With the passage of the $1.9 trillion American Rescue Plan Act, we may be witnessing a turning point in the way this country thinks about poverty.

The plan will provide an unprecedented increase in the social safety net: a third round of direct payments to qualifying Americans — $1,400 per person and an additional $1,400 payment for each dependent — an extension of unemployment benefits, and an expansion of the child tax credit. Remarkably, the stimulus will provide this money without onerous work requirements or unnecessary spending limitations. It will simply put cash in the pockets of those who really need it. The passage of this bill reflects a profound ideological shift, and could help forge a path away from the American tradition of penalizing, and often criminalizing, poverty — a practice that disproportionately harms people of color.

Compare the 2021 stimulus with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, commonly known as welfare reform. Welfare reform “created time limits and work requirements” and “abolished the entitlement to cash aid for poor families with children.” Welfare reform also set a floor for aid, effectively locking out the poorest of the poor among us. This was the culmination of a pervasive smear campaign directed largely against low-income Black women who were villainized as “welfare queens” bent on gaming the system.

As the law’s title suggests, welfare reform was based on the idea that poor people are to blame for their poverty. If you’re poor, it’s your fault. You’ve failed to take responsibility for bettering your life, and therefore you must be incentivized to seek out opportunities that you’ve otherwise chosen to squander. 

Fast forward to 2021 and the stimulus: $1,400 for each qualifying person and another $1,400 for each dependent. No floor. No work requirements. No shaming. 

Benefits like this reflect a philosophy entirely at odds with the welfare reform efforts of the 90s: Struggling financially isn’t a personal moral failing and people aren’t to blame for it. For now, the stimulus only authorizes these payments for one year, though some Democrats are pushing to make these benefits permanent. Hopefully, this philosophical shift in how we perceive poverty has staying power, and will deepen as we see more examples of how these kinds of unconditional cash transfers succeed. 

The American Rescue Plan Act rejects the idea that poverty is a moral failing or a choice rooted in laziness and anti-social tendencies. We must also reject this idea in the criminal legal system. We must end policies and practices that criminalize poverty. Criminal codes are full of offenses that punish or punish more severely because a person is financially insecure. We need to repeal them all.

As recently explained in an opinion piece by a former prosecutor and a public defender, “[a]rrests for low-level offenses make up the majority of the cases in the criminal legal system. Up to 13 million misdemeanor cases are filed every year, and reflect 80 percent of all arrests across the country.”

Several years ago — before George Floyd was arrested on suspicion of committing a misdemeanor and killed by Derek Chauvin — the ACLU and the ACLU of Minnesota examined low-level arrest data from the Minneapolis Police Department. Over 33 months, the department arrested people experiencing homelessness more than 6,000 times for low-level offenses. Eighty percent of these arrests were for consuming alcohol in public, open alcohol containers, outstanding warrants for low-level offenses, trespassing, loitering with intent to commit a narcotics offense, disorderly conduct, theft, drug paraphernalia, begging/panhandling, and public urination. In a city that is 19 percent Black, a whopping 58 percent of these low-level arrests were of Black people experiencing homelessness. 

In Tennessee, I represented a client who was serving time for a theft he committed when he was homeless. He was later released on parole but had nowhere to go and fell back into homelessness, which eventually led to a trespass charge. This charge violated his terms of parole and now he’s back in prison.

In Washington D.C., three law professors at Georgetown recently called attention to the criminalization of poverty in misdemeanor court. They explain that about half of the misdemeanors prosecuted are nonviolent and are “crimes of poverty.” They tell stories of “clients [who] were prosecuted for such crimes as stealing a burrito from a 7-Eleven or a pair of warm gloves from Macy’s, or begging for a free cup of coffee at Starbucks and not leaving when told to.” And they point to data showing that an overwhelming number of these prosecutions “have long been of poor people.”   

In addition to the immediate consequences of low-level convictions, the ACLU’s Racial Justice Program has documented that this type of contact with the criminal legal system can result in people being locked up without court hearings or legal representation when they could not pay fines and fees for traffic tickets or other civil infractions or criminal offenses. Indeed, modern-day debtors’ prisons result from state laws allowing or requiring the suspension of driver’s licenses for unpaid court fines or fees without first requiring confirmation that the person could actually pay.

Criminalizing poverty just leads to more poverty and disadvantage. As the Georgetown professors explain, “[t]hose in misdemeanor court face serious consequences even for petty crimes. A conviction can result in loss of housing, income, legal immigration status, and more.”   

If lawmakers can evolve beyond blaming people for poverty in the context of financial assistance, they can also stop criminalizing people for poverty and compounding it by subjecting them to a biased and bloated criminal legal system. Enormous resources are devoted to criminalizing poverty. Instead, let’s invest those resources into preventing poverty.

In the spirit of this historic American Rescue Plan Act, lawmakers should begin dismantling and repealing the many laws that needlessly ensnare Americans in the criminal legal system and ensure they remain below the poverty line. Poverty isn’t a moral failing, and it shouldn’t be a crime.

The 2020 election was a historic year for lawmakers who identify as transgender: Voters across the country elected six trans lawmakers to state office. Sarah McBride was one of those lawmakers. Elected as a State Senator for Delaware’s first district, Sen. McBride is now the highest ranking trans lawmaker in the U.S. Her candidacy and her voice in trans advocacy have shown how trans people can become powerful leaders in public life.

Sen. McBride joined our podcast this week to discuss her journey into politics and trans advocacy and to let us know what we can all do to build a more inclusive world.

“It shouldn’t be a privilege to be able to keep your job or to be able to stay in school, to be able to be welcomed by your community,” said Sen. McBride of her journey into advocacy. “Those should be rights guaranteed to everyone, not a privilege for the few.”

https://soundcloud.com/aclu/state-senator-sarah-mcbride-on-making-history-and-affirming-trans-lives

Last year, then-President Trump imposed unprecedented sanctions against the world’s only permanent international criminal court and my work to support justice for the victims and survivors of human rights atrocities ground to a halt. Since 2012, I have served as the special adviser on crimes against humanity to the prosecutor of the International Criminal Court (ICC), Fatou Bensouda. In this role, I provide Bensouda and her staff with legal advice and assistance in their investigation and prosecution of crimes against humanity around the world. 

In June 2020, Trump issued an executive order authorizing the imposition of sanctions against ICC officials involved in investigations and prosecutions of U.S. personnel (and those of certain allies) for genocide, war crimes, and crimes against humanity. It also punishes anyone, including experts like me, who supports these ICC officials, regardless of whether that support is related to investigations and prosecutions of U.S. and allied personnel. Last September, then-Secretary of State Pompeo designated Bensouda and another senior court official under the order, and the U.S. government implemented sanctions against them. As a professor of international criminal law and special adviser to Bensouda, I can no longer continue my work without risking prosecution and punishment by my own government. 

That’s why, with two other law faculty and an ACLU human rights attorney, I challenged the Trump administration’s order in a lawsuit filed January 15. The order violates our First Amendment rights and those of other academics, lawyers, and human rights advocates by punishing our provision of legal and technical advice to the court. We can no longer share our human rights expertise, provide evidence of human rights atrocities to the court, or represent victims in proceedings before the court. 

I had hoped that the Biden administration would quickly rescind the executive order. After all, the administration has promised that “America is back” and ready to work closely with its allies to meet shared challenges. The ICC is a critical part of the international legal order — the 123 states parties to the court include many close allies of the United States. Unfortunately, although the Biden administration has rejoined the Paris Agreement, the World Health Organization, and the U.N. Human Rights Council, it has not yet rescinded Trump’s order and my co-plaintiffs and I continue to experience harm. Last night, we asked the court in our case to issue a preliminary injunction against the effects of the sanctions regime so our constitutional rights are protected while our lawsuit is pending. We must be allowed to continue our work to support justice for victims of atrocity crimes.

The ICC was created in 1998 to investigate and prosecute genocide, war crimes, and crimes against humanity when national systems fail to, or are incapable of doing so. The court began operating in 2002, filling a critical void in enforcement of international human rights and establishing a path to justice for victims of grave human rights violations when national legal systems have failed them. It is the direct successor of the Nuremberg Tribunal, which the U.S. and its allies established after World War II to try members of the Nazi regime for the atrocities of that war, including the Holocaust. Its establishment is a tribute to American ideals and commitments to justice and the rule of law.

Before the Trump administration’s order, I worked closely with Bensouda and her staff by providing pro bono legal advice and conducting trainings for the Office of the Prosecutor (OTP). Because of the order, I am no longer free to do this work. I have also been unable to contribute to important conversations about the ICC, including on recent judgments for fear of punishment. My students have paid the price as well; I had to cancel one of my annual research seminars in which students would have conducted ICC-related legal research in support of my work for the OTP. 

The work of my co-plaintiff K. Alexa Koenig was also abruptly stopped by the executive order. Koenig specializes in the use of emerging technologies to help map and document human rights abuses and mass atrocities in conflict zones. With her law students, she regularly worked with OTP staff, consulting on how scientific and technological evidence and tools might be employed to aid the office’s work. Koenig’s work resulted in the creation of a Technology Advisory Board at the OTP. All of this work — including that of students and other human rights lawyers who collaborated with her — is now on hold.

My co-plaintiff Naomi Roht-Arriaza, who is also a law professor in our suit, was also forced to abandon her critical research and advocacy. Professor Roht-Arriaza has worked alongside Latin American civil society groups investigating the role of “grand corruption” — corruption occurring at the highest levels of government — in human rights atrocities. Her pioneering work on grand corruption shows, for example, patterns of murders tied to illicit mining and natural resource extraction operations in Venezuela. Prior to Trump’s executive order, she was meeting with OTP officials and urging them to expand the scope of their investigation into Venezuela to incorporate the issue of grand corruption. In the face of civil and criminal penalties under the U.S. sanctions order, Professor Roht-Arriaza had to cease all communication and engagement with the ICC.

The executive order has also interrupted crucial efforts to bring relief to survivors and victims of U.S. human rights violations. Steven Watt, a senior staff attorney with the ACLU’s Human Rights Program and the final named plaintiff, represents six survivors and victims of forced disappearance, torture, and other war crimes and crimes against humanity committed by U.S. military and CIA personnel in Afghanistan. The ACLU sought justice on behalf of these clients in U.S. courts, but the U.S. government intervened to have all but one of the cases dismissed. Until the sanctions regime stopped him, Watt was providing documented evidence of torture to Bensouda’s office to support its investigation in Afghanistan. He had also applied to represent his clients as official victims in the ICC proceedings, but can no longer proceed. For these six men and hundreds more survivors and victims of U.S. war crimes and crimes against humanity in Afghanistan, the ICC is their last hope for accountability. The sanctions regime extinguishes that hope.

As it stands, the regime bars me and my co-plaintiffs, under threat of severe civil and criminal penalties, from engaging in activity clearly protected by the First Amendment. The sanctions regime has not only chilled our constitutionally protected speech, but also that of many other human rights advocates, lawyers, and others whose work supports the ICC’s pursuit of justice.

One federal court has already ruled, in a separate lawsuit filed by the Open Society Justice Initiative (OSJI), that the Trump sanctions regime punishes those who speak directly in support of the OTP and its work. That ruling temporarily blocked the U.S government from enforcing its ICC sanctions regime against OSJI and four academics and human rights lawyers. Our lawsuit seeks to invalidate the executive order and block its enforcement against any individual seeking to assist the ICC.

President Trump’s unprecedented executive order harms international and U.S. efforts to provide accountability for gross human rights violations. It is actively preventing us from providing our knowledge and expertise to our students, colleagues, and the American public more broadly. The Biden administration should rescind the executive order immediately and demonstrate to the world that America really is back and ready to stand up for the rule of law and human rights. Our work — and the work of so many others who are supporting the pursuit of justice for human rights atrocities — depends on it.