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would have to be struck down. Even the D.C. child labor laws would be unconstitutional under this provision. And the prohibition on discrimination based on poverty would apparently prohibit the government from withholding any services or benefits from those who cannot afford to pay for them example, real estate could not be forfeited to the government for non-payment of taxes if the owner could show inability to pay. These examples demonstrate that while age and economic condition are often improper bases for discriminatory treatment, they are simply not, contrary to the assumption of the Task Force's draft, characteristics that are always irrelevant to proper governmental decision-making. Thus, these items should be deleted from the draft Constitution, and problems of age or poverty-based discrimination in the State of New Columbia which we agree are not insubstantial problems addressed by statute.


should be

We very much appreciate this opportunity to express our views to this subcommittee. We hope that our criticisms of

some portions of the draft Constitution will not cause anyone to lose sight of the fact that they are made in the context of our strong support for the cause of statehood, and our strong approval of most of the provisions of the Bill of Rights of the draft Constitution.

Thank you very much, Mr. Chairman.

Mr. BARNES. Thank you, Mr. Spitzer, for your thorough and thoughtful analysis of the proposed constitution. Mr. Fauntroy did read your testimony, and I will read his statement and questions that he would have put to you if he was here.

Mr. Fauntroy says:

I have a few questions of you, Mr. Spitzer, which do not necessarily reflect disagreement with the points you have made, but I ask them to further clarify the issues raised. In your testimony, you urge retention of the phrase, "access to courts," at section 19 of the proposed constitution. As I understand the law, there is currently no right to an attorney for indigents in civil cases for which the government must provide payment. Are you suggesting that such a right should exist in civil cases?

Mr. SPITZER. Yes, we think that would be a good idea. We agree that there is currently no such right either in Federal law or as far as I know, in the law of any State, and I said, this may be one of the areas where it is more important to get a draft that can pass Congress then it is to have the perfect draft that we might like in a perfect world.

We do think, though, that there ought to be a right to access to the civil courts for indigent people who have legal claims that can only be addressed through the judicial process. Of course, the Federal Government and most State governments have made some efforts in that direction by the establishment of legal services organizations and legal aide offices, but as you know, they are badly underbudgeted and understaffed and overwhelmed with work, and can't handle a fraction of the meritorious cases that come to them for help, and we are aware of that every day.

We get phone calls in our office from people who can't afford a lawyer and are trying every way to find somebody to provide them with the legal help that they really need, and we try to refer them to other agencies and legal aid organizations, but we know that they just can't always find help there.

In the best of all possible worlds, we think that there ought to be a constitutional right to that kind of assistance for poor people, and we hope ultimately that kind of right will be established in the State of New Columbia, and in the United States of America. We recognize that for the time being, if that is a provision which would cause problems here on the Hill or which would be impractical to implement in the short run, that it is something that may just have to be deferred.

Mr. BARNES. Mr. Fauntroy also asked that you raise concerns about the proposed bail provisions of section 9. Are you against preventive detention under any circumstances?

Mr. SPITZER. The ACLU is often pictured as an absolutist sort of organization, and I am afraid on this particular position we may be pretty absolutist. Yes, we do oppose preventive detention under all circumstances. That doesn't mean that we think everyone accused of crime has to be released. We agree that bail serves a reasonable purpose of assuring the presence of an accused person at trial, and if there is reason to believe that someone would not appear at trial if he were released no matter how high the security bond or what conditions were placed on him, then such a person needs to be kept in incarceration.

A kind of example that comes to mind is some of the major drug dealers who have been arrested in places like Florida who can just up $5 million cash bond without blinking their eyes, and it is easy to know that no matter how much money you ask them to put up, it means nothing to them, and they will be out of the jurisdiction the next day. But that is certainly the exception rather than the rule.

For the large majority of people, including those accused of serious crimes, they can be expected to appear for trial, and statistics and experience bears out that they do appear for trial. People accused of even murder do appear for trial after being out on bond. So what we think is the only criteria that ought to be considered for bond is the criteria of whether or not the person will appear for trial, and that attempts to detain people preventively based on a prediction of what they will do while they are out on bail. That they are likely to commit another crime while they are out on bail is something that we really don't have the ability to do. There simply is no way to predict in advance whether a person is going to commit a crime or not.

The principle is one that is very disturbing to us because if the principle becomes entrenched in our law that you can keep a person in jail who is innocent, and someone accused is innocent until proven guilty under our Constitution-if you can keep a person in jail who is innocent just because you think he is likely to commit a crime in the future, then I am not sure why ultimately you have to wait until he has even been arrested and charged with a crime the first time. Why not just round up everybody who lives east of the Anacostia River and say that statistics show us that people in this ward have a 35-percent likelihood of committing a crime sometime between their 15th and 25th birthday, and so we will just put them all in jail for 10 years.

That is an absurd example, but that's sort of the end of the road that we see off in the distance, and the first step on that road is preventive detention, and that's why we oppose it.

Mr. BARNES. And finally, Mr. Spitzer, as to your section 20 and section 23 concerns, Mr. Fauntroy says that, "I have carefully noted all of your concerns about sections 20 and 23, and I assure you we shall consider those concerns. Do you have proposed alternative language for the equal pay and the freedom from discrimination sections?"

Mr. SPITZER. That is an excellent question, and the answer is I have some thoughts on that, but they are not reduced to specific language, and I would be glad if you would allow me to submit specific language for the record within a few days after I have had a chance to put paper to pencil and consult with some other people in the ACLU.

Mr. BARNES. Sure. Without objection, the committee would appreciate that submission.

Mr. SPITZER. I appreciate the opportunity.

[The information follows:]

American Civil Liberties Union Fund

of the National Capital Area

1400 20th Street, N.W./Washington, D.C. 20036/202-457-0800






Staff Attorney











Hon. Walter E. Fauntroy


July 21, 1986
By Hand

Subcommittee on Fiscal Affairs and Health
Committee on the District of Columbia
United States House of Representatives
Longworth House Office Building, room 1310
Washington, D.C. 20515

Dear Delegate Fauntroy:

In the course of my testimony before your Subcommittee on behalf of the ACLU of the National Capital Area on the proposed D.C. Statehood Constitution on June 11, 1986, I criticized the language of two provisions of the draft Bill of Rights. At the conclusion of my testimony, I was asked whether the ACLU had specific proposed language that it would like to see substituted for those sections. I requested permission to submit such language at a later date, and the Subcommittee was kind enough to agree. This letter therefore constitutes our supplemental testimony.

The first section we criticized was Article I S 20, entitled "Comparable Worth." As currently drafted, that section provides:

All employees shall be guaranteed equal pay for equal work and equal pay for comparable work.

The problem we identified was that the provision as drafted appeared to require comparable pay among employers as well as within a single employer's workforce. We think there is an easy solution, which is simply to add the words "within an employer's workforce." Thus, the section would read in full:

All employees within an employer's workforce shall be guaranteed equal pay for equal work and equal pay for comparable work.

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The second section we criticized was Article I § 3, entitled "Freedom from Discrimination."

that scetion provides, in part:

As currently drafted,

Every person shall be free from discrimination, public or private, based on race, color, religion, creed, citizenship, national origin, sex, sexual orientation, poverty, parentage, disability or age.

We noted that the draft's wholesale prohibition of private discrimination was unwarranted and perhaps unconstitutional, and that even governmental discrimination on some bases, such as age and poverty, is often desirable.

One possible solution would be simply to eliminate those items from the draft. In that event, the section would read:

Every person shall be free from governmental discrimination based on race, color, religion, creed, citizenship, national origin, sex, sexual orientation, parentage or disability.

In our view, however, the section would be further improved if it borrowed the style of the proposed Equal Rights Amendment to the United States Constitution, as follows:

Equality of rights under the law shall not be denied or abridged on account of race, color, religion, creed, citizenship, national origin, sex, sexual orientation, parentage or disability.

As you will note, neither of these alternatives addresses the matter of private discrimination. Of course the prohibition of certain forms of private discrimination is an important governmental function, as the D.C. Council has recognized with the enactment of the D.C. Human Rights Act. However, as we testified earlier, we believe that it is through such legislation, rather than through constitutional provisions, that the problem of private discrimination is properly addressed.

In principle, we favor the inclusion of some reference to the subject of private discrimination in the Statehood Constitution. However, we do not think that either a broad prohibition such as that contained in the existing draft, or a set of detailed provisions such as that contained in the D.C. Human Rights Act, is appropriate. Nor is there any need for language in the Constitution authorizing the state legislature to enact legislation on that subject; such authority obviously

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