SLAMMING THE COURTHOUSE DOORS
Denial of Access to Justice and Remedy in America
DECEMBER 2010

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AMERICAN CIVIL LIBERTIES UNION

American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
www.aclu.org

CONTENTS
I.	

EXECUTIVE SUMMARY............................................................................. 3

	

a. About the ACLU............................................................................................................. 5

II.	
	

HUMAN RIGHTS FRAMEWORK:
ACCESS TO JUSTICE AND RIGHT TO EFFECTIVE REMEDY......................... 6

III.	

CAPITAL PUNISHMENT............................................................................ 7

	
	
	
	
	
	

a. Failures of Indigent Defense Systems:
Denial of Access to Justice Due to Inadequate Counsel................................................. 7
b. Denial of Habeas Review under the Antiterrorism and
Effective Death Penalty Act (AEDPA)............................................................................. 9
c. Gaps in Legal Protection for Mentally Ill Defendants Charged with
or Convicted of a Capital Crime.......................................................................................... 11

IV. 	

PRISONERS’ RIGHTS................................................................................ 12

	
	
	
	

a. Denial of Access to Justice under the Prison Litigation Reform Act (PLRA).................. 12
i. Physical Injury Requirement.................................................................................................12
ii. Exhaustion Requirement......................................................................................................13
iii. Application of the PLRA to Children....................................................................................14

V. 	

NATIONAL SECURITY............................................................................... 15

	
	

a. Government Invocation of the State Secrets Privilege as a
Bar to Justice and Remedy for Torture Victims............................................................. 15

VI. 	

WOMEN’S RIGHTS.................................................................................... 18

	
	

a. Lack of Remedies for Female Domestic Violence Victims.............................................. 18
b. Diplomatic Immunity for Abuse of Domestic Workers................................................... 19

VII. 	 IMMIGRANTS’ RIGHTS.............................................................................. 21
	
	
	

a. Stipulated Removal and Denial of any Hearing before Deportation............................... 21
b. Lack of Judicial Review for Diplomatic Assurances....................................................... 22
c. Denial of the Right to a Fair Hearing for Mentally Ill Immigrants.................................. 23

VIII. 	 RACIAL JUSTICE...................................................................................... 25
	
	
	
	
	

a. Erosion of Rights and Remedies for Victims of Racial Discrimination
under Title VI of the Civil Rights Act.............................................................................. 25
b. Barriers to Justice and Remedy for Victims of Racial Profiling..................................... 26
c. Denial of Undocumented Workers’ Access to Effective Remedy for
Employment Rights Violations...................................................................................... 27

IX. 	

RECOMMENDATIONS................................................................................ 29

	

ENDNOTES............................................................................................... 31

	

ANNEX: ACCESS TO JUSTICE AND EFFECTIVE REMEDY
STATE-BY-STATE...................................................................................... 39

I. EXECUTIVE SUMMARY
Actions of the executive, federal legislative, and judicial branches of the United States have seriously restricted access to justice for victims of civil liberties and human rights violations, and
have limited the availability of effective (or, in some cases, any) remedies for these violations.
Weakened judicial oversight and recent attempts to limit access to justice by attacking plaintiffs’
and defendants’ standing, discovery rights and the courts’ jurisdiction, are denying victims of human rights violations their day in court and protecting responsible officials and corporations from
litigation.
Over the last decade, there has been a serious erosion in the ability of, among others, immigrants,
prisoners, and detainees in the “war on terror” to use the writ of habeas corpus in U.S. courts to
challenge the constitutionality of their ongoing detention, significantly circumscribing the availability of a most potentially significant remedy. For example, federal legislation, most prominently
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and Supreme Court decisions,
have greatly limited access to federal review of state court death penalty convictions.
Indigent capital defendants are systematically denied access to justice, as they are often appointed attorneys who are overworked, underpaid, lacking critical resources, incompetent, or inexperienced in trying death penalty cases. Further, the lack of a right to counsel in post-conviction
proceedings and procedural and substantive hurdles in raising a claim of ineffective assistance of
counsel leave capital defendants with little recourse when they have been denied adequate legal
representation or have endured other constitutional violations. Prisoners seeking a remedy for
injuries inflicted by prison staff and others, or seeking the protection of the courts against dangerous or unhealthy conditions of confinement, also have been denied any remedy and have had their
cases thrown out of court. The Prison Litigation Reform Act of 1995 (PLRA) created numerous
burdens and restrictions on lawsuits brought by prisoners in the federal courts.
Victims of torture and “extraordinary rendition” have been denied their day in court. The Obama
Administration has sought to extinguish lawsuits brought by torture survivors—denying them recognition as victims, compensation for their injuries, and even the opportunity to present their
cases. The federal government has used judicially-created doctrines such as the so-called “state
secrets” privilege and qualified immunity to dismiss civil suits alleging torture; cruel, inhuman,
or degrading treatment; forced disappearance; and arbitrary detention, without consideration on
the merits. For instance, by invoking the “state secrets” privilege, the Obama Administration can
not only restrict discovery but can quash an entire lawsuit—without demonstrating the validity of
their claim to a judge.
Immigrants also are systematically denied access to justice, as they face monumental obstacles
to obtaining review of removal orders. The U.S. government has claimed that there is no right to
judicial review of diplomatic assurances when it has sought to transfer individuals to countries
known to employ torture. Federal immigration officials also have used a procedure known as

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stipulated removal to deport non–U.S. citizens without a hearing before an immigration judge.
Immigrants who sign stipulated orders of removal waive their rights to hearings and agree to
have a removal order entered against them in order to avoid the prospect of prolonged immigration detention. By stipulating to removal, individuals who may have legitimate claims to remain in
the United States unknowingly waive their opportunity to pursue these claims. There is a lack of
meaningful safeguards to ensure people with mental disabilities facing possible deportation from
the United States are afforded fair hearings. As a result, legal permanent residents and asylum
seekers with a lawful basis for remaining in the United States may have been unfairly deported
from the country because their mental disabilities made it impossible for them to effectively present their claims in court.
Recent U.S. Supreme Court cases have also sharply limited the ability of individuals to bring legal
action for rights violations. Rights available to women victims of domestic violence have been curtailed, with the Court striking down a civil remedy under the Violence Against Women Act and finding no constitutional violation for police failure to enforce a mandatory judicial protective order.
Courts also have barred women domestic workers from obtaining any remedy for abuses by their
diplomat employers who claim diplomatic immunity from suit. For people of color, the Supreme
Court has created often insurmountable procedural obstacles for victims of racial or ethnic discrimination seeking judicial relief under Title VI of the historic Civil Rights Act. The Supreme Court
also has ruled that claims of racial or national origin discrimination must be accompanied by
proof of intentional discrimination; showing disparate impact, however egregious, is insufficient.
Concerning undocumented migrant worker’s rights, courts have severely circumscribed available remedies including back pay, state tort remedies and workers’ compensation, and have also
made immigration status relevant in such litigation.
The ACLU calls on the Obama Administration and Congress to take measures to ensure all victims
of human rights and civil rights violations in the United States are afforded meaningful access to
justice and effective remedy. A list of recommendations follows at the conclusion of this report,
outlining concrete measures needed to guarantee access to justice and remedy for capital defendants, prisoners seeking protection of their rights in federal courts, victims of torture, women
victims of domestic violence or abuse, immigrants facing deportation, people of color seeking judicial relief from instances of racial or ethnic discrimination, and undocumented workers seeking
remedy for employment rights violations.

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a. About the ACLU
The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization
dedicated to protecting human rights and civil liberties in the United States.1 The ACLU is the largest civil liberties organization in the country, with affiliate offices in 50 states and over 500,000
members. The ACLU was founded in 1920, largely in response to the curtailment of liberties
that accompanied America’s entry into World War I, including the persecution of political dissidents and the denial of due process rights for non-citizens. In the intervening decades, the ACLU
has advocated to hold the U.S. government accountable to the rights protected under the U.S.
Constitution and other civil and human rights laws. In 2004, the ACLU created a Human Rights
Program dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. The ACLU Human Rights Program
incorporates international human rights strategies into ACLU advocacy on issues relating to racial justice, national security, immigrants’ rights, and women’s rights.

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II. HUMAN RIGHTS FRAMEWORK:
ACCESS TO JUSTICE AND RIGHT TO EFFECTIVE REMEDY
Access to justice is an essential right for victims of all human rights violations.2 Under international law, access to justice must be fair, effective, and prompt. Access to justice encompasses
both procedural and substantive justice. A victim’s right of access to justice includes access to
all available judicial, administrative, or other mechanisms available under existing domestic and
international law. A cornerstone of the right to access to justice is access to courts, including fair
and impartial judicial proceedings, when a person faces criminal charges or has been deprived of
liberty, or when a person wishes to commence litigation concerning civil rights or human rights
violations.3 Under international law states must take steps to ensure access to justice is effective,
such as by providing adequate legal counsel, diplomatic and consular assistance to victims seeking justice for violations, in both criminal and civil cases.4 To ensure effective access to justice,
states must ensure access to justice without discrimination, and must adopt measures to ensure
access to justice for all on an equal basis, such as through special accommodations.5
A foundational principle of human rights law is the right to an effective remedy for victims of human
rights violations. The right to effective remedy for human rights violations is enshrined in Article
8 of the Universal Declaration of Human Rights,6 Article 2(3) of the International Covenant on Civil
and Political Rights,7 Article 14 of the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment,8 Article 6 of the Convention for the Elimination of All Forms
of Racial Discrimination,9 Article 25 of the American Convention on Human Rights,10 and Article
13 of the European Convention on Human Rights.11 The right to effective remedy is non-derogable, and may not be limited even during times of national emergency.12 Under international law,
states have a duty to provide judicial, civil, and administrative remedies.13 States’ duty to provide
effective remedy for human rights violations includes an obligation to investigate alleged human
rights violations.14 The Human Rights Committee,15 Inter-American Court,16 and European Court
of Human Rights17 recognize that the state is required to investigate human rights violations, even
when the perpetrator is a private actor. In addition, states’ duty to provide effective remedy also
encompasses an obligation to punish those responsible for human rights violations,18 as well as
an obligation to provide compensation to victims of human rights violations.19
Under U.S. law, the Constitution provides for the separation of powers between the executive, legislative, and judiciary branches. The judiciary has both the authority and the duty to review the actions of the other branches of government.20 Historically, U.S. courts have enjoyed independence,
and in the past the judiciary has been fundamental to the protection of civil rights, civil liberties,
and human rights.

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III. CAPITAL PUNISHMENT
The U.S.’s administration of the death penalty in 35 states, the federal system and the military
violates the right to life. As of November 30, 2010, 1,233 people—including men, women, children
(at the time of the crime), the mentally retarded, and the mentally ill—have been executed in
the United States since the death penalty was reinstated by the Supreme Court in 1976.21 As of
January 2010, 3,261 people were awaiting execution across the country.22 In recent years, the U.S.
has taken some important steps in protecting the right to life by barring the execution of juveniles,
the mentally retarded, and those who have committed non-homicide offenses. Yet the death penalty system continues to be flawed and unsalvageable. Since 1978, 138 innocent people have been
released from death rows across the country.23 The U.S. death penalty continues to discriminate
on the basis of socioeconomic status, race, and geography. It is still applied against the mentally
ill, the mentally retarded (despite the prohibition), those who did not kill, and those who did not
intend to kill. Capital defendants and death row prisoners are not provided adequate counsel or
adequate resources. Many of these flaws are discussed below.

a. Failures of Indigent Defense Systems:
Denial of Access to Justice Due to Inadequate Counsel
With rare exceptions, defendants facing capital charges cannot afford a lawyer, and therefore rely
on the state to appoint an attorney to provide an adequate defense. While capital cases are among
the most complex, time-intensive and financially draining cases to try, indigent capital defendants often are appointed attorneys who are overworked, underpaid, lacking critical resources,
incompetent, or inexperienced in trying death penalty cases.24 Incompetent defense attorneys fail
to investigate cases thoroughly, fail to present compelling mitigating evidence, and fail to call witnesses that would aid in the defense. In addition, enormous caseloads, caps on defender fees, and
a critical lack of resources for investigation and expert assistance are barriers to the presentation
of an adequate and effective defense.
The problem of inadequate counsel is not isolated to a few bad attorneys; it is a widespread and
systematic failure to ensure access to justice for defendants facing capital charges and those convicted of capital crimes.25 Few states provide adequate funds to compensate lawyers for their work
or to investigate cases properly. In addition to inadequate funding, the majority of death-penalty
states lack adequate competency standards. Many states require only minimal training and experience for attorneys handling death penalty cases, and in some cases capital defense attorneys fail
to meet the minimum guidelines for capital defense set by the American Bar Association (ABA).
A 2002 report on indigent defense by the Texas Defender Service found that death row prisoners
“face a one-in-three chance of being executed without having the case properly investigated by
a competent attorney or without having any claims of innocence or unfairness heard.”26 Among
other reasons, many death sentences are set aside because a federal court finds the lawyer who
represented the accused at his first trial in state court was so incompetent that the accused’s
constitutional right to effective counsel was violated.27

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The absence of a right to counsel in post-conviction proceedings,28 in addition to the myriad procedural and substantive hurdles in raising a claim of ineffective assistance of counsel,29 leaves
capital defendants with little recourse when they have been denied adequate legal representation
or have endured other constitutional violations. Inadequate counsel not only adversely affects the
client at trial and sentencing, but substandard attorneys fail to preserve objections, resulting in
an inadequate trial record. These failures vastly reduce the scope of appellate review, decreasing
the possibility that errors will be corrected later. Success in challenging a death sentence on the
ground that the accused’s constitutional rights were violated also depends on the death-sentenced inmate having quality representation in their habeas corpus appeal to the federal courts,
which assesses the case for violations of the U.S. Constitution. Yet beyond the first appeal, people
fighting their death sentences have no constitutional right to a lawyer, and the quality of available
counsel can be as abysmal in these appeals as at the trial level.30
The state of Alabama, for instance, has no statewide public defender system, though Alabama’s
death row occupants are overwhelmingly poor; 95 percent are indigent.31 Alabama provides only
minimal compensation for court-appointed defense attorneys in death penalty cases.32 Alabama’s
funding rates and caps are grossly inadequate for the amount of work required to properly represent an inmate’s rights. Moreover, judges routinely do not pay lawyers the entire bill for work
done in the case.33 Unlike every other state in the country that uses the death penalty, Alabama
has no mechanism or state-funded agency to provide post-conviction counsel for persons sentenced to death. As a result, death row inmates in Alabama are not guaranteed the right to legal
assistance to challenge the inadequate representation they received at trial or other aspects of
their conviction or sentence in post-conviction proceedings. State law in Alabama does permit a
judge to appoint a lawyer for post-conviction proceedings, but the law does not authorize any appointment of counsel until a prisoner has filed a petition with the court.34
Last year, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions conducted an official visit to the United States to examine the administration of the death penalty
in Alabama and Texas. He chose to examine the death penalty in Alabama and Texas because
Alabama has the highest per capita rate of executions in the United States, while Texas has the
largest total number of executions and one of the largest death row populations. The Special
Rapporteur expressed concern about deficiencies in the administration of the death penalty in
Alabama and Texas, including “the lack of adequate counsel for indigent defendants.” He called
for the two states “to establish well-funded, state-wide public defender services” and recommended that “[o]versight of these should be independent of the executive and judicial branches.”35

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b. Denial of Habeas Review under the Antiterrorism and Effective Death Penalty Act (AEDPA)
Federal legislation, most prominently the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)36 and the USA PATRIOT Improvement and Reauthorization Act of 2005, as well as numerous Supreme Court decisions on federal habeas corpus, have greatly limited access to federal
review of state court death penalty convictions. These laws drastically limit the availability of federal habeas corpus relief for defendants sentenced to death. As a result, defendants who are later
able to present evidence establishing their innocence that may not have been available at the time
of trial, and could have led to a different result if it had been presented, are left with no recourse.
In addition to the denial of relief to defendants who have powerful evidence of their innocence,
many defendants who have suffered serious constitutional violations, such as inadequate defense
counsel, racially discriminatory jury selection, and suppression of exculpatory evidence have been
left without federal judicial recourse.
The U.S. Congress began scaling back federal court power to grant habeas review with the AEDPA,
which limits the ability of state detainees to bring habeas corpus claims in federal court and drastically curtails the ability of federal courts to adjudicate meritorious claims and review state court
decisions for constitutional error. Before the AEDPA’s passage, between 1976 and 1991, death row
inmates were granted relief in 47 % of all federal habeas cases, underscoring the need for appellate review beyond the direct appellate process.37 Additionally, “there have been no systematic
trial-level improvements that have coincided with the AEDPA’s adoption and implementation.”38
Since AEDPA’s enactment in 1996, state and federal prisoners have been forced to navigate a
labyrinth of complex procedural rules and stringent deadlines in order to assert claims of serious
constitutional violations in post-conviction proceedings. State prisoners particularly have been
burdened by AEDPA, which requires greater deference to state court decisions and, thus, constrains federal review of federal constitutional violations. Indeed, federal courts may only grant
habeas relief to state prisoners where the state court’s decision was “contrary to, or involved an
unreasonable application of clearly established Federal law” as determined by the U.S. Supreme
Court, or based on “an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding.”39 It is not enough for the state court decision to be wrong as a matter of constitutional law, it must have been unreasonably wrong. Interpretations of these limitations by the U.S. Supreme Court and lower federal courts have made it even more burdensome
for petitioners to obtain federal habeas relief. Moreover, a one-year statute of limitations and prohibitions against successive habeas petitions serve as bars to federal habeas review. As a result,
federal courts are unable to reach the merits of substantive claims, which include, among others,
claims of racial bias in jury selection, ineffective assistance of counsel, prosecutorial misconduct,
and even innocence, due to substantial deference to state court proceedings or mere technical
reasons.
AEDPA further added a state-friendly statutory scheme—commonly referred to as Chapter 154—
for states willing to “opt in” by providing competent counsel and reasonable litigation resources
to indigent death-sentenced prisoners. In exchange for providing these benefits, states would be
able to subject prisoners to additional restrictions such as a 180-day limitations period for filing

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in federal court, and more demanding criteria for securing merits review of their federal habeas
claims.
When no state succeeded in opting into Chapter 154 during its first decade, Congress enacted an
amendment to Chapter 154 in the USA PATRIOT Improvement And Reauthorization Act of 2005
(PIRA). These amendments made it much easier for states to obtain “opt-in” status. PIRA substantially reduces the state’s burden and changes the decision maker from the federal courts to
the U.S. Attorney General. As those amendments are implemented, it is expected that at least
some states will renew their efforts to secure opt-in status.
Barring access to the federal courts undermines confidence in criminal convictions as thousands
of prisoners are left with no recourse for constitutional violations that deprived them of a fair trial.
This is especially alarming for prisoners facing execution, where there should be no margin of
error. With the knowledge that prejudicial error will occur in an unacceptable number of criminal
proceedings, including capital cases, it is imperative to ensure access to federal post-conviction
proceedings. The constraints on the federal courts to serve as a final check on state capital convictions are particularly damning for prisoners asserting claims of actual innocence when we
know with certainty that defendants have been, and will be, wrongfully convicted of capital crimes.
As noted above, 138 death-row inmates from 26 states have been exonerated upon proof of innocence and released from custody after serving years (often decades) on death row.40
The case of Troy Davis, a Georgia death row inmate who is almost certainly innocent of the murder
of an off-duty police officer, vividly illustrates these high bars to relief in federal court, even in the
face of compelling evidence of innocence. No physical or forensic evidence tied Davis to the murder; he was convicted based only on eyewitness testimony. Seven of the nine non-police witnesses
against him have recanted or contradicted their trial testimony. Davis came close to execution
three times without a court ever hearing the new evidence of the recantations. Finally, last year in
a historical move, the U.S. Supreme Court granted Davis’s original habeas petition—the court had
not done so in 50 years—and ordered a federal district court in Georgia to hold a hearing to hear
evidence on Davis’s innocence. The court held a hearing in June 2010, but severely restricted the
kind of evidence Mr. Davis’s attorneys could present. The court also chose to apply an impossibly
high standard of proof of innocence: Davis had to prove by “clear and convincing evidence that no
reasonable juror would have convicted him in light of the new evidence.” Using this high standard,
the court denied Davis’s petition to overturn his conviction. Mr. Davis must now appeal this ruling.

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c. Gaps in Legal Protection for Mentally Ill Defendants Charged with
or Convicted of a Capital Crime
International law prohibits the execution of the mentally ill. Yet in the United States, significant
gaps remain in the legal protection accorded severely mentally ill defendants charged with or
convicted of a capital crime. Most notably, this country still permits the execution of the severely mentally ill. The problem is not a small one. A leading mental health group, Mental Health
America, estimates that five to ten percent of all death row inmates suffer from a severe mental
illness.41 A 2006 report by Amnesty International identified 100 individuals with severe mental illnesses who had been executed in the United States in the prior three decades, a roughly one in
ten ratio.42
Seeking death sentences against the mentally ill presents serious concerns at all stages of criminal justice system. Prior to arrest, mentally ill defendants are more vulnerable to police pressure
and thus more likely to confess.43 Once charged with a capital crime, courts or juries routinely find
that severely mentally ill defendants, including capital defendants, meet the basic test of competency.44 Delusional mentally ill defendants are more likely to insist on representing themselves
at trial, literally daring juries to sentence them to death. Many mentally ill defendants are prone
to outbursts in front of their juries and some are so heavily medicated that they appear to their
juries devoid of any remorse. Juries frequently reject insanity defenses in capital cases despite
strong evidence that the defendants were suffering from serious mental illnesses at the time of
the crime. As the United States Supreme Court observed of those with mental retardation, mentally ill defendants are “less able to give meaningful assistance to their counsel and are typically
poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse
for their crimes.”45 For these reasons, juries are often scared into recommending a sentence of
death for mentally ill persons and fail to treat their mental illness as the mitigating circumstance
that it is.46 Mentally ill defendants who have been sentenced to death often waive their appeals
and seek to volunteer for execution.
Although constitutional law prohibits the execution of the mentally incompetent,47 the death sentences imposed on and executions of numerous mentally ill people demonstrate that these laws
are insufficient safeguards for capital defendants with severe mental impairments.

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IV. PRISONERS’ RIGHTS
a. Denial of Access to Justice under the Prison Litigation Reform Act (PLRA)
In 1996, Congress passed the Prison Litigation Reform Act (PLRA) with the stated purpose of curtailing allegedly frivolous litigation by prisoners.48 However, since its enactment, the Act has had
a disastrous effect on the ability of prisoners to seek protection of their rights in the U.S. federal
courts. The PLRA created numerous burdens and restrictions on lawsuits brought by prisoners
in the federal courts.49 As a result of these restrictions, prisoners seeking a remedy for injuries
inflicted by prison staff and others, or seeking the protection of the courts against dangerous or
unhealthy conditions of confinement, have had their cases dismissed. Three provisions in particular affect the ability of individual prisoners, most of whom have no access to legal counsel, to
bring their claims before the federal courts.

i. Physical Injury Requirement
The PLRA provisions often referred to as the “physical injury” requirement prevent prisoners,
including juvenile and pre-trial detainees, from obtaining money damages in federal court for
violations of their civil and human rights that can amount to torture or cruel and demeaning treatment.50 These provisions require that, in order to sue for compensatory damages in federal court,
a prisoner must demonstrate a “prior showing of physical injury” before he or she can win damages for mental or emotional injuries. Most federal courts have applied this provision to bar damages claims involving all constitutional violations that intrinsically do not involve a physical injury.
The following are a few examples of cases in which prisoners were denied relief because they
have no “physical injury”:
•	 Actions challenging the violation of prisoners’ religious rights guaranteed by the
Constitution and protected by Congress in the Religious Land Use and Institutionalized
Persons Act;51
•	 An action challenging sexual assault, including forcible sodomy in the absence of other
physical injury;52
•	 Cases challenging a prisoner’s false arrest and illegal detention;53
•	 A case challenging prison officials’ failure to protect a prisoner from repeated beatings
that resulted in cuts and bruises;54
•	 An action challenging placement in filthy cells and exposure to the deranged behavior of
psychiatric patients;55 and
•	 A challenge to a prison official’s denial of a prisoner’s psychiatric medications to deliberately cause the prisoner to experience pain and depression.56
These cases represent serious and in some cases intentional rights violations, but the PLRA
leaves prisoners without a remedy.

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The Convention against Torture defines torture as either “physical” or “mental.” The Committee
against Torture has called for repeal of the PLRA’s “physical injury” provision, citing article 14
of the Convention, which requires that “[e]ach State Party shall ensure in its legal system that
the victim of an act of torture obtains redress and has an enforceable right to fair and adequate
compensation.”57

ii. Exhaustion Requirement
The PLRA provision referred to as the “exhaustion requirement” requires courts to dismiss a prisoner’s case if she has not completed all internal complaint procedures at her prison or jail facility
prior to filing suit.58 Before a prisoner may file a lawsuit in court, a prisoner must first comply with
all deadlines and other procedural rules of his prison or jail’s grievance system, and if he fails to
comply with all technical requirements or misses a filing deadline, he may not sue. In practice,
this provision has sharply limited the ability of prisoners to seek protection and judicial remedies
for serious violations of their civil and other human rights for several reasons.59
First, the PLRA’s exhaustion requirement has proven to be a trap for the unschooled and the disabled. In general, prisoners have very low rates of literacy and education.60 In addition, the number of severely mentally ill and cognitively impaired persons in prison is high. According to a 2006
U.S. Department of Justice report, 56% of State prisoners, 45% of Federal prisoners, and 64% of
jail prisoners in the United States suffer from mental illness,61 and experts estimate that people
with mental retardation may constitute as much as 10 percent of the prison population.62
Second, internal complaint procedures or grievance systems create numerous stumbling blocks
for prisoners seeking a remedy. Deadlines are very short in many grievance systems—almost always a month or less, and sometimes five days or less—and these deadlines operate as statutes
of limitations for federal civil rights claims.63 In addition, a typical system may have three or more
deadlines that could lead to forfeiture of a claim, as prisoners must appeal to all levels of a grievance system. For illiterate, mentally ill, or cognitively challenged prisoners, these administrative
systems are virtually impossible to navigate. As a result, constitutional claims for many of the
most vulnerable are lost irrevocably under PLRA because of technical misunderstandings rather
than lack of legal merit.
Third, there is a well-established practice of threatening and retaliating against prisoners who
file grievances. Under some grievance regimes, prisoners are even required to obtain grievance
forms from or file their grievances with the very same individuals who have abused them or violated their rights. Many prisoners are simply too afraid to file grievances for fear of the consequences.64 All these factors bar prisoners’ access to the courts and deny them remedies for
serious violations of their rights.

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iii. Application of the PLRA to Children
The provisions of the PLRA also apply to children confined in prisons, jails, and juvenile detention
facilities.65 Application of the PLRA to children is especially problematic because youth are exceptionally vulnerable to abuse in institutions, such that court oversight is particularly important.
For example, the Federal Bureau of Justice Statistics recently found widespread sexual abuse of
incarcerated juveniles across the nation, with 12% of all youth in state juvenile facilities reporting one or more incidents of sexual victimization within the past year.66 Staff sexual and physical
abuse and harassment of youth in custody has been an issue in states from New York to Hawaii.67In
the Texas juvenile system, for example, boys and girls were sexually and physically abused by
prison staff, and faced retaliation, including being thrown into an isolation cell in shackles if they
complained.68
In addition, the PLRA’s exhaustion requirement has been an especially problematic obstacle to
justice for incarcerated children, particularly because some courts have ruled that efforts to pursue grievance procedures by children’s parents or other adults do not satisfy the PLRA.69 The
PLRA has created a lack of oversight and accountability for abuse of children, and increases their
vulnerability to physical and sexual abuse and other rights violations.

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V. NATIONAL SECURITY
The last decade has seen systematic efforts to limit access to justice by the executive, Congress,
and the courts themselves in the name of national security in the U.S.-led “war on terror.” Under
the Bush Administration, the Executive Branch diminished access to the courts, in order to shift
the power of justice into its own hands. For eight years the Bush Administration sought to act
unsupervised by the judiciary, invoking “national security” and the discredited unitary executive
theory as reasons why the courts’ reach did not extend to the Oval Office or to undisclosed locations. The Obama Administration has adopted a similar position to deny plaintiffs their day in
court, and to protect senior officials from litigation, regardless of their actions and roles. The
Obama Administration has embraced the Bush Administration’s claim that, by invoking “state
secrets,” the government can not only restrict discovery but can quash an entire lawsuit—without demonstrating the validity of their claim to a judge. The federal government has also used
the judicially-created doctrine of qualified immunity to dismiss civil suits alleging torture; cruel,
inhuman, or degrading treatment; forced disappearance; and arbitrary detention without consideration on the merits.70 In addition, civil cases alleging torture, cruel, inhuman or degrading
treatment, and extra-judicial killings by private military contractors face procedural hurdles and
defenses, resulting in dismissal.71

a. Government Invocation of the State Secrets Privilege as a Bar to Justice
and Remedy for Torture Victims
The United States government has intervened in cases alleging forced disappearance and torture
by U.S. officials and U.S.-based corporations to assert the “state secrets” privilege—a common
law evidentiary privilege—and to have these cases dismissed without any consideration of unclassified, publicly available information substantiating victims’ allegations. Courts by and large have
accepted the government’s assertions.72 The U.S. government’s “state secrets” tactic to dispose
of lawsuits in which it says that any discussion of a lawsuit’s accusations would endanger national
security has short-circuited judicial scrutiny.73 As a result, victims of torture and secret detention
have been denied their day in court. To date, not a single torture victim of the Bush administration’s torture program has had his day in a U.S. court.
For example, the U.S. government invoked the common-law “state secrets” privilege to squelch a
lawsuit brought by the ACLU in April 2006. The lawsuit concerned the secret detention of German
citizen Khaled El-Masri, and it sought compensation for his unlawful detention and torture.74 Mr.
El-Masri was abducted while on holiday and detained from December 31, 2003 through May 28,
2004 in Macedonia and Afghanistan where he was subjected to torture and abuse.75 In 2006, a judge
dismissed the case, accepting the CIA’s claim that simply holding proceedings would jeopardize
state secrets, and denying Mr. El-Masri’s only real chance for justice before domestic courts.76
The ACLU appealed the dismissal, and the U.S. Court of Appeals for the Fourth Circuit upheld the
lower court decision that denied Mr. El-Masri a hearing in the United States.77 In October 2007, the
U.S. Supreme Court refused to review Mr. El-Masri’s case.78

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However, the rendition of Mr. El-Masri to detention and interrogation in Afghanistan by agents of
the U.S. represents the most widely known example of a publicly acknowledged program. Highlevel government officials have publicly discussed the rendition program, and Mr. El-Masri’s allegations have been the subject of widespread media reports in the world’s leading newspapers
and news programs, many of them based on the accounts of government officials. Having exhausted domestic remedies, on April 9, 2008, the ACLU filed a petition with the Inter-American
Commission on Human Rights (IACHR) on behalf of Mr. El-Masri, arguing, inter alia, that due to
the application of the state secrets doctrine, Mr. El-Masri was deprived of the right of effective access to a court and that his right to a remedy for the human rights violations he suffered had been
violated.79 To date, the U.S. government not responded to the petition.
The U.S. government invoked the “state secrets” privilege in another lawsuit brought by the ACLU
in 2007. The ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing
Company, on behalf of five survivors of the extraordinary rendition program. The suit charges
that Jeppesen knowingly participated in these renditions by providing critical flight planning and
logistical support services to aircraft and crews used by the CIA to forcibly disappear these five
men to torture, detention and interrogation. According to published reports, Jeppesen had actual
knowledge of the consequences of its activities. A former Jeppesen employee informed The New
Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, “We do
all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these
flights end up that way.”80 Shortly after the suit was filed, the government intervened and asserted the “state secrets” privilege, claiming further litigation would undermine national security
interests, even though much of the evidence needed to try the case was already available to the
public. Two years ago, the trial court accepted Bush Administration claims that the “state secrets”
privilege allowed them to put an end to the entire proceedings. In April 2009, however, three
judges from the 9th Circuit federal appeals court reversed that ruling, over Obama Administration
objections. The administration subsequently asked for a hearing before the full court, asserting
again the right to crush a lawsuit against a company that was a knowing accomplice to torture.
In September 2010, the full bench of the Ninth Circuit federal appeals court reversed the April
2009 decision and dismissed the lawsuit, accepting the Obama Administration’s argument that
the case could not be litigated without disclosing state secrets. On December 7, 2010 the ACLU
filed a petition for certiorari with the Supreme Court, asking the Court to review the lower court’s
decision dismissing the lawsuit against Jeppesen.81 The Supreme Court has not reviewed the government’s use of the state secrets privilege in more than half a century.82
The state secrets doctrine is not the only mechanism the Obama Administration has invoked
to extinguish civil suits by torture survivors. In Rasul v. Rumsfeld, a suit brought by former
Guantánamo detainees seeking redress for torture, abuse, and religious discrimination, the
Obama Administration argued, remarkably, that the government defendants were immune from
suit because, at the time that the abuse occurred, established law did not clearly prohibit torture
and religious discrimination at Guantánamo. In Arar v. Ashcroft, the administration argued that the
Constitution provided no cause of action to an innocent man who had been identified by the United
States as a terrorist, rendered to Syria for torture, and not released until ten months later when it
was determined that he was not a terrorist after all. In that case, the administration also argued to

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the courts that affording Arar a judicial remedy “would offend the separation of powers and inhibit
this country’s foreign policy,” and impermissibly involve the courts in assessing “the motives and
sincerity” of the officials who authorized Arar’s rendition.83
The Obama Administration has sometimes suggested that civil suits are unnecessary because the
Justice Department has the authority to investigate allegations that government agents violated
the law.84 But civil suits, of course, serve purposes that criminal investigations do not: they allow
victims their day in court, and they provide an avenue through which victims can seek compensation from perpetrators.

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VI. WOMEN’S RIGHTS
a. Lack of Remedies for Female Domestic Violence Victims
Victims of domestic violence face court-created obstacles to obtaining federal civil rights and
state law remedies for violations of their fundamental human rights. Two Supreme Court cases
in particular, United States v. Morrison and Castle Rock v. Gonzales, erode federal civil rights remedies for female victims of domestic violence.85 In Morrison, the Court held that Congress did not
have the power to create a private cause of action under the Violence Against Women Act, and in
Gonzales, the Court found no constitutional violation for police failure to enforce a prior mandatory
judicial protective order.86
Morrison arose out of an alleged sexual assault perpetrated against a college student. After the
school’s disciplinary procedures failed to punish the alleged perpetrators, the student filed suit
under a provision providing a federal civil remedy for victims of gender-motivated violence. In
2000, the U.S. Supreme Court held that this provision exceeded Congress’s powers despite voluminous congressional findings justifying congressional power based on both Congress’s reasoning that gender-motivated violence in the aggregate negatively impacts interstate commerce and
the need to avoid gender bias in the state systems.87 The Court noted that the fact that the law
applied uniformly nationwide bound even those municipalities without any history of discrimination or bias against victims of gender-motivated violence, and that violence against women is a
local not national issue and a matter therefore for state law. Accordingly, there is now no federal
statutory basis for women seeking a remedy to compensate for violence by private actors.
The possibility of a federal remedy against local officials who fail to protect women from privately
inflicted violence under constitutional protections was also shut out in the Gonzales case. Mr.
Gonzales violated a restraining order against him and abducted his daughters from his ex-wife’s
home. Ms. Gonzales reported the abduction to the police and informed them that her husband
had a history of mental instability and erratic behavior. She phoned repeatedly and pleaded with
the police to search for her children. The police repeatedly refused to enforce the restraining order. Ten hours after the abduction, Mr. Gonzales opened fire outside of the police station and was
immediately shot and killed. The police discovered the bodies of the three murdered Gonzales
children in his truck. Ms. Gonzales filed suit alleging that the police failure to enforce the restraining order deprived her of due process. The U.S. Supreme Court refused to recognize her right to
relief, holding that the government had no affirmative duty to protect its citizens from privately
inflicted violence despite the existence of a valid protective order, a state law requiring arrest for
any violations of a protective order, knowledge of imminent harm and opportunity to act to prevent
the harm.88 As a result, the only recourse for such violations is in state courts, which tend to discriminate against victims of gender violence, and also generally provide state officials immunity
for such conduct.89 Accordingly, there is also now no federal remedy to compensate for the failure
of state actors to protect women from and/or prevent domestic violence. In an effort to seek redress for this systemic failure of the police and other governmental actors to respond to domestic

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violence victims, the ACLU filed a petition with the Inter-American Commission on Human Rights
in December 2005.90
In some states, there are avenues for holding law enforcement officials accountable when police
officers fail to provide the protection mandated by state law. But in others, including Colorado
where the Gonzales suit arose, no such remedies exist. There, the doctrine of sovereign immunity sharply limits the utility of any such tort remedy shielding government officials from liability
with certain stated exceptions. The sovereign immunity obstacles vary from state to state. Few
states have general, explicit anti-discrimination provisions protecting domestic violence victims
that are enforceable through a private right of action. Instead, there are piecemeal protections in
a handful of states for individuals in certain situations, often without a private enforcement option.
Thus, without uniform federal legislation, many victims remain unprotected and without effective
remedy.

b. Diplomatic Immunity for Abuse of Domestic Workers
Domestic workers abused by foreign diplomats in the U.S. face barriers to obtaining any remedy
for exploitation and other workplace abuses. Unlike other employers, diplomats are generally
immune from civil, criminal and administrative processes in the U.S. unless the sending countries waive their immunity. Aggravating the problem, U.S. courts have interpreted the commercial
activity exception contained in Article 31(c) of the Vienna Convention on Diplomatic Relations to
exclude the hiring and employment of domestic workers.91 Diplomatic immunity bars domestic
workers from claiming their legal rights in court and, as a result, gives diplomats a free pass to
mistreat domestic workers deliberately and with impunity.
The United States government has failed to ensure women domestic workers abused by their
diplomat employers any form of redress on account of diplomatic immunity. The U.S. government has submitted “Statements of Interest” in lawsuits brought by abused workers, in support
of diplomats’ positions, arguing that the U.S. has entered into a number of treaties that establish
its obligation to accord diplomatic immunity from prosecution.92 Pursuant to these treaties, diplomats are entitled to the same privileges and immunities in the U.S. as the U.S. accords to diplomatic envoys, immunities defined by the Vienna Convention, including immunity from the civil
jurisdiction of the courts in this country.93 In Tabion v. Mufti, the federal court of appeals relied on
what it called the State Department’s “narrow interpretation” of commercial activity and held that
employment of a domestic servant did not constitute commercial activity.94 As a result, certain
diplomats are sheltered from the legal repercussions of exploiting employees including domestic
workers. Yet domestic workers, including workers employed by diplomats, too often face a range
of civil and human rights violations including forced labor and trafficking rising to the level of
slavery.
For example, in Sabbithi, et al. v. Al Saleh, et al., the ACLU represents Kumari Sabbithi, Joaquina
Quadros, and Tina Fernandes, three Indian women who were employed as domestic workers by
a Military Attaché to the Embassy of Kuwait and his wife, to work in their home in Virginia.95 In

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the summer of 2005, the three women were brought to the United States under false pretenses,
where they were subjected to physical and psychological abuse by their employers and forced
to work against their will. In the winter of that year, fearing for their lives, each of the women
individually fled the household. In January 2007, the three workers brought a lawsuit against the
diplomat, his wife, and the State of Kuwait for trafficking and forced labor. In March 2009, the
court granted the Motion to Dismiss by the diplomat and his wife, on the grounds of diplomatic
immunity. In November 2009, the court also granted the Motion to Dismiss by the State of Kuwait,
on grounds related to service. The ACLU filed and was granted a Motion for Reconsideration. A
hearing is scheduled for May 2010 in federal district court in Washington, D.C.
In another case, Vishranthamma v. Al-Awadi, the ACLU serves as amicus in support of Swarna
Vishranthamma, a domestic worker who was exploited and abused by her employer, the First
Secretary to the Kuwaiti mission to the U.N. For four years, she was forced to work seven days a
week, 18 hours a day, paid far below minimum wage, and given no overtime compensation. She
was also physically and sexually abused, repeatedly threatened, and verbally assaulted. Her employers confiscated her passport, threatened her with arrest should she try to leave, and severely
restricted her contact with family and friends. Despite her fears of retaliation, she ultimately
escaped from her employer’s home. Ms. Vishranthamma filed a civil action against her employer
seeking redress and compensation for the exploitation she endured, but the case was dismissed
by the Southern District of New York, after the court concluded her employer was entitled to diplomatic immunity. On February 16, 2010, the ACLU and 12 other organizations submitted an amicus brief to the U.S. Court of Appeals for the Second Circuit in support of Ms. Vishranthamma’s
claims against her former employers, arguing that human trafficking and exploitation of domestic
workers are commercial activities outside the scope of the Vienna Convention’s immunity for diplomats. The case is currently pending.
In 2007, the ACLU petitioned the Inter-American Commission on Human Rights (IACHR) on behalf
of five domestic workers, asking the IACHR to hold the United States responsible for its neglect
and failure to protect domestic workers employed by diplomats from human rights abuses and
to ensure that these workers can seek meaningful redress for their rights.96 The petition is still
pending.

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VII. IMMIGRANTS’ RIGHTS
a. Stipulated Removal and Denial of any Hearing before Deportation
Over the last five years, federal immigration officials have expanded implementation of a program
called stipulated removal that allows for deportation of non–U.S. citizens without a hearing before an immigration judge. This procedure is used to swiftly deport detained noncitizens under
circumstances in which these detainees are unaware of the rights they are giving up or the potential consequences that may result. Immigrants who sign stipulated orders of removal waive their
rights to a hearing before an immigration judge and agree to have a removal order entered against
them, regardless of whether they are actually eligible to remain in the United States. The use of
stipulated removal orders increased 535% between 2004 and 2008.97 According to data obtained
through a Freedom of Information Act (FOIA) request, federal immigration officials entered 31,554
stipulated removal orders in 2007 alone.98
In practice, many immigrants who have signed stipulated removal orders do not understand that
they have done so, much less the impact these orders have on their right to remain in or reenter
the United States lawfully in the future. Worse, immigrants have reported being coerced to sign
stipulated orders of removal. According to press reports, federal agents have pressured detained
immigrants to sign stipulated orders as a way of avoiding prolonged immigration detention.99
Immigrants who sign stipulated removal orders may have colorable claims for immigration relief
based on a variety of factors, including the length of their presence, their family ties to the country, their status as crime victims, or their fear of being persecuted or tortured if they are returned
to their home country. By agreeing to stipulated removal orders, they unknowingly waive the opportunity to pursue these claims.
The overwhelming majority of noncitizens who sign stipulated orders of removal do so without
the benefit of legal representation. As of 2008, nearly 95% of those who signed stipulated orders
since 1999 were not represented by an attorney in their deportation proceedings.100 The lack of
representation is particularly problematic because individuals who sign stipulated orders do so
without ever seeing an immigration judge. Immigration judges normally inform immigrants about
their eligibility for relief from removal. Without either hearings or lawyers, immigrants may never
discover that they have legal claims against deportation.
The use of stipulated removal orders on a large scale in the context of workplace raids also raises
very serious concerns. On May 12, 2008, U.S. Immigration and Customs Enforcement (ICE) conducted the largest single-site immigration raid in U.S. history at Agriprocessors, Inc., a kosher
meatpacking plant in Postville, Iowa.101 After the raid, 306 immigrant workers were criminally
prosecuted for allegedly using false documents to work.102 The U.S. Attorney’s Office offered seven-day “exploding” plea agreements to all defendants. Under this practice, each defendant was
compelled to decide whether to accept the offer within seven days. Within seven days, 300 of the
workers had pled guilty, principally to knowingly using false Social Security numbers or other
false employment documents.103

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As a result, the Postville defendants waived all of their rights—including their right to indictment,
to court reporters, to review the pre-sentence investigation report, and to appeal their convictions
and sentences. Formulaic guilty pleas demanded by prosecutors also almost universally required
defendants to accept mandatory stipulated judicial orders of deportation. These orders barred
any further consideration of defendants’ immigration status or claims, though many defendants
may have had valid claims for immigration relief or ineffective assistance of counsel. The circumstances—with an average of 17 defendants represented by a single lawyer; complex immigration
issues; significant language, educational and cultural barriers; and the extreme time limit prosecutors set for the plea offers—made adequate legal defense investigation and counseling almost
impossible.104

b. Lack of Judicial Review for Diplomatic Assurances
The U.S. has circumvented its treaty obligations by transferring individuals to foreign countries
that provide “diplomatic assurances” that they will not torture such individuals. Diplomatic assurances are assurances from countries—including those with a known record of torture or illtreatment—that they will treat prisoners humanely. Such “assurances” are inherently unreliable,
not legally binding, and provide no recourse for the transferred individual. To the extent that U.S.
officials even try to monitor whether these assurances are honored, such monitoring is ineffective.105 For example, U.S. officials reportedly suggest questions to foreign intelligence interrogators and then turn a blind eye to the methods employed to extract the information.106
The U.S. government has claimed that there is no right to judicial review of diplomatic assurances
when it has sought to transfer individuals to countries known to employ torture. The U.S. executive branch has claimed carte blanche authority to remove individuals on the basis of diplomatic
assurances—in some cases even terminating protection granted under the Convention Against
Torture (CAT)—without any judicial review.
International law dictates that states must not expel, return, or extradite any person to a country
where they risk torture. The CAT, ratified by the U.S. in 1994 and implemented by domestic legislation, prohibits the U.S. from transferring a person “to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.” The U.S. government has sought to use diplomatic assurances to circumvent its treaty obligations under the CAT,
and has argued that individuals the government seeks to remove by means of diplomatic assurances are precluded from any review of claims arising under the CAT and that the CAT does not
apply as a matter of law to individuals transferred from U.S. custody abroad to a third country.107
With regard to individuals present in the United States, to whom CAT indisputably applies, the
U.S. government has also sought to use diplomatic assurances. For example, Sameh Khouzam,
an Egyptian Coptic Christian who came to the United States in 1998 fleeing religious persecution
in Egypt, was granted protection from deportation under the CAT in 2004 after a federal appeals
court found that he would likely be tortured if sent back to Egypt. Despite this finding, as well as

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State Department reports showing that Egypt routinely engages in torture, the U.S. government
tried to summarily deport Khouzam to Egypt based on diplomatic assurances the U.S. claims to
have received from the Egyptian government that it asserts are “sufficiently reliable” to protect
him from torture.
The government provided no prior notice to Mr. Khouzam regarding the diplomatic assurances,
and neither he nor his lawyers were permitted to see the Egyptian assurances that are the basis
for terminating his CAT protection. Nor had the U.S. government offered any explanation for why
these assurances would be deemed sufficiently reliable to protect Mr. Khouzam from torture. The
government argued that Mr. Khouzam was entitled to no more process than a three-sentence letter summarily informing him that he would be removed after 72 hours on the basis of Egyptian
assurances not to torture him which had been deemed “sufficiently reliable.” The government
also denied Mr. Khouzam any opportunity to review the assurances, or to present evidence or
arguments challenging the assurances before an immigration judge, the Board of Immigration
Appeals, or any other body.108
Ultimately, as a result of the ACLU’s litigation, a federal court held that removing Mr. Khouzam to
Egypt based on unreviewable diplomatic assurances would violate his right to due process.109 The
U.S. Court of Appeals for the Third Circuit agreed, remanding Mr. Khouzam’s case to the Board
of Immigration Appeals to review the adequacy of the assurances. The Obama Administration
declined to appeal the ruling.110
In August 2009, the Obama Administration announced that it will continue the extraordinary
rendition program.111 The Obama Administration also announced that it will continue to rely on
diplomatic assurances, including where there is no judicial review, to reduce the likelihood that
transferred detainees will face torture—the same procedure used by the Bush Administration
that failed to protect suspects from torture.112 In addition, the Obama Administration announced
the U.S. would establish a system for monitoring their post-rendition treatment, in an attempt to
ensure that individuals will not be tortured once they are transferred to other countries.

c. Denial of the Right to a Fair Hearing for Mentally Ill Immigrants
The U.S. immigration court system can be particularly confusing for people with mental disabilities, who may find it hard to follow proceedings, or provide credible evidence to lawyers and
judges, especially without legal representation and adequate support. And yet there is a lack of
meaningful safeguards for people with mental disabilities facing possible deportation from the
United States.113 Deficiencies exist throughout the arrest, detention, removal, and deportation
process, violating the human rights of affected individuals and offending both American and international standards of justice. The shortcomings include no right to appointed counsel; inflexible detention policies; lack of substantive or operative guidance for attorneys and judges as to
how courts should achieve fair hearings for people with mental disabilities; and inadequately
coordinated care and social services to aid detainees while in custody and upon release. As a
result, even U.S. citizens with mental disabilities have ended up in Immigration and Customs

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Enforcement (ICE) custody, and an unknown number of legal permanent residents and asylum
seekers with a lawful basis for remaining in the United States may have been unfairly deported
from the country because their mental disabilities made it impossible for them to effectively present their claims in court.
Immigration courts have no substantive or operative guidance for how they should achieve fair
hearings for people with mental disabilities, aside from a general statement in the statutes that
the U.S. attorney general must provide “safeguards” for individuals who cannot participate in
proceedings by reason of their “mental incompetency.”114 However, neither this statute nor any
federal regulation governing immigration proceedings provides definition or standards for competency to self-represent or proceed in immigration court, and does not spell out what a “reasonable opportunity” means for a non-citizen with a mental disability who may not even recognize
that he or she is facing deportation.115 Judges are not required to appoint lawyers or alter procedures to accommodate a person’s limited comprehension; nor does any law or regulation instruct
immigration judges to question whether a person facing deportation understands the charges
against him or her, or even understands what deportation means.
International human rights standards require that non-citizens, including those with mental disabilities, are genuinely able to present their cases in immigration court, and receive fair treatment
throughout proceedings. To meet this standard it would be appear vital that this includes having
a court-appointed attorney represent individuals who either cannot represent themselves, or express their interests without support; and giving judges tools to adapt procedures and custody
decisions to the needs of a particular individual with disabilities.

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VIII. RACIAL JUSTICE
a. Erosion of Rights and Remedies for Victims of Racial Discrimination under Title VI
of the Civil Rights Act
Some of the greatest obstacles to access to courts for plaintiffs seeking judicial relief from instances of racial or ethnic injustice arise from court decisions which affect procedural requirements for bringing cases. Although these decisions do not deal specifically with the substantive
coverage of individual laws, they, in effect, erect barriers to access to courts which are just as
effective at denying justice to plaintiffs as would the repeal of substantive civil rights statutes.
The two most striking examples of changes in procedural requirements which have had negative
effects on the enforcement of civil rights and civil liberties are the U.S. Supreme Court’s decisions in Alexander v. Sandoval,116 which eliminated private causes of action to enforce disparate
impact regulations under Title VI of the Civil Rights Act of 1964, and the heightened pleading requirements for bringing a viable case imposed by Bell Atlantic Corp. v. Twombly117 and Ashcroft v.
Iqbal.118 In each case, the impact on plaintiffs seeking relief from discrimination was severe and
immediate.
Title VI prohibits discrimination on the basis of race and national origin in any program receiving federal funding.119 Under regulations promulgated under the law, plaintiffs were originally
permitted to challenge programs that had a discriminatory impact on legally protected classes.
The use of this standard allowed plaintiffs to act as “private attorneys general” who could bring
cases to achieve the broad goals of non-discrimination which informed the nation’s civil rights
laws. As a result of the Sandoval decision, however, that option was no longer available and private plaintiffs are now required to meet the far more onerous requirement of proving intentional
discrimination in federally funded program. Given the fact that much present-day discrimination
is subtle or even frequently unintentional, the decision swiftly removed the most powerful weapon
in confronting the most prevalent forms of discrimination today.
Even if a plaintiff were able to get into court to assert a claim, Twombley and Iqbal made it far more
difficult for civil rights cases to survive motions to dismiss. For decades, the Supreme Court used
a standard under which plaintiffs were only required to state a short and plain statement of the
claim which would provide fair notice to the defendants of the nature of the claim against them.120
Twombly and Iqbal substantially raised the pleadings requirements so that plaintiffs must now
plead at the outset specific facts sufficient to show that the defendant is liable for the misconduct
alleged. In effect, plaintiffs are required to prove their case at the time the case is filed, even before discovery is held or face dismissal before there is any adjudication on the merits of the case.
Although the two rulings are neutral on their face, in practice they disproportionately disadvantage plaintiffs in civil rights actions.121 Operating under these vague and subjective new legal
standards, defendants are increasingly urging federal judges to dismiss federal lawsuits, before
the claimants have any opportunity to develop facts in support of their claims through discovery,

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on the basis that the factual allegations do not establish a “plausible” claim for relief.122 In most
civil rights actions, the evidence needed to prove the case is usually within the exclusive possession of the defendant or its agents or employees. To obtain that information has usually required
that defendants avail themselves of all opportunities for discovery permitted under the Federal
Rules of Civil Procedure. After Iqbal and Twombly, plaintiffs find themselves facing dismissal prior
to discovery for failure to plead the facts which they could only have gained access to in the discovery process.123
The combined effects of the limitations on bringing private causes of action under Title VI regulations and those imposing stricter pleading requirements are ones which may escape public discussion because they involve relatively arcane details of legal procedure. But taken together, they
substantially undercut equal access to the courts and therefore erode a fundamental principle:
the ability to seek relief from unlawful discrimination in the courts. Until federal legislation is
passed reversing these decisions, or the Judicial Conference adopts changes to the rule governing motions to dismiss, plaintiffs with potentially meritorious claims will be denied the opportunity to assert the rights to which they are entitled.124

b. Barriers to Justice and Remedy for Victims of Racial Profiling
Despite the efforts of some law enforcement agencies to address racial profiling within their
departments, the practice of racial profiling is pervasive in the U.S. Racial profiling occurs when
law enforcement rely on race, ethnicity, national origin, or religion in selecting which individuals to subject to investigations. Although there is considerable evidence that racial profiling is
widespread throughout the U.S., there is no comprehensive federal law that prohibits any local,
state or federal law enforcement agency or officer from engaging in racial profiling and includes
a strong enforcement and oversight mechanism. At the state level, only half of U.S. states have
enacted legislation addressing the practice.125 Fewer states have enacted procedures for actually enforcing the statutory and constitutional prohibition of racial profiling. Five states mandate
discipline for officers found to be engaging in racial profiling126 but only two (New Jersey127 and
Oklahoma128) have created criminal penalties. Ten states have established processes for people
to register complaints of racial profiling129 but only two130 back up this process with a private right
of action.
There is a critical need for federal legislation that bans racial profiling and provides for government monitoring and documentation of racial profiling, including the collection of comprehensive
data on stops, searches, arrests, and law enforcement officers’ explanations for these encounters. The End Racial Profiling Act (ERPA), which has languished in Congress since its introduction
in 1997,131 would compel all law enforcement agencies to ban racial profiling; create and apply
profiling procedures; and document data on stop/search/arrest activities by race and gender.132
ERPA would also provide victims of racial profiling with the legal tools to hold law enforcement
agencies accountable, by creating a private right of action for victims of profiling.

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Because of the narrow definition of racial profiling under existing law, many victims of racial profiling are denied any remedy. The primary statutory vehicle for bringing criminal charges against
law enforcement officers, 18 U.S.C. § 242, requires proof that a law enforcement agent specifically
intended to violate an individual’s constitutional rights, rather than merely intend to commit the
act(s) which results in rights violations.133 Moreover, an officer’s belief that his or her conduct is
reasonable under the circumstances is a sufficient defense to a charge under § 242.134 The standard of proof of intentional racial discrimination under the statute is particularly high, in contravention of the Convention on the Elimination of All Forms of Racial Discrimination’s definition of
racial discrimination, which includes acts which have racially discriminatory effects.135 As a result,
few prosecutions for racially discriminatory law enforcement conduct are successfully brought
under this statutory provision.136 Moreover, because any legal remedy for racial discrimination by
law enforcement currently requires specific proof of intent to discriminate, it is extremely difficult,
if not impossible, for individual victims to challenge violations of their rights and broader law enforcement practices without comprehensive data that can measure the larger impact on minority communities. In addition, the Criminal Section of the U.S. Department of Justice Civil Rights
Division is insufficiently resourced and therefore unable, as a practical matter, to prosecute the
number of cases of racial profiling which take place each year.
In the few states that have enacted legislation addressing racial profiling, state statutes are also
limited by their narrow definitions of racial profiling. Many statutes are limited to profiling based
on perceived race, ethnicity, and national origin and thus permit law enforcement officers to profile based on other categories, such as age, religion, gender, or sexual orientation. Also, a number
of states prohibit profiling only when a prohibited factor is the sole reason for the stop. This, in
effect, permits officers to discriminate based on race so long as they can point to any other reasonably legitimate reason for making the stop.

c. Denial of Undocumented Workers’ Access to Effective Remedy for
Employment Rights Violations
Because of recent jurisprudential decisions beginning with the Hoffman Plastic Compounds, Inc. v.
NLRB Supreme Court case in 2002, undocumented workers are denied access to effective remedy
for employment rights violations under U.S. labor and employment laws, on the basis of workers’
immigration status.137 In Hoffman, the U.S. Supreme Court held that the National Labor Relations
Board (NLRB) lacked the authority to order an award of back pay—compensation for wages an
individual would have received had he not been unlawfully terminated before finding new employment—to an undocumented worker who had been the victim of an unfair labor practice by
his employer.138 Since then, employer defendants have invoked Hoffman to argue that undocumented workers are not entitled to backpay or other remedies under labor or employment-related statutes, including Title VII (employment discrimination), the Americans with Disabilities Act
(disability discrimination), the Age Discrimination in Employment Act, the Fair Labor Standards
Act (setting forth right to federal minimum wage and overtime), state workers’ compensations
schemes, and state law counterparts to the federal anti-discrimination and wage and hour laws.

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Some courts have applied the Hoffman rationale in other contexts, curtailing both undocumented
workers’ access to courts and entitlement to various rights and remedies. For example, a New
Jersey state court interpreted Hoffman to preclude the ability of undocumented migrants terminated for discriminatory reasons to avail themselves of the protection afforded by New Jersey’s
anti-discrimination law.139 Because most federal discrimination statutes only apply to private employers with a minimum of 15 employees, the practical effect of such a ruling is that any undocumented migrant who works for an employer with fewer than 15 employees in the State of New
Jersey has no enforceable right to be free from discriminatory termination in the work place.
In addition, other states including Kansas, New York, California, Pennsylvania, Michigan, Illinois,
and Florida have similarly restricted the rights of undocumented workers since Hoffman. As a result, undocumented workers have lost protections in the areas of available remedies when injured
or killed on the job, overtime pay, workers’ compensation (a state-based system that provides
remuneration for employees who have been injured while working on the job), family and medical
leave and other areas.140 Since Hoffman, a number of state courts have held that undocumented immigrants’ access to certain workers’ compensation benefits are limited by their immigration status, and in states where an individual may sue in tort for injury or wrongful death, those
benefits have also been limited. Moreover, in some states, procedural and other barriers have
blocked unauthorized workers’ access to workers’ compensation. For example, in Pennsylvania,
undocumented immigrant workers’ access to compensation for disability payments, based on the
workers’ wages at the time of the accident, have been limited by a decision of that state’s highest
court.141 In Michigan, injured workers’ access to workers’ compensation benefits has been similarly limited by the highest state court.142
In addition to excluding undocumented migrants from protection of state anti-discrimination
laws, tort remedies or workers’ compensation protection in some states, one collateral effect of
the post-Hoffman litigation has been to make immigration status a focal point in all employmentrelated litigation. Because of immigrant workers’ fear of drawing attention to their immigration
status or the status of their family members, Hoffman has had a chilling effect that undermines
the ability of migrant workers to enforce their right to be free from discrimination, their right to a
fair wage and overtime, their right to be compensated for work-related injuries, and other workplace rights.

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IX. RECOMMENDATIONS
In order to comply with international human rights obligations and commitments to guarantee
access to justice and effective remedy, the United States should take the following measures:
Habeas review in death penalty cases: Congress should amend the habeas-related provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) so that federal courts are more
accessible to prisoners asserting claims of constitutional violations.
Indigent defense for capital cases: Create and adequately fund state defender organizations that
are independent of the judiciary and that have sufficient resources to provide quality representation to indigent capital defendants at the trial, appeal and post-conviction levels. Require states
to ensure that capital defense lawyers have adequate time, compensation and resources for their
work.
Prisoners’ right to remedy: Congress should act immediately to ensure the Prison Abuse Remedies
Act of 2009, H.R. 4335 (PARA) becomes law, and the Obama Administration should support its
passage. PARA reinstates the ability of prisoners to challenge conditions of confinement that
violate their rights by repealing the “physical injury” requirement of the Prison Litigation Reform
Act (PLRA); exempting juveniles under age eighteen (18) from the burdens created by the PLRA;
and amending the “exhaustion requirement” to allow prison officials to deal administratively with
problems in the first instance, but without the ability to block legitimate claims from reaching the
federal courts.
State secrets: Congress should pass legislation that creates procedures to prevent the abuse
of the state secrets privilege and protect the rights of those seeking redress through our court
system.
Remedies for domestic violence victims: Congress should amend the Violence Against Women
Act to ensure better oversight and training of police and provide effective remedies for victims of
violence.
Diplomatic immunity for abuse of domestic workers: The Obama Administration should fully
implement the Trafficking Victims Protection Act to ensure that diplomat employers are held accountable for abuse of domestic workers, including establishing a standard contract for domestic
workers and a mechanism for providing adequate compensation for domestic workers who are
subject to abuse and exploitation by diplomat employers.
Stipulated removal orders: The Department of Homeland Security should not issue stipulated
removal orders without an in-person hearing before an immigration judge to determine that the
noncitizen’s waiver of the right to a removal hearing was knowing and voluntary.

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Diplomatic assurances: The Obama Administration should prohibit the reliance on “diplomatic
assurances” to deport (pursuant to 8 C.F.R. § 208.18(c)) or otherwise transfer persons from the
United States. At a minimum, ensure that no such assurances are used without an opportunity for
meaningful judicial review of whether they are sufficient to comply with U.S. obligations under the
UN Convention Against Torture.
Access to immigration counsel for people facing removal: Congress should provide appointed
counsel for people with mental disabilities and other immigrants in removal proceedings. The
Department of Justice and the Executive Office for Immigration Review should develop regulations that protect the rights of non-citizens with mental disabilities in immigration court proceedings, including directing immigration judges in appropriate cases to appoint counsel and
terminate proceedings.
Erosion of remedies for victims of racial discrimination: Congress should introduce and pass
legislation addressing the Sandoval decision by providing a private right of action against entities receiving federal funding based on evidence of disparate impact under Title VI. In addition,
Congress should pass legislation143 to restore the historic construction of the rule governing motions to dismiss and the Judicial Conference should adopt changes to the rule itself to help make
that change permanent and protect it from further judicial interference.
Racial profiling: Congress should enact the End Racial Profiling Act, which would ban racial profiling and provide for government monitoring and documentation of racial profiling, including the
collection of comprehensive data on stops, searches, arrests, and law enforcement officers’ explanations for these encounters. Such legislation should compel all law enforcement agencies to
ban racial profiling; create and apply profiling procedures; document data on stop/search/arrest
activities by race and gender; and create a private cause of action for victims of profiling.
Violations of undocumented workers’ employment rights: Congress should reintroduce, update,
and pass the Civil Rights Act of 2008, which would address the Hoffman Plastics decision and ensure employment protections for non-citizens regardless of their immigration status. State legislatures should strengthen protections in state anti-discrimination and workers’ compensation
laws for undocumented persons.

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ENDNOTES
1	

An earlier, 10-page version of this report was submitted on April 19, 2010 to the historic Universal Periodic Review of the
United States.

2	

See, e.g., Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. 40/34, annex, 40 U.N. GAOR
Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985); Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A.
Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005); Right to Restitution, Compensation and Rehabilitation for Victims of
Grave Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni,
E.CN.4/2000/62, §§ 2(b), 2(c), 3(d). See also Francesco Francioni, ed., Access to Justice as a Human Right (Oxford: Oxford University
Press, 2007).

3	

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316
(1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 9; European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222, opened for signature Nov. 4, 1950, entered into force Sept. 3, 1953, as amended by
Protocols Nos 3, 5, 8, and 11, entered into force 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998
respectively, arts. 5, 6.

4	

Inter-Am. Comm’n on Human Rights, Access to Justice as a Guaranty of Economic, Social, and Cultural Rights: A Review of
the Standards Adopted by the Inter-American System of Human Rights 47 (2007) para. 182, OEA/Ser.L./V/II.129 doc. 4. The
Commission also noted the importance of access to counsel in its recent report entitled “Access to Justice for Women Victims
of Violence in the Americans.”

5	

International Convention on the Protection and Promotion of the Rights and  Dignity of Persons with Disabilities, G.A. Res.
61/106, Annex I, U.N. GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 13
(“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including
through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct
and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary
stages.”).

6	

Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 8 (“Everyone has the right to an
effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution
or by law.”).

7	

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316
(1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 2(3) (“Each State Party to the present Covenant undertakes: (a) To
ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming
such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c)
To ensure that the competent authorities shall enforce such remedies when granted.”).

8	

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),
adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into
force June 26, 1987, ratified by the United States on October 21, 1994, art. 14, sec. 1 (requiring countries to “ensure in its legal
system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”).

9	

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A.
Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January
4, 1969, ratified by the United States on October 21, 1994, art. 6 (granting victims of racial discrimination “the right to seek ...
just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”).

10	

American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25
(1992), art. 25 (“Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court
or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their
official duties.”).

11	

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, opened for signature
Nov. 4, 1950, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11, entered into force 21 September 1970,
20 December 1971, 1 January 1990, and 1 November 1998 respectively, art. 13 (“Everyone whose rights and freedoms as set
forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”).

12	

Judicial Guarantees in States of Emergency (Arts. 27(2), 25, and 8 of the American Convention on Human Rights), Advisory

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31

Opinion OC-9/87, Inter-Am. C.H.R., OAS/Ser.C/V/111.19, doc. 13, para 41, at 23 (1987) (holding that “the ‘essential’ judicial
guarantees which are not subject to derogation, according to...the Convention, include habeas corpus...amparo, and any other
effective remedy before judges or competent tribunals...which is designed to guarantee the respect of the rights and freedoms
whose suspension is not authorized by the Convention”).
13	

See, e.g., Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the
Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004); Committee on Economic, Social and Cultural Rights, General Comment
9, The Domestic Application of the Covenant (Nineteenth session, 1998), U.N. Doc. E/C.12/1998/24 (1998), reprinted in
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/
GEN/1/Rev.6 at 54 (2003).

14	

Case No. 6586 Inter-Am. C.H.R. 91, OEA/ser.L./V/II/61, doc. 22 rev. 1 (1983), at paras. 166, 176; see also Gary Hermosilla et. al.,
Case No. 10.843, Inter-Am C.H.R. (1988).

15	

See, e,g., Irene Bleier Lewenhoff and Rosa Valiño de Bleier v. Uruguay, Communication No. 30/1978, Human Rights Committee,
U.N. Doc. CCPR/C/OP/1 at 109, para. 13.3 (1985); see also Alberto Grille Motta v. Uruguay, Communication No. 11/1977, Human
Rights Committee, U.N. Doc. CCPR/C/OP/1 at 54, para. 14 (1984); William Torres Ramirez v. Uruguay, Communication No.
4/1977 (26 January 1978), Human Rights Committee, U.N. Doc. CCPR/C/OP/1 at 4, para. 16 (1984); Edgardo Dante Santullo
Valcada v. Uruguay, Communication No. 9/1977, Human Rights Committee, U.N. Doc. CCPR/C/OP/1 at 43, para. 11 (1984);
Anthony McLeod v. Jamaica, Communication No. 734/1997, U.N. Doc. CCPR/C/59/D/734/1997 (3 June 1998).

16	

Thomas M. Antkowiak,, Truth as Right and Remedy in International Human Rights Experience, Michigan Journal of International
Law, 23 Mich. J. Int’l L. 977, 986 (2002).

17	

See, e.g., McCann and others v. United Kingdom, 324 Eur. Ct. H.R. 31 (ser. A) (1995); Avsar v. Turkey, App. No. 25657/94, Eur. Ct.
H.R., at para. 393 (2001).

18	

See Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International
Law, 78 Cal. L. Rev. 451, 482 (1990); Declaration on the Protection of All Persons from Enforced Disappearance, G.A. Res.
47/133, U.N. GAOR, 47th Sess., Supp. No. 49, at 207, U.N. Doc. A/47/49 (1992), adopted Dec. 18, 1992 (stating that individuals
responsible for forced disappearances are liable under civil law).

19	

See, e.g., Convention against Torture, supra note 8, art. 14; ICCPR, supra note 7, art. 9(5); American Convention on Human
Rights, supra note 10, art. 63(1); European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 11, art 5(5); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, supra note 2, arts.
8-21; Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human
Rights and Fundamental Freedoms: Preliminary Report Submitted by Mr. Theo van Boven, Special Rapporteur, Commission
on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, U.N. ESCOR, 42d Sess.,
at 1, U.N. Doc. E/CN.4/Sub.2/1990/10 (1990) (quoting Sub-Commission on the Prevention of Discrimination and Protection of
Minorities, Resolution 1988/11 (Sept. 1, 1988)).

20	

See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); United States v. Nixon, 418 U.S. 683, 707 (1974).

21	

Death Penalty Information Center, Executions in 2010, available at http://deathpenaltyinfo.org/executions-2010; Death Penalty
Information Center, The Death Penalty in 2009: Year End Report, Dec. 2009, available at http://www.deathpenaltyinfo.org/
documents/2009YearEndReport.pdf.

22	

Death Penalty Information Center, The Death Penalty in 2009: Year End Report, Dec. 2009, available at http://www.deathpenaltyinfo.org/documents/2009YearEndReport.pdf.

23	

Death Penalty Information Center, The Innocence List, http://www.deathpenaltyinfo.org/innocence-list-those-freed-deathrow (last visited Dec. 6, 2010).

24	

See ACLU, Broken Justice: The Death Penalty in Alabama (Oct. 2005), available at http://www.aclualabama.org/WhatWeDo/
BrokenJustice_report.pdf; The Southern Center for Human Rights, “If You Cannot Afford a Lawyer...”: A Report on Georgia’s
Failed Indigent Defense System (Jan. 2003).

25	

Id.

26	

Texas Defender Service, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts, Dec.
2002, available at http://02f2fd4.netsolhost.com/tds/images/publications/chapters.pdf.

27	

James S. Liebman et al., A Broken System: Error Rates in Capital Cases: 1973-1995 (June 2000), available at http://www2.law.
columbia.edu/instructionalservices/liebman/liebman_final.pdf.

28	

While the U.S. Supreme Court has recognized a defendant’s Sixth Amendment right to counsel in criminal cases, see Gideon v.
Wainwright, 372 U.S. 355 (1963), it has not recognized that right in post-conviction proceedings, see Murray v. Giarratano, 492
U.S. 1 (1989).

29	

Claims of ineffective assistance of counsel in violation of the Sixth Amendment are subject to a two-prong standard, set forth
in Strickland v. Washington, 466 U.S. 668 (1984), which requires that counsel performed deficiently and that the deficient performance prejudiced the defendant’s case.

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32

30	

See Murray v. Giarratano, 492 U.S. 1 (1989).

31	

Leonard Post, On Their Own, Nat’l L.J., Dec. 1, 2003.

32	

American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama Death Penalty
Assessment Report 99 (June 2006) at 126; Barbour v. Haley, Brief of Amici Curiae, Alabama Appellate Court Justices and Bar
Presidents in Support of Petition for a Writ of Certiorari, No. 06-10920 (11th Cir. Dec. 8, 2006).

33	

ACLU, Broken Justice: The Death Penalty in Alabama (Oct. 2005) at 2, available at http://www.aclualabama.org/WhatWeDo/
BrokenJustice_report.pdf.

34	

Ala. R. Crim. P. 32.7(c).

35	

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum, Mission to the
United States of America, UN Doc. A/HRC/11/2/Add.5, May 28, 2009, available at http://www.extrajudicialexecutions.org/application/media/United%20States%202009%20%28A_HRC_11_2_Add.5%29.pdf.

36	

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104 – 132, § 101 – 08, 110 Stat 1214 (1996).

37	

Ronald J. Tabak, Capital Punishment: Is There Any Habeas Left in This Corpus? 27 LOY. U. CHI. L.J. 523, 526 (1996).

38	

James S. Liebman, An “Effective Death Penalty”? AEDPA and Error Detection in Capital Cases, 67 Brooklyn L. Rev. 411, 425 (2001).

39	

28 U.S.C. § 2254(d).

40	

Death Penalty Information Center, Innocence and the Death Penalty, available at http://www.deathpenaltyinfo.org/innocenceand-death-penalty; Death Penalty Information Center, The Innocence List, available at http://www.deathpenaltyinfo.org/
innocence-list-those-freed-death-row.

41	

Mental Health America, Death Penalty and People with Mental Illness (June 11, 2006), available at http://www.nmha.org/go/
position-statements/54) (formerly known as National Mental Health Association).

42 	

Amnesty International, United States of America: the Execution of Mentally Ill Offenders (2006), available at http://www.amnesty.org/en/library/asset/AMR51/003/2006/en/73c0b3fe-d46f-11dd-8743-d305bea2b2c7/amr510032006en.pdf.

43 	

See W. Follette, D. Davis & R. Leo, Mental Health Status and Vulnerability to Police Interrogation Tactics 42, 46-49, Criminal
Justice, (Fall 2007).

44 	

See generally, Michelle C. Goldbach, Like Oil and Water: Medical and Legal Competency in Capital Appeal Waivers, 1 Cal. Crim. L.
Rev. 2 (2000).

45 	

Atkins v. Virginia, 536 U.S. 304, 320-21 (2002)

46 	

See id. at 321.

47 	

Ford v. Wainwright, 477 U.S. 399 (1986)

48	

Pub. L. 104-134 (Apr. 26, 1996).

49	

See Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the United States (June 2009) available at http://
www.hrw.org/en/reports/2009/06/15/no-equal-justice.

50	

The provision reads as follows: “No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. §
1997e(e). See also 28 U.S.C. § 1346(b)(2) (applying “physical injury requirement” to suits where the United States is a defendant).

51	

Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001) (no damages for violation of religious rights); Allah v. Al-Hafeez, 226 F.3d 247
(3d Cir. 2000) (same).

52	

See Hancock v. Payne, 2006 WL 21751 at *1, 3 (S.D. Miss. Jan. 4, 2006) (complaints that officers forcibly sodomized prisoners
barred by provision); Smith v. Shady, 2006 WL 314514 at *2 (M.D. Pa. Feb. 3, 2006) (complaint that correctional officer grabbed
prisoner’s penis barred by provision).

53	

Young v. Knight, 113 F.3d 1248, 1997 WL 297692 (10th Cir. June 5, 1997); see also Colby v. Sarpy Co., 2006 WL 519396 (D. Neb. Mar.
1, 2006) (dismissal of a claim of wrongful confinement for four months).

54	

Luong v. Hatt, 979 F. Supp. 481 (N.D. Tex. 1997).

55	

Harper v. Showers, 174 F.3d 716 (5th Cir. 1999).

56	

Weatherspoon v. Valdez, 2005 WL 1201118 (N.D. Tex. May 17, 2005).

57	

Committee against Torture, Conclusions and Recommendations of the Committee against Torture: United States of America,
CAT/C/USA/CO/2, paras. 29-30 (Concluding Observations/Comments), July 25, 2006; Committee against Torture, Conclusions
and Recommendations of the Committee against Torture: United States of America, 15/05/2000.A/55/44, paras. 179-80
(Concluding Observations/Comments), May 15, 2000.

58	

42 U.S.C. § 1997e(a).

59	

See Giovanna E. Shay & Joanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power: Interpreting the Prison Litigation

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Reform Act (PLRA), 29 Cardozo Law Review 291, 321 (2007) (reporting that in cases in which an exhaustion issue was raised
after the Supreme Court decision in Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006), all of the prisoner’s claims survived in
fewer than 15% of reported cases).
60	

The National Center for Education Statistics reported in 1994 that seven out of ten prisoners perform at the lowest literacy
levels. Karl O. Haigler et al., U.S. Dept. of Educ., Literacy Behind Prison Walls: Profiles of the Prison Population from the National
Adult Literacy Survey xviii, 17-19 (1994), available at http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=94102.

61	

James, Doris J. & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report
1, Department of Justice, Bureau of Justice Statistics, December 14, 2006.

62	

Leigh Ann Davis, People with Mental Retardation in the Criminal Justice System, available at www.thearc.org/faqs/crimqa.html.

63	

See Woodford v. Ngo, supra note 59 at 2402 (Stevens, J., dissenting) (noting that most grievance systems have deadlines of 15
days or less, and that the grievance systems of nine states have deadlines of between two and five days).

64	

See, e.g., Pearson v. Welborn, 471 F.3d 732, 745 (7th Cir. 2006) (affirming jury verdict that prisoner was sent to a “supermax”
facility for a year in retaliation for First Amendment-protected complaints about conditions); Dannenberg v. Valadez, 338 F.3d
1070, 1071-72 (9th Cir. 2003) (noting jury verdict for plaintiff on claim of retaliation for assisting another prisoner with litigation); Walker v. Bain, 257 F.3d 660, 663-64 (6th Cir. 2001) (noting jury verdict for plaintiff whose legal papers were confiscated in
retaliation for filing grievances).

65	

See 18 U.S.C. § 3626(g)(3), (5); 42 U.S.C. § 1997e(h); 28 U.S.C. § 1915(h); and 28 U.S.C. § 1915A(c).

66	

Allen J. Beck, Ph.D, Paige M. Harrison, and Paul Guerino, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 1,
Department of Justice, Bureau of Justice Statistics, January 2010.

67	

See, e.g., Stop Prisoner Rape, The Sexual Abuse of Female Inmates in Ohio (Dec. 2003), available at http://www.spr.org/pdf/
sexabuseohio.pdf (including discussion of sexual assaults by staff in juvenile wing of facility); American Civil Liberties Union
of Hawai’i, “Hawai’i Youth Correctional Facility to Pay Over Half a Million Dollars for ‘Relentless Campaign of Harassment’
of Gay and Transgender Youth” (June 15, 2006) (threats of violence and physical and sexual assault), available at http://www.
acluhawaii.org/news.php?id=24; Letter from Deval Patrick, Civil Rights Division of U.S. Department of Justice to Louisiana
Governor Mike Foster, July 15, 1996, available at http://www.usdoj.gov/crt/split/documents/lajuvfind3.htm (describing physical and sexual assaults on youth held in secure juvenile facilities in Louisiana); American Civil Liberties Union & Human Rights
Watch, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for Girls at 44-56, 63-71 (2006).

68	

See Gregg Jones, et al., TYC Facilities Ruled by Fear, Dallas Morning News, March 18, 2007, available at http://www.dallasnews.
com/sharedcontent/dws/news/texassouthwest/stories/031807dnprotycretaliate.3e701e5.html.

69	

See, e.g., M.C. ex rel. Crider v. Whitcomb, 2007 WL 854019, at *3 (S.D. Ind. 2007); Harris v. Le Roy Baca, 2003 WL 21384306, at *3
(C.D. Cal. 2003) (rejecting the contention that a grievance filed by counsel on prisoner’s behalf satisfies the exhaustion requirement); El’Shabazz v. City of Philadelphia, 2007 WL 2155676, at *3 (E.D. Pa. 2007) (grievances filed by prisoner’s father on his
behalf did not satisfy

	

PLRA); Minix v. Pazera, 2005 WL 1799538, at *7 (N.D. Ind. 2005) (efforts of detained juvenile’s mother to stop ongoing abuse of
her son did not satisfy PLRA); Brock v. Kenton County, KY, 93 Fed. Appx. 793, 795, 799 (6th Cir. 2004).

70	

See, e.g. Rasul v. Myers, 563 F.3d 527, 528 (D.C. Cir. 2009) (no reasonable government official would know that Guantanamo
detainees had due process rights or a right to be free from “cruel and unusual punishment” as provided by the Fifth and Eighth
Amendments to the U.S. Constitution); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. N.Y. 2009) (government argued qualified immunity,
but court did not rule on it); In re Iraq & Afg. Detainees Litig., 479 F. Supp. 2d 85 (D.D.C. 2007).

71	

See, e.g., Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (Alien Tort Statute claim dismissed on ground that non-state actors cannot be liable. This decision grants unwarranted immunity for private contractors through an erroneous conclusion equating
them with armed forces—a perversion of International Humanitarian Law rules and principles of distinction between combatants and civilians).

72	

See, e.g., Mohamed v. Jeppesen Dataplan, 539 F. Supp. 2d 1128 (N.D. Cal. 2008), rev’d, 563 F.3d 992 (9th Cir. Cal. 2009), reh’g en
banc granted, 586 F.3d 1108 (9th Cir. Cal. 2009); El-Masri v. Tenet, 479 F.3d 296 (4th Cir. Va. (2007).; Arar v. Ashcroft, 585 F.3d 559
(2d Cir. N.Y. 2009) (government asserted state secret privilege, but court did not rule on it).

73	

Scott Shane, “Invoking Secrets Privileges Becomes a More Popular Legal Tactic by U.S.”, New York Times (Jun. 4, 2006).

74	

See, e.g. Complaint, Khaled El-Masri v. George J. Tenet, No. 05-cv-1417 (E.D. Va., filed Dec. 6, 2005), available at http://www.aclu.
org/images/extraordinaryrendition/asset_upload_file829_22211.pdf.

75	

Brief for Plaintiff, Statement of Khaled El-Masri, Khaled El-Masri v. George J. Tenet, No. 05-cv-1417 (E.D. Va., filed Dec. 6, 2005),
available at http://www.aclu.org/safefree/extraordinaryrendition/22201res20051206.html.

76	

El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006).

77	

El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S.Ct. 373 (2007).

78	

El-Masri v. U.S., 128 S.Ct. 373 (2007).

79	

Petition Alleging Violations of the Human Rights of Khaled El-Masri by the United States of America with a Request

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for an Investigation and Hearing on the Merits at 77-85, April 9, 2008, available at http://www.aclu.org/safefree/
torture/34837lgl20080409.html.
80	

Jane Mayer, Outsourcing: The C.I.A.’s Travel Agent, The New Yorker, Oct. 30, 2006.

81 	

Petition for Writ of Certiorari, Mohamed et al. v. Jeppesen DataPlan, Inc. (U.S. filed Dec. 7, 2010), available at http://www.aclu.org/
files/assets/2010-12-7-JeppesenCertPetition.pdf.

82 	

On September 27, 2010, the Supreme Court announced that it will be revisiting the state secrets privilege for the first time
since 1953 in two consolidated cases, General Dynamics Corp. v. United States (09-1298) and Boeing Co. v. United States (091302). In both cases, the government terminated a substantial military contract based on a claim of default, but then asserted
the state secrets privilege to prevent the contractors from defending themselves against the government’s default charge.

83 	

Brief in Opposition to Petition for Certiorari, Arar v. Ashcroft, No. 09-923 (May 12, 2010).

84 	

See, e.g., Brief of the United States, Padilla v. Yoo, No. 09-16478 (9th Cir. Dec. 3, 2009).

85	

United States v. Morrison, 529 U.S. 598 (2000); Gonzales v. Castle Rock, 125 S. Ct. 2796 (2005).

86	

Id.

87	

Morrison, 529 U.S. at 618-20.

88	

Castle Rock v. Gonzales, 545 U.S. 748 (2005).

89	

In this case, the Court’s decision also distorts state legislatures’ intent in requiring enforcement of protective orders and
ignores the dynamics of police non-responsiveness to domestic violence that led to these laws. It displays blindness to the
realities of domestic violence and the legal structures created to respond to it.

90	

Gonzales v. United States, Petition, Inter-American Commission on Human Rights (2005), available at http://www.aclu.org/files/
pdfs/petitionallegingviolationsofthehumanrightsofjessicagonzales.pdf.

91	

Vienna Convention on Diplomatic Relations, done Apr. 18, 1961, United States accession, April 29, 1970, 23 U.S.T. 3227, available
at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.

92	

See, e.g., U.S. Dep’t of State, Statement of Interest in Gonzalez Paredes v. Vila, No. 06-0059-cv (D.D.C), docket no. 23; Statement
of Interest of the United States, Begum v. Saleh, No. 1:99-cv-11834-RMB (S.D.N.Y. filed Dec. 7, 1999), available at www.state.
gov/documents/organization/6655.doc. See also Agreement Between the United Nations and the United States of America
Regarding the Headquarters of the United Nations, June 26-Nov. 21, 1947, 61 Stat. 3416; Convention on Privileges and
Immunities of the United Nations, adopted Feb. 13, 1946, United States accession, April 29, 1970, 21 U.S.T. 1418.

93	

See, e.g., Begum v. Saleh, where the complaint sought damages for defendants’ allegedly holding plaintiff in involuntary servitude prohibited by the Thirteenth Amendment, failure to pay minimum wage under federal and state laws, assault and battery,
false imprisonment, conversion, and trespass to chattels.

94	

Tabion v. Mufti, 73 F.3d 535, 537-540 (4th Cir. 1996).

95	

Sabbithi v. Al Saleh, No. 07-cv-00115 (D.D.C. January 18, 2007).

96	

Petition Alleging Violations of the Human Rights of. Domestic Workers Employed by Diplomats by the United States
of America, Inter-American Commission on Human Rights (2007), available at http://www.aclu.org/womens-rights/
petition-un-domestic-workers-iachr.

97	

Jayashri Srikantiah, Stanford School of Law Immigrants’ Rights Clinic, and Karen Tumlin, National Immigration Law
Center, Backgrounder: Stipulated Removal, November 2008, available at http://www.law.stanford.edu/program/clinics/immigrantsrights/pressrelease/Stipulated_removal_backgrounder.pdf.

98	

Id.

99	

See, e.g., Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, L.A. Times, March 2, 2009. As of 2008, nearly half
of all stipulated orders entered since 1999 were signed at just three large immigration detention facilities in Eloy, Arizona;
Lancaster, California; and Los Fresnos, Texas. Srikantiah and Tumlin, Backgrounder: Stipulated Removal, supra note 97.

100	

Srikantiah and Tumlin, Backgrounder: Stipulated Removal, supra note97.

101	

Department of Justice and ICE Joint Press Release, “ICE and DOJ Joint Enforcement Action at Iowa Meatpacking Plant,” May
12, 2008, available at http://www.ice.gov/pi/news/newsreleases/articles/080512cedarrapids.html.

102	

DOJ Press Release, “Over 300 Criminal Arrests In Postville ICE Operation,” May 15, 2008, available at http://www.usdoj.gov/
usao/ian/press/May_08/5_15?08_Agriprocessors.html.

103	

U.S. Attorney’s Office Northern District of Iowa Press Release, “300 Now Convicted and Sentenced Following May Arrests in
Postville,” June 10, 2008, available at http://www.usdoj.gov/usao/ian/press/June_08/6_10?08_Postville.html.

104	

Erik Camayd-Freixas, “Interpreting after the Largest ICE Raid in US History: A Personal Account,” June 13, 2008, available
at http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf; Muzaffar Chishti, Iowa Raid Raises Questions
about Stepped-Up Immigration Enforcement, Migration Policy Institute, June 16, 2008, available at http://www.migrationinformation.org/USFocus/display.cfm?ID=686. Attorneys who represented the arrested workers were provided a pre-packaged

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“manual” at a meeting at the federal courthouse in Cedar Rapids in anticipation of the mass criminal prosecutions following
the raid. It contained scripts for plea and sentencing hearings as well as documents providing for guilty pleas and waivers of
rights. See July 24, 2008 Letter of Rockne Cole to Representative Zoe Lofgren. According to the Federal Courts’ June 2008
Newsletter, Third Branch, the district court assembled checklists and forms related to initial appearances, status conferences, pleas and sentences prior to the raid. Largest Ever Criminal Worksite Enforcement Operation Stretches Court, The Third
Branch, Vol. 40 No. 6, June 2008, available at http://www.uscourts.gov/ttb/2008-06/article01.cfm.
105	

Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture (Apr. 2005)

106	

Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations, Wash. Post, Dec. 26, 2002, at A01 (quoting senior United States official as stating that after an individual is rendered, the CIA are “still very much in control” and that they
will often “feed questions to their investigators”). See also Rajiv Chandrasekaran and Peter Finn, U.S. Behind Secret Transfer of
Terror Suspects, Wash. Post, Mar. 11, 2002; David E. Kaplan, et al., Playing Offense: The Inside Story of How U.S. Terrorist Hunters
Are Going After Al Qaeda, U.S. News & World Report, June 2, 2003 (describing rendition of individuals to Jordan, Egypt, Morocco
and Syria). For a comprehensive news report on the practice of rendition see Jane Mayer, Outsourcing Torture, New Yorker, Feb.
14, 2005.

107	

Second Periodic Report of the United States of America to the Committee Against Torture, UN Doc. CAT/C/48/Add.3/Rev.1,
January 13, 2006.

108	

Khouzam v. Chertoff, 549 F.3d 235 (3d Cir. 2008).

109	

Khouzam v. Hogan, et al., 529 F. Supp. 2d 543 (M.D. Pa. 2008).

110	

Khouzam v. Chertoff, 549 F.3d 235 (3d Cir. 2008).

111	

Department of Justice, Office of Public Affairs, Special Task Force on Interrogations and Transfer Policies Issues Its
Recommendations to the President, Aug. 24, 2009; see also David Johnston, U.S. Says Rendition to Continue, but With More
Oversight, N.Y. Times, Aug. 24, 2009.

112	

Id.

113 	

Human Rights Watch and ACLU, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US
Immigration System (July 2010), available at http://www.aclu.org/files/assets/usdeportation0710_0.pdf.

114	

8 U.S.C. Section 1229a(b)(3).

115	

Here, “competency” refers to the legal term of art in the United States which sets a standard for a person’s ability to participate
in and understand the court process; 8 U.S.C. Section 1229a(b)(3).

116	

Alexander v. Sandoval, 532 U.S. 275 (2001).

117	

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (creating a new requirement that, to overcome motions to dismiss, federal
complaints must state enough facts to persuade the presiding court that the claim is “plausible”; this replaced a standard set
out in 1957 in Conley v. Gibson, 355 U.S. 41 (1957), which said that civil cases should not be dismissed “unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”).

118	

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (ruling that civil claimants must plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged” and that in making that determination a court is
to “draw on its judicial experience and common sense”).

119	

42 U.S.C. § 2000d et seq.

120	

See Conley v. Gibson, 355 U.S. 41 (1957) (holding that civil cases should not be dismissed “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). The Supreme Court has cited
the language of Conley in at least a dozen decisions in the half-century since the case was decided.

121	

See Editorial, Restoring Access to the Courts, N.Y. Times, Dec. 22, 2009; Howard M. Wasserman, Iqbal, Procedural Mismatches,
and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010).

122	

See, e.g., Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark
L. Rev. 15 (2010); A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010). 

123	

For examples of cases dismissed under the revised pleading standard, see, e.g., Francis v. Giacomelli, 588 F.3d. 186, 193 (4th
Cir. 2009) (in a case brought by a police commissioner and his deputies following termination of their employment, in which
plaintiffs argued inter alia that the defendants discriminated against them on account of their race, dismissal of the action is
affirmed without leave to amend because, based on the facts alleged in the complaint, the complaint fails to articulate any
claim for relief that is plausible on its face as required under Iqbal and Twombley, finding in part that because one of the fired
employees is white, it was implausible that the African-American plaintiffs were fired as a result of animus); Oinonen v. TRX,
Inc., 2010 WL 396112 (N.D.Tex. 2010) (dismissing, with leave to amend, an age discrimination disparate impact class action
involving a mass layoff of workers over 40 years of age, on the basis of plaintiffs’ failure to meet heightened pleading standards
under Iqbal and Twombley, finding that “Plaintiffs point to the layoff itself as the practice that disparately impacted older workers. However, they do not identify any specific test, requirement, or practice in the layoff selection process that is allegedly
responsible for the purported statistical disparities. Identifying a specific practice is not a trivial burden, and is necessary to

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protect employers from potential liability when the statistical imbalances are the result of legitimate and non-discriminatory
employment actions.”).
124	

See, e.g., H.R. 4115 Open Access to the Courts Act of 2009; S. 1504 Notice Pleading Restoration Act of 2009. Both were introduced in the 111th Congress and attempt to achieve the result of restoring the Conley standard as it had been construed prior
to the Iqbal and Twombley decisions.

125	

States with racial profiling-related legislation include Arkansas, California, Colorado, Connecticut, Florida, Illinois, Kansas,
Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico,
Oklahoma, Rhode Island, Tennessee, Texas, Utah, Washington and West Virginia.

126	

Arkansas (Ark. Code. Ann § 12-12-1403), Kansas (Kan. Stat. Ann. § 22-4610), New Mexico (recently enacted HB 428 has not
been codified yet), Oklahoma (22 Okl. St. Ann. § 34.3) and West Virginia (W. Va. Code, § 30-29-10).

127	

N.J. Stat. Ann. § 2C:30-6.

128	

Okl. St. Ann. tit. 22 § 34.3.

129	

Colorado (Colo. Rev. Stat. § 24-31-309), Kansas (Kan. Stat. Ann. § 22-4610), Minnesota (Minn. Stat. Ann. § 626.9514), Missouri
(Mo. Rev. Stat. § 590.653), Nebraska (Neb. Rev. Stat. § 20-504), New Mexico (recently enacted HB 428 has not been codified yet),
Oklahoma (22 Okl. St. Ann. § 34.3), Rhode Island (Gen. Laws 1956, § 31-21.2-8), Washington (Rev. Code Wash. Ann. 43.101.410),
and West Virginia (W. Va. Code, § 30-29-10).

130	

Kansas (Kan. Stat. Ann. § 22-4611), and Rhode Island (Gen. Laws 1956, § 31-21.2-4).

131	

The Traffic Stops Statistics Act, legislation to address racial profiling, was first introduced in 1997. Traffic Stops Statistics Act of
1997, H.R. 118, 105th Cong. (1997). Subsequently, similar legislation was introduced as the ERPA in 2001. End Racial Profiling
Act of 2001, H.R. 2074, 107th Cong. (2001).

132	

Id. §§ 101, 201, 304, 102(a).

133	

Screws v. U.S., 325 U.S. 91, 101 (1945); see also Michael J. Pastor, A Tragedy and a Crime?: Amadou Diallo, Specific Intent, and the
Federal Prosecution of Civil Rights Violations, 6 N.Y.U. J. Legis. & Pub. Pol’y 171 (2002/2003). See also United States v. Shafer, 384
F. Supp. 496, 503 (N.D. Oh. 1974) (internal quotations omitted) (stating “Even the specific intent to injure, or the reckless use
of excessive force, without more, does not satisfy the requirements of § 242 . . . . There must exist an intention to punish or to
prevent the exercise of constitutionally guaranteed rights, such as the right to vote, or to obtain equal protection of the law.”).

134	

See id. at 502-03.

135	

See Human Rights Council, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights,
Including the Right to Development: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip
Alston, para 138, U.N. Doc. A/HRC/11/2/Add.S (May 26, 2009) (characterizing the standard for criminal liability for police as
“very high”).

136	

See U.S. Commission on Civil Rights, Revisiting Who is Guarding the Guardians?: A Report on Police Practices and Civil Rights in America
(2000), available at http://www.usccr.gov/pubs/guard/main.htm.

137	

In September 2003, the Inter-American Court of Human Rights issued an advisory opinion on the rights of undocumented
migrants, in which it held that international principles of human rights prohibit discrimination on the basis of immigration status. In particular, the Court examined the consequences of the Hoffman decision on the rights of undocumented workers. The
Court held that states must ensure the right to access to justice, the right to effective jurisdictional protection, and the right to
remedy irrespective of migratory status, stating that “States must ensure that all persons have access, without any restriction,
to a simple and effective recourse that protects them in determining their rights, irrespective of their migratory status.” See
Inter-American Court of Human Rights, Advisory Opinion OC-18/03 Requested by the United Mexican States, Juridical Condition
and Rights of the Undocumented Migrants, paras. 107-110, Sept. 17, 2003, available at http://www.corteidh.or.cr/docs/opiniones/
seriea_18_ing.pdf.

138	

Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

139	

Crespo v. Evergo, 366 N.J.Super. 391 (N.J.Super.A.D., 2004).

140	

Recognizing that, in some states, employ­ment and labor protections under state law have been either eliminated or se­verely
limited for undocumented work­ers (including basic workplace protec­tions such as freedom from workplace discrimination
and entitlement to hold an employer responsible for a work­place injury), the ACLU, along with the National Employment
Law Project and the Transnational Legal Clinic at the University of Pennsylvania School of Law, filed a petition urging the
Inter-American Commission on Hu­man Rights to find the United States in violation of its universal human rights obligations
by failing to protect mil­lions of undocumented workers from exploitation and discrimination in the workplace. The petition
argues that the U.S. is not in compliance with international human rights law, which requires all nations to apply their workplace protections equally and without discrimination based on immigration status. The petition was submit­ted to the commission on behalf of the United Mine Workers of America, AFL-CIO, Interfaith Justice Network, and six immigrant workers who
are represen­tative of the millions of undocumented workers in the U.S. labor force. The petition is currently pending. See
Petition Alleging Violations of the Human Rights of Undocumented Workers by the United States of America, Inter-American
Commission on Human Rights, Nov. 1, 2006, available at http://www.aclu.org/files/images/asset_upload_file946_27232.pdf.

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141	

Reinforced Earth C. v. Workers’ Compensation Appeal Bd. (Astudillo) 570 Pa. 464.

142	

Sanchez v. Eagle Alloy Inc., 254 Mich. App. 651 (Mich. Ct. App. 2003) cert. denied Sanchez v. Eagle Alloy, Inc., 471 Mich. 851 (Mich.
2004).

143	

H.R. 4115 Open Access to the Courts Act of 2009 and S. 1504 Notice Pleading Restoration Act of 2009 have been introduced in
the 111th Congress. Both attempt to achieve the result of restoring the Conley standard as it had been construed prior to the
Iqbal and Twombley decisions.

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ANNEX:
ACCESS TO JUSTICE AND EFFECTIVE REMEDY
STATE-BY-STATE
The following section outlines instances of denial of access to justice and effective remedy in
various states. This section is based on information provided by ACLU affiliates in states
across the country.

ALABAMA .......................................................................................................41
I.
II.
III.
IV.

Prisoners’ Rights ................................................................................................... 41
Capital Punishment ............................................................................................... 42
Women’s Rights ..................................................................................................... 44
Immigrants’ Rights ................................................................................................ 45

ARIZONA .........................................................................................................46
I.

Immigrants’ Rights ................................................................................................ 46

CALIFORNIA ..................................................................................................49
I.
II.
III.

Capital Punishment ............................................................................................... 49
Racial Justice ......................................................................................................... 49
Immigrants’ Rights ................................................................................................ 50

FLORIDA .........................................................................................................53
I.

Capital Punishment ............................................................................................... 53

GEORGIA .........................................................................................................55
I.

Racial Justice ......................................................................................................... 55

IOWA................................................................................................................57
I.

Immigrants’ Rights ................................................................................................ 57

MARYLAND ....................................................................................................59
I.

LGBT Rights ........................................................................................................... 59

MICHIGAN ......................................................................................................61
I.
II.
III.

Racial Justice ......................................................................................................... 61
Indigent Defense.................................................................................................... 61
Prisoners’ Rights / Children’s Rights................................................................... 63

NEVADA ..........................................................................................................66
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I.
II.

Indigent Defense.................................................................................................... 66
LGBT Rights ........................................................................................................... 66

NEW JERSEY .................................................................................................68
I.
II.

Women’s Rights ..................................................................................................... 68
LGBT Rights ........................................................................................................... 68

NEW MEXICO AND BORDER REGION........................................................70
I.
II.
III.

Women’s Rights ..................................................................................................... 70
Immigrants’ Rights ................................................................................................ 70
Racial Justice / Immigrants’ Rights ..................................................................... 72

NEW YORK .....................................................................................................74
I.
II.
III.

Indigent Defense.................................................................................................... 74
Racial Justice ......................................................................................................... 75
Immigrants’ Rights ................................................................................................ 76

OHIO ................................................................................................................78
I.

Children’s Rights ................................................................................................... 78

PENNSYLVANIA ............................................................................................80
I.

Racial Justice ......................................................................................................... 80

TEXAS .............................................................................................................81
I.
II.
III.
IV.

Immigrants' Rights ................................................................................................ 81
Capital Punishment ............................................................................................... 83
Indigent Defense.................................................................................................... 86
Prisoners’ Rights ................................................................................................... 87

WASHINGTON................................................................................................88
I.

LGBT Rights ........................................................................................................... 88

ENDNOTES .....................................................................................................90

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ALABAMA
I.

Prisoners’ Rights
a. Denial of Access to Justice in Litigating Jail Conditions

The ACLU of Alabama receives hundreds of requests for help every year from people in
county and city jails. These prisoners tell stories of appalling violations of their human
rights.1 Overcrowding—with all of its consequences—is nearly universal. Prisoners in
Alabama’s county and city jails suffer from horrific medical neglect, including denial of
medical care for acute mental health needs. A Calhoun County prisoner noted that he
was denied medical care for a staph infection until his mother became involved. Despite
eventually receiving some care, he stated, “I never visited a doctor no (sic) did one come
to the jail to treat me, leg swollen, could barely walk, painful.”2 In Lamar County, a
prisoner with Tuberculosis noted that he had, “been diagnosed with hepatitis C and am
not being treated for the hepatitis.”3
Prisoners in many facilities suffer from malnutrition. A Cleburne County prisoner wrote
to the ACLU of Alabama, “The bread they are serving now is in a molded state. There is
very little protein in the diet here. Not enough calories… and not close to the minimum
amount of daily nutrition. People that I seen were eating toothpaste because of being
hungry.”4 In Fayette County, a prisoner noted that, “The meals are cold. We are served
one peanut butter sandwich for lunch everyday. Bologna for dinner each day.”5
Filthy conditions are the norm in Alabama’s county and city jails. A prisoner in Baldwin
County stated that he had to sleep in human feces and was denied drinking water. In
Coffee County, another prisoner reiterated these unacceptable conditions, stating,
“There is stuff all over the walls, human feces spatter, it’s just filthy. The lining at the
bottom of the toilet is missing. It’s leaking. Insects is crawling and flying out of it, also
sewage is leaking out of it. I sleep and eat in this room 23 hours out of 24 hours a day.”6
Inmates suffering these prison conditions are currently unable to receive adequate
remedies and access to justice due to the substantial obstacles created by the Prison
Litigation Reform Act (PLRA). The PLRA, enacted by Congress in 1996, is applicable to
conditions suits pertaining to both prisons and jails.7
The PLRA contains numerous troubling provisions. First, the PLRA provides that no
prisoner may bring an action for “mental or emotional injury suffered while in custody
without a prior showing of physical injury.”8 This requirement may bar recovery of
monetary damages for numerous violations, including the “denial of mental health care,
racial discrimination, denial of religious freedoms, psychological torture, and retaliation
for filing grievances.9 Second, the PLRA places a two-year limit on prospective relief.10
In practice, this provision allows prison conditions to easily revert back to their
deteriorated state without more judicial oversight. Finally, the PLRA imposes significant
restrictions on attorney fee awards to prevailing plaintiffs. Under the statute, attorney’s
fees must be proportionate to amount of relief ordered by the court regardless of the

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fact that an actual money judgment might be quite small.11 Additionally, the PLRA
imposes a cap on attorney’s fees.12 These attorney’s fees provisions are a disincentive to
attorney participation in prisoner civil suits. As a result of the PLRA, prisoners with
meritorious claims may have substantial difficult litigating them in the court system.
Consequently, prisoners are denied access to justice and an effective remedy for a
variety of human rights abuses occurring in local jails.
b. Treatment of HIV+ Prisoners
Alabama has a long and unfortunate history of discriminating against people living with
HIV or AIDS in the prison system. HIV+ prisoners are segregated from the mainstream
prison population. Due to discriminatory practices by the Alabama Department of
Corrections (ADOC), HIV+ prisoners do not have access to important prison programs
that may contribute to their rehabilitation and early release. Consequently, these
prisoners have long been denied access to justice available to other similarly situated
prisoners.
Through collaborative efforts with the ACLU of Alabama, ADOC has made progress in
ending HIV discrimination in access to in-prison programs; however, significant
problems remain. HIV+ men are barred from prison jobs outside the HIV unit at
Limestone Correctional Facility, including supervised work crews. HIV+ men are also
excluded from the Faith-based and Honor dorms. At Tutwiler Correctional Facility, HIV+
women are, likewise, excluded from supervised work crews and the Faith-based dorm.
HIV+ men continue to be excluded from the eight-week substance abuse programs. This
arbitrary exclusion of HIV+ men from the shorter program results in them serving
longer sentences than their HIV-negative peers. Perhaps most egregious is the arbitrary
medical eligibility requirements for HIV+ prisoners to qualify for work release.13 These
criteria bear no relation to an individual’s capacity for employment.
II.

Capital Punishment

While Alabama’s criminal justice is rife with problems, the state’s administration of the
death penalty exemplifies the over-arching issues of access to justice and denial of
effective remedy symptomatic of the entire system. Alabama has over 200 people on
death row.14 According to the Death Penalty Information Center, Alabama has the
highest death sentencing rate per capita and the eighth highest execution rate in the
country per capita.15
a. Lack of an Indigent Defense System: Denial of Access to Justice Due to
Inadequate Counsel
In capital cases, a competent attorney can mean the difference between life and death.
A defendant tried without adequate counsel is far more likely to be charged with and
convicted of a capital crime and to receive a death sentence.16 Alabama is the only state
in the country with no state-funded program to provide legal assistance in state postconviction proceedings to death row prisoners. Alabama has no statewide public
defender system, though Alabama’s death row occupants are overwhelmingly poor.17
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Alabama’s 67 counties are divided into 41 judicial circuits.18 Each judicial circuit
independently determines how to manage indigent defense.19 In practice, only a few
circuits have full or part-time public defenders’ offices. The majority of circuits use
private, court-appointed counsel for indigent representation.
Alabama provides only minimal compensation for court-appointed defense attorneys in
death penalty cases: 20 $60 an hour for in-court work and $40 an hour for out-of-court
work and no compensation for expenses, significantly below the market rate for lawyers
in private practice. Over half of the 200 people on Alabama’s death row were
represented at trial by appointed lawyers whose compensation for out-of-court
preparation was capped at $1,000.21 Historically, until 1999, Alabama capped the total
defense costs for both trial and post-conviction work at a maximum of $2,000. The cap
has been lifted for trial work, but it still exists for appeal and post-conviction work.
These funding rates and caps are grossly inadequate for the amount of work required to
properly represent an inmate’s rights. Moreover, judges routinely do not pay lawyers the
entire bill for work done in the case. For example, one lawyer reported the court paid
him the equivalent of $4.98 per hour to defend his client’s life.22 Lawyers must receive
adequate compensation in order to defend the rights of their clients most effectively.
Financial resources can buy time, experts, investigators, DNA and other forensic
testing—all important aspects of the legal process required to explore an inmate’s legal
history and options.
Studies by legal experts have documented severe shortcomings among these poorly
paid lawyers, including lawyers who fail to investigate the crime or their clients’
background or to prepare cross-examination or argument for trial.23 Alabama’s required
qualifications for capital defense counsel fall far below the American Bar Association’s
guidelines for the appointment of defense counsel for death penalty cases.24 Alabama
merely requires five years’ prior experience in the active practice of criminal law—with
no distinction as to kinds of cases litigated or kinds of criminal law practiced. This is far
from adequate preparation for the intricacies of a capital case. In some counties,
defendants have been sentenced to death after trials where they were represented by a
lawyer who did not meet even the minimum requirement of five years of criminal
defense experience.
For wrongful convictions and sentences to be challenged effectively, death row inmates
need lawyers at the post-conviction stage. Unlike every other state in the country that
uses the death penalty, Alabama has no mechanism or state-funded agency to provide
post-conviction counsel for persons sentenced to death. As a result, death row inmates
do not receive state-provided legal assistance to challenge the inadequate
representation they received at trial or other aspects of their conviction or sentence in
post-conviction proceedings. State law in Alabama does permit a judge to appoint
lawyers for post-conviction proceedings, but the law does not authorize any appointment
of counsel until prisoners, all of whom are incarcerated on death row and many of
whom are severely cognitively impaired, have filed own their own petitions with the
court.25 This situation is an obvious roadblock that prevents courts from hearing
legitimate claims of prosecutorial misconduct, failure to provide exculpatory evidence,
and inadequate assistance of counsel.
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b. Judicial Overrides in Death Sentencing
Alabama is one of only three states in which the trial judge is empowered with the legal
authority to disregard a jury’s recommended sentence and impose his own sentence.26
Alabama is the only state, however, with no meaningful standards governing this
practice, called judicial override27 Judges use overrides in Alabama almost exclusively to
override a jury’s – often unanimous – life recommendation to a death sentence rather
than override a death verdict to life. As a result, more than a fifth of the state’s death
row prisoners would never have been sent to death row had the judge followed the jury’s
verdict. The practice of judicial override is a significant factor in Alabama leading the
country in death sentencing per capita.
Alabama’s partisan judicial elections exacerbate the override problem. Because trial
court judges in Alabama are elected, their sentences are likely to reflect a desire to
appear “tough on crime” by imposing the death penalty.28 Indeed, studies have shown
that the use of judicial overrides of life verdicts to death sentences tend to increase in
election years.29 Particularly in high-profile capital cases, an elected judge’s incentive to
appease a constituency threatens the independence of the judiciary and the fairness of
the death sentence.
c. Race and the Death Penalty
As of 2010, 41 out of the 49 people (84 percent) executed by the State of Alabama during
the modern era were convicted of killing white people.30 While only six percent of all
murders in Alabama involve black defendants and white victims, over 68 percent of
black death row prisoners have been sentenced for killing a white victim.31
In the last ten years, 23 capital cases in Alabama were reversed upon proof that
prosecutors illegally excluded black people from jury service.32 From 2005 to 2009 in
Houston County, Alabama, prosecutors removed 80% of qualified black jurors from
service in capital cases. As a result, capital defendants there were tried by all-white
juries or juries with only a single black juror, though African-Americans make up 27% of
the county’s population.33 The practice of excluding black jurors during the selection
process is particularly noticeable when the defendants are black and the victims are
white.34 The systematic exclusion of black jurors in such cases raises serious concerns
about the fairness of these trials and the criminal justice system in general.
III.

Women’s Rights
a. Alabama Courts’ Unwillingness to Review Applications for a Waiver of
the Parental Consent Requirement for Abortion

Under Alabama law, an unemancipated minor in Alabama must obtain the written
consent of either parent or her legal guardian before obtaining an abortion. Without
such consent, she must petition the juvenile court in the county in which she resides or
in the county in which the abortion is to be performed for a waiver of the consent
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requirement. To obtain an abortion, the court must find either: (1) that the minor is
mature and well-informed enough to make the abortion decision on her own; or (2) that
performance of the abortion would be in the best interest of the minor.35 In actuality, the
overwhelming majority of family and district courts are unwelcoming places to seek a
judicial bypass. Testing has revealed that when asked about the judicial bypass
provision, circuit clerks repeatedly tell young women that “We don’t do that here.” Often
they are also advised to consult with an anti-choice counseling center. To the ACLU of
Alabama’s knowledge, only the courts in Tuscaloosa and Montgomery fairly evaluate
requests for waiver of the parental consent.
The Alabama court system’s unwillingness to review applications for a waiver of the
parental consent requirement has serious consequences for young women’s access to
abortion and their overall health. Most young women tell their parent or guardian about
their decision to have an abortion. The young women who do not tell their parents often
do so for compelling reasons such as emotional or physical abuse or incest. Rather than
tell their parents, some teenagers resort to unsafe, illegal abortions, or try to perform
the abortion themselves. In doing so, they risk serious injury and death.
IV.

Immigrants’ Rights
a. Access to Legal Representation

Etowah County Detention Center, located in the community of Gadsden, Alabama, two
hours from Atlanta, Georgia, and one hour from Birmingham, Alabama, is used by
Immigration and Customs Enforcement (ICE) to detain long-term immigrant detainees
who are either awaiting return to their country of origin or are awaiting the outcome of
appellate rulings. Over 2,900 detainees were detained in the facility in 2008.36
Many of the immigration detainees warehoused in Etowah County Detention Center and
other facilities in Alabama have agreed that they overstayed their visa and are willing to
return to their country of origin, but are being detained as they wait for this to happen.
This process can take months or years because of government difficulty obtaining the
necessary travel documents from foreign embassies.
Still others are in removal proceedings and fighting for their right to remain in the U.S.,
including potentially meritorious claims such as claims for asylum because they fear
persecution in their home country, or cancellation of removal based on their long history
and strong family ties to the U.S. However, it is nearly impossible for these individuals to
obtain legal assistance in removal proceedings or challenge their detention. The
government is not required to provide them with a lawyer, although many of the
detainees cannot afford an attorney.

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ARIZONA
I.

Immigrants’ Rights

Arizona serves as a stark example of civil and human rights violations that result from
unchecked enforcement authority in the area of immigration. Immigrant and ethnic
communities throughout the state have paid an extremely high price for the actions of
federal, state and local government officials. The combination of hostile state and
federal immigration enforcement laws, far-reaching and draconian enforcement
policies, and racist and anti-immigrant rhetoric have institutionalized discriminatory and
abusive practices against citizens and non-citizens alike in Arizona. Together, these
factors have created a climate of fear and distrust of law enforcement in our
communities such that affected persons are often afraid and intimidated from coming
forward to denounce violations. Without adequate protections and procedures to allow
individuals to speak openly about these experiences, the possibilities for both individual
redress and broader advocacy efforts are severely limited. Furthermore, without
decisive intervention from the federal government, and in light of the existing hurdles to
proving discrimination in the United States court system, the vast majority of persons
are denied effective and meaningful access to justice.
The implementation of immigration enforcement and detention policies in Arizona raises
serious human rights violations in the context of administration of justice and the rule of
law; equality and non-discrimination; right to life, liberty and security of the person; and
the rights of migrants, refugees, and asylum seekers.
a. Arizona’s Extreme Immigration Enforcement Law: SB 1070
In April 2010, the Arizona House of Representatives passed SB 1070, a bill to
dramatically expand police powers to stop, question and detain individuals for not having
proper identification. Signed into law by Arizona Governor Jan Brewer on April 23, 2010,
the law unconstitutionally allows the state of Arizona to regulate immigration by
establishing a separate state offense for any person to violate provisions of the federal
immigration law regarding registration and carrying registration documents. It gives
local police officers authority to investigate, detain and arrest people for perceived
immigration violations without the benefit of proper training, exacerbating the problem
of racial profiling and raising concerns about the prolonged detention of citizens and
legal residents. The extreme law requires police to demand “papers” from people they
stop who they suspect are “unlawfully present” in the U.S. and would subject massive
numbers of people to racial profiling, improper investigations and detention.
In May 2010, the ACLU and a coalition of civil rights groups filed a class action lawsuit in
the U.S. District Court for the District of Arizona challenging SB 1070.37 The lawsuit
charges that the Arizona law unlawfully interferes with federal power and authority over
immigration matters in violation of the Supremacy Clause of the U.S. Constitution;
invites racial profiling against people of color by law enforcement in violation of the

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equal protection guarantee and prohibition on unreasonable seizures under the
Fourteenth and Fourth Amendments; and infringes on the free speech rights of day
laborers and others in Arizona.38
One of the individuals the coalition is representing in the case, Jim Shee, is a U.S.-born
70-year-old American citizen of Spanish and Chinese descent. Shee asserts that he will
be vulnerable to racial profiling under the law, and that, although the law has not yet
gone into effect, he has already been stopped twice by local law enforcement officers in
Arizona and asked to produce his “papers.”
Another plaintiff, Jesus Cuauhtémoc Villa, is a resident of the state of New Mexico who is
currently attending Arizona State University. The state of New Mexico does not require
proof of U.S. citizenship or immigration status to obtain a driver's license. Villa does not
have a U.S. passport and does not want to risk losing his birth certificate by carrying it
with him. He worries about traveling in Arizona without a valid form of identification that
would prove his citizenship to police if he is pulled over. If he cannot supply proof upon
demand, Arizona law enforcement is required to arrest and detain him.
In an important first step in challenging this unconstitutional law, in October 2010 the
plaintiffs in Friendly House et. al. v. Whiting et al. won an important legal victory in their
constitutional challenge to SB 1070.39 Among other things, the court found that the
plaintiffs’ claim that “Racial discrimination was a motivating factor for [S.B.] 1070’s
enactment” establishes a valid constitutional challenge to the law. The decision was
filed in response to the defendants’ motions to dismiss the case and the plaintiffs’
motion for a preliminary injunction.
During the November 2010 Universal Periodic Review of the United States by the Human
Rights Council, country delegates questioned the U.S. delegation about S.B. 1070, and
the Working Group on the Universal Periodic Review issued a recommendation that the
U.S. government should repeal S.B. 1070 and refrain from enforcing such discriminatory
and racial laws.40
b. Access to Counsel for Detained Immigrants
Immigration detainees in ICE custody and placed in removal proceedings do not have the
right to appointed counsel. The majority of detained immigrants represent themselves in
complex legal proceedings where often life or death is at stake. The right to counsel is a
due process right that is fundamental to ensuring fairness and justice in proceedings,
guaranteed by the U.S. Constitution for any individual regardless of immigration status.
Detainees at the Pinal County Jail in Arizona also face serious problems related to
access to counsel and family visitation. At that jail, detainees are not allowed to have
contact visits with family members who may have traveled long distances to see their
loved one and who may not be able to afford multiple trips to the jail. Attorney visitation
is limited to tele-video communication or contact visits in booths where only one
attorney may visit at a time and will often wait anywhere from 15 to 30 minutes until
their client is escorted to the visitation room by a detention officer. Discussions between
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a detainee and his/her attorney in the contact booths are conducted over a telephone,
which raises concerns about privileged information being overheard or monitored by
detention personnel.
c. Diminished Due Process in Detention Policy: Mandatory Detention
Longtime legal residents of the United States are most often subject to the mandatory
detention provisions under 8 U.S.C. § 1226(c) because they are allegedly removable on
certain criminal grounds. Some of the convictions in these cases are very minor, such
as shoplifting, and may be several years old. Nonetheless, ICE has adopted overly broad
constructions of the statute, thereby dramatically expanding the reach of mandatory
detention beyond what Congress intended. Because of their elevated immigration status
and their long-standing ties to the community, lawful permanent residents of the U.S.
should receive the highest levels of legal and humanitarian protections against
mandatory detention.

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CALIFORNIA
I.

Capital Punishment
a. Denial of Access to Counsel

California’s death penalty is plagued with systemic problems that deny access to justice
for capital defendants and those convicted of capital crimes. Most disturbing, the state is
unable to provide attorneys in a timely fashion to people sentenced to death. Of the 698
inmates on California’s death row at the end of 2009, 208 (29.8%) had no counsel for
habeas corpus proceedings. An additional 83 (11.89%) have no appellate or habeas
counsel at all. In total, more than 40 percent of death row inmates in California are
without legal representation in one of these legal proceedings. Individuals sentenced to
death must wait four or five years for appellate counsel to be appointed, and some have
waited more than a decade for habeas counsel to be appointed. In 2009, 21 appellate
counsel appointments were made, while 29 individuals were sentenced to death. The
backlog thus continues to grow. Meanwhile, records are lost, memories fade and key
witnesses die or disappear.
In addition to this systemic lack of access to justice in the post-conviction setting, the
economic crisis has led to more and more restrictions on the resources provided to
defense counsel in death penalty cases at the trial level. In Los Angeles County, the
county that sends the most people to death row in California, court-appointed attorneys
in death penalty cases are paid under a flat fee contract system. The ABA Guidelines for
the Appointment and Performance of Defense Counsel in Death Penalty Cases prohibits
the use of such flat fee contracts because they create a conflict of interest between the
attorney and the client.41 Trial courts across the state are routinely denying necessary
resources for investigators and experts, all in an effort to save money. As a result,
defendants facing the death penalty are increasingly denied access to justice in
California trial courts. Finally, California’s enormously expensive death penalty system
diverts resources needed to solve murders and promote public safety. In fact, almost
half of all murders in California remain unsolved, totaling 1,000 murders each year.
This effectively denies murder victims’ family members access to justice in these cases.
II.

Racial Justice
a. Mass and Disproportionate Incarceration

California’s criminal justice system is highly dysfunctional and fails to provide access to
justice for all of its citizens. California passes laws and enforces them in a manner that
leads to mass incarceration and to the disproportionate incarceration of people of color,
particularly African American men. Over the past 30 years, California has enacted
scores of new felony crimes and increased sentences, which has led to mass
incarceration in the state. Two criminal justice policies, in particular, have helped fuel
this prison growth and the resulting disparities: the “War on Drugs” and “Three Strikes

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You’re Out.” African Americans have borne the brunt of these laws and are severely
overrepresented among the prison population in California.
California has the largest prison system in the nation—second only to the Federal
Bureau of Prisons. Since the 1980s, the number of people incarcerated in California has
increased from 22,000 to an all-time high of 168,350 in 2006, with projections suggesting
that it will reach 180,000 by the end of 2010. As of 2006, one of every nine individuals
incarcerated in state prisons nationwide were housed in California. Many of these
individuals are incarcerated for nonviolent offenses. In California, African Americans
represent less than seven percent of the general population, but are more than a
quarter of the state’s prison population. The California drug offender prison population
as of 1996 was greater than the entire number of prisoners incarcerated in 1982. In
2003, the rate of white male prison admissions for drug offenses in California was about
44 per 100,000, while the rate for African-American males was 515 per 100,000. Today,
one in four prisoners is serving a doubled or 25-years-to-life sentence under California’s
Three Strikes law—the majority are there for nonviolent offenses. African Americans are
incarcerated for third-strike life sentences at a rate 12 times more than whites. Taking
second and third strike sentences together, the African-American incarceration rate is
over 10 times that of whites.
The expansion of California’s felony laws and increased length of sentences and parole
has not only led to mass and disproportionate incarceration, but has led to a shocking
degree of African-American voter disenfranchisement. While racially neutral on their
face, felony disenfranchisement laws have had a severe, racially-disparate impact. At
the current rate and pattern of incarceration, it has been forecast that three in ten of the
next generation of African American men nationwide will be disenfranchised at some
point in their lifetime. Yet African Americans are less than seven percent of California’s
total population and, as of 2000, were eight percent of the adult citizen population.
African Americans are disenfranchised at almost 10 times the rate of whites in this
state.
III.

Immigrants’ Rights
a. Detainees with Mental Disabilities: Lost in the System

The ACLU of Southern California—in partnership with the ACLU’s Immigrants’ Rights
Project, the ACLU of San Diego and Imperial County, several other nonprofit
organizations, and Sullivan & Cromwell LLP—recently filed the nation’s first class action
lawsuit on behalf of immigrant detainees with severe mental disabilities, detainees who
are left defenseless in a system that they cannot comprehend.
The lawsuit, Franco v. Holder, asks a federal district court in Los Angeles to order the
U.S. government to create a system for determining which non-citizens lack the mental
competence to represent themselves and to appoint legal representation for those who
are unable to defend themselves. Unlike the criminal court system—where appointed
counsel is part of due process—immigration courts and detention facilities have no
safeguards for ensuring that the rights of people with serious mental disabilities are
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protected. Two plaintiffs in the suit were the subject of habeas petitions before federal
courts in California last March.
The six immigrants represented are from California and Washington, and all have been
diagnosed with severe mental disabilities. Several have been found incompetent to stand
trial in other court proceedings. One of them, Jose Antonio Franco-Gonzalez, was lost in
detention facilities in California for nearly five years because of the government’s failure
to account for his cognitive disability. Another detainee named in the lawsuit, Aleksandr
Khukhryanskiy, is a 45-year-old refugee from the Ukraine who has been diagnosed with
paranoid schizophrenia, post traumatic stress disorder, and major depression. Despite
being unrepresented and telling an immigration judge that he did not understand what
was happening during his immigration hearing, Mr. Khukhryanskiy was ordered
removed and denied any opportunity to apply for immigration relief. A recent report
published by the ACLU and Human Rights Watch indicates that countless other detained
non-citizens with mental disabilities are also being forced to defend themselves from
deportation, even if they cannot understand the proceedings to which they are subjected.
42

Despite the extreme vulnerabilities of unrepresented individuals with serious mental
disabilities, the Department of Justice and the Department of Homeland Security has
failed to adopt any clear policies or procedures to protect their fundamental rights in
immigration proceedings. This callous neglect continues to put detained non-citizens
with mental disabilities, such as Mr. Franco and Mr. Khukhryanskiy, at risk of being
“lost” in the immigration detention system for years at a time or deported by default.
b. Prolonged Immigration Detention

Rodriguez v. Hayes is a class action lawsuit challenging the Department of Homeland
Security’s policy of imprisoning non-citizens without providing them with detention
hearings for lengthy periods of time. Because incarceration in an immigration detention
facility is considered “civil detention” rather than imprisonment under domestic U.S.
Constitutional law, the government takes the position that it need not provide hearings
to detainees to determine if their detention is warranted while their immigration cases
remain pending. For the same reason, the government declines to appoint attorneys for
detainees who cannot afford to hire one for themselves. As a result, approximately 80%
of non-citizens detained in the immigration prison system have no attorney to represent
them.
For those detainees who choose to contest their deportation, that process can often take
years, due to case backlogs in the immigration courts and in the federal courts.
Although many of those detainees have meritorious claims, they often must remain in
detention while they pursue them. As a result, on any given day thousands of detainees
throughout the country—including several hundred in the Southern California area—
remain imprisoned in immigration detention centers without having had a hearing
before a judge concerning whether or not they should remain detained.

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In addition, this detention system operates against all classes of non-citizens seeking to
remain here under the immigration laws. As a result, it applies not only to those who
face deportation because of a prior criminal conviction, but also to asylum seekers and
people who committed only technical violations of their visas.
The ACLU has won important victories to establish limits on the detention of such
individuals in certain individual cases, but has yet to effect a system-wide change to this
massive system of imprisonment without trial in the United States. Given this
widespread denial of access to justice and due process in our immigration system, the
ACLU of Southern California is asking the court in its lawsuit, Rodriguez v. Hayes, to
adopt a rule that people held for longer than six months without a hearing on whether
their detention is warranted must either be given a hearing or released.

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FLORIDA
I.

Capital Punishment
a. Denial of Federal Habeas Review Due to Florida’s Post-Conviction
Counsel Registry System

Inadequate legal assistance provided by Florida’s post-conviction counsel registry
system has resulted in many inmates missing filing deadlines mandated by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and thus waiving federal
habeas review. This situation has disastrously limited the availability of federal habeas
corpus relief for defendants in Florida seeking to challenge their convictions and death
sentences in federal court.
In addition to institutional defenders, Florida employs a “registry” of private attorneys to
provide legal representation for death-row inmates in state post-conviction
proceedings.43 “Registry” attorneys are required by statute to continue representing
their clients through federal habeas review.44 Numerous federal courts have held that
habeas petitioners are entitled to equitable tolling of the statute of limitations for state
post-conviction motions when their filings are late due to reliance on inaccurate
representations or unfair actions by the courts or a state. However, Florida has
repeatedly and often successfully moved to dismiss federal habeas petitions filed on
behalf of death-row inmates based on a failure by state-selected and state-monitored
registry counsel to meet AEDPA deadlines. In these cases, death-row inmates are then
foreclosed from ever seeking federal habeas review, and as a result many petitioners in
Florida may be executed without a federal court ever reviewing their habeas claims.
For example, from 2004-2006, eight men sentenced to death in Florida, six represented
by registry counsel, had their federal habeas petitions rejected as untimely (appeals,
petitions for certiorari, and/or requests for certificates of appealability (“COA”) are
pending in six of these cases).45 In addition, during that same period, eight other inmates
on Florida’s death row—all represented by registry counsel—had federal habeas
petitions pending which the state is arguing should be barred as untimely.46 The legal
representation provided by the state and purportedly monitored by its courts has led
directly to an intolerably long list of capitally-sentenced defendants who may never have
an opportunity to pursue federal habeas review.
Florida’s registry system has repeatedly resulted in missed habeas deadlines since its
creation in 1998. Florida and its courts have long known about the severe deficiencies of
the registry counsel system. Charged with overseeing “registry” counsel,47 the Florida
courts became aware as early as 1998 that the transition from capital-collateral relief
counsel to registry counsel had created a backlog of people on death row who had no
lawyers, even while AEDPA’s one-year clock was running.48 According to Florida Bar and
media reports, Florida legislators and Florida Supreme Court justices have repeatedly

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complained publicly, including in Florida’s legislative record, about the poor quality of
representation from registry attorneys.49
The severe deficiencies in the registry counsel system were well known in 2003, when
Florida expanded the registry system to cover the northern region of the state.50 In fact,
Florida was on notice of the registry system’s deficiencies as early as 2000, two years
after its creation, when reports emerged that registry attorneys were failing to provide
quality representation and that their failures included missing deadlines for filing
federal habeas corpus petitions.51

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GEORGIA
I.

Racial Justice
a. Racial Profiling in Gwinnett County

Georgia is among those states that have no laws to prohibit racial profiling, as the
Georgia General Assembly has rejected repeated attempts to pass such a law.
Accordingly, law enforcement personnel throughout Georgia may continue to stop
individuals based solely on their race or ethnicity, often without any measure of
accountability. This is of particular concern in Gwinnett County, where testimonies
affirm that officers disproportionately target people of color for pretextual stops,
investigations, and enforcement.52
The incidents of racial profiling in Gwinnett County have been particularly exacerbated
after the implementation of the 287(g) program, which allows local law enforcement to
participate in enforcement of federal immigration laws.53 Both before and after the
implementation of this program, the ACLU of Georgia received complaints from drivers,
pedestrians, and Gwinnett community members showing that police officers are
targeting immigrants and people of color for stops, searches, and interrogations.
The program gives 287(g)-trained officers wide discretion to question and detain all
detainees who enter the jail, even for traffic and non-immigration related infractions.
Pursuant to official Gwinnett County’s Sheriff’s Office (GCSO) policy, 287(g) trained
officers must conduct an interview of every detainee who enters the Gwinnett County Jail
to determine a detainee’s legal status.54 Similarly, 287(g) trained GCSO officers have the
discretion to interview all foreign-born detainees to determine if they are illegally
residing in this country.55 Therefore, even if a detainee is arrested for a basic traffic
violation, such as failing to have the car lights on, that detainee may be interrogated
about his or her immigration status and ultimately transferred to ICE custody. Although
the officers are supposed to conduct these interviews “without prejudice or racial
discrimination,”56 it is difficult to determine how the officers choose which detainees to
interview, and also, how they decide which detainees are foreign born. The discretion
these rules give to the officers, coupled with the program’s lack of oversight, easily
allow for racial profiling.
After implementation of 287(g) in Gwinnett, the ACLU of Georgia has received numerous
complaints from Latino drivers and other immigrants who have been stopped or
arrested by officers on improper grounds. Additionally, in some instances, a basic traffic
stop or minor traffic violation has led to detention and removal. As such, many
immigrants are scared to contact or interact with the police, as they fear that they will
be deported or punished if they do so.

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There is a lack of adequate policies mandating collection of stop and search data from
traffic stops, and without such data, it is difficult to determine whether officers are
making stops and arrests based on a proper basis of reasonable suspicion or probable
cause, or on the improper basis of race and ethnicity. Without proper documentation of
the stops, detentions, and arrests conducted through use of 287(g), there is no way to
ensure that GCSO officers are not engaging in discriminatory practices in violation of
federal civil rights law. Without proper documentation of investigatory stops, there are
no meaningful checks in place to ensure that the GCSO officers do not abuse the 287(g)
program by intimidating and racially profiling immigrant communities in Gwinnett
County in order to identify and deport undocumented immigrants. There are no checks
in place to ensure that Gwinnett officers are making stops based on a proper legal basis.
This concern is especially prevalent in Gwinnett, as the county has a very large
population of Latino immigrants as well as immigrants from other backgrounds who are
susceptible to such profiling.

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IOWA
I.

Immigrants’ Rights
a. Stipulated Removal and Denial of any Hearing before Deportation

On May 12, 2008, U.S. Immigration and Customs Enforcement (ICE) conducted the
largest single-site immigration raid in U.S. history at Agriprocessors, Inc., a kosher
meatpacking plant in Postville, Iowa, and the largest employer in northeast Iowa.57 A
significant aspect of the raid was the accompanying massive criminal prosecution of
immigrant workers for allegedly using false documents to work and accompanying
stipulated orders of removal.
Federal immigration officials used stipulated removal orders to deport non-U.S. citizens
following the workplace raid. Stipulated orders of removal are plea agreements that
allow the deportation of a noncitizen without a hearing before an immigration judge.
Immigrants who sign stipulated orders of removal waive their rights to hearings and
agree to have a removal order entered against them, regardless of whether they are
eligible to remain in the United States.
In Postville, ICE initially arrested 389 workers for “administrative immigration
violations”—that is, for using Social Security or alien registration numbers that did not
belong to them .58 The majority of the workers were indigenous Mayans recruited and
brought to the U.S. from Guatemala by a U.S. company; for many of the workers even
Spanish was a second language.
Three days after the raid, on May 15, 2008, the U.S. Attorney’s Office in the Northern
District of Iowa charged 306 of the arrested workers criminally for allegedly using false
documents in relation to their employment.59 The principal charge brought against 270
of the arrested workers was not just ordinary document fraud, but rather a newly minted
interpretation of the extraordinary charge of aggravated identity theft.60 In March 2008, in
United States v. Mendoza-Gonzalez, the Eighth Circuit had decided that a defendant need
not know that the identification he was using belonged to another person to be convicted
of the crime of aggravated identity theft.61
Many of Agriprocessors’ immigrant workers purchased false documents to obtain
employment, often at the suggestion of Agriprocessors management.62 In many cases,
the immigrant workers who were using false documents did not even know the
significance of a Social Security or alien registration number, or that the number they
had been assigned and submitted to their employer belonged to another person.63

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Within seven days, 300 of the workers had pled guilty, principally to knowingly using
false Social Security numbers in violation of 42 U.S.C. § 408(a)(7)(B) or other false
employment documents in violation of 18 U.S.C. § 1546(a).64 The U.S. Attorney’s Office
offered uniform, non-negotiable, seven-day “exploding” plea agreements to all
defendants. Under this practice, each defendant was compelled to decide whether to
accept in full or reject the offer within seven days. The standard plea arrangement
offered those charged with aggravated identity theft consisted of a five-month sentence
pursuant to a guilty plea to fraud in violation of 18 U.S.C. § 1546(a), three years of
supervised release, and a stipulated judicial removal order that waived all rights to
individualized immigration proceedings and consideration of forms of relief.65 In
exchange, the U.S. would drop the sentence-enhancing charge of aggravated identity
theft, which carries a two-year mandatory sentence on top of punishment for underlying
crimes.
Few if any of the workers received individualized court proceedings. Arraignments and
pleas were completed en masse. Court-appointed attorneys had little time to meet with
their clients, and each of the 18 court-appointed attorneys represented 17 defendants on
average.66 After their initial appearance, many of the workers were scattered to state
and county prisons throughout eastern Iowa, making it difficult for their attorneys and
interpreters to find an interview them. The circumstances, with multiple defendants
represented by a single lawyer; complex immigration issues; significant language,
educational and cultural barriers; and the extreme time limit, made adequate legal
defense, investigation and counseling almost impossible.67
Within days, the Postville defendants routinely waived all of their rights—including their
right to indictment, to court reporters, to review the pre-sentence investigation report,
and to appeal their convictions and sentences—and pled guilty, the vast majority with a
judicial order of deportation, pursuant to Section 238(c)(5) of the Immigration and
Nationality Act (INA), that makes any further immigration relief impossible. The
formulaic guilty pleas demanded by prosecutors almost universally required defendants
to accept mandatory stipulated judicial orders of deportation under Section 238(c)(5) of
the INA, codified at 8 U.S.C. § 1228(c)(5). These orders barred any further consideration
of defendants’ immigration status or claims, though the defendants may have had valid
claims for immigration relief or ineffective assistance of counsel claims.
Under the circumstances, the workers who were denied assistance from immigration
attorneys, could barely understand the proceedings, were separated from their counsel
by distance and language barriers, and faced overwhelming legal coercion in the form of
exploding plea deals, were railroaded into pleas that separated them from their families
and resulted in permanent exclusion from the U.S.

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MARYLAND
I.

LGBT Rights
a. Excluding Same-sex Couples from Marriage Protections

In lawsuits brought to the highest courts in several states of the United States,68 as well
as in lawsuits brought in federal courts,69 arguments that excluding same-sex couples
from the protections of marriage violate state and federal constitutions have been
dismissed as without foundation. The American legal system has thereby denied lesbian,
gay, and bisexual people access to justice with regard to significant protections at the
core of family life for most people. The governments of various states, as well as the
United States government itself, have urged the courts to close their doors to same-sex
couples seeking to enforce their rights to equality and liberty under the state and federal
constitutions.
In August 2005, the ACLU filed a lawsuit in Baltimore with the cooperation of Equality
Maryland, charging that a state law denying same-sex couples the right to marry
violates the Maryland Constitution.70 The lawsuit was filed on behalf of nine same-sex
couples and a man whose partner recently passed away and would like to be able to
marry a same-sex partner one day. The couples came from all walks of life—a former
civil rights worker, a bus driver, a paramedic, a teacher, a dentist and a former police
officer. Some of the couples have been together for decades, and some are raising
children.
The plaintiffs in the case include:
•

Alvin Williams and Nigel Simon, who described their meeting eight years earlier
at a discussion group for black gay men as “love at first sight.” Both active
Baptists, the couple exchanged vows at a holy union ceremony in July 2000. The
adoptive parents of three former foster children (two boys and a girl), the couple
would like to be able to marry in order to give their children the comfort and
security that come only with marriage.

•

Takia Foskey and Jo Rabb, who had been together for over three years. Rabb is a
bus driver for the state. Their romance began after Rabb showed kindness to
Foskey’s children when Foskey was struggling to get them on the bus. Although
they are now raising the children as a family, Rabb cannot enroll Foskey or the
children in the state health plan. For a while, Foskey and her children were
forced to go without insurance. Although her new employer provides insurance
for her and her children, the coverage is inferior to the coverage Rabb receives
from the state. In 2003, Rabb had an emergency gallbladder operation at a
Baltimore hospital, and Foskey was barred from seeing Rabb or receiving any
information about Rabb’s condition.

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•

Charles Blackburn and Glen Dehn of Baltimore, who are senior citizens who had
been together for more than 28 years. Ordained a Unitarian minister in 1962,
Blackburn was heavily involved in the civil rights movement in Alabama in the
mid-1960s. Dehn worked for 31 years as a legislative planner and analyst for the
U.S. Social Security Administration. As a retired federal employee, Dehn has
excellent health benefits and coverage that he cannot share with Blackburn.
Now that Blackburn is in his 70’s, he wonders what will happen if he becomes ill
and the protections of marriage are not available to him and Dehn.

The Maryland Court of Appeals ruled against the ACLU’s plaintiffs in September 2007,
upholding the state law that bars same-sex couples from marrying and accessing the
hundreds of family protections provided to married couples and their children under
state law.71 The vote in the case was 4 to 3. One of the dissenting judges said the
legislature should either be required to adopt civil unions or marriage. The other two
said that the case should be sent back to the lower court for a trial to see if government
has a good enough reason to bar same-sex couples from marriage.
The majority opinion rejects the ACLU’s arguments that barring same-sex couples from
marriage is sex discrimination. While the court agreed that marriage is a fundamental
right, it ruled there is no fundamental right to marry someone of the same sex. The
court also ruled that laws discriminating against gay people are not subject to stringent
judicial review. The court applied the least demanding form of constitutional analysis to
determine if the ban violates the state’s equal protection guarantees and concluded that
excluding same-sex couples from marriage might rationally be related to inducing
heterosexuals to have children, so the state can continue to deny same-sex couples the
ability to marry and family protections.

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MICHIGAN
I.

Racial Justice
a. Denial of Undocumented Workers’ Access to Effective Remedy for
Employment Rights Violations

In Michigan, undocumented immigrant workers’ access to workers’ compensation
benefits for injuries caused by workplace accidents has been limited by the state’s
highest court. In one case, an employer fired two workers who were seriously injured in
separate workplace accidents, and the employer defended against having to pay the
workers’ compensation claims on the basis that the workers were undocumented
immigrants from Mexico. 72 Based on Hoffman, and under a state law that disallows time
loss benefits (time loss benefits are benefits that are paid to compensate an individual
for time lost from work due to a work-related injury) to those workers who are unable to
“obtain or perform work” because of commission of a crime, the court suspended wage
loss benefits because the workers had used false documents in order to get a job.
Benefits were suspended from the time that the workers’ status was discovered, which
was after their workplace accidents. As a result, the approximately 150,000
undocumented immigrants working in agriculture, construction, and similarly
dangerous jobs in Michigan are left without compensation for the time they are unable to
work due to their injury.73
II.

Indigent Defense
a. Inadequacies of Michigan’s Indigent Defense System

The state of Michigan fails to adequately fund and administer its indigent defense
system. Researchers estimate that between 80 and 90% of all those accused of criminal
wrongdoing by state prosecutors must rely upon state indigent defense programs for
representation. As a result, the state of Michigan’s failure to adequately fund and
administer its indigent defense system infects the entire criminal justice system and
seriously limits criminal defendants’ access to justice.
Michigan has delegated to each of its 83 counties the responsibility for funding and
administering trial-level indigent defense services. It provides no fiscal or administrative
oversight. Michigan does not ensure that the counties allocate the funding and
promulgate the policies, programs and guidelines needed to enable their public
defenders to provide constitutionally adequate legal representation. As a result, most
Michigan county public defense programs are seriously under-funded and poorly
administered. For example:
•

In 2007, the budgets of the prosecutors in Michigan’s Berrien and Genesee
counties were nearly three and one-half times greater than the counties’

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indigent defense budgets. In Muskegon County, the prosecuting attorney’s
budget was nearly double the county’s indigent defense budget.
•

A 1999 survey by the U.S. Department of Justice of 100 largest counties in the
country found that those counties spent an average of $287 per case to provide
representation to indigent persons accused of criminal wrongdoing.74 In 2006, the
Muskegon County finance director issued a letter to the county commissioners
stating that the average cost per case should be kept to $130 to $140.

Without adequate funding, Michigan’s indigent defense program cannot hire a sufficient
number of attorneys and support staff to meet the demand. Insufficient numbers of
attorneys and essential support staff, in turn, lead to excessive workloads and no time or
money for training or supervision.
Overwhelming caseloads prevent attorneys for poor criminal defendants from meeting
with their clients with sufficient frequency, interviewing defense and prosecution
witnesses, obtaining and analyzing evidence, visiting the scenes of alleged crimes,
consulting with experts, researching case law, filing motions and preparing for trial.75 A
report released in 2000 by the Bureau of Justice Statistics of the United States
Department of Justice confirmed that, nationwide, public defenders meet and confer
with their clients almost 50% less than do privately retained counsel.76 As a result, the
poor are frequently provided with counsel in name only. The representation they receive
is far from that contemplated by the Supreme Court’s definition of “effective assistance
of competent counsel.”77
When public defenders do not have the tools to engage in adversarial advocacy, their
clients are wrongfully convicted; are incarcerated prior to trial for unnecessarily long
periods of time; plead guilty to inappropriate charges and receive harsher sentences
than the facts of their cases warrant. For example:
•

Michigan resident Allen Fox received a 12-month sentence after pleading guilty
to attempting to steal two cans of corned beef from a convenience store.
Although the cans in question never left the store, Mr. Fox was arrested after he
and the store clerk got into a scuffle. Charged with a felony, Mr. Fox sat in jail for
six months before ever meeting an attorney.

•

Michigan resident Darryl Lynn Blakely paid his court appointed attorney $7500 to
ensure that he received a fair plea agreement. Charged with unlawful driving of
an automobile, Mr. Blakely was informed by his attorney at their first meeting
that for $7500, the attorney would ensure that Mr. Blakely received a sentence of
two years in prison. If Mr. Blakely did not pay, he would spend five years in
prison. The judge knew of the payment agreement but did nothing about it.

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III.

Prisoners’ Rights / Children’s Rights
a. Juvenile Life Without Parole

The U.S. is the only country in the world that sentences youth to spend the rest of their
lives in prison without any opportunity for release, and Michigan incarcerates the second
highest number of people serving life sentences without parole for crimes committed
when they were 17 years old or younger.78 Currently, there are 350 individuals serving
such mandatory life sentences in Michigan. This includes more than 100 individuals who
were sentenced to life without parole who were present or committed a felony when a
homicide was committed by someone else.
Nationally, 2,574 prisoners who were children at the time of their crimes are currently
serving sentences of life without parole in the United States. In a landmark decision, the
U.S. Supreme Court in Graham v. Florida ruled that sentences of life without parole for
juveniles who did not commit homicide are unconstitutional.79 However, of the over 2,500
juvenile life-without-parole cases in the U.S., only about 129 involve juveniles who did
not commit homicide.
In November 2010, the ACLU and the ACLU of Michigan filed a lawsuit on behalf of nine
Michigan citizens who were sentenced to life in prison without the possibility of parole
for crimes committed when they were minors. The lawsuit charges that a Michigan
sentencing scheme that denies the now-adult plaintiffs an opportunity for parole and a
fair hearing to demonstrate their growth, maturity, and rehabilitation constitutes cruel
and unusual punishment and violates their constitutional rights.80
The ACLU’s clients in the lawsuit include:
•

Henry Hill, who was 16 when he was charged for his involvement in a shooting
that took place at a park. In 1980, Henry and a few friends went to a park to
confront three other boys they had been feuding with previously. Henry fired
several shots in the air with a handgun to scare off other people in the park, but
never fired his gun at the victim. Despite the fact that all four bullets found in the
victim’s body were characteristic of the weapon used by one of Henry’s codefendants, Henry was still charged with 1st degree murder for aiding and
abetting. After his arrest, Henry was evaluated and found to have the academic
ability of a third grader, and the mental maturity of a 9-year-old. The doctor who
did his evaluation recommended that Henry remain under the jurisdiction of the
Juvenile Court. Based on the charge against him, Henry stood trial as an adult.
The trial court had no discretion to consider Henry’s juvenile status, mental age
or maturity. Michigan law required that the trial court charge and punish Henry
as if he were an adult and sentence him as such to the mandatory adult sentence
of life imprisonment. Because of the nature of the offense, the Michigan Parole
Board has no jurisdiction to consider Henry for parole. Henry is now 45 years old
and has spent nearly 30 years—nearly two-thirds of his life—behind bars. He has
exhausted all prison educational programs and resources available to him.

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•

Bobby Hines, who was 15 years old in 1989, when he and a few of his friends
were involved in an argument with other teenagers that ultimately led to one of
Bobby’s co-defendants firing several shots and fatally wounding one and injuring
another. Bobby was automatically charged as an adult without consideration of
his juvenile status, mental maturity or relative culpability. Despite the fact that
Bobby never touched the murder weapon used in the crime and has consistently
claimed he ran away from the scene, Bobby was convicted of felony homicide.
Michigan law required that the trial court either sentence him as a juvenile to be
released at age 21 or sentence him as an adult to a mandatory sentence of life.
Bobby was sentenced to serve “the rest of [his] natural life to hard labor and
solitary confinement.” Because of the nature of the offense, the Michigan Parole
Board has no jurisdiction to consider Bobby for parole, and he has never been
afforded a meaningful opportunity for release based on his juvenile status and
his demonstrated maturity and rehabilitation. It was demonstrated at trial court
that Bobby’s 19-year-old co-defendant supplied the gun while his other codefendant, a 16-year-old, committed the actual shooting. Both are serving
parolable sentences. Bobby is now 35 years old and has been in prison for almost
20 years. He has earned his GED and vocational qualifications.

•

Jennifer Pruitt, who was 16 when she became a runaway. An older neighbor
who took her in planned to rob someone in the neighborhood. Jennifer told her
that an elderly man she had known since she was six years old, had money and
agreed to participate in a robbery. On the evening of August 30, 1992, the
neighbor let them in. Jennifer asked to use the bathroom. When Jennifer came
out she found the other woman stabbing the victim and did not intervene.
Jennifer had no idea the murder was going to take place. Jennifer went into
severe depression over her role in the crime. She was determined to be unfit to
stand trail until she was 18. At her trial, a psychologist testified that Jennifer
needed long-term mental health treatment. Jennifer was then sentenced to
adult court because the judge believed there was more rehabilitative
programming for Jennifer available in the adult system. However, her
rehabilitation and eventual return to society was impossible because under
Michigan law, the court had no discretion to give her any sentence other than life
in prison. Given the nature of the offense for which Jennifer was convicted, the
Michigan Parole Board does not have jurisdiction to consider her for parole, and
she has never been afforded a meaningful opportunity for release. Jennifer is
now 33 years old, and has spent more than half of her natural life behind bars.

Michigan law requires that children as young as 14 who are charged with certain
felonies be tried as adults and, if convicted, sentenced without judicial discretion to life
without parole.81 Judges and juries are not allowed to take into account the fact that
children bear less responsibility for their actions and have a greater capacity for change,
growth and rehabilitation than adults. Michigan is one of only seven states that
automatically subjects 17-year-olds to adult charges and punishment of a life sentence
without parole for first degree murder.
The ACLU's complaint asks the court to declare that denying children a meaningful
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opportunity for parole violates the U.S. Constitution's Eighth Amendment protection
against cruel and unusual punishment and Fourteenth Amendment right to due process.
It also alleges violations of the plaintiffs' rights under international law and treaties.82
Michigan's laws run afoul of the U.S. Supreme Court's admonitions that children must
be treated differently in our criminal justice system. In May, the Court ruled in Graham v.
Florida that it is cruel and unusual punishment to sentence juvenile offenders who did
not commit homicide to life in prison without any chance of parole.83 In 2005, the Court
ruled similarly in Roper v. Simmons that executing juvenile offenders is
unconstitutional.84 Both decisions recognized that juveniles bear less responsibility for
their actions than adults and have a greater capacity for change, growth and
rehabilitation, and that children should not be punished with the harshest sentence that
can be imposed on adults.

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NEVADA
I.

Indigent Defense
a. Gaps in Nevada’s Indigent Defense System

After years of attempts to improve a decentralized, unregulated indigent defense
system, the Supreme Court’s Indigent Defense Commission declared in 2008 that
Nevada’s indigent defense provision is in “crisis,” and recommended sweeping changes
including a statewide oversight board, performance standards, and caseload
assessment and limits.85 However, these proposed changes have run directly into a
massive budget crisis, a change of membership on the Supreme Court, and a
problematic caseload assessment process. As a result, most of the anticipated changes
have either not occurred, or have lost steam and momentum. However, none of the
underlying constitutional issues have abated.
The administration and funding of Nevada’s indigent defense system raise serious
concerns about indigent defendants’ ability to access justice. The average caseload for a
public defender in Clark County is 364 felony and gross misdemeanor cases and 327
cases in Washoe County.86 The standard recommended by the National Legal Aid and
Defender Association is 150 cases, less than half of what defenders in both of Nevada’s
population centers currently carry.87 Rural counties lack public defenders. Instead, they
contract out their public defense work to the lowest private bidder. Although the state
bears the burden of providing constitutionally adequate levels of defense work for poor
defendants, there are no working statewide standards or oversight.
II.

LGBT Rights
a. Prohibiting Discrimination in Places of Public Accommodation

It was the fulfillment of a decade-long promise when the Nevada Legislature in 2009
finally took the step forward of adding sexual orientation to its statutory chapter on
Equal Enjoyment of Places of Public Accommodation.88 Since 1999, sexual orientation
had been included in NRS 233.101, the Nevada Equal Rights Commission’s declaration of
public policy, but it had no legal teeth. It was not until last year that the state’s biannual
legislature finally put full legal force behind the public policy declaration. Nevadans and
tourists now can be legally protected, and file claims of discrimination with Nevada’s
Equal Rights Commission, if they are treated unfairly in public places due to their sexual
orientation.
However, there are gaps in implementation and enforcement of this newly-adopted
policy. In March 2010, the ACLU of Nevada sent a letter to the board of the Nevada
Taxicab Authority, urging that they take immediate steps to stop the circulation of an old
policy that classifies lesbians and gay men in the same “high-risk” group for
communicable disease as intravenous-drug users and prostitutes. The policy, according

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to media reports, was amended in 2007, but had not changed in the materials circulated
among employees under the supervision of the Taxicab Authority, a state governmental
agency.89 The situation has now been remedied.
With respect to gender, Nevada’s laws still do not offer protection for gender identity or
even sex. In Nevada it is legal to discriminate in a hotel, a casino, a restaurant, and other
such places based on sex or transgender identity. For instance, if a lesbian couple were
visiting Las Vegas and trying to get into a nightclub, they could not, under the new law,
be turned away for being a same-sex couple, but they could be barred simply because
they are female.

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NEW JERSEY
I.

Women’s Rights
a. Diplomatic Immunity for Abuse of Domestic Workers

In Chere v. Taye, the ACLU represents Beletaschew Chere, an Ethiopian domestic
worker trafficked by UNDP staff Alemtashai Girma and her husband Fesseha Taye to
New Jersey and held in conditions of forced labor by them.90 She was forced to work 7580 hours per week, without payment or time off, verbally and sexually abused, denied
needed medical care, prohibited from contacting her family or seeking help, made to
sleep on the toddler’s bedroom floor and eat the family’s leftovers.91 The ACLU filed suit
against the employers for violations of several federal and state labor laws, federal
statutes, the Thirteenth Amendment of the U.S. Constitution prohibiting involuntary
servitude, and international law prohibiting forced labor and trafficking in persons under
the Alien Tort Claims Statute and state tort laws. The Alien Tort Claims statute allows
non-citizens to sue for damages in U.S. courts for injuries that violate international law.
The case ultimately settled.
II.

LGBT Rights
a. Excluding Same-sex Couples from Marriage Protections

In lawsuits brought to the highest courts in several states of the United States, as well
as in lawsuits brought in federal courts, arguments that excluding same-sex couples
from the protections of marriage violate state and federal constitutions have been
dismissed as without foundation. The American legal system has thereby denied lesbian,
gay, and bisexual people access to justice with regard to significant protections at the
core of family life for most people. The governments of various states, as well as the
United States government itself, have urged the courts to close their doors to same-sex
couples seeking to enforce their rights to equality and liberty under the state and federal
constitutions.
In 2002, Lambda Legal filed a historic case on behalf of seven New Jersey same-sex
couples seeking the freedom to marry. The case reached the New Jersey Supreme
Court in 2006. The high court ruled unanimously that same-sex couples must be
provided all the benefits and responsibilities of marriage, but it declined to mandate that
marriage was specifically required, and gave the state legislature 180 days to choose
either marriage or an alternate system that would provide equality.92 The legislature
hastily passed a civil union law in December 2006. In December 2008 the Civil Union
Review Commission, appointed by the legislature, issued its report documenting how
civil unions fall short of providing the court-mandated equality for same-sex couples. In
January 2010, days before the legislative session ended, the New Jersey Senate voted on
and failed to pass a marriage fairness law. On March 18, 2010, Lambda Legal filed a
motion asking the New Jersey Supreme Court to intercede and order marriage to secure

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compliance with its original mandate of equality for the Lewis v. Harris plaintiffs. In July
2010, the New Jersey Supreme Court refused to take up the case directly, instructing
the plaintiffs to file a new action in the trial court.

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NEW MEXICO AND BORDER REGION
The United States’ border communities have always been subjected to national security
measures that unduly encroach upon their civil and human rights and force borderland
inhabitants to live with daily indignities typically not faced by the interior residents of the
nation. Following the events of September 11, 2001, policies related to both immigration
and border security were expanded. The effect has been devastating on border
communities’ access to justice.
I.

Women’s Rights
a. Access to the Judicial System

Immigrant victims of domestic violence in Southern New Mexico face a unique challenge
to appearing before the court to seek justice against their abuser: the I-25 permanent
Border Patrol checkpoint. This barrier disproportionately affects the rural communities
of Hatch, Salem, Garfield, and other Dona Ana County communities that lie just north of
the checkpoint. Women who experience violence must bring their cases to court in the
city of Las Cruces, New Mexico, which lies south of the checkpoint. This means passing
through the Border Patrol station on the return home, making the trip impossible for
undocumented women, who then abandon their cases.
II.

Immigrants’ Rights
a. Diminished Due Process in Detention and Removal Policy
i. Operation Streamline

“Operation Streamline” is a Southwest border initiative in which first-time border
crossers are prosecuted with a criminal misdemeanor for Illegal Entry, punishable with
a sentence of up to 6 months jail time. The penalty for illegal re-entry is up to 20 years
jail time if an individual has a prior criminal record. Despite concerns from federal
public defenders, the controversy surrounding due process for individuals when paraded
in front of judges for mass pleadings, the stress on local court systems and jails, and the
diversion of scarce resources from core law enforcement priorities, the operation has
been touted a success and extended to other portions of the border. Often immigrants
are processed through the system without knowledge of what is occurring to them,
which can lead to the deportation of asylum seekers or victims of trafficking or of other
crimes.
ii. Transfer of Detainees
Immigrants are frequently transferred from states such as Massachusetts, California,
New York, and Florida, to privately contracted facilities in remote areas of the Southwest
border region. For example, a large number of the detainees at the Otero County

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Processing Center in Chaparral, New Mexico, had been transferred there from places
such as Los Angeles and New York. Transfers are problematic for a number of reasons.
Given the eradication of discretionary judgment with the 1996 immigration laws, the
categorization of a particular crime is crucial in either opening or closing avenues for
immigration relief, particularly for long-term legal permanent residents. Advocates
report that often the immigration judges are unaware of the laws in the states from
which detainees have been transferred and therefore unclear on how to properly analyze
them.
In addition, concerns have been raised by advocates regarding due process violations
related to the transferred detainees’ distance from retained counsel, family and
witnesses, evidence and documents relevant for the immigration case; longer detention
due to hearing dates being pushed back and rescheduled, particularly for those who
oppose the government’s Motion to Change Venue; lack of notification to attorneys of
record of the client transfer; and failure to produce new Notices to Appear, or constant
reissuing of Notices to Appear, all of which negatively impact immigration detainees’
access to justice. These circumstances often lead to delayed hearings, prolonged
detention, and lengthy separation of families.
iii. Access to Counsel
Immigration detainees in the custody of the Department of Homeland Security (DHS) and
placed in removal proceedings still do not have the right to appointed counsel. Many
must fend for themselves in a complicated legal system, sometimes without the benefit
of a language interpreter. The right to counsel is a due process right that is fundamental
to ensuring fairness and justice in proceedings, guaranteed by the U.S. Constitution for
any individual regardless of immigration status. The prevalence of transfers to remote,
rural locations with limited access to legal services further hampers detainees’ access
to counsel. There are no free or low cost non-profit legal service agencies in Southern
New Mexico with the capacity to individually represent the detained immigrant
population at the Otero County Processing Center.
b. Conditions of Confinement in Immigration Detention
DHS issued new Performance Based National Detention Standards in 2008, but the U.S.
government has yet to establish a mechanism for the enforcement of these standards.
There remains a need to create enforceable standards governing the treatment of
immigration detainees in all facilities, regardless of whether these standards are
operated by the federal government, private companies, or local agencies. Among the
issues registered by detainees at the Otero County Processing Center in Chaparral, New
Mexico, are lack of appropriate medical or mental health services, no access to legal
counsel or consular services, poor food services, poor environmental conditions,
arbitrary use of the segregation unit as punishment, and racial and religious
discrimination.
c. Prolonged Detention of Post Order Custody Cases

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ACLU of New Mexico Regional Center for Border Rights staff continue to meet with
detainees who are unaware that DHS must comply with the Supreme Court’s decision in
Zadvydas v. Davis, which held that two immigrants, who had been ordered deported,
retained a liberty interest strong enough to raise due process challenges concerning
their indefinite—and possibly permanent—detention resulting from the government’s
inability to carry out the deportation. The Zadvydas ruling stated, “Once removal is no
longer reasonably foreseeable, continued detention is no longer authorized.”93 The court
determined that six months from the final order of removal was a presumptively
reasonable period of detention, after which an immigrant may file a writ of habeas
corpus in federal court seeking review of his/her detention. Since the fall of 2006, the
ACLU of New Mexico has sought and obtained the release of detainees who had been
held indefinitely in detention centers around the state. Despite the success of these
habeas petitions, the ACLU continues to identify and meet with detainees who have been
held far beyond 180 days past their order of removal.
III.

Racial Justice / Immigrants’ Rights
a. Local/Federal Law Enforcement Partnerships

Under the ICE Agreements of Cooperation in Communities to Enhance Safety and
Security (ACCESS) program, local law enforcement agencies may participate in a
number of formal partnerships with DHS. These programs include the 287(g)
Memoranda of Agreement (MOA) program, which cross-designates local law
enforcement officials to perform federal immigration enforcement duties, and the
Criminal Alien and Secure Communities programs, in which ICE screens for foreignborn individuals in jail settings. These programs severely undermine community safety
and open the path for racial profiling and other forms of abuse.
In New Mexico local law enforcement agencies routinely call the Border Patrol to assist
with “translation” or for “back-up.” People of color are frequently subject to pre-textual
traffic stops and then subjected to an expanded scope of investigation on the suspicion
that the individual may be undocumented; Border Patrol is then called. The ACLU of New
Mexico Regional Center for Border Rights receives many cases of illegal and prolonged
detention by local officers who hold individuals until Border Patrol agents arrive, or who
stop vehicles without reasonable suspicion of criminal activity or enter homes in the
absence of a warrant.
In September 2007, the Otero County Sheriff’s Department conducted an immigration
raid in the small rural colonia of Chaparral, New Mexico. Sheriff’s deputies entered
homes without permission or warrants, using false pretexts and, in one instance, even
presenting themselves as a pizza delivery service in order to inquire into immigration
status. In another case, an officer detained and handcuffed the father of five U.S. citizen
children and drove him to three separate schools to retrieve them. Both parents were
subsequently deported, and the eldest child is now caring for the four younger siblings.
In all, 28 individuals were deported as a result of these raids.94 Against the backdrop of
such incidents, immigrant communities in Southern New Mexico have expressed

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reluctance to report domestic violence, rapes or other violent crimes to local law
enforcement because they fear deportation.
b. Lack of Oversight and Accountability
U.S.-Mexico border communities have experienced a significant increase in enforcement
resources and operations in the absence of a proportional increase in resources for
oversight and accountability for border enforcement activities. For example, border
patrol has rapidly expanded its personnel capacity, while decreasing hiring and training
requirements. Lack of oversight has led to border patrol agents patrolling outside of
schools in Mesquite, New Mexico, and picking mothers up at bus stops after dropping off
their children. Local law enforcement agencies engage in pretextual traffic stops based
on race and perceived immigration status. Individuals are then subject to further
investigation based on skin color, resulting ultimately in Border Patrol being called to
the scene. In Roswell, New Mexico, individuals have been booked into the county jail
without charges, simply for appearing “illegal.” Once in a jail facility, individuals are
identified by ICE.
c. Border Patrol Authority Within 100 Miles of the U.S./Mexico Border
The United States Border Patrol Authority within 100 miles of the actual border (which
includes both the borders with Mexico and Canada, as well as water ports) is vast,
encroaching upon the civil and human rights of many individuals living within the
boundary of the United States. In fact, in a recent investigation by the ACLU, it was
discovered that nearly two-thirds of the U.S. population lives within 100 miles of the
border, subjecting them to a significantly greater possibility of warrantless search and
seizure, suspicion-less stops and interrogations, and the increased possibility of racial
profiling.95 In New Mexico, community well-being has been negatively affected by the
expanded authority of federal law enforcement agencies in the region.
d. Racial Profiling
Due to the vast authority of border agents and case law that supports this authority, the
potential for racial profiling has expanded. In United States v. Brignoni-Ponce, the U.S.
Supreme Court held that “when an officer’s observations lead him to reasonably suspect
that a particular vehicle may contain aliens who are illegally in the country, he may stop
the car briefly and investigate the circumstances that provoke suspicion.”96 In
determining whether there is reasonable suspicion to stop a vehicle in the border area,
“any number of factors may be taken into account,” including characteristics of the area
in which the vehicle is found, proximity to the border, previous experience with alien
traffic, traffic patterns; information regarding recent illegal entry in the area; driver’s
behavior; aspects of the vehicle; and “mode of dress and haircut.” In Brignoni-Ponce,
the officer relied on only one factor, apparent Mexican ancestry, to stop the vehicle. The
court held that Mexican appearance is a “relevant factor…but standing alone it does not
justify stopping all Mexican Americans to ask if they are aliens.”97

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NEW YORK
I.

Indigent Defense
a. The Failure of Indigent Defense Services

The federal Constitution and New York law require that the state must provide legal
counsel to any individual who faces criminal charges and lacks the ability to pay for legal
representation. The reality, however, is that in New York State indigent criminal
defendants are routinely denied their constitutional and statutory right to meaningful
and effective legal counsel. In 1965 the state authorized each of its 62 counties to
establish, fund, and administer their own public defense programs, with little or no
fiscal and administrative oversight by the state. The result is an indigent defense system
that is dysfunctional.
Litigation brought by the New York Civil Liberties Union (NYCLU) in 2007 charged that
indigent defendants frequently experience denial of representation; unnecessary or
prolonged pre-trial detention; excessive or inappropriate bail determinations, which
increase the likelihood of conviction; wrongful conviction; harsher sentences than
warranted by the facts of the case; and waiver of the right to appeal and other postconviction rights.98 Moreover, without effective counsel, indigent defendants plead guilty
to unwarranted charges, without understanding the collateral consequences of a
conviction.
The NYCLU lawsuit was filed on behalf of indigent persons who have or will face criminal
charges within five New York counties (Onondaga, Ontario, Schuyler, Suffolk, and
Washington). However, the lawsuit makes clear that the failings of public defense
services in those counties are also found statewide. A 2006 report by the New York State
Commission on the Future of Indigent Defenses Services, convened by then-Chief Judge
Judith S. Kaye, concluded that the state is in critical need of an independent statewide
defender system that is entirely, and adequately, funded by the state.99
In the absence of an independent statewide public defense system, New York will
continue to deprive indigent criminal defendants of their constitutional right to counsel.
The system will continue to lack clear standards regarding eligibility to receive counsel
and the requirements for adequate defense. Indigent defendants will continue to be
harmed by lack of access to, and little communication with, assigned counsel. Public
defenders will continue to carry excessive caseloads, without the resources to mount an
effective defense and without the training needed to be effective advocates on behalf of
their clients. Funding and fees provided for public defense services will continue to vary
from county to county, as will the scope and competence of representation provided.
b. Denial of Access to Justice in Town and Village Courts

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The sole interaction most New Yorkers have with the criminal justice system is through
the state’s town and village courts, a system with jurisdiction over nearly two million
cases a year that hears complaints in cases involving felony crimes, misdemeanors,
violations, and traffic infractions.100 In the 21 counties that have no city court, town and
village courts are the sole overseers of justice in the vast majority of criminal justice
prosecutions.101
There are approximately 1,300 town and village courts across the state and
approximately 2,200 town and village justices, the majority of whom are non-lawyers
with minimal training.102 Nearly 70 percent of town and village court justices are not
trained legal professionals—the largest number of any state in the nation.
These justices have the power to imprison people for up to one year, evict people from
their homes, and set bail that can result in lengthy pre-trial incarceration for people
awaiting their day in court. Although they wield great power, many of these justices are
not equipped to use it wisely. For example, one judge told a domestic abuse victim that
“[e]very woman needs a good pounding every now and then.”103 Another judge who was
confronted by state disciplinary officials declared that he “follows [his] own common
sense” and “the hell with the law.”104 Many justices lack even a clear understanding
about which cases trigger the right to counsel.105 All too often, the result is no
appointment of counsel at all, leaving unrepresented indigent defendants to negotiate
pleas with the prosecution or face trial without any legal assistance.106
There is no state judicial body to set standards for the courts or oversee the
administration of justice therein to ensure that town and village Courts meet basic
standards of due process, or even that the justices follow the law of the state.107
Evidence of the constitutional inadequacies of town and village courts led the state
Commission on the Future of Indigent Defense to issue recommendations in 2006 that
have not been acted on to date. The result is a broken justice system that regularly
results in violations of due process—violations that have a particularly severe effect on
the poor. Indigent defendants are vulnerable to jail sentences and large fines handed
down by judges with poor understanding of criminal procedure and substantive law,
often with undue influence from the local District Attorney. Moreover, because of the
failure of New York’s woefully-funded indigent defense system, in general there is no
lawyer present to stand up for the rights of the accused.
II.

Racial Justice
a. Civilian Complaint Review Board Failure to Provide Justice and Redress
for Police Misconduct

In 1992 the New York City Council established an independent civilian oversight agency
charged with investigating complaints of police misconduct. The City Charter mandates
that the Civilian Complaint Review Board (CCRB) undertake “complete, thorough and
impartial” investigations of police misconduct complaints filed by civilians, and that
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these investigations are undertaken in a manner in which both the public and
policymakers have confidence.108
In a 2007 report, the New York Civil Liberties Union (NYCLU) concluded that the CCRB
had failed to fulfill its mission.109 The report, which analyzed complaints filed with the
CCRB from 1994 through 2006, concluded that police misconduct—including improper
stop and frisk, excessive force, threat of arrest or force, unauthorized entry of
premises—was systemic. The problem, which persists, bears the unmistakable signs of
racial animus. Each year, eight of every ten individuals who file a complaint with the
CCRB are African American or Latino; blacks represent 50 percent of all complainants—
two times their representation in the general population.110
Even as complaints have increased sharply in the last eight years, the CCRB has
consistently closed more than half of all complaints without an investigation, producing
a finding on the merits in only three of ten complaints disposed of in any given year. Of
the very few complaints that are substantiated (fewer than 5 percent) and referred for
disciplinary action, the New York Police Department (NYPD) rejects the CCRB’s findings
and disciplinary recommendations with great frequency. When discipline is imposed, it
has been strikingly lenient in light of the severity of the misconduct documented by the
CCRB.
Since the publication of the NYCLU’s 2007 report, the complaints filed with the CCRB are
at the highest levels recorded by the agency—7,664 in 2009.111 The CCRB closes more
than 60 percent of complaints without an investigation. In 2007-2008 the NYPD declined
to prosecute nearly 35 percent of substantiated complaints; 10 percent of those
complaints involved an officer’s use of excessive force. The number of civil damage
claims of police misconduct filed against the city is at a historically high level.
The NYCLU report finds that the CCRB’s failure is the result of an abdication of
leadership—by the mayor, the police commissioner, the city council, and by the CCRB’s
directors. The report concludes with 13 recommendations for establishing a civilian
oversight system that fulfills the mandate given the CCRB in the City Charter.112
III.

Immigrants’ Rights
a. New York’s Immigrants: Denied Equal Access to Justice

Government authorities in New York all too often deprive immigrants of equal access to
law enforcement assistance, counsel, and judicial review. Although these problems are
not unique to New York, many of the examples from the state are pronounced and serve
as vivid examples of justice denied.
In Suffolk County, Long Island, immigrants have been denied equal access to
appropriate law enforcement assistance for years, resulting in an ongoing investigation
by the U.S. Department of Justice into allegations of discriminatory policing by the
Suffolk County Police Department.113 For example, in 2003, Alejandro Castillo was
repeatedly kicked in the head by youths demanding to see his green card. Although Mr.
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Castillo reported the crime to the police, no one was ever charged.114 In 2005, Luis Ochoa
was run off the road, pulled out of his car, and beaten by a former firefighter who was
shouting racist slurs. His case was dismissed.115 In November 2008, a group of youth
shouting racist remarks stabbed to death Marcelo Lucero.116 Several of the accused had
previously perpetrated acts of violence against Latinos, and yet the reported crimes
were not adequately investigated.117
Detainees held by immigration authorities in New York also face significant hurdles in
accessing justice. For several years, detainees housed at the Varick Federal Detention
Facility in New York City have too often faced cruel conditions and limited access to
counsel and other legal services, preventing them from pursuing valid legal avenues
that would enable them to be released from detention.118
Moreover, Immigration and Customs Enforcement (ICE) agents have a permanent
presence in New York City’s largest jail—Rikers Island—and all too often place detainers
on immigrant inmates by utilizing surreptitious means to gain access to those inmates
and failing to inform inmates of their right to legal counsel and to remain silent.
Immigration agents interview immigrant detainees without identifying themselves as ICE
agents or providing information about an inmates’ right to refuse the interview or to
have an attorney or interpreter present during the interview. As a result, non-citizen
inmates at Rikers frequently do not know that they are speaking with an ICE agent or
understand that they could be placed into deportation proceedings as a result of the
information they share with such agents.119 Between 2004 and 2009, more than 13,000
inmates at Rikers Island have been placed into removal proceedings.120
Finally, as in other states, immigrants detained in New York are detained for prolonged
periods before seeing a judge, amounting to a deprivation of justice. Although ICE
reports that the average length of detention is 37 days,121 the NYCLU has received
intakes from immigrants who have been detained far longer. One individual, a legal
permanent resident who has resided in the U.S. nearly his entire life, has been detained
for more than two years and is, at the writing of this report, still challenging his
deportation. Moreover, while some detained immigrants are eligible for a bond hearing,
the average bond in New York is set much higher than in most states, making it
exceedingly difficult, if not impossible, to pay. Bonds may be set at a minimum of $1,500
and the national average is $5,941. 122 Yet in New York, the average bond is set at
$9,831.123 Furthermore, immigration courts in New York do not release individuals on
their own recognizance (without paying bond).124

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OHIO
I.

Children’s Rights
a. Failure to Ensure Juveniles’ Right to Counsel

Based on analysis of juvenile court cases, a coalition comprised of the ACLU, the ACLU
of Ohio, the Children’s Law Center and the Office of the Ohio Public Defender estimates
that in several Ohio counties, as many as 90 percent of children charged with criminal
wrongdoing are not represented by counsel. Statewide, an estimated two-thirds of
juveniles facing unruly or delinquency complaints proceed without an attorney. A
growing number of cases show that young people who are not represented by an
attorney are more likely to enter guilty pleas even when they may have viable defenses
or may be innocent. Currently, Ohio law allows juveniles to waive their right to legal
counsel before they have even met with an attorney to discuss the legal implications of
their situation.125
Many children have barriers to understanding the serious charges that they may face.
Almost 75 percent of incarcerated youth in Ohio need mental health services, and nearly
half of those incarcerated at Ohio Department of Youth Services facilities need special
educational instruction.126
In 2006, the Ohio coalition groups filed a petition with the Ohio Supreme Court asking
that it that it promulgate a rule prohibiting juveniles in delinquency proceedings from
waiving their right to counsel without first discussing the consequences of a waiver with
an attorney. The state’s high court agreed to consider this issue in the case of Corey
Spears, who was 13 years old when he appeared in juvenile court. Corey waived his right
to an attorney but the court failed to ensure that he understood what rights he was
giving up.
The In Re: Spears case was heard by the Supreme Court of Ohio in April of 2007 and
decided in September of that year. The court held that Spears’s waiver of counsel was
invalid because his rights had not been adequately explained to him. The court affirmed
that the appointment of counsel is mandatory in all cases where a juvenile does not have
a parent or guardian available for advice, and allows juveniles to waive counsel only if
the decision is made voluntarily, knowingly and intelligently. The court held that in
determining whether a juvenile’s waiver of counsel has met these standards, judges
must engage the juvenile in a meaningful dialogue and consider the juvenile’s unique
circumstances, including age, intelligence, education level, life experience, and nature
of complexity of the charges against the juvenile.127
In 2004, the ACLU and ACLU of Ohio filed J.P. v. Taft, a class action lawsuit on behalf of
the nearly 2000 juveniles who are incarcerated in Ohio’s eight juvenile correctional

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facilities. The complaint alleged that the state failed to provide Ohio juveniles with
constitutionally adequate access to the courts.
After lengthy pretrial proceedings, the state agreed to settle and the parties entered into
a consent decree that the court approved in March of 2007. The settlement guarantees
that:
(1) all juveniles will be notified during their orientation about their right of access to the
courts and how to request legal assistance;
(2) all juveniles who request such assistance will be assigned an attorney; and
(3) all juveniles who have non-frivolous cases will receive assistance in filing a civil
rights lawsuit.
Under this settlement agreement, Ohio must send detailed compliance reports each
month to the ACLU, which helps to ensure that the defendants are complying with the
court order. Based on these reviews and other information, the ACLU filed a contempt
action against the state in October 2007, alleging that numerous juveniles continue to be
denied access to the courts, in violation of the consent decree. The contempt action was
resolved in the ACLU’s favor and imposed additional requirements upon the state. The
ACLU continues to monitor the state’s implementation of the settlement agreement and
the resolution of the contempt proceedings.128

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PENNSYLVANIA
I.

Racial Justice
b. Denial of Undocumented Workers’ Access to Effective Remedy for
Employment Rights Violations

In Pennsylvania, undocumented immigrant workers’ access to compensation for
disability payments, based on the workers’ wages at the time of the accident, have been
limited by a decision of that state’s highest court.129 In one case, a worker who suffered a
concussion, head injury and back strain and sprain on the job was initially awarded
compensation for total disability, as well as medical expenses. On appeal, the Court
ruled that the employer could apply for termination of permanent partial disability
payments based on the worker’s lack of immigration status. As a result, undocumented
immigrants in Pennsylvania are forced to settle their claims for far less than they would
have been entitled, and Pennsylvania’s thousands of unauthorized immigrants now lack
an effective safety net when they are injured on the job and left with a long-term or
permanent partial disability.

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TEXAS
I.

Immigrants' Rights
a. Lack of Legislative Oversight of Immigrant Detention Facilities

Repeated rioting, reportedly over poor medical care, at a county-owned detention center
in 2008 and early 2009 brought the issue of private operation of county-owned facilities
to the attention of state lawmakers.130 During the 2009 Texas legislative session, the
ACLU of Texas, Grassroots Leadership, and other coalition partners championed
increased state involvement in privately run jails and detention centers. Legislators filed
three bills in an effort to increase state regulation of such facilities.
Two sought to place privately run facilities such as the Reeves County Detention Center
under the purview of the Texas Commission on Jail Standards.131 This change in law
would have provided minimal standards and regular inspections. The third was less
ambitious and sought only to apply public information law to companies contracting with
a county to run a jail or detention center.132 None of the bills gained traction, and
facilities such as the Reeves County Detention Center remain unaccountable to state
policymakers. Without such accountability, the continued lack of medical care and its
corresponding rioting will continue.
b. Lack of Access to Counsel for Immigrants in Detention
Texas is home to a disproportionate number of immigration detention facilities, where
detainees who have been apprehended across the country are sent to be adjudicated and
await deportation or status adjustment.133 A number of factors likely contributed to the
development of detention capacity in Texas, including the state’s proximity to Mexico, the
relatively lower cost of real estate, and the state’s deserved reputation for aggressive
law enforcement and minimal oversight. Many of the detention facilities are located in
remote parts of South and West Texas, where there are few attorneys in general, even
fewer who specialize in immigration law, and nearly none who take immigration cases
pro bono. As a result, immigrants who are apprehended on the East or West Coasts and
then shipped to Texas are effectively denied access to attorneys, to non-profit
assistance, and to family advocacy and support. Given the obstacles immigrants in
detention already face in obtaining counsel, including language barriers and prohibitive
costs, the removal of detainees from their home communities sharply exacerbates
problems with individual access to counsel that confront all immigration detainees
nationally. Moreover, the limited attorney access to facilities in more remote parts of
Texas means that conditions at facilities are effectively unmonitored, and inmates
denied adequate medical care, food, and shelter have no way of accessing assistance to
remedy these problems.

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c. Lack of Access to Administrative and Judicial Remedies for Non-Citizen
Inmates in BOP Custody at Reeves County Detention Center
Reeves County Detention Center (RCDC) is a federally contracted prison that houses
over 3,000 inmates in the custody of the federal Bureau of Prisons (BOP), the vast
majority of whom are immigrants convicted of nonviolent offenses.134 The prison is
located in Pecos, a remote town in West Texas hundreds of miles away from any major
population center. It is run by the private prison contractor The GEO Group, Inc. Medical
care is provided by Physicians Network Association, a private company specializing in
“correctional health” with a documented history of providing inadequate care.135
According to GEO, Reeves is “the largest detention/correctional facility under private
management in the world.”136 GEO reportedly has an extensive history of human and
civil rights violations.137
Prisoners at RCDC rioted in December 2008 and again in February 2009, reportedly after
inmates died due to denial of medical care.138 The ACLU asked that the Department of
Justice Office of Inspector General investigate; after receiving no response, we
commenced our own investigation. During two trips to visit inmates in August 2009 and
December 2009 and correspondence with more than 100 inmates, inmates reported
repeated denial of adequate care for serious medical and mental health issues.
Moreover, despite repeated requests to the facilities, to Geo and to BOP, the ACLU of
Texas has been unable to ascertain the appropriate administrative grievance procedure
for inmates to bring their concerns to the attention of prison officials and
administrators. We have discovered that BOP procedure requires all grievances to be in
English, a policy that effectively denies access to remedies to the vast majority of the
population at Reeves, who are monolingual Spanish speakers.
d. Impact of Operation Streamline on Immigrants’ Access to Courts and
Counsel
“Operation Streamline” originated in Del Rio, Texas and was expanded under the Bush
Administration throughout the southern border states. Streamline is a “zero tolerance”
border enforcement program that targets even first-time undocumented bordercrossers for federal criminal charges, meaning that they will be processed through the
federal criminal justice. They are then incarcerated in the U.S. prison system as opposed
to being processed through civil deportation proceedings and placed in detention
pending deportation. Under this fast-track program, a federal criminal case with prison
and deportation consequences is resolved in two days or less. Questions about the due
process implications of defendants pleading en masse in cattle-call-like procedures
have been raised by human and civil rights advocates, policy analysts, lawyers and
judges.139 One federal appeals court has declared Streamline proceedings violate the
federal legal rights of defendants.140 Nonetheless, Streamline proceedings continue to
account for a vast majority of the criminal docket in the Western Division of Texas, and
hundreds of immigrants are processed every day—leading one federal judge to
publically challenge the United States Attorney’s Office to justify the proceedings.141

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II.

Capital Punishment

Since the death penalty was reinstituted in the United States in 1976,142 Texas has
overwhelmingly led the nation in the number of executions, with 464.143 This number
represents 38% of all executions in the United States since reinstatement, and is more
than four times greater than the next highest state, Virginia.144 Texas also has the third
largest death row population in the United States,145 with 317 people currently awaiting
their executions.146
a. Flawed Forensic Science Leading to Possible Wrongful Convictions and
Executions
Twelve people have been exonerated from Texas’ death row and yet the state of Texas
has made few if any attempts to reform its death penalty system. Even more troubling,
recent developments strongly suggest that Texas has allowed the execution of two men
who were almost certainly innocent and whose convictions were largely based on
unreliable scientific evidence. Cameron Todd Willingham was convicted for the arsonmurder of his two young children.147 Less than two months before Willingham’s
execution, his attorneys presented a report by a leading national expert in fire science
that found that arson was not the cause of the fire.148 Still, Governor Rick Perry denied
clemency. The Texas Forensic Science Commission agreed to investigate Willingham’s
case in 2008. In 2010, days before the Commission’s own expert was scheduled to testify
that the arson investigators in Willingham’s case should have known that their science
was flawed, Governor Perry replaced key members of the Commission and appointed
John Bradley, a District Attorney, as chair.149 The reshuffling of the Commission delayed
the investigation for months.150 Meanwhile, at the request of Willingham’s family
members, a judge opened a court of inquiry in the case, to determine if Willingham was
wrongfully executed. Attorneys for the state have attempted to stall or thwart these
proceedings, rather than allow the court to consider the flawed forensic science and
other new evidence that supports Willingham’s innocence. These obstructionist moves
by the Governor and prosecutors suggest that Texas is seeking to mask the very real
possibility that it has executed an innocent man.
Claude Jones maintained his innocence until his execution in December 2000. Jones
was convicted and sentenced to death on the basis of now-discredited hair analysis of a
hair found at the crime scene—the only physical evidence that tied Jones to the murder.
Counsel’s repeated requests in post-conviction proceedings to test the DNA hair sample
were denied. Finally, before his execution, attorneys for Jones asked then-Governor
George W. Bush to grant Jones a 30-day stay in order to conduct the DNA testing.
Bush’s staff failed to mention to him that Jones wanted to test the hair for DNA. Bush
denied the request, and Jones was executed. Texas prosecutors refused to turn over,
and in fact, sought to destroy the evidence after Jones’s execution, but his attorneys
pressed for posthumous DNA testing. They were eventually successful. DNA results
released in November 2010 revealed that the hair did not belong to Jones. His case, like
Willingham’s, spotlights the serious challenges in Texas to ensuring even basic justice
for those sentenced to death.

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b. Unreliable Evidence of Future Dangerousness
Before it may impose a sentence of death, a Texas jury must decide that there is a
probability that the defendant poses a threat of future danger. In many cases,
prosecutors have employed the testimony of psychiatrists and other experts to make
their case for a defendant’s future dangerousness.
For instance, psychiatrist James Grigson, who earned the nickname “Dr. Death” for his
role in aiding prosecutors obtain death sentences, testified in 136 capital cases before
his death. He often guaranteed to juries that the defendants would commit future acts
of violence. In the trial of Randall Dale Adams, Dr. Grigson testified that Adams was one
of the most extreme cases he had ever seen, that “nothing we have in the world today”
would change him. Years later, Adams was exonerated from death row. The American
Psychiatric Association has long criticized these future danger predictions as having no
basis in science. In fact, a comprehensive study by the Texas Defender Service showed
that future dangerousness predictions were wrong over 95% of the time.151 Recently the
Texas Court of Criminal Appeals condemned this kind of prediction, finding that an
expert’s testimony was neither scientific nor reliable.152 However, it upheld the death
sentence against the defendant.153
Racial discrimination has also infected state experts’ future dangerousness predictions.
Victor Saldano was sentenced to death in 1996 after Dr. Walter Quijano, an expert for the
prosecution, testified that Saldano was more likely to pose a threat of future danger
because he was Hispanic.154 Dr. Quijano gave similar testimony in at least six other
capital cases against minority defendants.155
Texas is one of only two states that, in effect, requires the jury to predict a defendant’s
future behavior to sentence him to death. The use of state experts’ unreliable
predictions, sometimes tainted by racial bias, raises serious concern that Texas
prisoners are condemned to death on the basis of speculative and unreliable evidence
masking as expert medical testimony.
c. Statistics Show a Grossly Disproportionate Use of Capital Punishment
Sentences on African-Americans
Texas’ high execution and death sentencing rates are even more disturbing in light of
the discriminatory nature of Texas’ death penalty. While African Americans make up
just 12% of Texas’ population, they account for nearly 38% of those on death row.156 In
addition to the sentencing disparity, Texas also maintains a massive racial disparity in
actual executions. In 2009, African-Americans accounted for more than half of the 24
persons executed in Texas.157 All but four of these men were people of color.158

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∗

∗∗

d. Lack of Access to Justice and Mental Health Care for Inmates on Texas’
Death Row
Mental health care for Texas death row prisoners, particularly given the inhumane
conditions of confinement, is woefully inadequate. Since 1999, death row inmates in
Texas have spent 23 hours per day in solitary lock-down, with one hour for solitary
recreation. A number of inmates have committed suicide, often as a result of mental
illness exacerbated by the isolation. For example, in 2008 death row inmate William
Robinson, a paranoid schizophrenic who was convicted of murder by proxy for being
present at the scene of a crime for just 11 minutes, committed suicide after a history of
failed attempts.159 Last year, another inmate with a history of mental health problems
gouged out his eyeball and ate it.160 Absent significant improvements in access to
mental health care and reduced isolation, inmates on Texas’ Death Row will remain at
acute risk of diminishing mental capacity, rendering them unable to effectively
participate in their own defense and thereby denying them access to justice.

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III.

Indigent Defense
a. Lack of Access to Counsel for Indigent Defendants

In June 2001, the Texas Fair Defense Act was enacted to fix Texas’ broken indigent
defense system. The impetus behind the Act’s passage was a December 2000 report
released by Texas Appleseed.161 The report documented numerous cases of unqualified
counsel,162 defendants kept in jail for months before being appointed counsel,163
defendants denied counsel until after indictment,164 and a general lack of accountability
enjoyed by both the Texas judiciary and appointed counsel.165
To remedy these deficiencies, Texas Fair Defense Act created minimum statewide
standards to ensure the right to counsel. In doing so, the Act created the statewide Task
Force on Indigent Defense “to improve the delivery of indigent defense services through
fiscal assistance, accountability and professional support to state, local judicial, county,
and municipal officials.”166 Unfortunately, almost nine years after its passage, the Texas
Fair Defense Act has failed to fix Texas’ indigent defense system.
Harris County, Texas’ most populous and of which Houston is the county seat, exhibits
many of the problems that have plagued the post-Fair Defense Act indigent defense
system in Texas. Under the Fair Defense Act, counties still maintain the right to
determine the process for the appointment counsel to indigent defendants.167 This
decentralization has led to numerous problems for indigent defendants. For example, in
juvenile courts the lack of enforced uniform standards has allowed judges to get away
with appointing counsel with multiple State Bar suspensions.168 At the same time, a
judges’ panel voted to remove “three respected, veteran, board-certified” attorneys from
the list of attorneys eligible for court appointment.169 These attorneys were removed
without justification, although one of the removed attorneys believes that the reason was
that his (or her) aggressive defense work clashed with the quick plea bargain approach
preferred by the judges.170 Harris County’s adult judicial system has also failed to live up
to the hopes enshrined in the Fair Defense Act. In hundreds of individual cases,
defendants unable to post bail have spent more than a year in jail before their guilt or
innocence was determined.171 Harris County courts lack a centralized process to ensure
proper access to counsel. In addition, they lack a review mechanism to ensure that
appointed counsel are not overburdened with cases and/or are acting in the best interest
of their clients.172 In 2008, “[a]t least 54 court-appointed attorneys handled more than a
nationally recommended limit of 150 felony cases … [some] juggled more than 1,000.”173
Furthermore, appointed counsel are frequently paid a flat rate per case, which creates
an added incentive for indigent defense attorneys to take as many cases as possible and
spend as little time as possible on each.174
The case of Brisby Brown is just one of many examples of Texas’ failed indigent defense
system. Mr. Brown was arrested and charged with possession of cocaine, even though
no drugs were found on him at the time of his arrest.175 Instead, the arresting officer
alleged that Mr. Brown threw away the drugs before being apprehended.176 By the end
of his ordeal, Mr. Brown had spent 17 months in jail for a drug possession charge that
was later dropped. This treatment was, in part, the result of a system that granted Mr.
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Brown two court-appointed attorneys who were each carrying more than 1000 cases
annually, over 12 times the limit accepted by the National Legal Aid and Public Defender
Association.177 As stated in court documents and in a formal complaint, Mr. Brown’s
appointed attorneys, on numerous occasions, attempted to force Mr. Brown to plead
guilty.178
To further stack the deck against indigent defendants in Harris County, the District
Attorney’s Office enjoys an annual budget twice the size of the annual indigent defense
budget. Included in this massive disparity is the fact that indigent defense attorneys lack
access to county staff investigators, while the District Attorney’s Office enjoys the benefit
of 30 staff investigators.179
IV.

Prisoners’ Rights
a. Deplorable Conditions of Confinement in Harris and Dallas County Jails

Like many states, a state agency runs Texas prisons but counties are left to operate
jails. In Texas, jails are subject to jail standards and inspected for compliance by the
Texas Commission on Jail Standards (TCJS). Just two of the 253 county jails house
more inmates than the entire state systems in Arkansas, Nevada, or Connecticut.180 This
oversight structure has been in place since 1975 but in recent years has not been
sufficient to ensure appropriate conditions at these large Texas jails.181 Chronic
conditions issues at these two facilities have prompted recent Department of Justice
investigations.182
Despite TCJS and DOJ inspections, reports of deaths in custody, lack of appropriate
mental health and medical care, and a variety of others issues continue to come from
the Harris County and Dallas County jails. Current county resources are simply
insufficient to provide for the large populations in these jails. Both counties are seeking
solutions, for example reducing populations by diverting non-violent offenders from
spending time in jail. However, with the large populations and the ongoing challenges in
addressing conditions in these facilities, human rights violations will continue until a
stronger commitment at the county, state, and federal level changes these facilities at a
fundamental level.

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WASHINGTON
I.

LGBT Rights
a. Excluding Same-sex Couples from Marriage Protections

In lawsuits brought to the highest courts in several states of the United States, as well
as in lawsuits brought in federal courts, arguments that excluding same-sex couples
from the protections of marriage violate state and federal constitutions have been
dismissed as without foundation. The American legal system has thereby denied
lesbian, gay, and bisexual people access to justice with regard to significant protections
at the core of family life for most people. The governments of various states, as well as
the United States government itself, have urged the courts to close their doors to samesex couples seeking to enforce their rights to equality and liberty under the state and
federal constitutions.
The ACLU filed a lawsuit in 2004 against the state of Washington, challenging the denial
of marriage rights to same-sex couples. The suit was filed in Thurston County Superior
Court on behalf of 11 couples from across the state who wish to marry in Washington or
to have their marriage recognized under Washington law. Plaintiffs include a police
officer, a firefighter, a banker, a nurse, a retired judge, a college professor, a business
executive, and others. They reside in communities from Seattle to Spokane and from
Port Townsend to Hoquiam.
Reversing rulings in favor of marriage equality by two state trial courts, in July 2006 the
Washington Supreme Court found that the state’s ban on marriage by same-sex couples
does not violate the state constitution.183 In the appeal of two cases brought by 19
couples who wish to marry, Castle v. State and Anderson v. King County, the court
upheld the state’s Defense of Marriage Act of 1998 that defines marriage as between
one man and one woman.
As a result, same-sex couples are treated unequally from different-sex couples, as they
are barred from civil marriage under current Washington state law, despite state
legislation providing the same benefits and responsibilities to same-sex couples who are
registered as domestic partners as those enjoyed by married different-sex couples.
The decision came in the state’s appeal of two lower-court rulings upholding marriage
equality. In Castle v. State, Thurston County Superior Court Judge Richard Hicks in
September 2004 found that legal barriers to marriage for same-sex couples violate the
state constitution’s guarantee of equal treatment for all citizens. In his ruling, Judge
Hicks rebuffed arguments that marriage for same-sex couples destabilizes the family,
noting that same-sex couples have already been found to serve as capable foster and
adoptive parents. In Andersen v. King County, King County Superior Court Judge William
Downing in April 2004 also ruled that Washington’s law limiting marriage to oppositesex couples violates the state constitution.

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The court’s ruling came by a 5-4 margin. In her dissent, Justice Bobbe Bridge wrote,
“Rather than protecting children, the DOMA (Defense of Marriage Act) harms them.” In
another dissent, Justice Mary Fairhurst said that the plurality and concurring opinions
“…condone blatant discrimination against Washington’s gay and lesbian citizens in the
name of encouraging procreation, marriage for individuals in relationships that result in
children, and the raising of children in homes headed by opposite-sex parents, while
ignoring the fact that denying same-sex couples the right to marry has no prospect of
furthering any of those interests.”184

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ENDNOTES
1

See e.g., Rebecca Walker, BUSTED: Anniston in Desperate Need for New Jail, Police Facilities,
ANNISTON STAR, Feb. 5, 2010, available at
http://www.annistonstar.com/view/full_story/5785385/article-BUSTED--Anniston-in-desperateneed-for-new-jail--police-facilities.
2
Letter on file with the ACLU of Alabama.
3
Letter on file with the ACLU of Alabama.
4
Letter on file with the ACLU of Alabama.
5
Letter on file with the ACLU of Alabama.
6
Letter on file with the ACLU of Alabama.
7
See 18 U.S.C. § 3626(h)(5) (1997).
8
42 U.S.C. § 1997e(e) (1996).
9
Barbara Belbot, Report on the Prison Litigation Reform Act: What Have the Courts Decided So
Far?, 84 THE PRISON JOURNAL 290, 296 (2004).
10
18 U.S.C. § 3626(b)(1) (1997).
11
See 452 U.S.C. § 1997e(d) (1996). See also Barbara Belbot, Report on the Prison Litigation
Reform Act: What Have the Courts Decided So Far?, 84 THE PRISON JOURNAL 290, 304 (2004).
12
42 U.S.C. § 1997e(d)(B)(3) (1996).
13
See Alabama Department of Corrections, Policy No. B-1(e), June 10, 2009.
14
Adam Litpak, In Alabama, Execution without Representation, NEW YORK TIMES, Mar. 26, 2007.
15
Death Penalty Information Center, Website, available at http://deathpenaltyinfo.org/deathsentences-capita-state and http://deathpenaltyinfo.org/state-execution-rates.
16
See Stephen B. Bright, Turning Celebrated Principles Into Reality, THE CHAMPION 6 (Dec./Jan.
2003); see also The Southern Center for Human Rights, “If You Cannot Afford a Lawyer...”: A
Report on Georgia’s Failed Indigent Defense System (Jan. 2003), available at
http://www.deathpenaltyinfo.org/jan.%202003.%20report.pdf.
17
Leonard Post, On Their Own, Nat’l L.J. (Dec. 1, 2003).
18
Alabama Judicial System, Website, available at http://www.alacourt.gov/JudicialCircuits.aspx.
19
See Ala. Code § 15-12-2 (1975).
20
American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems:
The Alabama Death Penalty Assessment Report 99 (June 2006) at 126, available at
http://www.nacdl.org/public.nsf/defenseupdates/deathpenalty_attachments/$FILE/ABA_AL.pdf;
Barbour v. Haley, Brief of Amici Curiae, Alabama Appellate Court Justices and Bar Presidents in
Support of Petition for a Writ of Certiorari, No. 06-10920 (11th Cir. Dec. 8, 2006).
21
Id.
22
ACLU, Broken Justice: The Death Penalty in Alabama (Oct. 2005) at 2, available at
http://www.aclualabama.org/WhatWeDo/BrokenJustice_report.pdf.
23
Sara Rimer, In Alabama, a Neglected Defense System Skews Death Row Justice, N.Y. TIMES,
March 1, 2000.
24
ACLU, Broken Justice, supra note 22, at 5.
25
Ala. R. Crim. P. 32.7(c).
26
Ala. Code § 13A-5-46 (1975).
27
Ala. Code § 13A-5-46 (1975). See also Harris v. Alabama, 115 S.Ct. 1031 (1995).
28
Ken Silverstein, The Judge as Lynch Mob, 12 THE AMERICAN PROSPECT, May 7, 2001; see also
Equal Justice Initiative, Judicial Override in Alabama (March 2008), available at
http://www.eji.org/eji/files/03.19.08%20Judicial%20Override%20Fact%20Sheet_0.pdf.

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29

See Fred Burnside, Dying to Get Elected, 1999 Wis. L. Rev. 1017, 1039-42 (1999); see also
Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death, 75 B.U. L. Rev. 759, 786
(1995).
30
ACLU, Broken Justice, supra note 22, at 21.
31
Id.
32
Equal Justice Initiative, Racial Bias, available at http://www.eji.org/eji/deathpenalty/racialbias.
33
Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy
(Aug. 2010), available at
http://eji.org/eji/files/62510%20Edited%20Tutwiler%20version%20Final%20Report%20from%20p
rinter%20online.pdf.
34
Stephen Bright, Capital Punishment on the 25th Anniversary of Furman v. Georgia, Southern
Center for Human Rights (1997), available at http://www.schr.org/files/resources/furman3.pdf.
35
Ala. Code § 26-21-3 and § 26-21-4.
36
Trac Immigration, Detainees Leaving ICE Detention from the Etowah County Jail, available at
http://trac.syr.edu/immigration/detention/200803/ETOWAAL/exit/.
37
The coalition that filed the lawsuit includes the ACLU, MALDEF, National Immigration Law
Center (NILC), the National Association for the Advancement of Colored People (NAACP), ACLU of
Arizona, National Day Laborer Organizing Network (NDLON) and the Asian Pacific American
Legal Center (APALC)—a member of the Asian American Center for Advancing Justice.
38
See Complaint, Friendly House et al. v. Whitling, No. CV 10-1061 (filed May 17, 2010), available
at http://www.aclu.org/immigrants-rights-racial-justice/friendly-house-et-al-v-whitingcomplaint.
39
Friendly House et al. v. Whitling, Order on Motion to Dismiss, No. CV 10-1061-PHX-SRB (Oct.
10, 2010).
40
U.N. Working Group on the Universal Periodic Review, 9th Sess., Draft Report, U.S.A, U.N.
Doc.A/HRC/WG.6/9/L.9 (Nov. 10, 2010), available at
http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/A_HRC_WG.6_9_L.9_USA.pdf.
41
ABA Guidelines for the Appointment and Performance of Death Penalty Counsel 49, Guideline
9.1: Funding and Compensation (Feb. 2003), available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/deathpenaltyguidelines2
003.pdf.
42
See Human Rights Watch and ACLU, Deportation by Default: Mental Disability, Unfair
Hearings, and Indefinite Detention in the US Immigration System (July 2010), available at
http://www.aclu.org/files/assets/usdeportation0710_0.pdf.
43
See FLA. STAT. ANN. § 27.701(2); FLA. STAT. ANN. § 27.710.
44
FLA. STAT. ANN. § 27.711 (1) (c).
45
See Brief Amicus Curiae of the American Civil Liberties Union and the ACLU of Florida in
Support of Petitioner, Lawrence v. Florida, 549 U.S. 327 (2007) (No. 05-8820), available at
http://www.aclu.org/files/images/lawrencev.florida/asset_upload_file128_26049.pdf.
46
Id.
47
FLA. STAT. ANN. § 27.711 (12).
48
See In Re Rules of Criminal Procedure 3.851 & 3.850, 719 So.2d 869 (Fla. 1998) (addressing
practical implications of newly-enacted FLA. STAT. ANN. § 27.710 (5)).
49
See Carl Jones, State Officials Appeal to Florida Supreme Court on Attorney Fee Caps,
DAILYBUSINESSREVIEW.COM, May 15, 2006; Jan Pudlow, Justice Rips Shoddy Work of Private Capital
Case Lawyers, FLORIDA BAR NEWS, Mar. 1, 2005, available at
http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/6D34A7C218AE74C385256FB0004F
3311.
50
See Death Appeals Not Quite Dead, DAILYBUSINESSREVIEW.COM, Apr. 30, 2003.

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51

Jo Becker, System May Be Slowing Appeals: Introduced as a Way to Streamline the Death
Penalty Process, a Registry System Using Private Defense Attorneys Has Led to Delays, Critics
Say, ST. PETERSBURG TIMES, Jul. 17, 2000, at 1B.
52
See ACLU of Georgia, The Persistence of Racial Profiling in Gwinnett: Time for Accountability,
Transparency, and an End to 287(g) (March 2010), available at
http://www.acluga.org/GwinnettRacialReportFinal1.pdf.
53
U.S. Immigration and Customs Enforcement, Delegation of Immigration Authority Section
287(g), available at http://www.ice.gov/287g/.
54
Gwinnett County Sheriff’s Department Jail Division, Policy Number 2.A., Chapter 2: Immigration
(287(g) Program), § VI, para. C(c), on file with the ACLU of Georgia.
55
Id. at para. C(d).
56
Id.
57
Department of Justice and ICE Joint Press Release, ICE and DOJ Joint Enforcement Action at
Iowa Meatpacking Plant, May 12, 2008, available at
http://www.ice.gov/pi/news/newsreleases/articles/080512cedarrapids.html.
58
Id.
59
DOJ Press Release, Over 300 Criminal Arrests In Postville ICE Operation, May 15, 2008,
available at
http://www.usdoj.gov/usao/ian/press/May_08/5_15?08_Agriprocessors.html.
60
Erik Camayd-Freixas, Interpreting after the Largest ICE Raid in U.S. History: A Personal
Account 2 (2008), available at http://graphics8.nytimes.com/images/2008/07/14/opinion/14edcamayd.pdf.
61
United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008) (holding that the aggravatedidentity-theft charge “does not require the Government to prove that the defendant knew that the
means of identity belonged to another actual person”), abrogated by Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009).
62
Second Superseding Indictment at 1, United States v. Agriprocessors, Inc., No. CR-08-1324
(N.D. Iowa Nov. 20, 2008); National Immigrant Justice Center, U.S. Failed to Recognize Human
Rights of Immigrants as it Aggressively Prosecuted Agriprocessors Workers 3 (2009), available at
http://www.immigrantjustice.org/resources/policy/nijcpolicybrief.
63
Erik Camayd-Freixas, Interpreting after the Largest ICE Raid in US History: A Personal Account
2, Jun. 13, 2008, available at http://graphics8.nytimes.com/images/2008/07/14/opinion/14edcamayd.pdf; National Immigrant Justice Center, U.S. Failed to Recognize Human Rights of
Immigrants as it Aggressively Prosecuted Agriprocessors Workers at 1.
64
U.S. Attorney’s Office Northern District of Iowa Press Release, 300 Now Convicted and
Sentenced Following May Arrests in Postville, Jun. 10, 2008, available at
http://www.usdoj.gov/usao/ian/press/June_08/6_10?08_Postville.html.
65
See, e.g., Plea Agreement for Thelma Zamol-Yool at 2-4, United States v. Zamol-Yool, No. 081306 (N.D. Iowa May 18, 2008).
66
Erik Camayd-Freixas, Interpreting after the Largest ICE Raid in US History: A Personal
Account, Jun. 13, 2008, available at
http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf.
67
Id.
68
Conaway v. Deane, 401 Md. 219, 312, 932 A.2d 571, 627 (2007) (exclusion from marriage violates
no provision of state constitution); Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 211 (2006) (state
constitution required civil equality, but not marriage); Hernandez v. Robles, 7 N.Y.3d 338, 821
N.Y.S.2d 770, 855 N.E.2d 1, 9 (2006) (exclusion from marriage violates no provision of state
constitution); Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963, 979 (2006) (exclusion from
marriage violates no provision of state constitution); Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct.
App. 2005) (exclusion from marriage violates no provision of state constitution); Baker v. State,

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170 Vt. 194, 201, 744 A.2d 864, 869, 81 A.L.R.5th 627 (1999) (state constitution required civil
equality, but not marriage); Standhardt v. Superior Court ex rel. County of Maricopa, 206 Ariz.
276, 77 P.3d 451 (Ct. App. Div. 1 2003) (exclusion from marriage violates no provision of state
constitution); Dean v. District of Columbia, 653 A.2d 307, 310-331 (D.C. 1995) (exclusion from
marriage violates no provision of district’s laws); Jones v. Hallahan, 501 S.W.2d 588, 63 A.L.R.3d
1195 (Ky. Ct. App. 1973) (exclusion from marriage violates no provision of state constitution);
Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, 1192 (Div. 1 1974) (exclusion from marriage
violates no provision of state constitution).
69
Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006); Bishop v. Oklahoma ex rel. Edmondson,
447 F. Supp. 2d 1239 (N.D. Okla. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); but
see Perry v.Schwarzenegger, ___F.Supp.2d ___ (N.D.Cal.2010) (striking down state constitutional
amendment excluding same-sex couples from marriage under federal constitution), appeal
pending.
70
Deane & Polyak v. Conaway, No.24-C-04-005390 (Md.Cir.Ct, Jan. 20, 2006) overruled by
Conaway v. Deane, 401 Md. 219, 312, 932 A.2d 571, 627 (2007).
71
Conaway v. Deane, 401 Md. 219, 312, 932 A.2d 571, 627 (2007).
72
Sanchez v. Eagle Alloy Inc., 254 Mich. App. 651 (Mich. Ct. App. 2003) cert. denied Sanchez v.
Eagle Alloy, Inc., 471 Mich. 851 (Mich. 2004).
73
Ted Roelofs, Undocumented Workers at Center of Growing Debate, GRAND RAPIDS PRESS, Jan.
24, 2004, available at http://www.farmworkerlaw.org/news_item.2005-06-01.8684853811 (citing a
study by the Urban Institute).
74
Carol J. DeFrances, State-Funded Indigent Defense Services 1999, Bureau of Justice Statistics,
U.S. Dep’t of Justice (Wash., D.C.: September 2001/revised October 2001), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/sfids99.pdf.
75
See, e.g., David Carroll, Evaluation of Trial Level Indigent Defense Services in Michigan, A Race
to the Bottom, Speed & Savings Over Due Process: A Constitutional Crisis, NLADA (Wash. D.C.:
June 2008), available at http://www.mynlada.org/michigan/michigan_report.pdf.
76
Thirty-seven percent (37%) of state prisoners represented by public defenders reported
meeting with counsel within a week of their arrest as compared to 60% of prisoners represented
by private counsel. Twenty-seven percent (27%) of those represented by public defenders met
with their attorneys at least four times before disposition as compared to 58% of prisoners with
private counsel. Caroline Wolf Harlow, Defense Counsel in Criminal Cases, Bureau of Justice
Statistics, U.S. Dep’t of Justice (Wash. D.C.: Nov. 2000), available at
http://www.ojp.gov/bjs/abstract/dccc.htm.
77
United States v. Cronic, 466 U.S. 648 at 656 (1984).
78
See University of San Francisco School of Law, Sentencing Our Children to Die in Prison:
Global Law and Practice (Nov. 2007), available at
http://www.usfca.edu/law/docs/sentencing_our_children/.
79
Graham v. Florida, 560 U.S. ___ (2010).
80
Complaint, Hill et al. v. Granholm, available at
http://www.aclu.org/files/assets/hillvgranholm_complaint_20101118.pdf.
81
See ACLU of Michigan, Second Chances: Juveniles Serving Life without Parole in Michigan
Prisons (2006), available at
http://www.aclumich.org/sites/default/files/file/Publications/Juv%20Lifers%20V8.pdf.
82
Complaint, Hill et al. v. Granholm, available at
http://www.aclu.org/files/assets/hillvgranholm_complaint_20101118.pdf.
83
Graham v. Florida, 560 U.S. ___ (2010).
84
Roper v. Simmons, 543 U.S. 5500 (2005).

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85

See Martha Bellisle (National Association of Criminal Defense Lawyers), Defense Reform
Needed for Poor, RENO-GAZETTE JOURNAL, May 4, 2008, available at
http://www.nacdl.org/public.nsf/defenseupdates/nevada020?opendocument.
86
American Civil Liberties Union of Nevada, New Report Says Public Defenders’ Caseload is Too
High (July 9, 2009), available at http://www.aclunv.org/new-report-says-public-defenderscaseload-too-high.
87
Id.
88
See S.B. 207, 2009 Leg., 75th Sess. (Nv. 2009).
89
American Civil Liberties Union of Nevada, UPDATE: Taxicab Authority Employees to Receive
Diversity Training (April 12, 2010), available at http://www.aclunv.org/taxicab_authority.
90
Complaint, Chere v. Taye, No. 2:04-cv-06264-FSH-PS (D.N.J. filed Dec. 21, 2004) at paras. 2, 5,
available at http://www.aclu.org/FilesPDFs/wrp%20chere%20complaint%20final%20filed.pdf.
91
Id. at paras. 19, 21, 29, 35, 38 43-49, 57-58.
92
Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 211 (2006).
93
See Zadvydas v. Davis, 533 U.S. 678 (2001).
94
For more information on this case and to read the initial complaint and settlement agreement,
see ACLU of New Mexico, Press Release, MALDEF, ACLU and Otero County Sheriff’s Department
Resolve Civil Rights Suit, May 11, 2010, available at http://www.aclunm.org/News_Events/news_4_9_08.html.
95
For more information on the Technology and Liberty Project’s study on the “Constitution Free
Zone,” see ACLU Technology and Liberty Project, Website, available at
http://www.aclu.org/privacy/spying/areyoulivinginaconstitutionfreezone.html.
96
United States v. Brignoni-Ponce, 442 U.S. 873, 881 (1975).
97
Id. at 887.
98
Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunctive Relief, Hurrell-Harring
v. State of New York, No. 8866-07 (N.Y. Sup. Ct. Mar. 27, 2008).
99
Commission on the Future of Indigent Services, Final Report to the Chief Judge of the State of
New York (June 18, 2006).
100
State of New York Unified Court System, Action Plan for the Justice Courts 50 (Nov. 2006).
101
New York Civil Liberties Union, Proposals for Reform of the New York State Justice Courts:
Hearing Before the New York State Assembly Judiciary Committee, Statement of Corey
Stoughton, Staff Attorney (Dec. 14, 2006), available at http://www.nyclu.org/content/proposalsreform-new-york-state-justice-courts.
102
William Glaberson, In Tiny Courts of N.Y., Abuses of Power, N.Y. TIMES, Sept. 25, 2006.
103
Id.
104
Id.
105
Commission on the Future of Indigent Services, supra note 99; and New York Civil Liberties
Union, Proposals for Reform, supra note 101.
106
Commission on the Future of Indigent Services, supra note 99.
107
See Glaberson, supra note 102; and id.
108
New York City Charter, Chapter 18-A, §440.
109
New York Civil Liberties Union, Mission Failure: Civilian Review of Policing in New York City,
1994– 2006 (2007), available at
http://www.nyclu.org/files/publications/nyclu_pub_mission_failure.pdf.
110
Id.
111
New York City Civilian Complaint Review Board, Status Report January – December 2009
(2010), available at http://www.nyc.gov/html/ccrb/pdf/ccrbann2009.pdf.
112
New York Civil Liberties Union, Mission Failure, supra note 109.

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113

Southern Poverty Law Center, DOJ Probes ‘Discriminatory Policing’ in NY, Intelligence Report,
Issue No. 136 (Winter 2009), available at http://www.splcenter.org/get-informed/intelligencereport/browse-all-issues/2009/winter/hate-crimes#.
114
Id.
115
Southern Poverty Law Center, Climate of Fear: Latino Immigrants in Suffolk County, N.Y.,
Special Report (Sept. 2009), available at
http://www.splcenter.org/sites/default/files/downloads/publication/splc_suffolk_report.pdf.
116
Cara Buckley, Teenagers’ Violent ‘Sport’ Led to Killing on Long Island, Officials Say, N.Y. TIMES,
Nov. 21, 2008.
117
Latino Justice, Letter of Complaint to the United States Department of Justice and the United
Stated Attorney for the Eastern District of New York (Nov. 25, 2008), available at
http://latinojustice.org/civil_rights/cases/DOJ_Suffolk_Letter.pdf.
118
Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation:
Varick Street Detention Facility, a Case Study, 78 Fordham L. Rev. 541, 552 (2009); New York Civil
Liberties Union, Voices from Varick: Detainee Grievances at New York City’s Only Federal
Immigration Detention Facility (Feb. 2010), available at
http://www.nyclu.org/files/publications/Varick_Report_final.pdf; City Bar Justice Center, NYC
Know Your Rights Project: An Innovative Pro Bono Response to the Lack of Counsel for Indigent
Immigrant Detainees (Nov. 2009), available at
http://www.nycbar.org/citybarjusticecenter/pdf/NYC_KnowYourRightsNov09.pdf.
119
Almudena Toral, Immigration out of Rikers’ Campaign Aims at Keeping ICE Away from
Prisoners, DEPORTATION DIALOGUE (Apr. 20, 2010); Nancy Morawetz, City Settles Rikers Lawsuit
Alleging Violations of Immigrants’ Rights, New York University Law School Immigrant Rights
Clinic (Sept. 1, 2009), available at
http://www.lawso.ucsb.edu/faculty/jstevens/113/harveypressrelease.pdf; New York New
Sanctuary Coalition, New York City’s Collaboration with ICE Hurst Its Own Residents, available at
http://brennan.3cdn.net/a3b41ee5c07754ef6a_v6m6ivdbz.pdf.
120
Nina Bernstein, Immigration Officials Often Detain Foreign-Born Rikers Inmates for
Deportation, N.Y. TIMES, Aug. 24, 2009.
121
Amnesty International, Jailed without Justice: Immigration Detention in the USA (Mar. 2009),
available at http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf.
122
Id.
123
Id.
124
Id.
125
See American Civil Liberties Union, ACLU Launches “Know Your Rights Campaign in Ohio”
(April 18, 2007), available at http://www.aclu.org/racial-justice_drug-law-reform_immigrantsrights_womens-rights/aclu-launches-know-your-rights-campai.
126
Id.
127
In re C.S., 115 Ohio St.3d 267 (Ohio 2007).
128
See American Civil Liberties Union, J.P. v. Taft (March 9, 2006), available at
http://www.aclu.org/racial-justice_drug-law-reform_immigrants-rights_womens-rights/jp-vtaft.
129
Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa. 464,
810 A.2d 99 (2002).
130
Janet DiGiacomo, Texas Riot Quelled; Inmates Damage Building, CNN.COM, Feb. 1, 2009,
available at http://www.cnn.com/2009/US/02/01/texas.prison.riot/index.html; New Details: Riot
Appears to be Calming Down at Reeves County Detention Center, NEWSWEST 9, Feb. 1, 2009,
available at http://www.kwes.com/global/story.asp?S=9766729.
131
H.B. 4606, 81st Leg., Reg. Sess. (Tx., unenacted), available at
http://www.legis.state.tx.us/tlodocs/81R/billtext/html/HB04606I.htm; S.B. 1690, 81st Leg., Reg.

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Sess. (Tx., unenacted), available at
http://www.legis.state.tx.us/tlodocs/81R/billtext/html/SB01690I.htm.
132
H.B. 3903, 80th Leg., Reg. Sess. (Tx., unenacted), available at
http://www.legis.state.tx.us/tlodocs/81R/analysis/html/HB03903H.htm.
133
See Dora Shriro, Immigration Detention Overview and Recommendations, Oct. 6, 2009,
available at http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf at p. 8. The chart
below illustrates Detention Demand v. Capacity during FY 2009 through a special density analysis.

134

See Reeves County Detention Center, Website, available at
http://www.reevescountydetentioncenter.com (describing Reeves’s structure of 3 separate
facilities: Reeves I&II, which operate under a CAR-6 contract awarded in 2007, and Reeves III,
which operates under a CAR-5 contract awarded in 2006); see also Federal Bureau of Prisons,
Solicitation for Criminal Alien Requirement 6, Mar. 20, 2006 (announcing contract to “house a
population of approximately 7000 low security, non-US citizens, primarily Mexican sentenced
male inmates).
135
See Department of Justice, Findings Letter: Santa Fe County Adult Detention Center, Mar. 6,
2003 (documenting serious lapses in medical treatment, including multiple cases of detected
untreated tuberculosis, unmonitored and irregular access to anti-epileptic medications, and
undiagnosed schizophrenia).
136
The GEO Group, Inc., Website: Facts, available at http://www.thegeogroupinc.com/facts.asp.
137
See, e.g., Peter Gorman, Private Prisons, Public Pain, FT. WORTH WEEKLY, Mar. 10, 2010,
available at
http://www.fwweekly.com/index.php?option=com_content&view=article&id=2897:privateprisons-public-pain&catid=30:cover-story&Itemid=375.
138
See Forrest Wilder, The Pecos Insurrection, TEXAS OBSERVER, Oct. 2, 2009, available at
https://www.texasobserver.org/cover-story/the-pecos-insurrection.
139
See Joanna Lydgate, Assembly Line Justice: A Review of Operation Streamline, Warren
Institute Policy Brief (January 2010), available at
http://www.law.berkeley.edu/files/Operation_Streamline_Policy_Brief.pdf.
140
United States v. Roblero-Solis, 588 F.3d 692 (9th Cir. 2009).

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141

See Steven Kraytak, Federal Judge Questions Immigration Prosecutions, AUSTIN AMERICAN
STATESMAN, Feb. 6, 2010, available at http://www.statesman.com/news/local/federal-judgequestions-immigration-prosecutions-216667.html.
142
See Gregg v. Georgia, 428 U.S. 153 (1976).
143
Texas Department of Criminal Justice, Death Row Facts, available at
http://www.tdcj.state.tx.us/stat/drowfacts.htm; Death Penalty Information Center, Number of
Executions by State and Region Since 1976, available at
http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976.
144
Death Penalty Information Center, Number of Executions by State and Region Since 1976,
available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976; see
also Texas Department of Criminal Justice, Executions, available at
http://www.tdcj.state.tx.us/stat/annual.htm.
145
Death Penalty Information Center, Death Row Inmates by State, available at
http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year; Death
Penalty Information Center, State by State, available at
http://www.deathpenaltyinfo.org/state_by_state.
146
Texas Department of Criminal Justice, Gender and Racial Statistics of Death Row Offenders,
available at http://www.tdcj.state.tx.us/stat/racial.htm.
147
For a comprehensive review of the Willingham case, see David Grann, Trial by Fire, NEW
YORKER, Sept. 7, 2009, available at
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage=all.
148
Dr. Craig L. Beyler, Chairman of the International Association for Fire Safety Science, reviewed
the forensic evidence used to convict Mr. Willingham in 1992. Dr. Beyler concluded that: “The
investigators had poor understandings of fire science and failed to acknowledge or apply the
contemporaneous understanding of the limitations of fire indicators. Their methodologies did not
comport with the scientific method or the process of elimination. A finding of arson could not be
sustained based upon the standard of care expressed by NFPA 921, or the standard of care
expressed by fire investigation texts and papers in the period 1980–1992.” See Dr. Craig L.
Beyler, Analysis of the Fire Investigation Methods and Procedures Used in the Criminal Arson
Cases Against Ernest Ray Willis and Cameron Todd Willingham (Aug. 17, 2009).
149
Matt Smith, Texas Resists Family’s Effort to Clear Executed Man’s Name, CNN, Nov. 9, 2009,
available at http://www.cnn.com/2009/CRIME/11/07/willingham.texas.execution.probe/.
150
Id.
151
Texas Defender Service, Deadly Speculation 23 (2004), available at
http://02f2fd4.netsolhost.com/tds/images/publications/DEADLYSP.pdf.
152
Coble v. State, --- S.W.3d ----, 2010 WL 3984713, *12 (Tex.Crim.App. Oct. 13, 2010).
153
Id. at *17.
154
Saldano v. Stale, 70 S.W.3d 873, 884-85 (Tex.Crim.App.2002).
155
Texas Defender Service, Deadly Speculation 41 (2004), available at
http://02f2fd4.netsolhost.com/tds/images/publications/DEADLYSP.pdf.
156
Texas Department of Criminal Justice, Gender and Racial Statistics of Death Row Offenders,
available at http://www.tdcj.state.tx.us/stat/racial.htm.
157
Texas Department of Criminal Justice, Executions, available at
http://www.tdcj.state.tx.us/stat/annual.htm.
158
Id.
∗
For Texas death row statistics, see Texas Department of Criminal Justice, Gender and Racial
Statistics of Death Row Offenders, available at http://www.tdcj.state.tx.us/stat/racial.htm; for
Texas population statistics, see U.S. Census Bureau, Texas, available at
http://quickfacts.census.gov/qfd/states/48000.html.

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∗∗

For Texas 2009 execution statistics, see Texas Department of Criminal Justice, Executions,
available at http://www.tdcj.state.tx.us/stat/annual.htm; for Texas population statistics, see U.S.
Census Bureau, Texas, available at http://quickfacts.census.gov/qfd/states/48000.html.
159
Allen Turner, Mentally Ill Killer Found Hanging in his Cell, HOUSTON CHRONICLE, Feb. 5, 2008,
available at http://www.chron.com/disp/story.mpl/metropolitan/5512123.html.
160
Associated Press, Texas Death Row Inmate in Psychiatric Facility after Pulling Out Eye, Eating
It, DALLAS MORNING NEWS, Feb. 9, 2009, available at
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/010909dntexinmateeye.17
038ed.html.
161
Texas Appleseed, The Fair Defense Report: Analysis of Indigent Defense Practices in Texas,
Dec. 2000, available at
http://www.texasappleseed.net/content/index.php?option=com_content&task=view&id=20&Itemi
d=119.
162
Id. at 24-25.
163
Id. at 29-30.
164
Id. at 31.
165
Id. at 43.
166
Task Force on Indigent Defense, Who We Are and What We Do, available at
http://www.courts.state.tx.us/tfid/whoweare.asp.
167
Norman Lefstein and Robert L. Spangenberg, Justice Denied: America’s Continuing Neglect of
Our Constitutional Right to Counsel, The Constitution Project, at 82, available at
http://www.constitutionproject.org/pdf/139.pdf.
168
Rick Casey, County Hires Bad Lawyers, Bans Good, HOUSTON CHRONICLE., Oct. 18, 2007,
available at http://www.chron.com/disp/story.mpl/metropolitan/casey/5226917.html.
169
Id.
170
Id.
171
Lise Olson, Hundreds Kept Jailed for Months Pretrial: Lawyers for the Poor have High
Caseloads, but Little Oversight, Analysis Shows, HOUSTON CHRONICLE., Oct. 4, 2009 available at
http://www.chron.com/disp/story.mpl/metropolitan/6650826.html.
172
Id.
173
Id.
174
Id.
175
Id.
176
Id.
177
Id.
178
Id.
179
Norman Lefstein & Robert L. Spangenberg, Justice Denied, supra note 167 at 62.
180
Harris County Jail (Houston) houses over 11,000 inmates and Dallas County Jail averages
8,400 inmates at any given time. See Overcrowding Solutions Sought as Harris County Jail’s
Budget Tightens, KHOU.COM, Mar. 9, 2010, available at http://www.khou.com/news/local/Overcrowding-solutions-sought-at-Harris-County-Jail-as-budget-tightens-87189187.html;
Dallas Country Sherriff’s Department, Website, available at http://www.dallassheriff.com/main.html; State-by-State Prison Population, KTVU, Feb. 28, 2008, available at
http://www.ktvu.com/news/9254885/detail.html.
181
See Texas Commission on Jail Standards, available at http://www.tcjs.state.tx.us/; Kevin
Krause and Jason Trahan, Dallas County Faces Federal Lawsuit Over Jail Conditions, DALLAS
MORNING NEWS, Sept. 13, 2007, available at
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/091407dnmetjailcompla
int.2cb3c3b.html; Katie McCall, New Information in Harris Co. Jail Probe, ABC 13, Aug. 25, 2009
available at http://abclocal.go.com/ktrk/story?section=news/local&id=6981785.

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182

Letter from Wan J. Kim, Assistant Attorney General, to Margaret Keliher, Dallas County
Commissioners Court (Dec. 8, 2006), available at
http://www.justice.gov/crt/split/documents/dallas_county_findlet_12-8-06.pdf; Letter from
Loretta King, Acting Assistant Attorney General, to Ed Emmett, County Judge (Jun. 4, 2009)
available at http://www.justice.gov/crt/split/documents/harris_county_jail_findlet_060409.pdf.
183
Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963, 979 (2006).
184
Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963, 1012 (2006) (Fairhurst, J., dissenting).

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