by Ken Silverstein

David Fathi is Director of the American Civil Liberties Union National Prison Project, which brings challenges to conditions of confinement in prisons, jails, and other detention facilities, and works to end the policies that have given the United States the highest incarceration rate in the world. He worked as a staff lawyer at the Project for more than ten years before becoming director in 2010, and has special expertise in challenging “supermax” prisons

What are the main goals of the ACLU’s National Prison Project?

We have three principal goals. First, to roll back the laws and policies that have given the United States the highest incarceration rate in the world. Second, to ensure that incarcerated people are held in conditions that comply with domestic and international law, and meet minimal standards of health, safety, and human dignity. And finally, to combat the extreme racial inequities that infect every level of the criminal legal system.

What are the main barriers you face in seeking to reduce the country’s high level of incarceration? Has public opinion moved in your favor over the past decade or so? What about political opinion? Everyone seems to recognize that we have too many people in prisons and jails, but we keep locking people up in large numbers?

One of the greatest barriers is the extreme decentralization of the U.S. incarceration system. We have 51 separate prison systems, and literally thousands of local jails, each of which operates independently. Even if we successfully challenge a policy or practice in Arizona, that victory doesn’t invalidate the same practice in New Mexico or Colorado. So we have to fight the same battles over and over again.

There’s no question that public opinion and the political climate are much more favorable now than in the 1990s, when I started doing this work. At that time, politicians were locked in an insane bidding war over who could be more punitive. Three strikes laws weren’t good enough; we had to have two strikes laws. Now there’s a growing consensus that the United States locks up far too many people, for far too long. That consensus has yet to translate into significant reductions in the nationwide incarcerated population, but in some states the population reduction has been quite significant. And at least the incarcerated population has stopped growing, which is an achievement in itself.

What about prison and jail conditions? Have they been improving at all? Are there any serious efforts at political oversight you can point to, or do prison officials operate with impunity? 

The story on conditions is complicated. On the one hand we have established the principle that prisoners are entitled to the same standard of medical, mental health, and dental care as people on the outside. Obviously, there are huge gaps between that legal principle and the quality of care on the ground in many places, but establishing that principle is an achievement not to be underestimated. And in the last few years there has a been a sea change on solitary confinement, with the mainstream of the corrections profession recognizing that it has been overused and inappropriately used, and some states placing significant restrictions on its use.

At the same time, due to the brutally long sentences we have in this country, the prison population is aging, and that has created enormous suffering. I’ve seen prison units that resemble nursing homes with razor wire, filled with frail, sick, elderly people, many of them suffering from dementia. It’s hard to understand a society that insists on incarcerating such people, who obviously pose no risk whatsoever to anybody.

I’m convinced that a major reason for the often appalling conditions in U.S. prisons and jails is the lack of independent oversight. Most other democracies have an independent body whose function is to monitor and report on prison conditions. These bodies have “golden key” access — they can show up unannounced at any time, go anywhere in the prison, and talk to anybody. There’s no such oversight in the U.S. Prisons are closed environments that house disempowered, politically unpopular people. When you combine that with a lack of oversight, it’s a recipe for neglect, mistreatment, and abuse.

How much has your work been changed by the coronavirus pandemic? What are some of the top initiatives you’ve taken to try to help prisoners get released or to improve conditions inside?

The coronavirus pandemic has changed our work fundamentally. We’ve urged politicians to cut the incarcerated population significantly in order to protect medically vulnerable people and slow the spread of the virus. Some jurisdictions have made significant population cuts, but most have not. So in the last two months we’ve filed something like 40 new lawsuits, seeking to free people from prisons, jails, and immigration detention centers before the virus hits with full force. We’ve had some success, although the Prison Litigation Reform Act has been a significant barrier.

One of the hardest parts of our COVID-19 work has recognizing the limits of our capacity. Although the ACLU is a large organization and our resources are significant, they are not limitless. We simply can’t sue every jail and prison in the country. So much like the doctors deciding who gets a ventilator and who doesn’t, we have to make agonizing decisions every day about who gets our potentially life-saving interventions, and who does not.

It seems inevitable that we are going to see a surge of cases at prisons and jails given the generally poor sanitary conditions, the lack of proper medical care, and the impossibility of social distancing. Can coronavirus be controlled inside prisons and jails without mass releases?

Public health experts are virtually unanimous that the most urgent priority is to release significant numbers of prisoners, for two main reasons. First, to protect medically vulnerable people, who are at especially high risk of serious illness or death if they contract the virus. And second, to reduce the population density in the prisons, so that those who remain incarcerated can practice social distancing and enhanced sanitation, as we are all being urged to do. It remains to be seen whether other measures will make much of a difference in the absence of significant population reductions. I must say I’m relieved that there haven’t been more staff and prisoner deaths so far, but I’m also very concerned that this is just the tip of the iceberg.

Looking ahead, do you see grounds for optimism in terms of the NPP’s work and goals? If so, what are the most significant?

There are many reasons to be hopeful. The political climate is infinitely less hostile to the rights of incarcerated people than it was 10, 20, or 30 years ago. More and more people recognize that our criminal legal system is broken in fundamental ways. Young people in particular are rejecting mass incarceration and brutal practices like solitary confinement and the death penalty.

I think the COVID-19 pandemic will change U.S. society in many ways. I’m optimistic enough to think that it may lead to greater social solidarity and less obsession with punishment. There’s nothing like a global pandemic of a deadly and highly contagious disease to make you realize that we’re all in this together. 

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