By April Rodriguez, ACLU Paralegal

During the COVID-19 pandemic, jails and prisons have become infection hot spots due to notoriously unhygienic conditions and the inability to socially distance. Overcrowded facilities — a symptom of our longstanding national addiction to mass incarceration — are creating an unconstitutional health crisis. Advocates are calling upon judges across the country to release medically vulnerable people from prison and jails. But despite acknowledgment of the urgency from Attorney General William Barr, state officials, and judges, very little has actually been done to release people from prisons in particular.
 
While advocates have succeeded in securing the release of some people, particularly from jails, many judges have dismissed release as a viable option for people accused or convicted of violent charges. “Many of [the incarcerated people] are violent offenders,” wrote District Judge Robert Dow Jr. in a recent opinion, in a case challenging dangerous conditions in Illinois Department of Corrections’ facilities. “Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare … The question is not simply what is best for the inmates — the public has vital interests at stake, too.”
 
The message behind this and similar rulings is that the rights and safety of incarcerated people are secondary to the public’s comfort and safety during a pandemic, particularly when it comes to incarcerated people accused or convicted of violent charges. Even if the conditions inside prisons and jails indisputably endanger the lives of those incarcerated, these rulings justify their continued incarceration by alleging their release is too dangerous for the community. While concerns for public safety are understandable, in this instance they are unfounded. This is a cowardly and dangerous position, which ultimately puts many more lives at risk.
 
First, the problems courts are imagining with mass release just don’t exist when you look at the data. The people we’re asking judges to release are either elderly or have serious medical conditions. A subgroup of these people are in for “violent” offenses, which can range from murder to more benign actions like failing a urine test repeatedly. Because these people have been incarcerated for such a long time, much of their sentences have already been served. Further, data shows that most people age out of “violent crime” and older people are least likely to re-offend, making draconian sentences unnecessary and counterproductive, even in non-pandemic times.  
 
For people released pretrial on felony charges, less than two percent are ever re-arrested for a violent felony while awaiting trial. There is simply no statistically significant evidence that the medically vulnerable jail and prison population poses a safety or flight risk. The risk of incarcerated people catching COVID-19 and getting severely ill or dying, on the other hand, is quite high and has been well documented.
 
Second, it’s crucial to remember that people accused or convicted of violent crimes are just that: people. They have the same inalienable rights that all human beings are entitled to. Advocates should not have to respond with “the risks are not that bad” arguments. The fearmongering and repeated cries for law and order are the same rhetoric that created the mass incarceration crisis in the first place. If we are to truly address it, and prevent senseless, preventable death from this pandemic, we must go beyond advocating for nonviolent, low-level offenders.
 
Unfortunately, this necessary work is undermined by the fact that many criminal justice reform efforts focus on reducing punishments for low-level crimes, and avoid addressing more serious charges. For example, when picking plaintiffs to represent in a class action, impact litigators — including those at the ACLU — often avoid choosing clients with violent charges or convictions so that conservative judges will be more comfortable granting relief.  
 
When we design our arguments to appeal to the “tough on crime” narrative, we reinforce the idea that people accused or convicted of violent crimes are somehow less deserving of mercy. We risk building reforms around an exclusionary narrative that may hurt the movement in the long run and make it more difficult to go back later and seek justice for those we left behind. Sometimes, an incremental approach is necessary to get judges or the public more comfortable with alternatives to imprisonment. But until we stop relying on caging people as a response to violence, the U.S. will continue to have the highest incarceration rate in the world.
 
We need to challenge the “law and order” rhetoric that drove mass incarceration in the first place. This starts by unpacking how we define concepts like “danger,” “criminal,” and “violence.” Many studies have shown that Black men receive harsher charges, especially when the victim is white. This means that what society chooses to prosecute as violent is political and heavily influenced by race. Standard definitions of what and who we consider dangerous are not natural or self-evident; they are made.
 
For medically vulnerable people in jails and prisons, the courts’ concept of danger is irreparably undermining both health and safety by putting them, prison staff, and the general public at risk. That’s why the ACLU is asking the courts to release those most in harms’ way from infection. Judges do not have to overturn someone’s sentence or free them without obligations prior to trial. For people serving sentences, judges can let them continue to serve their time in home confinement or another appropriate setting until the pandemic has passed. For people awaiting trial, judges can order reporting requirements or more restrictive measures like home confinement.
 
In either case, underlying allegations or offenses should not guide courts’ decisions on how to protect the public. The burden has to be on the government to show with compelling evidence that someone is a credible threat of flight or violence, so much so that this threat outweighs the risk of severe illness or death that comes with continued incarceration.
 
Fortunately, some courts have bucked the trend and ordered the government to prioritize medically vulnerable people for review for home confinement, including those whose primary or prior offense was classified as violent. But this is not enough. More judges need to reject the unsubstantiated and racially charged cries for harsh punishment. Further, communities must demand that other actors — law enforcement, governors, and prosecutors — expand their vision beyond the “low hanging fruit” of reforms that prioritize the rights of a few, while leaving many others behind. Genuine reform will require us all to rethink how we address serious crimes and question whether incarceration is the best solution, rather than a more holistic economic and political approach.
 
 

By LaLa B Holston-Zannell, ACLU Trans Justice Campaign Manager

Sex workers aren’t always a part of the conversation about police brutality, but they should be. Police regularly target, harass, and assault sex workers or people they think are sex workers, such as trans women of color. The police usually get away with the abuse because sex workers fear being arrested if they report. If we lived in a world that didn’t criminalize sex work, sex workers could better protect themselves and seek justice when they are harmed. 

Protecting sex workers from police violence is just one of the reasons we need to decriminalize sex work. It would also help sex workers access health care, lower the risk of violence from clients, reduce mass incarceration, and advance equality in the LGBTQ community, especially for trans women of color, who are often profiled and harassed whether or not we are actually sex workers. In 2020 the call for decriminalization has made progress, but there are still widespread misconceptions about sex work and sex workers that are holding us back. Some even think that decriminalization would harm sex workers. That isn’t true. 

Here are five reasons to decriminalize sex work that would protect sex workers, help hold police accountable, and ensure equality for all members of society, including those who choose to make a living based by self-governing their own bodies.

Decriminalization would reduce police violence against sex workers

Police abuse against sex workers is common, but police rarely face consequences for it. That’s partly because sex workers fear being arrested if they come forward to report abuse. Police also take advantage of criminalization by extorting sex workers or coercing them into sexual acts, threatening arrest if they don’t comply. Criminalizing sex work only helps police abuse their power, and get away with it. 

If sex work were decriminalized, sex workers would no longer fear arrest if they seek justice, and police would lose their power to use that fear in order to abuse people.

Decriminalization would make sex workers less vulnerable to violence from clients

Like the police, sex workers’ clients can also take advantage of a criminalized environment where sex workers have to risk their own safety to avoid arrest. Clients know they can rob, assault, or even murder a sex worker — and get away with it — because the sex worker does not have access to the same protections from the law. 

Sex workers became even more vulnerable to abuse from clients after the passage of SESTA/FOSTA in 2018. The ACLU opposed this law for violating sex workers’ rights and restricting freedom of speech on the internet. SESTA/FOSTA banned many online platforms for sex workers, including client screening services like Redbook, which allowed sex workers to share information about abusive and dangerous customers and build communities to protect themselves. The law also pushed more sex workers offline and into the streets, where they have to work in isolated areas to avoid arrest, and deal with clients without background checks.

Decriminalization would allow sex workers to protect their own health

Sex workers sometimes go without medical care out of fear of arrest or poor treatment by medical staff if it comes out that they are a sex worker. And because the law doesn’t treat sex work like a real job, sex workers do not have access to employer-based health insurance, which means that many cannot afford care. 

Criminal law enforcement of sex work comes with unjust police practices, like the use of condoms as evidence of intent to do sex work. As a result, some sex workers and people who are profiled as sex workers may opt not to carry condoms due to the risk of arrest. This puts them at risk of contracting HIV and other sexually transmitted diseases.

Decriminalization would advance equality for the LGBTQ community

Sex work criminalization laws impact the whole LGBTQ community because members of the community — particularly LGBTQ people of color, LGBTQ immigrants, and transgender people — are more likely to be sex workers. The passage of anti-sex work laws like SESTA/FOSTA harms the community by dramatically decreasing incomes, which further marginalizes members of the trans community, people of color, or those with low incomes to begin with. 

Trans women of color feel the impact of criminalization the most, whether or not we are sex workers. Police profile us and often press prostitution charges based on clothing or condoms found in a purse. We can’t go about our lives without fear of being targeted by police. 

If sex work is decriminalized, police would have one less tool to harass and marginalize trans women of color. Sex workers, and especially trans women, would be more able to govern their own bodies and livelihoods. Decriminalizing sex work would promote the message that Black trans lives matter.

Decriminalization would reduce mass incarceration and racial disparities in the criminal justice system

The criminalization of sex work feeds the mass incarceration system by putting more people in jail unnecessarily. Those incarcerated tend to be trans and/or people of color, two groups that are already disproportionately incarcerated. One in six trans people have been incarcerated, and one in two trans people of color. 

Incarceration is violent and destructive for everyone, and even more so for trans people. While incarcerated, trans people are often aggressively misgendered, denied health care, punished for expressing their gender identity, and targeted for sexual violence. 

An arrest on charges of sex work can result in life-changing consequences that last long past the end of a sentence. A criminal record can prevent you from accessing an accurate ID, jobs, housing, health care, and other services. It can also lead to deportation for immigrants. Members of the trans community and sex workers already face discrimination in many of these systems. A criminal record further marginalizes and stigmatizes being trans or engaging in sex work. 

Decriminalizing sex work would be a major step toward decarceration and reducing racial disparities in the criminal justice system. It would keep sex workers from being harmed by the collateral consequences of a criminal record. It would help prevent the marginalization of sex workers and destigmatize sex work.

How to decriminalize sex work

The ACLU has supported decriminalizing sex work since 1973, and it became an official board policy in 1975. Since then, affiliates across the country have advocated for decriminalization at the state level by striking down laws restricting sex workers’ rights, such as condoms-as-evidence laws. 

The fight continues in 2020, with active decriminalization bills in several state legislatures and advocates pushing elected officials like district attorneys to take pledges to not prosecute sex work. At the federal level, Congress has introduced the SAFE SEX Worker Act, which would study the effects of SESTA/FOSTA. There is a chance for progress if we educate each other on sex workers’ rights and pressure elected officials to decriminalize. 

Sex workers deserve the same legal protections as any other people. They should be able to maintain their livelihood without fear of violence or arrest, and with access to health care to protect themselves. We can bring sex workers out of the dangerous margins and into the light where people are protected — not targeted — by the law. 

By Minouche Kandel, ACLU Senior Staff Attorney

I never expected to get an abortion. But I knew I could tell my mother. I grew up in New York and abortion was still illegal when I was born. One of my earliest memories is being in the car with my mother when she turned to me and told me that if I ever needed an abortion, I should let her know, because she “knew a lot of doctors.” My mother survived the Holocaust by hiding in a Catholic boarding school in the South of France. Her parents were active in the Jewish French resistance, and my grandmother helped my grandfather escape from Beaune-la-Rolande, a French-run Nazi transit camp which fed Jews to Auschwitz. My mother knew a thing or two about defying unjust laws. 
 
Any day now, the U.S. Supreme Court is due to hand down its decision on an unjust law in Louisiana. The Court’s decision in June Medical v. Russo could drastically alter the ability of people in the United States to access abortion. June Medical involves a law in Louisiana that requires doctors at abortion clinics to have admitting privileges at a local hospital. This is so even though abortion is one of the safest medical procedures and admitting privileges for abortion providers have no correlation to women’s safety. If left in place, Louisiana will be left with one doctor in the entire state permitted to perform abortions. One doctor to serve the 1 million women of reproductive age in Louisiana. The politicians in Louisiana justify this law as “protecting women’s health,” even while Louisiana has the highest maternal death rate in the country. The politicians also ignore that autonomy is intrinsic to health. Women cannot be healthy if we cannot control our destiny. And the Supreme Court does not need to overturn Roe v. Wade to make abortion an impossibility for millions of women. Already, abortion access is dying the death of a thousand cuts. As of 2017, 89 percent of counties in the U.S. lacked an abortion provider, and 38 percent of women of reproductive age lived in a county without a clinic.
 
If I had not been able to control my reproductive life, I do not think I would have been able to craft my resulting career. When I unexpectedly became pregnant in my twenties, I was just starting out in my legal career, and not ready personally or professionally to be a parent. When I was more settled, I did have two wonderful children. I dedicated my professional life to fighting gender-based violence. I worked for more than 20 years as a legal aid lawyer representing low-income domestic violence survivors (some of whom were prevented by their partners from getting abortions), and then joined the local government in my city to improve policies on intimate partner violence and human trafficking. And now I get to fight for reproductive rights at the mothership — the ACLU of Southern California. 
 
Even though I had my abortion over 25 years ago, and I have never hidden it from friends and family, this past year is the first time that I have spoken publicly about it. I feel obligated to normalize this experience — to add my story to the multitude of others that show how many people have exercised their right to have an abortion, and how our lives were saved by this ability. I am privileged to be able to share my story with support from my personal and work families, and I recognize that not all people enjoy this option. I feel impelled to speak out since I can, particularly since so many others cannot. One in four women in the United States will get an abortion in their lifetime, but many don’t feel they can talk about it.
 
Access to abortion enables us to control our destiny, to be truly free. I was privileged from a young age to know that I would always be able to control that destiny — because my parents knew doctors; because I had a job that gave me health insurance; because I lived in a state that protected my rights. But it shouldn’t matter where you work, what your ZIP code is, or whom your parents know, to be free. Let’s hope the Supreme Court doesn’t leave freedom to the states.