The 2015 legislative session started on a down note (major budget cuts were needed), was hobbled by increased political tension created by a gubernatorial election thrown to the legislature, deflated after abandonment of any immediate plans to create a universal-access publicly financed health care system, rolled by emotional issues such as gun rights, mandatory vaccinations, and end-of-life choices, overwhelmed by efforts to improve public schools while spending less, and beset by political missteps, ethical and procedural lapses, and the arrest of a state senator as an alleged sex offender. By May 16, when the session ended, everyone wanted to go home.
For civil liberties bills specifically, the progress made in previous sessions was hard to repeat. Our focus shifted to preventing a number of bad bills – or bad provisions in otherwise good bills – from getting worse. With one major exception, the education reform bill, we were successful.
Here are highlights. Click the links for details.
- Child protection. Major changes were made to the state’s child protection laws; a sweeping “failure to protect” felony crime provision was, fortunately, dropped.
- Education. School mergers were mandated, and spending increases were capped in a comprehensive education reform bill. The constitutionality of the caps is questionable.
- Asset forfeiture. Revision of the state’s asset forfeiture laws gives police new incentives for arrests.
- ‘Revenge porn.’ Posting nude images on the Web of your former spouse or partner could land you in jail.
- Sex offender registry. Some errors in the state’s online sex offender registry were deemed acceptable.
- Vaccines. The philosophical exemption for mandatory vaccinations was eliminated.
- Public records and open meetings. The state’s public records laws were tweaked again; revisions to open meeting laws were held for further consideration.
- Same-day voter registration. Vermont became the 14 th state to allow last-minute voter sign-up with immediate access to the ballot box.
- Criminal record expungement. Elimination of someone’s criminal record creates a chance for past offenders to start with a clean slate.
- Juvenile justice. Lifetime prison sentences without parole for children convicted of crimes were abolished.
- Gun rights. A gun regulation bill passed, with restrictions piggybacking on existing federal law.
- Military surplus. Increased public oversight of law enforcement access to surplus military equipment was approved in the House but stumbled in the Senate.
- Privacy. An omnibus privacy bill morphed into a special study; a decision on shortening the retention period for automated license plate reader data was delayed.
- Police accountability. An effort at greater law enforcement accountability faltered due to opposition from officers.
- Marijuana regulation. Discussion of legalization of small amounts of marijuana, with licenses to grow, inched forward despite a tepid response by legislative leaders to release of a major study and introduction of a comprehensive bill.
- Drug testing. Saliva testing bill sought by law enforcement was introduced but stuttered.
- Criminal justice reform. Efforts to reduce over-incarceration in Vermont jails and bring out-of-state inmates home got an initial hearing.
- DNA database. Following a Vermont Supreme Court decision restricting state expansion of DNA collection efforts, the Senate tried a new approach but failed – for now.
Child protection (S. 9). Major changes were made to the state’s child protection laws, but a sweeping “failure to protect” felony crime provision was not among them. The provision could have sent a wide range of caregivers to jail for 10 years if they “knew or reasonably should have known” that a child whom they cared for or had custody of was in danger and they didn’t act to prevent the harm. The bill was a response to last year’s tragic string of child deaths; a special legislative study committee probed weaknesses in the state’s child protection system as well as procedures covering adoptions, custody determinations, and access to abuse investigation records. Review of the nearly 50-page bill consumed an enormous amount of time from four different committees, starting on the first day of the session and ending on the next-to-last day as conference committee meetings dragged on as differences were sorted out. The “failure to protect” provision, which had been proposed by the attorney general, wasn’t dropped from the Senate’s version of the bill until the penultimate conference committee meeting. The dropping was acknowledgement that the provision cast too broad a net and placed heavy demands on a broad range of people (from babysitters to teachers) who could face draconian penalties for not meeting the deputized responsibilities the state was placing on them. As an alternative, existing child abuse laws were modified to increase protection of children from possible harm. S. 9 was deemed by a number of lawmakers as the most significant bill of the session.
Education (H. 361). The one tax over which local townspeople have direct control is the property tax. Taxpayers at their town meeting decide how much they’ll tax themselves to pay for educating their children. Yet the legislature decided townspeople weren’t acting reasonably in setting school budgets. And despite test results that show Vermont schools to be some of the best in the nation, lawmakers also decided Vermont schoolchildren weren’t being well-served by the state’s town-based school governance system. The result was a comprehensive education reform bill that will require nearly all districts to consider, if not carry out, merger arrangements with other districts. The ACLU’s main interest in the bill was protection of the equity provisions of the Brigham decision, a lawsuit we brought, and won, against the state in 1997. Despite insistence by legislators that no damage was being done to equity provisions, a gouge was made in the principle of towns’ equal access to school funds through penalty provisions levied on all towns once they spend beyond an “allowable growth rate.” Increases in “per-pupil” school spending have been a challenge since Vermont’s school population began declining 10 years ago. However, the spending caps in H. 361 prevent low-spending towns from catching up with higher-spending towns – unless they pay a heavy financial penalty. That’s the very definition of inequity, and we’ll be watching closely as the law is implemented.
Asset forfeiture (S. 102). A bill that started out as a measure to curtail what some said is growing dog-fighting in Vermont was hijacked by law enforcement and steered towards greater incentives for police and prosecutors to arrest people for certain crimes. The direction is exactly opposite to what’s been happening in other states around the country, where widespread abuse of forfeiture laws have led to strict limits on the scope and application of incentives and the proceeds from the sale of assets seized during investigations. Up to now, Vermont’s forfeiture laws, which have focused on drug arrests, had been far better than most. That’s because Vermont law hasn’t allowed forfeitures without a conviction for a crime and because all forfeiture proceeds went to the state’s general fund, not the departments that seized the assets or the state’s attorneys who prosecuted the suspects. While law enforcement failed in S. 102 to get the broad powers they wanted to seize a person’s assets before a conviction, they did get a “snitch provision” that allows seizure of the assets of someone willing to talk with police to make a deal. And while law enforcement didn’t get direct deposit into their individual departments’ accounts of the proceeds from the sale of seized assets, they will have a shot at snagging up to 45 percent of the forfeiture proceeds – distribution will be set by a special governor’s council made up largely of law enforcement representatives. Further, the asset forfeiture program will expand from drug arrests to include dog-fighting arrests – an ominous development that will no doubt be of continued interest as all government, including law enforcement, looks to raise additional revenue as public funds tighten. Two former directors of the federal asset forfeiture program wrote in a Washington Post op-ed this fall that asset forfeiture “has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.” The onus will be on state government to ensure that evil doesn’t take hold here.
‘Revenge porn’ (H. 105). “Revenge porn” is what can happen when two people who were once very close – close enough to have taken nude or suggestive images of each other or filmed their sexual encounters – end their relationship, one feels jilted, wants revenge, and so posts the sexy images online. The result can be embarrassment and humiliation. The legislature decided such “revenge” should come with a criminal cost. Previously, the remedy was a civil lawsuit filed by the victim. Under the new law, the person posting the images can be sent to jail and face fines. The House sought broad criminal penalties, and said the posting of the images alone was enough to convict. The Senate acknowledged the First Amendment issues at play. Traditionally, offensive speech must reach a very high bar before it can be criminalized. The Senate narrowed the sanctions and limited jail time to two years. Knowingly disclosing the images, intent to harm the victim, and the victim suffering harm must be shown before conviction.
Sex offender registry (S. 13). Is an error rate of 10 percent “good enough for government work”? The legislature decided it was when dealing with information about sex offenders. That change, from accurate to almost accurate, will allow additional information to be posted on the state’s online sex offender registry, most notably the street addresses of some offenders. Posting only accurate information to an online registry seems pretty basic. But after six years of trying, the Department of Public Safety said the standard was impossible to meet and convinced the legislature that a little bit of inaccuracy should be good enough. The errors that will be allowed are only for information deemed “non-critical.” No errors can be made in “critical” information, and all information about high-risk offenders whose addresses will be published must be 100-percent accurate. The ACLU has consistently opposed online sex offender registries. There’s no evidence they work in protecting the public. We have particularly opposed the posting of offenders’ addresses. An error in an address could lead to deadly results for innocent people. And as happened in Maine in 2006, accurate information can have similarly deadly results for an offender who’s served his time and is out of jail.
Vaccines (H. 98). Perhaps the most emotional hearing of the session took place during the last week of the legislature over a bill that had been considered several years ago and rejected. That the issue of mandatory vaccinations could draw such attention away from what are the usual attention-getters at a session’s end (the budget and, this year, education governance and finance reform) spoke to the strength of the opinions held by those on either side of the vaccination debate. In the end, the Senate overwhelmingly and the House more narrowly approved the elimination of the philosophical “out” from mandatory vaccines required before a child can enroll in a public school. The ACLU was neutral on the issue. That’s because competing interests are at play – an individual child’s constitutional right to a public education and the state’s responsibility of protecting public health. Generally, government can’t restrict a fundamental personal right absent a compelling public interest to do so. But if such a compelling public interest in mandating vaccinations can be shown – for example, a serious outbreak of preventable communicable diseases with significant threat to the health of students – a vaccination mandate may be constitutional.
Public records and open meetings (H. 18 and S. 114). Greater government transparency might be good politics to preach but it’s excruciatingly difficult public policy to make. Efforts to revise the state’s numerous exemptions to the state’s public records law began back in 2007; in 2011 a comprehensive bill created a four-year study committee to look at all the exemptions and consolidate or eliminate as many as possible. This year, in 2015, the committee wrote its own farewell with a final bill (H. 18) that acknowledges the difficulties in making major reforms. Some of those difficulties were revealed in the committee’s last year of operation, when it discovered that exemptions to public access to records exist not only in statutes, but in regulations (promulgated by agencies and approved by a legislative committee) and also in policies (promulgated by agencies but not approved by the legislature). There will now have to be notice to committees of jurisdiction when new exemptions are proposed in rules (a requirement contained in a separate bill, H. 17), and some departments (most notably the Department of Corrections, which has exhaustive policy directives) were told they needed to have their policies adopted as rules. Changes to the open meeting law have followed a less ambitious track. A batch of changes was proposed in 2011, cleared the House, but died in the Senate. Some of the changes were taken up in 2014 and passed. Subsequent complaints from local officials led to review of the 2014 law. Further changes were attempted this year in S. 114. They were minimal. For example, public bodies would have eight rather than five days to post meeting minutes to a Web site they maintain (some towns had claimed any online posting requirement was too much of a burden). S. 114 passed out of the Senate Government Operations Committee but not by the mid-session crossover deadline; so it sat in the Senate Rules Committee, its sponsors hoping for a crossover pardon but none was ever granted. The bill can be taken up again in 2016.
Same-day voter registration (S. 29). Vermont’s election laws are fairly good in providing an easy path to exercising the right to vote. Even convicted felons can vote (including from jail), a right provided in no other state except Maine. But Vermont lagged in allowing people to register to vote on election day. That changed this year with the passage of S. 29. Previously, the registration deadline was a week before the election. Now someone will be able to register up to and including election day – and immediately vote. The main argument for the change was the opportunity to increase voter turn-out. The main argument against the change was that it would lead to voter fraud. While voter turn-out improvements have been shown to be significant, voter fraud has not. The Secretary of State’s Office has promised to work with local officials who fear the change will be difficult to carry out. The change goes into effect Jan. 1, 2017.
Criminal record expungement (S. 115). Getting a criminal record is one of the most far-reaching collateral consequences of a criminal conviction. You can be denied a job, benefits, grants, or housing – in short, you can be marginalized by society to an extent that it’s difficult to lead any semblance of a normal life. S. 115 offers a way to shed some or all of that record. If your crime was committed before you were 25, you successfully completed the terms and conditions of your sentence, you haven’t been convicted of any new crimes, you’ve been employed or done public service work, any restitution owed has been paid, and a court finds expungement is in the interests of justice, your criminal record can be wiped clean. It can also disappear if the crime for which you were given a record is no longer a crime (as would now be the case with a conviction for possessing a small amount of marijuana). Expungement is not automatic; an offender must petition a court and be granted an order that the record be cleaned. The law goes into effect immediately. (Past law prov ided expungement opportunities only after 10 years, and crimes no longer crimes weren’t an automatic erasure.)
Juvenile justice (H. 62). H. 62 is a simple one-page bill that could have dramatic consequences in an individual’s life. Signed by the governor as Act 22, the law abolishes what is now seen as the cruel and unjustified practice of convicting and sentencing a child to life in prison without the possibility of parole. While many of Vermont’s juvenile laws are enlightened, others are primitive, often the result of unusual and bizarre cases that impel the legislature to “do something” in an effort to prevent similar crimes in the future. However, neuroscience discoveries have shown that our brains are not fully formed until late adolescence, if not adulthood. Particularly slow to develop are areas where we weigh the consequences of our actions. There is, in other words, wisdom in the old saying, “too young to know better.” No child (a person under the age of 18) will now be sentenced to life imprisonment in Vermont – a sentence that was possible until H. 62.
Gun rights (S. 141). No new policies were put in place by the gun regulation bill, S. 141, that rocked the statehouse this session. The key points – people convicted of certain violent or drug-related crimes can’t have guns, and people with mental illness found by a court to be a danger to themselves or others have to be reported to the FBI’s background check system – are not new restrictions. They have been in place in federal law for years. What’s new is that the state will now have laws to enforce the same things. That’s an important distinction, because Vermont police said if they forwarded cases to federal attorneys for prosecution, the U.S. attorney’s office was largely uninterested. (The Web page of the U.S. Attorney’s Office in Vermont actually invites gun law enforcement complaints, but testimony to legislative committees made clear federal officials think they have better things to do.) And the mental health reports were supposed to be happening anyhow, but Vermont wasn’t complying; now it will have to. Vermont’s Constitution is much clearer about an individual (rather than a collective “militia”) right to bear arms. But reasonable regulation of firearms has been allowed even under state law for decades. Underlining existing laws, which is what S. 141 does, poses no new constitutional challenge. Provisions, or other bills, that might have provoked such a challenge were discarded or not taken up.
Military surplus (H. 8). A bill that called for stricter controls over Vermont police departments obtaining surplus military equipment including sniper rifles and armored vehicles was watered down in the House and then stalled in the Senate. But what the Vermont legislature shied away from doing, President Barack Obama took on. In a speech May 18 in Camden, N.J., the president said he wanted to get equipment built for battlefields off America’s streets. How far the president’s initiative may go is still to be determined. But it potentially would do a lot more than what could be done through Vermont’s H. 8 (a bill that technically could still be taken up again next year but must first be released from the Senate Rules Committee, where it now lies). The original H. 8 called for state approval by the attorney general of all military equipment acquisitions. When the attorney general complained he wasn’t capable of handling that task, House lawmakers substituted local approval by a police agency’s governing body (a select board or city council, for example). When police didn’t like that, the House substituted after-the-fact notification by police once they apply for and then receive any new military surplus equipment, with annual reporting by the state Department of Public Safety on all acquisitions. The House’s watering down of the bill produced an irony that maybe was at the root of the Senate stall: the House bill would do nothing more than what’s already being done by the public, thanks to enterprising reporting by the state’s news media. And the president’s initiative could do more to stem the flow of battlefield weapons and gear to local police departments whose communities are wondering where all the sniper rifles, armored vehicles, and night-vision goggles came from.
Privacy (S. 18). An omnibus privacy bill (S. 18 – as introduced), that would have looked at key issues around police access to digital information on individuals’ personal lives got an airing in the Senate Judiciary Committee but was deemed too ambitious for this session. The committee did, however, pledge to take the bill up next year, and as a down-payment on that pledge scheduled a series of special study meetings and a public hearing, in October, to explore the issues and prepare a marked-up version of the provisions not taken up this year. The scope of the task is admittedly broad. And the committee realized that in one sense the genie is already out of the bottle; police are accessing data about our personal lives in all sorts of ways, with little regulation through warrants or other court proceedings. Yet there’s a “creep factor” about the collection of data that doesn’t feel right to many legislators. That “creep factor” is evident in Vermont police collection of license plate data. That data is collected by police departments statewide. It’s transferred to a central state database, aggregated, and stored at the Vermont Intelligence “Fusion” Center in Williston. During the first 18 months of the statewide system’s operation, 8 million plate images were captured. By sorting the reads by plate number, it’s possible to track someone’s movements around the state. The retention limit for ALPR data has been set at 18 months, but we’ve argued retention should be cut to one day – long enough to determine if any drivers are being sought for any crimes or infractions of motor vehicle laws. A preservation order can be sought to hold selected data for longer periods, upon showing of cause. We also wanted the omnibus bill to regulate police use of drones, to create a private right of action so someone can sue if their e-medical records are accessed without authorization, and to establish a warrant requirement for police access to persons’ electronic communications records (such as phone call records). As for ALPR regulation, which is governed by a law passed in 2013 but scheduled to sunset this year – it was renewed under current terms for another year (S. 18 – as passed).
Police accountability (S. 124). Just as this year’s session was ending, two Vermont state troopers resigned in disgrace -- one after driving on the job allegedly inebriated, another after posting derogatory comments and images on social media sites. Yet neither was at risk of losing the certification that allows them to be Vermont law enforcement officers. Intemperance and bias don’t, under current rules, count as grounds to disqualify someone from being a cop. That could have changed this legislative session — but complaints from law enforcement officers blocked that effort. Removed from an omnibus police bill was language that would have given the Vermont Criminal Justice Training Council expanded authority to take away an officer’s certification (S. 124 – see p. 12 of the bill for the expanded decertification authority). The troopers’ union and other officers protested that due process rights could be violated, and the language was dropped. This was a lost opportunity. Vermont doesn’t license police (as is done for nearly 50 other professions, from lawyers and doctors to hair dressers and tattoo artists). The certification process is the only option for ensuring police professionalism. Expanded decertification would go a long way towards greater police professionalism and accountability — a benefit for both police and the public. We’ll be pushing for action next session.
Marijuana regulation (S. 95). It might have seemed that nothing happened this session to advance a bill regulating and legalizing small amounts of marijuana. But out of the glare of press attention the Senate Government Operations Committee held a series of committee hearings on successive Fridays focusing not on the question, “Shall Vermont legalize marijuana?” but rather on “How shall we do this?” Underlying the question is finding how Vermont can best build a regulatory system that will protect public safety and health when marijuana is legalized. Meanwhile, a bill (S. 95) was introduced in the Senate to make small quantities of marijuana legal for adults to grow, possess, and use within a tightly regulated system. Other committees – such as Senate Judiciary – are assuming they’ll be asked next year to take up the bill in earnest.
Drug testing (H. 228). Police made clear this session that they want new tools to stop and arrest motorists who they believe are driving under the influence of a broad array of drugs – not just alcohol. The problem has been that there are no accepted, quick ways of testing for the presence of drugs as there is a breath test for alcohol. And there are no standards for what level of which drugs in a person’s body causes the person to be too impaired to drive (as there is for alcohol). But police told a legislative committee that new “saliva test” devices are being marketed that could do the trick. Law enforcement tried to sneak onto the annual motor vehicle bill the authority to use these devices, but legislators realized this was a much broader issue than a “quick-fix” solution with few consequences; they told police the issue had to be vetted by the judiciary committees. While no one wants impaired drivers on the road, the presence of residual THC from a joint someone smoked two weeks ago shouldn’t be grounds for arresting someone for drugged driving. This issue is sure to come up again as drug use, and abuse, continue to affect more people.
Criminal justice reform (H. 221). The statistics on the number of people in American jails are staggering – 2.2 million, or one in every 100 American adults. This is the highest incarceration rate of any country at any time in history, according to the Pew Center on the States. Vermont has done better than other states in bucking the trend. Nonetheless, despite low crime rates, we’ve been putting more people behind bars, leading to full prisons and the transfer of inmates to private prisons out-of-state. A new coalition, of which the ACLU-VT is a member, is working to change that. Vermonters for Criminal Justice Reform worked with a group of legislators to introduce a reform bill that would reduce the state’s prison population and bring home inmates now housed at private out-of-state for-profit prisons. Provisions in the bill include expanding court diversion and deferred sentencing for nonviolent offenders, changing the trigger for felony (as opposed to misdemeanor) theft from $900 to $3,000, preventing the Department of Corrections from prohibiting otherwise legal behavior when an inmate is released on probation or parole, and removing DOC’s authority to nix an inmate’s post-release housing. Another provision in the bill, elimination of sentences of life without parole for youthful offenders, was lifted from the bill and passed as its own bill (H. 62). While many legislators and administration officials express general support for the bill’s goals, translating that sentiment into legislative action is a challenge. Initial testimony on the bill was taken in the House Judiciary Committee, with the hope for fuller consideration next session.
DNA database (S. 10). A bill that would sweep up DNA not only from persons convicted of felony crimes (the current practice) but also from persons convicted of misdemeanors carrying a jail term as part of the maximum sentence was put on hold after lawmakers were told the Vermont Crime Lab doesn’t have the staff to keep up with the DNA samples already being collected. The lab has a current backlog of 2,700 samples and under the bill would have been inundated with an estimated additional 4,500 samples per year. A whole range of misdemeanor offenses would be grounds for sampling -- mislabeling maple syrup, bringing too many bottles of liquor across state lines, and trespassing on someone’s property, for example. Lawmakers vowed to take up the bill again next year. DNA databases are controversial because sampling without a warrant is viewed as a violation of search and seizure protections.