Beginning in 2010, a Connecticut man, Almighty Supreme Born Allah, spent over six months in solitary confinement. He was alone for 23 hours a day, allowed to shower just three times a week in underwear and leg shackles, and permitted only one 30-minute visit each week with a family member, whom he was not allowed to embrace, let alone touch. Studies have shown that this kind of isolation can result in clinical outcomes similar to those of physical torture, which is why numerous international human rights bodies have condemned the prolonged use of solitary confinement.

The twist on this twisted set of punishments?

Allah had not been convicted of a crime when he was put in solitary confinement. He sued, and four federal judges agreed with Allah that this treatment during pretrial detention violated his constitutional rights. And yet, he lost his case because of a rule called qualified immunity that the U.S. Supreme Court created in the 1980s. As William Baude, a constitutional law professor from the University of Chicago, explains, “[t]he doctrine of qualified immunity prevents government agents from being held personally liable for constitutional violations unless the violation was of ‘clearly established’ law.”

To understand how this works you have to start with a federal law called section 1983, which holds state and local government officials liable for money damages in federal court if they have violated constitutional rights. This law has been on the books since 1871, and it was originally enacted to stop law enforcement from ignoring the lynching of newly freed Black citizens.

But while section 1983 was intended to increase accountability for government officials who break the law, the Supreme Court created a giant loophole that undermines that goal, making it virtually impossible for government officials to be held personally liable for wrongdoing. That loophole is qualified immunity, which either the Supreme Court or Congress could fix to ensure constitutional misconduct does not go unpunished.

Since the creation of qualified immunity, the rule has snowballed out of control. As the judges on Allah’s case explained, the rule now allows “all but the plainly incompetent or those who knowingly violate the law” to defeat lawsuits brought by the victims of government overreach. The result, as Justice Sotomayor recently argued in a dissent, is that “palpably unreason­able conduct will go unpunished.”

That’s exactly what happened in Allah’s case.

In 1979, the Supreme Court held in Bell v. Wolfish that under the Constitution’s Due Process Clause, pretrial detainees cannot be punished. Restrictions on a pretrial detainee’s liberty, the court concluded, have to be “reasonably related to a legitimate nonpunitive governmental objective.” If the restriction is “arbitrary or purposeless,” however, “a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees.”

Under Bell, in other words, the government can hold people in jail to make sure they show up to their trial and can also limit exercise time in jail for the sake of keeping order. But the government cannot subject pretrial detainees to harsh conditions just to punish them. And this matters because a staggering 465,000 people are in pretrial detention on any given day in America.

Explaining this rule in Bell, the Supreme Court said:

“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.”  

Again, this is what the Supreme Court said in 1979, almost 40 years ago.

Yet in 2010, when Allah was in jail pretrial, he was kept in solitary confinement. He sued the jail officials he claimed were responsible for violating his rights and four federal judges agreed with him that this treatment was unconstitutional — first, the trial-level judge, and then three judges assigned to the case on appeal. According to one of the judges who ruled on Allah’s case, the jail officials failed to provide any justification why this was necessary even though “the extremity of the conditions imposed upon Allah come perilously close to the Supreme Court’s description of ‘loading a detainee with chains and shackles and throwing him in a dungeon.’” 

When four federal judges agree that your rights were violated, that should mean there’s some kind of remedy, right? Wrong.

Despite the similarity between what the Supreme Court said was unconstitutional in 1979 and the conditions of Allah’s pretrial confinement, two of the three judges who heard Allah’s case on appeal concluded that qualified immunity shields the jail officials from liability — meaning Allah has no recourse for the infringement on his rights.

And he’s not the only one.

The doctrine of qualified immunity undermines our constitutional rights, including the right to be free from unreasonable searches and seizures, the right to be free from cruel and unusual punishment, and the right to be free from racial discrimination. Qualified immunity is one of the many barriers standing in the way of justice and accountability when the police use excessive force disproportionately against people of color.

Now Allah is asking the Supreme Court to hear his case and to reconsider qualified immunity. The ACLU has joined forces with 14 organizations to file a friend-of-the-court brief in support of Allah’s ongoing fight for justice. This coalition includes organizations representing a broad range of ideological perspectives — from criminal justice reform groups to law enforcement. The ideological diversity of our coalition is a clear indication of a larger truth: People across the political spectrum and from many backgrounds believe in a robust remedy when the government violates an individual’s constitutional rights.

This diverse group has come together to urge the Supreme Court to abandon or reform qualified immunity so that victims of official misconduct can hold the government accountable. This simple goal reflects a foundational value: Our government is supposed to be based on the rule of law, not the rule of men. But as Chief Justice Marshall admonished in 1803, our government “will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”  

Update: The execution of Scott Dozier, originally scheduled for July 11, is now on hold. The judge granted a stay after the manufacturer of Midazolam objected to its use in the execution, based on records obtained by the ACLU of Nevada. 

On July 11, the state of Nevada will execute death-row prisoner Scott Dozier. To do so, the state has decided to use an experimental protocol that incorporates a drug — Midazolam — that has been associated with multiple botched executions across the United States. Allowing the government to execute a person using a protocol that risks torture would be a grave injustice. Nevadans must demand better. 

The road to this upcoming execution has been a tumultuous one. 

The state previously planned to execute Dozier in November of 2017 using an untested and unusual three-drug cocktail comprised of Diazepam, a sedative; Fentanyl, a narcotic; and Cisatracurium, a paralytic. Although Dozier volunteered for execution, he still recognized the state’s independent responsibility to act in a constitutional manner and brought a motion to determine the lawfulness of using a paralytic in his execution. Dozier argued that use of a paralytic needlessly risked inflicting death by suffocation, with physical abuse akin to waterboarding. 

The Nevada trial court agreed. It found that the use of a paralytic would carry a substantial and “objectively intolerable risk of harm” to Dozier in violation of his Eighth Amendment rights under the U.S. Constitution to be free of cruel and unusual punishment and corresponding rights under Article 1, Section 6 of the Nevada Constitution. 

The state of Nevada, however, refused to move forward without the paralytic and appealed to the Nevada Supreme Court. Although the Nevada Supreme Court eventually overturned the trial court decision on procedural grounds, it never ruled on the constitutionality of using a paralytic in connection with Dozier’s execution, leaving an open question of whether the state is acting within the bounds of the U.S. and Nevada Constitutions. 

In the meantime, one of the planned execution drugs, Diazepam, expired. But Nevada is undeterred: Dozier’s execution has been rescheduled for today, July 11. Not only is the state still planning to use the problematic paralytic, but it substituted the expired Diazepam with Midazolam — a drug with a dangerous history of being used in botched executions. 

Eyewitness accounts of recent executions using Midazolam are full of grizzly details. In Alabama in 2016, for example, Ronald Smith, Jr.’s execution took over 30 minutes. Eyewitnesses reported that he “heaved and coughed through about 13 minutes” and “clenched his fists and raised his head during the early part of the procedure.” In Ohio in 2014, Dennis McGuire’s execution took around 25 minutes. Witnesses saw his stomach heaving and his fists clenching and reported that he made “horrible noises.” In Arizona in 2014, prisoner Joseph Wood “gasped and snorted” for almost two hours before he finally died. This execution went so terribly that Arizona now refuses to use Midazolam in executions. 

Yet, even after so many botched executions using Midazolam, Nevada has insisted on moving forward, even though the drug manufacturer is suing Nevada for illegally obtaining Midazolam for the execution. The lawsuit, filed yesterday, by New Jersey-based Alvogen states that the sedative "is not approved for use" in executions and that its use "has led to widespread concern that prisoners have been exposed to cruel and unusual punishment." Nevadans should contact Gov. Sandoval and express their outrage and urge him to step in to direct the Nevada Department of Corrections to cease moving forward with such a risky combination of drugs. 

These executions are not justice — they are inhumane and unacceptable. Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. A government that would risk torturing someone to death is not dispensing justice or serving the public good. It is deeply troubling that Nevada government officials are barreling ahead with execution when the chances of torturing Dozier are so high. 

Now that President Donald Trump has nominated Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, it will be up to the Senate to fully vet him so that the American people can determine whether he will uphold the basic civil rights and liberties relied on by everyone in this country. This is particularly true when it comes to abortion rights, where Kavanaugh’s prior opinions on the subject, coupled with the fact that Donald Trump vowed to only nominate justices who would overturn Roe v. Wade, give rise to serious concern about women’s continued ability to access abortion if Kavanaugh is confirmed. 

The ACLU as a matter of policy does not endorse or oppose nominees to the Supreme Court. But we do think it’s essential, given Trump’s promise, that any nominee is questioned extensively and directly about their commitment to the 45-year-old precedent of Roe v. Wade. 

Some background is in order. Roe v. Wade made abortion legal in all 50 states by holding that politicians cannot constitutionally ban abortion — except after the point in pregnancy at which the fetus could survive outside the woman’s body. The 1973 decision nullified abortion bans across the country, but it provided imperfect protection for abortion access. Shortly after the decision, the Supreme Court held that politicians may exclude abortion coverage from Medicaid and may require parental or judicial involvement in a minor’s abortion decision. Those rulings cruelly placed abortion out of reach for many people — especially low-income women and, disproportionately, women of color. 

Then, in 1992, in Planned Parenthood v. Casey, the Supreme Court opened the door to myriad additional restrictions on abortion access. In that decision, the court reaffirmed the core holding of Roe — that politicians cannot ban abortion — but ruled that states may restrict abortion as long as those restrictions do not impose an “undue burden” on a woman’s access. 

And restrict it they did: Since 2011, politicians have quietly passed more than 400 abortion restrictions. These include laws that shut down all or most of the clinics in a state under the guise of promoting women’s health. Where possible, women, medical providers, and advocates have challenged these laws — and in many cases, lower courts weighed in on their side. In a critical decision, so did the Supreme Court. 

In Whole Woman’s Health v. Hellerstedt, the Supreme Court in 2016 struck down two such laws out of Texas: one law that banned abortion unless the physician had admitting privileges at a local hospital, and another that required that physicians perform the procedure in a mini-hospital called an ambulatory surgical center. The five-justice majority, which included Justice Kennedy, relied on the undue burden standard articulated in Casey and ruled that these restrictions were an unconstitutional undue burden because they did nothing to safeguard patient health while shutting down three-quarters of the clinics in the state. 

Despite that decision, states across the country continue to pass and defend laws that fail the standard articulated in Roe, Casey, and Whole Woman’s Health. Arkansas and Missouri, for example, are defending laws indistinguishable from the Texas laws the Supreme Court struck down in 2016. But legal advocates have been able to use the Whole Woman’s Health decision to challenge other restrictions, which federal courts have struck down in multiple states. 

Where does that leave us today?

If the Senate confirms a Supreme Court nominee who shifts the balance on the court, and the court overturns Roe v. Wade, many states will ban abortion. By some counts, almost half the states would do so. Seventeen states already have laws on the books to accomplish this swiftly if the Supreme Court overturns Roe. 

We would then have a legal patchwork in which large swaths of the South and Midwest lack abortion access, with no recourse to federal courts. Certain state constitutions would provide protections, as we saw in Iowa, where the state Supreme Court just relied on the state constitution to block a ban on abortion starting at six weeks of pregnancy. But in most of the states where politicians seek to end abortion access, such state constitutional protections are the exception. 

Congress, too, could ban abortion. If that happened, we would not have a “patchwork” of access: A federal ban would end abortion throughout the nation, and there is nothing states could do to make the practice legal within their borders. While there are not currently enough votes in Congress to ban abortion nationwide, only time will tell who goes to Washington in 2018, 2020, and beyond.

But a new Supreme Court Justice could effectively decimate women’s access to abortion, even without overturning Roe outright. A new Supreme Court could uphold nearly unlimited state restrictions — including the kind of clinic shut-down laws from Texas that the court struck down in 2016. In upholding them, the court could say that it is simply applying the longstanding undue burden standard but deferring to legislative determinations of what is medically justified. In that way, the court would end abortion within the states that pass them — as surely as if the court had overturned Roe and allowed politicians to ban abortion explicitly.

In seven states, there is just a single women’s health center left providing abortion care. The only thing stopping politicians in those states from shuttering those clinics with faux health regulations is the federal judiciary, and if the balance on the Supreme Court shifts against abortion rights, there will be nothing stopping them. 

One need look no farther than Texas to understand the staggering impact of this scenario. In 2015, politicians’ draconian, pretend health restrictions shuttered more than half the state’s clinics. Women had to wait weeks for an appointment, drive hundreds of miles or to another state, take more days off work, lose income, find childcare, and arrange and pay for transportation. For many, the process of obtaining safe and legal health care became an onerous, grueling feat — or just flat-out impossible.

Overturning Roe would be catastrophic, but it is not the only scenario in which politicians would be able to shut down abortion care. The court can give them back the power to do so by simply upholding whatever obstacles they throw in a woman’s path.

Brett Kavanaugh and the case of Jane Doe

There is cause for concern that Judge Kavanaugh could do just that. President Trump promised to select justices who would overturn Roe, so even if he did not directly ask Kavanaugh that question, his selection presumably means that the president has reason to believe he would be open to doing so. 

Moreover, in the one case Kavanaugh has decided involving abortion, he vacated an order directing that a young woman be allowed to access abortion while in government custody. The ACLU represents Jane Doe, a 17-year-old undocumented woman who came to this country without her parents, was detained by the federal government, and was living in a shelter. While in federal custody, she found out she was pregnant and requested an abortion, but the Trump administration refused to allow her to have one.  

After she had been delayed several weeks, a federal court ordered the administration to allow her to get the procedure. The administration appealed and Judge Kavanaugh wrote an opinion that allowed the government to continue to block her from having an abortion for 11 days while the government continued their weeks-long search for a sponsor to whom she could be released (at which point she could get the abortion while no longer in government custody). If no sponsor was approved by that point, Judge Kavanaugh ruled that Jane Doe could go back to the lower court to ask the court to re-enter the order directing the government to allow her to access abortion, but he indicated that that decision could be appealed, further delaying her abortion. 

In short, he was willing to tolerate weeks of delay where a woman had decided to obtain an abortion, which pushed her further into her pregnancy against her will. The full panel of the D.C. Circuit quickly reversed Judge Kavanaugh’s opinion, and Jane Doe was able to obtain her abortion. 

Given this history and Trump’s promise, it’s imperative that senators press Brett Kavanaugh on whether he intends to protect a woman’s right to real access to abortion. If they don’t do their job, the impact could well be dire, and marginalized communities will pay the steepest price.