Legislative Issue 2014 - an ACLU of Rhode Island Newsletter

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Legislative Issue 2014 Newsletter

Volume: XX, Issue Number: 3

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Newsletter Contents

2014 Legislative Session Ends with High-Stakes Testing Victory, But Passage of Regressive Criminal Measures

Of the unexpected developments that unfolded in the 2014 legislative session, one of the most welcome for civil liberties came on the session’s last day when a three-year delay on using high stakes testing for high school graduation purposes was approved by the House after having been previously voted on by the Senate. This moratorium was a notable victory, as the ACLU had helped lead the charge for six years against the high stakes use of the arbitrary and discriminatory NECAP test, which was scheduled to take effect for the first time this year.

But this was not the only victory. In a step forward for privacy in the digital age, the General Assembly overwhelmingly approved a ban on schools and employers requiring or requesting access to social media passwords or other private social media information from students and employees. Civil liberties were also kept safe by the legislature’s inaction on a variety of dangerous criminal justice bills covering a wide array of subjects. Perhaps the most notable one in that regard, which the ACLU helped defeat, was an Attorney General bill that, for purposes of criminal sentencing, would have treated sex workers the same as human traffickers.

Of course, the ACLU had its share of defeats, as this was far from a rosy legislative session. Except for the two bills noted above, proactive ACLU legislation covering a wide array of topics died in committee, including a comprehensive package of law enforcement surveillance privacy bills and legislation to ban the use of gender rating in health insurance.  And a number of very regressive criminal justice measures promoted by the Attorney General passed. They include a bill now requiring the taking of DNA samples from people who have been merely arrested for certain criminal offenses, and a so-called “criminal street gang” bill that puts many inner-city youth at risk of extremely harsh sentencing penalties if they commit a crime at the direction of one of those ill-defined “gangs” or with any of its members.

This newsletter details some of the major bills the ACLU weighed in on, but you can learn more about them and dozens of others on our webiste. You can also keep up-to-date with our work throughout the year by signing up for our e-alerts, liking us on Facebook, and following @RIACLU on Twitter. We thank all of our members who took the time to respond to our postings or e-alerts and contacted their legislators.

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2013-2014 Civil Liberties Voting Record

Click here to see how your legislators voted on key civil liberties related bills.

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From the Desk of the Executive Director

Perseverance. It’s something that is necessarily in large supply at the ACLU, and it helps to remember that sometimes it pays off. That was certainly the case with the last-minute passage of legislation deep-sixing the infamous NECAP test and imposing a three-year moratorium on high stakes testing for high school seniors.

Since the Department of Education first proposed the test as a high stakes measure in 2008, the ACLU organized a large coalition and worked tirelessly to overturn this policy, first by getting RIDE to postpone its implementation three years ago to 2014, and now by getting the General Assembly to prevent it from taking effect.

Perseverance paid off in other ways this session. It helped kill on the session’s last day a terrible Attorney General bill that, incredibly, would have criminally treated many prostitutes as human traffickers.

Of course, perseverance isn’t a panacea. We still suffered some big losses this session – almost all at the expense of the Attorney General – but the results are nowhere as bad as they could have been. With your continued support, we will continue to persevere, whatever the odds.

          -- Steven Brown

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The Issues At A Glance

Students’ Rights
A highlight of this legislative session was the last-day approval of a three-year moratorium on the state’s use of discriminatory standardized testing as a zero-sum graduation requirement for high school seniors.

Privacy
Legislation restricting teachers and employers from gaining access to private social media accounts and information has become law, but the General Assembly failed to address other privacy concerns raised by technological advances, such as drones, automatic license plate readers, and cell phone tracking.

Abortion
The General Assembly considered no fewer than seven measures aimed at restricting reproductive freedom. Fortunately, none of them passed.

Civil Rights
Women and veterans may continue to face discrimination in health coverage and housing, respectively, after lawmakers failed to pass bills addressing problems in those areas, but the ACLU will be back next year supporting these two pieces of legislation.

Criminal Justice
The ACLU worked to kill a number of Attorney General bills that, in expanding the state’s computer crimes laws, would have had a chilling effect on free speech. On the other hand, a variety of other regressive AG crime measures passed.

Rights of Ex-Offenders
Legislation establishing draconian notification requirements and lifetime registration for sex offenders, including juveniles, died, but another overly broad bill prohibiting persons convicted of a sex offense with a minor from working at a wide range of jobs passed.

Immigrants’ Rights
Ten years after the ACLU filed a federal complaint regarding the lack of adequate court interpreter services, the Governor signed into law a bill expanding the availability of court interpreters for people with limited English proficiency.

War on Drugs
The legislature made it needlessly more difficult for medical marijuana patients to obtain their medicine and allowed landlords to discriminate against cardholders.

Voting Rights
Reform efforts to repeal the state’s new restrictive voter ID law and to end the practice of prison-based gerrymandering of voting districts both died.

Miscellaneous Bills
The ACLU also weighed in on a few hundred other bills affecting civil liberties, a few of which we summarize.

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Students' Rights

High Stakes Testing (H 7327, H 7672, H 8363, S 2185A, S 2059A) PASSED
One of the more passionate civil liberties discussions in the field of education has been around the issue of high-stakes testing, and the use of the NECAP exam as a zero-sum graduation requirement. Years of advocacy against this approach by the ACLU and others paid off this year, when the General Assembly passed legislation, sponsored by Senator Adam Satchell and Representative Gregg Amore, to impose a three-year moratorium on the use of such high stakes testing. Under Department of Education regulations that would have taken effect this year had this legislation not passed, seniors who “failed” the NECAP test would not qualify for a diploma.

At the beginning of the year, up to 40% of the Class of 2014 stood to lose out on their high school diploma solely because of the test. Special education, limited English proficient, economically disadvantaged, and Latino and African-American students were disproportionately affected. The ACLU, parents and students, community groups, and national education experts testified about the arbitrary and discriminatory nature of the NECAP test and its inappropriate use as a high stakes exam. Thanks to the legislation’s passage, those students who were unable to graduate in 2014 solely because of the NECAP requirement will be entitled to receive their diplomas.

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Privacy

Employer and School Access to Social Media Accounts (H 7124B, S 2095A as amended) PASSED
As social media use has become ubiquitous, so too has the temptation for schools and employers to use social media information to learn about the private lives of students and employees. ACLU-drafted legislation, spon-sored by Representative Brian Kennedy and Senator Dominick Ruggerio and signed into law, will protect users’ private social media profiles from undue intrusion. The new law generally bars schools and employers from re-questing or requiring student, employee or applicants’ passwords, or otherwise gaining access to their private social media accounts. The law also establishes privacy protections for student information kept in the “cloud” by school districts.

Privacy Protections from Surveillance Technology (Varied) DIED
A number of ACLU bills that were designed to address the serious and growing privacy concerns associated with police use of technological advances all died without a vote, but will be reintroduced next year. In response to law enforcement’s growing interest in drones, one bill, sponsored by Rep. Teresa Tanzi, generally would have required a warrant for their use by police. A similar growing police interest in the use of automated license plate readers prompted legislation, sponsored by Rep. Larry Valencia and Sen. Gayle Goldin, that would have placed limits on their use and the retention of collected data. Neither bill received a committee vote.

Another set of bills, introduced by Rep. Edith Ajello and Sen. Donna Nesselbush, would have protected the privacy of cell phone users. One bill prohibited police from obtaining cell phone location information from telecommunications companies without a warrant, and the other required law enforcement to obtain a warrant before searching a cell phone’s contents. As it turned out, the U.S. Supreme Court, citing the substantial amount of personal information stored on cell phones, issued a sweeping decision in June that essentially mirrored the ACLU bill, and declared that the Fourth Amendment requires police to obtain a warrant to search cell phones.

NICS (H 7939A, S 2774A) PASSED
The General Assembly passed legislation governing the transmission of mental health civil certification records to the National Instant Criminal Background Check System (NICS), a database used to determine who is eligible to purchase a weapon under federal law. Since October, the ACLU monitored and testified before the Joint Behavioral Health and Firearms Safety Task Force to ensure that any amendments to mental health confidential-ity laws were minimal, and to protect the rights of those who have received mental health treatment. In large part because of the ACLU’s work, the resulting legislation narrows the criteria for entering a person into the database, limits the amount of information transmitted to NICS, and allows for the expungement of information from the database after a designated period of time.

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Abortion

Abortion Restrictions (various) DIED
Among the many measures introduced this year that were aimed at restricting reproductive freedom was a bill requiring that an ultrasound be conducted on any woman before she could obtain an abortion. While the woman would be able refuse to look at the image, it would have been required to be displayed so she could see it, and the doctor would have had to provide a medical description of the images. Requirements like these are proven not to dissuade women from seeking abortions; rather, the legislation is designed to shame women seeking abortions. The bill died in committee without a vote.

Other anti-abortion bills that died without a vote included a “fetal protection act,” under which people who un-lawfully caused a woman’s miscarriage at any time of pregnancy could be charged with murder; imposing penal-ties on abortion facilities that failed to post signs about the illegality of “coercing” women to have abortions; an attempt to resurrect a ban on so-called “partial birth abortions” that had been previously ruled unconstitutional; and a bill allowing the “father of an unborn child” to sue a doctor if an abortion was purportedly performed at a woman’s behest on the basis of the fetus’s sex. None of the bills had a legitimate medical purpose; all were aimed at undermining Roe v. Wade.

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Civil Rights

Gender Rating in Health Insurance (H 7177, S 2221A) Passed Senate, Died in House
In April, the Senate for the second year in a row ap-proved legislation barring health insurance compa-nies from using gender as a factor in setting premiums.  Nationwide, women have historically been charged more for the same health insurance as men, solely because of their gender, leaving women less able to purchase vital health care coverage.  This practice became illegal for certain health care plans under recent federal law, but gaps in that law con-tinue to allow the practice to exist in some plans.

Sponsored by Representative Donna Walsh and Senator Susan Sosnowski, this bill sought to close those gaps and ensure that gender rating cannot occur in Rhode Island regardless of any changes to federal law. House Corporations Committee failed to vote on the bill after its passage by the Senate.

Military Status Housing Discrimination (H 7393A, S 2809) Passed House, Died in Senate
Complaints by some of Rhode Island’s military veterans that they had been discriminated against in housing because of their veteran status prompted legislation by Representative Jan Malik and Senator Walter Felag to make such discrimination illegal. The ACLU testified in support of the legislation, and also worked out compromise language with the RI Association of Realtors, which initially opposed the bill, to ensure protection to veterans who receive non-standard “administrative” discharges.

The House passed the legislation, but despite the agreement reached by all the parties working on the bill’s language, it died in the Senate without receiving a committee vote. The bill will be reintroduced in 2015.

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Criminal Justice

Larceny of Farm Products (H 7619A, S 2643A) PASSED
Rhode Island law generally makes larceny a felony if the item stolen is worth $1,500 or more, but legislation passed by both the House and the Senate drastically undercuts this limit, declaring larceny of “farm products” to be a felony, carrying a five-year prison sentence, if the items stolen are worth more than $250. The ACLU argued that elevating an offense like this from a misdemeanor to a felony solely because it took place on a farm instead of a person’s backyard was far out of line with current laws, and went against a nationwide trend of reducing, not increasing, prison sentences for relatively minor offenses. The ACLU requested a veto from the Governor, but he signed the bill into law.

Human Trafficking (H 7612A, S 2602) Passed Senate, Died in House
A prime example of how quickly legislation can go from good to bad came in the form of an Attorney General bill, passed by the Senate, that purported to strengthen the state’s laws against human trafficking, but in fact undermined the law entirely. The legislation eliminated any distinction between consensual prostitution and human trafficking, imposing the same penalties – including up to twenty years in prison – on those who partici-pate in consensual sex work as those who kidnap and force victims into the sex trade. The ACLU, joined by RI NOW and national anti-trafficking organizations, and with assistance from Rep. Edith Ajello, engaged in a suc-cessful end-of-session effort to stop the bill; the House Judiciary Committee approved the legislation, but it nev-er reached the floor for a vote.

DNA Testing of Arrestees (H 7304A as amended, S 2101B) PASSED
One of the ACLU’s biggest losses this year was passage of a bill the Affiliate had managed to keep bottled up for almost a decade. The legislation requires the collection of DNA samples from people who are merely arrested for certain designated “crimes of violence,” defined to include offenses like larceny. The ACLU testified that the bill undermined the presumption of innocence and represented a dangerous step toward the creation of a comprehensive DNA database. Additionally, this expansion of DNA testing will place a significant burden on the De-partment of Health, exacerbating an existing backlog and delaying justice in those cases where DNA is a critical investigatory element. The bill had passed the Senate for many years, but had always died in the House until this session. While the House did add a few procedural safeguards to the bill, the legislation will still result in a tre-mendous invasion of privacy for many innocent Rhode Islanders. The ACLU unsuccessfully requested the Gov-ernor veto the legislation. Passage of the bill was only made possible by a U.S. Supreme Court decision last year that, by a 5-4 vote, upheld the constitutionality of laws like this.

Street Gangs (H 7457 as amended, S 2639 as amended) PASSED
After more than an hour of heated debate on the last day of the legislative session, the House approved an Attorney General bill imposing up to an extra ten years in prison for individuals who participate in crimes if they are deemed to do so as part of, or just on behalf of, a vaguely defined “criminal street gang” or any of its members. The legislation broadly defines a “criminal street gang” as any group of three or more persons, whether formal or informal, which has an identifiable name or sign, color or symbol and engages in criminal or delinquent acts. The bill’s greatest impact could be on young people coerced into criminal conduct on behalf of a gang. The ACLU and more than 20 community organizations urged Governor Chafee to veto the bill, but he signed it into law.

Computer Crimes (Various) Mixed Results
The Attorney General proposed a package of “computer crimes” legislation that raised serious First Amendment concerns. Most of the bills were rejected, while two passed in watered-down form. Among the bills that the ACLU helped defeat were ones broadening the crime of “cyberharassment” to include posting a single message online if it was used by others to “harass” an individual; imposing felony penalties against a person who retransmitted a “sexually explicit” image without the subject’s express consent, even if the photo had been taken consensually; and establishing severe penalties for accessing a computer without authorization, even though the bill made no distinction between hackers or commercial spies and whistleblowers or curious spouses. Two bills opposed by the ACLU that did pass in amended form may be subject to legal challenge depending on how they are enforced. One makes it a felony to electronically disseminate confusingly defined “indecent material” to minors; another criminalizes using without consent “the name or persona of another person” online, including an elected official, with the intent to cause “harm.” The ACLU argued that the broad wording of the bill could be used to target, among other things, satirical websites.

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Rights of Ex-Offenders

Criminal Background Checks (varied) MIXED RESULTS
Over the past several years, the General Assembly has passed a number of laws requiring nationwide criminal background checks to be conducted on employees and volunteers across a wide spectrum of job titles, and this year was no exception. By the end of the session, the General Assembly had approved bills requiring national background checks and fingerprinting for firefighters, municipal recreation department employees and volunteers, various school vendors and contractors, and nearly every employee of any long-term care facility in the state.

As with bills passed in previous years, there is little consistency to them. The laws vary on what criminal convic-tions disqualify a person from employment (some don’t specify at all), who has access to the criminal record in-formation, and what happens with it once it is obtained. Some, like the long-term care bill, include language re-quested by the ACLU to give individuals the opportunity to be evaluated on their own merit and not solely because of their criminal record. But they all undermine the “ban the box” law enacted just last year that was de-signed to limit the ability of employers to make early inquiries into a job applicant’s criminal record. Fortunately, some additional bills expanding criminal checks for other professions, such as taxi drivers, failed.

“Child Safe Zones” (H 7764A as amended) PASSED
In the early morning hours of the last day of the session, the House and Senate approved legislation prohibiting any person convicted of a sex offense with a minor from holding employment in a wide range of jobs, even if that job never involves interaction with a child. The ACLU testified that the legislation’s attempt at creating so-called “child safe zones” was too broadly worded, prohibiting individuals from being employed in any capacity by third-party vendors and contractors who did business with facilities serving children, but who themselves never had contact with children. Further, the legislation included no grandfather clause, meaning that individuals cur-rently employed by these facilities will no longer to be able to hold their job, no matter how long they had been working there. Although he acknowledged that the bill was vague and overly broad, Governor Chafee signed the bill into law.

Sex Offender Registration and Notification (H 7425) Passed House, Died in Senate
The Senate took no action after the House approved legislation overhauling the state’s sex offender registration and community notification laws, replacing them with federal standards so costly that few states have chosen to implement them. The federal Sex Offender Registration and Notification Act (SORNA) 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. ACLU volunteer attorney Katherine Godin testified that notification laws hinder rehabilitation and ignore the reality of sex offenses, which is that 90% or so of them are committed against victims whom the perpetrator knows, not by strangers. Similar legislation was passed by the House last year, but it died in Senate committee, as it did this year.

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Immigrants' Rights

Court Interpreters (H 7306, S 2549) PASSED
The Governor signed into law a bill expanding the availability of interpreters in court proceedings for people who do not have the ability to understand or communicate effectively in English. The ACLU filed a complaint ten years ago with the U.S. Department of Justice about the lack of adequate court interpreters for individuals whose English proficiency is limited; that complaint resulted in a comprehensive settlement earlier this year, including the introduction of this legislation. The bill helps ensure equal access to justice for all individuals, regardless of their language proficiency.

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The "War On Drugs"

Medical Marijuana (H 7610A) PASSED
The state’s medical marijuana program suffered a huge setback when the General Assembly passed Attorney General legislation promoting discrimination and harassment of marijuana cardholders. The legislation limits the amount of marijuana that can be cultivated at any time, and allows landlords to discriminate against cultivating cardholders by refusing to lease to them. Many patients and caregivers who grow marijuana will now also be required to obtain a municipal zoning inspection. In short, the bill makes participation in the program much more onerous. Although the Senate version of the legislation never made it out of committee, Senate leadership brought the House bill directly to the floor for a vote, where it was approved.

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Voting Rights

Prison-Based Gerrymandering (H 7263, S 2286A) Passed Senate, Died in House
The Senate passed important legislation, sponsored by Senator Harold Metts, designed to address the problem of prison-based gerrymandering. When it comes to drawing voting districts, any individuals incarcerated at the ACI in Cranston on the day of the Census are recorded as living there, including individuals awaiting trial or serving misdemeanor sentences who must vote from their home address.  As a result, Cranston is overrepresented in the General Assembly compared to the districts from where prisoners hail.  Presently, approximately 15% of one House district in Cranston is comprised of individuals who cannot vote there. 

This legislation, sponsored on the House side by Rep. Anastasia Williams, would require all prisoners to be counted, for voting purposes, at their last known address. Unfortunately, the bill failed to receive a vote on the House side, perhaps due in part to the fact that the House Speaker represents one of the affected districts. In the meantime, an ACLU lawsuit challenging this practice at the city level is pending in federal court.

Voter ID Repeal (H 7767, S 2641) DIED
As of January 1, 2014, Rhode Island requires all voters to show certain forms of photo ID at the polls before they can cast their ballots.  The ACLU and many other civil rights groups opposed to this law are concerned about its impact on the poor, the elderly, racial minorities and other vulnerable groups least likely to have the requisite photo ID or the documents necessary to obtain one. The ACLU testified in support of legislation, sponsored by Rep. Larry Valencia and Sen. Gayle Goldin, that would have repealed this onerous voter ID requirement.

As a backup, the ACLU and other groups urged support for a compromise that would freeze the law at its 2012 level, when various non-photo IDs were accepted at the polls. Despite promising discussions early in the year, the legislation died without a vote; all voters will be required to give photo ID at the polls this election season. The ACLU will vigorously monitor voting this year in an effort to gather evidence to support repeal of the law.

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Miscellaneous Bills

  • No vote was taken on ACLU legislation sponsored by Rep. Arthur Handy that addressed the overuse of Internet filters on school computers that can block students from a wide range of information on the Web. 
  • Another ACLU school bill, sponsored by Rep. Teresa Tanzi and Sen. Juan Pichardo, to limit the use of out-of-school suspensions and address the pervasive racial disparities in discipline rates, also died. The bill followed the release of an ACLU report documenting the severity of the suspension problem.
  • ACLU lobbying helped defeat a bill to give police departments additional time before having to appear before a judge to justify their obtaining residents’ Internet subscriber information without a warrant.
  • The General Assembly passed a constitutionally problematic bill allowing the Department of Corrections to go to court to modify the terms of a person’s probation at any time, thus adding a major level of uncertainty and confusion into the plea bargaining process.
  • Although the House overwhelmingly approved it, the Senate failed to act on a bill to repeal an archaic statute prohibiting the distribution of most anonymous political literature. The bill’s passage would have made moot a pending ACLU lawsuit challenging the law, and on which the ACLU expects to prevail.

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Governor Chafee Disappoints With Lack of Vetoes

As was true last year, Governor Lincoln Chafee failed to exercise his veto power to rein in the General Assem-bly’s excesses. The ACLU asked him to veto six separate bills this year, but he vetoed none of them, including two -- those dealing with “criminal street gangs” and restricting medical marijuana – that had generated a great deal of controversy and dissent. Last year, he vetoed only one of seven bills on which the ACLU sought a veto.

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Legislative Wrap-Up and Dessert Evening

Join us on Wednesday, July 30 at 7 p.m. at the Jewish Community Center for our annual panel discsussion with state legislators on civil liberties and the 2014 legislative session. Representative Edi Ajello, Representative Larry Valencia and Senator Gayle Goldin will share their thoughts this year. Desserts and coffee will be served.

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2014 Annual Meeting

Save the date for our Annual Meeting Celebration on Thursday, October 23 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.

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