Legislative Issue 2013 Newsletter
Volume: XIX, Issue Number: 3
2013 Session Provides Many Setbacks for Civil Liberties
The passage of marriage equality legislation was not just the highlight of this year’s General Assembly session, it was about the only light. A comprehensive ACLU legislative package designed to address the increasingly critical issue of privacy and technology was left on the table when the General Assembly adjourned late in the evening of July 3rd, as were important bills restricting sex discrimination in insurance and racial profiling by law enforcement. In their place, the legislature instead approved in the closing hours of the session a diverse anti-civil liberties agenda, which included bills promoting sex discrimination in school extracurricular activities, providing funding to an anti-abortion religious organization, weakening the state’s open records law, and subjecting teenagers to felony penalties for graffiti offenses. Just as disappointing was Governor Lincoln Chafee, who rejected only one of seven bills that the ACLU had targeted for his veto pen.
The one positive thing that can be said about the session is that it could have been much worse, as vigorous ACLU lobbying helped defeat many other problematic bills on a range of subjects. This newsletter details the most important bills the ACLU weighed in on, but visit www.riaclu.org for a comprehensive summary of dozens of others bills we couldn’t cover here. Our website also has ACLU testimony, correspondence, and other documents relating to this year’s session.
The Issues At A Glance:
In the final week of the session, abortion took center stage in a way that pro-choice advocates had not witnessed in years. The result: legislative approval (though vetoed) of one anti-choice bill, and Senate approval of another.
The LGBT community had much to celebrate this year with approval of marriage equality legislation. Attempts at promoting gender and racial equality, on the other hand, did not fare well at all.
One of the most troubling episodes in a session filled with anti-civil liberties activity was a leadership attempt to amend a bill repealing the state’s problematic Voter ID law and instead use it to make the law even more stringent.
Perhaps nothing better demonstrates the “insider” legislative process this year than the introduction on June 5th of a complex 58-page bill, pushed through in less than two weeks, completely overhauling the state’s gambling laws in preparation for the introduction of table games at Twin River. Fortunately, the ACLU still managed to have some impact on the final product.
Separation of Church and State
This year, the legislature showed hostility to the separation of church and state through its action on abortion bills and the state’s tax credit laws.
The ACLU and the civil rights community’s lengthy struggle to pass strong anti-racial profiling legislation continued this year. Though unsuccessful, the groups plan to redouble their efforts in the next session.
The legislature failed to take positive action on a series of bills designed to protect privacy from technological advances. At the same time, the General Assembly managed to pass two bills eroding basic privacy rights.
With one unfortunate exception, the ACLU was successful in beating back an onslaught of problematic criminal justice bills. However, we can expect many of them to return next year, as “getting tough on crime” often manages to be good campaign fodder during election season.
As poor a year as it was for privacy, it was just as bad for open government. In 2012, after a decade-long campaign from the ACLU and open government groups, the General Assembly passed comprehensive reforms to the Access to Public Records Act. This year, legislators passed a number of bills weakening it.
The high point for students’ rights this session was the last-minute passage of a resolution that joins with the ACLU and many other groups in calling on the Board of Education to delay implementation of a high stakes testing graduation requirement for high school seniors. The low point was the passage of legislation allowing for sex-segregated school activities.
The “War on Drugs"
Various bills dealing with regulation of drugs, and particularly marijuana, had hearings this year, but most were left on the table to deal with another day.
Rights of Ex-Offenders
There were mixed results this year on efforts to statutorily promote the rehabilitation rights of ex-offenders, but the passage of one positive bill was cause for some celebration.
Special Insert: 2013 Civil Liberties Voting Record
From the Desk of the Executive Director
After a difficult legislative session like this one, it would be easy to throw up one’s hands in despair. But that would be a big mistake.
True, General Assembly leaders -- and, ultimately, the Governor -- showed a remarkable lack of interest in protecting Rhode Islanders’ civil liberties this session. But if there’s one thing I’ve learned, it’s that every session is different. The vagaries of the process, and its volatile mix of politics and personalities, can quickly change things, even if for unfathomable reasons.
More importantly, though, even in a bad session, the ACLU’s crucial watchdog role cannot be discounted. To give just two of many examples, it was only ACLU vigilance that halted a quiet effort to make the state’s already-bad voter ID law even worse, and that prevented a new casino law from turning every casino employee into untrained police officers.
One other thing: bad bills pass because legislators vote for them. They need to hear from you, their constituents. Some of the votes on the enclosed scorecard should give you reason to contact them. Exercise your freedom of speech!
Thanks as always for your support -- in good times and bad!
-- Steven Brown
Governor Ignores Veto Requests
When the General Assembly passes bad bills, there remains an important avenue of recourse – the Gubernatorial veto. This year, the ACLU asked Governor Lincoln Chafee to exercise that power on seven anti-civil liberties bills, but he refused to stem the onslaught. He ended up vetoing only one: a bill providing DMV-generated license plate funds to an anti-abortion religious organization.
The bills he refused to veto allow sex-segregated extracurricular activities of any kind in public schools, authorize medical personnel to unilaterally disclose confidential health care information to police without patient consent, give an entire industry the power to randomly drug test all its employees, exempt from public scrutiny just about any school district records that relate to school safety, and turn third-time graffiti offenders into felons. It was a disappointing end to a disappointing session. Details on these bills appear below.
Limiting Abortion Coverage in Health Insurance (H 6300, H 6301, S 1038A) DIED
On the session’s last day, the Senate passed a bill requiring the inclusion in the state Health Benefits Exchange of plans that excluded abortion services. The bill would have limited reproductive freedom by permitting employers to select insurance plans that did not cover abortion, effectively denying their employees comprehensive reproductive health services. The ACLU argued that paying for insurance coverage that includes abortion did not impact the religious freedom of a secular employer any more than if the employee used their paycheck in ways objectionable to the employer, and that if this were a matter of religious freedom, the HBE would also need to include plans that didn’t cover blood transfusions and other medical treatments opposed by some for religious reasons. The bill died in the House after vigorous lobbying by pro-choice groups.
“Choose Life” License Plates (H 5053A, S 0298A) VETOED
Agreeing with church-state concerns raised by the ACLU, Planned Parenthood, and others, the Governor vetoed a bill authorizing the DMV to issue specialty “Choose Life” license plates. Years ago, the ACLU raised concerns about the creation of specialty license plates by a legislative, rather than an administrative, process, for fear it could lead to viewpoint discrimination when some license plates are approved and others are denied. The “Choose Life” license plate legislation exemplified that concern. The legislation was, in particular, an affront to church-state separation, as a portion of the fees for the license plates was earmarked for a local “crisis pregnancy center” whose mission is to “engage evangelicals in responding to the abortion crisis” and to “share the love and truth of Jesus Christ in both word and deed.”
Marriage Equality (H 5015B, S 0038A) PASSED
In 1997, then-Representative Michael Pisaturo first introduced marriage equality legislation. Along the way, the General Assembly offered “separate and not equal” solutions, such as domestic partnerships in 2002 and civil unions in 2011. The ACLU documented the unmitigated failure of the latter effort – only 68 couples took advantage of civil unions in the first year. Finally, seventeen years of advocacy paid off this year with passage of legislation granting full marriage rights to same-sex couples, which the Governor signed into law on May 2. The law also includes protections for those religious institutions that choose not to solemnize same-sex marriages. The legislation was sponsored by Representative Art Handy in the House, and by Donna Nesselbush in the Senate, who took over for Rhoda Perry after she retired from the Senate in 2012 and provided sponsorship of the legislation for twelve years.
Sex Discrimination in Schools (S 0012A) PASSED
In response to last year’s controversy in Cranston over school-sponsored father-daughter dances, the General Assembly severely weakened the state’s sex discrimination laws by allowing schools to promote sex-segregated extracurricular activities of all kinds – whether a science or debate club or after-school field trip. The ACLU testified that single-sex activities generally promote outdated stereotypes – as in Cranston, where girls were offered a dance and boys a night out at a baseball game – and violate federal anti-discrimination laws. In passing the bill, the General Assembly has established a gaping loophole in the state’s non-discrimination statute. Citing the bill’s clear conflict with federal law, the ACLU, joined by RI NOW, the Women’s Fund of RI and a dozen national organizations fighting for equal rights asked Governor Chafee to veto this regressive and discriminatory legislation, but he refused to do so.
Banning Gender Rating in Health Insurance (H 5243, S 0201A) DIED
The ACLU of RI pressed for passage of legislation, sponsored by Rep. Donna Walsh and Sen. Susan Sosnowski, barring health insurance companies from using gender as a factor in setting premiums. Nationwide, women are generally charged more for the same health insurance as men, solely because of their gender; as a result, women are disproportionately less able to purchase vital health care coverage. While this practice will become illegal for certain health care plans under federal law beginning in 2014, this ACLU of RI-drafted legislation sought to eliminate the practice across the board in Rhode Island. The Senate passed the legislation unanimously, but the bill never received a vote in the House.
Voter ID Repeal (H 5776, S 0359) DIED
The ACLU of RI testified before the Senate and House Judiciary committees in support of legislation, sponsored by Rep. Larry Valencia, repealing the state’s voter ID law. Voter ID was passed in 2011 over the opposition of many community advocacy and open government groups who expressed concern that it would impact the right to vote for those individuals least likely to have identification or the documents necessary to obtain ID, including the elderly, minorities, students, and the disabled. The law was to be implemented in two phases: a non-photo ID requirement to take effect in 2012, and a photo-ID-only requirement to begin in 2014. With difficulties faced by voters during the 2012 elections, the ACLU supported efforts to repeal the law before the more stringent photo ID requirement takes effect. In response, House leaders discussed passing a compromise version of the legislation that would freeze the voter ID law at its current non-photo ID requirements. As the bill was passed out of committee in amended form, however, it did something quite different – it actually made the law more restrictive by further limiting the types of IDs that would be acceptable at the polls in 2014. Following objections by the ACLU, the amended bill was recommitted and died. The ACLU will be back next year to seek the law’s full repeal once again.
Separation of Church and State
Tuition Tax Credits (H 5127A) PASSED
We previously noted the passage of a troubling bill (ultimately vetoed) that would have funneled DMV licensing fees to a religious anti-abortion organization. But some religious groups will get other funding this year, thanks to a budget amendment. Over the objections of the ACLU and public school advocates, the 2008 state budget included $1 million in tax breaks to businesses making donations to “scholarship organizations” that funnel financial aid to students attending private and parochial schools. Regrettably, with no fanfare, the House Finance Committee slipped into this year’s budget an amendment increasing the tax break to $1.5 million, despite the financial struggles of public schools.
Casinos (H 6221, S 979) PASSED
With table games legalized in Rhode Island, the General Assembly fast-tracked legislation overhauling the casino gaming statute and adding a number of new crimes, penalties, and regulations. As introduced, the bill carried a variety of provisions seriously impacting the due process rights of patrons, including one that gave casino employees police powers to forcibly detain and question patrons suspected of violating gaming laws. Fortunately, that section was stricken from the bill in acknowledgement of the ACLU’s concerns. However, despite other objections from the ACLU and many legislators, the bill was not amended to revise provisions imposing penalties of up to 10 years in prison and fines of up to $100,000 for violating new broadly-worded gaming crimes established by the legislation, including one barring the possession of tape, dental floss or other items that could be used for cheating.
Racial Profiling (H 5285, S 0145) DIED
For the past seven years, the ACLU has been part of a diverse coalition of organizations advocating for passage of the Comprehensive Racial Profiling Prevention Act. Unfortunately, the bills once again died in committee.
Mandatory Seat Belts (H 5140A, S 0352A) PASSED
In 2011, the General Assembly made seat belt violations a primary traffic offense, meaning that a person could be pulled over by law enforcement solely for failing to wear a seat belt. The ACLU and community groups objected that this would give law enforcement another tool to engage in racial profiling by allowing them to pull over, interrogate, and potentially search drivers who had otherwise done nothing wrong. The groups argued that such legislation should only pass in conjunction with the approval of anti-racial profiling legislation. As a compromise, the General Assembly included a provision in the legislation automatically repealing the seat belt law after two years. With that deadline approaching in June, the General Assembly voted to make the seat belt law permanent, despite continued protests from community groups who pointed to evidence suggesting that the law was in fact leading to racial profiling.
Cell Phone Warrants (H 5180, S 0291) DIED
As cell phone technology has advanced, the devices we carry on a daily basis have begun to carry substantial amounts of personal information, including e-mails, photos, and records of where we have traveled. For the second year, the ACLU testified in support of legislation sponsored by Rep. Edith Ajello barring law enforcement from searching the contents of an arrestee’s cell phone without a warrant. In 2012, the General Assembly overwhelmingly passed this legislation, but Governor Chafee unexpectedly vetoed the bill. This year, the General Assembly failed to even move the bill out of committee, despite police acknowledgement that it is a law enforcement best practice to seek a warrant prior to searching a cell phone. Fortunately, the courts stepped in this year: the U.S. Court of Appeals for the First Circuit recently ruled that the Fourth Amendment requires a warrant before police can search the content of arrestees’ cell phones, making the General Assembly’s refusal to re-approve the bill even more unjustifiable.
Cell Phone Location Tracking (H 5456A, H 5681, S 0284) PASSED
State lawmakers failed to protect residents from rampant phone location tracking. Proactive ACLU-drafted legislation would have barred law enforcement from obtaining cell phone location information from telecommunications companies without a warrant except in certain emergency circumstances. That bill failed to receive a committee vote. On the other hand, a bill expressly permitting companies to voluntarily release location information for any reason passed. That bill’s focus was on requiring companies to release cell phone location information to law enforcement in certain emergencies, but it further permits the warrantless disclosure of location information at any time.
Domestic Drones (H 5780, S 0411) DIED
The General Assembly considered, but took no action on, a pair of bills aimed at restricting the use of unmanned aerial vehicles, or drones, by law enforcement. Currently, state law lacks any privacy protections before drones can be used. ACLU-drafted legislation sought to implement some protections, including requiring a warrant before a drone can be used for most surveillance.
Employer and School Access to Social Media Accounts (H 5255A, S 0493A) DIED
As social media use has become ubiquitous, so too has the temptation for schools and employers to use social media information to observe the activities of students and employees. ACLU legislation would have protected users’ private social media profiles from undue intrusion by barring schools and employers from requesting or requiring students’, employees’ or applicants’ social media passwords, or otherwise gaining access to their private social media accounts. The bill passed the House unanimously, but for reasons never explained, was held up on the Senate floor and died there without a vote.
Employee Drug Testing (H 5696A, S 843A) PASSED
For years, Rhode Island has strongly protected the privacy of employees by barring most random drug testing in employment. This year, the General Assembly eroded some of that privacy by permitting the random drug testing of any person working in the “highway maintenance industry,” from highway workers to receptionists. The ACLU testified that random drug testing is unlikely to identify users of hard drugs, which are metabolized out of the body rapidly, but would likely identify users of marijuana, which stays in the body for weeks. This would include those holding medical marijuana cards and those who used marijuana – the small possession of which was recently decriminalized – during their off-work time and who were not under the influence while at work. The ACLU unsuccessfully urged the Governor to veto the bill.
Health Care Confidentiality (H 5561A, S 0459A) PASSED
The General Assembly rolled back health care confidentiality rights with passage of legislation allowing health care providers to disclose a patient’s personal medical information to law enforcement under a variety of circumstances, including when the provider believes the patient is a suspect or victim of a crime, or may possess information about a suspect, fugitive, material witness or missing person. In April, the ACLU testified that permitting this sort of disclosure without the patient’s consent inappropriately turns health care providers into de facto law enforcement operatives, taking their emphasis away from patient care to crime solving. Further, some in need of medical attention could forego care if they are concerned about the disclosure of their private information to law enforcement. Notwithstanding these concerns, the General Assembly passed the legislation. The ACLU, R.I. Medical Society and many other advocacy groups unsuccessfully sought a veto of the bill from Governor Chafee.
Strip Searches (H 5382, S 0466) DIED
In 2002, a federal appeals court covering Rhode Island ruled unconstitutional the arbitrary strip searches of persons arrested for minor offenses, and Rhode Island abided by that decision without serious incident for ten years. In 2012, unfortunately, the US Supreme Court overruled that decision by a 5-4 vote, opening the door for intrusive and unnecessary searches of arrestees being held for minor non-violent offenses. An ACLU bill would have reinstated the policy in place under the First Circuit decision, requiring law enforcement to have reasonable suspicion prior to performing a strip search of misdemeanant arrestees, and a warrant based on probable cause before conducting a body cavity search. No action was taken on the bill after vigorous opposition from the Department of Corrections.
DNA Testing of Arrestees (H 5205, S 0041) DIED
In June, a divided US Supreme Court ruled that collecting DNA from those merely arrested for serious crimes was not a violation of the Fourth Amendment. A few days later, the Senate passed a bill allowing DNA collection from any person arrested for a variety of offenses, including some banking violations. Under current state law, DNA can only be collected from individuals convicted of certain felonies; the ACLU testified that collecting from individuals who have merely been arrested undermined the presumption of innocence and was a dangerous step towards the creation of a comprehensive DNA database of all citizens. The legislation died in House Judiciary committee.
Gun Control – MIXED RESULTS
Despite the good intentions behind them, portions of a package of gun control bills introduced by the Assembly leadership contained troubling provisions, including mandatory minimum sentences and a lack of meaningful due process for gun permit applicants. Most of the bills died, but one of concern that passed creates a commission to initiate participation in a federal database of individuals with mental illness or substance problems for purposes of preventing them from purchasing firearms. The ACLU expressed concern that the database promotes the misimpression that people with mental illness are more likely to be violent, and could deter some individuals from seeking treatment.
Graffiti Penalties (H 6276, S 0548A) PASSED
The Assembly passed legislation drastically raising the criminal penalties for graffiti offenders, going so far as to turn graffiti into a felony at the third offense. The ACLU noted that these offenses are committed overwhelmingly by young adults and minors, and that imposing excessive fines and jail time upon these young people saddles them with a potential lifetime of consequences. Further, the legislation imposes harsher punishments for minors than adults, and shoulders parents with paying up to $10,000 in restitution and possible jail time if they fail to pay. Despite a request from the ACLU and a number of community groups to veto the bill, Governor Chafee signed it into law.
School Safety Documents (H 5941A, S 0801B, S 369A, H 5895A) PASSED
In a knee-jerk response to the Sandy Hook tragedy, the Assembly approved legislation that exempts all “school safety plan” documents from release under the Access to Public Records Act, and allows school committees to discuss those plans in complete secrecy. The ACLU testified that this would leave parents in the dark about what schools were doing to protect their children. Without public input, the ACLU argued, schools would be more likely to adopt flawed school safety plans, and nobody could determine if schools were meeting safety standards. As if that weren’t bad enough, legislators went on to approve a supplemental bill further exempting from public disclosure any school documents used to protect students from undefined “potential and actual threats.” Thus, school emergency plans in the event of a fire or hurricane will now be secret. Requests by the ACLU, Common Cause and other groups for a veto went unheeded.
When important issues arise, legislators, the Governor, and other decision-makers need to hear from you that protecting civil liberties is important to Rhode Islanders.
If you have a specific area of interest and would like to be kept apprised of hearings and other necessary legislative action, please contact Hillary Davis at (401) 831-7171.
Your voice can make a difference.
You can also sign up for our e-alerts to stay informed about our work and major issues that need your opposition or support, along with invitations to events and other timely information.
To receive e-alerts, visit our web site at: www.riaclu.org/get-involved/stay-informed.
High Stakes Testing (H 5277A, S 1047) JOINT RESOLUTION PASSED
In 2014, Rhode Island is scheduled to begin using passage of a standardized test known as the NECAP as a zero-sum graduation requirement. Such a test would have a devastating effect on the graduation rates of special education, limited English proficient, economically disadvantaged, and Latino and African-American students. Legislation strongly supported by the ACLU but opposed by the RI Department of Education would have banned the use of standardized tests for high stakes purposes. In its place, the General Assembly approved a joint resolution requesting the Board of Education to delay implementation of the high stakes testing requirement and instead consider a weighted compilation of assessments. The General Assembly has now joined the city of Providence and dozens of advocacy groups in expressing opposition to the current RIDE policy.
School Discipline (H 5754, S 0509) DIED
In June, the ACLU released a report documenting the rampant – and racially disparate – use of out-of-school suspensions across the state. Students are routinely suspended from school for small infractions that pose no risk or serious distraction to their peers, even though that punishment makes them far more likely than their peers to drop out of school and to end up in the criminal justice system. Minority students are also more likely to suffer suspensions, leading to a disproportionate number of minority youth pushed along the “school-to-prison pipeline.” ACLU-drafted legislation sought to limit the use of suspensions by requiring them to be served in-school unless the student poses a physical risk or serious distraction to other students. Further, the legislation required school districts to examine their discipline data and come up with plans to mitigate any racially disproportionate suspension rates that existed. The bill failed to receive a vote.
Internet Filtering (H 5652) DIED
In March, the ACLU released a report documenting the problematic use of Internet filters on school computers. Across Rhode Island, school districts are blocking from students vastly more information than was intended by the federal law requiring the use of filtering, leaving students unable to complete their assignments and teachers scrambling to change their lesson plans at the very last moment. H 5652 sought to address this issue by requiring school districts to maintain a detailed written policy regarding the use of their filters, permitting teachers to have websites unblocked in an expedient fashion, and reevaluating requests for unblocking annually to determine if any filter changes should be made. The bill was not voted on.
The “War on Drugs”
Marijuana Discrimination by Landlords (H 5437) DIED
The ACLU testified in opposition to a bill allowing landlords to refuse to rent to individuals based solely on their cultivation of medical marijuana. Landlords have the right to take recourse against those individuals who are violating the terms of their lease or threatening the health or safety of other tenants, but the ACLU argued that retribution against tenants solely because of their medical cultivation activities raised a number of privacy and discrimination concerns. The legislation did not move out of committee.
Prescription Monitoring Program (H 5756, 0647) PASSED
In an attempt to combat illicit prescription drug use, Rhode Island maintains a prescription monitoring database that records the information of any individual prescribed a medication that falls under certain sections of the Uniformed Controlled Substances Act. For years, the information contained within that database and who could access that information was largely unregulated by state law. The ACLU testified before House and Senate committees in support of legislation that would impose privacy protections on the database’s use. The legislation was originally intended solely to expand the number of medications within this database and permit the use of e-prescribing by doctors. After the ACLU raised concerns last year, the legislation was amended to include strong privacy protections to ensure the information of responsible patients remains uncompromised.
Rights of Ex-Offenders
“Ban the Box” (H 5507, S 0357) PASSED
One of the few positive pieces of legislation passed this year was “Ban the Box.” Employment is a pivotal factor in preventing recidivism, but well-qualified applicants with criminal records – even those from the long-distant past and irrelevant to the job for which they are applying – are often excluded from consideration before even having an interview, solely because they honestly answer the question, “Have you ever been convicted of a crime?” This legislation generally prohibits employers from asking that question at the initial application process, giving applicants a chance to be interviewed and an opportunity for employers to see an applicant’s qualifications and not solely their mistakes. The ACLU of RI assisted in the initial drafting of the bill, which was watered down significantly as it made its way through both chambers.
Legislative Wrap-Up and Dessert Evening
Wednesday, August 7th, 7:00 – 8:30 PM at the RI Council of Community Mental Health Organizations
Join us for a free panel discussion on the 2013 legislative session. Desserts and coffee will be served.
Benefit Concert with the Super Chief Trio
Saturday, September 21st – 8:00 PM at St. Paul’s Episcopal Church in Pawtucket
We invite you to attend an ACLU fundraiser featuring the danceable rhythms of the Super Chief Trio. Tickets are priced at $15 and are available at www.riaclu.org or 831-7171. Visit our website for more details.
Annual Banned Books Week Event
Thursday, September 26th, 2013 – 6:30 PM at the East Providence Public Library
The ACLU and the East Providence Public Library will celebrate Banned Books Week again this year with a reading of fan-favorite banned books by local authors. As always, this popular annual event is free and open to the public.
2013 Annual Dinner Celebration
Friday, November 8th, 2013 – 7:00 PM at the Providence Biltmore
Save the date for our Annual Dinner Celebration at the historic Providence Biltmore Hotel. Contact Megan at the ACLU office at 831-7171 if you wish to place an ad in this year’s program book.
The Affiliate offers its deep thanks and best wishes to Development & Communications Associate Meg Armstrong, who is leaving the ACLU next month. During her tenure here, Meg oversaw the revamping of our website, greatly expanded our social media presence, and helped write and publish a plethora of educational materials. The Affiliate wishes her the best in her new job. You can find details about the job opening at www.riaclu.org/careers.