Police do not need an 18th Century infantry sword to “protect and serve” communities. Nor do they need Mine Resistant Ambush Protected Vehicles (MRAPs), grenade launchers, or other weapons of war. Despite the dangerous nature of these weapons, local police departments continue to have access to them, free of charge, through the Department of Defense 1033 program. As we face a past due reckoning over our nation’s policing practices, it is time our leaders take the steps necessary to prevent these weapons of war from being used on the nation’s people, protestors, and Black and Brown communities.
 
Last week, the Senate decided to limit reforms to the 1033 program to just bayonets, tanks, weaponized drones, and some grenades. “Modest” would be a charitable way to describe the amendment to the defense authorization bill offered by Senate Armed Services Chairman Sen. Jim Inhofe. Weaponized vehicles and armed drones were never transferred under 1033, and most grenades can still be secured through the program, so that leaves bayonets as the most significant reform in this package.
 
The House could have taken up amendments to end or rein in 1033 last week with proposals from Reps. Nydia Velázquez and Hank Johnson. Instead they skipped the opportunity for real reform by passing on those amendments. The Senate voted down a more meaningful 1033 amendment from Sen. Brian Schatz. Despite passing Rep. Johnson’s Stop Militarizing Law Enforcement Act last month with the Justice in Policing Act, it seems Congress caved to pressure from the law enforcement lobby to leave 1033 reforms out of the must-pass defense bill.
 
With the administration maintaining militarized federal agents in Portland, and following their violent attack on protesters in Lafayette Square, Congress should take every oversight and legislative action available to stop the Trump-Barr “law and order” roadshow. This administration has followed those vile attacks with promises to “surge” federal law enforcement in Kansas City, Chicago, Albuquerque, Philadelphia, Cleveland, Detroit, Milwaukee, Baltimore, and Oakland. We can also expect to see the administration’s response in Portland replicated in Seattle.
 
If this dispatch of federal agents throughout the country looks anything like Portland, this means more unidentifiable federal agents in camouflage, using tear gas, rubber bullets, and pepper balls in their war against protestors. As federal agents bring their warrior mentality to tackle “violent crime” through Operation Legend and Operation Relentless Pursuit, it is essentially old fashioned over-policing, with its trademark profiling and excessive force.
 
The federal government has opened up its war chest to federal, state, and local law enforcement since 1990, transferring $7.4 billion dollars of military weapons and equipment to date. While some limited reforms that provided transparency were achieved under the Obama administration and through defense authorization bills in more recent years, 1033 has continued to put military weapons in the hands of law enforcement since the program first came under scrutiny during the protests that followed Michael Brown’s death in 2014, to the present day protests that followed George Floyd’s death.
 
The 1033 program is the vehicle that enables militarized responses against protestors, at the Southern border, and to advance the failed drug war. The program instigates the “surge” of various federal law enforcement that have been deputized to “lay down the law” in Portland and cities throughout the country. It is beyond time to end the 1033 program and the wave of brutality, racialized policing, and curtailing of civil liberties that it leaves in its wake.

From the outset of the COVID-19 crisis, it was clear that the impact on people living and working in jails and prisons was potentially catastrophic. Advocates, including the ACLU, were sounding the alarm by early March in the United States. Five million people cycle through jails every year — where people live in close quarters and lack basic sanitary supplies — creating a petri dish for the transmission of COVID-19. Of course, prison walls can’t contain the virus — which can just as easily leave those facilities and spread into surrounding communities and beyond.

Swift action from every criminal system stakeholder — from police and public defenders to judges and corrections officials — was necessary to prevent a health crisis behind bars. The person with the most power to increase or decrease incarceration rates, the prosecutor, had the most opportunity to spur action by protecting people from unnecessary contact with the criminal legal system.

Once COVID-19 reached the United States, prosecutors should have swiftly used their immense discretion to reduce the number of people who are held pretrial or were sentenced to a confined facility, especially those most vulnerable. This includes outright dismissing low-level cases, recommending release without bail before trial, making full use of available diversion programs or alternatives that don’t involve confinement, offering non-confinement sentences in plea bargaining and sentencing recommendations, and supporting the release of particularly vulnerable people from jails and prisons.

Yet, despite early warnings, COVID-19 has raged throughout U.S. jails and prisons. Tens of thousands of people behind bars have tested positive for the virus, and hundreds have died — the result of sluggish and insufficient efforts from all criminal legal actors across the country.

As COVID-19 levels continue to spike around the country, prosecutors remain best poised to coordinate with all system stakeholders to slow the spread inside jails and prisons. In order to do so effectively, they must reflect on the policies they’ve incorporated so far, analyze their results, and identify new ways they can better protect people in jails and prisons to ensure contact with the system does not result in death.

This analysis series focuses on the 20 largest cities in the United States, and the policies local prosecutors implemented there to slow the spread of the virus into jails and prisons. This is the first post in the series.

1. New York, New York

New York City is home to five district attorneys — one in each borough. After hearing alarms from advocates as COVID-19 reached the city, many of the NYC prosecutors agreed to support decarceration to fight its spread in jails. In March, Manhattan’s Cy Vance and Brooklyn’s Eric Gonzalezsigned onto a national joint statement urging local officials across the country to stop admitting people to jail when there was no serious risk to the physical safety of the community. The same month, Gonzalez took individual action to save lives, announcing his office would stop prosecuting low-level offenses that don’t jeopardize public safety. By May, three other borough prosecutors joined him and vowed to no longer prosecute social distancing arrests, though a recent article uncovered thousands of protest-related summons that they have not intervened to dismiss despite having the authority to do so.

While it remains unclear the extent to which these initiatives actually slowed jail intakes, the city reported that over 1,500 people were released from the city jails between the start of the pandemic and April 10. City prosecutors played a role, proactively reviewing the circumstances of each person in jail related to a case from their office and responding to both city and defender requests for review to determine whether to consent to release. Almost all of these offices regularly reported their consent numbers publicly — though the Staten Island DA’s office did not respond to repeated requests for their consent data, preferring to keep its COVID-19 policy actions behind closed doors.

Despite these efforts, many people who were vulnerable to the virus were left behind. On April 17, the Legal Aid Society filed a lawsuit against Vance’s office, calling for the release of 76 incarcerated New Yorkers that the office had been unwilling to consent to release previously. A few days earlier, Queens’ Melinda Katz drew criticism when Walter Ance — a man who had been serving time while awaiting his trial for over a year — died handcuffed to a bed after Katz’s office refused to consent to his release, despite his high risk of contracting the virus due to his ongoing health issues. In May, Staten Island’s McMahon penned an op-ed urging advocates to stop demanding drastic declines in jails, claiming that doing so would harm public safety.

Unfortunately, these jail declines did not stop COVID-19: As of April 13, Legal Aid reported that 7.8 percent of incarcerated New Yorkers tested positive for COVID-19 — a percentage almost six times higher than the city’s population.

2. Los Angeles, California

Los Angeles County District Attorney Jackie Lacey leads the largest local prosecutorial office in the nation. In mid-March, Lacey directed her office to consider individual health risks, delay filing new cases, consider recommending release for people awaiting trial for nonviolent crimes, and expand the use of pre-filing diversion.

By the end of March, LA County had already released over 1,700 people. But Lacey’s policies may only tell part of the story — local sheriffs and public defenders also actively identified and released people from jail in reaction to the pandemic. In April, California’s Judicial Council set bail at zero statewide, temporarily ending wealth-based, pretrial incarceration for most misdemeanor and lower-level felonies in an attempt to limit the further spread of the virus.

Lacey’s office directives leave wiggle room for significant, life-endangering exceptions. For example, despite the office’s directive to avoid pretrial detention during this pandemic, LA County prosecutors have carved out an exception to pursue bail for people accused of looting. Moreover, in an April email obtained by HuffPost, a deputy district attorney noted that the office would consider an overly broad definition of “looting” so that it includes thefts involving property valued at $950 or more — a value that an iPhone 11 Pro alone surpasses. George Gascón, who is running to replace Lacey, accused her office of continuing to pursue low-level cases despite the pandemic, including panhandling, drinking in public, driving with a suspended license, drug possession, and loitering. Rather than addressing these critiques head-on, Lacey declined an invitation to a town hall hosted by justice organizations, including the ACLU of Southern California, on May 12 to discuss LA district attorney policies during COVID-19 with the public.

3. Chicago, Illinois

Early on in the outbreak, the State’s Attorney for Cook County, Illinois Kim Foxx committed to working with local sheriffs and public defenders to identify paths toward decarceration to slow the spread of the coronavirus. For her contribution, on March 20, her office announced it would not be prosecuting new low-level drug offenses during the pandemic. Her office was also reviewing thousands of cases to identify people to recommend release from jail when they would not pose a threat to public safety in emergency bail hearings. She later crafted a policy not to prosecute individuals charged with minor offenses related to peaceful protests, a move that kept people out of harm’s way in jails.

Unfortunately, these changes did not always reach the courtroom. The public defender’s office has publicly called out that local prosecutors have not agreed to a majority of motions to reduce bond or release defendants from the Cook County Jail during the outbreak. Foxx has been clear that her office will not support mass release, but is working hard to find people who are ideal for immediate release, and hopeful that this effort will clear the path to broader and long overdue bail reform in the future.

4. Houston, Texas

In the early days of COVID-19, defenders criticized Harris County, Texas District Attorney Kim Ogg’s slow response to the pandemic, including her delayed remote working office policy. While local officials across the state began to release people awaiting trial to slow the spread of the virus, Ogg overtly fought judicial efforts by filing an emergency motion to block judges from considering “public health matters” when deciding bail. In April, a lawyer representing misdemeanor judges in a cash bail suit sent a letter to DA Ogg, accusing her of also misrepresenting Gov. Abbot’s executive order on limitations of release during the pandemic to deny the release of people on low-level offenses.

Ogg’s efforts to prevent decarceration have led to drastic consequences. The state’s system is now at a crisis point as a backlog of people crammed in local Texas jails builds up — both those held pretrial and those waiting to transfer to prison are trapped together despite the pandemic’s threat.

5. Phoenix, Arizona

Maricopa County, Arizona, the fourth most populous county in the nation and home to Phoenix, has successfully cut down the number of people going to jail while awaiting trial to slow the spread of the coronavirus. Many of these reduced filings have been credited to the Maricopa County sheriff and the Phoenix police chief, who have developed policies to issue summons and citations for many offenses on the front end of the system. While Maricopa County Attorney Allister Adel agreed to pause the filings of some cases, she made clear that these cases would not be dismissed at any point, leading advocates to fear a flood of backlogged cases could inundate the system in the near future. Further, vowing to prosecute low-level cases related directly to the pandemic’s impact on the economy, such as theft or trespassing, does more harm than good for the community.

Adel certainly understood some need to alleviate the number of people behind bars during the pandemic. She directed her office to consider this broader public health needs when making charging decisions and to respond appropriately to defense attorneys’ requests for release. But advocates, including the ACLU of Arizona, asked her early on to implement a variety of more specific proposals, which Adel declined to even meet to discuss. Instead, she authored an op-ed vilifying advocates’ intentions and arguing that people in prison should not be released — a sign that she does not grasp how this virus can turn jail stints into death sentences.

Nicole Zayas Fortier, Policy Counsel, ACLU Campaign for Smart Justice,
& Weronika Bzura, Legal Intern, ACLU

The first time I didn’t meet John Lewis was at a 2010 gala dinner celebrating the 90th anniversary of the ACLU of Massachusetts.

As President of the ACLU, I had been invited to present a civil liberties award to Lewis, who had agreed to accept the award and give the keynote address. On the train to Boston for the dinner, I received an email from the affiliate’s executive director, Carol Rose, telling me that Lewis would not be able to attend the dinner after all and asking if I would deliver the keynote speech instead.

It was easy enough for me to choose a subject: John Lewis, whose reason for not attending the dinner was that he needed to stay at his post in the House of Representatives to vote for the repeal of the Don’t Ask Don’t Tell law. Lewis recorded a video apologizing for his absence. The audience not only forgave him, but honored his decision to act rather than speak as a reflection of his abiding commitment to the fight for equality. Like the ACLU, Lewis connected the dots between racial equality and LGBTQ equality: No one should suffer discrimination on the basis of who they are. Just as he had in the 1960s, he devoted himself daily to doing everything he could to make that aspiration a reality.

The second time I didn’t meet John Lewis was in the Capitol Building, in February 2013. After attending a meeting on behalf of the ACLU, I observed the crowd gathered for the installation of a statue of civil rights icon Rosa Parks. I learned later from colleagues that Lewis was not present for that occasion as, again, he had more urgent business. He was across the street at the Supreme Court, watching the oral argument in the case of Shelby County v. Holder.

Rather than celebrating a symbol of how far the country had come in the fight against racism, he chose to witness the latest chapter in Alabama’s campaign for retrogression. Alabama was attacking a central provision of the Voting Rights Act of 1965, the essential civil rights law he and his colleagues had forged through their persistence and courage — even through their brutal treatment on the now-infamous bridge in Selma, Alabama. As Lewis must have feared, the court chose states’ rights over voting rights and eviscerated that hard-won landmark law. Lewis’s response was to stay at his post in the House and keep fighting.

I finally met Lewis quite by accident in a parking lot at the Atlanta airport. I was heading for a flight home after chairing a national ACLU board meeting when a colleague noticed Lewis exiting the building we were about to enter, heading for a car at the curb. Lewis was more than gracious in delaying the final leg of his trip home in order to chat with our group of civil libertarians from around the country, and kindly posed for numerous photos and selfies. On learning about our ACLU connection, he expressed his admiration of our work for civil liberties as we expressed our awe of his own.

Lewis never strayed far from the nexus of the fight against injustice — whether in the streets, the courts, or Congress. His absence in one room, I found, guaranteed his presence in another, where a more consequential fight for equality was usually taking place.

John Lewis was and will continue to be a force in all of our lives, reminding us that the arc of justice does not bend easily — and doesn’t always stay bent. As ACLU founder Roger Baldwin memorably said, no civil liberties battle ever remains won. We honor John Lewis best not by our words, but by recognizing that awards, obituaries, and commemoration ceremonies can fuel but must not distract from our ongoing actions to preserve and promote equality for all.

Susan N. Herman, President, ACLU