The ACLU and the Fight For Our Constitution

When it was confirmed that the presidential nominee whose campaign promises snuffed the Constitution had indeed been elected, ACLU donations and new memberships suddenly poured in.

When President Trump was sworn in, and that day the ACLU filed a Freedom of Information Act request for documents regarding business conflicts of interest and violations of the Emoluments Clause, the donations and new memberships surged.

When Trump promptly started enacting his campaign promises including the Muslim ban and the ACLU filed its constitutional challenge, the donations and new memberships crescendoed.

Now, with membership tripled to 1.2 million and over $80 million in new online contributions, the ACLU is reinforcing its state affiliates, hiring new litigators/advocacy professionals/support staff and expanding office space to accommodate them.

National is also strengthening the membership database system and launching a grassroots mobilization plan. As always, the bulk of the money will go to program — the ACLU ratio is 86% program and 14% management including fund-raising.

The ACLU has lawsuits in the works to challenge attempts to deport millions of undocumented immigrants. Other suits will confront discrimination by federal employees and agencies targeting LGBT equality and reproductive rights under the color of religious freedom. The ACLU stands vigilant and primed to fight any violation of the liberties and rights guaranteed by our Constitution.

As a vital addition to sustained litigation, the ACLU is constructing a nationwide platform for grassroots mobilization to oppose Trump’s attacks on civil liberties. The program will enlist and engage members in all affiliates to partner with national in lobbying activities, town hall advocacy, acts of organized protest, and other calls to action.

The platform, People Power, is being shaped and erected by digital organizers who worked in the White House, the Bernie Sanders campaign, and other leading activist groups. If you haven’t already, today is the day for you to sign up at PeoplePower.org and become a team activist. The ACLU is no longer a paternalistic you-write-the-check-and-we’ll-take-care-of-the- rest organization. The ACLU is recruiting a formidable force of civil liberties champions. Organizers say our force will “defend sanctuary cities, resist deportation raids, oppose the Muslim Ban, maintain Planned Parenthood funding and support other organizational priorities.” The work that lies ahead will be tough. Now is the time to join the resistance and amplify its power.

An Intro to INCLO, the International Network of Civil Liberties Organizations

Those who dream of the globalization of civil liberties will cheer the news that the ACLU has a sister organization. It is the International Network of Civil Liberties Organizations (INCLO), a group that shares information and collaborates to promote fundamental liberties and rights of all persons in their respective countries. Like the ACLU, each of the member organizations is multi-issue, multi-constituency, and independent of its government.

The network is comprised of the domestic civil liberties and human rights organizations of twelve countries:

International efforts to promote freedom started in 2008 with a series of meetings of the executive directors of civil liberties and human rights organizations and formalized itself in 2012 with a structure and staff. In 2015 INCLO incorporated as a Swiss association with headquarters in Geneva. Its governing body is the 12 executive directors of each of the network’s organizations. The network supports the work of the member organizations through litigation, legislative campaigning, public education, and grass-roots advocacy. Following are some highlights of its work on the issues of police brutality and social protest, informational rights, and religious freedom and equal treatment.

Police Brutality and Social Protest

Informational Rights

  • 2015: participation of six INCLO members in litigation by the UK’s Investigatory Powers Tribunal challenging government surveillance. This produced landmark rulings that both the previous UK-US data sharing and the handling of intercepted private communications of the Legal Resource Center (South Africa’s INCLO member) were unlawful. These were the first times the Tribunal ruled against agencies dealing with transnational mass digital surveillance.
  • the launch, with INCLO support, of the Hungarian Civil Liberties Union website promoting privacy enhancing technologies (www.righttohide.com).
  • participation of INCLO members in the successful drive to get the UN Human Rights Council to approve the creation of a Special Rapporteur on the right to privacy.

Religious Freedom and Equal Treatment

Joan Laskowski
ACLU of Indiana Legislation Committee Chair

Our State Legislature: Punishing the Poor

Continuing the war on the poor – an easy vote-getter in hard times – this Indiana General Assembly session launched a particularly mean-spirited offensive. HB 1007, which requires drug testing for adults applying for financial assistance for themselves or a child attracted over 50 House coauthors and passed the House 73-23.

The legislation gives the applicant a choice: either sign a consent to random drug testing, or refuse. A person who refuses is still subject to drug testing under “reasonable suspicion,” is more likely to be tested than one who consents, and the penalties for a positive test are more severe.

“Reasonable suspicion” includes prior criminal conviction, prior or suspected present drug use, or failure to attend a scheduled meeting or to complete online requirements regarding the assistance.

If a person consents to random testing (a certain percentage of those who consent must be tested) and the test is positive, the person is given a list of drug treatment programs and will be tested at least every 20 days. A person who does not test negative in two consecutive tests within four months is ineligible for financial aid for three months. On reapplying, the person must be tested and test negative.

If a person does not consent to random testing and tests positive, the person is ineligible for assistance for six months and any child will have the assistance reduced by 50% for six months. On reapplying, a person who tests positive will be permanently ineligible and a child will also be ineligible as long as the child lives with that person.

Mandatory drug testing policies violate Fourth Amendment protection, require applicants to sign away their civil liberties, are ineffective in treating addiction, disproportionately impact and stigmatize the poor and communities of color, promote the myth that those who need public aid use drugs at a greater rate than the general population, and waste taxpayer money.

It was the latter consideration that stalled the bill in the Senate committee. The fiscal note predicted a possible $1 million starting cost and high continuing costs. Drug testing is not only expensive but also misguided. In Indiana’s 2011 drug testing program for job applicants, only 13 of the more than 1,200 applicants failed their test. Yet the author of HB 1007, Representative Jud McMillin (R-Brookville), will be back next session “to save the state money from not paying welfare benefits to drug users.”

Stereotypes die hard.

Joan Laskowski
ACLU-Indiana Vice President for Legislation

Tax Gifts to Religious Schools

In the hope of making an end run around the constitutionally forbidden use of tax money to benefit religious schools, the South Bend County Council voted in June to do just that. With Council approval, the city of South Bend spent $1.2 million to buy a half acre site on which an empty Family Dollar store was located. The city intended to transfer the land to the Catholic Diocese of Ft. Wayne-South Bend. St. Joseph’s, a Roman Catholic high school in South Bend, would clear the land and construct a football stadium and parking lot next to the new $35 million school it is building for religious education and sectarian activities.

The Council was pinning its hope on a 2003 Indiana court ruling that “a private school can receive public support if it derives only an ‘incidental’ benefit and offers some public benefit in return.” The public benefit was that in return for the enormous gift to St. Joseph’s, city schools and organizations would be allowed – for ten years – to use the field and parking lot provided they were not being used by St. Joseph’s nor its students and provided the church approved of the community group.

The Council’s defense fails for a number of reasons.

As Gavin Rose, the ACLU-IN attorney argued, it ignores the federal Establishment Clause prohibition against use of government funds to advance religion. The Council had based its vote on the Indiana case, which did not raise this issue. The Indiana case did not involve payment of funds to religious schools, and the state funding supported only secular activity (public school teachers teaching public school classes on private school premises). In the South Bend situation, however, St. Joseph’s would be gifted with highly valuable property for unrestricted use. Further, the “public benefit” is tenuous at best. How often would that field actually be available for others to use?

The ACLU-IN, the national ACLU, and Americans United for Separation of Church and State represented four city taxpayers in a federal court suit, Wirtz v. City of South Bend. Their core arguments were that the city government was showing preference for one religion over another and giving substantial direct aid to a religious institution. U.S. District Judge Robert Miller agreed. He ruled that the plan violated the plaintiffs’ rights under the Establishment Clause and enjoined the transfer of the land.

The ACLU-IN has won its case. The land cannot be gifted to St. Joseph’s. The South Bend Council then asked the court for permission to sell the property to the high school. There was an auction, at which the high school was the only bidder. Their offer was $350,000. This too has now been struck down by Judge Miller as preferential treatment for a religious facility.

The federal court’s demand for government neutrality in matters of religion is an important victory for religious freedom.

– Joan Laskowski
Vice President Legislation
ACLU-Indiana

SB 561 and Sentencing Reform

It’s been difficult going for the sentencing reform effort discussed in previous Our State Legislature articles. The need for reform is urgent: Indiana has the fastest growing incarceration rate in the country, even though the Hoosier violent crime rate has dropped by a third in recent years. During the past decade, the prison popula- tion grew 41%, three times faster than any neighboring state. The costs skyrocket; our resources keep sinking.

This last summer, using research from the Pew Center and the Council of State Governments, the criminal code evaluation commission drafted legislation for the 2011 session. Additional initiatives are expected in 2012.

The principle bill this session is SB 561, which permits the diversion of low-level drug and theft offenders from prison to a community corrections program or problem-solving court and treatment. Funding for the required new programs and personnel will come from prisoner reduction.

Indiana’s lengthy mandatory sentences for drug crimes are a chief cause of its prison overpopulation. In a Pew Report comparison, the penalty for selling 3 grams of cocaine is 2 to 20 years in Texas; up to 12 1⁄2 years in Wisconsin; probation or up to 1 year in Ohio; and 20-50 years in Indiana. The average sentence for drug sale in Indiana is nearly 50% longer than the average sentence for sexual assault.

The reform package downgrades possession of small amounts of cocaine or methamphetamine to a D felony (six months to three years) and dealing of small amounts to a C felony (two to eight years).

Theft sentences are also restructured to make the punishment proportionate to seriousness. Theft of property below $750 is made a misdemeanor rather than a felony; an amount between $750 and $50,000, a Class D felony; above $50,000, a class C felony.

Judges are given discretion to sentence those convicted of lesser felonies to spend the final six months to three years outside prison. Those who have committed a Class D felony may serve their entire sentence on pro- bation in a community transition program, as long as they do not violate a condition of probation.

This smarter approach to corrections not only cuts costs but also improves public safety by promoting rehabilitation, community reentry, employability and strengthening of family and social ties. Those convicted of nonviolent minor crimes have a chance to become productive members of society.

SB 561 is carried by Senators Brent Steele and Richard Bray and Representative Ralph Foley; it has the endorsement of the Governor and Chief Justice Randall Shepard.

Not one of these could ever be accused of being soft on crime. The measure has the support of legislative leaders, most members, and almost all involved in law enforcement. Almost all, that is, except prosecutors.

Prosecutors have great trouble with a sentencing bill that does not include enhancements. In December, the board of the Indiana prosecutors’ professional association voted to oppose the shortening of drug penalties. And that opposition succeeded. The bill was amended to require that 85% of some terms must be served in prison.

Because this would result in even higher expenditures, there would be no money for reform.

The Senate vote to pass the amended SB 561 was 46-3.

If there will be action on it in the House, the extended prison time provisions must be deleted.

Indiana needs this money-wise, results-wise change in dealing with offenders.

Rethinking Incarceration

Originally published Spring 2010

Indiana’s fiscal difficulties had one happy consequence: it resulted in a 2010 General Assembly session that passed remarkably few new crimes or enhanced sentences. Larry Landis, Executive Director of the Indiana Public Defender Council, said this year’s low number was a record.

The reason for this restraint, of course, is that the cost of incarceration is enormous. And what’s worse, as costs increase and resources disappear, Indiana like many other states has cut back on prison programs like education and recreation, which increases the likelihood of recidivism and its future costs.

Alternatives to incarceration not only save money – money that could fund public education, for example – but they also promote rehabilitation, community reentry and the re-establishing of social ties.

One promising alternative is the use of problem-solving courts. A bill that seems headed for enactment would permit city or county courts to set up a variety of treatment diversions for offenders. These could include but are not limited to drug courts, family dependency drug courts, mental health courts, reentry courts, domestic violence courts, veteran’s courts, and community courts to address specific neighborhood or local criminal problems. The due process concerns with the original bill have been eased by amendments.

The Assembly was also creative in handling a bill criminalizing a juvenile’s creating, transmitting or possessing sexually provocative video or text messages. “Sexting”, as this has come to be called, is an issue of great interest in many legislatures this year. It’s not a new preoccupation of teens; it’s simply the use of the newest technology for them to explore and express their sexuality.

Sexting is of course ill-advised, but for politicians to make it a delinquent act would expose a large number of teens to the criminal justice system. The cost to them and to the taxpayers would be great. If punishment were to include incarceration, the costs would escalate. The average cost of housing a juvenile in a state juvenile facility was $75,050 in FY 2009.

Confronted with these fiscal realities, the legislature decided to refer the sexting bill to a summer study committee for its recommendations and to permit schools to offer instruction regarding the risks and consequences of sending sexually suggestive materials electronically.

This openness to exploring alternative ways of addressing undesirable behavior is wise and socially beneficial.

We should each make it a point to encourage our legislators to continue it even when funding becomes less dire.