State House Forecast for Civil Rights and Civil Liberties

A recent discussion at the BBA addressed the question of what the new 2017-2018 legislative session may hold in store for legislation on civil rights and civil liberties.  We were joined by a truly all-star panel, starting with our moderator, Kate Cook of Sugarman Rogers, who currently co-chairs our Civil Rights & Civil Liberties Section, and who was previously Governor Deval Patrick’s chief legal counsel.  The event also featured:

These four insiders came by to offer their assessments of the hot topics set to be debated at the State House over the next two years (well, year-and-a-half, really, since formal sessions end on July 31, 2018).

For Sen. Eldridge, the focus will be on criminal-justice reform and immigration.  In his continuing role as co-chair of the Harm Reduction Caucus, the Senator will be in a good position to help lead the dialogue on criminal justice, and among his priorities are reform of the bail system, elimination of racial disparities, and repeal of mandatory minimum sentences for drug offenders.  He has also filed the Safe Communities Act, which would prevent the state from offering any support for a potential Muslim registry, prohibit agreements with the federal government to deputize local law-enforcement as immigration agents, bar local officers from taking part in immigration enforcement generally, and guarantee basic due-process rights for people detained on civil immigration violations.  Sen. Eldridge mentioned that he’d earlier that day participated in a rally in support of immigrants at the Irish Famine Memorial in Boston.

Rep. Rushing had his eye cast toward Washington, D.C.  For him, the new Administration — which was just taking shape at the time of this event, held hours before the controversial executive order on immigration was promulgated — offered both challenges and opportunities, and he suggested that there may come a time when the proper response will be for the state to openly defy federal mandates, just as Massachusetts did when runaway slaves arrived here.

Rep. Harrington offered a note of caution on what her colleagues had said, pointing out that the Supremacy Clause makes it difficult for a state to pass a law declaring its intention to disobey a law of Congress — especially when federal dollars are at stake.  Still, she found common ground with Sen. Eldridge on criminal justice, noting that the bail system is part of the comprehensive review of the Massachusetts system being conducted by the Council of State Governments (CSG) Justice Center.  She also said that evidence in support of restorative justice programs, which Sen. Eldridge has championed, is “very compelling”, and she offered her support on not only bail and mandatory minimums but also diversion of cases outside the system, and limits on solitary confinement.

To Rep. Harrington, shared parenting is also a civil-rights issue, encompassing the rights of children to have good relations with both parents.  The focus, she said, should always be on the best interests of the child.  She also brought up the state’s new marijuana-legalization law, noting that bills to make changes to the language passed by voters in November have been filed by seemingly every other legislator.  Her e-mail inbox, she said, was “rolling in marijuana bills” (get it?)

Rep. Rushing pointed out that Blacks use marijuana at the same rate as other groups yet have been convicted on such charges at rates many times higher than others.  In the implementation of the recent medical-marijuana law, he also sees a possible bias — one that has disadvantaged people of color who apply for licenses as providers.  He would like to see the new Cannabis Control Commission reach out to communities that have been historically harmed by marijuana prohibition and, a historian himself, he suggested looking back to the 21st Amendment ending the alcohol prohibition — the last time a controlled substance was legalized — for guidance.

Like Sen. Eldridge, the ACLU will have its eyes on criminal justice and immigration this session.  Their Fundamental Freedoms Act would protect Massachusetts residents from government monitoring by barring state participation in any discriminatory registration system based on religion, national origin or immigration status, and enhancing safeguards for protestors from information-gathering about them based only on protected First Amendment activity.  As Rahsaan Hall put it, “expressions of dissent are patriotic,” and such dissent is a founding principle of America.

He took some issue with the process being followed by the CSG group on criminal justice, calling it “a little short-sighted” in its focus on reducing recidivism without giving due consideration to how people enter the system.  The pressure is thus on advocates to build on that, such as by addressing racial disparities — which, he argued, will remain a feature of the system until direct action is taken.

To this, Rep. Rushing said he’d filed two bills calling for greater collection and uniformity of data.  Rep. Harrington asked how best to tweak laws that aren’t facially discriminatory yet have that outcome.  If the system is structurally biased, that’s what happens, said Rep. Rushing, who said fixes can include requiring police officers to hand out business cards upon any public interaction, providing better training of officers in handling such stops, and video-recording all stops.

Although Black and Latino residents make up only 21% of the state’s population, they comprise 75% of state inmates serving drug-related mandatory minimum sentences.  We must, Hall said, identify and analyze the drivers behind those figures.  And to those who would point to Massachusetts’ low incarceration rate compared to other states’ to make the case against reforms, Hall alluded to the U.S.’s position as an extreme outlier among developed nations, warning, “Let’s not celebrate being the best of the worst.”

Look at the effect of school-zone laws — tacking on additional mandatory jail time for drug offenses near school, parks, and playgrounds — said Rep. Rushing, calling it “straight-out racial punishment in cities.”  As an example, 90% of Boston land falls within such a zone, far more than in suburban and rural communities.  And let’s dispense with viewing marijuana as a gateway drug for users, he said.  Instead, it’s a gateway drug for sellers, “who’ll sell [marijuana users] something else as soon as they can” — something “incredibly dangerous”.  According to Rep. Rushing, taxing it like alcohol will end that black market; taxing it more heavily, like cigarettes — that is, as a way to get users to stop — will not.

For her part, Rep. Harrington remained unmoved.  Legislative hearings, which she attended in her role on the Judiciary Committee, offered no convincing evidence for legalization, and the Legislature’s delegation to Colorado, which preceded the Commonwealth down that path, learned of a panoply of problems in that state.  For example, we have no measurement tool for drivers impaired by marijuana, adults will get high at inappropriate times (such as while watching their kids) simply because it’s now “OK”, and the lack of any restriction on marketing edible doses will also have negative consequences.  In the end, for her, this question is not even a civil-rights issue.

Cook closed by asking the panelists how else they were seeking to protect civil rights and Massachusetts values.  Hall spoke about electronic-privacy protections and access to reproductive health care.  Rep. Rushing mentioned his efforts to repeal a variety of unconstitutional statutes that remain in the Massachusetts General Laws and thus can potentially find new life — such as existing anti-abortion laws that could go back into effect if Roe v. Wade were overturned.  Rep. Harrington returned to the immigration issue, saying we have to “walk a tightrope” between enforcement and protection of rights … at least until the federal government takes responsibility for it.  And Sen. Eldridge brought up protection from the impact of climate change and development of renewable energy.

We came away with a better understanding of the debates to come in Massachusetts.  Meanwhile, just in the days since this discussion, events at the federal level have conspired to put civil rights and civil liberties front and center of a national debate as well.

—Michael Avitzur
Government Relations Director
Boston Bar Association