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This week, with so much at stake for our civil liberties, Demand Progress is calling on Senate Leadership to listen to more than 80,000 of our members who demand reform of the Patriot Act.
This Friday and bin Laden's recent death, present our lawmakers with the opportunity to restore our civil liberties. We at Demand Progress have not seen the proper attention paid by lawmakers to implications that the PATRIOT Act has for our nation and our culture. We believe that if we wish to live in a nation of liberty and justice a law like the PATRIOT Act cannot become a permanent fixture in our national character. Please join your voice to ours and sign our petition to Congress: http://act.demandprogress.org/...
Both Democrats and Republicans are seeking to extend provisions of the Act without any meaningful or critical discussion on their merits. An amendment extending warrantless wiretaps and "lone wolf" surveillance has been attached to a bill supporting small businesses, in response to Rand Paul's filibustering a debate-less extension of the Act.
The values of America are based on liberty and freedom, not fear. Let Congress know you still believe this.
The Patriot Act is (again) up for renewal this month. Now remember, it was initially enacted as a supposedly-temporary measure in the wake of 9-11, but more and more of it keeps getting made permanent and the rest has been continually extended for the past decade. With the death of Bin Laden, it's finally time for Congress to bring back the pre-9-11 legal norm, before we decided it was OK to toss out our civil liberties if the "bad guys" were scary enough.
ACLU of West Virginia has taken, and will continue to take, a keen interest in the ongoing debate as to:
What is causing West Virginia's current prison overcrowding problems, and
What policy recommendations and adjustments should be made to truly address this issue?
At yesterday's legislative interim meetings here in Charleston, I had the opportunity to see the curtain pulled back on a couple of deficiencies in current criminal justice policy that need to be corrected.
First, West Virginia provides little in the way of mechanisms to assess risk factors for offenders. This is to say that there is no established system to evaluate persons behind bars who may be candidates for early release and conversely, those offenders who definitely should not be put back out into society.
Such a system, if appropriately implemented could begin to alleviate the state's overcrowding problem by identifying offenders who pose a lesser threat of recidivism and getting them out of prison on a more realistic time line than may otherwise be dictated by their potentially overblown sentencing requirements.
Because West Virginia most likely has a great many non-violent offenders behind bars who either should not be there or who have served enough time, a risk evaluation system, once implemented, would inevitably begin to ease the overcrowding situation. Said system would also benefit society by conclusively identifying offenders who are far too dangerous to be let out of jail.
Secondly, and far more concerning was the issue of offenders who are eligible for parole but are still locked up due to lack of post incarceration infrastructure. This is serious business. The speaker present said he knew of 31 offenders in the system who had already been paroled but were still locked up due to lack of post incarceration options (i.e. things like half-way houses and community corrections programs.) However, he admitted that the number statewide was at least 100 and could be even more.
Even more concerning is a change in the Parole Board's policy that denies a parole hearing for any inmate who does not have a home plan in place upon release. Given that West Virginia's post incarceration infrastructure is inadequate, many prisoners are not able to make certain post incarceration plans. This lack of "what to do with you once you are out" type resources is a question that needs to be addressed by the legislature and hopefully, resources will be dedicated to this problem. However, the current situation demands scrutiny because prisoners who are otherwise eligible for a parole hearing are being flatly denied because of the state's shortcomings in the area of post incarceration infrastructure.
Two serious questions that need to be answered:
How many prisoners in West Virginia have been made eligible for parole but are still locked up?
How many prisoners in West Virginia have been denied a parole hearing due to the Parole Board's new policy which denies hearings to anyone who doesn't have a certain post incarceration home plan?
The study, mandated by legislation spearheaded by ACLU of WV, required law enforcement officers to keep track of certain information during traffic stops. The results more or less sum up what everyone knows has been going on for a long time.
In response, ACLU of WV, in coalition with the statewide chapter of the NAACP, NASW (social workers,) Citizen Action Group, Community Coalition for Social Justice, and the Community Relations Service of the Department of Justice has launched a campaign to address racial profiling in West Virginia.
For those interested in participating in the campaign, there will be opportunities to do so. Initially, I recommend reading the overview of the report to further educate yourself about the issue at hand.
You can also join us on Facebook and keep your eye on this blog, as we intend further address racial profiling until something is done to remedy this blight on West Virginia's Highways.
Seth DiStefano of the ACLU of West Virginia has an important post at the national ACLU blog on an abuse of anti-terrorism laws that endangers the public:
Late on the evening of August 28, 2008, an explosion rocked the Bayer CropScience plant in Institute, W.Va. The incident, which ultimately claimed the lives of two workers and created confusion and panic throughout a community of tens of thousands, has drawn international attention because the chemical plant in question houses methyl isocyanate (MIC). That is the same chemical responsible for the 1984 disaster in Bhopal, India, that claimed upwards of 4,000 lives and has contributed to countless health problems in the region since.
snip
By invoking this little known tenet of Homeland Security law, Bayer CropScience has managed to keep many important documents from the those who have a legitimate right to know what is going on in their backyards, the CSB, and Congress. Released copies of Bayer's PR strategy on how to deal with the incident basically say 'buy time, marginalize the activists, and it will all go away.' Fortunately, local activists and elected officials would not let this one slide. A Congressional subcommittee hearing and public meeting in Institute, W.Va on the matter were recently held.
In an outstanding opinion piece published in the Sunday Gazette, ACLU of WV Legal Director Terri Baur makes quick work of the paltry arguments used to justify random and suspicionless drug testing of high school students who engage in extracurricular activities or drive to school.
I don't get people who try to act indignant about 'illegals' taking West Virginia jobs. We are darn near the whitest state in the union with an undocumented immigrant population so low that it doesn't show up with any significance on our census reports. Granted, there are some parts of the state that have immigrant communities, but the truth is, many of them are here legally, following the demand for their labor and should not be scapegoated.
However, that doesn't some people from jumping on the bandwagon and trying to implement bad policy like that of HB 2871. This Bill would have mandated every employer in West Virginia check the lawful status of every employee against a Department of Homeland Security database that is riddled with errors.
E-verify programs, while they look good on paper, are notoriously inaccurate, often times costing naturalized citizens and immigrants here lawfully their jobs because the databases they rely on aren't very accurate.
This one isn't over yet. While the Bill itself didn't make it out of committee, a resolution calling for the legislature to study the issue passed out and will probably be taken up over the interim session.
It's good to be back on Blue after a long and grinding legislative session. I entertained writing a whole post about the Bills this session that both impacted civil liberties and had traction.
However, given that I am still coming out of my post session funk (it happens to all of us) I have decided to focus on one Bill at a time for the next several days.
All things considered, civil liberties did very well at the Legislature this year in that none of the really bad bills made it through, yet (i say 'yet' because there is talk of resurrecting some bills during the extended session late next month).
However, one suspect piece of legislation did make it through both chambers, so that is where we will start today. It is an interesting political experiment that pairs pre-employment and random drug testing with an unusual ally-Organized Labor.
House Bill 2771 was an initiative to expand the West Virginia Alcohol and Drug Free Workplace Act. Under the originial law, passed just last year, anyone who wants a shot at a State public improvement contract must prove that they have a drug testing program in place that not only provides pre-employment drug testing, but also subjects employees to random tests.
HB 2771 goes even further by mandating that all political subdivisions (counties, cities, boards of public works, etc.) must do the same with their public improvement contracts.
This legislation had an unlikely ally in that the Trade Unions (Affiliated Construction Trades) were the number one proponent of the Bill's passage.
Granted, most construction work can fall under the category of 'safety sensitive' and therefore justify pre-employment and random post-employment testing. However, there are a couple of things here that need to raise some red flags.
First, at the Senate Judiciary committee hearing when this was taken up, the representative from the state labor department couldn't comment on any results the orginal law had rendered. Additionally, he more or less admitted that the state had not been really enforcing the law and had no examples to give the committee. What is a municipality to do if they ask the state how to enforce this properly? They will not be able to give any examples, because they don't really have any.
Second, the original Bill was passed just last session. It would make sense to let that law settle in, see if it is working, find any bugs in the bureaucracy, and iron them out before massively expanding the law to include every political subdivision in the state.
Third, this law is a blatant attempt to squeeze out small contractors from bidding on public improvement contracts. Plain and simple, most small contractors do not have the resources to engage in pre-employment and post-employment random drug testing. It's just too expensive. Given this Bill's prooponents, it is accurate to say that this legislation is a way to leverage small contractors out of the picture when it comes to public improvement contracts.
Finally, the mechanism by which this legislation presents itself is most troubling. Essentially, what we have is a law that says 'if you want to do business with the state, you have to drug test.'
What HB 2771 does is pull more people into that law. What's next, including public defenders under the West Virginia Alcohol and Drug Free Workplace Act? How about Social Workers? See where this could go?
We tried to beat this one, but the backing of Labor shot it through the House like a rocket, and given most of Labor's Bills did not do so well in the Senate this year, my instinct tells me that this one was passed out as sort of a consolation prize.
Ultimately, I do see this one headed for litigation. Someone who gets a window washing or landscaping subcontract on a public improvement project is going to tell the man to get lost when a cup to pee in is place in front of him/her.
After much hype and even its own website, the effort to subject West Virginia's poorest residents as well as those who have been on the receiving end of our country's recession via losing their job to humiliating and unconstitutional drug testing has arrived on the floor of the West Virginia House of Delegates.
Yes, as many will recall, ACLU of WV has been following the efforts of one Eastern Panhandle lawmaker to force recepients of Public Assistance to submit to random and suspicionles drug tests as a condition of their receiving said benefits.
Well, now there is a Bill # to go along with this nonsense. It is officially HB 3007 and was introduced yesterday. If anyone wants a few reasons as to why this initiative is wrong, please start here.
Singling out the poor for this kind of treatment by the government does not comport with the Fourteenth Amendment.
Suspicionless drug testing does not comport with the Fourth and Fifth Amendments.
Forcing the poorest of West Virginians and those who have lost their jobs to pee in a cup as a condition of receiving public assistance is downright inhumane and does not comport with West Virginia values. We look out for eachother. We don't do this kind of meanspirited crap.
Legislative initiatives such as this have been shot down in circuit court elsewhere in the country.
And for the last reason, we have only to look to the words of the Bill's chief sponsor and champion. Drumroll please:
"That is what we should do here, whether it's constitutional or not... Okay, I should not have said it like that."
-- Delegate Craig Blair, R-Berkeley, while urging support for his proposal to require drug testing of those who apply for public assistance. [...]
Her awesomeness leaves me speechless.
John Yoo:)Orange County Something about Berkeley being a hippie magnet.
Update: (by Clem G.) Money quote from Harpers article:
But Yoo musters some defense nevertheless:
These memos I wrote were not for public consumption. They lack a certain polish, I think-would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice.
Of course, under the Judiciary Act of 1789, OLC memos fix government legal policy and are binding on all government agencies. The Justice Department has made a practice of publishing them for more than a century. But Yoo does not feel constrained by these facts when he speaks with the popular media; the facts might complicate things.
For those less familiar with the legislative process, there is something every department must go through every session called a budget hearing. Basically, all the departments (Health and Human Resources, DEP, etc.) all have to take turns explaing how much money they want and why they want it.
Fusion centers started popping up in the American landscape just after September 11th, 2001. The original intent was to create a place where law enforcement agencies could more easily share information from active criminal investigations. The original concept isn't that bad an idea. However, these institutions quickly transformed from intelligence sharing clearinghouses to intelligence gathering centers right here in our back yard.
Suffice to say, the Senators present for the Finance Subcommittee had some pertinent questions (this link takes you to public radio's piece on the situation and is very good) about this institution, and rightfully they should. Military Affairs and Public Safety has requested almost half a million dollars to further fund the Fusion Center here in WV.
Military Affairs and Public Safety representatives insisted that the WV Fusion Center does not actively collect intelligence. We maintain that statement is more spin than substance given the whole point of Fusion centers is to encourage rank and file law enforcement officers to 'be on the lookout' for suspicious activities and to report said activities to the Fusion Center. They cannot legitmately divorce themselves from the collection of the information if local, county, and state law enforcement officials are collecting it on their behalf. What's more, Fusion Centers actively have things for law enforcement officers to fill out called "Supicious Activity Reports." YIKES!!!!
With so much planning going into WV's Fusion Center (the director of the Fusion center actually brought DVD's describing what it is this thing will do), one would think that the people promoting it would have taken time to further educate the legislature before dropping a half-million dollar request on them. By our estimation, West Virginia's Fusion Center dates back to December of 2007 and the ACLU has been actively seeking out information about its governing procedures since April of last year. The government has had plenty of time to be more forthcoming about what is going on here. Their decision to keep this domestic intelligence agency under a cloud of secrecy should be taken into consideration when the finance committees decide how much, if any, public funding they should get.
During the 2004 WV State Legislature, Your ACLU of WV, in coalition with other organizations, passed a racial profiling data collection act which mandated law enforcement agencies collect data on the race of persons they pulled over in addition to whether or not those persons were searched and whether those searches resulted in anything. The rules governing the study were established in 2006 and the results were released earlier this week.
Although nearly 94 percent of the drivers stopped were white, the study found that blacks and Hispanics were at least 1.5 times more likely to be stopped by police. And once stopped, the study found, they were more likely to be arrested or receive a citation. Also, blacks and Hispanics were at least twice as likely to be searched. However, the study showed that once searched, whites were more likely to have drugs and other contraband on them than either blacks or Hispanics.
Many people of color living in the Mountain State (In addition to people of color just passing through) as well as the civil libertarian community do not see the results as especially shocking:
West Virginia NAACP President Kenneth Hale said in a statement that the results aren't surprising. But Hale said it's disappointing to see "that people of color are still being disproportionally singled out to be stopped and searched when they travel on the state's roads."
Franklin Crabtree, executive director of the state's American Civil Liberties Union chapter, said researchers might not be able to say racial profiling exists, but circumstantial evidence suggests it. "This study indicates we civil libertarians have a lot of work to do in West Virginia," he said.
Indeed we do have work to do. Be sure to read the article in today's Daily Mail. If you want to have a more complete understanding of what we are up against, read the comments. If you can, leave one of your own. More to come.
Yesterday, I received a call regarding a legislative proposal that would subject all recipients of welfare based services to random and suspicionless drug testing.
Needless to say, the ACLU of WV is opposed and for good reasons far beyond the outrageous constitutional violations involved.
First of all, there are in fact a great deal of people in West Virginia living on public assistance (specific numbers to come at a later date.) As the economy works its way through the current rut, odds are that more people will be turning to unemployment to weather the storm.
Secondly, from a fiscal standpoint, this idea would almost certainly be counter productive. The cost of instituting a random and suspicionless drug testing program would be substantial, bordering on exorbitant. The state would dole out more in testing than they would come close to saving by removing substance abusers from the rolls.
Third, this is a backwards approach to West Virginia's drug problem. Those with substance abuse problems need access to treatment, not the removal of their food supply.
And while we are talking about that, it is worth mentioning that the people who will truly suffer from this unconstitutional policy will not be substance abusers. No, it will be the poorest of West Virignia children who rely on Welfare based services for daily hot meals that will bear the brunt.
Let's make it clear, singling out the poor for denial of government services is not compatible with 14th Amendment principles concerning equal protection under the law.
The doors open at 7pm and the program begins at 730. In addition to our keynote speaker, Mike German, the program will feature a panel with Delegate John Doyle (D-Jefferson) and Senator Clark Barnes (R-Randolph.)
We are very excited to have this opportunity and are hoping for a good turnout. See you there.
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