Significant strides were made this year in the legislature around a number of civil liberties issues. Here’s a quick rundown of the high points (as well as some disappointments).Click the links for details.
- Taser use regulated. Training and deployment standards will be developed into a statewide policy that all law enforcement agencies must adopt. Vermont is believed first in the nation to adopt statewide regulations.
- Race data collection mandated. Allegations of racial profiling have led to calls from the ACLU and others to require police to collect basic “stop” data when motorists are pulled over. After 15 years of work, success was achieved this year thanks to the efforts of migrant worker advocates.
- Innocence protection measures put in place. Recording of interrogations of suspects in high-level crimes will be required, and standards will be established for conducting eyewitness identifications.
- Abortion ban repealed. Leftover 19 th-century language never taken out of state statutes was finally removed. It was a low-key nod to reproductive freedom rights.
- Ethics panel established in House. A series of transparency and accountability proposals sugared off to one successful measure: an ethics panel will be created to receive inquiries and complaints about conflicts of interest House members might face, and members will have to disclose the boards they serve on.
- Notice of “collateral consequences” required. It’s hard to imagine, but someone convicted of a crime, or about to accept a plea bargain, cannot now be told the totality of their sentence. That’s because there is no comprehensive list of all the things that could happen to you in addition to jail time and/or a fine. That will soon change.
- Police certification levels reviewed. Full-time police officers and part-time officers can exercise the same policing authorities – yet regular officers get 16 weeks of training at the Vermont Police Academy, part-timers only two weeks. A review will explore “tiered” certification.
- Rules on public meetings revised.An open meeting bill first proposed in 2011 finally made it through the legislature this year. The bill takes steps both forward and back, but overall it's a plus.
As usual, there were disappointments:
- Drone bill didn’t fly.A bill introduced in 2012 requiring police to get a search warrant before using drones for surveillance never got a hearing. Drones are slowly making their way into the state. While no police department is known to have them, federal Border Patrol agents do.
- Electronic communications privacy ignored.The ACLU has repeatedly expressed concern about police access to personal electronic communications. Citizens’ protections against government searches and seizures need an update. But a bill bringing e-communications under the same protections as non-digital media failed to attract legislators’ attention.
- Privacy of electronic medical records questioned; some protections added, but more needed. We fought hard before the Green Mountain Care Board to require strict privacy controls on access to records in the Vermont Health Information Exchange. But what’s really needed is a private right of action for patients to sue when their records are breached.
- “Drugged” driving bill hammered out.A last-minute compromise created a new standard for when police can take drivers off the road.
- Sex offender addresses may soon be posted on Web. Tucked onto the “collateral consequences” bill was language allowing Internet posting of the street addresses of sex offenders.
- School funding, consolidation, and privatization issues tangled until they expired. A range of complaints ran out the legislative clock.
- Campaign finance reform again falls short.The ACLU has consistently argued for greater disclosure of how money flows through politics. The legislature has consistently tried to adjust how much money who or what can give to whom, how, and when.
Details of bills
(Links to bills may not reflect the final version of the bill; check the Vermont Legislative Bill Tracking System for updates).
Taser use regulated (H. 225). This bill is remarkable in two respects. Vermont is believed first in the nation to adopt a statewide Taser use policy. And the bill’s passage is the first time the legislature has mandated the elements of a law enforcement policy that all police departments must adopt. (Three other uniform policies -- around race data collection, eyewitness identification, and custodial interrogations -- were mandated in another bill passed days after the Taser bill. Details are below.) The Taser bill is a consensus bill among all sides in what has been a contentious debate stretching back to the 2012 Macadam Mason Taser killing by a trooper. The new policy will require initial and annual training, including special training on dealing with people facing mental health issues. De-escalation is stressed, and vulnerable groups facing additional risks from Tasers are clearly delineated. Tasers can no longer be used to compel compliance when there’s no “active aggression.” All Taser incidents must be reported, and annually the Criminal Justice Training Council must publish a statewide report. Studies are required on testing and calibration of the weapons, and on whether officers carrying Tasers should be required to wear body cameras.
Race data collection mandated (S. 184). Two years ago, the legislature required all police departments to adopt bias-free policing policies. Model policies were developed to guide departments. Departments were also encouraged to collect "stop data" so there'd be information to determine if profiling were occurring. Since then, evidence mounted that minority populations were indeed being treated differently than the majority white population in the state, particularly regarding Hispanic farmworkers. The advocacy group Migrant Justice testified to numerous incidents of discriminatory policing practices. The group also reported that no one in state government could tell if the requirement of adopting a proper anti-discrimination policy was being met, but the group knew of several departments that hadn’t. The revelations led the legislature to action. After 15 years of hearing complaints from organizations such as the ACLU and the Human Rights Commission, the legislature mandated the adoption of “fair-policing” policies that meet standards set in the model policies. Also required will be the collection of roadside “stop” data. Collection of data is key to understanding whether police really are targeting minorities and other designated populations (based on ethnicity, age, or sex, for example) – something that up to now has been seen by many as an allegation that can’t be proven statistically.
Innocence protection measures put in place (S. 184). Proposals that have stumbled before, due to opposition from law enforcement, gained greater traction this year thanks to riveting testimony from defendants wrongly convicted and from police officers outside the state who explained how the measures would lead to better policing. Many hours were spent by the House and Senate judiciary committees fashioning new laws that require the recording of interrogations of suspects held by police for murder or sexual assault and that establish improved, statewide practices for eyewitness identifications. Key to the effort's success was involvement by the Innocence Project, which has been a key ally in criminal justice improvement efforts in Vermont and around the country.
Abortion ban repealed (S. 315). Vermont still had on the books a 19th-century law whose language stipulated that a doctor who performed an abortion could be jailed for up to 10 years. It was a relic overridden by a 1972 Vermont Supreme Court decision, Beecham v. Leahy. That decision affirmed that abortion was legal in Vermont; the decision was followed a year later by the U.S. Supreme Court's Roe v. Wade decision, which affirmed the same right, but on a federal level. Repeal of the old statute doesn’t technically change anything. But it could serve as protection were the current U.S. Supreme Court to overturn the Roe v. Wade decision. At the urging of another of our allies, Planned Parenthood of New England, the bill was passed and signed by the governor early in the session. Passage was a sign of the broad support in Vermont for a woman's right to reproductive freedom choices.
Ethics panel established in House (House Rule 75). As the session started, allied government transparency and accountability advocates (led by Campaign for Vermont) proposed a series of measures ranging from greater financial disclosures to “revolving door” lobbying restrictions. Testimony was taken, but in the end the only measure that gained traction was an effort initiated by the House speaker around establishing an ethics panel in that chamber. This could be done “by rule,” meaning no new law (only a resolution) was needed. The Senate and governor needn’t get involved. An informal committee suggested beefing up House Rule 75 -- which now says simply, “Members shall not be permitted to vote upon any question in which they are immediately or directly interested.” House members will now be required to disclose their place of employment and whether they serve on boards and commissions. An ethics panel will be created to investigate complaints and could recommend sanctions against a member if warranted. The panel will also conduct training on ethical conduct. The proposal enjoyed bipartisan support when it reached the House floor; only two members, both of whom aren’t running for re-election this fall, voted against it. Vermont is one of only two states not to have some method of ethics review; this gets the legislature halfway there.
Notice of “collateral consequences” required (H. 413). All sorts of limits on a person’s rights and eligibility for future benefits or opportunities are imposed when convicted of certain crimes (a felony drug conviction, for example, makes you ineligible for federal student aid; convictions on numerous charges can result in suspension of your right to possess a firearm). When a person is convicted – either through a verdict following a trial or through a plea deal avoiding a trial – the direct consequence is the sentence you receive (for example, five years in jail and a $10,000 fine). The “collateral consequences” are all the indirect limits placed on you that result from conviction on the specific offense you’re guilty of. The problem is that you’re not told about all these consequences when you’re convicted – because no one knows how many consequences might apply and what specifically they are. Burlington attorney Richard Cassidy has been working for years with bar associations on the national and state levels to change that. H. 413 requires, first, that a list of all “collateral consequences” be developed for each crime on the state’s books. (It’s believed there are up to 400 consequences connected to state statutes; nationally, the figure is approximately 35,000.) Once the list is developed, judges will be instructed to inform defendants of all the things that could happen to them if convicted. The only opposition to the bill came from people asked to assemble the state list. “This will generate a significant amount of work for whatever agency is tasked with this,” said one prosecutor; he complained of the burden of compiling the list when it’s criminal defendants who will benefit. Any notion of full justice has seemed lost in a rush to punishment – even punishments that have been unknown to prosecutors, judges, and defendants alike.
Police certification levels reviewed (H. 765). Part-time officers are the staff lifeblood of many smaller police and sheriff’s departments. Part-time officers need spend only a fraction of the time in training as full-time officers do, yet they can perform the same duties and have the same authority. In legal liability terms, the system has been an accident waiting to happen. H. 765 grew out of discussions by the Vermont Criminal Justice Training Council. The bill proposed three different levels of officer training, with duties commensurate to training. Historically, there has been tremendous opposition from constables, sheriffs, and local chiefs to this “tiered” approach. It appeared that this time they might not be able to block the restructuring. But in the end the legislature sidetracked the bill to further study by the council – with the proviso that “Any new recommended levels shall distinguish law enforcement officer certification based on scope of practice and not on practice hours.” The ACLU continues to feel that more than just a tiered approach is necessary. We feel strongly that police officers should be licensed. They’re one of the few professions in Vermont not regulated by a state licensing board; instead, officers are "certified" after completing training at the Vermont Police Academy. Instead of the usual professional approach of having to prove competency on a regular basis through re-licensing to remain in the profession, certification is forever. The little oversight that does exist is on the local level, with no statewide professional standards in place.
Rules on public meetings revised (H. 497). When it comes to greater government transparency, improving the open meeting law is much harder than improving the public records law. With the latter, you have a record, and there’s one question – is it exempt from disclosure or not? With public meetings, myriad issues arise, and the issues can be of a substantive or procedural nature. When the ACLU began a push in 2011 for reform of the state’s public records and open meeting laws, we were successful in getting significant changes to the public records law that year, but an open meeting reform bill died when the House and Senate deadlocked on details. A similar bill was taken up again this year, and it passed. It’s a mixed bag, with several steps forward and several steps back. On balance, we feel it’s an improvement. Most importantly, for the first time since the law was written in the 1970s, there's a provision for a plaintiff who challenges a board in court over violations, and prevails, to recover attorney's fees and costs. It's an effort to create something resembling a credible enforcement mechanism. (Minimal fines in the current law haven't worked; they're hardly ever levied.) On the negative side, the ability for public bodies to go into closed “executive” sessions was broadened. Lawyers advising local governments weren’t happy with just one exemption covering legal cases “pending or probable”; they wanted a second one, a new provision closing the doors for “confidential attorney-client communications made for the purpose of providing professional legal services to the body.” Considering that boards of larger public bodies often have an attorney sitting with them throughout their meetings, it’s unclear if an executive session will be requested every time the attorney speaks. Other provisions allow e-meetings under certain restrictions, specify that meeting agendas must be posted on the Web, if the body has a Web site; meeting minutes must be similarly posted on the Web within five days of a meeting, again if the public body has a Web site; and the executive session section of the law is reorganized to make clear that for certain issues the body must first make “a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage” before entering executive session.
Drone bill didn’t fly (H. 540). Everybody’s talking about them, but the legislature is reluctant to think about regulating their use. The ACLU worries most about police use of drones. In 2013 a bill was introduced to require police to first get a warrant before they can use any “unmanned aerial vehicle” for surveillance, except in emergency situations. The bill had two dozen sponsors from across the political spectrum — Democrats, Republicans, Progressives, the right, the left, and the center. On the national level, Sen. Patrick Leahy commented at a meeting of the U.S. Senate Judiciary Committee that he is “convinced that the domestic use of drones to conduct surveillance and collect other information will have a broad and significant impact on the everyday lives of millions of Americans going forward.” That comment was made a year ago. The time to impact is shrinking.
Electronic communications privacy bill ignored (H. 838). The right to be free from unreasonable search and seizure is a fundamental right protected by the 4 th Amendment to the U.S. Constitution and Article 11 of the Vermont Constitution. But those protections have not kept up with technology. The result has been warrantless searches – recently associated with NSA data collection efforts, but common among police agencies generally when they want to check what you’ve written, searched for, or texted; or when police want to know where you’ve been and check your cell phone location data. H. 838 would have applied to personal electronic communications the same rules and standards governing searches of people and property. Before police can look at someone’s e-mails, text messages, Internet usage records, and cell phone tracking data, they would have to get a warrant. We think that’s sensible, fair, and ultimately leads to better policing.
Privacy of electronic medical records questioned; some protections added, but more needed. The Green Mountain Care Board decided in March that Vermonters will not be able to choose which providers have access to their medical records. Instead, patients will have to choose to be “all in” or “all out” of the state’s health information exchange (HIE) when it goes live in the spring. The upshot is that once a patient gives consent for his or her records to be shared over the exchange, every doctor (and most staff in a practice) connected to the exchange will have access to them. There’s no “front-end” card-and-PIN protection common in systems such as ATMs to make sure the person accessing the records is authorized to view them. Periodic “back-end” audits are supposed to uncover cases of unauthorized access, and government reviews of suspected breaches could lead to penalties. We don’t think that’s enough protection. We argued for creation of a private right of action for patients to sue for damages if there’s unauthorized access to their health records. The board said that’s not its job. Legislators, worried about other health care issues this year, declined consideration of such a right.
“Drugged” driving bill hammered out (H. 501). From the start, there was agreement among legislators that “drugged” drivers could be as dangerous as drunk drivers and should be taken off the roads. But there's no threshold defining drug “impairment” as there is the .08 blood-alcohol level for "intoxicating liquors." And exactly what drugs would be covered? The House pushed for a “zero tolerance,” no-drugs-on-board arrest standard. The Senate rejected the zero tolerance approach in favor of interference “with a person’s safe operation of a vehicle in the slightest degree” – which requires a subjective determination about whether a person can drive safely even if they have a trace of, say, marijuana in their system. In the end, a conference committee settled on a standard that allows arrest if a person’s ability to operate a motor vehicle safely is “diminished or impaired to the slightest degree.” We worry the bill gives police broad discretion to pull over drivers who may not be drunk or drugged – as happened to a Shaftsbury driver this winter. He was driving back from a lecture at Williams College, hit an icy patch, slid off the road, and was suspected of drunk driving. Cleared of that but still – in officers’ eyes – acting suspiciously, he was handcuffed and driven a dozen miles to a “DRE” (drug recognition expert) officer for nearly an hour of physical tests and clinical exams. He was again cleared, and sent home. H. 501 does at least require collection of data about drunk and drugged driving stops and exams.
Sex offender addresses may soon be posted on Web (H. 413). There’s no evidence online sex offender registries improve public safety; there is, however, evidence that vigilantes look up online addresses to harass, and in several instances kill, offenders who have served their time in jail. In 2009, in the wake of the Brook Bennett murder, the legislature passed two massive sex offender bills. In one was a provision allowing posting of the home addresses of certain sex offenders released after serving their jail terms. The provision could only be applied, however, if the Department of Public Safety obtained a “clean” audit of the online sex offender registry from the state auditor’s office, stating the registry was free of errors. After an initial audit that pinpointed myriad errors, staff changes at the registry office were made, new software purchased, updates made, and a new audit requested. The subsequent audit still found errors. Five years later, it appears a “clean” audit may be forthcoming. However, shortly after the 2009 sex offender laws were passed, it was discovered that the provision allowing online posting of addresses had been inadvertently eliminated during conference committee rewrites of the bill. Resurrecting the authority to post addresses has been moot because of the audit problem. Now, with a clean audit expected, the legislature decided to resurrect the authority.
School funding, consolidation, and privatization issues tangled until they expired. The ACLU’s successful Brigham v. State lawsuit filed in 1995 is what led to the current school funding formula. The Act 60/69 formula has been in place longer than any other previous funding formula, it’s been hailed the country’s fairest, and Vermont’s public schools have been determined some of the nation’s best. Still, there are insistent demands the formula is broken. The reality is that the formula is working exactly as the legislators who approved it in 1997 intended. If taxpayers vote to spend more money per student in their schools, their property tax rate will rise commensurately. The tie between spending per pupil and tax rate was designed to ensure efficient use of funds. As school populations have dropped, however, spending hasn’t been adjusted to keep per pupil costs in line. Consequently, tax bills have been rising. This year, the inevitable cry was raised that larger, more cost-effective, schools were necessary – and that without them, children’s education would suffer. Yet there’s little evidence that bigger is cheaper or better. While no big education reorganization bills were passed this legislative session, there is a provision in the tax bill that might result in the school spending restraint legislators have sought – a lower cap on spending increases. If a school exceeds the cap, there’s a substantial financial penalty. And the cap will drop a few points in succeeding years. This could lead to an easing of school property tax increases – the force behind this year’s tangled education debates.
Campaign finance reform again falls short (S. 82). The legislature tinkered again with contribution limits this year. No one was pleased with the bill that was passed early in the session and signed into law. But the state was in a bind. No campaign finance law had been in place since the U.S. Supreme Court struck down Vermont’s overly restrictive law in 2006 (that law was passed in 1997 and immediately became the subject of numerous court challenges, including one from the ACLU). Within weeks of the newest bill’s passage this year, the U.S. Supreme Court ensured that one of the provisions in the law dealing with aggregate campaign contribution limits couldn’t go into effect. The remaining provisions stand – for now. The Supreme Court appears ready to remove nearly all restrictions on finance limits. Vermont, meanwhile, has a system of weak disclosure laws and a campaign finance reporting database that’s still under construction.