because the alternative — unemployment, eviction, and starvation for themselves and their families — is worse.  At the federal level, President Trump espouses racist talking points, blames the first Black president for lack of face masks, and champions policies that discriminate against Black and brown people. Since taking office, the Trump administration has overseen the repeal of numerous federal anti-discrimination and economic justice policies and regulations. The Department of Housing and Urban Development moved to roll back fair housing regulations resulting in greater segregation of Black communities and fewer housing options for those with old or minor convictions, and the Department of Labor stripped away minimum wage and overtime protections for low-wage workers, who now must risk their lives working longer hours to make ends meet.   Further, as the COVID-19 crisis has grown, President Trump has consistently failed to heed the advice of public health experts to make testing widely available, especially in communities with high rates of uninsured people, or provide sufficient medical supplies for already under-resourced health care systems. The recently-passed federal relief bills may also fail to provide benefits and aid based on prior convictions or even arrests. At the state and local level, Black people are more segregated than any other racial or ethnic group in the U.S. This is well-documented in our largest cities, such as New York, Chicago, Detroit, and New Orleans, which report some of the fastest-growing rates of COVID-19 infection, particularly in low-income communities. Blacks also make up more than half the prison population in Michigan, Illinois, Louisiana, and Maryland — all states reporting higher rates of infection and disproportionate spikes in the number of Black people testing positive for COVID-19. Months ago, public health experts noted that overcrowding and lack of soap and cleaning products would lead to the rapid spread of COVID-19 in prisons and jails, while testing and quality health care would remain mostly inaccessible. Low-income Black people more often face jail time or

Mario Rodas, Sr. first found out there was a deadly virus spreading through the country while he was watching television at the Plymouth County Correctional Facility in Massachusetts. In early March, Rodas had been pulled over and arrested by Immigration and Customs Enforcement (ICE) agents while driving to the supermarket with his wife, a legal resident and the mother of his three U.S. citizen children. Since then, he’d been in the custody of ICE, mostly at Plymouth.

Louisiana has emerged as a COVID-19 hotspot, with among the highest contraction and growth rates in the nation. The state also has the highest prison and pretrial incarceration rates in the world. Those two facts might not seem related, but they are already interacting in a tragic way: Conditions in jails and prisons make them highly vulnerable to COVID-19, allowing the virus to spread like wildfire. The potential impact could be devastating for incarcerated people and the broader community, which is already under immense strain. Already, five people incarcerated at a federal prison in Oakdale have died from coronavirus complications.  The ACLU of Louisiana is fighting back on multiple fronts. This week, we filed a lawsuit against Oakdale Federal Prison to release people who are most vulnerable to COVID-19. Last week, in response to a troubling executive order, we sent a letter calling on courts to honor legal timelines for the filing of charges for people in custody, and to uphold due process rights during the pandemic. We are also demanding evidence-based plans for the prevention and management of COVID-19 in state prisons, jails, and juvenile facilities. Public officials should be doing everything they can to stop the spread of the coronavirus. Instead, buried in Gov. John Bel Edwards’ recent emergency executive order is a provision that could do the opposite. The order suspends legal deadlines for district attorneys to file charges against people held in jail, which violates due process rights by leaving thousands of Louisianans to languish in legal limbo — many held without charge or even access to counsel. Our landmark report of Louisiana’s pretrial system — “Justice Can’t Wait” — found that 57 percent of those incarcerated in our jails are being held for a low-level offense, without charge or conviction.  History tells us that the consequences of suspending due process at a time of emergency could be disastrous. During Hurricane Katrina, the state issued a similar order to suspend court deadlines to present charges or release people from prisons and jails. The result was catastrophic: thousands were stuck in unlawful detention as a historic disaster inundated Louisiana. As flood waters rose, deputies at the Orleans Parish Prison abandoned their posts and left hundreds of  people in their cells, some standing in sewage-tainted water up to their chests in the dark, powerless jail. People went days without food, water, and ventilation. Even some prison guards were left locked in their posts to fend for themselves, without any evacuation plan or emergency training. Then, like now, many of those stuck in jail during the emergency had not been charged. We face a very different disaster in COVID-19, but the lessons of Katrina remain. Louisiana must not abandon people in jails and prisons as a deadly virus sweeps through the state.  Public health experts and law enforcement officials have warned that jails are “petri dishes” for the spread of COVID-19. Social distancing is impossible in jails, prisons, and detention sites, where sometimes dozens of people are crowded into single cells. It’s also difficult to practice good hygiene, with limited access to soap and water. Hand sanitizer is often considered contraband. These conditions make these facilities a breeding ground for contagious infections and diseases. The larger the number of individuals incarcerated, the higher the likelihood and scope of a related outbreak. Incarcerated people are not the only ones at risk of contracting COVID-19 — corrections officers are also highly vulnerable. And because these employees return home each night, they can unintentionally carry the virus back to their families and communities. Louisiana is already a COVID-19 hotspot, and the governor’s order to suspend court deadlines — thereby crowding more people into jails and prisons — is a disaster in the making.  Black and brown communities are likely to bear the brunt of this disaster, as they did during Hurricane Katrina. Due to racial bias in the criminal justice system, people of color are more likely to be arrested and charged, and are often handed longer sentences than white people for the same offenses. Nationwide, Black people already face higher infection and death rates for COVID-19, particularly in Louisiana, where about 70 percent of the people who have died are Black.  Stakeholders in the criminal legal system have the power to

In a desperate effort to slow the spread of COVID-19, state and local officials are following the advice of public health experts to impose severe restrictions on American life, such as social distancing and shelter-at-home orders. Unfortunately, the institutions that have the most resources available to carry out this task are not public health, medical, or housing authorities. They are our law enforcement and criminal legal systems, which typically operate by criminalization and punishment.   There’s a bitter irony to this: The tactics that law enforcement officials frequently use to protect people —arrests and detention — are more likely to put people in harm’s way. As the reduce jail populations both by limiting arrests and releasing the people who are already held in jail.   While we may need to accept restrictions on mobility that public health authorities identify as necessary during this crisis, these restrictions must be narrowly tailored and enforced equitably. In spite of public health guidance, across the country, police continue to arrest people for failures to socially distance, which only exacerbates jail crowding and forces more people into dangerous conditions. This endangers their lives — along with the lives of their families, jail staff and their families, and the broader community. In Puerto Rico, for example, police have arrested more than 500 people for violating an island-wide 9 p.m. curfew, even as police stations shut down due to officers being quarantined.    Just as police crackdowns for drug offenses