2016 Legislative Report
ACLU of Maryland 2016 General Assembly Report
Attorneys' Fees for State Constitutional Claims
Unfortunately, HB 393/ SB 362, failed to make it across the finish line-it would have allowed courts to award attorneys fees in state constitutional claims. This bill would have helped injured Marylanders, many of whom are low-income and have a hard time finding an attorney to represent them in their claim. We will continue to fight alongside our partners for this bill in future sessions.
Access to Information on Complaints Against Public Employees
In 2015, the Court of Appeals held that under the Maryland Public Information Act, victims of police misconduct have no right to learn anything at all about the police department's investigation of their complaints, or the discipline imposed on the officers involved. HB 402/ SB 671 would have remedied this staggering lack of transparency in a category of information that the public should have every right to access. While it did not pass this year, we will continue to fight for reform to the MPIA.
Access to Body-Worn Camera Footage
Body-worn cameras can help provide transparency and accountability in policing. That can only be the case, however, if the public has access to the footage. Access to this footage is controlled by the Maryland Public Information Act, which we believe provides the proper balancing act between public access and privacy. SB 930/HB 947 would have placed limitations on who could access the footage under the MPIA, and we worked with the sponsor and with other organizations to ensure maximum access to the footage while protecting privacy. These bills stalled in committee.
Several bills filed this year addressed aspects of the First Amendment. HB 12, HB 68/SB 6 would have criminalized speech by making it a crime to lie about being a member of the military. HB 93 would have criminalized freedom of association by making 8 categories of information automatically admissible as evidence of gang membership, including one's relationship to a gang member. HB 102 would have created a permit process for certain individuals (e.g. firefighters) to solicit donations on the highway, creating an unconstitutional prior restraint on speech, as well as supporting one form of speech over another, because only government-chosen groups would be allowed to solicit donations.
HB 729 sought to deny tax-exempt status to organizations with "known ties to terrorism." The bill was unconstitutional, unnecessary and clearly an attempt to inflame anti-Muslim sentiments: fortunately it died in committee.
HB 1000/SB 1040 sought to deny the purchase of, or a permit to, carry a gun to anyone who is on the Terrorist Watchlist maintained by the FBI. The ACLU nationally has long been concerned with the Terrorist Watchlist and its subset, the No-Fly list, due to the lack of due process surrounding the lists, and whether and how individuals can find out if they are on the lists and can petition to be remove. The national ACLU has filed suit against the federal government on behalf of several individuals - including veterans - who were on the list. HB 100/SB 1040 did not pass.
HB 955/SB 267 purported to "allow" students to pray in schools. However, students are already allowed to pray in schools, so long as the prayer is voluntary, is not disruptive, and is not sponsored by the school system. Instead, the bills would have infringed upon students' rights to be free from school-sponsored prayer and proselytizing. We opposed these bills and both stalled in committee.
CRIMINAL JUSTICE REFORM
This session a host of bills were introduced to change Maryland's criminal sentencing laws-some progressive and others not. Chief among these was HB 1312/ SB 1005 the Justice Reinvestment Act (JRA), the stated goal of which was to reduce the number of people incarcerated in Maryland and how much the state spends on incarceration. On balance, the JRA moves the needle forward for Marylanders, away from draconian criminal penalties that have disrupted households, especially in communities of color, and have not made us safer. However, the bill does include some regressive measures, including sentence enhancements for second-degree murder and some child abuse offenses. Among the bill's progressive measures are an expansion of geriatric parole; expungement of some criminal records; elimination of jail penalties for some driving offenses; eliminating mandatory minimum sentences for some drug distribution offenses; reducing the jail time for some theft offenses; and limits on the number of days someone can be re-incarcerated for a technical violation of parole/ probation. Beyond the substantive reforms achieved by the bill, we are most encouraged by legislature's the shift away from failed "tough-on-crime" policies.
In the same vein of reducing criminal penalties, HB 190/ SB 508 was successful: it removes civil penalties for shoplifting. Unfortunately, HB 242 was not successful this year: it would have decriminalized street gambling.
Several bills were also introduced to support the re-entry of individuals who had been swept up in the criminal justice system, as were many bills to expand opportunities to expunge criminal records. Unfortunately, the vast majority of these bills did not pass this year.
We supported HB 563/ SB 53, which would change the law banning objects hanging from the rearview mirror from a primary offense to a secondary offense, meaning that drivers may still be charged for the offense, but they may not be pulled over for it. Reports and lawsuits have long uncovered racial disparities in traffic stops in Maryland, and statistics show black and Hispanic drivers are charged more than white drivers for having items hanging from their rearview mirror. HB 563/ SB 53 would have been an important step to eliminate a basis for traffic stops but after passing out of the Senate, it stalled in the House.
None of the bills introduced to create opportunities for release of long-sentence servers passed. HB 255 would have removed the requirement that the governor approve medical parolees and HB 882/ SB 531 would have removed this requirement for all persons serving parole-eligible sentences. Maryland's current requirement that the governor approve recommendations for parole for those serving life-with-parole sentences is dangerously political.
Maryland's pretrial system is by all accounts in dire need of reform. Unfortunately, HB 1046, which would have substantially curbed the use of commercial bail did not pass this year. Even worse, HB 374/ SB 603, did pass-this bill limits the pretrial release of defendants who have previously been convicted of a crime of violence. We opposed this bill for several reasons, including the fact that it categorically bars pretrial release of individuals who have not been found guilty of the crime with which they are currently charged, instead of judging each case on its facts. Pretrial detention causes wage and job loss and destabilizes entire households.
Drug Policy Reform
We worked on several bills this session to end the misguided "War on Drugs," and to move drug use and addiction from the criminal justice system to the health care system.
At the opening of session we supported the override of the Governor's veto of SB 517, which decriminalized possession of marijuana paraphernalia and made smoking cannabis in public a steep civil fine of $500. After the override, we fought several bills that sought to re-criminalize smoking cannabis in public. Maryland decriminalized possession of minor amounts of cannabis in 2014, largely due to the fact that the enforcement of possession laws were racially disproportionate. Enacting a crime of smoking cannabis in public would have that same effect of wrapping people up in the criminal justice system. Further, of the four states that have structures in place for the legal, recreational use of cannabis, three have smoking in public a civil fine; of the 10 states that have decriminalization like Maryland, eight have smoking in public a civil fine. If there were a problem with people smoking cannabis in public, certainly these states would have changed their laws.
We also supported a package of bills aimed at harm-reduction, including expanding who can prescribe medical cannabis (HB 104 - passed) and a bill to decriminalize minor possession of all drugs (HB 1119). While HB 1119 did not pass, it continued an important discussion about the failure of the War on Drugs and the harm it has caused, especially in communities of color.
After years of advocacy, we were finally successful in getting a long-overdue transparency measure passed. HB 1180/ SB 946 requires Maryland state corrections officials to report on the use of solitary confinement, also known as restrictive housing. Based on information provided last year, we know that Maryland uses restrictive housing at about 8 percent, which is twice the national average. Moreover, inmates with serious mental illness are placed in solitary at about twice the rate of the general population and for about twice as long. This bill will give the public a glimpse into how their tax dollars are being used inside our state prisons.
See our testimony on HB 1180/ SB 946.
State education formula
The Governor fully funded the State education funding formula this year thanks in part to the hard work of the ACLU, education advocates, and legislative leaders last year. The fight over Gov. Hogan's cuts to the Geographic Cost of Education Index (GCEI) last year led the legislature to pass a law on the last day of the 2015 legislative session requiring full funding for FY17. The Governor chose not to fight the mandate.
Baltimore school funding
Despite funding the formula, Gov. Hogan's proposed budget showed City Schools losing $25 million in state education funding due to an enrollment loss and an increase in Baltimore City's wealth relative to other counties. The Governor provided extra funding to three other counties with enrollment losses. ACLU worked with the Baltimore City delegation, other legislative leaders, and the Baltimore Education Coalition to pressure the Governor to include Baltimore schools in that group. The Governor added $12.7 million for Baltimore City schools in a supplemental budget, a tremendous win for city children.
Because some of the loss in state funding was due to an increase in the city's wealth, legislative leaders required Baltimore City to provide $10 million to Baltimore schools above their FY16 allocation. The combined additional state and city contributions restore $22.7 million of the original $25 million loss - still less funding than in the prior year but not as drastic a loss.
Baltimore school funding and TIFs
House Appropriations Committee Chair Del. Maggie McIntosh shepherded through the legislature a bill that prevents Baltimore schools from losing State education aid due to any Tax Increment Financing (TIF) arrangements that impact the measurement of the city's wealth over the course of the next three years.
Some education funding still awaiting Governor's release
For the second year in a row, legislators made cuts to Gov. Hogan's proposed budget and reallocated the funds toward their own priorities, including $6.1 million for the oldest school buildings in the state - the Aging Schools program - and $19 million to help localities with increased pension costs. The question is: Will the Governor release the "fenced-off" funds post-legislative session? Last year he did not and schools across the state suffered due to reduced Geographic Cost of Education Index funding.
Taxpayer Subsidies for Private Schools
As with years past, we fought against public funding of private schools. We oppose these bills for many reasons, including the vast need of our public schools and the Constitutional mandate to adequately fund them, as well as the discrimination that private, religious schools are allowed to perpetrate under the law. While none of the bills passed, the General Assembly made a $5 million appropriation in the budget to fund a voucher program for students to attend private schools. Some of our concerns regarding discrimination were addressed; some were not, which means that religious schools that can and do discriminate on the basis of sexual orientation and gender identity will benefit from taxpayer subsidies.
This year, we were successful in staving off harmful legislation that would have needlessly swept up Maryland's immigrant population in deportation proceedings. HB 1292 and HB 1298 would have required certain correctional facilities to notify the Department of Homeland Security prior to releasing an undocumented inmate. Comingling state correctional functions with federal immigration functions threatens to undermine the trust between immigrant communities and law enforcement. Moreover, the bill would likely have resulted in the deportation of individuals who were held pretrial and had not been convicted of any crime.
See our testimony on HB 1292 and HB 1298.
There were an array of bills filed relating to discrimination, including HB 16, relating to religious organizations' ability to refuse to perform same-sex marriages - which is already Maryland law; HB 168, creating statements that would analyze whether a proposed bill would have a racial impact; HB 173, creating a commission to remember victims of lynching; and HB 341/SB 800, creating a commission to study the disproportionate justice impact on minorities. All of these bills failed.
HB 785/SB 233, an anti-discrimination bill requiring police to be trained in not profiling motorcyclists, which we supported, passed.
VII. POLICE ACCOUNTABILITY
This session there were 19 bills filed related to police, police practices and accountability. We worked with the Maryland Coalition for Justice and Police Accountability and the Campaign for Justice, Safety and Jobs on bills that would reform police practices. Our focus in this work was to provide increased civilian oversight and participation in policing in order to hold police accountable to the communities they serve. HB 1016, the recommendations from the Public Safety and Policing Workgroup, passed the General Assembly with wide margins. This bill makes some changes to the Law Enforcement Officers Bill of Rights, including opening up the possibility for civilians to participate as voting members on internal disciplinary hearing boards; creates a new entity, the Maryland Police Training and Standards Commission, which will include civilians and provide statewide standards for police practices and training; and gives police whistleblower protection.
We supported HB 146/SB 552, which would provide tax credits to incentivize police who work in Baltimore to live in Baltimore, and HB 350, which would end the practice of conditioning receipt of settlement funds upon a complainant abiding by a non-disclosure agreement in police misconduct cases. While HB 146/SB 552 passed, HB 350 failed in committee.
Civil Asset Forfeiture
We supported SB 161/HB 336, which would build on the progress made last year in reforming Maryland's civil asset forfeiture practice. This year's bill eliminates the use of civil asset forfeiture in simple drug possession cases, while leaving the practice for the manufacture, distribution and dispensing of drugs. Having heard stories of law enforcement seizing money and cars taken upon allegations of simple possession, this was a key change to the law. The law also provides other protections for Marylanders in the form of notice, ways by which to recover seized property, limitations on the situations in which seized property can be turned over to federal officials, and a reporting requirement to monitor the use of civil asset forfeiture. HB 336 passed.
SB 589/HB 521 would have reinstated the reporting requirements when a SWAT team is deployed. Following a 2008 SWAT raid on Berwyn Heights' Mayor Cheye Calvo's house where Mr. Calvo and his family were wrongfully detained and his dog shot, the state instituted SWAT team reporting requirements. That law sunsetted in 2014, leading to the introduction of the bills to reinstated it. Both bills stalled in the Senate.
Building upon our successful 2014 technology and privacy agenda, and concurrent with ACLU affiliates in other states, we supported several bills to protect Marylanders' privacy.
Historical Location Tracking
HB 257/SB 476 would have ensured that law enforcement obtain a warrant-type court order before tracking your past movements by using your phone records. While the General Assembly passed a law in 2014 requiring that law enforcement obtain a warrant-type court order prior to tracking you in real-time using your cell phone, it failed to provide that protection for "historical tracking." Arguably, where you have been and the pattern of your movements is more invasive of privacy than where you are now. HB 257/SB 476 stalled due to the objections by police and prosecutors.
Cell Site Simulator Devices (a.k.a Stingrays)
HB 904, similarly, would have required law enforcement to obtain a warrant-type court order prior to using a cell site simulator device. While these devices should have been covered under the 2014 law, there was tremendous secrecy around the use of these devices and whether or not law enforcement were getting the proper court authorization. During session the Maryland Court of Special Appeals decided Maryland v. Andrews, ruling that law enforcement should have obtained a warrant prior to using a cell site simulator device. Despite the support that decision gave the bill, law enforcement objected to certain provisions and it stalled in committee.
Car Black Boxes
Consistent with our efforts to protect privacy, we supported HB 1356, which would establish that the data recorded by a vehicle event data recorder belongs to the car owner, and provides restrictions on when that data may be turned over to third parties. This bill failed in committee.
Death with Dignity
We once again supported the "End of Life Option Act," which would allow terminally ill individuals to choose to end their life with dignity. HB 404/SB 418 stalled in committee.
Public Transit Audio Surveillance
For the fourth year in a row, we supported a bill restricting mass audio recording on public transit (the bill did not touch the current practice of video recording on public transit). SB 199 made it farther than ever before, clearing the Senate unanimously, but failed in the House.
As in previous years, bills were introduced during the 2016 session to limit a woman's access to abortion. HB 603/ SB 749 would have limited abortions after 20 weeks. SB 626 would have created burdensome and unnecessary ultrasound requirements for abortion providers. Thankfully, none of these bills passed this year.
We began the session supporting the successful override of the Governor's veto of SB 340, which re-enfranchised thousands of returning citizens upon their release from incarceration.
There were a number of bills introduced to improve the voter registration process, including HB 1007, which passed. HB 1008 also passed, which will expand early voting centers.
Several regressive measures were introduced, but fortunately failed this year. At least three bills, including SB 268, were introduced to create burdensome and unnecessary voter ID requirements. Other bills, such as HB 716, would have restricted the ability of those with felony records to vote.
In addition, many voting and election-related bills were introduced this session. Unfortunately, HB 1248/ SB 428, which would have improved the campaign finance system, did not pass this year.
This was an exciting session for workplace fairness. HB 1003/ SB 481 makes significant strides toward eliminating gender disparities in wages for women in Maryland. HB 580/ SB 472 passed the House but got stuck in the Senate Committee on the last day of session. That bill would have created an opportunity for Maryland's workers to earn sick leave. It is unjust that every day workers are forced to choose between their health or the health of a family member and their job security. We will continue to support our partners' efforts to making paid sick leave a reality for hardworking Marylanders.
Unfortunately, HB 1293 was not successful-it would have required employers to provide employees with space and time for pumping milk. This effort dovetails with our 2015 legal demand letter on behalf of Natalie Hesselgrave, who was denied the opportunity to pump during her medical licensing exam.
Several bills were introduced, unsuccessfully, this session to address youth entangled in the criminal justice system. HB 266/ SB 498 and HB 304/ SB 243 would have reformed the adjudication of youth in adult court. HB 518/ SB 259 would have banned the sentencing of juveniles to life without parole sentences.
Fortunately, HB 1634/ SB 1072 did pass-this bill sets up a taskforce to study the practice of shackling and strip-searching juveniles. This is a much-needed effort to curb a re-traumatizing and often unnecessary practice. We are encouraged by the General Assembly's amenability to reform current practices and will follow the work of the taskforce carefully.