Defending the Constitution
The Houston chapter carried a heavy caseload this past year
„by Carol Nelkin.
How often have you heard someone say, "Oh, sure, I know all about the ACLU-
They're the ones who defend the Nazis," or "They're the ones who want to protect criminals by turning the prisons into country clubs and doing away with the
death penalty," or "The ACLU, aren't they the ones who take the prayers out of
the schools and keep pornography on the newstands?"
Statements of this nature never cease to make me cringe, not only because they
imply a disagreement with the substantive issues the ACLU is involved in, but perhaps even more because they show such an incredible misunderstanding of what the
ACLU is all about.
Why is it that the image of the ACLU is so amorphous that many view us as the
most radical of radical groups and others (frequently our friends) view us as the
most moderate of mainstream movements?
I believe that at least part of the reason the ACLU is viewed as it is lies in the
fact that our society has become a single issue society. Even within the membership of the ACLU there are many people who are interested in only one of our
various projects-whether it be prisoners' rights, women's rights, gay rights, voting
rights or any one of the numerous issues supported and defended by the ACLU.
Please don't misunderstand what I am saying. To those who work for and cont-
tribute to the ACLU because we are involved in their favorite issue, we are pleased
with their participation in the ACLU. We could not exist without their support
and we are most appreciative of it. I am simply trying to stress that the ACLU's
single issue-the preservation of the Constitution-is a multifaceted, complex issue
which is not to be confused with its myriad parts.
The preservation of the Bill of Rights of the United States Constitution is, in my
opinion, a most laudable and noble goal and, if one is to have a single issue to
pursue, ours is one which I should think would be shared by a much larger segment
of the populace than is reflected by the membership rosters of the ACLU.
However, it is certainly no secret that, just as we have members who join us be
cause of interest in a single issue, we have in the past lost many of our members due
to their disagreement with a position taken by the ACLU on a particular issue. I
emphasize that the ACLU must not be viewed on a case by case, issue by issue
The ACLU is voting rights and gay rights and women's rights and prisoners'
rights and free speech rights and privacy rights and religious freedom rights. We do
defend Nazis and murderers, pornographers and other controversial people. But
what we really do is defend the Constitution of the United States. To my knowledge we are the only major national organization which has such a goal as its primary purpose for existence.
To the extent we have not emphasized our primary purpose we have failed in
one important aspect of our work-that is to educate whenever and whomever we
can about the importance of the preservation of the Constitution to the freedom
and dignity of humanity.
One has only to pick up a newspaper and read about the events in Iran to appreciate the meaning of freedom of speech, freedom of religion and due process
of law. It is the Constitution which gives us these rights and it is the ACLU which
insures their continuity.
Dassia Porper, Matthew Horowitz and Joan Glantz, our hardworking board of
directors, our distinguished past chairpersons, our outstanding cooperating attorneys and volunteers, and all our members and supporters, understood how important constitutional principles are and have worked so diligently to see them protected. The ACLU's past achievements are things we can all be proud of. In tribute
to all those who have worked so tirelessly, we will not be divided by single issues
nor will we fashion our goals so narrowly as to lose sight of the overall purposes of
the ACLU and the awesome responsibilities inherent in our goal.
Carol Nelkin is chair of the Houston Chapter of the ACLU.
During the last year, the Houston
American Civil Liberties Union has recorded a number of significant sucesses.
Here is a summary of recent developments in some of the major cases on the
litigation docket of the Houston Chapter
of the ACLU, compiled by Matt Horowitz
and John Pollock.
An Eye for an Eye
Right now four people are being kept
alive. The State of Texas pays attorney
fees for criminal defendants only through
the first appeal. Without the ACLU, persons sentenced to die would be on their
own through the subsequent state and
federal judicial reviews they are entitled
The United States Supreme Court dismissed the ACLU's petition for review
earlier this year in two cases:
State v. Hughes—A May execution date
was set. Cooperating attorneys Bill
Yahner, Gerald Birnberg and Michael
Maness won a stay in federal court, after
an unsuccessful try in state court.
State v. Felder—Cooperating attorneys
Gerald Birnberg and Michael Maness intend to file further petitions, with the
assistance of the New York law firm of
Paul, Weiss, Rifkind, Wharton, and
The ACLU's petition for review is
pending before the United States Supreme Court in the case of State v. Bell.
Cooperating attorney is Rick Urban.
Cooperating attorney Andrew Griffith
is preparing a petition to the United'
States Supreme Court in the case of State
You Ain't Goin' Nowhere
The Houston Police Department still
detains arrestees at the city jail for substantial periods of time without filing
criminal charges or allowing access to
bail. During these delays, arrestees may
be subjected to physical brutality and
third degree investigatory tactics. In the
class action, Sanders v. City of Houston,
cooperating attorneys Marty Levy and
James Oitzinger challenge these policies,
and ask that HPD be ordered to adopt
more prompt, efficient administrative
practices in booking and charging.
Take It All Off
Arrested for driving 60 miles per hour
in a 50-miles-per-hour zone, the ACLU's
client was arrested and taken to the city
jail, where she was subjected to a strip
search. Herrera v. City of Houston challenges the power of police officers to
make custodial arrests instead of issuing
citations to persons charged with routine
traffic violations. This suit also challenges
the constitutionality of strip searching
persons arrested for minor offenses.
Take It All Off, II
The mother of a pretrial detainee at
the Brazos County Jail was required to
submit to a strip search when she arrived
at the jail on visiting day—even though
the jail does not permit contact visits.
Cooperating attorney Annie Garcy asked
a federal court in Harris v. Yeager to vindicate the rights of prisoners and their
visitors to be free of unreasonable searches
Wha . . . ?
Can you believe Texas law permits
persons to be held in jail indefinitely
without being accused of any criminal
offense? Jailed as a material witness to a
criminal act after a judge decided she
probably would not appear to testify at
the trial of the accused, the ACLU's
client remained in jail for more than six
The judge set bond at $50,000 but reduced the amount to $5,000 when the
woman said she could only make a bond
v The judge also suggested that she seek
a writ of habeas corpus—then denied the
Mahorn v. Heard challenges the constitutionality of the law permitting incarceration of persons solely because they
are material witnesses in criminal cases.
Pay or Stay
The city jail and municipal prison farm
continue to be used as debtors' prisons
for the detention of persons solely
because they are unable to pay fines. In
Morgan v. City of Houston, cooperating
attorneys Steve Vaughn and Pat Wiseman
are also challenging the inadequacy of
physical facilities and other abuses.
Pay or Stay, II
By a bit of reasoning that somehow
bypasses the Sixth Amendment, some
county and district court judges trying
criminal cases in Harris County have concluded that a criminal defendant who can
post bond is necessarily able to hire a lawyer and is therefore ineligible for appointed counsel. In other words, if you don't
hire your own lawyer, you have to stay in
jail pending your trial. As a result, many
indigent defendants panic and involuntarily plead guilty rather than face pretrial
incarceration. Cooperating attorneys
Judy Doran and Stuart Nelkin have challenged these practices in a federal court
class action suit styled Maxwell v. McKay.
But Can You Type?
The Texas Department of Corrections
continues to cling to 19th century gender
/role concepts in its "rehabilitation" programs. Male inmates are offered training
in highly marketable skills, including
automobile repair, paint and body work,
welding, meat cutting, TV/radio repair,
printing, and air conditioning repair.
Women are generally offered training in
floriculture, horticulture, cosmetology,
home economics, and secretarial science
-skills which, for the most part, promise
far lower earning potential. Male inmates
are offered four-year college degree programs; female inmates can seek only a
two-year Associate degree. Males are allowed to participate in work furlough
programs; women are barred. Cooperating
attorneys Lamar Hankins and Susan Perkins hope to correct these disparities in
Quintan v. Estelle.