By Mark Buckwalter, Former U.S. Probation Officer Specialist

In early April, the Rikers Island jail complex in New York City suffered its first coronavirus death: Michael Tyson. Mr. Tyson, 53, had been arrested in late February not because he had committed a crime, but for a technical violation of his parole. As a retired federal probation officer, I can tell you that incarcerating someone for a technical rule violation should be a last resort. But during a pandemic, it should be ceased completely. Our federal, state, and local probation and parole systems should act immediately to protect public health and safety and choose alternatives to unnecessary incarceration. 

For 22 years of service as a probation officer, I saw first-hand how difficult it is for individuals to follow all the technical rules of supervision. These conditions range from adhering to a curfew to abstaining from cigarettes and alcohol, meeting with parole or probation officers regularly, keeping treatment appointments, and maintaining employment. They regulate daily behaviors that most of us take for granted, which in many cases leads to failure. People with drug addictions are required to test negative, even though experts agree that it is normal to relapse multiple times before successfully entering recovery. 

Mr. Tyson is not the only person who may have received a death sentence for a technical violation. In Arizona, where the ACLU has filed COVID-related lawsuits against both a federal and a local jail, many of the detainees are there for these types of technical violations. One person at the CoreCivic federal facility in Florence, Arizona was sent back to prison for smoking a cigarette in the hallway of their halfway house. 

Probation and parole officers are taking a heavy-handed response to minor infractions in Arizona and across the country. One recent study found that 45 percent of all state prison admissions were a result of probation and parole violations, and 25 percent were due to technical violations — the same kind Mr. Tyson allegedly committed.

In normal times, these are troubling statistics. In the middle of a pandemic, they are deadly. Social distancing and other important safety practices like handwashing and wearing masks are not happening in correctional facilities. Jails and prisons account for most of the country’s worst hotspots for COVID-19.

Unnecessary incarceration is dangerous not only to incarcerated people and corrections officers but to all of us. People in jail are usually there less than a month, plenty of time to contract the virus and bring it home with them. The phenomenon has been documented: In Illinois, one in six of all coronavirus cases were linked to people who were jailed and released from the Cook County jail in Chicago.

This is a fixable problem. Parole and probation officers have vast discretion in responding to technical violations. Now more than ever, officers should not register formal violations that result in incarceration for technical violations. We can also stop issuing violations for minor infractions and work with our agencies to design a series of graduated responses that do not jump straight to incarceration.  

The current approach to community supervision is putting all of us at risk. To stop more avoidable deaths like Mr. Tyson’s, probation and parole officers and our agencies should take immediate action and suspend the use of incarceration for technical violations. It is our responsibility and duty to guard against the unique dangers of this pandemic and to protect the community. 

By Preston Shipp, Former Prosecutor

My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
 
Why isn’t it?
 
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
 
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
 
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
 
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
 
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
 
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
 
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
 
The system needs more of that change, and it needs it now.
 
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
 
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
 
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.

By Jay Stanley, ACLU Senior Policy Analyst & Nicola Morrow, ACLU Paralegal

In the midst of nationwide protests against police brutality, local, state, and federal law enforcement agencies have reacted with brutal force and widespread surveillance. Not only are many agencies suppressing protest and intimidating protestors with batons and tear gas on the ground — they are also circling overhead. The government is using a deeply invasive, coordinated aerial surveillance campaign to monitor Black Lives Matter protests, gather information, and surveil people exercising their First Amendment rights.
 
Today, we submitted Freedom of Information Act (FOIA) requests to the Federal Aviation Administration, Department of Homeland Security, and the Department of Justice calling for more information on the use of aerial surveillance on protesters.
 
The government has deployed helicopters, airplanes, and border drones over American cities to systematically monitor peaceful protests . An investigative report by the New York Times found that the Department of Homeland Security alone had logged at least 270 hours of surveillance footage on these racial justice protests this spring and summer. The collected footage was ultimately channeled into a digital network — accessible by federal and local law enforcement agencies for use in future investigations — with the ominous name “the Big Pipe.” Other law enforcement and military agencies, including the FBI, National Guard, and local police departments also requested deployment of private or government-owned aircraft for the purpose of surveilling protests. This widespread surveillance has been carried out across the country — from the big-city protests in NYC, Portland, Chicago and LA, to 20-person protests in small towns across the country.
 
This surveillance has also been carried out with an unjustifiable level of secrecy. Agencies like the FBI regularly try to hide the identity of their aircraft by registering them through dummy corporations. For weeks, U.S. Customs and Border Protection refused to say which agency had requested use of its Predator border drone over Minneapolis protests in May. Protesters and communities still have no idea what kind of cutting edge, high-tech equipment these aircraft — piloted and unpiloted — may be carrying.
 
As aerial surveillance continues, the public deserves much more information. In our FOIA requests, we are asking for information about the involvement of private companies; coordination between different law enforcement agencies; the processes by which surveillance flights are proposed, approved, or authorized; the scope of surveillance; the capabilities of the cameras and other surveillance tools deployed; and the surveillance footage itself.
 
We live in a democracy and Americans have a right to decide what kinds of surveillance law enforcement is permitted to engage in over our communities. But we can’t do that if we don’t know what’s going on.
 
A prime example of government policymaking that needs more sunlight is the FAA’s issuance of a “temporary flight restriction” over Portland in July, as that city became the center of renewed nationwide protests over police abuse in general and abusive practices by federal officers, sent to the city over local objections, in particular.
 
Unfortunately, there is a history of the FAA creating flight restrictions over protests at the request of law enforcement to limit the ability of reporters and community members to engage in aerial photography of police behavior. The agency restricted airspace over the Dakota Access Pipeline protests in 2016, and before that in Ferguson, Missouri during the 2014 protests following the death of Michael Brown. In 2014, documents and audio recordings proved that the purpose of the Ferguson no-fly zone was not the protection of public safety, as government agents claimed, but to keep news helicopters away.
 
In Portland, Oregon, the FAA’s restrictions prohibit drones except for those with “an approved special governmental interest airspace waiver that has been granted for operations in direct support of an active national defense, homeland security, law enforcement, firefighting, search and rescue or disaster response mission.”
 
In short, this flight restriction leaves room for government agencies to use aircraft to surveil the public, but severely limits the ability of the public to record the government. That may be how law enforcement agencies like it, but it’s exactly backward: Government surveillance of the public should be strictly regulated, but the public’s ability to monitor what law enforcement officials are doing should be broadly free and unrestricted. That is why protesters should be able to record the police using drones — and that is why we have filed a FOIA request to find out more about aerial surveillance of protests by law enforcement.