PubliCola Report: How Did Civil Liberties Do in Olympia This Year?

By Josh Feit April 20, 2009

An alarming article in Saturday's NYT reported that states are expanding the power of law enforcement to collect DNA —adding those suspected (not just those convicted) to the list of people police can pluck DNA samples from. The NYT reported:

Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted.

The Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants...

Law enforcement officials ... point out that DNA has helped convict thousands of criminals and has exonerated more than 200 wrongfully convicted people.

But criminal justice experts cite Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.

While the Washington state legislature did pass a bill last year (joining 15 other states) expanding the list of crimes that the police could swab for, Washington is not on the list of 15 states that allow people who haven't been convicted to surrender their DNA to the state.

Although, it's not for lack of trying. This session Rep. Mark Miloscia (D-30, Federal Way) tried to pass a bill that would have given the the police the  power to take DNA upon arrest. The bill also tried to further expand the list of DNA-level crimes to include misdemeanors like assault four, which amounts to shoving. The bill never came to the floor.

The Senate, however, did pass a bill—sponsored by Sen. Debbie Regala (D-27, Tacoma)—that gave the police the power to take DNA if the suspect was originally charged with a DNA-level crime (like rape), even if the suspect was eventually convicted of a lesser, non-DNA level crime. This change, civil liberties advocates argued, would have given the police an incentive to overcharge. The bill died in the House.

These quiet victories were one of many that Shankar Narayan, ACLU of Washington's Legislative Director, cited in what he called a "surprisingly good year for civil liberties" in the 2009 legislative session.

PubliCola sat down with the Yale-Law-educated Narayan late last week—as this year's legislative session in Olympia wound down—to find out how your civil liberties faired in the halls of the legislature this year.


ACLU Legislative Director, Shankar Narayan

Other potential infringements on civil liberties that the ACLU fended off this year included: 1) Narrowing a bill that would have given any employer the right to a worker's driving records to just those employers where driving records are germane—ACLU ally, Rep. Roger Goodman, (D-45, Carnation, Woodinville, Duvall, Redmond, Kirkland) pushed the important amendment; 2) Making sure any future tolling legislation (like on 520) will come with explicit language that it's illegal for anyone besides the state to track the info relayed from your car's transponder—and further, specifying that the state has to get rid of the info once your billed; and finally, 3) the ACLU torpedoed an amendment to a bill that would have given Courts the power to go after a suspect's driving record. "We had due process concerns," Narayan says. "The judge is not supposed to be conducting their own investigation. They're supposed to judge on the evidence presented by the prosecutor."

It was more than good defense that made it a successful session from the ACLU's point of view. Narayan ticked off several proactive victories, where citizens' civil liberties were expanded: 1) There was Sen. Ed Murray (D-43, Capitol Hill) and Rep. Jamie Pedersen's (D-43, Capitol Hill) bill that filled out the list of rights and responsibilities for domestic partners—making gay couples equivalent under the law to married couples; 2) a Sen. Jeane Kohl-Welles' (D-36, Ballard) and Rep. Jeannie Darneille (D-27, Fife)  bill that restored voting rights for felons once they'd served their time (current law doesn't restore voting rights until former felons pay off all their legal bills—an obstacle that keeps former felons disengaged and works against recidivism rates, Narayan explains; 3) a Sen. Jeanne Kohl Welles' bill that prevents community  and municipal sports facilities like soccer fields from giving priority to men (it's sort of a Title Nine rule for grown ups); 4) a Sen. Claudia Kauffman (D-47 Covington) bill mandating that—in this era of GPS, OnStar, and digital dashboards—drivers own all the information that cars generate about where they drive and how they drive; and finally, 5) another  Sen. Jeanne Kohl-Welles' bill (Hey there, civil liberties legislator of the year!)—this one stops the state from being forced to apply for abstinence-only education funding.

But before you conclude that Washington state is a Free To Be You and Me paradise, Narayan did flag a couple of bills that scaled back civil liberties. There's a Rep. Miloscia bill that tries to stop candidates from making defamatory statements about opponents. This chills speech and makes the state Public Disclosure Commission (rather than the courts) an arbiter of free speech, the ACLU argues. And it doesn't help that the PDC is a state agency under the direction of incumbent legislators.  And there's a bill curtailing public records requests by inmates. It's not necessarily that some inmate requests don't constitute harassment, but as Narayan points out, lots of people file harassing records requests—why create a special law for a certain class? That's a violation of equal protection. Why not write a law that judges the request itself, not the individual filing it?

There were two losses on drug reform: A bill to decriminalize small amounts of pot got snuffed by House Democratic leadership. And a bill that limited immunity for people seeking help in drug overdose cases, failed.
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