My job is to sue prisons, and I love my work. My colleagues and I work to ensure the basic human dignity to people our society has locked up. But it is, more often than not, extraordinarily frustrating. Our clients, the human beings locked away in our criminal justice system, live in dire conditions. They are warehoused. Their medical and mental health needs are ignored. They are subjected to extreme physical violence. Just seeing and hearing about it is painful. And change comes all too slowly.

At the ACLU, we take heart from the little victories. Just before we go to a prison to see our clients, the bathrooms in their housing units are finally cleaned, the people in the prisons are finally given coats for when they go outside, and they are finally sent out for the medical visit that was ordered months or years ago. Unfortunately, the systemic changes to ensure people’s most basic needs are met take much longer, and are often met with resistance from prison personnel and administrations that do not believe their job is to meet those basic needs.

This year has been different. Back in June 2022, following a decade of litigation, U.S. District Judge Roslyn Silver found in Jensen v. Thornell that conditions in solitary confinement in the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) violated the constitutional prohibition on cruel and unusual punishment. One year ago this week, she issued a sweeping injunction ordering ADCRR to bring the conditions of solitary confinement into compliance with the U.S. Constitution and basic standards of human decency.

Jensen v. Thornell

A sweeping injunction issued on April 7, 2023 requires the ADCRR to make “substantial” changes to staffing and conditions.

Source: American Civil Liberties Union

Over the past year, ADCRR has made a great deal of progress, including preventing many vulnerable people from being subjected to the devastating effects that accompany solitary confinement. The department has also dramatically lowered the number of people in extremely long-term isolation, and has – to our knowledge – complied with the court’s order prohibiting any child under 18 from being placed in solitary confinement for any length of time.

Additionally, at the time of the order, there were 1,071 people housed in “maximum custody,” ADCRR’s euphemism for long-term solitary confinement. According to ADCRR, at least 200 people had been in maximum custody for a year or more, and six people had been in for over a decade. Today, there are just over 200 people in maximum custody – a reduction of more than 80 percent. Half the people who had been held in maximum custody for over a decade are no longer in solitary confinement.

The reduction in the solitary confinement population was so great that one facility, Arizona’s original “supermax” facility, was closed entirely in November 2023. This supermax facility had a reported capacity of 2,440 people, most of whom were held in solitary confinement.

There have also been significant improvements in conditions. People held in solitary confinement now receive three meals a day most days, whereas previously they received only two. In solitary confinement units where an electronic system has been installed to track movements, incarcerated people report that there is no longer a problem of being left in the shower for hours on end, as used to happen with some regularity. People are offered cleaning supplies and the housing units are treated by exterminators.

While the improvements – particularly the removal of people from long-term solitary confinement – are laudable, much remains to be done. The court ordered that one vulnerable group – people with serious mental illness – be kept out of solitary confinement altogether. There are housing units for people with serious mental illness, which ADCRR claims are not solitary confinement units. But the people inside report that they are locked in their cells more hours per day than people in the housing units ADCRR considers solitary confinement. Similarly, there is a prison in which people with dementia are held and are rarely let out of their cells, let alone allowed to go outside. There are still three people who have been in solitary confinement for over a decade. And many people remain in solitary confinement because either they themselves or ADCRR have decided that ADCRR cannot keep them safe in general population.

The proverbial low-hanging fruit has been harvested. The hard work of further reducing – and ultimately eliminating – solitary confinement in Arizona remains. It appears the ADCRR administration has the will to take on this difficult labor in pursuit of human dignity. This spring, one year into implementation of the Jensen injunction, I have hope.

The CIA is so known for its unabashed secrecy that, when it joined Twitter in 2014, its first tweet was: “We can neither confirm nor deny that this is our first tweet.” This non-response response is known as a “Glomar,” and while the intelligence community likes to poke fun at how often they invoke it, this inane phrase has allowed the CIA to skirt meaningful transparency and accountability for decades.

In 1966, over the Johnson administration’s opposition, Congress enacted the Freedom of Information Act (FOIA), giving all of us the right to ask the government for documents and have the government respond, as it believed such access was a prerequisite to a functioning democracy. Soon after FOIA was passed, a Soviet nuclear submarine went missing somewhere in the Pacific Ocean, and the CIA took an early opportunity to undermine this new law.

Connell v. CIA – FOIA Lawsuit Seeking Records About CIA “Operational Control” Over a Detention Facility at Guantánamo Bay

The CIA has refused to disclose whether it has records about its operational control over Camp VII, a detention facility at Guantánamo Bay. Given...

Source: American Civil Liberties Union

The Soviet Union and the United States raced to locate the missing sub and extract the intelligence likely inside. But first, the U.S. needed to build a ship that could actually extract the sub once it was found — and the government wanted no one to know about it. The CIA contracted this mission out to Howard Hughes, a billionaire with little concern for government transparency, who told the media that the purpose of the ship (named the Hughes Glomar Explorer) was to extract manganese nodules from the ocean floor. Six years later, in 1974, the extraction began. Unfortunately for the U.S., the extracted sub broke into pieces and what the government most wanted was lost: the ship’s code machine and two nuclear missiles. Details of this secret, bungled extraction started to leak, inaccuracies and half-truths swirled, and people rushed to file FOIA requests hoping to answer the many outstanding questions.

Worried about the geopolitical consequences, and obsessed with controlling information about its activities, the CIA came up with a novel way to keep the mission secret without telling an all-out lie. The agency decided it would refuse to confirm or deny whether records about the Glomar Explorer’s mission existed, despite the mounting public evidence that they did. And so the “Glomar response” was born. And, in the case of the Glomar Explorer, it worked: Historians claim many documents remain hidden to this day.

Extraordinary Rendition

The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the...

Source: American Civil Liberties Union

Unfortunately, in the decades since the submarine debacle, and especially in the post-9/11 era, we’ve repeatedly seen the CIA use the Glomar response to evade responsibility. They have used it to claim they could not say whether they had information about the government’s use of drones to carry out lethal strikes overseas, and when asked about legal justifications for the verified extrajudicial killing of three U.S. citizens. They’ve even used it to side-step questions about whether they’ve spied on Congress.

We’re even seeing state agencies attempt to use the CIA’s non-response to circumvent local public records requests. For example, in 2017, the New York Civil Liberties Union filed a public records request seeking documents regarding the NYPD’s monitoring of protesters’ social media activity and cell phones. The NYPD initially responded with a blanket statement that it could “neither confirm nor deny” whether such records existed, saying that even revealing the existence of records could harm national security. A New York court rejected this argument and ordered the NYPD to respond to the request in full.

And the CIA’s penchant for secrecy continues to expand, with the agency using Glomar to obstruct attempts to obtain records that would publicly shine a light on the agency’s failures and abuse, even when that abuse is well documented by the CIA itself and other sources.

Take, for instance, the CIA’s torture program. After the 9/11 attacks, the agency abducted dozens of Muslim men and boys, held them incommunicado, brutally tortured them, and denied the due process in sites around the globe. Once the program was exposed, 14 of the government’s “high-value detainees” were taken to the U.S. military prison at Guantánamo Bay, and detained at a notorious facility known as “Camp VII.” Attorney James G. Connell III, who represents Ammar al Baluchi, one of the men subjected to the CIA torture program and sent to Camp VII, filed a FOIA request with the CIA seeking information about the agency’s “operational control” over the facility. That “operational control” is hardly a secret: it was highlighted in the Senate Torture Report and in CIA and military commissions documents. But instead of processing Mr. Connell’s request, the agency issued what it called a “partial” Glomar response, producing three records, withholding a fourth in its entirety, and refusing to confirm or deny whether any other responsive records exist.

Given the extensive public record about the CIA’s connection to Camp VII, its refusal to acknowledge that it has responsive records both violates the law and defies common sense. That’s why we’re representing Mr. Connell in his appeal in federal court. To uphold its response, the CIA must demonstrate that it is logical or plausible that it has no responsive records in light of the entire record. That’s simply not possible here. We know this because there is an overwhelming amount of public evidence about Camp VII — from the Senate Torture Report, to court documents from the Guantánamo proceedings, to other documents the CIA itself released — that has left no doubt of CIA involvement. And yet, the CIA continues to avoid its legal obligations under FOIA through gaslighting and Glomar.

Connell v. CIA offers a real chance to not only break the CIA’s bad habit of using Glomar to evade transparency and accountability, but also issue a warning to other government agencies that hope to follow in the CIA’s footsteps by leaning into excessive secrecy.

Cities all across the United States have been increasingly passing laws that punish people who are forced to sleep outside each night due a lack of available shelter and extreme housing shortages. The Supreme Court will soon decide if doing so violates the Eighth Amendment’s prohibition on cruel and unusual punishment, in a case that arose out of southern Oregon and is arguably the most significant case on homelessness in decades. The ACLU’s Scout Katovich explains how the case made its way to the highest court in the U.S. and breaks down the stakes – both for the hundreds of thousands of people who are unhoused on any given night and for critical constitutional protections.

Katie Hoeppner: Can you tell us how this lawsuit came about and how it got to the Supreme Court?

Scout Katovich: Sure. The case comes out of Grants Pass, Oregon, which, like many cities in America, is facing a shortage of affordable housing that has led to increased homelessness. In 2019, there were at least 600 unhoused people in the city. The city’s response was to pass a set of laws making it illegal to sleep in public anywhere, at any time. The city called some of these laws “camping bans,” but they weren’t really about banning tents or what we usually think of as camping. Instead, they prohibited sleeping outside while using anything that could be considered “bedding,” even just a thin blanket to keep from freezing at night, or a rolled up t-shirt used as a pillow.

The punishment for this “crime” was hundreds of dollars in fines, which could quickly escalate to a sentence of 30-days in jail. Grants Pass started fining and arresting unhoused people under these laws, even though the city had zero accessible shelters for adults. So, every night, hundreds of people had no choice but to sleep outside and break these laws. In essence, they were being punished for the unavoidable human need to sleep.

A group of unhoused residents of Grants Pass challenged the enforcement of these laws and a federal court ruled in their favor, holding that the city’s enforcement of these “anti-sleeping” and “anti-camping” laws against unhoused residents with no access to shelter violated the U.S. Constitution’s prohibition on cruel and unusual punishments. On appeal, the Ninth Circuit agreed with the lower court. Now that decision is being reviewed by the Supreme Court, and the justices will hear oral arguments in the case on April 22.

KH: A lot of cities across the country have similar bans. Can you tell us how the Supreme Court’s ruling could affect the large number of people all over the country who don’t have any choice but to sleep outside at night?

SK: That’s exactly right – we’ve seen a troubling uptick in these kinds of unconstitutional sleeping and camping bans all across the U.S. One study found that over half of the 187 cities it surveyed have laws restricting sleeping in public and almost three-fourths have laws restricting camping. The Supreme Court decision in Grants Pass will determine whether cities can use laws like this to punish unhoused people with no access to shelter, just for sleeping outside with rudimentary protections from the elements. This ruling could affect a huge number of people. With over 600,000 unhoused people and a shortfall of at least 200,000 shelter beds nationwide, hundreds of thousands of people have no choice but to sleep in public every night.

If the Supreme Court rules for Grants Pass, cities could be empowered to treat all of those people as “criminals.”

KH: The stakes are clearly enormous. What is the ACLU’s involvement in this case?

SK: Absolutely, this is a really important case, both for unhoused people and for the constitutional principles at issue. We felt strongly that the ACLU should weigh in at the Supreme Court, in part because it’s part of our mission to protect constitutional rights, including the Eighth Amendment right to be free from cruel and unusual punishments. But we’re also deeply invested in protecting the rights of unhoused people and, in fact, the ACLU and its affiliates have brought lawsuits similar to the one before the Supreme Court, challenging enforcement of sleeping and camping bans in cities across the country, including Albuquerque, Honolulu, Phoenix, San Francisco, and Boulder. In this Supreme Court case, the ACLU and 19 of its affiliates submitted a “friend of the court” brief urging the Supreme Court to uphold the Ninth Circuit’s ruling that punishing unhoused people without access to shelter for sleeping in public violates the Eighth Amendment’s prohibition on cruel and unusual punishments.

KH: Can you explain why the Eighth Amendment is such an important focus of the brief and lawsuit?

SK: Yes, our brief explains that the Eighth Amendment’s original meaning and more than a century of Supreme Court cases make clear that the Cruel and Unusual Punishments Clause bars governments from punishing people in ways that are disproportionate to the crime. It may sound a little wonky, but it boils down to the idea that the Constitution places some checks on how the government can punish crime. Punishment must be appropriate to the seriousness of the crime and should only be as severe as is necessary to promote legitimate goals of our criminal legal system, like rehabilitation and deterrence. Applying these well-established principles to the Grants Pass case, any punishment for the “crime” of sleeping in public when you have no other choice is unconstitutionally excessive.

KH: Can you say how the Grants Pass case fits within the ACLU’s other work, for those who may not immediately think of homelessness as an ACLU issue?

SK: Well, first and foremost, the ACLU is committed to protecting the civil rights and liberties of all, and especially the most marginalized members of our society, which certainly includes unhoused people. And our society’s approach to homelessness has made it a criminal justice issue and an equality issue. When cities like Grants Pass choose to respond to homelessness with police and jails, it fuels mass incarceration, keeping people in an endless cycle of poverty, incarceration, and institutionalization. Rather than confront the decades of policy failures that have led to a dearth of safe and affordable housing, and access to healthcare, and other services, politicians and government officials blame individuals for our society’s failings and use criminal punishment to try to push people out of sight.

And that’s where the ACLU comes in. We can’t stand by and let governments choose ineffective “solutions” that trample on the rights and dignity of our neighbors. This is also an ACLU issue because homelessness intersects with many marginalized identities, compounding discrimination and the disproportionate harms that our criminal legal system inflicts on marginalized communities.

KH: That’s a really important point about compounding discrimination…

SK: Yes, people with disabilities, LGBTQ people, and people of color, especially Black and indigenous people, are far more likely to experience homelessness because of systemic inequality and discrimination. Their overrepresentation in both the criminal legal system and among the unhoused creates a vicious feedback loop – unhoused people have an increased risk of arrest and incarceration and, in turn, a jail or prison stay often leaves people without housing and employment, keeping them in homelessness. The ACLU has long been invested in ending mass incarceration and addressing inequities in the criminal legal system, and it’s clear that our society’s approach to homelessness is exacerbating both.

KH: You mentioned that elected officials “choose” the punitive approach. And I think that’s important to underline, because they often act as though their hands are tied. Can you say more about what elected leaders could actually do to meaningfully address homelessness?

SK: There’s so much they could be doing. But first, I just want to emphasize that the punitive approaches they are taking only make the situation worse. Criminal legal system involvement and homelessness are part of a vicious cycle. Arrests, citations, and jail or prison time don’t solve homelessness, they exacerbate it. These carceral approaches also cost taxpayers a lot of money. In 2015, Los Angeles spent $50 million policing anti-homeless laws and, in Seattle, enforcing just one of its “quality of life” laws cost the city $2.3 million over just five years. So we really need to call on elected officials to stop passing these laws and adopting policies that take this misguided approach. Instead, cities and states need to focus on policies that actually address the root causes of homelessness.

KH: I wish more elected leaders would show this courage. What specifically would address those root causes?

SK: First and foremost, they need to focus on investing in safe, affordable housing. The link between homelessness and unaffordable housing could not be clearer: the areas with the most unsheltered homelessness are also the most expensive housing markets. Addressing this is a long-term commitment, but it will pay off. There’s a lot of research demonstrating that providing permanent, affordable housing, coupled with accessible services, successfully ends chronic homelessness and also reduces arrests and incarceration. We also need to increase access to wrap-around supportive services, and voluntary mental health and substance use treatment, and adopt non-law enforcement responses to situations stemming from mental health issues and poverty. There’s strong evidence that these non-carceral approaches are cost-effective, reduce contact with the criminal legal system, and increase chances of obtaining housing and employment.

KH: Is there anything else you think people should know?

SK: Yes, I think it’s really important to underscore that homelessness is not a nuisance, it’s a symptom of our collective failure to invest in our communities. It’s uncomfortable for sheltered people to have to confront this failure, but the answer to that discomfort is not to temporarily push people out of sight through criminal punishments. Addressing homelessness in humane and effective ways helps everyone. So many of us are just one bad circumstance away from losing our homes.

Housing costs have skyrocketed while wages have not kept pace. We are also facing extreme housing shortages. As a result, there’s nowhere in the country where a person working a full-time minimum-wage job can afford even a modest two-bedroom apartment. So protecting unhoused people’s rights and adopting effective approaches to reducing and preventing homelessness is something we should all be invested in.