As states begin to realize that they can reduce their prison populations safely, the pace of reform has begun to pick up a bit this year. State legislative sessions are coming to a close, which makes it a good time to review the actions lawmakers have taken to reduce their unsustainable prison populations in 2012. Here are the some of the legislative reform highlights:
Alabama
Faced with a system of overcrowded prisons and fearing the same sort of court order that forced California to reform its prison system, Alabama took an indirect route toward depopulating its prisons. The state passed SB 386 inMay, which will allow the Alabama Sentencing Commission to set sentencing guidelines for nonviolent crimes that judges would generally have to follow. Under the new law, the Commission can make sentencing changes for nonviolent crimes, which will take effect unless the legislature takes action to reject any such the changes. The Sentencing Commission, which is insulated from the electoral pressure to reject proposals to soften criminal sentences, may now be poised to take action to reduce prison sentences for nonviolent offenses.
California
In the wake of the governor’s “realignment” plan, the ACLU has worked hard this year to introduce additional bills to help depopulate the state’s prisons and jails, which are currently before the state Senate. The first, SB 1506, would change simple possession of drugs from a felony to a misdemeanor and has also garnered support from conservative reform groups like Right on Crime. The second, SB 1180, would implement evidence-based risk assessment tools to safely release low-risk individuals held in pretrial detention. Additionally, a reform to the state’s three strikes law will be on the ballot this fall. In related but nonlegislative news, after longstanding litigation by the ACLU, L.A. County Sheriff Lee Baca announced that he intends to close much of the nation’s largest jail, Men’s Central.
Colorado
The Colorado legislature missed one chance for meaningful sentencing reform, but the state took other steps to reduce its prison population. The ACLU strongly supported SB 163, which in original form would have changed possession of small amounts of drugs from a felony to a misdemeanor. Unfortunately, the bill was recently revised to merely commission a study of the state’s drug laws. That bill passed the Senate in early May and is currently before a House committee. Also on the horizon is a ballot initiative to legalize marijuana this November. In related news, the state will be shutting down a large prison in light of falling crime rates and prison populations.
Connecticut
When the Connecticut legislature voted to repeal the death penalty and the governor signed the bill into law on April 25, the state became the 17th in the nation to do so. Offenses formerly punishable by death will now receive life without parole. The ACLU helped harness the support of a wide coalition to back this bill, including murder victims’ families and law enforcement.
Florida
For all of the bluster surrounding Florida this session, their biggest accomplishment might have been simply not moving backwards. Florida gathered positive momentum when lawmakers rejected a bill vociferously opposed by the ACLU that would have privatized the operation of 26 prisons. Adding to the momentum toward smarter criminal justice, the state’s budget bill closed eight prisons built in anticipation of a crime wave that never hit. In April, however, Gov. Rick Scott fumbled a chance to build on that momentum when he vetoed HB 177, which would have permitted a small group of prisoners with substance abuse issues to move from prison to intensive treatment programs, which are proven to reduce recidivism. His veto was all the more perplexing considering the bill passed the Senate unanimously and the House 112-4.
Georgia
In May, Gov. Nathan Deal signed HB 1176 into law. The bill takes a number of small steps to reduce the state’s prison population. Among other things, it reduces sentences for low-level drug offenses and theft; invests in drug treatment and mental illness courts; and establishes graduated sanctions, such as community service, for probation violations. The ACLU registered its support for the bill in a letter to the governor.
Hawai’i
The ACLU of Hawai’i testified in support of SB 2776, signed into law in May, which will require risk assessment instruments to be used in pretrial and parole hearings. The bill will improve public safety by identifying individuals who pose the most risk to safety, while reducing prison populations by identifying individuals who can be safely supervised outside of prison or jail.
Illinois
In May, the Illinois legislature sent Gov. Pat Quinn SB 2621, which would reinstate a program allowing prisoners to reduce their sentences through good behavior and participation in reentry programs. The bill will reduce Illinois’ prison population and give prisoners incentives to participate in programs that are proven to reduce recidivism, such as drug treatment and education.
Louisiana
The nation’s leader in mass incarceration has also emerged as a leader in reforming its prison system two years in a row. The legislature passed HB 543, which will allow prisoners serving life sentences for nonviolent crimes to go before a parole board to prove they are ready for release. Louisiana also passed HB 1026, which will allow individuals who have committed repeat low-level offenses to appear before a parole board after serving one-third of their sentences. Gov. Bobby Jindal signed HB 1026 in May and has pledged to sign HB 543.
Kansas
In May, the Kansas House passed HB 2318, which would give judges more discretion when issuing sentences for low-level drug crimes. The bill would allow judges to divert individuals convicted of low-level crimes from prison to less expensive and more effective treatment programs.
Maryland
A pair of incremental reforms became law this session in Maryland. In May, Gov. Martin O’Malley signed SB 691, which allows individuals on parole to shorten their parole lengths as a reward for good behavior. The ACLU of Maryland championed this bill when it was before the Maryland Senate. Gov. O’Malley also signed SB 422, which will provide defendants with an attorney at bail review hearings; it will also reduce the number of people detained pretrial by increasing the number of offenses that must be and can be charged by a citation instead of arrest and detention. The bill comes in response to a recent decision by the Maryland Court of Appeals in DeWolfe v. Richmond, holding that defendants have a right to counsel in hearings where bail is determined and reviewed. The ACLU was filed a friend-of-the-court brief in the DeWolfe case and was a strong legislative supporter of the bill's reform provisions.
Massachusetts
The House and Senate have yet to come to an agreement on an omnibus criminal justice reform bill (a compromise of H3811 and S2054), which includes reforming the state’s habitual offender law and reducing sentences for some nonviolent offenders. The ACLU has pushed for the positive reforms in this bill for years and is fighting proposed bad reforms. The effects of this bill on Massachusetts’ prison population won’t be clear until the details of the bill have been settled.
Missouri
Missouri passed a pair of reforms this session. The ACLU has worked for several years to lay the groundwork for a sizeable reform that would reduce the disparity between sentences for crack and powder cocaine offenses. The law, signed in May, reduces the disparity from 1:75 for comparable offenses to 1:19, although the ACLU fought for a 1:1 ratio. Gov. Jay Nixon also signed HB 1525, which would send fewer people to prison for technical violations of probation and parole, such as a missed meeting or failed drug test.
Oklahoma
In May, Gov. Mary Fallin signed HB 3052, which may end up increasing prison popuations in the state. The bill allows prosecutors to veto judicial decisions to shorten sentences and creates a secondary system of incarceration for individuals who violate drug court regulations and conditions of probation and parole. The ACLU of Oklahoma criticized the measure for not doing enough to reduce Oklahoma’s prison population and perhaps making the problem worse.
Rhode Island
House and Senate committees recently considered SB 2253 and HB 7092, which would decriminalize possession of small amounts of marijuana. Instead of facing jail time, individuals found with less than one ounce of marijuana will be punished with alternative sanctions, such as a fine. The ACLU is working hard to pass this bill.
Washington
The ACLU is helping direct policy for the state’s newly-operational LEAD program, a first-of-its-kind that diverts individuals charged with low-level offenses into community-based services, such as drug treatment, immediately after arrest and before booking. Other stakeholders helping to coordinate the policy include law enforcement, elected officials and community members. The program will be rigorously evaluated and hopefully expanded into other states. Additionally, Washington voters will consider a ballot initiative to legalize marijuana this fall.
West Virginia
Although the Senate unanimously passed an omnibus reform bill designed to save money by reducing the prison and jail populations, the bill died in the House in March. The legislature instead opted to wait for a yet another study of the state’s criminal justice system rather than addressing its prison overcrowding problem now. The act drew criticism from the ACLU and other partners. Let’s hope they don’t kick the can down the road again next session.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.