Fifty years ago, as the U.S. began building the world’s largest infrastructure for human caging, many Americans envisioned a future without prisons. Prisons, in the eyes of many, were irrevocably broken and incompatible with democracy. A committee convened by Lyndon B. Johnson to study law enforcement wrote that “life in many institutions is at best barren and futile, and at worst unspeakably brutal and degrading” and lamented that many prisoners labored “under conditions scarcely distinguishable from slavery.”

In 1970, a group of judges spent a single night at Nevada State Prison, and emerged to share their experience of “men raving, screaming and pounding on the walls.” A Kansas judge said, “I felt like an animal in a cage” and urged the state to “send two bulldozers out there and tear the damn thing to the ground.” A federal judge in Arkansas said imprisonment in that state amounted to “banishment from civilized society to a dark and evil world.” A judge in Wisconsin predicted that “the institution of prison probably must end. In many respects it is as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some standards, and probably less rational.”

Mainstream outlets such as Time magazine and The New York Times Magazine asked whether prisons should be abolished. As a mass movement for deinstitutionalization forced mental asylums — the nation’s other and, at the time, even larger institution for involuntary confinement — to go to ruin, it seemed that prisons might crumble, too.

Of course, instead of disappearing, prisons expanded over the next 40 years to become defining features of American life. Not only did U.S. criminal legal systems grow large enough to confine 2.4 million people and surveil one in 31 American adults, their logics of punishment and control came to define and permeate other realms of politics.

Why did prison systems metastasize so devastatingly when they seemed so vulnerable? And what can we take from this history as a massive social movement again challenges the legitimacy of U.S. criminal legal systems?

Part of the blame, as I lay out in a recent article in The Journal of American History, lies with so-called “alternatives to incarceration,” which the public and policymakers — especially liberals — embraced with zeal. And no alternative to prison was more ubiquitous and insidious than the correctional halfway house.

Though they had humble religious origins — Episcopal, Catholic, and Quaker groups opened the first halfway houses in the 1950s in order to help people reenter society — halfway houses caught the imagination of many policymakers in the 1960s and 1970s. They offered a model of “community treatment” that promised to address crime, drug addiction, and other social ills more effectively, cheaply, and humanely than traditional prisons.

Enthusiasm for community treatment brought millions of dollars in government funding for halfway houses. Funding poured in through President Johnson’s Great Society programs, and millions more would come through the Law Enforcement Assistance Act and the Nixon administration’s wars on drugs and crime. Halfway houses numbered only around a dozen in 1960, but by the late 1970s, they were more common in the U.S. than roller skating rinks. The capacity of the nation’s 2,000-plus halfway houses totaled more than 65,000 beds — roughly the contemporaneous prison capacities of California, Texas, and New York combined.

The major appeal of community treatment — then as now — was that it seemed not just an alternative to the prison, but even its opposite. The Johnson administration’s Commission on Law Enforcement and the Administration of Justice touted halfway houses as an “entirely new kind of correctional institution” that would be “architecturally and methodologically the antithesis of the traditional fortress-like prison.” In some ways, halfway houses did look like opposites to prison. They were small (generally around 20 beds), located in urban areas rather than far from them, and for a time elided the power dynamics characteristic of prisons. Residents, for instance, usually wore their own clothes rather than uniforms, and the earliest halfway houses were organized around discourses of “family.”

These superficial qualities, however, belied the structural similarities between halfway houses and traditional prisons. Like prisoners, the 65,000 people in halfway houses were involuntarily confined. They were subject to systematic surveillance. Their movements were tightly controlled. And they were forced to labor for others’ benefit. Indeed, one reason for the proliferation of halfway houses was their ability to appeal to reformers and prison administrators at the same time. They departed from what were seen as prisons’ most objectionable characteristics while maintaining systems for surveillance and control.

Just how closely halfway houses resembled traditional prisons changed over time with modifications in how they were funded and administered, but even the least coercive halfway houses suffered from their proximity to the rest of the criminal legal system. Despite the promise that they would be an alternative to prison, community treatment initiatives tended to expand the reach of the carceral state.

Not only did they dramatically expand the capacity of states to confine people against their will, their promise of “treatment” encouraged judges, prosecutors, and other policymakers to apply these interventions to groups of people who had not been in the system before. To give just one example, after the Texas Youth Commission embraced the halfway house model in the 1970s, it began to incarcerate hundreds more children each year in community-based facilities, including “pre-delinquent” children who had not committed a crime.

Today’s discontent with prisons and policing closely resembles that of half a century ago. Many of the solutions being proposed are also near carbon copies. Community-based alternatives, rehabilitation, education, drug treatment, and mental health interventions were all part of the appeal of halfway houses. New technologies for face recognition, location monitoring, online surveillance, and electronic forms of identification threaten to make the next iteration of “alternatives” even more harmful.

As we work to combat mass incarceration and create what comes next, it will be important not to be fooled by superficial differences or by changes in rhetoric. Ending mass incarceration will require dismantling — not replicating, reproducing, or relocating — systems for involuntary confinement, surveillance, and control.

The Supreme Court took action on three cases directly affecting LGBTQ+ rights, and now the term is over. One of the rulings may well turn out to be a watershed moment in trans rights, while the other two suggest that the court has reached a stalemate on the scope of religious exemptions to LGBTQ+ non-discrimination laws. While this stalemate lasts, we need to keep fighting both in court and in legislatures to protect non-discrimination laws from being pock-marked with exceptions that could render them meaningless.

The Supreme Court decided not to take up the school district’s appeal in Gloucester County School Board v. Gavin Grimm, in which a federal appeals court ruled that a Virginia school district violated federal civil rights law when it barred transgender students from using the restroom that matches their gender.

While that’s not a ruling on the merits of the issue, it leaves in place not only the lower court’s trans-affirming ruling in Gavin Grimm’s case, but also similar rulings by two other federal appeals courts. That means that school districts throughout the 11 states covered by those appeals courts must now respect a student’s gender and allow them to use restrooms and locker rooms that match their gender. That’s a huge deal. And since there is no federal appellate law going the other way, school districts in other parts of the country should do the same thing.

Indeed, Gavin’s case is the third time in three years that the Supreme Court has declined to take up cases involving disputes over whether trans students could use restrooms that match who they are. The fact that SCOTUS left those rulings alone, too, is more evidence that the court is letting a trans-affirming reality take hold. And since Gavin’s case started seven years ago, we’ve seen that a majority of our country is ready for this reality.

The denial of review in Gavin’s case reminds me of another moment when the Supreme Court refused to take up an LGBTQ+ civil rights issue and that ruling had significant on-the-ground consequences. In October 2014, the court denied review in five cases where lower courts had all ruled that same-sex couples had a right to marry. That order didn’t decide the marriage question for the country, but it meant that same-sex couples were suddenly able to marry in 12 new states, making it that much more difficult for the court to rule against the freedom to marry down the road. This could be a similar moment for trans rights.

The court’s other two LGBTQ-related actions this term came in the context of whether a government contractor (here a foster care agency) or a business (here a flower shop) can violate non-discrimination laws when they have a religious justification for the discrimination. The stakes are enormous, because a constitutional right to discriminate could potentially override every non-discrimination law in the country. That would be catastrophic and give a get-out-of-jail-free card to anyone who asserts a religious basis for discrimination in the workplace, in housing, in health care, and more.

With these two actions the situation is more complicated and the news a bit more ambiguous.

In Fulton v. Philadelphia, the court considered whether a religiously affiliated foster care agency had a constitutional right to override the non-discrimination requirement in its contract with the city to evaluate prospective foster parents. The contract said no sexual orientation discrimination and the foster care agency objected on religious grounds.

The good news is that, for the second time in three years, the Supreme Court refused to rule that there is a constitutional right to discriminate. In Fulton, the court issued a narrow decision based on a quirk in Philadelphia’s non-discrimination contract that the court interpreted as failing to treat all city contractors equally. The court issued a similarly narrow ruling three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, basing its decision on some anti-religion comments made by the state agency that initially heard the discrimination complaint.

While there were not five votes in Fulton to hold that there is a right to discriminate, we have to recognize that there were also not five votes to hold that there isn’t such a right.

That’s profoundly troubling, because such a ruling should not be difficult. Courts have rejected a right to discriminate in other civil rights contexts, such as when courts rejected religious schools’ claim that they could pay women less than men for doing the same job based on the schools’ religious belief that men are heads of household. There is no reason that the rule should be any different when the discrimination is based on sexual orientation or gender identity rather than sex or race.

The second action came in Arlene’s Flowers v. Washington State, where the Washington Supreme Court unanimously ruled that a flower shop’s religious objection to a same-sex couple getting married didn’t give it a right to refuse to sell them flowers for their wedding. The U.S. Supreme Court denied review in Arlene’s Flowers, dashing the hopes of anti-LGBTQ+ advocates that this would be the case where the court finally gave them a right to discriminate.

The combination of the court ducking the license-to-discriminate issue in Fulton and declining to take up the same issue in Arlene’s Flowers suggests that even this profoundly conservative court isn’t ready to undermine the nation’s civil rights laws. The current stalemate on the court about this issue may endure for a while, perhaps even for years. But when the court takes up the next case like Arlene’s Flowers or Fulton, I fear that it will signal that the court is ready to authorize discrimination against us.

Just like we shouldn’t have a country where LGBTQ+ people are celebrated only during Pride month, we shouldn’t have a country where we are protected from discrimination only in some circumstances. While the Supreme Court has put the religious exemptions issue on hold, we need to continue to tell policymakers — as well as our friends and neighbors — that discrimination hurts and that opening the door to legalized discrimination in the name of the religion will cause harm. We need to fight against these exemptions not just in court, but also in legislatures, where anti-LGBTQ+ advocates are seeking to add religious exemptions to existing non-discrimination laws and bills, such as the Equality Act. LGBTQ+ people have fought too hard and for too long to allow our community’s civil rights laws to incorporate a license to discriminate.

On President Biden’s 100th day in office, Nilson Barahona-Marriaga joined demonstrators who greeted the president at a rally in Atlanta. “End detention now!” they chanted. “Communities are afraid!”

A 39-year-old immigrant from Honduras, Nilson had been recently released from Immigration and Customs Enforcement’s (ICE) Irwin County Detention Center in Ocilla, Georgia. The Irwin detention center, which remains open despite the Biden administration’s promise to end its contract with the facility, had most recently gained attention due to multiple allegations of involuntary hysterectomies performed on women at the facility.

When Nilson was detained at Irwin last year, he learned through his lawyer that coronavirus was present at the facility. ICE officials had failed to alert or protect staff and detainees. Facility staff regularly failed to wear masks and ensure disinfection.

Out of desperation, Nilson participated in a hunger strike with other detainees. Their group made common-sense demands that ICE follow public health guidelines, provide them with masks and cleaning supplies, and release medically vulnerable people from detention. Instead, facility officials threw Nilson and his fellow hunger strikers in solitary confinement. ICE cut off the water in their cells, so they could not drink, wash, or flush the toilets. Officials also restricted Nilson’s communications with his lawyer and family. Only nine days later, when Nilson realized that a person detained in the room next to his had COVID-19, did he end his hunger strike.

In the last year, hundreds of detained immigrants like Nilson have participated in a growing number of hunger strikes nationwide, seeking protection from COVID-19. ICE officials and detention staff have met these hunger strikes—protected speech under the First Amendment–with extreme measures, including increased use of force such as pepper spray, physical force, and rubber bullets. Today, detained immigrants are currently on hunger strike for the same reason at a number of facilities, including the Northwest Detention Center in Tacoma, Washington, and Bergen County Jail in New Jersey. After several months of declines, ICE has again begun to increase the number of detained people in custody. COVID-19 cases in ICE detention are again on the rise.

Our new report, Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention, by the ACLU and Physicians for Human Rights, reveals that the scope and scale of ICE’s cruelty in response to such hunger strikes is much broader than previously known. Based on an assessment of over 10,000 pages of previously disclosed documents, the report analyzes hundreds of hunger strikes in ICE detention from 2013 to 2017, as well as the testimony of recent hunger strikers. The report finds that abuse and retaliation against hunger strikers is commonplace and dates back to President Biden’s time as vice president. ICE has responded to hunger strikes with involuntary medical procedures, solitary confinement, retaliatory deportation and transfer, and use of force — responses which are in violation of constitutional protections, international human rights law, and medical ethics.

Our report also shines a light on the many forms of day-to-day psychological coercion ICE employs to try to break hunger strikes, including denying access to basic privileges, restricting water access, and threatening prosecution.

Rather than safeguarding their patients’ health, medical professionals played a disturbing role in these abuses. During an August 2016 hunger strike of 22 mothers at the Berks County family detention center in Pennsylvania a family detention, an ICE physician sought to downplay the situation. The ICE physician also proposed family separation and force-feeding as responses to the hunger strike, noting that “If it appears they really are on a hunger strike, we will need to separate the mother and children – send mom to an IHSC facility to address the hunger strike.”

Doctors and nurses employed or contracted by ICE also violated medical ethics by supporting government motions for invasive and involuntary medical procedures, including force-feeding, forced hydration, forced urinary catherization, involuntary blood draws, and use of restraints. Our report identifies at least 14 separate ICE medical declarations supporting government motions for such involuntary procedures, in violation of physician’s ethical obligations to preserve the autonomy of mentally competent individuals, as well as international human rights law.

Our report reveals the lengths to which ICE will go to punish and deter hunger strikers rather than engage with their legitimate demands. Changing the response to hunger strikes will require addressing their underlying cause: an abusive and dangerous civil immigration detention system.

President Biden – who oversaw these abuses when Vice President – should reverse course and end the U.S. reliance on a mass immigration detention system and invest in community-based social services as alternatives to detention. Health professionals should refuse to participate in violations of medical ethics in their provision of care to detained immigrants, and government lawyers should refrain from pursuing cases for force feeding and other involuntary medical procedures.