This year’s legislative session began with the need to address a significant failure from the previous session concerning education spending caps. It ended with no action taken on marijuana legalization and ethics reform, and with a cloud hanging over state-aided efforts to attract investors to the Northeast Kingdom. But between those bookends, a number of bills important to civil liberties were passed – chief among them, an omnibus privacy bill.
Immediately below is a quick summary of this year’s action. You can get details by following the links for each item. Final versions of many of the bills have not yet been posted; we will add the links as they become available. (And nearly all the bills still need Gov. Peter Shumlin’s approval – although we believe none is likely to be vetoed.)
- Privacy protections broadened. An omnibus privacy bill that touches on drones, license plate readers, electronic communications, and medical records was the result of three years’ worth of effort by the ACLU-VT.
- Education spending caps lifted. Opposition to the school spending caps, added during the final hours of last year’s session to the school consolidation bill, grew stronger over the summer. Anger exploded in the fall as school boards, school administrators, and townspeople developed budgets and realized the financial impacts of the caps. We threatened to sue if the caps weren’t repealed.
- Marijuana legalization fails. This was going to be the year the state moved from prohibition of marijuana to regulation and legalization. Had the effort succeeded, Vermont would have become the first state to legalize marijuana through legislation
- Saliva drug-testing shelved. Coupled with the marijuana debate was a debate over the use of controversial “oral fluid” devices that can supposedly detect small amounts of drugs other than alcohol. Their use was questioned when testing labs noted that even if the devices are accurate, there are no standards indicating what level of which drugs causes impairment when driving.
- Thumbs down to warrantless searches of drivers’ cell phones. Some highway safety experts believe distracted driving is an even worse problem than drunk or drugged driving. But authorizing warrantless access to any electronic device in someone’s vehicle was seen as a serious overreach of police authority.
- Expansion of DNA collection narrowed. Some legislators resent the Vermont Supreme Court’s 2014 decision limiting DNA sampling to those convicted of a felony crime rather than everyone charged with a felony. So they looked down the list of crimes and decided to start sampling people convicted of (certain) misdemeanors. Further litigation is almost certain.
- Ethics reform shunned. At the start of the session, with a senator facing serious criminal charges and questions raised about some of the attorney general’s campaign contributions, dodging ethics reform seemed nearly impossible for the legislature to do. But it did, except for a few changes to the Senate’s self-policing rules.
- Some criminal justice reforms approved but others fail. Over-incarceration remains a high priority for civil liberties and human rights groups in Vermont, along with general concerns about treatment of inmates in Vermont’s prisons as well as the private prisons to which about 300 Vermonters are sent. A few advances were made this year.
- Age of delinquency raised. It’s the first time in a generation that juvenile delinquency laws have been changed.
- New crime of “criminal threatening” created. Verbal threats were criminalized in a bill arising from the shooting death last summer of a DCF worker. It’s unclear how effective the law will be, and its constitutionality is questionable.
- Changes to police officer decertification rules stymied again. The fight for greater police accountability looked like it was set for a big advance this year, but the optimism was misplaced. “Next year, maybe,” seems to have become the chant of this advocacy campaign.
- “Bias-free” policing law strengthened. The legislature passed what it thought was a tough anti-racial profiling bill two years ago. It learned this year it had to be tougher.
- Stalking laws revised. Victims’ advocates told legislators the courts don’t grant enough no-stalking orders. They blamed the situation on poorly worded laws. Legislators worked to refine the language to make stalking laws clearer. One thing is sure: significant litigation is likely to result from the changes.
- Policies to be developed around police use of body cams. The small cameras attached to an officer’s lapel or elsewhere are powerful accountability tools. But they also raise privacy concerns. We think the state’s public records laws are up to answering any questions.
- “Ban the box” provision provides second-chance. Employers can’t ask job candidates whether they have a criminal record on an initial application or interview.
- School discipline reform rejected. Each year, thousands of Vermont public school students are suspended. Excluding a child from school, statistics show, places them at higher risk for flunking out, dropping out, and ending up incarcerated as adults. Parents and students need a fair chance to challenge disciplinary exclusions from school so a child isn’t sent down a path of continuing failure.
Privacy protections broadened. The ACLU-VT has pushed for three years for a 21 st-century update to our privacy laws. Our 2013 Surveillance on the Northern Border report showed a proliferation of high-tech tools used by law enforcement. These tools were meant to keep our borders and citizens secure. But without robust privacy protections, these tools can just as well be used to track, monitor, and restrict the liberties of law-abiding individuals. We urged the Senate Judiciary Committee to consider an array of issues: drones, automated license plate readers (ALPRs), electronic communications, and medical records. During two weeks of special hearings last October, and then more work in early January, the committee passed out S. 155. The House got to S. 155 late in the session, but made some significant improvements. The bill made it over the finish line within 12 hours of the final gavel. The main points:
- New warrant protections will be put in place for law enforcement use of drones.
- Access to the state’s massive (8 million plate “reads”) automated license place recognition (ALPR) database will be restricted, with a warrant required to access data more than six months old.
- Electronic communications such as e-mails and Web searches will be protected by numerous provisions more detailed and robust than the 25-year-old federal electronic communications privacy act (often called “ECPA”).
- Only in the e-medical records privacy portion of the bill did the legislature’s work fall short. Legislators would not accept the creation of a private right of action to better protect Vermonters’ health information. Such a defined right would have created a back-end deterrent necessary because of the weak front-end protections of Vermont’s e-medical records system.
In terms of civil liberties, S. 155 was the most significant piece of legislation passed this session.
Education spending caps lifted. The start of the 2016 session was consumed with disagreement between the House and Senate over spending caps imposed the year before in the comprehensive school consolidation law, Act 46. We argued the caps didn’t meet the equity provisions of the landmark 1997 Brigham decision on school financing, and we threatened legal action if the caps weren’t repealed. Towns needed to have an equal draw on school resources, we told legislators; punishing low-spending towns (with double taxation) that needed or wanted to increase their spending beyond their artificially determined “threshold” while high-spending districts could continue spending the same amount but with no penalty wasn’t fair. The Senate moved immediately to rectify the problem. The House, on the other hand, dithered, tarried, and finally had to meet in a rare midnight session to break a logjam of conflicting views. In the end, the two chambers agreed to eliminate the caps for schools spending below the statewide average. Schools spending above the average would be subject to the caps for one year. Additionally, caps were raised to accommodate unanticipated large increases in teachers’ health care costs. The fight made the House look disorganized and unable to deal with complex issues – a condition that seemed to dog the body for the rest of the session.
Marijuana legalization fails. It wasn’t for lack of trying that the Senate’s bill, S. 241, didn’t gain any traction in the House. The House let the bill sit in its Judiciary Committee for two months before taking it up. And by then, attitudes – and politics – in the House Judiciary Committee had hardened. The methodical, orderly approach the Senate had taken – which included a series of public hearings around the state – stood in stark contrast to what seemed like annoyance on the House’s part that the bill had to be considered at all. The speaker said he favored legalization, eventually, but he didn’t like the Senate’s bill, particularly. The one win was greater support of the state’s medical marijuana program, which led to expansion of conditions for when marijuana can be used legally by patients. Chronic pain and glaucoma were added as conditions for which patients can qualify for cannabis therapy. The unlikely champion of S. 241, Bennington Sen. Dick Sears, promised review this summer by the legislative Criminal Justice Oversight Committee on how Vermont can move forward with legalization. Prohibition is now widely acknowledged to be a failure; the question is, how can regulation be structured to bring the drug, deemed less harmful than alcohol, out of the shadowy underworld it’s been assigned to for 80 years?
Saliva drug-testing shelved. As the marijuana legalization bill was debated, law enforcement saw an opening to dramatically expand roadside testing -- not just for alcohol but for a wide range of other drugs, from marijuana to prescription drugs such as OxyContin to illegal addictive drugs such as heroin. Having to spit into a cup to give saliva for testing is a search and seizure issue and raises serious constitutional concerns. Protections guaranteed by the 4 th Amendment to the U.S. Constitution and Article 11 of the Vermont Constitution come into play. Rather than take the usual route of having the Judiciary Committee review such a proposal, the bill (H. 228) was sent to the Transportation Committee, which typically deals with road construction, drivers’ licenses, and vanity plates. The bill also bummed a legislative ride by getting tacked onto the annual must-pass general motor vehicles bill as the session was coming to an end. The maneuver was, in many ways, indicative of the proposal itself – it wasn’t ready for prime-time, unable to stand on its own merits and be subjected to the usual scrutiny such proposals receive. Maybe the new “OF” oral testing devices work (experiences in other countries, such as Australia, suggest they don’t), but the biggest problem is that while there’s a commonly agreed upon standard for alcohol impairment (.08 blood alcohol content, or BAC), there are no similar impairment standards for any of the drugs the saliva-test machines captures. There’s also disagreement among scientists about how long the effects from “metabolites” such as THC in marijuana last. The House ignored the usual “go slow” advice that applies to speculative ventures such as saliva drug-testing, but the Senate put on the brakes. The proposal will be reviewed by a summer study committee and perhaps taken up again next year. If it is, Sen. Dick Sears, chair of the Senate Judiciary Committee, says he wants to take a close look. From previous reviews of impaired driving issues, he knows this is a difficult legislative area.
Thumbs down to warrantless searches of drivers’ cell phones. Another bill that ended up on the pile of ideas that initially seemed interesting but quickly became a mess was H. 527, a bill to cut down on distracted driving. Its sponsor said he got the idea from a motorcyclist friend when they attended a Vermont Highway Safety Coalition meeting. The Coalition tagged distracted driving as the No. 1 highway safety challenge (not drugged driving, interestingly); law enforcement said enforcement of distracted driving laws, particularly the recent handheld cell phone ban, was difficult. H. 527 would have given police the authority to seize and search a person’s cell phone if the driver were suspected of distracted driving. (Recent activity on the phone would presumably prove illegal use.) No warrant would be required; consent to a search would be implied, a condition of receiving a driver’s license. Not just phones, but any electronic device in a person’s car was subject to the no-warrant provision. Warrantless searches of cell phones, computers, laptops, and nearly all electronic devices have become hot topics across the country, as evidenced this past spring by the government’s fight to get data from an Apple iPhone used by one of the San Bernardino terrorists. Additionally, the U.S. Supreme Court heard two cases this winter challenging the so-called “implied consent doctrine.” Those cases, with decisions likely in June, could force changes in police procedures around drunk (and drugged) driving tests. H. 527 quickly became the object of derision not just in Vermont but on national news shows. “Sorry, Martin,” was the House Judiciary Committee’s chair’s comment to its sponsor, Rep. Martin Lalonde, when the bill’s flaws were revealed and it was put aside.
Expansion of DNA collection narrowed. A proposal last year (S. 10) to start collecting DNA samples from anyone convicted of a misdemeanor crime drew howls of protest and disbelief. An estimated 4,500 samples would be added annually to the state’s DNA database -- and forwarded to the federal government’s database for national look-ups. The expansion proposal came in reaction to the Vermont Supreme Court’s ruling in 2014 that DNA could not be collected from criminal suspects, only from those convicted of crimes. Sen. Dick Sears, chair of the Senate Judiciary Committee and a fierce DNA collection advocate, figured that if the state’s highest court only wanted DNA from those people convicted of crimes, he’d send along anyone convicted of any crime -- high felony crimes or misdemeanors. When it was pointed out that the mislabeling of maple syrup, the trespassing on a neighbor’s property, or the buying of too many bottles of liquor at a New Hampshire liquor outlet – as well as hundreds of other garden-variety offenses -- could mean the state took your DNA, the bill was put on hold. The state’s forensics lab wasn’t big enough to handle the volume. This year, Sen. Sears agreed to narrow the DNA testing to anyone convicted of a misdemeanor crime who ended up serving at least 30 days in jail. This still produced a very long list of possible DNA subjects. The House decided to cut the list to one crime – elder abuse. This created an end-of-session conference committee poker game that resulted in the identification of four misdemeanor crimes for which a person who was sentenced to at least 30 days in jail would have to give the state his or her DNA – stalking, violation of a stalking order, reckless endangerment, and elder abuse. The good news is that this is a drastic narrowing of the DNA collection first envisioned. The bad news is that a DNA registry of sorts has now been created, to which new crimes will inevitably be added every year. An expansion of the state’s crime lab will, conveniently, be able to take care of the additional DNA samples. The author of the special appropriation to pay for the lab’s expansion was Sen. Sears.
Ethics reform shunned. It appeared that 2016 might finally be the year that Vermont joined 46 other states in setting up an ethics commission to receive and act on complaints about public officials’ actions and conduct. A state senator was awaiting trial on lurid sex charges that included mistreatment of a woman who accompanied him to Montpelier as an intern. The state attorney general faced an investigation into receiving campaign contributions from a firm seeking to do business with the state. Towards the session’s end, stories of the EB-5 scandal in the Northeast Kingdom included acknowledgement that administrative officials had gone to work for what is alleged by federal officials to have been a fraudulent Ponzi scheme. At least one state employee had worked in the state department charged with oversight of the projects before becoming a project employee. But many legislators kept asserting that Vermont had few or no ethics problems, and if there were conflicts of interest, they were unavoidable and, in the end, harmless. Corruption, bribery, and inappropriate conduct couldn’t exist in a state of tight social, political, and financial fabrics; you just couldn’t get away with stuff like that. Although a bill (S. 184) setting up an ethics commission was introduced and reviewed in the Senate, enough legislative roadblocks were put in its path to run out the clock. A few Senate rules around financial disclosure were tightened, but bans on “revolving-door” transitions (you can’t leave the legislature and immediately begin lobbying your former colleagues) and on “pay-to-play” arrangements (you can’t make political contributions to officer-holders from whom you are seeking or have received state contracts) dropped by the wayside. The perception of corruption and conflicts will continue to grow in the absence of a watchdog ethics commission – whether the corruption and conflicts exist or not. Vermont’s politics are likely very clean, but with no disinfecting light of public scrutiny, people see dirt.
Criminal justice reforms approved. A number of criminal justice reform bills relating to inmates and their treatment were introduced and considered this session. A few made it through. One of the successful ones was S. 116. It does a number of things.
- First, it establishes that the state Parole Board is an independent and impartial body that may not be counseled during a parole revocation hearing by an attorney who represents the Department of Corrections, or any assistant attorney general. Because revoking someone’s parole is an adversarial proceeding between the DOC and the parolee, it is improper—and a violation of the due process requirement of a neutral and detached decision-maker—for the parole board to receive legal assistance from an attorney who also represents one of the adversaries, even if in a different proceeding.
- Second, it requires a hearing before a prisoner can be placed in administrative (as opposed to disciplinary) segregation (segregation or “seg” is also known as “solitary confinement”). These procedures already apply to disciplinary segregation; this bill simply applies these same procedural protections to administrative segregation. In so doing, the bill codifies what is already standard practice (at least, standard practice in most facilities most of the time) and brings much-needed uniformity and certainty to the system. Segregation exacts a terrible price on inmates; some measure of due process protections before it’s imposed should be standard.
- Third, it expands offenders’ and inmates’ access to DOC-held records about themselves, clarifies the procedures for requesting access to and correction of these records, and requires DOC to undergo a formal rulemaking process to bring these changes into effect. (Previously, the DOC had been relying on directives issued by the commissioner without any public vetting, as occurs when rules are promulgated.)
- Finally, it clarifies that the Defender General’s Office is not required to bring claims in a post-conviction proceeding that would violate its ethical duty to bring only meritorious claims.
All told, this is a solid bill that makes needed -- if common-sense -- improvements.
Other reforms fail. Two companion bills, S.206 and H.617, would have increased probationers’, parolees’, and furloughees’ chances of success and decreased unnecessary incarceration. The bills would have restricted a court’s ability to impose probation, parole, or furlough conditions that prohibit otherwise lawful conduct unless the condition was substantially necessary to reduce risk to the safety of a victim or witness. Second, they would have eliminated revocation of conditional release for technical violations of the relevant conditions; revocation would be permissible only if the violation consisted of commission of a new crime. The ACLU-VT supported these bills as smart, rational correctives to a system that too often sets up inmates to fail as they leave prison. Unfortunately, neither bill made it out of committee. Another set of bills (H. 623, S. 207) would have improved chances of parole for inmates with terminal illness and for prisoners over 55. These bills also did not get out of committee (although H. 623 did and was passed by the House, but then died in the Senate Institutions Committee).
Age of delinquency raised. After many years of advocacy, with significant ACLU-VT involvement, all children (under 18) arrested for all but the most serious crimes will have their cases begin in juvenile court, while those 18-23 will be eligible for youthful offender status. This is an effort that’s been undertaken nationally by juvenile justice advocates. Children should be treated like children, despite their mistakes. Brain research shows that children are developmentally predisposed to take risks without considering the consequences, but that with appropriate interventions they are likely to learn from their mistakes -- and stay out of the criminal justice system in the future. H. 95 requires that, by 2018, no child under 12 can be charged as an adult, all children under 18 facing charges will be cited to juvenile court (except for the most serious crimes), and 18-22 year olds can be treated as youthful offenders – allowing them to avoid jail time and have criminal records expunged if they stay out of trouble.
New crime of “criminal threatening” created. The murder last summer of Department for Children and Families worker Lara Sobel raised concerns that DCF workers needed better protection. Some legislators felt new laws were needed to deal with verbal threats. Although no evidence was presented to support the view that a new “criminal threatening” law would have prevented Sobel’s killing, legislation (S. 154) moved forward. The ACLU-VT voiced significant constitutional and policy concerns and noted key law enforcement personnel felt there are already enough laws on the books dealing with threats. We were able to win language that prosecution can be successful only if a threat is made “knowingly.” Nevertheless, we feel the law remains constitutionally problematic and will likely be challenged in court. The new crime applies to everyone. An enhanced penalty for threats specifically to a mandated reporter was added.
Changes to police officer decertification rules stymied again. Vermont has a decentralized law enforcement system. Oversight of personnel rests with individual agencies. The only avenue the state has to hold officers accountable is to “decertify” them, which prohibits further employment as a police officer. However, the grounds for decertification are extremely narrow. Essentially, an officer has to be convicted of a felony before he or she loses certification. This year saw two officers in Rutland accused of racial profiling and let go (one retired, one quit), and the city paid out nearly $1 million to settle a lawsuit over the accusations. An officer in the Vermont State Police was also accused of profiling and other questionable search practices; he, too, was let go as the state battled different lawsuits filed over his conduct. All three individuals, however, remain eligible for employment as officers in Vermont. S. 221 could have changed that by broadening the grounds for decertification. But on the last day of committee discussion of the bill, the state’s public safety commissioner announced there were still differences of opinion among the “players” involved in the discussions, and he wanted the summer to reach an amicable resolution of their disagreements. The Senate Government Operations gave in – as it had the year before when similar complaints were made by police union officials. These two defeats followed unsuccessful efforts in earlier sessions to have police officers licensed through the Office of Professional Regulation, as nearly 50 other professions are, from doctors and lawyers to plumbers and tattoo artists. Police accountability in Vermont cannot improve until police professionalism improves. And that can’t happen until the profession itself acknowledges the need for change, or the legislature forces the change. So far, neither has happened.
“Bias-free” policing law strengthened. Two years ago, the legislature passed a “bias-free” policing law that required the collection of traffic “stop data,” and adoption by all police departments of fair and impartial policing policies. The stop data was to be analyzed, and made available to the public, to identify racial profiling by police. The policies were to ensure police were committed to stamping out any profiling that was identified through the data analysis. Passage of the bill was hailed as a milestone. Two years later, however, there’s been very little analysis of the data, and few attempts at rectifying profiling problems. It appears that not all departments have adopted fair and impartial policing policies. It even appears some departments may not be collecting the requisite “stop data,” as required by law – let alone analyzing the data. An effort this session by civil rights, human rights, and migrant workers advocacy groups pressured the legislature to do better. Persistence paid off. A new fair and impartial policing law (originally H. 743) was packaged with other criminal justice measures in H. 95 and was passed during the last week of the session. All police agencies must now provide data to a data analysis center (Crime Research Group of Vermont) in an electronic format; the same data must also be posted electronically “in a manner that is analyzable and accessible to the public.” The Vermont Criminal Justice Training Council must annually report to the legislature the departments that have not provided the required data. Whether this new stick will make a difference is yet to be seen. But it can’t work any worse than the carrot approach did. And one thing remains certain: Vermont needs to understand how much profiling occurs in the state, and how to stop it. Profiling is not only biased policing, it’s bad policing.
Stalking laws revised. The House Judiciary Committee heard testimony that victims of abuse often ask for but rarely receive a stalking protection order from Vermont’s courts. Statistics presented said that of the 705 requests for stalking orders in 2015, a temporary order was granted in 62 percent of the cases but a final order in only 25 percent. This “high percentage of denials” was blamed on “confusion around the definition of ‘stalking,’” but testimony from the judiciary indicated that many of these denials were in cases where the conduct clearly fell outside the scope of stalking – an ex-friend bad-mouthing another on social media, name-calling, or noise disputes between neighbors. The committee set out to refine the definition, and as a result, it made numerous other changes to the state’s stalking laws:
- To the definition of stalking was added a requirement that the person knew or should have known the effect that his or her conduct would have on a person.
- No longer is an express or overt threat needed to establish that a threat was made.
- The causing of emotional distress, even if the person was not placed in fear for his or her own safety, is now grounds for a protective order or a criminal charge.
- Lack of notice that the conduct was unwanted can no longer be raised as a defense to any stalking charge.
Preserved in the bill is protection for a person engaged in constitutionally protected activities. We worry, though, whenever speech or other expressive activity is criminalized, and we fear the bill could make determinations in stalking cases more, not less, difficult. Because the law defines stalking very broadly and because a prison term is a serious black mark on anyone’s record, there is likely to be much litigation around the new law.
Policies to be developed around police use of body cams. Body cams are seeping into Vermont, thanks to generous federal grants, and there is concern the cameras may lead to invasions of personal privacy or, on the other hand, be turned on and off selectively by police to create a record of what law enforcement insists is the truth of a situation. Videotape or digital recordings are no different than other records created by a government official “during the course of agency business.” All such records are considered “public records,” and they must be released upon request absent an exemption keeping them private. The ACLU’s position is that if police use body cameras, the cameras should be on all the time. If footage is requested by the press or public, it should be made public unless an exemption to the state’s public records law prevents the release. The portion of Vermont’s public records law around police records was updated three years ago, and it’s well-suited to regulate the release of video images. Basically the default is that a record must be released absent a showing of harm if released. Possible harm is determined by the weighing of the public’s right to know vs. legitimate privacy interests. Specific privacy interests are spelled out in the exemption. While law enforcement is charged with developing a model policy around body cam use, we feel they need do little more than say video records will be treated as any other public record, with nondisclosure only when permitted by an exemption to the public records law.
“Ban the box” provision provides second-chance. Perhaps no black mark can dog a person more viciously than a criminal past. A mistake made when one was younger, a misstep that someone regrets and has spent time atoning for – our society too often turns its back on someone seeking redemption. The simple question, “Have you ever been convicted of a crime?” is enough to exclude someone from a job for which he or she is well-qualified. The legislature agreed that one small step Vermont could take to give such a person a second chance would be to ban the asking of questions about a criminal past on job applications. The question can still be asked at a later point in the selection process, but legislators felt a person should not, on the first step of the hiring process, be excluded from consideration simply because of a criminal history. The ACLU supports this approach as a way to help break down the isolation often faced by someone who has made a mistake, has served time, and is trying to pull his or her life back together. The bill (H. 261) was signed by the governor before the session ended. The law takes effect next July.
School discipline reform rejected. Two bills, S. 194 and S. 248, were submitted to support efforts by the Dignity in Schools Coalition to ensure a child is treated fairly before being suspended. Current law allows superintendents and principals to suspend a student for up to 10 days, with little chance for recourse. (Suspensions of more than 10 days, and expulsion, require a hearing before the local school board.) Between 4,000 and 5,000 Vermont public school students are suspended each year, which means a collective loss of around 12,000 days of education. Through requests from the coalition, the Agency of Education released school discipline data covering the last three years. In addition to the large number of suspensions, the data show significant disparities based on race, disability, language ability, gender, and income-level. Efforts to obtain from the agency school-level data were resisted, however, as were adding statutory protections to ensure a fair process before a student is suspended. The coalition is committed to seeing significant reforms in an area that currently is leaving too many children behind and excluding them from the education they need.