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The legislature also repealed a longstanding mandate to suspend drivers’ licenses of people convicted of crimes unrelated to operation of a vehicle, many of them drug offenses.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.

Victory! PA House conservatives, liberals, moderates team up against expansion of DNA collection

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Harrisburg Capitol

For the second consecutive legislative session, a bill that would greatly expand when law enforcement could collect your DNA has failed to pass in the state legislature. The bill would have invested a lot of additional money into the existing state DNA database, and more alarmingly, it would have required state police to collect DNA samples from individuals who were arrested for specific crimes, even if they were never actually charged.

The new collection would have been introduced gradually, covering only people arrested on suspicion of murder in the first year of implementation before expanding to felony sexual offenses in the second. By the third year, however, the mandate expands to arrestees of ALL felonies and certain specified misdemeanors. Even if an arrestee was never charged (let alone convicted) of the crime, the DNA sample would remain in the database unless the person filed a written request for removal and the request was granted.

We strongly opposed this bill. It almost goes without saying that everyone has an expectation that his or her genetic makeup will not be extracted and stored in a government database. To allow the police to collect and store DNA evidence even before charges have been filed violates this bedrock principle of privacy that is crystallized in the Fourth Amendment. (See – Our Work: In The Legislature)

Supporters of this bill got a win in the United States Supreme Court in 2013, when the court upheld Maryland’s arrestee DNA collection procedure as an adequate identification procedure. We—and many other groups and individuals—disagreed with the court’s interpretation of the Fourth Amendment and were incredibly cynical about the claim that arrestee DNA collection was primarily used for identification and not investigation, but because they ultimately interpret the Bill of Rights, our tactic had to change slightly. We were prepared to make a case that even if arrestee DNA collection is permissible under the Fourth Amendment, it still violates the search and seizure provision of the state constitution. The PA Supreme Court has articulated some scenarios where the state constitution affords a higher level of protection that the Fourth Amendment, but it can be a difficult argument to make and sell to legislators.

Fortunately, we never really had to make that argument. DNA collection expansion provoked strong opposition in the House, as numerous representatives expressed serious concerns about how this bill would encroach on people’s privacy. The opposition was truly bipartisan—members who could be described as very conservative, very liberal, or moderate all expressed their disapproval of such an extreme expansion of law enforcement’s power, and many of the representatives who helped defeat the bill in the 2011-12 session were willing to stand once again against the proposed DNA expansion. This opposition encouraged us greatly, and when it became clear that House Leadership was not going to act on the Senate bill, we were optimistic that the fight might be over.

In the final two weeks, however, the Senate revived DNA expansion by amending it into an unrelated online impersonation bill that the House had already passed. This was the Senate’s Hail Mary pass, as it hoped enough House members would be supportive of the online impersonation bill to overlook the DNA language that had been added.

Fortunately, our House allies came through for us again. After the bill passed the Senate, the House Rules Committee quietly removed the DNA amendment as violating the state constitution’s Single Subject Clause before there was any opportunity to debate the substance of the DNA amendment itself. With that, the House ended any fear that the arrestee DNA collection bill would pass this session.

The last two sessions have made it clear that there is definitely motivation within Senate leadership to expand DNA collection within the commonwealth, so we may have to fight a bill like this again next year. Hopefully, the failure to pass the bill in two consecutive sessions sends a strong message to the Senate that this is not a policy that the people of Pennsylvania support, but if the Senate remains insistent that this bill should pass, then those of us in Harrisburg next session will continue our efforts to lobby against this bill and any other proposed policy that would dramatically encroach on the privacy rights of Pennsylvanians.


Paul Anderson is the 2014-15 Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third year student at Penn State Dickinson School of Law.

What the ACLU of Pennsylvania did for Victims’ Rights

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

Lakisha Briggs, victim of Domestic Violence

While officials in the Corbett administration were busy talking about Mumia Abu-Jamal to every microphone they could find, the ACLU of Pennsylvania spent the last two weeks of the legislative session working quietly with the Pennsylvania Coalition Against Domestic Violence to pass a bill that will help keep victims of crime in their homes.

The passage of House Bill 1796 was one of the glowing civil liberties achievements of the 2013-14 legislative session at the General Assembly. The new law prohibits municipalities from punishing victims of crime for calling for emergency services. It was motivated by our litigation against the borough of Norristown, in Montgomery County, in which our client, Lakisha Briggs, was threatened with eviction under the borough’s “nuisance property” ordinance. Lakisha was tormented on multiple occasions by her ex-boyfriend. After emergency services were called to her home a third time, an incident that included her ex stabbing her in the neck with a shard of glass, the borough employed the ordinance to begin eviction proceedings against Lakisha and her family.

We argued in our lawsuit that the people have a First Amendment right to call upon their government for help.

Even with that backdrop, the passage of this bill almost didn’t happen.

After we filed our litigation, Representative Todd Stephens, a Republican from Montgomery County who is also a former assistant district attorney, introduced HB 1796. Rep. Stephens convened key stakeholders, including PCADV, ACLU-PA, housing advocates, and the associations that represent municipalities, to hammer out language that everyone could agree to and that achieved what we wanted. That agreed-to language passed the state House unanimously.

When the bill arrived in the state Senate, however, it was nearly derailed by unrelated amendments that were sought by the Pennsylvania Retailers Association, the Pennsylvania Restaurant and Lodging Association, and the National Rifle Association. (More about that drama here.)

On the Senate’s second-to-last day of session, HB 1796 was saved from those unwanted amendments when Senator Vincent Hughes, a Democrat from Philadelphia, successfully used a procedural motion called “revert to the prior printer’s number.” In English, this means the bill goes back to a previous form. In this case, Senator Hughes wanted to go back to the version of the bill that passed the House. That motion passed, 26-22, with six Republicans joining 20 Democrats in voting for the motion.

That wasn’t the end of the drama, though. When the Senate calendar was released the next day, the chamber’s final day of session for the year, the bill was marked “over,” meaning it would not get a vote and would not pass this session, forcing us to go back to the beginning of the process next year. While allies like the Women’s Law Project and others got the word out to grassroots supporters around the state, lobbyists from PCADV, especially, and ACLU-PA worked the halls of the capitol to convince Senate Republicans that this was a good vote to hold and that this bill was important.

Ultimately, Senate Majority Leader Dominic Pileggi called up the bill for a final vote. And, to his credit, Senator John Eichelberger, who introduced one of the unrelated amendments sought by the restaurants and the retailers, spoke in favor of the bill on the Senate floor. It passed unanimously.

Governor Corbett signed the bill yesterday, so he literally lifted a finger to help.
This was truly a bipartisan, bicameral, multi-organization effort. The real credit goes to everyone I’ve named above- Representative Stephens, Senator Hughes, Senator Pileggi, the 26 senators who voted for Hughes’ motion. And the most credit goes to our friends at the Pennsylvania Coalition Against Domestic Violence, who struggled for this bill until the very last day and who wouldn’t let it pass with unwanted amendments.

Now people who are victims of crime, like Lakisha Briggs, know that they can call for help when they need it. They don’t have to choose between emergency service from their government or keeping their homes.

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Andy Hoover Andy Hoover is responsible for the ACLU-PA’s lobbying efforts at the state level in Harrisburg and at the federal level in Washington, D.C. From 2004 to 2008, he was a community organizer for ACLU-PA and is an experienced advocate, cutting his teeth in the anti-death penalty movement during the Ridge-Schweiker administration. Andy also serves on the boards of directors of Pennsylvanians for Alternatives to the Death Penalty and The Interfaith Alliance of Pennsylvania.