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A Backroom Deal Threatens to Weaken Real Police Reform in New York City

Fri, 12/15/2017 - 16:00
Mayor De Blasio and other politicians have joined forces with the NYPD to dilute a police accountability bill.

On Tuesday, the New York City Council will vote on two police accountability bills. One represents real reform that will protect New Yorkers' privacy rights when police ask to search them without probable cause. The other is faux reform that is the result of a backroom deal between powerful politicians and the New York Police Department.

For more than five years, the two bills were collectively known as the Right to Know Act. Intro 541-C and Intro 182-D deal with improving communication and transparency during police stops and searches. 541-C, sponsored by Council Member Antonio Reynoso, will require the NYPD to develop a policy that instructs officers to let people know when they have the right to refuse to be searched. And when they conduct a “consensual” search, officers will also have to get video or written proof that an individual consented.

Intro 541-C is real, concrete reform that will improve the quality of policing in New York City and enhance trust and accountability in police-community interactions. The legislation is the result of relentless efforts by police reform advocates, including the New York Civil Liberties Union and grassroots-led coalitions like Communities United for Police Reform (CPR), to develop a Right to Know Act that is truly protective of people’s rights.

The same, however, cannot be said for the latest version of Intro 182-D. Earlier versions of that bill required officers to identify themselves at the start of low-level law enforcement encounters, provide an explanation for why they stopped someone, and offer the person a business card at the end of any encounter that didn’t result in an arrest or summons. This common-sense proposal was a direct response to the experiences of people of color who were subject to repeated, unlawful abuse and harassment by the police during low-level encounters and who were routinely denied the most basic information needed to hold officers accountable: the names of the officers who mistreated them.

The earlier versions would have created a check on the power imbalance that officers have in these types of interactions. It’s easy to understand why a person would feel too intimidated when being confronted by police to ask for their name, especially if an officer is being abusive.

Unfortunately, the latest version of the ID bill has a huge loophole that swallows the original intent of the law. Under prior versions, officers would need to identify themselves in any nonemergency encounter involving investigative questioning. These types of encounters represent the vast majority of police stops. The new version only requires officer identification when a person is “suspected of criminal activity.” The problem is that police don’t need to suspect someone of criminal activity to approach them, disrupt their daily routines, and question or harass them.

There is no systematic accounting for these encounters, so it is impossible to know the full extent to which New Yorkers are subjected to these types of interactions. What we do know — and what our community partners have reported in abundance — are the countless examples of New Yorkers who have been profiled, harassed, and intimidated by police, even when they were never accused of or suspected of criminal wrongdoing. And we do know of countless reports of officers responding to a request for their name and badge number as an affront or challenge to their authority.

This bill is especially disappointing for New York women, who are far more likely to experience these lowest-level encounters in which harassment regularly takes place. The bulk of interactions between officers and women would be exempt from this version of the law. Citywide, 40 percent of young women report being sexually harassed by police. In the current cultural climate, where each day brings new allegations of sexual misconduct by public officials, we cannot ignore the experiences of New Yorkers who identify as women.

The ID bill’s current incarnation is the result of a deal between the legislation’s sponsor, Ritchie Torres, the NYPD, Mayor Bill de Blasio, and Council Speaker Melissa Mark-Viverito. Community groups were completely shut out of the conversation at the last minute. The result is a missed opportunity at genuine progress on a common sense bill that requires very little of the police and could dramatically shift the culture of policing in New York City.

In Florida, the Racist War on Drugs Rages on

Fri, 12/15/2017 - 14:00
A Florida newspaper’s investigation found drug enforcement against Black people is much harsher than against white people.

A new report from The Sarasota-Herald Tribune has found that drug enforcement in Florida treats Black people much more severely than white people. This follows a Tribune report in 2015 exposing prejudice in Florida’s sentencing practices, showing that Blacks are punished with significantly longer prison sentences than whites convicted of the same crimes with similar facts.

Disturbing? Absolutely. Unjust? Completely. Surprising? Not at all.

The results of the Tribune’s investigation are sadly expected in America because the drug war has been a war against people of color since its inception decades ago. Data, studies, reports, and court decisions on stops, arrests, charges, pleas, and sentencing reach the same shameful conclusion: Blacks are treated far more harshly than whites.

The report found that in drug cases, Black people spend two-thirds more time behind bars than white people. Blacks were almost three times more likely to be charged with committing crimes in “drug free” zones than whites , which enhances the severity of a sentence. Again unsurprisingly, Black people account for two-thirds of such enhanced convictions statewide. This is partly because in many urban areas, schools, churches, and public housing are closely spaced, such that entire Black communities – and not by coincidence – are deemed “drug free” zones in which drug offenses are subject to more draconian punishments.

These racial disparities in the state continue to persist in the face of an opioid crisis that has had a particularly destructive impact on white Floridians. Eighty-three percent of deaths from opioid overdose in Florida are of whites — which mirrors nationwide data — yet drug law enforcement falls heaviest on Blacks, demonstrating just how deeply the racist roots of the drug war run.

The cause of such disparities lies not only with judges’ abuse of their sentencing power but with prosecutors’ abuse of their charging discretion. Prosecutors are less likely to seek drug-free zone sentencing enhancements and mandatory minimum sentences, and more likely to dismiss charges, in the cases of white defendants. Put another way, prosecutors are more likely to seek harsher sentences and go forward with cases against Black defendants.

This new data backs up the hard truth that the war on drugs is still raging in America, it is still racist, and it is still disproportionately devastating communities and people of color. In 2013, the ACLU published a national report on marijuana arrests and found that Blacks are almost four times more likely to be arrested for marijuana possession than whites despite comparable usage rates. The report called for the legalization of marijuana across the country.

Last year, the ACLU and Human Rights Watch issued a report on the harms of criminalizing drug possession in the United States — with someone arrested for drug possession every 25 seconds — and found that even though Black adults accounted for only 14 percent of those who use drugs, they represent one-third of those arrested for drug possession.

The racial injustice of the drug war is a primary reason the ACLU has called for an end to drug prohibition and demanded public health and economic solutions to what is a public health crisis. But beyond racism, the drug war itself has been a catastrophic fiasco. It has wasted billions of dollars, helped fuel the incarceration of millions, and caused devastating harm to people of all races. It has done this while failing to reduce drug abuse.

Several countries have already ended their wars on drugs, the best known of which is Portugal. Following drug law reform, overdose deaths dropped more than 85 percent in Portugal, which has the lowest drug mortality rate in Western Europe. Per one million people, there are 364 drug-related deaths every year in America. In Portugal, there are six per million. Enough said.

While ending the drug war won’t end other manifestations of racism in the criminal justice system, it will remove one of the system’s most frequently used and abused tools to harm and overcriminalize communities of color. Fighting for racial justice means reforming the criminal punishment system, and that has to include ending the war on drugs.

The Fight for Open Transgender Military Service Is Only Beginning

Fri, 12/15/2017 - 11:45
The Trump administration is fighting in court to implement its trans military ban.

Earlier this week, media reports incorrectly reported that the Pentagon would begin allowing transgender people to enlist in the military despite President Trump’s opposition.

First, in a misleading tweet, the Associated Press reported that the “Pentagon says it will allow transgender people to enlist in the military beginning Jan. 1, despite Trump's opposition.” The tweet and subsequent reports made no mention of the court orders requiring the Trump administration to permit transgender people to enlist or the government appeals seeking to stop enlistments from happening. The suggestion that the Pentagon was defying the president or that there was some goodwill in the administration towards transgender individuals was inaccurate and grossly misleading.

The reporting has since been updated to reflect the actual state of pending litigation, but widespread misinformation about the status of the ban gave a false sense of security that trans people will be able to enlist in the military once the new year begins. But in reality, the Defense Department is fighting back in court to stop transgender people from enlisting and continuing to try to implement the president’s discriminatory ban targeting transgender individuals who currently or intend to serve in the military.

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Three federal courts have now put a preliminary stop to President Trump’s ban on transgender people serving in the military, which he first announced on Twitter in July of this year. Courts in the District of Columbia, Washington, and Maryland have held that the president’s ban is likely unconstitutional and stopped its enforcement while the cases make their way through the courts.

Under existing court orders, the government cannot discharge service members just because they are transgender, must provide medically necessary health care to currently serving individuals who are transgender, and cannot bar enlistment into the military by transgender recruits beginning on January 1, 2018. On Tuesday, the government filed an emergency stay application in the ACLU’s case seeking to continue barring transgender people from enlisting in the U.S. military into the new year. Last week, the government filed a comparable motion in a District of Columbia case, which was rejected by that court.

The ACLU is fighting back every step of the way. This week we are opposing the government’s efforts to put our victory on hold and we will continue to fight back through the courts, over the holidays, and into the future, until we can rest assured that we have obtained justice for transgender service members.

Our clients are men and women who are transgender who have been serving this country for years, some of whom want to commission as officers but would be barred from doing so by the president’s proposed ban on enlistments by transgender individuals. While the president’s ban stigmatizes and threatens transgender service members every day, these brave individuals are continuing to fight for their careers, their fellow service members, and for the Constitution.

Alabama’s Effort to Suppress Black Vote Couldn’t Prevent Huge Turnout

Thu, 12/14/2017 - 14:45
Decades trying to stop African Americans from voting backfired, but Alabama needs to improve access to the ballot.

Some 1.3 million Alabamians – more than twice as many who voted in the primary – turned out to vote in Tuesday’s special election to fill the U.S. Senate seat vacated by Attorney General Jeff Sessions. The turnout was extraordinary because it took place in a state that has a well-documented history of trying to suppress the vote of the very group that helped propel Doug Jones to victory.

Alabama has a long record of suppressing the African-American vote. In the Jim Crow era, state authorities made it impossible for many Blacks to vote by requiring a literacy test. Courts long ago deemed literacy tests discriminatory and illegal, but today we still see barriers in Alabama that make it harder for people of color to cast a ballot.

There is no question that those efforts work. The ACLU of Alabama set up a hotline to report difficulties in voting on Election Day, and received complaints all day. But those efforts were not enough. According to exit polling, 30 percent of those who voted in Tuesday’s race were African American, and 96 percent of them voted for Jones.

One of the most obvious ways officials have attempted to suppress the African American vote is by imposing a requirement that voters have one of a limited set of forms of photo ID, while, at the same time, making it more difficult to obtain photo ID by closing 31 driver’s license offices in counties — including every county in which African Americans are 70 percent or more of the population.

State officials denied that these closures caused a “disparate and adverse effect based on race,” as a federal investigation determined. The state was ordered to reopen the offices, but many of the offices were reopened on a very limited schedule. For example, a person in Sumter County, which is majority African American, can only visit the driver’s license office on the second and fourth Tuesday of the month from 8-12pm or 12:30-2:30pm to get a driver’s license or non-driver ID. If they arrive without the proper paperwork to get the identification, they must wait an entire month before trying again.

On Election Day, one man from Mobile called the ACLU hotline saying that he was probihited from voting because the address on his driver’s license did not match the address where he was registered. He went home and got his passport, but was told he couldn’t use that either. He was eventually able to vote, but after the ACLU intervened to help him.

In addition to restrictive voter ID laws, Alabama authorities refuse to provide voter education. When any measure is taken to expand voting rights, state officials refuse to provide any voter education to spread the word.

Last year, Alabama Secretary of State John Merrill was quoted in a documentary about voting rights, saying, “As long as I’m Secretary of State of Alabama, you’re going to have to show some initiative to become a registered voter in this state.”

A few months ago, after a new law passed allowing for certain Alabama individuals with felony convictions to be able to regain their voting rights, Merrill claimed it was not his responsibility to notify those voters that they are eligible to vote again.

Another law passed last year made crossover voting illegal, meaning that someone voting in one party’s primary could face fines and jail time if they voted in the other party’s primary run-off. Following the Republican primary run-off between front runners Roy Moore and Luther Strange, Merrill said that 674 people who voted in the run-off had also voted in the Democratic primary and recommended that they be prosecuted. Eventually, Merill found that the number was the result of an administrative error, but his recommendation that crossover voters be prosecuted led many to believe that voting incorrectly or against your party could lead to jail time.

After he was asked to clarify that the crossover voting law does not apply to the general election, he said, "That doesn’t confuse me, and I don’t know why it would confuse anybody that’s a thinking person in the state."

And most recently, on the eve of the special election, Merrill appealed a ruling to the Alabama Supreme Court that would have required election officials to save digital copies of the ballots during the Senate race. The court agreed with Merrill, so his office did not save any of the ballot images. These actions represent a pattern of misleading information and a resistance to transparency from the person elected to preserve the integrity of our elections.

Another recently passed Alabama law bans any political group from making financial contributions to any other political group for any purpose. That law made it more difficult to mobilize African American voters in Alabama because it banned contributions to organizations like the Alabama Democratic Conference, the leading get-out-the-vote organizer for African American communities.

And then there is the bureaucracy. In order to have your vote counted in an election in Alabama, you need to register to vote 14 days before the election, which you can do online but only if you have an Alabama driver’s license or non-driver ID. Otherwise it has to be mailed in or filed in person. If you miss the deadline, you’re out of luck.

To vote absentee, you need to apply for an absentee ballot five days before an election and return it one day before the election unless you have a work or medical emergency and then only if you have verifiable proof that you satisfy one of five reasons for being unable to vote during normal polling hours.

You also need to make sure you don’t skip voting in an election, or you might be marked as “inactive” on the voter registration rolls. This sometimes happens even if you haven’t moved and you voted in the last election. If you are marked as “inactive” but you are at the right location, then you need to fill out a form to update your information, which will allow you to complete a regular ballot, but only if you know specific details such as the county you were born in. If you are marked “inactive” but your polling place has moved or you have moved, then you can only submit a provisional ballot, which will only be counted if you are at the correct polling location.

Confused yet? That’s the point.

The ACLU hotline had numerous complaints on Tuesday from people who were told they could not vote because they were “inactive.” They had to wait for an hour and a half to fill out the necessary paperwork to cast a regular ballot.

If you can’t jump through the right hoops, well then, Alabama says you don’t deserve to vote. On Tuesday, the stakes were high and voters were able to jump through those hoops, but it shouldn’t be this hard. These unnecessary laws and practices need to change so that more people can participate in our democracy. In 2017, it should not be this hard for any citizen to cast a ballot and be heard.

New Mexico Sheriff’s Office Pulls Over the Same Black Federal Agent — Three Times in a Month

Wed, 12/13/2017 - 17:30
The ACLU of New Mexico sues the Bernalillo County Sheriff’s Office for the racial profiling of an ICE agent.

By the third time Sherese Crawford got pulled over, she knew it was no matter of coincidence.

Crawford is a 38-year-old African-American Immigration and Customs Enforcement agent recently on temporary assignment in Albuquerque, New Mexico. As part of her work, she was regularly required to rent a car and drive a lonely stretch of I-40 to travel between the ICE field office in Albuquerque and Milan, New Mexico. Over the course of less than a month, she was pulled over three times by the Bernalillo County Sheriff’s Office — twice by the same deputy.

In none of these stops was she given a warning or citation. Her only crime: driving while black.

The first of the three incidents occurred on April 5, when Deputy Leonard Armijo pulled Crawford over, claiming that he had searched a database for her license plate number and the license plate came back as not on file, indicating that the vehicle might be stolen. This is a highly unlikely claim given that Crawford was driving a rental car provided by ICE.

When Crawford asked him in utter confusion, “What did I do?” Deputy Armijo forced her to exit the vehicle and walk with him to his patrol unit, where he scolded her for “giving him an attitude.” After this incident, Ms. Crawford contacted an ICE supervisor in Albuquerque to complain about the pretextual traffic stop, and the ICE supervisor advised her that the sheriff’s deputy had likely stopped her because she fit a profile: an African-American in a rental car.

That profile got her stopped two more times on April 15 and May 3 by Bernalillo County Deputy Patrick Rael. In the April 15 stop, Deputy Rael pulled her over for allegedly tailgating. When he examined Crawford’s license, he recognized her name and asked her if they had pulled her over the week before. He said he remembered Crawford’s name because an ICE officer and sheriff’s deputy present at the first stop had said that she had an “attitude.” Two weeks later, Deputy Rael pulled over Crawford for a third time alleging she was driving “too slow.”

These three incidents taken together clearly show that the Bernalillo County Sheriff’s Office has an unconstitutional policy of racially profiling African-Americans. For context, white and Hispanic ACLU of New Mexico staff have been driving the same stretch of road in rental cars for years without incident. It is impossible to imagine that these three stops in close succession with no warning or citation were motivated by anything other than Crawford’s race, especially given that Bernalillo County is overwhelmingly white and Hispanic with only three percent of the population reporting as Black or African-American.

Last week, the ACLU of New Mexico filed a lawsuit against the sheriff’s office alleging that they unlawfully and repeatedly stopped Crawford, a veteran federal law enforcement agent, because of her race. Targeting people because of the color of their skin isn’t just unconstitutional and wrong, it’s bad policing. This kind of biased-based policing destroys public trust in law enforcement and divides communities, making it harder for officers to do their jobs.

As one of the most diverse and multicultural states in the country, racial discrimination has no place in New Mexico, especially not in one of our state’s largest law enforcement agencies. We’re fighting to ensure that anytime you see flashing lights behind you in our state, you can feel confident that it was your lead foot — not the color of your skin — that’s getting you pulled over.

Ferguson’s School Board Elections Dilute the African-American Vote

Wed, 12/13/2017 - 10:30
Ferguson’s ‘at large’ electoral system continues to violate the Voting Rights Act.

The Ferguson-Florissant School District was born out of a 1975 federal desegregation order, intended to remedy effects of historical discrimination against African-American students.

Yet, as recently as 2014, the school board was all white, and its members had not had a racial make-up that reflects the district’s population in the 12 years prior. Slightly less than half of the voting-age residents of the district are African-American, as are roughly 80 percent of the students who attend the public schools. While some African-American candidates have been elected to the school board in the last few years, recent victories do not erase the district's long history of racial exclusion and inequality.

The decades-long representational disparities stem from the at-large voting system used to elect school board members, which systematically disadvantages African-Americans from electing candidates of their choice by diluting the power of their vote. In 2014, the ACLU sued and, two years later, took the school district to court in a six-day trial, where a federal judge ultimately found that the at-large electoral system “essentially blocked African American voters from exercising effective political power in the District.” Judge Sippel then ordered the school district to change the electoral system to remedy the Voting Rights Act violation.

Instead, the school district appealed the court’s ruling. Now, we are back in court before the Eighth Circuit to ensure that the school district does not continue to use an electoral process that results in discrimination on the basis of race.

Here’s how the school district’s at-large voting system works: Each of the seven school board seats is elected by the entire district, otherwise known as an “at large” system. Voting in Ferguson is highly polarized along racial lines — African-American voters and white voters tend to prefer different candidates in each election. Because African-Americans comprise 48 percent of the voting age population in the district, it is difficult for them to elect a candidate of their choice in an at-large system, where the entire district weighs in for each seat.

Section 2 of the Voting Rights Act prohibits the application or imposition of any “voting qualification or prerequisite to voting or standard, practice, or procedure” that “results in denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The VRA also prohibits vote dilution, which is the use of an electoral scheme — such as Ferguson-Florissant’s at-large method — that weakens the voting strength of minority voters and consequently denies those voters an equal opportunity to elect candidates of their choice.

This had led to years of underrepresentation for African-American residents of Ferguson in local government, and the consequences have been stark. The lower court found that “there is significant evidence that the African American community in FFSD has particularized needs concerning several issues, including unequal school resources and policies within FFSD, the disparate use of school discipline against African American schoolchildren, disparate educational opportunities for African American schoolchildren, and racial profiling by law enforcement.”

In Ferguson, the lower court made the right call to begin correcting historical wrongs. We are asking the Eighth Circuit to affirm that ruling, requiring the school district to change its ways and institute an electoral system that truly protects the power of every vote. Discrimination once entrenched remains in place until it is systematically uprooted.

New York City Takes on Algorithmic Discrimination

Tue, 12/12/2017 - 15:45
The city will create a task force to review its agencies’ use of algorithms and the policy issues they implicate.

Invisible algorithms increasingly shape the world we live in, and not always for the better. Unfortunately, few mechanisms are in place to ensure they’re not causing more harm than good.

That might finally be changing: A first-in-the-nation bill, passed yesterday in New York City, offers a way to help ensure the computer codes that governments use to make decisions are serving justice rather than inequality.

Computer algorithms are a series of steps or instructions designed to perform a specific task or solve a particular problem. Algorithms inform decisions that affect many aspects of society. These days, they can determine which school a child can attend, whether a person will be offered credit from a bank, what products are advertised to consumer, and whether someone will receive an interview for a job. Government officials also use them to predict where crimes will take place, who is likely to commit a crime and whether someone should be allowed out of jail on bail.

Algorithms are often presumed to be objective, infallible, and unbiased. In fact, they are highly vulnerable to human bias. And when algorithms are flawed, they can have serious consequences.

Just recently, a highly controversial DNA testing technique used by New York City’s medical examiner put thousands of criminal cases in jeopardy. Flawed code can also further entrench systemic inequalities. The algorithms used in facial recognition technology, for example, have been shown to be less accurate on Black people, women, and juveniles, putting innocent people at risk of being labeled crime suspects. And a ProPublica study has found that tools designed to determine the likelihood of future criminal activity made incorrect predictions that were biased against Black people. These tools are used to make bail and sentencing decisions, replicating the racism in the criminal justice system under a guise of technological neutrality.

But even when we know an algorithm is racist, it’s not so easy to understand why. That’s in part because algorithms are usually kept secret. In some cases, they are deemed proprietary by the companies that created them, who often fight tooth and nail to prevent the public from accessing the source code behind them. That secrecy makes it impossible to fix broken algorithms.

The New York City Council yesterday passed legislation that we are hopeful will move us toward addressing these problems. New York City already uses algorithms to help with a broad range of tasks: deciding who stays in and who gets out of jail, teacher evaluations, firefighting, identifying serious pregnancy complications, and much more. The NYPD also previously used an algorithm-fueled software program developed by Palantir Technologies that takes arrest records, license-plate scans, and other data, and then graphs that data to supposedly help reveal connections between people and even crimes. The department since developed its own software to perform a similar task.

The bill, which is expected to be signed by Mayor Bill de Blasio, will provide a greater understanding of how the city’s agencies use algorithms to deliver services while increasing transparency around them. This bill is the first in the nation to acknowledge the need for transparency when governments use algorithms and to consider how to assess whether their use results in biased outcomes and how negative impacts can be remedied.

The legislation will create a task force to review New York City agencies’ use of algorithms and the policy issues they implicate. The task force will be made up of experts on transparency, fairness, and staff from non-profits that work with people most likely to be harmed by flawed algorithms. It will develop a set of recommendations addressing when and how algorithms should be made public, how to assess whether they are biased, and the impact of such bias.

These are extremely thorny questions, and as a result, there are some things left unanswered in bill. It doesn’t spell out, for example, whether the task force will require all source code underlying algorithms to be made public or if disclosing source code will depend on the algorithm and its context. While we believe strongly that allowing outside researchers to examine and test algorithms is key to strengthening these systems, the task force is charged with the responsibility of recommending the right approach.

Similarly, the bill leaves it to the task force to determine when an algorithm disproportionately harms a particular group of New Yorkers — based upon race, religion, gender, or a number of other factors. Because experts continue to debate this difficult issue, rigorous and thoughtful work by the task force will be crucial to protecting New Yorkers’ rights.

The New York Civil Liberties Union testified in support of an earlier version of the bill in October, but we will be watching to see the exact makeup of the task force, what recommendations are advanced, and whether de Blasio acts on them. We will also be monitoring to make sure the task force gets all of the necessary details it needs from the agencies.

Algorithms are not inherently evil. They have the potential to greatly benefit us, and they are only likely to become more ubiquitous. But without transparency and a clear plan to address their flaws, they might do more harm than good.

ACLU Complaint Warns of Privacy Risks From Kobach’s Voter Data Scheme

Tue, 12/12/2017 - 15:00
The man at the helm of the White House’s voter suppression efforts has a terrible record that just keeps getting worse.

The ACLU’s Voting Rights Project today amended our complaint in ACLU v. Donald Trump, our lawsuit against the White House’s voter suppression commission, led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach.

In addition to the ACLU’s existing transparency and fair balance claims, the amended complaint charges that the commission has acted arbitrarily and outside the scope of its legal authority. In making its unprecedented decision to aggregate the personal data of every registered voter in the United States, the commission failed to properly consider, for example, the cybersecurity and privacy implications of compiling this sensitive data. In addition, investigating records of individual voters goes well beyond the commission's mandate to study and make recommendations concerning registration and voting processes.

Kobach’s record on this matter is extremely troubling. His prized voter monitoring system, Crosscheck, which stores millions of voter files and is ostensibly meant to stop people from voting in more than one state, has serious defects. It not only produces erroneous findings, but it is also open to massive security risks.

Gizmodo found that “the records passing through the Crosscheck system have been stored on a server in Arkansas operating on a network rife with security flaws” and that “multiple sets of login credentials” have been compromised. ProPublica similarly discovered that security vulnerabilities, like hosting files on an insecure server and sharing login credentials over email, “could imperil the safety of millions of peoples’ records.” And security analysts warned in a recent court brief that Kobach’s plan to collect millions of files containing voters’ personal information “would constitute a treasure trove for malicious actors.”

The Kansas Secretary of State’s problems don’t end there: His commission is so troubled that it is even facing a lawsuit from one of its own members.

The suit filed last month by Maine Secretary of State Matt Dunlap, a Democrat, claims that the panel’s “superficial bipartisanship has been a façade.” The complaint, reports Politico, also alleges that “Secretary Dunlap and the other Democratic commissioners have been excluded from the Commission’s work” and “deprived access to documents prepared by and viewed by other commissioners.” Such partisanship and secrecy put the commission in violation of the Federal Advisory Committee Act, which requires that federal commissions be transparent to the public and fairly balanced.

Kobach could face further legal trouble due to his role as a paid writer for Breitbart News. According to Citizens for Responsibility and Ethics in Washington, Kobach may have broken conflict of interest law by writing a (wildly inaccurate) paid article on voter fraud for Breitbart, which he then used for his commission’s work.

The commission, nonetheless, is still pushing the voter fraud myth. One member, J. Christian Adams, recently sent a letter demanding that the Department of Justice pursue more voter fraud cases. This is not surprising, for years Adams has sent letters to local officials demanding that they purge their voter rolls in order to combat the problem of rampant voter fraud, with Mother Jones finding that he was “targeting” areas with large minority and Democratic populations.

Back in Kansas, Kobach has faced criticism from disability rights advocates, who have highlighted the harmful impact of his restrictive voting policies. In one local election, 23 people with disabilities had their mail-in ballots tossed over questions about their signature. Rocky Nichols of the Disability Rights Center of Kansas told Newsweek that the new signature requirements are “a problem for people with disabilities” who “don’t have the same ability to mark a ballot as you did when you were younger.”

This is just one of many problems that have emerged in Kansas elections under Kobach’s watch. But Kobach isn’t content with wreaking electoral havoc in one state. Now, through his White House commission, he has the chance to bring this disaster nationwide. Americans must remain vigilant — and demand that their elected officials focus on the real issues which impact our voting rights, such as ensuring secure and reliable voting systems and encouraging voter participation.

‘You’re Fucked’: The Acquittal of Officer Brailsford and the Crisis of Police Impunity

Tue, 12/12/2017 - 14:45
The execution of Daniel Shaver demonstrates the importance of police training.

Two words stick in my mind when I think of the video of Daniel Shaver begging for his life before he was shot and killed by Officer Philip Brailsford of the Police Department in Mesa, Arizona. The two words were written on the dust cover of the AR-15 rifle Braisford used to kill Shaver:

“You’re fucked.”

We have seen this movie before. Daniel Shaver was not armed or committing any crime when was he shot to death by Brailsford. Like many previous police shooting videos, this one shows police behaving much more aggressively than Mr. Shaver. And like previous videos, a jury acquitted the officer of all criminal charges. But this video showed us two things about policing culture in America that stand out. First, the video shows Shaver begging for his life while he tried to follow contradictory instructions screamed at him by an officer. And Shaver was white.

Shaver had a job killing pests. Sometimes he used a pellet gun to get the job done, and he was seen holding the gun by people at the hotel. When the police were called, they were told a man had a gun so they had to be careful.

I get it. But how far does that information take us?

At trial, the officer emphasized the danger of a potentially armed person and claimed that what he did was consistent with his training. But if that ends the inquiry, it will be almost impossible to convict a police officer of a crime for shooting anyone. There is an argument that this is already the reality in America.

In the 12 years between 2005 and April 2017, only 80 officers have been arrested on murder or manslaughter charges for on-duty shootings, according to work by Philip Stinson, an associate professor of criminal justice at Bowling Green State University in Ohio. The Washington Post reported that between 2015 and 2017 police shot and killed 2,884 people. Police shoot and kill numerous people every year and are hardly ever held accountable.

Shaver and a companion had been ordered out of a hotel room and told to get on the floor. The video shows him being neither hostile nor resistant. On the video you can hear one of the officers screaming, “If you make a mistake, another mistake, there is a very severe possibility you’re both going to get shot … if you move, we are going to consider that a threat, and we are going to deal with it, and you may not survive it.” The police are screaming that the cost of a mistake is death — what kind of training teaches that as a proper way to deal with people?

Do you think an innocent person might get nervous if an AR-15 was pointed at him while the police officer was screaming commands, including, “Make a mistake and I will kill you?” Would you get nervous?

Not only was the officer shouting in a very hostile voice, the orders were contradictory. “Do not put your hands down for any reason,” he tells Shaver. “Your hands go back in the small of your back or down, we are going to shoot you, do you understand me?” Shaver, who is now in tears, says, “Yes, sir.”

But immediately after, the commands change, “Crawl towards me,” and Mr. Shaver lowers his hands to the floor and begins moving toward the officers.

A few seconds after beginning to crawl, Mr. Shaver seems to twist slightly to his right, and as he does so someone shouts, “Don’t!” Officer Brailsford begins firing the first of five shots. As predicted by the other officer, Shaver did not survive.

There is no training that justifies the behavior seen on the video. Screaming at a person that is crying cannot be a legitimate technique for officer training. And if Shaver did something threatening, why was Brailsford the only officer who fired his weapon, not just once or twice, but five times?

And Daniel Shaver was white. Deliberate or unconscious racial bias played no role. Black or brown skin was not a proxy for a threat. This video demonstrates how far we have gone as a country in accepting the culture of police violence. Policing in America has advanced to the state where anyone can be killed for no good reason.

The jury that acquitted Brailsford did not hear about the two words that were on his dust cover because the judge excluded that evidence. The laws in virtually every state do a great job of protecting police. Snoop Dogg has said that policing in America is a “Resident Evil, it’s all on camera and they still don’t believe you.” This is the police/community relationship we have created for ourselves.

Discussion of police training is not unimportant — it can be the difference between life and death. Don’t assume that police violence will be limited to Black and brown people — the culture of violence will not exempt white people.

Eugene O’Donnell, a former police officer and a professor at John Jay College of Criminal, was quoted in The New York Times saying “What people as humans will see is someone drunk and emotionally distraught…The police will read that differently. In some sense it’s an argument without end: The police are just going to add this up a different way.”

Can any of us be safe in a society where police officers are trained to have a perspective that is other than human? How is it possible that a trained officer thinks the appropriate response to a mistake is five bullets from an AR-15? If Americans don’t work to change laws so that police can be held accountable for unnecessary violence, get ready for more executions and more brutal videos.

Tough-on-Crime Prosecutors Are Out of Step With Public Views

Tue, 12/12/2017 - 11:30
The ACLU polled likely voters and found strong support for prosecutors committed to criminal justice reform.

“Mass incarceration is a myth.” Racial bias in the criminal justice system “is the most ludicrous concept ever.” Data on sexual assault prosecutions should be kept secret because it might be “misinterpreted by the public.”

These are all real quotes from elected prosecutors, the most powerful people in the criminal justice system. There are approximately 2,400 elected prosecutors in America, and these views may well be common among them. But the public appears to be moving away from these misconceptions.

A first-of-its-kind poll conducted by the ACLU’s Campaign for Smart Justice shows that voters of every persuasion across the United States — in red states and in blue states alike — strongly prefer elected prosecutors who are committed to reducing incarceration, tackling racial disparities, and being transparent.

Approximately nine out of 10 likely voters surveyed said that it was important for their prosecutor to prioritize alternatives to incarceration. This includes 83 percent of Republicans polled. Eighty-eight percent of voters also said they were more likely to support a prosecutor who actively works to reduce racial bias in the criminal justice system. And 91 percent want prosecutors to reduce sentences in instances where people were treated unequally because of their race. Respondents also want a prosecutor who makes a commitment to transparency, with 85 percent favoring a prosecutor who shares data and policies with the public.

The poll also reveals one major reason why “tough on crime” prosecutors get returned to office even though their extreme beliefs are significantly out of step with the majority of constituents: Many voters simply know too little about who their local prosecutor is or what they are up to. Once armed with that information, three-quarters of voters say their prosecutor is “very important” and that they would vote for a candidate committed to reform.

To bridge the gap between voters’ values and the pro-incarceration practices of many elected prosecutors, the ACLU Campaign for Smart Justice and state ACLU affiliates have joined other partners in a nationwide public education effort. There are over 1,000 top prosecutors up for election in 2018 alone. The ACLU is knocking on doors, issuing reports, holding public events, and spreading awareness online about prosecutors in California, Kansas, Oregon, Massachusetts, New York, Pennsylvania, Virginia, Texas, and many more states to come.

This nationwide poll sends a strong signal to the growing number of recently elected reform-minded prosecutors that voters are going to continue to support them if they follow through on an aggressive agenda to address mass incarceration and racial disparities. These results should also encourage many more reform-minded candidates to enter prosecutor elections, which are uncontested at notoriously high rates, and challenge the status quo.

These poll results promise that, with a lot of hard work, in the future a person who embraces discredited “tough on crime” policies and denies that racism permeates the criminal justice system will no longer be able to get a job as a top prosecutor, except perhaps through a presidential appointment.

We Can’t End Mass Incarceration Without Ending Money Bail

Mon, 12/11/2017 - 16:30
Wealth should never decide a person’s freedom.

Whether or not you are in jail should not depend on your ability to pay for your freedom. Yet that’s the way our current money bail system works. It is one of the most corrupt and broken parts of our justice system.

Close to half a million people are in jail today awaiting trial, many of them incarcerated because they are too poor to afford cash bail. The time has come to abolish this system. The ACLU Campaign for Smart Justice is launching a nationwide campaign today to end this injustice of wealth-based incarceration, deploying all of our tools from our nationwide state affiliate structure to our strategic litigation, communication, and legislative advocacy to support bail reform movements and our partners in states across the country.

The original purpose of bail was to serve as an incentive to return to court when a person is arrested, released, and their case proceeds. However, the current money bail system has little to do with this original intent. Rather it has mutated into a way to separate people who have money from those who don’t. People with money can almost always buy their way to freedom, regardless of the charges against them. Yet people without access to cash too often end up in jail simply because they cannot afford bail, or alternatively they must take out loans from bail companies that charge exorbitant fees.

Even though you are presumed innocent in the eyes of the law, if you can’t afford cash bail, you will end up in jail for weeks, months, or, in some cases, years as you wait for your day in court. This wealth-based incarceration disproportionately punishes and targets Black people and other people of color as well as people from economically disadvantaged communities. Those trapped by this system often lose their families, jobs, and homes as they are denied justice while waiting for their case to move through the system.

They’re also more likely to be convicted of the crime they were charged with. One study showed that the non-felony conviction rate jumps from 50 percent to 92 percent for those jailed pretrial. For felony cases, the rate jumps from 59 percent to 85 percent. Whether you are detained before trial can very well predict whether you are eventually convicted, as people become desperate to leave jail and agree to plea deals. Prosecutors know how to work this system and take advantage of these desperate situations.

But prosecutors aren’t the only ones who benefit from this system. Multinational insurance corporations and for-profit bail bond companies make billions in profits, all on the backs of low-income people and disadvantaged communities. That’s because if you want to get out of jail and you cannot afford it, then you have to turn to one of these companies to secure your freedom. According to a recent report by Color of Change and the ACLU Campaign for Smart Justice, fewer than 10 companies are responsible for a significant majority of the $14 billion in bonds posted by for-profit bail each year. The industry collects around $2 billion a year in profits.

These companies require an upfront, nonrefundable fee—usually 10 percent—to pay for your bail. Yet often times families cannot afford this fee and end up paying through installment plans with high interest rates, trapping them in years of debt. So individuals with enough money to pay their entire bail upfront generally receive all of their money back when their case is resolved, but if a for-profit bondsman bailed you out — even if you never miss a day in court and are found not guilty — you and your family are still financially beholden, many times for years paying them back.

This is happening throughout the country. In Maryland, for example, the state’s Office of the Public Defender found that over a five-year period, “more than $75 million in bail bond premiums were charged in cases that were resolved without finding of any wrongdoing.” Overall, for-profit bond premiums cost families in the state more than $250 million over five years, and that does not include interest or other fees. When you take a deeper look, as we have, you’ll see that these predatory loan practices are often concentrated in the poorest communities and are disproportionately paid by Black people. We’re seeing hundreds of millions of dollars drained from our most underserved communities into the hands of the bail bond industry and multinational corporations.

There’s a better way towards justice. Some states — like New Jersey — have already pursued important reforms that begin to overhaul the money bail system. They are putting an end to people being punished simply because they cannot afford money bail. They are changing the culture of the courts and making sure that judges make informed decisions for each individual they see and exhaust all other alternatives before ever resorting to money bail.

And these reforms are beginning to work. Since New Jersey’s bail reform law took effect on January 1, 2017, the daily population in the state’s jails has dropped 17.2 percent and cash bail has been imposed only 33 times out of 33,400 defendants. New Jersey’s example demonstrates that we can fix this predatory system without inhibiting our justice system’s ability to fulfill its obligations. Incarceration rates are dropping where reforms have been implemented, and communities are better off for it.

Money shouldn’t determine someone’s freedom from incarceration. Big business must not be the gatekeeper that decides who is released from jail before trial. Profits must be removed from playing any role in deciding whether a person is free or in jail.

Hurricane Maria Exposed the U.S.’s Long Neglect of Puerto Rico

Mon, 12/11/2017 - 09:00
The head of the ACLU of Puerto Rico describes what life is like after the failed federal response to Hurricane Maria.

The United Nations’ poverty expert will visit Puerto Rico today to survey the aftermath of Hurricane Maria and the structural issues it unveiled. The storm exposed the brutal and historic neglect of the island and its 3.5 million U.S. citizens.

The ACLU and other organizations advocated for the U.N. to visit the island and submitted a letter urging them to do so back in early October. The U.N. poverty expert will meet with communities, local groups, and government officials on the ground in Puerto Rico. He will report back his findings to the U.N. Human Rights Council in Geneva.

While Puerto Rico “belongs to but is not part of” the world’s richest country, its poverty rate is almost double of Mississippi’s, the U.S.’s poorest state. Fifty-eight percent of the island’s children live in poverty. The unemployment rate is 10.1 percent, twice as high as the U.S. and more than any other state, and has continued to grow after the devastation. Since 2008, over 34,000 homes have been foreclosed on, and a record-breaking 5,424 families lost their homes in 2016.

Puerto Rico’s legal status is complicated, and it helps exacerbate circumstances that lead to poverty and civil rights issues. And these have only worsened since the hurricane. Since the Supreme Court in the Insular Cases determined that Congress owns Puerto Rico, the U.S. can rule over Americans living on the island without granting them the full constitutional rights enjoyed by those living in the states. This affects health care programs like Medicaid and Medicare, fair access to government resources that help vulnerable communities, and many other issues.

How and when Puerto Rico recovers from Hurricane Maria is important for these 3.5 million U.S. citizens’ civil and human rights. Without adequate assistance and support from the United States, the country that “owns” them, these American citizens won’t be able to fight to fully participate in our democracy.

In an effort to understand the importance of the U.N.’s visit and get a sense of what post-Maria life is like on the island, I interviewed William Ramirez, the executive director of the ACLU of Puerto Rico.

This interview has been condensed and edited.

Why is the United Nations’ poverty expert visiting Puerto Rico?

Puerto Rico is generally invisible to the world. Most of the time it feels like we don’t exist in the collective consciousness. We’re not a part of the United States, and we’re not our own country. That puts us in a difficult position. You can see that in how the federal government and the Trump administration have responded to us after Hurricane Maria. We got such a cold response because we are not seen as part of the states even though we are U.S. citizens.

Being recognized by the U.N. for this visit is key to keeping up the public and media attention we need to bring forward action to help us recover as soon as possible. We’re going into 4 months now. There are many people that are sick and have died unnecessarily because of post-hurricane conditions.

I’m hopeful that the visit will highlight and put into perspective the fact that what Hurricane Maria really did was unveil the extreme poverty that has been growing in Puerto Rico due, in part, to austerity measures imposed by an unelected fiscal control board and as a consequence of unequal treatment and attention from the federal government and Congress.

What is life like in Puerto Rico right now?

There’s a lot of sadness and trauma right now. Everyone has to get used to a new normal. Days are for preparing for the night, and nights are longer. You can make a list of all the things you want to do, but then there’s a massive power outage that will disrupt your plans. Every day is an improvisation. We don’t have the luxury of thinking about tomorrow.

Small things you take for granted have a big impact. Stoplights don’t work, and not all streets have cops directing traffic. There are longer traffic jams than normal. With so many folks and businesses without power, it gets very dark at night and it’s dangerous. You can’t even see people when you are walking, you bump into them.

You can’t trust all restaurants because how do you know that their food is fresh or that they didn’t lose power at some point? There are a lot of diseases going around. A lot of businesses are closed and will not open their doors again.

Can you see and feel the federal government’s presence on the ground? If so, how?

I don’t see them in the way you’d expect. For instance, I see the federal government in the militarization of the police. There are officers with military gear out in the streets. They’re not local police. You’d think that what happened here was not a catastrophe but an insurrection. They will stop you at traffic stops, and they are carrying automatic weapons and will search you or your car without warrants or cause.

The government imposed a mandatory and indefinite curfew that appeared to be targeted to certain segments of the population — especially the poor. People without power can’t cook at home, so they have to go out to get food after curfew. Who is most likely to be in this situation? Someone poor or with limited resources that cannot afford a power generator, for example.

The population of a federal prison here went without water for four days. Homelessness is becoming an even bigger problem. Some schools are still closed.

Health care was a mess before the hurricane. It’s even more of a mess now. Hospitals aren’t equipped to service patients and doctors are leaving. There’s an even greater exodus of doctors now.

These are just a few examples of the civil and human rights issues going on now on the island.

Is the federal government providing the help people need?

For some people they are. Some communities that are well off got food and supplies, but there are poor areas the government hasn’t visited. Our office was closed for a month, so we worked from my house and would go out to devastated communities and try to help get them what they need.

Is reporting about Hurricane-related deaths accurate? Has the government been transparent about this important figure?

The local government tries to play down how bad things were. They were not counting many deaths they should have. Some people died because hospitals had no electricity or didn’t serve patients well. Or they didn’t have medications available. The government reported them as deaths due to pre-existing conditions. It’s probably closer to 500 deaths, and the number will keep growing.

President Trump also played it down. But one death is a tragedy. Thousands of people shouldn’t have to die to know that something is wrong and that things need to change. Trump didn’t see the real situation when he was here. He went from the airport to a church and to a press conference. The same goes for Vice President Pence and House Speaker Paul Ryan. They didn’t meet with the real people who were affected.

Where do we go from here? What does Puerto Rico’s future hold?

We could claw back to normal, but that wasn’t good to begin with. Puerto Rico is a love affair. You love it, and because you love it, you take it for better or worse. You love it for what it is. It’s hard to leave it behind.

What can people in the U.S. do to advocate for the 3.5 million U.S. citizens of Puerto Rico?

Contact and tell your representatives in the House and Senate to assist Puerto Rico in this time of need.

These U.S. citizens are having a really hard time. It’s a lot worse than people think. It’s not just the physical destruction, but the soul of Puerto Rico that has been hit hard. We can’t lose the spirit to fight, but it’s heartbreaking.

ACLU Files Second Lawsuit Challenging Laws Suppressing Boycotts of Israel

Fri, 12/08/2017 - 15:45
An Arizona lawyer is challenging a law requiring him to promise not to boycott Israel if he wants to keep his state contract.

The ACLU on Thursday filed a challenge to an Arizona law that requires contractors doing business with the state to promise they won’t boycott Israel. This is the second such lawsuit the ACLU has filed in response to a wave of laws across the country designed to suppress constitutionally protected boycotts of Israel.

Thursday’s lawsuit was filed on behalf of Mikkel Jordahl, an attorney who has contracted with the state for the last 12 years to provide legal services on behalf of incarcerated individuals in Coconino County Jail. Jordahl opposes Israel’s settlement expansion in Palestinian territories and what he considers Israel’s unwillingness to ensure the rights of Palestinians under its rule. As a supporter of boycott campaigns targeting Israel, he refuses to purchase goods and services offered by companies operating in Israeli settlements in the occupied Palestinian territories. He wants to extend the boycott to his one-person law firm, Mikkel (Mik) Jordahl P.C., and to provide legal support to other boycott activists.

However, the Arizona law, passed in August 2016, forbids state contractors from engaging in those activities. It directly violates the First Amendment right to political expression, which prohibits the government from compelling political speech as a condition of receiving a benefit, restricting the speech of its contractors, and discriminating against dissenting viewpoints. The Supreme Court affirmed the right to engage in a political boycott in a 1982 decision holding that a 1960s-era boycott of white-owned businesses in Mississippi was protected by the First Amendment.

In October, the ACLU filed a challenge to a similar law in Kansas. That lawsuit was filed on behalf of Esther Koontz, an educator who was contracted by the state to train math teachers and who boycotts Israeli products in response to a resolution passed by her Mennonite church. She refused to sign a contract committing to refrain from boycotting Israel and, as a result, cannot participate in the teacher training program.

Similar contract requirements are on the books in Georgia, Arkansas, Minnesota, Texas, Ohio, Alabama, Pennsylvania, Michigan, Nevada, South Carolina, Rhode Island, Florida, Maryland, and Wisconsin. A number of laws in other states take aim at Israel boycotts in other ways, and a congressional bill penalizing certain boycotts of Israel has been introduced in Congress. While these laws and provisions differ in some aspects, they all share the unconstitutional goal of squelching legitimate protest activity surrounding a matter of major global significance.

A Kansas court heard arguments on the Koontz case last week, rightfully noting that the state hadn’t even attempted to defend the constitutionality of the state’s anti-boycott law. We wait to see whether Arizona will try to muster any kind of defense.

‘Do Everything They Ask So They Don’t Shoot Me’

Fri, 12/08/2017 - 10:00
One college professor’s run-in with the surveillance state demonstrates its power to destroy innocent people's lives.

On a May morning in 2015, Xiaoxing Xi, a physics professor at Temple University, woke up to violent banging on the door of his home in a quiet suburb of Philadelphia.

He raced downstairs. When he opened the door, he was greeted by a group of armed federal agents. Within minutes, he was handcuffed and under arrest, and his wife and daughters, in their pajamas, were held at gunpoint with their hands up. In the subsequent hours, he was strip-searched, interrogated, and charged before being released on bail. “From the very beginning, I was telling myself,” he said, “do everything they ask me to do so that they don’t shoot me.”

Professor Xi had no idea what the agents wanted with him, until they told him during questioning that he was suspected of spying for China. It became clear over the course of the interrogation that they had been closely monitoring his communications. “He seemed to be familiar with many, many of my emails,” Professor Xi said of the interrogator.

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The FBI accused Professor Xi, an American citizen, of sharing information about a device called a pocket heater in violation of a non-disclosure agreement. But he had never shared that information. The emails in question concerned an entirely different technology, discussed over the course of routine — and perfectly legitimate — academic cooperation.

The charges were dropped against the professor four months later. In that time, he lost his chairmanship of the Physics Department at Temple University. He was temporarily suspended from his job, banned from campus, and forbidden from speaking with his students. He could not leave the Philadelphia area without permission. His family suffered trauma, symptoms of which persist to this day.

“I think my wife probably slept one or two hours a night. Myself, too. I couldn’t sleep during the night. So, you know, we just established new routines,” he said. “We might have two or three naps during the day when we really felt exhausted.”

The American justice system typically forbids law enforcement officials from spying on citizens without a probable cause warrant issued by a judge. However, the government claims a carve-out to that constitutional principle. Two provisions — called Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333 — allow for the dragnet collection of electronic communications. While both technically prohibit targeting American citizens and residents, each captures vast quantities of Americans’ international — and even some domestic — communications. In addition, the FBI and other agencies are allowed to sift through the data collected under Section 702 for information about anyone, without judicial oversight. In other words, the FBI has a treasure trove of information it can use to prosecute citizens, even if it has never made a case before a judge.

We’ve seen the destructive effects of unwarranted government scrutiny on the lives of people who have done nothing wrong, and minorities and activists have historically borne the brunt of these practices. Professor Xi’s case is not an aberration. As we explain in the lawsuit the ACLU joined on his behalf, a number of Chinese-American scientists have been indicted for spying for China, only to have their cases dismissed before trial. The investigation of Professor Xi appears to have been based his Chinese ethnicity. In the words of Rep. Judy Chu (D-Calif.), who has called for accountability for these wrongful indictments, “Are all Chinese-American scientists suspects because they are Chinese-American?"

Warrantless surveillance can shatter reputations and ruin lives — for nothing. Section 702 is set to expire at the end of the year. Congress is considering various proposals to extend the law, and in some cases even to expand it. Instead, it should reform Section 702 to end these egregious violations of basic principles of justice.

Weigh in to demand reform

Former Officer's Guilty Verdict for Killing Walter Scott Is the Exception, Not the Rule

Thu, 12/07/2017 - 18:00
Michael Slager's conviction is a heartening example of accountability — and a sign of how far we have to go.

Police officer Michael Slager shot and killed an unarmed Black man, Walter Scott, in 2015, and it was all caught on video. Today he was sentenced by a federal judge to 20 years behind bars for violating Scott’s civil rights. While this instance of accountability in a police killing is heartening, the fact that it is a surprising result tells you what you really need to know about police reform. The accountability of police to the communities they serve is still elusive in many places, and nonexistent in some.

Officer Slager was shown shooting Scott in the back while Scott ran away. Yet even with that video evidence, his first trial in state court resulted in a hung jury. Slager’s pleading guilty to federal charges and now being sentenced for the murder of a Black man is the exception to the rule. Usually there are no charges. Or there is no conviction. There are myriad cases, from Alton Sterling in Louisiana to Philando Castile in Minnesota, where video evidence was not enough.

Police officers often invoke the “fear” they felt in the moment. The fear they, as armed, powerful and body-armor-wearing officers, felt in the presence of a Black person running away, or selling loose cigarettes, or driving a car, or playing with a toy gun. Officer Slager invokes that fear, claiming that Scott was reaching for his Taser.

The fear that is not addressed is the fear felt by Black and Brown people who are routinely subject to police discrimination and brutality. This is a fear that needs to be addressed with nationwide police reforms that include more comprehensive training that allows the use of force only when necessary and promotes de-escalation techniques to keep people and officers safe during their interactions.

While the Slager case is a victory, it is not a solution. The ACLU of South Carolina, the NAACP Legal Defense Fund, along with local NAACP offices and community organizations have repeatedly asked the federal government to step in and review the North Charleston Police Department, which has a recorded history of racially motivated policing. Such a review could address implicit bias and end racialized policing, and help to ensure that those who are charged with protecting communities fulfill that duty.

The ACLU of South Carolina along with other community agencies has been working to obtain an independent review of the North Charleston Police Department’s patterns and practices when it comes to dealing with minority communities. Numerous town hall meetings have been held in order to obtain data from the residents of North Charleston about their interactions with the police.

In sentencing Slager, Judge David Norton said he “acted out of malice and forethought.” That Walter Scott was another Black man gunned down by police matters. We need police practices in South Carolina to change and we need these same policing reforms across the nation. We know that these reforms must come from within communities. This is especially true now, with a Justice Department that has shirked oversight of law enforcement. The police need to know that the people are watching, and that they will not tolerate police criminality that results in the killing of people they are supposed to serve.

My Son Dontre's Killing by Police Was a Human Rights Violation

Thu, 12/07/2017 - 12:45
Police killings of Black people in the U.S. are human rights violations that we must combat with nationwide reform.

Few things define me as completely as being a mother. I gave birth to three sons: Nate, Dameion and Dontre. My world changed forever on April 30, 2014, when my son Dontre was killed by Milwaukee police.

Today I testified at the Inter-American Commission on Human Rights to say that Dontre’s death as a Black man in America at the hands of law enforcement should be seen as more than a son’s death, more than a mother’s tragedy. Dontre’s death at the hands of police was a human rights violation.

My story is his story.

It was a Wednesday. It was late and I was on my way home to prepare for work the following morning. My phone rang and an unidentified detective said he want to come talk with me. I said, “What do you want to talk about at 12:15am?” I told him I would come down after I got off work the next day. He said no, he would come to see me. I felt a mother’s fear. I hung up and tried to reach all three of my sons.

Nate and Dontre didn’t answer. I call Dameion and told him the police were on the way over. Thirty minutes later the police were in the front of my home. Right away it was clear he was not there to help. I thought he was going to arrest me.

Three Milwaukee detectives put me in the back of an unmarked police car and questioned me about my relationship with my sons. When had I last seen them? When had I talked to them? I kept asking for an attorney even though the officers never read me my rights.

After 35 minutes of being detained and questioned these officers matter-of-factly told me my baby boy, my Dontre, was dead.

In that moment I couldn’t process what was happening: my son was dead and the police were treating me like a criminal suspect instead of a mother whose son has just been killed.

I wasn’t able to see Dontre after he was killed for nine days. When I did see him there were 21 bullet holes in his body. If it wasn’t for a childhood friend, who worked at the funeral home and prepared Dontre’s body for burial, we would have never known that he was shot 14 times with seven exit wounds. Not the nine times it said in the police report. He was shot in the back. His thumb was shot off. He had been beaten with a police stick, and his body was terribly bruised.

This happened in a park downtown across the street from Milwaukee City Hall. Dontre had every right to be there. He had every right to remain alive.

The officers said that because there would be a full investigation I couldn’t talk to anyone about it, and that they couldn’t take me to see my child. I fell out of the car in to the middle of the street kicking and screaming. I do not have the words to adequately convey how overtaken I was with shock. With disbelief. With horror. With grief.

Five hours after they left me, Milwaukee Chief of Police Ed Flynn went on television and demonized my son. He said Dontre was a criminal with a long history of mental illness. That he was homeless. All lies. Dontre had a job, an apartment, and was nicely dressed the day he was killed by Officer Christopher Manney.

Yes he had a mental illness – schizophrenia — but he wasn’t hurting anybody. He was resting in a park in the United States of America, on a sunny spring day.

It broke my heart to hear how they spoke of my son as my grief was driven deeper and deeper into me and my family. I will remember Dontre all the days of my life. I will honor his life and his memory. I did that today with my testimony and I will never stop.

Dontre’s killing by police, like that of so many men and boys of color, is a violation of his human rights. While the officer who killed him lost his job, no one was held accountable for his death with criminal charges. Things must change in this country so everyone gets equal justice. I ask you to mourn my son by fighting for change.

The Muslim Ban: What Just Happened?

Wed, 12/06/2017 - 15:45
Here’s what you need to know as the Muslim ban goes into effect.

Earlier this week, the Supreme Court allowed President Trump’s Muslim ban to go into full effect while it is being litigated. Prior to the court’s Dec. 4 order, large portions of the ban were blocked by preliminary injunctions in the cases of IRAP v. Trump and Hawaii v. Trump.

Let’s be clear: The fact that the ban is moving forward is devastating for Muslims in the United States and abroad — and for anyone who values the fundamental constitutional principle of religious equality. The Establishment Clause of the First Amendment prohibits the government from favoring or disfavoring one religion among others, but that’s precisely what President Trump’s Muslim ban does.

It’s important to recognize that the Supreme Court did not express any views about the merits of the ban — and in particular, it did not find or suggest that the ban is constitutional or compatible with our immigration laws. We have been challenging this and previous versions of the ban since President Trump started down this path, and the courts that have reached the merits have repeatedly found the bans unconstitutional and illegal. That is one reason why we believe that the ban will ultimately be struck down.

On Dec. 8, we will be in court, along with our co-counsel from the National Immigration Law Center and the International Refugee Assistance Project and colleagues from Muslim Advocates, the Council on American-Islamic Relations, the Brennan Center for Justice, and Americans United for Separation of Church and State, fighting to strike down the Muslim ban in its entirety. Here’s what you need to know.

Wasn’t the Muslim ban blocked last January?

On Jan. 27, President Trump signed an executive order that prohibited citizens from seven Muslim-majority countries from entering the United States for 90 days, suspended the entry of all refugees for at least 120 days, and barred Syrian refugees indefinitely.

The damage was immediate — thousands of travelers were detained at airports and families were separated from their loved ones — but so was the pushback. Thousands of people, including members of Congress, showed up at airports across the country in support of Muslims, shouting, “Let them in.” The next day, a federal court blocked deportations under the ban in a case brought by the ACLU and partners, and more court orders quickly followed.

Rather than defend the ban in court, the president issued a new version on March 6. Once again, this Muslim ban was successfully challenged and blocked in a suit brought by the ACLU and partners as well as another case brought by the state of Hawaii. Appeals from these decisions were set for argument before the Supreme Court on Oct. 10, but on Sept. 24, the Trump administration issued a new ban proclamation, thus replacing the second Muslim ban with a third. We returned to district court, securing a new order blocking large portions of the latest ban, which was in effect until Monday when the Supreme Court issued its most recent order.

So what did the Supreme Court’s order do exactly?

The Supreme Court allowed the government to enforce all of the Sep. 24 proclamation, parts of which were previously blocked by lower courts while the case is being litigated.

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Who can be banned? And when does it go into effect?

The ban targets citizens of six majority-Muslim countries: Chad, Iran, Libya, Somalia, Syria, and Yemen. The government can now deny visas to nationals of the six banned countries, including people who have a “bona fide” relationship with a person or entity in the United States. This includes relatives of both U.S. citizens and green card holders from the listed countries as well as other visa applicants. The ban affects 150 million people, the vast majority of whom are Muslim.

The ban also puts restrictions on North Korea and Venezuela, two countries that are not Muslim-majority. Their inclusion will have almost no practical effect. In 2016, North Korea accounted for 61 visas that would have been affected by the ban, a tiny fraction of the tens of millions of people who come to this country each year. And only certain Venezuelan government officials and their families are affected, and those individuals are only barred from obtaining tourist and similar visas.

The Supreme Court’s order permits the government to implement the full version of the ban immediately. The order should not impact people who already have valid visas to enter the United States. If you have a valid visa but are stopped at the airport because you are from a banned country, or you know someone in that situation, email airport@refugeerights.org.

Is this version different from the previous two bans?

Yes, it is even worse. There is no time limit. Instead of having a so-called “temporary pause,” the president has instituted an indefinite and potentially permanent ban.

How does this ban impact people’s lives?

This ban tears at the heart of Muslim communities in the United States, reminding them daily that the president openly discriminates against their faith and has instituted policies that embody this prejudice and bigotry. It will separate Muslims in the United States from their family members abroad. It takes away the ability of U.S. citizens and green card holders to live with, or even be visited by, spouses, parents, children, grandparents, and other family members. Among other things, it will exclude friends and family from weddings, graduations, and funerals; prevent grandparents, uncles, and aunts from holding and caring for newborns; deny final visits to ailing relatives; deprive American audiences and scholars of the ability to hear from and collaborate with individuals from the banned countries; and bar talented, promising young people from U.S. universities and companies. The impact of this discriminatory ban is tremendous.

The ban bars citizens of Chad, Iran, Libya, Somalia, Syria, and Yemen from securing immigrant visas, which result in lawful permanent resident status, or a green card, including family-based and employment-based visas. Various nonimmigrant visas — like tourist and temporary business visas, student visas, and exchange visas — are also eliminated for people from Chad, Libya, Syria, Yemen, and Iran as noted in the chart below:

Those who are not impacted by the ban include:

  • lawful permanent residents
  • dual nationals of a banned country and a non-banned country
  • people who had a valid visa before the ban went into effect
  • people traveling on a diplomatic visa
  • people who have been granted asylum, withholding of removal, protection under the U.N. Convention against Torture, or advanced parole
  • refugees who have already been admitted to the United States.

Under the ban, there will be a case-by-case waiver process, where the burden lies on the applicant to demonstrate undue hardship, the absence of a threat to national security and public safety, and that their entry is in the interest of the United States.

As the ACLU and partners challenge the ban in court, what can the public do?

In order to continue to be successful in our efforts to stop the president’s Muslim ban in court, we need everyone’s help.

  • Visit www.NoMuslimBanEver.com, and find resources to you can organize with your friends, family members, and colleagues.
  • Raise your voice, along with the voices of others in your community, to say to local government officials, members of Congress, and the president: We will not stand for discrimination against Muslims in the United States. We demand that you take a stand and against the Muslim ban.
  • Tell Congress to rescind the ban immediately.

    Standing Rock Protest Groups Sued by Dakota Access Pipeline Company

    Wed, 12/06/2017 - 13:00
    Courts shouldn’t let companies like Energy Transfer Partners use litigation to intimidate and bankrupt advocacy groups.

    If you want to experience 2017 in a nutshell, check out the billion-dollar lawsuit filed by an oil and gas company against Greenpeace and other environmental groups for their roles in the Standing Rock protests.

    In a 231-page complaint filed by Donald Trump’s old law firm, Energy Transfer Partners, the company behind the Dakota Access Pipeline, claims that Greenpeace and its partners are engaged in a criminal network of fraud and misinformation. The paranoiac complaint, which includes references to “wolfpacks of corrupt” environmental nongovernmental organizations and describes Greenpeace as a “putative Dutch not-for-profit foundation,” would be amusing if it weren’t so dangerous.

    It leverages the RICO Act, a statute that was meant for mob prosecutions, and defamation law to wage a scorched-earth campaign against nonprofits that spoke out against the pipeline’s construction near the Standing Rock Sioux Reservation in North Dakota. Fortunately, as we argue in a friend-of-the-court brief filed yesterday with a coalition of public interest groups, the First Amendment prohibits companies from suing their critics out of existence.

    ETP’s lawsuit rests on two theories, neither of which holds water.

    First, it argues that Greenpeace and the other defendants are engaged in a broad-based conspiracy to defraud the public by defaming the company. But many of the statements ETP alleges as false or defamatory — such as website posts stating that the tribal consultation and environmental review were rushed and lacked proper consultation — are clearly protected opinions on matters of vital public concern. Other offending statements, such as a post by the Sierra Club’s Executive Director stating “it has never been a question of whether a pipeline will spill but only of when the next disaster will happen,” don’t seem very unreasonable, given last month’s 5,000-barrel spill at the Keystone pipeline in South Dakota. ETP can’t demand punishment for this kind of core political speech just because it doesn’t like the message.

    ETP’s second legal argument fares no better. It argues that, because Greenpeace and the other defendants are allegedly engaged in a vast “illegal Enterprise” to persecute ETP, they should be held liable for the allegedly unlawful actions of totally unrelated groups that also happen to oppose the Dakota Access Pipeline. For example, ETP alleges that the hacktivist group Anonymous is a “front” for Greenpeace and the other defendants, but this wild accusation is based on nothing more than the observation that Anonymous targeted the same entities being protested by the defendants.

    If accepted, ETP’s theories would make any advocacy group liable for the actions of every fellow traveler, no matter how disconnected. For example, if the ACLU filed a lawsuit challenging a government surveillance program, ETP’s theory of liability could make us civilly, and perhaps even criminally, liable for the actions of any hacker that attempted to take down the program.

    If the courts have any sense, this case won’t get to trial. But ETP doesn’t need to win in court to do major damage. Defending major lawsuits like these against deep-pocketed corporations is extremely expensive, time consuming, and stressful, particularly for cash strapped nonprofits. Even if they survive, advocacy groups have to divert serious resources away from their missions to litigate these issues. That’s why it’s important for courts to dismiss these cases early, before things get really expensive.

    Protesters and advocacy groups should never have to fear the weight of groups like ETP as a condition for expressing their First Amendment rights. The court should see this lawsuit for what it is and toss it.

    Diversion Programs Are Cheaper and More Effective Than Incarceration. Prosecutors Should Embrace Them.

    Wed, 12/06/2017 - 00:45
    A new report from the ACLU of Kansas shows how diversion programs can combat mass incarceration.

    When it comes to reducing mass incarceration, some solutions are actually staring us right in the face. That is certainly the case when it comes to diversion programs in the state of Kansas.

    Although diversion can come in many forms, the basic principle is well-established and straightforward: A person charged with a crime fulfills certain requirements, such as completing treatment, paying restitution, or performing community service, instead of being incarcerated and saddled with a lifelong criminal record.

    Put plainly, diversion is a positive tool that should be used in our nation much more frequently. By targeting the underlying problems that led to the crime in the first place, effective diversion programs can improve long-term community safety and reduce recidivism far more effectively than warehousing someone in a prison cell before turning them back onto the streets.

    They’re also many times cheaper than incarceration. For example, a 2010 study found if just 10 percent of people eligible for diversion were sent to community-based substance abuse treatment programs rather than prison, the criminal justice system would save $4.8 billion when compared to current practices. Furthermore, every dollar invested in drug treatment yields $12 worth of savings in terms of reducing future crime and health care expenses.

    Diversion also has popular support. Even in so-called red states like Kansas, where the ACLU of Kansas just released a comprehensive report on diversion, a full 94 percent of Kansans agree it should be used more often. In fact, it seems like the only people opposed to diversion are the people who have near absolute control over its use: elected prosecutors. The ACLU of Kansas’ months-long investigation uncovered that Kansas’ elected prosecutors use diversion at abysmally low rates that are half of the national average of 9 percent.

    Instead of using diversion more often, prosecutors pursue the harshest punishments possible and use incarceration as a tool of first resort, a belief based on the misconception that harsher punishments will necessarily result in safer communities. Rather than seeing diversion as a powerful and cost-effective problem solving tool, many prosecutors instead see it as a “blessing” to be conferred in very rare circumstances.

    Many Kansas prosecutors also told the ACLU of Kansas they believe their constituents don’t support diversion. Although this is clearly incorrect, Kansas’ prosecutors have rarely been held accountable by voters for this position.

    Kansans simply know far too little about their elected prosecutors or the impact their decisions have on their local communities. In this environment, despite overwhelming bipartisan support for criminal justice reform, prosecutors who contribute to mass incarceration and exacerbate racial disparities rarely face any pressure to change and are reliably reelected even though they are out-of-step with a majority of Kansas voters.

    Fortunately the landscape is quickly changing.

    The ACLU of Kansas’ report is one step toward filling the accountability gap by educating the public about prosecutors’ shameful and financially reckless record on diversion. These efforts are working hand in glove with the national ACLU’s Campaign for Smart Justice to ensure everyone understands the critical role of their local prosecutor.

    The ACLU of Kansas estimates that reaching the modest goal of bringing Kansas in line with the national average would shave the state’s prison population by 10 percent and result in savings of $8.9 million per year. Kansas’ lawmakers should pass legislation that will ensure prosecutors dramatically increase their use of diversion, starting with simple steps like standardizing the process and ensuring everyone charged with a crime is made aware of the possibility of diversion. Activists should also pressure legislators to reform existing diversion programs to ensure they are effective, do not burden participants with debt, and do not inadvertently widen the criminal justice net.

    Elected prosecutors in Kansas — and everywhere — hold the key to solving the nationwide problem of mass incarceration. The ACLU of Kansas’ report demonstrates that prosecutors simply need to make use of diversion programs more often. And if elected prosecutors refuse to do so, voters should replace them with prosecutors who will.

    ACLU Files Supreme Court Brief Responding to Government Request to Throw Out Jane Doe Abortion Ruling

    Tue, 12/05/2017 - 16:45
    The Trump administration has provided no legal justification for its extraordinary request.

    The ACLU filed a brief last night in the Jane Doe abortion case opposing the Trump administration’s request that the Supreme Court throw out a lower court’s decision that cleared the way for Ms. Doe’s abortion after a month of unconstitutional delay.

    The government’s brief also asked the court to stop Ms. Doe from continuing her challenge to the government’s policy, which still prevents other pregnant immigrant teens from getting abortions while in federal custody. Finally, it asked the court to consider discipline against ACLU lawyers.

    Legal scholars describe the Trump administration’s request as baseless and unprecedented. We believe it was an effort to deflect attention away from mistakes it made in litigating the case and to insulate from court review an unconstitutional policy of coercing pregnant immigrant minors into carrying pregnancies to term against their will.

    Ms. Doe, a 17-year-old who came to the United States without her parents in September, learned that she was pregnant while in federal custody shortly after crossing the border. She immediately said she wanted an abortion, but the government refused to allow her to leave the shelter where she was living for any abortion-related appointments. In response, she filed a legal challenge, alleging that the government’s refusal to allow her to leave the shelter for abortion care constituted a ban on abortion and was thus unconstitutional.

    After weeks of litigation in which the government forced her to remain pregnant against her will, the full D.C. Court of Appeals ordered the Trump administration to stop blocking her from getting an abortion. Ms. Doe had the abortion the following day.

    Nine days later under pressure from anti-abortion activists for its failure to prevent Ms. Doe from getting her abortion, the government filed a brief asking the Supreme Court to vacate the federal appeals court’s ruling; dismiss all the claims related to abortion access for unaccompanied immigrant minors; and consider discipline against ACLU lawyers, alleging that they had misled the government about the timing of the abortion.

    Legal scholars describe the Trump administration’s request as baseless and unprecedented.

    Despite the fact that the government knew that Ms. Doe was legally entitled to obtain an immediate abortion, its lawyers apparently assumed that Ms. Doe would not be able to quickly obtain the procedure and failed to file an immediate challenge with the Supreme Court. In its brief, the government suggests that ACLU lawyers had an obligation to inform the government when Jane was going to get her abortion. But as today’s brief and ethics scholars point out, the ACLU was not required to inform the government about the timing of the abortion, which would have only enabled the government to attempt to further block her from the care she sought. In fact, doing so would have been violating its ethical duties to Jane.

    The government further claims that since Ms. Doe had the abortion, the case is now moot. Although Ms. Doe was able to obtain an abortion, many more like her are subject to the Trump administration’s cruel policy, which still stands. We are fighting in federal court to allow the case to proceed as a class action and block the Trump administration from enforcing the policy. But the government is trying to prevent that from happening, asking the Supreme Court to dismiss the class action in an attempt to preserve its unconstitutional policy.

    Getting the government’s policy struck down is our top priority. Every year, the federal government takes into custody hundreds of unaccompanied minors who are pregnant. The government requires them to visit religiously affiliated anti-abortion crisis pregnancy centers whose purpose is to discourage women from having abortions. In addition, government staff are required tell the minor’s parents about her pregnancy, even over the minors’ objection.

    In one case, for example, an unaccompanied minor went to court and obtained an order to bypass Arizona’s parental consent law, which allowed her to consent to the abortion on her own and without her parents’ knowledge. The young woman’s advocate told the federal government that if they revealed the abortion decision to the minors’ parents in her home country, the father would retaliate against the mother. The government went ahead anyway.

    In another case, the director of the Office of Refugee Resettlement, the federal agency that is responsible for providing care to these minors, personally flew to meet with pregnant minors to convince them to carry their pregnancies to term.

    When these coercive tactics fail, the government prevents the minor from obtaining an abortion, as they did with Ms. Doe.

    When the federal government blocked Ms. Doe from obtaining an abortion, she was not intimidated. She fought back and won. We will not be intimated, either. We will keep fighting for all the other Jane Does so that the Trump administration cannot inflict its cruel and unconstitutional policy on other young women.

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