Keeping People Safe and Free

Kevin Prussia is the chair-elect of the board of directors at the ACLU Foundation of Massachusetts. He is a partner at WilmerHale.

In 2021, the ACLU of Massachusetts and WilmerHale filed a lawsuit to help people experiencing homelessness in the area of Melnea Cass Boulevard and Massachusetts Avenue (Mass. & Cass) in Boston—what prompted this lawsuit?

In October, then-Mayor Janey issued an executive order—targeted at Mass. & Cass—declaring that the City would clear homeless encampments under threat of arrest. The City then conducted sweeps of those encampments, destroying belongings and removing tents and temporary shelters. However, many of the residents simply have no place to go because they have serious medical needs that render beds in traditional congregate shelter settings wholly unsuitable. The key issue is whether the City’s policy of forcibly displacing people experiencing homelessness under threat of arrest—without first implementing any meaningful process to identify viable alternative housing options for them—violates the “cruel and unusual punishment” clause of the Eighth Amendment, Article 26, and state common law.

Setting aside the legal result, do you think the lawsuit has had any broader, positive effects on the situation at Mass. & Cass?

Yes. For starters, the litigation is continuing, and we remain optimistic. Nevertheless, the case has already had a number of positive impacts. Likely as a result of the lawsuit, the City delayed the removals for months—in which time they were able to secure more low-threshold housing for affected individuals. The suit also forced the City to take seriously the rights of the unhoused and shifted the public conversation to focus on those rights.

We’ve heard a lot of controversy over the past two years about the supposed conflict between civil liberties and public health—are these two always opposed to each other?

Certainly not. Implemented correctly, public health measures can and should be protective of civil liberties—both are aimed at protecting individuals and communities alike. However, public health programs or initiatives often deploy blunt instruments, designed to protect the broadest number of people—and no instrument is more blunt than the threat of criminalization. This can leave people out at the margins. Organizations focused on civil liberties can help tailor public health responses to protect the rights of those people.

What would it mean to treat substance use disorder as a “public health crisis,” rather than something that can only be resolved through the criminal legal system? Why would we want to do that?

Those working in the field, as well as a significant proportion of government officials and the public generally, recognize substance use disorder as a public health issue rather than a criminal justice issue. This approach acknowledges that addiction is preventable and treatable, centers support and compassion, and follows the science that tells us treatment is more successful, more humane, and more cost-effective than incarceration in reducing relapse and overdose rates.

Has the pandemic taught us anything about the intersections between public health, civil liberties, and criminal legal reform?

The pandemic has exposed the pre-existing cracks in our current systems and demonstrated how interdependent all of these facets of public life truly are. The successes—and failures—of the pandemic era further highlight the need for comprehensive criminal legal reform. At bottom, public health initiatives must work hand-in-glove with robust civil liberties protections to ensure that the most vulnerable among us are not overlooked in the rush to implement important and necessary programs.