We believe that America’s criminal justice system should keep communities safe, treat people fairly, and use fiscal resources wisely. But more Americans are deprived of their liberty than ever before - unfairly and unnecessarily, with no benefit to public safety. It’s a problem that affects people of color most of all. In the latest issue of The New Yorker, Adam Gopnik tackles the subject of mass incarceration in America, and takes on questions many of us in the criminal justice world as every day: how did we get here, and where do we go now?

As Gopnik explains:

More than half of all black men without a high-school diploma go to prison at some point in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today — perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal justice system — in prison, on probation, or on parole — than were in slavery then. Over all, there are now more people under ‘correctional supervision’ in America — more than six million — than were in the Gulag Archipelago under Stalin at its height.

That’s right: If all the people under “correctional supervision” were a city, it would be the second largest city in the U.S.

As more people find themselves locked up, more people face the culture of violence and inhumanity that persists in many of America’s prisons. Many prisoners are kept in solitary confinement — “at least fifty thousand men — a full house at Yankee Stadium,” says Gopnik — where they are confined to a bathroom-sized cell for 23 hours a day with little or no human contact. It is literally enough to make the sane go crazy. In our own work to end the overuse of solitary, we argue that the practice is not only a waste of taxpayer dollars, but threatens public safety and is fundamentally inhumane. A U.N. expert has called solitary confinement torture. The Washington Post has called for its use only as a last resort.

Those not in solitary endure brutal conditions as well, including the constant threat of guard brutality and rape.

How did we get here? Gopnik’s piece explores two theories. Those who subscribe to the “Northern” theory point to the American justice system’s emphasis on process and procedure over principles, arguing that we tend to accept brutal conditions when we think of them as regular and systematic, imposed after a measure of due process has landed someone in prison. In other words, “The more professionalized and procedural a system is, the more insulated we become from its real effects on real people.” The “Southern” theory holds that prisons are a modern-day extension of plantations; that, as legal scholar Michelle Alexander has argued, mass imprisonment is the “new Jim Crow.” Blacks face police harassment as youths, are incarcerated at a far greater rate than whites, and are released often stripped of their right to vote — a cycle of legal discrimination and disempowerment.

These schools of thought converge to conclude, most basically, that there are too many people in prison and for all the wrong reasons. Overcrowded prisons, in turn, only worsen the conditions of confinement, as we have seen in California where the Supreme Court recently ordered a reduction in prisoner population.

Inflated prison populations have also fueled the for-profit prison industry. As a recent ACLU report shows, mass incarceration provides a gigantic windfall for this special interest group, which includes businesses like the Corrections Corporation of America (CCA) — even as current incarceration levels harm the country as a whole. Says Gopnik, “the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible.” By CCA’s own admission, anything that would decrease the prison population would be bad for business. In a 2005 annual report, the company wrote:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities… The demand for our facilities and services could be adversely affected by the relocation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Private prison corporations, then, have a self-preservation motive to push for an increase in incarceration. And there are others, too, who argue for the continued detention of more and more Americans, pointing to a decline in crime over the same period that incarceration skyrocketed. But there is little proof of a direct causation, and we must not simply accept that overincarceration cured crime. In fact, Gopnik’s piece argues and we agree, this culture of mass incarceration has actually had little effect on crime levels. A better explanation might be that there is no one reason for the decline but rather several smaller pieces of the puzzle that have slowly chipped away at the problem; that there are more effective policies that are also more fair and cost less. As we wrote in another recent report, many states have already begun to show that smart reform is possible, introducing policies that reduce their dependence on incarceration while protecting communities.

And if that’s true — if, indeed, mass incarceration plays a small role in reducing crime — then, Gopnik concludes, “very few people, rich or poor, should be in prison for nonviolent crime.”

Like Gopnik, we believe it’s time for a change. It’s time to improve our criminal justice system, by reducing the number of people who needlessly enter prison in the first place, by shrinking the existing prison population by allowing prisoners who have proven they are ready to re-enter society the opportunity to transition out of confinement, and by investing in alternative solutions that are more effective than lengthy sentences.

We can and must be both safe and fair.

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For Jay A. Miller, the ACLU was his life — not just a career. Working for fairness and justice was woven into Jay’s DNA — he lived, breathed and embodied civil liberties. A one-time union organizer who organized his first strike at his father's soda pop company, Jay became a powerful voice for the American Civil Liberties Union. He died at age 83 on January 3.

Anyone who met Jay more than once, or worked with him, likely heard him describe one of his greatest accomplishments: he was on President Nixon’s infamous “enemies” list for having permitted some of the Chicago 7 defendants to use the ACLU offices to prepare their defense. He also was deservedly proud of bringing Dr. Martin Luther King Jr. — and the civil rights movement — north. He led the ACLU's efforts to defeat S-1, Nixon's repressive attempt to rewrite federal criminal law. (Some of the worst provisions in the so-called Patriot Act passed after 9/11 were first proposed in S-1.)

In an ACLU career that spanned more than four decades, Jay was executive director of ACLU affiliates in Northern California and Illinois — where he served for more than 25 years. He also served as associate director for the ACLU National Legislative Office in Washington, and led a national emergency development campaign for the ACLU headquarters in New York.

In Illinois, Jay traveled to every corner of the state to speak out for basic rights — whether popular or unpopular. Jay loved to debate — he relished the fierce back-and-forth with an opponent who disagreed with the ACLU’s position. He was a favorite with local media because of his accessibility, his passion, his knowledge and his bombastic quotes.

Jay Miller was born on February 8, 1928, in Cleveland. After serving in the Army just after World War II, he graduated from the University of Illinois, Urbana-Champaign, with a degree in social science. After a brief career as a reporter and feature writer with the Cleveland Press, Jay joined the Amalgamated Clothing Workers of America as a business agent and education director. He moved to Chicago in 1961, when he joined the the American Friends Service Committee, where he led campaigns for a nuclear test ban treaty and helped organize a rally for the Dr. King at Soldier Field.

In 1965, Jay became the executive director of the ACLU of Illinois, taking over an office with a staff of four and a budget of less than $50,000. In his early years there, the organization took on a number of new and innovative cases — including desegregation of the Waukegan public schools, challenges to racial segregation in public housing, and defending protestors at the 1968 Democratic National Convention in Chicago.

He also took a prominent role in challenging the police accounts of the shooting of Black Panther leader Fred Hampton in Chicago. With others, he led the calls for an independent investigation into the raid that resulted in Hampton’s death — leading to the true account of the events of that day becoming publicly known.

Jay left Chicago in 1971 to lead the ACLU of Northern California in San Francisco. By the end of the decade, the national ACLU called on Jay to assist the organization in recovering from protests and membership loss after the ACLU of Illinois defended the right of neo-Nazis to hold a demonstration in Skokie, a community then home to many Holocaust survivors. Jay authored a fundraising letter signed by the Illinois lawyer in that case, David Goldberger, which raised a significant amount of money and was widely credited with saving the ACLU from bankruptcy.

Returning to the ACLU of Illinois in late 1978, Jay led many of the first cases in the state to protect rights for persons with HIV and AIDS, as well as protecting basic rights for lesbians and gay men. The organization launched a lawsuit designed to reform the Illinois Department of Children and Family Services — an action that continues today — and another suit to force reforms at the state Department of Mental Health.

Additionally, Jay helped lead the organization’s challenges to restrictions on reproductive rights in Illinois, resulting in the state today having far fewer limits than any other Midwestern state. He also helped establish the Racial Justice Project at the ACLU, which has challenged racial profiling and other racial discrimination across the state.

He is survived by his wife, Lou Kaplan, and his children: Josh, Adam and Rebecca.

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On Monday the Supreme Court issued a landmark decision protecting privacy in the digital age. In U.S. v. Jones, a unanimous Supreme Court held that the police and FBI violated the Fourth Amendment when they attached a GPS device to Antoine Jones’s car and tracked his movements for 28 days. While the case turned on the fact that the government physically placed a GPS device on Mr. Jones’s car, the implications are far broader. A majority of the justices acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store, and analyze an enormous amount of information about our private lives.

Monday’s decision suggests that the Court is prepared to address that intrusion into privacy. Justice Samuel Alito delved to the heart of the matter when he explained that “in the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.” The architecture of mass surveillance had not yet been constructed. A person walking down the street would barely be noticed, and there would be no permanent record of his movements.

Today everything goes down on our permanent records. This is most obvious on the Internet, where every mouse click can be monitored and recorded. Every search term we type — an anxious quest for information about a newly diagnosed health problem, a nostalgic query to learn about the life of an ex-boyfriend — is lodged in the vast data warehouses of Google. One of Gmail’s big selling points is that “you will never need to delete another message.”

But perhaps the most profound change is taking place not in cyberspace but in real space. The technology of surveillance is transforming our outdoor spaces so that they are just as susceptible to monitoring as the online world. Between networks of surveillance cameras, the possibility of GPS tracking, and the reality that the vast majority of Americans carry cell phones that track our every movement, there is no longer a technical barrier to mass surveillance of Americans’ movements. When this type of mass surveillance is combined with the rapid development of facial recognition technology, it may soon be possible for any law enforcement agent to identify a person and pull up a dossier of information about him, this represents a serious erosion of the privacy that Americans rightly expect and have traditionally enjoyed.

As practical barriers to mass surveillance fall, legal barriers become all the more important. The Jones decision is a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.

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The announcement that the U.S. Justice Department has charged members of the East Haven, Connecticut Police Department with violating the civil rights of Latinos is both good news and deeply disturbing. The investigation of improper targeting by local law enforcement of Latinos in Connecticut, along with DOJ’s recent scathing report of the constitutional violations perpetrated against Latinos by Maricopa County, Arizona’s Sheriff Joe Arpaio, are welcome signs that the federal government is taking action to protect people of color from having their most basic rights compromised by racial profiling. Less welcome is the repeated appearance of this particular kind of discrimination in so many parts of the country. Incidents like these raise questions of whether we are dealing with isolated, events or facing examples of rapidly spreading problems that threaten to engulf our entire nation.

The allegations against law enforcement in Arizona and Connecticut are sickeningly similar. The Justice Department report confirmed complaints made in a four-year old civil rights law suit filed by the ACLU. Latinos in Maricopa County were routinely subjected to what a Justice Department expert labeled as “the most egregious cases of racial profiling” he had ever observed Latinos were pulled over and ticketed for offenses to for which whites were not. People with limited command of English were subjected to abuse upon arrest because of their inability to understand orders issued by law enforcement. Meanwhile, on the other side of the country, East Haven, Police subjected Latino residents and businesses to unwarranted and discriminatory harassment and arrest.

In both states, people who had committed no offense other than being or appearing to be Latino were harassed and told, effectively, that the rights supposedly granted to everyone by the Constitution did not apply to them and that they were not entitled to the protection of the law by those charged with enforcing it.

The appearance of this problem in Connecticut raises unsettling questions. Whether talking about abuses in Arizona or the spate of anti-immigrant laws that started in Arizona and have spread to Alabama, Georgia, South Carolina and Utah, there is a temptation to minimize how widespread trends of unlawful discrimination against immigrants are. It is easy to dismiss this racial profiling as the result of the antics of an attention-hungry sheriff or the attempt by a few, unenlightened southern politicians to make hay out of the fears and resentments against black and brown immigrants. But the existence of the practice in the “liberal” state of Connecticut begs the question of whether we can afford to be complacent about intolerance and discrimination anywhere in the country.

It is encouraging that the Justice Department has taken decisive steps in these two cases. We can only hope that the federal government will continue to take aggressive action in each and every instance in which it is warranted. But the problem is not one that can be addressed by the Justice Department alone. It is a problem that all Americans must face. Ultimately what is at stake is not just the ability of people of color to be free to drive on public streets, patronize businesses or to rely on law enforcement for protection. What is at stake is the kind of country we choose to be. Any willingness to accept the abridgement of the rights of some in the name of enforcement of immigration laws, or national security or fighting crime erodes the very foundation of our nation. We must recognize that injustice anywhere and against anyone is injustice against us all.

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