2013 Legislative Report
ACLU of Maryland 2013 General Assembly Report
The ACLU of Maryland is a non-partisan organization dedicated to the preservation and enhancement of civil liberties and civil rights. We advance civil liberties and civil rights through litigation, lobbying and education. In the legislature we lobby on free speech, privacy and technology, reproductive freedom, lgbt, religious freedom, drug policies, police practices, voting rights, women's rights, racial justice, equal protection, prisoner rights, death penalty, criminal justice, immigrant rights and national security issues.
Death Penalty Repeal - VICTORY!
This year Maryland became the 18th state to repeal the death penalty. The ACLU of Maryland was part of a large and broad coalition working for repeal. As many of our supporters know, in 2009 the legislature came close but fell short of a full repeal, and ended up restricting the use of the death penalty. Despite those restrictions, the legislature finally came to understand that the death penalty is racially biased, expensive and ineffective as a deterrent. The ACLU of Maryland has a long history in this fight. In 1994, we mounted an unsuccessful legal challenge against the execution of John Thanos, the first Marylander to be put to death after the Supreme Court reinstated capital punishment in 1977. There have been gains and setbacks, but we have never stopped fighting against this heinous punishment. We knew that with the dedication and hard work of inspiring coalition partners, the strong support of the Governor and a growing number of elected leaders, and evolving public sentiment, this historic day would come.
Decriminalizing Possession of Small Amounts of Marijuana
Arrests and convictions for the non-violent offense of marijuana possession is a costly and wasteful practice that disproportionately targets communities of color. The ACLU supported and advocated for a bill, SB 297, which would have decriminalized possession of small amounts of marijuana. While SB 297 made historic progress by passing the State Senate, the bill stalled in the House Judiciary Committee. The ACLU will continue to be a leader in advocating for sensible and fair marijuana laws.
Sixth Amendment Right to Counsel - VICTORY!
Indigent defendants' Sixth Amendment right to counsel was severely threatened by HB 153. The legislation would have terminated a defendant's representation by the Office of the Public Defender after the conclusion of the bail hearing, forcing the defendant and the OPD to go through the wasteful process of re-qualification. This bill would have infringed upon the constitutional requirement that an individual is entitled to appointed counsel during any "critical stage" of a criminal proceeding against them. And the legislation would have especially penalized and threatened the rights of people of color, as there are wide racial disparities in Maryland with regard to who is arrested and detained. Despite both the Senate and the House of Delegates passing versions of the bill, the ACLU and a strong coalition of civil rights and criminal justice groups managed to defeat it in the final hours of the 2013 General Assembly session. The ACLU will continue to be a leader in defending poor persons' constitutional rights to counsel by public defenders.
Task Force to Study Private Diversion Programs
The ACLU of Maryland supported SB 793/HB 1018, which would establish a task force to study the use of private diversion programs. The bill sought to study a growing trend, both in Maryland and around the country, of allowing private, for-profit companies to threaten criminal prosecution (using prosecutors' official letterhead) by targeting offenses such as alleged bad check writing, even if prosecutors have not conducted any meaningful review of the allegations. The letters tell recipients that they can avoid prosecution by paying hundreds of dollars to attend "financial accountability" classes offered by the private companies. In exchange, the prosecutor's office gets a share of the money raised from the classes' attendance fees.
These programs raise many troubling questions, such as whether the local prosecutor is actually investigating the claims that a crime has occurred, the adequacy of the proof of criminal violations, the degree of supervision by prosecutorial staff, the conflict of interest when investigations are conducted by companies with a financial stake in the outcome, the financial benefits to prosecutors' offices that get a portion of the program fees, and the constitutional rights of individuals subjected to these practices.
While the bills failed in committee, the ACLU of Maryland has Maryland Public Information Act requests out to the various States' Attorneys' offices to find out more about the practice.
The ACLU supported a bill, SB 831, which would establish a committee to analyze the state operating budget using evidence-based policies. Evidence-based policies are research-based policies consisting of a systematic review of evidence, and including data analyses of studies to determine if certain policies work. Utilizing evidence-based and data-driven analyses can vastly improve the policies on which the ACLU prioritizes, including youth justice and criminal justice. SB 831 would have established a clear path for policies to, among other things, further social justice policies and increase public safety while saving substantial state money. While the bill passed the Senate, it unfortunately did not pass the House committee, but we will continue to advocate for public policies that accurately utilize evidence and data.
SAFE AND FREE
The ACLU of Maryland testified in favor of a bill that would require law enforcement to obtain a warrant prior to using a highly controversial drone to gather evidence. Though the bill did not make it out of committee, it successfully raised awareness in the legislature of the proliferation of drones and the privacy concerns that their unregulated use poses.
The ACLU of Maryland supported HB 558, which would prohibit an agency, county or employee of the state, and others, from knowingly aiding in the detention of a person
under §§ 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012. The NDAA codified indefinite military detention of civilians captured far from any battlefield - without charge or trial - for the first time in American history. Many organizations across the country have come together to speak out against the NDAA. In fact, five states and many municipalities, including the City of Takoma Park, have resolutions similar to HB 558. The bill stalled in committee.
Maryland Highway Safety Act of 2013 - VICTORY!
In partnership with CASA de Maryland, SEIU, and other allies, the ACLU supported SB 715, a bill that would expand access to limited-use driver's licenses to individuals without proof of lawful immigration status or a social security number. Qualifying individuals will still be required to provide proof of two years of Maryland residence and to meet other rigorous identification requirements. This new law will have a positive impact on a large population of immigrants living in Maryland and will improve public safety on the roadways. We expect it to significantly decrease the arrest and harassment of immigrants while performing necessary activities like driving kids to school or going to work. We also hope that passage of this bill will invigorate campaigns in other states with similar pending measures.
Nullity of Bail Bonds
The ACLU supported HB 476/SB 720, which would have nullified the bonds of immigrants who fail to show up for their state hearings either because they are in federal immigration custody or because they have been deported by federal immigration authorities. The bill would also require bail bondsmen to return any premiums paid to the individual or family member who provided the payment. The measure would help ensure that low-income immigrants and their families do not forfeit what little resources they have when their failure to appear is through no fault of their own. Absent such a law, immigrants may also have a harder time convincing bail bondsmen to post bond for them because of the perceived risk of federal detention or deportation. The bill received a favorable report from the House Judiciary Committee. Unfortunately, however, it died in the Senate Judicial Proceedings Committee. We hope to try again next year, unless the issue, which is currently pending before the Maryland Court of Appeals, is resolved by a court decision before the next legislative session.
The ACLU successfully opposed a bill that would have mandated the use of E-Verify, a federal electronic employment verification program, for certain employers and contractors in the State of Maryland. The E-Verify program erodes privacy rights and worker protections, has a high error rate, and fails to incorporate sufficient due process protections for affected workers. While the federal E-Verify program may become mandatory in the future with passage of the comprehensive immigration reform bill in Congress, it is currently optional.
Dually Enrolled Students Tuition Waiver
The ACLU supported HB 928, a measure which would clarify that dually-enrolled high school students also qualify for benefits under the Maryland DREAM Act. The purpose of the DREAM Act is to provide in-state tuition benefits to undocumented immigrants who came to the United States as children, provided they and their parents meet certain additional criteria. Dually enrolled students are an integral part of this "DREAMer" population: there are no discernible differences between them and the college students who currently qualify for in-state tuition benefits under the Act. They are among the intended beneficiaries of the DREAM Act, and its failure to explicitly account for them appears to have been an oversight that this proposed law remedies. While HB 928 died in committee, its major components were settled in a positive Attorney General opinion and then incorporated into SB 740, the College and Career Readiness and College Completion Act of 2013, which passed.
Public Institutions of Higher Education Legal Presence and Tuition Rates Reporting
The ACLU successfully opposed a reactionary measure that would have imposed burdensome in-state tuition reporting requirements on all Maryland institutions of higher education. The bill, which served no discernible public policy purpose, required the collection of unnecessarily detailed and invasive personal information, and imposed onerous data collection and reporting requirements on Maryland institutions of higher education. Because the bill would have required the collection and reporting of irrelevant information, such as students' country of origin and the details of their immigration status, it could have deterred the intended beneficiaries of the Maryland DREAM Act from availing themselves of the benefits to which they are entitled. The bill was given an unfavorable report by the House Appropriations Committee.
YOUTH JUSTICE REFORM
Youth Placement -- VICTORY!
The ACLU of Maryland worked in coalition with organizations from the Maryland Youth Justice Roundtable to promote a package of five bills to reform youth justice in Maryland by "right-sizing" the populations in juvenile facilities. The ACLU's primary role was to spearhead the legislation to reduce youth incarceration for minor offenses. Against enormous odds, this legislation ultimately passed in its first year. The law - which establishes that youth with certain minor offenses should not be sent to long-term juvenile facilities - will reduce over-reliance on facilities for youth who do not present public safety concerns. The reform will also encourage juvenile officials to provide treatment and services for youth in the community while they live at home with their families. It is projected that the law will reduce youth incarceration by up to 20 percent and save the state up to $12 million.
Other Youth Justice Bills
In addition, advocates proposed four other bills that would prohibit incarceration of youth age 13 and under; require the juvenile system to adopt graduated rewards and sanctions for youth behavior; house all youth in juvenile facilities instead of the adult system; and end the practice of automatically charging youth as adults. Ultimately, the General Assembly voted to require the juvenile justice system to develop a plan to adopt graduated responses to youth behavior and to establish a task force assessing Maryland's practices regarding youth charged as adults.
Cell Phone Location Tracking
For three years, the ACLU of Maryland has advocated for a bill to require law enforcement to obtain a warrant prior to obtaining cell phone location tracking information. When turned on, a cell phone sends off a signal several times a minute. That signal reaches the closest cell towers, which then bounce the signal back, giving the phone the strongest signal from which to operate. Cell phone companies keep this information anywhere from 6 months to several years. When looked at in the aggregate, this information can give a detailed picture of where a person is or has been over a period of time.
Currently, law enforcement in Maryland obtain that location information if it is ‘relevant to a criminal investigation.' The ACLU believes that due to the detailed information this gives about a person's life, law enforcement must obtain a warrant, based upon probable cause that the target of the information either is committing or has committed a crime, or that the location information itself is evidence of or will lead to evidence of the crime being investigated.
While there were signs early on that the bill would pass, it ultimately got bogged down over whether law enforcement must obtain a warrant for both "real-time" and "historical" (which could be five minutes ago) or just "real-time" location information. We believe that where you have been is no less private - and maybe even more so - than where you are now, so both must be included.
Social Media in Schools
Last session, the ACLU of Maryland was victorious in passing the first-in-the-country employer social media privacy bill, ensuring that employers could not force employees or applicants to turn over their social media passwords. Since then, six other states have enacted such laws. This year sponsors introduced a bill to prevent schools from requesting or requiring social media passwords from students. Unfortunately, while seven other states have enacted these bills, and the bill passed the Senate in both 2012 and the 2013, it ultimately stalled in the House.
Audio Surveillance in Buses
For the last several years the ACLU of Maryland has been successful in defeating bills that would require audio surveillance on buses. This year, we supported two proactive bills that would have prohibited blanket audio surveillance on public transit. We believe that transit riders should not have to give up their fundamental right to privacy, and have all of their conversations recorded, as a condition of riding public transit in Maryland. While neither bill was successful, committee narrative was inserted into the budget to require the Maryland Transit Authority to investigate the use of the devices and any limitations on when the devices can be used.
DNA of Arrestees
Despite the opposition of the ACLU of Maryland and the Maryland State Conference of NAACP Branches, in 2009 the Maryland General Assembly, expanded upon the taking of DNA to include people arrested of certain crimes. The ACLU opposed this bill because it reversed the notion of ‘innocent until proven guilty' and, given how people of color are targeted and arrested at disproportionately higher rates than whites, it would result in their over-representation in the DNA database. Together with the Legislative Black Caucus and the Office of the Public Defender, the ACLU was able to insert several protections in the bill, in addition to a sunset provision which will caused the bill to expire in 2014. This session the legislature repealed the sunset provision, at the strong urging by the Governor.
In addition to opposing the repeal of the sunset provision, the ACLU also supported a bill that would require local jurisdictions using DNA to follow the protections set up in the 2009 bill. While this bill was filed late and got stuck in committee, the ACLU expects to support it again in 2014.
Mandatory Drug & Alcohol Testing
This session legislators introduced several bills that would have required mandatory blood testing of a driver when there was a car accident. The ACLU opposed these bills and testified that drawing blood constituted a search under the Fourth Amendment, and thus officers needed to obtain a warrant based on probable cause before they could draw blood from a driver without their consent. None of the bills passed.
Immediately post-session, our position on this bill was validated when the U.S. Supreme Court, in the case of Missouri v. McNeeley, held that law enforcement must get a warrant prior to testing blood in DUI cases. In McNeeley, the police drove the driver to a hospital and restrained him to draw his blood after he refused to take a breath test. The Court noted that drawing blood to test its alcohol concentration is "an invasion of bodily integrity" that involves an individual's "most personal and deep-rooted expectations of privacy" and upheld the Missouri Supreme Court's decision that the warrantless blood test was an unreasonable search as there was no emergency that kept the police from getting a warrant in a timely manner, before the alcohol in the driver's blood dissipated.