Madhuri Grewal, Federal Immigration Policy Counsel, ACLU National Political Advocacy Department & Yesenia Chavez, Policy Analyst, ACLU National Political Advocacy Department

08/27/19 Update: Congress made public today a document outlining the Department of Homeland Security’s plan to take nearly $280 million in funds meant for FEMA, the U.S. Coast Guard, and the TSA, among other critical priorities. Over $115 million of these funds will go towards President Trump’s growing detention and deportations of immigrants, with the rest being used for sham border courts to support Trump’s new policy of returning asylum seekers to Mexico.

The budget for Trump’s turbo-charged immigration enforcement and border militarization is now larger than ever. And just last week, we learned that ICE plans to redirect even more money to further expand immigration detention and enforcement. The plan is currently being reviewed by congressional appropriators. This comes on the heels of the Mississippi ICE raid — the largest single-state raid in history. Children were separated from their families on the first day of school and nearly 700 people were detained by ICE. 

Worse still, Senate Appropriations Committee Chairman Richard C. Shelby (R-AL) has signaled a plan to use $5 billion in funding meant for healthcare and education to pay for Trump’s border wall. Congress has already given Trump more than $3 billion for his harmful, wasteful, and unnecessary wall.

Over the last two years, the U.S. Department of Homeland Security and its sub-agencies, Immigration Customs and Enforcement and Customs and Border Protection, have exploited the budget process to sharply increase their funds. But Congress has the power to put a stop to it — and curb, rather than fuel, Trump’s anti-immigrant agenda. 

The Constitution gives Congress the “power of the purse” — the ability to set the budgets of federal agencies. The power to allocate money can limit and direct how the executive branch acts. In other words, Congress’s power to appropriate money acts as a necessary check on President Trump’s ability to carry out his xenophobic policies. 

Under the Trump administration, however, DHS is repeatedly ignoring Congress’s budgetary authority. ICE and CBP are now regularly and boldly using funds from other parts of the federal government. Last year, ICE raided nearly $10 million from FEMA during hurricane season to expand the detention of immigrants. Trump even declared a national emergency to build his border wall. By stealthily increasing their budgets beyond what Congress has approved, DHS is completely disregarding congressional authority and reducing funding for critical programs.

As we approach the end of this fiscal year (on September 30th), Congress is unlikely to agree on how to fund the government for the Fiscal Year 2020 (which begins on October 1st). To avoid a shutdown, Members will likely settle on temporarily keeping all agencies operating at the same funding levels from the previous year. This is known as a “continuing resolution.” 

However, we expect DHS to keep exploiting budget loopholes to get more funding than it received the previous fiscal year. In fact, the agency has been consistently manipulating the budget process — and will continue to do so unless Congress explicitly puts a stop to it.  

Congress gave ICE funding to detain an unprecedented number of immigrants this fiscal year, but directed it to ramp down detention to a yearly average of 45,274 people. Congress explicitly told ICE that it must decrease its detention of immigrants to no more than 40,520 people by the end of the year. Yet with just six weeks to go, ICE is jailing more than 55,000 people daily. The Trump administration has not only expanded the immigration detention system by more than 60 percent over its first two years, but it‌ ‌has also ignored the checks and balances at the foundation of our nation’s democracy. 

So what should Congress do? Any continuing resolution must include guardrails to keep DHS in check. And in the DHS funding bill, Congress must restrict the agency’s ability to manipulate the budget process by explicitly limiting ICE and CBP’s authority to continually overspend. Members of Congress must also be transparent about how and from where DHS is raiding money. Will ICE once again be taking funds from FEMA during this hurricane season? The public has a right to know.

Congress continues to reward the Trump administration and DHS for refusing to follow the Constitution’s edict of checks and balances. An agency that cannot be trusted to maintain its spending within the bounds set by Congress, that consistently disregards congressional authority, and continues to inflict pain and suffering in our communities should not be rewarded. Congress has had numerous chances to meaningfully restrict DHS’ funding and has refused to do so. We need to demand they cut funding for ICE and CBP. 

By Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality

In 2009, North Carolina passed the Racial Justice Act (RJA), which allowed defendants to strike the death penalty from their cases if they could show that racial discrimination was a factor in their prosecution. The law came as a response to a series of exonerations of Black people who were falsely convicted of crimes they did not commit by all-white or nearly all-white juries. The legislature took a bold step to address was what suspected to be deeply troubling evidence of racism infecting the death penalty—but no one knew for sure what evidence uncovered by the RJA would find.

In 2010, people on death row began filing RJA claims. Four had hearings, and the evidence uncovered was indeed stark, troubling, and clearly pointed to the systemic ways that racism infects capital cases in North Carolina. The four petitioners had death sentences reversed and were resentenced to life without parole (LWOP).

But in 2013, the law was repealed by the same new legislature that targeted Black voters with “surgical precision” in voter suppression, and the four petitioners were all sent back to death row without new trials. Two additional petitioners—who had uncovered evidence through the RJA but not yet had hearings—were also subsequently denied their day in court.

On August 26^th  and 27^th, we, along with five other legal teams and the NAACP Legal Defense and Educational Fund, Inc., will go before the North Carolina Supreme Court to fight for the rights of the six petitioners to have their evidence recognized and their death sentences overturned. The Attorney General for North Carolina will ask the Court to do one of two things: Sweep clear and obvious evidence of racism under the rug and pretend it does not exist or hold that, in 2019, it is fine to use trials infected with racism as the vehicle to execute Black men.

In its quest to disregard the troubling evidence of racial bias, the State will ask the North Carolina Supreme Court to overturn constitutional law, dating back to the Civil War, protecting the right to have a legally filed defense heard in court, regardless of whether those defenses are later repealed. North Carolina established this legal principle in a case that dismissed prosecution for multiple murders committed during the Civil War, based on a law granting immunity for such acts, even though the law was later repealed. That precedent has stood in North Carolina law for almost 150 years. 

Hypocrisy often produces irony, and that is true here: A legal principle was established to protect confederate soldiers for the massacres of civilian children and men. Now, the North Carolina Supreme Court is being asked to ignore this principle in a case challenging discrimination against Black jurors at the life and death trials of persons of color. We can learn a lot by studying who the law is selectively applied to benefit.

Allegations made in the six complaints and evidence produced in the hearings included a prosecutor calling a defendant “a big black bull;” a suggestion during jury selection that a Black defendant should have been lynched; the use of crime scene tape to section off the area behind the defense table, with the defendant’s family forced to sit in the back of the courtroom, while the white family of the victim sat in front behind the prosecutor; derogatory and demeaning interrogation of Black jurors, including questions about whether a juror had trouble reading and whether he had gone “straight through” school, implying he may have repeated grades.

One prosecutor wrote in his notes that a Black juror with a criminal history was a “thug” while a white juror who trafficked in drugs was “a fine guy;” a Black juror was described as a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” 

There is evidence prosecutors were trained on how to give pre-planned responses to Batson objections regardless of the evidence. At least one of the prosecutors in the RJA cases persistently relied on this training to respond to Batson objections to her decisions about removing Black jurors. One had the audacity to read from a list of excuses and struck a Black juror for age, despite the fact that she had let a white juror with the same birthday remain immediately prior. When the judge noticed and asked her about it, she ran down to the next reasons on her cheat sheet.

The data corroborate all of this anecdotal evidence and prove that racial bias in North Carolina’s death penalty is systematic—not the work of a few isolated bad actors. The state’s own statistical expert conceded that the patterns of exclusion of Black jurors in the cases suggested racial discrimination. A Michigan State University study conducted in connection with the RJA examined the decisions of prosecutors across the state involving over 7,000 jurors, in 173 capital trials, over twenty years. The study found that—across all time periods and geographic areas—race played an “overwhelming” role in jury selection in the state. A subsequent study, conducted by former prosecutors from Wake Forest Law, found the same patterns. All of this evidence is clear, shameful, and undeniable.

The State has continually argued that all of the evidence of blatant racism in all six cases should be ignored or that it just does not matter. Those positions are especially shameful in light of North Carolina’s legacy of racial terror and lynching. EJI calculated 123 lynchings in North Carolina between 1877 and 1950. This legacy of executions should be a stark reminder of the role race has played in who is executed in North Carolina.      

Sweeping this under a rug won’t work: There is no rug big enough to hide the stench of this evidence. More than a century of North Carolina law says you get your day in court even if the law is repealed; 73 years of lynchings and evidence of extensive racial bias in the death penalty say enough is enough. If North Carolinians are to have any faith in their legal system, the Court must intervene and set this right. Our democracy depends on it. 

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

The Transportation Security Administration is planning to test a face recognition system that could be used on all domestic U.S. fliers, according to a document the agency released today. That would represent a significant expansion of face recognition in daily life.

In the test, which will occur at McCarran airport in Las Vegas, passengers entering the TSA security area will be photographed and a face recognition algorithm applied in an attempt to tell whether they match the photograph on their IDs. The system adds face recognition to a technology that the TSA has been working on for years called Credential Authentication Technology, which scans a passenger’s driver’s license or other ID document and attempts to automatically determine whether it is authentic.

If the TSA decides that the system works well, we can assume the agency will use it to replace human document checkers throughout the domestic aviation system. This program is part of the TSA’s sweeping vision to deploy face surveillance at the nation’s airports, and comes on the heels of a similar deployment by CBP at the gates of departing international flights. If widely deployed, the TSA's program would (as we said of the CBP program) socialize people to accept face recognition and normalize the technology, inevitably be subject to mission creep, and expose people to the judgments of unreliable and biased algorithms.

For purposes of this test, the TSA says it will only run the system on passengers who volunteer to participate. “The passenger’s facial image, along with certain biographic information from the passenger’s identity document, will be collected by TSA and retained for subsequent qualitative and quantitative analysis” by DHS technical experts. Names and identification numbers will be obfuscated before the data is transferred for analysis, the agency says, and the data will be deleted within 180 days.

But the real question is what data will be collected and how will it be handled if this technology moves beyond tests? Will passengers be able to opt out? Will the agency want to collect and store passengers’ photographs to improve the training of their face recognition algorithms? Will passengers’ photos be run against photographic watch lists, exposing every passenger to the risk of being misidentified as a serious terrorist or other criminal every time they fly?

And what are the implications of introducing a technology for the automated checking of IDs? Like many airport security measures, such technology may very well expand beyond the airport and into daily life. When ID checks can be done by machines that are much cheaper and easier to deploy than human guards, will we find ourselves being subject to ever-more-frequent checks? When ID checks become cheap and easily scalable they will inevitably be over-used, as we have seen happen with other surveillance technologies.

Finally, as I have explained in depth before, one of the biggest problems with this use of face recognition is that it represents an ever-growing investment by the TSA in identity-based security — security based on knowing more and more information about people and trying to use that information to assess their “risk to aviation.” The TSA should instead be focused on making sure that nobody — no matter who they are — can bring guns or explosives onto aircraft. Face recognition is an investment that is bad for security and that is likely to have bad side effects on our society to boot.