A month ago, Congress gave the Department of Justice (DOJ) and Federal Bureau of Prisons (BOP) increased authority to reduce the federal prison population. On March 29th, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), providing DOJ and BOP with the ability to expand home confinement eligibility. Then, Attorney General William Barr “applaud[ed] the substantial steps taken” by DOJ and BOP to “move vulnerable inmates out of these institutions” in an April 3 memo.
 
Barr’s applause came too soon. In the weeks following his memo, DOJ and BOP have done little more than issue confusing and conflicting guidance around who is eligible for release. Congress must intervene with the Emergency Community Supervision Act, which would address some of the uncertainty. The bill would provide explicit instruction to BOP on how to reduce the federal prison population in the midst of a “national emergency relating to a communicable disease.”     
 
The Emergency Community Supervision Act (S 3579 and HR 6400) was introduced by Sens. Cory Booker (D-N.J.) and Kamala Harris (D-Calif.), and Rep. Hakeem Jeffries (D-N.Y.) last month. It requires BOP to immediately place vulnerable individuals in home confinement or other community supervision outside of prison. The bill identifies “vulnerable individuals” as those who are pregnant – like Andrea Circle Bear, who gave birth in federal custody earlier this month and then died from COVID-19 yesterday; those with underlying health issues; and those who are age 50 or older. These are the very populations that public health experts argue should have their sentences commuted by the president in response to COVID-19.
 
While Sen. Booker believes the federal government has “an obligation to do everything we can to prevent the spread of this deadly disease, and that means moving certain incarcerated people to community supervision,” DOJ and BOP are falling far short of this responsibility. Since Barr’s April 3 memo, the number of people released to home confinement increased by just half of 1 percent, according to The Marshall Project. And with BOP flip flopping twice last week on who is eligible for home confinement, it is unlikely this percentage will increase without Congress’ intervention.     
 
With 30 deaths in BOP, and a staff death that BOP is not officially reporting, as well as 1,600 incarcerated persons and staff testing positive for COVID-19, there is no time for DOJ and BOP incompetency. Congress must go beyond the authority it provided to DOJ and BOP under the CARES Act and explicitly legislate reduction of the federal prison population, as Rep. Sheila Jackson Lee (D-Texas) called for during Friday, April 24’s Congressional Black Caucus town hall on incarceration and COVID-19. House Speaker Nancy Pelosi then echoed Lee’s call on MSNBC on Sunday.  
 
Congress must advance the Emergency Community Supervision Act with the next COVID-19 relief package. Congressional oversight of BOP from both sides of the aisle reveals no other choice. In addition to requiring BOP to release vulnerable populations to community supervision, the Emergency Community Supervision Act limits the use of pretrial detention and in-person supervised release. It also prohibits the use of incarceration for technical violations of supervised release. In addition to reducing the federal prison population, Congress should legislate incentives for states to reduce their jail and prison populations.  
 
Reducing jail and prison populations in the wake of COVID-19 is not a partisan issue. Groups across the ideological spectrum have asked all levels of the federal government to take action. At this moment, it appears that Congress is the only body that appreciates the life or death consequences of not decarcerating; that tens of thousands more people will die in jails, prisons, and communities without action. Congress can protect those lives by passing the Emergency Community Supervision Act when it legislates additional COVID-19 relief for the country.

Kanya Bennett, Senior Legislative Counsel, ACLU Washington Legislative Office,
& Charlotte Resing, Policy Analyst, ACLU Washington Legislative Office

No one should have to choose between their health and their vote, but during the Wisconsin primary, an estimated 19,000 Milwaukeeans were forced to risk their health to cast their primary ballots. Already, at least seven positive COVID-19 cases have been linked to in-person voting in Milwaukee, including one poll worker who may have interacted with hundreds of other voters, and 19 cases have been linked to the primary statewide. Wisconsin is a preview of what could happen in November if we don’t act. That’s why we’re fighting in the halls of Congress and in courts across the country to adopt common sense solutions to protect every voter’s right to safely cast a ballot during the COVID-19 pandemic and to protect their rights while doing so.

To protect our democracy, it’s imperative that we expand early voting, allow every eligible voter to vote by mail, and reduce the logistical, financial, and health barriers that inhibit voting by mail. Currently, there are approximately 16 states that do not allow no-excuse absentee voting by mail. In a number of these states, the limitations are codified in state law or within the states’ constitution, making litigation and congressional action necessary to allow people to safely vote this election cycle.

Advocacy

At the national level, we’re calling on Congress to increase federal funding for elections administration, and to mandate national standards for no-excuse absentee voting and a minimum 14-day early vote period, to ensure that every eligible American can vote safely in November. An increase in federal resources ⁠is necessary to help states safely administer elections and process a surge of mail-in ballots in a timely and secure manner.

We are also urging municipal, local, and state-level policymakers to expand access to absentee ballots and extend early voting periods so that their constituents can avoid physical polling locations or minimize their interactions with other voters if they choose to vote in person. Officials from across party lines have already expanded eligibility to vote by mail to all voters in a wide range of states, including Alabama, Indiana, New Hampshire, New York, and West Virginia. We’re bolstering these bipartisan efforts to expand access to vote by mail through litigation in a series of states.

Litigation

In Texas, we filed a lawsuit with coalition partners, seeking to expand Texans’ access vote by mail.

In Missouri and South Carolina, we are similarly suing to make absentee mail-in balloting available to all eligible voters. Vote by mail will be the safest option for many during this pandemic.

We are also challenging states that have burdensome, unsafe, or financially prohibitive restrictions to voting by mail. We are suing in Virginia, Missouri, and South Carolina so that voters can vote by mail without having to get a witness signature on their ballots ⁠— an unnecessary requirement and a clear violation of public health experts’ social distancing recommendations. Beyond challenging witness signature requirements, we are in court over Georgia’s failure to provide prepaid postage on mail-in absentee ballot envelopes, and in Montana, we’re suing to ensure that all voters can get assistance when sending their ballots to election officials. Voters shouldn’t have to go to extraordinary lengths, withstand financial pressure, or put themselves in danger to cast their ballots. 

In this tumultuous and uncertain time, one thing we know is that we must prepare for the general election in November.

We’ll keep fighting to safeguard both the nation’s health, and our democracy.

Dale Ho, Director, Voting Rights Project, ACLU
Sonia Gill, Senior Legislative Counsel, ACLU

Ange Samma, a 22-year-old green card holder from Burkina Faso, came to the United States seven years ago, when he was still a teenager. After studying electrical engineering at community college, he decided to enlist in the U.S. Army in 2018. He wanted to give back to his adopted country and also hoped joining the military would help him achieve his goal of becoming an electrical engineer.
 
Ange currently serves on active duty as a soldier in South Korea. But despite serving this country on a U.S. military base in a foreign country, he still hasn’t been able to obtain citizenship through his military service, as required by law. Without citizenship, Ange faces risks his U.S. soldier counterparts do not, for he does not have a right to consular services and protection. Ange also fears that his lack of citizenship sets him apart from his fellow soldiers serving in South Korea. 
 
Ange is unable to exercise the various privileges afforded to U.S. citizens, including voting in an election year, and sponsoring immediate family members. Ange has also found that, without citizenship, many of the roles in the military best suited to his skills and career goals are closed off to him.
 
Today we, together with the ACLU of Southern California and the ACLU of the District of Columbia, filed a class action lawsuit on behalf of Ange and thousands of non-citizens serving in the nation’s military who, like him, are entitled to apply for naturalization but have been obstructed from doing so. The lawsuit — Samma v. Department of Defense — challenges the Trump administration’s 2017 policy making it difficult, if not impossible, for non-citizen U.S. military members to obtain expedited citizenship, as Congress has long promised them.
 
Non-citizens have enlisted in the U.S. military in large numbers throughout our nation’s history, serving in the Revolutionary War and in every major conflict since the founding of the republic. They continue to make up a significant number of those fighting in today’s wars. Between 2011 and 2015, there was an average of about 10,000 non-citizens serving in the Army per year. The Department of Defense estimates that approximately 5,000 green card holders enlist in the military every year.
 
For more than 200 years, Congress has recognized the critical role non-citizens play in the military by promising them an expedited path to citizenship. Since 1952, that promise has been reflected in a provision of the Immigration and Nationality Act, which provides that any non-citizen who has served honorably in the U.S. military during a period of armed conflict may naturalize, regardless of their immigration status or length of residence in the United States. By waiving the typical requirements for naturalization, Congress intended for non-citizens to apply to naturalize almost immediately upon entering service and prior to deployment. Since 9/11, over 100,000 non-citizens have taken this expedited path to citizenship to naturalize on the basis of their military service.
 
The government’s 2017 policy deprives non-citizen service members of the path to citizenship promised by Congress and that they have earned through honorable military service. For decades, non-citizens could obtain the certifications of honorable service required for naturalization almost immediately upon entering service; now they must wait months, long after they have deployed to their duty stations. The policy also forces non-citizens to submit to lengthier, more invasive background checks and severely restricts the number of officials who can issue such certifications.
 
Government statistics demonstrate the devastating impact the government’s 2017 policy change has had on military naturalizations. In the year following its implementation, the government reported a 72-percent drop in military naturalization applications from pre-policy levels.
 
The 2017 policy is part of the Trump administration’s broader assault on immigrants, including those serving in the military. The government has specifically targeted immigrant service members through policies designed to deter them from enlisting. Several of our clients were also subjected to this policy and had to endure months, in some cases years, of waiting before they could ship to basic training and begin their service. Once enlisted, they and thousands of other immigrant service members must wait again, under the policy they’re now challenging, to become citizens. ICE has also ramped up its deportation of veterans, disregarding policies that require the agency to consider military service in immigration cases.
 
The government’s policy is causing real harm to immigrant service members. Two of our clients, whose immigration statuses are in question, fear the government may deport them at any time. Many of our clients are also unable to access professional advancement opportunities within the military because so many roles, including more specialized positions that suit their skill sets, are only available to U.S. citizens. Others are unable to sponsor their families to unite with them in the U.S.

The government’s policy also harms the military because immigrants are so critical to it. Non-citizen enlistment is integral to maintaining military recruitment numbers; in nearly every recruitment year between 2002 and 2013, the Army would have failed its recruitment goals for its active duty force without non-citizen enlistments. The Department of Defense itself has recognized that non-citizen recruits tend to be of “higher quality” than their citizen counterparts. They also perform better than U.S. citizen recruits once they enter the military, exhibiting substantially lower attrition rates. Finally, non-citizens are likely to possess skills vital to the military, including linguistic diversity and medical and information-technology expertise.
 
The promise of citizenship Congress made to non-citizen service members is not just an important recruitment tool. It is a moral imperative embedded in our history, values, and laws. If you are willing to make the ultimate sacrifice for America, you are — and should be — entitled to be an American.

Scarlet Kim, Staff Attorney, ACLU National Security Project
Noor Zafar, Fellow, National Security Project, ACLU