Looking Back at How We Kept Moving Forward in 2021
As 2021 draws to an end, we reflect on some of this year’s more noteworthy accomplishments, as well as thank our volunteers, coalition partners, cooperating attorneys, donors, allies, and friends, who make our work possible.
A Bright Beginning
The year kicked off in a big way when Gov. Gretchen Whitmer, in early January, signed into law a package of bills that represent a significant step forward in our ongoing efforts to eliminate racism in the criminal legal system and end mass incarceration throughout Michigan.
Because of much hard work over many years by the ACLU of Michigan, and its many allies, people in our state will no longer be jailed for minor traffic offenses such as driving on a suspended license. That change alone will keep thousands of people a year – disproportionately Black people and other people of color – from being caught up in the costly downward spiral even a few days in jail so often leads to.
Passed by the state Legislature in late 2020 with bipartisan support, the new laws also do away with many mandatory jail sentences and end a one-size-fits-all approach to setting probation and parole conditions. Additionally, police have gained expanded latitude to issue citations for certain offenses rather than being required to make an arrest.
All these reforms will lead to a large drop in the number of people being locked up in local jails. The significance of that is hard to overstate. Throughout Michigan, there will be far less of the financial hardship and emotional trauma that come with incarceration -- not just for people who’ve been deprived of their freedom because of a minor traffic violation, but also for their families, the businesses that employ them, and the communities they live in.
Breaking Ground to Protect Immigrants
Released in March, our report, The Border’s Long Shadow: How Border Patrol Uses Racial Profiling and Local and State Police to Target and Instill Fear in Michigan’s Immigrant Communities, grabbed the attention of many people, including some in Congress.
This first-ever investigation of U.S. Border Patrol’s Michigan operations began with a five-year legal battle to obtain thousands of records the government unsuccessfully fought to keep hidden. Analysis of the documents, which included records of over 13,000 traffic stops detailing which police agency initiated the stop, the location of the stop, as well as the national origin and skin tone of the person apprehended, formed the basis of the report co-written by ACLU of Michigan Immigrant Rights Staff Attorney Monica Andrade and researcher Dr. Geoffrey Alan Boyce.
Among the revelations uncovered: Although Border Patrol’s mandated mission is to police the border, a minuscule number of people – only 1.3% of all cases reviewed – were arrested in Michigan attempting to enter the U.S. from Canada without authorization. With the agency operating throughout all of Michigan, meaning its agents are frequently patrolling areas far from the border or any international waterway, 33% of the people shown in apprehension logs were U.S. citizens, indicating many stops are done with no substantive reason to believe there was a violation of U.S. immigration or customs law.
Evidence of widespread racial profiling can be found in the fact that fewer than 4% of the people arrested by the agency were described as having white skin. Representing more than 83% of all noncitizens initially arrested by Border Patrol in Michigan, people of Latin American origin were disproportionately targeted.,
The report also showed the extent to which Border Patrol, which has long claimed broad authority to operate far from the border and across the entire state of Michigan, collaborates with state and local police to arrest people of color.
“Despite what we had been hearing about Border Patrol abuses for years, we were shocked and dismayed by the devastating picture the data revealed,” said Dr. Boyce. “It shows beyond dispute the rampant racial profiling of people of color, especially people of Latin American descent. Now, we must use this knowledge to put an end to it.”
The report, which received wide media coverage when released, also gained the attention of U.S. Representatives Rashida Tlaib (D-Michigan) and Jamie Raskin (D-Maryland), who sent a letter to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, whose agency oversees CBP, demanding more information on the racist practices we uncovered.
The report also contributed to changes in the policies and practices of the Michigan State Police. They will no longer stop, detain, or prolong a traffic stop solely for the purpose of establishing someone’s immigration status, which our data revealed they had been doing more than any other police agency in the state. They also will not ask about the immigration status of crime victims and will no longer use Border Patrol for translation services.
“No one should have to live in fear of being targeted by law enforcement agencies because of the color of their skin or the language they speak, but, as the report reveals, that is exactly what’s happening in Michigan because of Border Patrol’s rampant use of racial profiling,” Ms. Andrade said when the report was released. “It is time for our congressional, state, and local leaders to get serious about reining in Border Patrol.”
See video of MSP and Border Patrol stopping and questioning 30-year lawful permanent resident Mr. Arnulfo Gomez here.
Working for Water Affordability in Detroit
As part of its longstanding efforts to end water shutoffs in Detroit and make water affordable for all the city’s residents, the ACLU of Michigan returned to federal court in February to affirm the merits of a class-action lawsuit that challenges water shutoffs as a collection tactic and demands water affordability. The city, which is being sued by a coalition of civil rights organizations, was attempting to have that lawsuit dismissed on technical grounds.
Detroit has publicly announced that the city is now committed to eliminating the need for water shutoffs, and a voluntary two-year moratorium on shutoffs is in effect as the city seeks federal subsidies for the water utility.
We contend that even if federal money is obtained if water rates are not made affordable when the funding well runs dry, low-income water customers will again be unable to pay. The past is strewn with failed promises regarding water shutoffs, and we are not willing to trust the future will bring different results unless there’s a court order in place to guarantee water will remain flowing and be priced within reach of the city’s poorest residents.
“For 15 years, our civil rights coalition has been fighting at every level of government to permanently put an end to water shutoffs, a policy that harms the health and wellbeing of impoverished Black Detroiters,” said Mark Fancher, ACLU of Michigan Racial Justice Project staff attorney. “It is time to throw shutoffs on the dust heap of deeply disturbing practices that contribute to the structural racism our nation is finally attempting to dismantle.”
Facing Technological Threats to Civil Liberties
After faulty facial-recognition technology led to the Detroit Police Department’s wrongful arrest and jailing of Robert Williams, a Black man, the ACLU of Michigan, the University of Michigan Law School’s Civil Rights Litigation Initiative (CRLI), and the National ACLU filed a federal lawsuit on his behalf in April. Mr. Williams’s experience was the first case of wrongful arrest due to facial recognition technology to come to light in the United States, according to the lawsuit.
When a shoplifter allegedly stole several watches at a Shinola store in Detroit in 2018, Detroit police officers tried to identify the thief by using a blurry image from the store’s surveillance camera video feeding it through facial recognition technology. The lawsuit cites studies establishing that facial recognition technology is poor at accurately identifying Black people, especially in cases like this one when the photo is grainy, the lighting is poor, and the suspect is not looking at the camera.
“I came home from work and was arrested in my driveway in front of my wife and daughters, who watched in tears because a computer made an error,” said Mr. Williams, a resident of Farmington Hills. “This never should have happened, and I want to make sure that this painful experience never happens to anyone else.”
Mr. Williams was held for 30 hours in a filthy Detroit detention center where he was forced to sleep on a cement floor due to overcrowding.
“We know that facial recognition technology threatens everyone’s privacy by turning everybody into a suspect,” said Phil Mayor, senior staff attorney for the ACLU of Michigan. “We’ve repeatedly urged the Detroit Police Department to abandon its use of this dangerous technology, but it insists on using it anyhow. Justice requires that the police department and its officers be held accountable.”
Helping Flint’s School Children Thrive
In May, a federal judge approved the final settlement in a class-action for schoolchildren harmed by drinking lead-laced water brought by the ACLU of Michigan in coalition with the Education Law Center and the firm White & Case LLP.
In 2018, as the first step in settling the lawsuit, the state agreed to fund a first-of-its-kind initiative to provide every child in the Flint area access to a state-of-the-art screening program designed to detect the neurological effects of lead exposure and identify disabilities. The program identifies children in need of special education services and works with the public schools to match students with the appropriate learning tools so that they can learn and thrive. During the lawsuit’s second phase, we were able to secure a settlement guaranteeing at least $9 million from the state to establish a fund for special education services for students impacted by the water crisis, $2 million in additional funding from the county, and a commitment to undertake a comprehensive assessment and modification of Flint-area special education programs and policies over the next year.
That settlement, approved by a federal judge in May, capped years of effort to address the lead catastrophe in Flint. It began in 2015 when we played a pivotal role in exposing the crisis and its links to Michigan’s anti-democratic emergency manager law. It continued with a Clean Drinking Water Act lawsuit that we filed along with the Natural Resources Defense Council, which resulted in the state of Michigan paying nearly $100 million to replace all Flint’s lead service lines. Our work in Flint does not stop there because we continue to monitor the implementation of the settlements in both cases to ensure that the promises made to the people of Flint are fulfilled.
Taking on Racist Policing Across Michigan
For years, the ACLU of Michigan attempted to maintain a dialogue with Michigan State Police (MSP) directors, urging them to hire an expert to review the agency’s policies and troopers’ practices and implement appropriate reform measures.
"We have practically begged MSP to seek assistance with a racial problem well known to the agency, and their refusal to do it has caused unquantifiable misery for people of color," explained ACLU of Michigan Racial Justice Project Staff Attorney Mark P. Fancher.
That lack of response led us to federal court in June with the filing of a lawsuit against the MSP for racially profiling, questioning, and searching a Black couple during a traffic stop that lasted nearly 90 minutes.
The lawsuit alleges that the unlawful stop and thousands like it are the direct results of MSP willfully ignoring a record of racially disparate traffic stops over a period of years and failing to engage the assistance needed to correct practices and policies that cause racial profiling.
Camara Sankofa and Shanelle Thomas, both of whom are Black, were pulled over by MSP troopers while driving home from work in August 2019. They were accused of running a red light along 8 Mile Road in Oak Park, although, in fact, they had done nothing to justify a traffic stop and were never ticketed for a traffic violation.
When a trooper asked Mr. Sankofa if the couple had drugs in their car, he insisted they did not. Nevertheless, without any evidence of illegal activity, the troopers searched the couple and their vehicle and even deployed K-9's to search the car. After no drugs or contraband were found, the troopers finally allowed the couple to leave after detaining them without cause for nearly 90 minutes.
“Being a Black man in America, I know that any encounter with police can cost you your life, which is why I obey all traffic laws and have not had a ticket in the last 28 years I have been driving,” said Mr. Sankofa. “This traffic stop was humiliating and has left a lasting impact on me, including the fear I feel every time I get behind the wheel. I want to help stop this from happening to anyone else.”
A video of the traffic stop and our interview with Mr. Sankofa and Ms. Thomas can be found here: https://youtu.be/pMm69L1MzGc
Advancing LGBTQ Rights
Years of advocacy by the ACLU of Michigan and its allies paid off in June when Attorney General Dana Nessel issued an opinion stating that it is unconstitutional to require people born in Michigan to undergo surgery in order to change the gender on their birth certificate. Earlier in the year, as part of an ongoing effort pushing for the change, the ACLU and its coalition partners sent a letter to the attorney general, encouraging her to protect transgender people’s rights and declare this requirement unconstitutional. The letter followed a request by the Michigan Department of Health and Human Services (MDHHS) seeking legal guidance on the statute.
“To require transgender people born in Michigan to jump through additional hoops, such as undergoing invasive surgical procedures that they may not want, need, or be able to afford, violates fundamental principles in our state and federal constitutions,” said Jay Kaplan, the ACLU of Michigan Nancy Katz & Margo Dichtelmiller LGBT Rights Project Staff Attorney. The opinion allows transgender people to obtain an important identity document that reflects their authentic lives.”
Attorney General Nessel’s decision was the first of three actions during 2021 that greatly improved the quality of life for our state’s LGBTQ community.
In November, again thanks to years of advocacy and countless appeals to Michigan’s Department of Insurance and Financial Services, a new policy was implemented mandating that Medicaid insurers follow guidelines established by health experts when determining coverage for people diagnosed with gender dysphoria (where your gender identity and gender expression are not congruent with the sex assigned to you at birth). These established standards of care include mental health support, hormone therapy, and gender-confirming surgeries.
Also, in November, because of action taken by Secretary of State Jocelyn Benson, the Michigan Department of State offers a nonbinary option - marked with an "X" - as a sex.
"Every day and throughout the course of history, nonbinary people like me, my partner, and my child have been forced to select between limited options that do not represent or include us and, thanks to Secretary of State Benson, her entire staff, and the group of LGBTQ+ advocates who have been working tirelessly to make an X gender marker possible on state IDs, we are being told that nonbinary people are not only included and represented but respected and celebrated," said Carrick Copeland with SAGE Metro Detroit.
Saving Lives at the Oakland County Jail
Our multi-year work to protect people incarcerated in the Oakland Jail from the Jail’s failure to protect them from COVID-19 culminated in July when U.S. District Judge Linda V. Parker approved a settlement agreement in our class action lawsuit against Oakland County, Sheriff Michael Bouchard, and the Oakland County Jail administration regarding jail conditions during the ongoing COVID-19 pandemic. The agreement requires the jail to follow policies to protect the health and safety of the people housed there. Notably, county officials agreed to make a COVID-19 vaccine available to everyone locked up for more than a week and to provide 1-on-1 counseling for those unsure of whether they want to be vaccinated.
The settlement also requires that the jail provide enough soap, hand towels, toilet paper, and disinfectant spray effective against COVID-19. Jail employees are required to wear masks and wash their hands in accordance with the U.S. Centers for Disease Control and Prevention guidelines and to provide prompt COVID-19 testing for anyone incarcerated who requests a test, shows symptoms, or resides in a cell with someone who became ill.
At the time the lawsuit was filed by the ACLU, the Advancement Project National Office, Civil Rights Corps, LaRene & Kriger, and Pitt McGehee Palmer Bonanni & Rivers P.C., people incarcerated in the jail did not have enough soap and sanitizer, were unable to socially distance living in crowded quarters, and faced retaliation from Jail staff when they sought help to protect themselves from the deadly virus.
“A jail sentence should never be a death sentence,” said Phil Mayor, ACLU of Michigan senior staff attorney said when the agreement was approved. “The conditions at the Oakland County Jail were harsh and unsanitary long before the pandemic, but the COVID-19 virus meant those conditions could become deadly.”
Exposing Police Brutality in Taylor
For decades, various media outlets have reported on incidents of extreme violence committed by Taylor police officers. These news reports were usually accompanied by horrific images captured by police body and dash cameras. But it took the ACLU of Michigan to step in and provide a big-picture look at the problem by compiling a detailed account of 20 incidents of violence by Taylor officers, many of which raise concerns about racial bias.
That information was included in a complaint we filed with the U.S. Department of Justice (DOJ) in October, urging its Civil Rights Division to immediately investigate Taylor’s history of police brutality and use of excessive force. We did that because federal intervention was necessary to spur fundamental changes concerning the police department’s culture and personnel, as well as the adoption of much-needed policing reforms.
“A new culture and a new vision of public safety are needed for the Taylor Police Department,” said Mark P. Fancher, the ACLU of Michigan’s Racial Justice Project staff attorney. “For years, brutality and excessive force have been embedded in the Taylor Police Department’s culture, and too many of the officers have behaved as if they are an occupying army in a war zone. No one should have to live in fear of the very people who are supposed to protect and serve them. That’s why we call on the Department of Justice to investigate and do what it can to eliminate violence, escalation of tensions, and racially biased policing.”
The DOJ complaint also details how the City of Taylor fends off potential lawsuits by bringing charges against victims and subsequently offering to drop the charges in exchange for the victim agreeing not to sue the department.
“Our objective is to put Taylor’s leadership in a position where it has no alternative to making fundamental changes in the Police Department, and that such changes will ensure that law enforcement is not only bias-free, transparent, and accountable, but also suited to the actual needs of the city,” Mr. Fancher explained when the complaint was filed. Along with submitting the complaint to DOJ, we also published a video that, for the first time, compiled recent incidents of abuse by the Taylor police.
That video is available here: https://youtu.be/CoHBbMCzVX4 .
Targeting Cruel and Unusual Punishment in Grand Traverse County
While locked in Grand Traverse County Jail, Cyrus Patson, a 21-year-old white man suffering from opioid use disorder, was denied access to the widely used medication prescribed by his personal physician to treat his addiction.
The results were predictably horrific.
“Your bones – it’s like they’re bruised,” Mr. Patson told the Traverse City Record-Eagle newspaper. “You’re sweating and freezing at the same time. You can’t sleep. Your anxiety is just insane. You have no appetite, just diarrhea, and vomiting. It kills.”
With another stint in jail – and the torture that results from being denied medication – clearly on the horizon, the ACLU of Michigan filed a federal lawsuit on Mr. Patson’s behalf in October. The goal is to force jailers in Grand Traverse County to adopt the same medically approved policies already in place in states around the country as well as elsewhere here in Michigan.
As reported in the Detroit Free Press, the Michigan Department of Corrections began using Suboxone and similar medications in 2019:
“In an important move that reinforces addiction as an illness — not a moral failing — for which everyone deserves treatment, Michigan is joining the national trend of offering medication-assisted treatment (MAT) to prison inmates. …. The medications reduce cravings and soften withdrawal symptoms and are considered the gold standard in opioid addiction treatment,” the paper noted.
Denying effective treatment to people such as Mr. Patson isn’t just dangerous. It is illegal. Like numerous other courts, a federal appeals court ruled in 2019 that a person incarcerated in a Maine jail was entitled to MAT, and withholding it was a violation of the Americans with Disabilities Act.
That same assertion is made in the lawsuit the ACLU of Michigan and the law firm Goodwin Procter filed on Mr. Patson’s behalf. The lawsuit also contends that denial of the medication needed to treat Mr. Patson’s disorder is a violation of his Eighth Amendment protections against cruel and unusual punishment.
A victory in Grand Traverse County will put jail officials across the state on notice that the time has finally come for them to recognize the many benefits of providing medication to people with opioid use disorder and put an end to this senseless cruelty.
Halting Harassment in Grand Rapids
For more than 30 years, police in the western Michigan city of Grand Rapids engaged in the egregious, unconstitutional practice of fingerprinting and photographing people they stopped for being “suspicious,” even when no crime occurred and no arrest was made. Even when people answered officers’ questions and identified themselves, police routinely fingerprinted them if they happened not to be carrying an ID. As a result, biometric information wrongfully taken from potentially tens of thousands of people remains stored in a police database.
Adding to concerns over these unconstitutional acts was the fact that Black people were being disproportionately stopped and searched by authorities with badges and guns, creating a climate of fear, instilling trauma, and poisoning relationships between law enforcement and the communities they are sworn to protect.
The discrimination is particularly disturbing when the targets are children. Keyon Harrison and Denishio Johnson, both of whom are Black, were 15 and 16 years old when, in separate instances, police in Grand Rapids violated their constitutional rights by photographing and fingerprinting them on the side of the road, even though they had done absolutely nothing wrong.
In an attempt to both gain justice for the two men and win a court ruling that would ensure others won’t be subjected to the same harassment, ACLU of Michigan Legal Director Dan Korobkin argued the case before the Michigan Supreme Court in November.
The unconstitutional fingerprinting program widens the disparities even further for young people of color, who are less likely to be carrying an ID because they aren’t old enough to drive, can’t afford an ID, or rely on public transit and so have no need for one. Subjecting these young people to unconstitutional fingerprinting and storing their identifying data in a police database is stigmatizing, traumatizing, and increases the chances of police interactions in the future.
It is, simply put, wrong. And we are doing all that’s possible to make sure it doesn’t happen again.
Pushing for Reform-Minded Prosecutors
In 2020, the ACLU of Michigan and others engaged in a major effort to educate voters about the need to elect prosecutors who are committed to enacting critical reforms to an office that serves as a key point in the criminal legal system. Following that successful campaign, we took another step forward this year as we began working with reform-minded prosecutors in Ingham, Oakland, and Washtenaw counties – which represent 21% of Michigan’s population – on an ambitious data collection and analysis effort. The goal is to uncover and root the system-wide racism that leads to a disproportionate number of Black people and other people of color being impacted by the criminal legal system.
Using grant money obtained through our Campaign for Smart Justice, we were able to leverage additional dollars from a donor to fund this project over the next two years. We are partnering with the University of Michigan Law School and Poverty Solutions at U of M to analyze the data and produce a series of reports culminating in a comprehensive analysis with recommendations. The cooperating prosecutors have agreed to adopting metrics to track their progress on the policy recommendations.
Our goal is to invite more prosecutors to cooperate with data analysis, adopting policy recommendations, and tracking metrics so that they can become partners leading cultural change.
Ending on a High Note
After conducting an exhaustive search for a new executive director that lasted nearly a year, the ACLU of Michigan announced in November that Loren Khogali had been selected as the premier civil rights organization’s new leader.
A passionate advocate who has been fighting to protect the rights of Michiganders for nearly two decades, Ms. Khogali began her career serving as a federal public defender in Detroit, where she spent 13 years representing people unable to afford an attorney. She then led the Michigan Indigent Defense Commission (MIDC) as its Executive Director, overseeing and ensuring the implementation of statewide public defense standards, as well as securing funding to sustain this critical work. Khogali also served as the ACLU of Michigan Board President for a five-year term.
“Loren is an extraordinary person, advocate, and leader, who is deeply compassionate and committed to creating a fair, just, and equitable world,” said Nathan Triplett, ACLU of Michigan Board President said when announcing the hiring. “Her many years working both as a cooperating volunteer attorney with the ACLU of Michigan and serving as its board president, give her unique insight and understanding of the civil rights and civil liberties challenges facing our state. This, along with her kindness, generous spirit, and devotion to protecting the rights of all, will ensure the continued growth and success of the ACLU of Michigan.”
With Ms. Khogali at the helm and a passionate and talented staff, we are set to enter the New Year filled with energy and fueled by the desire to keep protecting democracy and making life in this state better for all Michiganders.