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Blog by Rahsaan Hall, Director of the Racial Justice Program, ACLU of Massachusetts

America’s growing awareness of mass incarceration and the over-incarceration of people of color has sparked something nationwide: From Birmingham to Boston, voters are electing progressive, reform-minded prosecutors.

Suffolk County District Attorney candidate Rachael Rollins last year announced that, if elected, her office would decline to prosecute 15 misdemeanors and low-level felonies in Boston and surrounding municipalities. The list included breaking and entering when it is for the purpose of sleeping or seeking refuge from the cold and there is no property damage, minor in possession of alcohol, drug possession, resisting arrest as a standalone charge, and minor driving offenses.

“I believe that we are spending too much time on petty crimes that are clogging up our system and costing us more money,” she told Fox’s Tucker Carlson last September. “They’re more social problems than they are crimes.”

For these offenses, she said, incarceration should not be “the only tool,” and people could instead be referred to drug treatment or other rehabilitative programs. Her pledge was hailed by criminal legal reform advocates but sharply criticized by police lobby groups and others in law enforcement.

In fact, a new ACLU analysis of 2013-2014 data shows that the Suffolk County District Attorney’s Office (SCDAO) has a history of dismissing large portions of the offenses current District Attorney Rachael Rollins indicated during her campaign she will not prosecute. Our analysis raises the question: Why are people being charged for offenses that are not being prosecuted? This especially matters when these racially disparate arrests and prosecutions seriously disrupt the lives of people of color and poor people.

Under the previous district attorney, nearly 60 percent of all the charges from Rollins’ campaign “decline to prosecute” list that were prosecuted in the two-year period we analyzed were ultimately dismissed. Seventy-two percent of cases involving only “decline to prosecute” charges that went to trial resulted in acquittals. In total, 10 percent of all of the cases prosecuted and resolved by the Suffolk County District Attorney’s Office were “decline to prosecute” exclusive cases in which the case was either dismissed or the person was acquitted.

Read our findings

Our analysis also reveals another link in the chain of oppression constraining communities of color in the Boston area: Black people in Suffolk County were disproportionately charged with offenses on Rollins’ “decline to prosecute” list. Over the two-year period, Black people were three times more likely to be charged with trespass or resisting arrest than white people, and four times more likely to be charged with a motor vehicle offense. Black people were not only charged at higher rates: In many of the “decline to prosecute” categories, Black people were more likely to face an adverse disposition, like a conviction with a term of probation or incarceration.

District attorneys make choices every day that have life-altering — and often devastating — consequences for people, families, and communities. From unmanageable fees and fines to barriers to employment, housing, and loans, criminal records too often make it even harder for people to be safe, healthy, and free. Being charged with a crime that ultimately isn’t prosecuted is nevertheless an injustice; it sets people even further back when they most need a helping hand.

Poor people charged with property offenses are often left with excessive fines and fees that make it harder to survive. People struggling with substance use disorder — particularly opioid use disorder — face an increased likelihood of dying from an overdose upon release from custody. Immigrants can be detained and deported. And any person who is arrested and charged runs the risk of being held on unaffordable bail — in custody for days, months, and years — simply for being arrested.

Declining to prosecute these misdemeanors and low-level felonies is a reform that’s hugely impactful, but woefully misunderstood. When district attorneys decline to prosecute low-level offenses, they can instead pursue social service or public health alternatives, benefiting individuals, families, and communities.

It also costs a lot to prosecute crimes. When district attorneys decline to prosecute certain offenses, they’re able to instead invest time and resources into addressing recidivism, developing non-punitive programming for people with substance use disorders or mental health issues, and investigating offenses like sexual assault and homicide.

Declining to prosecute some low-level offenses is a transformative choice that district attorneys in Massachusetts and nationwide should make to address racial disparities, impact over-policing in communities of color, and increase government accountability and transparency. It’s time we transform our criminal legal system from a system rooted in punishment and retribution to one that centers human dignity and public health.

The data shows us that this reform is an important — yet hardly radical — step forward.

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• Read more about In Boston, people are charged with crimes that waste taxpayers’ money and prosecutors’ time

There’s a lot to celebrate this Women’s History Month: A record number of women serve in the 116^th Congress. There are more women running for a single party’s presidential nomination than ever before. Across the country and in a variety of ways, women are resisting, persisting, and rewriting history.

Yet, people still face gender-based violence, discrimination, and institutional barriers every day. And no matter how far we’ve come, women will not be equal members in society until all people have full access to reproductive health care.

Indeed, this current White House poses an unprecedented threat to women’s equality and well-being: The Trump-Pence administration is waging an all-out assault on health care access and reproductive rights. The country’s new attorney general is a fierce critic of abortion rights, and the elevation of Brett Kavanaugh to the Supreme Court puts Roe v. Wade in grave danger. Across the nation, state legislators have quietly passed more than 400 medically-unnecessary restrictions, creating a web of roadblocks that push safe and affordable abortion out of reach.

In recent years, Massachusetts has charted a different path, and we must continue to lead. At a moment in history marked by violent, anti-abortion rhetoric, Massachusetts has the responsibility to send a message that women’s rights are not up for debate.

Take action to protect abortion access

Last legislative session, Beacon Hill eliminated archaic criminal penalties for abortion care. But still, our current laws maintain barriers to abortion for many women based on their age, their stage of pregnancy, or their income. In Massachusetts, our laws too often force people to seek approval for abortion care outside the doctor-patient relationship or to cross state lines in order to access safe, legal, and medically-necessary abortion. For a person without the resources or support needed to run legal gauntlets or travel long distances, complex medical decisions are made even more difficult. And every obstacle that delays care also increases complications or health risks.

The simple fact is that, even today, Massachusetts accommodates unnecessary, burdensome, and sometimes insurmountable political interference between a woman and her health care.

The ROE Act will help people in Massachusetts access safe, legal abortion by removing provisions that delay or deny care. If passed, it will ensure all people can access abortion without the state dictating when, how, or why.

Abortion is health care, and health care is a human right. Our laws should support and prioritize women’s health, not marginalize and otherize it. Instead of limiting health care options, we need to support a woman’s ability to make the best reproductive health decision for her, based on her circumstances. That’s how we treat every other personal medical decision in this Commonwealth.

This Women’s History Month, we need to make Massachusetts a national leader in reproductive freedom. Contact your state legislator, and tell them you support the ROE Act. Together, we'll work to remove obstacles to abortion and expand access for everyone.

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• Read more about Breaking down barriers to abortion access

This blog post was authored by Technology for Liberty Program intern Alex Leblang.

David Mack was unprepared for a political confrontation with U.S. border agents as he reentered the United States through New York’s JFK airport. As an Australian with a U.S. work visa, he expected the usual questions from a U.S. Customs and Border Protection (CBP) agent, such as “What was the nature of your trip?” or “Do you have anything to declare?” Instead, the agent grilled Mack, a BuzzFeed breaking news reporter, about the Mueller investigation into Donald Trump and BuzzFeed’s coverage of it. The phrase “fake news” was uttered. Mack described needing to walk an uncomfortable tightrope—gently refuting the agent’s false claims, while remembering that the agent had the ability to deny Mack entry into the country where he lives and works.

How did the border agent know David Mack works for Buzzfeed? Mack suspects that the agent saw his employer listed on his visa. But it’s likely that the agent and agents like him nationwide would have been able to access the same information even on U.S. citizens. Over the past twenty or so years, the federal government’s border police have vastly expanded their surveillance reach, and now keep detailed records about all travelers, including information not just about where we work, but also about our personal and business associations, what we read, our political preferences and religious interests, and more.

Under the Trump administration, the federal government has been particularly eager to expand its surveillance and database systems to track noncitizens. But while the Trump administration has expressed its desire to increase the government’s technical capabilities to track and monitor people both within the U.S. and worldwide, the government has been compiling databases on Americans and foreign nationals for years, under both Democrat and Republican administrations, under the auspices of “counter terrorism” and “border security.”

The government tends to be tight lipped about details related to these efforts, but thanks to federal privacy law, it is required to release at least basic information about its surveillance programs. On Valentine’s Day, the Department of Homeland Security (DHS) published information about its strategy for what the government calls “Continuous Immigration Vetting” (CIV). This is DHS’s latest attempt to fulfill President Trump’s desire for “extreme vetting.” U.S. Citizenship and Immigration Services (USCIS) cites Executive Order (EO) 13780, titled Protecting the Nation from Foreign Terrorist Entry into the United States, as reaffirming the need to create this program. The purpose of Continuous Immigration Vetting is increase the amount of monitoring DHS conducts on noncitizens in the United States and to continue its surveillance until it no longer can do so legally, i.e. they become a naturalized citizen. It its current iteration, the CIV program accomplishes this by increasing the technical links between USCIS, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE).

Many of the new data products rolled out by the Department of Homeland Security, as well as other federal agencies, focus on combining multiple databases or allowing automated products to search many databases at once. At a technical level, the U.S. Government has implemented Continuous Immigration Vetting as a connection between two incredibly expansive government data platforms, ATLAS and ATS.

ATLAS searches through the Fraud Detection and National Security Data System, which contains sensitive personally identifying information from a large number of sources, such as the USCIS’s Alien Files and the Immigration and Biometric Background Check System.  If the ATLAS system determines that it has found “derogatory” information on a person it will issue a notification to USCIS, which “may ultimately refer [the case] to ICE.” 

ATS is the CBP’s Automated Targeting System, “a decision support tool that compares traveler, cargo, and conveyance information against law enforcement, intelligence, and other enforcement data using risk-based scenarios and assessments.” As well as storing some of its own data, ATS also ingests data from a mind-numbingly long list of government databases. Many of these contain information about U.S. citizens, such as Department of Motor Vehicle registration data and other unspecified “commercial data aggregators.” The database also contains information about what travelers say, do, and possess while traveling. ATS assigns cargo a threat assessment score that it uses to identify items that may require further investigation, though CBP insists that it does not use ATS to assign a score to people.

What’s the problem with mass data surveillance? Breaches, inaccuracies, misuse, and abuse

Compiling all of these sensitive data about citizens, visitors, and green card holders is not just dangerous because it invites racial and religious profiling. By vastly expanding the data systems available to DHS officers, the government has made it more likely that the data will be leaked or abused.

These concerns are not merely hypothetical; government data breaches are unfortunately quite frequent. The most infamous government data breach occurred at the Office of Personnel Management (OPM), which by final count exposed the data of 21.5 million government employees, including biometric data, most likely to a foreign adversary. As gargantuan and serious as the OPM breach was, the website DigitalGuardian.com lists it as only the fourth largest breach impacting state and federal government in the U.S. The mere existence of such databases constitutes a privacy liability to anyone unfortunate enough to have their information contained within it, meaning the government ought to have very good reason to take this risk. Governments since George W. Bush’s have defended mass surveillance and data collection by claiming that it can prevent terrorism. The evidence says otherwise.

Another problem with these databases is that they often contain inaccurate information. These large systems gather information from many agencies and individuals, all with varying levels of training protocols and internal oversight mechanisms. As a result, it’s very difficult for the government to be sure their information reflects reality. In some cases, this is because government agents are human, and make mistakes. In others, it’s because of intentional malice.

In 2015, for example, a CBP officer was charged with filing a false report against a man who had started criminal proceedings against the officer’s brother-in-law for the rape of the man’s 11-year-old son. As a result of this false and malicious report, the man was subsequently detained at gunpoint multiple times when crossing the border into the U.S. In this case, the agent was caught and properly charged, but it’s likely that many false reports are never discovered. With so many government databases connected, and a system of approvals and denials based on automated rules and systems, it’s easy to imagine how a bad actor could input information that could negatively impact a person in a domain unrelated to the false report. Junk in, junk out.

Even if these databases were properly protected and the data were accurate, there would remain a high likelihood that the data would be misused and abused in racially and religiously discriminatory ways.

In the summer of 2017, ICE attempted to get private industry to create a program that would use artificial intelligence and machine learning to evaluate “an [immigration] applicant’s probability of becoming a positively contributing member of society.” Machine learning experts pointed out that the technology that DHS was asking for did not exist, and that it wouldn’t be possible to code a system to identify whether someone met a subjective threshold such as “positively contributing member of society.” After sustained pressure from advocacy groups and lawmakers, ICE eventually backed down from that portion of the extreme vetting process. But it’s possible that the agency will try to use similar techniques on the data that they gain access to with the CIV program.

Even without an explicit artificial intelligence portion, these automated decision systems can harm people and violate rights. ATLAS uses a “rules based” automated system to flag persons as threats to national security, but it is unclear what these rules are. What we do know about DHS’ intent does not inspire confidence. When addressing racial profiling, the CIV report cites DHS policy and includes the following paragraph:

Except as noted below, it is DHS policy, although not required by the Constitution, that tools, policies, directives, and rules in law enforcement and security settings that consider, as an investigative or screening criterion, an individual’s simple connection to a particular country, by birth or citizenship, should be reserved for situations in which such consideration is based on an assessment of intelligence and risk, and in which alternatives do not meet security needs, and such consideration should remain in place only as long as necessary. These self-imposed limits, however, do not apply to antiterrorism, immigration, or customs activities in which nationality is expressly relevant to the administration or enforcement of a statute, regulation, or executive order, or in individualized discretionary use of nationality as a screening, investigation, or enforcement factor.

We know the current administration considers nationality to be a relevant factor in immigration determinations, and this policy specifically cites executive orders as avenues of exemption that would allow DHS to consider nationality in the creation of its rules. Unfortunately, because we are unable to see the rules themselves, we don’t know for certain if racial profiling is built in to these risk assessments.

One thing is crystal clear, however: DHS’ goal is to use computer systems, big data, and automation to monitor U.S. visa applicants and permanent residents to the greatest extent that they feel they can legally defend. At an industry day courting private sector venders for its extreme vetting initiative, ICE was asked about the similarity of their request to a system that the FBI had tried to build that had been shut down by the ACLU. The ICE spokesperson responded that, unlike that FBI system, the system that they were seeking would be dealing with foreign nationals, and that they “will continue to do it until someone says that we can’t.”

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• Read more about Continuous immigration vetting: The labyrinth of government databases continues to grow