2013 LEGISLATIVE REPORT
Death Penalty Repeal - VICTORY!
This year Maryland became the 18th state to repeal the death penalty. The ACLU of Maryland was part of a large and broad coalition working for repeal. As many of our supporters know, in 2009 the legislature came close but fell short of a full repeal, and ended up restricting the use of the death penalty. Despite those restrictions, the legislature finally came to understand that the death penalty is racially biased, expensive and ineffective as a deterrent. The ACLU of Maryland has a long history in this fight. In 1994, we mounted an unsuccessful legal challenge against the execution of John Thanos, the first Marylander to be put to death after the Supreme Court reinstated capital punishment in 1977. There have been gains and setbacks, but we have never stopped fighting against this heinous punishment. We knew that with the dedication and hard work of inspiring coalition partners, the strong support of the Governor and a growing number of elected leaders, and evolving public sentiment, this historic day would come.
Decriminalizing Possession of Small Amounts of Marijuana
Arrests and convictions for the non-violent offense of marijuana possession is a costly and wasteful practice that disproportionately targets communities of color. The ACLU supported and advocated for a bill, SB 297, which would have decriminalized possession of small amounts of marijuana. While SB 297 made historic progress by passing the State Senate, the bill stalled in the House Judiciary Committee. The ACLU will continue to be a leader in advocating for sensible and fair marijuana laws.
Sixth Amendment Right to Counsel - VICTORY!
Indigent defendants' Sixth Amendment right to counsel was severely threatened by HB 153. The legislation would have terminated a defendant's representation by the Office of the Public Defender after the conclusion of the bail hearing, forcing the defendant and the OPD to go through the wasteful process of re-qualification. This bill would have infringed upon the constitutional requirement that an individual is entitled to appointed counsel during any "critical stage" of a criminal proceeding against them. And the legislation would have especially penalized and threatened the rights of people of color, as there are wide racial disparities in Maryland with regard to who is arrested and detained. Despite both the Senate and the House of Delegates passing versions of the bill, the ACLU and a strong coalition of civil rights and criminal justice groups managed to defeat it in the final hours of the 2013 General Assembly session. The ACLU will continue to be a leader in defending poor persons' constitutional rights to counsel by public defenders.
Task Force to Study Private Diversion Programs
The ACLU of Maryland supported SB 793/HB 1018, which would establish a task force to study the use of private diversion programs. The bill sought to study a growing trend, both in Maryland and around the country, of allowing private, for-profit companies to threaten criminal prosecution (using prosecutors' official letterhead) by targeting offenses such as alleged bad check writing, even if prosecutors have not conducted any meaningful review of the allegations. The letters tell recipients that they can avoid prosecution by paying hundreds of dollars to attend "financial accountability" classes offered by the private companies. In exchange, the prosecutor's office gets a share of the money raised from the classes' attendance fees.
These programs raise many troubling questions, such as whether the local prosecutor is actually investigating the claims that a crime has occurred, the adequacy of the proof of criminal violations, the degree of supervision by prosecutorial staff, the conflict of interest when investigations are conducted by companies with a financial stake in the outcome, the financial benefits to prosecutors' offices that get a portion of the program fees, and the constitutional rights of individuals subjected to these practices.
While the bills failed in committee, the ACLU of Maryland has Maryland Public Information Act requests out to the various States' Attorneys' offices to find out more about the practice.
The ACLU supported a bill, SB 831, which would establish a committee to analyze the state operating budget using evidence-based policies. Evidence-based policies are research-based policies consisting of a systematic review of evidence, and including data analyses of studies to determine if certain policies work. Utilizing evidence-based and data-driven analyses can vastly improve the policies on which the ACLU prioritizes, including youth justice and criminal justice. SB 831 would have established a clear path for policies to, among other things, further social justice policies and increase public safety while saving substantial state money. While the bill passed the Senate, it unfortunately did not pass the House committee, but we will continue to advocate for public policies that accurately utilize evidence and data.
SAFE AND FREE
The ACLU of Maryland testified in favor of a bill that would require law enforcement to obtain a warrant prior to using a highly controversial drone to gather evidence. Though the bill did not make it out of committee, it successfully raised awareness in the legislature of the proliferation of drones and the privacy concerns that their unregulated use poses.
The ACLU of Maryland supported HB 558, which would prohibit an agency, county or employee of the state, and others, from knowingly aiding in the detention of a person
under §§ 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012. The NDAA codified indefinite military detention of civilians captured far from any battlefield - without charge or trial - for the first time in American history. Many organizations across the country have come together to speak out against the NDAA. In fact, five states and many municipalities, including the City of Takoma Park, have resolutions similar to HB 558. The bill stalled in committee.
Maryland Highway Safety Act of 2013 - VICTORY!
In partnership with CASA de Maryland, SEIU, and other allies, the ACLU supported SB 715, a bill that would expand access to limited-use driver's licenses to individuals without proof of lawful immigration status or a social security number. Qualifying individuals will still be required to provide proof of two years of Maryland residence and to meet other rigorous identification requirements. This new law will have a positive impact on a large population of immigrants living in Maryland and will improve public safety on the roadways. We expect it to significantly decrease the arrest and harassment of immigrants while performing necessary activities like driving kids to school or going to work. We also hope that passage of this bill will invigorate campaigns in other states with similar pending measures.
Nullity of Bail Bonds
The ACLU supported HB 476/SB 720, which would have nullified the bonds of immigrants who fail to show up for their state hearings either because they are in federal immigration custody or because they have been deported by federal immigration authorities. The bill would also require bail bondsmen to return any premiums paid to the individual or family member who provided the payment. The measure would help ensure that low-income immigrants and their families do not forfeit what little resources they have when their failure to appear is through no fault of their own. Absent such a law, immigrants may also have a harder time convincing bail bondsmen to post bond for them because of the perceived risk of federal detention or deportation. The bill received a favorable report from the House Judiciary Committee. Unfortunately, however, it died in the Senate Judicial Proceedings Committee. We hope to try again next year, unless the issue, which is currently pending before the Maryland Court of Appeals, is resolved by a court decision before the next legislative session.
The ACLU successfully opposed a bill that would have mandated the use of E-Verify, a federal electronic employment verification program, for certain employers and contractors in the State of Maryland. The E-Verify program erodes privacy rights and worker protections, has a high error rate, and fails to incorporate sufficient due process protections for affected workers. While the federal E-Verify program may become mandatory in the future with passage of the comprehensive immigration reform bill in Congress, it is currently optional.
Dually Enrolled Students Tuition Waiver
The ACLU supported HB 928, a measure which would clarify that dually-enrolled high school students also qualify for benefits under the Maryland DREAM Act. The purpose of the DREAM Act is to provide in-state tuition benefits to undocumented immigrants who came to the United States as children, provided they and their parents meet certain additional criteria. Dually enrolled students are an integral part of this "DREAMer" population: there are no discernible differences between them and the college students who currently qualify for in-state tuition benefits under the Act. They are among the intended beneficiaries of the DREAM Act, and its failure to explicitly account for them appears to have been an oversight that this proposed law remedies. While HB 928 died in committee, its major components were settled in a positive Attorney General opinion and then incorporated into SB 740, the College and Career Readiness and College Completion Act of 2013, which passed.
Public Institutions of Higher Education Legal Presence and Tuition Rates Reporting
The ACLU successfully opposed a reactionary measure that would have imposed burdensome in-state tuition reporting requirements on all Maryland institutions of higher education. The bill, which served no discernible public policy purpose, required the collection of unnecessarily detailed and invasive personal information, and imposed onerous data collection and reporting requirements on Maryland institutions of higher education. Because the bill would have required the collection and reporting of irrelevant information, such as students' country of origin and the details of their immigration status, it could have deterred the intended beneficiaries of the Maryland DREAM Act from availing themselves of the benefits to which they are entitled. The bill was given an unfavorable report by the House Appropriations Committee.
YOUTH JUSTICE REFORM
Youth Placement -- VICTORY!
The ACLU of Maryland worked in coalition with organizations from the Maryland Youth Justice Roundtable to promote a package of five bills to reform youth justice in Maryland by "right-sizing" the populations in juvenile facilities. The ACLU's primary role was to spearhead the legislation to reduce youth incarceration for minor offenses. Against enormous odds, this legislation ultimately passed in its first year. The law - which establishes that youth with certain minor offenses should not be sent to long-term juvenile facilities - will reduce over-reliance on facilities for youth who do not present public safety concerns. The reform will also encourage juvenile officials to provide treatment and services for youth in the community while they live at home with their families. It is projected that the law will reduce youth incarceration by up to 20 percent and save the state up to $12 million.
Other Youth Justice Bills
In addition, advocates proposed four other bills that would prohibit incarceration of youth age 13 and under; require the juvenile system to adopt graduated rewards and sanctions for youth behavior; house all youth in juvenile facilities instead of the adult system; and end the practice of automatically charging youth as adults. Ultimately, the General Assembly voted to require the juvenile justice system to develop a plan to adopt graduated responses to youth behavior and to establish a task force assessing Maryland's practices regarding youth charged as adults.
Cell Phone Location Tracking
For three years, the ACLU of Maryland has advocated for a bill to require law enforcement to obtain a warrant prior to obtaining cell phone location tracking information. When turned on, a cell phone sends off a signal several times a minute. That signal reaches the closest cell towers, which then bounce the signal back, giving the phone the strongest signal from which to operate. Cell phone companies keep this information anywhere from 6 months to several years. When looked at in the aggregate, this information can give a detailed picture of where a person is or has been over a period of time.
Currently, law enforcement in Maryland obtain that location information if it is ‘relevant to a criminal investigation.' The ACLU believes that due to the detailed information this gives about a person's life, law enforcement must obtain a warrant, based upon probable cause that the target of the information either is committing or has committed a crime, or that the location information itself is evidence of or will lead to evidence of the crime being investigated.
While there were signs early on that the bill would pass, it ultimately got bogged down over whether law enforcement must obtain a warrant for both "real-time" and "historical" (which could be five minutes ago) or just "real-time" location information. We believe that where you have been is no less private - and maybe even more so - than where you are now, so both must be included.
Social Media in Schools
Last session, the ACLU of Maryland was victorious in passing the first-in-the-country employer social media privacy bill, ensuring that employers could not force employees or applicants to turn over their social media passwords. Since then, six other states have enacted such laws. This year sponsors introduced a bill to prevent schools from requesting or requiring social media passwords from students. Unfortunately, while seven other states have enacted these bills, and the bill passed the Senate in both 2012 and the 2013, it ultimately stalled in the House.
Audio Surveillance in Buses
For the last several years the ACLU of Maryland has been successful in defeating bills that would require audio surveillance on buses. This year, we supported two proactive bills that would have prohibited blanket audio surveillance on public transit. We believe that transit riders should not have to give up their fundamental right to privacy, and have all of their conversations recorded, as a condition of riding public transit in Maryland. While neither bill was successful, committee narrative was inserted into the budget to require the Maryland Transit Authority to investigate the use of the devices and any limitations on when the devices can be used.
DNA of Arrestees
Despite the opposition of the ACLU of Maryland and the Maryland State Conference of NAACP Branches, in 2009 the Maryland General Assembly, expanded upon the taking of DNA to include people arrested of certain crimes. The ACLU opposed this bill because it reversed the notion of ‘innocent until proven guilty' and, given how people of color are targeted and arrested at disproportionately higher rates than whites, it would result in their over-representation in the DNA database. Together with the Legislative Black Caucus and the Office of the Public Defender, the ACLU was able to insert several protections in the bill, in addition to a sunset provision which will caused the bill to expire in 2014. This session the legislature repealed the sunset provision, at the strong urging by the Governor.
In addition to opposing the repeal of the sunset provision, the ACLU also supported a bill that would require local jurisdictions using DNA to follow the protections set up in the 2009 bill. While this bill was filed late and got stuck in committee, the ACLU expects to support it again in 2014.
Mandatory Drug & Alcohol Testing
This session legislators introduced several bills that would have required mandatory blood testing of a driver when there was a car accident. The ACLU opposed these bills and testified that drawing blood constituted a search under the Fourth Amendment, and thus officers needed to obtain a warrant based on probable cause before they could draw blood from a driver without their consent. None of the bills passed.
Immediately post-session, our position on this bill was validated when the U.S. Supreme Court, in the case of Missouri v. McNeeley, held that law enforcement must get a warrant prior to testing blood in DUI cases. In McNeeley, the police drove the driver to a hospital and restrained him to draw his blood after he refused to take a breath test. The Court noted that drawing blood to test its alcohol concentration is "an invasion of bodily integrity" that involves an individual's "most personal and deep-rooted expectations of privacy" and upheld the Missouri Supreme Court's decision that the warrantless blood test was an unreasonable search as there was no emergency that kept the police from getting a warrant in a timely manner, before the alcohol in the driver's blood dissipated.
WOMEN'S RIGHTS/REPRODUCTIVE FREEDOM
Shackling of Pregnant Inmates and Detainees
Surprisingly, the shackling of pregnant inmates and detainees during transport, labor and delivery still occurs. During this last session the ACLU of Maryland worked on a bill that would ban this practice across the state, because it is dangerous and inhumane. While the Maryland Department of Corrections recently approved a policy restricting the practice, this policy does not apply to local detention facilities and is subject to change at any point. That is why the sponsors and advocates of this bill believe a law is necessary. Eighteen states already have laws banning the shackling of pregnant women - including Arizona, Texas and Louisiana. Despite the powerful testimony from women who have been shackled in prison while pregnant, the bill did not make it out of the General Assembly. The ACLU will continue to advocate for this important bill.
20 Week Abortion Ban
Thankfully, Maryland is not Kansas, Arkansas or North Dakota. A 20-week abortion ban, against which we and several others testified, was soundly defeated. The most powerful testimony came from a woman who found out after 20 weeks about the fatal deformity her fetus had. She and her husband decided to terminate and now are expecting their third child.
While we are not in Kansas or Arkansas, some Maryland legislators pretended like they were doctors by submitting a bill requiring women who are seeking abortions to have ultrasounds. The Committee hearing the bill wisely decided to leave medical decisions related to pregnancies to women and their medical professionals.
Same-Day Voter Registration - VICTORY!
One of our priorities this session was to enact a same-day registration law. Studies have shown that most voters engage in the political process during the last 6 weeks prior to an election, and that voter participation is boosted when voters are able to register on the day they vote. Governor O'Malley introduced a voting bill that included allowing voters to register when they go to vote during the early voting process. The bill handily passed and we are proud to be a part of a coalition that supported it.
Once again, legislators introduced a bill to require voters to show ID and once again we opposed it and the bill failed. Voter ID requirements are a solution in search of a problem. Both in Maryland and across the country, in-person voter fraud is virtually non-existent. In fact, an official with the Maryland State Board of Elections testified she knew of no such cases. In addition, voter ID requirements burden those least likely to afford it: people of color, students and the elderly. Research has shown that 11 percent of U.S. citizens - or more than 21 million Americans - do not have government-issued photo identification, and as many as 25 percent of African American citizens of voting age do not have a government-issued photo ID, compared to only 8 percent of their white counterparts.
Public Funding of Elections
The ACLU of Maryland has long supported public funding of elections. This year was no exception as we supported a pair of bills: one would allow public funding of state elections, and a second would allow public funding of local elections. Public financing would make public officials more accountable to voters in general and less beholden to the often-narrow economic interests of a few big contributors. It would also allow public officials focus on their jobs instead of raising money. Public funding of local elections did pass as part of a comprehensive campaign finance reform bill.
Voter Rights Protection Act
Every election the ACLU of Maryland operates an Election Protection Program. We have seen instances where voters are provided false information about the day of the election or voter requirements. The Voter Rights Protection Act, which we supported, provides for timely access to the courts to challenge such actions.
Another important election - and free speech - related bill the ACLU of Maryland supported to passage was HB 730/SB 542. This bill provides that electioneering around polling places is allowed -- regardless of whether the polling place is in a public building or a private building. Free speech rights should not depend upon whether the government contracts with a public or private building to house a polling place.
Baltimore Construction Funding - VICTORY!
Adopting the ACLU of Maryland's proposal to leverage funds using a third-party entity to build schools in a short timeline, the General Assembly passed the Baltimore City School Construction and Revitalization Act of 2013. The ACLU, Baltimore Education Coalition, and the Transform Baltimore campaign worked during the session to bring thousands of students, parents, teachers, and community leaders to Annapolis to build support for the bill. The legislation will provide the funding and financing structure to rebuild and renovate an estimated 50 city school buildings. The historic passage of this bill represents the largest investment in Baltimore communities ever! In coming years, Baltimore children will go to school in 21st century school buildings that are healthy, safe, and technologically appropriate for a modern curriculum and education. The Maryland Stadium Authority and City Schools will construct 15 new replacement schools and major renovations on another 30+ schools.
Police Officers in Schools
This session the ACLU opposed a number of bills that would have placed police officers in schools (both armed and unarmed) and allowed faculty and staff to carry guns in schools. Safety of our students is of utmost importance. Keeping them physically safe, as well as emotionally safe is a goal we can all agree on. Putting police officers in schools, however, is not the way to keep our students safe. Multitudes of research, as well as anecdotal evidence, have shown us that having law enforcement in schools results in criminalizing students for minor disciplinary issues -- doing students more harm than good. Students are being ticketed and even arrested for behaviors that were historically handled by educators as discipline issues, including everything from minor fights to drawing on desks to temper tantrums.
A better approach was HB 453, which the ACLU of Maryland supported. HB 453 creates the Maryland Center for School Safety, a collaborative partnership between local school systems, law enforcement agencies, state and local government, community organizations and members of the public. HB 453 is an opportunity to tackle the well-documented phenomenon known as the "school-to-prison pipeline," in which children are pushed out of school and into the juvenile justice system, which in turn funnels children into the criminal justice system. This bill passed, and we are pleased that Maryland will join other jurisdictions around the country, which have seen the benefits of such a program.
State Funding for Private Schools
Taxpayer Dollars to Private School Textbook Program
This year's proposed budget increased, by $1.1 million, the funding provided to private and mostly religious schools across the state for textbooks and other materials, despite the fact that these schools are not required to comply with all state non-discrimination provisions and do not have to meet federal requirements for student achievement. The Governor also chose to direct an additional $500,0000 above the initial increase in his supplemental budget, for a total $1.6 million increase. This represents a 34 percent single year increase for aid to private institutions. The ACLU contends that while local school districts are attempting to manage the more than $700 million shortfall in state funding compared to the original Thornton education formula, funds should not be diverted from the constitutionally mandated free public school system to private schools.
Private School Funding
HB 1033 would have required the State to reimburse parents for the tuition they pay to send their children to private schools. There are several problems with this bill: first, it runs counter to the Maryland constitution. Second, private schools do not have to abide by the same state anti-discrimination laws and rules that public schools do. Third, the bill entangles the state in promoting religious education, as many of the beneficiaries would be religious schools. And fourth, every dollar diverted to parents choosing to send their children to private schools is a dollar lost to the taxpayers of Maryland. This bill died in committee.
Private Schools Added to Aging Schools Program
In a last minute maneuver during the conference committee on the Capital Budget, $3.5 million of taxpayer-supported debt was added for those private and religious schools eligible for the textbook subsidy program via the existing Aging Schools Program. This is the first time since this program's inception in 1997 that public capital dollars will be allowed to flow to private buildings. The program was originally established to address some of the most dire facility conditions in Maryland public schools and is based on the percentage of square footage each district has in use that was built prior to 1970. Traveling further down this "slippery slope," the combination of added funding for text books and aging schools has more than doubled the amount of taxpayer dollars used to support private and religious schools.
Ban the Box - VICTORY!
After many years of fighting, SB 4, also known as "Ban the Box," has finally passed! This important piece of legislation is a triumph for workers' rights because it will help to remove roadblocks to employment for formerly incarcerated individuals. Currently, on state job applications, prospective employees are asked to check "yes" or "no" if they have ever been convicted of a crime. Many well-qualified people who answer the question in the affirmative do not even have their job applications considered because of their past criminal conviction. Being denied the opportunity to work based solely on one's conviction makes it difficult, if not impossible, to re-enter society successfully and earn a living. The ACLU, along with many groups and individuals, has persistently advocated for this long-needed protection. By removing this harmful and unnecessary question from state job applications, more qualified individuals will now have a chance at gainful employment and the ability to turn their lives around.
Maryland Earned Sick and Safe Leave Act
The ACLU joined the Working Matters Coalition to support the Maryland Earned Sick and Safe Time Act (SB 698 and HB 735), which would have established a paid sick days standard for the state. While the ACLU and the coalition made great strides to build momentum for the bill, it unfortunately failed in a House subcommittee. The ACLU supports this legislation because the current lack of access to paid sick days disproportionately affects low wage and service industry workers. People of color and women are also amongst the nation's most economically vulnerable. The standard proposed by this legislation would level the playing field by making paid sick days a universal practice, and by eliminating the need for workers to face impossible choices between their health and their economic stability. The ACLU will continue to work with coalition partners to advocate for this legislation.
This bill, HB 1006, would have allowed persons to petition the courts to request the shielding of certain nonviolent misdemeanor convictions from public view. The ACLU supported this bill but unfortunately it did not make it to final passage this session. Many ex-offenders are denied the opportunity to work based solely on their conviction. The impact of having a criminal record is clearly exacerbated among African Americans, who may already experience racial discrimination in the labor market and are more likely than their white counterparts to have a criminal record due to well-documented discrimination in our criminal justice system. Persons with criminal records who are able to secure employment are more likely to succeed during the process of transition to the community, which contributes to increased public safety.
Pregnant Workers Anti-Discrimination - VICTORY!
The ACLU took the lead on passing a bill that would protect pregnant workers in Maryland from discrimination by their employers. The bill, HB 804/SB 784, provides that if a pregnant employee asks for modest accommodations to maintain a healthy pregnancy, employers must provide those accommodations if employers already provide such accommodations to employees who have similar physical restrictions. Coming off of a Fourth Circuit loss on this issue, the ACLU and many civil rights and workers groups came together to pass this bill, which will ensure that employers will treat pregnant workers fairly and equally.
Fairness for All Marylanders Act
The ACLU joined the Maryland Committee for Transgender Equality, a broad-based coalition to secure rights for transgender people. While transgender equality is gaining ground on a county-by-county basis, the State's key Senate committee failed to pass the bill, SB 449, which would have extended to transgender people rights against discrimination in public accommodation, housing, and employment. While we are disappointed that the Senate committee was not able to move the bill, the ACLU will continue to fight to protect Maryland's transgender community from discrimination.
Housing Discrimination Based on Source of Income (HOME Act) - PROGRESS!
The ACLU is one of the founding members of a broad and diverse coalition of 80+ organizations working to pass legislation to protect people with housing vouchers and other non-wage legal sources of income from being refused housing. Twelve states (12) and many localities, including Montgomery and Howard counties and the cities of Frederick and Annapolis, already prohibit landlords from discriminating against a prospective renter based on source of income. The Maryland Department of Housing and Community Development and a number of local governments put their support behind the bill, as well as public housing authorities, a broad array of faith based groups, civil rights organizations, homeless advocates, veterans, unions and disability advocates. For the first time in many years, the Maryland HOME Act was passed out of the Senate Judicial Proceedings Committee and appeared to have the votes for passage. But after 3 days of debate on the Senate floor, the bill was sent back to committee, derailing it for the 2013 Session. The Coalition is already organizing to push the HOME Act to victory next year.