2017 Legislative Report
ACLU of Maryland 2017 General Assembly Report
A number of bills were introduced this year to increase access to the courts and promote government transparency in the state. Several bills were introduced to amend the Open Meetings Act. Of those, HB 383 passed-it will require custodians of public records who deny records inspection requests to provide a written explanation for why redacting sensitive information would have been insufficient.
While HB 903 / SB 705 made it further than ever before-receiving a favorable report from the Senate Judicial Proceedings Committee-unfortunately, it failed to make it across the finish line. This bill, which we supported, would have allowed state courts to award attorneys' fees in successful state constitutional claims, thereby helping Marylanders whose constitutional and civil rights were violated, but many of whom have a hard time finding an attorney to represent them. The ACLU of Md will continue to fight alongside our partners for this bill in future sessions.
II. FIRST AMENDMENT
This session, the ACLU of Md successfully opposed several bills that would have curtailed the fundamental rights of Marylanders to freely express themselves. HB 372 would have required county boards of education to "allow" "nonsectarian student-initiated voluntary prayer" at mandatory and voluntary school-sponsored student events. This bill would likely have subjected students to organized, coercive prayer during school events. Also, HB 1135 would have barred instructors in Maryland public institutions from expressing personal philosophical or political opinions.
HB 949 / SB 739 would have prohibited the state or any public body from entering into or renewing a contract with, among others, any person, governmental instrumentality, corporation, or non-profit organization that supports or promotes a boycott of Israel. The bill would also have required the State's pension plan to divest from any investment funds that include companies participating in or supporting a boycott of Israel. Finally, the bill would have required the State to create, and publish, a list of persons and organizations that participate in or support such a boycott. While the ACLU of Maryland takes no position on the underlying boycott, we opposed the bill because it sought to penalize a particular point of view.
Fortunately, these regressive bills all failed.
II. CRIMINAL JUSTICE REFORM
a. Pretrial Reform
Last year, Attorney General Brian Frosh issued an opinion that called into question the constitutionality of bail in Maryland's pretrial system. That opinion prompted the Judiciary to enact a rule to (1) deprioritize the use of cash bail, (2) require that cash bail be used only to ensure reappearance in court, not to address public safety, and (3) prevent courts from setting bail in an amount the defendant cannot afford. Unsurprisingly, the bail bond industry did not take well to this reform and fought aggressively to reverse it through HB 1215 / SB 983. Working through the broad and dynamic Coalition for a Safe and Just Maryland, the ACLU of Md and our partners successfully opposed this regressive legislation.
We also supported two progressive bills on bail reform-HB 1218, which would have eliminated the use of cash bail over time and HB 1390 / SB 880, which would have codified the Judicial Rule; created transparent and open processes for adopting needs assessment tools; and required data collection and reporting on pretrial populations.
b. Sentencing Reform
With the passage of the landmark 2016 Justice Reinvestment Act, there were considerably fewer bills offered this session addressing criminal sentencing. However, the ACLU did oppose some bills that sought to increase criminal penalties and supported others that aimed to reduce the overreliance on our criminal justice system for low-level, sometimes non-violent activities. For example, we again supported HB 377 / SB 940, which would have decriminalized certain gambling offenses-bills such as this take a sensible approach toward stemming the influx of Marylanders into our jails for consensual, non-violent activity. Unfortunately, the bill did not make it out of committee this year. However, HB 1261 did make it across the finish line-this bill repealed criminal penalties for violations of barbering laws. It has already been approved by the Governor!
c. Prisoners' Rights
A number of bills were introduced that would have impacted the quality of life for folks behind bars. The ACLU of Md is proud to have supported the passage of HB 459, which seeks to expand the workforce-training and post-secondary education opportunities available inside correctional facilities. We have heard time and again about the lack of programming available to those incarcerated and are glad to see the General Assembly finally take this step forward.
Picking up on the success of 2016's solitary confinement reporting bill, we supported two bills that would have made substantive reforms to the use of solitary confinement in Maryland's facilities-HB 1001 / SB 1015 and HB 1564 / SB 659. Unfortunately, neither bill passed this year, but we will continue our effort to curb this inhumane and ineffective practice in our state.
Unfortunately, the ACLU of Md also spent a great deal of time working to stave off regressive bills, such as HB 520/ SB 447, which would have prevented some inmates from earning good time credits-good time credits are a valuable incentive that gives incarcerated people hope for successful re-entry and incentivizes good behavior, thereby keeping our detention facilities safe. This bill failed.
We were not successful in opposing HB 1526 / SB 934, which passed. This bill expands the definition of victim and expands victim notification elements for the purposes of parole, commutations, pardons, and sentence remissions. The result of this is that an indeterminate number of persons, who claim to have suffered or been threatened to suffer financial harm as a result of an offense, may disrupt the parole prospects for Marylanders who may be rehabilitated and ready to re-enter society.
d. Reforming Penalties for Traffic Offenses
After two unsuccessful attempts in prior sessions, HB 1335 / SB 12 finally made it to final passage. This bill changes the law banning objects hanging from the rearview mirror from a primary offense to a secondary offense. This means that Marylanders may no longer be subjected to traffic stops for this offense alone, although they can be penalized if they are stopped for another offense.
The ACLU of Md is also excited that HB 844 / SB 799 made it to final passage-this bill eliminates the jail penalty and reduces the monetary fine for driving on a suspended license for failure to pay child support. This bill demonstrates a common sense departure from carceral responses to child support. It is driven by an understanding that incarcerating someone is not helpful to either their children or their communities.
We were also successful in opposing HB 1079, which would have caused unnecessary interactions with law enforcement by allowing local jurisdictions to issue civil citations for jay walking.
e. Life with Parole Sentences
This year, the ACLU ratcheted up our advocacy for HB 723 / SB 694, which would have removed the Governor from the parole process for persons sentenced to life with the possibility of parole. Maryland is one of only three states in which the Governor has to sign off on parole recommendations and, as a result, no lifer has been paroled in about a quarter of a century. This year, the bill made it halfway, passing through the House of Delegates, but then stalled in the Senate Judicial Proceedings Committee, where several fatal amendments threatened to undermine the effect of the bill. Ultimately, we decided to walk away instead of passing a severely compromised bill. We will regroup and strategize with our partners to get a strong bill passed in 2018.
As in past years, we also supported HB 401 / SB 196, which would have prohibited courts from sending children to prison for life without parole. Unfortunately, this bill did not make it out of committee this year.
f. Drug Policy Reform
The ACLU of Md worked on several bills this session to end the misguided "war on drugs," and to move substance use and substance use disorder from a criminal justice issue to a public health issue.
On cannabis policy reform, we supported HB 379 / SB 949 to expunge records of cannabis possession, which passed! We also successfully defeated efforts to re-criminalize the public use of cannabis and the use of cannabis in vehicles, the latter is already subject to criminal penalties.
The ACLU of Md also supported HB 1443 / SB 999, the Legislative Black Caucus' efforts to address the lack of racial equity in the medical cannabis business licensing process. Unfortunately, that bill failed at the last minute, when the House and Senate refused to come to an agreement over the details of the measure until just after midnight on Sine Die, when it was too late.
The ACLU of Md also supported a package of harm reduction bills specifically aimed at addressing opioid overdoses. The package included HB 519 (authorizing supervised injection facilities) and HB 488 (decriminalizing the minor possession of all drugs). While neither passed, they continued an important discussion about the failure of the war on drugs and the harm it has caused, especially for communities of color.
V. IMMIGRANTS' RIGHTS
This session, we joined forces with our partners to support HB 1362/ SB 835 Maryland Law Enforcement and Governmental Trust Act. As introduced, this legislation would have limited the use of Maryland's law enforcement and corrections resources in the enforcement of misguided draconian federal immigration enforcement efforts. The bill would also have prohibited discriminatory registries and required state agencies to ensure that inquiries into immigration status are not made unnecessarily. Finally, the bill would have required the Attorney General to issue guidance to public schools, courthouses, and hospitals regarding the enforcement of immigration laws on their premises. An amended but strong version of this bill passed through the House of Delegates. Unfortunately, the Senate Judicial Proceedings committee whittled the bill down to police training, narrow language limiting law enforcement's ability to make immigration status inquiries and a preamble citing U.S. Supreme Court cases. Ultimately, the bill was recommitted to the Senate Judicial Proceedings committee, where it died. We are working with our partners to strategize our efforts forward from this disheartening loss.
VI. FAIR TREATMENT AND NON-DISCRIMINATION
In a huge victory for fair treatment of all of Maryland's children, bills designed to put an end to harsh disciplinary practices for young learners and to analyze the effects of classroom removals on all students were passed.
The ACLU strongly supported SB 651/ HB 425 to curb the overuse of suspension and expulsion for pre-K through second grade students in public schools. It allows removal only in extreme circumstances, at the determination of the school administration in consultation with the appropriate behavioral or mental health staff. It also requires the use of research-based alternatives, including positive behavioral interventions and referrals to individualized education teams, responses that some schools are already successfully implementing.
In addition, we worked closely with legislators on a bill that forms a commission to study current discipline practices, analyze the relationship between disciplinary trends and the juvenile and criminal justice systems, and review national best practices on restorative practices. The ACLU is a member of the Commission of the School-to-Prison Pipeline & Restorative Practices, which will report its findings and recommendations to the Governor and General Assembly in January 2019.
This session, we also worked on several bills that sought to strengthen the anti-discrimination codes in schools and elsewhere. One of the bills was HB 696 / SB 849, which sought to align the policies of private schools that receive taxpayer funded vouchers with the strong anti-discrimination code of Maryland's public schools. Currently, the language written into the budget authorizing the BOOST voucher program protects only several categories in the process of student admission, but offers no protections in student retention. These bills sought to strengthen the code by adding more categories and extending the protections to student retention, which is provided for in public schools. The bills, however, were held up in their respective committees.
Another bill, SB 557, sought to increase funding for the private school voucher program from its current level to include all students who attend a Maryland public school that ranks in the bottom 5 percent in statewide assessments. The ACLU of Md strongly opposed this bill, which never made it out of committee.
This year, we again joined our partners in supporting HB 172/ SB 728 The Home Act. This important legislation would have prohibited discrimination in the housing market based on the person's source of income. Unfortunately, many persons who receive housing assistance (often in the form of a housing voucher), are discriminated against and are therefore unable to find appropriate housing for their families. The bill passed the House of Delegates, but stalled in the Senate Judicial Proceedings committee. Although this was a disappointing outcome, the bill made it further than it had in the past. We will continue working with our partners to push it across the finish line.
This session, several bills were introduced to safeguard Marylanders' privacy rights, especially in the context of new and developing technologies. Although none of these progressive bills passed, the introduction of positive rights-protective legislation signals recognition among our elected leaders that Marylanders must not be exposed to unwarranted privacy intrusions. Some bills had been introduced in past years, such as HB 917 / SB 878, which would set parameters on the use of cell site simulators (stingrays) and HB 998, which would have required law enforcement to obtain a court order before seeking to access historical electronic device location information.
The ACLU also supported several newly-minted bills, such as HB 1065 to establish a Taskforce to Study Law Enforcement Surveillance Technologies and to make recommendations relating to the use of surveillance technology by law enforcement agencies in the State. HB 1065 passed the House, but stalled in the Senate Judicial Proceedings Committee.
HB 1148 would have set parameters on the use of facial recognition technology in the state. This technology is fraught with problems, including biases inherent in the technology itself and biases in the way it is deployed. Unfortunately, HB 1148 did not make it out of the House Judiciary Committee, but we will renew our efforts to pass this bill in 2018.
At a very late hour, SB 1200-the Internet Consumer Privacy Rights Act of 2017-was introduced to prohibit Internet Service Providers from selling consumers' personal information or targeting consumers with advertising based on their browsing history. This bill came in response to Congress overturning pre-existing FCC rules, which would have required ISPs to obtain affirmative permission from their customers before using, sharing, or selling their customers' private information. The bill made it through the Senate, but was voted unfavorably by the House Economic Matters Committee.
Unfortunately, HB 370 / SB 354-Richard E. Israel and Roger "Pip" Moyer End-of-Life Option Act-again failed this year. This bill would have would allowed individuals with terminal illnesses to request aid in dying.
This year, the ACLU proudly supported our partners in the passage of HB 860 / SB 853, the Maryland Equal Access to Food Act of 2017. This important legislation repealed antiquated and misguided barriers that prevented persons who have been convicted of certain offenses from accessing temporary cash assistance (TCA) or food stamps.
As in past years, several bills were introduced to expand opportunities for expungement and shielding of criminal convictions, to allow Marylanders to access job, education, housing and other opportunities. HB 836 passed, which expanded the list of convictions eligible for expungement to include common law battery.
We also supported HB 694 /SB 543, which sought to prohibit colleges from inquiring about a prospective student's criminal background during the initial college application. Later in the process, the inquiry could be made, but a student should be given a first chance and not be denied the ability to receive an education solely due to their entanglement with the criminal justice system. The bill passed both chambers and currently awaits the Governor's approval.
This session, we again successfully opposed SB 408, which would have barred certain returning citizens from rental opportunities in senior apartment facilities.
IX. POLICE ACCOUNTABILITY
The ACLU again renewed our efforts to fight for transparency in policing-HB 698 / SB 362 would have allowed Marylanders to learn how their complaints of police misconduct are handled. It is unacceptable that victims of police abuse have no way of knowing whether or how well their complaints were investigated-whether witnesses were contacted or if officers were questioned. Without this basic transparency, it is virtually impossible for communities to hold their officers accountable. Unfortunately, the bill did not make it out of committee this year, but we will continue to fight for its passage in 2018.
Another important bill, HB 1504, would have given the residents of Baltimore City the full range of control over the Baltimore City Police Department that residents of other jurisdictions have over their departments. Under an antiquated law still on the books, the Baltimore City Police Department is an agency and instrumentality of the state of Maryland. Unfortunately, the sponsor withdrew the bill before it could even benefit from a committee hearing.
We again supported several police reporting bills. HB 50 would have reinstated the pre-existing reporting requirement on the use of electronic control devices (tasers) and HB 1342 would have expanded the existing reporting requirement for deaths in police custody to include deaths that occur in correctional facilities. Both bills were vehemently opposed by law enforcement and correctional agencies and did not pass.
Two bills were introduced to curb the use of harmful police tactics. HB 181 would have required the newly reconstituted Maryland Police Training and Standards Commission (MPTSC) to issue guidance on the use of electronic control devices (tasers). This bill passed the House but was stalled in the Senate Judicial Proceedings Committee. Thankfully, HB 739 / SB 941 did make it to full passage-this bill requires MPTSC to set training and deployment standards for SWAT teams and law enforcement officers who conduct no-knock warrant service.
A flurry of bills was introduced to enhance criminal penalties for offenses against law enforcement officers-these bills are unnecessary because law enforcement already receive heightened protection in our criminal statute. More importantly, these proposals threaten to make the work of law enforcement even more dangerous by instigating and exacerbating distrust between officers and Maryland's communities. Fortunately, none of these bills passed.
X. REPRODUCTIVE FREEDOM
As in previous years, several bills were introduced to limit women's access to abortion. HB 547 would have prohibited abortions after 20 weeks. HB 1167 / SB 841 would have prevented dilation and evacuation abortions (also known as "D&E abortions"), the safest and most common method of second-trimester abortion. Thankfully, however, none of these bills passed this year.
Additionally, Marylanders' ability to make their own family planning choices were greatly improved with the passage of HB 613 / SB 363 (allowing pharmacists to prescribe and dispense contraceptives); HB 616 / SB 232 (allowing students to be lawfully absent due to pregnancy and parenting-related needs); and HB 1083 / SB 1081 (ensuring the funding of family planning services, such as Planned Parenthood, in case of a withdrawal of federal funds).
XI. VOTING RIGHTS AND FAIR ELECTIONS
Several bills were introduced during the 2017 legislative session to improve Marylanders' ability to exercise their voting rights. HB 353 was successfully passed and will require voters to be notified when certain changes are made to voting policy, such as voter registration, provisional voting, absentee voting, or the location of a polling place or early voting center. Other measures to improve access to voting, such as Automatic Voter Registration (HB 741 / SB 938) and Election Day Registration (HB 345 / SB 423) were seriously considered, but unfortunately failed to pass.
Several regressive measures (HB 532 / SB 1133, HB 539, and HB 1354 / SB 842) were introduced to create burdensome and unnecessary voter ID requirements. Thankfully, they all failed.
XI. WORKPLACE FAIRNESS
This session saw a huge victory for workplace fairness when HB 1 / SB 230 was passed. The measure will allow Maryland workers to earn paid sick leave, so they no longer have to make the impossible choice between caring for their health or the health of a family member and their job security. That legislation now awaits Governor Hogan's approval.
XIII. YOUTH JUSTICE
Several bills were introduced, unsuccessfully, this session to address youth entangled in the criminal justice system. HB 471 / SB 215 would have reformed the adjudication of youth in adult court. A bill to limit the use of shackling when transporting youth, which can often be re-traumatizing, was given unfavorable reports by the House Judiciary and Senate Judicial Proceedings Committee, despite recommendations from the youth justice task force created by these same committees last year to study the issue. Instead, a bill was approved requiring the Department of Juvenile Services to report on the progress in the implementation of those recommendations (HB 1256 / SB 982).
XIV. EDUCATION REFORM
After cutting education funding in prior years, this year, Governor Hogan funded the education formula according to current law, which directs an increase of 1.3 percent over the previous year. Some school districts received more funding due to increases in student enrollment, while other districts lost funding due to shrinking enrollment or changes in county wealth.
a. Baltimore City Schools
Just a few days into the 2017 Legislative Session, news broke of an estimated $130 million budget deficit for Baltimore City Schools. The ACLU of Md and coalition allies sprung into action to organize parents, students, teachers, and community members to compel Gov. Hogan, Mayor Pugh and the General Assembly to #FixtheGap. As a result, a "Bridge to Kirwan" funding package - state legislation along with commitments from Baltimore City - will restore about $60 million to City Schools.
b. School Funding - Short and Long Term
As part of the state's portion of "Bridge to Kirwan," the legislature approved State Grants to Education Aid, which provides $28.2 million in grants to 11 school districts with declining enrollment or with full-day prekindergarten. Bills that relieve Baltimore of certain spending mandates were also approved.
The state's consultant to the "Kirwan" Commission on Innovation and Excellence in Education recommended that an additional $2.9 billion is needed for Maryland school districts to be adequately funded-$1.9 billion from the state and $1 billion from local governments. For example, Baltimore City and Prince George's, far below adequacy under the current formula, were judged by the consultants to need an additional $358 million and $600 million respectively. The Commission will review the consultant's report on education funding and make its recommendations by Dec. 2017. The ACLU of Md is now preparing for the next legislative session, where we will advocate for an updated formula to bring all districts to the state's constitutional standard.
c. Funding for Full-Day Pre-kindergarten
The ACLU is a strong proponent of fully funding full-day pre-K in the per-pupil funding formula, which was also supported by the state's Kirwan Commission consultants. Full-day programs benefit children, but as the state provides only partial funding for half-day, full-day programs can stress the budget.
An amendment was added to the "Bridge to Kirwan" funding package to phase in over three years the equivalent of funding for the remaining half-day per pupil for systems in which all of the pre-K programs are full-day. This funding both reimburses the current four counties that have all-day pre-K and could incentivize other districts to implement full-day programs.