2011 Legislative Session
Despite these defeats, however, a handful of important Affiliate initiatives also made it into law, and the ACLU’s presence helped deflect a number of dangerous bills. For example, the General Assembly did pass 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. ACLU lobbying also assisted in the defeat of two bills tinged by anti-abortion restrictions, as well as the demise of a handful of dangerous pieces of criminal justice legislation.
In 2011, the ACLU lobbied on hundreds of bills. The summary below only touches on a portion of our work this legislative session, but nonetheless illustrates the broad spectrum of work we did at the State House this year.
Genetic Counselors (H 5251)Died
Abortion also tangled up a bill that sought to establish licensing procedures for the profession of genetic counselor. In this instance, it was the House that was responsible for the mischief, quietly 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 ACLU vigorously opposed the scope of the amendment. The Senate refused to take up the bill, following the lead of the Senate sponsor, Rhoda Perry, who strongly objected to the amended language.
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-abortion 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 legislation, and when the Senate refused to back down on the amendment, the House let the entire bill die.
Civil Rights Bills
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. Read our press release regarding the abandonment of marriage equality legislation.
Anti-Shackling of Pregnant Prisoners (H 5257, S 165)Passed
On June 8th, Governor Chafee signed into law a bill supported by the ACLU, the RI State Nurses Association, RI NOW and other groups 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. Read summarized bullet points of the bill here and reasons why we supported the bill here.
Criminal Justice Bills
DNA Testing of Arrestees (H 5132, S 120)Died
The ACLU, the Public Defender and the Urban League all testified in opposition to legislation that would have required the collection of DNA samples from any person arrested for a felony. This practice flies in the face of the presumption of innocence which is 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 failed to move out of committee in the House. Read our testimony here.
Good Behavior Sentence Reductions (H 5990, S 753)Died
The ACLU testified before the House and Senate Judiciary committees in opposition to 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 within the prisons, “good time” provides an important incentive to prisoners to participate in treatment and educational programs, potentially reducing their recidivism rates. The bill would have significantly undermined a law that was enacted only three years ago with support from the Governor, Attorney General, Department of Corrections and Parole Board, to address severe overcrowding problems at the prison. This year’s legislation was in response to the imminent release of Michael Woodmansee, who had served 28 years for the murder of a child. The bill was promoted by the Attorney General, but the DOC and Parole Board registered strong opposition to it. The legislation, which carried a price tag of more than $12 million dollars for its first few years alone, passed the Senate but failed to move in the House.
Civil Commitment (H 5874)Died
In yet another response to the Woodmansee case, the General Assembly considered, but ultimately took no action on, legislation to funnel prisoners deemed unable to reenter society into mental health facilities after the completion of their prison terms. Billed as a way to provide extra rehabilitation services and protect the community from sex offenders in need of psychiatric treatment, the bill in fact would have served as a way to impose a secondary sentence on individuals after they served their prison sentences. The ACLU, along with several mental health agencies, testified before the House judiciary committee about the significant constitutional and social problems with this legislation. Read our testimony here.
Sex Offenders (H 5129, S 833)Died
As in past years, the Affiliate testified against efforts to expand the scope of the state’s current sex offender registration and notification laws. The federal Sex Offender Registration and Notification Act (SORNA), which the Attorney General sought to have the legislature implement, includes draconian public notification requirements, lifetime sex offender registration even for juvenile offenders, as well as retroactive registration for persons whose offenses may have occurred decades earlier. The estimated fiscal costs for implementing the federal law are so high that only seven states in the country have opted to come into compliance with SORNA. The ACLU testified that notification laws hinder rehabilitation and ignore the reality of sex offenses, which is that over 90% of them are committed against victims whom the perpetrator knows, not by strangers. The legislation did not progress past the committee hearings.
Ignition Interlocks (H 5506, S 734)Died
The Affiliate testified in opposition to mandatory ignition interlock requirements for all individuals convicted of driving under the influence of liquor or drugs. This legislation would have taken away the ability of judges to apply individualized sentences, requiring ignition interlock devices both for first time offenders and those convicted of driving under the influence of substances for which the interlock system could not test. Neither bill made it out of committee this year.
Immigrants' Rights Bills
E-Verify (H 5043, H 5312, S 337)Died
The year got off to a positive start when, on his first day in office, Governor Chafee signed an executive order lifting a requirement that state agencies and business contractors use the deeply flawed federal E-Verify program to check the immigration status of workers. Shortly after the executive order was signed, the ACLU testified in House committees on legislation that would have reinstated use of this program, which is not only error-prone but has been misused by employers to engage in workplace discrimination on the basis of national origin. The Affiliate also testified on a pro-active bill, H 5225, sponsored by Rep. Grace Diaz, to keep E-Verify voluntary, and to provide recourse for individuals who felt they were inappropriately pre-screened by an employer. By the session’s end, neither bill had moved out of committee. Read our written testimony regarding the problems with E-Verify here.
Secure Communities (H 5873, S 632)Died
The Affiliate also testified in opposition to legislation to require all communities to participate in the federal Secure Communities program, which requires an automatic check of the fingerprints of any arrested individual against immigration databases. The Affiliate testified that Secure Communities has a devastating impact in immigrant neighborhoods, damaging community relations with police officers and deterring individuals from coming forward with information about crimes, for fear that they or family members could be deported. The legislation failed to move out of committee.
Open Government Bills
School Committee Meeting Notices (H 5894, Article 12)Passed
The General Assembly, in an effort to ease the financial burden on school districts, has eliminated a requirement that districts post advance notice of school committee meetings in newspapers. Under the new law, notices need only be posted on the internet. The ACLU testified against the proposal, asking legislators to take into account the “digital divide” between households that have internet access and those that do not.
Central Falls Receivership (H 5922, S 619)Passed
A law passed last year allowing the state to appoint receivers to take over fiscally-distressed municipalities was strengthened this year over objections from the ACLU and lawmakers from Central Falls. The new law essentially codifies a R.I. Supreme Court decision allowing the receiver to supersede the actions of elected officials even on matters unrelated to the municipality’s finances. The ACLU considers the law to be a complete undermining of the electoral process in distressed communities.
Open Records (H 5809)Died
ACLU efforts to strengthen the state's open records law, known as APRA, fell short this year. The bill's sponsor, Rep. Michael Marcello, sat down with bill supporters and opponents at the end of the session to see if a compromise could be worked out, but time ran out. Among other improvements, the legislation would shorten the timeframe for public bodies to respond to open records requests, increase penalties for violations of the law and require training of public information officers on their obligations under APRA. The ACLU, Common Cause, the RI Press Association and ACCESS/RI -- the major proponents of the bill -- hope to make passage of the legislation a priority in 2012.
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 keeps newborn screening focused on diseases which are treatable in childhood.
Social Security Numbers (H 5202, S 179)
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, 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. Read testimony concerning the bill by Robert Ellis Smith, attorney and publisher of the Privacy Journal newsletter, here.
Internet Subpoenas (H 5093, S-781)Passed
An extremely 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 introduction of these new crimes has 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, the legislation was signed into law by the Governor on July 1 over ACLU requests that he veto the bill. Read our veto letter to the Governor here and the concerns of the Press Association here.
School Bus Cameras (H 5657, S 0144)Passed
The Affiliate testified in opposition to legislation amending current law allowing the use of cameras on school buses to catch drivers who unlawfully pass them. The ACLU has long opposed the increasing use of cameras in traffic enforcement, and renewed those concerns in regard to this legislation. The legislation enacted this year permits the companies owning these cameras to receive a portion of the revenue garnered from tickets issued by these cameras, providing an incentive to these companies to encourage traffic law violations rather than prevent them. On a positive note, the legislature agreed with the Affiliate that a new section of the bill permitting the use of the cameras to ticket drivers for following too closely behind a school bus was unreasonable, and eliminated that provision.
Racial Profiling Bills
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 demonstrated consistently that blacks and Hispanics are twice as likely as whites to be stopped and searched by police, yet are less likely to be found with contraband. This legislation built upon existing anti-profiling legislation 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 Campaign 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.
On February 22, youth and adults spoke powerfully at a press conference about their experiences with racial profiling in hopes their words may lead to comprehensive legislation. Read more about the bill here.
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 unless legislation to reduce racial profiling is also enacted. 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 bill this year after years of rejecting the proposal. Read this year's ACLU testimony here.
Rights of Ex-Offenders Bills
Criminal Background ChecksMostly 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 the bills: 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 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. This legislation lacked an appeal process required by federal law, and required employees to pay for their own background checks. Disturbingly, it also set up a system whereby employers were notified if their employees were ever arrested of any crime, regardless of its relevance to their work and regardless of the outcome. The United States Bureau of Justice Statistics has acknowledged on several occasions that the national database used to complete these checks is riddled with errors. Since the state has obtained some federal grant money to implement a fingerprinting program for these facilities, the legislation will be back next year. Read our concerns regarding the expanding use of fingerprinting here, read our letter to the governor asking for a veto of several bills concerning criminal record checks here, and a summary of our opposition to the aforementioned Attorney General bill here.
“Ban the Box” (H 5101)Died
In March the ACLU testified before the House labor committee in support of a bill that would bar employers from asking about an applicant’s criminal history before determining whether or not they are a qualified candidate for the job. The ACLU testified that, in addition to other provisions, the elimination of a question on initial job applications regarding past convictions, “the box,” would make it easier for qualified individuals who have a criminal history to find jobs, thereby greatly promoting rehabilitative efforts. The bill failed to progress out of committee.
Students Rights Bills
Texting (S 764)Died
The Affiliate testified in opposition to a bill to ban texting by students during school hours. The bill allowed schools to confiscate a child’s cell phone for days, weeks, or even the remainder of the school year with no opportunity for parents to object, and with no protections in place to prevent school officials from looking through a student’s cell phone at will. Through close work with the Senate Education Committee, some of the ACLU’s concerns were addressed in the final version of the bill. The bill ultimately died in the House.
Recovery High Schools (H 6055, S 439)Passed
The General Assembly enacted legislation creating a pilot recovery high school program for students with substance abuse addictions. The Affiliate had a number of initial concerns about the legislation, testifying in committee that the bill did not ensure that participation in these schools was voluntary for the students, and failed to contain adequate privacy protections. These concerns were addressed in the final version of the bill passed by both Houses.
Voting Rights Bills
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 twenty organizations – including the NAACP, the RI Commission for Human Rights, the AFL-CIO, 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. More information about the impact of voter ID laws can be found in this fact sheet, a coalition news release here, a coalition letter sent to Governor Chafee here, and list of organizations opposed to voter ID legislation here.
War on Drugs Bills
Marijuana Decriminalization (H 5031, S 270)Died
House and Senate committees heard testimony, but took no action, on several marijuana-focused bills this year. The ACLU testified in strong support of bills which would have made possession of less than an ounce of marijuana a civil offense. While marijuana decriminalization received significant support at the committee hearing, no vote was taken. A second marijuana bill, opposed by the ACLU, would have permitted landlords to refuse tenancy to individuals legally growing marijuana for medical purposes. The ACLU testified that the bill unfairly punished legal medical marijuana growers and that existing law gave landlords appropriate recourse to deal with concerns regarding their tenants.
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 it to receive a share of forfeited money (which is currently distributed among police departments, the Attorney General’s office, and the Department of Health for anti-drug programs), 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 drug 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. Read our testimony here.