In the 1980s, fewer than 2,000 people were locked up in an immigration detention facility on an average day in America. 

Since then, that number has skyrocketed, quadrupling from 7,475 to 32,985 people detained by ICE per day between 1995 and 2016. Under the administration of President Donald Trump, the numbers have shot up even higher — at one point last year, a staggering 56,000 people were behind bars each night in an ICE detention facility. When asylum-seekers and other migrants in Customs and Border Protection facilities are included, the total figure rises to nearly 80,000 people detained by the U.S. government per day.

This explosive growth of the U.S. immigration detention system tracks the rise of mass incarceration in America, prompted by punitive legislation passed by Congress in the mid-1990s around the same time as the infamous “crime bill,” and later through a massive post-9/11 expansion. Since then, the number of detained immigrants in the U.S. has grown nearly every year under Democratic and Republican administrations alike. Now, it’s a sprawling prison system, with 40 new immigration detention centers opening their doors just since the beginning of the Trump presidency alone. 

For immigrants caught in this system, life is often a nightmare of rampant medical neglect, overuse of solitary confinement, sexual abuse, excessive use of force, arbitrary transfers to other facilities across the country, unreasonably high bond costs, and long periods spent away from family members and loved ones.
 
The COVID-19 crisis pulled the curtain back once again on the abuse and neglect that is deeply embedded in these detention facilities. While the rest of the country hunkered down in their homes, immigrants in detention have been forced to confront the pandemic in cramped conditions without adequate cleaning protocols or in some cases even basic sanitation supplies like soap. Guards have violently retaliated against immigrants protesting those conditions, and ICE has resisted efforts to secure their release for public health reasons.

A combination of lawsuits and public pressure eventually forced ICE to release more than 1,000 people from detention because of concerns over the spread of COVID-19 between mid-March and early May. Legal actions brought by the ACLU have secured the release of more than 450 people so far. But there are still more than 21,000 people in immigration detention — a drop since last year’s high that is largely attributable to a near-total shutdown of the southern border.
 
Whenever a new administration takes office, it will inherit an immigration detention system that has become an out-of-control, wasteful, and cruel behemoth. Drastically reducing the number of people trapped inside that system will be a crucial first step towards establishing a more humane and responsible immigration policy.
 
In recent weeks, the ACLU interviewed a number of immigrants who were released from detention due to concerns over the COVID-19 crisis. They shared the following stories of what it was like to be incarcerated in an immigration detention facility during the pandemic.
 
*Note: interviews have been condensed and edited.

JESUS

Dreamer, born in Mexico.
Detained at the Pike County Correctional Facility in Pennsylvania for over 12 months.

Credit: Marco Calderon for the ACLU

“My mother and father had been here for a long time. When I was 7, she came to pick us up in Mexico, and we crossed somewhere in Arizona. I’ve been here ever since then.
 
“At a young age I started working in restaurants. When I got to high school, in my mind I said, ‘Okay, what’s going to happen?’ I can’t get financial aid, at that point there was no DACA, so I wound up dropping out. I can’t complain about it because I became a plumber, which is what I’ve been for the past 18 years.
 
“My wife is an American citizen, and my kids were all born here. I’ve never been to Mexico. I mean even though it’s my country, it’s a strange country. I’ve been here all my life. I have an 18-year-old daughter, along with a 10-year-old, a 7-year-old, and my son, who’s 5.
 
“We recently moved to Pennsylvania, where I purchased a property to fix up and started working with a real estate company. We’re trying to build a future for our kids.
 
“I was already on ICE’s radar from a DUI in 2010. They picked me up at my house on April 2, 2019. I came out to warm up the car to bring my kids to school, when an officer grabbed me by my neck. They showed me their badge, which said ICE, and I realized they’d come for me.
 
“I told my wife to contact my lawyer because she was begging them, you know, saying ‘He didn’t do anything wrong. Why are you taking him?’ The kids were crying. It was very sad, but I asked my wife not to beg them. They took me to Pike County [Correctional Facility], and that’s when it started.
 
“When you first get there, you’re nervous. You don’t know what’s going to happen. So it’s very scary. You have people in there that get so stressed that they break down.
 
“And if they see that they send you to the nurse, who asks, ‘How are you feeling? Are you stressed?’ Well yes, of course.
 
“But if you start answering the questions honestly, all of a sudden they put you in what they call the turtle suit,* because they’re afraid you’re going to hurt yourself. So then you’re locked up in solitary for two or three days while they observe you. It makes it so much worse. You can’t contact your family. It’s really sad.
 
“Seeing your family through glass is hard. I told my wife after the first time she visited me that unless the kids really want to come, I don’t want you to bring them. It’s like you’re in there trying to distract yourself and once you see each other it’s like reopening a wound that’s closing.
 
“Once COVID started going we started hearing rumors that it was already in other cell blocks. The [ICE staff] kept on quitting. They were overworked always, but once COVID hit forget it, they were understaffed. It came to a point where we’d be on lockdown for 23 and a half hours a day.
 
“I’m high risk — I have high blood pressure and asthma — so they released me. When I got into the car, me and my kids just started hugging each other and crying. As a child I went through so much domestic violence. I didn’t want my kids to go through anything like that so I’ve always spent as much time as I can with them.
 
“Not being with them for a whole year was extremely hard, and seeing them again was the most amazing thing. And here we are, you know. Trying to push forward.
 
“I’m only out because of the coronavirus. Once it’s over, I’m scared that they might come and pick me up again.”

*An “anti-suicide smock” that resembles a straitjacket.

ADRIAN AND YASMANI

Asylum-seeking couple originally from Cuba.
Detained at Otay Mesa Detention Facility for over three months. 

Credit: Saul Martinez for the ACLU

Adrian: “Before I left, I was in charge of sending doctors on mission trips to other countries.”
 
Yasmani: “I worked at a radio and television agency, organizing programs and broadcasters for the night schedule.
 
“We left Cuba for Guyana, traveling to Brazil and then up through the Americas into Mexico. We were in Tijuana for months until our numbers were called so we could turn ourselves in at the border in San Ysidro [outside of San Diego, CA].”
 
A: “After being detained in a border detention center known as a ‘hielera,’ we were transferred to the Otay Mesa detention center. It was horrible there, like another world. When the coronavirus started, we went on a hunger strike because they weren’t giving us masks. [The guards] started attacking us. They would show up dressed all in black with tear-gas guns and threaten us, saying go back to your rooms.
 
“We didn’t want to; we wanted to be taken out of there. We did things right, waiting for the process in Mexico only to be treated like that. They didn’t care. They had masks and we didn’t.
 
“They took away about seven people from our pod, because a guard had coronavirus. He would take his mask off and walk around coughing. After he stopped coming to work for about two weeks, they placed our pod in quarantine.
 
“Everyone realized that our pod had coronavirus and that’s when we started worrying more. We were trapped in there, but they didn’t adopt any measures; they didn’t give us anything and we couldn’t keep any distance. In fact, if someone got sick, they would take that person out of the pod for a week and after that they would bring the person back. As someone who is HIV positive, I feared I would not survive if I got sick in there.”
 
Y: “After being released, we felt good to breathe fresh air again. But in my case, I also feel bad because I have an ankle monitor on — you feel like you’re still a prisoner. They call you at night at all times and again at dawn. During the process, you can’t work. We don’t have jobs, and we aren’t independent.
 
“But I think, if we made it this far, it was God’s will — we just need to wait it out until the process happens.”

NAHOM

Refugee and lawful permanent resident, originally from Eritrea.
Detained at the York County Prison in Pennsylvania for two months.

Credit: Allison Shelley for the ACLU

“I came here when I was 8 years old, from Eritrea with my family in 1998. We had gone through a lot of war, turmoil, and civil unrest. We were able to come to the United States as lawful permanent residents thanks to literal miracles from relatives here, and I’ve been here ever since.
 
“In 2007, I was diagnosed with Crohn’s disease. In the span of a few weeks, I went from weighing 200 pounds to 140. It altered my life completely. I was taking pain medications and anxiety medications. What got me into trouble with immigration was prescription fraud.
 
“I took a plea bargain because I thought it wouldn’t affect me in a negative way. I wasn’t thinking about immigration, I was just thinking about my parents back home. She’s 78, and he’s 91, and I needed to take care of them. They didn’t inform me it would affect me like this.
 
“Immigration picked me up from the jail and brought me to the York County Prison.
 
“The food there made me sick because of my Crohn’s disease, and I started losing weight. I couldn’t see a full-fledged doctor, just nurse practitioners. They didn’t really understand my condition, and it took awhile for them to get my medication. They treat you like you’re the scum of the earth. What I heard from other people as well is that they would treat a severe issue as if it was something to put a Band-Aid on.
 
“When COVID started, people went on hunger strike because the guards had masks, but we didn’t have anything. And they’d just wear them when they felt like it.
 
“They didn’t offer us anything until people stopped eating. It took a long time. There had already been a confirmed case in the jail, and they hadn’t done anything about it.
 
“I was amazed to get out. It was a literal miracle. I could properly take care of myself and have some sort of control over my life and health.
 
“I went straight to my mom and dad’s. They cried. They had thought the worst, since I’ve never been that long without them before. They were happy, but they were crying and worried at the same time.”

ALEJANDRA

Asylum-seeker, originally from Mexico.
Detained at the Eloy Detention Center for 8 months and the La Palma Correctional Center for 3 months. Both facilities are in Arizona.

Credit: Drew English for the ACLU

“Before turning myself over to immigration, I was waiting in Nogales, Mexico. I had trouble with the mafia there, and they cut off the thumb on my right hand. They told me to leave and that they didn’t want to see me again. I was in very bad shape, bleeding so much.
 
“I told a social worker that I was really scared and being followed, so she took me to [Border Patrol], and they said if I was in danger I should present myself at the port of entry.
 
“From Nogales they took me to the Eloy Detention Center, still in Arizona. At Eloy, they don’t have special conditions for trans women. They have us mixed in with the men. We suffered a lot of discrimination and abuse, but thankfully it didn’t go beyond that. 
 
“Eventually I was transferred to La Palma [Correctional Center]. When the coronavirus situation first happened people were all crammed together, with no face coverings. They didn’t give us hand sanitizer or gloves, none of that. The [corrections officers] would work and cough, without any face coverings or protection. And they come from the outside while we are inside. I think that’s how people started getting infected.
 
“A lot of people complained, but that’s when you realize they don’t care what you say. ICE said our right was to shut our mouths, take it, and wait for our turn to get out or be deported.
 
“When they told me I was getting out, I was so happy, because I’d been detained for nearly a year. I’m doing really well with my sponsors now, they’re beautiful people. They treat me very well. After so much struggling, here I am.”

ROGELIO

Undocumented resident, born in Guatemala. Has lived in the US since 2013.
Detained for 15 days at the Plymouth Correctional Facility in Massachusetts, then for three and a half months at the Strafford County Department of Corrections in Dover, New Hampshire. 

Credit: Channing Johnson for the ACLU

“When I first arrived, for about three years, I worked at pizzerias and restaurants. Now I work in construction. I like to spend time with my family and study English – that’s my hobby.
 
“It was just a day like any other. I was on my way to work at my construction job when ICE stopped us — they said it was a routine check, and that’s when they caught me.
 
“In detention, they give you a manual of what the rules are. They claim that you can go out in the courtyard and have fun or whatever, but it’s a lie. There’s no courtyard. I wouldn’t wish detention on my worst enemy because it truly is horrible. Some of the officers were very kind, but others just mess with you. One night my face and teeth were hurting and I told one of them I needed a painkiller. He said, ‘If you don’t go to bed, I’m going to put a mark on your record and send you to the hole.’
 
“We saw the news about the virus and started getting worried, because they were still bringing people in off the streets. We got scared when some people inside started having dry coughs. We were in bunk beds, all together, and couldn’t keep distance. There were a lot of sick people. I couldn’t say whether they had coronavirus or not, but they were rushed to the detention infirmary for eight, nine, 10 days. Some didn’t come back, and we never found out what happened to them. That’s when we got really scared, because we didn’t know what was going on.
 
“When I was detained, my wife was six months pregnant. I wasn’t there for the birth of my first-born child. That’s what I cared about — being with them. When I was released, he was about two weeks old.
 
“I was really happy, because I felt like I’d been in a contagion zone. I wouldn’t like to go back, and I wouldn’t wish it on anybody.”

DAMARY

Asylum-seeker, originally from Cuba.

Credit: Gary Bogdon for the ACLU

“I flew from Cuba to Nicaragua and then traveled by bus through Honduras, Guatemala, and then Mexico. I crossed the border, and immediately turned myself over to Border Patrol. From there, I was sent to detention in McAllen, Texas for several  days and then was transferred to Michigan where I remained for months until my release.
 
“I traveled by plane with my hands and feet in shackles. They said in case of an emergency you had to put on your life vest and oxygen mask, but if anything had happened I wouldn’t have been able to do it because of the shackles.
 
“I won’t say they treated me badly — nobody beat me — but I suffered a lot while detained. I had never been in prison before that, and everyone suffers there.
 
“I have high blood pressure and gastritis, so the coronavirus was a big worry for me because I’m a vulnerable person. If I were to catch the virus, I would be in more danger than most.
 
“We were at risk, some people there didn’t wear masks and they could infect us. Not everyone practiced social distancing around us. We were all very worried, and every day we became more vulnerable to catching the virus. But a person who is afraid to go back to their country and wants to fight for political asylum has to wait as long as it takes.
 
“When I was released, I was so happy. I didn’t know what to do so I cried and laughed. Now I’m home with relatives complying with all the immigration proceedings. But I know a lot of people who are still there are at risk and suffering. People that I came to care about a lot since we were there together for so long. It’s very painful.”

Ashoka Mukpo, Staff Reporter, ACLU

Britney Spears did it again — the pop singer has recently been in the news for her ongoing conservatorship and civil liberties battle with her father, Jamie Spears. This past week, Britney asked a California court to keep her father from being her conservator and having broad control over her life decisions and career. But what exactly is a conservatorship, and what are the implications of it? We sat down with Zoe Brennan-Krohn, staff attorney with the ACLU’s Disability Rights Project, to discuss Britney, conservatorship, and why this is a disability rights issue on our radar. 

Q: Can you briefly explain Britney Spears’ situation, and the implications of her conservatorship case?

Britney Spears is subject to a court-imposed conservatorship (in most other states this structure is referred to as a guardianship). This means that a court has determined she is unable to provide properly for her food, clothing, or shelter. The court has then granted other people — her conservators — the legal right to make decisions for her. News reports indicate that this has been the case for Britney since 2008. While we do not know the details of Spears’ conservatorship, in general, conservators like those in her case have the ability to make decisions about all aspects of her life — where she lives, where and how she spends her money, what medications she takes, who she spends time with, and other decisions.

Q: Can you please break down, what is conservatorship? What does it mean? 

Conservatorship means the court is taking away the civil liberties from one person and giving them to someone else. Sometimes it’s ALL of that person’s civil rights and civil liberties, and sometimes it’s partial. But it is the court weighing into the person’s life and saying you, as a person with a disability, are no longer able to make decisions about yourself and livelihood — such as where you live, and how you support and feed yourself — and we are putting someone else in charge of making those decisions. Because it’s such an extreme step to take, it’s really supposed to be a last resort. And once a court has put a person under a conservatorship, only a court can lift that conservatorship. 

Q: Why is the ACLU just weighing in on this now?

The ACLU has a long history of advocating for the rights of people with disabilities to live independent, self-directed lives as active members of their communities. Our concerns about conservatorship and guardianship are part of that commitment: ensuring that people with disabilities retain their civil rights and liberties and a belief that disabled people are protected through the exercise — rather than the removal — of these rights. 

This issue is getting attention right now because of Britney Spears’ fame. But she is only one of untold thousands nationwide under or at risk of guardianship or conservatorship.The ACLU has advocated for expanding supported decision-making, an alternative to conservatorship or guardianship where people with disabilities can choose trusted support people to help them direct their lives, without court intervention or loss of civil rights.

Q: Why is conservatorship a disability rights issue? 

People only end up under conservatorships or guardianships if a court identifies them as having disabilities. This includes people with psychiatric disabilities, developmental or intellectual disabilities, age-related disabilities like dementia, and other types of disabilities. 

Fighting against the unnecessary and dangerous removal of disabled peoples’ civil rights and civil liberties is a core belief of the ACLU’s disability rights work. This is not to say that all conservatorships are bad or wrong or unnecessary — conservatorships are complex and individual processes. But the ease with which disabled people can be stripped of their rights, and the extraordinary difficulties they face getting those rights back, is a systemic disability rights issue about which we have serious concerns.  

Q: How do people get into conservatorships? How does conservatorship limit a person’s civil liberties/rights? 

Typically a conservatorship happens when somebody comes into court saying they think this person needs guardianship or conservatorship. Often, it can be the parents or relatives of a person with a disability, or sometimes it can happen after a school or doctor tells the parents that they should get a conservatorship. What’s especially dangerous about conservatorships is they are typically viewed as harmless, including by courts and judges who impose them routinely. This is part of society’s paternalism and infantilization of people with disabilities. But in fact, conservatorships are a serious and often permanent arrangement.  

Conservatorships limit a person’s civil liberties, which we at the ACLU of course view as a core concern. But beyond that, conservatorships don’t necessarily actually make people safer: They can result in financial, physical, or emotional abuse. 

Q: What laws or policies exist that protect someone from a conservatorship of this kind? What would the legal process to lift the conservatorship look like? 

Most state laws have some safeguards in place. In California for example, the court is supposed to consider which less restrictive alternatives to conservatorship have been tried before imposing a conservatorship. The judge should ask a person seeking conservatorship, “What else have you tried? Have you tried supported decision-making? Have you tried joint bank accounts or money management classes? Have you tried a system of text reminders to make sure  the person gets to their medical appointments?” And if the person seeking conservatorship hasn’t tried these options, the judge should deny the conservatorship. There should only be a conservatorship if these other options have been tried in good faith and really aren’t working. But in reality, conservatorships are often imposed even when other supports and alternatives might work.  

To lift a conservatorship, the laws are different state by state, but a conservatee can go to the court to say they want this changed or lifted, and the court should consider it. However, it’s very difficult. Judges are very reluctant to lift conservatorships, and only the judge has the power to do so. You aren’t necessarily entitled to a lawyer to help you get out of a conservatorship either. And in many cases, it is virtually impossible for a person to access the courts, especially if their conservator doesn’t agree that the conservatorship should be lifted. How would the person — who cannot choose where they live or where they go or who they associate with — figure out how to get before a judge to challenge that they cannot make these decisions? It can be a Catch-22. As a general matter, it’s much easier to get into conservatorships than to get out of them. 

Q: We don’t know Britney’s diagnosis or details about her particular situation. How do we know this case is a civil rights/liberties issue?

We don’t know if Britney Spears identifies herself as a person with disabilities, or what, if any, diagnoses she has received. But by virtue of being under a conservatorship, we know that the court has determined that she is disabled, and has stripped away her civil rights because of that disability. So it’s inherently a civil rights/civil liberties issue. 

What we don’t know is what the info the court had, what Britney has said about what she wants specifically, what other options have been tried, or what her lawyers have said. So while it’s possible that this is an example of a thoughtful conservatorship that was implemented as the last resort and is being reviewed carefully, thoroughly, and regularly, that is not the norm for conservatorships, and it appears inconsistent with what we see of Britney publicly. Our view is that in general, conservatorships should be viewed with skepticism and used as a last resort.  In most cases, it’s done routinely and without substantive engagement. 

Q: Are there alternatives to conservatorship that can help keep a person with a disability and others safe, without limiting their rights? 

Yes, there are plenty of alternatives to conservatorship, and they are important. Everyone — with and without disabilities — uses supports to make decisions. We ask friends for advice, research issues, and make lists of pros and cons. These same options should be available to people with disabilities. Powers of attorney, advanced medical directives, shared control over finances, and supported decision-making are all options for disabled people to keep their rights and get support in making decisions, just like nondisabled people do. 

Q: What would you say to people that think the conservatorship in Britney’s case is for the best? And that the risks of harm (emotional/material/physical) to herself and/or others are too high?

We don’t know all of the risks and benefits at play, so we can’t speak to the specifics of her case. But we do know that the conservatorship itself also has risks. The risks in conservatorship can include financial, physical, and emotional abuse. And even when there is no abuse, conservatorships limit a person’s ability to advocate for themselves, learn from their decisions and mistakes, and grow and develop. There is a risk in being told that your opinions, your likes and dislikes, don’t matter — it makes it harder to stand up to abuse or neglect. So in any conservatorship, including this, we would want to know that the real risks (and benefits) of both conservatorship and its alternatives have been seriously weighed.  

Q: Do ALL people with disabilities have a right to lead self-directed lives and retain their civil rights? Shouldn’t it be on a case by case determination?

All people with disabilities have a right to lead self-directed lives and retain their civil rights as much as possible. What that looks like will be different for different people — some have significant support needs for some or all of their lives. But as a society we need to find ways to support people with disabilities and recognize that they are individuals with a full range of human experiences and preferences who have the right to exercise their civil liberties. 

Eva Lopez, Communications Strategist, ACLU

In the wake of George Floyd’s murder, protestors throughout America march to demand an end to police abuse. Advocates for the compelling movement to divest from the police and reinvest in communities convincingly argue that significant portions of the tax dollars we spend on policing would be better spent supporting the needs of communities of color and on alternatives to policing itself. Continuing to rely on overfunded police departments, which seem all too happy to continue to enforce laws in a racist manner and unwilling to limit aggressive uses of force, does not advance public safety.

Consider how the racial disparities in the enforcement of marijuana laws have contributed to the mass incarceration of persons of color, or how the enforcement of trivial criminal infractions – like selling loose cigarettes or driving with a broken tail light – have repeatedly led to the murder of Black people. These practices more than adequately illustrate the devastating scope and impact of America’s policing problem.

But even where defund/divest efforts succeed, police departments may be able to undermine some of this movement’s most important objectives. Certain achievements, such as creating non-police infrastructures for mental health crisis responses, will be difficult to circumvent, but when it comes to the over-policing and over-surveillance of communities of color, a foreseeable problem awaits. In response to a loss of funding, police departments are likely to consider shifting from more expensive, racist, human policing to more cost-efficient, racist, technology-driven policing. Should this play out, we will be left an altered but equally dangerous beast to fight.

And there is a very real risk of that happening. It is a risk the Movement for Black Lives has focused upon at length, and it is time we all do the same.

Surveillance Technologies and Racism

Like policing itself, investigations into surveillance technology deployments have revealed, time and again, that they are overwhelmingly unleashed against communities of color. These technologies include:

• Automatic license plate readers (ALPRs) that track wherever you drive;
• Cell-site simulators (a.k.a. “Stingrays”) which use your cell phone to locate you and track your movements;
• Surveillance cameras with facial recognition, which can track you whenever you are in public, and are far more likely to misidentify persons of color;
• Surveillance lightbulbs, which transform streetlights into cameras with microphones; and
• Surveillance planes with powerful wide-area cameras that can record the public movements of every person in an entire city.

The list goes on and on.

Increasing the mass surveillance of communities of color will increasingly make residents feel like they live in an open-air prison. Even worse, it would place those residents at extreme risk, because all police encounters begin with surveillance. Increased community surveillance always leads to increased encounters between residents and the police, and as we know too well, more police encounters with Black people lead to more injury and death. In other words, the rise in this kind of persistent surveillance will help maintain or further increase the racial disparities in whom police officers harass, arrest, and kill.

A Shift to Racist, Surveillance Tech-Driven Policing

We’ve already seen police departments respond to a loss of funding by replacing human policing with surveillance technologies that target communities of color on an extraordinary scale.

In 2013, after Camden, New Jersey’s police department was dissolved, a mass deployment of surveillance technologies transformed Camden into one of the nation’s most surveilled cities. The result, as observed by Vice News, was that it became illegal in Camden to be “walking while being white and … standing while being Black,” because the police assume those who are white and walking are buying drugs and persons who are Black and standing still are selling drugs

The result is that a Black Camden resident who is simply standing outside their home is likely to find themselves being confronted by a police officer. Despite suggestions to the contrary, Camden isn’t an example of how to reimagine policing; rather, it is a warning.

Even if police budgets are defunded, or if the police are prohibited from using tax dollars to purchase surveillance equipment, this problem could persist, because police departments regularly use civil asset forfeiture funds or privately raised money or in-kind donations to acquire surveillance technologies without public knowledge.

The Law Enforcement 2.0 Problem

The potential post-defunding/divestment shift from racist human-driven policing to racist, surveillance tech-driven policing presents what we call the “Law Enforcement 2.0 Problem.” 

This problem has three components:

• The first is “Policing 2.0,” where more financially lean, tech-dependent police forces surveil communities of color more invasively and constantly than ever before.
• The second is “Stop and Frisk 2.0,” where the police are able to surreptitiously monitor potential “suspects” looking for any reason to engage them in the same racist and violent manner that led to the current policing crisis.
• The third is “Mass Incarceration 2.0,” where constant surveillance leads to more arrests in overpoliced communities and more persons of color being imprisoned for activities that go unnoticed in white communities.

Despite making some progress in the fight to decrease the scope and scale of the criminal legal system, the mass surveillance that drives Law Enforcement 2.0 threatens to make the decarceration fight feel like a bathtub where the stopper is pulled out, but the water is left running. The increase in people being freed from prison will be matched or exceeded by those being returned to it. And one can only imagine the trivial infractions that will be observed and used to return persons on parole to jail.
This is not what progress looks like.

The CCOPS Backstop

So how can we ensure police departments cannot respond to successful defund/divest efforts by pivoting toward the surveillance technology-driven Law Enforcement 2.0 Problem? The answer is found in the Community Control Over Police Surveillance (CCOPS) effort, which the ACLU and 17 other national organizations launched in 2016, and whose laws currently protect 13.9 million residents in 14 U.S. jurisdictions. Under CCOPS, police departments are prohibited from secretly and unliterally acquiring and deploying surveillance technologies, regardless of how they are obtained.

Instead, police departments seeking to acquire and use this kind of technology must provide significant information to the public — including proposed use policies and information about potential adverse impacts on civil rights and liberties — to local residents in advance of a public hearing.
During the mandatory hearing, the public can weigh in on the proposed acquisition, which would only be allowed if the local legislature (e.g., city council) votes to allow it. If a city council goes rogue and approves a surveillance technology the public opposes, the public will know and can vote them out of office. By taking this power away from the police, CCOPS provides an important backstop the defund/divest and abolitionist movements need to protect their victories.

And it is important to note, should local communities decide they want to ban certain surveillance technologies from the outset, that they can add outright bans into their municipalities’ CCOPS bills, as San Francisco did with facial recognition.

The changes to policing we are pursuing together must be real and lasting. Combining defund/divest efforts with protective CCOPS legislation will strike a powerful blow against racist policing, whether in human or technological form, while preventing the police from thwarting the goals of the broader movement.

For more information on how to start a CCOPS effort in your city, visit www.CommunityCTRL.com.

Chad Marlow, Senior Advocacy and Policy Counsel, ACLU,
& Gillian Ganesan, National Campaign Strategist, ACLU