ACLU National

Syndicate content
Updated: 35 weeks 2 days ago

The Business of Financing Hate Groups: Legal to Censor, but Unwise

Mon, 08/12/2013 - 8:23am

This piece was first published as part of The New York Times Room for Debate discussion, "The Business of Financing Hate Groups," which asked:  "Should credit card companies stop processing payments to such extremist groups? Or in the interest of free speech, should these organizations continue to be allowed to receive donations via credit card?"

It's so tempting to go for the easy answer. Credit card companies are private businesses. They generally have the right, including possibly the First Amendment right, to refuse to deal with anyone. (Exceptions might include a collusive financial blockade of any group, which could violate antitrust law, and of course there are anti-discrimination laws.) That should apply all the more to bigots, right?

While superficially appealing, that answer is wrong. Pulling credit card services helps the haters and hurts free expression.

First, there's the "martyr" problem. Back in 2010, PayPal threatened to cut off Pamela Geller, the anti-Muslim blogger, for violating its "acceptable use" policy. Geller immediately draped herself in the First Amendment — and put out a call for donations. "Truth," she wrote, "is the new hate speech . . . . Want to make a contribution to my fight?" PayPal eventually relented, but it's clear that the denial of services to a "hate speaker" transformed her modest soapbox into a wider broadcast.

Besides, this is a nuclear option.

Advocacy groups cannot survive without money. Financial services companies, subject as they are to public and shareholder pressure, are ill-equipped to determine which groups should live or die in hard cases of alleged "hate speech" (like Web sites critical of Catholicism or same-sex marriage). Because denial of service acts to directly censor the controversial speech, financial services companies should not be in the business of making these tough calls.

Intolerance is a human tragedy and must be addressed. But if there's one cardinal rule in America, it's that we err on the side of counter-speech, not censorship, when we hear things we don't like but that don't directly hurt us. Usually that truth applies to the government, but as principle if not law, it very often applies with equal force to private parties.

The NSA is turning the internet into a total surveillance system

Mon, 08/12/2013 - 7:13am

This was originally posted on The Guardian.

Now we know all Americans' international email is searched and saved, we can see how far the 'collect it all' mission has gone

Another burst of sunlight permeated the National Security Agency's black box of domestic surveillance last week.

According to the New York Times, the NSA is searching the content of virtually everyemail that comes into or goes out of the United States without a warrant. To accomplish this astonishing invasion of Americans' privacy, the NSA reportedly is making a copy of nearly every international email. It then searches that cloned data, keeping all of the emails containing certain keywords and deleting the rest – all in a matter of seconds.

If you emailed a friend, family member or colleague overseas today (or if, from abroad, you emailed someone in the US), chances are that the NSA made a copy of that email and searched it for suspicious information.

The NSA appears to believe this general monitoring of our electronic communications is justified because the entire process takes, in one official's words, "a small number of seconds". Translation: the NSA thinks it can intercept and then read Americans' emails so long as the intrusion is swift, efficient and silent.

That is not how the fourth amendment works.

Whether the NSA inspects and retains these messages for years, or only searches through them once before moving on, the invasion of Americans' privacy is real and immediate. There is no "five-second rule" for fourth amendment violations: the US constitution does not excuse these bulk searches simply because they happen in the blink of an eye.

The government claims that this program is authorized by a surveillance statute passed in 2008 that allows the government to target foreigners for surveillance. Although the government has frequently defended that law as a necessary tool in gathering foreign intelligence, the government has repeatedly misled the public about the extent to which the statute implicates Americans' communications.

There should no longer be any doubt: the US government has for years relied upon its authority to collect foreigners' communications as a useful cover for its sweeping surveillance of Americans' communications. The surveillance program revealed last week confirms that the interception of American communications under this law is neither "targeted" at foreigners (in any ordinary sense of that word) nor "inadvertent", as officials have repeatedly claimed.

Last week's revelations are a disturbing harbinger of future surveillance. Two months ago, this newspaper reported that the US government has been forcing American telecommunications companies to turn over the call records of every one of their customers "on an ongoing daily basis", to allow the NSA to later search those records when it has a reason to do so. The government has since defended the program, in part on the theory that Americans' right to privacy is not implicated by the initial acquisition of their phone records, only by their later searching.

That legal theory is extraordinarily dangerous because it would allow the NSA to acquire virtually all digital information today simply because it might possibly become relevant tomorrow. The surveillance program revealed by the New York Times report goes one step further still. No longer is the government simply collecting information now so that the data is available to search, should a reasonable suspicion arise at some point in the future; the NSA is searching everything now – in real time and without suspicion – merely on the chance that it finds something of interest.

That principle of pre-emptive surveillance threatens to subvert the most basic protections of the fourth amendment, which generally prohibit the government from conducting suspicion-less fishing expeditions through our private affairs. If the government is correct that it can search our every communication in case we say or type something suspicious, there is little to prevent the NSA from converting the internet into a tool of pervasive surveillance.

Because of this very real possibility, these programs should be brought out of the twilight zone of the national security state and into the daylight, so that the public can decide for itself what privacy means in a digital age.

Learn more about the National Security Agency and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Stop and Frisk Found Unconstitutional

Sun, 08/11/2013 - 9:00pm

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

NEW YORK – Today in Floyd v. City of New York, a federal judge ruled that the New York City Police Department's stop-and-frisk practices are unconstitutional.

Ezekiel Edwards, director of the American Civil Liberties Union's Criminal Law Reform Project, said, "The ACLU celebrates today's decision by Federal Justice Shira Scheindlin declaring the NYPD's longstanding and widespread stop and frisk practices unconstitutional.

"As the decision exhaustively documents, the NYPD's stop and frisk policy clearly violated the 4th and 14th Amendments, subjecting millions of innocent New Yorkers – overwhelmingly Black and Latino – to unlawful searches through systemic racial profiling. We hope that today's decision, and the robust remedies the court has put in place, will mark the end to this dark chapter in the NYPD's history."

ACLU and Southern Coalition for Social Justice File Challenge to North Carolina's Voter Suppression Law

Sun, 08/11/2013 - 9:00pm

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

GREENSBORO, N.C. – The American Civil Liberties Union, the ACLU of North Carolina, and the Southern Coalition for Social Justice today filed a lawsuit challenging North Carolina's voter suppression law signed hours ago by Gov. Pat McCrory. The suit specifically targets provisions of the law that eliminate a week of early voting, end same-day registration, and prohibit "out-of-precinct" voting. It seeks to stop North Carolina from enacting these provisions, arguing that they would unduly burden the right to vote and discriminate against African-American voters, in violation of the U.S. Constitution's equal protection clause and the Voting Rights Act of 1965.

"This law is a disaster. Eliminating a huge part of early voting will cut off voting opportunities for hundreds of thousands of citizens and turn Election Day into mess, shoving more and more voters into even longer lines," said Dale Ho, director of the ACLU's Voting Rights Project. "Florida similarly eliminated a week of early voting before the 2012 election, and we all know how that turned out – voters standing in line for hours, some having to wait until after the president's acceptance speech to finally vote, and hundreds of thousands giving up in frustration. Those burdens fell disproportionately on African-American voters in Florida, and the same thing will happen in North Carolina. We should be making it easier for people to vote, not harder."

The lawsuit was filed on behalf of several North Carolinians who will face substantial hardship under the law, and on behalf of the League of Women Voters of North Carolina, the North Carolina A. Philip Randolph Institute, North Carolina Common Cause, and Unifour Onestop Collaborative, whose efforts to promote voter participation in future elections will be severely hampered if the measure takes effect.

North Carolinians use early voting in vast numbers. During the 2012 election, 2.5 million ballots were cast during the early voting period, representing more than half the total electorate. More than 70 percent of African-American voters utilized early voting during the 2008 and 2012 general elections.

Early voting provides flexibility in finding time to vote and significantly eases the burden of arranging transportation to a voting site. This is particularly critical for low-income voters, who are more likely to have hourly-wage jobs that don’t afford them the time to get to the polls on Election Day or during common work hours. Work, combined with child-care responsibilities, places great demands on voters living in poverty. Poverty in North Carolina is higher among African Americans, meaning a reduction in early voting opportunities will disproportionately impact voters of color.

"Today's lawsuit is about ensuring that all voters are able to participate in the political process," said Allison Riggs, staff attorney for the Southern Coalition for Social Justice. "Taken together, the new restrictions in this law will disenfranchise hundreds of thousands of eligible voters, depriving many of our most vulnerable citizens from being able to easily exercise a constitutional right. Additionally, the Voting Rights Act prohibits the state from implementing voting changes that will make it harder for Black voters to cast a ballot – and that’s exactly what this law does."

Eliminating same-day registration and out-of-precinct voting also imposes hardship and silences the people’s voice. In recent elections, North Carolinians could register, or update their registration information and vote, in one trip to an early voting site. In 2012, approximately 250,000 people did so. The new law eliminates this opportunity to register, effectively disenfranchising tens of thousands.

As for out-of precinct voting, for over a decade voters who accidentally cast a ballot in the wrong precinct could still expect to have their votes counted for races such as governor and president. If this law takes effect, those votes would be void.

"This law is a blatant attempt to make it harder for and dissuade many North Carolinians from registering and casting a ballot. As we have seen in other states, drastic cuts to early voting hours will result in longer lines and have a disproportionate impact on our state's most marginalized citizens, especially the low-income, elderly, and disabled who rely on early voting," said Chris Brook, legal director for the ACLU of North Carolina.

The case, League of Women Voters of North Carolina et al. v. North Carolina, was filed in the U.S. District Court for the Middle District of North Carolina.

ACLU Comment on DOJ Plans to Reduce Non-Violent Drug Sentences

Sun, 08/11/2013 - 9:00pm

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

WASHINGTON – Laura W. Murphy, director of American Civil Liberties Union's Washington Legislative Office, responded to Attorney General Eric Holder's proposed policy to reverse the growth of the federal prison population in advance of a speech today at the American Bar Association's Annual Meeting:

"Today, the attorney general is taking crucial steps to tackle our bloated federal mass incarceration crisis, and we are thrilled by these long-awaited developments.

"By mandating that U.S. attorneys change charging practices for low-level, non-violent offenders, these policies will make it more likely that wasteful and harmful federal prison overcrowding will end. Over the last year, in one of the few areas of bipartisanship, members of Congress have come together to call for smart criminal justice reform. While today's announcement is an important step toward a fairer justice system, Congress must change the laws that lock up hundreds of thousands of Americans unfairly and unnecessarily."

Throughout Eric Holder's tenure, going back to the successful passage of the Fair Sentencing Act in 2010, the ACLU has worked closely with the attorney general, his staff, and DOJ leadership to develop several of the policy changes announced today.

For more on the ACLU's work on criminal justice reform, see: 
aclu.org/racial-justice/criminal-justice

ACLU Comment on President Obama's Proposed Surveillance Reforms

Fri, 08/09/2013 - 2:50pm

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

WASHINGTON – American Civil Liberties Union Executive Director Anthony D. Romero responded to President Obama's four recommendations to reform the government's surveillance policies and programs made at a press conference today with the following statement:

"While the initial reforms outlined by the president are a necessary and welcome first step, they are not nearly sufficient. The bulk collection of Americans' phone records is only one of several troubling programs disclosed over the last two months. The president must work with members of Congress to reform all of these surveillance programs, including those authorized by Section 702 of the FISA Amendments Act, which collect, monitor and retain the contents of Americans' communications without a warrant. We also urge the president to release the relevant FISA Court opinions and agency memos that have created a body of secret law that is far removed from public oversight and adequate congressional review. We must ensure that the government's surveillance programs once again adhere to the protections afforded by the Fourth Amendment."

ACLU Comment on President Obama’s Proposed Surveillance Reforms

Fri, 08/09/2013 - 2:29pm

FOR IMMEDIATE RELEASE
CONTACT: media@dcaclu.org

WASHINGTON – American Civil Liberties Union (ACLU) Executive Director Anthony D. Romero responded to President Obama’s four recommendations to reform the government’s surveillance policies and programs made at a press conference today with the following statement:

"While the initial reforms outlined by the president are a necessary and welcome first step, they are not nearly sufficient. The bulk collection of Americans' phone records is only one of several troubling programs disclosed over the last two months. The president must work with members of Congress to reform  all of these surveillance programs, including those authorized by Section 702 of the FISA Amendments Act, which collect, monitor and retain the contents of Americans' communications without a warrant. We also urge the president to release the relevant FISA Court opinions and agency memos that have created a body of secret law that is far removed from public oversight and adequate congressional review. We must ensure that the government's surveillance programs once again adhere to the protections afforded by the Fourth Amendment."

This Week in Civil Liberties (08/09/2013)

Fri, 08/09/2013 - 1:21pm

In which state did a judge grant 29-year-old Jenny Hatch control over her life by denying her parents' guardianship?

What law authorizes the National Security Agency's mass surveillance programs?

How many prisoners suffering from serious mental illness does the state of Colorado hold in solitary confinement?

What federal court ruled this week that the government must provide automatic bond hearings to immigrants detained six months or longer while fighting their deportation cases in the Los Angeles area?

True or false: the former press secretary for Alabama Gov. Bob Riley stated this week that abortion opponents' true goal is not to make abortion clinics safer, but to close all abortion clinics.

Disability Is No Excuse to Deprive One of Civil Liberties

The guardianship system in this country raises serious concerns. That's why the guardianship trial of Jenny Hatch, a vibrant and active 29-year-old in a battle over who controls her life, struck such a chord. Jenny spoke for many other people with disabilities when she said clearly in her trial: "I don't need guardianship. I don't want it."

Government Reverses Course on Warrantless Wiretapping in Criminal Case, Admits Duty to Notify Defendants

Last week, the government finally took a step toward living up to promises it made in the Supreme Court this past fall. Reversing course in a little-watched criminal case in Florida, the government conceded its obligation to notify defendants when prosecutors intend to use as evidence communications intercepted pursuant to the FISA Amendments Act (FAA), one of the laws authorizing the National Security Agency's mass surveillance programs. But while the development in Florida is important, the government continues to take extraordinary efforts to conceal its use of the law from both Congress and the courts. As a result, the likelihood of any court reviewing the FAA's constitutionality in the context of a criminal proceeding remains slim.

Out of Sight, Out of Mind: Colorado Continues to Warehouse Mentally Ill Prisoners in Solitary

According to a new report from the ACLU of Colorado, Colorado currently holds 87 prisoners suffering from serious mental illness in solitary confinement. The number of prisoners in solitary confinement with moderate mental illness is much higher. This is despite the fact that a growing majority of the psychiatric community agrees that isolating seriously mentally ill prisoners for any length of time further damages their mental health. Additionally, courts across the country have been unanimous in finding that such isolation is a violation of the Eighth Amendment's ban on cruel and unusual punishment.

VICTORY: Federal Court Rules Immigration Detainees Deserve Fair Hearings

This week, we won another victory against one of the most draconian parts of our immigration system: the federal government's practice of putting immigrants in long-term detention without the basic due process of a bond hearing. In Rodriguez v. Robbins, a class action lawsuit brought by the ACLU, a federal district court held that the government must provide automatic bond hearings to immigrants detained six months or longer in the Los Angeles area while fighting their deportation cases.

The Anti-Abortion Agenda Explained (Here's a Hint: It's Not About Women's Safety)

During the current legislative session, more than 300 provisions were introduced across the country to prevent access to abortion, including some of the most severe abortion restrictions we've ever seen. For months, we have been lamenting that these extremist politicians must think we're stupid if they think we won't realize that their legislative maneuvering is part of a coordinated, national plan to outlaw women's health clinics and cut off access to abortion care.

Well at least one former political operative is willing to come out and say the truth – abortion opponents' true goal is not to make abortion clinics safer, but to close all abortion clinics.

Learn more about your civil liberties: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Breaking the Addiction to Incarceration: Weekly Highlights

Fri, 08/09/2013 - 1:16pm

Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it's ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature some of the most exciting and relevant news in overincarceration discourse that we've spotted from the previous week. Check back weekly for our top picks.

Mississippi Looks to Address Its Prison Problem

In June 2011, Time ran an optimistic piece about Mississippi's prison system, "Why Mississippi Is Reversing Its Prison Policy." A year earlier, Governing called the state "a model of corrections reform." The fanfare made some sense at the time. Mississippi's prison system had hit its all-time high in 2008 at about 22,600 prisoners, but had fallen by the end of 2010 to about 21,000. Lawmakers had made some changes in the previous several years to expand parole eligibility and divert some defendants from prison. The state was moving in the right direction.

It doesn't seem that way today. Over the course of 2012, Mississippi reversed course significantly, adding 1,000 prisoners to bring it back to 22,300, near its 2008 peak. Today's news is less sanguine about the scenario: "Growing Prison Population Problematic," reads a piece in this week's Jackson Clarion-Ledger.

At least you can't say the problem is going unnoticed in Jackson. Corrections Commissioner Christopher Epps is leading a working group of lawmakers, judges, prosecutors, and other stakeholders to find ways to get the state back on track. Mr. Epps is no stranger to leading the charge for reform—he championed the parole changes in 2008 that garnered Mississippi national press coverage. But he'll need to be more ambitious this time around.

Looking at Mississippi's own reports, there are some clear places to start. Admissions to prison in 2012 were up by almost 1,000 over 2011. A lot of those gains were made in property crimes and drug sales. Almost 1 in 4 admissions was for drug possession. Probation revocations accounted for 32 percent of prison admissions last year.

These are big pieces of low-hanging fruit, and we've seen other states target them successfully. In 2010, over half of North Carolina's prison admissions were from probation revocations. The state addressed that in 2011 by capping at 90 days the amount of time people could spend in prison if revocation was the result of a technical violation—missing a meeting, failing a drug test, etc. The bill took effect January 2012, and over the course of 2012, the state's prison population fell by almost 6 percent—more than all but two other states.

Other states, such as New York and Michigan, dramatically reduced admissions for drug possession earlier in the 2000s, and each state has seen its prison population fall dramatically, along with crime. As with North Carolina, there are certainly more factors behind the change, but the policy changes to drive down admissions to prison were a major piece of the puzzle. Mississippi should take note.

Other Interesting Items from the Past Week

  • Attorney General Eric Holder came out and said it: "I think there are too many people in jail for too long, and for not necessarily good reasons." Mr. Holder announced that the Justice Department is developing proposals for federal reforms, which he may mention in a speech to the American Bar Association next Monday.
  • Tennessee lawmakers passed a bill earlier this year allowing bail bondsmen to withdraw from their bond when a defendant pleads guilty or is convicted, rather than at sentencing. Trouble is, sentencing can come days or weeks later. That means that the defendant would need to post a new bond or stay in jail until he's sentenced. The change hurts the poor most—those who can't afford to pay for two separate bonds will face jail time even if they're ultimately only sentenced to probation. In the days or weeks behind bars, people can lose their jobs, miss bill payments, or fail to meet family obligations.

Want to know how addicted your state is to incarceration? Check out our new map for updates on recent activity in state legislatures to reduce prison populations, with contextual information about each state.

Learn more about overincarceration and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Eric Holder to Announce Major Criminal Law Reforms on Monday. It's About Time this Administration Caught Up with the States.

Fri, 08/09/2013 - 12:58pm

Next Monday, Eric Holder will give a speech that we expect to propose some major policy shifts in the federal sentencing and enforcement arena. As NPR reported this week, Holder's position is that "there are too many people in jail for too long, and for not necessarily good reasons." We could not agree more. Moreover, given the wave of criminal justice reforms we have seen cropping up in states around the country, now is the right time for the administration to get with the program and show some leadership in rolling back some pretty disastrous policies.

Over the past few years, state lawmakers have grown increasingly disenchanted with the results of extreme sentencing laws and broad criminalization of conduct instituted in the 1980's and 1990's. These results include 2.3 million people in prisons and jails, the fact that 1 in 4 adults now has a serious misdemeanor or felony on their record making it difficult to secure employment and housing, and the mind boggling price tag of over $70 billion dollars a year (not counting collateral costs).

During the recently-ended 2013 legislative session (see here for a session calendar), lawmakers took modest, promising steps to extract us from the mass incarceration trap. Here are the highlights:

MARIJUANA LAW REFORM

As we observed earlier this year, this is one of the strongest trends in criminal justice reform. The public, policy makers, and opinion makers are growing increasingly averse to senselessly punitive enforcement of marijuana laws. CNN's Dr. Sanjay Gupta's recent reversal of his previously hostile stance against marijuana is the most recent high-profile about-face in this arena. State lawmakers are taking cues: marijuana reform bills were introduced in 30 states this session. Below are some of the most impressive developments.

Washington and Colorado set the tone for the session with historic marijuana legalization initiatives that passed last fall. The passage of these measures with strong public support gave a boost to the long-term efforts of advocates in other states pushing for more sensible policies. Meanwhile, as progress unfolds elsewhere, advocates are holding their breath as Colorado and Washington begin the complex task of implementing large new regulatory schemes under the shadow of an ambivalent federal position.

In Vermont, where support for marijuana reform became a major campaign issue in the Attorney General race, the legislature passed a decriminalization bill (where possession remains unlawful but punishable only by a civil fine) by a large majority. Decriminalization bills in Hawaii, Maryland, New Hampshire, and New Mexico each passed one legislative chamber and are likely to return next year. A New York bill to eliminate the "public view" exception to the state's decriminalization law, which the NYPD has notoriously exploited by commanding people to empty their pockets during police stops and then arresting them for displaying marijuana in public, made it through the Assembly but not the Senate. A recently-introduced decriminalization bill in the District of Columbia was co-sponsored by a majority of City Council members and stands a strong chance of passing this fall.

Illinois, Maryland, and New Hampshire each legalized marijuana for medical use, which brings the total number of medical marijuana states to 20, as well as D.C. (which just opened its first dispensary after years of foot dragging by the Mayor's office). Medical marijuana bills were introduced 16 other states; you can find more details about all of these bills at the Marijuana Policy Project's website.

OTHER DRUG LAW REFORM

Criminal justice trend-setter Colorado passed SB 250, a complete rewrite of the state's Controlled Substances Act (summary here). The bill creates a new drug classification and sentencing grid with reduced penalties, raises the threshold amounts that trigger higher penalties, allows felony drug convictions to be reduced to misdemeanors under certain conditions, and more. An analysis of the bill estimates that the bill could reduce prison admissions by five percent or more.

California's Senate passed SB 649, a "wobbler" bill giving prosecutors the discretion to charge any drug possession as a misdemeanor rather than a felony; the Assembly takes up the bill this fall. If the bill passes, California will join 13 other states and the District of Columbia in allowing misdemeanor charging in all drug possession cases. Alaska's Senate passed a bill to make possession of some drugs misdemeanors in all cases, but the House did not approve it.

And Louisiana passed Governor Jindal's bill to divert some defendants from prison and allow some prisoners to earn sentence reductions if they complete a drug treatment program.

MANDATORY MINIMUM SENTENCING REFORM

Oregon advocates set their sights high this year with a bid to repeal mandatory minimums for Robbery II, Assault II, and Sexual Abuse I, which have become major incarceration drivers in the state. In the face of fierce opposition from district attorneys, bill supporters gave up the mandatory minimum reforms to ensure passage of the rest of the bill, which included modest drug and property crime reform while emphasizing community corrections (HB 3194), and is projected to avert future prison growth and costs.

Efforts to eliminate mandatory sentences for certain drug offenses were introduced in Florida, Louisiana, North Carolina and South Carolina, but did not pass. A bill still pending in Massachusetts would repeal mandatory minimum sentences for all nonviolent drug offenses.

Short of repeal, several states have taken up "safety valve" measures allowing judges to depart from mandatory minimums in special cases. Hawaii passed SB 68, creating a safety valve for certain lower-level felonies. Georgia passed HB 349, which creates a very limited safety valve for drug and other offenses. The recent publication by ALEC of a model safety valve bill for the states signals that we will see many more reforms like this next year.

OTHER SENTENCING REFORMS

Indiana overhauled its criminal code. The bill creates a new set of felony sentencing tiers, which if applied to felony convictions from 2008-2012 would have lowered the sentence range for over 80% of defendants. Hundreds of people would have been convicted of a misdemeanor instead of a felony. Missouri lawmakers introduced a similar code reform bill, which passed one chamber and could be revived next year.

More notable reforms this session included: amendments to felony theft thresholds (Colorado and Maryland), parole reforms (South Dakota, Kansas and West Virginia), pretrial diversion (Colorado and Alabama), and reducing felonies to misdemeanors after good behavior (Texas, Colorado). Michigan passed a substantial indigent defense reform bill.

FEDERAL SENTENCING REFORMS

This year's federal legislation has been particularly encouraging. Most notable is the Justice Safety Valve Act of 2013, which would allow federal judges to sentence defendants below the mandatory minimums in some cases. Introduced by Sens. Leahy (D-VT) and Paul (R-KY), the bill has attracted broad support, including The New York Times, Grover Norquist, and a group of 50 former prosecutors.

Additionally, last week saw the release of the Smarter Sentencing Act of 2013, which would reduce some federal mandatory minimum sentences, make a modest expansion to the safety valve provision (though continuing to exclude anyone previously incarcerated in prison for more than 13 months in the past 10 years), and make the 2010 Fair Sentencing Act applicable to persons sentenced before its enactment, which would reduce sentences for people convicted of crack cocaine offenses.

THE BOTTOM LINE

A significant percentage of policy makers are reaching a consensus that our system of criminal penalties is inefficient, ineffective, and destructive and are supporting bills to change that. The results of some past reforms are bearing fruit: 2012 was the third straight year that the total number of prisoners in the U.S. decreased, shaving 27,770 prisoners off the 2011 total of 1.59 million. But few states have attempted to tackle reforms on a scale that matches the magnitude of the problem. Eric Holder has the opportunity to show some needed leadership on Monday. We hope his speech includes concrete plans for reforms that will push the envelope.

Learn more about overincarceration and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

A Guide to What We Now Know About the NSA's Dragnet Searches of Your Communications

Fri, 08/09/2013 - 7:39am

Charlie Savage of The New York Times confirmed this week what we have been warning about for years, including to the Supreme Court last fall: The National Security Agency (NSA) is "searching the contents of vast amounts of Americans' e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance . . . ." The rub: If you've sent an international email or text since 2008, chances are the government has looked inside of it. In other words, the same NSA surveillance dragnet that government officials have consistently dismissed as speculative and far-fetched is very, very real.

The Times's front-page story raises questions akin to those advanced by a report in The Guardian last week revealing that under a program codenamed "XKeyScore," NSA analysts use dropdown menus and filters — just like the ones we all use every single day on the web — to gain instant access to "nearly everything a typical user does on the Internet." Essentially, XKeyScore is the NSA's very own, very powerful surveillance search engine.

These reports are particularly alarming in light of government officials' emphatic public statements denying that the NSA ever peeks inside the contents of Americans' communications without a warrant. We've explained why those disavowals have been misleading; now, we know they're simply untrue.

There are important details about these programs that still need to be filled in. But a large amount of information is already in the public domain. What follows is an attempt to tie together many of the threads of the last two months' worth of disclosures, in order to get a big-picture look at what the NSA is doing, and how.

Prism or Upstream (or both)?

As a starting point, it's useful to review the various ways in which the government is watching us.

In early June, The Guardian and The Washington Post reported the existence of "Prism," a program authorized under the FISA Amendments Act (FAA), now located in Section 702 of the FISA, that allows the NSA to receive data directly from U.S. companies like Google and Facebook and thereby collect the contents of foreign targets' emails, text and video chats, photographs, and more. As we've explained, Prism sweeps up the communications of many Americans in the process.

But another component of the government's omnipresent surveillance of global communications that has escaped sustained attention — until this week's Times bombshell — is likely even more extensive. In The Guardian's first follow-up report on Prism, it published a slide that identified "Two Types of Collection" under the FAA: Prism, and Upstream. In contrast to Prism, "Upstream" collection involves the collection of communications — both their metadata and their content — as they pass through undersea fiber-optic cables. According to renowned surveillance journalist James Bamford, Prism was designed to fill "gaps in the coverage" provided by the NSA's Upstream collection. Those gaps exist both because certain communications are not available through Upstream, and because Prism collection avoids encryption that may protect certain upstream-collected communications. (A new story in The Guardian reveals that once the government has this data, it can search through it for individual Americans' communications without a warrant.)

The NSA's data collection from undersea cables is not entirely new. Since the 1970s, at least, the NSA has been tapping cables on foreign soil to conduct surveillance abroad. But over the past ten years, that changed.

In 2005, The New York Times reported on a vast expansion of the NSA's role in intelligence gathering at home. First, James Risen and Eric Lichtblau disclosed a secret program of warrantless eavesdropping targeted at communications inside the United States. One week later, the same reporters revealed that the NSA had also been capturing American communications on a much broader scale by "tapping directly into some of the American telecommunication system's main arteries" with the cooperation of U.S. telecommunications companies. (The NSA's access to U.S.-based fiber-optic cables was recently revisited by the Associated Press and The Washington Post.)

The "Upstream" interception of domestic cables — which, Bamford says, carry "about 80 percent" of the world's telecommunications — allows the government to conduct pattern analysis on a huge trove of metadata, and to eavesdrop on foreign-to-foreign communications that travel over U.S. networks. But it also has another serious and inevitable consequence: the warrantless acquisition of metadata and content concerning purely American communications.

Savage's story in the Times advances the ball by explaining, at least in part, what the government does with the things it's accessing via U.S.-based cables. Intelligence officials told the Times that the spy agency casts a net that ensnares virtually every electronic and text communication passing through U.S. borders (in either direction) over fiber-optic networks. The government makes a copy of everything; it then searches inside every message and retrieves, for longer-term storage, any message that includes content matches to "selectors," or approved "targets" under Section 702 of the Foreign Intelligence Surveillance Act.

But the government's dragnet is not confined to the fiber-optic cables running across domestic boundaries. Recent reporting by Brazil's O Globo, Germany's Der Spiegel, and Australia's Sydney Morning Herald — all based on documents obtained from Edward Snowden — paint a picture of an interconnected network of communications cables and facilities across the world to which the United States has access. (Globally, roughly 99 percent of the world's communications travel over undersea fiber-optic cables.) The government apparently gains that access through its own taps, arrangements between American and foreign telecommunications companies, or agreements with foreign intelligence services. When NSA Director Gen. Keith Alexander says he intends for the agency to "collect it all," this is exactly what he means.

How does XKeyScore fit in?

The bottom line: However it does it, the United States is accumulating an almost incomprehensibly massive trove of information, in the form of both metadata and content. But the sheer comprehensiveness of that data also presents the government with a confounding practical problem: If you're looking for the proverbial needle in the most colossal digital haystack the world has ever known, how do you even begin to go about finding it?

One way, as Savage's reporting tells us, is by "copying and then sifting through the contents of" the communications that pass over U.S. borders, and then marking some of those messages for longer-term storage in the government's content databases.

But another — though perhaps related — way to sort the world's data is, apparently, by using XKeyScore.

In typical Fort Meade-ese, the agency's training presentation defines XKeyScore as an "Exploitation System/Analytic Framework" that "[p]rovides real-time target activity." In plainer English, XKeyScore is an integrated set of software interfaces, databases, and servers that allows analysts to find and access the online activities of anyone in the world, in real time. As Marc Ambinder — who has previously written about XKeyScore — explains, it "is not a thing that does collecting," but a cohesive system that lets the NSA sift and sort through the enormous pile of data the agency is vacuuming up every minute around the world.

In other words, XKeyScore is something like a search engine.

Of course, it's a uniquely powerful one; a slide published by The Guardian indicates that it can both search deeper into data and process it faster than the NSA's other tools. In part, that's because XKeyScore involves the use of 700 servers deployed at approximately 150 sites around the world—mostly U.S. and allied military and intelligence facilities, as well as U.S. embassies and consulates. Servers at each site permit the retention of one months' worth of metadata and three-to-five days' worth of content at a time. Ambinder writes that XKeyScore is "useful because it gets the ‘front end full take feeds' from the various NSA collection points around the world and importantly, knows what to do with it to make it responsive to search queries."

Thus, XKeyScore is a sort of clearinghouse for data collected around the world, as well as an interface for homing in on particular information. (The worldwide server network receives this data from various sources: the Upstream-collecting undersea cables, government-satellite collection, and the Prism program. How all of the NSA's sources of information relate to how and where they are stored is a very important hole in what is already publicly known.) Data flows into XKeyScore collection sites; it is stored on the system's servers, with content remaining there for between three and five days, and metadata for as long as a month; and NSA analysts search those servers to identify the communications of its targets.

Who exactly is the NSA targeting?

But XKeyScore is not just a practical solution to the problem of collecting all of the world's data. It's also supposed to implement restrictions on whose data the NSA is lawfully permitted to examine; effectively, it is the NSA's proxy for the full protection of constitutional privacy rights to which American citizens are entitled.

Since the FAA prohibits the targeting of U.S. persons, or even foreign persons inside the United States, the NSA is not supposed to be able to indiscriminately seek out data in its streams. Thus, as The Guardian's slides reveal, NSA analysts must select "foreign factors" in order to conduct searches through XKeyScore. The NSA's XKeyScore "foreign factors" appear to be the same as those disclosed in an earlier Guardian story about NSA targeting procedures, that impose limited rules on the government's warrantless surveillance authority under the FAA.

As our explainer from last month details, those procedures seriously threaten Americans' privacy—even if they are being properly followed by everyone in the NSA—because the protections for American are weak, and riddled with exceptions. Moreover, the prohibition on "targeting" Americans has only limited purchase when it comes to ensuring that Americans' communications will not be swept up in the NSA's global dragnet. Indeed, as my colleague Patrick Toomey discussed last month, "there is nothing inadvertent or accidental" about the size of these loopholes; they were written into the law for the very purpose of allowing the government to gain access to Americans' communications.

And this week's Times story confirms yet another reason that the NSA's procedures are inadequate. The new revelations make clear that the government's use of Section 702 goes far beyond what it has previously confirmed to the public — that its foreign-intelligence surveillance only captures the communications of U.S persons or others inside the United States who are in direct contact with the NSA's targets. Instead, the NSA can search the communications of everyone for information "about" its targets — at least when those communications travel across American borders. Capturing communications "about" approved targets means that no matter who you are or who you talk to, the content of your emails and texts are fair game for NSA surveillance.

Greenwald's reporting presents a different threat as well. The XKeyScore slides show us how an analyst might have the technical capability to breeze past targeting limitations by clicking through filters the way we all search for the lunch we want to order.

According to the slides released by The Guardian and Greenwald's reporting, XKeyScore allows analysts to search the metadata and content residing on any XKeyScore server by different selectors — name, email address, telephone number, IP address, keywords, and even language or type of Internet browser — "without prior authorization." Searches might either turn up content — which analysts can then view or listen to — or help an analyst identify an anonymous user who is, for example, searching for "suspicious stuff" or speaking a language "out of place" for a given region. Some slides also suggest that the XKeyScore searches can also query data stored in other NSA databases. And Ambinder insinuates that anything targeted through XKeyScore can be directed into one of the government's more permanent metadata and content databases, some of which the Post's Barton Gellman described in June.

In an online video shortly after the revelations began, Snowden claimed that "sitting at [his] desk," he could "wiretap anyone, from you or your accountant, to a federal judge or even the president, if [he] had a personal email." The government's reaction was both harsh and emphatic. Gen. Alexander went so far as to testify to the Senate Appropriations Committee not only that Snowden's claim was "false," but that "I know of no way to do that."

The Guardian slides give us good reason to believe that Snowden was telling the truth, and that Alexander was being coy. Greenwald reports that Snowden has stated that supervisors often find ways to circumvent the very targeting procedures that are meant to confine the NSA's searches: "It's very rare to be questioned on our searches," he said, "and even when we are, it's usually along the lines of: ‘let's bulk up the justification.'" As far back as 2009, members of Congress were raising alarms about the NSA's collection under the FAA, including Rep. Rush Holt's ominous warning that "[s]ome actions are so flagrant that they can't be accidental."

* * *

We'll have to wait for additional revelations — or, preferably, official disclosures by the government — to fully understand how XKeyScore, and the government's other FAA surveillance capabilities, actually work, and how much power NSA analysts have to circumvent the agency's own procedures. But what we already do know gives us plenty of important reasons to reject it as a model for surveillance that is compatible with the Constitution.

Learn more about government surveillance and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Locked Up: Class-Action Lawsuits Challenge Mandatory Detention of Immigrants

Thu, 08/08/2013 - 12:30pm

We have a broken immigration system. One of the worst features of that system is our draconian immigration prisons—and in particular, our system of mandatory immigration detention. On any given day, thousands of men and women are put in detention because our government is trying to deport them for a past crime. Often these people are longtime legal residents of our country who have rehabilitated themselves, raised families, and given back to their communities. But under the government's overbroad interpretation of the mandatory detention regime, they stay locked up, no matter what, at huge expense to taxpayers, until their immigration case is decided.

Take the example of Clayton Richard Gordon. Gordon immigrated from Jamaica to the United States as a green card holder in 1982 when he was six years old, and he's lived here ever since. The father of two U.S. citizens, Gordon joined the National Guard in 1994 and, two years later, began active duty in the United States Army (from which he was honorably discharged in 1999). In 2008, Gordon was arrested after police found cocaine in the home he shared with relatives; he was released from custody the same day. He pleaded guilty to possession with intent to sell, and served three years of probation. Gordon restarted his life. He and fiancée purchased their first home and had a son, now three years old. Gordon ran his own contracting business. Committed to giving back to his community, he was renovating a property in an economically depressed area into a transitional home for single mothers coming out of incarceration – a project that he himself started and that, without him, is on hold. On June 20, 2013, after Gordon said goodbye to his fiancée and son and left for work, he was suddenly surrounded and detained by armed immigration agents. Now, under the government's interpretation of the law, he cannot even be considered for release on bond. He remains in mandatory lock-up in Franklin County Jail in Greenfield, Mass.

Friday and again today, the ACLU and its partners filed two class action lawsuits challenging the mandatory detention of people like Gordon in Massachusetts and Washington State. We're arguing that the mandatory detention laws do not apply to people like Richard, and that they instead deserve the basic due process of a bond hearing where a judge can determine whether they need to be locked up or should be released.

Generally, U.S. immigration laws allow the authorities to detain individuals or release them on bond or conditions of supervision, such as an ankle monitor, while their deportation cases are being decided. Mandatory detention is a narrow exception to this rule for a narrow group of individuals: people who are convicted of certain crimes and who are taken into immigration custody as the time they are released from the criminal justice system for such a crime. But for years, the Department of Homeland Security has misapplied mandatory detention to individuals, like Richard who have been living in the community for years since their release without incident.

We've gone to court for Gordon and others in his situation because the government's expansion of mandatory detention is not only illegal, but violates our basic sense of fairness. People who have served their time, turned their lives around, and are now supporting their families and contributing to their communities should not be separated from their families and condemned to mandatory lock-up. In America, everyone should get a chance to see a judge to determine if they need to be locked up before their freedom is taken away.

Gordon v. Napolitano is being brought by the ACLU of Massachusetts, ACLU Immigrants' Rights Project, and the Political Asylum / Immigration Representation Project.

Khouri v. Asher is being litigated by the Northwest Immigrant Rights Project, ACLU Immigrants' Rights Project, ACLU of Washington, and Gibbs Houston Pauw.

Learn more about immigrant incarceration and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

The Director of "How to Make Money Selling Drugs" on Ending an Embarrassingly Racist War

Thu, 08/08/2013 - 10:58am

Matthew Cooke's new film "How to Make Money Selling Drugs" breaks down the War on Drugs. In this interview, he talks with Ezekiel Edwards, lead author of the ACLU's report Marijuana in Black and White.

Ezekiel Edwards: "How to Make Money Selling Drugs" is structured like a video game where players get tips on how to advance from one level to the next, from making small sales on the corner to running an international cartel. But the structure and the title are ultimately ironic, and allow you to present a powerful indictment of the human cost of the War on Drugs.
Matthew Cooke: The information is indeed out there that the war on drugs causes more damage than drugs themselves, and drug abuse and drug addiction are best served by a medical approach. But we have not asked our representatives to change the policy on our behalf, and so we are in this staggering human rights crisis of epic proportions. It is not only in this nation, but also worldwide. We are living with the largest prison population in the history of the planet and policies that are traditionally rooted in racism and still, to this day, absurdly and embarrassingly and horrifically racist in their application, and classist to boot. So, we asked ourselves, how do we reach an audience that does not normally watch documentaries at home, that is politically apathetic, that maybe feels that there is something wrong intuitively but does not know the scope? How do we reach an audience of next generation voters who are bored to tears of the double talk politicians?

EE: Why should Americans who are not directly caught up in the drug war care about it? What would you say to somebody who has not had their door broken down by a SWAT team, who is not living in a rough part of Baltimore, who is not being criminalized because of their drug addiction, whose son has not been dragged away to prison for 10 years or more for having been some minor player in a drug operation?
MC: Well, I can't help somebody if they are a sociopath. But, if they have an actual heart beating in their chest and if I have done my job, which I did to the best of my ability, it would be to put the audience in the shoes of someone else in such a way that they feel "there but for the grace of God go I."

EE: The film ends with a pretty powerful call for the decriminalization of all drugs.
MC: It is very, very clear – a no brainer to me – that nobody should be put in prison for drug use or for possession, period. And we need to make it so that we eliminate the black market completely. The reality is that prohibition creates the opportunity for a black market. As long as we have poverty, and as long as we have the largest demand for marijuana and cocaine in the world, we are setting up the black market, and we are teaching people how to make money selling drugs.

EE: You use a good analogy that if we criminalized tobacco, nicotine addicts would not stop smoking and kids would stop trying cigarettes. It's preposterous to think otherwise. Instead, we would needlessly imprison people. But that is not how you deal with addiction. We should deal with addiction through education and treatment and regulation.
MC: I think a long time ago William Buckley made some comment that just because society does not outlaw syphilis, it does not mean that we condone syphilis. We are not trying to criminalize every single thing that somebody could do that is bad for them using a police force. So, why have we become so accustom to the idea that in this particular case it makes sense? The emperor has no clothes, and we are just so used to it. We think that it must make sense because otherwise why would we be taking this approach so aggressively for so long? But it is just one of those cases of insanity that I think in a hundred years we will look back and say "Oh my God, we were really, really a mess."

EE: I think that one of my favorite segments in the film was discussion of the secret level, in which you explored how government officials can take out political opponents and win elections by being tough on drugs.
MC: Well that is the bad seed from which this rotten fruit has emerged, isn't it? There is no actual, substantive, intelligent reason for the war on drugs to exist other than for the purpose of building political capital and ensconcing this hideous status quo that still exists today.
The secret level is really "let's expose the secret." We want to assume the best about ourselves, that the War on Drugs exists out of a grave concern for our children and our children's children and drug addicts, but it does not exist for that reason at all. It has a completely different origin. It all roots in racism. The first marijuana laws were enacted purely to subjugate the Mexican worker population in Southern California. A couple of decades later, we can look at the New York Times headline that reads "Negro Cocaine Fiends." The reality at that time is that there were studies done on the abuse of medicinal and recreational cocaine. And who consumed it? The majority were middle class white women in the suburbs. This nonsensical paranoid hysteria around what was happening with the addicts in minority communities was invented out of whole cloth and man-bites-dog journalism and was used to throw minorities into prison to rally up support for racist constituents of racist politicians. This was the society we lived in for many, many years. It's ridiculous and absurd for the US citizenry and political culture today to not recognize that this stuff is so deeply embedded into the structure of who we are and that all you have to do is lift up the first rock of some sort of public policy like the War on Drugs, and you see the rot from which it has emerged.

EE: Your film does a great job of showing the overly aggressive and militarized policing tactics that are being used to go after people who are suspected of just possessing drugs.
MC: This is total 1984 insanity. I don't smoke marijuana, and I don't really do recreational drugs ever. If I wanted to smoke some marijuana with somebody, why in the hell should I not be able to do that? And most of the country agrees with that. And yet the reality is that if someone tipped off the cops that I had marijuana in my house, a SWAT team could come in and kill my dogs, threaten me, and if I pulled out a bat or a gun because my home was being invaded, they could shoot and kill me, and there would be absolutely no accountability whatsoever. So if we want to pretend that we are trying to protect families, protect our communities, and have and uphold a safe and secure environment for ourselves and our children, what in the hell are we doing with 50,000 SWAT raids a year? Mostly on non-violent drug offenders. This is a nightmare.

EE: One of the most striking topics of the film is on mandatory minimum sentences, showing that these incredibly harsh and rigid punishments for drug possession and sale were preceded by an exaggerated political and media firestorm and enacted into law in great haste and with minimal deliberation. I think that is something that people do not realize.
MC: It is this horrible chemical reaction that seems to occur between the mainstream media and our politicians, where the media whips the public into a frenzy so it can sell papers and advertising and the politicians jump on it so that they can secure votes. And we are in trouble every time that happens.
This incident where we had this incredible basketball player, Len Bias, who overdosed on powder cocaine, comes at a point where there is already hysteria about a crack epidemic. And it's like everyone is looking for someone to blame. They want to blame pusher as if there is this giant army of evil pushers that are setting up billboards and insidiously infiltrating all of our bodily fluids. This is out of Doctor Strange Love, or something. If we want a blunt solution, we should take the nearly 35 billion dollars [state and federal] that we are spending each year hammering people over the head with the criminal justice system and put it into education. Let's put our money where our mouths are. Let's put it into rehabs. Most people are on a waiting list.

EE: Where do you see this country headed in terms of the drug war? And do you see a way for us to extricate ourselves over the next several years?
MC: Yes, I am actually – surprisingly – very optimistic. We are observing a key change: a great majority of Americans believe that marijuana is a non-jailable offense, which is great because marijuana is one of the primary fuels for the war on drugs and for the drug dealers. If we decriminalize, we are taking an enormous amount of steam power out of the money-making machines of cartels and drug warriors. I think overall people are starting to get the picture. Either we fall even deeper into this Draconian system where we arrest or lock up millions of mostly poor people for what nearly half the country is doing anyway, or we wise up about it and change our law-and-order approach.
Adrian Grenier and I did a lot of press when this film came out. I do not think that we had one person argue with us about policy. We even went on Morning Joe, and Joe Scarborough said where is the line, where is the demarcation line where we say ‘no, the drugs are too hard, we've got to make it illegal.' And I said why do we need to hold the hammer of justice over an addict's head? Why is that a solution for any drug? And he just sat there and nodded his head. People with common sense are getting it. I am optimistic.

You can watch How to Make Money Selling Drugs online or in theatres.

More on the ACLU's recent report Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests is here.

Learn more about drug law reform and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

NSA Casts Massive Dragnet Over Americans' International Communications

Thu, 08/08/2013 - 6:34am

New Report Shows Spying Far More Extensive Than Previously Acknowledged

August 8, 2013

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

NEW YORK – The government is collecting and monitoring virtually all text-based electronic communication into and out of the United States, according to a new report from the New York Times. Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:

"The program described by the New York Times involves a breathtaking invasion of millions of people's privacy.  The NSA has cast a massive dragnet over Americans' international communications, collecting and monitoring all of them, and retaining some untold number of them in government databases.  This is precisely the kind of generalized spying that the Fourth Amendment was intended to prohibit.

"The government's scrutiny of virtually every international email sent by Americans will have extraordinary consequences for free expression. Americans will inevitably hesitate to discuss controversial topics, visit politically sensitive websites, or interact with foreigners with dissenting views. By injecting the NSA into virtually every cross-border interaction, the U.S. government will forever alter what has always been an open exchange of ideas."

Earlier this year, the United States Supreme Court dismissed a challenge to the government's surveillance program brought by the American Civil Liberties Union after the government contended that the plaintiffs' allegations of a dragnet surveillance program were speculative.

The Anti-Abortion Agenda Explained (Here's a Hint: It's Not About Women's Safety)

Thu, 08/08/2013 - 5:18am

During the current legislative session, more than 300 provisions were introduced across the country to prevent access to abortion, including some of the most severe abortion restrictions we've ever seen. For months, we have been lamenting that these extremist politicians must think we're stupid if they think we won't realize that their legislative maneuvering is part of a coordinated, national plan to outlaw women's health clinics and cut off access to abortion care.

Well at least one former political operative is willing to come out and say the truth – abortion opponents' true goal is not to make abortion clinics safer, but to close all abortion clinics.

In a recent op-ed published in the Huntsville Times, J. Pepper Bryars, the former press secretary and speechwriter for Alabama Gov. Bob Riley, writes about an Alabama state law that places onerous and medically unnecessary restrictions on abortion providers. In defending that law he quotes a representative from Planned Parenthood Southeast:

"'The true goal of the law is to make all abortion illegal and inaccessible in Alabama,' said Nikema Williams, vice president of public policy for Planned Parenthood Southeast, when the Alabama bill passed last April. Despite all the talk about ensuring the facilities are safe and well-regulated, Williams and others believe the true goal is to close the state's abortion clinics."

Bryars' response: "Of course it is."

Finally an honest politician! Or at least an honest former political aide.

Bryars goes on to say:

"Our goal should remain, as Williams said, to make all abortion illegal and inaccessible in Alabama. And our strategy and arguments should always support that long-term goal…"

Bryars' cool and clear admission of the true goals of the anti-abortion strategy stands in stark contrast to misleading public arguments abortion opponents often make. For example, when Dan McConchie, vice president for legislative affairs of Americans United for Life, is quoted saying: "stricter regulations of doctors and facilities represented a genuine effort to ensure that if clinics are going to operate, they operate to high standards that protect women's health and safety,", we can infer that their true concern is less about women's safety and more about returning us to a time when abortion was inaccessible in this country. In fact, McConchie's organization has offered sample regulatory laws to state legislators all over the country, including those in Alabama that aim to close down clinics providing safe and legal abortion. Groups like McConchie's and pundits like Bryars have a strategy: Pass laws that make it harder and harder for women's health clinics to stay open and make it more difficult for women to obtain the care they need no matter what their circumstances.

Bryars concludes his piece by again crystalizing the extreme intentions of his cohorts:

"Today there are only five abortion providers left statewide, and the goal of the pro-life movement should remain to support every alternative, enact every restriction, create every obstacle, until the number of abortion providers in Alabama falls to the only acceptable number – zero."

The ACLU along with the ACLU of Alabama, Planned Parenthood Federation of America, and Planned Parenthood Southeast, are working hard to ensure Bryars' vision goes unrealized. We filed a lawsuit challenging the Alabama law and, on June 28, a federal judge issued a temporary restraining order, preventing it from taking effect.

While we will continue to fight in the courts against extreme measures like the law in Alabama, we cannot rely on the courts alone to protect a woman's ability to obtain abortion and other reproductive health services like birth control. With your help, we can show the Bryars of the world that we are well aware of their extreme anti-abortion agenda to outlaw abortion in this country and thanks, but no thanks. Let's prove to him that we can and will hold firm against these dangerous laws and policies. We see what is happening and we want it to stop.

Learn more about abortion legislation and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

VICTORY: Federal Court Rules Immigration Detainees Deserve Fair Hearings

Wed, 08/07/2013 - 7:06pm

Today we won another victory against one of the most draconian parts of our immigration system: the federal government's practice of putting immigrants in long-term detention without the basic due process of a bond hearing. In Rodriguez v. Robbins, a class action lawsuit brought by the ACLU, a federal district court held that the government must provide automatic bond hearings to immigrants detained six months or longer in the Los Angeles area while fighting their deportation cases. The decision follows on the heels of a victory at the Ninth Circuit Court of Appeals this spring, which previously ordered bond hearings for some class members.

The government's track record on detention makes the importance of this ruling clear. The immigration lock-up system is massive, wasteful, and hugely expensive to taxpayers. In 2011, the government detained a record-breaking 429,000 immigrants at a price tag of $2 billion, even though most immigrants pose no threat to public safety and do not need to be locked up to make sure they show up for court. In many cases, the basic due process of a bond hearing would have prevented months or years of arbitrary detention and saved countless taxpayer dollars.

One example is Byron Merida. Byron has lived in the United States for nearly three decades and started several successful small businesses. All of his immediate family members are U.S. citizens or green card holders. Nonetheless, the government detained Byron without a bond hearing after it put him in deportation proceedings following his conviction for a non-violent crime. The government kept Byron behind bars while his immigration case wound through the courts, including his successful appeal to the Ninth Circuit. When Byron finally got a bond hearing as a result of our case, the immigration judge ordered him released on a $2,500 bond. In total, the government needlessly detained Byron for three years and four months—at a cost of nearly $200,000 to taxpayers.

Today's ruling also establishes key safeguards at prolonged detention hearings, requiring that the government provide them automatically and with adequate notice to the detainees, and noting that immigration judges should consider cost-effective alternatives to detention, such as ankle monitors, that avoid the fiscal and human costs of long-term lock-up. These safeguards will help ensure that the government stops arbitrarily stripping people of their liberty.

Rodriguez v. Robbins is being litigated by the ACLU of Southern California, ACLU Immigrants' Rights Project, the Immigrants' Rights Clinic of Stanford Law School, and the law firm of Sidley Austin LLP.

Learn more about immigrant detention and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

The Solitary Confinement Scorecard

Wed, 08/07/2013 - 10:06am

Over 30,000 prisoners in California have refused food to protest it. Innocent men freed from death row report that it drives people insane, killing everything inside of them before they ever see the execution gurney. Architects have called for an end to building the tiny cement cages used for it. And the UN has said it can amount to torture.

But still 80,000 people across the country are locked in solitary.

Several states worked to end the practice this year. Some succeeded. Below is the 2013 solitary confinement scorecard.

Citing Budget Woes, Two States Shut Down Facilities Where Men Were Sent to Disappear
Some of the biggest news in solitary this year was the closing of two "supermax" facilities – Tamms and Colorado State Penitentiary II – that held prisoners in complete isolation, some for decades.

Nevada No Longer Allows Kids to Be Locked Alone for Longer Than 72 Hours
Nevada successfully enacted a bill that places some restrictions on the isolation of youth in juvenile facilities. The law requires that a facility exhaust all less-restrictive options before placing children in isolation, limits the purpose of isolation, and commissions a study of segregation across the state. Nevada's new law will hopefully be a first step to eliminating the solitary confinement of children in the state.

Texas to Take an Honest, Comprehensive Look at Solitary throughout the State
Texas passed a bill requiring data collection to track the number of prisoners, both juveniles and adults, in disciplinary seclusion and the length of placement. The law also requires a review and report of administrative segregation throughout the state.

State that Locks Up the Most Kids Gets Close to Limiting Hours Spent Alone
Florida confines more youth under age 18 in its adult prisons than any other state, and some of them are subjected to solitary confinement, despite the growing scientific evidence of the severe psychological impact of solitary on young people's minds. However, SB 812 marked a significant step in the right direction; the bill, which ultimately did not pass, would have regulated the isolation of youth under 18 in adult facilities and limited the length of confinement. As proposed, the bill would have also limited "emergency isolation" of juveniles to 24 hours and "disciplinary cell confinement" to 72 hours for those found guilty of a major rule violation. In addition, the bill would have required out-of-cell exercise for juveniles in disciplinary cell confinement and protective custody to counteract the effects of physical isolation.

State that Has Sentenced Prisoners to Nearly a Decade of Segregation Proposed Limits and Positive Changes
In Massachusetts, prisoners can be sentenced to spend up to 10 years in solitary confinement for disciplinary offenses. However, the legislature is considering two bills (one in the House and one in the Senate) that would limit disciplinary segregation terms to six months, require regular review hearings, and provide for basic humane conditions for all prisoners in segregation or isolation units – light, ventilation, clothing, sanitary facilities, regular meals, medical and mental health treatment, access to personal property, visitation and communication rights, at least one hour per day of out-of-cell time, and the opportunity to participate in positive programs.

The Momentum for Change is Growing across the Country
These legislative reforms highlight a growing recognition of the need to limit solitary confinement. In addition to the states above, others like California, Montana, and New Hampshire, as well as the federal government, have also considered legislation that would limit the use of isolation, specifically for youth or the mentally ill, or are now reviewing the over-use of solitary confinement in their jurisdiction. We have seen undeniable progress in the 2013 legislative cycle, but more remains to be done on behalf of the 80,000 prisoners still subject to extreme and damaging isolation. The ACLU and advocates across the country are now gearing up to continue this important work in 2014.

Learn more about solitary confinement and other civil liberties issues: Sign up for breaking news alerts,follow us on Twitter, and like us on Facebook.

Government Reverses Course on Warrantless Wiretapping in Criminal Case, Admits Duty to Notify Defendants

Tue, 08/06/2013 - 2:08pm

Last week, the government finally took a step toward living up to promises it made in the Supreme Court this past fall. Reversing course in a little-watched criminal case in Florida, the government conceded its obligation to notify defendants when prosecutors intend to use as evidence communications intercepted pursuant to the FISA Amendments Act (FAA), one of the laws authorizing the National Security Agency’s mass surveillance programs. But while the development in Florida is important, the government continues to take extraordinary efforts to conceal its use of the law from both Congress and the courts. As a result, the likelihood of any court reviewing the FAA’s constitutionality in the context of a criminal proceeding remains slim.

Earlier this year, the government defeated the ACLU’s challenge to the warrantless wiretapping program in Clapper v. Amnesty by arguing that the plaintiffs lacked “standing” because they couldn’t show they had been harmed by the surveillance program. In advancing this argument, however, the government took pains to emphasize that other courts would have the chance to test the constitutionality of the controversial law. The government repeatedly assured the Supreme Court that criminal defendants who were prosecuted based on evidence obtained under the FAA would receive notice of that fact, thereby paving the way for judicial review. The Supreme Court took the government’s argument at face value, stating in its opinion that such notice could provide an opportunity for a future challenge.

The government’s actions after Clapper have raised many questions about the accuracy of the assurances it made to the Supreme Court. After Senator Dianne Feinstein suggested in congressional testimony that FAA-derived evidence had played a role in the prosecutions of criminal defendants in Florida and Illinois, attorneys for those individuals filed demands for official notice — of the kind the government had promised it would provide. But prosecutors initially denied they had any duty at all to provide that notice. Adam Liptak helpfully laid out the apparent inconsistencies between the government’s words and actions in a New York Times piece; an earlier ACLU blog post made a similar point, using additional examples drawn from the government’s defense of the NSA’s PRISM program.

On the heels of this scrutiny, the government made an about-face last Tuesday, when it finally acknowledged its duty to provide notice of FAA-derived information, at least under certain conditions. In United States v. Qazi, the Florida case, prosecutors told the court that while they don’t intend to use evidence derived from FAA surveillance of the defendants’ communications in this particular case, they would provide notice in cases where the government plans to rely on such material.

This concession is important, but it contains several significant qualifiers that highlight a larger problem. Because only the government has the power to prosecute, it ultimately controls which defendants — if any — have the opportunity to challenge the FAA. Thus, the government can continue to avoid court review of the statute by choosing not to use FAA-derived evidence at trial, by offering impossible-to-turn-down plea bargains or, in the extreme case, by abandoning prosecutions that risk an adverse ruling. In our legal system, judicial review should not occur only at the grace of the executive branch.

An even more troubling possibility exists. Reuters reported yesterday that law enforcement agents may be actively seeking to conceal the source of evidence derived from NSA surveillance, in order to avoid court challenges:

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence—information that could reveal entrapment, mistakes or biased witnesses.

Another report indicates that the NSA may have referred as many as 30 non-terrorism criminal cases to the Department of Justice based on information it obtained through electronic surveillance. Yet, to date, not a single defendant has received notice of prosecutors’ intent to use FAA-derived evidence.

If law enforcement agencies are manufacturing an “independent” basis for their criminal investigations in order to conceal their reliance on NSA surveillance, that practice violates both the letter and the spirit of the law. Criminal defendants have the right to know when the government’s evidence is derived from the NSA’s interception of their communications, so that they can test the lawfulness of that surveillance. Judicial review of the government’s warrantless wiretapping program should be more than a hypothetical promise to the Supreme Court.

Learn more about FISA: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Out of Sight, Out of Mind: Colorado Continues to Warehouse Mentally Ill Prisoners in Solitary

Tue, 08/06/2013 - 8:31am

Fifteen years ago, John Quinn* was a bright high school student with a promising future. A talented athlete, he was a star baseball and football player who earned his black belt in karate at age 10.  By all accounts, John was a friendly, intelligent kid who showed no sign of mental illness.

Today, John is rarely coherent and suffers from delusions and auditory hallucinations. He has attempted suicide three times. At least eight psychiatrists have diagnosed John as suffering from serious mental illness with psychotic features, including chronic paranoid schizophrenia. Fifteen years of solitary confinement in the Colorado prison system has completely eradicated the bright young man he had once been.

Imprisoned at age 18, John was almost immediately isolated in “administrative segregation” – Colorado’s term for solitary confinement – for participating in a three-way phone call and tampering with a bathroom lock.  He has never seriously harmed anyone during his many years in prison, yet he has never been able to work his way out of solitary confinement. After the first few years spent in isolation, John’s mental health started to slip away.

As his mental health began to deteriorate, John repeatedly requested to see a psychiatrist. He was rapidly losing his ability to think rationally, yet retained enough sanity to recognize he was in trouble. Not only were his pleas ignored, John was frequently disciplined for asking for mental health treatment. For years, John was left to deal with the voices and delusions on his own.

In late 2012, John was moved to Colorado Department of Correction’s new “Residential Treatment Program,” a program ostensibly designed to provide intensive mental health treatment for selected seriously mentally ill prisoners and avoid placing them in long-term solitary confinement. John’s “intensive” mental health treatment has thus far consisted of an average of 12 minutes of individual therapy and 41 minutes of group therapy each week.  Otherwise, John is alone in his cell most of the time. 

As long as he remains in solitary confinement and is denied meaningful mental health treatment, John will likely never regain his mental health or achieve any significant improvement. He may also continue to deteriorate.  The smart, fully functional young man he had once been is gone forever.

Unfortunately, John’s situation is not unique. According to a new report from the ACLU of Colorado, Colorado currently holds 87 prisoners suffering from serious mental illness in solitary confinement.  The number of prisoners in solitary confinement with moderate mental illness is much higher.  This is despite the fact that a growing majority of the psychiatric community agrees that isolating seriously mentally ill prisoners for any length of time further damages their mental health.  Additionally, courts across the country have been unanimous in finding that such isolation is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.  

Tom Clements, the late Colorado Department of Corrections Director, had been an advocate for reducing the use of solitary confinement as a way to deal with mentally ill prisoners. Prior to his death, Mr. Clements had been working with the ACLU of Colorado on devising better ways to treat the mentally ill in the prison system. We hope the incoming director, Rick Raemisch, who began his position last week, will fulfill Mr. Clements’ legacy and end the use of solitary confinement on mentally ill prisoners.

There are reasons to be optimistic. Raemisch successfully led the Wisconsin prison system after a federal court ordered all prisoners with serious mental illness be removed from its Supermax Correctional Institution. Unlike Colorado prison officials, he is used to working in a system that does not lock away its mentally ill prisoners in long-term solitary confinement.

Colorado’s practice of warehousing mentally ill prisoners in solitary confinement has left the state wide open to legal challenge. Raemisch’s actions over the next few months will determine whether the Colorado Department of Corrections becomes a leader or a cautionary tale.

Read the complete report Out of Sight, Out of Mind: Colorado’s Continued Warehousing of Mentally Ill Prisoners in Solitary Confinement here.

Click here for a fact sheet on mentally ill prisoners in solitary confinement in Colorado.

Thousands of prisoners in California are on hunger strike to protest being held in solitary confinement for decades. Stand with these courageous men to put an end to this inhumane practice.

*Name has been changed to protect privacy.

Learn more about solitary confinement and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

Disability Is No Excuse to Deprive One of Civil Liberties

Mon, 08/05/2013 - 12:20pm

The guardianship system in this country raises serious concerns. That's why the guardianship trial of Jenny Hatch, a vibrant and active 29-year-old in a battle over who controls her life, struck such a chord. Jenny spoke for many other people with disabilities when she said clearly in her trial: "I don't need guardianship. I don't want it."

On Friday a judge in Virginia denied guardianship to the parents of Jenny Hatch. Hatch will instead be able to live with her friends, couple Kelly Morris and Jim Talbert, as she had requested. This is a victory, but it should never have come to this.

If anyone else had been placed in an isolated location, against her will, with her cell phone and computer taken away, and not allowed to leave the building without permission, as Hatch was, she would either be able to lodge a charge of kidnapping, or be a prisoner convicted of a crime.

But, because Hatch is a person with a disability – and only because of that – it is completely legal, even though she has done nothing wrong.

Guardianship can, and often does, deprive a person of the ability to choose where she lives, who she sees, when she gets up in the morning, what she eats for breakfast, whether and where she works and whether she is allowed the right to vote.

Guardianship is typically created under two circumstances:

  • When adults – often seniors – develop a disability, especially one that affects the ability to manage finances or make complex decisions, their spouse or child is often encouraged to become their guardian.
  • And, when a child with developmental disabilities reaches 18, her parents are often encouraged to become the child's guardian – ostensibly so that they can continue to participate in medical and educational decisions for the child.

In both circumstances, other less restrictive options are available.

In the U.S., creating a power of attorney for health care or a power of attorney for financial matters is a better solution much of the time. These are contracts between the person with a disability and someone they trust – and choose themselves – to help advise them, or to make decisions if they are unable to. The person with a disability still keeps the right to make decisions in other areas of his or her life.

In another model, known as "supported decision-making," the person with a disability chooses a team of people to help her with decisions, and who have signed up to be available for advice and assistance. In Hatch's case, the judge was persuaded that this was the model to move toward. He recognized that Hatch should be able to choose who she lives with, who should advise her, and what she does with her life – but, like all of us, she would benefit from a support system to help with major decisions.  Talbert and Morris will have guardianship of Hatch for one year – after which they will move to the supported decision-making model.

Supported decision making and providing powers of attorney are the options we should look to first – rather than reflexively choosing guardianship and stripping a person of every civil liberty.

We still know too little about the full picture of guardianship in the U.S. We don't know how many people are under guardianship, much less the distribution between younger people with disabilities and seniors. Most importantly, we don't know how many guardians are respectful of their wards' wishes, and how many are callous, or downright abusive. What we do know is that it is the most draconian deprivation of an individual's rights in civil society.

So, what should we do?

We should have more, and clearer, conversations about guardianship that include the voices of those who are most affected by guardianship's grasp. We need to explore and further develop the best models to support individuals with disabilities in their decision-making. And, we need to be cautious when anyone suggests guardianship for our children, our parents or ourselves.

Most of all, we must recognize that disability should not be an excuse to deprive someone of her basic civil liberties.

Learn more about disability rights and other civil liberties issues: Sign up for breaking news alerts,follow us on Twitter, and like us on Facebook.

War Is Not The Answer ~ Religious Communities Must Stop Blessing War & Violence