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American Civil Liberties Union


Congress Just Passed a Terrible Surveillance Law. Now What?

Thu, 18 Jan 2018 15:45 -0500

Both Democrats and Republicans deserve sharp criticism for continuing to allow the NSA to engage in mass, warrantless spying. Congress today missed a historic opportunity to reform an unconstitutional surveillance law, instead passing a version that makes it worse. Both Democrats and Republicans deserve sharp criticism for continuing to allow the NSA to engage in mass, warrantless spying. (You can see how your member of Congress voted here and here, so they can be held accountable.) The vote concerned Section 702 of the Foreign Intelligence Surveillance Act — a law disclosed by Edward Snowden that revealed the NSA had been spying on Americans in unprecedented ways. As a result of the expiration of this law, Congress needed to decide, for the first time since those revelations, whether to reform, reauthorize, or do away with the law altogether. For years, the government claimed that Section 702 was primarily used to stop foreign terrorists. In 2013, we learned that was a lie. The government uses the hundreds of millions of communications collected under Section 702 — which it gets directly from tech companies or by tapping into the physical infrastructure that makes up the internet — to access the sensitive information of Americans for purposes that have nothing to do with national security. Intelligence agencies, for example, have long exploited a loophole to conduct warrantless searches of Americans’ data collected under Section 702. The NSA conducts over 30,000 of these “backdoor” searches a year and, while the FBI refuses to report their number, we know they perform these searches routinely when investigating a crime, assessing whether they should open an investigation, or even just hunting for information about foreign affairs. Members of both parties took a stand and joined together to try to close this “backdoor search” loophole and require the government to get a warrant when looking for information about Americans. Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.), along with Reps. Justin Amash (R-Mich.), Zoe Lofgren (D-Calif.), and Ted Poe (R-Texas) pushed until the very last minute for a warrant requirement — but their efforts were stonewalled by the intelligence agencies, the Trump White House, Republican leadership in the House and Senate, and the Democratic leader in the House. Instead, the House pushed through a bill that fails to reform — and in some ways worsens — current law. Not to be outdone, the Senate today passed the same bill, without allowing even one minute of debate on how this bill could be improved. It now heads to the president, who is expected to sign it into law. The new law The bill risks codifying illegal practices that have been used to collect purely domestic communications. It will also allow warrantless backdoor searches of Americans’ information to continue largely untouched, imposing a warrant requirement only in cases of an established criminal investigation.The FBI acknowledges this limitation is unlikely to apply in the vast majority of cases. This is because agents usually perform such searches before opening an active investigation. In addition, the bill has an exception for “foreign intelligence” searches, which could include searches designed simply to find information about foreign affairs. In other words, Congress has left this loophole wide open for exploitation by an administration openly hostile to critics, immigrants, Muslims, and people of color. The administration can too easily use this as a tool to further their discriminatory and unconstitutional policies. But there is a glimmer of light.The last few weeks have demonstrated that bipartisan efforts to reform our surveillance laws continue on an arc of progress. With only two more votes, reformers could have halted this bill from advancing and forced a floor debate over badly needed improvements. And an effort to pass the most comprehensive Section 702 reform bill introduced in Congress garnered the support of over 180 members in the House. With actual debate, real reform provisions likely wo[...]

If Sexual Harassment Is Illegal, Why Is It So Rampant?

Thu, 18 Jan 2018 15:30 -0500

It’s time to dismantle the structures that allow sexual harassment to happen and deter women from reporting it. When Anita Hill testified before the Senate Judiciary Committee in October 1991, sexual harassment had already been declared illegal by the Supreme Court five years earlier. In Vinson v. Meritor Savings Bank of Washington, the court held that sexual harassment that is ''sufficiently severe or pervasive'' to create ''a hostile or abusive work environment'' violates Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination in the workplace. Yet, it was not until the Clarence Thomas confirmation hearings that the public fully engaged in a discussion about sexual harassment. Supreme Court rulings don’t translate into changes on the ground overnight. It is hard to imagine that today the Thomas hearings would proceed to confirmation the way they did 27 years ago. But this has far less to do with developments in the law than it does with changes in societal views. Sexual harassment has been prohibited for more than a quarter century. Yet, this form of sex discrimination is still rampant. In 2016, nearly 7,000 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). But that number doesn’t represent the full scope of the problem as the vast majority of sexual harassment victims don’t report it or file any claim. The reasons women stay silent are manifold. They don’t want to risk their jobs, they fear others won’t believe them, they don’t want to relive the experience or suffer through a legal proceeding, they worry about a defamation suit being filed against them, or they are legally prohibited from speaking up or filing a legal action by non-disclosure clauses or mandatory arbitration. When Anita Hill testified, she was disbelieved and chastised by members of the all-white, all-male Judiciary Committee. Senator Arlen Specter accused her of perjury. Senator Orrin Hatch referred to her as the tool of “slick lawyers.” Senator Alan Simpson remarked, “I really am getting stuff over the transom about Professor Hill. I’ve got letters hanging out of my pocket. I’ve got faxes. I’ve got statements from Tulsa saying: Watch out for this woman.” In the end, as members of the Senate had to decide whether they believed Hill or Thomas, the majority voted to confirm – following a long tradition in he-said/she-said disputes of siding with the man in power. Today, with #MeToo and the national conversation about sexual violence, less shame attaches to women who share their stories and fewer women are being blamed for the harassment and abuse they have suffered. Indeed, attention is turning from questions about the victim to a focus on the perpetrator, his actions and the structures and institutions that hid the abuse. For the first time, we are seeing real consequences for sexual harassment. Powerful men are being fired or stepping down in Hollywood, in media, in the restaurant business, in Congress, and even in the federal judiciary. How can we carry this moment forward? First, we must ensure that all women (and men) who suffer sexual harassment are able to be heard. This includes low-income women, immigrant women, and women of color who lack access to lawyers eager to sue the rich and famous. Second, we must provide victims of gender-based violence and harassment that occurs outside the employment context or other spheres protected by civil rights laws with more tools to hold perpetrators accountable, including civil rights remedies. Further, we need more women in positions of power in every industry, legislature, and court system, so that not all bosses are men and harassment at the workplace will not be brushed under the rug. Have you been harassed on the job? Tell us your story.  Finally, we need cultural change that starts with the young, like educational reforms that treat boys and girls the same rather than relying on sex stereotypes and programs that teach the meaning and harm of sexual harassment in early [...]

Who Is at Highest Risk of Sexual Harassment?

Thu, 18 Jan 2018 15:15 -0500

Certain factors make low-wage workers particularly vulnerable. Several promising new initiatives may help. The best-publicized recent accounts of sexual harassment have come from elite industries such as Hollywood, the news media, and politics. But pervasive abuse is the norm in many less rarefied settings, as the #TimesUp movement aims to show. Research shows that anywhere from 25 to 85 percent of working women have experienced sexual harassment or abuse in the workplace. A variety of risk factors make low-wage workers particularly vulnerable. Mitigating those factors is key to curbing the problem, and there are several promising new initiatives that may help. One risk factor is workplace power disparity. In the restaurant industry, for example, the lower minimum wage for tipped workers contributes to disparities between workers on the one hand, and patrons and supervisors on the other. While women make up just over half of all restaurant workers, they constitute nearly two-thirds of tipped workers. Because the federal minimum wage for tipped workers is just $2.13, servers must rely heavily on tips to earn a living. This dynamic places these workers in a difficult position if they are harassed by customers. They may feel pressured to keep quiet for fear of jeopardizing their tips. Similarly, the reliance on tips makes them more vulnerable to abuse by supervisors, who have the power to assign waitresses to shifts that yield better or worse tips. According to one study, 80 percent of female workers in the restaurant industry reported experiencing some form of sexual harassment at work. And many don’t speak up because they fear losing their jobs or facing other retaliation — which, research shows, is a well-founded fear. Women who work in low-wage positions also often face intersectional disadvantages — that is, burdens posed by race, national origin, gender identity, and other characteristics beyond gender alone — that may trigger biased treatment. Many low-wage jobs, such as home health aide, nanny, or agricultural worker, are disproportionally held by women of color or immigrants. Immigrant workers may face language barriers that impede their ability to get help, be unfamiliar with laws against sexual harassment, and — if they’re undocumented — fear deportation. In a 2009 survey of Iowa meatpacking workers, 91 percent responded that immigrant women do not report sexual harassment or sexual violence in their workplace. Transgender women are particularly vulnerable: According to one survey, trans restaurant workers were more than twice as likely as cisgender employees to report harassing comments about their gender identity or sexual orientation. Another risk factor is physical isolation. One survey revealed that 58 percent of hotel workers — who often work alone — reported experiencing sexual harassment from a guest, ranging from men exposing themselves or answering the door naked to outright assault. High-profile examples of this kind of harassment abound, from a prominent Egyptian banker who pleaded guilty to forcibly kissing and groping a housekeeper at a New York hotel, to the housekeeper who accused former International Monetary Fund chief Dominique Strauss-Kahn of sexually assaulting her in his hotel suite. Women also report sexual harassment and assault while cleaning office buildings at night, working in remote agricultural fields, or providing home health care to elderly patients. As Erika Morales, a night shift janitor explained to a reporter: “There’s no one to ask for help when certain things happened and you screamed … No one can hear. And there are certain places where there are no cameras. There’s no sound. There’s nobody.” Title VII of the Civil Rights Act of 1964, which prohibits workplace sexual harassment, only applies to employers with 15 or more employees. That leaves many nannies, housekeepers, home health aides, and other domestic workers — who are already at increased risk because of their physical isolation —[...]

Diversion Keeps Kids Out of the Criminal Justice System, but Too Many Police in New Jersey Fail to Use It

Thu, 18 Jan 2018 10:30 -0500

Ending mass incarceration starts with keeping young people from being arrested in the first place. We’ve all seen something like this on TV or in an old movie: A parent arrives at a police station to pick up their child, who, instead of being arrested and charged with a crime, has just been given a stern warning and an opportunity to make amends. The technical term for this practice is diversion, and it’s a critical tool in ending mass incarceration. If we’re going to reduce the number of people we put behind bars, we can’t only focus on people who are incarcerated or who have already had extensive contact with the criminal justice system. We need to prevent that involvement in the first place. That starts in childhood with diversion. A forthcoming report from the ACLU of New Jersey, “Missed Opportunities: Youth Diversionary Programs in New Jersey,” delves into strategies to stop the criminalization of our youth, specifically programs that allow young people to avoid arrest for low-level offenses. Within the juvenile justice system, there are stark racial disparities in who gets detained — disparities that are inevitably reproduced by the adult criminal justice system. Given the reality that past incarceration is the single greatest factor in predicting a person’s future criminal activity, diversionary programs are crucial. But these opportunities aren’t an option for the majority of young people simply because law enforcement agencies don’t take advantage of them. In New Jersey, we have two diversionary programs authorized by the state attorney general: curbside warnings and stationhouse adjustments. A curbside warning is an informal “talking-to” by police officers. For example, when an officer encounters a young person doing something dangerous, that officer may talk through the issue with the young person at the scene. The young person is then released, without being detained or taken to the station.Stationhouse adjustments are more formal. In exchange for the department not filing a juvenile delinquency complaint, a young person accused of a low-level offense or ordinance violation agrees through a contract to satisfy a set of conditions, such as writing a letter of apology or performing community service. While curbside warnings are largely undocumented, and thus hard to track, stationhouse adjustments are not. Based on public records responses from 17 of New Jersey’s 21 counties, the ACLU of New Jersey discovered troubling racial disproportionality in the use of stationhouse adjustments. While Black young people made up 28.3 percent of juvenile drug arrests in 2015, they made up only 11.3 percent of those who received stationhouse adjustments for drug, alcohol, and tobacco offenses. White youth, on the other hand, comprised 69.6 percent of juvenile drug arrests but received over three-quarters of stationhouse adjustments for drug, alcohol, and tobacco offenses in 2015. Statewide, there were more than 1,400 juvenile arrests for curfew and loitering violations in 2015 alone, and more than 60 percent of these young people were Black. Yet, in the 17 counties studied by the ACLU of New Jersey, there were only 13 stationhouse adjustments for these exceedingly low-level violations – 10 of the 13 youths who benefited were white. There’s good reason to make wider use of this tool. Of the 5,239 stationhouse adjustments we tracked from 2014 to 2016, more than two-thirds resulted in kids being successfully diverted from the juvenile justice system. But, despite these largely successful outcomes, more than 40 percent of municipalities among the 17 counties didn’t utilize them. During this same period, there were estimated to be more than 60,000 juvenile arrests. Every kid arrested for status offenses — like curfew violations or running away or for low-level offenses such as disorderly conduct, loitering, or trespassing — represents a missed opportunity for diversion. With better-resourced programs, we can meani[...]

DHS' Threat to Prosecute Officials of Sanctuary Cities Is Unconstitutional

Wed, 17 Jan 2018 17:30 -0500

The Constitution guarantees that state and local governments can opt out of the federal deportation system. In testimony before Congress yesterday, Secretary of Homeland Security Kirstjen Nielsen confirmed that her agency is seeking the prosecution of state and local officials in jurisdictions that limit their entanglement with federal immigration enforcement.Even in the context of the Trump administration’s frequent disregard for the Constitution, Nielsen’s threat to prosecute mayors, legislators, and police chiefs over policy disagreements is shocking. There is no basis in federal law to prosecute government officials who decide, with and on behalf of their constituents, that their communities are better served by opting out of participation in the federal deportation system. And that kind of prosecution would be an assault on the principles at the core of our constitutional system.Nielsen’s threat may or may not be empty. Either way, it is unacceptable. Privacy statement. This embed will serve content from We are now nearly one year into the Trump administration’s seemingly endless attempts to threaten, cajole, and coerce local governments into abandoning what is commonly referred to as “sanctuary” policies. There are hundreds of such jurisdictions that, in a variety of ways, have decided not to entangle themselves in the federal government’s deportation program. Those communities have decided it’s not worth the financial burden or legal risk or harm to public safety and community trust — or all of the above.Unhappy with those decisions, the administration has tried a laundry list of tactics over the last year to intimidate localities into giving up. Its attempts to take away federal funding, for example, have been met with defeat after defeat after defeat in the courts. And its attempt to publicly embarrass localities into changing their policies with a weekly report had to be suspended when Immigration and Customs Enforcement’s rampant errors came to light and law enforcement rightly balked at this form of bullying. The most recent broadside in this campaign is the administration’s decision to float the possibility of criminal prosecutions. In an interview earlier this month, Acting ICE Director Thomas Homan said he had asked the Justice Department to look into charging local officials with violating a federal statute for “harboring” noncitizens. Yesterday, Secretary Nielsen doubled down, confirming that her agency had sought such prosecutions. And, like Homan, she made clear that the threat of prosecution was being used as a political cudgel. These threats are lawless and baseless. Local officials commit no crime when they and their communities decide not to participate in deportations. They do not, as Homan wrongly claimed, harbor anyone from deportation by simply opting out. ICE can arrest people on its own — and in fact Congress gives the agency billions of taxpayer dollars each year to do just that.But local police are under no obligation to use their time and resources to help with arrest, detention, and deportation. Local jails need not allow ICE agents to roam their facilities, conduct interrogations, and make arrests without a judicial warrant. And government officials need not share home addresses of local residents to make it easier for ICE to carry out its mass deportation campaign. The point of sanctuary policies is non-participation, meaning that if ICE wants to arrest and deport people it must do the work itself. There is nothing at all criminal about that, and it is irresponsible to suggest otherwise. In fact, state and local governments’ ability to opt[...]

Big Corporations Make Millions by Selling People a Chance to Get Out of Jail

Tue, 16 Jan 2018 18:15 -0500

Who benefits from wealth-based incarceration? The bail sharks. If you got arrested, could you come up with the bail needed to buy your immediate freedom? For most people, the answer is no. Even though those arrested haven’t been convicted of a crime, the only way for them to get out of jail while they await their day in court is to come up with an alternative source of money. Enter big insurance companies like Lexington National. They’ll get you out, but you have to pay them a fee that you’ll never get back, which guarantees them a hefty profit regardless of the outcome of the case. If you think this is corporate greed run amok, you aren’t alone. The legal right to turn a profit on bail is a rare phenomenon globally: It's only legal in the U.S. and the Philippines. And for good reason. After all, the people accused of a crime — and their families desperate to have them home — are hardly in a position to bargain. Since they run the risk of losing their job or home, the accused are at the mercy of bail bond companies, which have a huge amount of leverage over people who sign their exploitative contracts. That’s why bail contracts often contain terms like installment plans and high interest rates that lead to years of debt. These contracts might even allow a bail bond agent to return a person to jail simply because their collateral loses value — after, for example, a car crash or a house fire — or because they got a new phone number without immediately notifying the insurance agent. These contracts often also allow bond companies to follow their “clients” and to demand detailed information about their lives — like where they go, who they see, and when they get a new job — or to search their family’s property at any time without notice or a warrant. And no matter what happens, the person who entered into a bail bond contract — often a mom, wife, sister, or other female family member — is on the hook to pay. Even if a person does everything he is required to, and even if he is eventually found not guilty, he’s paying the company’s fee. These “bail sharks” have a pretty sweet deal, altogether raking in about $2 billion a year. And because these companies are so profitable, they are able to pour money into state-level candidates, committees, parties, and ballot measures to push back against the growing national momentum for bail reform. For example, Lexington National is working in states across the country to fight reforms that threaten their profits. They even went so far as to sue New Jersey after the state overhauled its money bail system. Last year, the Garden State moved to a system that no longer relies so heavily on money bail. Before the change, it was common for people who could not afford to pay bail to be jailed awaiting trial for months. The average wait was a whopping 10 months. Courts in the state now rarely set money bail, instead allowing most people to return home. The number of people locked up in the state’s jails awaiting trial has plummeted, and people are showing up to court as required. Reform is working for the people of New Jersey. Lexington National isn’t so pleased, however. They are suing the state to bring back money bail. It’s not hard to guess why. Lexington National filed suit, arguing that there is a constitutional right to money bail. They do not argue that more people should be released before trial. Rather, they contend that people should have the right to pay cash bail to secure their release. Put simply, Lexington National wants to preserve the bail system to protect its bottom line. New Jersey provides an example of a successful alternative to relying so heavily on money bail. That threatens the industry’s profits, not just there, but in all the other states considering making the same move away from money bail. Litigation isn’t the only way Lexington National tries to subvert bail reform. In Maryland, t[...]

The Trump Administration Abandons Its Obligations to Trans Students

Tue, 16 Jan 2018 18:00 -0500

The Education Department says that claims of discrimination against transgender students are now outside its jurisdiction.

The Trump Administration didn’t wait long to deliver its first blow to equality for transgender communities in 2017.

Last February, the administration withdrew guidance issued by the Departments of Education and Justice in 2016 that helped public schools implement Title IX, the 45-year-old federal civil rights law that prohibits discrimination on the basis of sex in education to make schools safer and more just for transgender students. Now, according to new reporting by the Huffington Post, the Trump administration is doubling down on exclusion and bigotry, with the Department of Education dismissing complaints of discrimination brought by transgender students.

The Huffington Post reports that it uncovered at least three cases of alleged anti-transgender discrimination that the Department of Education’s Office for Civil Rights dismissed over the past few months. In one case in Texas, a transgender student accused his high school of not allowing him to use the bathroom that corresponds to his gender identity or room with his teammates when they traveled overnight. In response to his complaint, the department’s Office for Civil Rights cited the administration’s rescission of the Obama guidance for its dismissal of the teenager’s complaint.

There’s a good reason the Trump Department dismantled the guidance. When it was issued, the guidance provided important clarity to public schools across the country on the steps they needed to take to ensure that they were respecting the civil rights of their transgender students, such as using the appropriate pronouns when addressing a transgender student. When the Trump administration withdrew the guidance, it sowed confusion by removing that clarity.

However, it did not — nor could it — remove the underlying legal requirements on school districts. Courts have repeatedly concluded that federal civil rights laws like Title IX protect transgender students against discrimination, including in the context of restroom and locker room use. The exact kind of cases that the department’s Office for Civil Rights is now killing.

According to the Department of Education, claims of discrimination against transgender students are now outside of its jurisdiction. But nothing could be further from the truth. The Trump administration is simply choosing to abandon their obligation under federal law. With this shameful inaction, the Trump administration is attempting to write transgender students out of the protections of Title IX.

The Trump administration may abdicate its responsibility to transgender students, but the ACLU will not. Just because the Department of Education may choose not to uphold the law, it doesn’t mean the law has changed. The ACLU will continue to fight — including in court — for transgender students’ right to an education free from discrimination.

If you or a trans student you know has suffered discrimination at school, contact the ACLU.

Martin Luther King Stood for More Than Love

Tue, 16 Jan 2018 12:30 -0500

On MLK's birthday, we owe thanks to everyone who continues to work for racial justice with their backs as straight as can be.

This piece originally appeared at The Hill.

Martin Luther King often spoke of the need for unconditional love. In 1955, he told Black America, “We want to love our enemies — be good to them. This is what we must live by; we must meet hate with love. We must love our white brothers no matter what they do to us.” In his remarks on the King holiday, President Trump referred to love five times in three sentences.

“[King] would later write, ‘It was quite easy for me to think of a god of love mainly because I grew up in a family where love was central.’ That is what Reverend King preached all his life. Love. Love for each other, for neighbors, and for our fellow Americans. Dr. King’s faith in his love for humanity led him and so many heroes to courageously stand up for civil rights of African-Americans,” Trump said.

That is a whole lot of love, especially if it is the kind that says we love you no matter what you do to or say about us. I am not discounting the power of love, but celebrations of King focus on his “dream” and what he saw “at the mountaintop” because those things focus on the hoped-for end result: racial justice, brought about by love.

To finish reading this piece at The Hill, please click here.

The People v. Donald Trump

Tue, 16 Jan 2018 10:45 -0500

In the first year of Trump’s presidency, the courts have acted exactly how the Founders intended them to. Legal scholars and progressives have long expressed doubt about the utility of courts in advancing social justice. They argue that courts are inherently conservative, that victories often prompt costly backlashes, and that focusing on courts diverts attention from the more important work that needs to be done in the political arena. The first year of the Trump administration suggests that this skepticism is overstated. Much to the president’s dismay, those he calls “so-called judges” have repeatedly ruled against the Trump administration. Judges appointed by Republicans and Democrats alike have enforced constitutional guarantees against a president who has shown little regard for the Constitution. In this respect, the courts have performed just as Alexander Hamilton hoped they would. In the Federalist Papers, Hamilton argued that a judiciary with life tenure and the power to declare the political branches’ actions unconstitutional was essential, so that judges could serve as “the bulwarks of a limited Constitution.” Rarely has that role been more essential. Consider the results. Muslim ban  Multiple courts have invalidated all three versions of President Trump’s travel ban, enacted to make good on his campaign promise to prohibit Muslims from entering the country. The first court ruling against the ban came in an ACLU case filed just one day after Trump introduced it. Trump abandoned the first two versions of the ban after courts repeatedly ruled them illegal. The third and most recent version, also declared invalid by the courts, is now headed to the Supreme Court. But already, Trump has been forced to revise and limit his initial action. Transgender military ban  Two federal courts have preliminarily struck down President Trump’s prohibition on transgender people serving in the military, a policy he announced on Twitter without even consulting the military, which had previously determined that there was no reason to exclude transgender servicemembers. In December, two federal appeals courts unanimously rejected the administration’s effort to lift those injunctions, pending appeal. Cutting its losses, the administration chose not to seek Supreme Court review. Abortion access  Federal courts in the District of Columbia have twice ordered the Trump administration to stop obstructing access to abortion for teenagers in federal immigration custody. The head of the Office of Refugee Resettlement, Scott Lloyd, has no experience with immigration but is an ardent opponent of abortion. He has refused to allow four undocumented minors in federal custody to obtain abortions, even though they have a constitutionally protected right to do so. After federal courts repeatedly ruled for the women, the Trump administration backed down in the two most recent instances, releasing the women from its custody when the ACLU filed suit. DACA In December, a federal court in San Francisco temporarily ordered the administration to allow “Dreamers,” the undocumented immigrants whose parents brought them here as children, to renew their applications for protection from deportation, under the program known as Deferred Action for Childhood Arrivals, or DACA. On Jan. 13, the administration announced that it would follow the order and allow DACA recipients to renew their status pending a final resolution of the lawsuit. “Enemy combatant” detention In December, a federal court ordered the Trump administration to afford the ACLU access to an unnamed U.S. citizen the military has been detaining in an undisclosed location in Iraq without charges and without access to a lawyer for four months. The government chose not to seek an immediate appeal, and allowed the ACLU to consult with the detainee, who confir[...]

Ending Mass Incarceration Is a Winner for Politicians

Mon, 15 Jan 2018 10:45 -0500

Politics driven by fear of crime had direct, destructive social costs. This piece originally appeared at The Daily Beast.  For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook. But the “tough on crime” attorney general may be in for a surprise. In 2018, it turns out, demagoguery about crime no longer packs a political punch. In fact, support for reform may prove to be a sleeper issue in 2018 and 2020. This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s. Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes. Ronald Reagan launched a “war on drugs.” George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program. Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year. Politics driven by fear of crime had direct, destructive social costs. Today, with just under five percent of the world’s population, the U.S. has nearly 25 percent of its prisoners. Black communities bear the brunt, with one in four Black men serving time during their lifetimes. Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms  — a stark reversal of past policy. Every major candidate for president  — with the exception of Donald Trump  — went on the record supporting justice reform. Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime. His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates. This has chilled the artery of many politicians once eager to support reform efforts in Washington. For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics. But something unexpected happened on the way to the backlash. Lawmakers in blue and red states alike pressed forward with reforms. In 2017, 19 states passed 57 pieces of bipartisan reform legislation. Louisiana reduced sentences. Connecticut modernized bail. Georgia overhauled probation. Michigan passed an 18-bill package to reduce its prison population. And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore. Urban politics have been transformed, too. District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia. Justice reform proved a powerful organizing issue among the young and in communities of color. There’s a reason that candidates who embrace a criminal justice reform platform do well. Ninety-one percent of Americans support criminal justice reform, with two [...]