Legislative Issue 2012 Newsletter
Volume: XVIII, Issue Number: 3
2012 Legislative Session A Mixed Success: Governor's Actions Make for a Disappointing Ending
When the 2012 General Assembly session ended in the early morning hours of June 13th, Rhode Islanders’ civil liberties had, with a few exceptions, remained relatively intact — and were even made more secure in some instances. However, the session ultimately concluded on a disappointing note, when Governor Chafee vetoed an important ACLU privacy bill, and then failed to veto a bill that mounts a troubling attack on church-state separation. This newsletter reviews the Affiliate’s generally favorable, if mixed, success this session. Among the highlights:
- After years of hard work, a coalition of open government groups, including the ACLU, was able to commemorate passage of comprehensive amendments that strengthen the state’s Access to Public Records Act.
- The General Assembly approved two Affiliate free speech bills: one repealing an archaic law that made transmitting any false information over the Internet or by computer a crime, and another revising a problematic law that allowed public officials to sue newspapers for running critical political advertisements about them.
- The Affiliate was instrumental in drafting a new law making Rhode Island the first state in the country to establish a judicially-enforceable “homeless bill of rights.”
- A bill strengthening protections against the unnecessary use of social security numbers, designed to protect consumer privacy and curb identity theft, was approved.
- When it came to the “war on drugs,” the legislature approved bills decriminalizing possession of small amounts of marijuana; revising laws to ensure the opening of medical marijuana dispensaries; and providing Good Samaritan immunity to those helping individuals in medical distress with drug overdoses.
In the final hours of the session, a number of anti-civil liberties crime bills quietly died, including a proposal requiring the collection of DNA samples from people merely arrested for certain crimes, and numerous bills greatly expanding the number of people who would have been subjected to intrusive criminal background checks. Of course, not all was rosy. Bowing to State Police objections, Governor Chafee unexpectedly vetoed an important ACLU bill restricting police from searching the contents of cell phones without a warrant. In another frustrating loss, the Governor refused to veto a constitutionally-problematic bill establishing a government commission to decide what religious symbols on public property are secular. And passage in early June of a law eliminating “good time” credits for inmates convicted of certain crimes is not only poor correctional policy, but it will be an extremely expensive proposition for the state and lead to prison overcrowding problems. On the whole, though, as this newsletter demonstrates, the ACLU’s efforts in lobbying on literally hundreds of bills helped make an important difference.
Download the 2011-2012 Voting Record here.
From the Desk of the Executive Director
As this newsletter describes in detail, the 2012 General Assembly could have been much worse. We saw some good bills pass, killed a number of bad bills, and suffered only a few (albeit significant) defeats. Perhaps the session’s most interesting aspect was its confirmation of the well-worn cliché that politics makes strange bedfellows. On a few key issues, we found ourselves at odds with our usual allies, and saw Tea Partiers by our side on others. To give just two examples, a key ACLU bill — restricting police access to cell phone information without a warrant — was strongly supported by conservative legislators, only to be vetoed by a purportedly progressive Governor. A regressive piece of prison sentencing legislation — removing “good time” credits for certain violent offenders — was sponsored by a progressive Democrat and overwhelmingly supported by civil liberties allies in the House. The list could go on. The point is that one of the ACLU’s greatest strengths is its non-partisanship. In a hotly-contested election year like this one, it is worth remembering that civil liberties know no political party boundaries, and relying on party labels can be an unhelpful, and sometimes dangerous, way of determining support for civil liberties causes. Civil liberties transcend politics and are the birthright of all, and we will continue to make that point whenever and wherever we can.
— Steven Brown
Access to Public Records (H 7555A, S 2652A) PASSED
The General Assembly took steps toward a more transparent government this session when, following years of negotiation between open government groups, law enforcement, and the Attorney General’s office, much-needed legislation strengthening the state’s open records law, known as APRA, was enacted. While technology has advanced, making the release of public documents much simpler, APRA had not been updated in more than a dozen years and had loopholes that were exploited by some government agencies. As a result, Rhode Islanders had a comparatively weak tool for holding their government accountable. The bill, signed into law by the Governor, makes significant improvements in expanding the types of records that will be available to the public, easing the procedures for making requests for records, requiring training of public information officers, and holding public bodies more accountable for violations of the law.
Separation of Church and State
"Secular Memorials" (H 8143A, S 3035) PASSED
In response to the Woonsocket cross controversy, the General Assembly approved one-of-a-kind legislation creating a permanent commission to decide whether certain memorials in the state should be considered religious or secular. This five-member commission is to decide whether any structure, sculpture, inscription or icon located on public property has reached a level where its religious imagery has become so meaningless as to render it secular. The Affiliate testified that this legislation placed government in the completely inappropriate role of evaluating, and potentially trivializing and politicizing, the sacredness of religious symbols. The Affiliate urged the Governor to veto the legislation, calling it “ironic that those who claim a desire to protect religion would promote a bill that essentially gives a state commission the power to strip religious symbols of their sectarian meaning.” To the Affiliate’s great disappointment, however, the Governor allowed the bill to become law without his signature, only helping to fuel the flames of religious divisiveness. The Affiliate is researching the possibility of a legal challenge to the law.
Genetic Counselors (H 7571, S 2286A) DIED
The most heated abortion debate this session came not from nine separate abortion bills considered (but not passed) by the General Assembly, but from a bill seeking to license the state’s small number of genetic counselors. While none of those counselors are averse to discussing abortion as a relevant option in a troubled pregnancy, anti-abortion advocates demanded the insertion of “conscience clause” language into the bill that would have allowed a counselor’s opposition to abortion to supersede the patient’s right to know all their medical options. The proposed language gave immunity to “pro-life” genetic counselors who refused to discuss or even acknowledge abortion as a viable option, requiring them to do nothing more than refer frightened potential parents to a website with a list of names of other genetic counselors. The ACLU offered compromise language designed to both protect patients and accommodate legitimate conscience concerns of genetic counselors, but that language was rejected by abortion rights’ opponents. As a result of the stalemate, the licensing bill died in committee.
Gender Rating in Health Insurance (H 7151, S 2208) DIED
When purchasing identical insurance, Rhode Island women face higher premiums than men solely because of their gender, leaving women disproportionately unable to afford vital insurance, even though their medical costs are lower in the long run. While the federal health care law plans to eliminate this practice nationwide in 2014, legislation sponsored by Rep. Donna Walsh and Sen. Susan Sosnowski at the ACLU’s request sought to end it immediately in Rhode Island, regardless of any delays or changes in federal law. Insurance companies audaciously objected that charging equal premium rates would place a financial burden on the young men who have thus far benefited from the discrepancy. The bill died in committee. However, other legislation passed by the General Assembly requires the state to issue a report on the impact of eliminating this practice. In light of the U.S. Supreme Court decision upholding the federal law, one way or another this discriminatory practice should end soon.
Habeas Corpus (H7916A, S2803) HOUSE RESOLUTION PASSED
The federal government’s National Defense Authorization Act has been roundly and deservedly criticized for potentially allowing for the indefinite detention without charge or trial of U.S. residents. In response, the House passed a resolution, sponsored by Rep. Daniel Gordon, calling upon Congress to repeal these sections of the NDAA and restore the basic rights enshrined in the Fifth and Sixth Amendments. The resolution reaffirms our state’s commitment to fundamental principles of justice, and sends a signal to our national lawmakers that such policies are unacceptable.
Homeless Bill of Rights (H 7173, S 2052) PASSED
Rhode Island became a forerunner in protecting the rights of homeless individuals this year when the General Assembly passed the landmark Homeless Bill of Rights. This first-in-the-nation legislation, sponsored by Rep. Chris Blazejewski and Sen. John Tassoni, codifies the rights of all individuals to be free from employment, housing, and voting discrimination, among others, solely because of their housing status, and provides legal recourse for those who have suffered discrimination. These necessary and meaningful rights can provide critical assistance for individuals who have fallen on hard times, but who should never be exempt from equal protection under the law. The Homeless Bill of Rights was signed into law on June 20.
Rights of Ex-Offenders
Criminal Background Checks (H 7077, H 7444, H 7626, H 7806, H 7878, S 2507, S 2513, S 2687, and others) MOSTLY DIED
The General Assembly continued its trend of pushing for fingerprint-based background checks for a wide range of professions and volunteer opportunities, with the introduction of bills covering groups from school mentors to nursing home employees to fire department volunteers. The Affiliate has long opposed the increasing use of fingerprint-based criminal background checks in lieu of other less intrusive measures. Under one bill, for example, family members with a criminal history could have been barred from serving as caretakers for their parents or other relatives. Ultimately, only one background check bill was signed into law – barring those with distant criminal records from serving as school mentors. Others failed to move out of committee, or were recommitted before reaching the floor.
Moral Turpitude (S 2705) DIED
Throughout state licensing statutes, the nebulous and undefined phrase “moral turpitude” serves as a catch-all to exclude from employment individuals who possess criminal histories not automatically disqualifying under the law, but distasteful to the employer in some way. Affiliate-drafted legislation sought to eliminate the phrase as the grounds for disqualification from licensing, as its tremendous breadth leads to considerable interpretation and misuse. Until it can be better defined, the ACLU believes the phrase should not be used; however, the bill failed to move out of committee.
False Information Ban (H 7389, S 2339) PASSED
Until this legislative session, lying about your age on an internet dating site could have landed you in jail. An outdated and overly-broad section of Rhode Island law made transmitting any false information electronically a misdemeanor, punishable by up to one year in jail. ACLU legislation sponsored by Rep. Chris Blazejewski and Sen. Rhoda Perry repeals that section of the law, while keeping intact other sections of the law dealing with more legitimate areas of concerns, such as computer financial fraud. The repeal was completed with Governor Chafee’s signature on June 20.
Political Advertising (H 7970, S 2644) PASSED
Helping to resolve a pending ACLU lawsuit, the General Assembly passed an Affiliate bill making clear that newspapers can publish advertisements criticizing elected officials without fear of liability. Last year, a private citizen took out an advertisement in the Warwick Beacon, criticizing a number of elected officials by name. An offended official, relying on an overly broad law barring the use of any person’s name, portrait or picture in an advertisement without their written consent, sued in response. The ACLU filed a lawsuit to challenge the law, arguing that the First Amendment prohibited its use against political speech. The enacted legislation, sponsored by Rep. Joseph McNamara and Sen. Michael McCaffrey, clarifies that the statute applies only to commercial advertisements, and not to the use of names, portraits, or pictures “in political speech or on matters of public concern.”
Campaign Finance (H 7859B, S 2569A) PASSED
Transparency in elections is a good thing, but taken too far, campaign finance legislation can have serious First Amendment ramifications. Such is the case with this legislation approved by the General Assembly. Aimed at combatting so-called Super PACs, it also places a heavy burden on some small non-profit, non-partisan organizations that engage in referenda campaigns or that merely publicly mention a candidate’s name too close to an election. The new law imposes onerous reporting requirements – initially, it had possible felony penalties for non-compliance – and mandates public disclosure of the names of an organization’s private donors, regardless of whether those donations were for political purposes. The final version of the enacted legislation exempts a number of non-profits from its reach, but it still carries a tremendous burden for some organizations participating in non-partisan advocacy and, the ACLU believes, raises constitutional concerns.
Social Security Numbers (H 7693, S 2386) PASSED
The General Assembly reaffirmed Rhode Island’s status as a leader in preventing identity theft by prohibiting credit agencies from using an individual’s social security number as the sole means of verification in matching a credit record to an inquiry by a merchant. False applications for credit using an individual’s social security number are a major form of identity theft, and there are currently few safeguards in place to ensure a person in possession of just a social security number cannot access other private identity information. This legislation, supported by the ACLU and Privacy Journal publisher Robert Ellis Smith, will require agencies to use a second identifier, such as an address, prior address, or date of birth, when a social security number is used.
License Plate Scanners (H 7679, S 2251) DIED
The House Corporations committee considered intrusive legislation that would have sanctioned the installation of cameras on police cruisers to continuously scan every license plate on the street and run it against an internal database. Proposed as a way to detect and combat uninsured motorists, these cameras can track the location of every car on the road, and transmit insurance, registration and other information to third parties. Despite a concerted lobbying effort by the camera vendor, the bill failed to move out of committee, and was not heard in the Senate.
Cell Phone Searches (H 7110, S3074) VETOED
With advancing technology, cell phones have become small computers, carrying substantial amounts of personal information, including e-mails, photos, and records of where one has been. ACLU-drafted legislation, sponsored by Rep. Edie Ajello and Sen. Donna Nesselbush, would have generally required police to obtain a warrant before searching an arrestee’s cell phone. There was no opposition to the bill from law enforcement during the legislative session, and the bill easily passed the General Assembly. However, in a major blow to privacy and civil liberties, Governor Chafee vetoed this legislation on June 25 at the last-minute request of the RI State Police.
"Good Behavior" Sentence Reductions (H 7112A, S 2179A) PASSED
Following up on last year’s controversy surrounding the early release of Michael Woodmansee, the General Assembly approved a bill to severely limit the ability of certain inmates to accrue “good time” reductions of their sentences. In addition to promoting good behavior by prisoners, “good time” provides an important incentive to prisoners to participate in treatment and educational programs, potentially reducing their recidivism rates. “Good time” is also a vital preventative against prison overcrowding, and in fact was expanded only four years ago when the ACI came close to maximum capacity, and Rhode Island was faced with the possibility of having to release prisoners. Although the ACLU and the Office of the Public Defender asked the Governor to veto this legislation, he signed it into law on June 5.
Ignition Interlock (H 7332, H 7849A, S 2568, S 2838A) DIED
The General Assembly considered a number of harsh bills this session requiring ignition interlock devices to be used by any person convicted of DUI, failure to submit to a chemical test, and even other serious motor vehicle crimes where there was no allegation that the driver was under the influence of alcohol at the time of the infraction. All of the bills drastically increased the numbers of individuals who would be subject to ignition interlocks and the length of time they would be required to maintain the devices. Some versions of the legislation included no provisions for indigent individuals to obtain the devices without paying their costly upkeep fees, all but ensuring that poor offenders would be unable to afford the devices and would return to jail. The House and Senate each passed differing versions of the legislation, but were unable to reconcile them before the end of the legislative session, and the bills died.
Sex Offenders (H 7075, S 2572) SENATE RESOLUTION PASSED
The Attorney General’s office once again sought to implement in Rhode Island the federal Sex Offender Registration and Notification Act (SORNA). The act includes draconian public notification requirements, lifetime sex offender registration even for juvenile offenders, and retroactive registration for persons whose offenses may have occurred decades earlier. Its implementation is so costly that a majority of states have refused to come into compliance with SORNA. The ACLU argued that SORNA hinders rehabilitation and ignores the reality of sex offenses, which is that over 90% of them are committed against victims whom the perpetrator knows, not by strangers. In light of strong opposition to the bill from the ACLU, the Public Defender, and juvenile rights advocates, the Senate voted to instead create a study commission to evaluate the feasibility and ramifications of implementing SORNA in the future.
DNA Testing of Arrestees (H 7056, S 2061) DIED
For a number of years, there have been efforts to require the collection of DNA from any person arrested for a “crime of violence,” which is broadly defined to include offenses such as larceny. Currently, DNA can only be collected from individuals convicted of certain felonies. The ACLU argued that to collect DNA from individuals who have merely been arrested for a crime overturns the presumption of innocence, and is a dangerous step toward the creation of a comprehensive DNA database of all individuals. Other states that have implemented limited arrestee DNA programs have quickly seen attempts to expand the database and its uses, including collecting samples from anyone arrested for any crime, or using the DNA database to search for familial links implicating family members of those whose DNA is on file. While it can be a useful tool in certain investigations, collecting DNA from every individual arrested for a crime of violence would more than double the number of DNA samples the Department of Health must analyze, potentially delaying justice in all those cases where DNA is a critical investigatory element. Rejecting the ACLU’s concerns, the Senate passed this legislation for the second year in a row, and the bill was also approved by House Judiciary Committee. However, on the last night of the session, the bill was recommitted on the House floor without a vote.
The "War on Drugs"
Compassion Centers (H 7888A, S 2555A) PASSED
The General Assembly made a number of revisions this session to the state’s laws regarding medical marijuana dispensaries, known as compassion centers, with the goal of finally allowing the centers to open and help patients. To date, Governor Chafee has refused to issue licenses to the approved centers, citing concerns that the state and the centers might be subject to investigation and prosecution by federal authorities for participating in illegal drug activity. In response, the new legislation restricts the amount of marijuana a center may possess, allows for independent caregivers to sell their excess marijuana back to the compassion centers, and requires federal criminal background checks on all center employees and operators. The legislation was signed by Governor Chafee in May, and the centers are expected to finally open later this year.
Marijuana Decriminalization (H 7092Aaa, S 2253Aaa) PASSED
On June 13, Governor Chafee signed into law major legislation decriminalizing the possession of one ounce or less of marijuana, and instead imposing civil penalties against individuals caught with the drug. Sponsored by Rep. John Edwards and Sen. Josh Miller, this legislation is a step forward in addressing the “war on drugs,” recognizing that criminal prosecution and potential jail time are inappropriate and disproportionate responses to the possession of small amounts of marijuana.
"Good Samaritan" Overdose Reporting (H 7248Aaa, S 2841Aaa) PASSED
Each year, more than 100 Rhode Islanders die of drug overdoses, and this legislation, sponsored by Rep. Frank Ferri and Sen. Rhoda Perry, is designed to save some of those lives. Currently, individuals witnessing a drug overdose often refrain from calling 911 out of fear that they will be prosecuted if drugs or drug paraphernalia are found on the scene. As a result, many individuals whose lives could be saved are not treated in time. This legislation, promoted by the R.I. Medical Society and supported by the ACLU, gives immunity from prosecution for most drug crimes to those who call 911 for help with an overdose. Additionally, the legislation allows individuals who have been prescribed opioid antagonist drugs – used to counter the effects of opioids, and so safe as to have no ill effects even if the person who takes the antagonist is not under the influence of opioids at the time – to distribute these medications to individuals who do not have a prescription. Governor Chafee signed this legislation into law on June 18.
Drug Court (S 2770A) PASSED
Of all the drug-related legislation considered this year, only one opposed by the ACLU became law: a bill amending the duties and activities of the drug court, and altering the eligibility criteria for participation in the court. The ACLU supports the values and purpose of the drug court, but the Affiliate testified that the proposed changes raised a number of concerns. While many drug-addicted individuals turn to crime, including drug-dealing and theft, to fuel their addiction, the legislation bars from participation in the court those individuals who have previous felony convictions or convictions for delivery of a controlled substance. This prohibits some addicts who need the drug courts most from participating. The legislation also requires individuals to plead guilty to their crime before participating; if they fail to complete the program, they face potential incarceration for longer periods of time than what they would have received had they simply gone through criminal court. The ACLU unsuccessfully testified that while drug courts can be a positive force, these elements of the bill rendered the court ineffective and counter-productive.
Prescription Monitoring Program (S 2763A) DIED
When a doctor prescribes a medication which is considered a Schedule II or Schedule III drug, what the doctor often doesn’t mention is that filling that prescription means your name is entered into a statewide database, recording your use of these medications for an indefinite amount of time and subjecting the records to inspection by law enforcement without a warrant. This session, the General Assembly considered legislation to expand the database to include nearly all drug prescriptions, and to provide for electronic prescribing of medication. The ACLU and the Department of Health collaborated on a revised version of the bill, containing protections for prescription information, including a requirement that law enforcement possess a warrant before accessing the database. The amendments were designed to ensure that patients could obtain necessary medications without sacrificing their privacy. The amended version passed the Senate, but failed to move out of committee in the House.
High Stakes Testing (H 7413A, S 2274) HOUSE RESOLUTION PASSED
In 2014, Rhode Island is scheduled to begin “high stakes testing,” barring students who do not pass a standardized test from receiving a high school diploma. Such testing could prevent approximately 90% or more of special education, limited English proficient, economically disadvantaged, and Latino or African-American students from graduating. Rep. Eileen Naughton and Sen. Harold Metts sponsored legislation, supported by the ACLU, allowing standardized tests, but only for the purpose of identifying and helping struggling schools and students, not punishing them. In response to strong opposition from the Commissioner of Education, the House instead passed a resolution requiring a study and review of standardized testing, with recommendations to be presented to the House in March 2013. The ACLU will monitor the Commission’s work.
Mandatory Tobacco Treatment (H 7606, S 2413) VETOED
While tobacco use among teenagers is by no means to be encouraged, legislation passed by the General Assembly mandating participation in a tobacco treatment program for any minor caught using or possessing tobacco products brought opposition from the ACLU and anti-smoking advocacy groups. Mandatory programs generally prove ineffective at combatting tobacco use, and requiring them adds a level of expanded involvement for minors with the family court system for participating in an unhealthy but hardly court-worthy transgression. In response to requests from the ACLU and anti-smoking advocates, who also noted that funding for these programs simply is not available, Governor Chafee vetoed the legislation.
A Miscellany of Bills That Died in Committee
Below are some bills of civil liberties importance which were opposed or supported by the ACLU, but that died this session without any committee action.
Same-Sex Divorce (H 7752, S 2337)
Paradoxically, while Rhode Island continues to deny same-sex couples the right to marry, a state court decision also bars couples legally married in other states from divorcing, leaving them in a terrible emotional and financial situation. Affiliate legislation introduced this year, as well as in the past, has tried to fix this, but the bill again died in committee.
Computer Crimes (H 7042, S 2647)
An Attorney General bill to significant expand the state’s cyberstalking and cyberharassment laws died for the second straight year. Among the many free speech concerns raised by the legislation: a person who never intended harm could be held criminally liable if others who read their internet postings decided to participate in cyberharassment. The Affiliate convinced legislators of the numerous First Amendment problems with the bill, and no action was taken on it.
Comprehensive Racial Profiling Precention Act (H 7256, S 2252)
To no avail, the Affiliate and the Coalition Against Racial Profiling returned this year with renewed dedication to the passage of legislation that would build upon existing anti-profiling laws to, among other things, prohibit police from asking passengers or pedestrians for proof of identification or searching juveniles without reasonable suspicion of criminal activity. Last year, House Judiciary Committee approved the bill, but this year it died in committee without a vote.
Mandatory Seat Belts (H 7596, H 8044, S 2373)
The mandatory seatbelt law adopted last year included a provision automatically repealing the law in 2013. This year, the General Assembly considered legislation both to remove that “sunset” provision and to move it forward one year in order to repeal the law. The Affiliate testified for the latter, and against the former, arguing that the mandatory seat belt law only encourages more racial profiling by police. No action was taken on either version of the legislation.
Prison-Based Gerrymandering (H 7090, S 2218)
For the purposes of redistricting, any individual incarcerated at the ACI on the day the Census worker comes is counted as living at the prison, whatever their length of stay. Most prisoners are not residents of Cranston and cannot vote there, yet the districts are drawn as if they could. As a result, under the new state redistricting plan adopted this year, 15% of House District 20 is comprised of ACI inmates, diluting the voting strength of all the districts the prisoners call home. An ACLU bill designed to correct this discrepancy failed to move out of committee.
You're Invited: 2012 Legislative Wrap-Up and Dessert Evening
Wednesday, July 25, 2012
40 Sharpe Dr. Suite 3 Cranston, RI
An informal, free event to discuss how the 2012 Gen-eral Assembly session impacted our civil liberties—shared among legislators, members and friends. Listen, ask questions, and learn while enjoying delicious desserts from local businesses! Panel participants include Rhode Island ACLU Affiliate Policy Associate Hillary Davis, Representative Edie Ajello, and Senator Rhoda Perry.