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The Supreme Court’s Troubling Decision on Funding for Church Playgrounds

American Civil Liberties Union - 34 min 51 sec ago
As troubling as the decision was for the separation of church and state, lawmakers shouldn’t take out their checkbooks just y

Abandoning a longstanding constitutional protection for the separation of church and state, the Supreme Court ruled earlier this week that a church must be allowed to participate in a state program that provides direct taxpayer grants to improve school playground surfaces. The decision was very troubling. As we argued in our friend-of-the-court brief in the case, Trinity Lutheran v. Comer, the government should not be funneling public funds directly to churches or other houses of worship, for any reason. Period.

Those who support government funding of religion are rejoicing over the ruling, eager to secure public dollars for a variety of religious purposes, including school vouchers that are barred under many state constitutions. But lawmakers shouldn’t take out their checkbooks just yet. As troubling as Monday’s decision was for the separation of church and state, it was based on explicitly narrow grounds. The court went out of its way to note that the ruling applies only to “express discrimination based on religious identity with respect to playground resurfacing,” which the court appeared to view as a secular use of funds.

The decision did not address — and thus left in place — other restrictions on public funding of religion, including what the court characterized as “religious uses of funding,” which have long been prohibited by the Establishment Clause of the First Amendment. The court also affirmed that it is still proper for states to take into account the proposed use for government funds when awarding them. A state may still, for instance, enforce its state constitutional provisions protecting the separation of church and state by declining to provide taxpayer dollars for the training of ministers, even as part of a broader grant program.

In a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, argued that court should have gone further by holding that the First Amendment requires houses of worship and other religious institutions to be eligible for government funding programs regardless of whether the funds will be put to “religious uses.” The other seven justices, however, did not subscribe to this view, which would overturn longstanding precedent on this issue and completely upend — even more so than Monday’s decision — the First Amendment’s delicate balance between safeguarding the free exercise of religion while also protecting against its establishment.

Yesterday, in light of the Trinity Lutheran decision, the Supreme Court also vacated and remanded several state supreme court decisions pertaining to government funding of religious institutions, including a 2015 victory by the ACLU and allies against a Colorado school voucher program. Although the Supreme Court sent those cases back to the state courts for further consideration, it routinely takes this approach when it issues an opinion addressing an issue that relates to existing litigation. It gives the lower courts the first opportunity to determine what effect, if any, recent rulings may have on the case. But it doesn’t affect the limited nature of the Trinity Lutheran decision itself. The Colorado Constitution, for example, prohibits public funds from being used for religious purposes, directly or indirectly. School vouchers, which will fund religious education and indoctrination, as well as religious discrimination against students, plainly violate that provision. Nothing in the Trinity Lutheran decision requires the Colorado courts to abandon the state’s long history of protecting against the use of taxpayer money for such purposes.

While Monday’s narrow ruling does not provide a broad authorization for government funding of religion, it is nevertheless a stark warning for those of us who value the Constitution’s abiding protection for the separation of church and state. As Justice Sonia Sotomayor wisely cautioned in her forceful dissent, whatever one thinks of the outcome in Trinity Lutheran, the real concern is “what it might enable tomorrow.” Never before has the court held that the government may provide direct cash aid to a church. If the court is willing to cross that constitutional line here, it does not bode well for upholding other Establishment Clause principles in the future.

The Only Way to Get Arkansas Legislators Out of the Exam Room Is To Take Them To Court

American Civil Liberties Union - 2 hours 34 min ago
The ACLU filed suit to stop Arkansas legislators from blocking abortion access through cruel means.

Arkansans have plenty of health needs their politicians should address — from the third highest maternal mortality rate in the U.S. to an opioid epidemic. Yet Arkansas politicians have spent their energies blocking a woman's access to abortion care with ever crueler means.

Before 2017, Arkansas was already a leader in the campaign to obstruct and hinder reproductive rights. The state tried to ban abortion at 12 weeks, a law that the ACLU fought and defeated. But many onerous restrictions remain. Arkansas forces a woman to make an extra, unnecessary trip to a physician to hear state-mandated information; then to delay care for at least 48 hours; and then to make another trip back to the provider to get her abortion. The state also bans abortion coverage in state insurance exchange plans.

This year, Arkansas lawmakers enacted a slew of new restrictions that practically prohibit access to abortion services. Here’s what they do:

  • Ban a medically proven abortion method. One measure bans the safe, medically-proven method that is used for essentially all abortions past the first trimester in the state. This is Arkansas lawmakers’ attempt to deny a woman access to the care she wants as her pregnancy progresses.
     
  • Allow a woman’s sexual partner (or abuser) to block an abortion. Another measure requires that the patient and her medical provider treat the embryonic or fetal tissue under the same law that directs disposition of the body of a family member who has died. A woman’s sexual partner then has equal say in what happens to that tissue, which means he must be notified of her abortion. This would effectively allow that partner — even an abuser — to block an abortion by withholding consent. This is a grotesque intrusion into a woman’s privacy,  and could well threaten her safety.
     
  • Demand medical records of a woman’s entire reproductive life. Another new restriction bans abortion unless the physician requests all medical records related to the patient’s entire pregnancy history — potentially spanning decades, and regardless of where she received pregnancy care, and in what language her medical records are written — and then devote undefined “reasonable time and effort” to obtaining those records. There is no medical justification for this intrusion into a woman’s privacy. Since abortion providers cannot possibly comply with such a sweeping mandate in all cases, this measure would limit their ability to provide care.
     
  • Increase the power of state regulators to shut down abortion providers.  Arkansas lawmakers also required that the state health department suspend or revoke the license of any facility providing abortion, for any violation of any rule, no matter how minuscule. No other types of health care facilities are subject to this type of medically unnecessary over-regulation.
     
  • Force doctors to give patient information to local police.  Arkansas has a robust state system for reporting any suspected abuse of minors. Nonetheless, lawmakers decided to increase the burden on abortion providers providing services for any patient under 17 years old. In all cases, even when there is no indication of a crime or abuse and where there is parental consent, the provider must report the young woman’s abortion to the local police, inform the police of where the patient lives, and have the police retrieve the tissue from the abortion to preserve it as “evidence.” This invasion of medical privacy does  nothing to enhance  public safety.  

Last week, along with our colleagues at the Center for Reproductive Rights, ACLU of Arkansas, and Planned Parenthood, we filed two lawsuits challenging these five restrictions.

After last year’s Supreme Court decision in Whole Woman’s Health v. Hellerstedt, which made it clear that a woman has the right to get abortion care with dignity and without needless barriers, one would think that state legislators would halt such efforts. Sadly, that hasn’t happened. According to the Guttmacher Institute, in just the first three months of 2017, lawmakers around the country introduced 431 measures that would restrict access to abortion care.

Every day, women in Arkansas and across the United States struggle to get the care they need as lawmakers impose new ways to shut down clinics and make abortion unavailable.  Arkansas women cannot afford to lose further access. They cannot afford to travel hundreds of miles to get to the nearest clinic. And they should not have to endure invasions of privacy and violations of their autonomy.

A woman’s decision to end a pregnancy is hers to make with her family, her faith, and her doctor. We will fight politicians who not only seek to shame, punish, or burden women for making these decisions, but also try to push care out of reach.

‘Clear Victory’ for President Trump on Muslim Ban 2.0? Hardly.

American Civil Liberties Union - Mon, 06/26/2017 - 17:15
The Supreme Court refused to allow the president’s sweeping Muslim ban to go into effect.

After the Supreme Court ruled today that it would hear arguments on the Muslim ban that a number of lower courts have ruled against, the president claimed “clear victory.”

Hardly.

In fact, the court handed the government a sweeping, but not complete, defeat. It rejected the government’s blanket ban and recognized what all the lower courts in two separate cases saw: The ban would be devastating to families, organizations, and communities across the United States. The court also allowed the government to implement only a narrow version of the ban, explaining that anyone with a “bona fide relationship” to people or organizations in the United States cannot be barred. To view that decision as “clear victory” is wishful thinking.

As a refresher, the court was considering two cases challenging the revised Muslim ban, which had been narrowed after it was swiftly struck down in court: IRAP v. Trump and Hawaii v. Trump. In both cases, federal district courts concluded that the order was an unconstitutional attempt to implement the Muslim ban President Trump had repeatedly promised on the campaign trail, and both courts issued orders blocking key provisions of the ban. Those orders were upheld by two courts of appeals. In a case argued by the ACLU, the Fourth Circuit in Virginia rejected the ban on people from six overwhelmingly Muslim countries, concluding the president’s order “drips with religious intolerance, animus, and discrimination.” The Ninth Circuit blocked that same provision and two others barring refugees, explaining that the president’s order violated federal statutes.

The government wanted to allow the ban to go into effect immediately and completely, arguing that the appellate decisions were wrong. At most, the government contended, the lower court orders halting the ban should only apply to two individuals (one plaintiff in IRAP and one in Hawaii).

The Supreme Court said no. It did not limit the lower court orders to those two individuals alone. It did not limit the orders to the other plaintiffs in the cases. Instead, it told the government that it may not apply the ban to anyone “who can credibly claim a bona fide relationship with a person or entity in the United States.”

What does that mean? Well, for starters, anyone with close family in the United States is exempt from the ban. The court explained that having a spouse in the United States would be enough to allow entry, and so would having a son-in-law. Coming to live with a family member is sufficient, and so is coming to visit family on a tourist visa. A large proportion of those who would otherwise be barred by the Muslim ban do have family in this country, and remain protected under the Supreme Court’s order.

Anyone with a relationship with a U.S. entity (like a school, employer, or nonprofit organization) is also exempted from the ban. The court was clear this has to be a “bona fide” relationship — meaning it cannot be manufactured just to get around the ban. But, again, a large segment of those who would otherwise be banned will fall into this category: students coming to study at a university, employees coming for a job, and clients and members of U.S. organizations.

So who is banned? It appears relatively few can be legitimately prohibited under the Supreme Court’s decision: individuals who are abroad and have no connections to family or organizations in the United States. To be clear, the Supreme Court did not say the ban is legal as applied to those individuals. It only allowed the government to implement this limited version of the ban while it considers whether the rest can be upheld at all.

Which brings us to the other action the court took today. It agreed to hear both IRAP and Hawaii in October. That is not particularly surprising. These cases raise exceptionally important legal questions, making them precisely the kinds of cases the Supreme Court is likely to review. We are confident that when the court reviews this unconstitutional order this fall, it will strike it down once and for all, and vindicate both our fundamental commitment to religious neutrality and the responsibility of the courts to serve as an independent check on the exercise of presidential power.

So where is the president’s “clear victory”? Nowhere to be found.

Can Businesses Turn LGBT People Away Because of Who They Are? That’s Up to the Supreme Court Now.

American Civil Liberties Union - Mon, 06/26/2017 - 17:00
It’s about far more than just cakes.

The United States Supreme Court just agreed to decide a case about whether a business can refuse to sell commercial goods to a gay couple because of the business owner’s religious beliefs.  A win for the business could gut the nation’s civil rights laws, licensing discrimination not just against lesbian, gay, bisexual, and transgender people, but against anyone protected by our non-discrimination rules. 

In July 2012, Debbie Munn accompanied her son, Charlie Craig, and his fiancé, Dave Mullins, to the Masterpiece Cakeshop just outside of Denver  to pick out a cake for their wedding reception.  When the bakery’s owner heard that the cake was for two men, he said he wouldn’t sell them a cake because of his religious beliefs. 

Debbie was stunned and humiliated for Charlie and Dave.  As she has  said, “It was never about the cake.”  She couldn’t believe that a business would be allowed to turn people away because of who they are or whom they love.  They might as well have posted a sign in the shop saying “No cakes for gays.”

The Colorado courts agreed with Debbie and ruled that the bakery’s refusal was unlawful and rejected the bakery’s request for a religious exemption from the state’s longstanding non-discrimination law. 

By granting review in Charlie and Dave’s case, the Supreme Court has placed  a spotlight on supposed tensions between equality and religious liberty.  But the country has already found the right balance between these two important constitutional interests. 

Under the Constitution, we each have the right to our own religious beliefs.  We are empowered to act on those beliefs --  but not when our actions would harm others.  That’s because religious freedom doesn’t give anyone the right to discriminate against or harm other people.

When businesses open their doors to the public, they must open them to everyone on the same terms, regardless of race, color, national origin, disability, or – under many state  laws – sex, sexual orientation, or gender identity. Even when  a business owner’s religious beliefs may motivate her to discriminate, that doesn’t justify an exemption from our civil rights laws.  Providing commercial services, like selling cakes, doesn’t mean a business owner is endorsing anyone’s marriage.  It simply means they are following the rules that apply to us all.

Demands for religious exemptions from civil rights laws are not new.  In the past, businesses have repeatedly sought to pay women less than men because of a religious belief that men are “heads of household” and women should not work outside the home.  Other businesses have refused service to people living with HIV because of a belief that they are sinful.  Still others turned people away from restaurants because of their belief that they should not  interact with people of a different race.  The courts rightly rejected all of these claims for religious exemptions, despite the fact that they were based on deeply held beliefs. 

There’s no reason that religious exemptions should be any more acceptable when it comes to turning people away because of religious beliefs about  sexual orientation or gender identity.  Courts across the country have agreed, including a decision from the Washington State Supreme Court  in February.  

The religious exemptions issue has gained prominence recently as civil rights protections for gay and transgender people have become more widespread.  States have proposed laws that would license discrimination by businesses, government workers, adoption agencies, and counselors.  Congress has considered similar measures. And President Trump has signed an executive order that signaled his intent to use religious exemptions to advance discrimination. But polling shows that both the American public and business owners themselves reject these overbroad exemptions and recognize them as discrimination. 

Charlie’s mom was right:  It’s not about the cake. Or the flowers. It’s about not being turned away from a business because of who you are.  Religious freedom must be protected in America, but what’s going on here is pure  discrimination. 

New Jersey Argued That a Calm Manner Could Be Used Against You in Police Interrogations. Luckily, It Lost.

American Civil Liberties Union - Mon, 06/26/2017 - 13:30
The NJ Supreme Court ruled that a suspect’s tone and demeanor could not nullify words invoking the right to remain silent.

“That’s all I got to say.”

This sounds like an assertion of the right to remain silent, doesn’t it? In a unanimous decision on Wednesday, the New Jersey Supreme Court ruled that, in fact, it is.

The defendant in New Jersey v. S.S., charged with sexually assaulting his daughter, was interrogated about the alleged offense for about an hour before he said, “No, that’s all I got to say. That’s it.” But the interrogation continued.  S.S. told the police he was done speaking two more times. Nevertheless, the police officers continued their efforts to coax a confession out of him, telling him that that they knew there was “something you need to get out.”

S.S. did what many people do after being questioned for hours, even though he had told them he didn’t want to talk: He started answering.

New Jersey courts have recognized that the right to silence is a fundamental protection the Constitution affords people accused of crimes. Unlike federal law, New Jersey law doesn’t require suspects to invoke their right to silence clearly and unequivocally. If a suspect expresses a wish to remain silent during an interrogation, even if that person seems to equivocate at some point, police in New Jersey  must either stop the questioning or ask clarifying questions to determine whether the suspect has invoked the right to remain silent.

The trial court ruled that S.S. had invoked that right when he said,  “that’s all I got to say,” and suppressed all statements made after that point in the interrogation. Although S.S.’s words were nearly identical to the language previously found by the state Supreme Court to be sufficient to invoke the right to silence, the New Jersey Appellate Division decided that S.S.’s calm tone meant he wasn’t actually invoking his right to silence. The Supreme Court thus had to address whether police and courts can use a suspect’s “tone” to eclipse the words used. The answer is no.  In reversing the appellate court’s decision, the Supreme Court wrote:

“Whatever the tone of a suspect’s voice, whether it is loud or soft or unchanged or shifting, or whether the suspect is calm or jittery or submissive or antagonistic, words will make a difference and oftentimes have an objective meaning to reasonable law enforcement officers. … Elevating the importance of tone over the import of words, as the Appellate Division did here, can lead to injecting a high degree of subjectivity into the analysis.”

The ACLU of New Jersey’s Rebecca Livengood argued at the state Supreme Court that relying on tone to find that a suspect has not invoked the right to silence raises serious equal protection concerns under the New Jersey and federal constitutions.

There are widely acknowledged reasons for S.S., a Black man who was 24 years old at the time of his interrogation, to answer questions from police with a calm and composed demeanor. As many scholars have observed, and as both President Barack Obama and former Attorney General Eric Holder have noted, centuries of coercive and violent interactions with police have led Black men to adopt a calm and deferential tone when dealing with law enforcement. From a young age, Black boys are told that they need to make an effort to appear non-threatening to avoid police violence.

S.S. was using tactic of self-protection.  The ACLU of New Jersey argued that for the Appellate Division to find that S.S. didn’t mean what he said because of his tone in essence leaves Black men with an impossible choice: Speak to police calmly and be found to have forfeited your constitutional rights, or speak firmly and risk being seen as an aggressor.

By rejecting the appellate court’s reliance on tone, the New Jersey Supreme Court helps protect suspects who invoke their right to silence – regardless of their race.

I’m Suing Texas Because the Legislature Passed a Bill that Discriminates Against My Town

American Civil Liberties Union - Mon, 06/26/2017 - 13:30
We have amazing police officers in El Cenizo. They should not be enforcing immigration laws.

I was born in Corpus Christi and I first came to live in the border town of El Cenizo as a 9-year-old kid. At that time, the place had just incorporated as a town after being a colonia, an informal community without running water or electricity. Most of the people I grew up with were U.S. citizens, like me, but everyone had Mexican roots.

The life we lived was “in between”: I put ketchup on my huevos revueltos, I listened to cumbias texanas, and I played trumpet in my high school band. People’s contributions mattered — their kindness to neighbors, their work on clean-up crews, their payments of municipal taxes to help build our town — not their immigration status.

Now I’m mayor. I’m suing the state of Texas because of a new law, Senate Bill 4, that would give a green light to police officers to investigate a person’s immigration status during routine events like traffic stops. I believe this would lead to widespread racial profiling and illegal arrests of citizens and non-citizens — people like the residents of El Cenizo, including me. Any of us could be mistaken for foreigners because of the way we look and speak. Many people from my town who are U.S. citizens don’t speak English — why should they have to prove their right to be here, and how would they do it?

The law would also prohibit our municipality from adopting any policies that ensure all individuals, including those who are undocumented or have undocumented family members, feel comfortable working with our officials — even though we have had policies against asking questions about residency status since 1999. And the law would allow state officials to fine, jail, and remove from office any elected or appointed official who limits cooperation with federal immigration officials. My mother, for one, is worried that will be me.

For years, I thought El Cenizo was on a steady path of progress. All over Texas, colonias improved materially, and their people gained more opportunities.

When I first came to El Cenizo as a child, things were very different. I remember when it rained heavily, our streets were like little flowing rivers that were our swimming pools; we would let the water current drag us to the end of the street. Our house was a structure of concrete floors, four walls, and a roof, with no insulation or windows. On cold winter nights, we’d shove the two beds together and sleep crammed in all together, wearing almost all the clothes we owned, just to keep warm. Immigration agents were a constant presence, and people were frequently harassed and sometimes abused.

Now all of our streets are paved, we have some sidewalks, we have plenty of street lights, and we’ve built a park and a library. We have a small fire department, and a police department with three to five officers. Regardless of their immigration status, people feel free to walk down the street or report a problem to the police.

Cops here concern themselves with issues that are important for our community. They’ll knock on your door if you have an old sofa in your yard, if you’re not cutting the grass, or if you’re keeping chickens or goats. Our police officers also handle traffic stops and risk their lives intercepting illegal narcotics that have crossed the Rio Grande.

We have amazing officers, and they do great work. Their role should not be to enforce immigration rules.

El Cenizo is very safe. We are not overrun by “bad hombres,” as President Trump would have you believe. I’ve been in office 13 years and I’ve yet to see a homicide here. In my experience in El Cenizo, undocumented people are extremely unlikely to commit crimes. Typically, undocumented people have other things to worry about: how to find enough work, hold down two or three jobs, provide a better future for their children.

We’re already feeling the consequences of people’s fear of SB4. People are scared. They’re making adjustments to their lives to avoid contact with the police. Reports of domestic violence are down in my community, and other crimes might go unreported too. I’m worried that will make this place more dangerous for all of us.

But SB4 is bigger than El Cenizo, or even Texas. This is about what sort of country we want to live in. Will we choose to live in a country where our laws encourage law enforcement agents to target people because of the way they look and sound?

It feels frustrating and sad to see a country I love so much take backwards steps into our history of deep discrimination. When legislators create laws that legitimize that discrimination, it trickles down. Social media feeds and comment sections on news sites are full of hate. I saw a video where a U.S. citizen speaks to his mom in Spanish, and people start chanting, “Go back to Mexico!”

Still, since I moved to sue the state, it’s also been very moving to see people reaching out. I have a stack of postcards and notes I’m keeping from people in places as far away as Alaska and California who’ve gotten in touch to express their support. One woman from Fredericksburg, Virginia, wrote, “It’s heartbreaking to see all the changes in our country,” and stapled a check for $40 to put toward our town’s legal expenses.

I keep that letter on my desk. I’m planning to write back and tell her that during a time of hate and division in our country, her words inspire me to keep fighting.

Raul L. Reyes is the mayor of El Cenizo, Texas.

Louisiana Locks Up More of Its Citizens Than Any Other State in the Nation, but Reform Is Coming

American Civil Liberties Union - Fri, 06/23/2017 - 15:30
Louisiana just made history in a bipartisan move to smarter sentencing and prison alternatives.

I was in the room last week when Gov. Jon Bel Edwards signed a package of 10 bills, passing the most aggressive criminal justice reform the state — and possibly the region — has ever seen.

“We knew we needed to be bold, and think big, and get smart on crime,” Gov. Edwards said. “And, by the way, bold does not mean risky, it just means refusing to do something you’ve been doing just because you’ve been doing it, but really open your eyes to see the system as it is.”

What Gov. Edwards is referring to here is his state’s addiction to mass incarceration. Louisiana not only tops every other state in the U.S. in its incarceration rate, but it outpaces other nations. The state’s incarceration rate is nearly 13 times as that of authoritarian China. Last year alone, corrections cost the state nearly $700 million.

But 2017 may be Louisiana’s turn-around year.

Republicans, Democrats, and independents put aside partisan politics and threw their weight behind a legislative package to fix Louisiana’s broken criminal justice system. The 10 bills, known as the justice reinvestment package, are expected to result in a 10 percent reduction in Louisiana’s prison population and save the state $262 million.

A 10 percent reduction may sound small, but it will change the lives of thousands of people. And not just those who will be released or those who won’t end up behind bars unjustly, but the many families hurt by a broken, retribution-based system.

Flozell Daniels, a reform advocate, spoke passionately and courageously in legislative hearings about losing his child to gun violence, but how continuing a system focused on revenge does not bring him or his community healing — and does not deter crime.

Louisiana’s criminal justice win has nationwide implications. This historic legislative moment is a model of success that other states can follow.

Reforms include reducing and eliminating mandatory minimums, reducing habitual offender penalties, and expanding parole eligibility. Juveniles sentenced to life will be eligible for parole after serving 25 years. Fines and fees will be tailored to a person’s ability to pay, and those who make consistent payments will have an opportunity to be granted debt forgiveness. This means fewer will be punished simply because they are low-income and can’t afford to pay the penalty.

Seventy percent of the savings — approximately $184 million — will be strategically reinvested into programs proven to reduce recidivism and support crime victims. People who have served their time will have restored access to public assistance and increased employment opportunities through professional licensing programs.

The successful passage of the justice reinvestment package was due in large part to the efforts of a diverse, grassroots coalition, Louisianans for Prison Alternatives (LPA). Formed in May 2016 by the American Civil Liberties Union, the Southern Poverty Law Center, and Voices of the Experienced, LPA leveraged the voices of formerly incarcerated community leaders, clergy, and the business community.

On a humid day in April, more than 600 Louisianans drove and bussed into the State Capitol in Baton Rouge to share personal stories in a day of advocacy. And throughout the session, LPA advocates delivered hundreds of community members’ postcards and letters and generated thousands of emails and phone calls to legislators. This is the largest criminal justice reform grassroots effort the state had ever seen.

But we’re far from done. It’s going to take years for Louisiana to get out of the mass incarceration hole it has dug itself into.

Hearing after hearing, opponents of reform fought to exclude people convicted of a violent crime from most of the package. Currently, more than half of people in state prisons across the country have been convicted of violent offenses. If Louisiana and other states are really serious about ending this country’s addiction to mass incarceration, we need systemic reform beyond nonviolent, drug crimes.

Some reforms passed were not retroactive. In recognizing our former practices were erroneous, we must allow policy changes to impact those already wronged by the system through retroactivity.

We’ve come a long way nonetheless. Even five years ago, criminal justice reform was taboo in Louisiana. And the only voices at the table were district attorneys and sheriffs pushing for harsher penalties and longer sentences to make sure local prisons were full and making a profit.

The mood was victorious on June 15th, when Governor Edwards penned his signature in a room filled with nearly 200 people — not just legislators and some of Louisiana’s most prestigious civil rights leaders, but most importantly, formerly incarcerated Louisianans and families who have loved ones in prison.

It was clear: Louisiana made its first step to becoming the world’s decarceration capital.

Ruthelle Frank, ACLU Plaintiff, Friend, and Voting Rights Champion, Passes Away at 89. The Fight for Every American’s Vote to be Counted Continues.

American Civil Liberties Union - Fri, 06/23/2017 - 15:15
Ruthelle voted in every election since 1948. When Wisconsin infringed upon her right to vote, she fought back.

Attorneys from the American Civil Liberties Union first met Ruthelle Frank in 2011, when the then-84-year-old was fed up with her home state of Wisconsin’s attempts to infringe upon her right to vote. This month, we received the sad news that Ruthelle had passed away at the age of 89.

Ruthelle cared deeply about community participation and leading by example. In fact, for 18 years she served as an elected trustee of the Village of Brokaw, Wisconsin, where she was born and would live her entire life. She was fond of saying “If you don't use it, you lose it,” and this rang especially true when it came to voting. Ruthelle voted in every election since 1948, the year in which President Truman signed the Marshall Plan and the minimum wage stood at just 40 cents.

But in 2011, Wisconsin enacted one of the harshest voter ID laws in the country. Ruthelle’s longstanding participation in America’s democracy was suddenly at stake.

The truth is that we can safeguard our elections and protect people’s right to vote, but Wisconsin’s law does neither.

Wisconsin’s law not only mandated a photo ID to vote, but it limited that ID to a few official kinds and mandated that residents had to go to the DMV for their “free” IDs. Many Wisconsinites — including hundreds of thousands of registered voters — did not have these official state IDs. And Wisconsin did not make it easy to obtain them.

For Ruthelle, the battle with state bureaucracy began when the DMV told her she needed a birth certificate to get the “free” ID. Ruthelle was born in her home in 1927, and she had never even seen her birth certificate. The state refused to accept her baptismal certificate, social security card, or marriage license as alternatives.

Ruthelle tried to get a birth certificate — which cost $20 — but officials told her that her maiden name was misspelled in state records. In order to correct the misspelling, Ruthelle would need to go through a legal proceeding that could cost combined fees upwards of $200. Even then, Ruthelle didn’t know if this would be the end of it.

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More importantly, Ruthelle deeply disagreed with the principle of a state forcing a citizen to pay to participate in American democracy. Knowing it was a step in the wrong direction for her state, Ruthelle decided to fight back and become the lead plaintiff in our lawsuit against Wisconsin’s voter ID law.

Ruthelle was part of the long battle to keep Wisconsin from infringing on the voting rights of so many across the state. In December 2011, we filed our lawsuit challenging the law. In a major victory in 2014, a federal district court ruled that Wisconsin’s voter ID law was unconstitutional and struck it down entirely.

In September 2014, however, a setback occurred. The Seventh Circuit Court of Appeals reversed that ruling and tried to put the law into effect immediately. Fortunately, we succeeded in convincing the U.S. Supreme Court to block the law from taking effect in the November 2014 midterm elections.

Even though the law then went into effect, our lawsuit — Ruthelle’s lawsuit — continued. Among other problems, we called attention to the fact that Wisconsin did not include Veterans’ Administration ID cards or 2-year technical college ID cards as among the forms of acceptable ID for voting. The state eventually backed off and agreed to accept these forms of IDs, but it took years of litigation to get there.

And in another victory, the district court in our case ruled in 2016 that voters who have trouble obtaining identification in Wisconsin can vote by affidavit. Unfortunately, Wisconsin appealed that decision to the court of appeals, and while it is pending, the court blocked the affidavit option.

Throughout every legal twist and turn, Ruthelle remained committed to the fight. Everyone has a stake in ensuring that our elections are honest, fair, and accessible. Ruthelle knew this, and she did her very best to fight back against misguided laws which confuse restricted access for a more secure process. The truth is that we can safeguard our elections and protect people’s right to vote, but Wisconsin’s law does neither.

More importantly, Ruthelle deeply disagreed with the principle of a state forcing a citizen to pay to participate in American democracy.

By sharing her story, Ruthelle had an incredible impact on both our work and the people around her, including many who did not personally know her. Among the memories shared online in the guestbook of Ruthelle’s obituary was, “I did not personally know Ruthelle Frank but knew of her by newspaper accounts about her determination to vote. She is an example to us all especially those who sit out elections. Thank you, Ruthelle, for being a great patriot.”

Ruthelle did not seek any sort of special treatment. She simply wanted everyone to have the right to vote. We at the ACLU thank Ruthelle for fighting alongside us and for setting a true example of what it means to participate in our democracy.

Jeff Sessions Wants a New War on Drugs. It Won't Work.

American Civil Liberties Union - Fri, 06/23/2017 - 14:45
Rather than expanding the drug war, the attorney general should examine local conditions that influence crime and violence.

This piece originally appeared on The Washington Post

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18]. But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem. His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases. That policy urged prosecutors to reserve the most serious charges for high-level offenses. Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history. (Mandatory minimums can lead to draconian sentences, as in the case of Ramona Brant, a first-time offender sentenced to life imprisonment for her part in distributing drugs at the direction of an abusive boyfriend). Individuals who met the stringent criteria of Holder’s policy would still be prosecuted, but they would be spared overly long mandatory minimums. Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

To continue reading, please click here.

 

We're Demanding Answers on U.S. Involvement in Torture at Secret UAE Prison Network

American Civil Liberties Union - Fri, 06/23/2017 - 13:30
U.S. officials interrogated people held at secret facilities where torture is reported.

This week, thanks to excellent reporting by The Associated Press, we learned of horrific conditions and brutal torture at 18 prisons around Yemen that are run by the United Arab Emirates, a U.S. ally, or by UAE-trained Yemeni officials. What’s more, the U.S. confirmed to the AP that U.S. personnel take part in interrogations in Yemen, submit questions to be asked, and receive videos and transcripts of interrogations.

This has set off alarm bells about possible U.S. complicity in or benefit from the torture of Yemenis in the secret prison network. That’s why today we filed a Freedom of Information Act request asking the U.S. government to turn over all records relating to interrogations in Yemen

A senior Yemeni military official stated that the United States had sent authorities a list of “most wanted men” — including many who were later detained. In addition, according to multiple senior Yemeni officials, U.S. officials themselves conducted interrogations of detainees on ships off the coast of Yemen.

U.S. military officials reportedly investigated reports of torture and found that it did not happen in the presence of American personnel. The ACLU’s FOIA request covers the results of any investigations and interrogations, as well as any policies on the U.S. role in detention and interrogation at the sites.

The AP article also said there were reports of some interrogations on a ship at sea with or by people described as American “‘psychological experts.’” On behalf of three victims of the CIA’s former torture program, the ACLU has sued the two psychologists who devised and helped implement that program. The new FOIA request was filed with the CIA as well.

The FOIA request also asks for records relating to U.S. transfers of people for arrest, detention, or interrogation by Yemeni or Emirati personnel, and it also covers records related to U.S. training of Yemeni or Emirati personnel engaged in detention or interrogation.

Relatives and attorneys told The AP that some 2,000 men had been sent to the secret prison network, many never heard from again.

As the United States surely knows from its own shameful history of proxy detention and secret CIA prisons, international law bars not only torture, but also complicity or benefit from torture. If the U.S. knew or should have known its allies were engaged in torture, the last thing it should have done is turn a blind eye.

The ‘Magna Carta’ of Cyberspace Turns 20: An Interview With the ACLU Lawyer Who Helped Save the Internet

American Civil Liberties Union - Fri, 06/23/2017 - 12:45
Twenty years ago, the Supreme Court struck down a broad online censorship law that almost gave us a very different internet.

In the mid-1990s, as average American households were increasingly getting online, a “Great Internet Sex Panic” threatened to severely restrict the most significant communications medium of our time.

The Communications Decency Act was introduced in Congress in 1995 to address the fabricated threat that pornography was taking over the web and imperiling our children. “The information superhighway should not become a red light district,” declared Sen. James Exon (D-Neb.), the bill’s sponsor. His solution was to criminalize the dissemination of “obscene or indecent” online content if it could be viewed by minors — essentially, applying the same standards to the internet as those imposed on broadcast television. The bill passed both chambers and was signed into law by Bill Clinton in February 1996.

At the time, the ACLU didn’t even have a website. But recognizing the extraordinary potential of the internet as a forum for the exchange of ideas — one with "no parallel in the history of human communication” — the organization moved to challenge the law. The ACLU represented 20 diverse plaintiffs in the case, including advocacy groups like Planned Parenthood, who feared prosecution over their sexual education materials. We were also a named plaintiff in the case. (Read on to learn why.)

The case made its way up to the Supreme Court, which unanimously struck down the anti-indecency portions of the law on June 26, 1997. Justice John Paul Stevens wrote:

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

On the occasion of the 20th anniversary of the decision, often referred to as the “Magna Carta” of the internet, I asked Chris Hansen, who led the ACLU’s lawsuit against the CDA, about what it was like to litigate Reno v. ACLU.

This interview has been lightly edited for clarity.       

First things first, can you explain what constitutes indecency or obscenity, and who has the authority to decide if something is indecent or obscene? Has this definition changed over time? And is there a separate category of speech that may be indecent or obscene only for minors?

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Laws prohibiting speech about sex date back to the early 1800s. “Obscenity” and “harmful to minors” are terms found in criminal laws that have evolved over time. “Indecency” is a term adopted by the FCC and allows an administrative fine against broadcasters. The CDA made it a crime to engage in speech online that was indecent.

It is virtually impossible to identify speech that fits these categories. During the various internet censorship cases the ACLU brought, we asked the government to identify speech in each category, and they were largely unable to do so. For example, they said that an online photo on Playboy’s website of a topless woman was not harmful to minors, but a virtually identical photo on Penthouse’s website was. In addition, because the standards are subjective, material considered obscene decades ago, like Henry Miller’s “Tropic of Cancer,” is no longer considered obscene. Today very few obscenity cases are bought in either federal or state courts.

Not surprisingly we found that English has more than seven words that some might consider indecent, and all of those words appeared on our website.

In order to challenge the anti-indecency provision of the Communications Decency Act as a plaintiff, the ACLU needed to prove the organization could be prosecuted under that law. That meant it needed to have published online content that might be deemed “indecent” or “obscene.” I’ve heard that we posted pornography on our website in order clear that hurdle. Is that true?

The ACLU wanted to be a plaintiff as well as representing plaintiffs so that history would remember the fight as an ACLU fight. We wanted the case to be called ACLU v. Reno. To sue, we needed to have standing. In other words, we needed a credible argument that we could be prosecuted under the law. At the time, nothing on our website was even arguably indecent.

We decided to do two things. First, the Supreme Court had declared the George Carlin monologue indecent [see video above], and their opinion included the entire monologue as an appendix. So we put the opinion with the appendix on the website. We were afraid that was too cute, so we also held a contest, inviting people who came to our website to post guesses, before they read the opinion, what the seven dirty words were. Not surprisingly we found that English has more than seven words that some might consider indecent, and all of those words appeared on our website. The government never seriously challenged our standing.

Parenthetically, “pornography” is not a legal term.  Nothing we had on our site was close to what most would consider pornography.

The web was so new when Congress passed the CDA in 1996 — if I’m not mistaken, we created our website specifically so that we could challenge the law. You needed to argue about the future of the internet to judges who had never used it before. How did you do that? Did either side have a sense of how big the internet would eventually become?

When we decided to bring the case, none of us had been online, and the ACLU did not have a website. We flew down to Washington so that someone we knew could show us the internet. When we litigated the case in Philadelphia, we used a phone line to set up the internet in the courtroom and show the judges what a website looked like. We made an effort to show them websites we thought they would find interesting. We also showed them chat rooms and bulletin boards and the WELL, an early social media site. I’m told that when we argued the case in the Supreme Court, only one of the justices had ever been online and that several others were taken down to the court basement by their clerks and shown the internet.


This is what the ACLU homepage looked like in June 1997.

Both sides knew that the standards that would be applied to a new communications form were incredibly important. We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television. Nevertheless, I don’t think any of us knew how important it would become. In fact, one of our witnesses testified that “If you think you can predict what the internet will become, you’re wrong.”  I proposed we drop testimony about the WELL — the social media site — on the grounds that the internet was about the static websites, not social media platforms where people communicate with each other. I was persuaded not to do that, and since I was monumentally wrong, I’m glad I was persuaded.

I’ve heard you explain that in searching for plaintiffs, the ACLU looked for groups that posted content that was sexual enough that it was at risk under the law, but not so sexual that the court wouldn’t want to protect it. That’s how we ended up, for example, with Planned Parenthood as a plaintiff, but not a pornography website. But is it possible to protect one without protecting the other?

Then-ACLU lawyer Ann Beeson spent an enormous amount of time finding sites that were at risk under the law but that judges would not want to see go to jail. If the case was seen as being about protecting Penthouse’s pictures of naked women, we thought we’d lose. So we ended up with 20 sites, like Stop Prison Rape (describing rape in jails and prisons) or the Safer Sex Web page (sex advice for the disability community) or Wildcat Press (a gay and lesbian publisher) that included very frank language about sex that most judges would find valuable. During a later stage internet censorship case, we had about 20 summer law students try to find such sites that could be potential plaintiffs. They loved the assignment for about an hour, but because the assignment inevitably took them to less savory sexually explicit sites, thereafter they complained bitterly.

Because the definitions are so subjective, it is not possible to prosecute these laws without at least risking valuable speech. For example, what some people find “prurient” others may not find “prurient.” “Contemporary community standards” change over time and based on geography. What is “patently offensive” in Meridian, Mississippi, may not be “patently offensive” in New York City. If a site is engaged in speech that is close to the line, even if they think it is valuable, they are likely to self-censor to avoid any risk of prosecution.


ACLU lawyers at a press conference after the decision in Reno v. ACLU. (Left: Chris Hansen; right: Chris Hansen and Ann Beeson)

Our victory in Reno determined that the internet would enjoy the broadest of First Amendment protections — like those accorded to books. That’s as opposed to broadcast television, where speech the government considers indecent or obscene is prohibited. How do you explain this distinction? Do you think it makes sense?

As the government increasingly pressures companies to remove online content, we’re creating a censorship system that applies to an enormous amount of communications that don’t enjoy constitutional protections.

I think most people understand the desire to protect children from adult speech. That’s what motivates laws like these. But both of the internet censorship statutes required the entire internet to be child friendly, even if the effect was to prevent adults from accessing material that they were unquestionably entitled to view. For those parents who want to restrict their children from seeing adult speech, many other alternatives — such as putting the computer in a public area of the home or monitoring usage or blocking software — exist.

The question of different standards for broadcast TV than for books or even cable TV makes no sense at all and will eventually disappear. We were seriously afraid that the broadcast TV model would be applied to the internet because it, like television, comes into the house on a screen in a box, and you don’t always know what you will see when you click.  But ACLU v. Reno and the ubiquity of the internet will lead to the demise of the special rules for broadcast TV.

The CDA had various descendants because Congress never gave up trying to prohibit certain kinds of content online. We lost our challenge to the Children's Internet Protection Act (CIPA), which requires libraries and schools that receive federal funding to use filters to block sexually explicit content. Later, the Child Online Protection Act (COPA) attempted to resurrect many components of the CDA but never took effect thanks in part to our litigation. What’s the latest front in the attempt to scrub the internet of sex?

Obscenity is still illegal on the web, but prosecutors rarely bring those cases anymore, partially because of shifting social standards.

I think the greater censorship dangers today involve attempts by nongovernmental entities — such as Facebook, Twitter, Google, and other internet companies — to decide what speech is appropriate online, and those efforts largely are directed at hate speech. Facebook and other internet companies aren’t bound by the First Amendment, which only applies to the government. As the government increasingly pressures companies to remove online content, we’re creating a censorship system that applies to an enormous amount of communications that don’t enjoy constitutional protections.

It’s Time for Congressman Issa to Come Down From the Roof and Support the First Amendment

American Civil Liberties Union - Thu, 06/22/2017 - 18:00
Rep. Darrell Issa has stood idly by as the city of Vista attacks his constituents’ right to protest outside of his office.

On May 30, Rep. Darrell Issa’s San Diego County constituents saw a different side of the nine-term member of Congress.

Angry at peaceful protesters outside his district office building in Vista, California, the congressman took to the roof to express his frustration. Looking down upon the protesters, he phoned a local newspaper reporter to explain he was on the roof because the protesters wouldn’t speak to him and blamed the reporter for being in cahoots with the protesters. On Twitter, however, Issa said he spent his morning talking to constituents and “then popped upstairs” to photograph them — from the roof.

While Issa’s behavior was erratic, it isn’t the most concerning aspect to this story. No member of Congress likes to see protests outside his window, but he should vocally defend protesters’ First Amendment right to do so. But Issa’s silence has been deafening, even though the city of Vista is trying very hard to crack down on the protests.

For the past few months, Ellen Montanari has organized weekly protests outside Issa’s office to voice concerns over Issa’s public policies, including Issa’s vote to repeal Obamacare. These days, people are eager to express their dissatisfaction with Issa’s performance and Montanari’s protests have given them a platform to do it. So every Tuesday, the protesters show up for an hour-long peaceful rally outside of Issa’s office, and the city of Vista has taken notice.

Until recently, the protesters gathered on the public sidewalk next to his office building to exercise their First Amendment rights. But under the terms of the city’s most recent permit, which is issued in 30-day increments, they have been relegated to a dirt path on the opposite side of the road. Taking direct aim at Montanari, the permit also makes her financially responsible for the behavior of all the protesters who show up.

The actions taken by the city are unconstitutional. The Supreme Court has ruled repeatedly that public sidewalks are one of the places where our First Amendment rights are at their most robust. A government restriction on sidewalk protests can be justified only by the most compelling and fact-based need — and that reason can never include the government's desire that a protest be less visible or less critical.

Our First Amendment freedoms ensure that anger and political disagreement don’t fester into violence.

On June 1, the ACLU of San Diego and Imperial Counties issued a letter to the city of Vista seeking the removal of the unconstitutional restrictions in the permit granted to Ellen Montanari. In our letter, we made it clear that the city cannot ban protest from a public sidewalk or make Ms. Montanari responsible for the conduct of others. We also explained to the city that it cannot bill protesters for any law enforcement response and reminded it cannot ban the use of bullhorns or microphones by protesters. The ACLU’s letter is now under review by the city attorney.

Contempt for the First Amendment, however, isn’t confined to Vista. Since the election, 22 state legislatures have considered 31 anti-protest bills. Fourteen have been defeated, but 10 are pending and seven have passed — including laws in South Dakota and Tennessee against blocking streets during demonstrations.

But the United States’ commitment to the First Amendment has been on the decline since before the election.

In July 2016, Maina Kiai, the United Nations’ special rapporteur on the rights to freedom of peaceful assembly and of association, undertook an official mission to the U.S. to assess our country’s commitment to freedom of assembly and protest. When he completed his trip, he observed that Americans “have good reason to be angry and frustrated at the moment.”

But he then went on to explain that it’s our First Amendment freedoms that ensure that anger and political disagreement don’t fester into violence. “And it is at times like these when robust promotion of assembly and association rights are needed most,” he said. “These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them.”

The local officials of Vista, California, should heed Kiai’s words and stop trying to block Ms. Montanari and other peaceful protesters from exercising the very rights that have made America an example to the world for over two centuries. And we should all hope Darrell Issa can find his way down from the roof and assure his constituents that he believes they have a right to protest — even when he’s the target.

It’s Time for Congressman Issa to Come Down From the Roof and Support the First Amendment

American Civil Liberties Union - Thu, 06/22/2017 - 18:00
Rep. Darrell Issa has stood idly by as the city of Vista attacks his constituents’ right to protest outside of his office.

On May 30, Rep. Darrell Issa’s San Diego County constituents saw a different side of the nine-term member of Congress.

Angry at peaceful protesters outside his district office building in Vista, California, the congressman took to the roof to express his frustration. Looking down upon the protesters, he phoned a local newspaper reporter to explain he was on the roof because the protesters wouldn’t speak to him and blamed the reporter for being in cahoots with the protesters. On Twitter, however, Issa said he spent his morning talking to constituents and “then popped upstairs” to photograph them — from the roof.

While Issa’s behavior was erratic, it isn’t the most concerning aspect to this story. No member of Congress likes to see protests outside his window, but he should vocally defend protesters’ First Amendment right to do so. But Issa’s silence has been deafening, even though the city of Vista is trying very hard to crack down on the protests.

For the past few months, Ellen Montanari has organized weekly protests outside Issa’s office to voice concerns over Issa’s public policies, including Issa’s vote to repeal Obamacare. These days, people are eager to express their dissatisfaction with Issa’s performance and Montanari’s protests have given them a platform to do it. So every Tuesday, the protesters show up for an hour-long peaceful rally outside of Issa’s office, and the city of Vista has taken notice.

Until recently, the protesters gathered on the public sidewalk next to his office building to exercise their First Amendment rights. But under the terms of the city’s most recent permit, which is issued in 30-day increments, they have been relegated to a dirt path on the opposite side of the road. Taking direct aim at Montanari, the permit also makes her financially responsible for the behavior of all the protesters who show up.

The actions taken by the city are unconstitutional. The Supreme Court has ruled repeatedly that public sidewalks are one of the places where our First Amendment rights are at their most robust. A government restriction on sidewalk protests can be justified only by the most compelling and fact-based need — and that reason can never include the government's desire that a protest be less visible or less critical.

Our First Amendment freedoms ensure that anger and political disagreement don’t fester into violence.

On June 1, the ACLU of San Diego and Imperial Counties issued a letter to the city of Vista seeking the removal of the unconstitutional restrictions in the permit granted to Ellen Montanari. In our letter, we made it clear that the city cannot ban protest from a public sidewalk or make Ms. Montanari responsible for the conduct of others. We also explained to the city that it cannot bill protesters for any law enforcement response and reminded it cannot ban the use of bullhorns or microphones by protesters. The ACLU’s letter is now under review by the city attorney.

Contempt for the First Amendment, however, isn’t confined to Vista. Since the election, 22 state legislatures have considered 31 anti-protest bills. Fourteen have been defeated, but 10 are pending and seven have passed — including laws in South Dakota and Tennessee against blocking streets during demonstrations.

But the United States’ commitment to the First Amendment has been on the decline since before the election.

In July 2016, Maina Kiai, the United Nations’ special rapporteur on the rights to freedom of peaceful assembly and of association, undertook an official mission to the U.S. to assess our country’s commitment to freedom of assembly and protest. When he completed his trip, he observed that Americans “have good reason to be angry and frustrated at the moment.”

But he then went on to explain that it’s our First Amendment freedoms that ensure that anger and political disagreement don’t fester into violence. “And it is at times like these when robust promotion of assembly and association rights are needed most,” he said. “These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them.”

The local officials of Vista, California, should heed Kiai’s words and stop trying to block Ms. Montanari and other peaceful protesters from exercising the very rights that have made America an example to the world for over two centuries. And we should all hope Darrell Issa can find his way down from the roof and assure his constituents that he believes they have a right to protest — even when he’s the target.

In the Blink of an Eye, Police Officers Turned This Traffic Stop Into an Unnecessarily Violent Encounter

American Civil Liberties Union - Thu, 06/22/2017 - 15:15
Disturbing police dash cam video from Minnesota shows an officer beating a motorist.

In a heartbeat, Anthony Promvongsa’s sunny summer day in Worthington, Minnesota, turned from ordinary to a nightmare.  

Shortly after encountering an agitated motorist driving in front of him on July 28, 2016, Anthony found himself confronted by the police. Within seconds of exiting his vehicle after pulling Anthony over, Agent Joe Joswiak of the Buffalo Ridge Drug Task Force opened the door of Anthony’s car, screaming, “Get the fuck out of the car, motherfucker!”

Without hesitation, Agent Joswiak pulled, punched, and elbowed Anthony several times in the back while Anthony was still restrained by his seat belt. Agent Joswiak then yanked Anthony out of the car, threw him to the ground, and pressed his knee to the back of Anthony’s neck to pin Anthony facedown on the pavement while he and Sgt. Tim Gaul of the Worthington Police Department applied handcuffs.

It turns out the agitated motorist Anthony encountered before being assaulted by Agent Joswiak was an off-duty police officer who called Joswiak to go after Anthony for tailgating him. The officer reports regarding the incident make no mention of any suspicion that Anthony was committing a drug offense.

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The police have charged Anthony with various offenses, the most serious being fleeing in a motor vehicle and two counts of assault with a deadly weapon — his car. But let’s make this very clear. No matter what happened before the dashcam video began rolling, Anthony did not deserve to be abused by the police in this way. Agent Joswiak claims Anthony refused his order to leave his car, but the video contradicts this assertion.

Instead it shows a textbook case of excessive force.

This type of brutality by officers is not only unconstitutional — it’s terrifying for the individual being assaulted and for the community as a whole. People should not fear that they could be attacked by the police for no reason or while being detained for investigative purposes. Fear of police violence causes a decrease in people reporting crimes and erodes trust between communities and the police. Communities of color already have a tenuous relationship with police, and unacceptable behavior like this makes it harder for it ever to change.

The Worthington Police Department, which employs Sgt. Gaul and appointed Agent Joswiak to the Buffalo Ridge Drug Task Force, needs to immediately investigate the incident, take all appropriate personnel actions, and ensure this never happens again.  The ACLU has called for an investigation into Agent Joswiak’s behavior. Agent Joswiak should be held accountable for his actions, up to and including termination and prosecution.

Based on additional complaints that we are receiving, this does not appear to be an isolated incident. Rather there’s evidence that racial profiling and police brutality are systemic problems that span the Worthington Police Department, Nobles County Sheriff’s Office, and the Buffalo Ridge Drug Task Force as Worthington becomes a much more diverse city.

The ACLU is talking with Anthony Promvongsa and his criminal counsel, and we are considering all legal options. No person in Worthington, Minnesota, should have to fear that the people who swear an oath to protect and serve the community are acting like criminals themselves. The video we have of Agent Joswiak and Sgt. Gaul seems to reveal at least two police officers who believe that they are above the law, not bound by it.

If the Government Spied on You, How Would You Know?

American Civil Liberties Union - Wed, 06/21/2017 - 14:00
We’re suing the Justice Department to disclose when the government tells people it electronically spied on them.

How would you know if the federal government had been electronically spying on you? Short answer: You probably wouldn’t.

Today, the ACLU sued the Justice Department to find out more about the circumstances under which the government thinks it can spy on Americans without telling them. This challenge seeks important information about a spying statute whose renewal is currently up for debate in Congress.

The answer to the question above should be simple: When the government invades your privacy — whether by searching your home, your car, your emails, or anything else — it should give you notice of that intrusion unless it has a compelling reason for delay. You see it on television all the time: When the police search a house, they show a warrant or leave one behind at the scene. The individual whose privacy is at stake knows there was a search and what was taken. This isn’t just to amp up drama — it’s a constitutional requirement.

If the government never told you that it had spied on you, you’d never be able to challenge the search or stop it from happening again. You’d be stuck essentially having to trust that if the government searched your emails or other belongings, it had good reason to and was acting lawfully.

It’s worth noting, however, that the federal government has a long history of abusing its surveillance powers. And as the amount of digital data has expanded, the amount of surveillance has exploded, too. So has the secrecy and the absence of accountability surrounding electronic searches. These searches are conducted under various laws, but they have one thing in common: Individuals rarely find out that their private emails, internet chats, or documents stored in the cloud have been searched. (Some companies strive to inform their customers when the government demands private data, but very often the companies that receive these demands are gagged from saying anything.)

One example of this notice problem involves Section 702 of the Foreign Intelligence Surveillance Act — a controversial spying law scheduled to expire in December. Under Section 702, the government secretly obtains hundreds of millions of communications each year — including countless emails and phone calls involving Americans — all without a warrant. Yet the government is required to tell individuals that it has spied on them under Section 702 only in very limited circumstances: when the government intends to use evidence that was gathered with the help of such a search in a criminal trial or other legal proceeding.

The vast majority of Americans surveilled under Section 702 will never be criminally prosecuted, so they will never know that the government has been secretly watching them. And without definitive proof that the government spied on them, individuals have an incredibly difficult time challenging the government’s spying in court.

While those who are eventually charged and brought to trial are supposed to have a chance to challenge the government’s surveillance, only a handful of criminal defendants have ever received notice as the statute requires. It’s unlikely that the government isn’t using evidence obtained with the help of Section 702 in criminal investigations and prosecutions. For example, the FBI has said that it routinely combs through its vast Section 702 databases when conducting both national security and ordinary criminal investigations.

The problem may be, instead, that the government is interpreting its duty to give notice far too narrowly — in order to avoid disclosing the spying in criminal cases. We’ve seen this kind of problem before. For five years up until 2013, the Justice Department unlawfully withheld notice of Section 702 surveillance from criminal defendants in every single case. The government eventually changed its notice policy under public pressure. But its new policy remains secret to this day, meaning neither the public nor courts can tell whether the government is providing notice as the law requires.

That brings us to our new FOIA lawsuit. The Justice Department confirmed in response to a FOIA request filed by the ACLU that, late last year, it distributed a 31-page memorandum describing its new policy — which affects both criminal and foreign-intelligence wiretaps — to federal prosecutors. The government, however, refused to release any portion of this memorandum. So we’re suing to get it.

It’s all the more important for the public to know how the government is providing notice of its spying activities because Section 702 of FISA is set to expire this year. As Congress debates whether to reauthorize the statute, information about how the Justice Department interprets its legal obligations is necessary for Congress and the public to have an informed debate about the merits of the law.

For that, it would help to know if the government is obeying it.

Video: CIA Officials Forced to Testify About Torture Program

American Civil Liberties Union - Wed, 06/21/2017 - 10:30
As the torture psychologists head to trial, ex-CIA officials speak frankly — and under oath — about the brutal program.

A lawsuit against the two psychologists who devised a CIA torture program reached another new milestone last month, as three victims asked a U.S. court to rule in their favor and to find that the psychologists were liable for aiding and abetting the illegal program.

The ACLU has filed a motion asking the judge in the case to rule that James Mitchell and Bruce Jessen played a critical role in designing, implementing, and profiting from the CIA torture program. Our clients are Suleiman Abdullah Salim, a fisherman from Tanzania; Mohamed Ben Soud, a Libyan citizen who opposed the Gaddafi regime; and Gul Rahman, an Afghan citizen who died as a result of his torture.

The motion came at the end of a months-long evidence-gathering process that was historic for survivors and victims of torture: It was the first time key people responsible for the program ever had to answer questions under oath in a civil lawsuit about torture. That discovery process shed new light on the CIA’s thinking; we provide video excerpts from those testimonies below.

The three plaintiffs — none of whom was ever charged with a crime by the United States — endured horrific cruelty at the hands of their torturers, including beatings, various forms of water torture, constant exposure to extreme temperatures and ear-splitting levels of music, confinement in stress positions designed to keep them awake for days at a time, and more. If the court finds that the defendants are indeed liable for aiding and abetting CIA torture, we’ll be fighting on behalf of our clients for damages and other liability claims in a trial later this year.

Our clients were among more than 100 men officially known to have been abducted and detained by the CIA in a network of secret prisons during the George W. Bush presidency. Previous lawsuits on behalf of the CIA’s victims, including those filed by the ACLU, were shut down at the insistence of the government, which claimed that they raised issues too secret for the justice system to hear. Salim v. Mitchell, however, marks the first time the program’s victims have been able to litigate their claims.

Below are excerpts from the depositions, conducted by the ACLU and our co-counsel from Gibbons law firm, of Jose Rodriguez, former director of the CIA’s Counterterrorism Center, and John Rizzo, who was acting general counsel at the agency for much of the program’s existence. They confirm that in devising and promoting the torture program, Mitchell and Jessen relied on theories that top CIA officials eagerly accepted with virtually no questions. All these years later, it remains jarring to hear the two men speak so matter-of-factly about a program hastily thrown together using perverse and unsupportable theories to brutalize helpless prisoners.

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At the time of the attacks of September 11, 2001, the agency had no experience in detention or interrogation. But on September 17, Bush authorized the CIA to capture and detain members of al-Qaida. (His order said nothing about interrogation, much less torture.) Mitchell and Jessen, two psychologists with experience training U.S. troops to resist abuse in case of capture, were brought on to devise what they called a “psychologically based program” that would use “fear and despair” to make prisoners talk.

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But neither Mitchell nor Jessen had any experience in real-world interrogations — only in mock sessions conducted on volunteer U.S. service members with protections in place to ensure their physical and psychological safety. “Nor did either have specialized knowledge of al-Qa'ida, a background in terrorism, or any relevant regional, cultural, or linguistic expertise,” notes a Senate study of the torture program, the executive summary of which was released in 2014.

Rodriguez, who was charged with steering the CIA’s new and dangerous authorities, did little to ensure Mitchell & Jessen’s qualifications.

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The CIA paid Mitchell and Jessen $1,800 per day to administer the torture of detainees. They ultimately earned millions for their work, both as individual contractors and through a company they created in 2005 to expand the program. By the time the CIA terminated its contract in 2010, it had paid Mitchell, Jessen & Associates more than $80 million in taxpayer money.

As Mitchell and Jessen were developing their torture techniques — referred to euphemistically by the government as “enhanced interrogation techniques” — the CIA wanted to ensure it could operate without the restraints of domestic and international law. In his testimony, Rizzo confirms that in the summer of 2002, after the CIA captured its first prisoner, he began a process to seek the formal commitment of the Department of Justice that CIA employees would not be prosecuted as a result of their brutal interrogations.

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The Justice Department refused to provide the CIA with that assurance. (It also never prosecuted anyone responsible for the CIA torture program.)

Rizzo also confirmed that Mitchell and Jessen were given extensive latitude to develop the program without the CIA undertaking basic research into the effects of using abusive methods on prisoners.

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Mitchell and Jessen’s techniques were built on a theoretical assumption that reducing detainees to a state of “helplessness” would make them compliant with interrogators’ demands. They based their theory on research into “learned helplessness” conducted in the 1960s on animals by psychologist Martin Seligman, who discovered that dogs that had been subjected to inescapable pain would eventually stop trying to avoid it. Seligman’s theory had never been tested on humans — because doing so would violate a host of laws prohibiting torture, cruel treatment, and human experimentation.

Senior CIA officials described their lack of interest in understanding the basis for the program Mitchell and Jessen were selling.

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Mitchell and Jessen were also tasked with evaluating their own work, from which they reaped huge profits. (The Senate report quotes complaints from CIA personnel over the clear conflict of interest, which the CIA later admitted was a mistake.) And from the very beginning, the program’s brutality was apparent: In the case of Abu Zubaydah, a detainee whom Mitchell and Jessen used as a test case, his torture persisted well after they were sure he could not provide information they had demanded.

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The torture of Abu Zubaydah and another early detainee was documented on more than 90 CIA videotapes, which Rodriguez famously ordered destroyed. After a years-long investigation, the Justice Department chose not to bring charges against him.

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As a deeply effective New York Times series makes clear, Suleiman Abdullah Salim and Mohamed Ben Soud remain, all these years later, deeply traumatized by their torture. Salim continues to suffer from crippling flashbacks because of what he calls the “darkness,” along other symptoms of post-traumatic stress disorder and depression. Alongside various physical ailments, Ben Soud too battles depression, anxiety, and more as a result of his treatment. The family of Gul Rahman — who died from hypothermia in 2002 after being tortured and left half naked and chained to the wall of a freezing-cold cell — has never been told where his body was taken and cannot give him a dignified burial. For our clients, along with every other prisoner who saw the inside of a CIA black site, the story of the torture program isn’t over. In fact, the refusal of the U.S. government to provide so much as an apology makes it much harder for them to heal.

But now, for three of the program’s victims, after many years of courthouse doors slammed shut in the face of survivors, there finally exists hope for justice.

What Is DACA and Has It Changed Under Trump?

American Civil Liberties Union - Tue, 06/20/2017 - 18:30
Here are some answers to basic questions about DACA.

You asked, we answered. Last week was the fifth anniversary of the Deferred Action for Childhood Arrivals program that provides work permits and a temporary reprieve from deportation for almost 800,000 young people who came to the United States as children, are undocumented, and meet certain stringent conditions.

The Q&A below is taken from a Facebook Live featuring Jessica Colotl, a DACA recipient whose DACA was recently revoked by the Trump administration, only to be reinstated by a judge; Michael Tan, a staff attorney in ACLU’s Immigrants’ Rights Project and Jessica’s lawyer; and Lorella Praeli, ACLU’s director of immigration policy.

How can we protect DACA?

Lorella Praeli: I think, in a lot of ways, in order to talk about how to protect DACA, it’s important to tell the story of how DACA happened. DACA happened because people had the courage to come out of the shadows, even though they maybe would have faced the risk of deportation or they were exposing their lives and making themselves vulnerable. We decided to come out and tell our stories. We decided to organize. And for all of the young people watching, as young people ourselves, we decided that we had the agency and the knowledge and the ability to develop our own strategy, to use every tool at our disposal, to make sure that we built our movement and that we built our campaigns.

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Lorella Praeli: And so when I came to D.C. in 2012, first in 2010, and all through 2011, there were people who were doing the work who had laid down the foundation. But we were still pushing space that didn’t think Dreamers had the right to be there, that didn’t think that young undocumented people could sit at the table and decide for themselves: This is the strategy, and this is the way that we’re going to go forwards. And so for all of you watching, really, when it comes to DACA, it is purely discretionary.

How does DACA change a recipient's situation?

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Jessica Colotl: I can now basically have the American Dream. I am able to work and live without fear. It’s a life-changing event when DACA happened. I went from not being able to work, not being able to drive, living in fear, not knowing what could potentially happen to me, how would my future unfold, to eventually having some sense of what I can do to help myself and how I could prepare better for the future. I came to the United States when I was 11 years, and I’ve been in the United States, and Georgia specifically, for over 18 years. That’s home to me. And once again, when DACA happened, I was just so blessed. And every time I think about it, I still feel goosebumps, when I knew that it was going to change the lives of many people like myself out there. People who in a way felt rejected by society. We were forthcoming and just happy to be part of a bigger community, as it should have been from the beginning.

Why don't undocumented people just do the right thing and get legal status?

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Lorella Praeli: We always get this question, which is why can’t they just get in line, why can’t they get legal, or do the right thing? And the answer is the whole point of the Dream Act, the whole point of fighting for common sense immigration reform, is to create that line that people can jump on. My mom now has a green card for the last few months, but if my mom at any moment when she was undocumented was given an opportunity to get on a line and pay and provide the documentations to say that she’s been here and come forward, she would have done it in a heartbeat. So that’s what we’re fighting for here at the ACLU. That’s what so many of our partners have been fighting on for more than a decade. And we are going to need you all to continue that fight.

Are applications for DACA currently being approved? How many people have gotten approved in 2017?

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Lorella Praeli:  So in terms of our applications currently being approved, they are being approved, but we encourage you to be careful and to make sure that you have an attorney who is reviewing your applications. And in terms of whether or not they will be approved in 2018 or throughout 2017, all we know is that it’s being approved right now and the USCIS actually released new updated data from the last three months since Trump has been in office. We don’t know if they will be approved in 2018. If they’re not, we will make sure to let you know, as will other organizations. But for now, they are being approved.

Victory! The Slants Are Officially Rock Stars of the First Amendment

American Civil Liberties Union - Mon, 06/19/2017 - 12:00
The Chinatown dance-rock band The Slants are the new poster children for the First Amendment.

The Supreme Court today struck down portions of the Lanham Act, a 1946 federal trademark law that allowed the government to deny “offensive” trademarks as a violation of trademark holders’ free speech rights. Agreeing with arguments made by the ACLU in its brief to the court, the justices held that the First Amendment prevents the government from withholding a substantial government benefit just because it doesn’t like what you have to say.

The court’s ruling makes a second, less formal determination: The Chinatown dance-rock band The Slants are the new poster children for the First Amendment.

The justices unanimously agreed that The Slants’ First Amendment rights were violated when the government claimed the right to control their speech in exchange for offering a trademark. The opinion warns against government moves to “silence or muffle the expression of disfavored viewpoints.” Fortunately, the risk of that kind of broad censorship is much lower after today’s decision.

The Slants chose their name to reclaim and redeem a racial slur often used against Asians and Asian-Americans.

Years ago, The Slants applied for a registered trademark, a massive financial benefit handed out by the federal Patent and Trademark Office (PTO). For any band with an aspirational following, a registered trademark means a lot: the right to brand yourself — and your products — with an expression of your choosing and a strong right to enforce your claim against fakers and counterfeiters. That makes the registration of trademarks a substantial government benefit. And if the First Amendment means anything, it means that the government can’t hand out benefits based on how much it agrees with the views you express.

There is absolutely no doubt that this particular trademark expresses a very clear message: The Slants chose their name to reclaim and redeem a racial slur often used against Asians and Asian-Americans. After they applied for the registration, the PTO examiner handling their application denied them a trademark — after Googling the band and discovering it was made up of Asian-American rockers. He thus determined that the band was using “slant” as a slur and denied their application under the Lanham Act.

That was censorship, pure and simple.

The Lanham Act is a federal law that — until today — permitted the government to deny registered trademarks determined to be “disparag[ing],” or otherwise “offensive” or “immoral” to a “substantial composite” of an affected group. And despite the fact that the members of the Slants are themselves part of the “affected group” in question, the PTO found the name too offensive for a registered trademark.

The Slants weren’t satisfied with that decision. And like the rock stars they are, they didn’t take it lying down. The band appealed the PTO’s decision to the U.S. Court of Appeals for the Federal Circuit, where we filed an amicus brief and provided oral argument to the court on the glaring First Amendment problems with the Lanham Act. The band — and the First Amendment — won. But the federal government appealed to the Supreme Court.

Watch: The Slants Perform at the ACLU

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And thank goodness it did!

Today the Supreme Court affirmed a core value of free speech: The government cannot withhold a benefit in order to limit or punish what it perceives to be offensive speech. And hopefully today’s decision will put a stop to the absurd practice of PTO examiners acting as formal speech police, Googling people to find out if they’re the “right kind” to receive a government benefit.

As with many things under the First Amendment, this decision may lead to uncomfortable results: Products with truly racist or sexist names will (continue to) appear on shelves and a certain Washington football team now undoubtedly gets to retain its own offensive team name, which lost its trademark in 2014 in a decision upheld by lower courts.

Let’s be clear: Unlike in the Slants’ case, there is no cultural reappropriation going on with the NFL team. But there’s no way to lawfully censor speech that offends us without allowing the government the power to censor speech that offends anyone — including The Slants’ band name. When we object to ideas that appear in our marketplace, the default response shouldn’t be to sweep them under a rug and pretend that they aren’t there, but rather call them out, boycott companies that make products that offend us, and ensure our spending reflects our values.

Censorship doesn’t just violate the First Amendment — it often doesn’t produce its intended results. As many activists who lived through the civil rights era, or protested in the streets just this past year, could tell you: Restrictions on free speech are often applied most stringently against groups trying to challenge the status quo.

The Slants are no exception. Decades of history have taught the ACLU that freedom of speech and racial justice are inseparable. And The Slants are now officially rock stars of both.

The ACLU’s brief on behalf of The Slants' First Amendment rights was filed along with the ACLU of Oregon, the ACLU of the District of Columbia, and a group of racial justice organizations.

My Father’s Gun Charge Almost Ruined My Family. Fair Sentencing Saved It.

American Civil Liberties Union - Fri, 06/16/2017 - 10:45
A son reflects on his father’s incarceration, gun violence, poverty, and reforming the criminal justice system.

I was raised by a single dad. Before he went to jail, I celebrated both Father’s Day and Mother's Day with just my father.

My dad was such a goofball. Our relationship was like Disney's “The Goofy Movie.” He was Goofy and I was Max. We had two mutual loves: our family and music. He raised me, my two younger brothers, and my younger sister in a row home in the Cobbs Creek section of West Philadelphia.

He taught me as much as he could about the Lost Boyz, EPMD, Rakim, and the Wu-Tang Clan. We listened to Biggie's “Life After Death” together every day for two weeks. I remember we pulled up the Knicks roster on NBA Live to debate who Biggie referenced on the classic, "I Got A Story to Tell." Who was 6'5 on their roster? And I remember when I convinced him to listen to Eminem, who he had previously written off as a punk white boy and just a fad. I changed his opinion with the “Marshall Mathers LP.” We also spent hours reading and relaxing to the Isley Brothers and Stevie Wonder.

We were poor. But we were improving. In August of 2005, just when things seemed to be improving for good, everything changed.

My dad pulled a gun on a man who threatened my little sister.

My sister was 17-years-old at the time. There was a block party on our street, and my father was listening to his music very loudly. He exchanged unpleasant words with a visitor to a neighbor's house. When my father went into the house to grab meat for the grill, the visitor began arguing with my sister. He was a grown man. She was a teenage girl.

Afterward, a few witnesses said a knife was pulled on my sister. Others say the knife was being used by the man to prep food for barbecuing. All my father heard was my sister screaming bloody murder and the word "knife."

My dad rushed out as my sister cried and the man screamed at her. Our German shepherd was barking. Neighbors were staring. It was bad situation. My dad made it worse. He got a gun, and put it on his waist. He walked out and lifted his shirt to intimidate the man.

My dad was doing very well in his life until that moment. After years of working minimum wage jobs at places like KFC and McDonalds, his friend helped him get a job at Oldcastle Glass. It was the best paying job he had ever had. We had good health insurance. My dad had a son in college. He was finally starting to get caught up on the reverse mortgage his parents had on the home we inherited. We were fighting our way out of poverty.

Damn Dad.

My father was arrested and charged with possession of a firearm by a felon. In 1989, while struggling with drug addiction, he pleaded guilty to committing a strong arm robbery. But by 2005, he had been away from the criminal justice system for 16 years. He’d dedicated his life to his children in tribute to his mother, Verpiline, who had died of cancer and asked him to raise his children to the best of his ability.

My dad’s bail was set at $1500, and we had to pay 10 percent to get him out. I paid $150 the next day, and he was released from prison. Months later, at a preliminary hearing, the prosecutor added extra charges — threats, possession of a firearm in public, and concealed possession of a firearm — and asked that the bail be raised to $15,000. I needed $1,000 cash to get him out this time. I was a student in college and had no idea where I was going to get the money.

My dad called me from prison crying. I said I’d get the money. He said to stay at school. I had been shot four months earlier, and he didn't want me coming back to the neighborhood. He worried I’d sell drugs to get the money. He had so many fears then. I'll never forget him frantically repeating, "Don't forget to call my job. Kevin, I'm serious. Please call my job and tell them I will be back in a few days. Please."

That same night, my little sister called me to say they didn’t have anything to eat in the house, that they were alone and didn’t know what to do. I called my neighborhood friends and asked them to give my sister $50 to buy groceries. The weekend after finals, I came home and did everything I could to get the money short of selling dope. I begged and I borrowed. Ten days later, I bailed my Dad out with $1,000 from family and friends — the same community members the $1,000 allegedly made more safe.

Dad lost his job waiting to be bailed out. After his release, he interviewed for jobs, but with an open felony gun case, he did not stand a chance. He spiraled into depression. He never worked again.

He was eventually found not guilty of those new charges, the ones that went along with his bail increase that kept him behind bars, made him lose his job and health insurance, prevented him from providing for his kids while he was awaiting trial. He was convicted of being a felon in possession of a firearm. He accepted that. I, on the other hand, did not accept that the bail system’s collateral damage included me, my younger siblings, and my father’s health.

My dad was sentenced on my 21st birthday. The prosecutor requested jail time because the guidelines called for it. We were lucky that the judge in the case, despite the guidelines, sentenced him to house arrest. That judge later became my mentor and signed my admission to the Pennsylvania Bar. I'm forever indebted to the judge for giving my family the opportunity to spend my father's last three years of life with him. The sentence also provided me with the flexibility to start law school.

Just as bad bail practices hurt my family, fair sentencing saved it.

I feel strongly about criminal justice reform. I feel that way as the victim of gun violence, as a former gun violence prosecutor, and as the son of a man who went to jail because of a gun charge.

My hometown of Philadelphia has a poverty problem, and we should be dedicated to improving it. That includes voting for district attorneys and judges who will execute the law based on fairness and legislators who will reform the law based on common sense and what is best for the community.

I was a prosecutor. Now I’m a defense attorney. I’ve seen all sides of the criminal justice system. The only way to protect families is to reform it.

In Rhode Island, Some Schools Think They Have the Right to Spy on Students With School Laptops

American Civil Liberties Union - Thu, 06/15/2017 - 17:15
School officials can secretly access school-issued laptops at a student’s home without any suspicion of wrongdoing.

Students today have a lot to worry about: passing that pesky biology class, getting into college, and mastering the perfect Snapchat filter, to name just a few examples. However, there is one concerning matter that many of them are not aware they should be worried about: their school spying on them while using their school-loaned laptop.

Most Rhode Island school districts participate in “1-1” programs — in which third parties provide free laptop devices to students for the school year. While that should be a good thing, the details are a bit more complicated. We recently found out that most of the state’s participating schools give themselves the ability to remotely spy on their students through these loaned devices.

We published our findings early this month in a report titled “High School Non-Confidential: How School-Loaned Computers May Be Peering Into Your Home.” The report found that more than 60 percent of Rhode Island school districts today participate in the 1-1 program. It also discovered that a majority of those districts allow school officials or administrators to remotely access the device — while a student is at home, without their knowledge, and without any suspicion of misconduct. We know from an outrageous Pennsylvania case, in which school administrators were found to have activated webcams to spy on students in their homes, that this obvious privacy concern is not hypothetical. Yet only six districts specifically stated in their policies that they would not remotely access the webcams or microphones of devices distributed through the programs. 

Consider how creepy it is for any school official to be able to remotely and secretly peer over your shoulder while you’re in the safety of your home. And webcams aren’t the extent of the threat. Without proper policies, schools can also access the keystroke and browsing histories of students participating in the programs. George Orwell’s “1984” is standard required reading in schools. Administrators would do well to revisit it.

We also found that many schools equate the blanket access to computers that their policies allow to their right to inspect student lockers. This is a problematic analogy because lockers are actually in school at all times. School-loaned devices are designed for portability — and students are encouraged to use them at home. In addition to the obvious Fourth Amendment implications of such a search, there are First Amendment concerns as well. Unlike a locker, a search of a computer can reveal tons of documents, files, messages, social media activity, and other classic elements of “speech.” We’ve also seen that invasions of privacy chill free speech and free association — both critical to development and effective learning.

We’re not against school-loaned devices, but the policies that govern these programs need some work when it comes to civil liberties. In denying students their right to privacy, we are limiting their learning and teaching them that they are all suspects in the eyes of authority. Additionally, it shouldn’t be the case that wealthier students who can afford to use their own devices get to keep their privacy, while other students are forced to take the device and surrender their privacy — or keep their privacy, turn down the device, and hurt their education. No one’s privacy should be conditioned on their socioeconomic status.

There are ways to fix this. The ACLU has written a model bill that any state can adapt to protect its students. In Rhode Island, a bill that largely mirrors the model bill has been introduced in the state legislature. It would limit when an administrator or third party can remotely access devices to instances where there is reasonable belief that misconduct, as spelled out in school policies, took place, or if a warrant is present.

No child should have to trade away privacy in exchange for access to cutting-edge technology. Schools should be taking the lead in protecting their students

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