As is often the case, the results from Smith Hill this year are something of a mixed bag. Lawmakers approved the first significant overhaul since 1976 of the Law Enforcement Officers’ Bill of Rights, or LEOBOR. But an attempt to update the law governing open records, the Access to Public Records Act, fell flat in the face of opposition from state government. So how did lawmakers do in conducting the public’s business? What would it take to make the General Assembly more accountable to the public it serves? And how is the outlook for the rule of law when millions of Americans dispute the winner of the 2020 presidential race? This week on Political Roundtable, I’m going in-depth with the head of the Rhode Island ACLU, Steve Brown.
This transcript has been edited for clarity.
Ian Donnis: Welcome back to The Public’s Radio.
Steve Brown: Thank you. Thank you for having me here.
Donnis: There was a lot of sharp debate about the Law Enforcement Officers Bill of Rights legislation that was signed into law this week by Governor McKee. Is the law as significant an improvement as described by Governor McKee, House Speaker Shekarchi, and other supporters?
Brown: Well, there’s no question it’s an improvement. The state’s LEOBOR Law has always been a problem for those of us who deal with police misconduct. It does have a few important revisions, but I think many people in the community, including the ACLU, don’t believe it goes far enough. We also believe that there will likely be a lot of litigation interpreting some of the provisions in the new law as it gets implemented. So we think there’s still a lot more that needs to be done. You know, this sort of came out of the George Floyd protests over four years ago. It took a long time to get here, but there really is a lot more to be done.
Donnis: What do you consider the top shortcomings and do you take lawmakers at their word that they are open to revisiting the law?
Brown: I’m sure we will see bills introduced next year to try to strengthen it more. You know, there are a lot of people in the community who would prefer to see it completely repealed. I think I realize that that’s a political dream. It’s not going to happen, but there certainly are lots of ways to improve it. One in particular that I would note is that the way it’s worded now, Rhode Island is one of a handful of states that doesn’t have a decertification law, being able to decertify police officers who engage in misconduct. So even with a stronger LEOBOR law, an officer can resign, before a LEOBOR hearing takes place, go to another police department to be hired. And there’s nothing that prevents that from happening, no matter how serious the misconduct may have been.
Donnis: In an attempt to improve the state’s open records law, the Access to Public Records Act did not move forward in the legislative session. I spoke with John Marion from Common Cause of Rhode Island. He points in large part to opposition from the executive branch of state government. What does this tell us about how state government views the public’s right to know?
Brown: Yeah, well this was very unfortunate and it was especially unfortunate to see so many state agencies come up with excuses. And I do think a lot of them were excuses for not seeing some reform to the open records law. You know, it’s been over a decade since there’ve been any significant changes made to the law. Technology has changed, the public’s interest in getting access to government information has only increased. And, you know, a lot of the objections, I think boil down to just wanting to maintain the status quo and not really recognizing that providing the public access to information should be a cornerstone of any government agency’s activities.
Donnis: Your organization, the ACLU, opposes holding a constitutional convention. Rhode Islanders have to be asked every 10 years whether they want to organize such a convention. You say that it could be kind of a Pandora’s box opportunity for bad ideas to come forward. But what about the idea that Democrats hold a super majority in the legislature and this is a rare opportunity for citizens to potentially make some improvements to state government?
Brown: Well, unlike other states, we actually have a history here. And while people can think about all the wonderful things a convention can dom we know how it actually works. Because in 1986 a convention was called for all the good government reasons that you hear, you know, this is an opportunity for the people to be able to speak their mind and, and deal with a good government. And what we know happened is that the major issue that came out of the convention was a proposed constitutional amendment declaring that life begins at conception.
Donnis: But that was voted down by voters subsequently and that convention did create the state ethics commission. Well, it was
Brown: Well it was voted down by voters. Another anti-abortion provision that was sort of snuck through, did not get defeated. Anti-abortion language remains in our state constitution. There were some other anti-civil rights measures that came out of that convention, including one restricting the right to bail. And, you know, in this polarized age, especially now, where out of state interests can spend unlimited amounts of money to come into Rhode Island and propose their own pet amendments and spend millions of dollars on them, I don’t think there’s any realistic reason to believe that things would be different 40 years from now based on what happened in 1986.
Donnis: During a speech in April, Rhode Island Attorney General Peter Neronha praised House Speaker Joe Shekarchi as a decidedly different kind of speaker from his predecessor, Nick Mattiello. Do you agree with that assessment?
Brown: I do. I think as a general rule, the session, the General Assembly is more open. I mean, we’ve seen some, some really good improvements, such as the House posting all written testimony that gets submitted. I mean, there’s still the gamesmanship that takes place. It’s not a pretty sight, especially at the end of the session where things pop up at the last minute. But I think there is a lot more openness than there was previously.
Donnis: If the contours of the general assembly depend in part on the personality and intellect of the person who is speaker, what can be done to institutionalize a better legislature?
Brown: You know, that’s a great question. I’m not sure that much can be done. I mean, you can come up with a whole array of rules but there are always loopholes that people can find when you have the rules. And the fact of the matter is, is that as a branch of government, the legislature can only be constrained so far. I mean, they are in charge of their own rules about how they operate. So I don’t think there’s any magic bullet that would turn the legislature into a utopian’s dream. There will be a lot of politicking going on, a lot of closed door activities. All one can do is try to push back as much as possible and, and call for more sunshine.
Donnis: You can’t take the politics out of politics.
Brown: Exactly.
Donnis: We’re talking here with Steve Brown, Executive Director of the Rhode Island ACLU. Steve, you and I have been watching the General Assembly for a long time, and I have to tell you, I recently looked at some old legislative guidebooks from 10 or 15 years ago, and it occurred to me that the typical lawmaker might have improved somewhat since that time. It seems like there’s certainly more diversity. It seems like there are more lawmakers who are policy-based and ideals-based rather than people coming for a big social club. Do you share that view?
Brown: I think that’s probably true. Certainly, the issue of diversity is there. The legislature is much more diverse than it used to be. And I think people run for office, as they always have, for a variety of different reasons. Some are ready to go out there and do all the work that they can to improve the state. I think some enjoy some of the perks that come from the job. But again, this is politics. You’re going to see a vast array of different people trying to do a public service. But I absolutely agree that certainly we’ve seen an increase in diversity that is, that can only be helpful.
Donnis: The state correctional officers tried to short circuit the nomination of the temporary state corrections director, Wayne Salisbury, to become the new permanent director. Was this fundamentally a clash between two different views of how prison systems should operate with the correctional officers favoring more of an old school “lock them up” mentality and Salisbury facing a more rehabilitative approach.
Brown: I think that was probably part of it. You know, one of the issues that got raised often during the discussion and debate is actually it involves a court case that the ACLU was involved in dealing with solitary confinement. And for decades the ACI has been able to put people in solitary confinements for up to a year and that is an extraordinarily debilitating type of punishment to impose on anybody. And what happened is in the past year, as a result of court mediation, there have been some restrictions set on the use of solitary confinement. And that clearly, there clearly is a clash there where the correctional officers don’t like not being able to lock people away in solitary for months and months at a time. I think it’s, that’s just a terrible idea. And to the extent that the acting director is trying to promote better rehabilitation then obviously we’re very much in support of it.
Donnis: To go national for a second, we live in a time when millions of people don’t accept the idea that Joe Biden is the legitimate president. You’re a person very concerned with laws and civil liberties. What does it say about the rule of law when we as Americans can’t agree on basic facts?
Brown: You know, I think we really are at a precipice in this country, and I don’t want to over exaggerate it. But I think November will teach us just where we are going as a nation. It really is extraordinarily troubling to see how many people refuse to accept results of elections without any evidence that there have been any problems. They essentially want a preordained result. if the result goes their way, then everything is fine. If it doesn’t go away, then there’s all this corruption. It’s really terrible to see that sort of attitude among so many people. I don’t know how this is going to play out. But it really is important for people to exercise their civic rights as much as possible to explain and strengthen our democratic process.
Donnis: To come back to Rhode Island, it was about 15 years ago when the state closed a so-called prostitution loophole, which previously had made it legal for sex work to happen if it was inside. Has that changed things for the better or worse in your view?
Brown: Certainly, for the worse, and I do want to emphasize, everybody talks about this loophole. It was not a loophole. The state knew exactly what it was doing in the 1970s when it decriminalized private indoor sexual activity. And what we’ve seen, you can hear from people who work with sex workers that they face all sorts of problems and fearful of contacting the police if they themselves are the victims of assault or other crimes. There’s a bill in the legislature, I don’t know whether it’s going to pass, that is designed to try to deal with that issue and provide sex workers immunity from prosecution under the prostitution laws if they report a crime that resulted from their work. So we’ll see what happens, but there’s at least from our perspective, it was really a step backwards to re criminalize this activity.
Donnis: And how has that made things worse?
Brown: Well, it’s made things worse for the people, I mean, again, it’s, you’re never going to get rid of sex for pay. It’s been around forever. It will be around forever. The question is how much you put the people who are engaged in that activity with fear of what may happen to them if they can’t feel comfortable contacting the police, because anytime they do that, they’re acknowledging that they’ve committed a crime.
Donnis: We’ve got to leave it there. Thank you so much for joining us. Executive Director of the Rhode Island ACLU, Steve Brown.
Brown: Thank you.
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A move by the Providence City Council to divest city money from investments in Israel has sparked sharp debate. Supporters say it would send a message against the violence in Gaza. But critics, including Providence Mayor Brett Smiley, say the proposed disinvestment would be a mistake. The real question is whether this would actually have a tangible effect. After all, an effort about 10 years ago to divest the state from investments in Iran had no actual effect. You can read more about that in my TGIF column, posting around 4 this afternoon at thepublicsradio.org/TGIF and on what used to be known as Twitter @IanDon.
That’s it for our show. Political Roundtable is a production of The Public’s Radio. Our producer is James Baumgartner. I’m Ian Donnis, and I’ll see you on the radio.
