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New Data Reveals Milwaukee Police Stops Are About Race and Ethnicity

American Civil Liberties Union - Fri, 02/23/2018 - 14:45
Milwaukee residents have long thought they were targeted for their race. New data reveals they were right all along.

For years, Black and Latino residents of Milwaukee have protested the fact that they and their neighborhoods have been consistently and unfairly targeted for overzealous police stops. They were right to do so. New expert evidence unmasks the city’s stop-and-frisk program for what it is: a program that encourages routine stops of individuals that are without a sufficient legal basis and that are often based on the individual’s race or ethnicity.

With this new evidence, Milwaukee joins a host of cities nationwide whose stop-and-frisk practices — as reflected in their own data — run afoul of the law.

In 2017, the ACLU and the law firm of Covington & Burling filed Collins v. City of Milwaukee to challenge Milwaukee’s stop-and-frisk program. From 2007 to 2015, traffic and pedestrian stops in Milwaukee tripled from around 66,000 to a whopping 196,000. Expert reports released this week, relying on the city’s own data, show that a huge fraction of Milwaukee police stops are made without reasonable suspicion as required by law and disproportionately subject Black and Latino people to stigmatizing police encounters.

Margo L. Frasier, an expert with more than 40 years of law enforcement and criminal justice experience, including as the police monitor of Austin, Texas, and as the sheriff of Travis County, Texas, analyzed records of more than 350,000 pedestrian and traffic stops conducted between 2010 and 2017. She found that almost half of those records fail to show that Milwaukee police had reasonable suspicion of criminal activity or a traffic or vehicle equipment violation prior to conducting such stops, as required by the Fourth Amendment to the U.S. Constitution.

Frasier also found that Milwaukee police are not required to document frisks — also known as “pat downs” — and therefore fail to collect information about the reasons police officers conduct them. She explains in her report that this prevents police supervisors and the Milwaukee Fire and Police Commission, which oversees the city’s police department, from ensuring that officers only frisk people when they have objective reasonable suspicion that a person is armed and dangerous, as the Fourth Amendment requires.

So if Milwaukee police stops aren’t based on objective reasonable suspicion, what are they based on? A report by David Abrams, an expert in law, economics, and public policy at the University of Pennsylvania Law School and The Wharton School, makes clear that Milwaukee police stop racial and ethnic minorities at higher rates than whites, and that factors other than race and ethnicity do not explain those differences.

Abrams found that Black and Latino people are more likely than white people to be subject to traffic stops across Milwaukee, including in areas in which the residential population is predominantly white. He discovered that even after controlling for non-racial factors — including crime rates — traffic and pedestrian stop rates in Milwaukee are both more than six times higher for Black people than for white people. He also found that Milwaukee’s rate of drug or weapon discovery from searches during traffic stops is extremely low — occurring in less than 1 percent of such stops — and that Black people are far more likely to be subjected to such searches. (That analysis also controlled for explanations other than race and ethnicity.) Abrams’ analysis shows that searches of Black and Latino drivers are more than 20 percent less likely to lead to the discovery of drugs than searches of white drivers — again, even after controlling for factors other than race and ethnicity.

These reports make clear what thousands of Black and Latino people — including the nine named plaintiffs in our case — already knew from being unlawfully stopped and frisked by police in the course of their everyday lives. Milwaukee police stops and frisks are about race and ethnicity.

And Milwaukee is not alone. Expert analysis of data produced by the police departments of New York, Boston, Chicago, and Philadelphia has also led to findings that race and ethnicity drive stops.

Recent data from New York City also shows that, contrary to warnings by critics, bringing stop and frisk practices in line with constitutional requirements does not result in a rise in crime. A federal court ruling striking down New York City’s stop-and-frisk program resulted in a 98 percent drop in police stops in 2016 from 2012 levels. Despite the dramatic decline in stops, there has been no corresponding increase in crime. In fact, in New York City, crime has decreased to lows not seen since the 1960s, inspiring some of those critics to change their minds.

The evidence from New York provides an important lesson for Milwaukee. Police and their oversight agencies should strive to ensure that stops and frisks are bias-free and grounded in reasonable suspicion. Race and ethnicity should never be their driving force.

Public-Sector Union Fees Don’t Violate the First Amendment

American Civil Liberties Union - Fri, 02/23/2018 - 10:00
The argument behind Janus v. AFSCME is based on a faulty premise.

This piece originally appeared at The Nation

Can state employees who decline to join a union in their workplace be required to pay fees to support the union’s work? On February 26, the Supreme Court will hear arguments in Janus v. American Federation of State, County, and Municipal Employees, a case pitting the First Amendment claims of dissenting employees against the interests of public-sector unions. Mark Janus, an Illinois state employee who opposes the union, argues that a state law allowing public-sector unions to charge nonmembers fees for collective-bargaining activities violates his First Amendment rights. Were the Court to accept this argument, it would severely undermine such unions, by requiring them to provide services free of charge to any worker who says he objects to the union. Regardless of what you think about unions, such a ruling would turn First Amendment law on its head.

The American Civil Liberties Union is second to none in defending the First Amendment rights of free speech, association, and assembly. We protect the right to associate and the right not to be compelled to associate against one’s will. But state laws allowing unions to charge fees for services that they must provide to all workers does not violate anyone’s free-speech rights. Here’s why.

To continue reading at The Nation, click here

There's No Such Thing as 'Consensual Sex' When a Person Is in Police Custody

American Civil Liberties Union - Fri, 02/23/2018 - 09:30
In New York and 34 other states, police officers accused of raping people in their custody can offer a consent defense.

On the night of Sept. 15, 2017, Edward Martins and Richard Hall, narcotics detectives with the New York Police Department, pulled over an 18-year-old woman and her two male friends for being in a park after dark. After finding marijuana in the car’s cup holder, they handcuffed the woman and told her friends to leave. The woman says that the detectives then put her in their unmarked police van with tinted windows and raped her as she cried and repeatedly told them “no.” Semen collected in a forensic evidence kit matched the DNA of both men.

In November, Martins and Hall resigned from the NYPD and currently face rape and kidnapping charges. Both pleaded not guilty. Their defense against these allegations is almost as disturbing as the crimes they are accused of. They claim that they had consensual sex with the woman while she was in their custody.

And here’s the thing: This defense might actually work because New York state law allows it.

New York is one of 35 states where consent may be used as a defense when a police officer is charged with raping a person in his custody. A Buzzfeed analysis of a Buffalo News database found that 26 out of at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with a person in custody have been acquitted or had charges dropped against them based on this absurd defense.

The defense completely ignores the incredible power police officers have over civilians in general, particularly those in their custody. That power dynamic makes consent impossible in this circumstance. Anyone in police custody implicitly understands this and knows that not going along with a police officer’s wishes could have serious adverse consequences.

This kind of sexual abuse by police is not uncommon. A Buffalo News analysis found that an officer is accused of sexual misconduct every five days. Another study discovered that 40 percent of young women in New York City reported being sexually harassed by police.

In 2015, then-Attorney General Loretta Lynch attempted to address the problem as part of the Department of Justice’s national guidance on gender bias in law enforcement response to domestic violence and sexual assault. One of the principles outlined in the guidance is to “hold officers who commit sexual assault or domestic violence accountable.” It seems highly unlikely this problem will be tackled by our current attorney general, Jeff Sessions, who has said he thinks systemic problems in police departments basically don’t exist.

While the trial of the two NYPD detectives proceeds, state and local officials have begun to take action. Gov. Andrew Cuomo last week announced a budget amendment that would remove the availability of the consent defense and prohibit sexual contact between police officers and those in custody. A similar bill recently passed in the Assembly and awaits action in the state Senate. Current state law prohibits corrections officers and probation officers from claiming consent when charged with sexual abuse of incarcerated people. These legislative measures would bring those in police custody under the law’s sensible protections as well.

The NYPD Civilian Complaint Review Board also voted last week to start investigating cases of sexual harassment and assault by officers. Previously, these cases were referred by the board to the department’s Internal Affairs Bureau. This change, which should have been made long ago, is welcome. Allegations of sexual misconduct by officers should be subject to thorough and independent investigations. When officers use their authority to threaten the safety of those less powerful, the public needs to have ways to hold them accountable. Without this accountability, women will continue to pay a heavy price.


Can Schools Discipline Students for Protesting?

American Civil Liberties Union - Thu, 02/22/2018 - 14:30
Students have turned last week's school shooting into an exemplary push for change. Here's a quick primer on their rights.

Students around the country are turning last week’s heartbreaking school shooting in Parkland, Florida, into an inspiring and exemplary push for legislative change. In the last few days, many people have asked whether schools can discipline students for speaking out. The short answer? It depends on when, where, and how the students decide to express themselves.

Plans for coordinated student walkouts have been making national news and have already engendered disciplinary threats from some school administrators. Since the law in virtually all jurisdictions requires students to go to school, schools can typically discipline students for missing class, even if they’re doing so to participate in a protest or otherwise express themselves. But what the school can’t do is discipline students more harshly because they are walking out to express a political view or because school administrators don’t support the views behind the protest. In other words, any disciplinary action for walking out cannot be a response to the content of the protest.

Before deciding whether to join a political walkout, students might want to find out what policies govern discipline for absences in their state, school district, and their particular school so that they’re aware of the potential consequences. They should also know that in addition to walkouts, there are actions they can take for which schools cannot legally impose punishment.

We hope schools recognize that even when they are within their right to discipline students for protests, that doesn’t always mean they should.

For example, during school hours, students cannot be punished for speaking out unless their speech disrupts the functioning of the school. This is because — as the Supreme Court recognized in a 1969 decision upholding the right of Mary Beth Tinker to wear an armband to school in protest of the Vietnam War — students do not lose their constitutional rights “at the schoolhouse gate.” This makes sense given the educational purpose of our school system. As the court held in an earlier decision finding that students cannot be obligated to salute the flag, students’ speech rights must be “scrupulously” protected if we are to have any hope of “educating the young for citizenship” and teaching students not to “discount important principles of our government as mere platitudes.”

While what qualifies as “disruptive” will vary by context, courts have typically held that students have the right to wear expressive clothing that doesn’t target fellow students or disrupt class. In addition to Tinker, the ACLU has successfully represented students asserting their rights to wear clothing expressing anti-abortion views, support for the LGBT community, and even opposition to the ACLU itself.

Outside of school, students enjoy essentially the same rights to protest and speak out as anyone else. This means that students are likely to be most protected if they organize, protest, and advocate off campus and outside of school hours. Some schools have attempted to extend their power to punish students even for off-campus, online expression. While courts have differed on the constitutionality of such punishments, the ACLU has challenged such overreach.

We clearly have a lot to learn from the students from Marjory Stoneman Douglas High School and their peers nationwide. Their activism inspires confidence in the future of our democracy, and their schools should be proud of them. We hope those schools recognize that even when they are within their right to discipline students for protests, that doesn’t always mean they should.

6 South Carolina Legislators Want Same-Sex Marriages to Be Called 'Parody Marriages'

American Civil Liberties Union - Wed, 02/21/2018 - 17:30
Same-sex marriage is a product of the secular humanist religion and thus unconstitutional, bill's sponsors say.

Sometimes legislators do something so discriminatory and full of hate that it’s hard to believe someone isn’t trying to pull your leg. But six Republican legislators in South Carolina last week introduced legislation that would define any marriage not between a man and a woman as a “parody marriage.” And they’re deadly serious.

On Feb. 15, Reps. Steven Long, Bill Chumley, Mike Burns, John McCravy, Josiah Magnuson, and Rick Martin introduced the “Marriage and Constitution Restoration Act” in the South Carolina House of Representatives. The bill uses the terms “marriage” and “parody marriage” to redefine what unions the state would recognize. “Parody marriage,” the legislation says, “means any form of marriage that does not involve one man and one woman.”

The bill is unconstitutional on its face, and the legal analysis it employs is absurd. It relies partly and mistakenly on the Establishment Clause of the Constitution, which states that “Congress shall make no law respecting the establishment of religion.” Under the Establishment Clause, a secular law means one that is nonreligious while a nonsecular one would be religious in nature. Here’s where things get absurd. According to these representatives, same-sex marriage is religious because all LGBTQ individuals are members of the “religion of Secular Humanism.” Therefore, same-sex marriage is nonsecular and thus a “parody marriage” that the state of South Carolina would no longer recognize if the bill passed.

This isn’t a joke.

The legislation also neglects to define the term parody. According to Merriam Webster, a parody is “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect." The use of the term by the lawmakers seems to suggest that same-sex marriages are for comic effect. But the only “comic effect” here is that the authors actually introduced this bill, with this language, in 2018.

The legislators, however, go further. Same-sex marriage, they believe, was the opening “Secular Humanists” needed “to infiltrate and indoctrinate minors in public schools to their religious world view which is questionably moral, plausible, obscene, and is not secular.” If you’re going to introduce such a hateful piece of legislation, you might as well go all the way and throw in some paranoid conspiracy theories, too.

Even if this absurd piece of legislation were to pass the South Carolina legislature, the courts would strike it down as unconstitutional. Marriage equality is settled law, and was upheld by the Supreme Court in 2015. Some lawmakers in South Carolina can’t handle that, and by engaging in this legislative stunt, they are making a parody of themselves.

Debt Collection Companies Have Hijacked the Justice System

American Civil Liberties Union - Wed, 02/21/2018 - 09:15
People who can’t afford to pay bills face arrest and jailing because of powerful money-hungry debt collectors.

Denise Zencka, a mother of three in Indiana, had to file for bankruptcy because she couldn’t afford to repay her bills for treatment for thyroid cancer. And because she was unable to work, she had to stay with her parents in Florida while she recovered. She didn’t know that during that time, at the request of a debt collector seeking to collect outstanding medical bills, a small claims court judge had issued three warrants for her arrest. When she returned to Indiana, she was arrested by local sheriff’s deputies for the private debt she owed. Once at the jail, and being too sick to climb the stairs to the women’s section, she was held in a men’s mental health unit. Its glass walls allowed the male prisoners to watch everything she did, including using the toilet.

As in Zencka’s case, and in thousands of other similar cases around the country, courts are issuing arrest warrants and serving as taxpayer-funded tools of the multi-billion-dollar debt collection industry.

Debtors’ prisons were abolished by Congress in 1833. They are often thought to be a relic of the Dickensian past. In reality, private debt collectors are using the courts to get debtors arrested and to terrorize them into paying, even when a debt is in dispute or when the debtor has no ability to pay.

Tens of thousands of arrest warrants are issued annually for people who fail to appear in court to deal with unpaid civil debt judgments. In investigating this issue for the new ACLU report, “A Pound of Flesh,” we examined more than 1,000 cases in 26 states, in which civil court judges issued arrest warrants for debtors. The debtors were often unaware that they had been sued. In many cases, they had not received notice to show up in court.

Read the Report

Arrest warrants were issued in cases involving every kind of consumer debt or loan, including debts as small as $28. People have been arrested for debts arising from medical fees, federal and private student loans, car payments, unpaid rent, daycare fees, small-business loans, credit card bills, foreclosure deficiencies, high-interest payday loans, and gym fees, to name just a few types.

The process starts when a debt collector files a lawsuit, and it snowballs from there. Each year, collectors flood small-claims and other state courts with millions of suits seeking repayment. Many courts churn through collection suits with almost no scrutiny. Over 95 percent of debt collection suits end in favor of the collector, usually because alleged debtors do not or cannot mount a defense.

Then, with a judgment in hand, creditors can ask courts to require the person to show up in court for “judgment debtor examinations,” at which they are required to answer questions about their finances and assets. If the debtor does not appear for the exam, debt collectors can ask the judge to issue a civil warrant for the debtor’s arrest.

Our investigation found that many people missed their court dates because of work, childcare responsibilities, lack of transportation, physical disability, illness, or because they didn’t receive notification of the court date. We found two cases in which elderly women missed hearings because they were terminally ill. They died shortly after warrants were issued for their arrest. The threat of arrest is an incredibly powerful tactic for collectors. As one lawyer in Texas, who has sought arrests of student loan borrowers, has noted, “It’s easier to settle when the debtor is under arrest.”

Once arrested, a debtor may languish in jail for days until he can arrange to pay bail. Judges sometimes set bail at the exact amount of the judgment. And the bail money often is turned over to the debt collector or creditor as payment against the judgment.

Even when people aren’t arrested, warrants can cause long-lasting harm because they may be entered into background check databases, with serious consequences for future employment, housing applications, education opportunities, and access to security clearances.

Predatory debt collection companies are profiting from Americans who are trapped in debt and on the financial edge as a result of the loss of a job, illness, the death of a family member, or a divorce. The impact of abusive collection practices is particularly harmful to Black and Latino communities, which face longstanding racial and ethnic gaps in poverty and wealth.

There is scant protection from collection abuses under federal and state laws. And even when there are laws in place, abuses remain largely unchecked because regulators rarely intervene to stop them. Unless that changes, the most vulnerable debtors will continue to be victimized by predatory collectors and courts that serve them.

Do you have a warrant issued or threatened in a private debt collection case? If so please contact us at

Where Does #MeToo Start?

American Civil Liberties Union - Fri, 02/16/2018 - 11:45
How sex stereotypes in schools perpetuate sexual harassment in the workplace and beyond.

Reckoning with the prevalence of sexual harassment and gender-based violence in the wake of #MeToo has prompted many to reexamine the conditions that have allowed harassment and violence to flourish. One place to start is our public schools, where young people develop critical understandings about gender starting at an early age.

For over a decade, the ACLU has been raising alarms about teaching methods widely in use in public schools across the United States premised on the notion that there are fundamental, sex-based differences that determine how students learn and develop. Proponents of these methods frequently cast boys as active or dominant, and girls as passive or submissive — stereotypes that normalize the power dynamics that lead to abuse and harassment.

Consider the slide below, from a teacher training widely used by public schools in Volusia County, Florida, which literally divides students into pink and blue:

Or this poster, recently posted on the wall of an all-boys public school in Dallas:

Michael Gurian, a popular author and chief proponent of this philosophy, has claimed: “Pursuit of power is a universal male trait. Pursuit of a comfortable environment is a universal female trait.” He suggests that boys who like to read or do not enjoy contact sports have a problem, and should be disciplined and made to spend time with “normal males” and play sports. He also recommends that boys be provided nerf bats to hit things in order to release physical aggression. Leonard Sax, another popular author, claims that teachers should discipline boys by asserting power over them or even spanking them, while they should discipline girls by appealing to their empathy. Both Sax and Gurian regularly provide teacher trainings in public schools, paid for at taxpayer expense, including recent mandatory trainings in Dallas, Texas and West Milford Township, New Jersey, to name just a few.

Educators often favor this approach because it matches perceptions of how “most” boys and girls behave, and because they are led to believe that separating boys from girls into different classes will eliminate distraction in the classroom and lead to better student performance outcomes. But scientific evidence tells a different story. Claims about differing male and female brains have been largely debunked: Brains are much more similar across sex than they are different, and what differences do exist don’t necessitate different teaching methods. What’s more, there is no valid evidence that the use of these teaching techniques is effective.

If we teach that boys are hardwired to be aggressive and dominating, and girls passive and submissive, how can we hold boys and men accountable when they perpetrate harassment and abuse? If we treat girls as too distracting to be educated in the same room as boys, what does that say about the relative value of girls’ and boys’ education, or their potential contributions to society? And if we presume male and female students can’t learn together in the same classrooms, how will they learn to coexist and treat each other with respect, whether in higher education or the workplace?

There is also the question of where this leaves students who don’t conform to gender expectations, including LGBTQ and non-binary students. Using sex as a proxy for students’ learning styles — or even to determine which classroom a student enters at school — erases their experience. Teaching that there is a “normal” way to be a boy or girl can exacerbate feelings of isolation, and increase instances of harassment and bullying, to which LGBTQ and non-binary students are already disproportionately subject.

Ultimately, there is little to be gained from using education practices that highlight gender differences, as opposed to emphasizing commonalities and meeting students where they are as individuals. Studies show that any practice that highlights differences between groups can increase biased beliefs about the other group. For example, separating students into a red t-shirt group and a blue t-shirt group leads to the red t-shirts making more generalizations about — and believing that they are superior to — the blue t-shirts, and vice versa. Research also shows that students who spend more time in single-sex groups develop more stereotyped views regarding gender roles.

To be sure, schools can and should be taking other measures to prevent violence and harassment at school, such as establishing clear complaint procedures and educating students on bystander prevention, and to ensure that teachers and administrators respond appropriately when it does occur. They should also institute comprehensive sexuality education programs that  equip students with the tools to help them maintain healthy relationships.

But #MeToo should also prompt us all, as parents, students, teachers, and community members, to reexamine entrenched assumptions about gender that are baked into the ways schools educate students. Only by eradicating sex stereotypes in education will students be equipped to collaborate, learn, and work as equals and ultimately realize the promise of equality as adults.

Appeals Court Declares Third Muslim Ban Unconstitutional

American Civil Liberties Union - Thu, 02/15/2018 - 18:15
Trump’s ban, says court, “strikes at the basic notion that the government may not act based on religious animosity.”

Once again, an appeals court ruled that President Trump’s Muslim ban — now in its third iteration — violates the Constitution’s most basic guarantee of religious freedom.

Earlier today, the Court of Appeals for the Fourth Circuit stated that the ban’s purpose has always been and remains to “exclude Muslims from the United States.” The ruling comes at a crucial time, because the Supreme Court will issue its own decision on the ban this summer.

Today’s decision confirms what has been clear since Trump first took office. Throughout his presidential campaign, he consistently promised to block Muslim immigration and even announced a specific plan for achieving that goal: a nationality-based travel ban against people from predominantly Muslim countries. As promised, one week into his presidency, without consulting any federal agencies, he issued an unprecedented ban against people from seven overwhelmingly Muslim countries.

Chaos ensued at airports across the country. Americans showed up in droves to stand up for their families, their neighbors, and their colleagues, driving home the message that religious bigotry has no place in our country. The courts quickly blocked the ban.

Since then, Trump has done everything in his power to carry out his goal. After the first ban was blocked, he instructed the government agencies he had ignored the first time around to “compile additional factual support,” as his lawyers put it, to implement the same basic policy. Sure enough, after three weeks, the president signed a second ban, this time targeting six predominantly Muslim countries. Courts blocked that second version, ruling that the president does not gain the ability to suddenly ban millions of Muslims simply by getting his cabinet to sign off on it.

The courts did, however, allow the administration to implement the president’s order to conduct a study of existing visa vetting procedures, to determine what other restrictions to impose. To oversee that process, Trump installed a Department of Homeland Security official who, like the president himself, had explicitly advocated for a ban on Muslim immigrants and surveillance of mosques in the United States. To no one’s surprise, that process led to a recommendation that the president do what he had already done twice: ban people from predominantly Muslim countries, virtually the same ones named in the first two versions of the ban.

Trump signed the third ban in September. Unlike the first two versions, which were temporary, this one permanently bans people from six Muslim-majority countries. It also bans people from North Korea, which sends almost no one to the United States, and a handful of government officials from Venezuela.

Thankfully, the courts have again roundly rejected the president’s attempt to keep Muslims out of the country. In December, the Ninth Circuit court of appeals ruled that the ban violates U.S. immigration laws, which do not allow the president to remove entire countries from our immigration system. The Supreme Court will hear that case this spring.

Today’s decision is notable because it is the first time an appeals court has ruled that the permanent ban violates the Constitution. The Fourth Circuit rejected the government’s attempt to portray the third ban as completely separate from the first two. As the court explains, “a reasonable observer could hardly swallow the claim that the addition of North Korea and Venezuela to the twice-enjoined travel ban” changed the ban’s basic purpose. The court pointed to “undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States.”

The evidence is indeed overwhelming. Late last year, Trump posted three anti-Muslim videos intended to sow fear of Muslims immigrants and distrust between Christians and Muslims. And even while his agencies were studying their visa procedures, Trump made clear that he planned to impose the toughest possible ban, no matter what.

The ban, the court held, “strikes at the basic notion that the government may not act based on religious animosity.” It not only cuts against basic values of equality and freedom, it also does untold damage to thousands of American families, schools, hospitals, and businesses. As the decision says, the ban “inhibits the normal flow of information, ideas, resources, and talent” between other countries and our own. And it “denies the possibility of a complete, intact family to tens of thousands of Americans.” The human tragedies inflicted by the ban are impossible to overstate.

Read More: Living With The Muslim Ban

Despite today's ruling, the ban remains in effect while the Supreme Court considers the case. It is expected to hear arguments in April and to decide by June whether the president may indefinitely exclude millions of Muslims from uniting with their families in the United States. Let's hope the third ban’s rejection by the appeals courts is an indication of its ultimate fate.

Take It From a Death Row Exoneree: The Dallas County DA Election Is a Big Deal

American Civil Liberties Union - Thu, 02/15/2018 - 17:00
The most powerful elected official you've never heard of.

This piece originally appeared at the Dallas Morning News.

On March 6, the voters of Dallas County will begin the process of choosing their next district attorney. This is a critical decision that will have lasting effects on the lives of millions of Texans.

A county election might seem unimportant compared to the daily drama of national politics, but I know better than most the awesome power district attorneys wield. I also know how much damage they can do when they exercise that power corruptly or irresponsibly. Or when they measure their success not by their commitment to truth, justice and community, but by the number of convictions they secure.

Because of one such district attorney, I spent 18-and-a-half years behind bars, with 16 of those years in solitary confinement and 12 on death row, all for a crime that I did not commit.

Because of a district attorney, my death was scheduled twice. Because of a district attorney, I will forever be known not only as Anthony Graves, grandfather, father and son, but as United States Death Row Exoneree 138.

The district attorney who put me through those two decades of torture and despair was ultimately disbarred, but that level of accountability for prosecutorial misconduct is rare. District attorneys are almost never held accountable for their misdeeds, which is why it's so important to choose them wisely at the ballot box.

I spent 18-and-a-half years behind bars, with 16 of those years in solitary confinement and 12 on death row, all for a crime that I did not commit.

District attorneys are the most powerful and influential public servants in the criminal justice system. They have more impact on the communities they serve than President Donald Trump, U.S. Attorney General Jeff Sessions or Texas Gov. Greg Abbott. They influence whether a person is charged with a crime, and whether that person will have to sit in jail awaiting trial. They affect whether a drug addict gets treatment or a prison sentence. They determine whether police officers will be held accountable for instances of excessive or lethal force. They alter the course of state and local criminal justice legislation. And they are among the primary drivers of mass incarceration in America.

In a state like Texas, which has one of the highest incarceration rates in the world, choosing the right DA couldn't be more important. And in Dallas County, which locks up a disproportionate number of African Americans, Latinos and women, voters have an opportunity to bring about real and positive change.

Dallas County deserves a district attorney who treats incarceration as a last resort rather than a default response. Far too many people are held in jail while they await trial simply because they cannot afford bail, or for minor drug possession, or because they've fallen behind on traffic fines and fees. And those who are in jail naturally lose the ability to support themselves or their families, sticking taxpayers with the bill for their food, housing and health care.

The remedies are well known, and they work. Pre-trial diversion programs, pre-trial incarceration reforms, drug treatment programs, mental health screenings and treatment, and the elimination of racial biases in policing and prosecution would all do a great deal to reduce mass incarceration in Dallas County.

But none of this is possible without a district attorney for whom truth is more important than a conviction rate.

We’re Challenging Ohio Lawmakers’ Thinly Veiled Attempt to Push Abortion Out of Reach

American Civil Liberties Union - Thu, 02/15/2018 - 14:45
The Ohio law pretends to protect people with disabilities, but it’s really an attack on a woman’s reproductive rights.

Ohio politicians have launched yet another attack on women’s health and reproductive rights, and to make matters worse, they are mounting their attack in the guise of a concern for individuals with disabilities.

Today, the American Civil Liberties Union of Ohio and the American Civil Liberties Union filed a lawsuit on behalf of Preterm Cleveland and a number of other abortion care providers to challenge an unconstitutional abortion ban. The law, signed by Gov. John Kasich, would prevent a woman from ending a pregnancy because of a Down syndrome diagnosis. It does so by criminalizing any doctor who knowingly performs an abortion sought on that basis. The law, unless it is stopped by a court, would go into effect next month.

Although it’s packaged differently from the other 18 restrictions that Gov. Kasich signed before it, this ban is just another thinly veiled attempt to push abortion out of reach and interfere in a woman’s personal decision. It’s also unconstitutional — a federal court struck down a similar law in Indiana back in 2016.

Let’s make one thing clear: This law does nothing to honor or support families who decide to bring a special needs child into the world. It does not improve access to health care, education, or other services, nor does it do anything to address discrimination against people with disabilities. What this law does is to deny women’s constitutional right to make their own reproductive decisions, and it also interferes with women’s relationships with their doctors, by making it harder to have honest and informed conversations.

We can’t know all the factors behind a woman’s decision to continue or end a pregnancy. We can, however, ensure that a woman has the relevant information and resources she needs to make the decision that’s best for the circumstances of her pregnancy and for her family. Politicians should do everything in their power to make sure Ohio women have access to accurate medical information, resources, and the support necessary to raise their children with dignity. Instead, they’re passing laws that restrict a woman’s ability to have these critical conversations, while forcing doctors to interrogate their patients.

Emily Chesnut — the mother of seven-year-old Nora, who has Down syndrome — spoke at the press conference announcing the lawsuit. She said it best:

No parent should have to embark on this journey uninformed. They should be able to have a frank, honest conversation with their doctor about what it will mean to have a child with Down syndrome. They should have all the information and be encouraged to ask more questions, so they can make this very personal decision freely, without the presence of politicians in the exam room. This bill does nothing to help with that.

I understand that talking about Down syndrome tugs at heartstrings. I understand the fierce pride and protectiveness that parents of children with Down syndrome feel. I feel it too.

This bill is not about Down syndrome. It is not about protecting our children or making their lives better.

This bill is about putting another hurdle in front of women who have a constitutional right to make their own decisions about their bodies and their futures. As a mother, I will not stand for that.

If Ohio politicians do, in fact, want to support people with disabilities, there are many steps they could take. The government’s role should be to help level the playing field for people with disabilities, who face particular obstacles in getting health care, housing, education and other services. How about we start with improving those services?

ICE Keeps Challenging Federal Courts’ Authority — And Losing.

American Civil Liberties Union - Wed, 02/14/2018 - 11:00
In national assault on immigrants’ rights, ICE believes no population is off the table. U.S. law and courts say otherwise.

In a recent span of 10 days, four courts issued decisions that could literally save lives.

Our clients live across the United States, but all have been swept up in ICE’s aggressive new campaign to target communities previously considered low-priority for immigration enforcement, with ICE attempting to deport them as quickly as possible. Since July 2017, we have challenged this bully tactic in federal district courts across the country, filing cases on behalf of communities of Iraqis in Michigan, Indonesians in New Hampshire, Somalis in Florida, Cambodians in Southern California, and Indonesians in New Jersey.

Between Jan. 25 and Feb. 2, judges across the country temporarily blocked the deportations of the four latter cases. The Iraqis, whose case was the first to be filed in June 2017, have already received a nationwide stay. For varying reasons, all these communities previously enjoyed a reprieve from deportation, in some cases for decades. However, with the change in administration, a target was placed on their backs. As Thomas Homan, ICE’s acting director, declared at a December press conference, “The president has made it clear in his executive orders: There’s no population off the table.”

However, in ruling after ruling, judges have taken issue with the government’s argument that these noncitizens — because of existing final orders of removal, some of which are decades old — have no meaningful opportunity to access the immigration court system to present their claims that they face grave harm if deported.

Moreover, they have rejected the government’s assertion that federal courts lack jurisdiction to rule on such matters. While ICE argues that our clients should confine themselves to prevailing upon existing immigration channels, the federal judges recognized that, without their intervention, individuals would likely be deported before they have a chance to do so.

In carrying out this campaign, ICE has shown little to no regard for the circumstances in immigrant’s countries of origin or the reasons they fear danger upon return. Instead, the agency has demonstrated it is willing to ignore our asylum laws and to repeatedly — and unsuccessfully — challenge federal courts’ jurisdictions in order to deport people as quickly as possible.

Under the Immigration and National Act, the government cannot deport a noncitizen to a country where their particular race, religion, nationality, membership in a particular social group, or political opinion puts their life or freedom at risk. The United States has also committed to adhere to the United Nation’s Convention Against Torture, and thus cannot deport a noncitizen to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In the face of these legal barriers, ICE has focused its energy on trying to stop communities fighting deportation from receiving sufficient time to reopen their cases before immigration judges, who might find they qualify for protection under these laws. The agency’s hasty approach, in the face of such high stakes, has raised flags for the judiciary.

In the case of 1,400 Iraqis, many of whom fear that their religious affiliation and time in America will mark them as targets by ISIS, Judge Goldsmith of Michigan found, “While cost and efficiency in administering the immigration system are not illegitimate governmental concerns, such interests pale to the point of evaporation when weighed against the potential lethal harm Petitioners may suffer.”

When weighing the future of Indonesian Christians in New Hampshire who fear religious persecution, Judge Saris of Massachusetts drew parallels to the 1939 U.S. decision to turn away Jewish refugees aboard the St. Louis, who were seeking safety. The ship returned to Europe, where 254 of the passengers were murdered in the Holocaust.

“After the Holocaust boats were turned away during World War II, the country said “Never again are we going to do that,” Judge Saris explained, “So I think we don’t want to put them on the ship back unless somebody has had a chance to look at whether there’s a really bad situation for them.”

We are currently defending two of our victories on behalf of the Indonesians in New Hampshire and the Iraqis in Michigan in the federal appeals courts for the First and Sixth Circuits, respectively. As more communities come under attack, we will continue to petition the courts to affirm immigrants’ rights in the face of an administration bent on discarding them. Thus far, federal judges have stepped up to the task.

I Sentenced a Teen to Die in Prison. I Regret It.

American Civil Liberties Union - Tue, 02/13/2018 - 16:45
A retired judge sentenced a teenager to 241 years in prison. She now believes her sentence was unconstitutional.

This piece originally appeared at The Washington Post

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis. Two shots were fired. A bullet grazed one person, but no one was seriously injured. The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana. Despite overwhelming evidence against him, Bostic chose to go to trial. He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.”

To keep reading this piece at The Washington Post, click here.

Your Rights in the Border Zone

American Civil Liberties Union - Tue, 02/13/2018 - 14:30
As Customs and Border Protection becomes increasingly aggressive, knowing your rights is crucial.

On Jan. 19, two Border Patrol agents boarded a Greyhound bus at a Fort Lauderdale station and proceeded to question passengers row by row. The bus, traveling from Orlando to Miami, had not crossed any international borders. Despite its domestic route, the agents interrogated passengers, ultimately detaining a Jamaican national who, Border Patrol claims, had overstayed her tourist visa. This story is not an isolated occurrence, and the practice is hardly new. However, a recent uptick in this type of immigration operation — from New York to Florida — has caused fear among travelers and immigrant communities. It has also raised important questions about the scope of immigration officials’ authority and the rights one has in these encounters.

Are immigration officials allowed to stop people in places wholly inside the U.S.?

U.S. Customs and Border Protection, the federal agency tasked with patrolling the U.S. border and areas that function like a border, claims a territorial reach much larger than you might imagine. A federal law says that, without a warrant, CBP can board vehicles and vessels and search for people without immigration documentation “within a reasonable distance from any external boundary of the United States.” These “external boundaries” include international land borders but also the entire U.S. coastline.

What is a “reasonable distance”?

The federal government defines a “reasonable distance” as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Two-thirds of the U.S. population, or about 200 million people, reside within this expanded border region, according to the 2010 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.

Are there limitations to immigration officials’ power? 

The Fourth Amendment to the U.S. Constitution protects against arbitrary searches and seizures of people and their property, even in this expanded border area. Furthermore, as a general matter, these agents’ jurisdiction extends only to immigration violations and federal crimes. And, depending on where you are in this area and how long an agent detains you, agents must have varying levels of suspicion to hold you.

We will examine specific scenarios where one might encounter CBP in more depth, but here are your key rights. These apply to every situation, outside of customs and ports of entry.

  • You have the right to remain silent or tell the agent that you’ll only answer questions in the presence of an attorney, no matter your citizenship or immigration status. You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings.
    For people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney.
  • Generally, an immigration officer cannot detain you without “reasonable suspicion.” Reasonable suspicion is less robust than probable cause, but it is certainly not just a hunch or gut feeling. An agent must have specific facts about you that make it reasonable to believe you are committing or committed, a violation of immigration law or federal law.
    If an agent detains you, you can ask for their basis for reasonable suspicion, and they should tell you.
  • An immigration officer also cannot search you or your belongings without either “probable cause” or your consent. If an agent asks you if they can search your belongings, you have the right to say no.
  • An immigration officer cannot arrest you without “probable cause.”
    That means the agent must have facts about you that make it probable that you are committing, or committed, a violation of immigration law or federal law.
  • Your silence alone meets neither of these standards. Nor does your race or ethnicity alone suffice for either probable cause or reasonable suspicion.

Other important factors to keep in mind:

  • If an agent asks you for documents, what you need to provide differs depending on your immigration status. U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials.
  • People who have entered the U.S. without inspection by an immigration official may be subject to expedited removal from the U.S. Expedited removal is a summary deportation that bypasses an immigration judge. The federal government says that it will only attempt to apply expedited removal to individuals who have entered the United States without inspection in the last 14 days, have been encountered by an immigration officer within 100 miles of the border, and meet certain other criteria. If you are told that you are subject to expedited removal but do not fall within that category, you should let the agents know. Also, if you fear persecution if returned to your country of origin, you should immediately inform the agents of your fear.
How Does This Work in Real Life? CBP on Buses and Trains

As part of its immigration enforcement efforts, CBP boards buses and trains in the 100-mile border region either at the station or while the bus is on its journey. More than one officer usually boards the bus, and they will ask passengers questions about their immigration status, ask passengers to show them immigration documents, or both. These questions should be brief and related to verifying one’s lawful presence in the U.S. Although these situations are scary, and it may seem that CBP agents are giving you an order when they ask you questions, you are not required to answer and can simply say you do not wish to do so. As always, you have the right to remain silent.

Refusing to answer CBP’s questions may result in the agent persisting with questioning. If this occurs, you should ask if you are being detained. Another way to ask this is to say, “am I free to leave?” If the agent wishes to actually detain you — in other words, you are not free to leave — the agent needs at least reasonable suspicion that you committed an immigration violation to do so. Also, if an agent begins to question you about nonimmigration matters, say to ask about drug smuggling, or if they haul you off the bus, they need at least reasonable suspicion that you committed an offense in order to briefly detain you while they investigate. You can ask an agent for their basis for detaining you, and they should tell you.

The longer CBP detains you the more suspicion they need — eventually they will need probable cause once the detention goes from brief to prolonged. If the agent arrests you or searches the interior of your belongings, they need probable cause that you committed an offense. You can ask the agent to tell you their basis for probable cause, and they should be able to articulate their suspicion.

CBP at Immigration Checkpoints

CBP operates immigration checkpoints along the interior of the United States at both major roads — permanent checkpoints — and secondary roads — “tactical checkpoints”— as part of its enforcement strategy. Depending on the checkpoint, there may be cameras installed throughout and leading up to the checkpoint and drug-sniffing dogs stationed with the agents. At these checkpoints, every motorist is stopped and asked about their immigration status. Agents do not need any suspicion to stop you and ask you questions at a lawful checkpoint, but their questions should be brief and related to verifying immigration status. They can also visually inspect your vehicle. Some motorists will be sent to secondary inspection areas at the checkpoint for further questioning. This should be done only to ask limited and routine questions about immigration status that cannot be asked of every motorist in heavy traffic. If you find yourself at an immigration checkpoint while you are driving, never flee from it — it’s a felony.

As before, when you are at a checkpoint, you can remain silent, inform the agent that you decline to answer their questions or tell the agent you will only answer questions in the presence of an attorney. Refusing to answer the agent’s question will likely result in being further detained for questioning, being referred to secondary inspection, or both. If an agent extends the stop to ask questions unrelated to immigration enforcement or extends the stop for a prolonged period to ask about immigration status, the agent needs at least reasonable suspicion that you committed an immigration offense or violated federal law for their actions to be lawful. If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you. You can ask an agent for their basis for reasonable suspicion, and they should tell you. If an agent arrests you, detains you for a protracted period or searches your belongings or the spaces of your vehicle that are not in plain view of the officer, the agent needs probable cause that you committed an immigration offense or that you violated federal law. You can ask the agent to tell you their basis for probable cause. They should inform you.

CBP Roving Patrols

CBP conducts yet another interior enforcement activity: roving patrols. During these patrols, CBP drives around the interior of the U.S. pulling motorists over. For these operations, the Supreme Court requires CBP to have reasonable suspicion that the driver or passengers in the car they pulled over committed an immigration violation or a federal crime. If they do pull you over, an agent’s questions should be limited to the suspicion they had for pulling you over and the agents should not prolong the stop for questioning unrelated to the purpose of the stop. Any arrest or prolonged stop requires probable cause. You may ask the agent their basis for probable cause, and they should tell you. In this situation, both the driver and any passengers have the right to remain silent and not answer questions about their immigration status.

Encounters with CBP, or any law enforcement agent, can be intimidating and scary. It is always best to stay calm and be courteous when dealing with immigration officials. If you believe your rights have been violated, you should contact an attorney.

Ohio’s Chief Justice Stands Up to Jeff Sessions in Support of Low-Income People

American Civil Liberties Union - Tue, 02/13/2018 - 12:30
Supreme court justice in Ohio reminds judges everywhere that criminalizing poverty is unconstitutional.

In late December, Attorney General Jeff Sessions rescinded crucial guidance that advised courts not to unfairly punish people simply for being poor. While Sessions furthers the criminalization of poverty, Ohio’s chief justice is reminding her judges that the people who pass through their courtrooms are not ATMs.

On January 29, Maureen O’Connor sent a letter to all Ohio trial judges to ensure they were aware that the law has not changed and “court cases are not business transactions.” Her thoughtful letter is a stark contrast to Jeff Sessions’ abrupt decision to rescind a guidance that had helped judges and court administrators around the country reform court practices to guard against abuses like debtors’ prisons — the jailing of poor people who cannot afford to pay court fines and fees.

O’Connor made clear that despite the department’s decision, the Constitution remains the supreme law of the land and that the rights enshrined in that document are unchanged. She also reminded judges of their obligation to serve the public and promote fairness and equal treatment of rich and poor:

“We have a special responsibility to act in a manner that bolsters public trust and confidence in the fair administration of justice for everyone. Practices that penalize the poor simply because of their economic state; that impose unreasonable fines, fees, or bail … upon on our citizens to raise money or cave to local funding pressure; or that create barriers to access to justice are simply wrong. No rescission of guidance by the [DOJ] changes that.”

As co-chair of the National Task Force on Fines, Fees, and Bail Practices, O’Connor has long been a leader in Ohio and the nation on reforming practices that criminalize poverty. With the stroke of a pen, O’Connor showed leadership at a time when the country needs it. Her letter brings attention to the devastating impact of excessive court fines and fees and bail practices on the lives of low-income people and the justice system’s obligation to protect people’s rights, even when they are poor.

In Ohio, particularly, O’Connor’s letter is crucial.

During the ACLU of Ohio’s 2013 investigation into debtors’ prison practices across the state, we met countless people who were tethered to the criminal justice system simply because they were too poor to pay off court fines and fees. We issued a report that told the story of countless more people who were given unjustly high court fines and fees that they could not afford to pay and rigid payment plans that kept them trapped in the grips of poverty.

One young couple owed thousands of dollars in fines and fees from low-level convictions, such as disorderly conduct and drinking underage. Each month, the couple was forced to make the impossible choice of whose fines they would continue to pay so one of them could stay at home with their infant while the other would spend another 10 days in jail for fines that they simply could not afford to pay. Our report also told the story of a man who could not afford to pay fines because he was recently laid off. With no health insurance and mounting medical debt, he simply could not pay his court fines.

After hearing these stories, many Ohio judges admitted that they were unaware that existing laws, including Ohio statutes and the U.S. Constitution, limit the ways in which court fines and fees can be imposed and collected. Chief Justice O’Connor took action to make sure that state judges would no longer be confused. She issued a detailed bench card outlining the rules for collecting fines and fees, ensured that judges throughout Ohio were trained on those rules, and held accountable judges who continued to violate the law by jailing people for nonpayment without giving them a hearing on their ability to pay.

The stark reality is that in many courts across the country, the size of your bank account determines the type of justice you receive. But Chief Justice O’Connor’s actions show that judges can chart a path toward fairness and restore trust in the justice system. ACLU affiliates in Mississippi, Washington, New Hampshire, and Michigan, are continuing this work – implementing reforms, leading community conversations, and making progress.

The abdication of leadership by the Department of Justice in the fight against debtors’ prisons and other injustices stemming from abusive court fines and fees has opened a path to leadership for others. Chief Justice O’Connor took the first step forward. Other state chief justices should follow suit and remind judges in their states that the U.S. Constitution remains the law of the land, regardless of what Jeff Sessions may think or do.

House Members Are Pushing a Bill That Will Roll Back the Rights of People With Disabilities

American Civil Liberties Union - Tue, 02/13/2018 - 09:45
The "ADA Education and Reform Act" neither reforms nor educates the landmark civil rights legislation.

The entrance to the post office in a small town was up a flight of 20 steps. When told he needed to make the post office accessible to wheelchair users, the postmaster was befuddled. “I’ve been here for thirty-five years and in all that time I’ve yet to see a single customer come in here in a wheelchair,” he said, according to Joe Shapiro in his 1994 book, “No Pity.”

It would seem the postmaster didn’t see the irony in that response. But it’s because of that lack of awareness from business owners and government workers that Congress in 1990 passed the Americans with Disabilities Act (ADA), which promoted the integration, acceptance, and everyday rights of people with disabilities. But this week, the House of Representatives could undermine a key tenet of that landmark civil rights law.

Under Title III of the ADA, private businesses must ensure new buildings are accessible and remove barriers in older buildings where it is “readily achievable”—a standard that considers the cost of the change and the resources of the business. For example, a major hotel chain might need to spend several thousand dollars to make a few of their rooms accessible, but a small business might only be expected to spend a few hundred dollars to grind down a three inch lip into a doorway, or to put a ramp up two stairs. Now a group of businesses led by the owners of large shopping malls have persuaded more than 100 representatives to introduce H.R. 620, the so-called “ADA Education and Reform Act of 2017.” This legislation would require people with disabilities who encounter access barriers at a business or facility to become legal experts on the code, to provide “notice” to the business of what code they are violating, and to wait six months or longer. And this isn’t even for the business to actually fix the problem—just for the business to make “substantial progress” towards accessibility.

Only after all these steps and months of waiting, would H.R. 620 authorize filing a lawsuit. Navigating such a process would be both complicated and time-consuming, which, of course, is the point of the bill.

Proponents of H.R. 620 claim that the bill will help dampen what they see as an increase in individuals bringing harassing or unjustified access lawsuits against small businesses. This is an absurd argument that functions as a strawman to attack the rights of the disability community. ADA lawsuits are already one of the lowest categories of lawsuits filed against businesses. The Center for American Progress has reported that the small uptick in ADA litigation can be attributed to “just 12 individual attorneys and a single disability law firm” which filed more than 100 cases each.

On a practical level, the legislation would effectively exempt businesses from compliance with Title III of the ADA, but it would do nothing to resolve the problem of individuals who are viewed as bringing harassing or unjustified access lawsuits against small businesses. Instead, H.R. 620 erodes the balancing of interests in the ADA by removing incentives for businesses to comply with the law and by placing excessive burdens on individuals with disabilities.

As Amy Robertson of the Civil Rights Education and Enforcement Center explains, defense firms fight even the most obvious access violations. “When presented with tape-measure evidence of noncompliance,” Robertson has written, “businesses challenge standing, limit or withhold discovery, move to compel and for protective orders, resist class certification, move to stay the litigation, seek summary judgment, and only then—after years of litigation and hundreds of thousands of dollars in fees on both sides—agree to comply.”

And in reality, there’s no real incentive to dedicate one’s life to hassling businesses with lawsuits. There are no damages available under the ADA—only attorneys’ fees and injunctive relief, which removes the specific barrier they’re contesting. Litigation is time-consuming, attorneys are expensive, and people with disabilities are too busy leading their lives to file endless lawsuits.

People with disabilities face barriers everyday: inaccessible restrooms, inaccessible medical equipment, inaccessible parking lots, inaccessible entrances, and inaccessible tables at restaurants. But instead of fixing those problems, H.R. 620 would force people who have historically faced the most marginalization and discrimination in society to become legal code experts and navigate a byzantine bureaucratic process before being able to assert their rights under the ADA. The specifics of this bill might look different in the final version, but no cosmetic modifications can change the fact that it’s predicated on a faulty premise. As a matter of law and justice, businesses owe it to people with disabilities to proactively ensure access—not the other way around.

If the House wants to rectify problems in access litigation, it should be assessing penalties against noncompliant businesses—not making it harder for people with disabilities to simply assert our right to be part of society.

9 Major Insurance Companies Are Profiting the Most Off the Broken Bail System

American Civil Liberties Union - Mon, 02/12/2018 - 15:45
Accredited Surety is one bail shark among many who exploits poor Americans trying to make bail.

Chances are you’ve never heard of Bermuda-based insurance investment conglomerate Randall & Quilter and its wholly owned Florida-based company Accredited Surety.

Accredited is one of nine major insurance companies that underwrite most of the money-bail businesses in the U.S. Companies like Accredited play a significant role in propping up the two-tiered American justice system that sells liberty to people who can afford it, plunges people into debt who struggle to pay it back, and deprives many others the opportunity to return to their lives, families, and jobs while the court determines their guilt or innocence.

And because of its unapologetic gluttony, Accredited is our bail shark of the month.

Like a proud parent, R&Q was “pleased to announce” its acquisition of Accredited in 2014. In a press release, R&Q Chairman and CEO Ken Randall said, “We are delighted to have reached agreement with Accredited. There is an excellent cultural fit and this represents an important milestone in … securing stable income streams from associated fee and distribution income.”

Clearly, that culture is profit.

On its website, Accredited makes clear that it is not just peripherally involved in the U.S. bail business. Rather it promises to “provide Accredited agents with the support they need to successfully operate a bail agency in today’s market.” The company goes so far as to make explicit that this support extends to protecting the status quo by fighting bail reform.

In its own words, “Accredited has established a long track record of initiating and supporting legislative efforts to improve and preserve the bail industry.” That’s a modest way to describe its attempts to influence the legislature in Florida and around the country, investing tens of thousands of dollars in lobbying along the way.

And it’s no wonder they’re invested in protecting the status quo. In a report to regulators, Accredited boasted they’ve never incurred a loss from their investments in the bail industry. It’s easy money because the system is rigged in their favor and against our communities.

Accredited and companies like it prop up an arcane system, one that existed long before the U.S. Constitution and one that does not live up to its promises of liberty, equal treatment under the law, innocence until proven guilty, and the right to a fair and speedy trial to safeguard these protections. Once intended to ensure that people appeared in court to face and defend themselves against an accusation, the centuries-old money bail system has been thoroughly perverted.

Money bail in the U.S. now generates major profits for bail bond companies backed by Accredited and its ilk. But it’s also responsible for the widespread incarceration of people whose only pretrial pathway to going home to their families and jobs is to sign a contract backed by an insurance company like Accredited. Signing that contract means paying a fee that they will never get back, even if the charges are dropped a day after the contract is signed.

Stop Bail Profiteer Companies

Globally, only two countries allow for-profit bail bond companies: the Philippines and the U.S. Most nations, it seems, have recognized that they shouldn’t allow private enterprise to play a major gatekeeping role in our justice system — like determining who does and doesn’t remain in jail while presumed innocent — and to make its decisions based on people’s wealth and the company’s profits.

The bottom line is that when multinational insurance investor R&Q acquired Accredited, the company absorbed one of the major players in a bail bond system that profits off our nation’s most vulnerable citizens, draining resources out of communities most impacted by mass incarceration. And Accredited plans to keep growing its “core business” unless we continue to mobilize to stop it.

We’ve already started to reform bail practices in cities and states across the country. But in 2018, we’re doubling down on this strategy. In some 37 states — and counting — the ACLU will try to put the for-profit bail industry out of business for good.

Police Officer Wins Settlement From City That Fired Him for Not Shooting a Black Man

American Civil Liberties Union - Mon, 02/12/2018 - 13:00
To combat the use of excessive and deadly force by police, we need more officers trained in de-escalation nationwide.

In the early hours of May 6, 2016, the lives of rookie police officer Stephen Mader and R.J. Williams intersected in Weirton, West Virginia. Both men were young fathers. Mader was a white cop holding a gun. Williams was a Black man holding a gun. This tragedy ends exactly as you’d expect — with R.J. Williams killed by a police bullet — but with a twist: Mader did not kill him. In fact, he tried his best to save Williams’ life. And for doing his duty, Mader was fired.

Today we can announce a resolution of the case in favor of a police officer who chose not to shoot a Black man.

To settle all outstanding claims, the City of Weirton will pay Mader $175,000. And while justice prevailed for Mader, R.J. Williams is still dead — a constant reminder police nationwide need the proper de-escalation training needed to avoid unnecessary killings, especially of Black men and boys.

In the case of the death at the hands of police of R.J. Williams, it all started with a domestic disturbance call by Williams’ girlfriend. Arriving first on the scene, Mader came upon Williams, who had his hands behind his back. The officer quickly asked Williams to show him his hands. Williams complied, revealing a gun. Immediately, Mader ordered Williams to drop his weapon. But Williams refused, repeatedly for Mader to “just shoot me.”

In that moment, Mader did not see a man with a gun. He saw a human being in crisis. Mader deduced that Williams was not what he might appear — a danger to others and to a responding officer alike. Mader saw that Williams was trying to commit “suicide by cop.”

Rather than shoot, Mader returned to his military training and attempted to de-escalate the situation. He softened his voice, looked Williams in the eye, and said, “I’m not going to shoot you, brother. I’m not going to shoot you.” With those words, Officer Mader connected to the humanity of Williams, a man in deep distress.

While Mader continued his attempt to convince Williams to drop his weapon, two other officers arrived on the scene. In a matter of seconds, one of the newly arrived officers fired four shots, killing Williams. It was at that point the officers discovered that Williams’ gun was unloaded. Stephen Mader was correct. R.J. Williams was not a threat, but it didn’t matter. He was dead.

Weeks later, the Weirton Police Department fired Stephen Mader.

We have grown accustomed to hearing about outrageous acts of violence perpetrated by the police against communities of color. Some become more outraged. Some have become numb. Some call for accountability or for the needed reforms to stop unnecessary police violence and deadly use of force. No matter the public’s reaction, in nearly every instance, the offending cops are not prosecuted and are back patrolling the streets in a few weeks.

But in Weirton, West Virginia, there is the bizarre opposite. Officer Mader was fired for not shooting a Black man with a gun. The message the police department sent is tragically clear: Law enforcement in Weirton should err on the side of killing people.

Under the Fourth Amendment, police officers may only use deadly force if they have probable cause to believe that the target is a violent imminent threat to the officer or someone else. Officer Mader came to the opposite conclusion — he reasonably, objectively, and correctly determined that R.J. Williams was not a threat to anyone except maybe to himself. And once he made that determination, Mader was not permitted to use deadly force under the U.S. Constitution.

Essentially, the Weirton Police Department fired Stephen Mader for failing to violate R.J. Williams’ Fourth Amendment right to not get shot.

A police officer cannot lawfully be fired for failing to violate someone’s constitutional rights. So this past May, along with the Law Offices of Timothy O’Brien, we filed a lawsuit against the City of Weirton on behalf of Mader. We argued, in part, that the termination of Stephen Mader was in violation of West Virginia public policy.

Mader’s firing exposed, again, the toxic culture that infects far too many police departments in America. We need to end the insularity and hostility towards the community exhibited by so many law enforcement agencies. We need to give law enforcement officers tools to effectively serve their communities. That means we need to invest in de-escalation training, implicit bias training, and crisis intervention training. The resolution of this lawsuit sends a clear message to the City of Weirton and to police departments across the country. Our communities deserve thoughtful, compassionate, transparent law enforcement.

Good News!

American Civil Liberties Union - Fri, 02/09/2018 - 17:00
Novelist Joyce Carol Oates dystopian short story on America in the post-civil liberties era.

Or so at first it seemed.

I’d been named valedictorian of my class at Pennsboro High School. And I’d been the only one at our school, of five students nominated, to be awarded a federally funded Patriot Democracy Scholarship.

My mother came running to hug me and congratulate me. And my father, though more warily.

“That’s our girl! We are so proud of you.”

The principal of our high school had telephoned my parents with the good news. It was rare for a phone to ring in our house, for most messages came electronically and there was no choice about receiving them.

And my brother, Roderick, came to greet me with a strange expression on his face. He’d heard of Patriot Democracy Scholarships, Roddy said, but had never known anyone who’d gotten one. He was sure that no one had ever been named a Patriot Scholar while he’d been at Pennsboro High.

“Well. Congratulations, Addie.” “Thanks! I guess.”

Roddy, who’d graduated from Pennsboro High three years before and was now working as a barely paid intern in the Pennsboro branch of the NAS Media Dissemination Bureau (MDB), was grudgingly admiring. Smiling at me strangely — just his mouth, not his eyes. I thought, He’s jealous. He can’t go to a real university.

I never knew if I felt sorry for my hulking­tall brother, who’d cultivated a wispy little sand­colored beard and mustache and always wore the same dull­ brown clothes, which were a sort of uniform for lower­division workers at MDB, or  if — actually — I was afraid of him. Inside Roddy’s smile there was a secret little smirk just for me.

When we were younger Roddy had often tormented me — “teasing,” it was called (by Roddy). Both our parents worked 10­hour shifts and Roddy and I were home alone together much of the time. As Roddy was the older sibling, it had been his task to take care of your little sister. What a joke! But a cruel joke that doesn’t make me smile.

Now that we were older, and I was tall myself (for a girl of my age: five feet eight), Roddy didn’t torment me quite as much. Mostly it was his expression—a sort of shifting, frowning, smirk­smiling, meant to convey that Roddy was thinking certain thoughts best kept secret.

That smirking little smile just for me — like an ice sliver in the heart.

My parents had explained: It was difficult for Roddy, who hadn’t done well enough in high school to merit a scholarship even to the local NAS state college, to see that I was doing much better in the same school. Embarrassing to him to know that his younger sister earned higher grades than he had, from the very teachers he’d had at Pennsboro High. And Roddy had little chance of ever being admitted to a federally mandated four­year university, even if he took community college courses and our parents could afford to send him.

Something had gone wrong during Roddy’s last two years of high school. He’d become scared about things—maybe with reason. He’d never confided in me.

At Pennsboro High — as everywhere in our nation, I suppose — there was    a fear of seeming “smart,” which might be interpreted as “too smart,” which would result in calling unwanted attention to you. In a True Democracy all individuals are equal—no one is better than anyone else. It was okay to get Bs, and an occasional A–, but As were risky, and A+ was very risky. In his effort not to get As on exams, though he was intelligent enough, and had done well in middle school, Roddy seriously missed, and wound up with Ds.

Dad had explained: It’s like you’re a champion archer. And you have to shoot to miss the bull’s­eye. And something willful in you ensures that you don’t just miss the bull’s­eye but the entire damned target.

Dad had laughed, shaking his head. Something like this had happened to him.

Poor Roddy. And poor Adriane, since Roddy took out his disappointment on me.

It  wasn’t  talked  about  openly  at  school. But we all knew. Many of the smartest kids “held back” in order not to call attention to themselves.  HSPSO (Homeland Security Public Safety Oversight) was reputed to keep lists of potential dissenters/MIs/SIs, and these were said to contain the names of students with high grades and high IQ scores.

Of course, it was just as much of a mistake to wind up with Cs and Ds— that meant that you were dull-normal, or it might mean that you’d deliberately sabotaged your high school career. Too obviously “holding back” was some­ times dangerous. After graduation you might wind up at a community college hoping to better yourself by taking courses and trying to transfer to a state school, but the fact was, once you entered the workforce in a low­level category, like Roddy at MDB, you were there forever.

Nothing is ever forgotten; no one is going anywhere they arent already at. This was a saying no one was supposed to say aloud.

So Dad was stuck forever as an MT2 — medical technician, second rank —  at the district medical clinic, where staff physicians routinely consulted him on medical matters, especially pediatric oncology — physicians whose salaries were five times Dad’s.

Dad’s health benefits, like Mom’s, were so poor, he couldn’t even get treatment at the clinic he worked in. We didn’t want to think what it would mean if and when they needed serious medical treatment.

I hadn’t been nearly as cautious in school as Roddy. I enjoyed school, where I had (girl) friends as close as sisters. I liked quizzes and tests—they were like games at which, if you studied hard and memorized what your teachers told you, you could do well.

But then, sometimes I tried harder than I needed to try. Maybe it was risky.  Some\ little spark of defiance provoked me.

But maybe also (some of us thought) school wasn’t so risky for girls. There had been only a few DASTADs—Disciplinary Actions Securing Threats Against Democracy — taken against Pennsboro students in recent years, and these students had all been boys in category ST3 or below.

(The highest ST— SkinTone — category was 1: “Caucasian. “ Most  residents of Pennsboro were ST1 or ST2, then there was a scattering of ST3s. There were ST4s in a neighboring district and of course dark­complected ST workers in all the districts. We knew they existed but most of us had never seen an actual ST10.)

It seems like the most pathetic vanity now, and foolishly naive, but at our school I was one of those students who’d displayed some talent for writing, and for art; I was a “fast study” (my teachers said, not entirely approvingly), and could memorize passages of prose easily. I did not believe that I was the “outstanding” student in my class. That could not be possible! I had to work hard to understand math and science,  I had to read and reread my homework assignments, and to rehearse quizzes and tests, while to certain of my class­ mates these subjects came naturally. (ST2s and ST3s were likely to be Asians, a minority in our district, and these girls and boys were very smart, yet not aggressive in putting themselves forward — that’s to say at risk.) Yet somehow it happened that Adriane Strohl wound up with the highest grade­point average in the class of 23 — 4.3 out of 5.0.

My close friend Paige Connor had been warned by her parents to hold back — so Paige’s average was only 4.1. And one of the obviously smartest boys, whose father was MI, like my dad, a former math professor, had definitely held back — or maybe exams so traumatized him, Jonny had done poorly without trying, and his average was a modest/safe 3.9.

Better to be safe than sorry. Why had I ignored such warnings?

Fact is, I had just not been thinking. Later in my life, or rather in my  next life, as a university student, when I studied cognitive psychology, I would become aware of the phenomenon of “attention”—“attentiveness”— that is within consciousness but is the pointed, purposeful, focused aspect of consciousness. Just to have your eyes open is to be conscious, minimally; to pay attention is something further. In my schoolgirl life I was conscious, but I was not paying attention. Focused on tasks like homework, exams, friends to sit with in cafeteria and hang out with in gym class, I did not pick up more than a fraction of what hovered in the air about me, the warnings of teachers that were nonverbal, glances that should have alerted me to — something . . .

So it happened: Adriane Strohl was named valedictorian of her class. Now I can see that no one else who might’ve been qualified wanted this “honor”— just as no one else wanted a Patriot Democracy Scholarship. Though there’d been some controversy, our principal was said to favor another student for the honor, a boy with a 4.2 average but also a varsity letter in football and a Good Democratic Citizenship Award, whose parents were of a higher caste than mine, and whose father was not MI but rather EI1, a special designation granted to Exiled persons who had served their terms of Exile and had been what was called 101 percent rehabilitated.

Maybe the school administrators were worried that Adriane Strohl would say “unacceptable” things in her valedictorian’s speech?

Evidently I had acquired a reputation at school for saying things that other students wouldn’t have said. Impulsively I’d raise my hand and ask questions. And my teachers were surprised, or annoyed — or, maybe, scared. My voice was quiet and courteous but I guess I came across as willful.

Sometimes the quizzical look on my face disconcerted my teachers, who took care always to compose their expressions when they stood in front of a classroom. There were approved ways of showing interest, surprise, (mild) dis­ approval, severity.

Of course, all our classrooms, like all public spaces and many private spaces, were monitored. Each class had its spies. We didn’t know who they were, of course—it was said that if you thought you knew, you were surely mistaken, since the DCVSB (Democratic Citizens Volunteer Surveillance Bureau)  chose spies so carefully, it was analogous to the camouflaged wings of a certain species of moth that blends in seamlessly with the bark of a certain tree. As Dad said, Your teachers can’t help it. They can’t deviate from the curriculum. The ideal is lockstep — each teacher in each classroom performing like a robot and never deviating from the script under penalty of — you know what.

(Was this true? For years in our class—the class of NAS 23—there’d been vague talk of a teacher—how long ago, we didn’t know—maybe when we were in middle school?—who’d deviated from the script one day, began talking wildly and laughing and shaking his/her fist at the “eye” [in fact, there were probably numerous “eyes” in any classroom, and all invisible], and was arrested, and overnight Deleted—so a new teacher was hired to take his/her place; and soon no one remembered the teacher who’d been Deleted. And after a while we couldn’t even remember clearly that one of our teachers had been Deleted. [Or had there been more than one? Were certain classrooms in our school haunted ?] In our brains, where the memory of should have been, there was just a blank.)

Definitely, I was not aggressive in class. I don’t think so. But compared to my mostly meek classmates, some of whom sat small in their desks like partially folded­up papier­mâché dolls, it is possible that Adriane Strohl stood out — in a bad way.

In Patriot Democracy History, for instance, I’d questioned “facts” of history, sometimes. I’d asked questions about the subject no one ever questioned — the Great Terrorist Attacks of 9/11/01. But not in an arrogant way, really — just out of curiosity! I certainly didn’t want to get any of my teachers in trouble with the EOB (Education Oversight Bureau), which could result in them being demoted or fired or — vaporized.

I’d thought that, well—people liked me, mostly. I was the spiky­haired girl with the big, glistening dark­brown eyes and a voice with a little catch in it and a habit of asking questions. Like a really young child with too much energy in kindergarten, whom you hope will run in circles and tire himself  out. With a kind of naive obliviousness I earned good grades, so it was assumed that, despite my father being of MI caste, I would qualify for a federally mandated State Democracy University.

(That is, I was eligible for admission to one of the massive state universities. At these, a thousand students might attend a lecture, and many courses were online. Restricted universities were far smaller, prestigious and inaccessible to all but a fraction of the population; though not listed online or in any public directory, these universities were housed on “traditional” campuses in Cambridge, New Haven, Princeton, and so on, in restricted districts. Not only did we not know precisely where these centers of learning were, we had not ever met anyone with degrees from them.)

In class, when I raised my hand to answer a teacher’s question I often did notice classmates glancing at me—my friends, even—sort of uneasy, apprehensive: What will Adriane say now? What is wrong with Adriane?

There was nothing wrong with me! I was sure.

In fact, I was secretly proud of myself. Maybe just a little vain. Wanting to think I am Eric Strohl’s daughter.


The words were brisk, impersonal: “Strohl, Adriane. Hands behind your back.”

It happened so fast. At graduation rehearsal.

So fast! I was too surprised — too scared — to think of resisting.

Except I guess that I did — try to “resist”— in childish desperation tried to duck and cringe away from the officers’ rough hands on me, wrenching my arms behind my back with such force I had to bite my lips to keep from screaming.

What was happening? I could not believe it — I was being arrested.

Yet even in my shock, thinking, I will not scream. I will not beg for mercy.

My wrists were handcuffed behind my back. Within seconds I was a captive of Homeland Security.

I’d only just given my valedictorian’s speech and had stepped away from the podium to come down from the auditorium stage when there came our principal, Mr. Mackay, with a peculiar expression on his face — muted anger, righteousness, but fear also — to point at me, as if the arresting officers needed him to point me out at close range.

“That is she—Adriane Strohl. That is the treasonous girl you seek.”

Mr. Mackay’s words were strangely stilted. He seemed very angry with me — but why? Because of my valedictory speech? But the speech had consisted entirely of questions — not answers, or accusations.

I’d known that Mr. Mackay didn’t like me. He didn’t know me very well but knew of me from my teachers. But it was shocking to see in an adult’s face a look of genuine hatred.

“She was warned. They are all warned. We did our best to educate her as a patriot, but—the girl is a born provocateur.”

Provocateur! I knew what the term meant, but I’d never heard such a charge before, applied to me.

Later I would realize that the arrest warrant must have been drawn up for me before the rehearsal — of course. Mr. Mackay and his faculty advisors must have reported me to Youth Disciplinary before they’d even heard my speech — they’d guessed that it would be “treasonous” and that I couldn’t be allowed to give it at the graduation ceremony.  And the Patriot Democracy Scholarship — that must have been a cruel trick as well.

As others stood staring at the front of the brightly  lit  auditorium, the arrest warrant was read to me by the female arresting officer.  I was too stunned to hear most of it — only the accusing words arrest, detention, reassignment, sentencing — treason-speech and questioning of authority.

Quickly then, Mr. Mackay called for an “emergency assembly” of the senior class.

Murmuring and excited, my classmates settled into the auditorium. There were 322 students in the class, and like wildfire news of my arrest had spread among them within seconds.

Gravely Mr. Mackay announced from the podium that Adriane Strohl, “formerly” valedictorian of the class, had been arrested by the State on charges of treason and questioning of authority; and what was required now was a “vote of confidence” from her peers regarding this action.

That is, all members of the senior class (excepting Adriane Strohl) were to vote on whether to confirm the arrest or to challenge it. “We will ask for a show of hands,” Mr. Mackay said, voice quavering with the solemnity of the occasion, “in a full, fair, and unbiased demonstration of democracy.”

At this time I was positioned, handcuffed, with a wet, streaked, guilty face, at the very edge of the stage, a few yards away from the flush­faced, indignant principal. As he spoke, from time to time he glared at me, even pointing at me once with an accusing forefinger. As if my classmates needed to be reminded who the arrestee was.

Gripping my upper arms were two husky officers from the Youth Disciplinary Division of Homeland Security. They were one man and one woman, each with razor­cut hair, and they wore dark­blue uniforms and were equipped with billy clubs, Tasers, Mace, and revolvers in heavy holsters around their waists. My classmates stared wide­eyed, both intimidated and thrilled. An arrest! At school! And a show­of­hands vote, which was not a novelty in itself except on this exciting occasion.

“Boys and girls! Attention! All those in favor of Adriane Strohl being stripped of the honor of class valedictorian as a consequence of having com­ mitted treason and questioned authority, raise your hands — yes?” There was a brief stunned pause. Brief.

Hesitantly, a few hands were lifted. Then a few more.

No doubt the presence of the uniformed Youth Disciplinary officers glaring at them roused my classmates to action. Entire rows lifted their hands — Yes!

Here and there were individuals who shifted uneasily in their seats. They were not voting, yet. I caught the eye of my friend Carla, whose face too appeared to be wet with tears. And there was Paige all but signaling to me — I’m sorry, Adriane. I have no choice.

As in a nightmare, at last a sea of hands was raised against me. If there were some not voting, clasping their hands in their laps, I could not see them. “And all opposed — no?” Mr. Mackay’s voice hovered dramatically as if he were counting raised hands; in fact, there was not a single hand, of all the rows of seniors, to be seen.

“I think, then, we have a stunning example of democracy in action, boys and girls. ‘Majority rule — the truth is in the numbers.’”

The second vote was hardly more than a repeat of the first: “We, the senior class of Pennsboro High School, confirm and support the arrest of the former valedictorian, Adriane Strohl, on charges of treason and questioning of authority. All those in favor . . .”

By this time the arrestee had shut her teary eyes in shame, revulsion, dread.

No need to see the show of hands another time.

The officers hauled me out of the school by a rear exit, paying absolutely no heed to my protests of being in pain from the tight handcuffs and their grip on my upper arms. Immediately I was forced into an unmarked police vehicle resembling a small tank with plow­like gratings that might be used to ram against and flatten protesters.

Roughly I was thrown into the rear of the tank. The door was shut and locked. Though I pleaded with the officers, who were seated in the front of the vehicle, on the other side of a barred Plexiglas barrier, no one paid the slightest attention to me, as if I did not exist.

The officers appeared to be ST4 and ST5. It was possible that they were foreign­born indoctrinated NAS citizens who had not been allowed to learn English.

I thought, Will anyone tell my parents where I am? Will they let me go home?

Panicked, I thought, Will they vaporize me?

Heralded by a blaring siren, I was taken to a fortresslike building in the city center of Pennsboro, the local headquarters of Homeland Security Inter­ rogation. This was a building with blank, bricked­up windows that was said to have once been a post office, before the Reconstitution of the United States into the North American States and the privatization and gradual extinction of the Postal Service. (Many buildings from the old States remained, now utilized for very different purposes. The building to which my mother had gone for grade school had been converted to a Children’s Diagnostic and Surgical Repair Facility, for instance; the residence hall in which my father had lived as a young medical student, in the years before he’d been reclassified as MI, was now a Youth Detention and Reeducation Facility. The Media Dissemination Bureau, where my brother worked, was in an old brownstone building, formerly the Pennsboro Public Library in the days when books existed to be held in the hand — and read!)

In this drafty place I was brought to an interrogation room in the Youth Disciplinary Division, forcibly seated in an uncomfortable chair with a blinding light shining in my face and a camera aimed at me, and interrogated by strangers whom I could barely see.

Repeatedly I was asked—“Who wrote that speech for you?”

No one, I said. No one wrote my speech, or helped me write it—I’d writ­ ten it myself.

“Did your father, Eric Strohl, write that speech for you?” No! My father did not.

“Did your father tell you what to write? Influence you? Are these questions your father’s questions?”

No! My own questions.

“Did either of your parents help you write your speech? Influence you? Are these questions their questions?”

No, no, no.

“Are these treasonous thoughts their thoughts?”

I was terrified that my father, or both my parents, had been arrested, and were being interrogated too, somewhere else in this awful place. I was terrified that my father would be reclassified no longer MI but SI (Subversive Individ­ual) or AT (Active Traitor)—crimes punishable by Deletion.

My valedictory speech was examined line by line, word by word, by the interrogators—though it was just two printed double­spaced sheets of paper with a few scrawled annotations. My computer had been seized from my locker and was being examined as well.

And all my belongings from my locker—laptop, sketchbook, backpack, cell phone, granola bars, a soiled school sweatshirt, wadded tissues—were confiscated.

The interrogators were brisk and impersonal as machines. Almost, you’d have thought they might be robot interrogators—until you saw one of them blink, or swallow, or glare at me in pity or disgust, or scratch at his nose.

(Even then, as Dad might have said, these figures could have been robots, for the most recent AI devices were being programmed to emulate idiosyncratic, “spontaneous” human mannerisms.)

Sometimes an interrogator would shift in his seat, away from the blinding light, and I would have a fleeting but clear view of a face — and what was shocking was that the face appeared to be so ordinary, the face of someone you’d see on a bus, or a neighbor of ours.

My valedictory address had been timed to be no more than eight minutes long. That was the tradition at our school — a short valedictorian address, and an even shorter salutatorian address. My English teacher, Mrs. Dewson, had been assigned to “advise” me — but I hadn’t shown her what I’d been writing. (I hadn’t shown Dad, or Mom, or any of my friends — I’d wanted to surprise them at graduation.) After a half dozen failed starts I’d gotten desperate and had the bright idea of asking numbered questions —twelve in all — of the kind my classmates might have asked if they’d had the nerve (some of these the very questions I’d asked my teachers, who had never given satisfactory answers) —  like What came before the beginning of time?

And What came before the Great Terrorist Attacks of 9/11?

Our NAS calendar dates from the time of that attack, which was before   my birth, but not my parents’ births, and so my parents could remember a pre­ NAS time when the calendar was different—time wasn’t measured as just a two­digit figure but a four-digit figure! (Under the old, now­outlawed calendar, my mother and father had been born in what had been called the twentieth century. It was against the law to compute birthdates under the old calendar, but Daddy had told me—I’d been born in what would have been called the twenty­first century if the calendar had not been reformed.)

NAS means North American States — more formally known as RNAS, Reconstituted North American States — which came into being some years after the Great Terrorist Attacks, as a direct consequence of the Attacks, as we were taught.

Following the Attacks there was an Interlude of Indecisiveness, during which time issues of “rights” (the Constitution, the Bill of Rights, civil rights law, etc.) versus the need for Patriot Vigilance in the War Against Terror were contested, with a victory, after the suspension of the Constitution and the Bill of Rights by executive order, for PVIWAT, or Patriot Vigilance. (Yes, it is hard to comprehend. As soon as you come to the end of such a sentence, you have forgotten the beginning!)

How strange it was to think there’d been a time when the regions known as (Reconstituted) Mexico and (Reconstituted) Canada had been separate political entities—separate from the States! On a map it seems clear, for instance, that the large state of Alaska should be connected with mainland United States, and not separated by what was formerly “Canada.” This too was hard to grasp and had never been clearly explained in any of our Patriot Democracy History classes, perhaps because our teachers were not certain of the facts.

The old, “outdated” (that is, “unpatriotic”) history books had all been destroyed, my father said. Hunted down in the most remote outposts—obscure rural libraries in the Dakotas, belowground stacks in great university libraries, microfilm in what had been the Library of Congress. “Outdated”/“unpatriotic” information was deleted from all computers and from all accessible memory—only reconstituted history and information were allowed, just as only the reconstituted calendar was allowed.

This was only logical, we were taught. There was no purpose to learning useless things, which would only clutter our brains like debris stuffed to over­ flowing in a trash bin.

But there must have been a time before that time — before the Reconstitution, and before the Attacks. That was what I was asking. Patriot Democracy History—which we’d had every year since fifth grade, an unchanging core of First Principles with ever­more­detailed information — was concerned only with post­Terrorist events, mostly the relations of the NAS with its numerous Terrorist Enemies in other parts of the world, and an account of the “triumphs” of the NAS in numerous wars. So many wars! They were fought now at long distance, and did not involve living soldiers, for the most part; robot­missiles were employed, and powerful bombs said to be nuclear, chemical, and biological. In our senior year of high school we were required to take a course titled Wars of Freedom — these included long­ago wars like the Revolutionary War, the Spanish­American War, World War I, World War II, the Korean War, the Vietnam War, and the more recent Afghanistan and Iraqi wars — all of which our country had won — “decisively.” We were not required to learn the causes of these wars, if there were actual causes, but dates of battles and names of high­ranking generals and political leaders and presidents; these were pro­ vided in columns to be memorized for exams. The question of Why? was never asked — and so I’d asked it in class, and in my valedictory address. It had not occurred to me that this was treason-speech, or that I was questioning authority. The harsh voices were taking a new approach: Was it one of my teachers who’d written the speech for me? One of my teachers who’d “influenced” me?

The thought came to me — Mr. Mackay! I could blame him, he would be arrested . . .

But I would never do such a thing, I thought. Even if the man hated me and had had me arrested for treason, I could not lie about him.

After two hours of interrogation it was decided that I was an “uncooperative subject.” In handcuffs I was taken by YD officers to another floor of Home­ land Security, which exuded the distressing air of a medical unit; there I was strapped down onto a movable platform and slid inside a cylindrical machine that made clanging and whirring noises close against my head; the cylinder was so small, the surface only an inch or so from my face, I had to shut my eyes tight to keep from panicking. The interrogators’ voices were channeled into the machine, sounding distorted and inhuman. This was a BIM (Brain­Image Maker) — I’d only heard of these—that would determine if I was telling the truth or lying.

Did your father — or any adult — write your speech for you? Did your father — or any adult — influence your speech?

Did your father — or any adult — infiltrate your mind with treasonous thoughts?

Barely I could answer, through parched lips — No. No, no!

Again and again these questions were repeated. No matter what answers I gave, the questions were repeated.

Yet more insidious were variants of these questions.

Your  father, Eric  Strohl, has just confessed to us, to influencing you—so you may as well confess too. In what ways did he influence you?

This had to be a trick, I thought. I stammered — In no ways. Not ever. Daddy did not.

More harshly the voice continued.

Your mother, Madeleine Strohl, has confessed to us, both she and your father influenced you. In what ways did they influence you?

I was sobbing, protesting — They didn’t! They did not influence me . . .

(Of course, this wasn’t true. How could any parents fail to “influence” their children? My parents had influenced me through my entire life — not so much in their speech as in their personalities. They were good, loving parents. They had taught Roddy and me: There is a soul within. There is “free will” within. If — without — the State is lacking a soul, and there is no free will that you can see, trust the inner, not the outer. Trust the soul, not the State. But I would not betray my parents by repeating these defiant words.)

At some point in the interrogation I must have passed out—for I was awakened by deafening noises, in a state of panic. Was this a form of torture? Noise torture? Powerful enough to burst eardrums? To drive the subject insane? We’d all heard rumors of such torture interrogations—though no one would speak openly about them. Shaken and excited, Roddy would come home from his work at MDB to tell us about certain “experimental techniques” Homeland Security was developing, using laboratory primates—until Mom clamped her hands over her ears and asked him to please stop.

The deafening noises stopped abruptly. The interrogation resumed.

But it was soon decided that I was too upset — my brain waves were too “agitated”— to accurately register truth or falsity, so I was removed from the cylindrical imaging machine, and an IV needle was jabbed into a vein in my arm, to inject me with a powerful “truth­serum” drug. And again the same several questions were asked, and I gave the same answers. Even in my exhausted and demoralized state I would not tell the interrogators what they wanted to hear: that my father, or maybe both my parents, had influenced me in my treasonous ways.

Or any of my teachers. Or even Mr. Mackay, my enemy.

I was strapped to a chair. It was a thick, squat “wired” chair—a kind of electric chair—that sent currents of shock through my body, painful as knife stabs. Now I was crying, and lost control of my bladder.

The interrogation continued. Essentially it was the same question, always the same question, with a variant now and then to throw me off stride.

Who wrote your speech for you? Who influenced you? Who is your collaborator in treason?

It  was   your  brother    Roderick   who   reported you.   As      a treasonmonger and a questioner of authority, you have been denounced by your brother.

I began to cry harder. I had lost all hope. Of all the things the interrogators had told me, or wanted me to believe, it was only this — that Roddy had reported me — that seemed to me possible, and not so very surprising.

I could remember how, squeezing my hand when he’d congratulated me about my good news, Roddy had smiled — his special smirk­smile just for me.

Congratulations, Addie!

This short story appeared in It Occurs to Me that I Am America, an anthology of stories and art by more than 50 of today’s most acclaimed writers and artists, compiled to celebrate the work of the ACLU.

Why the U.S. War on ISIS Is Illegal

American Civil Liberties Union - Fri, 02/09/2018 - 17:00
No court has ever addressed the government’s justifications for military force in so many places. Now, one will.

The United States’ war with al-Qaida has gone on so long, and has metastasized into so many different uses of U.S. armed forces around the globe, that it may be surprising to learn that the federal courts have only addressed the legality of a very small piece of it.

After the 9/11 attacks, Congress passed a statute authorizing the executive branch to use military force against those groups directly connected to the attacks: al-Qaida and the Taliban. But today, the United States claims the authority to use armed force under that statute not just in Afghanistan, but also in Iraq, Yemen, Somalia, Pakistan, and Syria — against not just al-Qaida and the Taliban, but also al-Qaida in the Arabian Peninsula, al-Shabab in Somalia, and now the Islamic State in Iraq and Syria, or ISIS.

But no court has ever addressed the government’s legal justifications for military action in so many different parts of the world. Now, in a case brought by the ACLU, one court will. The federal district court in Washington, D.C., will address whether the executive branch can use its elastic and open-ended assertion of wartime authority to imprison indefinitely an American citizen with no connection to 9/11.

In September 2017, Kurdish forces detained an American citizen in Syria and quickly transferred him to U.S. custody. On Sept. 14, the Daily Beast reported the detention, and the government confirmed it was holding the citizen as a “known enemy combatant” for ISIS. For weeks, the government refused to reveal any public details about the detention, to bring that person before a judge, or charge him with a crime. The ACLU went to court on the unnamed citizen’s behalf, demanding that the government justify his detention to a federal court. Since the court ruled in December that the government must allow the ACLU to meet with the citizen, we have represented him as our client.

Weeks ago, the government filed — under seal, and not available to the public — its legal and factual reasons for holding the citizen without charge or trial. (It will be filing a public, partially redacted version soon.) Today, the ACLU filed a response, explaining why under the Constitution and laws of the United States, the government lacks the authority to continue holding our client as a military detainee.

At this stage, our client is challenging only the government’s arguments concerning its legal authority to detain him assuming that he was a member of ISIS at the time of his detention. While that accusation is simply wrong — our client was actually kidnapped and imprisoned by ISIS, tried to escape, and never took up arms against the U.S. or anyone else — a detailed refutation of the government’s allegations will come at a later stage, if necessary. At this stage, because the government has not filed any criminal charges against him, litigating the government’s accusations would prolong his unlawful detention and strip him of the safeguards afforded by criminal court proceedings.

The government’s arguments regarding its legal authority to detain our client are breathtaking in their scope.

First, the government claims that a 2001 statute, the Authorization for Use of Military Force, gives it the power to detain our client. But that statute, which was passed in the days following 9/11, expressly limited its authorization of force to those responsible for the attacks — in other words, al-Qaida and the Taliban. Moreover, when Congress gave that authority to President Bush, it rejected the executive branch’s attempts to convince Congress to grant it open-ended authority to take military action against future threats without returning to the legislative branch.

Even so, the government now claims that the 16-year-old AUMF authorizes the detention of a U.S. citizen who is totally unconnected to the 9/11 attacks, al-Qaida, or the Taliban. It does so by attempting to draw a daisy-chain of connections between al-Qaida in Afghanistan and a terrorist group founded in 2003 in Iraq called Jam’at al-Tawhid wa’al Jihad, which later renamed itself al-Qaida in Iraq. The government says that the Iraqi group was started by an “associate” of Osama bin Laden, “aligned” with al-Qaida sometime after 2003, and then effectively morphed into ISIS around 2006. According to the government, the 2001 AUMF covers ISIS because, more or less, ISIS is al-Qaida.

The government’s argument falls apart on examination. In determining whether detention is lawful under the 2001 AUMF, the courts have thus far looked only to whether that detention was lawful at the time of capture. Whatever relationship al-Qaida had with ISIS was torn asunder in 2014, and now the two groups are in open armed conflict with each other in Syria. The government’s allegations against our client, who was captured in September 2017, thus fall nowhere near the scope of the 2001 AUMF.

The government also claims two other sources for its detention authority. First, it construes a 2002 Authorization for Use of Military Force against the Saddam Hussein regime in Iraq as authorizing detention to combat any and every threat emanating from Iraq, effectively indefinitely. But the 2002 statute does not remotely allow such an extension — and in 2014, the government openly abandoned all reliance on it.

Second, the government reprises one of the most extreme arguments of the Bush administration: that the president has inherent authority as commander-in-chief to detain U.S. citizens, anywhere and everywhere, as he sees fit. No court has ever suggested, let alone held, that the president has unilateral authority to imprison an American citizen without trial — unless Congress suspends habeas corpus (the legal right to be brought before a judge to challenge the legality of one’s detention) which, of course, it has not done.

Our client’s case will be the first time the government’s theory concerning its ability to use force against ISIS gets tested in court. When the Obama administration first announced that it claimed such authority in 2014, responses across the political spectrum were scathing. Jennifer Daskal, who had served in the Justice Department in that administration, wrote that “re-interpretation of laws in totally implausible ways shakes the principles of legality at its core.” Jack Goldsmith, who worked in the Bush Defense and Justice Departments, called the theory “breathtaking,” explaining that if ISIS’s “remarkably loose affiliation with al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”

As the Supreme Court has famously said, Congress does not “hide elephants in mouseholes.” It certainly did not hide an extraordinary authority to engage in indefinite and limitless global war in legislation explicitly tied to a single terrorist attack 16 years ago.

Making a Life After Incarceration Shouldn’t Be Impossible

American Civil Liberties Union - Fri, 02/09/2018 - 12:15
After my mom went to prison, we decided to use what we learned to help others.

In 2012, I founded an organization called Mission: Launch with my mom. Based out of Baltimore, Mission:Launch helps formerly incarcerated individuals become self-sufficient faster. For us, this means helping individuals earn a more livable wage by obtaining an occupational license through our program, LaunchPad.

The biggest thing my mom and I have learned since starting Mission:Launch is the importance of having a strong support system. Of all the people we’ve interacted with at the organization, the people who are most successful are always the ones who have strong family or community support. During reentry, having that safety net of people who are willing to catch you if and when you fall is crucial. And so, at Mission:Launch, we prioritize community, family, and peer-support networks.

In practice, that means getting to know every person we engage with and working to  understand all the support they will need on their journey. This is why LaunchPad begins with a robust intake to better understand what type of holistic support a person will need. We then refer them to partner service organizations so that we can help them stay focused on obtaining their occupational license. As a society, we make it extremely hard for people to get back on their feet after incarceration. Without the right support it can be close to impossible.

My mom and I know this because we’ve lived it.

In 2003, after completing my freshman year of college, I came home for summer break to find that my mom was dealing with serious legal problems. She was the co-founder of a company that was investigated for securities fraud. She would eventually receive an 87-month sentence that was reduced by 17 months on appeal. Her imprisonment affected every aspect of my life as a young adult. When we think of the impact of children, we often put a cap on the age of a child. However, as a recent college graduate, I still needed and wanted the influence of my mom.

Several times a month, I would travel over 5 hours to see my mom. These visits would enable us to think long and hard about how we wanted to find meaning from this experience as a family. Indeed it was this time with my mom that would allow us to come up with the idea for Mission:Launch. After a while, we were beginning to understand the barriers that she and others might encounter post-incarceration — barriers that became very real to us after my mom was released. Every day we learned something new about how individuals continue to be held back even after they have served their sentences and, in some instances, long after they are back on their feet.

With each passing year, we kept realizing that the collateral consequences of having a record all stem from one major barrier: the criminal background check process. This process is often required to get a job, pursue higher education, and even access an apartment. We have even come to understand how difficult it is to navigate the background check when building teams for ourselves. At Mission: Launch, we are dedicated to hiring and recommending formerly incarcerated people for job opportunities, but we also understand that even the most well-meaning employers, like us, often have to rely on criminal background data to ensure the safety of their employees and clients. This data and the background check can be confusing and not factually accurate.

That’s why we’ve developed our own alternative background check system. After having a tough time ourselves, we realized that decision makers need a tool that honestly informs you of a person’s criminal record but also shows you their potential. Our alternative background check, a web and mobile responsive platform called R3 Score, includes information like whether or not the person has positively taken steps to reconnect to society, such as pursuing an education, gaining stable housing, or reestablishing family bonds. These are only some of the indicators we measure when trying to assess an individual's riskiness and readiness.

People don’t go to prison. Families do.

Beyond increased earning through an occupational license, we are strong advocates for the expanded use of tech in reentry innovations as well as digital inclusion. I grew up with a mom that insisted I have a Palm Pilot, even though I was in middle school, because she knew that tech savviness was critical to advancing in society. So when my mom went to prison around the same time that the iPhone came out, she instinctively knew that she was missing a tech boom.

For her coming home and plugging back in was critical because in such a tech-dependent society, this isn’t a trivial matter. Without the tools to navigate new technologies, formerly incarcerated people cannot be truly self-sufficient. So while we don’t provide programming ourselves, we make sure to promote and strategically partner with other organizations that make tech education as well as access to hardware, software, and high speed internet more available.

At Mission: Launch, my mom and I bring our experiences with the criminal justice system into the work we do every day. We believe that there is no better “expert” on criminal justice reform than the people who have actually been impacted by the system. No one knows more about the challenges of reentry than the families of the formerly incarcerated. After all, people don’t go to prison. Families do.

This article is part of a series on mass incarceration. Click here to see more. 


© 2014 National Deaf Freedom Association, Inc. All rights reserved.

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