Arizona chose — for more than a decade — to violate the constitutional rights of the people in its custody. It denied medical care to the men and women incarcerated in the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) for years, causing untold suffering and deaths. It ignored the mental health needs of people in ADCRR, spraying them with pepper spray or shooting them with pepper ball guns instead of providing treatment. And it buried people in solitary confinement for years on end, sometimes for the terrible misdeed of being assaulted.

All the while, ADCRR denied that these constitutional violations were occurring and frequently told outright lies to the court presiding over Jensen v. Shinn, the lawsuit challenging these unlawful conditions brought by the ACLU’s National Prison Project, the ACLU of Arizona, the Prison Law Office, the Arizona Center for Disability Law, and the law firm of Perkins Coie LLP in 2012.

Finally, Arizona is being held to account. This month, U.S. District Judge Roslyn O. Silver issued a preliminary but sweeping remedial order, telling state officials what they must do to bring standards up to constitutional muster — and that the state will not weasel out of its constitutional obligations this time.

The remedial order is the outcome of a 15-day trial in November and December 2021. After reviewing evidence and testimony at trial, Judge Silver concluded that ADCRR systematically violated the Eighth Amendment prohibition on cruel and unusual punishment by having a “grossly inadequate” medical and mental health care system, and by depriving people in solitary confinement of “basic human needs” including adequate nutrition, exercise, and social interaction.

Among the examples of ADCRR’s utter failure to meet constitutional standards was Kendall Johnson. At age 33, the former basketball player started experiencing numbness in her feet and legs and asked for medical care. ADCRR failed for years to diagnose her multiple sclerosis or provide her with the treatment that could slow the progression of the disease. Instead of doing the tests necessary for diagnosis, the ADCRR doctors thought that Ms. Johnson might have conversion disorder — an extremely rare mental health disorder in which a person believes they have a disease. Due to ADCRR’s failures, by the time of her testimony, at age 37, Ms. Johnson was bedridden, unable to care for her most basic needs, read due to her vision loss, and eat without assistance.

Another example was Rahim Muhammad, a man diagnosed with schizophrenia who was held in solitary confinement for almost seven years, despite ADCRR’s own classification system finding that he did not pose a security risk that warranted such isolation. Mr. Muhammad spent most of the year leading up to trial on suicide watch, where he was pepper-sprayed almost 50 times for banging his head on the wall of his cell, usually while clearly delusional. When — after a year — ADCRR finally transferred him to an inpatient mental health unit where he was allowed out of his cell more often and received a minimal amount of treatment, Mr. Muhammad stopped harming himself and was no longer subjected to pepper spray.

Sadly, Ms. Johnson and Mr. Muhammad are just two of the thousands of people whose rights ADCRR violated.

On Jan. 9, 2023, Judge Silver issued a preliminary order setting out what she will require of ADCRR. Among other things, she will require ADCRR to hire and train sufficient medical, mental health, and correctional staff to provide adequate care to and monitoring of the people in its custody.

The order requires ADCRR to provide clinically appropriate medical and mental health care, including specific actions such as assigning each person a primary provider, improving the electronic medical record system, and ensuring that people are actually sent to the specialists they need. The court also ordered that the care provided will be assessed both quantitatively and qualitatively. The court’s recognition that the care must be qualitatively appropriate should mitigate the tendency of ADCRR, like many prison and jail systems throughout the country, to treat health care as a box-checking exercise. For example, ADCRR has long counted two-minute interactions between mental health staff and a person with a serious mental illness as a counseling visit, even if they are just speaking to each other through the crack between the cell door and the wall. It has also considered a visit to a nurse at which no tests or evaluations are conducted, regardless of the seriousness of the person’s complaint, to be adequate care. The court’s order should put a stop to these performative but ineffective practices.

The court established a presumptive two-month time limit for people to stay in solitary confinement, where many have languished for years. The court will also require ADCRR to: ensure that everyone is let out of their cells for at least 14 hours per week; provide people in solitary confinement three meals a day, two of which must be hot; repair and maintain the facilities in a habitable condition; and use an electronic system to track the actions of correctional officers, to ensure that they are conducting welfare checks and not improperly denying people recreation and other out-of-cell activities.

The court’s order is a strong statement that constitutional rights must be respected, even in a prison system that has turned mistreatment, cruelty, and suffering into the norm. This outcome was possible only because of the courage of Ms. Kendall, Mr. Muhammad, and the many other people who came forward to demand recognition of the rights that the U.S. Constitution protects for themselves and others in ADCRR custody. We hope Arizona will rise to the challenge of treating the people in its custody with the basic human dignity that each and every one of us deserves.

The Supreme Court’s decision to overturn Roe v. Wade may feel like it’s said and done, marking the end of the federal right to reproductive freedom and bodily autonomy. But we are not without power. With dedicated members and activists behind us, the ACLU has been embedded in the fight for reproductive freedom for decades, and is no stranger to challenging sizable odds.

As we remember Roe v. Wade on the 50th anniversary of the decision, take a look back at some of the many fights led by the ACLU along the way. Roe being overturned is an enormous set back, but we have fought uphill battles before and won’t stop now.

Long before I joined the ACLU, I was just a skinny brown kid who grew up in the “Inland Empire” — a region of Southern California that includes 52 cities spread across Riverside and San Bernardino Counties. Even when I’ve moved away at different points of my life, the Inland Empire has always been a place that I’ve called home.

However, my younger self could never have imagined that the same field I played club soccer on at Riverside Poly High School was used for a Ku Klux Klan recruitment and cross-burning event less than a century earlier. I was unaware that I attended my high school homecoming a few streets down from where “The Birth of a Nation” — a horribly racist film that glorified the lynchings of Black Americans — once hosted its world debut at the Loring Opera House. Even as of a few months ago, I didn’t know that Riverside’s Hall of Justice sits fewer than two miles from where Lowell Elementary School — which primarily educated Black and Latinx students — was firebombed and destroyed during desegregation protests in 1965.

These are facts I learned about my home as a legal fellow with the ACLU. I am part of a team of attorneys who are bringing the first challenge to death penalty prosecutions under the landmark law known as the California Racial Justice Act (CRJA). We represent two Black men, Russell Austin and Michael Mosby, each of whom face the death penalty in Riverside County — one of the most prolific death-sentencing counties in the nation. Today, a Riverside Superior Court judge will determine whether our two clients will receive an evidentiary hearing under the CRJA. At an evidentiary hearing, we will introduce evidence to prove that our clients received unequal treatment compared to white people with similar cases and will argue that they should therefore be deemed ineligible for the death penalty.

ASSOCIATED PRESS

The CRJA has an ambitious goal: rooting out racism from the criminal legal system. This law allows defendants to challenge more surreptitious forms of implicit and institutional racism in their cases.

It’s important to underline just how significant the CRJA is. The Supreme Court decision in McCleskey v. Kemp closed off constitutional challenges that rely on showing the racist application of the death penalty. Instead, the court required a condemned person to prove that “the decisionmakers in his case acted with discriminatory purpose.” Otherwise, the court infamously said, a theory like Mr. McCleskey’s could open the entire criminal legal system to constitutional challenge for its racist operation. In his dissent, Justice William Brennan said such a concern exhibited a “fear of too much justice.” The CRJA takes direct aim at the court’s decision in McCleskey by allowing people to challenge racism in all forms — explicit, implicit, and structural — in the administration of the criminal legal system, without requiring them to take on the added burden of showing intent in their own cases.

Enabled by the CRJA, Mr. Austin and Mr. Mosby have introduced four statistical analyses from three scholars that reach the same conclusion: Riverside’s death penalty system more severely punishes Black people than any other racial group.

At each step of prosecutorial decision-making in Riverside County, Black defendants are on average treated more harshly than any other racial or ethnic group. In fact, one analysis found that Black defendants in Riverside are approximately nine times more likely to have the prosecution seek death and 14 times more likely to have death sentences imposed against them than white defendants whose cases are similar. Just as significant is the way that Riverside prosecutors have avoided seeking death sentences in homicide cases with Black victims. Cases with Black victims are 61 percent less likely to result in a death sentence than cases with white victims.

While these statistics are in themselves striking, they tell only a partial story of Riverside’s death penalty system. When the California legislature developed the CRJA, it acknowledged that in order to develop a truly fair and equitable criminal legal system, we have to be willing to understand how and why systems functioned unfairly and inequitably in the first place. In short, the CRJA stands for the notion that our criminal legal system’s past is inseparable from our criminal legal system’s present.

To help the court better understand the development and operation of Riverside’s unjust and racist capital punishment system, Mr. Austin and Mr. Mosby also introduced historical evidence that demonstrates a clear, cross-generational record of state-sponsored maltreatment and vigilante violence exacted against Black people in Riverside County.

Historical accounts show that proud members of the Ku Klux Klan (KKK) and KKK-endorsed candidates once dominated Riverside’s local law enforcement and government offices. In positions of immense local influence, local government officials reinforced institutional segregation and designed an intricate system of oppression that harmed non-white Riverside residents throughout the 20th century. Even once legally sanctioned segregation was in the rearview, segregation continued, and more covert forms of racial and discrimination persisted in Riverside.

From the mid- to late-20th centuries, law enforcement raids brought terror into Black neighborhoods in Riverside. Even over the last few decades, Riverside law enforcement officials have faced several national controversies for killing and assaulting Black and Latinx people. The Riverside County District Attorney’s Office has time and again demonstrated an unwillingness to protect the lives of people of color by failing to seek criminal prosecutions of county officers for shooting unarmed victims.

Today, the Inland Empire’s law enforcement and criminal legal systems — which remain sources of immense distrust for many Black residents — disproportionately impose the death penalty against Black people. California’s death row population — the largest in the country — includes 127 people sentenced to death in Riverside and San Bernardino counties. Nearly three quarters of those were people of color, including 43 Black people (roughly 34 percent).

We can’t tell an honest story about the Inland Empire — and we can’t understand how our criminal legal system operates — unless we include the violence and discrimination suffered by Black, Latinx, Asian, and Indigenous people here.

If the far-reaching potential impact of the CRJA is to be realized, our courts must acknowledge that no form of racism, overt or covert, is legally acceptable. People in the Inland Empire — Mr. Austin and Mr. Mosby included — deserve an accessible legal system that takes responsibility for our society’s past failures and advances the creative solutions of the CRJA to build a more just, equitable future. Our legal system and its actors cannot be afraid of too much justice.