Civil Liberties in the State Legislature - 2018 Legislative Session

The short session of Washington State’s current biennium began on January 8, 2018, and concluded on March 8, 2018 (the first session in recent history that ended on time). More bills were introduced this biennium than any other: over three thousand six hundred. In 2018, the legislature tackled many issues that affected civil liberties and passed both good and harmful legislation. Below are highlights, both good and bad, separated by subject matter.

Criminal Law

Ending Debtors’ Prisons – HB 1783
Passed into Law, Effective June 7, 2018
Legal Financial Obligations (LFOs) are the fees, fines, costs, and restitution imposed by courts on top of all felony and misdemeanor sentences. Interest accrues at 12%, even while a person is incarcerated. The system does not take into account a person’s ability to pay, resulting in unfair burdens on people of limited means – including being jailed for nonpayment. HB 1783 reforms Washington’s counterproductive LFO system. The ACLU supported this bill because it prohibits collection of other fees and fines until restitution obligations are fully satisfied, sets clear standards for determining a person’s ability to pay, eliminates interest on non-restitution LFOs, stops accrual of interest during incarceration, prohibits courts from jailing people for their inability to pay, and prohibits collections from a person’s needs-based public assistance income
Repealing the Death Penalty – SB 6052
Passed the Senate, did not pass the House
The death penalty has failed Washington as a public policy. It is very costly, fails to provide swift and certain justice or deter crime, and is not applied fairly. Instead of trying to fix an unfixable system, the legislature should repeal Washington’s death penalty. The ACLU supported SB 6052 because the death penalty is expensive, ineffective, and arbitrary and cannot be fixed. 
Decriminalizing Driving While License Suspended3 – SB 6189, HB 2481
Did not pass either chamber
Driving While License Suspended3 is the most commonly charged crime in Washington. It unnecessarily clogs our courts and wastes criminal justice resources. Taxpayers spent more than $1.3 billion between 1994 and 2015 on the filing of nearly 1.5 million DWLS3 charges, resulting in nearly 900,000 convictions. In 2015 alone, there were nearly 40,000 DWLS3 charges filed, costing taxpayers more than $42 million. SB 6189 would decriminalize DWLS3. The ACLU supported this bill because civil remedies and relicensing programs are effective and hold people accountable without draining criminal justice resources.
Fair Chance Act – HB 1298
Passed into Law, Effective June 7, 2018
Allowing people with prior convictions to have expanded access to employment opportunities benefits all of us. The Fair Chance Act prohibits employers from including questions about criminal history in applications or receiving criminal history through a background check until after the employer determines that the applicant is otherwise qualified. Once this determination has been made, the employer may inquire into or obtain criminal history information. The ACLU supported this bill because it is unfair to keep qualified individuals out of the workplace simply because of their prior convictions. In fact, excluding such individuals deprives communities of resources and income.
Pre-trial Programs – SB 5987
Passed into Law, Effective June 7, 2018
SB 5987 expands the pretrial release conditions that can be imposed in criminal cases. Currently, a person accused of a crime can only be held before their trial if there is a risk he or she will commit a violent offense; is a flight risk; or would interfere with the administration of justice. SB 5987 allows for pretrial detention if needed to “protect the public from harm.” The ACLU opposed SB 5987 because the creation of this broad new standard will likely result in significant increases in pretrial detention and mass incarceration.
Initiative 940 & HB 3003
Passed into Law, Effective June 7, 2018 & June 8, 2018
The ACLU endorsed and supports Initiative 940 because the initiative’s provisions will positively impact communities in Washington state. Washington’s current law governing the use of deadly force requires a showing that an officer acted with malice  and makes it nearly impossible to hold an officer criminally accountable in situations where  everyone agrees the conduct clearly was negligent or reckless. The initiative prioritizes training, adjusts the law governing the use of deadly force to bring it more line with the rest of the country, and will ensure that any investigation into the use of deadly force is impartial. Initiative proponents and law enforcement negotiated HB 3003 in order to realize another critical goal of the initiative: improved relationships between community and law enforcement as well as increased safety for all.

Drug & Mental Health Policy

Opioid Disorder Treatment, Prevention, and Services – HB 2489
Passed the House, did not pass the Senate
Requested by Governor Inslee, the legislation is in response to Washington state’s opioid epidemic and an alarming number of overdose deaths. The bill touches on a variety of opioid related policy issues including increasing access to medication assisted treatment (MAT) and naloxone. The ACLU supported HB 2489 because MAT is the gold standard for treatment, greatly reducing the risk for overdose, and naloxone is a literal life-saver and should be made available far and wide.
Opioid Medication at Schools – HB 2390
Passed the House, did not pass the Senate
Naloxone is a life-saving opioid overdose reversal drug that should be made available in all settings, including schools, and should be treated like an over-the-counter drug whenever possible. The ACLU supported this bill because it would create new guidelines for schools that make naloxone available for opioid overdose situations. Further, the Office of the Superintendent of Public Instruction, in consultation with the Department of Health, would be directed to develop overdose policy guidelines, training requirements, and reporting requirements. 
Assisted Outpatient Behavioral Health Treatment – SB 6491
Passed into Law, Effective June 7, 2018
SB 6491 greatly expands the state’s ability to use “Assisted Outpatient Treatment,” which is treatment overseen by a court, for people with mental need and substance use disorders. The ACLU opposed this bill because evidence shows that Assisted Outpatient Treatment does not work. Voluntary treatment has been shown to be effective; adding coercion could chill individuals from seeking treatment for fear of being put under a court order. Washington state would be better off providing robust community-based services on a voluntary basis, which is what the evidence shows works best.  
Video Trials – SB 6124
Passed into Law, Effective June 7, 2018
SB 6124 permits involuntary commitment hearings to be conducted by video. Involuntary commitment is the civil confinement of an individual who, as a result of mental illness, is either gravely disabled or presents a likelihood of serious harm.  The ACLU opposed this bill because involuntary commitment and involuntary medical treatment are serious deprivations of liberty requiring strong due process protections. Participating by video is not equivalent to appearing in person, particularly for individuals experiencing severe mental illness, who face particular challenges when trying to communicate by video. 
“Felony Flip” – SB 6466
Did not pass either chamber
SB 6466 changes procedures surrounding “felony flip” or “gap” cases where individuals who have been charged with a violent crime, but found incompetent, are transferred to civil commitment. The ACLU opposed this bill because it could lead to years of involuntary commitment for people who have not been found guilty or to have committed a crime through the use of watered-down commitment standards that do not comply with the constitutionally required provisions in the Involuntary Treatment Act. 

Free Speech

Freedom of Expression in Schools – SB 5064
Passed into Law, Effective June 7, 2018
SB 5064 will protect the freedom of speech of high school students and students in public colleges and universities. Students do not lose their free speech rights when they step on campus, and school should be a place where students engage in robust debate with others who have different viewpoints. The ACLU supported this bill because it clarifies that high school students and students at public institutions of higher education have the right to freedom of expression in school-sponsored media.  There are exceptions for libel, expression that incites violations of school regulations or material and substantial disruption of the orderly operation of the school, and speech that is an unwarranted invasion of privacy or violates federal communications regulations.
DISCLOSE Act – SB 5991
Passed into Law, Effective June 7, 2018
The DISCLOSE Act is intended to attack the growing involvement of nonprofit advocacy organizations in elections. It requires all nonprofits that spend or contribute more than $25,000 on political campaigns, and that have a least one donor of $25,000 or more, to register as an “incidental committee.” There is no examination of how substantial a portion of the entity’s total activities is devoted to elections. The ACLU opposed the DISCLOSE Act because, under its broad language, arguably anything a nonprofit spent on a matter of public concern would count as a contribution even if not given directly to a candidate or campaign. Speakers who are attempting to comply with SB 5991’s reporting requirements may opt not to speak, rather than risk running afoul of the law. The risk of being forced to disclose membership lists will improperly chill legitimate speech by organizations on matters of great public concern. We should encourage more public debate on these matters, not discourage it.
Legislative Records – SB 6617
Vetoed by Governor Inslee
Just as the public has a strong interest in knowing how agencies implement laws, the public has a strong interest in knowing how the laws are created in the first place, and how they are enforced. SB 6617 would have recognized that certain legislative records are public records, and enforcement would have been internal to the legislature. The bill purported to provide a Public Records Act analogue for the legislature, but it had no meaningful enforcement mechanism, and would have created parallel exemptions, which appeared to be overbroad. The ACLU opposed this bill because its provisions raised concerns for governmental accountability. 

Immigrants’ Rights

Keep Washington Working – SB 5689, HB 1985
Did not pass either chamber
The Keep Washington Working Act would limit state and local entities, including law enforcement agencies, from cooperating or assisting with immigration enforcement activities. The ACLU believes that state and local entities should serve Washington residents regardless of immigration or citizenship status rather than enforcing federal immigration laws. State and local involvement in immigration enforcement makes all of us less safe by deterring some Washington residents from coming forward and reporting crimes and other public safety concerns.
Higher Education Opportunities – HB 1488
Passed into Law, Effective June 7, 2018
HB 1488 will extend state financial aid resources for higher education (College Bound Scholarships, Opportunity Scholarships) to more undocumented Washington residents, regardless of whether they have DACA status. This bill codifies existing practice for students with DACA status because their futures should not hang on the vagaries of changing federal policy. The ACLU supported HB 1488 because undocumented students deserve the same access to higher education as other students.
Crime Victim Participation – HB 1022
Effective June 7, 2018
HB 1022 will establish procedures for assisting crime victims who are immigrants without placing them in jeopardy because of their immigration status. The ACLU supported this bill because it promotes the health and safety of every community by ensuring that people can engage with law enforcement and access services regardless of their immigration status. 

Juvenile Justice

Teen Sexting – SB 6566
Passed Senate, did not pass the House
The ACLU strongly supports SSB 6566, which would reconcile the initial intent of child pornography laws with the impacts of modern technology. Teenage “sexting” (the consensual exchange of explicit messages through electronic messaging) is increasingly common. Under Washington law, teenagers who send or receive sexually explicit messages and images can be charged with distribution or possession of child pornography—class B felony offenses that carry the penalty of sex offender registration. However, child pornography laws were intended to protect youth from predators, not to enable harsh penalties for common adolescent behaviors. This bill creates a common-sense approach to teen sexting that focuses on minimizing harm, and it invests in developing evidence-based prevention and intervention strategies to reduce the harms that may be associated with teen sexting.
Exclusive Adult Jurisdiction – 6160
Passed into Law, Effective June 7, 2018
The ACLU has long opposed automatic prosecution of youth as adults and opposes long sentences to prison for juvenile offenders. SB 6160 eliminates the automatic decline (transfer into adult court) of youth charged with 5 offenses, limits discretionary decline of youth to those charged with serious violent offenses, and prohibits the decline of children under 14 unless they are charged with the most serious crimes. These provisions will go a long way towards ensuring that children are treated as children, consistent with the Constitution, case law, and all of the scientific research on adolescent brains.
Diversion – 6550
Passed into Law, Effective June 7, 2018
SB 6550 allows for diversion from the criminal justice system for more youth and for more offenses, creating much-needed flexibility. The ACLU supports diversion, including restorative justice and public health approaches, to behavior that harms the community. The bill permits referral to community-based programs and restorative justice programs and encourages prosecutors to engage with community-based organizations to increase diversion options. SB 6550 recognizes that young people are capable of change and are particularly responsive to support and intervention. 


LGBTQ Rights

Uniform Parentage Act – SB 6037
Passed into Law, Effective June 7, 2018
The Uniform Parentage Act defines different types of parents and the factors and court process for determining parentage. The bill establishes law for surrogacy agreements, including compensated surrogacy, and creates a process to assess allegations of sexual assault resulting in parentage. The ACLU supports the right of individuals to make their own reproductive health decisions and supports the legality of paid surrogacy agreements. 
Conversation Therapy Ban – SB 5722
Passed into Law, Effective June 7, 2018
SB 5722 prohibits licensed health care providers from performing conversion therapy, which seeks to change an individual's sexual orientation or gender identity, on a patient under the age of 18. Conversion therapy is harmful to LGBTQ people, and the risks are greater for youth. Leading professional medical and mental health associations have rejected conversion therapy as unnecessary, ineffective, and dangerous. SB 5722 is necessary to ensure that licensed health care providers provide competent care and do not harm patients.


Privacy & Technology

Net Neutrality HB 2282
Passed into Law, Effective June 7, 2018
In 2018, the Federal Communications Commission reversed a 2015 order, which established service rules and prohibiting blocking, throttling (i.e., slowing down websites), and the use of paid prioritization. HB 2282 requires broadband providers to disclose accurate information about terms of service and prohibits broadband providers from content blocking, throttling, paid prioritization, or other kinds of discrimination against particular content, apps, or providers. The ACLU supports net neutrality because it is important for the protection of all of our constitutional freedoms, including freedom of speech, association, religion, reproductive freedom, privacy, and voting rights.
Cybercrime HB 2678
Passed into Law, Effective June 7, 2018
HB 2678 modifies the statutory definition of “malware” and adds the word “stalk” as a possible basis of a charge of first-degree electronic tampering.  The ACLU opposed the bill because the definition of “malware” is overly broadly and could apply to a range of commonly used tools that can be used to innocently gather information, including many social media tools. Overbroad and poorly defined crimes feed our mass incarceration system and allow excessive prosecutorial discretion.
Body Worn Cameras – SB 6408
Passed into Law, Effective June 7, 2018
SB 6408 makes permanent the temporary rules on body worn cameras established by the legislature two years ago. The rules now apply to all law enforcement agencies and all images captured by body worn cameras of nudity, intimate body parts, and sexual activity are effectively exempted from public disclosure. The ACLU opposed this bill because body cameras in Washington state, as elsewhere, are a poorly regulated surveillance tool that potentially invades privacy, undermines community trust in law enforcement, distracts from proven methods of reducing police violence, and can exacerbate violence if law enforcement have control of how they are used and the footage produced. 
DNA Collection – HB 2331
Did not pass either chamber
HB 2331 would have required DNA collection from people convicted of municipal offenses if the municipality certified that the offense was the equivalent of a state crime that requires DNA collection. The ACLU opposed this bill because it would have brought a wide range of municipalities into a limited and currently well-controlled system while not increasing public safety. DNA is not simply a means of identification—it contains an individual’s most private biological information, and taking it is an invasive search that is not justified by documented improvements in public safety.

Racial Justice

Caesar Chavez Day – HB 1939
Passed into Law, Effective June 7, 2018
HB 1939 recognizes March 31st as “Cesar Chavez Day.” Cesar Chavez was born on March 31, 1927, in Yuma, Arizona, and his family moved to California as migrant farm workers when he was child. Mr. Chavez became a leader of the farm worker organization movement and co-founded the National Farm Workers Association, which later merged into the United Farm Workers Association. He died April 23, 1993. His birthday is officially recognized in several states, and in 2014 President Obama declared March 31 "Cesar Chavez Day," as a federal commemorative holiday. The ACLU supported state recognition of Mr. Chavez’s achievements.
Racial Disproportionality Information – SB 5588
Passed the Senate, did not pass the House
SB 5588 would have required the Caseload Forecast Council (CFC), a state agency, to prepare a general disproportionality report on the adult criminal justice system prior to each legislative session. Additionally, the CFC would have been required to produce Racial and Ethnic Impact Statements on legislative bills and resolutions that modify adult felony sentencing. The ACLU supported SB 5588 because it would have provided additional data on racial disproportionality in the criminal justice system.

Health Care Access

Reproductive Parity Act – SB 6219
Passed into Law, Effective June 7, 2018
The Reproductive Parity Act requires coverage for contraception without cost-sharing and substantially similar abortion coverage if a health plan covers maternity care or services. The ACLU supported this legislation because an individual’s economic status should not prevent them from accessing reproductive health services. Restrictions and barriers to health coverage for reproductive health care have a disproportionate impact on low-income individuals, individuals of color, and people who are immigrants.
Protecting Patient Care Act – HB 2482, SB 6247
Did not pass either chamber
Patients across the state are being denied access to the health care they need. Large health care systems are limiting the information, referrals, and services that doctors, nurses, and other health care professionals are allowed to provide to their patients. The ACLU supported the Protecting Patient Care Act, which respects the privilege and privacy of the patient-health care provider relationship. It ensures that a doctor, nurse, or other health care professional is not prevented from providing information, referrals, and standard of care health services request by their patients.
Reproductive Health Access for All – SB 6105, HB 2909
Did not pass either chamber
SB 6105 would help all Washingtonians access to critical reproductive health care. The ACLU supported the Reproductive Health Access for All bill because all Washingtonians who can become pregnant need the guarantee of coverage of birth control, abortion, and other critical reproductive health care services, without co-pays. Importantly, this legislation provides access for undocumented immigrants; immigrants subject to the federal five-year bar on access to Medicaid; and transgender and gender non-conforming Washingtonians.

Hospital Mergers – HB 1811
Did not pass either chamber
HB 1811 requires that the Attorney General’s Office to be notified at least 30 days before the effective date of any transaction that materially changes the operations or governance structure of a provider or provider organization. Currently there is very little, if any, oversight of health system consolidations in Washington state, even though such consolidations impact cost, quality, and access to health care for patients. The ACLU supported HB 1181 as a first step towards achieving adequate oversight of health system consolidations.

Voting Rights

Washington Voting Rights Act – SB 6002
Passed into Law, Effective June 7, 2018
In a healthy democracy, all voices need to be heard. But in some jurisdictions, outdated election systems prevent all neighborhoods and communities from being represented. The Washington Voting Rights Act (WVRA) empowers local governments to take the lead in fixing this problem with solutions tailored to fit that jurisdiction, as well as a roadmap, data, and timetables to avoid litigation. The ACLU supported the WVRA because it will strengthen democracy by helping to ensure fairness in local elections.
Same Day Voting Registration – SB 6021
Effective June 7, 2018
SB 6021 shortens the voter registration timeline from 29 days before an election to in-person registration (and registration updates) as late as Election Day.  The ACLU believes in increasing the franchise as much as possible, and eliminating administrative obstacles to voting. Easier registration will increase voter turnout, leading to a more representative democracy. The current registration timeline has a disproportionate effect on younger and houseless individuals who tend to be more mobile. Washington State should encourage all people to participate in our civic processes rather than placing burdens in their way.
Pre-registration for 16- and 17-year-olds – HB 1513
Passed into Law, Effective June 7, 2018
HB 1513 will allow young people to register to vote at age 16 or 17, either at registration locations or when they get their first driver’s license. The ACLU supported this legislation because one of the best ways to reach young people and bring them into our civic society comes at one of their first interactions with non-educational government institutions: when they obtain their first driver’s licenses. That opportunity may not be repeated for years.

Women’s Rights

Civil Rights, Health Care Information – SB 6027
Passed into Law, Effective June 7, 2018
SB 6027 limits discovery of a plaintiff’s medical information in discrimination cases. The ACLU supported this bill because victims of discrimination should not have to put their medical privacy at risk in order to receive redress for a wrong. Under existing law, a defendant can probe into sensitive medical issues, with minimal connection to the alleged wrong. Rather than serving a legitimate purpose, this tactic can be used simply to punish people for asserting their rights, or to dissuade them from doing so.
Sexual Harassment Non-Disclosure Agreements – SB 6068
Passed into Law, Effective June 7, 2018
SB 6068 prohibits non-disclosure agreements that prevent someone from producing evidence of sexual harassment or sexual assault. The ACLU supported the bill because it will allow for evidence of wrongdoing to be presented and encourage institutions to meaningfully ensure an environment free of harassment and assault rather than relying upon non-disclosure agreements to hide unlawful conduct.