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Legislative Memo: Protecting Fundamental Rights and Liberties: A Legislative Agenda for 2011

February 10, 2011


Governor Cuomo has challenged legislators, agency officials and administrators to make the operations of government more efficient and productive, more accountable, and less costly. He asks for measurable results.

The NYCLU’s legislative and public policy recommendations are consistent with this charge. For example, we call on the Cuomo administration to ensure effective implementation of the state’s new drug policy that provides for treatment and rehabilitation rather than incarceration (saving the state hundreds of millions annually, if the public health model is well managed); provide kids with the information and guidance they need to prevent sexually transmitted diseases, unwanted pregnancy, and inappropriate and dangerous sexual advances by peers and adults; and improve academic outcomes and prevent bullying in schools by promoting a learning environment that values tolerance and respect.

We also endorse a bill that would mitigate the harmful effects of a punishing economy by providing workers with a limited paid-leave benefit to care for a sick family member or newborn.

Other of our recommendations are based directly upon constitutional principles of personal freedom: We urge the governor to use his political influence to advance legislation that protects reproductive choice and the rights of lesbian, gay, bisexual and transgender New Yorkers.

The NYCLU adds its endorsement to the governor’s call for creating an independent commission to draw new electoral districts based upon the 2010 census. And we ask legislators to join Governor Cuomo in developing a coherent policy on immigration matters, one that recognizes the rights of immigrants and protects New York’s immigrant communities.

Safe Schools/Good Schools

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. Instilling tolerance and respect not only protects students from harm, it improves academic outcomes.

Legislation enacted in 2010 – the Dignity for All Students Act – mandates that each school district create teaching, training and counseling guidelines and protocols for preventing bias and harassment in schools, and for intervening effectively when they occur. Governor Paterson convened a working group of education officials, mental health and counseling experts and students’ rights advocates to collaborate on effective implementation of the new law. This “pro bono” task force brings a diversity of perspectives and a great depth of expertise to this task. The Cuomo administration should endorse, and support, this initiative.

• Make clear that the state’s Human Rights Law prohibits discrimination in schools

It should not need stating, in 2011, that students in New York are entitled to an education free of discrimination. The legislature asserted this principle when enacting the state’s Human Rights Law, which established that students have a right to attend school without suffering discrimination. But a recent, anomalous court opinion has held that students who experience discrimination in school will find no recourse in the Human Rights Law. Institutions of public education are not subject to that law, according to this ruling issued by the Appellate Division, Second Department.

For decades the Division of Human Rights has interpreted the Human Rights Law as applying to both public and private educational institutions, and this interpretation has been upheld, and applied, by state and federal courts. Nevertheless the ruling denies judicial redress for discrimination by a school within the jurisdiction of the Second Department; more broadly this case has created confusion as to whether a public-school student can bring a discrimination complaint to the Division of Human Rights – and, if wronged, have his or her rights vindicated. The state’s civil rights community has called upon the legislature to make unmistakably clear that all education institutions in New York are subject to the state’s Human Rights Law.

• 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 cost of this failure – reflected in state expenditures for medical care and social welfare programs – is staggering. One study found that New York State spent $507 million in 2004 to address issues related to teen childbearing, including public health care, child welfare, and lost tax revenue due to the diminished earning and spending capacity of teen parents. Teen parents are more likely than other teens to drop out of school, and the children of teen parents are statistically more likely to grow up in poverty and end up in the child welfare system.

How should lawmakers respond to this public-health crisis? There is a broad consensus – based upon sound empirical evidence – that comprehensive sex education for students is essential. Legislation exists: the Healthy Teens Act. The bill, first introduced in 2003, would establish a grant program to help school districts, boards of cooperative education services and community-based organizations provide medically sound, age-appropriate sex education programs for young people. The research literature demonstrates that such programs – which teach students about contraception as well as abstinence – help delay the onset of sexual activity among young people, and reduce the incidence of sexually transmitted diseases and unplanned pregnancies.

Governor Cuomo and the legislature must make enactment of the Health Teens Act a legislative priority – in the interest of New York’s fiscal health, and of the personal health of the state’s young adults.

Work and Family Rights

• Limited job leave for workers when a family member faces serious illness

Federal law does not adequately protect employees facing a medical emergency. The federal Family and Medical Leave Act allows employees to take 12 weeks of unpaid leave, but many families cannot afford to lose the pay – for them the family leave benefit is no benefit at all. A worker must be able to rely on his or her job as well as a paycheck – especially when a baby is born or a parent is incapacitated by illness.

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 modest weekly disability benefit, for up to 13 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 50 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 provide direct support to the most vulnerable in a punishing economy: low-income workers, the young, persons of color. And the benefits accrue to employers as well. Research finds that the availability of paid family leave helps businesses retain valued employees, reduce turnover, and increase loyalty and morale among workers.

The NYCLU strongly supports this measure.

• Fair labor practices for farm workers

The vitality of New York’s agriculture economy depends on the labor force that works the farms. Farm workers are a key component of the plan to revitalize the agriculture sector, and to deliver on the economic promise of growing consumer demand for food that is locally grown, and more readily available to neighborhoods in urban markets.

And yet the state’s labor laws exclude farm workers from the protections afforded other workers – including the rights to bargain effectively, and to protect themselves from dangerous work conditions. The work of farm laborers is often grueling. The hours are excessive. And farm workers routinely are expected to do work that places their safety and health at risk. Organizing for the purposes of negotiating the terms and conditions of employment is a civil liberty of private and public employees alike. For this reason the NYCLU urges lawmakers to pass the Farm Workers Fair Labor Practices Act. It deserves the support of legislators who are committed to the safety of workers and to a robust farm economy in New York State.

Criminal Justice

• Effective implementation of drug law reform

Landmark legislation enacted in 2009 converts the state’s drug policy from a mass incarceration model, driven by mandatory sentences, to a public health model. Judges now have the discretion to order treatment and rehabilitation rather than prison time. This paradigm shift promises significant benefits: treatment and management of addiction, lower rates of recidivism, and savings in the cost of imprisonment ($50,000/year).
However, these benefits will be realized only if the state is effective in implementing the new drug policy. This will require coordination between and among the criminal courts, treatment and rehabilitation programs, and probation and social services. This is, to understate matters, a complex undertaking. It requires a comprehensive management plan, with well defined goals and objectives. It also requires enlisting top talent from inside, and outside, government. Governor Cuomo has said that government operations must become more efficient, more accountable and more productive. That is, the test of good government is in the results produced.

The NYCLU offers two recommendations that will help to ensure the intent of the reformed drug-sentencing laws produce measurable benefits to society: (1) establish in the office of the governor a senior-level position with responsibility for coordinating and facilitating effective implementation of the 2009 drug-law reforms; and (2) convene a task force of (volunteer) experts – medical and mental health professionals, substance-abuse treatment providers, and vocational and educational experts – who can provide information and guidance regarding implementation of the state’s new drug policy.

• Improve crime reporting

Modern policing practices are informed by the collection and analysis of data: crime complaints, arrests, shootings. The NYPD’s Compstat program is often cited as the engine of a data-driven policing model, one that allocates police resources based upon the nature and location of potential law-enforcement problems.
But New York law has significant gaps in its crime reporting protocols and procedures. The Department of Criminal Justice Services collects and compiles data on felony arrests and prosecutions, but local police departments do not provide the state with data on misdemeanors and violations. What’s more, the felony statistics reported by DCJS do not include basic demographic information about persons subject to arrest or prosecution.

In a recent op-ed piece two criminal justice experts (one, a retired NYPD captain) stated that it’s time to build a better Compstat – in the interest of good policing practices, and as a matter of credibility and accountability. “Open the books,” is their recommendation to the police. “The public needs to be informed in order to assess the effectiveness and fairness of its police force – so all crime data should be made public on a regular basis.” This includes information on misdemeanors and violations. Legislators who are committed to making law enforcement both effective and accountable should support a bill that eliminates the information void.

• Require that police videotape custodial interrogations.

There is a broad consensus among jurists, bar associations, and law enforcement professionals that videotaping police interrogations would serve to protect the innocent and ensure the veracity of a criminal confession. False confessions are a factor in about 25 percent of cases known to result in a wrongful conviction. In many instances these unwarranted convictions are the consequence of improper police tactics.
The National District Attorneys Association encourages police departments to videotape interrogations. The Chicago Police Department, the nation’s second largest police force, has successfully implemented the practice, pursuant to state law. Alaska, Minnesota, Texas, Maine and the District of Columbia have, by statute or case law, mandated the electronic recording of certain custodial interrogations.

The recording of custodial interrogations will serve to deter improper police practices, and to prevent wrongful convictions based upon coerced confessions. It is time for New York law to mandate this practice.

Voting Rights and Fair Elections

• Restore the principle of government neutrality in electoral redistricting

Governor Cuomo has spoken forcefully, and rightly, on the importance of taking politics out of the process by which electoral districts are drawn. The boundaries of election districts are redrawn after each decennial census. And new maps will soon be created based upon the 2010 census. But who will draw the maps? Once every 10 years the leaders of the majority party carve up election districts to reward allies, punish adversaries, and to secure political control for another decade.

The NYCLU – along with every proponent of transparency and accountability in government – has long advocated for the creation, by statute, of an independent commission that is charged with redistricting. Can the governor restore integrity to redistricting? It would be a signal accomplishment for a champion of government accountability.

• Return the vote to the formerly incarcerated

Approximately 100,000 people with felony convictions are barred from voting in New York State. Fifty-seven percent of the disfranchised are in prison or jail; 43 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 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, about 60 percent of New York prisoners believe that being on probation makes them ineligible to vote.

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.

This legislation is necessary to ensure those eligible to vote are not denied the vote, but it is not enough. African Americans comprise nearly 65 percent of the disfranchised population – one of every 24 blacks is disfranchised – even though they represent approximately 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.

• Enact public financing of state elections

The exorbitant cost of mounting a campaign for public office has a stifling effect on the functioning of a democracy. Qualified candidates are excluded from the political process; elected officials are compromised, or corrupted, by the influence of high-dollar donors. “Pay to play” is the rule of engagement for advocates who wish to affect legislation and influence public policy.

The Supreme Court’s ruling in Citizens United v. Federal Elections Commission effectively dismantles the existing scheme for regulating campaign contributions. The most effective way to restore fairness and rationality in campaign financing, consistent with First Amendment principles, is to provide public financing of electoral campaigns. The NYCLU will join this issue in Albany, urging the legislature to pass a public financing bill (similar to the New York City law) that governs all elections for state office.

In his State of the State Address Governor Cuomo endorsed this idea of “social progress” – and implied that the near collapse of the financial system was related to the manner in which campaign contributions have compromised the independence and integrity of government. New York’s fiscal emergency may stall legislative action, but this is a progressive idea whose time has come. If ever there were an initiative that justifies a dedicated fee or tax, certainly a proposal that would restore a significant measure of fairness to the electoral process is such an initiative.

Civil Rights of Lesbian, Gay, Bisexual 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. Marriage fairness legislation would establish this right in statute. The bill would sanction the marriage of same-sex couples, while explicitly exempting members of the clergy from any obligation to solemnize a marriage. 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 rights and responsibilities that attach to a marriage recognized in law. The government argued in Hernandez that the denial of marriage rights to same-sex couples furthered the state’s interest in encouraging procreation. There is no rational basis on which to justify this position, responded former Chief Judge Judith Kaye in her dissenting opinion. Yes, the state has an interest in the welfare of children, Judge Kaye observed, but “excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it.” The Connecticut Supreme Court concurs in this view. Excluding same-sex couples from civil marriage, that court has ruled, prevents the children of those couples from enjoying “the immeasurable advantages that flow from the assurance of a stable family structure in which the children will be reared, educated, and socialized.”

The ruling of New York’s Court of Appeals in Hernandez reads, just five years later, as oddly anachronistic – inconsistent with judicial precedent, social science and widely held notions of fundamental fairness. It is time for the New York State Senate to pass a bill – following the important legislative precedent established by the Assembly – that establishes full, and equal, marriage rights for lesbian, gay, bisexual and transgender New Yorkers.

• Prohibit discrimination based upon gender identity

The most essential function of the civil rights laws is to protect those we marginalize, 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 homelessness and suicide in the transgender community.

The need for explicit legal protection is imperative. Thirteen states and the District of Columbia have recognized the need to afford transgender and gender non-conforming individuals statutory protection against discrimination. Here in New York, seven cities and counties have done the same. However, close to half of all New Yorkers live in areas of the state in which discrimination and bigotry based on gender identity occurs without remedy or redress.

The NYCLU urges 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.

Reproductive Rights and Medical Privacy

• Enact the Reproductive Health Act

Reproductive choice is fundamental to women’s personal autonomy and privacy. The exercise of that right may involve matters related to sex, pregnancy, parenting and family. But New York law does not adequately protect this right, which is recognized only as an exception in the penal code.

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 ideological 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.

• Protect the confidentiality of patients’ medical records

New York is transforming the manner in which patients’ medical records are created and shared. Hard-copy documents and electronic records stored in an office computer are now being converted into a comprehensive, statewide network of integrated, searchable databases. This innovation transforms both the management and delivery of health care. It also poses immediate and pressing questions about how to ensure patients’ right to privacy.

Facilitating electronic access to medical records promises significant benefits to health care providers and patients, including greater coordination and efficiency in service delivery, and reductions in medical errors and misdiagnoses. However, New York law treats medical records as if they are inert documents located in a single place. Absent new safeguards regarding the creation and dissemination of medical records, medical privacy will become a meaningless concept.

The NYCLU urges the legislature, the governor and health care officials (1) to ensure that New York’s regulations, policies and procedures governing the transfer of health information conform with the privacy protections adopted in federal law; and (2) to amend New York law to include standards and mandates that will protect patient privacy as health information exchange systems are developed. Recommended privacy protections include public outreach and education; informed consent by patients regarding what is included in electronic medical records; prohibitions on dissemination of certain patient information to third parties; procedures for correcting information in medical records; and recourse and redress when patients’ medical information has been misused.

The Rights of Immigrants

• Protect New York’s immigrant communities from misguided initiatives launched by the Department of Homeland Security

In May of 2010, New York State entered into a memorandum of agreement with the Department of Homeland Security to implement the controversial federal Secure Communities (S-Comm) program – an initiative of President George W. Bush. The program requires that when a New Yorker is arrested and fingerprinted at a local jail – for any reason – his or her fingerprints are electronically run through the federal immigration database. This allows Immigration and Customs Enforcement (ICE) to identify noncitizens; the practice may also lead to deportation proceedings against these individuals.

The S-Comm program has provoked widespread opposition. Civil rights groups, immigrant rights advocates and many elected officials have urged that New York withdraw from its agreement with the federal government regarding implementation of S-Comm. They charge that the program:

▪ Undermines cooperation between immigrant New Yorkers and law enforcement officials. The so-called Secure Communities program turns every interaction with a police officer or sheriff’s deputy into a potential confrontation that carries the risk of apprehension and deportation. As a result immigrants – including lawful immigrants and permanent residents – are deterred from reporting crimes, seeking protection from domestic violence and serving as witnesses in criminal prosecutions. This jeopardizes the public safety of all, including U.S. citizens.

▪ Creates the risk of unlawful, extended and expensive detentions by local jails. The S-Comm program provides that once federal immigration officials have identified an individual through a database match, ICE can transmit an “immigration detainer” to the local jail. A detainer is not a warrant, but can result in an individual’s being detained for days or even weeks after the law would otherwise have compelled his or her release. The cost of these prolonged detentions will fall to local municipalities.

▪ Invites racial profiling by state and local law enforcement. S-Comm gives local law enforcement agencies the incentive to jail an individual based upon the mere suspicion he or she may be undocumented. Local law enforcement officials are encouraged to arrest “foreign-looking” individuals for minor infractions, or for no reason at all, with the sole objective of transmitting their fingerprints to ICE and triggering a deportation proceeding.

The New York State Legislature should urge the Cuomo administration to rescind its agreement to implement the S-Comm program. Pending this action, the legislature should exercise its oversight function by monitoring law enforcement practices undertaken pursuant to this program.

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