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Advancing Fundamental Rights and Liberties: The NYCLU’s 2009 Legislative Agenda

This document proposes a civil liberties agenda for the 2009 session of the New York State Legislature. It identifies pending or proposed legislation that would, if enacted in law, significantly enhance protections of individual freedom. The NYCLU, the proponent of this agenda, is the state’s leading advocate of those rights and liberties promised in the Bill of Rights and in the U.S. Constitution and the Constitution of New York State – including freedom of speech and religion, and the rights of personal privacy, equal protection and due process. Many of the legislative proposals identified in this document have been passed by the Assembly, but not by the Senate. This is not because the legislation fails to promote sound public policy. Indeed, law makers can be confident that if a piece of legislation compromises fundamental rights and liberties, it will also prove to be bad policy. Nor has there been a lack of popular support for this agenda. To the contrary, the proposals we recommend have broad public support in communities across New York State. The NYCLU’s 48,000 members will be strong proponents of this civil liberties agenda. It is our objective in 2009 to include among our partners in advancing this agenda Governor David Paterson, Senate Majority Leader Malcolm Smith, Assembly Speaker Sheldon Silver and a strong bi-partisan majority of legislators in both chambers.

Criminal Justice/Liberty and Security

# Restore justice and fairness to the drug-sentencing laws There is now a broad national consensus among criminologists, public health experts, legislators and policy makers that mandatory drug-sentencing schemes represent a public policy failure. Such laws do not reduce drug use; they do little, if anything, to reduce crime. It is well documented, however, that such laws squander lives and tax dollars, and that they are cruelly racist in their application. In the words of Professor Glenn C. Loury, the War on Drugs is a “monstrous social machine that is grinding poor black communities to dust.”1 Indeed, there has been a national paradigm shift toward alternatives to incarceration (ATI) for non-violent drug offenders: mental health services, drug treatment programs, education and vocational training. But New York is an outlier in this national reform movement. The Rockefeller Drug Laws are a statutory anachronism. “We continue to lock up the wrong people for the wrong reasons,” said New York Corrections Commissioner Thomas Coughlin in 1998. We are still locking up the wrong persons for the wrong reasons. And 90 percent of those New York sends to prison for drug offenses are black or Latino – even though the demographics of those who use and sell drugs tracks the demographics of the general population. That is, most people who use or sell drugs are white. We have truly come upon a crossroads in our approach to the adjudication and sentencing of drug offenses. Governor Paterson acknowledged in his State of the State address that the state’s drug-sentencing laws are an abject failure. Assembly Speaker Sheldon Silver has publicly embraced a bold reform agenda. The NYCLU appeals to the governor and to the legislature: this must be the year to refashion our drug laws in manner that restores judicial discretion, expands eligibility for ATI’s, provides sentencing relief for those serving unconscionably long prison terms, establishes a comprehensive ATI rehabilitation model, and reinvests in our most vulnerable neighborhoods the enormous savings that will be realized from cutting the costs of incarceration. # Return the vote to those formerly incarcerated An estimated 122,018 people with felony convictions are barred from voting in New York State. Fifty-four percent of the disfranchised are in prison or jail; 46 percent of disfranchised individuals are on parole. Thousands more who by law are entitled to vote upon completion of parole are denied this right by local election board workers who do not understand the law. They demand proof an individual is off parole -proof not required by law and not easily obtained by former parolees. What’s more, almost 60 percent of New York prisoners believe that being on probation makes them ineligible to vote, and nationwide 40% of prisoners believe that they have been permanently disenfranchised as a result of incarceration. The Voting Rights Notification and Registration Act, which the Assembly passed in 2006, 2007 and 2008, is intended to address the problem. The bill requires correctional facilities to assist inmates who are eligible to vote by absentee ballot; and directs officials with the departments of corrections and parole to assist individuals in registering to vote upon completion of their prison sentence. While this legislation is necessary to ensure those eligible to vote are not denied the vote, it is not enough. African Americans comprise nearly 65 percent of the disfranchised population – one of every twenty-four blacks is disfranchised – even though they represent less than 13 percent of the state’s voting age population. The NYCLU calls for legislative reform that would expand the franchise to those who are currently on parole. Such a reform would more effectively mitigate the harm that follows from the racial disparities in our prison population. # Ensure accuracy and accountability in the operation of the state’s DNA databank Since DNA databases were introduced into the American criminal justice system in the early 1990s, there has been a consistent and aggressive trend, in New York and nationwide, of expanding the scope of these databases. There is a widely shared perception among policy makers (and among the general public) that with every additional predicate offender whose DNA is submitted to the state’s databank, the public safety is further enhanced – that is, repeat offenders are more likely to be captured. The perception is not supported by sound empirical research. It is well documented that adding the DNA of hundreds of thousands of misdemeanants to the database has introduced serious inefficiency into the criminal justice system. What’s more, there is emerging scientific evidence that there is systemic error and abuse in the collection, handling, analysis and reporting of DNA evidence.2 And because of the inherent bias that operates n the criminal justice system, the victims of such error, fraud and abuse are most likely to be black and Latino men. When a system of DNA testing undergoes significant expansion, as is contemplated by the legislature, the potential for error that is inherent to that system will also increase. This initiative will also cost the state tens of millions of dollars annually. The NYCLU urges the legislature not to proceed with further expansion of the DNA databank without ensuring there is a quality-control and oversight system to prevent error, fraud and abuse. # New York must opt out of implementing the REAL ID Act In 2005 President Bush signed the Real ID Act into law. It mandates a federal scheme that will compel Americans to carry what is, for all intents and purposes, the country’s first-ever national ID card. 3 The law dictates extensive federal standards for state-issued driver’s licenses; these licenses and identity documents will not be accepted by the federal government for “official purposes” unless they meet the federal standards.4 States may continue to issue licenses and ID cards that do not comply with Real ID, but those documents must be clearly marked as unacceptable by the federal government. The Real ID Act poses grave risks to personal privacy. The law authorizes the federal government to consolidate Americans’ personal information in a network of interlinking databases accessible to federal bureaucrats throughout the fifty states and the U.S. territories; it mandates that all driver’s licenses and ID cards have an unencrypted “machine-readable zone” that would contain personal information that could be easily skimmed by anybody with a barcode reader. In addition, Real ID is an unfunded mandate that would cost the State of New York tens of millions of dollars annually – money that the state simply cannot afford. As to the national security, there are superior and far less costly alternatives for preventing the use of fraudulent driver’s licenses. Janet Napolitano, the new Secretary of the Department of Homeland Security, has publicly expressed her strong reservations about the feasibility of implementing Real ID. The NYCLU calls upon legislators to ensure that, in the interest of protecting both the public fisc and the privacy of its residents, New York opts out of compliance with the Real ID Act.

Expanding the rights of lesbian, gay, bi-sexual and transgender New Yorkers

# Marriage fairness With its ruling in Hernandez v. Robles, the New York Court of Appeals left it to the legislature to vindicate the principle of equal protection under law as regards the right of same-sex couples to marry.5 Assembly Member Daniel O’Donnell’s Marriage Fairness bill picks up where the Court of Appeals left off. The legislation would grant civil marriage rights to same-sex couples, while explicitly exempting members of the clergy from being required to solemnize any marriages against their will. In doing so, the bill presents legislators with a bright line test of fairness and justice. To deny lesbian and gay couples the right to marry is to label them second-class citizens unworthy of the 1,324 state rights and responsibilities that marriage creates.6 As the Connecticut Supreme Court pointed out, marriage fairness is about protecting families, and in particular, children.7 And as former New York State Chief Judge Judith Kaye observed in her dissent to the ruling in Hernandez, the denial of marriage rights to same-sex couples has especially harmful physical and emotional effects on their children. “Depriving these children of the benefits and protections available to the children of opposite-sex couples,” wrote Chief Judge Kaye, “is antithetical to their welfare.”8 We commend the Assembly for passing the Marriage Fairness bill in 2007, and we recognize that vote as a historic victory for civil rights in the state. The re-election of every member who voted for the bill is strong indication that New Yorkers recognize the legislation, at its core, is about equality and acceptance. It is time for the Senate to follow the important legislative precedent established by the Assembly. # Prohibit discrimination based upon gender identity The most essential function of our civil rights laws is to protect a despised minority – those who are the most marginalized, and who are therefore vulnerable to the most virulent forms of discrimination. Transgender and gender non-conforming New Yorkers are often the targets of such discrimination; but they are denied the basic legal protections afforded other minority groups because gender identity and expression are not recognized as protected statuses under New York State’s civil rights laws. The effects of this omission are greatly underappreciated. Transgender individuals regularly suffer discrimination that creates barriers to the most basic services, including housing, employment and medical care. These barriers create a traumatic daily existence, resulting in elevated levels of homelessness9 and suicide10 in the transgender community. The need for explicit legal protection is imperative. Thirteen states and the District of Columbia have already recognized the grave need to protect their transgender and gender non-conforming residents by including them in non-discrimination laws.11 Here in New York, seven cities and counties have done the same.12 Without state-wide action, however, 47 percent of New Yorkers live in areas where discrimination on the basis of gender identity and expression is not clearly prohibited by law.13 We urge the legislature to correct an important omission in the 2002 Sexual Orientation Non-Discrimination Act by enacting protections against discrimination based upon gender identity or expression. We applaud the Assembly for passing the Gender Expression Non-Discrimination Act (GENDA) in 2008. And we urge the Senate to join the Assembly in passing the bill this year.

Reproductive Rights and Medical Privacy

# Reproductive Health Act The NYCLU strongly supports the Reproductive Health Act, which represents a long-overdue modernization of the laws in New York State governing abortion. Reform of our current law is necessary for two primary reasons: our laws are outdated, and they fail to adequately protect women’s health. The law should be clear that family planning services are an essential component of health care, and that women have the right to make what are often profoundly important decisions about such matters in consultation with their families and physicians, free from government interference. This includes the decision to terminate a pregnancy before viability or when the woman’s life or health is at risk. Regulations and restrictions on the provision of family planning and abortion services should be designed to further the interests of public health and safety, and doctors should not fear prosecution for providing these services. The Reproductive Health Act accomplishes all this by safeguarding women’s right to make private medical decisions without interference from the government. Recent Supreme Court rulings have weakened the protections of reproductive freedom established in Roe v. Wade. Although we have in President Obama a supporter of reproductive freedom, the make-up of the court is unlikely to change soon. And states around the country have passed laws directly challenging Roe. If even one of these laws is challenged in court, it is uncertain that the Supreme Court would uphold the right of reproductive choice. The fundamental right of women to choose to terminate a pregnancy is therefore vulnerable to judicial repeal. The New York State Legislature must not delay action in passing this critical piece of legislation. # Family Healthcare Decisions Act Each year tens of thousands of New Yorkers find themselves incapacitated without a healthcare proxy. New York law only complicates matters, imposing significant, and often irrational restrictions that prevent a loved one from making health care decisions consistent with the wishes of an incapacitated person. The law in its current form is a source of great pain and suffering, both to the incapacitated person and to their families and friends. The Family Health Care Decisions Act (FHCDA) would permit an individual’s family members, domestic partners, and close friends to make health treatment decisions when that individual no longer has decision-making capacity. The bill would establish clear procedures for selecting a surrogate, thereby ensuring that patients receive the health care treatment they would choose even if incapable of expressing that choice. The FHCDA proposes a more rational and humane approach to providing medical care when a loved one becomes incapacitated – an approach that respects the constitutional liberty interest all persons have in their own health care decision-making. All but two states – New York and Missouri – have adopted laws or procedures that govern health care and end-of-life decisions for individuals who lack decision-making capacity because of illness or injury.14 It is incumbent upon the New York State Legislature to finally pass the Family Healthcare Decisions Act. # HIV Testing and Informed Consent New York health-care providers serve the nation’s highest concentration of persons at risk for or living with HIV. It is therefore imperative to remove unreasonable administrative and other burdens that compromise efforts to make HIV testing widely available and efficiently administered. However, the streamlining of HIV testing procedures need not – and should not – require abandoning an individual’s right to informed consent. In 2008 the NYCLU worked closely with allies representing more than twenty major HIV/AIDS service and prevention providers in opposing an HIV testing bill that sought to encourage individuals to receive an HIV test, but virtually eliminated the duty to provide meaningful information regarding the consequences of consenting to such a test. This year we expect to see several bills that aim to increase HIV testing by expediting consent. Sound public health policy dictates that testing should not be an end in itself, but rather a diagnostic intervention that is intended to prevent and treat disease. A well-designed HIV testing protocol should educate the public regarding the importance of being tested; prevent infection and high-risk behavior; and encourage compliance with treatment programs. This objective may be subverted if HIV testing procedures fail to require informed consent before testing. The NYCLU takes the position that patients must affirmatively opt for receiving an HIV test; the protocol should not presume authority to test unless the patient opts out. The NYCLU will actively oppose legislation that aims to increase the number of tests administered by eliminating protections of confidentiality and informed consent. We will also urge the rejection of legislation that conditions consent upon a patient’s exercise of a “negative option” – that is, the test is administered absent a patient’s affirmative expression of a desire to refuse such a test. Safe Schools/Good Schools # Dignity for All Students Act All who care about children and learning, and about fairness and tolerance, will recognize the important legislative objective of the Dignity for All Students Act (DASA): to provide students in public elementary and secondary schools an educational environment free of discrimination and harassment. The bill would specifically prohibit discrimination and harassment, including “verbal threats intimidation or abuse,” based upon a person’s race, color, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex. This prohibition would apply to school employees and students when on school property or at a school function. An alarming number of New York students say discrimination and harassment is a serious problem in school, causing stigmatized students to engage in unhealthy, risky behavior that harms them and their educational opportunities. In a 2005 study, 66 percent of students reported harassment based on looks or body size, with 38% reporting that this happens often or very often.15High percentages of students also reported that students were harassed based on how they expressed their gender or because of their actual or perceived sexual orientation. Sixty percent of students who experienced harassment or assault at school did not report it to school authorities; of those who did, only 37 percent reported that immediate action was taken to address the problem.16 Government plays an important role in promoting respect for diversity in the school setting, and in fostering a learning environment that is free of bias and discrimination. Governor Paterson spoke to this issue eloquently in his 2009 State of the State address, in which he said that government “must strengthen our school-based curriculum to reinforce the critical message of acceptance and tolerance.” DASA will put this principle into practice. The NYCLU strongly endorses this bill, and we urge the legislature to pass it immediately. # Medically accurate, age appropriate sex education New York is among those states with the highest rates of unintended pregnancy and sexually transmitted infections among teenagers. Comprehensive sex education is essential to reduce these rates; but New York has not demonstrated a commitment to implementing such a curriculum. The Healthy Teens Act would establish a grant program to help school districts, boards of cooperative education services and community-based organizations provide comprehensive sex education programs for young people. Numerous studies demonstrate that comprehensive sex education – health programs that are medically accurate, age-appropriate, and include information about contraception in addition to abstinence – is the most effective way to help young people postpone intercourse and reduce their number of sexual partners. Comprehensive sex education also helps to increase the use of condoms and other forms of contraception among young people who are sexually active.17 The existing model of sex education in New York – a scattershot approach that often misinforms young people – is terribly misguided. The Healthy Teens Act represents an important step toward providing more of New York’s young people the knowledge and understanding they need to protect their sexual and reproductive health. The NYCLU strongly supports passage of this legislation. # Mayoral control of New York City Schools: the need for greater transparency, oversight and accountability In June 2009, the School Governance Statute will expire, and the New York State Legislature will decide whether or not to re-authorize mayoral control of public schools in New York City. The NYCLU has not taken an official position on this issue. We do, however, have great concerns about vesting exclusive control of schools in the executive branch, and we hope state legislators will give the issue serious deliberation before acting to extend Mayor Bloomberg’s control of New York City schools. As we approach the end of New York’s trial with mayoral control of schools, the analysis invariably focuses on performance statistics: student test scores, graduation rates, and the education budget. The NYCLU urges legislators to give consideration to the important qualitative findings that underlie these data, and that must be analyzed when evaluating the mayor’s record: the impact of unilateral decision-making authority; lack of transparency in making and implementing policy; and the marginalization of important stakeholders, including parents, City Council members and other elected officials. Mayoral control of schools was intended as a corrective to inefficiency, parochial politics at the local level, and the lack of accountability by appointed officials. But the concentration of power in the Department of Education (DOE) has virtually foreclosed independent oversight. The mayor has authority to remove at will any member of his Panel for Education Policy, frustrating debate among decision makers; the elimination of community boards has silenced advocates at the local level. The NYCLU has been involved in several contentious issues that demonstrate the need for greater accountability for the operation of the school system: the DOE’s refusal to comply with public notice and comment requirements prior to giving military recruiters access to students’ personal information; the failure to address a well-documented problem of overzealous policing in schools; and the mayor’s refusal to implement the Dignity for All Students Act following its enactment in the city’s administrative code. These issues are emblematic of systemic problem. In deliberating upon legislation reauthorizing the School Governance Statute, we urge members of the Senate and Assembly examine closely the risk and harms created when the education system lacks transparency, oversight and accountability. Protecting families in crisis # Paid Family Leave Act Federal law does not adequately protect employees facing a medical emergency. The federal Family and Medical Leave Act allows employees to take twelve weeks of unpaid leave; but many families cannot afford to lose the pay – for them the family leave benefit is not benefit at all. To help working families in New York make sound choices about having children and caring for one another, it is important to ensure that they can support themselves financially. The proposed Paid Family Leave Act would create a minimal-cost disability benefit that provides employees financial support and job leave when their families face serious healthcare challenges. The bill would provide a weekly disability benefit – with a limit of $340 per week, in its first year, for up to thirteen weeks – to help an employee care for a newborn or a seriously ill family member. Cost implications are minimal. The family leave benefit would be administered through the existing Worker’s Compensation program. Employees pay for the benefit through small payroll deductions, estimated by the legislature at less than fifty cents per week for each employee. The bill creates no new government infrastructure; nor does it impose new costs on employers. A paid family leave benefit would help employees avoid having to choose between caring for a sick relative and losing a job; between having a child and going deeply into debt. This legislation, if enacted, would begin to repair the breach in the safety net for families in great stress. The NYCLU strongly supports this measure.

1 Glenn C. Loury, “Why Are So Many Americans in Prison? Race and the transformation of criminal justice,” The Boston Review, July-August 2007. 2 See, e.g., William C. Thompson, “Tarnish on the ‘Gold Standard’: Recent Problems in Forensic DNA Testing,” The Champion, January/February 2006. 3 Making Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat 231 (codified in relevant part in 49 USCS §30301 note (2005) [hereinafter “Real ID Act”]). 4 Id. at §§201-207 (2005). Conditions include: standardized data elements and security features; connectivity to a 50-state database making drivers’ personal information available to the federal government; proof of a driver license applicant’s full legal name, date of birth, social security number, principal address and lawful status in the US. 5 See Hernandez v. Robles, 7 N.Y.3d 338 (2006). 6 See Empire State Pride Agenda Foundation and the New York City Bar Association, “1,324 Reasons for Marriage Equality in New York State.” Available at 7 See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 249 (2008) (stating that the denial of marriage rights to same-sex couples has especially harmful physical and emotional effects on their children, who are denied the security of “knowing that their parents’ relationships are as valid and as valued as the martial relationships of their friends’ parents.”). 8 7 N.Y.3d at 393. 9 Ray, Nocholas, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic in Homelessness, National Gay and Lesbian Task Force Policy Institute, 2006. 10 Bockting, Watler and Eric Avery, Transgender Health and HIV Prevention, Haworth Press, 2005. 11 Jurisdictions with Explicitly Transgender-Inclusive Nondiscrimination Laws”, National Gay and Lesbian Task Force, July 2007, Minnesota, Rhode Island, New Mexico, California, Illinois, Maine, Hawaii, New Jersey, Washington, Oregon, Vermont, and Colorado. 12 Ibid. Albany, Buffalo, Ithaca, New York, Rochester, Suffolk County and Tompkins County. 13 Empire State Pride Agenda, 14 New York Statewide Senior Action Council, Newsletter 06/02/05 15 From Teasing to Torment: A Report on School Climate in New York (GLSEN 2005), at p. 8. 16 Id. 17 Douglas Kirby, The National Campaign to Prevent Teen Pregnancy, Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy (Summary) (May 2001), available at

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