After being charged with several non-violent drug possession and driving offenses, 43-year-old Shannan Davis spent five months languishing in jail awaiting trial. In an effort to get Shannan released pending trial, her attorney, Jennifer France, requested that the presiding judge give Shannan the option to seek support at a local treatment center. Instead, the Michigan judge issued an order stating that Shannan could be released directly to a drug treatment center, but with the condition that she also wear a costly ankle monitor. The judge’s order stipulated that Shannan would then return to jail “upon release from treatment, successfully or unsuccessfully,” to finish awaiting trial.

Shannan agreed to go to treatment, but her reprieve from jail was short-lived. The horrifying series of events that followed are emblematic of the unjust treatment that people with pretrial release conditions often face. Her experience is also emblematic of the racism, racial bias, sexism, and medical discrimination that pervades our criminal and medical systems. I assisted Shannan’s defense attorney in filing a motion to amend her release condition in May, and spoke with Shannan several times over the next few months about her case.

Image Courtesy of Shannan Davis

As a Native American woman and member of the Chippewa Sioux Tribe, Shannan told me that she regularly experienced the injustice, intimidation tactics, and invisibility imposed by the various government actors in the Chippewa County legal system — she says deputies often make fun of her and subject her to racist and sexist jokes. But that lived experience couldn’t prepare her for what happened after the judge ordered her to treatment.

First, the Chippewa County Jail released Shannan to the treatment center without the medication she uses to manage her seizures. Not long after her arrival, she suffered a violent seizure and injured her head. When the sheriff’s deputies arrived and finally took her to the hospital, the doctor noticed a rash on her body. The doctor quickly and incorrectly diagnosed her with scabies, and never examined her head injury.

“I couldn’t go back to the treatment center, because they were afraid I would spread the scabies there,” Shannan told me. “So I called the sheriff’s office and had them pick me up at the doctor’s office, and they took me back to the jail.”

Shannan was supposed to be treated for scabies overnight at the jail. Instead, she stayed there for almost four weeks. She asked repeatedly why she was still being held, and was never given a clear answer. A doctor later told her that the rash wasn’t scabies, and even after those four weeks, no one ever examined her head injury.

“They didn’t look into it after I got back,” she said. “They didn’t do anything.”

Afraid to go back to the doctor about her head injury after what happened, Shannan waited in jail. Thankfully, the injury healed over time, and she was ultimately released. But Shannan’s experience is not an isolated incident. Native American people have historically and contemporaneously been victims of discrimination across the health care, legal, and policing domains. Her story illustrates how these many forms of discrimination and unjust conditions of release combine to create a cycle of incarceration for people at the pretrial stage.

Many people who are incarcerated should not be there in the first place. Statistics show that 90 percent of people detained in jail have substance use disorders or engage in problematic drug use, compared with 2 percent of the general population. Substance use disorder, mental illness and homelessness are better addressed outside of the criminal legal system.

Many people in situations similar to Shannan’s do not have the benefit of being represented by engaged, zealous private defense attorneys who are willing to challenge government abuses and file time-consuming court motions, such as the one that ultimately won her release. And even for those who do have zealous representation, they, like Shannan, often languish in jail awaiting the potential relief that a court order might bring.

Judges, policymakers, and law enforcement officials must seek alternatives to incarceration, but these alternatives cannot be coercive. The choice can’t be forced treatment or jail. In Shannan’s case, and in so many others, the choice between treatment or jail isn’t much of a choice at all.

There is little research showing that forcing someone into drug treatment helps them in the long run. In fact, a 2016 report by the Massachusetts Department of Public Health found that people who were involuntarily committed were more than twice as likely to die of an opioid-related overdose than those who chose to go into treatment. Another 2016 study found little evidence that mandatory drug treatment helps people stop using drugs or reduces criminal recidivism.

People with substance use disorder need evidence-based treatment, and the best place to receive that treatment and support is outside of jail and prison walls.

Henry Seaton didn’t set out to become an activist. In 2016, as a high school senior in a Nashville suburb, he just wanted to use bathrooms that corresponded with his gender identity. After school administrators restricted him to using the often-locked bathroom in the nurse’s office, Seaton got involved in efforts to protect trans students, including testifying before a Tennessee state legislative committee and starting a petition against bathroom bills that garnered 67,000 signatures.

“The traumas of my life were about to become law and dictate the traumas for thousands of children,” he says. “I had never thought about getting involved before, but I’m glad I did.”

After graduating from high school, Seaton spent a year working as an LGBTQ organizer at the ACLU of Tennessee, primarily fighting anti-trans bathroom bills and acting as a voice for trans youth. Now, with a degree from the University of Denver, he has come back to the Tennessee affiliate to serve as their first-ever trans justice advocate.

Credit: Houston Cofield

Since starting the role in January, he has focused on lobbying legislators about urgent trans issues, including access to school sports and gender-affirming health care. He’s also focused on grassroots efforts, empowering trans communities across the state and educating rotary clubs and children’s organizations. “I’m trying to change the narrative of transness in Tennessee from a negative one to a positive one,” he says.

As the fight for trans justice has shifted from bathroom bills to health care bans, Seaton has seen his own role shift too. At 24, he’s now working to help young people share their own perspectives.

“I see my role now as empowering voices for the future, rather than always being that voice myself,” he says. “The ladder that I climbed to testify is the ladder that I’m trying to build for other young people.”

The ACLU of Tennessee’s TRANScend program is funded by the TAWANI Foundation and Col. Jennifer Pritzker.

This article first appeared in the Fall 2022 edition of ACLU Magazine, a digital version of which can be found here.

On Tuesday, 18 independent human rights experts who serve on the UN Committee on the Elimination of Racial Discrimination issued a scathing report on the U.S. government’s racial justice record. High on the committee’s list of concerns over U.S. immigration practices is ICE’s 287(g) program — a program so concerning that the committee called on the administration to end it.

The committee, established after the UN racial discrimination treaty went into effect in 1969, monitors whether countries are implementing and complying with racial justice obligations set forth in the treaty. Building on documentation from the ACLU and Human Rights Watch, as well as groups such as Haitian Bridge Alliance and the Black Alliance for Immigrant Justice, members condemned “the persistence of the practice of racial profiling by law enforcement officials, including from the Customs and Border Protection and the Immigration Customs Enforcement (ICE).”

At a hearing in Geneva earlier this month, committee members pressed Biden administration officials to explain their failure to end racist immigration practices, citing the 287(g) program for “indirectly promot[ing] racial profiling”. Their pointed exchange was unprecedented for the administration. In Congress, no representative has ever pressed Biden officials over the continued pain felt by America’s immigrant communities, to this degree. But that needs to change.

The 287(g) program, which taps more than 700 officers at 142 state and local law enforcement agencies around the country to help ICE identify, detain, and deport immigrants inside the United States, is inextricably tied to racial profiling, a practice that violates the Constitution and human rights law. Being in the business of immigration enforcement leads local law enforcement to target immigrants for minor violations and pretextual arrests, generating book-ins to local custody that can then lead to deportations. Local law enforcement use “foreign-sounding” last names, place of birth, or racial appearance as a reason for stops, investigation, and arrest.

AP Photo/The Knoxville News Sentinel, Saul Young

As the ACLU documented in an April 2022 report, racial profiling has flourished in the places where the 287(g) program is in place. In Davidson County, Tennessee, the arrest rates for Latinx individuals driving without a license more than doubled after it joined the 287(g) program. In one notorious Davidson County case, a pregnant woman charged with driving without a license was shackled to her bed during labor. Available data shows that a high percentage of people arrested by 287(g)-deputized officers were charged with minor traffic violations, suggesting pre-textual arrests and racial profiling — 83 percent, for example, in Gaston County, North Carolina.

One result of this racial profiling by 287(g)-designated state and local officers is race-based federal immigration enforcement. While ICE’s failure to track 287(g)-related arrests undermines our efforts to gain a full picture of the program, we know from news reports, civil rights litigation, and testimonials that the racial profiling practices of state and local law enforcement officers are putting disproportionate numbers of Black and Brown immigrants into the deportation pipeline. By facilitating this racial profiling, the 287(g) program contravenes the stated intentions of the Biden administration to advance racial equity across federal agencies.

This isn’t the first time the UN Committee has called on the U.S. government to end the 287(g) program — it also did so in 2014 during the Obama administration. By then, it was already clear that the decade-old program was a vehicle for racist law enforcement officials to harass immigrants. The program was never about public safety, it was about “a change in demographics,” according to NYU Law School Professor Alina Das. As the program initially grew, FBI and census data showed that 61 percent of new 287(g) partner localities had violent and property crime indices lower than the national average, while 87 percent had experienced a growth in their Latinx population that outpaced the national average. Johnston County Sheriff Steve Bizzell, a leader of the North Carolina Sheriffs’ Association who helped broker a deal to increase his state’s participation in the 287(g) program in the late 2000s, acknowledged his goal was to reduce if not eliminate the immigrant population of his county, complaining that “Mexicans” were “breeding like rabbits.”

By the end of the Obama administration — following damning Department of Justice civil rights investigations that spurred reform — only 34 local agencies remained in the program. Yet today, following the Trump administration’s five-fold expansion of it, the Biden administration is overseeing a 287(g) program with more than 140 state and local law enforcement agency partnerships nationwide. Our report found that more than half of participating sheriffs have records of anti-immigrant, xenophobic rhetoric; and at least 65 percent have records of a pattern of racial profiling and other civil rights violations.

It’s time for members of Congress to press the Biden administration — just as the UN Racial Justice Committee has done. The 287(g) program is a racist, broken relic. The Biden administration needs to abandon it.

American Civil Liberties Union

On the Frontlines of the Fight Against Mass Deportation | News & Commentary | American Civil Liberties Union

Read how organizers fight against 287(g), how life is in a community under 287(g), how they empower people to act, and their vision for the future.