It’s the End of the Road for the State Legislative Session. So What Happened?

Football player Malcolm Jenkins lobbying in Harrisburg for the passage of the Clean Slate Act.

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

It’s official: Today marks the legal end of the Pennsylvania General Assembly’s two-year legislative session. The ACLU-PA’s work in Harrisburg often ranges from hair-on-fire to hurry-up-and-wait. Sometimes we’re able to celebrate our proactive work getting good legislation enacted. But much of what we do, and no less important, is defensive — trying to prevent bad bills from passing or making bad bills less bad.

If there’s one mantra we repeat at the ACLU-PA, it’s to pay attention to your state legislators. Bills passed in Harrisburg often have a far greater and more immediate effect on your life than those enacted in Congress.

Wins

In the 2017-2018 legislative session, we celebrated two major victories that will significantly improve the chances of people getting back on their feet post-conviction. The first was the passage of the Clean Slate Act. This new law – the first of its kind in the nation – automatically seals from public view the criminal records of people convicted of certain summary and misdemeanor offenses if they are not convicted of another crime within ten years.

The legislature also repealed a longstanding mandate to suspend drivers’ licenses of people convicted of crimes unrelated to operation of a vehicle, many of them drug offenses. Repealing this mandate will prevent more than 20,000 Pennsylvanians a year from unnecessarily losing their licenses.

We also successfully beat back yet another attack on reproductive freedom when Governor Wolf vetoed an abortion ban that, had it been enacted, would have been the most restrictive ban in the country and stopped a discriminatory amendment from the CHIP (Children’s Health Insurance Program) reauthorization bill, which sought to prohibit insurance coverage for transgender-related healthcare services.

Losses

The most frustrating loss this session was a bill that enabled the use of police-worn body cameras in Pennsylvania. While the use of body cameras can be an effective means of ensuring police transparency, the bill exempts footage from the state’s right-to-know law, severely restricting public access to video recorded by police cameras. As a result, it undermines the ability to hold police accountable and instead equips them with a powerful data collection and surveillance tool.

On the Lookout

There’s no rest for the weary – the General Assembly returns and reboots in January. Next session we anticipate continued fights against abortion bans, so-called “sanctuary city” legislation, restrictions on police transparency, and a proposed amendment to the PA Constitution known as Marsy’s Law.

The most significant battle we are preparing for is a campaign to prevent the reinstatement of mandatory minimum sentences in Pennsylvania. Reinstating these archaic provisions is an invitation to regress by re-adopting outdated and ineffective “public safety” measures that disproportionately damage communities of color and concentrate unreviewable power in the hands of prosecutors.

The midterm elections didn’t change the balance of power in Harrisburg — we still have a Democratic governor and Republican-controlled House and Senate. Democrats did pick up five Senate seats (breaking the Republican supermajority) and 11 House seats, which may result in increased negotiating leverage for Democrats. But those wins came at the expense of losing most of the moderate Republicans remaining in the legislature. And that may, unfortunately, result in an even more polarized legislature heading into the 2019-2020 session.

We know that it can feel like there are a lot of fires burning right now for people who care about civil liberties – not to mention basic human decency. We’re going to need you to achieve our goals at the state legislature next year. So rest well, enjoy the holidays, and we’ll talk again in January.

Severe Restrictions on Mail to PA’s Prisons Harm People Inside — And Undermine Attorney-Client Privilege

By Sara Rose

Imagine that you’re incarcerated in a Pennsylvania prison. Your primary means to connect with the world outside — your loved ones, your friends, and your attorneys — is the mail.

But under a new DOC policy, the only mail you receive are photocopies. Birthday cards signed by your family or a drawing sent by your child — you only get the photocopy. Legal correspondence that may or may not include sensitive information or grievances against employees of the prison — you only get the photocopy.

In August, the Pennsylvania Department of Corrections (DOC) locked down every prison in the state, returning all mail received during the two-week period to its sender. After the lockdown ended in September, the DOC began confiscating all incoming legal and personal mail, only allowing prisoners a photocopy of their correspondence. The DOC holds the original copies of legal mail for 45 days. All other mail is destroyed after it’s scanned it, but searchable digital copies are maintained for seven years. According to the DOC, the intent of the new mail policy is to prevent “unknown substances” from entering DOC facilities. But the result of the policy is to undermine prisoners’ relationships with their families, friends and attorneys.

Attorneys representing individuals in Pennsylvania’s state prisons have no faith that their correspondence with their clients will be kept confidential under this new policy, and experts in legal ethics have recommended that lawyers with clients in the state prisons should stop communicating by mail. But the other options lawyers have for communicating with clients in state prison — in person or by phone — are not feasible.  The state prisons where their clients are housed are often hours away from the lawyers’ offices and setting up confidential phone calls is often difficult. Mail is the only option most lawyers have to communicate regularly and securely with clients who are in prison.

Even in the most incarcerated nation on the planet, this policy is without precedent in any jail or prison from coast to coast.

That’s why the ACLU of Pennsylvania is part of a lawsuit filed last month challenging the new policy’s restrictions on legal mail and demanding that the DOC identify alternative methods to prevent contraband from entering its prisons. In an interview after the lawsuits were filed, the DOC secretary admitted that contraband entering the prisons via legal mail is rare and that the policy is a preemptive move. The DOC is severely compromising attorney-client confidentiality with no real evidence of a problem.

Depriving attorney-client communications of confidentiality chills prisoners’ constitutionally protected expression under the First Amendment. This violation of the First Amendment is the basis of our litigation.

This is a crucial test-case for jails and prisons nationwide whose administrators may be watching the outcome of this case to determine the future of their own mail policies. In this sense, Pennsylvania is ground-zero for protecting the rights of prisoners in accessing their mail and confidential attorney-client correspondence.

Certainly, the DOC should take the necessary steps to ensure the safety of its employees. Safety of DOC employees, however, cannot and must not infringe on the First Amendment protections of prisoners or their attorneys.

Joining the ACLU of Pennsylvania in the litigation are the Pennsylvania Institutional Law Project, the Abolitionist Law Center, Amistad Law Project, and Schnader Harrison Segal & Lewis LLP.

Sara Rose is senior staff attorney at the ACLU of Pennsylvania.

Philadelphia Police Should Not Enforce the Bias of 911 Callers

Commissioner Ross’s Response to a New Report Shows He Doesn’t Get It

Credit: Ben Bowens

By Reggie Shuford and Carl Takei

Last month, Juán-Pabló Gonźalez, a Black graduate student at Catholic University, attempted to do something mundane — study in the school’s law library. But the library clerk incorrectly told him he needed special permission to do so and then called campus police on him for being “argumentative.” Seven university officers responded and made him leave despite seeing his school ID.

Gonźalez’s run-in at the library happened within days of a white woman in New York City falsely accusing a nine-year-old Black boy of sexual assault at a Flatbush bodega, leading observers to dub her Cornerstore Caroline.

These are just the latest incidents in which white people have been caught on camera calling the police on a Black or brown person simply trying to go about their daily lives. Unfortunately, while some officers have modeled excellent ways to stop themselves from weaponizing the biases of 911 callers, police departments too often fail to adopt appropriate policies to screen and respond to such calls.

Case in point is the Philadelphia Police Department. In April, after a Starbucks manager in Rittenhouse Square called 911 on two Black men who were waiting for a business associate to arrive, two officers arrested the men for “defiant trespass.” Police Commissioner Richard Ross initially responded by saying the officers “did absolutely nothing wrong.” He later walked it back, stating: “I should have said the officers acted within the scope of the law, and not that they didn’t do anything wrong.”

The department later revised its policy for defiant trespass arrests, but it did not address the role of race and continued to ignore the possibility that 911 callers could be using police to victimize others.

These tasks were left to the Philadelphia Police Advisory Commission, the civilian agency that oversees the police department and makes non-binding recommendations to departmental leadership. Earlier this month, the commission released a report evaluating the Starbucks arrest.

The commission found that “the officers were purportedly trying so hard to ignore race that they did not consider race being a factor in the incident even when bystanders were shouting it at them” and that this led the officers to act in inflexible ways that resulted in an avoidable arrest. The commission also noted that some police department leadership took the extremely problematic stance that the officers should have acted no differently even if the manager had requested that “two N-words” be removed from the café, stating that as long as the person making the complaint was legally in the right, racial slurs and racist motivation should not matter.

In response, the commission recommended a series of changes to training and policies that would have led to a better response in the Starbucks incident and other situations when people call 911 to target Black people who are doing nothing wrong.

Commissioner Ross’s response, however, was jaw-dropping. He wrote, “The PPD cannot agree with the statement that racism has a profound effect on what drives citizen and police contact,” and flatly rejected many of the recommendations. The commission recommended that the police department “develop a clear and consistent communication strategy to educate the public regarding how and when 911 should be utilized” and take steps to address the weaponization of police by 911 callers. Commissioner Ross responded that “any messaging by the PPD of when people should or should not call 911 will have a chilling effect” and “compromise the trust in the community that the PPD continually strives to improve.”

The commission recommended that the police department encourage “supervisory assessment of problem solving skills” to help avoid unnecessary arrests. Commissioner Ross rejected this, too, doubling down on the department’s existing “race-blind” approach to racism.

This blinkered approach ignores the fact that if a police officer ejects a Black or brown person from public space purely on the say-so of a white person who is motivated by racial bias, that officer is enforcing racism. When police allow themselves to be weaponized by biased 911 calls, they put Black and brown people at risk, send a message that they must accept living as second-class citizens, and undermine the legitimacy of the police. That’s why the ACLU has launched a Living While Black on Campus campaign aimed at getting college police departments to adopt a simple model policy for screening and responding to bias-based calls and described principles for handling these calls that can apply to all police departments.

Starbucks’ Chief Operating Officer Rosalind Brewer described the April 2018 incident as a “teachable moment” for the company and stated, “Good companies acknowledge their mistakes and learn from them and then make the necessary changes.” Commissioner Ross should take note — if a coffee company can acknowledge its own mistakes and change its policies and practices to regain the trust of people of color, the police have no excuse for refusing to do so.

Reggie Shuford is the executive director of the American Civil Liberties Union of Pennsylvania. Carl Takei is a senior staff attorney at the ACLU’s Trone Center for Justice and Equality.