News & Commentary

Check out this blog post from our national Washington Legislative Office on the bipartisan push for digital due process rights:

Dorothea Dix, born in Maine in 1802, was a champion of the rights of the mentally ill before most people even considered the idea that the mentally ill should have rights. As a volunteer Sunday School teacher for women incarcerated in the East Cambridge Jail in Massachusetts, Dix witnessed conditions that would shape her work forever: the jail was unheated and dirty, and no consideration was given to the care of the mentally ill. Her observations led Dix to think seriously about the treatment of prisoners, and particularly the mental ill. She began to read all the available research, interview doctors and study the work of other reformers. Realizing that she could not fully know what she could not see, she set out to visit many of the jails in the state. Her survey of the Massachusetts jails would be the first of many across the nation and Europe. She worked with lawmakers to establish mental health care facilities and reform policies on care for the mentally ill. She even managed to convince Pope Pius IX of the need for reform in Rome’s prisons. At a time when it was rare for women to be given an audience to influence public policy, Dix undertook a bold advocacy campaign. At a time when little thought was given to the rights of the mentally ill, she was a beacon of hope in a world that had been plagued by abuse and neglect. She should be remembered as an advocate for the most vulnerable among us. The ripples of her work are still felt today.

On January 8, 1962, a letter appeared at the Supreme Court. It was written in pencil, from a jail cell at Florida State Prison, and began: “To the Honorable Earl Warren, Chief Justice of the United States, Comes now the petitioner, Clarence Earl Gideon, a citizen of the United States of America, in proper person, and appearing as his own counsel.”   Clarence Gideon was serving a five-year sentence for stealing bottled drinks and vending machine coins when he handwrote that letter. In it, he asked the Supreme Court to hear his case and rule that the right to counsel, as protected by the Sixth Amendment, should apply to every state, even in non-capital cases. He had been prosecuted, convicted, and sentenced without a lawyer, and he thought that was un-American.   On March 18, 1963 – exactly fifty years ago today – the Supreme Court agreed with Clarence Gideon. In its landmark decision, the Court found that the right to counsel is a fundamental right that no state may ignore. Poor defendants in criminal cases have a constitutional right to legal counsel even if they cannot afford it.   The ACLU supported Gideon by filing a friend of the court brief and working closely with Abe Fortas, a future Supreme Court Justice who argued the case. In the fifty years since, we’ve worked tirelessly to ensure that the right to counsel is honored. Unfortunately, that’s been a much harder struggle than we would have hoped. As the Portland Press Herald wrote this morning, “Significantly more resources go to pay prosecutors than defenders, creating a dangerous imbalance in what is supposed to be a system in which all people are equal before the law. This is the kind of thing that the Supreme Court tried to fix in the Gideon case. Unfortunately, that work is far from done.”   Indigent defense services all around the country are drastically underfunded, preventing states from providing effective assistance of counsel, not to mention investigators and experts. To learn more about why the right to counsel isn’t being applied as often or effectively as it should, read today’s blog post at ACLU.org or this article from Friday’s New York Times.   Still, despite all the concerns we have over indigent defense, Gideon v. Wainwright remains a landmark decision, and its significance is manifold even if its application has been insufficient. No better example exists than Clarence Gideon himself.   The Court’s ruling was great news for Gideon, but it was only the first step towards justice – he still had to face a retrial. This time he came armed with a lawyer, and the inconsistencies of the prosecution quickly came to light. Gideon had originally been convicted largely on the basis of one eyewitness, whose testimony was torn apart on better cross-examination. As other new and important details came to light, serious doubt was cast on Gideon’s guilt. Sure enough, in his second trial he was acquitted on all charges.   Gideon’s story is as improbable as it is important. If you want to know more about him and the details of his trial, I highly suggest you read Gideon’s Trumpet, by Anthony Lewis. It’s a fabulous book with insight into many aspects of the case, as well as the structure of the Supreme Court and their system for handling the thousands of legal requests they get every year. If nothing else, it is a heartwarming portrayal of a system that made it possible for a handwritten letter from an inmate to become the foundation for a landmark decision that changed the course of law in the United States.   There is no better way to honor the memory of Clarence Gideon and his unlikely path to justice than to recommit ourselves to the principle of indigent defense and to ensure that no one has to stand trial without someone at their side to argue their case.    

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. Solitary Confinement Report: From 2009 to present, Maine has reduced its population being held in its solitary confinement Special Management Unit by over 70 percent. Earlier this week, we released a report on how this happened called Change is Possible: A Case Study of Solitary Confinement Reform in Maine. The report documents a successful seven-year effort to reduce the use of solitary confinement in Maine. Read the report, view a slideshow of images from Maine State Prison, and learn how to take action here.   In LGBT rights: On Tuesday, Colorado passed legislation legalizing civil unions for same-sex couples. Two Wednesdays from now, the Supreme Court will hear a challenge to the Defense of Marriage Act (DOMA) brought by Edie Windsor. You can learn more in this Reuters column. The boy scouts of America will survey its members about attitudes around lifting the ban on gay scouts. Read more here or here   Death Penalty: Maryland will likely become the 18th state to reject the death penalty. A man exonerated from his death sentence was at the Maryland state house while the legislature voted. Read about that here. Meanwhile opponents of the death penalty in Delaware have introduced legislation to repeal the death penalty in that state. The governor there has not yet taken a position on the issue.

Images from the Maine State Prison, taken to accompany our new report about solitary confinement reform in Maine, Change is Possible. Read the report and see other accompanying materials, including a podcast interview with Corrections Commissioner Joseph Ponte, here.

Joan Benoit Samuelson would be famous if she didn't run another step after winning the inaugural Olympic Women's Marathon in 1984.  A two time Boston Marathon champion and American women's marathon record holder for 17 years, Samuelson is perhaps Maine's most famous and recognizable athlete.   However, it's what she continues to accomplish as a runner and community leader that makes her truly extraordinary. She founded and continues to help organize the Beach to Beacon 10K road race, which generates $30,000 annually to Maine nonprofit organizations that work with children.  She has written two books, Running Tide and Running for Women, coached women's cross-country and long-distance athletes, and is a motivational speaker and sports commentator. In 2008, at 50 years old, Samuelson participated in the Olympic Marathon Trials in Boston and met her goal of running under two hours and 50 minutes, setting an American record for her age group.  In 2012, she ran the Boston Marathon in under three hours, to celebrate the 40th anniversary of Title IX. Joan Benoit Samuelson winning the 1984 Olympic Women's Marathon:

Today, the Joint Standing Committee on Education and Cultural Affairs is holding a public hearing on LD 699, which seeks to allow Maine public schools to segregate classrooms by sex. We will testify in opposition, alongside many of our partners including Equality Maine and the National Organization for Women. On top of the questionable legality of single-sex schooling in public schools, segregating students by sex in Maine's schools raises significant educational and pedagogical concerns. The research that is cited in support of single-sex schooling has been deemed “pseudo-science” because it lacks scientific support. While many students who attend single-sex schools outperform many students in coeducational institutions, the link between the single-sex educational environment and academic success is tenuous. There is no empirical evidence showing that the success of these students stems from the single-sex nature of the learning environment. (Diane F. Halpern et al., The Pseudoscience of Single-Sex Schooling, 333 Science 1706, 1706 (2011).)  Most of the research on single-sex schooling in the United States has been conducted on private or religious schools, which tend to draw students from an affluent pool. (Amanda Datnow et al., Is Single Gender Schooling Viable in the Public Sector? (2001).) Research on the benefits of single-sex schooling often fails to control for socioeconomic factors. (Id.)   Thus, it is likely that the relative academic success of students in single-sex environments is attributable to factors apart from sex segregation. Advocates of single-sex schooling claim that boys and girls learn differently because of differences between male and female brains. Two prominent advocates, Leonard Sax and Michael Gurian, have used alleged brain differences to justify sex-segregated schooling and different teaching methods for boys versus girls. (ACLU Women’s Rights Project, Boys’ Brains vs. Girls’ Brains: What Sex Segregation Teaches Students (2008).) However, neuroscientists have found little difference between the brains of male and female children, and where differences have been observed in adults, such differences “may result from a lifetime of sex-differentiated experiences[.]” (Halpern at 1706.) A three year case study of so-called "single gender academies" in California found that perceived gender differences amongst boys and girls led teachers to conduct classes differently, which in turn reinforced gender stereotypes. (Datnow, 2011.) For example, boys were perceived to be louder and more talkative, leading teachers to create a stricter environment in boys’ classes. Separating boys and girls during academic periods, but bringing students together during social periods, like lunch and recess, increased the risk that students themselves viewed members of the opposite sex in social and romantic terms, rather than intellectual terms. Segregating classrooms to promote gender equity is problematic because single-sex schooling reinforces sex-stereotypes. We hope the committee will consider these concerns, as well as the legal peril of schools engaging this type of programming, and vote ought not to pass on LD 699.

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Today, Augusta was an exciting place to be!  People from all across Maine came out to testify in a public hearing before the legislature's Judiciary Committee on whether or not concealed weapon permit information should be made available to the public.  We testified in opposition to this bill, based on our desire to strike a balance between personal privacy and the public's right to know.  Below is the written testimony we gave at the public hearing today. If you're curious about the rest of the public testimony from the hearing, you can find it online here - probably tomorrow or the next day. TESTIMONY OF SHENNA BELLOWS An Act to Ensure the Confidentiality of Concealed Weapon Permit Holder Information LD 345 – Ought Not to Pass Submitted to the JOINT STANDING COMMITTEE ON JUDICIARY March 12, 2013 Senator Valentino, Representative Priest and distinguished members of the Joint Standing Committee on Judiciary, greetings.  My name is Shenna Bellows, and I am Executive Director of the American Civil Liberties Union of Maine, a statewide organization committed to defense of the Constitution and the Bill of Rights through advocacy, education, and litigation.  On behalf of our members, I urge you to oppose LD 345, An Act to Ensure the Confidentiality of Concealed Weapon Permit Holder Information. For the past two years, I have served on the Board of Directors of the Maine Freedom of Information Coalition.  From 2005 to 2012, I served on the Right to Know Advisory Committee.  For two years, I chaired the Public Records Exceptions Subcommittee of the Right to Know Advisory Committee.  That subcommittee is tasked each year with reviewing a substantial portion of confidentiality exceptions to Maine’s Right to Know laws.  As a subcommittee, we frequently wrestled with the competing constitutional interests of privacy and transparency that are the subject of this bill today.  On the one hand, the public’s right to know what the government is doing is fundamental to our representative democracy.  The achievement of government of and by the people requires that the people know what the government is doing. On the other hand, the government has significant powers to collect personal information about the citizenry and should take great care in dissemination, as well as collection, of that data. The mission of the ACLU of Maine is to defend both these interests of government transparency and personal privacy, and our position in opposition to LD 345 was developed with these constitutional precepts in mind. The permit to carry a concealed weapon is a government document, representing a decision made by a governmental entity. Under statute, law enforcement has discretion in issuing the permit to determine whether the applicant has “demonstrated good moral character.”  Law enforcement also has the authority to determine whether the applicant’s responses to the detailed application are acceptable.  Discretion opens the door to potential discrimination. The only way to protect against corruption and abuse of that decision-making process is to ensure that the process is open to the public for review. For example, if I apply for a license to carry a concealed weapon and am denied, the only way to ascertain whether the process was fair is for me to have access to the list of people who were granted such permits in my town.  Only then can I know whether my neighbor down the street of the same age and background received a permit when I didn’t. Only then might I discover that no women or no black men were receiving permits. Or, only then might I discover, as happened in South Dakota and Kentucky in two ACLU cases, that no immigrants were receiving permits.  In 2011, the ACLU of South Dakota sued when a British citizen was denied the right to carry a concealed weapon in that state. A judge found that to be a constitutional violation, and the law was changed. The public right to know is an important check on any government abuse of power, and in this case, the power to determine who can and cannot legally carry a concealed firearm is significant.  LD 345 would eliminate the only safeguard we have against corruption and abuse in the system of distribution of concealed weapons permits. LD 345 would make it more difficult to ensure that the concealed weapons permitting law was implemented in keeping with Fourteenth Amendment guarantees of equal protection under the law. On a broader scale, democracy depends on an informed citizenry and government transparency.  The debate about gun control and whether people should be able to carry concealed weapons in public, including in this building, is a rightfully emotional debate.  But without information about which and how many people are granted concealed weapons permits each year, the public is left to debate on passion and principle without all of the facts.  Furthermore, the public cannot make an informed decision about whether they agree or not with the way in which government officials are carrying out the concealed weapons permitting law if all information about its implementation is also concealed. This bill is not a gun control or gun rights bill; it is a government secrecy bill. If this bill passes, it will further limit our ability to have an informed and well-reasoned conversation about gun rights. Secrecy breeds mistrust, and this bill will certainly undermine the public trust in our concealed weapons law. In addition to checks and balances against governmental abuse of the concealed weapons statute, freedom of this information yields another vital public benefit: safety. A February Portland Press Herald article pointed to an employer, John Peters of Downeast Energy, who made a public records request in 2011 to see if any of his employees had a concealed weapons permit. The paper reported that: “For Peters, the records request was about workplace safety and peace of mind.  ‘I wasn't the only one who wanted to know who was bringing a gun to work. A lot of the people who work here wanted to know, too.’” Outside of the workplace, there are important public and personal safety reasons that an individual might want to know whether someone in her life possesses a concealed weapons permit. For example, a domestic violence victim might want to check whether her abuser had a concealed weapons permit. It’s important to note that there is no permitting process in Maine for open carry. Anyone who wishes to publicly display a firearm may do so, and members of the public can then make a decision to respond as they think best. But a concealed weapon without corresponding public information about that permit takes that choice away. The issue of personal privacy is an important one. The ACLU of Maine has consistently advocated for the protection of personal information held by the government, and we do so in this case. We do not advocate for the release of application information to the public. We believe that the permit document itself could be redesigned to contain less sensitive personal information about the permit holder. In most cases, it is not unreasonable to make some information public, including an individual’s name, address and status as a concealed weapons permit holder. This sort of personal information is already available in divorce records, bankruptcy records, property tax records and many other areas of statute. Hunting and fishing licensing information is open to the public. Making this limited data public does not contribute to identity theft, a real but often misunderstood problem. Maine’s Freedom of Access laws, title 1, section 402, create some exceptions to the definition of public record for personal information like social security numbers.  But the confidentiality of social security numbers applies across the board to all governmental records.  By contrast, LD 345 would create a special exemption to the freedom of access statutes just for firearms.  We urge you not to treat concealed weapons permits any differently under the freedom of access laws than you do other types of information like hunting licenses, which are also a certain indicator of gun ownership. There is one exception to the public release of permit information that should be preserved and possibly strengthened. I referenced victims of domestic violence earlier in my testimony, and as a member of the Right to Know Advisory Committee I advocated in favor of the address confidentiality program for victims.  Under the address confidentiality program, the address of a victim of domestic violence, sexual assault or stalking is not contained in any public record. That is vitally important, and while current statute protects the addresses of victims from disclosure, this committee may want to consider adding reinforcing language to title 25, section 2006 to make it clear to all issuing authorities that the name and address of victims of domestic violence, sexual assault or stalking must remain confidential. Concealed weapons permits have been accessible to the public since 1985. Nothing has changed in Maine except heightened concern and renewed public attention to the debate about gun rights and gun control. Concealment of facts, already in the public domain for 28 years, will not help this debate. To the contrary, LD 345 undermines government transparency, public trust in our concealed weapons law, and the public’s right to know.  For these reasons, we urge you to vote ought not to pass.