My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
 
Why isn’t it?
 
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
 
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
 
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
 
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
 
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
 
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
 
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
 
The system needs more of that change, and it needs it now.
 
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
 
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
 
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.

Preston Shipp, Former Prosecutor, Campaign for the Fair Sentencing of Youth

The Trump administration is advocating for a new hierarchy of rights that would elevate religion and property over basic human rights. Secretary of State Mike Pompeo is leading this dangerous endeavor through his Commission on Unalienable Rights, which published a 60-page draft report and initiated a two week public comment period following the proposal. Sec. Pompeo then delivered a preposterous speech to support the ideological initiative. The commission and its glossy report are designed to lend a veneer of legitimacy to an endeavor that is both dangerous and a waste of taxpayer money — at a time when the government should be focusing on responding to the public health and economic crisis.

This commission isn’t fooling anyone. Its main purpose is to weaken international human rights protections and propose a new, politically-charged framework of rights that elevates a specific vision of religious freedom and ignores well-established, globally accepted norms. This was already evident last year, when we warned that the commission would diminish the progress made to advance the universal rights of women and LGBTQ people, as well as socioeconomic rights, especially of vulnerable and historically marginalized populations. 

The report asserts that the United States should “vigorously champion human rights in its foreign policy,” and that “America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” Yet the report is stunningly silent about the racist policies and xenophobic rhetoric of the Trump administration, which have been widely condemned by international human rights bodies. It also fails to account for the Christian favoritism that Pompeo has displayed time and time again, implying that there is a hierarchy even among religious groups. 

A hierarchy of rights is inconsistent with human rights law and our constitutional framework. The report presents a selective and revisionist history, emphasizing the “primacy of the American political tradition” and the founding era of American history. The result is a crude and erroneous attempt to constrain the notion of the U.S. Constitution as a living document. As the ACLU has repeatedly stated, “There is an obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.” It seems that the 11 members of the commission have missed the fact that our constitutional rights are evolving, not static. 

Sec. Pompeo’s commission ignores the bedrock principle that all human rights have equal status, and they are not hierarchical. The consistent refrain in the report, and from Sec. Pompeo, is that “[f]oremost among the unalienable rights that government is established to secure … are property rights and religious liberty.” This is in fact a new and novel hierarchy of rights, designating religious freedom and property rights as the most important. This is a political and ideological decision that contravenes international law, and ignores lived experiences and structural inequities. It’s also counterproductive to democratic participation and fundamental freedoms because it excludes certain types of people from all human rights, including people living at or near the poverty line, such as low-wage workers.   

We must reject any proposal that prioritizes religious liberty over equal rights and human dignity. All too often, religion has been invoked to sanction violence and discrimination against people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people. A recent report by the United Nations Special Rapporteur on freedom of religion and belief documents how this dynamic has taken place in all regions of the world. The Special Rapporteur concluded that “[i]nternational law is clear that the manifestation of religion or belief may be limited by States in situations where doing so is necessary to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” 

While religious freedom must be protected and faith organizations are entitled to autonomy, such deference should be extended within a holistic conception of rights grounded in the universality, indivisibility, and interdependence of the full range of human rights. 

The right to property has long been wielded as a justification for atrocities committed against people of African descent and Indigenous peoples in the U.S. The report attempts to wash over most historical rights violations, though it curtly acknowledges slavery as a wrong. In an effort to further rationalize its rights hierarchy, the authors link property rights to freedom from slavery: “…only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” 

While the report acknowledges that historically states’ rights have been invoked to prevent freedom and justice for enslaved people, it fails to mention that this has also been true for Indigenous peoples. This practice continues to this day, despite the latest U.S. Supreme Court decision in Mcgirt v. Oklahoma regarding tribal lands in Oklahoma.

The commission’s report asserts that economic and social rights are best compatible with America’s founding principles when they serve as “minimums that enable citizens to exercise their unalienable rights, discharge their responsibilities, and engage in self-government.” The commission bizarrely concludes that guaranteeing a basic social safety net and fundamental human rights such as the right to health, education, and housing, would “curtail freedom — from the rights of property and religious liberty to those of individuals to form and maintain families and communities.” 

Additionally, the report sets up the premise that social and economic rights create a “clash of claims” with other rights like religious liberty. If anything, the correct interpretation is that social and economic rights are complementary and enabling rights. People cannot exercise freedom — political or otherwise — if their social and economic rights are in jeopardy.   

While the report rightly considers the Universal Declaration of Human Rights (UDHR) as a foundational document for the modern international human rights framework, it fails to mention that the U.S. has continuously undermined the UDHR by ignoring and selectively enforcing basic universal rights. Different groups throughout American history, including Indigenous peoples, enslaved African people, and women, among others, have all suffered from America’s double-standard and failure to practice what it preaches. 

Notably, the U.S. is one of a handful of nations that has not yet ratified the Convention on the Elimination of All Forms of Discrimination against Women, and is the only country in the world that has yet to ratify the Convention on the Rights of the Child. More importantly, the report glosses over the government’s failure to uphold its legal obligations under ratified treaties including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Ongoing poverty, and racial disparities in health and economics, are some of the clearest indicators of the impact of failing to prioritize rights on equal footing. 

Last week, the ACLU joined 230 human rights organizations, faith-based groups, activists, academics, former senior U.S. government officials, and others to object to the commission’s mandate as well as the fundamentally flawed analysis and recommendations contained in the report. As the coalition letter concludes, the report “undermines American commitments to human rights and provides cover for those who wish to narrow certain categories of rights protections, resulting in a weakening of the international human rights system and its protections in the process.” 

At a time when the Trump administration is resorting to authoritarian measures to suppress Black Lives Matter protests, and failing to protect our basic human rights during the COVID-19 crisis, we must fight any attempt to shake the foundations of our global humanity. Pompeo’s ideologically motivated initiative aims to quash equal protection of human rights and dignity, and we must reject it.

Jamil Dakwar, Director, ACLU Human Rights Program

In the midst of nationwide protests against police brutality, local, state, and federal law enforcement agencies have reacted with brutal force and widespread surveillance. Not only are many agencies suppressing protest and intimidating protestors with batons and tear gas on the ground — they are also circling overhead. The government is using a deeply invasive, coordinated aerial surveillance campaign to monitor Black Lives Matter protests, gather information, and surveil people exercising their First Amendment rights.
 
Today, we submitted Freedom of Information Act (FOIA) requests to the Federal Aviation Administration, Department of Homeland Security, and the Department of Justice calling for more information on the use of aerial surveillance on protesters.
 
The government has deployed helicopters, airplanes, and border drones over American cities to systematically monitor peaceful protests . An investigative report by the New York Times found that the Department of Homeland Security alone had logged at least 270 hours of surveillance footage on these racial justice protests this spring and summer. The collected footage was ultimately channeled into a digital network — accessible by federal and local law enforcement agencies for use in future investigations — with the ominous name “the Big Pipe.” Other law enforcement and military agencies, including the FBI, National Guard, and local police departments also requested deployment of private or government-owned aircraft for the purpose of surveilling protests. This widespread surveillance has been carried out across the country — from the big-city protests in NYC, Portland, Chicago and LA, to 20-person protests in small towns across the country.
 
This surveillance has also been carried out with an unjustifiable level of secrecy. Agencies like the FBI regularly try to hide the identity of their aircraft by registering them through dummy corporations. For weeks, U.S. Customs and Border Protection refused to say which agency had requested use of its Predator border drone over Minneapolis protests in May. Protesters and communities still have no idea what kind of cutting edge, high-tech equipment these aircraft — piloted and unpiloted — may be carrying.
 
As aerial surveillance continues, the public deserves much more information. In our FOIA requests, we are asking for information about the involvement of private companies; coordination between different law enforcement agencies; the processes by which surveillance flights are proposed, approved, or authorized; the scope of surveillance; the capabilities of the cameras and other surveillance tools deployed; and the surveillance footage itself.
 
We live in a democracy and Americans have a right to decide what kinds of surveillance law enforcement is permitted to engage in over our communities. But we can’t do that if we don’t know what’s going on.
 
A prime example of government policymaking that needs more sunlight is the FAA’s issuance of a “temporary flight restriction” over Portland in July, as that city became the center of renewed nationwide protests over police abuse in general and abusive practices by federal officers, sent to the city over local objections, in particular.
 
Unfortunately, there is a history of the FAA creating flight restrictions over protests at the request of law enforcement to limit the ability of reporters and community members to engage in aerial photography of police behavior. The agency restricted airspace over the Dakota Access Pipeline protests in 2016, and before that in Ferguson, Missouri during the 2014 protests following the death of Michael Brown. In 2014, documents and audio recordings proved that the purpose of the Ferguson no-fly zone was not the protection of public safety, as government agents claimed, but to keep news helicopters away.
 
In Portland, Oregon, the FAA’s restrictions prohibit drones except for those with “an approved special governmental interest airspace waiver that has been granted for operations in direct support of an active national defense, homeland security, law enforcement, firefighting, search and rescue or disaster response mission.”
 
In short, this flight restriction leaves room for government agencies to use aircraft to surveil the public, but severely limits the ability of the public to record the government. That may be how law enforcement agencies like it, but it’s exactly backward: Government surveillance of the public should be strictly regulated, but the public’s ability to monitor what law enforcement officials are doing should be broadly free and unrestricted. That is why protesters should be able to record the police using drones — and that is why we have filed a FOIA request to find out more about aerial surveillance of protests by law enforcement.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project,
& Nicola Morrow, Paralegal, ACLU Speech, Privacy, and Technology Project