This OpEd was first published in Slate.

Americans have just completed another round of one of our grimmest national rituals: shaking our heads while cops who killed an unarmed Black person get away with murder. This time the victim is Breonna Taylor, whose name has galvanized nationwide protests for racial justice, but whose family will receive no justice themselves. Yesterday, Kentucky Attorney General Daniel Cameron announced a single charge from the grand jury against only one of the three officers involved in her shooting, and even that was for shooting a wall, not Breonna Taylor. The other two will walk. And a community that has already waited six months for closure will just keep waiting.

Many are rightly pointing out that these cops should not avoid charges based on self-defense when they created the danger in the first place. Accordingly, whether the grand jury result makes sense under the criminal law will be hotly debated in the coming days. But even when there is substantial evidence of wrongdoing, police officers are almost never prosecuted, let alone convicted. And with each press conference announcing that an officer’s actions were justified, the public’s faith in the law — and in the prosecutors tasked with enforcing the law — erodes just a little bit more. Prosecutors often claim they are simply hamstrung by the law, which does confer a great deal of protection on police. But there are many actions a prosecutor can take to create lasting, systemic police accountability—if they want to maintain any credibility with the people they’re supposed to serve.

Prosecutors—both the local elected versions and Attorneys General at the state level—can and must do so much more. The work starts well before an officer causes harm.  The everyday working relationship between police and prosecutors is inherently conflicted; prosecutors rely on police for case leads and in-court testimony, and police need prosecutors to win cases and boost clearance rates.  (Sadly, trial wins and not public health outcomes are still the coin of the criminal justice realm.)  Prosecutors must institutionally separate themselves enough from police to judge them objectively.  This means refusing police union donations during their own elections.  It means mandatory reporting of cops to ethics investigators when the cops screw up.  It means putting a hard stop on lobbying in lockstep with police unions to thwart reform, as prosecutor associations so often do. 

Prosecutors who are serious about accountability should also lobby for efforts like civilian oversight of police, shrinking law enforcement—including their own offices—and reinvesting in communities.
Second, prosecutors till the ground for police violence when they ignore or actively cover up misconduct or corner-cutting in everyday cases. This happens all. The. Time. For example, right after a suspect is arrested, prosecutors have to decide whether to take the case forward or “screen” it out. A substantial number of those cases involve uncorroborated police testimony, manufactured defendant resistance, outright violence or coercion, or just plain uncertainty.  If prosecutors go along to get along, taking virtually all those cases forward (even if they drop them later), this validates predatory police tactics that ought to be discouraged. As that case moves forward, a prosecutor may also offer the defendant a deal to plead guilty to lesser charges, which then avoids judicial scrutiny of police misconduct. The prosecutor may also knowingly allow the officer to lie on the stand, a practice so common it’s got a nifty portmanteau: testilying. Don’t believe that these underhanded tactics occur? Consider that Louisville prosecutors offered Breonna’s ex-boyfriend, Jamarcus Glover, a supremely lenient plea deal if he would just implicate Breonna in an “organized crime syndicate.” This was a dirty trick to smear her name and bolster the cops’ story—and it only failed because Glover, heroically and against his own interest, turned down the deal.

These day-in, day-out violations of public trust are virtually impossible to catch, but help create the bond between police and prosecutor that makes independence so difficult. To stop it, elected prosecutors and legislators need to ratchet up the professional penalties for prosecutors who cover for their friends to the detriment of the community. And we need to create standalone legal proceedings—a sort of constitutional small claims court—for victims of police misconduct that don’t depend on the prosecutor to represent those victims.

Finally, when police do commit violence against the American people, prosecutors at the local, state, and federal levels must inflict far more fulsome, lasting accountability that is not limited to criminal prosecution.  Of course, the local prosecutor and maybe even the state AG, who all work directly with the offending cops, should be recused from any criminal investigation; this much is table stakes.  Any appointed, independent prosecutor should also consider foregoing a secret grand jury so the community can be confident that they made the strongest possible case.  (We are already seeing calls for AG Cameron to release the grand jury evidence in Breonna’s case.)

But then the state Attorney General or the US DOJ should open a mandatory civil rights investigation that results in both resignation and decertification of the individual officers plus systemic changes to the office. That settlement would also require the local prosecutors to put the officers on a standing, public list and commit not to call them to testify in any case going forward. Police chiefs and mayors often complain that union contracts and arbitration makes firing bad cops so hard. Prosecutors can and should do it for them. And they should do it regardless of whether a grand jury returns an indictment.

Of course, prosecutors won’t altruistically take on all these reforms voluntarily. These fundamental changes would make churning out convictions much more difficult, would strain their mutually beneficial relationship with the cops, and create more red tape. But that strain and that red tape is worth preventing the senseless loss of another Black life. The people marching in the streets can push both police and prosecutors to to conjure a vision of justice broader and deeper than criminal prosecution.  Breonna Taylor deserves it.  We all do.

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project

Half a century ago, in October 1970, I became the executive director of the ACLU. I had a wish list, and foremost on the list was the establishment of a Women’s Rights Project.
 
I had been involved in a few women’s rights cases in my previous post as director of the New York Civil Liberties Union. My wife, who was a young corporate executive at a time when not many women held such posts, encountered discrimination against women on a regular basis. Most importantly, a feminist movement had been reborn in the late 1960s, and I wanted the ACLU to be part of it and to contribute expertise in litigation. Though the era of the Warren Court had just ended, and our prospects for extending constitutional rights to those previously denied such protections were drastically curtailed, I thought the re-emergence of a feminist movement might be the chance we needed to succeed in promoting women’s rights.
 
The ACLU board readily endorsed the establishment of a Women’s Rights Project (WRP). The next hurdle was raising the funds for it. The ACLU had only recently established a tax-deductible entity that could receive foundation grants, and it took me a while to get funding.

When I got the funds we needed, I began a search for a director. I heard that the New Jersey ACLU had secured the volunteer assistance of a professor at Rutgers Law School who had done excellent work. Her name was Ruth Bader Ginsburg. I called her to arrange an interview.
 
Ruth impressed me when I met her, but what really captivated me was the quality of her written work. Her legal pleadings and briefs were powerfully argued and beautifully written, and the dominant theme that emerged from them was that women and men should not be limited by sexual stereotypes. Men could be nurturing parents and caregivers, women could be breadwinners, and both were entitled to equal treatment.
 
I offered Ruth the post of director of the Women’s Rights Project, but ran into some difficulty. Columbia Law School was intent on appointing a woman to be its first tenured female faculty member, and they had offered the post to Ruth. She wanted to accept.

Fortunately, I knew the dean of Columbia Law School, Michael Sovern, who subsequently became the president of the university. Mike had been the youngest full professor in the university’s history and became dean about the same time I became the executive director of the ACLU.
 
While I was still at NYCLU, Mike served on its board. He had played a leading role in equal rights litigation involving race discrimination, and shared my interest in seeing the courts deal with sex discrimination. We agreed to an arrangement allowing Ruth to take on both roles, as she wanted: Columbia Law School’s first female tenured professor and the founding director of the ACLU’s Women’s Rights Project. We shared her salary. With Dean Sovern’s support, Ruth was able to spend most of her time at the ACLU while extending Columbia Law School’s tradition of being foremost among the country’s law schools in fostering equal rights.
 
I also wanted to hire another lawyer to help launch the project. Ruth was already active in promoting women’s rights as a legal scholar, but she was not an activist in the emergent feminist movement. I wanted someone who would make sure WRP would be well connected to the movement. Also, at the outset, I was unsure of how much time Ruth would have to devote to her duties at Columbia. We ended up hiring Brenda Feigen, a well-known activist in the feminist movement, who became Ruth’s co-founder of WRP. As it turned out, I need not have worried about Ruth’s lack of credentials in the feminist movement. The activists soon discovered the groundbreaking impact of the litigation she led with the project.

One of the places where I sought funding for WRP was the Ford Foundation. Initially, this was a failure. The Ford Foundation rejected a number of proposals I submitted. When I went to see the foundation’s president, McGeorge Bundy, it went very badly. He yelled at me during most of our meeting. Bundy had been national security advisor under Presidents John F. Kennedy and Lyndon B. Johnson, and was a principal architect of the Vietnam War. He was angry with me because I had been on television defending the rights of those protesting against the war.
 
It turned out, however, that a couple of the foundation’s program officers at Ford, who were just starting to propose grants in the women’s rights field knew about Ruth’s groundbreaking litigation in the field, and they wanted to get involved. They helped convince Ford to make a grant to WRP. I was eager to accept the grant not only because of the support it would provide for WRP, but because it could open the door for Ford to support for other projects. But Ford imposed a condition: Women’s Rights Project could not support abortion rights. 

This posed a dilemma. The ACLU was already deeply involved in pursuing the right to an abortion and we intended to continue. On the other hand, I was reluctant to give up our breakthrough at Ford. I decided to establish a separate Reproductive Freedom Project to operate alongside WRP, funded by John D. Rockefeller III instead. I hired a young lawyer, Janet Benshoof (who recently passed) as director, and she and Ruth became close as Ruth advised her on litigation strategy, but did not directly take part in the abortion litigation. The Women’s Rights Project and the Reproductive Freedom Project remain powerhouses that are still fighting for gender equity and reproductive rights today.
 
In later years, I wondered whether this split had worked out serendipitously. If Ruth had been directly engaged in our abortion rights litigation, it might have been held against her in later years when President Carter nominated her to the U.S. Court of Appeals for the D.C. Circuit, or when President Clinton nominated her to the Supreme Court. In addition, Ruth already had enough on her plate challenging sex discrimination.

A not-so-secret weapon of Ruth’s was the unwavering support of her husband, Martin Ginsburg, who was outgoing while Ruth appeared shy and reserved. I later came to believe that her reputation for shyness was not wholly deserved — she spoke only after carefully thinking out what to add to a conversation. When Marty joined Ruth on visits to my home, he would comment knowledgeably on the wines I was serving. I regularly told others that Marty was the most supportive husband I ever met. Though he ran a highly lucrative law practice as a tax law specialist at a major New York law firm, Ruth’s career came first. When she was appointed to the D.C. Circuit, he quit his law practice and accepted a professorship at Georgetown University Law School. He did this because he wanted to ensure there would be no conflict of interest due to his law firm’s extensive list of clients. Marty lobbied hard, and successfully, for Ruth’s appointment to the Supreme Court.
 
Ruth was always intent on giving credit to those who came before her. The landmark case, Reed v. Reed, in which she persuaded the Supreme Court unanimously to apply the 14th Amendment’s guarantee of “equal protection of the law” to discrimination on the basis of sex, was an example. Though they played no part in writing her brief, Ruth identified two feminists on the ACLU board as co-counsel. One was the elderly and famously feisty Judge Dorothy Kenyon, who had been appointed a judge by New York City Mayor Fiorello LaGuardia, long before women were even considered for such posts. The other was Pauli Murray, a gay, Black feminist who was a member of the clergy and a formidable legal scholar. Pauli had long argued that the 14th Amendment should be invoked to challenge sex discrimination.
 
As has often been noted, a number of the plaintiffs in Ruth’s litigation were men. Among them was the husband of a woman in the Air Force, who was denied housing benefits equal to those provided to the wives of men in the Air Force. Another was a widower denied social security benefits equal to what a widow would have received and that would have enabled him to devote himself to raising his young child. These cases exemplified her concern with sexual stereotypes, which she believed harmed men as well as women. By carefully managing her litigation and building legal advances on the successive precedents that she won, Ruth ultimately persuaded the Supreme Court to set a standard of “heightened scrutiny” when considering sex discrimination.

I remember Ruth as a wonderful colleague. I enjoyed opportunities to take her to lunch. One lunch that stands out in my memory was when she had just returned from a trip to China with a delegation from the American Bar Association at the very end of the Cultural Revolution. For the previous decade, China had been closed to the rest of the world, and I was eager to hear from her about what had happened to law, the courts, legal defense, and legal education. I kept her at lunch for a good part of the afternoon. Many years later, when I was traveling regularly to China, I arranged for her to give a lecture on American civil liberties at Beijing University Law School.
 
I last saw Ruth at an event in Washington shortly before the pandemic shutdown. We were only able to speak briefly. In those few moments, she made clear to me how eager she was to survive until a new president could appoint her successor. Given the ravages of the multiple forms of cancer she endured, I think she survived as long as she did through sheer willpower. Though she lived a long, full life with great accomplishments, was able to enjoy her love of the arts, and had an extraordinary relationship with Martin Ginsburg, her greatest supporter, it is our misfortune that she is no longer with us. Her legacy will remain with us forever.

Aryeh Neier, Executive Director (former), ACLU

It is now well known that our country’s widespread use of money to determine someone’s freedom after arrest — a practice commonly referred to as cash or money bail — is harmful, unnecessary, and against the core principles of our Constitution. Over the past several years, a massive wave of political and legal action has taken aim at addressing the tremendous suffering and bad public policy embodied in our cash bail systems. Just this summer, “ending cash bail” was one of the agreed upon policies in the platform released by Bernie Sanders and Joe Biden. Jails are among the most dangerous clusters of COVID-19 transmission, and cause further spread in surrounding communities. The work of diverting people from unnecessary incarceration is thus all the more urgent.

While stakeholders across the ideological spectrum seem to care about addressing the evils of wealth-based pretrial jailing, it remains to be seen whether any of those efforts are actually working. Sadly, our recent study in the Georgia Law Review suggests we have a long way to go even after claiming reform victory.

Alongside two law professors, two computer science students, and a cadre of amazing student and community volunteers, I studied whether bail reform has worked in a state that has heralded numerous “bail reforms” over the past few years. In 2018, Georgia passed legislation aimed at improving fairness in misdemeanor cases, which included requiring authorities setting bail to consider a person’s finances. Later that year, the 11th Circuit Court of Appeals issued a ruling in a class action lawsuit challenging Georgia jurisdictions’ use of money bail to incarcerate people who are unable to pay to secure their freedom. The court found “presumptively constitutional” a system in which all arrestees, including those too poor to post bail, were guaranteed release from jail within 48 hours of arrest and provided individualized hearings with the assistance of a lawyer.

Our study examined whether the constitutional principles outlined by the 11th Circuit as well as the updated Georgia law were actually being followed in practice. Examining a representative sample of 51 Georgia counties through court observations, review of court records, interviews, and surveys of court and jail staff, we assessed each county’s compliance with legal mandates required by bail reform.

What we found was disheartening: Not one of the counties studied was in full compliance with the law, as none of them practiced all four of the legal requirements we studied. Most counties only satisfied one or two of the requirements, and many failed on all four:

1. Evaluation of the individual’s ability to pay when setting bail (48.7 percent of counties studied were in compliance)
2. Holding of an individualized bail hearing that evaluates a person’s finances within 48 hours of their arrest (41.3 percent)
3. Guaranteed release within 48 hours of arrest of a misdemeanor (8.3 percent)
4. Availability of public defender when bail is set (11.9 percent)

Among the 18 counties for which we tracked jail-inmate registries from May to November 2019, 36.7 percent of those arrested on new misdemeanor charges only, with no other holds, spent three days or more days in jail. The average jail time was 8.7 days.

Although the results suggest that, on the whole, Georgia courts are not adhering closely to either state or federal law, a handful of counties appear to be headed in the right direction. Many judges, sheriffs, and court administrators are aware of recent legal developments and are making serious efforts to eliminate unnecessary detention. On the whole, however, even those promising jurisdictions need to either provide their post-arrest processes more quickly, and/or take the ability-to-pay inquiry one step further to assure release for those who have not been able to post bail by the time of a hearing.

Our findings should be a wake-up call to everyone who cares about fairness and positive change in our criminal legal system, both in Georgia and across the country.

My colleagues working on issues of racial and criminal justice in Georgia note the significance of our findings, observing firsthand the disconnect between the law and practice in the context of bail reform.

“The ACLU of Georgia regularly receives reports about incarcerated people accused of misdemeanors who are stuck in jail because they cannot afford their bonds,” said Kosha Tucker, staff attorney with the ACLU of Georgia. “Many of these reports come from incarcerated people who are under the jurisdiction of local municipal courts, and this is particularly concerning because indigent defendants in municipal courts often lack access to counsel who could argue for their release on nonmonetary conditions.”

Of course, our study wasn’t perfect. In most places, pretrial justice suffers from a lack of robust data collection, and court proceedings are rarely recorded. Studying this issue is even harder in states like Georgia where the courts and jails are locally run. (To boot, Georgia has 159 distinct counties, each with their own criminal legal system.)

Even so, this undertaking — the first of its kind to our knowledge — has huge implications for the work of advocacy groups, including the ACLU. After all, we lobby for changes in the legislature and use the courts to correct injustice every day. While these are important levers of change, no one’s work is done until those changes are realized in the very places they most counted to begin with: courtrooms and communities where poor people and people of color are being subjected to cruel and unfair incarceration and removed from their families all while presumed innocent, every day.

As a deadly pandemic rages through the country, and jails in particular are dangerous hotspots, it’s of critical importance that reforms are followed, not ignored (and certainly not walked back). If local officials merely followed the existing law, we would have fewer people in jails and would lessen the spread of the pandemic. Indeed, one of the counties studied for our report, Clayton County, which was not providing all the protections required by law, is now the subject of an ACLU lawsuit for its failure to protect incarcerated people from COVID-19.

As the election approaches, those who care about fair process in the criminal legal system should ask candidates for sheriff’s offices and local judicial positions for their stances on cash bail and pretrial incarceration. These positions carry a tremendous amount of power in ensuring laws are implemented and progress is maintained. (And Georgians interested in preserving a fair upcoming election can volunteer with the local ACLU as poll workers.)

Read the full study “Boots and Bail on the Ground: Assessing the Implementation of Misdemeanor Bail Reforms in Georgia” in the University of Georgia Law Review here.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project