ACLU Legislative End-of-Session Report -- May 11, 2009
The 2009 legislative session featured proud and not-so-proud moments for civil liberties issues. The session’s end came Saturday. Legislators will probably have to return soon to deal with an anticipated gubernatorial veto of the budget, but other issues won’t be taken up again until next January.
Bills or issues described below include the following; click the links for details:
Equal marriage (S. 115). Proud, of course, applies to the creation of the country’s first equal marriage law through legislative action rather than judicial fiat. The Vermont Legislature could not have done more to make this happen, and legislators deserve high accolades for their work. In the face of Gov. James Douglas’s veto, both chambers stepped to the plate and overrode the governor’s action. There wasn’t a vote to spare in the House. The energy in the Statehouse was palpable when the bill passed. It was as though legislators wanted to be on the right side of history and knew doing so would demonstrate Vermonters’ deep respect for individual rights.
Sex offender bills (S. 13 and S. 125). Not-so-proud applies to numerous provisions of the two sex-offender bills that were passed, S. 13 and S. 125. The bills were passed in reaction to last summer’s Brook Bennett kidnapping and murder. Ironically, many of the provisions of the bills do not focus on the central issues surrounding child sexual abuse. An estimated 90 percent of sexual crimes against children are committed by family members or others known to the victim; many of S. 13 and S. 125’s provisions are centered mainly on “stranger danger.” We, too, are concerned about child safety. But new laws that aren’t backed up by evidence that they work can actually have a negative effect. They create an unjustified illusion of safety.
The most troublesome provisions of S. 13 and S. 125 are mandatory collection of DNA upon arraignment for felony crimes (and some misdemeanors), expansion of the Internet sex offender registry (despite no evidence that registries work), and limits on the use of depositions in certain proceedings. What, fortunately, didn’t make it into either bill were admission of prior bad acts during a defendant’s trial (whether relevant or not), and draconian measures such as capital punishment and chemical castration mentioned by the governor and lieutenant governor.
Particularly telling about the DNA provision was that a number of legislators openly wondered whether they would be violating their oaths of office by voting for the provision. (Mandatory DNA collections are considered warrantless, suspicionless searches, with seizure of a person’s most personal information.) Nearly 20 House members bravely voted against the DNA provision during floor debate. It was a very hard thing to do since the bill had popular support and was being pushed hard by the leadership of both parties as well as the governor. We anticipate a legal challenge to the new DNA provisions when they go into effect in 2011.
Education funding. At the start of the session, the governor said he wanted to scrap the current school funding system. That system was established to respond to the 1997 Brigham lawsuit, brought by the ACLU-VT, that required equal access to school funds for all towns. A group met throughout the session to discuss alternative systems, but nothing resulted. The ACLU-VT feels that the equity provisions of Brigham must be followed. We will return to court if alternative systems don’t meet the Supreme Court’s mandate for equal opportunity for Vermont schoolchildren.
Day One Initiative. We tried to get the Legislature to start the session with passage of a resolution calling on President Obama -- in his first day in office -- to close the Guantanamo Bay prison, stop torture, and end extraordinary rendition. Resolutions were introduced in each chamber, but not acted upon. President Obama subsequently took action on the first two items, but he has not definitively banned the use of extraordinary rendition (state-sponsored kidnapping, in effect). Talk of the resolutions did help keep attention on these issues, however.
Cyber-bullying. A study committee urged the Legislature to grant schools the authority to punish students for out-of-school misconduct. The proposal was never put into bill form, however. While there was some discussion of the committee’s report, no action was taken. The ACLU-VT is concerned that cyber-bullying legislation could insert schools into discipline that should be left to parents. Free speech rights can also be threatened.
Automatic Selective Service registration (S. 67). Selective Service officials have tried, unsuccessfully, for several years to link drivers’ license applications with Selective Service registration. The effort this year came as an amendment to a must-pass general motor vehicle bill, S. 67. The House Transportation Committee started with an “opt-out” arrangement, meaning registration was automatic unless you specifically noted you didn’t consent to the linkage. When that idea hit opposition, the committee switched to an “opt-in” arrangement, meaning you had to give consent before automatic registration could occur. In the end, that idea didn’t fly, either, and no linkage was allowed. House members agreed there is no rational connection between drivers’ licenses and draft registration. They also noted the gender discrimination inherent in helping enforce a federal law that only affects men. The ACLU-VT joined the American Friends Service Committee in opposing the provision.
Mandatory seat belt use (H. 147). A bill passed the House, but not the Senate, that would -- among other things -- allow police to stop and fine motorists for not wearing a seat belt. Currently, police can cite someone for a seat belt violation only if stopped for some other violation (so-called “secondary” enforcement). While seat belt use is a good idea, we worry that “primary” enforcement could result in discriminatory stops. Police could use suspicion of someone not wearing a seat belt as a pretext for stopping drivers who often are subjected to profiling -- African-Americans, Hispanics, and members of other ethnic groups. We asked that language be inserted into the bill to require police to collect racial/ethnic/gender data for traffic stops involving seat belts. The committee reviewing the bill, House Judiciary, balked, however. We will try to raise the same argument if the bill is reviewed by the Senate next year.
Prison co-pays. The Department of Corrections tried once again for authority to levy co-pays on inmates who visit a prison doctor. Co-pays are punitive, they’re bad health policy, and they don’t raise much money. (DOC had proposed last year a $5 co-pay -- that’s half a week’s wages for a prisoner making license plates or chairs with DOC’s “Correctional Industries.”) The last-minute effort to insert the authority in the general “fee bill” didn’t work.
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