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Court Ruling Gives FBI Too Much Leeway on Surveillance Technology

Wed, 05/08/2013 - 2:09pm

Today, a federal district judge in Arizona issued a very disappointing decision concerning the government’s obligations to be candid with courts about new technologies they are seeking a warrant to use.

The case involves Daniel Rigmaiden, who is being criminally prosecuted for an alleged electronic tax fraud scheme. The government used a surveillance device known as a stingray to locate Mr. Rigmaiden. A stingray operates by simulating a cell tower and tricking all wireless devices on the same network in the immediate vicinity to communicate with it, as though it were the carrier’s cell tower. In order to locate a suspect, a stingray scoops up information not only of the suspect, but all third parties on the same network in the area. This means that when the government uses a stingray to conduct a search, it is searching not only the suspect, but also tens or hundreds of third parties who have nothing to do with the matter. When the FBI sought court permission to use the device to locate Mr. Rigmaiden, it didn’t explain the full reach of stingrays to the court.

The ACLU and the Electronic Frontier Foundation filed an amicus brief arguing that when the government wants to use invasive surveillance technology, it has an obligation to explain to the court basic information about the technology, such as its impact on innocent third parties. This is necessary to ensure that courts can perform their constitutional function of ensuring that the search does not violate the Fourth Amendment. Unfortunately, today’s decision trivializes the intrusive nature of electronic searches and potentially opens the door to troubling government misuse of new technology.

In today’s decision denying the motion to suppress, the judge held that information about how the stingray operates – such as the fact that it scoops up third party data – was merely a “detail of execution which need not be specified.” We respectfully but strongly disagree.

If the government has probable cause to believe a suspect lives at a particular address and wants a search warrant, it obviously needs to tell the court if the address is a 100-unit apartment building and that the government intends to search all 100 units until it finds the suspect. Omitting such information would never be considered a “detail of execution.” Law enforcement should be held to the same standard when they conduct electronic surveillance.

The judge dismissed the significance of the stingray’s impact on third parties because the government deleted and did not review the third-party data after it located Mr. Rigmaiden. But the Fourth Amendment does not include a “no harm, no foul” rule. The violation arises from the fact that the government searched people who are not suspected of any wrongdoing. This is a violation even if the government doesn’t later use the information against those third parties.

Finally, the judge held that, under the “good faith” doctrine, suppression would not be the appropriate remedy even if there were a constitutional violation. The judge agreed with the government that the FBI agents “were using a relatively new technology, and they faced a lack of legal precedent.” Today’s ruling missed the opportunity to create an important legal precedent on electronic surveillance.

As new surveillance technology emerges, the government needs to err on the side of providing more, not less, information to magistrates. Technology evolves more rapidly than the law. Today’s decision sends the troubling message to the government that it’s alright to withhold information from courts about new technology, which means that the law will have an even harder time catching up.

(Crossposted on the ACLU of Northern California's blog)

FBI Documents Suggest Feds Read Emails Without a Warrant

Wed, 05/08/2013 - 7:31am

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content (you can see the documents here).

Last month, in response to a Freedom of Information Act request, the ACLU received IRS documents indicating that the agency’s criminal investigative arm doesn’t always get a warrant to read Americans’ emails. Today we are releasing these additional documents from other federal law enforcement agencies, reinforcing the urgent need for Congress to protect our privacy by updating the laws that cover electronic communications.

The FBI and Electronic Communications: Where’s the Warrant?

The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.

In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment’s warrant requirement doesn’t always apply.

The FBI provided the ACLU with excerpts from two versions of its Domestic Investigations and Operations Guide (DIOG), from 2008 and 2012. One of the Guides is from before Warshak was decided and the other one is from after, but they say the same thing: FBI agents only need a warrant for emails or other electronic communications that are unopened and less than 180 days old. The 2012 Guide contains no mention of Warshak, and no suggestion that the Fourth Amendment might require a warrant for all emails. In fact, the 2012 Guide states:

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.

Versions of the Guide from 2008 and 2011 are available on the FBI website, but the 2012 edition has not previously been made public. We would have thought that by 2012, the FBI would have updated its policy to require a warrant for all private electronic communications. Our FOIA request was the FBI’s chance to produce any policy documents, manuals, or other guidance stating that a warrant is always required, but they failed to do so. Instead, the documents we received strongly suggest that the FBI doesn’t always get a warrant.

In fact, confirmation that the FBI is reading some emails without a warrant can be found in a recent opinion issued by a federal magistrate judge in Texas. Most of the opinion concerns whether the FBI is allowed to surreptitiously infect a computer with spyware (the judge refused to grant the FBI a warrant to do so). But tucked inside the opinion is this revelation: “the Government also sought and obtained an order under 18 U.S.C. § 2703 directing the Internet service provider to turn over all records related to the counterfeit email account, including the contents of stored communications.” Amazingly, as recently as March of this year, the FBI went after emails without a warrant. This is an affront to the Fourth Amendment.

A Patchwork of Policies

In addition to the FBI documents, the ACLU also received records from six U.S. Attorneys’ offices (in California, Florida, Illinois, Michigan, and New York), and from the Justice Department’s Criminal Division, which provides legal advice to federal prosecutors and law enforcement agencies. The Criminal Division withheld far more documents than it released. The U.S. Attorneys’ office documents reveal some information, but paint a confusing picture of federal policy. We received two paragraphs from the U.S. Attorney for the Southern District of New York—part of an unidentified document stating that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant. Perplexingly, the agency has not released the cover page or other contextual information from this document, so we don’t know whether it reflects the current policy of that office.

Excerpts from an October 2012 document released by the U.S. Attorney for the Northern District of Illinois show that at least one part of the government understands that the Fourth Amendment protects private electronic communications. The document, a chart titled “Procedures for Obtaining Certain Forms of Electronic Surveillance and Related Evidence,” contains entries setting out the procedures for obtaining text messages, voicemails, and emails stored by internet service providers, as well as stored communications on Facebook and “private tweets” on Twitter. The document says a warrant is required for each of these forms of communication. It even explains that “The Sixth Circuit in Warshak held that the non-warrant methods of obtaining stored emails to be [sic] unconstitutional.” Again, because the document lacks a cover page or other explanatory information we don’t know whether it constitutes binding policy for prosecutors or how broadly it applies. This lack of context is frustrating, but at least the document gets the law right.

The six U.S. Attorneys’ offices also told us in this email that since Warshak, they have not authorized a request to a court for access to the contents of electronic communications without a warrant. But according to the recent Texas magistrate judge’s opinion, one U.S. Attorney’s office apparently authorized such a request this year. Even with today’s documents, the government’s actual position is far from clear.

Time for Reform

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

Delaware Governor Signs Law Officially Legalizing Marriage for Same-Sex Couples

Tue, 05/07/2013 - 3:49pm

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

DOVER, Del. – Delaware Gov. Jack Markell signed a law legalizing marriage for same-sex couples today. Markell signed the bill shortly after its passage by the state legislature.

Delaware is now the 11th state, in addition to the District of Columbia, to recognize marriage for same-sex couples. It joins Massachusetts, Vermont, New Hampshire, Connecticut, Maine, Maryland, Washington, New York, Iowa, and as of last week, Rhode Island.

"Today marks a historic day for Delawareans who have shown their support and commitment to fairness and equality," said Kathleen McRae, executive director of the American Civil Liberties Union of Delaware. "We are proud to have worked with so many dedicated partners to reach this moment."

"The fight to achieve the freedom to marry for loving and committed couples across the country took another proud step forward today in Delaware," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project. "It is incredibly gratifying to see years of hard work paying off as more Americans embrace the idea that all families deserve the recognition and protection that only comes with marriage."

President Obama, Don’t Let the CIA Control the Torture Narrative

Tue, 05/07/2013 - 2:41pm

When former White House counterterrorism advisor John Brennan went before the Senate in early February for his confirmation hearing to lead the CIA, he made a startling admission. After reading the 300-page summary of the Senate Select Committee on Intelligence's (SSCI) mammoth 6,000-page report on the CIA's post-9/11 detention and interrogation program, Brennan's belief in the life-saving value of the torture program was shaken.

Responding to a question from Sen. Saxby Chambliss (R-Ga.) about whether the program "saved lives," Brennan replied:

I clearly had the impression, as you say, when I was quoted in 2007 that there was valuable intelligence that came out of those interrogation sessions. That's why I did say that they save lives. I must tell you, Senator, that reading this report from the committee raises questions about the information that I was given at the time, the impression I had at the time.

This power to change minds, particularly those close to the program, is one of the primary reasons why the committee's report deserves to be read by anyone interested in America's resort to kidnapping and torture after 9/11. The report, however, is currently still classified as the committee awaits the CIA's review.

Yesterday, the ACLU along with seven other human rights organizations sent President Obama a letter urging him to ensure that the CIA's review of it isn't the only response from the executive branch that the committee receives. To ensure that doesn't happen, the coalition urges the president to designate a senior White House official to coordinate one executive branch response to the committee's report, which incorporates the views of all its relevant agencies. The SSCI deserves a big-picture view of the torture program, and the White House should provide a response that doesn't give undue deference to the program's creator and defender.

It's important to remember that the CIA doesn't hold the only worthwhile opinion on the United States' descent into the dark side. As our letter reminds the president:

Other agencies—including the FBI, the Department of Defense, the Department of State, and the Office of the Director of National Intelligence—also have relevant knowledge of the CIA program and its effects, as does the White House itself.

During those immoral years, many courageous government officials and employees objected to the torture program on both moral and strategic grounds, particularly its power to stoke anti-American hatred and provide terrorist recruiters with a compelling justification for their own atrocities.

Nevertheless, the torture program has its stalwart defenders, including former senior officials, who continue to peddle the false narrative that these unlawful practices were necessary to save lives and protect the United States from further terrorist attacks.

The only way to effectively combat these lies and inaccuracies is for the report to be made public. Otherwise, it's nearly impossible to correct the record, as SSCI member Sen. Mark Udall (D-Colo.) made plain at Brennan's confirmation hearing.

[I]naccurate information on the...effectiveness of the CIA's detention-interrogation program was provided by the CIA to the White House, the DOJ, Congress and the public. Some of this information is regularly and publicly repeated today by former CIA officials. And although we now know this information is incorrect, the accurate information remains classified, while inaccurate information has been declassified and regularly repeated.

The American people deserve to know what was done in their name. More importantly, they deserve to know that falling far short of our ideals didn't protect national security—it harmed it. American ideals are too often described as an impediment to our security, when in reality our adherence to our values provides for our long-term security.

But our nation won't understand how wrong the torture apologists are until the committee's vital report is available for everyone to read. Only a public reckoning with our post-9/11 past can ensure the United States never takes another ride into the abyss again.

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Homeland Security, May I Earn a Living?

Tue, 05/07/2013 - 1:43pm

One of the things in play in the current wrangling over immigration reform is whether we will see the E-Verify work authorization program expanded nationwide and made mandatory. We’ve just put out a white paper summarizing “The 10 big Problems With E-Verify.”

Overall, E-Verify represents a move toward the creation of a “Mother may I” or “permission society” in the United States. In an attempt to stop the tiny percentage of those starting jobs in the United States each year who are unauthorized workers, E-Verify would force everyone to obtain affirmative permission from government bureaucracies before engaging in the core life functions of working and earning a living. That not only inverts the relationship between the individual and government, but will lead to a number of other serious problems, which we set forth in the paper.

Pregnant Worker in Connecticut Protected From Discrimination by State Law

Tue, 05/07/2013 - 12:25pm

Like many women, police officer Annie Balcastro of Wallingford, CT faced an uncertain future when she had to request a light-duty accommodation during her pregnancy. Many pregnant workers whose jobs entail physical activity are pushed out of the workforce when pregnant, even though their employers have provisions in place for other workers who are temporarily unable to do all aspects of their jobs, such as injured workers. Currently, fewer than ten states require employers to provide reasonable accommodations to pregnant employees who want to remain on the job but are unable to perform some aspect of their job during pregnancy.

Fortunately for Annie Balcastro, Connecticut is one of the states whose laws specifically protect the rights of pregnant workers to stay on the job. The state law deems it discrimination for an employer to fail to make a reasonable effort to provide a transfer to any suitable temporary position for a pregnant employee who needs an accommodation. In 2012, Annie Balcastro filed a complaint against the Wallingford Police Department claiming that the Department refused to give her a light-duty assignment or transfer her to a suitable temporary position, instead forcing her to take unpaid leave during her pregnancy. The charge alleged that while police officers could take paid leave for on-duty injuries, pregnant officers had to work full duty or go onto unpaid leave. Last Friday, the American Civil Liberties Union, the ACLU of Connecticut, and the law firm of Outten and Golden LLP, reached a settlement on Annie's behalf with the Department.

A number of other states, including California and Michigan, have similar statutory provisions forbidding employers from pushing pregnant women out of the workplace when they need minor accommodations. Maryland passed a similar protection this year, which will be signed by the governor this month, and New York and other states are trying to pass similar legislation. We encourage workers in these states to make their voices heard, and to enact protections that will protect workers – as Connecticut workers are protected – from having to choose between working and starting a family.

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Senator Portman, ENDA's Religious Exemption Is Already Too Broad

Tue, 05/07/2013 - 9:18am

At an event hosted by BuzzFeed on Monday night, Sen. Rob Portman (R-Ohio) said that he totally supports the concept of the Employment Non-Discrimination Act (ENDA) because, "This is about discrimination in the workplace. And there should be no discrimination and there ought to be a law in place, in my view."

The ACLU strongly agrees. There are 34 states that lack workplace non-discrimination laws that are fully inclusive of LGBT people. This patchwork of protection continues to leave LGBT people vulnerable to workplace discrimination – an unacceptable situation that ENDA would address.

While it is commendable that Sen. Portman recognizes the need to prevent workplace discrimination against LGBT people, he also said that he has some "concerns" with ENDA, including around religious liberty. Specifically, he said the following:

I'm also a strong believer in religious freedom and I think an entity that has certain religious tenets should not be required to change those tenets because of this law or others. ENDA has traditionally addressed this issue and I'm sure they will.

When I read Sen. Portman's remarks, I had to do a double take because ENDA already contains a sweeping, unprecedented exemption for religiously affiliated organizations – far beyond houses of worship – giving them a blank check to engage in employment discrimination against LGBT people. In fact, ENDA's religious exemption is so broad that it effectively gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual's race, sex, national origin, age, or disability.

Religious liberty is without question very important and guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs – but it does not allow us to harm or discriminate against others.

The ACLU believes that ENDA's current religious exemption is too broad and must be narrowed. While individuals may agree or disagree with that position, there should be no confusing the fact that concerns that ENDA fails to protect religious liberty are simply unfounded.

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They’re Watching: FBI Business Records Requests Jump 900 Percent Compared to 2009

Tue, 05/07/2013 - 9:14am

Last week served as yet another reminder of the threats posed to Americans' privacy by the post-Patriot Act surveillance state. According to the Department of Justice's annual report, FISA applications to the secretive Foreign Intelligence Surveillance Court (FISC) in 2012 revealed a continued increase in the FBI's surveillance of Americans. The report covers the Bureau's requests for electronic and physical surveillance, secret court orders under Section 215 of the Patriot Act, and National Security Letters (NSLs).

Over the last four years, the government's requests for electronic and physical surveillance have steadily increased after a brief decline in 2008 and 2009, with a total of 1,856 applications in 2012. However, the truly shocking number is how many times it applied for Section 215 orders, also known as business records requests, which as far as we know give the government extremely broad authority to access "any tangible thing," including sensitive information such as financial records, medical records, and even library records.

Last year, the government made 212 applications to the FISC under Section 215, over 94 percent of which the court found it necessary to modify – 200 to be exact. This is up from 205 in 2011, which may not seem like a huge difference, but consider that in 2009 the FBI made only 21 requests and the FISC modified just 9.

This dramatic increase in both the number of requests and the number of FISC modifications to the requests really makes you wonder what exactly the FBI is asking for. During the debate leading up to the 2011 Patriot Act reauthorization, Sen. Wyden (D-Ore.) revealed that the government has a secret interpretation of Section 215, ominously warning that "Americans would be stunned to learn" what the government thinks the law allows.

In May 2011 we filed a Freedom of Information Act (FOIA) request to find out exactly what powers the government believes it has to obtain Americans' information under Section 215. Nearly two years later, we still don't know. The government has responded to our FOIA with hundreds of highly redacted pages of government documents, none of which reveal its secret interpretation of this law. (Oral argument on our challenge to the government's classification of its secret interpretation of Section 215 is currently scheduled for June 21.)

This year's report also states that in 2012, the FBI issued 15,229 NSLs on 6,223 Americans. This is a marginal decrease from 2011, when the FBI issued 16,511 requests on 7,201 Americans, as well as a significant decrease from 2010, when the FBI issued 24,287 NSLs on 14,212 Americans. This decrease, however, is likely in response to an opinion by the White House Office of Legal Counsel (OLC) which limited the information the FBI could request from communications providers under NSLs to a customer's name, address, length of service, and local and long distance toll billing records. It's also important to note that this report does not disclose the total number of NSLs that the FBI issues, since the Justice Department is not required to report on requests for subscriber-only information or on NSLs that pertain to non-U.S. persons. The most recent Inspector General report suggests that the number of NSLs that the FBI issues each year is actually in the range of 40,000 to 50,000.

Last month, a federal court ruled that the NSL statute is unconstitutional. If that ruling is upheld on appeal, the FBI will likely continue to rely even more heavily on its secret interpretation of Section 215. This makes it even more imperative that the government heed Wyden's warnings and disclose to the American people exactly what authorities it thinks it has under Section 215.

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Three Reasons to Join Our Protest of 30 Years of Private Prisons Today in D.C.

Tue, 05/07/2013 - 7:53am

Join us at noon today in Washington, DC at 19th Street S.E. between C and Burke to protest the Corrections Corporation of America or follow the protest on Twitter @ACLULive.

The emergence of the Corrections Corporation of America (CCA) as a leading prison profiteer is a result of a thoughtful promulgation of laws and policies on a federal and state level. Tough-on-crime sentencing policies in the 1980s included the expansion of mandatory sentencing, three strikes policies and abolishing parole on the federal level. Through tactics like pushing for minimum occupancy guarantees in its prisons, CCA has both contributed to and benefited from this explosion in incarceration. The result: tremendous profits for CCA and mass incarceration for large numbers of African Americans and immigrants.

Here are three reasons why you should join us today at noon, when the Public Safety and Justice Campaign along with civil rights leaders, people of faith, criminal justice reform groups and immigrant rights organizations will hold a protest rally and press conference at the Corrections Corporation of America's Correctional Treatment Facility in DC.

1. JUAN VILLANUEVA

Juan Villanueva arrived in the United States at the age of four. In 1995 he was arrested by an infamous police unit in his neighborhood and accused of homicide. He was convicted of manslaughter. Despite being a Legal Permanent Resident and having served nearly 13 years of his sentence Juan was subsequently deported back to Mexico. Juan yearned to be with his family in California and like thousands of others, he embarked on the life-threatening journey to cross the border. In 2007 he reached the US but was detained by immigration authorities and sentenced to 41-months at a CCA facility known as Adams County Correctional Center in Mississippi.

According to a Justice Strategies report, Juan, along with more than 2500 prisoners at the facility, received limited access to medical services during the course of his incarceration. When Juan began coughing up blood the prison staff dismissed his illness as the flu. In the weeks that followed the prisoners watched in horror as Juan deteriorated. Juan along with his entire unit was placed in isolation for three weeks and he continued to vomit blood in his isolation cell. The report concludes that delayed and inadequate medical treatment at this CCA facility paved the path on which Juan traveled to his untimely death-just two months before his release date in 2012.

Juan was not the first to die in the Adams County facility and inmate allegations of abuse circulated including: alleged beatings by guards, discriminatory and humiliating treatment, substandard food, periods of excessive lockdown and lack of proper medical attention.

2. CATLIN CARITHERS

In 2012 Catlin Carithers was one year away from marrying his fiancé, actively involved in his church and passionate about the idea of service to others. He was only 24-years-old when he was beaten to death during an April 2012 prisoner riot in the Adams County facility. The prison riot of more than 300 inmates was allegedly a result of CCA's refusal to address prisoner maltreatment. The suffering of Juan Villanueva served as a catalyst for the unrest.

At the time of his death Carithers was on the roof of the low-to-medium security prison with another officer dropping tear gas canisters near rioting inmates when 10-15 inmates rushed the roof and beat Carithers to death. The Adams County Riot was no isolated event. Indeed, a number of studies and reports suggest that for-profit prisons are more dangerous places to be incarcerated, with higher levels of violence than public prisons.

3. VISTA GRANDE HIGH SCHOOL, CASA GRANDE AZ

On a typical morning in late October of 2012 students filed into Vista Grande High School without incident. According to news reports, CCA correctional officers with trained drug dogs then entered the school and locked the doors, allowing none of the children to leave. The children were asked to wait in the hallways while the classrooms were swept for drugs. The school-wide search was not in response to any prior history of drug abuse in the school but rather an unofficial agremeent between the school's principal and CCA. The drug dogs recovered marijuana belonging to three children, in amounts as small as 0.1 grams.

All three children were arrested and faced criminal charges. One of the children is a 15-year girl who could be tried as an adult and if convicted she would likely face prison time. With mandatory sentencing guidelines for drug free zones, such as Vista Grande High School, she could also face sentencing enhancements. Given CCA's recently-awarded 1,000 bed local facility, this child is precisely the type of medium security prisoner that will make CCA's profits continue to soar.

Click here for more information about anti-CCA events around the country from now through their May 16 shareholder meeting in Nashville.

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Bipartisan Task Force on Over-Criminalization a Step in Right Direction, Says ACLU

Tue, 05/07/2013 - 7:45am

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

WASHINGTON – A new, bipartisan task force aimed at reducing the federal criminal code is a positive step toward breaking our country's addiction to incarceration, said the American Civil Liberties Union today. The House Committee on the Judiciary Over-Criminalization Task Force of 2013, which is made up of five Republicans and five Democrats, will comb through the code and identify unnecessary and ineffective criminal statutes.

"Sending people to prison should be the option of last resort, not the first," said Jennifer Bellamy, ACLU legislative counsel. "Over the last couple of years, we've seen a bipartisan consensus emerge around the idea that we waste billions of dollars on a criminal justice system that just isn't working. This task force has an opportunity to protect the civil liberties of the many Americans who are locked up unnecessarily and with no benefit to public safety every day. We’re optimistic this will lead to real reform."

At a time of historically low rates of crime, the federal prison system is operating at almost 40 percent over capacity. A recent report by the Congressional Research Service found that the federal prison population has grown by almost 790 percent since 1980.

Pennsylvania School District Refuses to Change Policies on Transgender Students

Mon, 05/06/2013 - 11:06am

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

RED LION, Pa. – The Red Lion Area School District (RLASD) has refused to change its policy regarding transgender candidates for prom court, nor will it agree to allow transgender students to use a name at graduation to match their gender identity, according to a letter from the school district's solicitor.

RLASD's treatment of its transgender students became an issue last month after a male transgender student, Issak Wolfe, was denied the chance to run for prom king when his principal placed his female birth name in the column for "prom queen" despite repeated requests to be listed in accordance with his gender identity.

On April 25, the American Civil Liberties Union and the ACLU of Pennsylvania sent a letter on behalf of Wolfe, asking among other things, that the school allow Wolfe to attend graduation wearing a black cap and gown for boys, as opposed to the yellow cap and gown mandated for girls, and have his male name read at the ceremony. The letter also asked that the school adopt a policy to allow students to run for prom court in accordance with their gender identity, as well as a broader nondiscrimination policy protecting transgender students in the district. In his response, the school district's solicitor agreed to allow Issak to wear a black cap and gown but denied the rest of his requests.

"I am really disappointed that the school district doesn't want to do anything to protect transgender students," said Wolfe, a senior at Red Lion Area High School. "I want to make sure that future transgender students are not humiliated and disrespected the way I was."

Wolfe has gone by Issak since the summer before his junior year of high school, and his family, friends, and most of his teachers call him by that name. Wolfe, who just turned 18 a few weeks ago, plans to legally change his name, but that process, which involves a court hearing, cannot be completed in time for graduation next month.

"There is absolutely no legitimate reason for the school to refuse to read Issak's male name at graduation," said Reggie Shuford, executive director of the ACLU of Pennsylvania. "Their failure to do so shows the same lack of sensitivity they exhibited during Issak's attempt to run for prom king and knowingly mars what should be a happy occasion for Issak and his family."

Wolfe plans to take his case to the RLASD school board at their next meeting on Thursday, May 16.

"It's a shame the school district won't adopt common-sense policies that would protect other transgender students down the line," said Leslie Cooper, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. "All students should feel welcome at school and accepted for who they are."

More about the case can be found at:
aclu.org/lgbt-rights/aclu-warns-high-school-principal-who-removed-transgender-pennsylvania-student-prom-king

The district's response can be found at:
aclu.org/lgbt-rights/letter-counsel-red-lion-school-district-concerning-issak-wolfe

Two Weeks of Protests Start Tomorrow! 30 Years of For-Profit Prisons Is Nothing to Celebrate

Mon, 05/06/2013 - 8:23am

Join us tomorrow in Washington, DC to protest the Corrections Corporation of America or follow the protest on Twitter @ACLULive.

At its annual shareholder meeting next week, the Corrections Corporation of America (CCA) will celebrate thirty years of incarcerating people in its for-profit prisons. This gives the company the dubious distinction of being the oldest for-profit prison company in modern America. And it's why the ACLU is working with civil rights organizations, labor, faith-based groups, and immigrant rights advocates to organize anti-CCA events around the country from now through their May 16 shareholder meeting in Nashville. Our message is clear: Thirty years of for-profit prisons is nothing to celebrate!

CCA's inaugural year was hardly confidence-inspiring – as illustrated by a stunning video hosted on CCA's own website. Two of the company's founders (Thomas Beasley and T. Don Hutto) begin the video by admitting they didn't even own a prison when they used their connections to snag a federal contract for immigration detention. And then they chuckle as they describe how they solved the problem: lease a local motel, hire friends and relatives to work as guards, and lock 87 immigrants inside the guest rooms.

Thirty years later, CCA's 67 prisons and detention centers no longer include hastily-converted motels, and CCA claims to run "the highest quality adult corrections company in the United States." But just in the past year, the company has been plagued by deadly riots, immigrant detainee suicides, and financial penalties from state auditors. Additionally, the company continues to use sharp tactics to maximize its profits, such as their recent decision to restyle themselves as a tax-exempt real estate trust – a move that they expect will slash about $70 million from the taxes they would have otherwise paid in 2013. And last month, CCA admitted that its employees had falsified nearly 4,800 hours of staffing records at a violence-plagued prison it runs in Idaho, billing the state government for security posts that were actually left vacant.

CCA admits that their current profitability depends on high rates of incarceration. In their 2012 10-K report, filed publicly with the Securities and Exchange Commission, CCA describes drug law reform, immigration reform, and reductions in mandatory minimum sentences for non-violent crimes as "risk factors" that could hurt their bottom line.

Join us tomorrow for the kick-off protest at CCA's "Correctional Treatment Facility" in Washington, DC. This annex to the DC Jail is a highly visible example of the human costs of CCA's successful influence-peddling just two miles away, in the U.S. Capitol. Although CCA insists that it does not engage in "lobbying or advocacy efforts that would influence enforcement efforts, parole standards, criminal laws, and sentencing policies," the company spends heavily on both lobbying and campaign contributions. From 2002 to 2012, the company spent a total of more than $19 million lobbying Congress, and its PAC expended more than $1.4 million on candidates for federal office over the same time period. As a result, CCA has garnered numerous federal contracts and defeated multiple attempts to make private prisons subject to the same transparency requirements as public prisons.

The ACLU stands with our allies to affirm that the criminal justice system should not serve as a revenue stream for prison profiteers. And we take heart in knowing the movement against for-profit prisons is growing every day. The same day that we'll be protesting CCA in Washington, DC, the Florida college students who launched a campus movement and stopped their football stadium from being named after a for-profit prison company will rally for accountability at the annual meeting of GEO Group, the nation's second-largest operator of for-profit prisons. This rising tide of activism gives me hope that thirty years from now, there won't be any for-profit prison companies left to commemorate the unwise and disastrous experiment with prison privatization that CCA launched thirty years ago. That would truly be something to celebrate!

Click here for more information about anti-CCA events around the country from now through their May 16 shareholder meeting in Nashville.

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Tomorrow, Willie Manning Is Scheduled To Die. Shouldn't Mississippi Find Out If He's Innocent First?

Mon, 05/06/2013 - 7:33am

Mississippi Governor Phil Bryant alone has the power to save Willie Manning, who is scheduled to die tomorrow, May 7, 2013. Mississippi is steamrolling toward execution even though there is compelling evidence that Willie Manning may be an innocent man.

Manning's case has many of the hallmarks of those of other innocent death row exonerees: false snitch testimony, junk science, and racial bias. The prosecutors in Manning's case, like in all too many cases, stacked the deck by systematically removing African-American jurors from Manning's trial. Manning, an African-American man, was convicted of the murders of two white college students.

Much of the key evidence that led to Manning's murder convictions and sentence of death has turned out to be a sham. One witness has admitted that he lied in his testimony, and another confessed that she never revealed what she was promised for her words against Manning. The FBI has conceded that it wrongly testified about a "match" between a hair found in the victim's car and Manning when science supported no such thing. The FBI has gone further and offered to perform new DNA testing. Since 1994, Manning has been requesting DNA testing that would prove one way or the other the truth about the murders.

In the face of the evidence of innocence discovered since the trial, the Supreme Court of Mississippi failed to uphold its duty to serve justice. The Court decided that it would not stop Manning's execution to allow new DNA testing. Now, only a decision by Governor Bryant is likely to permit this critical testing.

Executions are not the place to act first and ask questions later. These grave questions of innocence should be answered before it is too late.

Live in Mississippi and want to help Willie Manning? Take action here.

Want to do more in your state? Check out our map on Ending the Death Penalty in the United States to see what action can be taken in your state.

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The Privacy-Invading Potential of Eye Tracking Technology

Mon, 05/06/2013 - 6:42am

Eye tracking technology received new attention recently due to its inclusion in the Samsung Galaxy IV phone, where it can (with mixed results, according to reviewers) let users scroll the screen with their eyes or dim the screen when they look away. Clearly this is a technology that has the potential for a lot of clever applications. But what are the privacy implications?

Eye tracking for research was used for over a century before computers (see the quick history outlined in this article). The earliest research, in the 19th century, actually involved direct mechanical contact with the cornea. Already by 1898, researchers were discovering some really cool phenomena of the human brain. Motion pictures were applied to the problem as early as 1905, and the first head-mounted eye-tracker was developed in 1948, which freed study subjects from having to keep their heads still. In the mid-1970s the first remote trackers were developed that were truly unobtrusive to the subject. By then, research and writing based on eye tracking was booming, not only on the part of psychologists but also the military.

In recent years much eye-tracking research seems to have been focused on “human-computer interaction”—measuring how the human brain processes various user interfaces, web pages, graphics in layouts, marketing approaches, etc., and how best to optimize those things. By tracking the eyes of someone sitting in front of a computer viewing a scene, researchers can measure “scanpaths”—the order in which somebody looks at an image or scene—or create “fixation maps,” in which the time that the eye lingers at various points in an image (“gaze durations”) is measured. Take a look at this presentation to get a taste of the complexity of the science in this area. Here is an analysis of users’ gazes at Facebook pages (of keen interest to advertisers and marketers).

UCLA electrical engineering professor John Villasenor has written about the privacy implications of eye tracking on the Samsung phone and in other uses. The technology is still not “quite ready for mass-market adoption,” he notes, but:

Once the technology for eye-tracking is in place, it will glean information conveying not only what we read online, but also how we read it. Did our eyes linger for a few seconds on an advertisement that, in the end, we decided not to click on? How do our eyes move as they take in the contents of a page? Are there certain words, phrases, or topics that we appear to prefer or avoid? In the future, will we be served online ads based not only on what we’ve shopped for, but also on the thoughts reflected in our eye movements?

Those are the kinds of things that much eye tracking research has focused on to date, in the context of a human sitting at a computer, and are certainly where the near-term privacy threats lie. But it’s possible that the privacy threat from this technology could reach far beyond one’s computer or smartphone screen. It’s not hard to imagine that eye tracking could get good enough to be targeted at a person in public, at a distance—perhaps even someone walking down a sidewalk. Already studies have been done comparing how shoppers scan different stores’ window displays. Those studies used photographs, but the incentive to develop live tracking is obvious.

Meanwhile, progress is likely to continue on another front: research on what we can learn about people by tracking their gaze. As one eye tracking expert puts it, “eye movement data provide an unobtrusive, online measure of visual and cognitive information processing.” Combine the two, and we could see the technology become a standard part of an analytics toolbox plugged in to every surveillance camera fixed on the public.

Among the things that eye tracking has or could be used to try to discover about us:

  • Cognitive disorders. Research has already suggested that autism, attention deficit disorder, dyslexia, and speech disorders could be diagnosed using eye tracking.
  • Drug and alcohol use. Alcohol and drug use has been shown to have effects on eye movements, as does fatigue.
  • Mental and psychological illness. Schizophrenia is another disorder that research already suggests eye tracking may be able to detect. Alzheimer’s is yet another. Eye tracking has also been suggested as a way to detect post-traumatic stress disorder and eating disorders.
  • HIV/AIDS. Individuals infected with HIV sometimes contract a disorder called AIDS Dementia Complex, which can be detected with eye tracking.
  • Lie detection. Lie detection is a notorious sinkhole of pseudoscience—the link between high-level mental states such as “truthfulness” and low-level, involuntary external behavior is just too ambiguous and unreliable—but the quest for lie detection continues, and claims are being made about the usefulness of eye tracking for this.
  • Intelligence. A significant amount of eye tracking research appears to have been focused on reading and how humans scan various texts. It’s not hard to imagine that the technology could reveal insights into how different people think, analyze, and process information. I guarantee it wouldn’t be long before someone starts searching for, or claiming, a correlation with criminality, as we have seen in the area of genetic research.
  • Sexuality. In a quick search I found some research tracking “visual attentional capture” in the viewing of erotic images, and comparing men and women. I would think that by putting a sexualized image containing both an attractive man and an attractive woman, one could probably tell a lot about who is gay and who is straight from the scanpaths and fixation points of people walking by. (Or more precisely, how attracted to men and how attracted to women each subject is.) One study did find changes in pupil size could reveal gender attraction.

The application of eye-tracking technology on the general public via video cameras is, at the present time, science fiction—but clearly not far-future sci-fi. And regardless of how much of the above ever comes to pass, it’s yet another reminder of the huge wave of privacy-invading technology that is headed our way, and of our need to get ready for that.

The Racial Wealth Accumulation Gap and Why ACLU is Suing Morgan Stanley for Racial Discrimination

Mon, 05/06/2013 - 5:07am

This month, the Urban Institute joined an emerging consensus of researchers and social scientists with a new report revealing, in the starkest terms, our nation's vast and widening racial gap in wealth creation. With this report, Less than Equal: Racial Disparities in Wealth Accumulation, the Urban Institute joins a growing body of research showing that in America today, wealth is not colorblind and that during the recession this gap has widened.

Sixty years after the social and legislative achievements of the Civil Rights movement, the amount of wealth the average American acquires remains powerfully influenced by the color of his or her skin. These inequalities set in early and perpetuate themselves over time. Families with little wealth to begin with have less to pass to their children though inheritance, college funding, or a down payment on a house. This creates a vicious cycle, as those children themselves enter adulthood without a starting boost to wealth accumulation of their own.

Measured across the economic cycle, wealth accumulation trends present a similarly disturbing picture: When times are good, whites do comparatively better than blacks and Latinos, and when times are bad whites feel the pain less. Most recently, while the housing collapse and Great Recession injured Americans of all stripes, Latino and black families saw the loss of 40 and 31 percent of their wealth, respectively, while white families escaped with an average wealth loss of only 11 percent. In a society largely premised on the colorblind ideal, our booms and busts remain anything but.

More than any other single factor, the racial wealth gap is driven by access to fair housing and homeownership. Generations of both official and de facto residential segregation have frozen non-white borrowers out of the home lending market, and thus out of the primary mechanism for wealth accumulation in America. Where mainstream lenders refused to go, predatory subprime lenders rushed in. Responding to Wall Street's requirements for increased volume and worse terms, subprime lenders targeted black and Latino communities for loans of the most toxic and predatory variety. Even controlling for income, employment, and education, black and Latino borrowers were far more likely than whites to receive subprime loans with destructive features. As a result, they were far more likely to lose their homes to foreclosure, and, because homeownership represents a comparatively greater share of black and Hispanic families' wealth, to feel that loss more deeply.

The landmark legislative achievements of the civil rights movement, Fair Housing Act, Equal Credit Opportunity Act, and others, represent our nation's determination to consign a racialized hierarchy of wealth and privilege to the past. As wrong doing by banks and lenders become ever more apparent, these same anti-discrimination laws are providing a vehicle for victims of the racial rescission to fight back.

One key battle is being fought in Detroit, in Adkins v. Morgan Stanley, where five African-American current and former homeowners have taken Wall Street giant Morgan Stanley to court for its role in foisting bad loans on black neighborhoods. Like African-American borrowers across the city, these five individuals received loans whose terms were worse in almost every possible way than those offered to similarly situated white borrowers. Although civil rights law clearly prohibits behavior of this kind, Morgan Stanley's myopic pursuit of profit led it to ram ever more toxic loans into minority communities, heedless of the costs. And those costs could not be more plain: Detroit neighborhoods transformed into ghost towns by mass-foreclosure, with the loss of decades of accumulated wealth by those least able to spare it. We at the ACLU, along with the National Consumer Law Center, and the law firm Lieff Cabraser Heimann & Bernstein, are proud of our role as counsel to these five brave individuals.

But while it's too late to prevent the last housing collapse, it is not too late to prevent the next one—or to hold civil rights violators accountable for their acts. Closing the racial wealth accumulation gap—the existence of which is so persuasively demonstrated by the Urban Institute and others—means ensuring access to housing and the housing market without discrimination of any kind. Indeed, our nation's civil rights laws exist for exactly this reason. By courageously taking this fight to Morgan Stanley, one of the world's most powerful financial institutions, the five Detroit plaintiffs are showing that no one enjoys impunity from the law. They also show that the core legislative achievements of the Civil Rights movement remain vital tools for ensuring social and economic justice for all Americans.

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This Week in Civil Liberties (05/03/2013)

Fri, 05/03/2013 - 1:30pm

Which city's police department has taken it upon itself to determine who does and does not belong on the property of commercial businesses?

A Tulsa police officer was suspended for refusing to protect and serve which religious minority?

What Guantánamo prisoner just released memoirs of his experience of rendition, torture and imprisonment without charge or trial?

Popular (yet unfounded) belief holds that which generation does not care about privacy?

How many states have workplace non-discrimination laws that are fully inclusive of LGBT people?

NEW LAWSUIT: Police Should Stop Arresting Innocent People Just for Being on a Business's Property

The next time you're in Grand Rapids, Michigan and need to pull into a gas station to make a phone call, check your email, or take a look at your road map, you had better think twice. For years, the Grand Rapids Police Department has taken it upon themselves to determine who does and does not belong on the property of commercial businesses across the city – in many cases questioning, searching, and arresting innocent people for criminal trespass without warning and without the business owner's knowledge. Sound like a clear violation of the Bill of Rights? It is.

Protecting and Serving All, Regardless of Faith

The American Civil Liberties Union and the ACLU of Oklahoma filed a friend-of-the-court brief this week with the U.S. Court of Appeals for the Tenth Circuit, arguing that a police officer does not have a religious right to refuse assignments simply because they require him to serve people who do not share his faith. In 2011, Tulsa police officer Paul Field was directed to attend, or send officers from his division to attend the event. Fields refused, claiming that to attend or to send officers to a Law Enforcement Appreciation Day event held by the Islamic Society of Tulsa would violate his religious beliefs, which require him to proselytize anyone who does not share his Christian faith. Former police chief Edward L. Smith explains how Fields' actions violate the Constitution.  

Guantánamo Prisoner's Memoirs Offer Rare First-Person Account of Torture

A detailed and harrowing first-person narrative of a prisoner's experiences in Guantánamo is available to the public for the first time: on Tuesday, Slate published a three-part series of excerpts from The Guantánamo Memoirs of Mohamedou Ould Slahi. The excerpts were culled from a manuscript hundreds of pages in length, which Slahi provided his attorneys, a pro bono team of ACLU and other lawyers. After being classified for years, Slahi's memoirs – of arrest, rendition, torture, and imprisonment without charge or trial – are finally seeing the light of day, albeit with some redactions.

Do Young People Care About Privacy?

Everywhere I go, I hear some variation of the claim that "young people today just don't care about privacy." This is something that people widely seem to believe is "just true." The latest claim to this effect comes in the form of a new poll, the release of which was trumpeted with unfortunate headlines like "Millennials don't worry about online privacy."

Why ENDA's Religious Exemption Must Be Narrowed

Remarkably, there are only 16 states that currently have workplace non-discrimination laws that are fully inclusive of LGBT people. This leaves LGBT people vulnerable to workplace discrimination in well over half of the country–an unacceptable situation that must be changed.

To address this, last week, the Employment Non-Discrimination Act (ENDA) was reintroduced in Congress. The legislation would prohibit employment discrimination based on sexual orientation and gender identity in most American workplaces, a critically important step towards full equality for LGBT people.

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Breaking the Addiction to Incarceration: Weekly Highlights (05/03/2013)

Fri, 05/03/2013 - 1:25pm

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 our 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.

Highlights from the Campaign to End Overincarceration

State Legislative Highlights: A number of states have either passed laws or are advancing bills that could reduce state correctional populations. Below are some of the highlights:

  • Alaska's Senate passed SB 56, which would classify drug possession as a misdemeanor. The bill is now before the House. Also under consideration is SB 64, which would create a sentencing commission and allow for earned penalty reductions.
  • California's Senate passed SB 649; the bill would give prosecutors the discretion to charge possession of any drug as a misdemeanor rather than a felony.
  • Colorado is considering SB 250, which would make a number of revisions to drug-offense sentencing. Colorado's House passed a pretrial diversion program for adults (HB 1156) and a bill to reduce the punishment for theft (HB 1160); both bills are now before the Senate. For more, see the Colorado Criminal Justice Reform Coalition's legislative updates and watch this video to learn more about CCJRC's work.
  • Connecticut's HB 6511, which would reduce the "school zone" area within which drug offenses carry stiffer sentences, passed out of committee.
  • Florida's HB 159 passed out of committee; the bill would allow judges to depart from mandatory minimum sentences for certain defendants charged with drug offenses.
  • Georgia's legislature passed comprehensive juvenile justice reform, HB 242. Gov. Deal is expected to sign the bill. The bill could reduce the number of youth in jail or prison by one-third over the next five years. Georgia also enacted HB 349, which will give judges the option to issue a sentence below the mandatory minimum for drug trafficking and some other offenses if certain conditions are met.
  • Hawaii's House and Senate both passed SB 68, which would allow judges to impose a sentence below the mandatory minimum for most drug offenses. The two chambers passed different versions of the bill, which are being reconciled in conference.
  • Indiana passed Act 1482, which increases the list of convictions eligible for expungement. Additionally, the state's House and Senate passed a criminal code revision bill that has some good elements but may ultimately increase the state's prison population significantly. HB 1006 would create a felony threshold for theft, reduce sentences for low-level drug offenses, reduce the "school zone" for drug-offense enhancements from 1000 to 500 feet, limit the application of the habitual offender statute, and expand judges' discretion to suspend sentences. But the bill also increases sentence lengths for some violent and sex offenses, and the Department of Corrections projects that the longer sentences will nearly double the state's prison population in 20 years, although that estimate is challenged by another analysis. The House is now considering the Senate's amended version of the bill.
  • Kansas enacted HB 2170, which makes changes to probation and post-release supervision. Among other things, the bill creates intermediate sanctions for probation violations and allows for people to earn early discharge form community supervision. The measure's provisions are projected to merely avert future prison growth, not reduce the state's prison population. Here's a summary of the bill.
  • Louisiana is considering HB 103, which would remove marijuana possession from the state's habitual offender law, which mandates life without parole. Also under consideration is HB 154, which distinguishes aiders and abettors from principal offenders for sentencing purposes.
  • Maryland's legislature passed HB 1396, which increases the felony theft threshold and creates tiers for sentencing felony theft.
  • Massachusetts is considering S. 667, which would repeal mandatory minimum sentences for nonviolent drug offenses, as well as H. 1645, which would reduce the "school zone" area within which drug offenses carry stiffer sentences.
  • Missouri is considering HB 210, a rewrite of the criminal code that includes sentencing reform, such as raising the felony theft threshold, reducing some drug penalties and reducing the "school zone" for drug-offense enhancements.
  • New Jersey is considering a pair of bills, S. 1977 and A. 1465, to decriminalize marijuana possession.
  • North Carolina is considering S. 537, which would allow judges to issue a sentence below the mandatory minimum for drug trafficking if certain conditions are met.
  • Oregon is considering a broad reform bill, HB 3194, which among other things would eliminate some mandatory minimums. In the Salem Statesman-Journal, NRA President David Keene argues for the bill, stating that mandatory minimums violate conservative principles.
  • Rhode Island is considering S. 0341, which would reduce the penalties for some minor offenses, such as shoplifting, disorderly conduct, and driving with a suspended license.
  • Texas is considering SB 90, which would expand community treatment for drug possession, as well as HB 1069, which would reclassify certain minor offenses as misdemeanors. For more, see The Texas Criminal Justice Coalition's list of bills to safely reduce incarceration in Texas.
  • Vermont's House and Senate passed S. 1, which would require judges to consider the financial cost of available sentences if the defendant is charged with a nonviolent offense. The Senate is now considering the House's amended version. The House also passed H. 200, which would decriminalize possession of up to an ounce of marijuana.
  • West Virginia enacted SB 371, which will increase post-release supervision, discourage revocation for technical violations, possibly divert more defendants to substance abuse treatment rather than prison, and introduce risk assessment mechanisms that would enable, but not require, judges to make better informed decisions. The bill's proponents expect it to halt prison growth but not reduce the state's overcrowded prison and jail population.

Victory! U.S. Supreme Court Rules Against Routine Warrantless Blood Tests in DUI Cases: The Supreme Court ruled in our favor in Missouri v. McNeely, rejecting the proposition that states may routinely compel drivers to submit to a blood test in drunk-driving cases without consent and without a warrant. The majority held that whether an exception to the warrant requirement in such cases exists must be determined on a case-by-case basis. For more, see coverage at SCOTUSblog, visit our website, and read the opinion. ACLU Legal Director Steve Shapiro argued the case before the Supreme Court.

ACLU Weighs in on Model Penal Code: Sentencing: The ACLU submitted comments and recommendations concerning the draft community supervision provisions of the American Law Institute's (ALI) Model Penal Code: Sentencing. The draft will be presented at the ALI's 2013 Annual Meeting in Washington, D.C.

More Federal Legislation Introduced to Protect State Marijuana Legalization: Following bills introduced in February by Reps. Polis and Blumenauer to end the DEA's authority over marijuana, a bipartisan group of U.S. Representatives led by Rep. Diana DeGette introduced H.R. 964: Respect States' and Citizens' Rights Act of 2013, which would amend the Controlled Substances Act to provide that Federal law shall not preempt State law. A second bipartisan group introduced H.R. 1523: Respect State Marijuana Laws Act of 2013, which would exempt from the federal Controlled Substances Act anyone acting in compliance with state marijuana laws.

ACLU Releases New Report on Ohio's Debtors' Prisons: On April 4, the ACLU released The Outskirts of Hope, a report chronicling rampant debtors' prison activity across the state of Ohio. The U.S. Supreme Court banned the practice of jailing individuals who are unable to pay their fines and court costs two decades ago, but the ACLU found conclusive evidence of these practices in 7 of the 11 Ohio counties examined. Ohio Supreme Court Chief Justice Maureen O'Connor responded that this is "a matter that can and must receive further attention," and met with the ACLU to discuss our recommendations. Read coverage of the report and our blog post.

Other April highlights:

  • U.S. Representatives Bobby Scott (D-VA) and Thomas Massie (R-KY) introduced the Justice Safety Valve Act of 2013, an identical counterpart to a bill by the same name introduced in the Senate last month by Senators Leahy and Rand. Just like the Senate bill, it would give federal judges the flexibility to issue sentences below mandatory minimums.
  • The most recent edition of the Columbia Journalism Review featured the Journalists' Guide to Criminal Justice Reform from the ACLU.
  • ACLU Executive Director Anthony Romero joined a coalition of over 175 artists, actors, athletes, elected officials and advocates in signing a letter to President Obama asking him to end the War on Drugs and embrace criminal justice reform.
  • The White House has outlined its new strategy for drug control, which it describes as "a series of evidence-based reforms that treat our Nation's drug problem as a public health issue, not just a criminal justice issue." In its full strategy paper, the Administration proposes to expand alternatives to incarceration and strengthen treatment options.
  • Due to sustained opposition from student groups, faith groups, the ACLU, and other civil rights organizations, for-profit prison company GEO Group announced its decision to withdraw the $6 million donation it made to Florida Atlantic University in exchange for naming rights to the school's football stadium. Read our blog post.
  • The ACLU of Ohio has chronicled the troubled 18-month evolution of Lake Erie Correctional Institution, the nation's first prison sold to a for-profit company. State inspectors have cited the newly-privatized prison for major increases in violence, inadequate medical care, overcrowding, and unsanitary conditions. Read our press release and local coverage.
  • Check out Marc Mauer's new book "Race to Incarcerate: A Graphic Retelling." This work – done in collaboration with Sabrina Jones – is an adaptation of Mauer's original, seminal book into a compelling graphic novel laying out the complex story of four decades of prison expansion and its destructive impact on our communities.

Highlights from the Campaign to Stop Solitary Confinement

State Legislative Highlights: States are advancing bills that could reduce the number of prisoners held in solitary confinement:

  • California is considering SB 61, which would impose strict limits on the solitary confinement of youth.
  • Florida is considering SB 812, which would reduce the dangerous impact that solitary confinement has on young persons.
  • Massachusetts is considering S. 1133, which would restrict the use and duration of solitary confinement.
  • Nevada's Senate passed SB 107, which would restrict the use of solitary confinement for youth.
  • Texas is considering HB 686, HB 1266, and SB 1003, which would require the state to closely examine its use of solitary confinement. The state is also considering SB 1517, which would restrict the use of solitary confinement in juvenile detention centers.

International Body Slams U.S. Solitary Confinement Practices: This month, the widespread misuse and abuse of solitary confinement in jails and prisons across the U.S. drew international condemnation when the Inter-American Commission on Human Rights (IACHR) criticized the U.S. following weeks of hearings on human rights practices across the Americas region. Read our letter to the IACHR and our blog post.

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In Florida, High School Student Kiera Wilmot’s Curiosity Is a Crime?!

Fri, 05/03/2013 - 11:47am

Fed up with the school-to-prison pipeline? Take action!

Earlier this week, the well-oiled school-to-prison pipeline once again moved swiftly and fiercely to criminalize kids. This time, the pipeline delivered 16-year-old Kiera Wilmot to the open arms of a Florida Assistant State Attorney (ASA).

Wilmot, a student at Bartow High School in Polk County, Florida, mixed together household chemicals on school grounds to see what might happen. For this youthful experiment, she found herself arrested and charged as an adult when the concoction caused a minor explosion. The only casualty at the scene of this supposed crime? A plastic bottle.

Wilmot is regarded as an excellent student and has "never been in trouble, ever," according to her principal Ron Pritchard. At the urging of a fellow classmate, she combined toilet bowl cleaner and aluminum foil in an 8-ounce bottle. To her surprise, the top popped off and the concoction began to smoke, followed by a small explosion. Responding to a call by the assistant principal who observed the incident, a school resource officer took Wilmot into custody and delivered her to the ASA. The ASA charged Wilmot with two felonies and filed her case in adult court. Wilmot, who cooperated completely with both the assistant principal and the officer, said she did not mean to harm or frighten anyone. Nonetheless, the school automatically expelled her for violating the conduct code, forcing Wilmot to complete her high school education through an expulsion program.

Following the charges, the Polk County School District released a statement unequivocally defending the choice to expel Wilmot: "In order to maintain a safe and orderly learning environment, we simply must uphold our code of conduct rules. We urge our parents to join us in conveying the message that there are consequences to actions. We will not compromise the safety and security of our students and staff." Thanks to the school's zero-tolerance approach, what it could have treated as a minor mishap deserving of stern but reasonable punishment has devolved into an expulsion and criminal offense that could both haunt Wilmot for the rest of her life.

According the Florida department of juvenile justice, the state's counties average ten school-related delinquency arrests per 1,000 students per year. Polk County, Florida, where Wilmot is a student, arrests more than two times the average number of students—21 per 1,000 each year—making the county one of the state's most dramatic examples of the school-to-prison pipeline in action. The county's choice to rely on police for discipline means kids are far more likely to be arrested for minor offenses and funneled into the criminal justice system. This is exactly what happened to Wilmot.

After being contacted by the school resource officer, Assistant State Attorney Tammy Glotfelty advised that Wilmot be charged with "possessing or discharging weapons or firearms on school property" and "making, possessing, throwing, projecting, placing, or discharging any destructive device," both felonies under Florida law. The choice to levy these charges on Wilmot, and to try her as an adult, were entirely Glotfelty's—she was not bound by Florida law to dole out these severe charges. Still, she exercised her prosecutorial discretion to the fullest extent and, in so doing, senselessly endangered the promising future of a sixteen-year old child.

The confluence of the school's insistence on a zero-tolerance interpretation of their code of conduct and Glotfelty's decision to criminalize Wilmot for a harmless mistake powerfully illustrates the absurdity of these inflexible approaches to school discipline. Treating Wilmot's accidental mini-explosion as a criminal offense is an outrageous response to what was simply the product of youthful experimentation. All children make mistakes born of curiosity or peer pressure, and that is exactly what happened here. To needlessly treat these kids as criminal is not only foolish and unnecessary—it's a sure path to reinforcing the school to prison pipeline.

Support Kiera Wilmot. Criminalizing a child's experiment? The school-to-prison pipeline has reached a new low.

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Mother’s Day Comes Early for Iowa’s Married Same-Sex Couples

Fri, 05/03/2013 - 9:34am

Same-sex couples have had the freedom to marry in Iowa since 2009. Melissa and Heather Gartner are among the thousands of same-sex couples who have married there. But when Heather gave birth to their daughter Mackenzie in 2010, the Gartners discovered that there were some loopholes in the "marriage equality" they thought their home state of Iowa had achieved. The Iowa Department of Public Health refused to list Melissa Gartner as Mackenzie's parent on her birth certificate. That left Melissa in the awkward position of lacking legal proof of her relationship to the baby, should she need to travel with Mackenzie or arrange medical care for her when her wife isn't on hand to sign paperwork.

The state of Iowa based its decision on the fact that Melissa is not Mackenzie's biological father—which is true, but also misses the point. Iowa, like most other states, has a "spousal presumption" that a mother's spouse is legally recognized as the other parent of children born to her during the marriage. It's crystal-clear under Iowa law that the husband of a biological mother may be listed as a parent on a child's birth certificate, regardless of whether he's the biological father.

For example, Iowa authorities previously determined that a mother's husband should be listed on her baby's birth certificate when he had been serving overseas in the military at the time of conception (so he couldn't possibly be the biological father). The spousal presumption is one of the most basic rights and responsibilities of marriage. But Iowa officials refused to apply that presumption fairly when they started to receive birth certificate applications that listed the mother's female spouse as a parent.

The Gartners filed suit against the Iowa Department of Health in 2010, represented by Lambda Legal. In January 2012, they received a favorable decision from an Iowa trial court, but the state appealed. Later in 2012, the ACLU's LGBT Project and the ACLU of Iowa submitted a friend-of-the-court brief urging the Iowa Supreme Court to rule in the Gartners' favor. Expanding on the arguments our colleagues at Lambda Legal put forth, we argued that it's a violation of the strong equal protection guarantees in the Iowa Constitution to discriminate against Melissa on the basis of her sex and sexual orientation, as well as against baby Mackenzie based on the status of her parents (just as the U.S. Supreme Court has determined it's unconstitutional for states to deny rights to children whose parents happen to be unmarried), by denying them the benefits of birth certificate listing.

Today, the Iowa Supreme Court ruled in favor of the Gartners, affirming once and for all that the spousal presumption applies to mothers' wives, just like it does to mothers' husbands. In its 6-0 ruling, the Court focused on the equal protection issue. It determined that the state of Iowa was discriminating based on sexual orientation when it applied the spousal presumption to list a husband as the father on a birth certificate when a straight couple had conceived through donor insemination, but refused to apply the presumption when a lesbian couple had conceived the very same way. This decision will bring Iowa in line with all of the other states that recognize marriage or civil unions for same-sex couples, by allowing a mother's spouse or partner to be listed as a parent on their child's birth certificate.

We encourage all married lesbian couples who give birth to pursue second-parent adoptions, since an adoption judgment is the most solid legal confirmation of the parental relationship and is the surest way to ensure protection in case issues arise in a part of the country that doesn't yet recognize marriage for same-sex couples. Nonetheless, requiring Iowa to name both mothers on birth certificates will be both practically useful and symbolically important for Iowa families.

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The LA Times Agrees – ENDA’s Religious Exemption Must Be Narrowed

Fri, 05/03/2013 - 8:08am

On Thursday, the Los Angeles Times published a powerful editorial arguing that a blank check for religiously affiliated organizations – far beyond houses of worship – to discriminate in employment against LGBT people should not be the price paid to enact the long-sought and critically important Employment Non-Discrimination Act (ENDA).

The ACLU strongly concurs, and has been outspoken on the need for a narrowed religious exemption in ENDA.

As the editorial succinctly notes:

…the American Civil Liberties Union and several gay rights groups note that the ENDA exemption would give religious employers — including, in some jurisdictions, religiously affiliated colleges and hospitals — free rein to discriminate against gay and transgender persons even for secular positions such as groundskeepers and physicians. They say they would be willing to live with a more narrowly tailored exemption for religious organizations.

We're not sure any religious exemption is necessary. Under court decisions interpreting the 1st Amendment, religious institutions may choose their ministers without regard to anti-discrimination laws. It would be a shame if such an exemption — especially one that is not very carefully circumscribed, applying only to employees charged with preaching or propagating the faith — became the political price for enactment of ENDA.

Religious liberty is very important and guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs – but it does not allow us to harm or discriminate against others. Religious liberty, contrary to what opponents of LGBT equality argue, is not a license to use religion to discriminate.

ENDA's religious exemption must be narrowed because it gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual's race, sex, national origin, age, or disability. The LGBT community and those who advocate for LGBT people must not allow this.

Now is the time to draw a line in the sand and make clear that blank checks to discriminate are incompatible with basic fairness and equality under the law for LGBT people. We remain hopeful that our allies in Congress will agree that singling out LGBT people alone for this kind of unequal and unfair exemption to otherwise applicable non-discrimination laws has no place in this historic legislation.

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