Federal Judges are Failing Incarcerated People During the Pandemic
I am tired of members of my profession dismissing my clients’ humanity. Sadly, it happens a lot:
“Your clients are probably lying to you, which is unsurprising,” reads an email from a representative of the Texas State government.
“People get better medical care in jail,” claim people who have never been incarcerated a day in their lives as reason to keep people locked up during this pandemic.
“We can’t trust inmates to follow the law, so how could we trust them to quarantine from others if they were released?” asks a judge who swore an oath to protect the fundamental rights of these “inmates.”
It should not be news to anyone that the scales of justice are tipped in favor of the powerful, but it’s never been starker to me than now. I’ve spent the last six months on the frontlines of the legal battle to protect incarcerated people from preventable illness and death as jails and prisons fumbled their response to the COVID-19 crisis. What I’ve seen is a chasm between the courage and humanity of my clients — people discarded in crowded facilities trying against all odds to follow public health guidelines — and the officials who incarcerate them: bureaucrats ever ready to point the finger elsewhere as they deny incarcerated people , , , , , the , and subject COVID-positive patients to .
More than have died from confirmed cases of COVID-19, and 88 of the top 100 in the country are in jails and prisons. Even this paints an incomplete picture: Around the country, we’re seeing facilities to incarcerated people to keep reported numbers artificially low. In Arizona, officials reportedly went so far as to order incarcerated people to refuse or else face a “beat-down.” Other jurisdictions, including in and , simply ignore COVID-19 case counts in prisons in order to increase their chances of reopening.
And when we sue to hold these legal system actors accountable, it increasingly becomes obvious: They are lying to maintain the status quo, despite the risk it poses to our clients.
The philosophy behind our legal system is that adversaries — usually lawyers — present evidence to a judge or jury, engage in vigorous advocacy, and the truth should win out. Even in ordinary times, this is a myth for most people accused of crimes: Public defenders are given than law enforcement and prosecutors, and the of criminal cases are resolved by plea bargaining instead of trial (often to avoid the that comes with exercising trial rights). When people do demand their day in court, decades of “tough on crime” rhetoric have manifested in who view arrested people — particularly Black and Brown people — as presumptively guilty instead of innocent.
Unfortunately, in the COVID-19 context, judges continue to favor the demonstrably untrue accounts of jail officials over those of incarcerated people who testify at great personal risk. For example, in Memphis, Tennessee, the chief jailer that the jail was following a policy of not returning a COVID-positive person to the general population until they had twice tested negative for COVID-19. He even said that failure to do so would create a high risk of transmission. However, his staff and colleagues had never implemented this testing policy and routinely moved COVID patients back into the general population without testing.
Government officials routinely employ this strategy of plausible deniability: Supervisors who brush aside evidence of daily practices testify that all is well, while the reality is bleak for incarcerated people, as well as prison and . The temerity knows virtually no bounds: As incarcerated people suffer severe illness and die, jurisdictions like and filed legal appeals to save themselves from the grave injury of having to provide detainees with soap.
Yet, the officials who I feel the most betrayed by this year are our federal judges. Federal judges are uniquely entrusted to protect the constitutional rights of all. Their are meant to ensure their total independence and ability to fairly protect the rights of even those without political or social influence. The federal judiciary — at least in principle — is our government’s to protect the rights of the systemically oppressed.
Many recent legal rulings on important matters of public health have fallen short. Many trial courts have or misapplied the law to rule against incarcerated people. And when trial courts find that our clients’ rights were violated, courts of appeals ignore the record and go out of their way to reverse course — most notably when the Supreme Court recently requiring increased protections in the Orange County Jail , and despite rising COVID infections and dishonesty by jail officials (called out as “bad behavior” by Justice Sotomayor in her dissent).
While profoundly disappointing, these pro-incarceration instincts track the composition of the federal bench. more federal judges are former governments lawyers (prosecutors and civil attorneys) than lawyers who brought challenges to government action; of federal judges are white — despite the vast racial disparities the criminal legal system perpetuates — and 73 percent are men, despite the fact that women have been the in prisons and jails for decades. Judicial nominees from presidents of both parties have overwhelmingly been former prosecutors and corporate attorneys: of President Obama’s nominees had one of those backgrounds.
Representation and fair adjudication of cases have always mattered. This year, a lack of judges who understand the true horrors of our incarceration machine meant that incarceration has been a death sentence for far too many people. The United States’ unique obsession with mass incarceration also means that the pandemic is harder to mitigate here than in other countries without these super-spreader sites.
The next President has a moral and institutional obligation to appoint judges who will counterbalance this bias against people who have been accused or convicted of crimes by appointing judges who are civil rights advocates and criminal defense attorneys, not just and prosecutors. Given how overwhelmingly lopsided our current judiciary is, the next President should aggressively with to help restore our judiciary’s independence and our national trust in our courts.
I am tired of the disdain members of my own profession exhibit toward my clients. However, some of this comes with the territory of combatting our national obsession with incarceration. What should not be expected, or tolerated, is the absence of a fair and impartial judiciary who will tip the scales of justice back into balance.
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Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Maryland Supreme CourtDec 2024
Criminal Law Reform
Roland Branch v. State of MarylandRoland Branch v. State of Maryland
This petition to the Supreme Court of Maryland asked the court to reconsider its adherence to Whren v. U.S., 517 U.S. 806 (1996), which declared that a traffic stop undertaken for pretextual reasons does not violate the Fourth Amendment to the U.S. Constitution so long as the police have probable cause to believe that a traffic violation occurred. The ACLU, alongside the ACLU of Maryland, filed an amicus brief in support of the defendant’s petition, in which the ACLU argued that the court should take up the question of whether pretextual stops violate the Maryland Constitution. In September 2024, the Court denied the petition. -
North Carolina Supreme CourtDec 2024
Criminal Law Reform
State v. WrightState v. Wright
This case in the North Carolina Supreme Court involves the question of whether the police violated the U.S. Constitution when they searched the defendant, Mr. Wright’s, backpack even after he repeatedly said no to the search requests. The ACLU alongside the ACLU of North Carolina filed an amicus brief arguing that the search was unconstitutional because Mr. Wright’s eventual “consent” was the result of police coercion. Our brief urges the court to consider the totality of the circumstances that make one more susceptible to coercion, including race and poverty. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
New litigation centered on increasing access to substance-use disorder treatment in jails and prisons is helping to reduce mortality rates among incarcerated individuals.