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MEMORANDUM
TO: ACLU of PA Board of Directors, ACLU of PA Staff, Interested Parties
FROM: Andy Hoover, Legislative Director
DATE: November 14, 2010 (updated December 1, 2010)
RE: CIVIL LIBERTIES AND THE 2009-10 SESSION OF THE PA GENERAL ASSEMBLY
By the time most of you read this update, the General Assembly's 2009-10 legislative session will be closed. Legally, the session ends on November 30. The Senate adjourned for the year in October, and the House will finish its work during the week of November 15.
The ACLU of Pennsylvania had another successful session at the state capitol. I spent time working on at least 42 bills, and on many occasions, ACLU-PA staff and board members also helped in our legislative advocacy. Three bills we support became law. Zero bills we oppose became law, although there is one bill on Megan's Law that we oppose that is still outstanding as I write this. (Update: HB 1926, the Megan's Law expansion bill, was vetoed by the governor, but one bill we opposed did become law. See update below.) Here are the highlights and the lowlights.
VICTORIES! New laws that enhance civil liberties
SB 1074- A ban on shackling inmates during childbirth: Act 45 of 2010 bans state prisons and county jails from shackling inmates during labor, including in transport to a medical facility, during postpartum, and during any pregnancy-related emergency.
SB 1161-Parole reform: Act 95 of 2010 addresses Pennsylvania's overcrowded prison system by:
• Giving legislative approval to the Board of Probation and Parole's power to keep technical parole violators out of prison
• Allowing inmates at their minimum sentence to be paroled if the only reason not to parole them is due to incomplete required programming, with the expectation that the parolee will complete programming while on parole
• Tasking the Commission on Sentencing to devise guidelines for use by judges to divert defendants into programs that will provide an alternative to incarceration
The bill that became law was weaker than what the Senate originally passed. The original bill allowed the transfer of inmates within 18 months of their minimum sentence to pre-release centers, but the House Judiciary Committee removed that provision at the urging of the district attorneys and the attorney general. Nevertheless, this bill is a step forward.
HB 181- Stop and search powers of the Game Commission: Act 64 of 2010 fixes flaws in the law on the Game Commission's enforcement powers. It requires an officer to have reasonable suspicion before conducting a stop or asking someone for identification and probable cause before conducting a search.
VICTORIES! Attacks on civil liberties that we stopped
SB 707- State constitutional amendment banning same sex marriage: This initiative failed for the third time in four years. The bill was tabled in the Senate Judiciary Committee by an 8-6 vote, the first time that it has failed to get out of committee.
HBs 1502 and 1503- E-verify mandates: These bills mandated the use of the federal E-Verify program for state contractors (HB 1502) and all construction employers (HB 1503). The bills passed the House but failed to pass the Senate.
The Third Circuit's decision in the Hazleton case enhances our advocacy on this legislation. Hazleton's ordinance included an E-Verify provision, which the court struck down as unconstitutional.
HB 2189- Criminalizing "sexting": After heated debate, this bill passed the House but failed to move in the Senate.
Of the 42 bills we worked on, 22 were bills that we opposed. Other initiatives we stopped included the following, with the point in the process where they stopped in parentheses:
• SB 514: Photo ID to vote (no vote in Senate State Government Committee)
• SB 56: Mandates to bring police into schools (Gubernatorial veto; Update: The House and Senate overrode the governor's veto)
• HB 1567: Creation of a flat sentencing regime for certain offenders, eliminating parole options (no vote in House Appropriations Committee)
• SB 9: Photo ID requirements for public aid (no vote in House State Government Committee)
CHALLENGES: Issues that did not advance as far as we had hoped
HB 300: LGBT non-discrimination- This bill amends Pennsylvania's non-discrimination law to include "sexual orientation" and "gender identity or expression." The good news? It passed out of committee for the first time. The bad news? It didn't go any further. We had no significant Republican support, and a bloc of Democrats also opposed. Those Democrats convinced their leadership to not bring the bill to the floor for a vote.
HB 1163: Comprehensive sex education- This bill set minimum standards for sex education for the commonwealth's public schools and implemented comprehensive sex ed in those standards. Known as the Healthy Youth Act, this bill also passed out of committee but was never brought to the House floor for a vote.
SB 621: Real ID opt-out- For the second consecutive session, the General Assembly considered this legislation. It went further in the process than last session, passing the Senate and passing out of committee in the House, but was never brought to the House floor for a vote.
SB 628: Death penalty and mental retardation- Eight years after the Supreme Court's decision in Atkins v. Virginia, banning the execution of persons with "mental retardation," Pennsylvania has yet to implement a definition of mental retardation and a procedure for courts to use when considering a defendant's eligibility for capital punishment. This bill also traveled further than ever before, as it passed the Senate (for the third time), and passed out of the House Judiciary Committee. But it, too, failed to even get a vote on the House floor. (To be fair to House leadership, opponents of the bill filed nearly 30 amendments, a common strategy to stop a bill from getting a vote.)
You'll notice a pattern here: On numerous occasions, good bills were reported out of committee in the House, only to die a quiet death without a House vote, where the Democrats held the majority.
REPUBLICANS, DEMOCRATS, AND CIVIL LIBERTIES
Forget what you think you know about partisan politics and civil liberties. As our national executive director, Anthony Romero, once said, civil liberties are not the sole domain of the liberal wing of the Democratic party or the conservative wing of the Republican party.
During the 2009-10 session, the Republicans held a 30-20 majority in the Senate and the Democrats held a 104-99 edge. And yet the Senate passed more bills we support than the House and also passed less bills we oppose. Pro-civil liberties legislation that originated in and passed in the Senate included Real ID opt-out (SB 621: died in the House), prison reform (SBs 1145, 1161, 1275: watered down by and passed in the House), death penalty-mental retardation (SB 628: died in the House), and shackling pregnant inmates (SB 1074: passed the House and signed by governor). The Senate passed two bills we opposed- SB 9 (increased ID requirements for public benefits), which died in the House, and SB 56 (mandates on schools to call law enforcement), which was amended into another bill but vetoed by the governor. (Update: The House and Senate overrode the governor's veto.)
Meanwhile, the House started and passed just one bill we supported- HB 181, on the Game Commission's powers. (Ironically, the primary sponsor was a Republican from southern Lancaster County). The House passed numerous pieces of legislation that damaged civil liberties: HB 2189, criminalizing sexting; HBs 1502 and 1503, mandating E-Verify; HB 907, adding two new aggravating circumstances for capital cases; and HB 740, banning campaign t-shirts, buttons, etc. worn by voters in polling places. All of these bills died in the Senate.
That's not to suggest that the House never helped us. House Democratic leadership aided in defeating numerous anti-immigrant bills and several negative bills on criminal justice.
Nevertheless, our challenges at the legislature do not come down to Republicans versus Democrats. Instead, the line of demarcation over civil liberties runs through the middle of the building. The Senate is clearly the more thoughtful, more deliberative chamber when dealing with civil liberties. Regardless of who holds the majority, the House will always present us with challenges.
LOOKING AHEAD....
Every session of the General Assembly presents its own set of challenges and opportunities, and 2011-12 will be no different. As you know by now, the Republicans control all of the levers of state government with the governor's office and the majority in both the House and Senate. Fortunately, the 2010 election was not about civil liberties. No one won a state race by demagoguing on immigration or gay rights or abortion. In fact, one could make a plausible argument that the House Republicans won seats in suburban Philadelphia because they stayed away from those issues.
Looking at the 2011-12 session, our best case scenario is that the Republicans recognize this and do not attack civil liberties. In fact, based on conversations I've had with some GOP legislators, we may have an opportunity to advance privacy and surveillance issues, in particular. We also might have a chance to gain reforms in juvenile justice, as a result of the Luzerne County "kids for cash" scandal, and in creating safeguards to keep innocent people out of prison.
The worst case scenario, though, is that every issue the Republicans, particularly in the House, have been chomping over for the last four years will come flowing out, including (but not limited to):
• Abortion coverage in the medical exchanges created by healthcare reform
• E-Verify and Arizona-style law enforcement mandates on immigration
• Public aid restrictions- drug testing and photo ID mandates
• Photo ID to vote
• State constitutional amendment banning same sex marriage
• Juvenile justice- sexting and police-in-schools mandate
Buckle up. It's going to be quite a ride.
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