October 21, 2016
School administrators across California increasingly rely on police officers to enforce minor disciplinary infractions.
By Victor Leung, Staff Attorney and Deputy Director of Advocacy, ACLU of Southern California, & Linnea Nelson, Education Equity Staff Attorney, ACLU of Northern California
Back in the day, a student who broke school rules or otherwise misbehaved would be reprimanded by a teacher or sent to the principal’s office. But today, school administrators are increasingly relying on law enforcement to keep students in line, and the results can be dire.
Take the case of Michael Davis, a five-year-old student with disabilities in the Stockton Unified School District. A senior police officer in the school district’s police department decided to “scare him straight” after Michael acted out in his classroom, and the situation quickly spiraled out of control. When Michael got upset and could not calm down, the officer zip-tied Michael’s hands and feet and took him to a mental health facility. Michael’s family filed a lawsuit, and the police officer was finally dismissed from the department four years later, shortly after the family settled with the district for $125,000.
This incident, and many others like it, demonstrates how police officers are ineffective substitutes for counselors or other adults trained to work with young people who need guidance more than harsh discipline. Students who are treated as criminals for commonplace misbehavior are often traumatized and humiliated.
In a newly released report, “The Right to Remain a Student,” we examined 109 school-district policies on the use of law enforcement on campuses in California and found them often conflicting and vague, giving administrators wide latitude to request police assistance. Many schools have called the police to enforce minor violations like "disruption," "disturbing the peace," vandalism, tardiness, and inappropriate use of electronic devices — hardly criminal offenses.
In the San Bernardino Unified School District, for example, campus officers arrested around 30,000 students between 2005 and 2014, mostly for minor infractions like tagging and disobeying curfews.
We also found that these policies disproportionately target students of color and young people with disabilities, unnecessarily feeding them into the criminal justice system. Black students are three times as likely as white students to face school-related arrest. Students with disabilities are three times as likely as students without disabilities to be arrested on campus.
Rather than unjustly contributing to the school-to-prison pipeline, school administrators should call the police only if there is a real and immediate physical threat to student, staff, or public safety.
In 2013, the Pasadena School District developed guidelines that clarify the role of police on its campuses. Under these new rules, school staff cannot ask police officers to address incidents that involve school discipline. This progressive step has led to a significant decrease in school-based citations and arrests in Pasadena. Still, more needs to be done to ensure that district staff and police follow the rules, and that the district publicly and accurately report the data.
Similarly, school administrators should take back control of their campuses and stop relying on police officers to handle minor discipline issues, which only serves to criminalize students and push them out of school. Instead, school staff should address these issues themselves and correct student behavior with restorative justice and other more constructive practices.
October 12, 2016
The following can be attributed to Jennifer Riley-Collins, Executive Director of the American Civil Liberties Union of Mississippi:
“We are deeply disturbed by a video that shows a Greenville High School teacher dragging an African American female student, who is disabled, by the hair across the floor. Unfortunately, we know that this is not an isolated incident, particularly for children who are African-American and disabled.
“Students with disabilities are six times as likely to be physically restrained and mistreated at school, compared to non-disabled students. Students of color with disabilities are twice as likely to be secluded or restrained.
“According to recent data compiled and released by the U.S. Department of Education, Office for Civil Rights, and the Civil Rights Data Collection (CRDC) for the 2013-2014 school year, at least 60 school districts in Mississippi use restraint and seclusion techniques on children with and without disabilities. Consequently, 1,912 incidents of restraint and/or seclusion were reported for the same period. This figure represents close to a 600-percent increase in the number of reported incidents in Mississippi since the 2009-2010 school year. The number of reported incidents are likely a direct result of our public awareness campaign "Keep Mississippi Students Safe". Two years ago, many people refused to believe or acknowledge that these hurtful practices were occurring in our state. We still feel, it is likely that many other incidents were unreported.
“The ACLU of MS and other community partners have asked the state of Mississippi for three years to pass legislation restricting the use of restraint and seclusion inside of our schools. This spring, the Mississippi Department of Education agreed with our advocacy efforts to keep all students safe by adopting Rule 38.13 Restraint and Seclusion. The rule prohibits the use of excessive force or cruel and unusual punishment regarding student management, and supports a framework for decision-making that guides the implementation of data collection and evaluation, training, and evidence-based academic and behavioral practices. Furthermore, the policy restricts the use of restraint and/or seclusion as a punitive measure or as a means of punishment, but rather only in emergency situations where there is eminent threat of danger or serious bodily injury. However, a policy without proper implementation and accountability is useless.
“We are hopeful and confident that Greenville school officials, community leaders and the community at-large will take appropriate action, but this is a larger issue across the state. Mississippi must do more to ensure protection of our children. It is incumbent on state leaders, the education community, and all of us to strategically align policy with best practices that protect the rights of all children, create a positive school climate, and achieve a level of excellence so that our students can be successful citizens. It’s past time for Mississippi to keep our students safe.”
October 12, 2016
Enforcement Destroys Families, Undermines Health
Tess Borden, ACLU and Human Rights Watch, 607-592-7201, email@example.com
Maria McFarland Sanchez-Moreno, Human Rights Watch, 917-535-2816, firstname.lastname@example.org
Alexandra Ringe, ACLU, 212-549-2582, email@example.com
WASHINGTON — The massive enforcement of laws criminalizing personal drug use and possession in the United States causes devastating harm, Human Rights Watch and the American Civil Liberties Union (ACLU) said in a joint report released today. Enforcement ruins individual and family lives, discriminates against people of color, and undermines public health. The federal and state governments should decriminalize the personal use and possession of illicit drugs.
The 196-page report, “Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States,” finds that enforcement of drug possession laws causes extensive and unjustifiable harm to individuals and communities across the country. The long-term consequences can separate families; exclude people from job opportunities, welfare assistance, public housing, and voting; and expose them to discrimination and stigma for a lifetime. While more people are arrested for simple drug possession in the U.S. than for any other crime, mainstream discussions of criminal justice reform rarely question whether drug use should be criminalized at all.
“Every 25 seconds someone is funneled into the criminal justice system, accused of nothing more than possessing drugs for personal use,” said Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the ACLU and the report’s author. “These wide-scale arrests have destroyed countless lives while doing nothing to help people who struggle with dependence.”
The organizations interviewed 149 people prosecuted for using drugs in Louisiana, Texas, Florida, and New York — 64 of whom were in custody — and 217 other individuals, including family members of those prosecuted, current and former government officials, defense attorneys, service providers, and activists. The organizations also did extensive new analysis of data obtained from Texas, Florida, New York, and the FBI.
Among those interviewed was “Neal,” whose name, like that of some others, was changed to protect his privacy. “Neal” has a rare autoimmune disease and is serving five years in a Louisiana prison for possessing less than 0.2 grams of crack cocaine. He said he cried the day he pled guilty because he knew he might not survive his sentence.
Another is Corey, serving 17 years in Louisiana for possessing half an ounce of marijuana. His 4-year-old daughter Charlee, who has never seen him outside prison, thinks she visits him at work. A third is “Nicole,” who after being held pretrial for months in a Houston jail, separated from her three young children, finally pled guilty to her first felony. The conviction, for possessing heroin residue in an empty baggie, meant she would lose her student financial aid, job opportunities, and the food stamps she had relied on to feed her children.
“Do they realize what they are doing to people’s lives in here?” said “Matthew,” from the Hood County jail in Texas. “Because of my drug addiction, they just keep punishing me… They never offered me no help. I have been to prison five times, and it’s destroyed me.”
“Matthew” was sentenced to 15 years for possession of an amount of methamphetamines so small the laboratory could not even weigh it. The lab result simply read “trace.” His prior convictions were mostly out-of-state and related to his drug dependence.
“While families, friends, and neighbors understandably want government to take action to prevent the potential harm caused by drug use, criminalization is not the answer,” Borden said. “Locking people up for using drugs causes tremendous harm, while doing nothing to help those who need and want treatment.”
Four decades after President Richard Nixon declared a “war on drugs,” rates of use have not significantly declined. People who need treatment often find it is unavailable, and criminalization tends to drive people who use drugs underground, making it less likely that they will get care and more likely that they will engage in unsafe practices that make them vulnerable to disease and overdoses.
All states and the federal government criminalize possession of illicit drugs for personal use. The majority of states make possession of small amounts of commonly used drugs such as cocaine, heroin, and methamphetamines a felony. Each year, the organizations found, state law enforcement agencies make more than 1.25 million drug possession arrests — one of every nine arrests nationwide.
Despite officials’ claims that drug laws are primarily used to combat drug distribution, four times as many people are arrested for possessing drugs as for selling them. Half of those arrested for possession are charged with nothing more serious than possessing marijuana for personal use. In 2015, according to data analyzed by the groups, police made 14 percent more arrests for simple marijuana possession than for all violent crimes combined.
Black people use drugs at similar or even lower rates than white people, yet data the groups analyzed shows that Black adults are more than two-and-a-half times more likely to be arrested for drug possession, and nearly four times more likely to be arrested for simple marijuana possession. In many states, the racial disparities were even higher – 6 to 1 in Montana, Iowa, and Vermont. In Manhattan, Black people are nearly 11 times as likely as white people to be arrested for drug possession.
This racially disparate enforcement amounts to racial discrimination under international human rights law, said Human Rights Watch and the ACLU. Because the FBI and US Census Bureau do not collect race data for Latinos, it was impossible to determine disparities for that population, the groups found.
On any given day, at least 137,000 men and women are behind bars for drug possession. Tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees.
People interviewed for the report were prosecuted for small quantities of drugs — sometimes fractions of a gram — that were clearly for personal use. The report’s analysis of new data suggests that in 2015, nearly 16,000 people in Texas were sentenced to jail or prison for possession of under one gram of substances containing commonly used drugs — enough for only a handful of doses in many cases.
State legislatures and Congress should decriminalize personal use and possession of all drugs, Human Rights Watch and the ACLU said. Federal and state governments should invest resources in programs to decrease the risks associated with drug use and provide and support voluntary treatment options for people struggling with drug dependence, along with other approaches.
Until full decriminalization is achieved, officials at all levels of government should minimize and mitigate the harmful consequences of current laws and practices. The groups provided detailed recommendations to state legislatures, police, prosecutors, and other state and local government entities, as well as the federal government.
“Criminalizing personal drug use is a colossal waste of lives and resources,” Borden said. “If governments are serious about addressing problematic drug use, they need to end the current revolving door of drug possession arrests, and focus on effective health strategies instead.”
For more Human Rights Watch reporting on the United States, please visit:
For more Human Rights Watch reporting on criminal justice, please visit:
For more ACLU reporting on criminal justice, please visit:
October 07, 2016
October 06, 2016
By Harold Jordan, Senior Policy Advocate for ACLU of Pennsylvania
Interactions between young people and police don’t occur just on the streets of America — they’re happening in our nation’s K-12 schools, too. Increasingly police have become “embedded” in schools, in many cases working there full-time. Many are considered school staff and have daily authority over students, even in situations that have traditionally been seen as everyday disciplinary matters.
Little is known about the day-to-day practices of school-based police and about the rules under which they operate. Nobody — not even the federal government — knows how many sworn law enforcement officers (and of what type) are assigned to schools. What we do know should give us pause for concern.
According to the U.S. Department of Education, 1.6 million children go to public schools that have police officers but no counselors. Some 24 percent of public elementary schools and 42 percent of public high schools have sworn police officers. Three of the five largest school districts in the country hire more security officers than counselors.
Black students are 2.3 times as likely to receive a referral to law enforcement or be subject to a school-related arrest as white students. And Black and Latino students are more likely to go to schools that have resident police no matter the level of crime in the surrounding neighborhood or misbehavior at the school.
Whether they are called school police officers, school resource officers, or school safety agents; carry the same weapons as a regular cop; serve in uniform; are friendly or aggressive; or are unionized; these officers have the power to arrest, detain, interrogate, and issue criminal citations to students.
It is time to rethink the role police play in our schools.
The boundaries between police and educators have become less clear — who decides what when interacting with students — and the degree of collaboration between police and educators has increased in the past two decades. Often when controversies arise, police say, “Don’t blame us. We’re here because the school asked us to be here.” Educators say, “We cannot control what police do in our school — that’s a law enforcement matter.”
Embedding such officers has real consequences for students and for the culture of schools. One popular (and growing) type of school policing, the School Resource Officer (SRO) program, blurs those lines and accountability even more. SROs are described as mentors and classroom presenters as well as cops, a so-called “triad” model of school policing. In fact, this is a big selling point of the program. School policing is presented as a form of community policing — without regard to the costs.
The activities of school-based police officers (especially SROs) are typically less regulated by formal policies than those of officers that are called to a school from the outside. Can a school-based officer be permitted to question a student without reading him or her rights? What about when an SRO is “mentoring”? What about seeing a student’s records without the permission of the student or parent? When must an SRO get a search warrant?
What can a student or parent can do when things go wrong, such as when a student is sexually harassed, roughed up, or verbally provoked by school security? Students and their parents find it difficult to exercise the most basic of rights, that is to the extent to which they have any or know what they are.
In one Pennsylvania district, school police review write-ups of students for a broad range of minor incidents, including ones in which police were not involved or called. Then they file charges against students in adult court — for things like “disorderly conduct.” In many cases, an administrator hands police the incident write-up and says, “Got anything you can charge this kid with.” From what we’ve seen, this type of discipline affects primarily Black students. These students have a record, which in Pennsylvania is not automatically expunged, for situations in which they weren’t even arrested.
Where police are considered full-time school staff, practices (and policies) vary widely, if there are formal policies at all. Few Pennsylvania districts have adequate formal policies that address these basic rights. In the past month, the federal government and a national coalition of parent and student advocates, however, have weighed in on how best to reform school policing. They take different approaches.
On September 8, the Obama Administration released a set of “rubrics” on the appropriate use of SROs in schools under which schools are encouraged to negotiate a memorandum of understanding with law enforcement and to make sure officers are trained. One of its stated goals is to reduce police involvement in routine and minor disciplinary matters. But student advocates, including the ACLU, have found that this goal is not achievable when cops are stationed in schools on a regular basis.
Two weeks later, the national Dignity in Schools Campaign released its policy recommendations, “Counselors Not Cops: Ending the Regular Presence of Law Enforcement in Schools.” DSC’s guidelines move the starting line so as to assume that police will not be embedded in schools on a regular or full-time basis — that law enforcement is not a part of the culture of schools. On those rare occasions when it is appropriate for police to enter a school building they should be strictly regulated. Instead, the focus is on creating safe schools by supporting student-centered resources, staff, and programs instead of funding law enforcement officers who claim to act as counselors.
This strikes me as the right balance — prioritizing counselors over cops, conversation over control.
September 30, 2016
The justices found that it’s reasonable for Black men to run from police because of the indignity of stop and frisk.
By Jeffery Robinson, Deputy Legal Director and Director of the ACLU Center for Justice
In 2004, University of Virginia football player Marquis Weeks returned a kickoff 100 yards for a touchdown. After the game he described how he did it: "That was just instinct," Weeks said with a laugh. "Kind of like running from the cops, I guess you could say."
It’s funny until it isn’t. The “instinct” exists for a reason. Black and brown people have been running from people with badges for generations, going all the way back to the days of the slave catchers, who were predecessors of modern-day police.
Despite his obvious speed, the Massachusetts Supreme Judicial Court caught up with Mr. Weeks this month. The court found that the facts of the case, including that the young Black male suspect tried to avoid the police, did not justify a stop and search of the young man. The court, referring to an ACLU report on “Field Interrogation Observations (FIO)” used by the Boston Police, wrote:
“Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.”
Whether you call it FIO or stop and frisk does not matter because they are the same thing. In plain English, the court said that innocent Black people may be reasonable in thinking that the best thing to do when approached by police is to run. The facts about stop and frisk in Boston confirm what Black and brown people have known for years.
In between 2007-2010, people of color accounted for about 75 percent of those stopped by Boston police, 63 percent of them Black in a city where less than 25 percent of the population was Black. In more than 200,000 FOIs, Boston police seized weapons, drugs, or other contraband only 2.5 percent of the time. These disparities aren’t exclusive to Boston, far from it. The ACLU found similar records of police discrimination in New York City, Chicago, Philadelphia, and Newark.
Reducing crime will never be accomplished by stopping and harassing innocent people in a racially disparate fashion, and those who suggest FIOs or stop and frisk as a crime solution are advocating policies that we know will fail — they have before and they will every time they are used. What will be accomplished if this practice continues unchecked is that innocent people of color will continue to learn that all too often the police are not there to serve and protect them. And sometimes the innocent may feel a strong instinct to run from the police to avoid the indignity and interference of being stopped for no justifiable reason.
The truth about our criminal justice system is harsh. To accept the truth about the criminal justice system will require us to challenge assumptions about the fairness of the system that we have comfortably made for decades. Our challenge is to deal with a system that has evolved to a point where racially based police harassment of innocent people is offered as a legitimate criminal justice solution. Race-based policing is a cancer on our justice system. And like any other disease, we must understand the true nature of the disease to cure it.
William Burroughs wrote his book “Naked Lunch” about the horrors of drug addiction. He said the title, suggested by Jack Kerouac, referred to “the frozen moment when everyone sees what is on the end of every fork.” The Massachusetts Supreme Judicial Court had a “Naked Lunch” moment regarding the true nature of racially biased policing in Massachusetts: They did not like what they saw on the end of the fork, and neither should the rest of us.
September 22, 2016
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, Technology Project
The shooting death of Keith Lamont Scott by police in Charlotte, NC Tuesday is a case study in why it’s important for police departments to have good policies surrounding body cameras—in particular around the release of video to the public.
We have called for most video recorded by police body cameras to be kept from the public because of the serious privacy issues that the devices raise, and the fact that the vast majority of video that is recorded is of no public importance. However, where there is a use of force or a complaint against an officer, we think it’s vital that video be available to the public. The public’s interest in monitoring how its police officers are using force is overwhelming. That is doubly so in cases of deadly force—and why we are calling for Charlotte police to immediately release what they have in this incident. As my colleague Gilles Bissonnette of the ACLU of New Hampshire has put it, a video of police use of force
directly illuminates how police operate, helps identify potential misconduct by individual officers and poor policies or training by agencies, and allows the public to hold civic leaders accountable for problems. On multiple occasions, videos of police shootings have not only shed light on how and when police elect to use force, but also on police misconduct.
Protests and/or unrest after a shooting happens when a community suspects that a) an injustice has been done and b) lacks confidence that justice will be achieved by the institutions that are supposed to provide it. Both of those suspicions are all-too-often well-founded. A police chief can get up and assert that a shooting victim “exited his vehicle armed with a handgun as the officers continued to yell at him to drop it,” but in this day and age everyone has heard such stories before only to have them revealed later to be complete lies. A police chief may have nothing to go on except the word of his officers, and be compelled to support them—but unfortunately we have all learned we cannot trust that word. And, even where a police shooting is legal, that is not the same thing as a police shooting being necessary, due to the unfortunate state of the law in this area.
Release of the video does at least two things:
Police today often complain that a pall of suspicion has fallen upon their whole profession. If that’s true, it’s not because of a few “bad apple” police officers. I think everybody understands that when you’re dealing with any large group of people (in the case of sworn law enforcement officers in the United States, over 900,000) there will be some bad apples. If law enforcement dealt with them fairly and decisively, those individuals would not taint the entire profession. But all too often it looks like “the fix is in”—that the problems are cultural or systemic, that the police get special treatment with regards to justice, that the police cannot police themselves, and that nobody else is doing so.
It is within this frame that people are likely to view police refusal to release video of a critical incident. Are police and prosecutors playing it straight, ready to let the chips fall where they may when it comes to investigating a potentially criminal police action and bringing justice? Or are they circling the wagons to protect one of their own? When Americans suspect they’re seeing the latter, that’s when they’re likely to hit the streets.
Unlike in Charlotte, the police chief in Tulsa at least made a start toward conveying the former stance this week by speedily releasing the video he had of the shooting of Terence Crutcher even though it did not look great for his department. Police often claim that they can’t release video due to an “active investigation,” but as I have argued elsewhere, the purposes behind that exception to transparency are rarely served in the case of police shooting video for more than a short period of time.
As the ACLU of North Carolina points out, an unfortunate new North Carolina law will actually block police from releasing body camera video without a judge’s order—but that law doesn’t take effect until October 1. In the meantime, the Charlotte police should release whatever video and audio recordings they have of this incident.
Obviously release of video is not a magic solution. A particular incident is often just the spark that ignites a dry underbrush of grievances that has grown up for many years. Some communities have many reasons to start protesting—grievances that run deep and involve many problems besides shootings. At the same time, transparency is a big part of the problem, and in today’s world release of video is a crucial part of that transparency.
September 21, 2016
Legislative Efforts Aim to Introduce Transparency and Accountability, and Maximize Community Influence over Decisions Regarding the Purchase and Use of Police Surveillance Tools
Local officials in Hattiesburg, Mississippi announced today that they are launching legislative efforts to bring transparency to the acquisition and use of local police surveillance technologies for the first time. The measures, which are influenced by a set of guiding principles released by a diverse coalition of 17 national organizations today, include mandating city council approval and a public hearing process that maximizes community input into surveillance technology decisions.
“The use of surveillance by local police has been spreading unchecked across the country without regard for the communities that they purport to serve,” said Jennifer Riley-Collins, executive director of the American Civil Liberties Union of Mississippi. “Today, the city of Hattiesburg is taking action to address the disparate impact, financial burden, and threats to civil rights and liberties posed by invasive surveillance technologies. We applaud Councilman Deborah Delgado for taking the lead on this initiative, and it is our hope that the message will spread to other communities throughout the state that secret surveillance is unacceptable.”
Hattiesburg Ward 2 Councilwoman Deborah D. Delgado will make the proposal for local surveillance technology at the October 4 council meeting. The bill empowers the local community to have meaningful input into if and how surveillance technologies are funded, acquired, and used by local law enforcement. A vote on the bill is expected at the following city council meeting.
“Governments have used surveillance throughout history to suppress free speech, intimidate leaders of political movements, and track individuals and communities. Such technologies are disproportionately used to target communities of color and low income communities,” said Ms. Delgado. “This bill gives voice to the public to empower them to have a stronger role in determining if and how surveillance technologies are used in their communities. I look forward to the full city council approving the measure on behalf of the citizens of Hattiesburg.”
“The Forrest County NAACP Branch is happy to be a part of this campaign, and we urge the Hattiesburg City Council to pass the measure,” said Clarence Magee, President of the Forrest County NAACP Branch. “We know how common it is for law enforcement to secretly spy on the public. It is important that the community has a seat at the policy table to ensure that our civil rights are not being violated.”
The first wave of cities announcing legislative efforts today are:
Hattiesburg, Mississippi; Madison, Wisconsin; Miami Beach, Florida; Milwaukee, Wisconsin; Muskegon, Michigan; New York, New York; Palo Alto, California; Pensacola, Florida; Richmond, Virginia; Seattle, Washington; and Washington, D.C.
In the rare cases where local police data has been available to the public — in cities like Baltimore, Maryland; Oakland, California; and Lansing, Michigan — the data has shown a disproportionate use of surveillance technologies in communities of color and low-income areas. The partner organizations have created a set of guiding principles to assist community groups in changing surveillance practices. The principles aim to promote transparency, democratic decision making, and community empowerment with respect to if and how surveillance technologies are funded, acquired, and used.
The guiding principles behind this surge of legislative action, which is expected to be replicated in an increasing number of cities across the nation, are as follows:
This locally-led, multi-city effort was developed in partnership with 17 highly-diverse national partner organizations:
The American Civil Liberties Union (ACLU); Bill of Rights Defense Committee/Defending Dissent Foundation; Campaign Zero; Center for Democracy & Technology; Center for Popular Democracy; Council on American–Islamic Relations (CAIR); Crypto Harlem; Demand Progress; Electronic Frontier Foundation; Fight for the Future; The Leadership Conference on Civil and Human Rights; Million Hoodies Movement for Justice; National Association for the Advancement of Colored People (NAACP); National Network of Arab American Communities; Restore the Fourth; South Asian Americans Leading Together (SAALT); and Tenth Amendment Center.
Additional resources and information can be found here: www.communityCTRL.com
September 20, 2016
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, Technology Project
I have a friend who once, being recently divorced, lived by himself in a house in a mid-sized western city. One night a terrible crime took place: the house across the street from his was broken into, and the elderly woman who lived there was raped. In the course of the investigation, as a single man living near the woman, he came to the attention of the police. The traumatized victim told the police she was pretty sure he was not the perpetrator, but the police approached my friend and asked him to submit a DNA sample to eliminate him as a suspect. They told him they did not really think he was the perpetrator, but wanted to definatively eliminate him out of investigatory thoroughness and in order to reassure his neighbor.
How would you respond to such a request?
On Tuesday I wrote about how some local U.S. police departments are going wild with the collection of DNA, swabbing juveniles and others not suspected of any crime, let alone convicted of a serious one. These samples are then being stored in local police DNA “shadow databases.” As ProPublica reported, many of the samples being added to these databases are “exculpatory” samples used to exclude people as suspects.
As a privacy advocate, I really would not want to share my DNA with the police. They would likely retain it indefinitely, and possibly share it with other law enforcement agencies. I would henceforth be vulnerable to potential misuses of my DNA (just to pluck one potential scenario: to identify me should I mail an anonymous tip or complaint to a government agency). And, I would be much more likely to be mistakenly identified as a suspect, either through human error or just because every time the police run a criminal’s DNA profile I will now be part of the genetic “lineup.” A California man, for example, was wrongly charged with capital murder after his DNA was matched with samples taken at a crime scene (contaminated by the same paramedics who had treated him earlier in the day). That wouldn’t have happened if his DNA wasn’t in the database.
On the other hand, that would be a tough request to refuse. The victim was quite sure my friend was not her attacker—but did seem to have some flicker of doubt. By refusing to submit a DNA sample, my friend may have become (however unjustly) much more suspicious to the police—and to his neighbor the victim, and probably his other neighbors as well, as word spread, and potentially the wider geographical and professional communities in which he lived. At least, that was something he worried about. Most likely some people would understand his decision to stand on principle, but others would not. The increased suspicion surrounding him might also raise the risk that coincidental circumstances or false memories on the part of others would start to accumulate as evidence of his involvement in the crime. Compared to such real and potentially severe social costs, how do we weigh concerns about privacy and the use or abuse of his DNA at some later date?
My friend turned over his DNA to the department. He was excluded as a suspect, and that was the end of it for him, though his DNA records no doubt continue to reside in the hands of law enforcement.
Thinking about how I would handle such a situation, it occurred to me that there might be a middle ground here: provide a DNA sample on the condition that the police promise not to retain that sample, or use it for any other purposes. Of course, to ensure that such a promise were not an empty one, one would want it in writing—and, to have some teeth, such as monetary damages for violation. The ACLU of Massachusetts once had to file suit to seek enforcement of a promise that exculpatory DNA would be expunged.
Perhaps I might ask the police to sign a contract along the lines of the following:
Contract for Provision of Exculpatory DNA to Police Department
This is a contract between ___________ (hereafter, “Subject”) and _________________ (hereafter “Department”).
Subject understands the Department’s desire to definitively eliminate Subject as a suspect in a crime through the acquisition of a DNA sample, and wishes to cooperate with the police in that aim, but does not want Subject’s DNA retained in police or other government databases for any longer than required for this purpose.
Subject hereby agrees to voluntarily provide a DNA sample to the Department. The Department agrees that, provided and upon establishment that Subject’s DNA does not match that of the suspect in the crime being investigated:
In the event that Subject’s DNA samples or genetic data collected in this investigation are used for any other purpose, or are subsequently found to reside in any Department database or storage system, or, having been shared or provided by the Department, within the databases or storage systems of any other government agency, the Department will pay Subject the sum of five (5) million dollars.
Even if a police department refuses to sign such an agreement, the mere act of offering it shows to the police and the community that a person is willing to cooperate as long as his or her genetic privacy is well-protected.
Of course, far better would be to enact privacy laws with good protections in such situations, but where those don’t exist this might be a potential solution for those who find themselves wanting to help the police while protecting privacy, or feeling any kind of pressure to provide a sample.
September 15, 2016
WALNUT GROVE, Miss. — The Mississippi Department of Corrections closed Walnut Grove Correctional Facility today, a prison operated under contract with the state by the Management and Training Corporation (MTC), a private, for-profit company.
“Less than a month after the Department of Justice announced the end of private prisons in the federal system, the industry is taking another well-deserved hit with the loss of Walnut Grove,” said Gabriel Eber, senior staff attorney with the ACLU’s National Prison Project. “This prison’s operators sacrificed their prisoners’ safety, cutting back on staff and safety measures so severely that violence was rampant. We will remember Walnut Grove as an object lesson in the horrors that result when a for-profit company has total control over human lives without oversight or accountability.”
Since 2003, Walnut Grove has been operated by private prison companies — first by Cornell Corrections, which was later bought by the GEO Group, then MTC. The ACLU, the Southern Poverty Law Center, and McDuff & Byrd since 2010 have been litigating against the state of Mississippi for improved conditions at Walnut Grove. They have a similar lawsuit over conditions at the East Mississippi Correctional Facility, which, like Walnut Grove, was formerly run by the GEO Group and is now operated by MTC.
“Good riddance to Walnut Grove, a cesspool sponsored by Mississippians’ tax dollars,” said Jody Owens, managing attorney with the Southern Poverty Law Center. “Private prison contracts aren’t just bad investments; they are licenses for neglect and abuse. It is long past time for Gov. Bryant to take taxpayers’ money out of private prisons and put it into rehabilitative programs that prepare incarcerated persons for reentry into society.”
In June 2015, U.S. District Judge Carlton Reeves ruled in the Walnut Grove lawsuit that the Mississippi Department of Corrections was violating the Eighth Amendment by failing to protect prisoners from violence by “gangs run amok.” At that time, the prison held adults; it had been a youth facility until 2012. The removal of all juveniles from the prison had been ordered by Judge Reeves, who called Walnut Grove “a picture of such horror as should be unrealized anywhere in the civilized world.”
For more information about C.B. et al. v. Walnut Grove Correctional Authority et al.:
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The ACLU’s National Prison Project is dedicated to ensuring that our nation’s prisons, jails, and other places of detention comply with the Constitution, domestic law, and international human rights principles, and to ending the policies that have given the United States the highest incarceration rate in the world. For more information, see https://www.aclu.org/prisoners-rights.