Civil Liberties and Justice - National Association of ...

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Civil Liberties and Justice

BACKGROUND

The NASW Code of Ethics (NASW, 1996) requires social workers to make the interests of clients their primary responsibility. It states not only that social workers "should not practice, condone, facilitate or collaborate with any form of discrimination" (p. 5) but that they "should not condone or engage in any dual or multiple relationships with clients or former clients in which there is a risk of exploitation of or potential harm to the client" (p. 5). In the final section, "The Social Worker's Ethical Responsibility to Society," the Code goes beyond describing proscriptive behavior and establishes an affirmative obligation for social workers to take action "to prevent and eliminate discrimination . . . to ensure that all people have access to resources, services, and opportunities which they require . . . to expand choice and opportunity for all people, with special regard for disadvantaged or oppressed groups and people . . . [and to] advocate changes in policy and legislation to improve social conditions and to promote social justice."

The Code, therefore, regards the attainment of the individual well-being of clients and the achievement of the common good as complementary pursuits. Under the guise of promoting traditional values, however, ascendant political and religious leaders have undermined the preservation of individual liberties and set back long-standing societal efforts to broaden the application of social justice principles, particularly for oppressed and disadvantaged groups, which are the focus of social work's historical concern. These setbacks have occurred in five vital areas: (1) the criminal justice and penal systems; (2) access to justice; (3) restrictions on First Amendment rights, particularly freedom of expression, and on the separation of church and state; (4) the

due process and equal protection clauses of the Fourteenth Amendment; and (5) the right to privacy and its effects on social services.

ISSUE STATEMENT

Throughout the 1980s and early 1990s, the fragile gains in civil liberties and social justice obtained by the social movements of the 1950s, 1960s, and 1970s were steadily eroded by executive order, legislation, voter referenda, and judicial decisions. In an era in which the triumph of freedom and democracy has been hailed by U.S. political leaders, it is ironic that in the United States the legal rights of women, people of color, gay and lesbian people, and people with low incomes have been abrogated by federal cutback policies and abridged by administrative neglect at all levels of government. Each of these groups has been increasingly stigmatized as a means to distract attention from the socioeconomic issues that afflict the entire society. Recently, under the guise of promoting family values, concerted political and ideological attacks have been targeted at the changing roles of women in U.S. society, the growing acceptance of alternative sexual lifestyles, and the consequent evolution of increasingly varied family constellations in the United States.

Simultaneously the civil liberties of many constituent populations, including people with AIDS or HIV-related illness, deinstitutionalized mental patients, welfare recipients, juvenile and adult offenders, union members, immigrants and refugees, and substance abusers, as well as social workers who work with them, have been denied or severely limited by changes in government policy or cutbacks in government programs. For example, federal gag rules not only

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denied women their reproductive rights, but also denied health and human services workers their right of free speech. Restrictions on the confidentiality of case records similarly affect the well-being of clients and the professional integrity of social workers.

Furthermore, the assault on civil liberties has also involved growing demands for the censorship of books and other forms of cultural expression; restrictions on the rights of people to bring suit against the government; increased incidents of police brutality, particularly in communities of color; punishment of whistle-blowers who expose government misconduct; and redefinition of many individual and social problems in criminal terms. These developments create a fertile soil for the spread of dangerous trends already visible on the nation's cultural landscape, such as increases in racially or religiously motivated hate crimes, crimes against women, and restrictions on people's right to privacy. If social workers, who have long championed the cause of individual and social rights, and social workers' allies do not take action to reverse these trends, the freedoms social workers have taken for granted for so long may be seriously curtailed in the decade ahead.

The Criminal Justice System

Social workers share the increasing concern of citizens over the rise in crime, particularly violent crime, in the United States. The increase in attacks on social workers in the workplace has underscored the dangers that social workers face in their daily work. Nevertheless, the focus of politicians and the media on crime and the criminalization of many activities has masked the social problems that lie behind the growing crime rate. However, the emphasis on public fear has served as a rationale for diverting resources from programs that address those problems toward the construction of prisons and the expansion of police power. They also have provided the justification for the infringement of defendants' rights and the erosion of many of the protections guaranteed in the Bill of Rights. The beating of Rodney King by Los Angeles police officers was a highly visual example of increasing police violence in communities of color.

No-Knock Entry. The expanded use of noknock entry allows police to break into homes without warrants if they suspect that needed evidence is on the premises. This tactic, justified as part of the necessary arsenal of police in the war on drugs, encourages police to consider too many situations as "emergencies" and constitutes a clear invitation to violate the constitutional prohibition of illegal searches and seizures. Police and prosecutors have used similar arguments to chip away at defendants' rights established by the Warren Court, most notably the Miranda decision (Miranda v. Arizona, 1966), which protects an individual accused of a crime from self-incrimination and guarantees all defendants the right to legal counsel before interrogation.

Preventive Detention. Preventive detention is a procedure for incarcerating allegedly dangerous defendants between their arrest and trial. Those who support such procedures point out that many crimes of violence are perpetrated by people who are out on bail and awaiting trial. The growing use of this procedure, however, violates the historic principle of Anglo-American common law that an individual is considered innocent until proven guilty. Preventive detention places accused people and their families in jeopardy in that it may prevent them from locating witnesses and preparing their cases. The procedure deprives families of the accused of economic support and unfairly stigmatizes them before they have been convicted by a jury of their peers. Low-income people and people of color are more likely to be affected by such intimidating measures.

Proposed Federal Legislation. Federal reform legislation currently under consideration would have devastating effects on individual rights, particularly on the most vulnerable segments of the population. The proposed legislation would extend the death penalty to some 51 offenses, including those that do not involve either murder or unintentional deaths. It would restrict access to the federal courts by all but eliminating the opportunity to review a state prisoner's claim that his or her constitutional rights had been violated. (This proposal would virtually abolish the principle of habeas corpus.) It would impose a new set of harsh

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mandatory minimum sentences for drug and gun offenses. It would require expensive drug testing of all people convicted of federal crimes before they are released on probation, parole, or supervised release, regardless of whether drug use was a factor in their commission of a crime. Furthermore, the proposed legislation would prohibit the use of research data to prove the prevalence of racial discrimination in capital cases, although data demonstrate that the racial background of defendants, victims, and juries significantly influences the outcome of trials and the severity of sentences (U.S. General Accounting Office, 1991).

Although the legislative proposals are still pending, the effects of changes already made in the criminal justice system have been profound. The United States now has the highest percentage of its population incarcerated of any nation in the world. Currently more than 2,500 people are on death row in U.S. prisons (NAACP Legal Defense Fund, 1992). A higher percentage of defendants are sent to prison for longer terms, often for minor, first offenses, because of mandatory sentencing requirements (U.S. Department of Justice, 1992). The increased sentencing rates have produced significant overcrowding in jails and prisons, itself a violation of prisoners' rights, as well as the diversion of resources from social programs that could prevent crime and recidivism toward prison construction.

African Americans compose a disproportionate number of criminal defendants and inhabitants of death row (Children's Defense Fund, 1993; National Center on Institutions and Alternatives, 1993). More than 25 percent of African American men aged 18 to 29 years are in prison, jail, on probation, or on parole. More African American men are in prison than in college, and death from homicide, which is six times more frequent among African American men, is the number one cause of death for African American men between the ages of 15 and 44 years. African American youths are also overly represented in the juvenile court system. The juvenile court traditions of rehabilitation and diversion, especially for first offenders, are rapidly being replaced by emphasis on punishments of increasing severity.

Access to Justice

Although the Fourteenth Amendment guarantees all members of society equal protection under the law and due process, actions by executive and judicial branches of government have severely diminished these constitutional guarantees, especially for low-income, low-power groups. Three developments illustrate the impact of such decisions at the executive level.

First, the attempts by the Reagan and Bush administrations to eliminate Legal Aid Services for the poor and the subsequent underfunding of this program resulted in a severe lack of lawyers for low-income defendants (a violation of the Sixth Amendment) and the inability of low-income plaintiffs to file suits for damages when the program literally ran out of money (a possible violation of the Fourteenth Amendment). At the same time federal budgets increased the resources provided to prosecutors, further tipping the balance of power in the court system. These events combined with recently imposed restrictions on class action suits have severely curtailed the ability of low-income people and low-power groups to seek redress for civil grievances.

Second, Presidents Reagan and Bush named a majority of members to the current Supreme Court and nearly two-thirds of all current federal judges--a majority in nine of the 13 appellate circuits, where most decisions affecting federal laws and public policies are made. Pending appointments would create a majority in all 13 circuits. These courts bear the major responsibility for the increase in executions in the United States. Even when Congress "acts to undo court rulings--as it did with the hard-fought Civil Rights Act of 1991--those new laws return to the federal courts to be interpreted by the same judges whose views prompted the laws in the first place" (Mauro, 1992, p. 7). Because only two of the Reagan-Bush appointments to appeals courts are African Americans, and an ideological litmus test was applied to those nominated, it is not surprising that "the losers in this ideological battle are those who most need the protection of the courts: minorities, criminal defendants, the downtrodden" (Mauro, 1992, p. 10).

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Third, in 1983, the Reagan administration issued Rule 11, which asserted that individuals or groups bringing "frivolous" suits against the government could be fined. The aim of this regulation was to discourage lawsuits trying to stop illegal actions by the government. Recently this rule has been applied in an attempt to stop an action filed by the Center for Constitutional Rights on behalf of Haitian refugees seeking political asylum, whose efforts to obtain legal counsel were blocked by the Justice Department.

In the 1980s numerous judicial decisions also restricted the access of individuals and groups to the legal system to seek a redress for specific grievances. In the Patterson case (Patterson v. McLean Credit Union, 1989), for example, the Supreme Court severely limited the use of the Civil Rights Act of 1966 to remedy workplace discrimination in private businesses. After this decision more than 300 pending suits were dismissed and a number of judgments already won were reversed. In Los Angeles v. Lyons (1983), the Court ruled that the plaintiff could not sue for an injunction, although he suffered permanent physical damage because of the use of illegal choke holds by police officers, on the grounds that the plaintiff could not prove "that he was likely to be the victim of an illegal choke hold in the future" (Mauro, 1992, p. 11). Since then, virtually every circuit court of appeals has adopted the reasoning used in Lyons to decline to take actions against allegations of police brutality. Furthermore, in Supreme Court cases, such as City of Richmond v. Croson (1989) and numerous lower court cases subsequent to this decision, the courts have eroded the principle of affirmative action as it has been applied to a board range of programs, including the awarding of government contracts and Federal Communications Commission licenses, the hiring and promotion policies of corporations, and the admissions and financial aid policies of colleges and universities.

Restrictions on First Amendment Rights

The test of civil liberties is not how people treat others who express only majority opinions; it is how we treat what Justice Oliver Wendell

Holmes called the "opinions we loathe" (cited in Glasser, 1991, p. 12). Dissent is a critical part of the process of democratic dialogue and an integral component of social change. The right to dissent, embodied most clearly in the First Amendment of the Constitution, is perhaps the most precious of civil liberties. When those in power refuse to listen to dissenters or refuse to allow dissenting opinions and values to be expressed, people's faith in the integrity of the political system is undermined. More than just the freedom to dissent is at issue. The system itself will be in jeopardy unless it is able continually to adapt to new ideas and new imperatives. In the final analysis the preservation of liberties depends on the willingness of people to put those liberties into practice. In the words of Judge Learned Hand, "When liberty dies in the hearts of men and women, no constitution, no court can save it" (cited in Glasser, 1991, p. 12).

Yet the threats to these precious liberties are greater now than at any time in the past half century. These threats have taken several distinct forms on several distinct fronts:

I repression of political dissent by policy, particularly during the demonstrations that accompanied the Gulf War and that erupted in the aftermath of the verdict in the Rodney King trial.

I attempts to ban acts of symbolic protest, such as flag burning, student speech, and expressions in public forums, through legislation, judicial ruling, or constitutional amendment.

I restrictions on artistic freedom, for example through the revocation of grants to artists from the National Endowment for the Arts based on new "decency" standards; attempts to legislate the censorship of lyrics of popular songs, especially by rap groups, on the grounds that they are "obscene" or "inflammatory"; and the closure of museum exhibits because of allegations that they offended local standards of morality.

I increased incidents of book banning by local school boards and library committees.

I attacks on labor unions and governmentimposed restrictions on workers' rights to organize and to strike.

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I laws restricting panhandling by indigent and homeless individuals.

I punishment of whistle-blowers in institutions as varied as the Pentagon and local departments of social services.

I erosion of the constitutional separation of church and state, for example through the government's support of tax breaks for private sectarian colleges, promotion of tax credits for private school tuition, support for religious groups seeking to use public schools for meetings, and promotion of official school-sponsored prayer.

I restrictions on free speech in the area of women's reproductive rights, most notably through the institution of a gag rule, upheld by the Supreme Court in Rust v. Sullivan (1991). This executive order forbade health and human services professionals in any clinic that receives federal funds "to discuss or offer information about abortion, or to indicate where such information might be available, even for women who specifically ask to discuss abortion and have no other access to medical advice" (Dworkin, 1991).

Fourteenth Amendment Rights

The most significant of the civil rights amendments, the Fourteenth Amendment, states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In the 1950s and 1960s, this amendment was used as legal justification for the expansion of civil rights and liberties, particularly to people of color, women, and low-income people. In the 1980s and early 1990s, however, the gains fostered by the amendment were diminished by executive and judicial actions at the federal and state levels. These actions include

I failure by states and localities to comply with court-ordered desegregation plans

I violations of the civil rights of recent immigrants and refugees by local police departments, the Immigration and Naturalization Service, and the Internal Revenue Service

I unwillingness of courts to protect the rights of former mental patients who have been denied essential services because of the underfunding of community mental health programs

I failure of the Justice Department to enforce the provisions of the Civil Rights Act and dilution of its original intention by assertions that plaintiffs must prove the intention to discriminate in instances of demonstrated employment or housing bias

I decisions by state and federal courts that reject lawsuits attempting to overturn existing patterns of school funding, which place lowincome, largely minority districts at a considerable resource disadvantage

I repeal of local gay and lesbian rights ordinances and the introduction of anti?gay and lesbian referenda in several states.

The Right to Privacy

Because the 1965 Griswold v. Connecticut decision upheld the right of adults to purchase contraceptives, the right to a "zone of privacy" has been regarded as implicitly guaranteed by the First, Fourth, Ninth, and Fourteenth Amendments to the Constitution. This guarantee, which served as the foundation for the expansion of women's reproductive rights, the rights of workers, and the rights of social services clients, has been steadily attacked by policy initiatives and judicial decisions that upheld the initiatives.

I Reproductive rights have been curtailed so sharply by state legislatures and the Supreme Court--in the Webster (Webster v. Reproductive Health Services, 1989) and Casey cases, for example--that the rights guaranteed to women in Roe v. Wade (1973) are in serious jeopardy. Growing numbers of legislative initiatives have attempted to impose "fetal murder" charges on women who obtain abortions and on their physicians. There have been proposals to deny women on probation the right to become pregnant. In addition, many recent welfare "reforms" in effect deny the right of women to have children when they desire through sanctions imposed by the state in the provision of benefits.

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I Corporate and government surveillance of workers has increased markedly in the past decade under the guise of promoting greater worker efficiency and productivity and rooting out drug and alcohol abuse. The imposition of electronic and computer surveillance and random drug tests are but a few examples of this practice, which has created a climate of fear and suspicion in many organizations. Pre-employment health screenings and background checks of job seekers have been used to deny employment to applicants and health benefits to employees.

I In Wisconsin and other states, welfare clients have been subject to random home visits to determine whether violations of eligibility requirements have occurred. Such checks are not only demeaning to clients, but they also jeopardize the social worker?client relationship and the integrity of social workers required to implement them.

I The growing use of computer networks to store and share information about clients threatens the confidentiality of these records, particularly when police authorities and the courts demand access to them. On a broader scale the development of computerized data banks, which store information on virtually all people in the United States, has already had serious consequences for privacy rights and civil liberties. Errors, inaccuracies, and misinterpretation or exaggeration of youthful activity and lawful dissent from the accepted views of the majority could distort facts and have permanent consequences for individuals involved.

I The use of mandatory HIV testing as a prerequisite to obtain essential services has endangered the well-being of many clients and subjected many people to discrimination in other arenas, such as employment and housing.

POLICY STATEMENT

In its historic role as an agent of social change, the social work profession has achieved its greatest successes when it has regarded change in a broad perspective, linking the improvements sought through social and economic reforms with the larger cultural, legal, political, and ideological dimensions of the issues it has addressed.

NASW calls on the social work profession to reaffirm its long-standing commitment to individual liberties and social justice. NASW considers the protection of individual rights and the promotion of social justice essential to the preservation of our collective well-being as a society. NASW urges social workers and other policy makers to focus on the following areas.

Criminal Justice Reform

Abolition of the Death Penalty. There is no evidence that the death penalty serves as a deterrent to violent crime. In fact the recent increase in homicides in the United States has occurred despite the reinstitution of capital punishment in most states. The abolition of the death penalty would bring the United States' penal system in line with those of other modern industrialized societies. As it is currently used, the death penalty violates the constitutional prohibition against cruel and unusual punishment. In addition, the unequal application of the death penalty deprives many people of color and low-income people of the Fourteenth Amendment's guarantee of "equal protection under the law."

Protection of the Rights of Criminal Defendants. Although legitimate police activities are justified to protect human life and property, recent expansion of police and prosecutorial powers seriously infringes on the rights of the accused and violates the basic common law principle of presumed innocence. NASW opposes all legislation that would permit no-knock entry by police into homes without a proper warrant, the use of preventive detention by the courts, and the steady erosion of Miranda rights by the judiciary. NASW also opposes the use of mandatory sentencing requirements, particularly for first-time offenders, on the grounds that it substitutes an emphasis on punishment for one on rehabilitation within the criminal justice system and that it virtually eliminates judicial discretion to factor in environmental circumstances in determining the severity of sentences.

Protection against Self-Incrimination. The Fifth Amendment to the Constitution grants individuals protection from self-incrimination.

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People cannot be forced to testify against themselves. In Grunewald v. United States (1957), the Supreme Court stated, "Recent examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men" [emphasis added].

Currently, police and courts at all levels of government abuse this privilege. Grand juries use subpoenas to force journalists to divulge confidential sources; social workers are pressured to reveal confidential information about their clients; and mandatory drug and HIV testing is imposed on employees, prospective employees, and criminal defendants for actions with no direct relation either to drug abuse or HIV status. The principle of habeas corpus is under direct attack by proposed federal policy. The use of electronic and computer surveillance has expanded considerably, and computer surveillance in particular has the potential for virtually infinite intrusion into the lives of innocent people.

NASW holds that these actions constitute a misuse of government authority and should not be permitted. Although protection against crime is a legitimate police function, more can be done to fight crime by devoting greater resources to the elimination of its causes than by repressive measures that jeopardize the well-being of innocent people.

Civilian Review of Police Activity. Because the increasing number of incidents of abuse of police authority creates greater distrust of government institutions, particularly in communities of color, and threatens to generate growing civil unrest, closer scrutiny of police activities is needed. NASW supports the establishment of civilian review boards to monitor police conduct and to investigate allegations of excessive use of force by police officers.

Access to Justice

Restoration of Legal Assistance Funds. Because the constitutional right to legal counsel is one of the cornerstones of the U.S. system of justice, low-income defendants and plaintiffs in civil actions must be provided with adequate legal assistance. NASW supports the restora-

tion of full funding for legal aid services and opposes any attempts by the federal government to eviscerate this vital program any further.

Judicial Appointments. Because the courts, particularly at the federal level, constitute the last resort of protection for the rights of the people, NASW supports the appointment of judges who are committed to the maintenance of civil liberties as guaranteed by the Constitution. NASW also supports the appointment of judges who reflect more accurately the demographic diversity of the United States, particularly in regard to people of color and women.

Due Process Issues. NASW opposes any executive or legislative initiatives that would restrict the rights of individuals to file class action suits, either against the government or corporations. NASW supports the unimpeded application of individuals' civil rights through the courts in such areas as sexual harassment, employment discrimination, and housing bias.

First Amendment Rights

The Right to Dissent. The right to dissent from prevailing opinions of the majority--in political and cultural arenas--is a fundamental principle of a democratic society. NASW supports the following four principles regarding political and cultural expression:

1. All individuals should exercise their right to dissent with responsibility and with respect for the opinions of others.

2. No individual should be denied funds from federal or state agencies, or access to services to which he or she would be otherwise entitled, on the basis of his or her participation in lawful protest and dissent.

3. No individual should be arrested for the lawful exercise of his or her First Amendment rights of free speech and free assembly. Individuals who are arrested in the course of infractions of ordinary law should be fully informed of their rights. Such individuals also have a right not to be subjected to undue force by the law enforcement officer or officers making the

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arrest. Pretrial treatment, trial, and sentencing should be the province of the judicial system, following the constitutional principle of due process.

4. Pending action on any charges, the status of individuals participating in any acts of dissent should not be altered, particularly in regard to employment, access to services, and other legal entitlements; nor should the work or eligibility status of individuals be suspended prior to the institution of formal charges.

Freedom of Expression. NASW opposes all executive, legislative, or judicial actions that restrict freedom of speech, assembly, or cultural expression. Specifically, NASW opposes attempts to limit artistic freedom through the withholding of government grants (for example, by the National Endowment of the Arts); the imposition of any form of censorship by local authorities in regard to museum exhibits, library holdings, or school reading lists; and any government restrictions on the rights of individuals or groups to protest policies or actions to which they are opposed.

Workers' Rights. The social work profession has long recognized the importance of the labor movement as an ally in its struggle for civil rights and social justice. NASW reaffirms its support for the right of workers to organize, to engage in collective bargaining to improve their working conditions, and to strike to draw attention to their grievances. NASW opposes any abrogation of these rights by administrative regulation, legislation, or judicial action. NASW also opposes the use of medical screenings to deny workers access to health benefits, the imposition of mandatory drug testing in the workplace, and the use of electronic or computer surveillance of employees to monitor job performance. Furthermore, NASW supports the courage of whistle-blowers in the public and private sectors and opposes the use of sanctions that discourage or punish such behavior.

Separation of Church and State. NASW strongly supports the constitutional principle of separation of church and state. NASW avers that the expression of religious beliefs is a per-

sonal and private matter that should be neither constrained nor promoted by the government in any way. Therefore NASW opposes the use of tax policy, administrative regulations, or the distribution of government funds to support organized religion in any manner.

Equal Protection under the Law

Events of the past decade have demonstrated that the existence of legislative or judicial rights does not guarantee their implementation by the executive branch of government, particularly when the resistance of that branch is abetted by the judiciary. NASW strongly supports the full implementation of existing civil rights legislation and its application to women, people of color, and gays and lesbians. NASW also strongly supports the expansion of these rights to include immigrants and refugees, people who are mentally ill--both inside and outside institutions--and recipients of public assistance and their families. NASW opposes all efforts to deny or retract these rights from any individuals or groups in the United States.

The Right to Privacy/Social Services and Civil Rights

The NASW Code of Ethics (NASW, 1996) emphasizes that social work's practices, as well as its goals, must include an affirmative obligation to offer protection against excesses of authority that violate the rights of people whom social workers serve. In many states, counties, and cities, the following practices, supported by law, official regulation, or bureaucratic imperatives, continue to curtail the civil liberties of those who are least able to resist them. In particular, NASW strongly supports the preservation of the constitutional right to privacy, especially in its application to health and human services settings, and strongly condemns the following:

I any attempts by the federal government to reimpose the gag rule and its affirmation by the Supreme Court in Rust v. Sullivan (1991).

I any efforts by state legislatures, Congress, the executive branch of the federal government, or the courts to restrict access to information about abortion, contraception, or family plan-

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