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Rhode Island Affiliate, American Civil Liberties Union

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2012 Legislative Session

When the gavel came down in the early morning hours of June 13th and ended the 2012 legislative session, there were civil liberties wins and civil liberties losses.  The ACLU lobbied on hundreds of bills this session, providing testimony both for and against bills with a wide range of topics, from the use of standardized testing to fingerprint background checks, health insurance rates to open records laws, election reform to homelessness and more.  Despite some losses, such as legislation allowing the state to determine if a symbol is secular or religious, and passage of campaign finance legislation which may have a serious chilling effect on donations to small non-profits and their free speech abilities, there were also a number of successes, such as the passage of legislation broadening access to public records and protecting social security numbers.  Below is a sampling of just some of the legislation we weighed in on this session.

Legislation Issue Areas:

Abortion

Genetic Counselors (H 7571, S 2286A) DIED

While the ACLU weighed in on the expected spate of abortion bills, including bills mandating ultrasounds before abortions and codifying Roe v. Wade into state law, perhaps the most heated debate came from an innocuous bill seeking to create a licensing program for genetic counselors.  Advocates inserted “conscience clause” language into the bill, allowing for pro-life genetic counselors to refuse mentioning abortion as a viable option, and requiring them to do nothing more than refer frightened parents to a website to help them find a counselor who would provide more complete advice.  While the ACLU and other pro-choice organizations attempted to compromise on conscience clause language which would protect the rights of parents to know their options, this compromise was rejected, and the bill failed to move out of committee.

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Civil Rights

Gender Rating in Health Insurance (H 7151, S 2208) DIED

Nationwide, women face higher premiums than men for the same health insurance, leaving women disproportionately less able to purchase vital health care coverage.  While the federal Patient Protection and Affordable Care Act aims to eliminate this discrepancy in 2014, ACLU legislation sponsored by Representative Donna Walsh and Senator Susan Sosnowski hoped to codify this provision into state law beginning in 2012, to end the practice immediately and stop women from being disproportionately burdened by the cost of health insurance regardless of any delays or changes in federal law.  While the bill died in committee, S 2888, sponsored by Senator Rhoda Perry and approved by both the Senate and the House, requires the Office of the Health Insurance Commissioner and the Executive Office of Health and Human Services to investigate the practice of gender rating and issue a report detailing the impact of eliminating the practice.

Habeas Corpus (H7916A, S2803) HOUSE RESOLUTION

The House passed a resolution, sponsored by Representative Daniel Gordon, calling upon Congress to repeal sections of the National Defense Authorization Act which sanction the indefinite detention without charge or trial of anyone in the United States.  The resolution reaffirms Rhode Island’s commitment to the fundamental principles of the Fifth and Sixth Amendments to the Constitution, and sends a signal to our national lawmakers that such policies are unacceptable.  A companion resolution, sponsored by Senator Josh Miller, was introduced in the Senate, but never heard in committee.

Homeless Bill of Rights (H 7173, S 2052) PASSED

The General Assembly passed landmark legislation by Representative Chris Blazejewski and Senator John Tassoni to protect people from employment, housing, and voting discrimination, among others, solely because of their homeless status.  The first of its kind in the nation, this legislation provides meaningful and necessary guidelines to ensure the equal protection of homeless individuals.

Marriage Equality (H7753, H7845) DIED

Casting aside the disappointing outcome of 2011’s marriage equality legislation, advocates returned this year with the marriage equality bill, sponsored again by Representative Art Handy.  The ACLU and other marriage equality groups continue to advocate for full marriage equality, especially in light of the dismal failure of civil unions in Rhode Island.  Legislation introduced by Representative Frank Ferri also sought to restore the equality suppressed in the civil unions law, calling for the repeal of the so-called “Corvese amendment”, which allows religious organizations or individuals to refuse to recognize the legality of a couple’s civil union in any circumstances.  Neither bill moved out of committee.

Same-Sex Divorce (H 7752, S 2337) DIED

Paradoxically, while Rhode Island continues to deny same-sex couples the right to marry, the state also prevents couples legally married in other states from divorcing.  Same-sex couples who wish to divorce are stranded in an emotional, legal, and financial limbo no other couples – even those whose marriages are clearly void under the law such as in cases of bigamy and incest – must face.  ACLU legislation sponsored by Representative Larry Valencia and Senator Donna Nesselbush sought to allow all married couples, regardless of whether their marriage was legal in the state of Rhode Island at the time it was performed, to divorce.  Unfortunately, the bill died in both the House and Senate committees.  Read our testimony before the House Judiciary committee here.

Secular Memorials (H 8143A, S 3035) PASSED

In a stunning response to the Woonsocket cross controversy, the General Assembly overwhelmingly approved legislation creating a permanent commission to determine whether any memorial in the state of Rhode Island is religious or secular.  This five-person commission holds the authority to decide whether any structure, sculpture, inscription or icon located on public property has reached a level where its religious imagery has become so meaningless as to render it secular.  The ACLU testified before the House and Senate judiciary committees that this legislation not only inappropriately sought to legitimize the use of religious symbols on public property, but ran contrary to the First Amendment by allowing the state to co-opt a religious symbol for its own uses and declare any religious use of the symbol overridden, based on the decision of as few as two commission members.  Read our testimony here and our letter to the governor here.

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Criminal Justice

Cell Phone Searches (H 7110, S3074) PASSED, VETOED

As cell phone technology has advanced and smartphones have become ubiquitous, the devices we carry on a daily basis have begun to contain substantial amounts of personal information, including e-mails, photos, and records of where we’ve been traveling.  Yet, until now, Rhode Island law held no requirement that law enforcement obtain a judge’s approval before searching the contents of a cell phone.  ACLU-drafted legislation, sponsored by Representative Edie Ajello and Senator Donna Nesselbush, now requires a warrant to be obtained by law enforcement before any search of a cell phone is conducted. Read our letter urging the governor to sign the bill into law here.  The governor, however, vetoed the legislation unexpectedly.

Computer Crimes (H 7042, S 2647) DIED

The House and Senate Judiciary committees considered legislation to drastically Rhode Island’s computer crimes laws by altering the definitions of old laws and creating new offenses.  Among the concerns presented by the ACLU in testimony: the legislation’s broad language meant even some actions clearly protected by the First Amendment, such as commenting online on controversial topics or running a satirical website could have been deemed illegal under state law.

DNA Testing of Arrestees (H 7056, S 2061) DIED

The legislative session brought a familiar bill allowing for the collection of DNA from any person arrested for a crime of violence, which included larceny offenses such as pickpocketing.  Under current law, DNA can only be collected from individuals convicted of certain felonies; to collect from individuals who have merely been arrested for a crime is a contradiction of the presumption of innocence, and a dangerous step towards creating a comprehensive DNA database.  Additionally, collecting DNA from every individual arrested for a crime of violence would more than double the number of DNA samples the Department of Health must analyze, increasing the testing backlog from 3-6 months to approximately one year, potentially delaying justice in all those cases where DNA is a critical investigatory element.  The Senate passed this legislation for the second year in a row, but it was sent back to committee before reaching the House floor.  Read our written testimony here.

Felony Limits (H7176, S2368) PASSED

On June 4th, Governor Chafee signed into law legislation sponsored by Representative Scott Slater and Senator Erin Lynch raising value of a stolen object necessary for a felony charge from $500 to $1500.  The ACLU and the Office of the Public Defender testified in favor of this change, noting that inflation since the law was enacted means that items once worth $500 cost significantly more today, and yet defendants are saddled with serious felony charges for stealing items the statute likely never intended to value so highly.  This legislation represents a positive step toward applying appropriate punishments in response to crimes.

Good Behavior Sentence Reductions (H 7112A, S 2179A) PASSED

Despite Affiliate testimony in opposition, the General Assembly approved a bill to severely limit the ability of certain inmates to accrue “good time” reductions of their sentences.  In addition to promoting good behavior by prisoners, “good time” provides an important incentive to prisoners to participate in treatment and educational programs, potentially reducing their recidivism rates.  “Good time” is also a vital preventative against prison overcrowding, and in fact was implemented only four years ago when the ACI came close to maximum capacity, and Rhode Island was faced with adopting a productive solution, or releasing prisoners.  Although the ACLU and the Office of the Public Defender asked Governor Chafee to veto this legislation, he signed it into law in June.   Read our letter to the House here.

Ignition Interlock (H 7332, H 7849A, S 2568, S 2838A) DIED

The Affiliate testified against a number of bills seeking to require the use of ignition interlock devices by any person convicted of DUIs, failure to submit to a chemical test, and other crimes – even if the driver was not under the influence of alcohol at the time of their infraction.  All of the bills considered drastically increased the numbers of individuals who would be subject to ignition interlocks and the length of time such individuals would be required to maintain the devices; some versions included no provisions allowing for indigent individuals to obtain the devices without paying their costly upkeep fees.  This would have all but ensured indigent individuals would be unable to afford the devices and would return to jail.  The House and Senate each passed a version of this legislation, but were unable to reconcile them before the end of the legislative session, and the bills failed.

Mandatory Seat Belts (H 7596, H 8044, S 2373) DIED

The ACLU testified before the House and Senate Judiciary committees in March in opposition to legislation which would remove the “sunset” provision on the primary seat belt law, rendering it permanent.  Currently, the primary seat belt law is scheduled to be repealed automatically in 2013; this legislation sought to remove that provision and make the law permanent.  As in years passed, the Affiliate testified that the mandatory seat belt law was an overreach of the law, serving only as another reason to pull over a vehicle.  In May, the Affiliate testified in favor of legislation sponsored by Rep. Jared Nunes to move forward the repeal date, effectively ending the primary seat belt law at the end of this legislative session.  All three bills died in committee.

Moral Turpitude (S 2705) DIED
ACLU-drafted legislation removing the phrase “moral turpitude” from state licensing statutes was heard in March by the Senate Health and Human Services committee.  This phrase, which appears numerous times in state law, is undefined and overly broad, leading to considerable interpretation and misuse.  In order to provide uniformity to the state licensing statutes, this phrase should be eliminated.  This legislation failed to move out of committee this year.  Read our testimony here.

Sex Offenders (H 7075, S 2572) SENATE RESOLUTION

The legislature again considered bills to expand the scope of the state’s sex offender registration and notification laws.  The federal Sex Offender Registration and Notification Act (SORNA), which the Attorney General sought to have the legislature implement, includes draconian public notification requirements, lifetime sex offender registration even for juvenile offenders, as well as retroactive registration for persons whose offenses may have occurred decades earlier. The estimated fiscal costs for implementing the federal law are so high that only seven states in the country have opted to come into compliance with SORNA.  As in previous years, the ACLU testified before the House and Senate judiciary committees that notification laws hinder rehabilitation and ignore the reality of sex offenses, which is that over 90% of them are committed against victims whom the perpetrator knows, not by strangers.  In response to the ACLU’s testimony, the Senate voted to create a study commission to evaluate the feasibility of implementing SORNA in the future.  No such commission was created by the House.  Read our written testimony here.

Smoking in Cars (H 8238, S 2204A) DIED

In March, the Affiliate testified before the Senate Health and Human Services committee in opposition to legislation barring smoking in any motor vehicle carrying a child.  The ACLU testified that, while smoking in cars should certainly not be encouraged, police involvement in the form of a traffic stop was an inappropriate response to an action which was not related to an individual’s safe operation of a motor vehicle.  In May, the committee recommend and the Senate passed a version of the bill stating an individual could only receive a warning for smoking with a child present who was required by law to be restrained, and could not be stopped solely for that purpose.  However, both bills failed to move out of committee in the House.

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Free Speech

False Information Ban (H 7389, S 2339) PASSED

Until this year, an outdated and overly-broad section of Rhode Island law stated that transmitting any false information over the Internet was a misdemeanor, punishable by a $500 and up to one year in jail.  Under this statute, an individual who lied about their age on a social networking profile or forwarded a satirical e-mail to another was subject to arrest and jail time.  ACLU legislation sponsored by Representative Chris Blazejewski and Senator Rhoda Perry repealed that section of the law.  Read our letter to Governor Chafee urging him to sign this legislation into law.

Political Advertising (H 7970, S 2644) PASSED

The General Assembly passed another ACLU-drafted free speech bill, this time ensuring citizens the right to criticize their elected officials in public newspapers.  Prior to this legislative session, a lawsuit was filed against a private citizen who took out an advertisement in the Warwick Beacon, criticizing a number of elected officials by name.  The lawsuit relied on an overly broad section of law barring the use of any person’s name, portrait or picture in an advertisement without their written consent.  This legislation, sponsored by Representative Joseph McNamara and Senator Michael McCaffrey, clarified that the law applies only to commercial advertisements, and not “to the use of names, portraits, or pictures in political speech or on matters of public concern”. 

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Immigrants' RIghts

E-Verify (H 7315, H 7927, S 2216) DIED

The General Assembly again considered a number of bills to require the use of the E-Verify program before hiring any workers.  The Affiliate testified before the House Labor and Senate Judiciary committees that E-Verify continues to be an error-prone system which is misused by employers to engage in workplace discrimination on the basis of national origin.  While the House passed similar legislation two years ago, it failed to move out of any committee in 2011 and again this year.  Read our written testimony here.

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Open Government

Access to Public Records (H 7555A, S 2652A) PASSED

After years of negotiation between open government groups, law enforcement, and the Attorney General’s office, the General Assembly this year passed much-needed legislation strengthening the state’s open records law, known as APRA.  The ability of the public to see and evaluate the decisions of the government is a necessary component of democracy, yet prior to this legislation, APRA had not been updated in more than a dozen years.  As a result, Rhode Islanders had a comparatively weak tool for government accountability, with a law which did not reflect technological advances in record storage or changes in the kinds of documents which exist.  Among other improvements, the legislation shortens the time frame for public bodies to respond to open records requests, increases penalties for violations of the law and requires training of public information officers on their obligations under APRA.    

Campaign Finance (H 7859B, S 2569A) PASSED

The General Assembly passed campaign finance legislation aimed at combatting so-called Super PACs, but which carried serious ramifications for small organizations, including non-profits, which engage in referenda campaigns or even publicly references legislators too close to an election.  The legislation implemented onerous reporting requirements – initially, with the possibility of felony penalties for failure to comply – and mandated public disclosure of the names of an organizations private donors, sometimes for nothing more than thanking a legislator in a newsletter or mentioning their name on a website.  A watered-down version of the legislation passed the General Assembly, but it may still carry a tremendous burden for small organizations seeking nothing more than legitimate advocacy for a cause their donors believe in.  Read our analysis and testimony on the original bill here, and on the Sub-A version here.

Legal Notices in Newspapers (H 7748, S 2494) DIED

In May, the Affiliate testified before the House and Senate Judiciary committees in opposition to legislation which would remove the requirement that legal notices be posted in a newspaper, and instead permit them to be posted on a website.  While computers and the internet are certainly becoming more ubiquitous, the “digital divide” is still very much a reality; as recently as April 2012, one in five American adults reported that they do not use the Internet.  Among adults with disabilities, more than half do not use the Internet.  The Affiliate testified that these individuals should not be barred from receiving access to legal notices because they do not have access to websites.  The legislation failed to move out of either committee.

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Privacy

ID Theft Protection (H 7693, S 2386) PASSED

The General Assembly again took steps to protect the overuse of social security numbers, by prohibiting credit agencies from using an individual’s social security number as the sole means of verification matching a credit record to an inquiry by a merchant.  Privacy expert Robert Ellis Smith identifies false applications for credit using an individual’s social security number as one of the two major forms of identity theft, and notes that a significant portion of identity theft could be prevented if credit bureaus were required to use more than just a social security number to identify matching files.  This legislation will require agencies to use a second identifier, such as an address, prior address, or date of birth, among others. 

License Plate Scanners (H 7679, S 2251) DIED

In April, the House Corporations committee heard legislation sanctioning the installation of cameras on police cruisers to continuously scan every license plate on the street. Proposed as a way to detect and combat uninsured motorists, these cameras have the capacity to track the location of every car, and transmit your insurance and registration information to third parties.  Read the ACLU’s testimony in opposition to this bill here.

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Racial Profiling

Comprehensive Racial Profiling Prevention Act (H 7256, S 2252) DIED

Despite the renewed dedication of the Affiliate and the more than three dozen organizations comprising the Coalition Against Racial Profiling, the bill failed to move out of committee this year.   Three years’ worth of traffic stop data in Rhode Island demonstrated consistently that black and Hispanic drivers are twice as likely as whites to be stopped and searched by police, yet whites are more likely to be found with contraband when searched.  Sponsored by Representative Grace Diaz and Senator Harold Metts, this legislation would build upon existing anti-profiling legislation to, among other things, prohibit police from asking passengers or pedestrians from proof of identification or searching juveniles without reasonable suspicion of criminal activity, and require police officers to document the reasons for a traffic stop.  Similar legislation passed out of committee for the first time last year, but was recommitted by the House on the last day of the session; this year, the Coalition and committee members were discouraged by a complete refusal by law enforcement to discuss any legislative options for alleviating racial profiling, despite all the evidence indicated its proliferation.

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Rights Of Ex-Offenders

Ban the Box (H 7760, S 2441) DIED

The Affiliate testified before the House Labor and Senate Judiciary committees in favor of returning legislation that would bar employers from asking about  an applicant’s criminal history before determining whether they were a qualified candidate for the position.  The Affiliate testified that eliminating “the box” – a portion of a job application where a job applicant must document that they are without any criminal record history – would make it easier for those with a criminal history to find jobs, a critical component in rehabilitation and avoiding recidivism.  The bill failed to move out of committee.

Criminal Background Checks (H 7077, H 7444, H 7626, H 7806, H 7878, S 2507, S 2513, S 2687, and others) VARIED

The General Assembly once again considered a tremendous number of bills requiring fingerprint-based background checks for a wide range of professions and volunteer opportunities, from school mentors to nursing home employees to fire department volunteers.  The Affiliate has long opposed the increasing use of fingerprint-based criminal background checks in lieu of other means, and these new bills are no exception.  Under H 7444, for example, parents with distant drug histories or felony banking violations would be barred from serving as mentors at their children’s schools, even if they will never be left alone with a child, money, or any other responsibility.  Some of this legislation passed, others did not.  The largest of the bills, seeking to fingerprint nearly all employees of all long-term care facilities, died in committee for the second year in a row.

In addition, ACLU-drafted legislation, H 7878, sponsored by Rep. Edie Ajello sought to bring uniformity to all professional background checks.  The statutes governing background checks vary widely from profession to profession, with some requiring full disclosure of criminal records, while others only search for certain disqualifying offenses.  This legislation died in committee.

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Voting Rights

Prison-Based Gerrymandering (H 7090, S 2218) DIED

When it comes to drawing new voting district lines, any individuals incarcerated at the ACI in Cranston on the day the Census worker comes are counted as living at the ACI – including individuals there for a few days on pretrial detention, individuals serving short sentences, and individuals who will be incarcerated for several years.  Many of these prisoners are not residents of Cranston and cannot vote in Cranston after their release from the ACI, yet the districts are drawn as if they could; Cranston is therefore overrepresented in the General Assembly while the districts from where the prisoners come are underrepresented.  In fact, under the new redistricting plan adopted this year, 15 percent of House District 20 is comprised of prisoners who likely cannot vote in Cranston.  Legislation sponsored by Representative Anastasia Williams and Senator Harold Metts sought to restore representation in Rhode Island to “one person, one vote” by requiring that, for the purposes of redistricting, prisoners are identified as living at their last known address. Unfortunately, this bill failed to move out of committee this year.

Election Reform (H7113) DIED

Perennial legislation, drafted by the ACLU and sponsored by Representative Edie Ajello, sought to reform a number of Rhode Island’s practices in relation to elections.  In order to ensure that every vote is counted and that the process is done in an open and transparent manner, the bill hoped to increase the number of provisional ballots counted, subject the Board of Elections to the Administrative Procedures Act, and clearly permit the activities of polling place monitors on election day.  Although election reform is even more critical in light of the new voter ID process, the bill failed to move out of committee.  Read our written testimony here.

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The "War on Drugs"

Drug Court (S 2770A) PASSED

The General Assembly approved legislation amending the duties of the Drug Court magistrate, and altering which individuals are eligible for participation in the court.  Although the ACLU supports the values and purpose of the drug court, the Affiliate testified that there were a number of concerns raised by the proposed changes.  Among other changes, the legislation will bar from participation in the court those individuals who have previous felony convictions or convictions for delivery of a controlled substance, even though many drug-addicted individuals often turn in desperation to crime, including drug dealing, in order to furnish their habit.  Additionally, the law adopt a post-plea model, meaning that individuals must plead guilty of a crime before participating in the program, and may be incarcerated for long periods of time if they fail to “graduate” from Drug Court.  The ACLU testified that while the Drug Court can be a useful program, these elements of the bill would render the Drug Court ineffective in many cases.

Good Samaritan (H 7248Aaa, S 2841Aaa) PASSED

Legislation sponsored by Representative Frank Ferri and Senator Rhoda Perry will save lives, by protecting from prosecution individuals calling for emergency care in the case of a drug overdose.  Currently, individuals witnessing a drug overdose often refrain from calling 911 out of fear that they will be prosecuted if drugs or drug paraphernalia are found on the scene.  As a result, many individuals who could be saved instead lose their lives to an overdose.  This legislation gives immunity from prosecution for some drug crimes to those who are present during an overdose when 911 is called.  Additionally, the legislation allows individuals who have been prescribed opioid antagonist drugs – used to counter the effects of opioids, and so safe as to have no ill effects even if the person who takes the antagonist is not under the influence of opioids at the time – to distribute these medications to individuals who do not have a prescription.   

Marijuana Decriminalization (H 7092Aaa, S 2253Aaa) PASSED

On June 13, Governor Chafee signed into law monumental legislation decriminalizing the possession of one ounce or less of marijuana, and imposing civil penalties instead of criminal charges against individuals in possession.  Sponsored by Representatives John Edwards and Senator Josh Miller, this legislation is large step forward in rectifying the problems with the “war on drugs”, recognizing that criminal prosecution and potential jail time are inappropriate and failing responses to the possession of small amounts of marijuana. 

Prescription Monitoring Program (S 2763A) DIED
In March, the Affiliate testified before the Senate Health and Human Services committee in opposition to legislation sanctioning the creation of an electronic prescription monitoring database, which will record and make available to law enforcement the prescription information of any individual receiving a medication which appears on the controlled substances list, including some psychiatric medications and low-risk painkillers.  While a prescription monitoring database already exists in Rhode Island, it exists for high-level controlled substances only, and operates with virtually no regulation or oversight.  Currently, law enforcement needs only to certify in writing that they are pursuing an active investigation, and may receive an individual’s entire prescription record.  The ACLU and the Department of Health collaborated on a final version of the bill containing protections for prescription information – and requiring law enforcement to possess a warrant before accessing such information – ensuring patients will be able to obtain necessary medications without harassment or privacy concerns.  This version passed the full Senate, but failed to move out of committee in the House. 

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Youth Rights

High Stakes Testing (H 7413A, S 2274) HOUSE RESOLUTION

In March, the Affiliate testified before the House Health, Education and Welfare committee in favor of legislation to prevent the use of standardized tests as a barrier to graduation.  In 2014, Rhode Island is scheduled to begin such “high stakes testing”, which civil rights and advocacy groups note would prevent approximately 90% or more of special education, limited English proficient, economically disadvantaged, Latino or African-American students from graduating.  Sponsored by Representative Eileen Naughton and Senator Harold Metts, this legislation would not bar districts from administering standardized tests, but would require the tests to be used for their intended purpose: identifying struggling schools and students in order to provide appropriate support and interventions.  Despite vocal support of the legislation by the ACLU and education groups, the bill failed to move out of committee in its original form.  Instead, the House passed a resolution requiring the study and review of standardized testing programs, with recommendations presented to the House in March 2013.  Read our written testimony on the original legislation here.

Mandatory Tobacco Treatment (H 7606, S 2413) PASSED

While tobacco use among teenagers is by no means to be encouraged, legislation passed by the General Assembly mandating participation in a tobacco treatment program for any minor caught using or possessing tobacco products brought opposition from the ACLU and health groups, including anti-smoking advocacy groups.  Mandatory programs generally prove ineffective at combatting tobacco use, and requiring such programs adds another level of involvement for minors with the family court system for youth who have participated in an unhealthy but otherwise harmless transgression.

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