January/February 2015 - an ACLU of Rhode Island Newsletter

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January/February 2015 Newsletter

Volume: XXI, Issue Number: 1

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Newsletter Contents

ACLU Highlights Racial Disparities In School-To-Prison Pipeline

As the nation continues to grapple with recent events that have pushed racial disparity issues back into the forefront, the ACLU of Rhode Island has issued a report calling on state and municipal leaders to examine policies, practices and procedures that lead to discriminatory treatment of black Rhode Islanders, from elementary school through adulthood. The report, titled “The School-to-Prison Pipeline in Black and White,” offers a brief but systematic examination of racial disparities in Rhode Island, and how those interconnected disparities can lead to a lifetime of unequal treatment.

Data has long shown that black Rhode Islanders are disproportionally suspended from school, stopped and searched by police, arrested, and incarcerated. When this data is compiled, as it is in the ACLU’s report, it becomes clear that the disproportionate singling out, scrutinizing, andpunishing of black Rhode Islanders is a persistent and far-reaching problem and one that contributes to the school-to-prison pipeline, a systematic pattern of pushing students, especially minorities, out of the classroom and into the criminal justice system.

The series of charts in the report show how the disparate punishments doled out as early as elementary school lead to more black youth being swept up in the juvenile justice system where they face harsher punishment than their white counterparts. As adults, black Rhode Islanders are disproportionately stopped and searched by police, exacerbating disparities in arrest rates even where black and white individuals commit infractions at roughly the same rate. The end result is a disproportionately black prison population. This racial disparity leaves the black community to bear the brunt of the socioeconomic consequences that follow incarceration, including lack of employment and denial of housing, perpetuating the cycle of unequal treatment.

The ACLU urged state and local leaders to help stop the school-to-prison pipeline by regularly examining the racial impact of their policies and procedures and developing plans to reduce racial disparities, and by supporting strong, comprehensive racial profiling legislation and bills limiting out-of-school suspensions.

ACLU of RI policy associate Hillary Davis said: “This report demonstrates what many have known for a long time to be true: life in Rhode Island is different depending on your skin color. It is our hope that this report will no longer allow these experiences to be discounted and ignored, and that Rhode Island’s leaders will come together to address the problem of racial disparities in Rhode Island before a larger crisis occurs.”

The full report is available online or as a .pdf file.


ACLU Settles Suit Requiring DMV To Establish Regulations For Uninsured Motorist Database 

In response to a lawsuit filed just days earlier by the ACLU, the Division of Motor Vehicles agreed to adopt regulations through a public process before using a new database designed to identify and possibly take action against uninsured drivers.

The ACLU sued the DMV for implementing its Uninsured Motorists Identification Database without first establishing any regulations to prevent the improper disclosure of drivers’ personal information, avoid mistaken registration revocations, or to otherwise ensure that the program is properly administered by the private out-of-state vendor contracted to run the program. The database is designed to compile information from insurance companies about the identities of insured drivers and information from the DMV about registered motor vehicles. The vendor matches the information to identify and notify vehicle owners who do not appear to have insurance. Residents must obtain or prove they have insurance within a specified period of time or else their registration will be revoked.

The lawsuit, filed by ACLU volunteer attorney Albin Moser, noted that insurance companies and the DMV had begun sending personal information about drivers to the vendor without any regulations whatsoever to address key issues over implementation of the database. The suit was filed after the ACLU learned that the first wave of notices to drivers who purportedly didn’t have insurance was about to be sent out by the vendor. Under the settlement agreement, the DMV must now establish regulations in accordance with the Administrative Procedures Act before any notifications are sent.

The ACLU’s concerns about having procedural safeguards in place before implementing the program are not without justification.  In 2012, for example, the ACLU successfully sued the DMV after it refused to reinstate a person’s driver’s license based on a “policy” that appeared nowhere in the agency’s rules and regulations. In 2010, the ACLU successfully settled another case after the DMV advised thousands of motorists that their license and registration would be suspended due to alleged unpaid fines that were the result of incidents occurring on “00/00/0000.”


ACLU President To Talk Policing at URI Panel

National ACLU president and Brooklyn Law School professor, Susan N. Herman, is participating on a panel hosted by University of Rhode Island’s Urban Initiative to discuss police practices, surveillance, militarization, and the changing philosophies of policing.

Ms. Herman will be joined by Yale University professor Vesla M. Weaver, Providence Public Safety Commissioner Steven M. Paré, and URI professor Leo Carroll to discuss these issues. Marc Levitt will moderate the panel.

The panel is scheduled for Wednesday, April 8 from 7 to 8:30 p.m. Visit www.uri.edu closer to this date for the event’s location.


Upcoming ACLU of RI Events

ACLU Advocacy Training Session
Saturday, March 14 at 2 p.m.
Rochambeau Library * 708 Hope St. * Providence RI, 02906
Learn how to be an effective champion for civil liberties by attending the ACLU of RI’s community seminar on advocacy and lobbying. Attendees will learn how to meet with state legislators, testify before General Assembly committees, monitor legislation, and organize other activists.

Women’s Rights Forum
Wednesday, April 1 at 6 p.m.
Knight Memorial Library * 275 Elmwood Ave. * Providence RI, 02907
Join RI NOW, Planned Parenthood of Southern New England, The Women’s Fund of Rhode Island and the ACLU of Rhode Island for a wide-ranging conversation about women’s rights, including issues related to health care, workplace discrimination, and education in Rhode Island and nationwide.

Civil Liberties Film Screening
Thursday, April 23, at 6 p.m.
Providence Public Library * 150 Empire St. * Providence RI, 02903
Watch a special free screening of a popular film with a civil liberties theme. Local experts will discuss issues raised by the film after the screening. Film choice: TBD

For more information about these events, call 831-7171 or visit www.riaclu.org/events


Peaceful Protests Under Extensive Surveillance By Providence Police; No Guidelines In Place

The American Civil Liberties Union of Rhode Island has raised concerns that, without any regulations governing the practice, the Providence Police Department has been videotaping peaceful demonstrations the past two years. Even more disturbingly, the videotaping has often focused on journalists and others recording the events, rather than the documentation of illegal activity.

In a letter sent to Public Safety Commissioner Steven Paré in January, the ACLU called on the police department to immediately halt this practice which raises serious First Amendment concerns, particularly when the recording takes place absent any reasonable suspicion that criminal activity is taking place.

The ACLU cited five occasions over the last two years in which Providence police were seen recording protests and demonstrations, either by video camera or cell phone, even though the Department has no policies or procedures in place addressing the collection or use of these recordings. The events included a protest march from the Khmer Buddhist Center to the Public Safety Complex in January 2013; a rally by the Unitarian Universalist church in support of striking hotel workers in June 2014; and two high-profile demonstrations this past November and December in response to the grand jury decisions in Ferguson, Missouri, and New York City.

In response to an Access to Public Records Act request, the ACLU learned that the Department has no applicable policies governing this surveillance. Further, although Department officials have been quoted as saying that the November and December marches were videotaped “in the event we need it for evidence,” a review of the police videos undermines that rationale. The footage the ACLU obtained from the Department often focused on people peacefully participating in or observing the demonstrations, not incidents of arrests or possible illegal activity Because of the surveillance, the letter stated, “demonstrators have since reported to the ACLU that they felt intimidated by these recordings and apprehensive about their potential use.”

The letter to Paré concludes by asking that the recordings be halted and that clear policies and procedures regarding the taking and use of recordings by Providence police officers be adopted. The ACLU is considering next steps, including asking the Providence City Council to address the issue.


In Memoriam

The ACLU lost two dedicated civil liberties activists in the past few months.

LILA SAPINSLEY died in December at the age of 92, after a life dedicated to the cause of women’s rights, open government and civil liberties generally. She promoted those causes in a variety of venues, including as a state Senator and Minority Leader, a member of the state constitutional convention in 1986, and as an outspoken advocate in the public arena. Only a month before her death, she had actively worked with the ACLU – and participated in a news conference – in our successful campaign against the November ballot question calling for a state constitutional convention. Her husband John, who died in 2012, was also active in the ACLU, having served on the Affiliate’s Board of Directors.

MICHAEL FELDHUHN died in January at the age of 56. He was an active, and very successful, ACLU volunteer attorney for many years, specializing in handling cases for the Affiliate dealing with employment discrimination. Last year, in his final case for the ACLU, he obtained a favorable settlement on behalf of an employee who had been fired from his job because of his use of medical marijuana.

The ACLU expresses its deepest condolences to both families.


The 2015 Legislative Session:
Proactive Civil Liberties Legislation

The 2014 General Assembly session could have been worse, but it means that a lot of the bad legislation we faced last year will be coming back for another round. Much of the legislation we'll face this year has not been introduced yet, so we will wait until our next issue to highlight some of the many bad bills for civil liberties the ACLU will be combatting. In this issue, we take a look at some of the proactive civil liberties bills the ACLU is supporting to protect and strengthen civil liberties in 2015.

Anti-Discrimination

Gender Rating in Health Insurance
Nationwide, women have historically been charged more than men for the same health insurance, disproportionately impacting the ability of women to purchase vital coverage. Although recent changes to health care law at the federal level have made that process largely illegal, certain provisions remain that perpetuate this discrimination. The General Assembly will consider a bill, sponsored by Sen. Susan Sosnowski and Rep. Katherine Kazarian, to rectify these issues and make sure no Rhode Islander is charged more for health care simply because of their gender. The bill passed the Senate last year.

Veterans’ Housing Discrimination
Some veterans in the state have reported facing discrimination in housing based solely on their veterans’ status. Currently, nothing in Rhode Island law prevents such discrimination. The General Assembly will this year consider legislation supported by the ACLU and housing advocates to make discrimination on the basis of veteran status illegal. The legislation passed the House last year, but died in the Senate after the R.I. Association of Realtors raised objections. That group has now withdrawn its opposition, and the ACLU is hopeful this will lead to passage of the bill this session.

Pregnancy Discrimination
Existing federal prohibitions against pregnancy discrimination in the workplace have proven ineffective in preventing women from facing serious penalties in employment because of their pregnancy or breastfeeding status. Pregnant women are often asked to weigh their health and the safety of their pregnancy against their need to work, sometimes even losing their jobs. The General Assembly will consider legislation to prohibit such discrimination by ensuring that pregnant workers can seek the same sort of modest accommodations that workers facing illnesses or disabilities can receive.

Privacy

Location Tracking
It is virtually guaranteed that the average Rhode Islander is carrying a cell phone at any given time. At the same time, it is virtually guaranteed that the cell phone is transmitting the location of that cell phone in almost real time, and that telecommunications companies can store that information and release it to law enforcement at will. In 2013, the General Assembly passed a law inadvertently making it even easier for telecommunications companies to share cell phone location information. This year, the General Assembly will again consider ACLU-supported legislation, introduced by Rep. Edie Ajello and Sen. Donna Nesselbush, ensuring location information can be obtained only with a warrant, except in circumstances involving the risk of death or serious physical injury.

Police Practices

Civil Asset Forfeiture
Under current law, police agencies can confiscate the money and property of a person suspected of having committed certain offenses, whether or not the person is ever convicted or even charged. Those belongings then become the property of law enforcement, and can be kept or sold with the proceeds going to those agencies. The burden is on the innocent property owner to get the money or property back by proving it was not unlawfully earned. This process not only undermines the presumption of innocence, it also gives policing an incentive to care as much about profit as about public safety. House Minority Leader Brian Newberry has submitted a bill to limit this practice, known as civil asset forfeiture, through a bill requiring an individual to be convicted of an offense before their assets can be relinquished, and ensuring that co-owners of assets are not unfairly punished.

Elections

Administrative Procedures Act
While most state agencies are required by a state law known as the Administrative Procedures Act to adopt rules and regulations through a public process, the state Board of Elections is inexplicably exempt from the law. As a result, the Board can adopt regulations governing our basic election process without having to go through a public notice or hearing process, all but eliminating the ability of the public to weigh in. Virtually no other major state agency is exempt from the APA; legislation introduced this year by Rep. Carlos Tobon and Sen. Stephen Archambault would remove the Board of Election’s exemption.

Prison-Based Gerrymandering
On the day the Census worker comes through to determine residency for voting purposes, every person residing at the ACI is counted as if they live on Howard Ave. in Cranston, even though inmates at the prison who are entitled to vote during their incarceration must do so from their home address. As a result, the voting power of the people living near the prison is inflated, while the power of those living in the communities from which the incarcerated individuals hail is reduced. The General Assembly will again consider legislation, sponsored by Sen. Harold Metts and Rep. Anastasia Williams, to rectify this issue by requiring incarcerated individuals be counted for voting purposes as living at their most recent address.

Voter ID Repeal

The General Assembly will once again consider eliminating the state’s harmful photo ID voter requirement, which disproportionately disenfranchises elderly voters, low-income voters, disabled voters, students and transient voters, and minority voters. Compromise legislation that was floated in previous years to “freeze” the voter ID requirement in a non-photo form was never adopted. This year, the General Assembly will be asked to consider repealing the voter ID requirement entirely.

Criminal Justice

Juvenile Life Without Parole
In 2012, the U.S. Supreme Court banned states from imposing on juvenile offenders a mandatory sentence of life imprisonment without parole. However, states retain the discretion to impose it on a case-by-case basis. Under a bill introduced by Sen. Gayle Goldin, however, that penalty would be off-limits altogether for juvenile defendants. As the Supreme Court noted, adolescence is marked by “transient rashness, proclivity for risk, and inability to assess consequences,” and juveniles who commit their crimes at that age should not be treated as being forever incapable of rehabilitation.

"The War On Drugs"

Good Samaritan Overdose Prevention
The state’s life-saving Good Samaritan Act is set to expire this year, and needs to be reauthorized. To help ensure that people do not hesitate calling 911 in the case of an emergency out of fear of jail time, the law prohibits law enforcement from arresting for certain drug crimes those who call for help in the case of a drug overdose. However, it does not prevent a person’s probation or parole from being violated. In addition to supporting reauthorization of the law, the ACLU and other advocates are therefore seeking an expansion of the law to protect individuals on probation or parole from punishment when they seek help in case of an overdose.

Regulation and Taxation of Marijuana
The “War on Drugs” has resulted in an astronomical number of individuals in jail instead of in treatment, and a disproportionate arrest rate for black individuals, even though blacks and whites use marijuana at roughly the same rate. The General Assembly will consider legislation confronting this drug prohibition, by regulating and taxing marijuana use by adults instead. Current prohibition policies have resulted in overcrowded prisons, not the reduction of drug use or exposure of children to drugs. This legislation would recognize the failures of existing drug policies, change the emphasis to treatment instead of incarceration, and help avoid the current situation that disproportionately falls upon black and Hispanic users.

Students' Rights

Internet Filtering of School Computers
The unrestrained use of Internet filtering software by schools leaves teachers unable to use their prepared lesson plans and students sometimes unable to complete their assignments. With little information as to what web sites are filtered, and no procedures in place for teachers to unblock information, use of the Internet often remains a frustration in the classroom instead of a useful educational tool. The General Assembly will consider an ACLU bill, sponsored by Rep. Art Handy, requiring school districts to craft policies and procedures governing the use of filtering software and the timely unblocking of websites when requested.

School Discipline
For the last two years, the ACLU of RI has documented the tremendous use of out-of-school suspensions as discipline against even the youngest students, and especially against students of color. Black and Hispanic students statewide are disproportionately likely to receive such punishment for minor infractions – particularly subjective offenses such as “disorderly conduct” and “insubordination.” The General Assembly will again consider ACLU-drafted legislation to reduce these disparities by requiring suspensions be served in school, unless the student presents a danger or serious disruption to the classroom. The bill, introduced by Rep. John Lombardi and Sen. Juan Pichardo, would also require school districts to evaluate their suspension data and determine a plan to reduce any racial or disability disparities.

School Computer Privacy
As technology becomes more ubiquitous, schools have begun handing out school-owned computers for at-home use by students. Although these devices are used in the home, they carry virtually no privacy protections, and some schools have even informed children the computers are subject to monitoring at any time, including by remote access while the child is at home. Legislation under consideration by the General Assembly this year would avoid the privacy problems other states have faced by clarifying that the devices may only be searched when there is reasonable suspicion to believe the child has engaged in misconduct, prohibiting remote access except in limited circumstances, and allowing parents to opt their children out of such one-to-one technology programs entirely.


Depending On Their Address, Students Could Face High-Stakes Testing

Over the objections of the ACLU and other community and advocacy organizations, the Council on Elementary and Secondary Education has voted to allow schools to implement high stakes testing for graduation as early as 2017, creating a system in which Rhode Island students will be held to different standards based solely on where they live.

The revised regulations had initially proposed implementing the PARCC exam as a high-stakes graduation requirement in 2020 in order to give students, parents, teachers and schools adequate time to prepare. A field memo issued by Department of Education Commissioner Deborah Gist has now gone even further, allowing schools to begin using students’ exam scores as a component of their grades as early as the next school year.

The ACLU noted that giving school districts discretion to implement high-stakes testing in 2017 will create a two-tiered system for students based solely on their address. The new regulation will also require students to pass this make-or-break test without time to ensure adequate teacher preparation and curriculum development, equitable computer training and access for all, and fair implementation for English Language Learners and students with disabilities. The ACLU is considering next steps. A broad multi-year campaign kept the state from implementing high stakes testing in 2014, as the Department had hoped to do.


ACLU Helps Stop Westerly School Committee “Gag Rule” Proposal

The Westerly School Committee rejected a proposed “code of conduct” after the ACLU of Rhode Island raised concerns that the proposed rules would limit the free speech rights of school committee members.

In a letter to the members of the Westerly School Committee, ACLU of Rhode Island executive director Steven Brown said the proposed policy raised serious First Amendment concerns and asked that the committee reject the proposal. The proposed rules would have required committee members to “support” all committee decisions, limited members’ ability to discuss committee matters in public and established consequences for violating these restrictions.

The ACLU’s letter stated: “School committee members have a right to express their objections to a school committee vote even if, as the policy notes, they are bound by it. They do not lose their right to free speech merely by being members of a majoritarian body, nor should their ability to express dissent be limited in time to the formal discussion of a motion at a school committee meeting.”

The ACLU contacted the school committee after hearing from a number of concerned residents about the proposal. While many of the ACLU’s concerns focused on the policy’s impact on school committee members, the ACLU pointed out that its real impact would have been felt on members of the public. “It is they who will ultimately be deprived of information from their representatives and deprived of the give and take that is essential in debating important issues of public policy – a give and take that should not be confined to the few hours each month that the school committee meets,” the letter stated.

After lengthy discussion, the school committee tabled the proposal by a 4-3 vote.


ACLU Testifies On State Regulations Related To LGBT Discrimination, Opioid Prescribing

Just about every month, the ACLU of Rhode Island testifies on various regulations being proposed by state agencies, and the first two months of 2015 have been no exception. Two key proposals that the Affiliate testified on are summarized below:

  • Discrimination Against LGBT Youth. The ACLU of Rhode Island commended the Department for Children, Youth and Families for proposing regulations to prohibit discrimination against LGBT youth in state custody. In testimony before the Department, the ACLU said the regulation’s goals of preventing harassment of such youth and ensuring that they “receive fair and equal treatment in a professional and confidential manner” were critical ones, and the proposal would help protect youth from discrimination on the basis of their sexual orientation, gender identity or expression. The Affiliate offered suggestions for expanding the protections even further, while also raising First Amendment concerns about provisions that called for punishing youth in state care for making “disrespectful” or “disparaging” comments.
  • Opioid Prescribing. Attempting to deal with an epidemic of drug overdoses in the state, the Department of Health has spent more than a year drafting regulations to deal with the prescription of pain management drugs. The end result, adopted this month after a fourth public hearing, is a much-improved but still problematic set of guidelines. Thankfully, gone are any suggestions that physicians consider contacting law enforcement or otherwise breach confidentiality in cases of suspected drug misuse by patients, but the final version still requires physicians to implement potentially burdensome “physician-patient agreements” that could deter some people with drug problems from seeking help from a physician. The ACLU will be monitoring implementation of the new regulations.