The rocky road of defending civil liberties in Harrisburg

"Later, y'all! Y'inz! You guys!"

The last trickle of activity in the spring session of the Pennsylvania General Assembly carries on tomorrow, as the state Senate finishes some budget-related matters. The state House has already left town. And there's no truth to the rumor that they were run out of town on a rail. That's not even possible since they didn't invest anything in rail.

In the final weeks of June, all was largely quiet on the civil liberties front at the state capitol. That's a good thing. When the legislature starts screwing with civil liberties, it usually ends badly.

And it did end badly for women's access to reproductive healthcare. On June 17, Governor Corbett signed House Bill 818. This bill prohibits insurance companies from covering abortion care in policies in the insurance exchange, or marketplace, created by the federal healthcare reform law. Narrow exceptions exist only for rape, incest, and imminent death of the woman.

I've been trying to decide which is the most scandalous aspect of this story. Is it the state government meddling in a private transaction between a private company and a private customer, under the flimsy excuse that the exchange is administered by the government? (The federal government, mind you. The Corbett administration opted out of administering the exchange at the state level.) The supporters lamely claim that insurance coverage from Blue Cross is equivalent to Medicaid.

Is it the lack of a health exception that the Senate defeated, 24-26? Some women have serious complications in pregnancy that can lead to health problems but not death and that are best avoided via abortion. If a woman faces that crisis and has insurance through the exchange, sorry, she has to pay out of pocket. Here is how that vote went down.

Or is it the inability of the General Assembly to pass an infrastructure investment and repair bill (author's note: not a civil liberties issue) while finding the time to restrict women's access to comprehensive reproductive healthcare? Hey, a bridge might collapse, but at least they found time to restrict abortion!

Here at ACLU-PA HQ, Harrisburg, we're gearing up for summer work with legislators and staff on revising the child protective services law and revisions to the Right to Know law.

And here's something to look forward to in the fall: A storm is brewing over privacy and mass data collection, specifically in legislation to collect DNA from people who have not been convicted of a crime and to create a new database of Pennsylvanians' prescription drug use. These are issues where ACLU-PA gets to flex its nonpartisan cred by working with Republicans and Democrats who recognize that we do not want to go down the road of a Total Information Society.

So our legislators are (almost) out of here for the summer. They can enjoy their recess with the knowledge that their constituents will think of them everytime they bounce off a pothole in the middle of state route (fill in the blank). And we can rest assured that civil liberties are safe for the next two months. See you in September....

State legislature, governor re-victimize victims: Part Two

The new sexting law is not the only way in which the General Assembly and Governor Corbett have harmed victims recently. They also managed to pass a new law that does nothing for victims of sexual assault while ratcheting up the hysteria over HIV-AIDS.

House Bill 1794, now Act 201 of 2012, passed the legislature two weeks ago and was signed by the governor on Thursday. This new law allows a district attorney to seek and a judge to order a forced HIV test of a person arrested for sexual assault. (The ACLU of PA supports universal HIV testing but opposes forced testing of anyone.) The DA must seek the order in consultation with the victim.

That sounds great on its face. Right, only to people who know nothing about HIV. The Centers for Disease Control and Prevention has a recommended protocol for people who may have been exposed to HIV. It involves a regimen of drugs known as post-exposure prophylaxis, or PEP. PEP reduces the chances that a person will contract HIV after possible exposure.

This drug regimen must be started within 72 hours of the exposure. Ideally, it is started within 2-36 hours. What are the chances that a suspect is arrested, the DA consults with the victim, the DA seeks the order, a judge issues the order, an HIV test is administered on the arrestee, and the results are returned within 72 hours? Slim to none.

This new law is also based on the false idea that everyone who is arrested must be guilty. Google "innocence project" and you'll know that's not true. According to the Innocence Project, "there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused."

Imagine this nightmare scenario. The DA has arrested the wrong person, and he's HIV positive. What kind of additional trauma will that place on the victim? Or imagine that they've arrested the wrong person and he's HIV negative, giving the victim a false sense of security.

People with HIV can also test negative. In the first six weeks to six months that a person has contracted the disease, he or she tests negative. This is also the time in which the person is most likely to transmit the disease because his viral load is high.

There is another factor here, a fact that is little discussed. Transmission of HIV is relatively rare. According to one study, a person with HIV will transmit the disease to a partner once in every 900 unprotected sexual encounters. According to the CDC, transmission by consensual vaginal intercourse is 0.1%-0.2% and by consensual anal intercourse is 0.5%-3%. (Transmission rates by sexual assault are not known.)

Of course, safe sex is extremely important to slow the spread of HIV. But this new law is based on the false idea that exposure equals transmission. It does not. 

According to a 2009 survey by the Kaiser Family Foundation, 51 percent of people would be uncomfortable having their food prepared by someone who is HIV positive. This law is based on the same wrong-headed attitude toward HIV. It furthers the hysteria around HIV, and that leads to those living with the disease to be further ostracized and isolated.

Sexual assault victims need the best care possible, and that care comes from medical professionals, not DAs or judges.

Learn more about the ACLU's work on HIV-AIDS by visiting the webpage of our AIDS Project.

State legislature, governor re-victimize victims: Part One

For all of the rhetoric around crime victims' rights at the General Assembly, it's hard to believe that any legislation that harms victims could ever be passed. But that's exactly what happened two weeks ago. And it happened twice.

Two weeks ago, the legislature passed House Bill 815, and the governor signed it on Thursday, now Act 198 of 2012. This bill creates a new crime of teen "sexting." You're probably familiar with sexting by now, but if not, it is a term used to describe a wide range of activity that involves photos, sex, and electronic communication. Basketball fans, think Greg Oden.

Act 198 creates summary and misdemeanor offenses that involve sexting by kids between the ages of 13 and 17. The charge is based on the circumstances of the activity.

Imagine this scenario. Two 17-year-olds are dating and send pictures of themselves in various stages of undress. Newsflash: Teens are clumsy with their sexuality. Teens have been exploring their sexuality since our species evolved and don't always do it in a mature way. That's not exactly earth-shattering news.

So she dumps him. In anger, he sends her semi-nude photo to the entire school. She's a victim of abuse, right? Well, under Act 198, she's a criminal because she produced the photo and sent it to her then-boyfriend. She could be charged with a summary offense.

There have been some tragic incidents that have involved teens sexting. And the supporters of HB 815, including the Pennsylvania District Attorneys Association, have used these incidents to push for this bill. The DAs used these incidents in which kids were abused to push for a bill- now law- that will criminalize these victims, which will only compound their suffering. Incredibly, some so-called victims' advocacy groups supported the bill, too.

Supporters of HB 815 claim that all sexting by teens (under the age of 18) is currently felony child pornography, even if the person in the photo also produced it. The DAs think that if they say something is a crime, then it's a crime. 

They fail to respect the role of the judge in our judicial system. Not a single court in Pennsylvania has upheld a felony charge in a sexting situation. Not one.

So, parents, make sure that sexting is part of The Talk with your kids. And in Pennsylvania, be sure that they understand that sexting, even if it's consensual, could lead to a visit from their local DA, who apparently is more concerned about what teens do in their bedrooms than he is about real criminals.

A second post is coming about how the legislature and the governor harmed victims with ill-advised legislation.

Can you take action to save a man's life?

Terry Williams at the age of 17.

It's been 13 years since anyone was executed in Pennsylvania. In the 1990s, three men voluntarily ended their appeals to accept death. It has been 50 years since anyone was involuntarily executed in the commonwealth. This, despite a bursting death row with more than 200 people, the fourth-largest death row in the country.

Terrance "Terry" Williams is at risk of being the first person executed against his will in Pennsylvania since John Kennedy was president.

The basic facts of Terry's case are not in dispute. In 1984, just a few months after his 18th birthday, he killed Amos Norwood in Philadelphia. Less than a year earlier, while he was still 17, Terry killed another man, Herbert Hamilton.

But there were key facts in Terry's case that the jury never heard, facts that may have convinced the jury to spare his life. Terry had been a victim of repeated sexual assault since the age of six, and his two victims had been abusing him. His trial attorney never investigated these facts, so the jury never heard them.

This case was and is a tragedy in every sense. Several jurors recently stated that they would have ruled for a life-without-parole sentence for Terry if they had known these facts. Some jurors have also said that they opted for death because they mistakenly believed that a life sentence would afford Terry a parole opportunity. Death and life-without-parole have been the only sentencing options for first degree homicide in Pennsylvania since the 1920s.

Terry's appeals options are exhausted, and his execution is scheduled for October 3. His attorneys are now asking the pardons board and Governor Corbett to commute Terry's sentence to life-without-parole. To be successful in that arena, the pardons board must first unanimously recommend a commutation. Governor Corbett must then agree and grant the commutation.

Support for commutation is strong and broad. Supporters include Norwood's widow, several jurors, 22 former prosecutors and judges, 34 law professors, 40 mental health experts, and more than three dozen faith leaders, including the Roman Catholic Archbishop of Philadelphia, Charles Chaput.

How can you help? Contact Governor Corbett directly and ask him to support clemency for Terry Williams. Sign the petition in support of clemency that currently has nearly 14,000 signatures. And learn more about the case at a website dedicated to Terry's plea for clemency.

Take action. A man's life depends on it.

Greetings from Harrisburg, state budget edition

This week we react to Governor Corbett's mention of overcrowded state prisons in his budget address and give a preview of an expected House vote on House Bill 317, expanding the death penalty to add two new aggravating circumstances.



As always, you can check out our latest statements on civil liberties-related legislation at our legislative webpage.

Update, 5:34pm: Here is what Governor Corbett said about prisons during his budget address:

Last month my administration cancelled a prison project in Fayette County because we don’t need it and we can’t afford it. We also can’t afford to ask counties in our state to subsist on a prison-based economy. We need industries that generate wealth, not sorrow...

In 1993, Pennsylvania had 24,000 men and women in its prisons. Today that number is over 50,000. This number speaks to a failure. Sometimes it’s a failure in our schools, or in our society, but ultimately in the personal character of the criminal.

We need to fund additional parole officers to help freed inmates make the transition from the prison yard to Main Street. We need to think smarter about how and when and how long to jail people.

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see YouTube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU of PA's privacy statement, click here.

Some thoughts from last night

As you know, the ACLU is a non-partisan organization. Both Republicans and Democrats annoy us.

But something struck me last night while watching the election returns. John King of CNN made a comment that the Republicans cannot be a viable national party if the Democrats win 60-plus percent of the Latino vote.

Once again, it became clear that being anti-immigrant just doesn't fly with the electorate. Three different races from the last two election cycles prove it. In northeast PA, Hazleton Mayor Lou Barletta lost in his effort to topple incumbent Rep. Paul Kanjorski, after Barletta made a national name for himself with his unconstitutional ordinance on immigration. In the state's attorney general race, Northampton County DA John Morganelli lost to incumbent Tom Corbett, after years of Morganelli stridently supporting anti-immigrant proposals. And, of course, two years ago, Rick Santorum had his hat handed to him by Bob Casey, despite Santorum's claim that Casey supported "amnesty".

Public officials from both parties can try to split hairs over what their anti-immigrant proposals mean. They claim they support immigration and oppose illegal immigration. But the fact is that Latinos see an attack on some of them as an attack on all of them. I know because my wife is Latina and we have numerous Latino friends, and they all feel the same way about what has been going down on immigration the last few years.

Before I knew about Barletta's loss, I thought this might be more of a statewide phenomenon and that candidates might be able to get away with it depending upon their district. But Barletta's defeat proves that may not even be true.

CNN's King also commented, in reference to suburban Philly, that the GOP will continue to lose if the Ds win the suburbs with 60-plus percent of the electorate. When he said that, my thoughts immediately turned to LGBT issues. When we deal with state LGBT initiatives, our swing votes always come from the Philly and Pittsburgh suburbs, and to a lesser extent the suburbs of a few other cities. Being anti-gay doesn't appear to fly either (see: Man-on-Dog Santorum).

Unfortunately, we did take some losses on LGBT rights in Arkansas, Florida, Arizona, and probably in California. These are all stinging defeats. While we know that in the long-term we continue to move closer and closer to LGBT equality, rolling back these constitutional amendments is going to be challenging and is going to require a lot of hardwork, sweat, and tears.

For a rundown on all of the state referendums on civil liberties issues, including victories on drug law reform and reproductive rights, visit national's blog.

Andy in Harrisburg

The power of the district attorney

I have a Google Alert for the phrase "death penalty Pennsylvania." Whenever these words come up in the media, I get an email with a link to the article.

Yesterday this came up:

DAs Running Wild
TomPaine.com - Washington,DC,USA
While former Durham District Attorney Mike Nifong is no longer free to deny justice to other defendants, the prosecutors in many of those death penalty ...

This drew my attention. What happened to Mike Nifong in Durham, NC, was an aberration. Usually when district attorneys behave badly, nothing happens. Sometimes they even get promoted.

Much to my surprise, the authors of the article were Christopher Hill and William Webster of the ACLU's Capital Punishment Project:

While the Duke players faced a real risk of going to prison, there are other citizens of North Carolina and elsewhere across the country who have faced even greater risks because of prosecutorial misconduct, who have been sent to death row and even been executed. While former Durham District Attorney Mike Nifong is no longer free to deny justice to other defendants, the prosecutors in many of those death penalty cases are still allowed to practice law. State ethics boards have, in effect, allowed death before disbarment.

While Mike Nifong deserved what he got, there are many more DAs and ADAs who deserve the same fate. Some of them are working in DA offices in Pennsylvania.

The article goes on to mention the case of Dennis Counterman of Allentown. Then-ADA Richard Tomsho withheld at least seven pieces of evidence that pointed to Counterman's innocence in the house fire that killed Counterman's three sons. With that crucial evidence hidden from the defense, Counterman landed on Pennsylvania's death row. It was only after 18 years in prison that Counterman finally found a twisted form of justice when he was released after winning a new trial and then taking a plea bargain.

(Paul Carpenter of The Morning Call of Allentown effectively took Tomsho to task in a column last fall.)

And Tomsho? He now works for Attorney General Tom Corbett. There are rumblings that Corbett wants to run for governor. If Corbett hires someone like Tomsho for his AG staff, who would he hire for his gubernatorial staff? Tony Soprano?

Andy in Harrisburg