Privacy SOS

How to fight for justice in a Jeff Sessions and Donald Trump America

The vast majority, or about 86%, of the over two million people locked up behind bars in the United States are under state or local control. They were arrested by state or local police, prosecuted by state or local prosecutors, sentenced by state courts, and incarcerated in state or local prisons or jails. State and local laws say whether a person can be held in solitary confinement in state and local facilities, and if so, for what reasons, for how long, and in what conditions.

The state and local police who arrested these millions of people were subject to state and local laws and policies governing surveillance powers, and could only make arrests for violations of state and local laws. When those state and local police detained people, they either assisted or did not assist federal immigration authorities by holding people for ICE—depending on state law and local policy. Police departments had discretion to decide what crimes and communities they wanted to police, and how, and what crimes and communities they didn’t want to police. Departments could stop making arrests for crimes of poverty like selling sex and drugs, or they could double down on these types of arrests.

When state or local prosecutors prosecuted those millions of people currently in state and local jails and prisons, they did so using state laws which often grant them broad powers, such as three strikes, mandatory minimums, and other backward statutes that provide prosecutors with almost godlike power to coerce plea deals out of mostly poor, largely underrepresented defendants. Those prosecutors had discretion to decide which cases should be prosecuted, on which charges, and which cases should be dropped.

State law determines whether poor people can be held in confinement pre-trial simply because they cannot afford to pay bail or bond. (A traveling constitutional lawsuit is challenging the legality of this practice; one of the suits is currently before the Massachusetts Supreme Judicial Court.)

When people get out of state or local custody, they deal with state and local parole and probation systems, which impose fees and fines governed by state and local laws. If people make a mistake while on parole or probation—such as using drugs or failing to appear for a weekly check-in—state and local laws determine whether that person will go back to jail or prison as punishment.

In all of these ways and countless more, state and local legislators, prosecutors, and police have immense power to shape and enforce the criminal legal regime in the United States. So while civil rights and civil liberties loving Americans should indeed feel a chill down their spine at the sight of Donald Trump standing in the oval office with his newly confirmed Attorney General Jeff Sessions, all is not lost. The fight at the state and local level—where it counts the most—goes on.

Here are five things all states and communities should do to push back against the coming wave of oppressive policies from the federal government, and to continue the work of the modern civil rights movement.

  1. End mandatory minimum drug sentencing. Bills currently before the Massachusetts state legislature would end mandatory minimums for drug crimes. Mandatory minimums take power from judges and place it in the hands of prosecutors, who use them to coerce plea agreements from defendants who might otherwise go to trial to exercise their constitutional rights. They produce a conveyor-belt like justice system devoid of justice, in which drug defendants often decide to offer guilty pleas because they fear going to trial. If you live in Massachusetts, contact your state representatives and tell them you support SD500 and HD1794.
  2. Pass local protections for immigrants. Make sure your local police do not serve as federal immigration authorities by passing the Trust Act in your local community. A bill before the Massachusetts state legislature would create these protections statewide; call your legislators and ask them to support the Safe Communities Act, SD1596 and HD3052.
  3. Enact state laws to protect privacy, and hold your local police accountable for surveillance. Contact your state legislators and ask them to support bills to protect electronic privacy. In Massachusetts, the Electronic Privacy Act would go a long way toward bringing our laws in line with modern communications tools. Pass local legislation at your town or city level requiring transparency, public accountability, and a democratic governance system for all police surveillance technology acquisitions. Police shouldn’t buy or use surveillance equipment in the dark. If we want to live in a free, open society, we must hold local police accountable and make sure their surveillance doesn’t run afoul of our values. Pass the Community Control Over Police Surveillance act in your local community—activists are working to do so right now in Somerville and Cambridge, Massachusetts. (In San Francisco, advocates took it one step further by divorcing their police department from the FBI’s Joint Terrorism Task Force—an admirable goal for all local activists.)
  4. Push prosecutors and police to stop enforcing low-level offenses. Trump’s recent executive order on law enforcement and crime says his administration will prosecute “ancillary criminal offenses.” That sounds a lot like the discriminatory “broken windows” policing theory, which says that aggressively policing low-level offenses leads to safer communities. But we know that such aggressive policing actually just leads to more arrests and incarceration of predominately Black, brown, and low-income people. That kind of policing doesn’t keep us safer; instead, it traps people in the system and makes it more difficult for them to get housing, jobs, and educational opportunities. Pushing back on broken windows policing and prosecutions at the state and local level will also protect undocumented immigrants by keeping them out of federal immigration detention and deportation proceedings.
  5. Decriminalize all the (“crimes against society”) things. Here in Massachusetts voters acted three times in twelve years to decriminalize marijuana. In 2008 we voted to decriminalize possession of an ounce or under for personal use. In 2012 we legalized medical marijuana. And in 2016 we voted to tax and regulate the use of recreational marijuana—basically full legalization. After decrim passed in 2008, the number of people arrested for marijuana offenses in Massachusetts plummeted. We want police and prosecutors to stop aggressive enforcement of low-level offenses, but changing the law is what we ultimately need to do to keep our people out of the system and at home with their families. We need drug treatment, not jail for drug users. We need educational opportunities, good jobs, and affordable housing, not aggressive enforcement of quality of life crimes like disorderly conduct and trespassing.

There’s no doubt that Attorney General Sessions and Donald Trump can do real damage. Their executive orders on criminal justice issues suggest we will have to fight harder against improper law enforcement information sharing, legislation to further criminalize interactions with the police, and a reactionary political framing that says Black Lives Matter protests are more dangerous than the state violence they condemn.

We are in a frightening time, there’s no question about it. But we cannot give up, and we cannot give in—not to the hysterical fear mongering nor to the divisive rhetoric that pits Black against brown, white against person of color, and citizen against non-citizen.

Everything we were fighting for six months ago is still in dire need of fixing. And luckily, most of what we need to do to address the gravest wrongs in our criminal legal system we can do at the state and local level. So don’t despair. Get out there and get organized. After all, our freedom is on the line.

© 2021 ACLU of Massachusetts.