As COVID-19 spreads across the United States, and as more public and private actors take drastic measures to combat this pandemic, it is vital that police, prosecutors, judges, parole officers, and governors also respond immediately by reducing the footprint of the criminal legal system.
 
Public health experts recognize the importance of downsizing jails and prisons as part of the COVID-19 response efforts. Millions of people in prisons and jails eat, sleep, shower, and live in close contact with other people, creating perfect breeding grounds for COVID-19.
 
In response, public health experts have encouraged stakeholders in the criminal legal system to minimize the number of people entering the system in the first place, while also releasing individuals already in prisons and jails who are most vulnerable to the virus.
 
There are about 10 million admissions each year into our nation’s jails, with 650,000 people incarcerated in jails on any given day. Some are in jail because they are serving a sentence of less than a year, but most are incarcerated in jails while they are awaiting their trial, many because they cannot afford cash bail. They can remain incarcerated for weeks, months, or even years, even though they have not been convicted of a crime. During this time, local jails become incubators for COVID-19 because of their confined space and generally poor sanitation.
 
One of the best ways to stop the spread of COVID-19 in jails is to decrease the number of people entering the system. This can be done without compromising public safety, while increasing public health.
 
Police should limit the number of people who are arrested and then detained in jails, even if just for a short time, preventing people from coming in close proximity to other people or in spaces where maintaining hygiene becomes difficult. Police should stop arresting people for low-level offenses, and in many other circumstances can issue citations or desk appearance tickets in lieu of arrest so that people can return home without ever being booked. This will help balance the public safety justifications for arrest with the overwhelming public health concerns presented by coronavirus, and limit the risk of bringing someone who may have the virus into a station and potentially infecting other personnel or first responders.
 
Prosecutors can also use their immense discretion to limit the number of people who are held in jails or other confined facilities by drastically reducing their requests for pretrial detention and carceral-based sentences. Prosecutors should avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. With a special focus on populations who the Centers for Disease Control has identified as particularly vulnerable, prosecutors should also institute a review-and-release protocol in cases which bail was already sought and the person is currently detained.
 
But the public health response cannot end in jails — it must also include our nation’s prisons, where 1.6 million people live. Reducing the number of people who are currently incarcerated will limit the burdens people face due to incarceration or supervision that place them at elevated risk of being affected by the coronavirus pandemic.
 
Probation and parole agents as well as parole boards must exercise their authority to limit the number of people who are incarcerated or who are forced into public spaces. Agents should cease in-person check-ins to accommodate the need for social distancing, and should allow check-ins to occur by voice or video call. Where those technologies are not accessible to a person under supervision, minimize or temporarily suspend check-in requirements. Additionally, agents should suspend enforcement of any mobility-restricting supervision conditions that impede a person’s ability to seek medical care or to support loved ones who may have COVID-19. Further, limit the number of people being incarcerated by suspending detainers and incarceration for technical (crimeless) rule violations.
 
Finally, governors have a large role to play in the public health response. They have a uniquely powerful ability to stop the spread of COVID-19 and limit the harm it inflicts on communities by decreasing incarcerated populations and creating a culture in which transparency, safety, and the health of all people are the paramount concerns.
 
First and foremost, governors should grant commutations to anyone identified by the CDC as particularly vulnerable and whose sentence would end in the next two years. They should also consider commuting all sentences that would end in the next year, and for anyone currently being held on a technical (crimeless) supervision violation.
 
Importantly, governors should mandate that sheriffs who process these releases coordinate with local service providers and public health experts so that people who may not be able to return home have a safe, accessible place to be that is also close to medical facilities and services. Governors should consider issuing executive orders that seek to achieve these goals, particularly where local system actors are awaiting that guidance.
 
The good news is that some jurisdictions are beginning to take action. San Francisco and Cuyahoga County in Ohio have begun to safely release people from jail due to concerns about coronavirus spreading through the jails. Moreover, 31 prosecutors representing 17 million people have called for the downsizing of jails and prisons as part of the response to COVID-19, including adopting cite and release policies for police, releasing people who are held because they can’t afford cash bail, and reducing immigration detention.
 
One of the best ways to minimize the inevitable spread of COVID-19 in jails and prisons is to decrease the amount of people within the system. Now is the time for bold actions by police, prosecutors, sheriffs, parole officers, and governors to protect people during this public health crisis.
 
Udi Ofer, Director, Justice Division, National Political and Advocacy Department, ACLU

U.S. Customs and Border Protection and the Transportation Security Administration are putting us on an extraordinarily dangerous path toward the normalization of face surveillance. But because key facts about this surveillance are still secret, the public lacks the information it needs to hold these agencies to account. We’re suing to bring some much-needed transparency.

Over the past few years, CBP and the TSA have dramatically expanded their use of facial recognition technology at the airport and other U.S. ports of entry. As of June 2019, CBP had scanned the faces of more than 20 million travelers entering and exiting the country. Several major airlines, including Delta, JetBlue, and United Airlines, have already partnered with CBP to build this surveillance infrastructure, and more than 20 other airlines and airports have committed to using CBP’s face-matching technology. The TSA has also partnered with CBP on face surveillance initiatives, with plans to further expand face surveillance to domestic travelers.

Unlike other forms of identity verification, facial recognition technology can enable undetectable, persistent government surveillance on a massive scale. As this technology becomes increasingly widespread, the government can use it to grab unprecedented power to track individuals’ movements and associations, posing grave risks to privacy and civil liberties.

When such a technology is placed in the hands of agencies like CBP and the TSA — which have been caught tracking and spying on journalists, subjecting innocent travelers to excessive and humiliating searches, and targeting and interrogating individuals because of their national origin, religious beliefs, or political views — we should all be concerned. And when those agencies stonewall our requests for information about how their agents are tracking and monitoring everyone’s faces, there is even more reason for alarm.

That’s why today we and the New York Civil Liberties Union filed a lawsuit asking a federal court to order the Department of Homeland Security, CBP, TSA, and ICE to turn over records about the implementation of face surveillance at airports, and their plans to subject travelers to this technology in the future. Our lawsuit seeks to make public the government’s contracts with airlines, airports, and other entities pertaining to the use of face recognition at the airport and the border; policies and procedures concerning the acquisition, processing, and retention of our biometric information; and analyses of the effectiveness of facial recognition technology.

The little we do know about the government’s plans for face surveillance at airports is deeply disturbing.

While CBP today claims American citizens have the right to opt out of its face surveillance system — a claim that doesn’t always hold — DHS recently floated the possibility of mandating face surveillance on all U.S. citizens traveling internationally. After members of Congress and civil liberties groups sounded the alarm, the agency quickly retreated. The full set of reasons for this reversal, however, remain unclear, and the government has left open the possibility that it will in the future make face surveillance mandatory for U.S. citizens entering and exiting the country. Moreover, non-citizens are currently unable to opt out of CBP’s face surveillance — leaving the Trump administration with yet another tool for targeting, harassing, and violating the rights of non-citizens.

We should also be concerned about mission creep. If this technology is normalized at the airport, it’s only a matter of time before the government cites its use at airports as a basis for deploying it elsewhere.

Another problem is the technology itself. Several recent studies have shown that facial recognition technology results in a higher rate of false identifications for people of color. For example, a December 2019 report by the National Institute of Standards and Technology found a higher rate of incorrect facial matches for photos of Black and Asian people, relative to white people. One false match can lead to missed flights, lengthy interrogations, tense immigration enforcement encounters, or worse.

But even if facial recognition technology worked, its use at airports is a dangerous step toward its further deployment in society at large and raises profound civil liberties concerns. The public urgently needs more information about how the government and airlines are using this information, what privacy protections exist, and the extent to which CBP’s and TSA’s use of the technology discriminates on the basis of race or other characteristics.

That we even need to go to court to pry out this information further demonstrates why lawmakers urgently need to halt law- and immigration-enforcement use of this technology. There can be no meaningful oversight or accountability with such excessive, undemocratic secrecy.

Ashley Gorski, Staff Attorney, ACLU National Security Project