Legislative Issue 2011 Newsletter
Volume: XVII, Issue Number: 3
Civil Rights Setbacks Dominate 2011 Legislative Session
It could have been worse. That is probably the best that can be said about one of the most civil liberties-hostile General Assembly sessions in decades that concluded in the early morning hours of June 30th. One of the most discouraging aspects of the session was a consistent failure by legislators to stand up for civil rights on at least three key issues:
- Surrounded in New England by states that have ensured marriage equality for gay and lesbian couples, Rhode Island not only failed to join those states, but passed a civil union bill that is a retreat in the struggle for equal rights. Passage of this bill in place of marriage equality was bad enough, but the new law’s creation of an unprecedented exemption for “religious-affiliated organizations” to discriminate against partners in civil unions actually marks a major step backward, weakening laws already in place that bar unequal treatment on the basis of sexual orientation.
- Community groups worked extraordinarily hard to come up with a compromise anti-racial profiling bill that balanced the needs of law enforcement with the equally pressing need to address this deep-rooted problem. The actions of the RI Police Chiefs Association — reneging on their support for the compromise legislation after testifying for it — only heightened the mistrust between the minority community and police. The legislative leadership not only let the bill languish on the House floor without a vote, but added insult to injury by approving primary seat belt legislation, which only increases the potential for discriminatory stops of racial minorities on our highways.
- The General Assembly took an extraordinarily regressive step by enacting photo ID legislation for voters, despite the lack of any evidence in Rhode Island of voter impersonation fraud. In recent months, Governors in five states vetoed similar legislation, recognizing its adverse impact on the democratic process, and particularly on the poor, racial minorities and people with disabilities. It is truly disappointing that Governor Chafee failed to heed those concerns, and instead signed the bill into law one day after it reached his desk.
As for civil liberties generally, the free speech and privacy rights of all Rhode Islanders were eroded by passage of a series of bills involving the Internet and electronic communications. One bill has given police wide-ranging authority to obtain internet subscriber information without a warrant. Two other laws clamp down hard on children: a “cyberbullying” law subjects students to discipline, and possible police intervention, for sending electronic communications that cause another student undefined “emotional harm.” Another law could subject students who engage in “sexting” – sending nude photos of themselves to others – to possible felony penalties and life-time registration as a sex offender for engaging in this admittedly juvenile but wide-spread teen activity. This fervent criminalization of activity on the Internet is a troubling development with very serious consequences for individual freedoms. Not all was doom and gloom. The General Assembly passed one of the strongest laws in the country, drafted by the ACLU, to protect pregnant prisoners from unwarranted shackling and restraints during the course of their pregnancy. The legislature also approved two other modest ACLU bills protecting the privacy of newborns and the confidentiality of Social Security Numbers. In addition, ACLU lobbying helped bottle up in committee some extreme criminal justice measures, as well as two seemingly innocuous bills that were poisoned by the addition of far-reaching anti-abortion amendments. A more detailed review of these and many other bills appears inside.
From the Desk of the Executive Director
With a General Assembly session as painful as this one, it would be easy to give in to despair. But as difficult as the session was, it is even more frightening to consider what it would have been like without a constant ACLU presence at the State House. There is no question that the Affiliate’s lobbying activities stopped in their tracks many bills extremely antithetical to civil liberties. And despite some major losses, the Affiliate succeeded in getting a few good bills passed — including the nation’s strongest law protecting pregnant women who are incarerated. In addition, the passage of regressive laws is not the end of the line for the Affiliate. That is where the ACLU’s multi-pronged approach to protecting civil liberties comes in handy. In the coming months, we will be examining the possibility of challenging some of these new laws in the courtroom, and hopefully prevailing there. In the meantime, as you will see on the back page, we have lots of events lined up for the summer — our annual legislative wrap-up, a jazz concert, and a banned books event. I hope you can attend one or more of them and join in a celebration of civil liberties — after all, we still have some left!
2011 Legislative Review
As is true every session, the ACLU lobbied on literally hundreds of bills and, despite some major losses, dozens of bills were improved, or died, thanks to the Affiliate’s presence. For additional information about the bills described here, other legislation the ACLU lobbied on this session, and copies of Affiliate testimony, please visit our website at www.riaclu.org.
Comprehensive Racial Profiling Prevention Act (H 5263). DIED. The ACLU, community organizations and individuals who have experienced racial profiling testified before the House and Senate Judiciary Committees in favor of the Comprehensive Racial Profiling Prevention Act, sponsored by Sen. Rhoda Perry and Rep. Grace Diaz. Three years’ worth of traffic-stop data in Rhode Island consistently demonstrated that blacks and Latinos are twice as likely as whites to be stopped and searched by police, though less likely to be found with contraband. This bill built upon existing anti-profiling laws to, among other things, prohibit police from asking passengers for proof of identification or searching juveniles without reasonable suspicion of criminal activity, and require police officers to document the reasons for a traffic stop. The community was dealt a blow when the RI Police Chiefs Association, after testifying in support of the legislation that had been the subject of enormous compromise, pulled their support a week later. The ACLU and the many organizations which make up the Coalition Against Racial Profiling were heartened when the House Judiciary Committee nonetheless approved passage of the bill and sent it to the floor for consideration for the first time in five years. Sadly, the House recommitted the bill on the last day of the session, and a floor debate never occurred.
Primary Seat Belt Law (H 5544, S 22). PASSED. For many years, the ACLU and community groups have testified against passage of a primary seat belt bill in the absence of protections provided by anti-racial profiling legislation. While the benefits to wearing a seat belt are clear, the Coalition Against Racial Profiling remained concerned that a primary seat belt law would only exacerbate racial profiling in Rhode Island. Tempted by the promise of $3 million in federal funding, the General Assembly disagreed, and approved passage of a primary seat belt bill this session after years of rejecting the proposal.
Voter ID (H 5680, S 400). PASSED. In one of the most disturbing civil liberties setbacks in years, the Governor signed into law a bill requiring voters to present photo identification before casting a ballot at the polls. In testimony before the House and Senate Judiciary committees, the ACLU argued that voter identification legislation was an attempt to fix a non-existent problem of voter impersonation, at the cost of disenfranchising eligible voters. Studies have made clear that a voter ID requirement will have a disproportionate and unfair impact on the poor, racial and ethnic minorities, senior citizens and voters with disabilities. A diverse coalition of over twenty organizations – including the NAACP, the RI Commission for Human Rights, Common Cause, Ocean State Action and the RI Coalition for the Homeless – joined the ACLU in opposing the bill, but to no avail. The bill passed both Houses by wide margins, and Governor Lincoln Chafee signed it into law a day after it reached his desk. Since January, governors in five other states have vetoed similar laws as being antithetical to the democratic process.
Good Behavior Sentence Reductions (H 5990, S 753). DIED. The ACLU opposed legislation that would have dramatically limited the ability of prisoners to accrue “good time” days that shorten their sentence. In addition to promoting good behavior in prison, “good time” provides inmates a major incentive to participate in treatment and educational programs, potentially reducing recidivism. The bill significantly undermined a law enacted only three years ago with support from the Governor, Attorney General, Department of Corrections and Parole Board, to address severe overcrowding at the prison. This year’s bill, promoted by a new Attorney General, was in response to the imminent release of Michael Woodmansee, who had served 28 years for the murder of a child. The DOC and Parole Board registered strong opposition to the bill, which carried a price tag of more than $12 million for its first few years alone. The bill passed the Senate but died in the House.
DNA Testing of Arrestees (H 5132, S 120). DIED. The ACLU, the Public Defender and the Urban League all testified in opposition to legislation requiring the collection of DNA samples from any person arrested for a felony. This practice flies in the face of the presumption of innocence, the backbone of our criminal justice system, and would be a dangerous step towards creation of a DNA database cataloging every person in the nation. The legislation passed the Senate in May, but died in House Judiciary Committee.
Health Insurance Exchange (H 5498, S 87). DIED. Consideration of a seemingly innocuous bill setting up the framework for a health insurance exchange to implement the new federal health care reform law took a nasty turn when Senate President Teresa Paiva-Weed inserted a surprise anti-abor-tion amendment into the bill. The amendment sought to ban all insurance providers within the exchange from providing any abortion coverage to participating individuals, even if the coverage was privately paid for. This restriction went beyond the already stringent limitations on abortion coverage imposed by the federal law. The ACLU and other pro-choice groups rallied against the bill. When the Senate refused to back down on the amendment, the House let the entire bill die.
Genetic Counselors (H 5251). DIED. Abortion also tangled up a bill establishing licensing procedures for the profession of genetic counselor. This time it was the House that was responsible for the mischief, inserting an overly-broad “conscience clause” amendment into the legislation. The amendment not only allowed genetic counselors to refuse to counsel patients about abortion options when it might be medically indicated, but obligated them to do nothing more than refer patients to a web site to try to find another counselor who could provide appropriate guidance. The Senate refused to take up the amended bill, following the lead of the Senate sponsor, Rhoda Perry, who strongly objected to the amendment.
The "War on Drugs"
National Guard Forfeiture (H 5073, S 11). PASSED. The Affiliate testified in opposition to legislation permitting the National Guard to receive a portion of the funds garnered from money and items confiscated during counterdrug operations. The ACLU has long been concerned with the use of the National Guard in the failed “war on drugs,” and argued that permitting the agency to receive forfeited money would provide the Guard an inappropriate incentive to participate even more in civilian law enforcement activities instead of national defense and emergency assistance. The legislation was passed by the General Assembly in the last week of the session.
Drug Courts (S 350). DIED. The ACLU, joined by the Drug and Alcohol Treatment Association, testified against legislation that would have expanded the reach and use of drug courts in the state. While the Affiliate generally applauds the use of drugs courts to divert small-time offenders away from jail and into treatment, the ACLU had serious concerns about the proposed structure of the court under the bill. One provision barred individuals with any drug delivery convictions from participating in the program, even though many drug-addicted individuals turn to dealing to support their habit and are in need of treatment options. The ACLU also opposed a requirement that an individual first plead guilty to their drug offense before taking part in the drug court, thereby allowing for immediate sentencing to the ACI if he or she relapsed, a not uncommon occurrence. More successful drug courts operate as diversionary programs, holding the charges in abeyance while treatment takes place. The legislation passed the Senate, but died in the House.
Anti-Shackling of Pregnant Prisoners (H5257, S 165). PASSED. On June 8th, Governor Chafee signed into law an ACLU bill supported by the RI Medical Society, RI State Nurses Association, RI NOW and others to restrict the shackling of pregnant prisoners. The physical restraint of pregnant incarcerated women during transport, labor, delivery and recovery is viewed as a major human rights and civil rights concern within the United States and internationally. A restrained pregnant woman cannot move freely or control her balance, placing both her and her fetus at risk. Rhode Island’s new law, sponsored by Sen. Rhoda Perry and Rep. Donna Walsh, is one of the strongest in the country. It generally bars the use of handcuffs or shackles on pregnant incarcerated women, allowing only “medically appropriate” restraints to be used in their second and third trimester of pregnancy. Corrections officials must also use the least restrictive restraints necessary for those few individuals who pose a risk to themselves or others, ensuring the health and safety of women and children before, during and after childbirth.
Civil Unions (H 6103). PASSED. In one of the worst examples of legislative “compromise” on a hot-button issue, Rhode Island now has a civil union law that neither proponents nor opponents of marriage equality wanted. Noting that Rhode Island is surrounded in New England by states that have full marriage equality, the ACLU actively opposed the civil union legislation. It passed after House Speaker Gordon Fox abandoned a marriage equality bill, despite the fact that supporters believed there were enough House votes to support full equality. The civil union “compromise” was made even worse when a regressive “religion protection” amendment was added on the House floor. The amendment allows any religiously-affiliated or connected organization, including those receiving government funds, to discriminate against individuals who are partners in civil unions. The ACLU, Marriage Equality RI and others urged Governor Lincoln Chafee to veto the legislation, which the groups called a step backwards in the fight for equal rights, but he signed the bill into law in June.
Newborn Screening (H 6108, S 200). PASSED. Bill sponsors Rep. Donna Walsh and Sen. Susan Sosnowski succeeded in getting enacted ACLU legislation to clarify existing law about screening newborns for illnesses. In 2008, the General Assembly passed a broad-based law allowing doctors to test newborns not only for disorders which are treatable in early childhood and for which there is a benefit to early detection, but also for any and all “other conditions.” The language allowed for genetic testing for diseases which a baby could be predisposed to but never contract. This new legislation, also supported by the March of Dimes, keeps newborn screening focused on diseases which are treatable in childhood.
Social Security Numbers (H 5202, S 179). PASSED. An ACLU bill that has been enacted into law bars most merchants from demanding any part of a customer’s social security number as a condition of commercial transactions. A ten-year old law already banned demands for SSN’s, but some businesses exploited a loophole in the law by requiring customers to provide only the last four digits of their number. However, privacy experts and the ACLU testified that collection of the last four digits, which is the only random part of a social security number, remained a privacy concern and put Rhode Islanders at risk for identity theft. This legislation, sponsored by Rep. Brian Patrick Kennedy and Sen. Domenic Ruggerio and signed into law, closes that loophole.
Internet Subpoenas (H 5093, S-781). PASSED. A significant civil liberties loss this year was the passage of legislation allowing law enforcement to obtain an individual’s internet subscriber information from internet service providers without a warrant. This legislation, which had been defeated for nine years through ACLU efforts, allows police to obtain the information merely by signing an administrative subpoena that requires no court review. In past years, the bill limited use of this power to investigations of child pornography. However, the new law gives police the unilateral authority to issue these subpoenas for just about any computer-related crime, including misdemeanor offenses such as “cyberharassment.” The expansion of the bill in this way raises significant First Amendment concerns, and led the R.I. Press Association to join the ACLU in opposing the bill. In the past year, police departments have sought access to subscriber information to investigate “cyberharassment” incidents where people have merely posted crude commentary against political officials on web sites and blogs. Unfortunately, ACLU requests that the Governor veto the bill were for naught. Governor Chafee signed the bill into law on July 1.
Sexting (H 5094, S 733). PASSED. Over ACLU objections, the General Assembly has enacted a law making it illegal for minors to engage in “sexting,” the widespread practice among teenagers of transmitting nude photos of themselves to others. The ACLU argued that while children should be educated about the dangers of sending sexually explicit e-mails and texts, the practice should not be criminalized. Although the legislation tightened up the definition of “sexting” in response to Affiliate concerns and treats the matter as a status offense, the legislation still allows children who engage in sexting to be charged with child pornography instead, something that bill proponents disingenuously claimed the legislation was designed to prevent.
Bullying (H 5941, S 732). PASSED. Also over ACLU objections, Governor Chafee signed into law problematic legislation dealing with bullying. The new law redefines bullying to include any communication by a student that causes another student “emotional harm,” allows schools to mete out punishment for bullying happening outside of school, and encourages police intervention. The ACLU noted that true bullying was already illegal under existing state laws, that routine police involvement would transform incidents of childish teasing into criminal matters, and that the bill could significantly impact the First Amendment rights of students. Despite testimony from anti-bullying experts that better education, not punitive sanctions, was the appropriate way to deal with bullying, the ACLU failed to convince the legislature to defeat the bill.
Underage Persons in Nightclubs (H 5548, S 488). PASSED. For the third year in a row, the General Assembly debated whether to prevent 18-20 year olds from entering nightclubs in order to address the problem of underage drinking. Under current law, supported by the ACLU, young adults are allowed to patronize these establishments in part because the state’s public accommodations law prohibits age-based discrimination against adults over the age of 18. The Affiliate has long noted that in addition to serving alcohol, these nightclubs feature live music, dancing, and other entertainment activities which young adults should not be barred from participating in solely because of their age. Through significant work between the Affiliate and the sponsors of the bill, the legislation enacted this year features a number of protections ensuring that nightclubs will only be barred from admitting young adults when there has been an uncorrected pattern of violence or alcohol being served to youth at the establishment.
The Rights of Ex-Offenders
Criminal Background Checks. MOSTLY PASSED. The General Assembly considered a spate of bills this session authorizing both statewide and fingerprint-based national criminal background checks on employees in a wide variety of circumstances. Unfortunately, many of those bills passed over ACLU objections. Among them: one allowing DCYF to obtain the entire criminal record history, including arrests not followed by convictions, of its employees; a bill giving municipal recreation departments the authority to obtain full statewide criminal checks on any employee or volunteer “serving the community”; and a bill requiring all nurses to be fingerprinted for employment and subject to adverse action based on undefined “disqualifying” criminal records. The U.S. Bureau of Justice Statistics has acknowledged that the national database used to complete these checks is riddled with errors. The only positive note was the General Assembly’s failure to pass the most egregious of these bills (H 5628), an Attorney General bill which would have required virtually all employees of 415 care facilities and other licensed caretakers for the elderly and infirm to undergo national background checks, regardless of whether or not they are ever alone with a patient. Disturbingly, it also set up a system whereby employers were notified if their employees were ever arrested for any crime, regardless of its relevance to their work and regardless of the outcome. Since the state has obtained some federal grant money to implement a fingerprinting program for these facilities, the legislation is virtually certain to reemerge next year.
Justice Department Urged to Investigate Lock-Up of Truants
The RI ACLU has urged the United States Department of Justice to investigate the detention of truants overnight at the state Training School. In a letter sent to DOJ officials, the ACLU asserts that the documented detention by Family Court judges of at least 28 minors violates a federal law, known as the Juvenile Justice and Delinquency Prevention Act, that bars the imprisonment of minors who are charged with committing status offenses, such as truancy. The detentions have occurred when the minors have been held in criminal contempt of court for exhibiting disrespectful behavior at their truancy hearings. In one of the cases, a 12-year-old girl who had no lawyer or parent present at her hearing, was sent to the Training School for two nights after slamming a door behind her. The letter is complementary to the Affiliate’s pending lawsuit challenging the constitutionality of various Truancy Court practices.
Groups Support Governor's Refusal to Transfer Inmate to Federal Government to Face Death Penalty Charges
Eight organizations – including the RI ACLU, the RI Commission for Human Rights, the RI State Council of Churches, the Urban League of RI and the American Friends Service Committee – issued a statement commending Governor Lincoln Chafee for refusing to turn over a state inmate that the federal government wishes to obtain custody of in order to seek the death penalty. The statement called on the U.S. Attorney to cease his efforts to obtain custody of Jason Wayne Pleau. The groups criticized “the federal government’s blatant effort to impose on our state a policy that Rhode Island has rejected for more than a century-and-a-half,” and said that the Governor was “acting in the state’s highest tradition by maintaining Rhode Island’s long-standing opposition to the death penalty.” As this newsletter went to press, a federal appeals court had temporarily stayed a lower court from ordering his transfer to federal custody.
ACLU Calls on Governor Chafeeto Issue Medical Marijuana Dispensary Licenses; Challenges Threat Issued by U.S. Attorney
In yet another stand-off with U.S. Attorney Peter Neronha, the ACLU called on Governor Chafee to issue certificates of registration to three medical marijuana dispensaries approved by the Department of Health, notwithstanding a threatening letter sent in May by Neronha suggesting that those dispensaries may be criminally liable under federal law. In a letter sent to the Governor, the ACLU wrote: “State law mandates the issuance of these registrations. Nothing in federal law or Mr. Neronha’s letter prevents the State from exercising its clear obligation under state law to issue those certificates. Upon issuance of those registrations, it will then be up to the dispensaries themselves to decide how to respond to the U.S. Attorney’s threats.” Failing to issue the certificates, the ACLU noted, “deprives the aggrieved dispensaries of any opportunity to question or challenge the validity of Mr. Neronha’s position. Perhaps most importantly, it deprives suffering patients of the hope that they will soon receive the medicine they need.”
ACLU Seeks Preliminary Injunction Against Continued Display of Cranston School Prayer
The Rhode Island ACLU has asked a federal judge to preliminarily enjoin the City of Cranston from continuing to display a “School Prayer” mural addressed to “Our Heavenly Father” that is painted on a Cranston High School West auditorium wall. The request for interim relief, pending a final decision in the case, was filed by RI ACLU volunteer attorneys Lynette Labinger and Thomas Bender. The lawsuit, filed in April, is on behalf of Jessica Ahlquist, a sophomore at the school, who has been a vocal opponent of the prayer display. In a detailed memo accompanying the request, the ACLU brief notes that whenever Jessica “is required to attend an assembly in the auditorium, or when she chooses to attend extracurricular events, she is exposed to this prominent and large display. She has felt isolated, ostracized and devalued by her school and community because of the School Prayer.” The ACLU’s brief emphasizes that: “The principle at the center of the [First Amendment’s] Establishment Clause is that government must remain neutral with respect to religion and religious practices, religion being a very personal matter of individual conscience.” A court hearing on the ACLU’s request is scheduled for the end of August.
Tune Into the ACLU's Monthly Cable Access Show
Every month the RI ACLU’s cable access show “Rights of a Free People” features a discussion with experts on key civil liberties issues. Check it out!
Playing in August: Legislative Wrap-Up
A summary of this year's civil liberties gains and losses at the General Assembly.
- Channel 13: Tuesdays 10:00pm & Fridays 3:30pm (Channel 32 on Verizon FIOS)
- Channel 18: ( In Providence & N. Providence) Wednesdays 9:00pm (Channel 38 on Verizon FIOS)
Interested in Hosting a House Party?
House parties offer an opportunity for ACLU members to socialize with each other, and give potential ACLU members an opportunity to learn more about the ACLU’s work. Last year, the Affiliate held successful events in Pawtucket, Woonsocket and Barrington. If you would like to learn more about hosting an ACLU house party in your community, please contact Meg Armstrong at the Affiliate office at 831-7171.
RI ACLU Meets with Rep. James Langevin
ACLU Board of Directors and staff members had the opportunity to meet with Congressman James Langevin to discuss concerns about the Authorization of Military Force Act that would expand the “war on terror” by removing geographic boundaries, time limits, and placing no limitations on the president. The new war powers could even be used within our own country or against American citizens. Rep. Langevin expressed his support for the ACLU’s position, although the bill has passed the House and is pending in the Senate.
Pride Fest 2011
Rhode Island ACLU staff, board members, and volunteers spoke with visitors at our booth at the 35th Annual Rhode Island Pride Fest. In 1976, the ACLU made this very event possible when we took on the case Toward a Gayer Bicentennial Committee v. McQueeney; after a permit was denied by Providence police, a federal judge issued a restraining order allowing the state’s first gay pride parade to proceed.
Upcoming RI ACLU Events
We are going to be quite busy in the coming months. Below is a list of upcoming events our members will have the opportunity to attend. Be sure to watch your mailbox, and visit our website frequently at www.riaclu.org, as more detailed information will be posted closer to the events.
Legislative Wrap Up and Dessert Evening
Wednesday, August 3rd. This year’s event will be held in Cranston at the R.I. Council of Community Mental Health Organizations on the evening of August 3rd from 7:00 PM to 8:30 PM. Join us for delicious desserts and hear firsthand about the 2011 Legislative Session from some of our allies in the General Assembly. Watch your mailbox for more details.
Rhythm and Rebellion: A Jazz Concert to Benefit the Rhode Island ACLU
Friday, August 19th. Join Tish Adams and Kim Trusty for a jazz event to benefit the RI ACLU at the Roots Café in downtown Providence on Friday, August 19th at 7 PM. Tickets are $25 and can be purchased at the door, by calling our office at 831-7171, or online at www.riaclu.org and clicking “Donate.” See the flyer inserted in this newsletter for more information.
Banned Books Event
Friday, September 23rd. Planning is underway for our Annual Banned Books event. This year’s event is tentatively scheduled to take place at the Providence Athenaeum on September 23, 2011. More details will be sent out as the event nears.
2011 Annual Dinner Celebration
Thursday, November 3rd. This year’s Annual Dinner will again be held at the Providence Biltmore. Please call the ACLU office at 831-7171 if you would like information about placing an ad in the dinner’s program book.