Why Are We Spending So Much To Lock Up Elderly Prisoners Who Pose Little Threat?

By Inimai M. Chettiar and Vanita Gupta, cross-posted from American Constitution Society

Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

As the number of prisoners in the United States climbs ever higher, the number of aging prisoners is climbing even faster. Between 1980 and 2010, the total number of people incarcerated in this country grew by 400 percent. In that same timespan, the population of prisoners age 55 and older grew by nearly 1,400 percent. At the current rate of growth, the number of prisoners age 55 and older will have increased 4,400 percent from 1981 to 2030 and will make up fully a third of the nation’s prison population.

The increase in the number of aging prisoners is not due to a spike in the number of crimes committed by older people. There is no “elderly crime wave.” And contrary to popular belief, older prisoners aren’t more likely to have committed a serious crime. Rather, many elderly prisoners are incarcerated for crimes committed in their youth for which they received disproportionately long sentences, and many elderly prisoners are in prison for nonviolent crimes. The current mentality of “lock ‘em up and throw away the key” has led lawmakers to impose exceedingly harsh penalties on individuals who commit low-level offenses, ensuring that they stay behind bars well into age and often until they die. The adage “let the punishment fit the crime” has given way to a reign of disproportionality in sentencing that is nothing if not cruel and unnecessary.

For instance, in California, Leandro Andrade, a father of three, received a mandatory sentence of 25 years to life in prison for two counts of shoplifting children’s videotapes valued at $153. He had two prior offenses for misdemeanors. In Mississippi, Atiba Parker was sentenced as a habitual offender to a total of 42 years in prison for selling a total of .3 grams and possessing less than .1 grams of crack cocaine. And also in Mississippi, the now-famous Scott sisters, Jamie and Gladys, were sentenced to two consecutive life terms for a robbery in which they stole $11 when they were teenagers.

Like many aging prisoners, Andrade, Parker and the Scott sisters are caught in the net of our extreme sentencing laws enacted since the mid 70’s. Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have increasingly deemed more private acts criminal and doled out harsher punishments for a generation. Law enforcement has selectively enforced these laws against the "feared" Black and brown communities. In the end, we’re left with a massive, unsustainable prison population – and equally unsustainable aging prison population – unlike anything the world has ever seen.

If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.

Today’s report provides a number of recommendations to legislators and correctional leaders interested in meaningful reform. Given the fact that public opinion is shifting toward a desire for fewer people in prison, the time to implement these reforms is now. The longer term solution requires political will to redesign our extreme sentencing regime to reintroduce proportionality, and repeal or reform habitual offender, mandatory minimum and truth-in-sentencing laws. A more immediate recommendation is for states to empower parole boards to determine which aging prisoners are worth the cost of continued incarceration because they pose grave public safety threats and which are not and can be safely released. In 2011, a bipartisan coalition in Louisiana passed just such a reform measure; if Louisiana – which leads the nation in incarceration – can take these steps, other states can surely follow suit.

In today’s hobbled economy, legislators cannot continue wasting taxpayer dollars by turning our prison system into a vast complex of nursing homes. It is a moral and fiscal imperative to stem the explosion in the aging prisoner population. Aging prisoners pose little threat to the public’s safety and incarcerating them is breaking our collective bank. Furthermore, it is inhumane to keep people locked up when there is no compelling societal justification to do so. The tools for grappling with this crisis are well within reach of legislators around the nation and the time for reform has arrived.

Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.

"Tough On Crime" No Longer The American Mantra?

By Inimai Chettiar and Alex Stamm, cross-posted from Huffington Post
  

Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. And for the most part, it seems Americans did feel this way (if you don't think so, just ask Michael Dukakis). To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have repeatedly deemed more private acts criminal and doled out harsher punishments for a generation. They selectively enforced these laws against the "feared" Black and brown communities, and in the end gave us a massive, unsustainable prison population unlike anything the world has ever seen.

But the pendulum of public opinion is starting to swing in the other direction. A Pew survey in March found that not only do 73 percent of Americans who have not experienced violent crime think that too many people are behind bars, but they're joined in that opinion by 70 percent of violent crime victims. Further, 88 percent of respondents agree that we have too many low-risk, nonviolent offenders behind bars, and 87 percent support increased access to reentry programs, such as job training.

The vast majority of Americans are ready to end our addiction to incarceration. What Americans want now is common sense and proportionality. Two factors have contributed significantly to the shift in opinion. First, Americans are increasingly aware of our appalling incarceration rate and its racial injustices. We have the largest prison population on the planet; we have 5 percent of the world's people but 25 percent of its prisoners. Our criminal justice system locks up Black and brown people for drug crimes at a far higher rate than their white counterparts -- even though white Americans use drugs at a higher rate. Our prison system is one of the largest human rights atrocities in the world.

Second, more Americans know that our incarceration rate is not only egregious but also unnecessary. Social scientists and policymakers have a generation of solid data proving that we can have fewer prisoners and less crime, and showing that unnecessary incarceration can actually increase recidivism. States have proven this over and over. New York did it; between 1999 and 2009, it reduced its prison population by 20 percent and its crime rate fell by 29 percent during that time. Texas did it too; thanks to smart reforms beginning in 2003, prison population growth stalled while its crime rate fell by 13 percent to its lowest level since 1973. These examples are a sample of a larger and growing trend—states and large cities are locking fewer people up, and their communities are getting safer.

Americans are tired of being tough on crime and are ready to be smart about crime. That's good news for lawmakers. It means that they can pass the necessary pretrial, sentencing, drug and parole reforms that this country so desperately needs without the fear of losing their next election. In fact, championing these types of reforms may actually start to win them votes. With the public behind them, we hope lawmakers will take action to finally end our incarceration binge.

Ten Things To Know About CISPA

DonkeyHotey

The Cyber Intelligence Sharing and Protection Act, known as CISPA passed the House of Representatives by a vote of 248-168 vote, and now goes to the Senate.  The ostensible goal of the legislation is "to help companies beef up their defenses against hackers who steal business secrets, rob customers' financial information and wreak havoc on computer systems."  It does this by making it easier for the government and private industry to share information about cyber threats.

But it raises legitimate civil liberty concerns. The ACLU warns that the bill is "dangerously overbroad."   Reporters Without Borders notes that "the bill would negate existing privacy laws and allow companies to share user data with the government without a court order."

ThinkProgress tells us what we need to know:

CISPA’s broad language will likely give the government access to anyone’s personal information with few privacy protections: CISPA allows the government access to any “information pertaining directly to a vulnerability of, or threat to, a system or network of a government or private entity.” There is little indication of what this information could include, and what it means to be ‘pertinent’ to cyber security. Without boundaries, any internet user’s personal, private information would likely be fair game for the government.
  
It supersedes all other provisions of the law protecting privacy: As the bill is currently written, CISPA would apply “notwithstanding any other provision of law.” In other words, privacy restrictions currently in place would not apply to CISPA. As a result, companies could disclose more personal information about users than necessary. Ars Technica writes, “if a company decides that your private emails, your browsing history, your health care records, or any other information would be helpful in dealing with a ‘cyber threat,’ the company can ignore laws that would otherwise limit its disclosure.” 

The bill completely exempts itself from the Freedom of Information Act: Citizens and journalists have access to most things the government does via the Freedom of Information Act (FOIA), a key tool for increasing transparency. However, CISPA completely exempts itself from FOIA requests. The Sunlight Foundation blasted CISPA for “entirely” dismissing FOIA’s “fundamental safeguard for public oversight of government’s activities.” 

CISPA gives companies blanket immunity from future lawsuits: One of the most egregious aspects of CISPA is that it gives blanket legal immunity to any company that shares its customers’ private information. In other words, if Microsoft were to share your browsing history with the government despite your posing no security threat, you would be barred from filing a lawsuit against them. Without any legal recourse for citizens to take against corporate bad behavior, companies will be far more inclined to share private information. 

Recent revisions don’t go nearly far enough: In an attempt to specify how the government can use the information they collect, the House passed an amendment saying the data can only be used for: “1) cybersecurity; 2) investigation and prosecution of cybersecurity crimes; 3) protection of individuals from the danger of death or physical injury; 4) protection of minors from physical or psychological harm; and 5) protection of the national security of the United States.” This new version still “suffers from most of the same problems that plagued the original version,” writes Timothy Lee. Because terms like “cybersecurity” are so vague, the bill’s language could encompass almost anything. 

Bend Over America: SCOTUS OK's Strip Searches

DonkeyHotey

Albert Florence was in the passenger seat of his BMW when a state trooper pulled his wife over for speeding. A records search revealed, incorrectly as it turned out, that he had an outstanding warrant based on an unpaid fine.  Mr. Florence was handcuffed and taken into custody.  Florence was held for a week at two separate New Jersey county jails, and strip-searched at each one.

(In a podcast produced by the American Constitution Society and the National Constitution Center, Florence tells the story of his arrest in front of his pregnant wife and four-year-old son, and his subsequent treatment at the two detention facilities.)

An outrageous affront to human dignity, right?  An obvious violation of personal privacy?  With jails admitting more than 13 million inmates a year, are we really going to sanction strip searches for even the most minor offenses?

Yesterday, in a -- say it with me -- "5-4 decision," the United States Supreme Court held that corrections officials may strip search people who are arrested for all offenses, including those not involving drugs or violence, and without any suspicion that they may be hiding contraband.

Justice Kennedy, who wrote the majority opinion, was loathe to "second-guess the judgments of correctional officials," while Justice Breyer wrote in dissent that "there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something."

Breyer also took note of a number of other instances documented in amicus briefs submitted in the case in which "individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search”:

They include women who were strip-searched during periods of lactation or menstruation. They include victims of sexual violence. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.

The ACLU warned that the decision "jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses."  ACLU legal director, Steven R. Shapiro, stated:

Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion. Jail security is important, but it does not require routinely strip searching everyone who is arrested for any reason, including traffic violations, and who may be in jail for only a few hours. 

Amy Davidson writes about the cluelessness of Justice Kennedy and his Gang of Five ("What does the Supreme Court know about naked bodies? What is more important, according to a five-four decision Monday, is what the Justices think a law-enforcement officer might learn from strip-searching anyone who has been taken into their custody for any reason at all.")

Davidson makes another great point:  "If jails are such a dangerous morass, the sort of place one can’t enter without a squatting ritual, why are we sending so many millions there, and for what?"

ACLU Sues To Obtain Info On Targeted Killings

I've previously written about last September's drone attack in Yemen that killed Anwar al-Awlaki, an American-born cleric tied to Al Qaeda.  (See, e.g., International Execution.)  Samir Kahn, also a U.S. citizen, was reportedly killed in the same attack.  Two weeks later, al-Alwaki's 16-year old son, Abdulrahman al-Awlaki,  was killed elsewhere in Yemen

Last week, the ACLU filed suit under the Freedom of Information Act after the government refused to release records on the factual and legal bases for using drones to target United States citizens for assassination overseas.

From the ACLU's website:

Our government’s deliberate and premeditated killing of American terrorism suspects raises profound questions that ought to be the subject of public debate. Unfortunately the Obama administration has released very little information about the practice — its official position is that the targeted killing program is a state secret — and some of the information it has released has been misleading.

The New York Times recently filed a similar suit that seeks the legal memos on which the targeted killing program is based.   But, the ACLU's suit goes further, seeking, in addition "the government’s evidentiary basis for strikes that killed three Americans in Yemen in the fall of 2011. We’re also seeking information about the process by which the administration adds Americans to secret government “'kill lists.'”

The Department of Justice, Department of Defense and the CIA have refused to provide any records in response to the ACLU's FOIA requests, and won't even confirm that any records responsive to the requests even exist.  As the ACLU states, "essentially, these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists."

This is outrageous given that the President and Secretary of Defense Panetta (most recently on 60 Minutes) each have publicly acknowledged the existence of the program and have defended, if not boasted of, its use.  As the ACLU argues, this self-serving and highly selective attitude towards disclosure and transparency is unacceptable:

Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

G.O.P. Candidates Flunk The Civil Liberties Test

Obama doesn't exactly pass the Candidate Report Card On Civil Liberties with flying colors but what a contrast to the Republican field.  As Digby puts it so well:  "Unless Paul unexpectedly gets the GOP nomination or Johnson suddenly surges as a third party candidate, we are assuredly looking at GOP nominee who is basically an authoritarian nutcase across the board. There's not even the tiniest bit of daylight there. Good God."

"Serious Reservations" About President Obama

It hardly matters that President Obama may have "serious reservations" about the indefinite detention provisions that he just signed into law as part of the defense spending bill.  And it provides little comfort that his signing statement purports to clarify that his "Administration will not authorize the indefinite military detention without trial of American citizens,” or that he believes "that doing so would break with our most important traditions and values as a Nation."

The problem, as David Dayen points out "was always about the codifying of indefinite military detention into the law, available for any future President to pick up and use."  Or as the ACLU puts it: "the statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield."
 
Dayen further explains:

The vagaries of the language in the statute, which allows for detentions of people “associated” with Al Qaeda, and the burden on Presidential waivers to avoid military detentions rather than an opt-in kind of process, make the language extremely unadvisable from the standpoint of the civil liberties community. However, it’s important to recognize that the Obama Administration really was already in practice allowing for the indefinite military detention of terrorist suspects. They didn’t want language that hindered their counter-terrorism processes, particularly those of the FBI. That’s what they got out of the changes, so the codification really didn’t matter to them at that point. There are painfully few political actors in Washington opposed to this complete breach of the Constitutional right to due process.

So, President Obama, how about some Wilco to close out 2011?  Unfortunately, unlike the lyric, I do have reservations about you.  Serious reservations.

Drones Are Coming To America

The ACLU has released an important report on the domestic use of drone aircraft by law enforcement and what protections must be implemented to protect our privacy.

Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft

Cross-posted from the ACLU website

Unmanned aircraft carrying cameras raise the prospect of a significant new avenue for the surveillance of American life. Many Americans have heard of these aircraft, commonly called “drones,” because of their use overseas in places like Afghanistan and Yemen. But drones are coming to America, and, as an ACLU report concludes, protections must be put in place to guard our privacy. Download the report »

As technology is quickly becoming cheaper and more powerful, and interest in deploying drones among police departments is increasing around the country, our privacy laws are not strong enough to ensure that the new technology will be used responsibly and consistently with democratic values.

In early 2012, the Federal Aviation Administration is expected to propose new rules to make it much easier for law enforcement agencies to gain permission to use drones in the U.S. If the FAA is unable to implement the needed reforms, then Congress must act.

The ACLU’s report outlines a set of protections that would help protect Americans’ privacy in the coming world of domestic drones. The report recommends that drones should not be deployed unless there are grounds to believe that they will collect evidence on a specific crime. If a drone will intrude on reasonable privacy expectations, a warrant should be required. The report also calls for restrictions on retaining images of identifiable people, as well as an open process for developing policies on how drones will be used. Download the report »

Routine aerial surveillance in American life would profoundly change the character of public life in the United States. Rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a “surveillance society” in which our every move is monitored, tracked, recorded, and scrutinized by the authorities.

Download the report, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft” »

Obama To Enshrine Indefinite Detention Into Law

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.  -- Presidential Proclamation, Bill of Rights Day, 2011

More irony from the Obama Administration.  As the President proudly commemorates the 220th anniversary of the adoption of the Bill of Rights, he shamelessly plans to sign the Defense Authorization Act despite provisions which will allow him -- or any future president -- to indefinitely imprison, without a criminal charge or court hearing, any suspected terrorist who is captured within the United States -- including American citizens.

Obama previously threatened to veto the bill but -- oh, what a surprise -- he has reconsidered after provisions "mandating" military custody of non-citizen terrorism suspects arrested on US soil were rendered optional.

Senator Patrick Leahy (D-VT) who strongly opposed these provisions issued a statement which reads in part:

Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough.  I am not satisfied with the status quo.  Under no circumstances should the United States of America have a policy of indefinite detention.   I fought against Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy.  And I strongly opposed President Obama’s executive order on detention when it was announced last March, because it contemplated, if not outright endorsed, indefinite detention.

The ACLU asserted that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.”

Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”

As Adam Serwer concludes:

The administration had said that the military detention provisions of an earlier version of the NDAA were "inconsistent with the fundamental American principle that our military does not patrol our streets."
The revised NDAA is still inconsistent with that fundamental American principle. But the administration has decided that fundamental American principles aren't actually worth vetoing the bill over.

 Happy Bill of Rights Day, everyone.

Going After Thought Crimes

As Tom Engelhardt writes:  "In twenty-first-century America, “rights” are increasingly meant for those who behave themselves and don’t exercise them.  And if you happen to be part of a government in which no criminal act of state -- torture, kidnapping, the assassination of U.S. citizens abroad, the launching of wars of aggression -- will ever bring a miscreant to court, only two crimes evidently exist: blowing a whistle or expressing your opinion."

Peter Van Buren, a foreign service officer, had his security clearance taken away and was then suspended for writing a book about about his year running a provincial reconstruction team in Iraq (We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People).  He writes knowingly below about the case of Morris Davis, who was fired from his research job at the Library of Congress for writing an article, "Justice and  Guantanamo Bay" for the Wall Street Journal.

No Free Speech at Mr. Jefferson’s Library

By Peter Van Buren, cross-posted from Tom Dispatch

Here’s the First Amendment, in full: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Those beautiful words, almost haiku-like, are the sparse poetry of the American democratic experiment.  The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism.  Go ahead, reread it aloud at this moment when the government seems to be carving out an exception to it large enough to drive a tank through.

As the occupiers of Zuccotti Park, like those pepper-sprayed at UC Davis or the Marine veteran shot in Oakland, recently found out, the government’s ability to limit free speech, to stopper the First Amendment, to undercut the right to peaceably assemble and petition for redress of grievances, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on.  In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in.

Now, it also seems to be chipping away at the most basic American right of all, the right of free speech, starting with that of its own employees.  As is often said, the easiest book to stop is the one that is never written; the easiest voice to staunch is the one that is never raised.

Just Say No To Indefinite Military Detentions

This week, and as early as tonight, the Senate will vote on the 2012 Defense Authorization Bill, which includes a truly awful provision that would permit indefinite detention.  If the bill becomes law, Congress will have given the President the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world.

Chris Anders of the ACLU explains:

The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.  The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.

While the Obama Administration may ultimately veto the legislation, the only way to ensure the bill doesn't pass is for the Senate to approve the Udall amendment, which would strip the detention provisions and require Congress to use an orderly process to consider whether any detention legislation is needed at all.

It is not too late to contact your senators and urge them to vote YES on the Udall Amendment to the National Defense Authorization Act.

Unhappy Anniversary: The Patriot Act At 10

It's the tenth anniversary of the Patriot Act, but what do you get the government that knows everything.  Jon Stewart, The Daily Show, 10/26/11

 

The Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001 was signed into law by President George W. Bush on October 26, 2001, as part of the panicked response to the 9/11 attacks.

As the ACLU explains, the Patriot Act has "made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet."  While it is generally believed that it was created and is being used for anti-terrorism purposes, turn outs that the Patriot Act is used routinely in criminal investigations, turning "regular citizens into suspects."

Check out theACLU's infographic here.

[Related posts:  The Patriot Act Goes Rogue; Libertarians and Civil Libertarians]

The Legacy Of Derrick Bell

By Inimai Chettiar, cross-posted from American Constitution Society

Professor Derrick Bell, who passed away on Wednesday, was a racial justice pioneer and teacher who enlightened many. His actions spoke as loudly as his words and influence the work we do today at the ACLU. He was the first black law professor at Harvard Law School, yet in 1990 he vowed to take an unpaid leave of absence until the school hired a black woman for its tenured faculty. That didn’t happen until 1998, and by then Bell had moved on to NYU Law School, where he remained until the end of his career.

It is groundbreaking scholarship like that of Professor Bell that gives life to the ACLU’s current work. In his book, Faces at the Bottom of the Well: The Permanence of Racism, he described, among other things, the forces that prevented Harvard from hiring black women as tenured law professors. Professor Bell (pictured) was not afraid to state the truth: that structural and insidious racism pervades our society, institutions, and thinking. He pioneered the development of critical race theory – which recognizes that racism is embedded deep beneath the surface of our laws and legal institutions. He explained that, even where there is no de jure segregation or explicit racism, there are often far more harmful subtle forces that hinder access to equality and result in de facto segregation.

In order to understand the structural nature of racism, we need to follow Professor Bell through the proverbial “looking glass.”  Things aren’t always what they seem. The work of Bell and other scholars showed that, in order to achieve true racial equality, it’s insufficient to eliminate de jure segregation laws if the majority of our institutions continue to be created by, for, and around heterosexual white men of privilege. When our societal or legal “norm” automatically leaves out women and people of color, it may look like these groups are asking for a handout or an “unfair advantage” when what they are really asking is to be included in the creation of our institutions and laws.

Take, for example, Judge Richard Posner’s criticism of the signature use of narrative and allegory in the legal writing of Professor Bell and other critical race theorists. Judge Posner argued that “by repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.” The very notion that “reasoned argumentation” is somehow intellectually superior to narrative and allegory as a means to explain legal theory is embedded in racism. (Not to mention that Plato - a father of Western philosophy - wrote in allegory.) Critical theorists explain that our entire system of legal education and scholarship was built by and for white men of privilege. Others are forced to fit these so-called “objective” academic criteria, or else be branded as not smart enough. But criteria for what makes someone the “best” cannot be objective when it is decided by the preferences of those in power.

Professor Bell eloquently identified and challenged the underlying inequalities that keep black Americans and other marginalized groups “at the bottom of the well.” These inequalities are reinforced by policies that provide inadequate resources to inner-city schools populated with poor black children, criminalize children’s behavior in these schools, fail to provide families with affordable healthcare, make healthy foods prohibitively expensive, selectively enforce drug policies in communities of color, strip away our voting rights, and build housing projects in environmentally unsound areas. The law doesn’t become race neutral just because it doesn’t mention race. It only becomes race neutral when it accounts for and corrects its disparate impact on people of color, and is built by and for all of us.

We are far from living in a post-racial society, and Professor Bell knew that. In 1992 he put forward the notion that black Americans were worse off and more subjugated then than at any time since slavery. Startlingly, right now this country controls more black men through our incarceration system than it ever enslaved. Black Americans continue to live unequal lives and have unequal futures, but yet society clings to the notion that racism no longer exists simply because the law no longer mentions race. A false belief in a post-racial society is dangerous and will prevent us from achieving true equality.

Had it not been for Professor Bell’s courage – the courage to walk away from jobs in protest, the courage to loudly state that racism remains, and the courage to continue to speak the unpopular truth until the end – racial justice advocacy would be far behind where it is today. We draw strength from his courage and hope to carry on his struggle with our work against structural racism in our education, healthcare, employment, voting, immigration, and criminal laws. As the ACLU fights on, we stand on the shoulders of this giant.

Inimai Chettiar, policy counsel for the ACLU’s Center for Justice, and Courtney Bowie, senior staff attorney for the ACLU's Racial Justice Project

Prisoner Realignment Plan: Counties Must Find Alternatives To Lockups

By Allen Hopper.  Originally published in the Sacramento Bee.

California's realignment process – which will shift responsibility for some low-level, nonviolent, nonserious offenders from state prisons to counties – has begun. But far more is at stake than the transfer of inmates. If properly implemented, realignment will reverse decades of over-reliance upon incarceration, improve public safety and save taxpayers hundreds of millions of dollars each year.

At the core of the realignment legislation is an acknowledgment of the indisputable failure of California's criminal justice policy on a massive scale. As the legislative findings that accompany the law explain, "despite the dramatic increase in corrections spending over the past two decades, reincarceration rates … remain unchanged or have worsened … Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety."

Our state's overall recidivism rate has risen to an appalling 67.5 percent, among the highest in the nation. To stem over-incarceration, counties must confront the recidivism problem. We must hold individuals accountable for their behavior while addressing the underlying reasons for criminal behavior – whether drug addiction, mental health problems, lack of stable housing, education or job prospects and others.

Each county must provide the state with an Assembly Bill 109 implementation plan divvying up their share of the nearly $400 million in state realignment funding. Since the new realignment law goes into effect Oct. 1, counties across the state are scrambling to get these plans drafted and approved by boards of supervisors in the next few weeks.

Death and Law & Order

By James Clark, cross-posted from Huffington Post

From its synth-jazz theme song to its cheesy dialogue to the sage counsel of S. Epatha Merkerson, I love Law and Order. But the best part of Law and Order is the satisfying finality that every episode brings. No matter the verdict, Jack McCoy and the gang always get a cathartic sense of closure after they solve a case.

Unfortunately, real trials aren't so satisfying -- especially when the death penalty is on the table.
McCoy never had to deal with the decades-long appeals process that the death penalty requires. To avoid the execution of an innocent person, the death penalty appeals process is long and arduous -- 25 years on average. Rather than providing closure, it exacts a grueling toll on family members of the victim. For them, the appeals process must feel like a nightmare of promises made and unfulfilled.

Law and Order also never dealt with the budget constraints of real-life law enforcement agencies. When Lennie needed to run down a new lead, he never had his overtime request turned down like detectives in the LAPD homicide unit did. And the L&O team may have felt stung when Benjamin Bratt left the show to be a movie star, but at least they weren't decimated by layoffs like the Oakland Police Department was. Maybe because they don't have death penalty appeals, their police department is fully funded.

That may also be why every case on Law and Order was solved. Here in real-life California, 46 percent of all murders go unsolved in an average year, and 56 percent of rape cases remain open indefinitely. Meanwhile, taxpayers spend $184 million each year to support a dysfunctional death penalty system that operates like an upscale life without parole: more death row inmates die of illness and old age than they do of execution.

Change is coming: California Taxpayers for Justice has just announced a November 2012 ballot initiative called the SAFE California Act, which promises Savings, Accountability, and Full Enforcement for California. SAFE CA replaces the death penalty with life in prison without the possibility of parole. And it commits the millions of dollars we'll save to local law enforcement.
SAFE CA is about balancing California's spending and public safety priorities. It's about recognizing the failure of the death penalty, which costs billions of dollars and does not keep our families safe.

We've already spent $4 billion to execute 13 people since 1979, and, if nothing changes, we'll spend another billion over the next five years.

California should invest that money in proven public safety solutions, like education and crime prevention programs.

SAFE CA takes California law enforcement out of the fantasy world of Law and Order and brings it into our budget-strapped reality. Californians deserve real justice and taxpayers deserve to have their dollars invested wisely in real solutions for our schools and communities.

Justice Ginsburg: In Current Political Climate, I Might Never Have Been Confirmed to High Court

By Nicole Flatow, cross-posted from American Constitution Society

Ruth Bader Ginsburg at the ACLU

If her judicial nomination had been considered by today’s Senate, U.S. Supreme Court Justice Ruth Bader Ginsburg says she might never have been confirmed, The Associated Press reports.

"Today, my ACLU connection would probably disqualify me," said Ginsburg, who served as general counsel for the American Civil Liberties Union and helped launch the organization’s Women’s Rights Project.

Ginsburg was confirmed to the Supreme Court in 1993 by a vote of 96-3. She had also been confirmed in 1980 to sit on the U.S. Court of Appeals for the District of Columbia.

Ginsburg also spoke out about Senate obstruction of judicial nominations last August, calling for greater Senate cooperation in confirming judicial nominees to our lower federal courts.

“With ABA encouragement, may the U.S. Senate someday return to the collegial, bipartisan spirit that Justice Breyer and I had the good fortune to experience," she said during the American Bar Association’s annual meeting.

At ThinkProgress, the Center for American Progress’s Ian Millhiser notes, “It is possible that modern doctrines preventing gender discrimination would simply not exist if Ruth Bader Ginsburg hadn’t done the work she did for the ACLU. And yet, in today’s era of rampant right-wing filibusters, that alone would disqualify her for a seat on the federal bench.”

To learn more about judicial nominations and the vacancy crisis on our federal courts, visit JudicialNominations.org.

Balancing Government Budgets While Promoting Justice: Break Our Addiction To Incarceration

By Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union.  Cross-posted from American Constitution Society.

There isn’t an American who hasn’t felt the devastating effects of the Great Recession. And just when most of us thought it couldn’t get any worse, the S&P downgrade of the federal government’s Treasury debt last Friday sent shocks through the country and the world, increasing talk about a double-dip recession and creating sharp declines on Wall Street yesterday reminiscent of the 2008 market crash. A downgrade of state and municipality debts could also follow.

The scarcity of funds in American households and the resulting decline in government revenues have forced lawmakers to think twice before spending precious taxpayer dollars. Some states have enacted laws in the name of saving money that have been incredibly short sighted – like cutting funding for public and higher education or increasing financial burdens on the poor. These types of policies may save small amounts of money in the short run, but will have devastating effects on our children’s futures and prevent individuals on the margins from contributing to society. 

Among all this economic tragedy, however, there is a silver lining. As detailed by a new ACLU report released today, several states have enacted cost-effective laws cutting their unnecessary overreliance and massive spending on prisons while continuing to protect the safety of our communities. This is especially good news considering that state and federal governments spend about $70 billion annually on prisons and corrections. Over the last 25 years, state corrections spending grew by 674 percent, outpacing the growth of other government expenditures.

Death Rattle For California's Death Penalty

"California’s death penalty exists in name only, an expensive fiction that undermines confidence in our justice
system, causes harm to victims’ families, and consumes literally billions of dollars--resources that would be better spent on protecting our families, solving crimes and supporting our schools and education."  -- ACLU-NC Report

As the oblivious California Supreme Court rubber stamps death penalty appeals at an unprecedented affirmance rate (38 out of 38 in 2010-2011, nearly all unanimous), it is becoming increasingly clear that the death penalty in California is costly, unworkable, inhumane, and on its way out.  (See California's Unusually Cruel Penalty.)

Former Ninth Circuit Judge Arthur Alarcon recently wrote:

Since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions. The current backlog of death penalty cases is so severe that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved.

The ACLU of Northern California has issued an important report, California Death Penalty Is Dead:  Anatomy of a Failure, outlining related developments which "reveal a system in total collapse."

First, not only have there been only 13 executions since the death penalty was reinstated, there have been no executions since 2006.  This de facto moratorium stems from litigation over the method of execution, which revealed that one of the drugs used in the lethal injection process may mask excruciating pain. Before the issue could be resolved, California, among other states, ran out of the drugs they needed to carry out executions which led to potentially illegal actions by state officials in acquiring a new supply.  (See Drug Problem; Lethal Life Savers.)  It does not appear that the legal and practical problems in carrying out executions will be resolved any time soon.  (See Just Say No; State of Barbarism.)

Second, "death penalty promoters have been snubbed at the ballot box."  Democratic candidates, including Jerry Brown (Governor) and Gavin Newsom (Lt. Gov.) as well as those down the ticket, all announced their personal opposition to the death penalty yet they all won last November.  Most notably, Kamala Harris defeated "law and order" L.A. District Attorney Steve Cooley for Attorney General despite Cooley's focused attack against her for refusing to pursue the death penalty for the killer of a San Francisco policeman  (See Tough on Crime.)

In addition, a 2011 poll  found 63% of likely California voters support converting death sentences to permanent imprisonment.  As the ACLU reports, "the proposal received support across political party lines and all regions of the state, including a majority of Democrats, Independents, and Republicans."

And finally, the severe budgetary problems in the State highlight how resources used to fund the death penalty could be far more effectively spent.  As the report puts it:  "Death penalty costs are extraordinary and detrimental to public safety at a time of economic crisis."   46% of homicides in California are never solved, and millions of dollars expended every year on the death penalty could be used on effective programs that improve public safety.

The Myth Of California's Death Penalty

By James Clark, originally published at Huffington Post, July 13, 2011.

I have this thing about myths. I like to know the difference between Reality and, well, Not-Reality. I spend a lot of time on Snopes.com, I avoid Fox News, my grandfather was even one of those guys who went on an expedition looking for Noah's Ark (seriously). So I'm pleased to say that the myth of California's death penalty is widely being exposed, as more and more people realize that a functional and efficient death penalty system belongs firmly in the Not-Reality Column.

Death sentences in California are at an all-time low. The Assembly is now considering a bill that would allow voters to replace the death penalty -- meaning that the myth is being exposed from prosecutors' offices to jury deliberation rooms and all the way to the statehouse.

According to a new report by the ACLU of Northern California, aptly titled "California's Death Penalty is Dead," the first six months of 2011 saw only three new death sentences in the entire state, the lowest since the death penalty was reinstated in 1978. By comparison, this time last year California had 13 new death sentences, and that wasn't out of the ordinary. If the trend continues, by year's end California may even lose its grim distinction as the nation's death sentencing leader.

Meanwhile, State Senator Loni Hancock (D-Berkeley) has authored SB 490, a bill that would give voters a chance to end the myth once and for all by replacing the death penalty with a maximum punishment of life without the possibility of parole plus work and restitution, saving $1 billion over five years. The bill was approved by the Assembly Public Safety Committee last week and is making its way to the floor. If passed, voters will be given the choice in the November 2012 election.

No Accounting For Torture

The headline in the New York Times exclaimed Justice Dept. to Widen 2 C.I.A. Inquiries, referring to the continuing investigation of two suspected terrorists who died in C.I.A. custody, one at Abu Ghraib in 2003 and one in 2002 in an Afghan prison.  That's it.  Two token investigations, albeit for two grotesque cases, are subject to inquiry.  Meanwhile, investigation into the deaths of over 100 other detainees are unceremoniously dropped.

As Glenn Greenwald put it, this means there will be no accountability for a Bush regime that "extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons -- "black sites" -- purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross" and no accountability for the 100 detainees who died during U.S. interrogations.

“With the approval of the Bush administration’s most senior officials, the C.I.A. operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law,” said Jameel Jaffer, deputy legal director for the ACLU. “The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing.

And that, of course, is the problem.  The narrow scope of the investigation focused on low level operatives and not the officials who approved the program.  In addition, as Adam Serwer observes, Obama further undermined the investigation's independence when he "argued that the country needed to 'look forward,' . . . suggesting that criminal investigations should be subordinate to the president’s whim rather than the facts and the law."

And not only have the Bush officials who "sanctioned torture escaped civil and professional consequences," but the Obama Administration, as Greenwald points out, shielded "those responsible for some of the most shameful and inexcusable crimes in the nation's history . . . from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party's control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens' torture at American hands."

What is so wrong about this is not only that those responsible for torture are being let off the hook.  As Serwer writes, "the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability," make if far more likely that torture could again become American policy.  Thus, even assuming the Obama Administration won't sanction torture and violate human rights, what is to stop the next Administration when there has been no true reckoning?