by Claire Gastañaga, Executive Director; Hope Amezquita, Legislative Counsel; Katherine Greenier, Director of the Women's Rights Project
The 2013 General Assembly Session will be a “short session” of 45 days beginning on Wednesday, January 9, 2013 and adjourning sine die (if on schedule) on February 23, 2013.
Preliminary indications are that the Assembly is likely to spend significant time dealing with the impact on the state budget of decisions made about the federal “fiscal cliff” and issues related to implementation in Virginia of the Affordable Care Act. Other regular “odd year” business is consideration of possible amendments to the Virginia constitution that must be passed in two separate General Assembly sessions with a House of Delegates election in between before they can be placed on the ballot for a vote.
Following are summaries of some key issues we expect will be under active consideration by the legislature in 2013 and in which we have a particular interest:
Death Penalty/Repeal of the Triggerman Rule: We expect that there will be continued efforts to expand the death penalty by eliminating the “triggerman rule,” which provides, with few exceptions, that only the actual perpetrator of a capital murder is eligible for the death penalty. The ACLU of Virginia opposes elimination of the “triggerman rule” because it would permit accessories before the fact and principals in the second degree to be charged with capital murder and, therefore, expand eligibility for the death penalty.
Death Penalty/Elimination We do not expect legislation to be introduced to repeal the death penalty, but the ACLU of Virginia would support such legislation if introduced.
21 Day Rule/Writs of Actual Innocence We expect that legislation will be introduced to amend or repeal the judicial rule that deprives circuit courts of jurisdiction over criminal cases after 21 days from the date judgment is entered. A recent case involving an innocent man has renewed interest in modifying the rule and in extending the opportunity to seek a writ of actual innocence to more persons convicted as juveniles. The ACLU of Virginia supports repeal of the 21 day rule. We have written to the Governor urging him to lead the legislative effort to change the law.
We expect that legislation will be offered to permit undocumented students who meet certain requirements (included required graduation from Virginia schools, residency and tax payment) to be eligible for in-state tuition at Virginia’s public colleges. If offered, it is also likely that a bill to bar such students from gaining in-state tuition or even gaining admission to two or four year colleges may also be introduced. The ACLU of Virginia supports legislation to allow undocumented students who are Virginia residents in all meaningful respects to continue to attend Virginia colleges and to be eligible for in-state rates.
Street Level Enforcement of Immigration Laws
We think it is likely that legislation will be offered to allow or require all state and local police to check the immigration status of any person lawfully stopped or detained. The Supreme Court decision in the SB 1070 case leaves open the possibility that such a state law can be implemented constitutionally. The ACLU of Virginia opposes all state and local enforcement of federal immigration laws because it diverts needed resources from fighting serious crime, and diminishes the effectiveness of community policing efforts. In addition, immigration enforcement by untrained local and state police holds open the very real possibility of increases in discriminatory policing; a possibility particularly likely in Virginia where police are not required to keep any data on stops that would allow monitoring to determine if such discrimination is taking place.
Protecting State Workers from Discrimination
Legislation has been introduced that will protect all state workers from discrimination on the basis of race, national origin, religion, sex, age, disability, marital status, veterans’ status and sexual orientation. Currently, workers in many of the categories covered by the legislation are protected by a state executive order and by federal law. LGBT employees are, however, only protected by an Executive Directive that does not have the force of law. The ACLU of Virginia supports this legislation that will codify for the first time protections against discrimination in state government not only for LGBT employees but also for other employees who may be victims of other listed forms of discrimination.
Study of Solitary Confinement: We will support legislation to direct the Joint Legislative Audit and Review Commission to study the use of solitary confinement by the Department of Corrections. The ACLU of Virginia will actively support such a study because of the practice’s negative consequences resulting in constitutional violations against cruel and unusual punishment and its overuse being contrary to national standards of treatment of prisoners. A comprehensive look at Virginia’s use of solitary confinement may provide much needed transparency in Virginia’s prisons and assist in reforming prisoners’ rights align with the Constitution.
Regulations Restricting the Use of Restraints on Pregnant Inmates: Ensuring Accountability and Compliance: Although the Department of Corrections has a good policy on the restraint of pregnant inmates, recently improved through advocacy efforts made by the ACLU and its coalition partners, and the Board of Corrections has recently enacted standards for local and regional jails that address this issue in a positive way, we expect legislation will be introduced to create accountability for and compliance with the new rules restricting the use of restraints on pregnant inmates in the form of public reporting. The ACLU of Virginia and our coalition partners would support such a bill because we believe that facilities must make available the data on the number of pregnant inmates who have been restrained, using what type of restraints, and under what circumstance, when an inmate is restrained under the exceptions within the new regulations for the restraint of pregnant inmates. The Board of Corrections refused to include accountability requirements in the new regulations and the Department of Corrections does not provide such information to the public as a matter of policy. Restraining pregnant women is dangerous and inhumane, and contrary to national correctional and medical association standards, resulting in violations of the Constitution’s ban on cruel and unusual punishment.
Limitations on the Use of Drones in Virginia: We are working with Delegate Todd Gilbert on legislation that will limit the use of drones in Virginia. The legislation will require: 1) law enforcement and regulatory agencies to obtain appropriate warrants before using a drone or other unmanned technology for aerial surveillance; 2) agencies using drones to keep records and submit annual reports that will be publically available information; and 3) local and state legislative bodies to approve the use of drones before they can be purchased by agencies under their jurisdiction and adopt written policies and procedures for agencies using drones. The ACLU of Virginia is actively supporting passage of such legislation because, with the increasing capability of technology, our privacy laws need to be strengthened, government transparency promoted, and Fourth Amendment rights preserved.
No-Excuse Absentee Voting
Legislation to permit in-person no-excuse absentee voting has been introduced for consideration in the 2013 Session (SB 702). While these bills are a step in the right direction, the inaccessibility of many registrars’ offices to public transportation means that only those with private transportation may be able to take advantage of the opportunity provided by the proposed legislation. The ACLU of Virginia supports passage of legislation that simply removes all of the conditions on absentee voting. Removal of the conditions would: 1) eliminate unnecessary barriers to voting; 2) eliminate policies that discriminate by preferring some excuses over others; 3) eliminate the collection and likely unsecure maintenance of disposal of private information about people’s pregnancies, disabilities, medical conditions, business dealings, and military records by registrars; and 4) reduce the costs of administering absentee voting by eliminating the requirement to evaluate the reasons offered by individual voters.
Mandatory Photo ID to Vote: A bill has already been introduced (HB 1337) to eliminate the use of non-photo IDs in state and local elections. Passage of this legislation will lead to increased voter confusion because federal law requires states to permit voters to use alternative IDs in federal elections. The ACLU of Virginia opposes legislation that would place additional burdens on the right to vote and to have that ballot counted. A mandatory photo ID requirement would disproportionately disadvantage the elderly, low-income individuals, students, and minority communities without adding any meaningful benefits in the nature of prevention of non-existent voter fraud.
Restoration of Rights: Three resolutions have been introduced already (HJ 535, HJ 539 and HJ 547) to amend the Virginia Constitution to allow the General Assembly to provide by general law for the restoration of civil rights for persons convicted of felonies. Each of the resolutions is slightly different. The ACLU of Virginia supports amending the Virginia Constitution in order to overturn this remnant of the Jim Crow era. Virginia is only one of four states that permanently disenfranchises its citizens and, currently, only the Governor has the authority to restore rights. A constitutional amendment must pass two consecutive sessions with an intervening House of Delegates election before being placed on the ballot for Virginians to approve. Passage of a constitutional amendment by the General Assembly and by Virginia voters would enable the General Assembly to pass laws permitting disenfranchised citizens to vote.
Women’s Rights and Reproductive Rights
Barring Use of Religion to Deny Necessary Services: The ACLU of Virginia is working to introduce legislation that would ensure that licensed professionals cannot discriminate against clients or patients. The legislation will prohibit denial of services in any case in which such action would violate the ethical standards of the profession or accepted standards of care. The ACLU of Virginia actively supports such legislation because personal beliefs should not and cannot allow Virginia-licensed professionals to avoid ethical obligations and professional responsibilities. The ACLU of Virginia vigorously defends every person’s right to religious freedom, and the right to act on those religious beliefs—unless those actions threaten the rights, welfare, and well-being and others.
Permitting Discrimination in the Name of Religious Liberty: We expect legislation to be offered in the 2013 Session that would expand current Virginia law that allows health care providers to refuse to participate in providing abortion services even in life-threatening situations. If the legislation tracks similar legislation passed in Arizona, it would allow claimed religious beliefs to be used to deny health care, counseling services, and fair treatment to anyone. The law would curtailing the state’s ability to regulate licensed professionals for their religiously based refusal to provide services, nearly eliminating Virginia’s ability to discipline or sanction professionals for their refusal regardless of the harm caused. The ACLU of Virginia opposes this bill because it allows religious beliefs to be used as a reason to discriminate and deny necessary services. The ACLU of Virginia holds that religious freedom in America means that we all have a right to our religious beliefs, but this does not give us the right to use our religion to discriminate against and impose those beliefs on others who do not share them.
Limits on Contraception Coverage: Bills already introduced for consideration this session (HB 1314 and 1315) intend to undermine the new federal rule that requires employers (with exemptions for religiously affiliated organizations) to provide health insurance coverage for contraception under the Affordable Care Act. The proposed legislation conflicts with the federal rule by restricting access to contraception and other reproductive health services, limiting insurance coverage within the new state health care exchange under the Affordable Care Act, and, as such, they violate the Supremacy Clause of the U.S. Constitution. If these bills passed, however, and the federal rule is changed or set aside by the courts, Virginia will have in place state laws that will limit access to birth control and other reproductive health services. The ACLU of Virginia opposes these bills because they intend to discriminate against women and limit women’s access to basic health services. Requiring coverage of contraception does not violate the First Amendment. The ACLU of Virginia holds that at its core, religious freedom means that we are all free to make personal decisions based on our own beliefs and according to what is best for our health and the health of our families. It does not mean allowing particular religious groups to impose their religious beliefs and prohibitions on all of us.
Why is Pardon Data Secret?