During the COVID-19 pandemic, jails and prisons have become infection hot spots due to notoriously unhygienic conditions and the inability to socially distance. Overcrowded facilities — a symptom of our longstanding national addiction to mass incarceration — are creating an unconstitutional health crisis. Advocates are calling upon judges across the country to release medically vulnerable people from prison and jails. But despite acknowledgment of the urgency from Attorney General William Barr, state officials, and judges, very little has actually been done to release people from prisons in particular.
 
While advocates have succeeded in securing the release of some people, particularly from jails, many judges have dismissed release as a viable option for people accused or convicted of violent charges. “Many of [the incarcerated people] are violent offenders,” wrote District Judge Robert Dow Jr. in a recent opinion, in a case challenging dangerous conditions in Illinois Department of Corrections’ facilities. “Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare … The question is not simply what is best for the inmates — the public has vital interests at stake, too.”
 
The message behind this and similar rulings is that the rights and safety of incarcerated people are secondary to the public’s comfort and safety during a pandemic, particularly when it comes to incarcerated people accused or convicted of violent charges. Even if the conditions inside prisons and jails indisputably endanger the lives of those incarcerated, these rulings justify their continued incarceration by alleging their release is too dangerous for the community. While concerns for public safety are understandable, in this instance they are unfounded. This is a cowardly and dangerous position, which ultimately puts many more lives at risk.
 
First, the problems courts are imagining with mass release just don’t exist when you look at the data. The people we’re asking judges to release are either elderly or have serious medical conditions. A subgroup of these people are in for “violent” offenses, which can range from murder to more benign actions like failing a urine test repeatedly. Because these people have been incarcerated for such a long time, much of their sentences have already been served. Further, data shows that most people age out of “violent crime” and older people are least likely to re-offend, making draconian sentences unnecessary and counterproductive, even in non-pandemic times.  
 
For people released pretrial on felony charges, less than two percent are ever re-arrested for a violent felony while awaiting trial. There is simply no statistically significant evidence that the medically vulnerable jail and prison population poses a safety or flight risk. The risk of incarcerated people catching COVID-19 and getting severely ill or dying, on the other hand, is quite high and has been well documented.
 
Second, it’s crucial to remember that people accused or convicted of violent crimes are just that: people. They have the same inalienable rights that all human beings are entitled to. Advocates should not have to respond with “the risks are not that bad” arguments. The fearmongering and repeated cries for law and order are the same rhetoric that created the mass incarceration crisis in the first place. If we are to truly address it, and prevent senseless, preventable death from this pandemic, we must go beyond advocating for nonviolent, low-level offenders.
 
Unfortunately, this necessary work is undermined by the fact that many criminal justice reform efforts focus on reducing punishments for low-level crimes, and avoid addressing more serious charges. For example, when picking plaintiffs to represent in a class action, impact litigators — including those at the ACLU — often avoid choosing clients with violent charges or convictions so that conservative judges will be more comfortable granting relief.  
 
When we design our arguments to appeal to the “tough on crime” narrative, we reinforce the idea that people accused or convicted of violent crimes are somehow less deserving of mercy. We risk building reforms around an exclusionary narrative that may hurt the movement in the long run and make it more difficult to go back later and seek justice for those we left behind. Sometimes, an incremental approach is necessary to get judges or the public more comfortable with alternatives to imprisonment. But until we stop relying on caging people as a response to violence, the U.S. will continue to have the highest incarceration rate in the world.
 
We need to challenge the “law and order” rhetoric that drove mass incarceration in the first place. This starts by unpacking how we define concepts like “danger,” “criminal,” and “violence.” Many studies have shown that Black men receive harsher charges, especially when the victim is white. This means that what society chooses to prosecute as violent is political and heavily influenced by race. Standard definitions of what and who we consider dangerous are not natural or self-evident; they are made.
 
For medically vulnerable people in jails and prisons, the courts’ concept of danger is irreparably undermining both health and safety by putting them, prison staff, and the general public at risk. That’s why the ACLU is asking the courts to release those most in harms’ way from infection. Judges do not have to overturn someone’s sentence or free them without obligations prior to trial. For people serving sentences, judges can let them continue to serve their time in home confinement or another appropriate setting until the pandemic has passed. For people awaiting trial, judges can order reporting requirements or more restrictive measures like home confinement.
 
In either case, underlying allegations or offenses should not guide courts’ decisions on how to protect the public. The burden has to be on the government to show with compelling evidence that someone is a credible threat of flight or violence, so much so that this threat outweighs the risk of severe illness or death that comes with continued incarceration.
 
Fortunately, some courts have bucked the trend and ordered the government to prioritize medically vulnerable people for review for home confinement, including those whose primary or prior offense was classified as violent. But this is not enough. More judges need to reject the unsubstantiated and racially charged cries for harsh punishment. Further, communities must demand that other actors — law enforcement, governors, and prosecutors — expand their vision beyond the “low hanging fruit” of reforms that prioritize the rights of a few, while leaving many others behind. Genuine reform will require us all to rethink how we address serious crimes and question whether incarceration is the best solution, rather than a more holistic economic and political approach.
 
April Rodriguez, Paralegal, ACLU Criminal Law Reform Project

In a landmark win for LGBTQ people, the Supreme Court today ruled that firing employees because of their sexual orientation or gender identity is sex discrimination that violates federal law. Today’s decision clarifies for the first time that LGBTQ people are protected from employment discrimination from coast to coast, including in states and cities that have no express protection for LGBTQ people in their own laws.  

While this ruling is a groundbreaking advance for LGBTQ people, there are still significant gaps in federal civil rights law that Congress must fill by passing the Equality Act. 

Today’s ruling came in three cases raising related issues. Harris Funeral Homes, Inc. v. EEOC and Aimee Stephens, involved Aimee Stephens, who worked for six years as a funeral director at a funeral home in Detroit. Her boss knew her as a man, but Aimee knew since she was little that she was female. After decades of hiding who she really was, Aimee realized she had to come out to the world as her true self or she couldn’t go on living. Gathering enormous courage, Aimee told her co-workers and her boss that she was a woman. Her co-workers didn’t have a problem, but her boss fired her.  

Don Zarda was the plaintiff in another of the cases decided today, Altitude Express, Inc. v. Zarda. Don was a sky diver who found his dream job teaching sky diving on Long Island, New York. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. While preparing for a jump, Don told a female customer that he was gay in an effort to make her more comfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer. Heterosexual people don’t get fired for telling people they’re straight, so Don understood this was discrimination.  

The third case was brought by Gerald Bostock, who was fired from his job as a social worker for at-risk youth after his employer learned he was gay.  

All three workers sued, asserting that it was sex discrimination to fire them for being gay or transgender. The Supreme Court agreed, holding that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Indeed, it’s clear that each employee’s sex was central to the reason they were fired. If Don Zarda or Gerald Bostock had been women attracted to men, instead of men attracted to men, they wouldn’t have been fired. And there is no way to understand Harris Funeral Homes’ decision to fire Aimee without talking about her sex and her decision to transition her gender.  What else could this be other than a decision based on her sex?  

But even with this victory, our work is not done. Today’s decision should mean that LGBTQ people are protected from discrimination not only in employment, but in every context under federal law where sex discrimination is prohibited. In addition to employment, federal laws against sex discrimination cover housing, education, health care, jury service, and credit.  But there are important contexts where sex discrimination is still legal under federal law: businesses open to the public and recipients of federal grants, like soup kitchens and drug treatment programs. The Equality Act would plug those holes and protect LGBTQ people as well as all women from these kinds of discrimination. It would also update the range of businesses covered under the federal civil rights law so that forms of discrimination like racial profiling in stores and by ride-sharing services become illegal.  

Tragically, neither Aimee nor Don lived to see the decisions from the Supreme Court in their landmark cases. Aimee died last month from kidney failure that was exacerbated by her loss of health insurance when she was fired because she was transgender. Don died several years ago in a sky-diving accident.  

Today is not just a day to celebrate progress for LGBTQ people, it’s a day to thank Aimee, Don, and Gerald for putting themselves forward through these cases in order to help millions of people all across the country. And it’s a day to thank Aimee and Don’s families for continuing their cases in their honor. Without heroes like them, the protections in our legal system would not work.  

It’s also a day to tell Congress to finish this work, update the Civil Rights Act, and ensure comprehensive anti-discrimination protections for all of us nationwide.

James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & HIV Project

As a former Hill staffer, I know how the sausage gets made: the backroom deals, the pet projects, and the extreme partisanship. Our current moment requires far more than the ego, moderation, and compromise that is typically reflected in federal legislation. This country’s recognition — finally — of the devastation and destruction that comes from the over-policing and over-criminalization of Black bodies and communities warrants real, meaningful change. The acknowledgment that Black Lives Matter — finally — demands bold and visionary leadership at the national level.

That audacious vision is divestment. We must stop investing in racist and brutal policing systems. Instead, we must start resourcing the Black and Brown communities that have been harmed by these “law and order” institutions. Elected officials must dramatically reduce law enforcement budgets and put that savings into systems that could enfranchise Black and Brown people — housing, education, employment, and health care. And providing full access to these segments of our society means removing police from them. School discipline, mental health crises, and homelessness should not be met with a police response.

Divesting from police must happen at all levels of government. At the federal level, divestment looks like an end to the Department of Defense’s 1033 program, which gives law enforcement military weapons and equipment that are used against communities and protestors. It is an end to COPS grants that put police in schools and fuel the school to prison pipeline. Divestment is prohibiting Byrne JAG dollars from being used to continue low-level arrests, the failed drug war, and the destruction of Black and Brown communities. These dollars can and need to be better spent.

We know what policies and practices will not work because we have been here before. Michael Brown. Eric Garner. Breonna Taylor. George Floyd. The list of names does not stop here. Their lives deserve more than hashtags and slogans. They deserve much more than what elected officials have done to date. Members of Congress cannot continue to throw taxpayer money at another commission or study to determine the failings of law enforcement. Federal dollars cannot support more training, more technical assistance, more “checking the box” in the name of reforming the police.

The federal government must invest in state and local communities differently. It must get out of the business of funding arrests and incarceration. And in the limited instances in which there would be law enforcement and community encounters, there must be measures to protect against police violence and ensure accountability when there is misconduct. Congress must model a national use of force standard that makes deadly force a rare, last resort. This respect for the sanctity of life must also be reflected in federal laws that prohibit the use of chokeholds and carotid holds. And if these laws are violated, there must be transparent and certain policies with which to hold police responsible.   

As we mourn and protest the Black lives lost, 21st Century policing should look dramatically different than the current status quo. If federal lawmakers are truly up for taking on the country’s entrenched, racist, and violent policing systems, born out of slave patrols, they have the vocal and organized backing of constituents to get this done. Now is not the time to dust off old bills and offer them as the way forward. Now is the time for divestment.

Kanya Bennett, Senior Legislative Counsel, ACLU Washington Legislative Office