The COVID-19 pandemic is not over, especially not for people who are incarcerated. The ACLU, our clients, and our allies predicted early on that serious illness and death would strike people in jails, prisons and immigration detention facilities disproportionately if government agencies did not take effective precautions, including by reducing the number of people in jails, prisons, and ICE detention.

Three years into the global and local devastation of COVID-19, those predictions have, tragically, proved to be true. And as with all aspects of the U.S. system of mass incarceration, people of color have disproportionately suffered the effects of COVID-19.

Early in the pandemic, ACLU analysts conducted an epidemiological study in partnership with researchers from Washington State University, the University of Pennsylvania, and the University of Tennessee. We projected that the failure to reduce jail populations during the pandemic could lead to almost 100,000 more COVID-related deaths nationally — of incarcerated people, jail staff, and community members — than federal authorities had then predicted. As reflected in a recent report from UCLA Law’s Behind Bars Data Project and reporting by The New York Times, the ACLU’s modeling was accurate: It showed the profound risk COVID-19 presented to people in carceral facilities and their surrounding communities, especially if authorities did not act swiftly to reduce jail populations.

American Civil Liberties Union

Flattening the Curve: Why Reducing Jail Populations is Key to Beating COVID-19

This ACLU model found that, unequivocally, keeping people out of jail saves lives — both inside the jail and in the surrounding community.

As we know, many carceral settings did not even take the most basic public health precautions, with predictable results. Without releasing medically vulnerable people from jails, prisons, and ICE detention, deaths behind bars skyrocketed. Thousands of people became ill with COVID-19 without access to the most basic preventive measures, vaccines, or therapeutic medications.

While we don’t have reliable data about how many COVID-19 deaths are related to jails as sites of transmission, the UCLA data record a stunning rise in deaths in state and federal prisons over the past three years.

In 2020, even though the total prison population declined, at least 6,182 people died in American prisons compared to 4,240 deaths the previous year. and in many states the high prison death rates continued in 2021. Nevertheless, these numbers represent an undercount, because many carceral settings do not report COVID-19 cases and deaths publicly. In fact, some jails and prisons have released critically ill people just before they died, so that they don’t have to record the deaths as being “in custody.”

The same increase in deaths and manipulation of data is true for people held in ICE detention. The first year of the pandemic was the deadliest year for detained people in ICE custody, with 21 deaths reported — more than double the number in 2019. But this number includes only the deaths that have been publicly reported by ICE.

As discovered in the ACLU’s litigation, it is clear that ICE has formally released hospitalized immigrants from its custody prior to their imminent death. This allows ICE to avoid publicly reporting these deaths, avoid investigation, and avoid medical costs for people in its custody.

For example, ICE released Martin Vargas Arellano, a 55-year-old man and a client of the ACLU of Southern California, from custody while hospitalized with COVID-19, and he died three days later. Vargas Arellano contracted COVID-19 while detained in ICE custody, and the agency denied his earlier requests for release. ICE did not report his death, and Vargas Arellano’s family and counsel did not find out about his death until they filed a missing person’s report. The ACLU has now filed suit to recover additional records about ICE’s practice of hiding these deaths from public view.

The disproportionate death and suffering of people in carceral facilities when COVID-19 struck was not a natural disaster — it was created by 50 years of policies that have fueled incarceration, punishment, and inhumane conditions without creating public safety.

The deadly combination of overcrowding, lack of basic hygiene, and persistent abysmal health care in these institutions created conditions for the spread of COVID-19 among vulnerable people: the elderly, serving harsh sentences from the war on drugs; Black and Latino people who disproportionately have underlying medical conditions because of medical racism; and low-income people, who face barriers to health because of the structural violence of poverty.

Lawsuits that the ACLU brought with our community partners and clients achieved some relief, resulting in the release of tens of thousands of people to the safety of their communities, and requiring facilities to cap their populations at levels their medical staff believed was safe. But even these significant victories were small relative to the nearly two million people who remained behind bars throughout the pandemic.

The excess deaths behind bars these past three years — not just from COVID-19 but from other causes as well — underscore the ongoing, unconscionable treatment of incarcerated people. Year after year, those who operate carceral systems plan poorly, pinch pennies at the expense of people’s health and lives, and refuse to take well-known precautions against the spread of infectious disease. Even in the face of court orders and contempt rulings, this inhumane treatment continues.

The ACLU and our community partners continue to represent tens of thousands of incarcerated and detained clients around the U.S. in litigation to secure people’s rights to be free from carceral settings, and to have safe and humane living conditions when they are in them.

The COVID-19 pandemic underscores the need to reduce the number of people behind bars in the first place. We must abandon the policies and practices that make carceral facilities daily sites of suffering and abuse. We must release medically vulnerable and elderly people from custody, we must reform bail so legally innocent people aren’t being detained simply because of their poverty, and we must dismantle ICE’s mass detention machine. Only by adopting practices that recognize the dignity of people — instead of those that punish — will we create lasting safety for all our communities.

“I wanna see a feisty group of disabled people around the world…if you don’t respect yourself and if you don’t demand what you believe in for yourself, you’re not gonna get it.” – Judy Heumann

Judy Heumann, a civil rights titan who spent her life advocating and fighting for integration, accessibility, and dignity for people with disabilities, died on March 4. Her spirit and advocacy will live on in the generation of disabled activists she inspired and empowered to take up the mantle.

When Judy was born, the fight for civil rights didn’t include people with disabilities. Disabled people faced rampant discrimination and segregation in American life. Disabled people experienced high rates of unemployment and were taught in separate schools. Changing these institutions wasn’t just a calling for Judy, it was a necessity. At a young age, Judy learned that the world did not see her the way she saw herself, and she spent the rest of her life committed to changing that.

At 18 months old, Judy contracted polio that left her partially paralyzed and began using a wheelchair for mobility. In elementary school, the principal told Judy’s parents that because of the wheelchair, she was a “fire hazard” and asked that she not return. It took her mother four long years of fighting to get Judy enrolled in school — even then she was made to take her classes in the basement with other disabled students, separate again from her non-disabled peers.

ASSOCIATED PRESS

This wasn’t uncommon at the time. People with disabilities were routinely separated from their peers until robust disability rights legislation was passed, due in no small part to Judy’s advocacy.

When Judy graduated college and sought to teach in elementary schools, she was again turned away. Despite passing her written exam, Judy had “failed” the physical exam because it required her to walk to care for the students in the event of an emergency. This sounded both familiar and wrong. So Judy called up the ACLU for support to sue the city for discrimination. The ACLU denied her case, saying that what she was experiencing wasn’t discrimination. (The ACLU has since formally apologized to Judy for our grave error. We also now have a Disability Rights Program at the ACLU).

That didn’t stop Judy. She charged forward, suing New York City for discrimination. She won, becoming the city’s first teacher in a wheelchair. She taught for three years and continued organizing for accessibility, eventually taking her fight to the national stage. It wasn’t enough for her to fight for her own inclusion, Judy wanted change for everyone.

In 1973, Congress passed Section 504 of the Rehabilitation Act, which prohibits discrimination against people with disabilities in federally funded programs and services. After two vetoes from President Nixon, the act finally became law in 1973. But four years after it took effect, the law still had no “implementing regulations,” making it useless — much to the ire of disability rights advocates like Judy.

After years of fruitless letter writing and pleas to lawmakers, Judy and other disability rights activists turned to grassroots mobilization, organizing protests throughout the country. In San Francisco, Judy, along with about 100 people with disabilities, occupied the Department of Health, Education, and Welfare’s building. The U.S. government kept asking for compromise. The protestors refused. Days turned into weeks. U.S. government officials cut off phone lines and water. In response, the disabled protestors mobilized not just the disability community, but everyone from Mayor George Moscone, to Safeway, to the Black Panthers to bring in food and support. After 28 days, the Carter administration finally relented.

ASSOCIATED PRESS

Their protest still remains the longest peaceful occupation of a federal building in history. They reached their goal and in turn, sparked a movement.

Capitalizing on the success of Section 504, Judy and the movement set their sights on the next battle: more rights. Section 504 applies only to federally funded programs, but as Judy and others recognized, disability discrimination is deeply rooted and widespread. People with disabilities experienced overt discrimination — they could legally be refused service at a restaurant, denied a job, or denied housing simply because of a disability.

In 1990 Congress passed the Americans with Disabilities Act (ADA), the most significant piece of civil rights legislation ever passed for people with disabilities. The ADA went further than Section 504, prohibiting discrimination based on a disability, requiring public services to be accessible to people with disabilities, requiring equal access to state and local government services, and mandating employers provide reasonable accommodations to employees with disabilities. As always, Judy was there, working with hundreds of other advocates to get the ADA drafted and passed.

After fighting the institutions that discriminated against her, Judy was hired to join them. In 1993, President Clinton named her assistant secretary of the Department of Education. She oversaw the government’s education programs for students with disabilities — just decades after she was deemed too dangerous to be a student or teacher in a regular classroom. She later worked in the Obama administration, as an adviser for the World Bank, and was appointed the first director of the Department of Disability Services in Washington, D.C.

Judy is often referred to as the mother of the disability rights movement, and for good reason. Not only did she usher forward sweeping changes for disabled people around the world, she mentored, befriended, inspired, and empowered countless disabled people who now carry on her legacy.

Hers was one of the first voices to tell us that we matter and that we are worth fighting for. Now, we continue the fight. Judy lives on in every disabled kid who gets to join their classmates in school and every disabled adult who lives in the community, not an institution. She lives on in every disabled person who is feisty enough to pursue their dreams.

From its early feminist founders, to the trailblazing clients and lawyers that have fought sex-based discrimination in the hundred years since, the ACLU’s history has been entwined with women’s rights since its founding in 1920 — the same year women won the right to vote.

The ACLU’s “founding mothers” were far ahead of their time not only in their striving for women’s equality, but also in understanding that their struggle for equality shared common cause with all people who have been denied their rights. This principle has continued to inform and inspire legal and advocacy battles to this day. The ACLU was the first national organization to argue for abortion rights and trans rights before the Supreme Court, and has argued more women’s rights cases before the Supreme Court than any other organization to this day. Here are just a handful of the women who made history with us.

Credit: National Woman’s Party, Belmont-Paul Women’s Equality National Monument, Washington, DC

It’s no coincidence that the ACLU was founded in 1920, the same year women won the right to vote. From the very beginning, the ACLU counted among its founders, organizers, and supporters an impressive roster of women, many of whom were veterans of the fight for suffrage. One of these women was Crystal Eastman, who is known as the ACLU’s founding mother.

“The hardest part of the battle is yet to come; the battle with ourselves, with our inherited instincts, with our cultivated taste for leisure, with our wrong early training, with our present physical unfitness … God meant the whole rich world of work and play and adventure for women as well as men. It is high time for us to enter into our heritage — that is my feminist faith.” — Crystal Eastman

Eastman was a labor lawyer, suffragist, socialist, and journalist who authored model legislation and helped create political organizations that survived a century of turmoil. Yet few people know her as a preeminent champion of most of the major movements for social change in the early 20th century — not just civil liberties but women’s suffrage and rights, pacifism, internationalism, and socialism — who frequently created and led multiple organizations simultaneously, including the ACLU.

Left: Dorothy Kenyon, Credit: Barney Stein/New York Post Archives /(c) NYP Holdings, Inc. via Getty Images

Right: Harriet Pilpel, Credit: ACLU Archives

Early board members at the ACLU were not all on board with abortion as a civil liberties issue. Dorothy Kenyon, who joined the board in 1930, tried to convince them to take on abortion rights as part of the ACLU’s portfolio, to no avail. Other board members, who were mostly men, concluded that abortion fell outside of their purview and to leave the matter to “social agencies in the field.” When Harriet Pilpel joined the board in the 1960s, she and Kenyon joined forces.

“Laws against abortion and other ‘sex laws’ constitute a form of ‘class legislation,’” Pilpel argued. “They are enforced primarily against the poor and underprivileged who suffer ‘wholesale violations of civil liberties’ through surveillance, entrapment, arbitrary police action, speech repression, and intrusions on their privacy.”

After years of negotiations, the board in 1969 articulated the following policy:

“The Union asks that state legislatures abolish all laws imposing criminal penalties for abortions. Total repeal of all such laws will meet these civil liberties criteria.”

It wasn’t the first time ACLU staff helped shift the institutional mission in favor of women’s rights. In the years prior, Kenyon and fellow board member Pauli Murray persuaded the organization to take on cases that challenged sex discrimination, helping to pave the way for abortion rights in 1969.

“I am free now,” said Kenyon, “to shout abroad that this policy of mine is also that of the ACLU.”

Credit: AP Photo/Charles Tasnadi

Before Ruth Bader Ginsburg became a Supreme Court justice, she founded the ACLU’s Women’s Rights Project in 1972. Under her leadership, the project tallied hundreds of federal laws that discriminated on the basis of sex — in education, employment, reproductive rights, mortgages, credit cards, loans, house rentals, prison, and the military. At the time, most legal scholars believed the law should treat women differently to protect them. Cases about sex discrimination often centered on a specific woman; not changing the law or broader gender equality. Ginsburg wanted to do just that.

“Women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.” — Ruth Bader Ginsburg

While at the ACLU, she played a role in 34 Supreme Court cases, and won five of the six cases she argued before the court. Many of her cases involved sex discrimination against men, which she felt might rouse more sympathy among the male justices, and show that discrimination hurts everyone.

Credit: ACLU

After Aimee Stephens came out as transgender to her employer, she was fired — not because of concerns about her job performance, but just because she was trans. The ACLU assisted Aimee in filing a complaint with the federal Equal Employment Opportunity Commission (EEOC) in what would become the first case about the civil rights of trans people to be heard by the Supreme Court. When Aimee decided to fight back, she just wanted it to be acknowledged that what happened to her was wrong. As a result of her courage, in 2020 the Supreme Court ruled that it is illegal to fire people for being LGBTQ.

“I found it a little overwhelming when I realized that I could be in the history books, but somebody’s gotta do it, and I’d be happy and satisfied to be that person.” — Aimee Stephens

Tragically, Aimee died just a month before the court issued its landmark decision. But she had already made history as a transgender woman and trailblazer in civil rights.

Credit: ACLU

Crystal Mason, a Texas mother of three, went to the polls on Election Day 2016 and cast a provisional ballot. She didn’t know that Texas considered her ineligible to vote because she was on federal supervised release, and this honest mistake resulted in her arrest, a five-year prison sentence, and years of legal battles for simply trying to exercise her right to vote.

“You wanted me to feel fear. You wanted me to run. You wanted me to be scared to educate and teach my kids to continue to vote, to go vote, what my mom instilled in me. Instead of letting it be a crutch, I have let it motivate me now.” — Crystal Mason

Crystal’s story is shocking, but it’s also a predictable outcome of politicians’ obsession with supposed rampant voter fraud, and part of broader voter suppression efforts, particularly those silencing voters of color. It’s what fuels her to keep fighting alongside the ACLU, which is representing her in court this month as her case is heard for a second time in an appeals court.

Credit: Stephen Remich

Andraya is a recent high school graduate who ran on her school’s girls’ track team. A lawsuit was filed against her school and the state of Connecticut by cisgender students who did not want to run with transgender students. The ACLU and ACLU of Connecticut joined the lawsuit on behalf of Andraya and Terry Miller, another student. Both Terry and Andraya have graduated from high school and no longer compete in track, but anti-trans groups are suing to take away any record of their past achievements. For updates on Andraya’s case, visit the Soule et al v. CT Association of Schools et al case page.

“I know that speaking up against the injustices that transgender athletes face within sports is something that needs to be continued.” — Andraya Yearwood

Transgender athletes — particularly Black transgender women — face systemic barriers to participation in athletics and all aspects of public life. This exclusion contributes to the high rates of homelessness, suicidality, and violence that Black transgender women and girls face.