By Somil Trivedi, ACLU Senior Staff Attorney

This piece was originally published in Slate.

Just one month ago, the world saw a video of Minneapolis officer Derek Chauvin kneel on George Floyd’s windpipe with an eerily calm demeanor, while officers Tou Thao, J. Alexander Kueng, and Thomas Lane acted as the lookout men. Despite what we all saw, however, Hennepin County Attorney Mike Freeman at first refused to arrest or indict any of the four men, insisting, “I will not rush to justice.” This was keeping with his prosecutorial instinct: In his first 16 years in office, Freeman did not charge a single officer for a civilian killing.

After days of relentless local and national protests, Freeman finally brought a third-degree murder charge against Chauvin. Minnesota Attorney General Keith Ellison soon stepped in, announcing on Wednesday that he would enhance the original charge against Chauvin and also bring charges against the three officers who watched and held the crowd back. However, it took a nauseating video, the herculean efforts of protesters, and global outrage simply to trigger criminal proceedings. That is because the local prosecutor’s instinct was to protect the officers he works with rather than the citizens he serves.

Freeman’s initial reaction is a normalized pathology that extends beyond Minneapolis. Many prosecutors around the nation have a toxic, co-dependent relationship with police. Prosecutors and police are more than just institutional allies in law enforcement; they are often partners in the police’s crimes. The seemingly unending list of young Black people killed by police without local repercussions—Michael Brown, Philando Castile, Stephon Clark, Eric Garner, Tamir Rice, Alton Sterling, and more—speaks to this phenomenon’s persistence and national scope. So, while many will focus on the short-term victory of criminal charges, prosecution alone will not prevent the next atrocity. We need a complete overhaul of the prosecutor-police relationship.

As we argued recently in the Boston University Law Review, police exert significant control over prosecutors in both formal and informal ways. For example, in sociological research examining police and prosecutorial practice in Chicago, prosecutors relied on police testimony to win trials, and those trial wins were essential to earning promotions within the office. Prosecutors described an overt pressure to comply with a police culture of “silence and violence” that all but dictated that prosecutors operate with “blinders” on. This meant that questioning an officer’s version of events, whether there was a dead suspect or just a missing bag of drugs, was seen as a sign of “disrespect” to the officer. Conscientious prosecutors who questioned the legitimacy of a police report or the word of an officer could end up with tarnished reputations amongst law enforcement, resistance from officers, and marginalization in the office.

This perverse incentive structure normalized police perjury and created the conditions upon which police misconduct could thrive in small and big ways. These practices stacked the deck in favor of the state in run-of-the-mill prosecutions and often violated the law—both state and constitutional. But, in the most extreme cases, where a suspect was shot or killed, they helped ensure that there was no justice for the victim or community, no accountability for the police, and the officer involved was allowed to continue walking their beat.

Despite the power that police exert over prosecutors, however, prosecutors are not exactly potted plants either. The law gives prosecutors vast discretion to criminally charge and otherwise decide the course of criminal cases. But when police are the ones committing crimes, prosecutors often deploy that power to cover for and effectively encourage the criminality, rather than to combat it and seek justice. After all, prosecutors know where their bread is buttered

This occurs in overt ways, like charging (though later dropping, under pressure) Breonna Taylor’s boyfriend in order to whitewash a murderous no-knock warrant. But it also takes more mundane forms. Failing to disclose a witness statement that contradicts a favorite officer; dropping charges that involve police misconduct, before a judge can hold the officer accountable in open court; even quietly but effectively lobbying against police reform. These subtle manipulations of the criminal justice system allow the gravy train to keep running and, eventually, make the failure to charge an officer like Chauvin not a momentary lapse, but the natural culmination of a career-long partnership. This is why, even if officers like those in Minneapolis—or nationwide—are eventually charged for their crimes, those one-off instances are unlikely to stop police and prosecutors writ large from continuing their mutually beneficial dance.

There are straightforward fixes to this state of affairs, including increased oversight, ending police-protective doctrines like qualified immunity, and electing truly independent prosecutors. When it comes to officers like Chauvin who have a history of complaints, prosecutors can refuse to call them to testify in criminal cases.

However, we need to properly diagnose the problem before discussing solutions. Much like Americans tend to ignore voting rights until election years, or pandemic prevention until after one hits, we tend to scrutinize the prosecutor’s role in police violence only in the wake of high-profile killings. And rarely do we consider police-prosecutor co-dependence as a systemic, national phenomenon, rather than a static, local one. But we need to start.

Only then will we understand how Chauvin could remain so calm and at ease, with his hands in his pockets, as he killed George Floyd—even with numerous cameras and his own bodycam running. Perhaps it was the near assurance that Floyd’s death would be of little importance to his prosecuting counterparts, at least compared with the hundreds of cases they would need Chauvin for in the future. Perhaps he believed that prosecutors would, as so many had before, step in and clean up the scene of his crime.

By Susan Mizner, ACLU Director 

COVID-19 has ripped through nursing homes, psychiatric hospitals, and other congregate settings for people with disabilities. People living in these settings make up less than 1 percent of the U.S. population, but nearly 50 percent of COVID-19 deaths.
 
Some have said these deaths are inevitable. Some have even called for “weeding out the weak” as part of herd mentality. But these deaths are far from inevitable. They arise from decades of indifference, invisibility, and deadly discrimination against the people who live and work in these settings. They also arise from our government’s abdication of its responsibility to regulate and monitor these segregated institutions.  
 
Congregate settings for people with disabilities include nursing homes, psychiatric facilities, and intermediate care facilities for people with developmental and intellectual disabilities. Long before COVID-19, these facilities already had a poor track record with insufficient oversight, poor infection control, under-staffing, and inadequate training. Combined, these conditions created the powder keg. COVID-19 lit the match.  
 
How has this happened? This is the first in a series of ACLU blogs addressing this crisis, in which we will break down the causes at the institutional level and the personal effect on individuals such as staff and residents. The focus today is on the U.S. Department of Health and Human Services (HHS), and its agency, the Centers for Medicaid and Medicare Services (CMS). Together, HHS and CMS are charged with regulating and monitoring the vast majority of the institutions where we have warehoused people with disabilities. HHS is responsible for the primary funding and for ensuring the safety of people in these facilities. And it has failed miserably in the age of COVID-19. 
 
On January 31, 2020, HHS declared a national public health emergency to respond to COVID-19. As a primary response to the pandemic, all of our medical and political leaders demanded social distancing. We closed schools and dormitories, required employees to work from home, and shuttered bars, restaurants, and ball parks. But we did not extend this disease prevention tactic to nursing homes, psychiatric hospitals, and developmental disability facilities. In fact, HHS has done the opposite. It has instructed nursing homes to take new patients without first confirming that they are not infected with COVID-19, and it has waived regulations to help divert people from entering institutions.
 
HHS has mechanisms at its disposal to reduce the overcrowding and dangerous conditions in these institutions. It can increase its funding for Home and Community Based Services and community mental health services, so people can stay in their own homes to get support. It can encourage states to advertise a provision allowing family members — so many of whom are sheltering in place without work — to take their relatives out of nursing homes and get paid to provide their care. And, it could increase the discharged planning process to move those who wish to be back in the community to move there. But it has failed on all counts.
 
HHS also has obligations to step up infection control and safety for the people who cannot yet leave these institutions. But it has not required states to prioritize personal protective equipment (PPE) or testing for staff or residents, and it has failed to increase the consequences for facilities that violate infection prevention measures. As a result, these institutions, rather than being havens from infection, are ‘death pits’ — among the most dangerous places in the country during this pandemic.
 
And finally, HHS should provide transparency, so that individuals and families can decide for themselves whether to enter — or stay — in an institution. Instead, more than four months passed before HHS started to require nursing homes to publicly report COVID-19 infection and death rates. And even this is incomplete — as nursing homes can choose not to report deaths before May 6, and other congregate settings — such as psychiatric hospitals, group homes, and institutions for people with intellectual and developmental disabilities — have no reporting obligations at all. 
 
Yesterday marked the twenty-first anniversary of Olmstead v. L.C., the landmark Supreme Court decision that recognized that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” The court went on to observe that institutional confinement limits every part of a person’s life, and that such confinement “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
 
Today, we filed a petition calling on HHS and its agencies to meet their obligations under Olmstead and under federal law. We are asking HHS to get people out of institutions as quickly and safely as possible, to provide genuine infection prevention and control measures for those who remain, and to provide true transparency as to who is living, working, and dying in these institutions. 
 
HHS must respond. Collectively, we have much more to do. As a society, we must reckon with our relentless marginalization and de-prioritization of people with disabilities and the people who support them. We must look at the tens of thousands of deaths inside congregate care settings as a collective, systemic tragedy. These victims of COVID-19 are mothers, fathers, brothers, sisters, grandmothers, grandfathers — all of us. We must end the disregard and discrimination that took their lives and that threatens — if we do not act quickly — to take many more.

By Victoria Burton-Harris, ACLU Criminal Defense Attorney & Philip Mayor, ACLU Senior Staff Attorney

Early this year, Detroit police arrested Robert Williams — a Black man living in a Detroit suburb — on his front lawn in front of his wife and two little daughters (ages 2 and 5). Robert was hauled off and locked up for nearly 30 hours. His crime? Face recognition software owned by Michigan State Police told the cops that Robert Williams was the watch thief they were on the hunt for.
 
There was just one problem: Face recognition technology can’t tell Black people apart. That includes Robert Williams, whose only thing in common with the suspect caught by the watch shop’s surveillance feed is that they are both large-framed Black men.

But convinced they had their thief, Detroit police put Robert William’s driver’s license photo in a lineup with other Black men and showed it to the shop security guard, who hadn’t even witnessed the alleged robbery firsthand. The shop security guard — based only on review of a blurry surveillance image of the incident — claimed Robert was indeed the guy. With that patently insufficient “confirmation” in hand, the cops showed up at Robert’s house and handcuffed him in broad daylight in front of his own family.
 
It wasn’t until after spending a night in a cramped and filthy cell that Robert saw the surveillance image for himself. While interrogating Robert, an officer pointed to the image and asked if the man in the photo was him. Robert said it wasn’t, put the image next to his face, and said “I hope you all don’t think all Black men look alike.”
 
One officer responded, “The computer must have gotten it wrong.” Robert was still held for several more hours, before finally being released later that night into a cold and rainy January night, where he had to wait about an hour on a street curb for his wife to come pick him up. The charges have since been dismissed.
 
The ACLU of Michigan is lodging a complaint against Detroit police, but the damage is done. Robert’s DNA sample, mugshot, and fingerprints — all of which were taken when he arrived at the detention center — are now on file. His arrest is on the record. Robert’s wife, Melissa, was forced to explain to his boss why Robert wouldn’t show up to work the next day. Their daughters can never un-see their father being wrongly arrested and taken away — their first real experience with the police. Their children have even taken to playing games involving arresting people, and have accused Robert of stealing things from them.
 
As Robert puts it: “I never thought I’d have to explain to my daughters why daddy got arrested. How does one explain to two little girls that a computer got it wrong, but the police listened to it anyway?”
 
One should never have to. Lawmakers nationwide must stop law enforcement use of face recognition technology. This surveillance technology is dangerous when wrong, and it is dangerous when right.
 
First, as Robert’s experience painfully demonstrates, this technology clearly doesn’t work. Study after study has confirmed that face recognition technology is flawed and biased, with significantly higher error rates when used against people of color and women. And we have long warned that one false match can lead to an interrogation, arrest, and, especially for Black men like Robert, even a deadly police encounter. Given the technology’s flaws, and how widely it is being used by law enforcement today, Robert likely isn’t the first person to be wrongfully arrested because of this technology. He’s just the first person we’re learning about.
 
That brings us to the second danger. This surveillance technology is often used in secret, without any oversight. Had Robert not heard a glib comment from the officer who was interrogating him, he likely never would have known that his ordeal stemmed from a false face recognition match. In fact, people are almost never told when face recognition has identified them as a suspect. The FBI reportedly used this technology hundreds of thousands of times — yet couldn’t even clearly answer whether it notified people arrested as a result of the technology. To make matters worse, law enforcement officials have stonewalled efforts to obtain documents about the government’s actions, ignoring a court order and stonewalling multiple requests for case files providing more information about the shoddy investigation that led to Robert’s arrest.
 
Third, Robert’s arrest demonstrates why claims that face recognition isn’t dangerous are far-removed from reality. Law enforcement has claimed that face recognition technology is only used as an investigative lead and not as the sole basis for arrest. But once the technology falsely identified Robert, there was no real investigation. On the computer’s erroneous say-so, people can get ensnared in the Kafkaesque nightmare that is our criminal legal system. Every step the police take after an identification — such as plugging Robert’s driver’s license photo into a poorly executed and rigged photo lineup — is informed by the false identification and tainted by the belief that they already have the culprit. They just need the other parts of the puzzle to fit. Evidence to the contrary — like the fact that Robert looks markedly unlike the suspect, or that he was leaving work in a town 40 minutes from Detroit at the time of the robbery — is likely to be dismissed, devalued, or simply never sought in the first place. And when defense attorneys start to point out that parts of the puzzle don’t fit, you get what we got in Robert’s case: a stony wall of bureaucratic silence.
 
Fourth, fixing the technology’s flaws won’t erase its dangers. Today, the cops showed up at Robert’s house because the algorithm got it wrong. Tomorrow, it could be because a perfectly accurate algorithm identified him at a protest the government didn’t like or in a neighborhood in which someone didn’t think he belonged. To address police brutality, we need to address the technologies that exacerbate it too. When you add a racist and broken technology to a racist and broken criminal legal system, you get racist and broken outcomes. When you add a perfect technology to a broken and racist legal system, you only automate that system’s flaws and render it a more efficient tool of oppression.
 
It is now more urgent than ever for our lawmakers to stop law enforcement use of face recognition technology. What happened to the Williams’ family should not happen to another family. Our taxpayer dollars should not go toward surveillance technologies that can be abused to harm us, track us wherever we go, and turn us into suspects simply because we got a state ID.