Britney Spears did it again — the pop singer has recently been in the news for her ongoing conservatorship and civil liberties battle with her father, Jamie Spears. This past week, Britney asked a California court to keep her father from being her conservator and having broad control over her life decisions and career. But what exactly is a conservatorship, and what are the implications of it? We sat down with Zoe Brennan-Krohn, staff attorney with the ACLU’s Disability Rights Project, to discuss Britney, conservatorship, and why this is a disability rights issue on our radar. 

Q: Can you briefly explain Britney Spears’ situation, and the implications of her conservatorship case?

Britney Spears is subject to a court-imposed conservatorship (in most other states this structure is referred to as a guardianship). This means that a court has determined she is unable to provide properly for her food, clothing, or shelter. The court has then granted other people — her conservators — the legal right to make decisions for her. News reports indicate that this has been the case for Britney since 2008. While we do not know the details of Spears’ conservatorship, in general, conservators like those in her case have the ability to make decisions about all aspects of her life — where she lives, where and how she spends her money, what medications she takes, who she spends time with, and other decisions.

Q: Can you please break down, what is conservatorship? What does it mean? 

Conservatorship means the court is taking away the civil liberties from one person and giving them to someone else. Sometimes it’s ALL of that person’s civil rights and civil liberties, and sometimes it’s partial. But it is the court weighing into the person’s life and saying you, as a person with a disability, are no longer able to make decisions about yourself and livelihood — such as where you live, and how you support and feed yourself — and we are putting someone else in charge of making those decisions. Because it’s such an extreme step to take, it’s really supposed to be a last resort. And once a court has put a person under a conservatorship, only a court can lift that conservatorship. 

Q: Why is the ACLU just weighing in on this now?

The ACLU has a long history of advocating for the rights of people with disabilities to live independent, self-directed lives as active members of their communities. Our concerns about conservatorship and guardianship are part of that commitment: ensuring that people with disabilities retain their civil rights and liberties and a belief that disabled people are protected through the exercise — rather than the removal — of these rights. 

This issue is getting attention right now because of Britney Spears’ fame. But she is only one of untold thousands nationwide under or at risk of guardianship or conservatorship.The ACLU has advocated for expanding supported decision-making, an alternative to conservatorship or guardianship where people with disabilities can choose trusted support people to help them direct their lives, without court intervention or loss of civil rights.

Q: Why is conservatorship a disability rights issue? 

People only end up under conservatorships or guardianships if a court identifies them as having disabilities. This includes people with psychiatric disabilities, developmental or intellectual disabilities, age-related disabilities like dementia, and other types of disabilities. 

Fighting against the unnecessary and dangerous removal of disabled peoples’ civil rights and civil liberties is a core belief of the ACLU’s disability rights work. This is not to say that all conservatorships are bad or wrong or unnecessary — conservatorships are complex and individual processes. But the ease with which disabled people can be stripped of their rights, and the extraordinary difficulties they face getting those rights back, is a systemic disability rights issue about which we have serious concerns.  

Q: How do people get into conservatorships? How does conservatorship limit a person’s civil liberties/rights? 

Typically a conservatorship happens when somebody comes into court saying they think this person needs guardianship or conservatorship. Often, it can be the parents or relatives of a person with a disability, or sometimes it can happen after a school or doctor tells the parents that they should get a conservatorship. What’s especially dangerous about conservatorships is they are typically viewed as harmless, including by courts and judges who impose them routinely. This is part of society’s paternalism and infantilization of people with disabilities. But in fact, conservatorships are a serious and often permanent arrangement.  

Conservatorships limit a person’s civil liberties, which we at the ACLU of course view as a core concern. But beyond that, conservatorships don’t necessarily actually make people safer: They can result in financial, physical, or emotional abuse. 

Q: What laws or policies exist that protect someone from a conservatorship of this kind? What would the legal process to lift the conservatorship look like? 

Most state laws have some safeguards in place. In California for example, the court is supposed to consider which less restrictive alternatives to conservatorship have been tried before imposing a conservatorship. The judge should ask a person seeking conservatorship, “What else have you tried? Have you tried supported decision-making? Have you tried joint bank accounts or money management classes? Have you tried a system of text reminders to make sure  the person gets to their medical appointments?” And if the person seeking conservatorship hasn’t tried these options, the judge should deny the conservatorship. There should only be a conservatorship if these other options have been tried in good faith and really aren’t working. But in reality, conservatorships are often imposed even when other supports and alternatives might work.  

To lift a conservatorship, the laws are different state by state, but a conservatee can go to the court to say they want this changed or lifted, and the court should consider it. However, it’s very difficult. Judges are very reluctant to lift conservatorships, and only the judge has the power to do so. You aren’t necessarily entitled to a lawyer to help you get out of a conservatorship either. And in many cases, it is virtually impossible for a person to access the courts, especially if their conservator doesn’t agree that the conservatorship should be lifted. How would the person — who cannot choose where they live or where they go or who they associate with — figure out how to get before a judge to challenge that they cannot make these decisions? It can be a Catch-22. As a general matter, it’s much easier to get into conservatorships than to get out of them. 

Q: We don’t know Britney’s diagnosis or details about her particular situation. How do we know this case is a civil rights/liberties issue?

We don’t know if Britney Spears identifies herself as a person with disabilities, or what, if any, diagnoses she has received. But by virtue of being under a conservatorship, we know that the court has determined that she is disabled, and has stripped away her civil rights because of that disability. So it’s inherently a civil rights/civil liberties issue. 

What we don’t know is what the info the court had, what Britney has said about what she wants specifically, what other options have been tried, or what her lawyers have said. So while it’s possible that this is an example of a thoughtful conservatorship that was implemented as the last resort and is being reviewed carefully, thoroughly, and regularly, that is not the norm for conservatorships, and it appears inconsistent with what we see of Britney publicly. Our view is that in general, conservatorships should be viewed with skepticism and used as a last resort.  In most cases, it’s done routinely and without substantive engagement. 

Q: Are there alternatives to conservatorship that can help keep a person with a disability and others safe, without limiting their rights? 

Yes, there are plenty of alternatives to conservatorship, and they are important. Everyone — with and without disabilities — uses supports to make decisions. We ask friends for advice, research issues, and make lists of pros and cons. These same options should be available to people with disabilities. Powers of attorney, advanced medical directives, shared control over finances, and supported decision-making are all options for disabled people to keep their rights and get support in making decisions, just like nondisabled people do. 

Q: What would you say to people that think the conservatorship in Britney’s case is for the best? And that the risks of harm (emotional/material/physical) to herself and/or others are too high?

We don’t know all of the risks and benefits at play, so we can’t speak to the specifics of her case. But we do know that the conservatorship itself also has risks. The risks in conservatorship can include financial, physical, and emotional abuse. And even when there is no abuse, conservatorships limit a person’s ability to advocate for themselves, learn from their decisions and mistakes, and grow and develop. There is a risk in being told that your opinions, your likes and dislikes, don’t matter — it makes it harder to stand up to abuse or neglect. So in any conservatorship, including this, we would want to know that the real risks (and benefits) of both conservatorship and its alternatives have been seriously weighed.  

Q: Do ALL people with disabilities have a right to lead self-directed lives and retain their civil rights? Shouldn’t it be on a case by case determination?

All people with disabilities have a right to lead self-directed lives and retain their civil rights as much as possible. What that looks like will be different for different people — some have significant support needs for some or all of their lives. But as a society we need to find ways to support people with disabilities and recognize that they are individuals with a full range of human experiences and preferences who have the right to exercise their civil liberties. 

Eva Lopez, Communications Strategist, ACLU

In the wake of George Floyd’s murder, protestors throughout America march to demand an end to police abuse. Advocates for the compelling movement to divest from the police and reinvest in communities convincingly argue that significant portions of the tax dollars we spend on policing would be better spent supporting the needs of communities of color and on alternatives to policing itself. Continuing to rely on overfunded police departments, which seem all too happy to continue to enforce laws in a racist manner and unwilling to limit aggressive uses of force, does not advance public safety.

Consider how the racial disparities in the enforcement of marijuana laws have contributed to the mass incarceration of persons of color, or how the enforcement of trivial criminal infractions – like selling loose cigarettes or driving with a broken tail light – have repeatedly led to the murder of Black people. These practices more than adequately illustrate the devastating scope and impact of America’s policing problem.

But even where defund/divest efforts succeed, police departments may be able to undermine some of this movement’s most important objectives. Certain achievements, such as creating non-police infrastructures for mental health crisis responses, will be difficult to circumvent, but when it comes to the over-policing and over-surveillance of communities of color, a foreseeable problem awaits. In response to a loss of funding, police departments are likely to consider shifting from more expensive, racist, human policing to more cost-efficient, racist, technology-driven policing. Should this play out, we will be left an altered but equally dangerous beast to fight.

And there is a very real risk of that happening. It is a risk the Movement for Black Lives has focused upon at length, and it is time we all do the same.

Surveillance Technologies and Racism

Like policing itself, investigations into surveillance technology deployments have revealed, time and again, that they are overwhelmingly unleashed against communities of color. These technologies include:

• Automatic license plate readers (ALPRs) that track wherever you drive;
• Cell-site simulators (a.k.a. “Stingrays”) which use your cell phone to locate you and track your movements;
• Surveillance cameras with facial recognition, which can track you whenever you are in public, and are far more likely to misidentify persons of color;
• Surveillance lightbulbs, which transform streetlights into cameras with microphones; and
• Surveillance planes with powerful wide-area cameras that can record the public movements of every person in an entire city.

The list goes on and on.

Increasing the mass surveillance of communities of color will increasingly make residents feel like they live in an open-air prison. Even worse, it would place those residents at extreme risk, because all police encounters begin with surveillance. Increased community surveillance always leads to increased encounters between residents and the police, and as we know too well, more police encounters with Black people lead to more injury and death. In other words, the rise in this kind of persistent surveillance will help maintain or further increase the racial disparities in whom police officers harass, arrest, and kill.

A Shift to Racist, Surveillance Tech-Driven Policing

We’ve already seen police departments respond to a loss of funding by replacing human policing with surveillance technologies that target communities of color on an extraordinary scale.

In 2013, after Camden, New Jersey’s police department was dissolved, a mass deployment of surveillance technologies transformed Camden into one of the nation’s most surveilled cities. The result, as observed by Vice News, was that it became illegal in Camden to be “walking while being white and … standing while being Black,” because the police assume those who are white and walking are buying drugs and persons who are Black and standing still are selling drugs

The result is that a Black Camden resident who is simply standing outside their home is likely to find themselves being confronted by a police officer. Despite suggestions to the contrary, Camden isn’t an example of how to reimagine policing; rather, it is a warning.

Even if police budgets are defunded, or if the police are prohibited from using tax dollars to purchase surveillance equipment, this problem could persist, because police departments regularly use civil asset forfeiture funds or privately raised money or in-kind donations to acquire surveillance technologies without public knowledge.

The Law Enforcement 2.0 Problem

The potential post-defunding/divestment shift from racist human-driven policing to racist, surveillance tech-driven policing presents what we call the “Law Enforcement 2.0 Problem.” 

This problem has three components:

• The first is “Policing 2.0,” where more financially lean, tech-dependent police forces surveil communities of color more invasively and constantly than ever before.
• The second is “Stop and Frisk 2.0,” where the police are able to surreptitiously monitor potential “suspects” looking for any reason to engage them in the same racist and violent manner that led to the current policing crisis.
• The third is “Mass Incarceration 2.0,” where constant surveillance leads to more arrests in overpoliced communities and more persons of color being imprisoned for activities that go unnoticed in white communities.

Despite making some progress in the fight to decrease the scope and scale of the criminal legal system, the mass surveillance that drives Law Enforcement 2.0 threatens to make the decarceration fight feel like a bathtub where the stopper is pulled out, but the water is left running. The increase in people being freed from prison will be matched or exceeded by those being returned to it. And one can only imagine the trivial infractions that will be observed and used to return persons on parole to jail.
This is not what progress looks like.

The CCOPS Backstop

So how can we ensure police departments cannot respond to successful defund/divest efforts by pivoting toward the surveillance technology-driven Law Enforcement 2.0 Problem? The answer is found in the Community Control Over Police Surveillance (CCOPS) effort, which the ACLU and 17 other national organizations launched in 2016, and whose laws currently protect 13.9 million residents in 14 U.S. jurisdictions. Under CCOPS, police departments are prohibited from secretly and unliterally acquiring and deploying surveillance technologies, regardless of how they are obtained.

Instead, police departments seeking to acquire and use this kind of technology must provide significant information to the public — including proposed use policies and information about potential adverse impacts on civil rights and liberties — to local residents in advance of a public hearing.
During the mandatory hearing, the public can weigh in on the proposed acquisition, which would only be allowed if the local legislature (e.g., city council) votes to allow it. If a city council goes rogue and approves a surveillance technology the public opposes, the public will know and can vote them out of office. By taking this power away from the police, CCOPS provides an important backstop the defund/divest and abolitionist movements need to protect their victories.

And it is important to note, should local communities decide they want to ban certain surveillance technologies from the outset, that they can add outright bans into their municipalities’ CCOPS bills, as San Francisco did with facial recognition.

The changes to policing we are pursuing together must be real and lasting. Combining defund/divest efforts with protective CCOPS legislation will strike a powerful blow against racist policing, whether in human or technological form, while preventing the police from thwarting the goals of the broader movement.

For more information on how to start a CCOPS effort in your city, visit www.CommunityCTRL.com.

Chad Marlow, Senior Advocacy and Policy Counsel, ACLU,
& Gillian Ganesan, National Campaign Strategist, ACLU

When voters resoundingly chose Karen McDonald in the August 4 primary to become her party’s nominee for Oakland County prosecutor, the ACLU of Michigan considered it a major win. Not for a particular candidate, but for the policies that can help us end our community’s overreliance on incarceration and eliminate racism within our criminal legal system. Voters are increasingly seeking the kinds of policies at the heart of our Smart Justice Campaign, as illustrated by this race and many others across the country.

Oakland County is one of the state’s largest counties. It has Michigan’s second-largest jail population and some of the greatest racial disparities in the criminal legal system statewide. For instance, Black people are six times more likely to be admitted to the Oakland County Jail than white people — even though they only make up about 14 percent of the county’s total population. There is no doubt that the recently ousted prosecutor played a significant role in getting the county into this shameful predicament, and a prosecutor committed to reform can help get us out.

The prosecutor’s role is uniquely powerful. No single person has as much control over the fate of individuals caught up in the criminal legal system than the local prosecutor. Elected as their county’s chief law enforcement officer, prosecutors must strive to reflect the views and priorities of their community members, who are increasingly supporting measures to end mass incarceration and demand transparency in decision-making.

Michigan is among the many places where this is happening.

Earlier this month, a story in the The Intercept took note of the growing momentum behind the movement to elect progressive prosecutors:

“On Tuesday night [Aug. 4], the movement realized a major step forward, with reformist prosecutors . . . winning Democratic primaries in counties covering at least 3 million people in four states.”

One of the people featured in The Intercept’s story was McDonald, a reform-minded candidate who defeated 12-year incumbent Jessica Cooper in what was described as a huge upset to win her party’s nomination for the Oakland County prosecutor job.

Part of what makes the win so heartening is the margin of victory. Voters soundly rejected Cooper. In doing so, they also rejected years of tough on crime policies.

For instance, after the U.S. Supreme Court ruled that people sentenced as juveniles to life without parole should be resentenced, and that life sentences should be sought only in “rare and unusual circumstances,” Cooper responded by contending that 90 percent of the children her office had locked up for life should never be released. In other words, in her view, nearly every case represented a “rare and unusual circumstance,” demonstrating an extreme lack of both compassion and common sense.

Cooper moreover was notorious for her harsh prosecution of medical marijuana cases, refusal to participate in drug treatment courts, and an overall lack of transparency from her office. McDonald, on the other hand, campaigned on ending cash bail, investing in alternatives to incarceration, and holding police accountable.

The primary election outcome was also encouraging in Washtenaw County, MI, where progressive candidate Eli Savit won the Democratic nomination for county prosecutor with more than 50 percent of the vote in the three-way race.

“Savit ran on eliminating cash bail, ending coercive plea bargaining, focusing on rehabilitation and reintegration for people who’ve completed criminal sentences, and moving away from a ‘jail-first’ mentality by prioritizing diversion and treating mental health, trauma, and addiction outside of the criminal system,” The Intercept reported.

The National ACLU and several of its state affiliates, including Michigan, have been deeply committed to these reforms.

As a nonpartisan organization, the ACLU does not support or endorse candidates. Instead, we worked hard to make sure voters knew the policy positions of prosecutorial candidates on a variety of issues related to racism and over-incarceration by launching our “Power of Prosecutors” campaign in June. We then sent a briefing guide to all 114 county prosecutor candidates throughout the state. That guide, “The Power of Prosecutors: A Platform for Smart Justice,” outlines the critical policy reforms we think are needed to end mass incarceration. Moreover, we asked each candidate to submit a survey outlining their positions on combatting racism, police accountability, clearing marijuana convictions for now legal amounts, investing in alternatives to incarceration, and other factors key to overhauling the criminal legal system.

We invested greatly in making sure Oakland County voters, in particular, knew the candidates’ positions on key issues. To that end, we spread our message through a television ad that reached more than 98 percent of voters, digital ads that reached more than one million people, direct mail to 80,000 households, nearly 40,000 calls and more than 400,000 texts to voters about the candidates.

This work paid off. Along with informing voters about the platforms of candidates in the primary, we significantly built our capacity by recruiting about 1,200 new volunteers, which will allow us to continue this push into the November general election.

We will continue educating voters about the importance of prosecuting attorneys, and about candidates’ positions on reform. Most importantly, we will be there reminding voters to make their voice heard — our criminal legal system and democracy depend on it.

Jessica Ayoub, Public Engagement Strategist, ACLU of Michigan