At least three times in its history, the Supreme Court has invoked the Constitution in order to frustrate efforts to protect the vulnerable. In the infamous Dred Scott case of 1857, the court declared that the Constitution prohibited federal efforts to free slaves because doing so would violate their owners’ property rights — a decision that invalidated the Missouri Compromise and helped bring about the Civil War.

In the early twentieth century, the court repeatedly struck down state and federal protections for workers and consumers, deeming them violations of business owners’ constitutional rights of contract. The decisions were so unpopular that President Franklin Delano Roosevelt proposed packing the court. And in 2013 the court gutted the Voting Rights Act, removing its requirement that states with a history of discriminatory voter suppression submit voting rules and redistricting plans for administrative approval before implementing them. Runaway gerrymandering and voter suppression followed, eroding the integrity of our democracy.

In its new term, which begins today, the court has chosen to hear a series of cases that likewise invoke the Constitution as an obstacle to protecting equal rights, even as the country continues to reckon with its many legacies of discrimination. While the decision to overrule Roe v. Wade was, as I have written, egregiously wrong, it still allows the political branches to protect abortion. This term the court is poised to go even further, by not only eliminating court-enforced constitutional protections, but interpreting the Constitution as a barrier to other institutions’ efforts to achieve equality.

This is an excerpt from The New York Review of Books. You can read the rest of the article here.

Although our laws provide a clear right for people fleeing persecution to seek asylum in the United States, anti-immigration lawmakers have purposefully sown confusion about the law, the process of applying for asylum, and what is really needed to ensure a fair and orderly system for considering the claims of people seeking protection at the border. Instead of seeking solutions, they have tried to undermine the right to seek asylum at every turn.

Here’s what you need to know:

The right to seek asylum — or safety from persecution — in another country was born out of the tragedies of World War II and the horrors of the Holocaust. In its aftermath, dozens of nations committed to never again slam the door on people in need of protection. The right to asylum was enshrined in 1948’s Universal Declaration of Human Rights and then again in the Refugee Convention of 1951 and its 1967 Protocol.

The United States passed its own federal law in the Refugee Act of 1980, for people who are fleeing persecution on “account of race, religion, nationality, membership in a particular social group, or political opinion.” The Refugee Act is meant to ensure that individuals who seek asylum from within the U.S. or at its border are not sent back to places where they face persecution.

In today’s world, these protections remain critical, with more people forcibly displaced from their homes due to conflict, violence, and human rights violations than at any other point since World War II.

Elected officials and news outlets often mischaracterize those seeking asylum at the border as breaking the law or failing to seek protection “the right way.” However, under U.S. law, a person seeking asylum may do so by arriving at the border and asking to be screened by U.S. officials at a “port of entry,” or by entering the U.S. without prior inspection and then declaring their fear of persecution.

In either case, people seeking asylum at the border are subjected to a criminal background and security check. They must then navigate a complex and lengthy process, involving multiple government agencies, in order to prove that they have a well founded fear of persecution. Those who lose their cases and any appeals are ordered removed and are deported. Since March of 2020, most people seeking asylum at the border have been denied the right to do so under normal rules, and have instead been expelled from the U.S. under Title 42, described below.

President Trump implemented multiple policies in an attempt to end asylum at the border. President Biden promised to restore a fair and humane asylum system, but has been slow to fully reverse Trump’s policies. For example, Title 42, which uses the COVID-19 pandemic as a pretext for expelling asylum seekers without offering them any opportunity to seek protection, remains in effect. The policy has led to thousands of documented cases of violent attacks against individuals who the U.S. has expelled, including rape, torture, and abduction.

Elected officials in both parties have sought to justify restrictive asylum policies for their “deterrence” value, claiming that they discourage migrants from coming to the border. But these policies do not stop people from seeking safety and ultimately create more disorder. Title 42, for example, has encouraged people seeking protection to try multiple times to cross. Even after imposing the strictest and most punitive rules against asylum seekers, President Trump faced sharp increases in the numbers of migrants seeking asylum at the border, the highest numbers in over a decade.

People seeking asylum in the U.S. must overcome many challenges. They leave their homes behind and endure grueling journeys in pursuit of safety. When they arrive, they are often unnecessarily detained by ICE in abusive conditions, even though they have family members or friends they could stay with while their cases proceed.

Despite these obstacles, asylum-seekers are eager to provide for their families and contribute to their communities. They have gone on to open their own businesses, work in jobs that help feed our communities, care for sick people, and advocate for people’s rights, contributing billions in taxes and revenue. One recent study estimated that on average, an asylum seeker contributes over $19,000 per year to the U.S. economy, and that a 25 percent reduction in the number of all people seeking asylum in the country would cause an economic loss of $20.5 billion over a five-year period.

We need a more efficient, humane, and welcoming system at the border for people seeking asylum. Much of the money Congress currently spends on a bloated Border Patrol police force should be spent instead on making sure our immigration agencies and federal courts have enough employees and judges to adjudicate asylum claims in a fair and orderly manner, and to ensure that people are supported in their efforts to join their family members and sponsors in their destination locations. The sooner people are able to integrate into their new homes and are issued work permits, the sooner they’ll be able to support themselves and their families and contribute in other ways to their new communities.

In response to the increasing use of electronic monitoring since the COVID-19 pandemic, the ACLU has released Rethinking Electronic Monitoring: A Harm Reduction Guide, which calls on jurisdictions to replace electronic monitoring with less restrictive and more effective measures.

American Civil Liberties Union

Rethinking Electronic Monitoring: A Harm Reduction Guide

Rethinking Electronic Monitoring: A Harm Reduction Guide, calls on jurisdictions to replace electronic monitoring with less restrictive and more...

We also spoke with individuals who have had to endure pain, stigma, and loss of livelihood because of their ankle monitoring.

Finally, we’ve created a resource that aims to help defense attorneys build a record in order for them to challenge the use of electronic monitoring (EM) in the form of ankle bracelets, ankle shackles, and/or tethers. This particular form of EM is a dangerous and debilitating means of confinement. Studies show that digital incarceration (e-carceration) not only intensifies racial and class-based inequalities, but also plagues wearers with charging malfunctions, and false alarms, that can lead to further criminal punishment.

To inform and empower defense attorneys and their clients, the ACLU created a list of tips and resources to help challenge the imposition of electronic monitoring. Check out these tips below:

Do they require a presumption of release on recognizance (ROR) for pretrial people in some circumstances?

Do they require a finding that ROR will not suffice before an official can impose a pretrial condition?

What is the standard for imposing pretrial conditions such as electronic monitoring? Must the pretrial condition be reasonably related to ensuring appearance or protecting public safety? If there is a standard, electronic monitoring requirements that aren’t explained or obvious from the record are suspect.

Must the official consider statutory factors in deciding whether to impose a costly pretrial condition, or, alternatively, does the government automatically cover the cost of the condition? If the statute lays out steps for determining whether to impose a cost, and how much, then officials must abide by the law.

If there is a presumption of ROR for pretrial individuals, don’t forget to argue first that ROR is the default. Second, you may want to argue that (free or low cost) pretrial conditions are superior to cash bond. Highly liberty-restrictive conditions like electronic monitoring are only appropriate upon specific findings of dangerousness or flight risk that are specifically addressed by the conditions.

You can use the following steps to challenge monitors:

1. Prove that there is no unmanageable flight risk, citing:

• Employment records;
• Child care responsibilities, school enrollment records, other evidence of local ties;
• Letters of support from family or community members; and/or
• Attendance at prior court proceedings.
• Where the underlying charges are shaky, this should be highlighted.
• If there is a previous failure to appear (FTA), make a record of sympathetic excuses for absence.

2. Prove that there is no danger to the public:

Make arguments based on the nature of the allegations. Even for violent crimes, facets of the crime may indicate likely non-recurrence (e.g., a bar fight).

Provide letters of support where family or community members address willingness to monitor defendants’ activities (although this can get tricky).

Document other life activities (helping elderly neighbors, etc.) that may prove trustworthiness.

Highlight if there is no other prior criminal history (or no violent history or no recent history).

3. Raise concerns about the imposed pretrial condition:

Argue that electronic monitoring is a highly restrictive condition and that its imposition is only appropriate to address a specifically identified flight risk or danger to the public.

If defendant cannot afford electronic monitoring, argue that its imposition amounts to a pretrial detention order in violation of Bearden v. Georgia and U.S. v. Salerno.

If the court is considering electronic monitoring and your client will be required to pay, explicitly tell the judge if the costs of monitoring will be unaffordable and thus amount to a pretrial detention order. Some statutes and/or court rules prohibit pretrial detention on the basis of economic status.

Argue that electronic monitoring constitutes an unconstitutional search under both U.S. and state constitutions. (See, e.g., Carpenter v. U.S.; U.S. v. Scott.)

Emphasize that electronic monitoring is ineffective, generates social stigma, and creates cycles of debt and incarceration.

4. Argue for pretrial release conditions other than electronic monitoring:

• Offer to have the client check in with probation by phone on a daily basis.
• Offer to have the client surrender their driver’s license in return for a temporary license (in misdemeanor cases, this may be preferred by statute).
• Offer to have family members provide reports if requested (this can be tricky).
• As a last-ditch effort, agree to electronic monitoring if client is willing, but emphasize that EM should not be at a cost to the defendant, and that they should be allowed to travel freely upon request/as much as possible.

5. Be creative and craft conditions specific to court-expressed concerns.

6. Insist on reviewing the pretrial services report and put on record if judge is departing from the report.

Contest any unfavorable factual findings in the report.

7. Motion for review as often as needed.

For example, if you first made a motion to have electronic monitoring removed six months ago, and your client is still on electronic monitoring six months later, you should request a review and/or file a new motion.