Regulating Ghost Guns and Protecting Polling Places

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The House Judiciary Committee has focused on public safety during the decade I have served as a representative. This year, the Committee has passed bills to address retail theft, trespass into motor vehicles, domestic and sexual violence, and the backlog of cases in our courts. The Committee is currently considering Senate bills that address juvenile justice, drug offenses, and bail and violations of conditions of release. We have also continued our sustained efforts to mitigate firearm violence in a manner that respects the right to bear arms under the Second Amendment of the U.S. Constitution and Article 16 of the Vermont Constitution.

Last year, the legislature focused on implementing firearm policies that would reduce suicide. Act 45 required gun owners to securely store their firearms in circumstances where a child or person prohibited from possessing a firearm is likely to gain access to them. It also improved access to Vermont’s red-flag law, which allows a court to issue an Extreme Risk Protection Order (ERPO). An ERPO is a civil order that temporarily prohibits certain individuals from purchasing, possessing, or receiving any dangerous weapons, including firearms, where those individuals pose a danger of injury to self (including suicide) or to others. Finally, Act 45 added a 72-hour waiting period for firearm purchases.

This year, the Senate Judiciary Committee turned its attention to privately-made firearms. Guns can be assembled from parts (often sold in a kit) or printed using a 3D printer. When such firearms lack a serial number, they are known as ghost guns. S.209 would prohibit the possession, transfer, and manufacturing of firearms without a serial number. Without a serial number, guns are untraceable, which can frustrate an investigation when they are used in the commission of a crime. Also, people can obtain ghost guns without undergoing the required background check, including individuals who are prohibited from possessing a firearm.

The text of the bill as it passed the Senate provided that possession, transfer, and manufacture of non-serialized firearms would lead to a criminal penalty. The House Judiciary Committee changed possession of non-serialized firearms to a civil infraction out of respect for the long-standing gun-smithing tradition in Vermont. We agreed with the Senate in having the transfer and manufacture of non-serialized firearms as criminal offenses.

Under the bill, if hobbyists want to build their own guns, they may still do so. They are then required to bring their guns to a federally-licensed firearms dealer to have a serial number added and to undergo a background check. 

The bill also includes a provision that would provide a sentencing enhancement if an offender carried a ghost gun when committing a violent crime. The offender would be subject to a penalty of up to five additional years in prison.

The ghost gun provisions do not violate the Second Amendment. They are constitutional under the Supreme Court’s test in NYSRPA v. Bruen. 

First, this bill does not implicate the plain text of the Second Amendment. It does not impair anyone’s right to keep or bear arms; it simply requires that such arms have serial numbers on them. Second, S.209 is consistent with the historical tradition of firearms regulation. Identifying marks on firearms have a long history, dating back to sixteenth-century England and colonial America. S.209 is likewise consistent with other longstanding prohibitions aimed at keeping guns out of the hands of those who are prohibited from possessing them under existing state and federal law.            

The House Judiciary Committee added a provision to S.209 that bans the carrying of firearms or other dangerous weapons in polling places. This ban is also constitutional under Supreme Court precedent. In Bruen, the Supreme Court specifically identified polling places among so-called “sensitive places,” which are locations where firearms may be prohibited. The current political climate warrants increased protections for poll workers and voters alike from potential violence and intimidation.

Expanding Restorative Justice

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Deterring crime depends in large part on having certain and speedy accountability for criminal activity. A well-functioning, well-resourced criminal justice system can lead to prompt consequences for offenders.

But we need not rely solely on the courts to provide expeditious consequences for criminal activity. A well-functioning, well-resourced restorative justice system can also ensure certain and immediate consequences, often with better outcomes for victims and offenders than the criminal justice system. Last week, the House passed H.645, which will improve how Vermont provides restorative justice. 

Vermont has long had many powerful restorative justice options to address criminal conduct outside the traditional criminal justice system. Those options may be available before adjudication (before an individual is convicted or enters a plea agreement) or after adjudication.

As to pre-adjudication, the Attorney General’s office oversees a diversion program that provides a restorative response for individuals charged with their first or second misdemeanor or their first non-violent felony. Community members support the person charged and help them repair the harm done to victims and the community. The restorative process requires the charged individual to take responsibility for the crime. It leads to the creation of a restorative agreement under which the responsible party must repair the harm they caused. A significant part of this process builds new skills to help the offender avoid causing further harm.

The Attorney General’s office also oversees the Tamarack program, which supports adults charged with a crime who have a substance use or mental health treatment need. Tamarack participants must be willing to take responsibility for their actions and, when appropriate, participate in a restorative process aimed at repairing the harm caused by their crime.

The legislature has also established a statutory framework for community justice centers (“CJCs”) “to resolve civil disputes and address the wrongdoings of individuals who have committed municipal, juvenile, or criminal offenses.” 24 V.S.A. § 1963.  CJCs “shall include programs to resolve disputes, address the needs of victims, address the wrongdoing of the offender, and promote the rehabilitation of youthful and adult offenders.” 24 V.S.A. § 1964(a)(3).

CJCs, which can be either municipal entities or non-profits, are involved with both pre- and post-adjudication restorative justice programs. Post-adjudication programs include reparative boards that provide community-centered restorative justice processes for offenders who have been required to participate in such a program as a condition of their probation.

The bill just passed by the House, H.645, would create and codify a statewide pre-charge diversion program. Pre-charge diversion occurs when individuals who commit low-level crimes are referred to community providers of restorative justice, such as CJCs, instead of court. The bill would allow law enforcement or prosecutors to divert more offenders from the criminal justice system before they are charged with a crime. If an individual does not complete the restorative justice program, they would be referred to the traditional court system. 

Some Vermont counties, including Chittenden County, already provide pre-charge restorative justice programs. H.645 would stabilize those existing programs by placing administrative oversight in and funding through the Attorney General’s office. By expanding pre-charge diversion statewide, our entire State will benefit from more timely interventions and reduced pressure on the courts.

Restorative justice avoids many adverse collateral consequences to the party responsible for the harm, including loss of employment, government assistance, housing, and parental rights. Restorative processes are also more effective than incarceration at reducing recidivism. In 2019, the Crime Research Group, which provides criminal justice research in Vermont, produced a report analyzing recidivism rates and costs of the diversion program of the Vermont Attorney General’s office. The report noted that first-time diversion participants without criminal history were much less likely to reoffend than individuals going through the traditional criminal justice system. The same report found that diversion is much less expensive than the traditional criminal justice system.

Victims also benefit from the restorative justice process.  Studies show that victims consistently report higher satisfaction with restorative justice programs than traditional prosecutions. In addition, when given the option, victims tend to opt for a restorative process. Victims want answers, want their voices heard, and want a sense of control relative to what happened to them. They do not want the person who caused their harm to cause further harm. A restorative process can better address these needs than the legal process and the courts.

The expansion of restorative justice, as proposed in H.645, comes at a critical time for Vermont. With increased community concerns regarding public safety and the challenges of court backlogs, along with mounting financial pressures in all areas of state services, it is essential that we invest in public safety measures that are both effective and timely. Community-based providers testified repeatedly before the House Judiciary Committee about how restorative justice offers a high impact, lower-cost intervention compared to traditional court interventions, and does so in a timelier manner – often within weeks of an incident rather than months or years. H.645 seeks to build on these positive outcomes.

Town Meeting Report

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This is from the report that I handed out at the polls on Town Meeting day.

H.850 Overview and Context for FY25 School Budgets

This year, we face a difficult school budget season as a perfect storm of financial pressures push education spending up across the state. These pressures are impacting every school district. School boards across Vermont — responsible for developing district budgets that must be approved by local voters — are struggling to deliver budgets that meet student needs and are reasonable for taxpayers.

Financial Context for FY25 School Budgets

Financial pressures at play this year:

●      The end of federal pandemic-era school funds

●      Rising healthcare costs and salaries for hard-working educators

●      Wear and tear on aging school buildings

●      High mental health needs and learning loss support for students in the wake of the pandemic

●      General inflationary pressures

 

Statewide education spending is forecast to rise by nearly $250 million for FY25, an unprecedented increase. Vermonters will struggle to cover the higher property taxes needed to fund this increase.

Increased education spending is the main driver of the spike in tax rates this year. When spending goes up, taxes go up. Other factors that are pushing up tax rates: rising real estate values; the reduction of sales tax revenue — which feeds the Education Fund — to normal pre-pandemic levels; and some legislative changes in Act 127 of 2022.

Act 127 and Pupil Weighting Changes

In 2022, the Legislature passed Act 127 with broad support and the Governor signed the bill. It updated Vermont’s “pupil weights” — a key factor in our complex education funding formula that accounts for the different costs to educate different categories of students. (Data shows it costs more, for example, to educate students in poverty and English Language Learners (ELL)). Act 127 is an important and necessary law for equitably funding education:  It was designed to increase the ability of districts with larger numbers of low-income and ELL students to fund vital education programming.

When passed, Act 127 also included a temporary 5% cap on annual homestead tax-rate increases at the district level. The goal was to provide relief for what was expected to be a relatively small group of districts that would be negatively affected by Act 127, districts that would need to have a higher tax rate to maintain their education funding.

However, as a result of education spending decisions across the state, every school district in Vermont is projected to see budget increases pushing them past the 5% tax rate cap. The entire state cannot be held to a 5% tax rate cap and still cover the projected new statewide education spending; tax rates must be set to raise enough money to cover the cost of the Education Fund.

Overview of Act 84

Therefore, to align school budgets more closely with the state’s ability to financially support them, Act 84 eliminates Act 127’s 5% tax rate cap mechanism. Signed by the governor on February 22, Act 84 provides a new mechanism that is more precise and will target only those districts that face higher homestead tax rates due to Act 127. While it aligns district spending with the resulting tax rate, it mitigates the predicted increase in property tax rates for those negatively impacted by the new weighting formula.

For the affected districts, this law provides a one cent relief on the tax rate for each percentage point of negative change to the district’s share of the statewide weighted pupil count. South Burlington saw a 6% decrease in its weighted pupil count due to Act 127 and will accordingly receive a six cent discount on its FY25 tax rate.

Law Enforcement and Public Safety

 

Last year the House Government Operations Committee focused on law enforcement training and accountability, as well as other bills focused on public safety. That work continues with efforts to increase courthouse security and improve training programs and recruitment for law enforcement. The Vermont Criminal Justice Council has made progress modernizing training and is hosting the largest classes ever at the police academy to fill law enforcement positions across the State. 

 

The Judiciary Committee’s Work to Promote Public Safety

Vermonters throughout the State have been reaching out to their representatives with concerns related to public safety. Although Vermont is considered one of the safest states, citizens are justifiably concerned about an increase in crime. The legislature has heard these concerns and is working to address them.

Most of the witnesses testifying in the House Judiciary Committee on the issue of criminal justice — representatives from the Vermont courts, State’s Attorneys, the Defender General, as well as victim advocates and others — emphasized that the two most effective ways to deter crime are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. This factor is not under the Judiciary Committee’s jurisdiction, so we focus on the certainty and immediacy of consequences. These outcomes depend on a well-functioning, well-resourced criminal justice system.

One of the biggest challenges our court system currently faces is a backlog of cases, which pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. After the courts fully reopened, a surge in filings left the courts falling further behind.

The legislature’s primary lever to address this issue is the State’s budget. The Judiciary Committee has been working with the Appropriations Committee to ensure that all elements of the justice system have sufficient resources. Unfortunately, although the Governor in his budget address explained that public safety is one of the administration’s priorities, his proposed budget does not align with this statement. For example, to meet the administration’s budget, the State’s Attorneys will need to cut up to six Deputy State’s Attorney positions. To properly address the deluge of criminal cases, we should instead be adding up to 15 additional State’s Attorney positions as well as additional victim advocates and administrative staff. The Defender General’s Office needs over one million dollars more than the administration’s budget provides just to maintain the Office’s status quo. Although the budget does include funding for two additional judges, it does not provide funding for the necessary court staff.

We believe that the Governor’s proposed budget fails to provide the resources the criminal justice system needs to ensure the public is safe. Accordingly, the Judiciary Committee will continue to work with Appropriations to ensure that the budget will include the resources necessary to enable cases to be heard in a timely fashion. Only by doing so will individuals be held accountable for their actions as soon as possible after offending – a key to ensuring public safety.

As we continue to advocate for proper criminal justice resources, the Judiciary Committee has been working on other public safety bills, including the following:

Filling Judicial Vacancies

When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. When a judicial vacancy occurs in Vermont state court, the governor reviews and appoints judges from a list of candidates provided by a nonpartisan Judicial Nominating Board. The House passed H.780, which will help expand and diversify the applicant pool for judicial vacancies so a governor will have more quality potential jurists from which to choose. The bill will also expedite the process by limiting the number of times a governor can ask for additional candidates from the Nominating Board.

Expanding Offenses Related to Automobiles

The House passed H.563, dealing with motor vehicle theft, unlawful operation, and trespass. This bill closes a few gaps in our statutes, including the fact that current law does not prohibit a person from entering another person’s car without consent unless they are told to stay out or the car is posted with a no trespassing sign. This expansion of the law is designed to encompass instances of rummaging through someone’s car. Accidental entry into a vehicle (“I thought that was my green Subaru”) will not be criminalized.

 Codifying Pre-Charge Diversion

The House Judiciary Committee has been working on H.645, which would create and codify a state-wide pre-charge diversion program. Pre-charge diversion occurs when individuals who commit low-level crimes are referred to community providers of restorative justice, such as community justice centers, instead of court. The bill would allow law enforcement or prosecutors to divert more offenders from the criminal justice system before they are charged with a crime. If an individual does not complete the restorative justice program, they would be referred to the traditional court system. 

Some Vermont counties, including Chittenden county, already offer such a program. H.645 would stabilize those existing programs by placing administrative oversight in and funding through the Attorney General’s Office. By expanding pre-charge diversion statewide, our entire State will benefit from more timely interventions and reduced pressure on the courts. The Judiciary Committee voted out this bill, which will be considered by the entire House after Town Meeting break.

Addressing Repeat Offenders of Retail Theft

There’s no question that retail theft is a major issue in several towns throughout Vermont, including South Burlington, and retailers have been clear in their request for legislative action. The House Judiciary Committee passed H.534 to address this concern. The bill will reach the House floor after Town Meeting Break.

The bill includes a provision that would allow aggregation of the value of more than one retail theft. Currently, retail theft offenses can be charged as either misdemeanors or felonies depending upon the value of goods stolen. Anything up to $900 is a misdemeanor; over $900 is a felony. H.534 would enable prosecutors to charge individuals with a felony if the total value of goods stolen within a 14-day period exceeds $900.

The bill would also reinstitute community restitution (also known as work crew) as a sentencing option. Last year, the Department of Corrections ended this program, but we have heard from multiple witnesses (prosecutors, defenders, and the court) that work crew is an important tool for providing certain and swift consequences for persons charged with retail theft. The program allowed courts to sentence low-risk offenders to pre-determined employment or community service for a maximum of 15 workdays within 60 days. So long as the offender fulfilled the work obligations, they would avoid serving prison time.

Expanded Protection for Victims of Domestic Violence

Forty percent of all calls to Vermont law enforcement for violent crimes are related to domestic violence. This fact alone means any attempt to improve public safety must include efforts to prevent and address domestic violence.

H.27 is one such step. Passed by the House early this year, it adds “coercive controlling behavior” to the definition of abuse already in the civil statute, meaning that victims of such behavior may request a relief from abuse order.

During testimony, we heard chilling accounts of coercive controlling behavior that preceded physical violence, including domestic homicide. In one case, a woman’s husband removed the seats from the family minivan because he knew his wife would not drive her children in an unsafe vehicle. This action isolated her in their rural Vermont home, with no way to escape. He later killed her and their children. 

Current law requires seekers of relief from abuse orders to be physically harmed or in fear of imminent physical harm. The aim of this bill is to provide a pathway out of an abusive situation before physical violence occurs. 

Addressing the Root Causes of Crime

In the House Judiciary Committee, we deal with public safety issues through the criminal justice system. It is equally important, if not more so, to address such issues before they land in the criminal justice system. Thus, the work other committees in the State House are undertaking is critical to help address root causes of crime, including homelessness, substance use disorder, and limited access to mental health services.

Housing and Development

Many factors contribute to the current housing crisis in Vermont: decades of redlining; zoning that has prevented dense development in city centers; chronic under-investment in rental vouchers and affordable housing; an increase in housing demand combined with a decrease in the average number of people per household; new economic opportunities presented by converting long-term rental properties into short-term rentals; and a 57% decline in home construction since 1988.

From March 2020 through June 2023, Vermont invested over $1 billion — mostly through federal stimulus funding — into expanding our affordable housing supply and providing emergency housing assistance. These investments include constructing, acquiring and rehabbing affordable housing units through the Vermont Housing Conservation Board; bringing rental units online through the Vermont Housing Improvement Program (VHIP); supporting recovery housing; providing emergency rental assistance to tenants and landlords through the Vermont Emergency Rental Assistance Program (VERAP); supporting first-generation and missing-middle homebuyers; and providing non-congregate housing and services to homeless Vermonters.

Last year, the legislature passed S.100 (Act 47), which is a comprehensive housing law that updates our land-use policies to encourage development in vibrant, livable, and walkable downtowns while discouraging sprawl. These updates include zoning changes to enable more housing density, like allowing duplexes wherever single-family homes are allowed and at least five housing units per acre in areas served by water and sewer.

With the housing crisis and threats from a changing climate becoming dire, this year the legislature launched a deep examination of how to better protect our communities, air, water, wildlife, forests, and working lands. Since 1970, our statewide land use law, Act 250, has helped support compact development in downtowns and village centers while protecting forests and open lands. Last year, in Act 47, we changed Act 250 to make it easier to build housing in designated growth centers, downtowns, and village centers. We also made it harder to appeal much-needed housing projects.

H.687 is a comprehensive bill further amending Act 250 that is currently in the House Environment and Energy Committee. It seeks a balanced approach to improving the effectiveness and consistency of the Natural Resources Board in issuing Act 250 permits and handling appeals. It proposes new location-based oversight that defines three tiers covering (1) downtowns and village centers, (2) rural areas, and (3) the most ecologically sensitive areas.

Overcoming the Overdose Epidemic

All Vermonters deserve access to the support they need to live healthier and safer lives. That includes our neighbors, friends, and loved ones struggling with substance use disorder, who are increasingly at risk of overdose. Fatal drug overdoses are at an all-time high, causing immeasurable loss for countless Vermont families. The same public health framework used during COVID-19 can help us respond to the overdose epidemic.We have prioritized saving lives while appropriating millions of dollars into strategies rooted in scientific evidence. By bolstering our naloxone distribution efforts with vending machines, wall-mounted receptacles, and home mail order options, we are helping to make overdose reversal medications readily available in times of emergency. To address the increasingly lethal and unpredictable illicit drug supply, we have established high-tech drug testing programs. We have also removed unnecessary insurance barriers for Vermonters on Medicaid, so that low-income Vermonters aren’t left behind by our treatment system.We have also made investments beyond the Opioid Settlement Fund, including increasing resources to facilitate recovery through housing and peer support. We have funded youth prevention programs and strengthened connections between our mental health and substance use treatment systems. We have also created opportunities for workforce development for people in recovery.

Mental Health Crisis Response

Mental health care is a cornerstone of health care in Vermont and a priority this legislative session. To respond effectively and respectfully to the mental health needs of all Vermonters, we’re focusing on crisis response and community-based programs—specifically mental health urgent care, mobile crisis response, and the 988 suicide and crisis lifeline. 

Vermont has six mental health urgent care programs, including four brick-and-mortar centers providing psychiatric urgent care for children and adults. In addition, there are two “living room” models designed to be welcoming spaces where guests feel safe and meet with teams to get support. These provide alternatives to emergency departments.

A new statewide mobile crisis response also helps people experiencing a mental health or substance use crisis by providing mental health and welfare checks in lieu of police intervention. Services are delivered in the community by two-person teams who refer individuals to other forms of care as needed.

Connecting it all is the 988 Vermont Suicide and Crisis Lifeline that responds to calls, texts, and chats 24 hours a day, 7 days a week. Through these and other programs, we are making sure there is always someone to call, someone to respond, someone to prevent, and somewhere to go.

Update on Public Safety and Access to Justice

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This session, the House Judiciary Committee has focused on addressing Vermonters’ concerns about public safety and access to justice.

Increasing Resources for the Criminal Justice System: Most of the witnesses testifying before our committee on criminal justice — representatives from the Vermont courts, State’s Attorneys, the Defender General, as well as victim advocates and others — have emphasized that the two most effective ways to deter crime are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. This factor is not under the Judiciary Committee’s jurisdiction, so we focus on the certainty and immediacy of consequences. These outcomes depend on a well-functioning, well-resourced criminal justice system.

One of the biggest challenges our court system currently faces is a backlog of cases, which pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. After the courts fully reopened, a surge in filings left the courts falling further behind.

The legislature’s primary lever to address this issue is the State’s budget. The Judiciary Committee has been working with the Appropriations Committee to ensure that all elements of the justice system have sufficient resources. Unfortunately, although the Governor in his budget address explained that public safety is one of the administration’s priorities, his proposed budget does not align with this priority. For example, to meet the administration’s budget, the State’s Attorneys will need to cut up to eight deputy State’s Attorney positions. To properly address the deluge of criminal cases, we should instead be adding up to ten additional State’s Attorney positions as well as additional victim advocates and administrative staff.  The Defender General’s Office needs over one million dollars more than the administration’s budget just to maintain the Office’s status quo. Although the administration’s budget does include funding for two additional judges, it does not provide funding for the necessary court staff.

We believe that the Governor’s proposed budget fails to provide the resources the criminal justice system needs to ensure the public is safe. Accordingly, the Judiciary Committee will continue to work with Appropriations to ensure that the budget will include the resources necessary to enable cases to be heard in a timely fashion. Only by doing so will individuals be held accountable for their actions as soon as possible after offending – a key to ensuring public safety.

The Judiciary Committee has been working on other public safety bills as we continue to advocate for proper criminal justice resources, including the following:

Filling Court Vacancies: When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. When a judicial vacancy occurs in Vermont state court, a governor reviews and appoints judges from a list of candidates provided by a nonpartisan Judicial Nominating Board. The House Judiciary Committee passed H.780, which will help expand and diversify the applicant pool for judicial vacancies so a governor will have more quality potential jurists from which to choose. The bill will also expedite the process by limiting the number of times that a governor can ask for additional candidates from the Nominating Board.

Expanding Offenses Related to Automobiles: The House Judiciary Committee passed H.563, dealing with motor vehicle theft, unlawful operation, and trespass. This bill closes a few gaps in our statutes, including the fact that current law does not prohibit a person from entering another person’s car without consent unless they are told to stay out or the car is posted with a no trespassing sign. This expansion of the law is designed to encompass incidences of rummaging through someone’s car. Accidental entry into a vehicle (“I thought that was my green Subaru”) will not be criminalized.

Codifying Pre-Charge Diversion: The House Judiciary Committee has been working on H.645, which would create and codify a state-wide pre-charge diversion program. Pre-charge diversion occurs when individuals who commit low-level crimes are referred to community providers of restorative justice, such as community justice centers, instead of to court. The bill would allow law enforcement or prosecutors to divert more offenders from the criminal justice system before they are charged with a crime. If an individual does not complete the restorative justice program, they would be referred to the traditional court system. 

Some Vermont counties, including Chittenden County, already offer such a program. H.645 would add stability to those existing programs by placing administrative oversight in and funding through the Attorney General’s Office. And by expanding pre-charge diversion statewide, our entire State will benefit from more timely justice interventions and reduced pressure on the courts. The Committee will likely vote out this bill by mid-February.

Addressing Repeat Offenders of Retail Theft: There’s no question that retail theft is a major issue in several towns throughout Vermont, including South Burlington, and retailers are clear in their request for legislative action. The House Judiciary Committee has been working on H.534 to address this concern.

The bill includes a provision that would allow aggregation of the value of more than one retail theft. Currently, retail theft offenses can be charged as either misdemeanors or felonies depending upon the value of goods stolen. Anything up to $900 is a misdemeanor; over $900 is a felony. H.534 would enable prosecutors to charge individuals with a felony if the total value of goods stolen within a 14-day period exceeds $900.

The bill also would reinstitute community restitution (also known as work crew) as a sentencing option. Last year, the Department of Corrections ended this program, but we have heard from multiple witnesses (prosecutors, defenders, and the court) that work crew is an important tool for providing certain and swift consequences for persons charged with retail theft. The community restitution program allowed courts to sentence low-risk offenders to pre-determined employment or community service for a maximum of 15 workdays within 60 days. So long as the offender fulfilled the work obligations, they would avoid serving prison time. In the House Judiciary Committee, we deal with public safety issues through the criminal justice system. It is equally important, if not more so, to address such issues before they land in the criminal justice system. Thus, the work that other committees in the State House are undertaking is critical to help address root causes of crime, including substance use disorder, homelessness, and limited access to mental health services.

Access to Justice for Low-Income Vermonters

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Courts need to handle matters efficiently, processing and adjudicating cases in a timely manner. In addition to complying with statutory time limits, courts must deliver certainty and immediacy to all parties.

Efficiency is plainly important in the criminal context. Defendants’ individual liberties are at stake and victims are seeking prompt justice. For a deterrence effect, accountability must follow offenses as soon as possible.

Efficiency matters beyond the court’s criminal docket as well. Expeditious case processing is essential not only to justice but also to the perception of justice. Civil cases that take a very long time to resolve can undermine the perceived legitimacy of the judicial system and reduce trust that the courts will resolve disputes fairly.

Research suggests that because of inefficiencies in the administration of justice, people may be less likely to turn to the courts to resolve their legal issues. In addition, people may be less likely to comply with court orders. Delays also result in increased financial costs.

Improving efficiency in court case flow is necessary to give confidence and satisfaction to those seeking access to justice in the courts’ civil and family divisions. Individuals pursuing personal injury, medical malpractice, employment discrimination, or other civil claims should not have to wait months or even years to have their cases decided.

Moving cases swiftly through the civil docket and family courts would also have a positive effect on public safety. For example, survivors of domestic violence may have pending divorce or child custody cases involving their abusers. When such cases languish, survivors may be further traumatized and unable to obtain closure.

Access to justice in civil matters should not solely focus on the speed of moving cases through the courts, however. The legislature also should ensure that individuals of limited means are assisted with their cases.

In civil court, individuals in poverty cannot afford an attorney and they will not have one appointed for them, as happens in criminal court. Currently a large percentage of cases involve pro se litigants, individuals representing themselves without an attorney. In certain types of cases, the fact that only one side is represented by an attorney often leads to a power imbalance. This is the situation, for example, in eviction cases: Landlords are represented by an attorney in over 90% of the cases while tenants are represented in less than 30% of the cases.

Providing legal assistance in civil cases to those who cannot afford an attorney would help enable stable families and communities. Stability, which is key to crime prevention, is challenged by housing and income inconstancy, substance use disorder, and untreated mental health conditions. Legal assistance organizations provide critical services that help low-income residents address issues impacting their families’ homes, incomes, jobs, and access to vital services. By creating meaningful access to the legal system to resolve disputes, obtain benefits or services, and defend rights and processes, these legal services bring stability to low-income Vermonters.

For example, legal assistance attorneys can help a tenant file an answer in an eviction proceeding, assist an immigrant in obtaining a work authorization permit, or ensure the reinstatement of a family’s health insurance. They can represent a domestic violence victim in a relief-from-abuse hearing, guide a client through the divorce and custody process, or help a low-income family connect with a pro bono bankruptcy attorney.

Low-income legal services help pro se litigants in poverty in a manner that supports families and communities and, in turn, advances public safety. To fulfill this role, these organizations need additional resources. Accordingly, in the current Session, I will be advocating not only for sufficient resources to improve the functioning of the courts, but also for additional resources for legal assistance organizations such as Vermont Legal Aid.

Public Safety and Access to Justice

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As I wrote in my November column, Vermonters are concerned about public safety. The following explains what the House Judiciary Committee will be doing in the upcoming Session to address this concern.

Increasing Resources for the Criminal Justice System: In the Judiciary Committee, we have learned that the two most effective crime deterrents are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. The certainty and immediacy of consequences depend on a well-functioning, well-resourced criminal justice system made up of the courts, prosecutors, defenders, victim advocates, and community justice centers. The Judiciary Committee will focus on ways to ensure that cases in the criminal justice system are efficiently processed, leaving issues related to law enforcement to the Government Operations Committee.

One of the biggest challenges our court system currently faces is a backlog of cases, which pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. Since the courts have fully reopened, there has been a surge in filings and the courts have been falling further behind.

The legislature’s primary lever to address this issue is the State’s budget. The Judiciary Committee will work with the Appropriations Committee to ensure that all vital elements of the justice system have sufficient resources. This work will enable cases to be heard a timely fashion so that individuals are being held accountable for their actions as soon as possible.

Filling Court Vacancies: When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. That process takes too long. The courts have been down several positions for a good part of the year. Fortunately, the Governor has just appointed five individuals to fill seven of our current vacancies. But it took four to six months for him to fill three positions earlier this year and nearly a year to fill a judge position in Rutland. It took two-and-a-half months to fill four of the most recent vacancies, an improvement but, still, the time it is taking is cause for concern.

A nonpartisan Judicial Nominating Board sends nominations for judicial openings to the Governor. This board is made up of legislators (currently including Democrats and Republicans), members of the Vermont Bar, and people appointed by the Governor. The Governor reviews and appoints judges from the list of nominees.

The House Judiciary Committee will likely consider a bill to speed up the process by which nominations are made to the Governor, to attempt to hold the Governor to a timeframe for appointments, and to expand the applicant pool so the Governor will have more quality potential jurists from which to choose.

Codifying Pre-Charge Diversion: Building on the successful outcomes of pre-charge programs in counties across Vermont, the Judiciary Committee is exploring the creation and codification of a statewide pre-charge diversion program. 

Under such a program, law enforcement or prosecutors can divert certain misdemeanor offenses before they reach the courts, allowing judges the capacity to manage more serious offenses. These misdemeanor offenses are referred to restorative justice entities, such as community justice centers, to hold individuals accountable and develop agreements to repair harm and build skills to prevent future crime. If an individual’s referral is unsuccessful, they are then referred back to the traditional court system. 

Some Vermont counties already offer such a program. By expanding pre-charge diversion statewide, our entire State will benefit from more timely justice interventions, reduced pressure on the courts, and consistent access for community and victim voices in restorative processes, all while creating a uniform system for implementation and reporting.

Expanding Availability of Treatment Courts: The Judiciary Committee will advocate for additional resources for treatment dockets. These dockets provide individuals who have substance use disorders and mental health conditions the opportunity to enter treatment and avoid certain consequences, such as incarceration. The goals of these dockets include keeping communities safe, supporting treatment for participants, and ending defendants’ criminal or harmful conduct. Evidence shows that treatment courts can reduce court costs, and studies have demonstrated that such courts can effectively reduce recidivism, including fewer re-arrests and less time in prison. Reducing recidivism, in turn, can reduce the caseload in our courts.

Addressing Repeat Offenders of Retail Theft:  The backlog our courts are seeing creates an additional challenge that has received a great deal of press. Individuals committing retail theft are arrested, but are then released and committing the same crimes, often in the exact same stores, the next day. The offenses that are being committed are typically misdemeanors because they involve merchandise valued at less than $900 (the felony threshold).

Due to the court backlog, courts are prioritizing felonies and violent crimes instead of misdemeanor offenses such as these retail thefts. An individual can often get arrested several times for such misdemeanor charges before they are even due in court for their first appearance. 

The Judiciary Committee will take up a bill at the start of the legislative session that will combine multiple misdemeanor retail theft charges that an individual has received over a set period. If the value of the total items taken exceeds a certain amount, these combined retail theft charges would become a felony charge, which the courts can process more expeditiously.

Combining retail theft charges will serve two purposes. The first will be to hold repeat offenders more accountable – the consequences they face will be more certain and timelier. Additionally, replacing several misdemeanor court dates with a single felony court date will free up the court’s time to move cases more expeditiously.  The House Judiciary Committee will likely seek solutions to other issues impacting public safety. In addition, work in other committees will help address root causes of crime, including substance use disorder, homelessness, and limited access to mental health services.

Vermont’s Under-resourced Criminal Justice System

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Vermonters are concerned about public safety. I have heard from constituents and fellow representatives from around the State, who share stories of individuals who have committed crimes, who are arrested, arraigned, and released, and who proceed to commit additional crimes. Why, I’m asked, aren’t the courts locking these individuals up?

Under our legal system, individuals are considered innocent until the State proves their guilt beyond a reasonable doubt at trial. Or, as happens in most cases, a plea agreement is reached between the defendant and the prosecutor, usually after a trial date has been set. It is after conviction or a plea agreement that individuals face the consequences associated with their crime, including potentially incarceration.

Individuals can only be detained before their trial in limited situations. Chapter 2, Section 40 of the Vermont Constitution provides that “all persons shall be bailable by sufficient sureties.” This means that a judge must release the defendant either on “personal recognizance” (a promise to return for the next court hearing) or on an “appearance bond” (bail). The purpose of bail is not to punish. It is not a method to detain a defendant. If a judge decides to set bail, they may set bail only at an amount that will reasonably ensure the defendant’s appearance in court and not higher. It should be an amount that the defendant can post and that will act as an incentive for the defendant to show up in court. Judges are not supposed to set bail at an amount that will prevent the release of the defendant simply because the person is unable to post the amount. If the defendant does not appear, they forfeit the bail amount.

Under the Vermont Constitution, individuals can be held without bail only in a few circumstances. They may be held if they are charged with an offense for which the punishment is life imprisonment, and the evidence of guilt is great. They may also be held if charged with a felony involving an act of violence against another person, the evidence of guilt is great, and the court finds by clear and convincing evidence that the person’s release poses a substantial threat of physical violence to any person and that no conditions of release will reasonably prevent the physical violence.

Most offenses charged in our criminal justice system do not involve such offenses that allow courts to hold the defendant without bail. So the large majority of alleged offenders will be released pending their trial. They may be subject to conditions of release, such as restrictions on their travel, people they may associate with, or place they can live during the period of release. But they will be in the community. And some of these individuals will commit additional offenses and may violate their conditions of release while they await their trial date.

But that trial date may be far in the future. And this, in my view, is the crux of the problem. The Vermont courts continue to face a significant backlog of cases. Even before the COVID shutdown, the courts had insufficient resources, resulting in delays in cases being heard. This problem was exasperated by the pandemic and the courts are still catching up.

The courts have been open post-COVID for a while now. But with the courts focused on addressing accumulated felony cases, misdemeanors are also not being processed expeditiously.

In the criminal justice area, it is understood that the best deterrent to crime is a heightened risk of being caught and the certainty and immediacy of the consequences. The risk of being caught depends on the availability and visibility of law enforcement. The certainty and immediacy of consequences depends on judicial, prosecutor, and defender resources.

What is needed, then, to help address the community’s concern related to crime is a fully resourced and functioning criminal justice system, including law enforcement, courts, State’s Attorneys offices, and the Defender General’s Office.

Of immediate concern is the fact that of 37 state judge positions in Vermont, seven are currently unfilled. When judges retire, it is taking four to six months on average to fill the positions. In the upcoming session, the House Judiciary Committee will likely consider a bill to expedite the nomination process and expand the pool of applicants for judge positions.

Even with a full complement of judges – hopefully by year’s end – courts will still need additional resources, including yet more judges and court staff, to ensure a speedy process for resolving criminal cases. In the upcoming session, the legislature should ensure that the courts, prosecutors, and defenders receive the necessary resources.

In future columns, I will explain other bills that the House Judiciary Committee will likely consider next session to reduce the pressures on the criminal, as well as civil, justice system. The best way to reduce crime, however, requires solutions beyond the Judiciary Committee’s purview. These solutions involve addressing social determinants of crime including underemployment or unemployment, housing instability, food insecurity, untreated substance use disorder, and poor access to health care. I will continue to support other committees in their work to address these underlying issues.

Guardian Ad Litem

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Vermont’s part-time citizen legislature meets from early January through mid-May. But even when the legislature is not in session, your representative’s work is not done. Off-session committees meet periodically, including the Joint Legislative Justice Oversight Committee and the Judicial Rules Committee on which I serve. Legislators also spend time helping constituents and may be appointed to serve on various study committees. And representatives often engage in informal work including discussions with advocates, other legislators, and legislative counsel (the legislature’s nonpartisan attorneys) to examine pressing issues and possible legislative responses.

It was during one of these meetings that I was recently reminded of the judiciary’s dire need for guardians ad litem, who act as advocates for children involved in court cases. I was on a call discussing a bill that would give children the right to testify in custody cases and the many factors that complicate such a procedure. A judge participating in this call noted that courts may allow a child to testify, but they must assure that allowing such testimony is in the best interest of the child. In addition, if a child is allowed to testify, the court must provide the child with a guardian ad litem.

As explained on the Vermont Judiciary’s website, a judge appoints a guardian ad litem “in every child abuse or child neglect case and sometimes in delinquency and other cases. The [guardian ad litem] makes recommendations to the court for the child’s best interests in and out of court until the case is over.”

Guardians ad litem are community volunteers. Typically, they meet with the child at least once a month; gather information from parents, foster parents, and other people close to the child; regularly communicate with Vermont’s Department for Children and Families and the child’s lawyer; attend all court hearings involving the child; and ensure that the court has all information about the child relevant to the case.

As I learned from the Chief Superior Judge, the courts do not have adequate guardians ad litem right now to be able to appoint one for every child in every case. Despite the courts’ efforts at recruitment, they are unable to meet the children’s needs.

Meanwhile, thousands of Vermont’s children and youth are part of proceedings in the courts’ family divisions. Many of these vulnerable children are victims of abuse or neglect or have been accused of delinquent acts. They may be in foster care while they face uncertainties about their futures. These children need someone to help them understand what is happening in their cases and to make sure their voices are heard. A guardian ad litem fulfills this role.

One does not need any particular education or professional background to be a volunteer guardian ad litem. The time commitment varies depending on the case and one can choose to represent one child or several. The guardian ad litem program is administered through the Court Administrators office and also has regional coordinators to provide support. New guardians attend a three-day training session and are offered ongoing training opportunities. If you are interested in this opportunity to make a profound difference in a child’s life, you can obtain further information and apply to become a guardian ad litem at www.vermontjudiciary.org/programs-and-services/guardian-ad-litem-program.

Impeachment Inquiry

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On the last day of this year’s legislative session, the House passed House Resolution 11, which created a Special Committee on Impeachment Inquiry. The Resolution recognized credible accusations of separate misconduct by Franklin County State’s Attorney John Lavoie and Franklin County Sheriff John Grismore. The Speaker of the House appointed seven representatives to the Special Committee and I was named as Chair.

The Special Committee is not a typical legislative committee. Its task is to investigate sensitive matters and decide whether its findings should lead to the impeachment of one or both of these elected officials. We have heard calls for the Committee to open its work to the public in full, but I am writing to explain that parts of the Committee’s work should not be done in public. Its work is not the equivalent of a civil trial, a criminal trial, or a pre-trial hearing. It is an investigation. The Committee is the equivalent of a prosecutor or a grand jury determining whether to bring an indictment. Such investigations are not done in public.

Investigations such as this one are kept confidential for several good reasons. Most fundamentally, confidentiality is necessary to protect the integrity of the investigation.

While the Committee’s investigation is ongoing, premature disclosure of sensitive information could lead to interference, tampering, or manipulation of evidence. By limiting access to information to those directly involved in the investigation, confidentiality reduces the risk of external influences and helps maintain the integrity of the process.

Confidentiality helps to ensure that Committee members approach the evidence and facts objectively, without being influenced by external factors or public opinion. When sensitive information remains confidential, the Committee can focus on gathering and analyzing evidence impartially. This promotes a fair and thorough investigation, preserving its integrity.

Confidentiality is also essential to safeguard the identities and statements of witnesses who provide crucial information to the Committee. For witnesses, testifying about traumatic events can be emotionally challenging, especially for victims or witnesses who have experienced abuse or other forms of harm. Testifying in a public session with numerous spectators can be intimidating and affect a person’s ability to provide an accurate and honest account of events. Testifying in public session can have significant psychological impacts on individuals involved in sensitive cases such as the ones the Committee is investigating, especially when their personal experiences are recorded and available online, subject to possible copying and rebroadcasting outside of their control.

Allowing witnesses to testify behind closed doors in executive session addresses these concerns.  Witnesses can share their experiences with the Committee without fear of intimidation or retribution. They can express themselves more freely and provide clearer and more reliable testimony. In addition, if assured confidentiality, additional victims or witnesses may be more willing to come forward to offer testimony and evidence. This promotes the flow of accurate and reliable information, enhancing the integrity of the investigation.

The rights of the respondents must also be considered. Preserving confidentiality prevents the unnecessary public exposure of potentially unfounded allegations or unverified information. It safeguards the respondents’ privacy and reputation until a thorough investigation is completed and wrongdoing, if any, is established.

The Special Committee has considered multiple precedents that support going into executive session to conduct parts of its investigation. Other legislative committees with investigatory powers, such as the House Ethics Panel, Sexual Harassment Prevention Panel, and Discrimination Prevention Panel, have even more stringent confidentiality rules and procedures than those for the Special Committee on Impeachment Inquiry. These panels conduct investigations and hear testimony in nonpublic settings, and rarely are the witnesses or the information gathered during those investigations made public.

Additionally, legislatures in Connecticut, South Dakota, and Illinois have recently conducted impeachment investigations. These states as well as the U.S. Congress have procedures requiring confidentiality and have conducted hearings in executive session during their investigations to determine whether to bring articles of impeachment.

Most on point, however, is Vermont’s own impeachment precedent. In 1976, the Vermont House Judiciary Committee held closed-door sessions to hear testimony from witnesses in the investigation that lead to articles of impeachment against Sheriff Mayo.

Chapter 1, Article 6 of the Vermont Constitution provides “that all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”

I certainly agree that the Committee is accountable to the people of Vermont. The people of Vermont expect us to ensure that elected officials who breach the public trust, who are unfit for office, are held responsible. To determine whether to hold them responsible through impeachment, the Committee needs to weigh credible allegations against the investigated officials. To do so, the Committee must conduct a thorough investigation and maintain the integrity of that investigation. And to ensure the integrity of its investigation, the Committee will need to, at times, take testimony and deliberate in executive session.