My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
 
Why isn’t it?
 
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
 
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
 
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
 
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
 
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
 
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
 
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
 
The system needs more of that change, and it needs it now.
 
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
 
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
 
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.

In recent months, we have witnessed a historic wave of Black Lives Matter protests for racial justice — examining the racism in the criminal legal system and every other aspect of society, from education, to healthcare, to housing. A number of corporate leaders in the United States, Canada, and around the world have recognized the growing public anger at systemic racism and have made historic statements committing to change. We commend these statements — and also recognize how important it is that these words are backed up by action.
 
Take, for instance, Prem Watsa. Watsa is the CEO and chairman of Fairfax Financial and is often referred to as “Canada’s Warren Buffett.” Earlier this month, he joined as a co-chair of the “Canadian Council of Business Leaders Against Anti-Black Systemic Racism” and issued a statement that: “[t]he time for passing the buck is over. As business leaders in Canada, we have a responsibility to not only recognize that anti-Black systemic racism exists in this country but also take meaningful steps to end it.”
 
On Monday, Watsa spoke at the BlackNorth Initiative Summit where he and other Canadian business leaders committed to take substantive actions to end anti-Black systemic racism. Watsa’s leadership on this issue is important and should be celebrated. It also calls into question the business practices of Fairfax Financial, which is by far the largest insurer of the for-profit bail industry in the U.S.
 
The ACLU and Color Of Change have called on Watsa to immediately exit the predatory bail insurance industry in the United States, which disproportionately impacts communities of color, prolonging incarceration for those who cannot afford bail, and trapping others in cycles of debt.
 
Every day, hundreds of thousands of people sit trapped behind bars in the United States — innocent in the eyes of the law, yet incarcerated because they cannot afford bail. There is no path to ending mass incarceration in the United States without ending this current system of wealth-based, pretrial detention.
 
The U.S. is one of just two countries in the world where a for-profit bail system allows private corporations to be the arbiter of freedom, basing decisions on who to set free and who to detain on the ability to pay. This criminalizes poverty and reminds us that our “justice” system is more often designed with profit in mind. A 2017 report unmasked a small group of insurance companies — of which Fairfax Financial is by far the largest — that sit behind the thousands of storefront bail bond agencies, taking a cut of each bond.
 
But the tide is shifting. The recent divestment of three of the four largest companies backing the for-profit bail industry — Endeavour Capital, Tokio Marine, and Randall & Quilter — suggests that companies are starting to realize it is financially and politically untenable to stake their profits on the exploitation of people by the criminal legal system.
 
Fairfax continues to hold out, expanding its bail presence, and fighting reforms, even as the industry shrinks and becomes rightfully marginalized. The Canadian insurance conglomerate has become the largest backer of bail bonds in the U.S. Not only has it refused to divest from the predatory industry, it has expanded, stepping in to take the place of others that have made the responsible decision to exit. The website of Fairfax Financial’s US subsidiary features a “Fight Bail Reform” page, and Fairfax has spent hundreds of thousands of dollars to fight bail reform.
 
It’s companies like Fairfax Financial that are keeping the bail bonds industry alive in the United States, despite the fact that for-profit bail is not even legal in Canada and behavior that mimics it is met with harsh punishment. In Canada “selling bail bonds can earn you two years in prison on a charge equivalent to bribing a juror” and is considered an obstruction of justice. We’re calling on Fairfax Financial and its founder Prem Watsa to stop participating in this shrinking pariah of an industry.
 
The mass exodus from bail by most major financial actors comes after the industry has been repeatedly exposed for the ways it exploits Black and Brown communities, props up injustice, and often relies upon extortion, conspiracy, and other illegal practices in order to conduct its business. It comes after bail bond advertising was banned from Google and Facebook due to the industry’s role exploiting desperate families. And it comes as states and counties across the United States —  with the help of legislators, courts, and progressive prosecutors — are dramatically reducing or ending the use of money bail altogether. 
 
As important as Fairfax is to the U.S. bail industry, bail insurance represents a tiny part — 0.16 percent — of its overall insurance business. It could divest easily and quickly. Doing so would put Prem Watsa’s money where his mouth is.
 
We applaud Watsa’s commitment to taking meaningful action to end anti-Black systemic racism. He should begin by ensuring that his company halts its efforts to fight bail reform and exits the predatory bail insurance industry.

While North Dakota Republican leaders have apologized for the discriminatory anti- LGBTQ+ and Two Spirit statements that more than 900 delegates approved as part of the state party’s official policy platform this week, expressing their regret isn’t enough for the state’s LGBTQ+ and Two Spirit community. 

The ACLU of North Dakota joins LGBTQ+ and Two Spirit organizations across the state in condemning the Republican party’s official platform and calls on Republican leaders to immediately rescind the hateful and discriminatory statements from the party’s platform and work for statewide change that will ensure LGBTQ+ and Two Spirit equality. 

While LGBTQ+ and Two Spirit rights have made some giant leaps forward, the fight for equality is not over. Discrimination is still the law of the land in many states – especially, it seems, in North Dakota. It’s not enough for Republican leaders to do the bare minimum and express their regret about their party platform – especially after it’s already been passed. Why didn’t these leaders speak out sooner? North Dakota’s elected leaders need to strike out in a new direction and strongly assert the right of LGBTQ+ and Two Spirit people to be treated as equal citizens, deserving of the full and fair protections of our laws.

Additionally, the ACLU is calling on North Dakota legislators to take active steps in the 2021 session to make North Dakota a safer place for the more than 16,000 LGBTQ+ and Two Spirit people living in the state. 

Some legislators have tried to pass comprehensive anti-discrimination bills session after session only for them to go nowhere. It’s time for the Republican party leaders who have expressed their regret about their party platform to work across the aisle to ensure all North Dakotans to be treated equally and live free of discrimination.

It’s time for North Dakota voters to advocate for change. 

LGBTQ+ and Two Spirit people and allies make up a large portion of the voting bloc in North Dakota. Their perspective, concerns and opinions should be represented at the ballot box and on the legislative floor in Bismarck. 

Elected officials may hold the cards, but voters hold the power. Every eligible LGBTQ+ and Two Spirit voter must make their voices heard on issues that matter most to them to create a political atmosphere that supports their right to thrive in North Dakota by casting their ballot on Nov. 3 for candidates who will rise and defend our community.