The 2020 Legislative Session was unusual by all accounts—beginning with a bottleneck of bills stuck in the drafting office—and ending under the looming threat of COVID-19.
Nevertheless, the ACLU of Utah was on Capitol Hill every day from January to March as we tracked 155 bills that impacted the civil liberties of all Utahns on topics ranging from criminal justice to free speech to reproductive rights. We worked behind the scenes, in coalition with partners, and in the public eye to pass legislation promoting fundamental freedoms and working to stop or amend harmful bills. The following recap is a snapshot of some of our more high-profile efforts.
H.B. 364 - ABORTION REVISIONS (ULTRASOUND)
S.B. 174 - ABORTION PROHIBITION S.B. 67 - DISPOSITION OF FETAL REMAINS
Abortion faced a triple threat during the 2020 session, with three bills targeting reproductive rights from new and pernicious angles. But thanks to a smart strategy, persistent lobbying, and the courage of six women Senators, we helped defeat a medically-unnecessary ultrasound requirement (H.B. 364) for every woman seeking an abortion and revealed fatigue for more anti-abortion legislation in Utah. When all the women Senators walked out of the debate over the forced ultrasound bill, it became the most powerful moment of the 2020 session. It also illustrated a key finding of our statewide survey of abortion rights released at the beginning of the session: When informed about the state’s current abortion restrictions, 80 percent of Utahns object to legislation adding more limits. Despite our strong opposition, the two other abortion bills passed the legislature and became law. Grabbing the most headlines was Sen. Dan McCay’s (R-Riverton) full ban on elective abortions (S.B. 174). As a “trigger bill,” this measure will only take effect if a higher court like the U.S. Supreme Court allows it by overturning four decades of abortion rights established by Roe v. Wade. Taking a more indirect approach was Sen. Curt Bramble’s (R-Provo) fetal remains bill (S.B. 67), which requires medical providers to inform women about how they can dispose of the fetal remains after an abortion or miscarriage while also limiting their available options. Even though our lobbying team pushed several amendments to make this legislation more workable, the inclusion of miscarriages in this bill demonstrated the legislature’s willingness to limit all women’s healthcare choices just to strike a glancing blow against abortion rights.
JAIL & PRISON BILLS:
S.B. 185 - GOVERNMENT RECORDS AMENDMENTS
S.B. 193 - STATEWIDE JAIL DATA AMENDMENTS
What happens inside Utah’s county jails has long remained hidden behind locked doors and secret records. This concealment masked problems like the state’s dubious distinction of having the nation’s highest per-capita rate of jail deaths in 2016. While the ACLU of Utah has pursued difficult but ultimately successful public records requests and lawsuits to shed daylight on jail practices, we recognize that better legislation could help. Hence, our strong support and testimony in favor of two Senate bills. Both bills passed in the final hours of the 2020 session. S.B. 185 will increase the transparency and accessibility of public documents related to jail operations by making jail standards and audits public, while S.B. 193 will create a statewide demographic census of people incarcerated in jails as well as an account of how many people county jails are incarcerating on behalf of ICE or the state Department of Corrections. Together, both bills will provide necessary data to guide future criminal justice reform efforts.
PRIVACY & TECHNOLOGY BILLS:
S.B. 218 - FACIAL RECOGNITION PROVISIONS
H.B. 231 - GENETIC INFORMATION AMENDMENTS
H.B. 466 - LAW ENFORCEMENT USE OF BIOMETRIC INFORMATION
S.B. 210 - BODY CAMERA AMENDMENTS
After last year’s success at approving the nation’s first protections for cloud-based data storage (H.B. 57 Electronic Information or Data Privacy), we expected to pass more bills this session limiting law enforcement use of facial recognition (S.B. 218) and personal DNA databases at consumer genetic testing companies like Ancestry.com (H.B. 231). But neither of those bills advanced. Why? These complex issues often require several years of study before they become law. Plus, recent state and national surveys indicate that the public is willing to give law enforcement significant leeway in using crime-fighting technology even if it erodes their personal privacy. Much work remains, but look for these two issues, plus restrictions on law enforcement’s ability to force you to use your face to open your smartphone (H.B. 466), to return in future sessions. One successful privacy bill we supported this year provides much-needed regulation for when law enforcement officers deactivate a body camera (S.B. 210). Not only does the bill require police officers to document why they failed to turn on a body camera, it also allows a judge to instruct a jury to view missing footage negatively against the officer.
CRIMINAL JUSTICE REFORM BILLS:
H.B. 288 - PROSECUTOR DATA COLLECTION AMENDMENTS
We know that bias exists in the criminal justice system. But where does it start, and where is it concentrated? This bill will attempt to answer those questions by collecting previously unavailable data from all prosecutor offices in Utah--from city prosecutors to the Attorney General--on how they do their jobs. This information, including jail data on age, race, and ethnicity of defendants, as well as what charges the prosecutor filed or whether a plea deal was offered, will be sent every six months to the state’s Commission on Criminal and Juvenile Justice. This information will be made available to researchers and the public. Given that this new law will create mountains of new and useful data to illuminate the “black box” of Utah’s prosecutorial system, it’s no surprise that the bill’s sponsor, Rep. Marsha Judkins (R-Provo), has a day job as a math professor at Utah Valley University. ACLU of Utah Smart Justice Attorney Jason Groth not only shaped the content of this bill, but also spent hours lobbying lawmakers and testifying before committees to build the bipartisan support that enabled its passage.
H.B. 146 - DRIVERS LICENSE SUSPENSION
Most people believe that your driver’s license can be suspended only due to a driving-related offense like a DUI or serious accident where you were at fault. But every year, 30,000 Utahns are losing their licenses due to non-payment of legal fines or failing to appear for a court hearing. This didn’t make sense to the ACLU of Utah, nor to Rep. Cory Maloy (R-Lehi), who sponsored legislation to remove license suspensions as a consequence of non-payment of fines or missing court dates. After all, losing your ability to drive will make it harder to earn wages to pay fines and show up at court. Plus, we learned the state was collecting $1 million a year in license re-instatement fees. Despite support in both chambers for this commonsense legislation, Sen. Curt Bramble (R-Provo) held this bill in the final hour of the session and prevented it from passing.
H.B. 206 - BAIL & PRETRIAL RELEASE AMENDMENTS
Did you know that over 50 percent of the people incarcerated in Utah jails and prisons haven’t been convicted of a crime? They are held in pre-trial detention, with many of them unable to pay bail to get out. This bill, which passed in the final hours of the 2020 session, brings important reforms to Utah’s bail system with the goal of reducing pre-trial detention. Not only does the bill create a new rule that defendants eligible for release “shall be released under the least restrictive reasonably available conditions,” but it also allows judges to consider a person’s ability to pay when setting bail amounts. Opposition to the bill by the bail bond industry was overcome by strong lobbying and testimony from a powerful combination of advocates, public defenders, and prosecutors whose testimony propelled Rep. Stephanie Pitcher’s (D-Salt Lake City) bill across the finish line to begin the process of reforming bail in Utah.
H.B. 298 - VICTIM GUIDELINES FOR PROSECUTORS (U VISAS)
A “U Visa” is a visa the federal government may grant to victims of violent crimes who report the crime and cooperate with criminal investigations. First created in 2000, U Visas provide protection that allows recipients to legally live and work in the U.S. As a first step, victims must obtain a certification by a law enforcement agency that they have been helpful to the investigation of the crime they reported. For years, immigrant communities and service providers have reported inconsistencies in the way Utah law enforcement agencies handle requests for U Visa certifications. Fortunately, Rep. Andrew Stoddard (D-Midvale) agreed to our request, working in coordination with the Refugee Justice League, that he champion this bill to promote and standardize the use of this important tool to protect vulnerable victims of crime. Legislators agreed with his approach, passing the final version of H.B. 298 unanimously in both chambers to secure this session’s major win for immigrants’ rights.
H.B. 243 - WARNING LABELS AMENDMENTS
Originally written to protect children from the dangers of pornography by slapping a 57-word warning label on any potentially obscene material, this bill was revised during the session to more clearly focus on obscenity, which receives less First Amendment protection. One troubling aspect of this bill that didn’t change was the provision that allows individuals, with support from the Utah Attorney General, to bring civil suits against any person who distributes obscene material without a visible warning, including a $500 “bounty” paid to the person who initiated a successful suit. This practice could promote self-censorship and a chilling of free expression, not to mention spawn a cottage legal industry to file civil actions against bookstores and other businesses. For these reasons, the ACLU of Utah opposed this bill, although it ultimately passed both chambers of the legislature and Gov. Herbert allowed it to become law without his signature.
S.B. 200 - REDISTRICTING AMENDMENTS
Of the three ballot initiatives passed by Utah voters in 2018, only Proposition 4, the anti-gerrymandering initiative, remained unaltered by legislative meddling at the beginning of the 2020 Legislative Session. As a result, everyone, including the ACLU of Utah (which actively campaigned for Prop 4 to promote fair elections) waited for the ax to fall on it and stood ready in defense. But instead of a complete repeal, negotiations between Better Boundaries (the main backers of Prop 4) and lawmakers resulted in a compromise bill that kept the independent redistricting commission intact and funded it with $1 million. However, the bill also removes the commission’s leverage over the legislature’s review of redistricting maps and restricted public lawsuits against lawmaker-drawn maps. With Better Boundaries claiming the commission will retain significant power and urging passage of the compromise agreement, the Legislature voted for the bill nearly unanimously to set the redistricting process in motion.
H.B. 449 - STUDY OF THE DIAGNOSIS, TREATMENT, AND CARE OF TRANSGENDER MINORS
As lawmakers in South Dakota and Idaho debated bills this winter that would have criminalized hormone therapy and other medications for transgender youth, a similar bill drafted by Rep. Brad Daw (R-Pleasant Grove) sat waiting at the Utah Legislature. When national attention, public outcry, and boycott threats derailed the bills in neighboring states, and local pressure and lobbying ramped up in Utah, Rep. Daw knew his bill was in trouble. So, when Daw released his bill with a week left in the session, he had re-written it to require the Utah Department of Health to establish a $26,000 grant to study the “benefits and side effects” of hormone therapy by transgender youth. But even that attempt to deflect opposition failed when a bipartisan coalition of House members voted 55-17 to stop the bill from advancing and secure a major win for LGBTQ rights in Utah
Review at www.acluutah.org/2020wrapup