In civil liberties fight, never say never

It was the attorney for Clarence Aaron, a man whose triple life sentence on nonviolent drug charges was commuted by President Obama after he had served 20 years. Both prosecutors and judges had urged his release, but federal policies largely prevented it.

{mosads}McCurdy, the deputy director of the American Civil Liberties Union’s (ACLU) Washington legislative office, is able to list the names of others whose lawyers phoned her with similar results, when incarcerated individuals with prison terms many found excessive would be going home to their families.

While the ACLU has already positioned itself as a force against President Trump’s immigration policies, McCurdy is preparing for an uphill battle on criminal justice reform. She has been in tough battles before — including against the Obama administration — and is quick to remind young lawyers and interns not to become discouraged. 

“When somebody tells you no, that just means no for that particular day. Don’t get too caught up in your feelings and feel like that’s a rejection for life,” she says as part of her spiel. “That is just a rejection for that moment in time.”

McCurdy has spent a total of 13 years with the ACLU, broken up by a brief stint on Capitol Hill, when she was a counsel to the House Judiciary subcommittee on crime.

Now she has new challenges, as the 97-year-old organization has been butting heads with the Trump administration from its first day.

In the weekend following the president’s executive order banning individuals from seven Muslim-majority countries from coming to the United States, the ACLU received $24 million in online donations — roughly six times what it typically receives in a single year. Since the election, it has taken in nearly $80 million in donations and now has nearly 1.2 million members, double the number from before Trump’s victory.

The group was among the first to file lawsuits opposing the travel ban, which a federal judge put on hold earlier this month.

There is, however, a new front and a renewed purpose for McCurdy in the fight for criminal justice reform.

Advocates like her are disheartened by new Attorney General Jeff Sessions, a former Republican senator from Alabama, who has shown a reluctance to move forward with overhauls to the criminal justice system.

“One of the reasons we got as far as we did in the last Congress and with the last administration is because we had attorneys general who were supportive of reform, and that is key,” McCurdy says. “Not only were they supportive of legislative reform; they created policies or changed policies within the Department of Justice.”

“If you don’t have someone willing to rethink the way the system works, it could be a recipe for disaster,” she says.

Trump ran his presidential campaign, in part, promising more “law and order” for the country.

In Congress, Sessions has criticized sentencing reform legislation sponsored by Republicans as a “criminal leniency bill” and supported then-candidate Trump on his suggestion to re-implement random stop-and-frisk searches — a practice found unconstitutional in federal court — in cities such with high crime rates such as Chicago. 

Sessions disparaged Trump’s predecessor for granting so many clemencies  and suggested in his confirmation hearings that he would move away from the Obama administration’s efforts on policing reform.

He was, however, a lead GOP sponsor in the Senate of the Fair Sentencing Act in 2010, a piece of legislation on which McCurdy worked as chief counsel while on Capitol Hill. The legislation, which became law, reduced the disparity between offenses for crack and powder cocaine from 100:1 to 18:1.

The ACLU’s Washington office is focused primarily on advocating before Capitol Hill and the executive branch, spending anywhere from $1 million to $2 million per year on a massive portfolio of issues including Guantanamo Bay, LGBT rights, fair housing, fake news and free speech.

McCurdy — a native of D.C. suburb Columbia, Md. — decided to become a lobbyist because, she says, she felt as if she could affect more lives by changing policy, rather than using her law degree to help people one by one.

If the policies around incarceration are bad, she adds, then people are going to continue to cycle through the system.

She ultimately decided to go into advocacy while working as a law clerk for the D.C. police department, a job she started after receiving her law degree at Catholic University in Washington.

The department needed someone to accompany the chief of police to City Hall when bills affecting the police department came up.

“They didn’t have anybody to do it, so as a law clerk working there, they let me do it. That was the beginning of me analyzing legislation, analyzing policy,” McCurdy says. 

“I had never thought of it as a real profession. I had always thought I was going to be a public defender or a defense attorney, criminal defense attorney,” she adds. “The concept of looking at bills and looking at policy and trying to address policy, that’s really where it was born.”

She continued to catch the lobbying bug at subsequent positions at the National District Attorney Association, the American Bar Association working on civil rights, and the Children’s Defense Fund, she says.

As part of that advocacy, the ACLU works with a broad coalition of other organizations interested in pushing criminal justice reform, including groups that fall on both sides of the political spectrum.

Achieving progress with the Obama administration, however, was initially a challenge, McCurdy recalls.

In November 2009, she and her team had their first meeting with the White House, a time she affectionately calls “pardon season” — near Thanksgiving and Christmas.

“Our idea was like, ‘OK, you’re going to pardon some turkeys, let’s pardon some people,’ ” she says.

“The immediate response from the very young Obama White House was, ‘He will never commute or pardon anybody’s sentence,’ ” she says, smiling. “I think their ‘never’ — at least, I took their ‘never’ — to mean ‘right now,’ this year, maybe this month. I was not deterred by the word ‘never.’ ”

According to Justice Department figures, Obama pardoned more than 200 individuals during his presidency and commuted the sentences of 1,750 more, including 146 and 1,558 in his last year as president, respectively. By the end of his tenure, he had granted more commutations than any other president in history.

“Ultimately, we kept at it; we kept meeting with them; we kept proposing ways they could do it. … Eight years later, we see the results and how it has resulted in so many people being reunited with their families.”