Town Meeting Report

Criminal Justice Reform

Justice Reinvestment II: The House is focused on criminal justice reform this biennium. The House Corrections and Institutions Committee has taken the lead on related initiatives. The work is driven by commitment to building a Vermont criminal justice system that is equitable and rehabilitative; a system where sentenced and incarcerated Vermonters have access to due process and services that meet their needs and set them up for successful re-entry and participation in our communities; a system where people are treated with dignity and respect; and a system that ensures public safety.

Despite foundational strengths and progress improving criminal justice outcomes, Vermont faces some challenges in continuing to safely reduce corrections populations. We have started to see an increase in violent crime, overcrowded prison facilities, and critical gaps in how people within the corrections system with behavioral or mental health needs are identified and connected to resources.

To better understand the drivers of crime, recidivism and prison population, the legislature enlisted the help of the Council of State Governments. It has led work that has included all branches of Government and stakeholders. This process is known as Justice Reinvestment II. CSG helped synthesize mountains of criminal justice data and, as a result, the House is now working on legislation that will restructure furlough and parole to ensure better consistency and access to due process; strengthen policies to allow people to earn more time off their sentences for good behavior; strengthen connections to appropriate substance use disorder treatment and mental health services in the community; and develop re-entry housing that better fits the needs of people leaving prison. We believe these policy changes and strategic investments will ensure more successful re-entry for those leaving prison and lower recidivism and re-incarceration rates, which will result in savings and greater public safety.

Sentencing Reform: Vermont’s current criminal law could be defined as a hodgepodge. It is made up of common law that has been put into statute, and new offenses created by the legislature over the years. Our criminal laws have evolved in a manner that has led to inconsistency between offense levels – similar conduct leads to different punishments. The House passed H.580, a bill I introduced, which starts the process of implementing recommendations from the Sentencing Commission related to restructuring Vermont’s criminal code. The Sentencing Commission continues its work and, by the end of the year, will make additional recommendations on proposed sentences for criminal offenses in time for the legislature to address them next biennium.

When the restructured criminal code goes into effect, it will provide more consistent interpretations of our criminal offenses, better notice to citizens and police as to what conduct is prohibited, and greater proportionality between offenses and punishment. In addition, the updated code should lead to shorter terms of imprisonment for many offenses, thus reducing our incarcerated population.

Judiciary Committee Update

Keeping Our Kids Safe: In 2020, the House continued its ongoing work to update Vermont’s child sexual exploitation laws. While this is a subject that makes many people uncomfortable, it is not a subject we can avoid if we want to protect our youth. Current state laws do not address existing file sharing technology used for child pornography, which means some people who should be charged with very serious crimes currently have a loophole. The House Judiciary Committee is working on legislation to ensure that anyone engaged in sexual exploitation of children will be held accountable.

Protecting Victims of Domestic Violence: The House Judiciary Committee is working diligently to protect those trying to escape from domestic violence with H.610, a bill that prevents people served with abuse prevention orders from accessing firearms. Often the time after an abuse prevention order is served is the most volatile and the most dangerous for the person seeking relief. 50 percent of murders in Vermont occur in domestic violence situations. The Judiciary Committee has developed H.610 to offer additional security and safety for endangered Vermonters.

Good Samaritan Law: Some laws in Vermont are unfortunate relics of past times. Under current law any unmarried woman who engages in sexual intercourse meets our legal definition of prostitution. In February, the House passed a bill (H.568) to create a Committee to review Vermont’s prostitution laws with an aim to modernize them while maintaining criminal penalties for trafficking, coercion, and exploitation of minors.
In addition, the bill added prostitution to our Good Samaritan Law. The Good Samaritan Law protects those calling for emergency help from prosecution for certain criminal offenses. For example, someone using heroin can call 911 to request emergency assistance for a fellow user who has overdosed without fear of then being charged with a the offense of possession of heroin.

By adding prostitution to the Good Samaritan Law, we are helping to ensure that people who are often in dangerous situations have better access to law enforcement protection. Whether one supports decriminalization of sex work, is opposed to decriminalization, or is on the fence, we can all agree vulnerable Vermonters should be kept safe. This law is an important step to ensuring more protections for these victims.

Education

Universal Pre-K: Universal PreKindergarten is an important part of Vermont’s education system. The House Education Committee has taken extensive testimony on a bill to clarify Act 166, a 2014 initiative that provides 10 hours of publicly-funded Pre-K per week for all Vermont students. Vermont employs a “mixed delivery” system in which both public schools and private programs play an important role. Among other clarifications, the bill attempts to streamline Universal Pre-K administration by disentangling the dual oversight roles of the Agency of Education and the Agency of Human Services. The Committee is also considering whether private providers should be required to hire licensed educators to provide direct instruction to all students within three years. (Current regulations require simply that a licensed educator be present.) The bill includes a study on the ability of private providers to meet this goal, which would examine workforce capacity, cost and funding implications.

A Focus on Literacy Education: Vermont has a great education system that requires continued oversight to ensure all our students achieve success. In the latest National Assessment of Educational Progress (NAEP), also known as the “Nation’s Report Card,” Vermont’s literacy and math scores dropped. Though our NAEP scores remain slightly above the national average, the 2019 report indicates that “better than the national average” is still alarming: 32 percent of our fourth graders scored below the NAEP “basic” level, 31 percent demonstrated only “basic” reading skills, and just 37 percent are “proficient” (28 percent) or “advanced” (9 percent).

Against that backdrop, the House Education Committee is developing a literacy bill with a clear goal: to ensure that all Vermont students learn to read. The bill takes a regional approach by offering grant money, through the Education Fund, to groups of four or more supervisory unions that are geographically adjacent. These regional groups would work together, in a sustained and targeted manner, to adopt best practices. Funds could be used for staffing, coaching, training or other approaches to guarantee that all K-3 students, and especially those who struggle, receive instruction from highly skilled teachers in the five foundational pillars of literacy: phonemic awareness, phonics, reading fluency, vocabulary, and comprehension.

School Construction: Since Vermont put a moratorium on State funding for school construction aid a decade ago, districts have been deferring maintenance or issuing bonds to pay for projects. Over last summer and fall, an informal working group led by the Vermont Superintendents Association compiled a report indicating that schools in the State face up to $565 million in pending or proposed projects. The House Education Committee is reviewing H.209, a bill on which I am the lead sponsor, that sets up a task force to assess how other states are addressing school construction, and the costs and options for Vermont.

Environmental Issues

Global Warming Solutions Act: The House has spent considerable time focusing on strategies to address climate change. In February, the House passed the Global Warming Solutions Act (GWSA) based on H.688, a bill on which I was one of the lead sponsors. The GWSA buildes accountability into our systems of reducing greenhouse gases.
Climate change is not a distant threat. It is happening today, and it is accelerating. The 2010s was the hottest decade on record; the 2000s was the second hottest. Vermont saw six storms that qualified for FEMA assistance in the 2000s. In the 2010s that number grew threefold to 18. We are experiencing more extreme-temperature events, more power outages, and more ticks than ever before.

Vermont has set ambitious climate goals, but up until now, they have lacked teeth. The lack of accountability and coordination has slowed progress. In fact, far from leading on climate, Vermont has lagged behind Massachusetts, Maine, and New York. We are the largest per capita emitters of greenhouse gas in the Northeast and the only state whose emissions have increased in the last 30 years. Massachusetts passed a GWSA law over a decade ago mandating greenhouse gas reductions. Their emissions have declined 25 percent while their economy has grown 25 percent. Maine and New York both passed similar bills last year.

GWSA lays the foundation for building a future of resilience, energy transition, and economic development. It starts by establishing an accountability framework. It also directs the State to work with community experts to develop a roadmap for action. Taken together, these steps will move our goals into action so we can proactively adopt policy to address climate change.

Act 250 Amendments: For fifty years, Act 250 has provided a critical tool for directing development in Vermont in a manner that promotes our shared vision of prosperous cities, villages and towns surrounded by working farms and forests, all set within a landscape of unspoiled mountains with clear air, and clean streams, rivers, lakes and ponds. Our State, and the challenges we face, have evolved since Act 250 was enacted. The rate of land development is increasing and has substantially exceeded the rate of population growth. Water quality is declining. Species are going extinct at an ever-accelerating rate due to loss of habitat. Extreme weather caused by the climate crisis have led to increased threats to our communities. Recognizing these issues, the House passed H.926 to modernize Act 250 to reflect today’s challenges and needs.

This bill proposes changes that require consideration of climate change, ecosystem protection, and environmental justice when proposed development must comply with Act 250 (only approximately ¼ of development in Vermont must obtain an Act 250 permit). H.926 strikes a balance between increasing project review to protect important resources while releasing certain areas from Act 250 review where we want to encourage development. It eases Act 250 regulations for downtowns and village centers where development is strategic and sustainable. It also works to strengthen natural resource protection by promoting sustainable trail development, protecting forest blocks, and supporting working forests.

Climate Change and Transportation: Last year, the General Assembly established a pilot Electric Vehicle (EV) incentive program that rolled out in December 2019. This program has already helped fund more than 50 new plug-in car purchases. The House is currently considering a $3 million proposal to continue promoting EVs, including more public charging infrastructure.

About 45 percent of Vermont’s carbon emissions currently come from transportation, so this energy sector is the biggest target in our effort to tackle the climate crisis. The House is considering increased investment in public transit this year and the promotion of Transportation Demand Management plans that incentivize carpools, biking, and telecommuting to reduce the need for commuting and parking spaces.

Older Vermonters Act
The number of Vermonters over the age of 65 is projected to jump by 50 percent over the next decade. Our current demographic makes us the second oldest state in the nation behind Maine.

H.611 establishes an Older Vermonters Act, detailing a system of services, supports, and protections for Vermont residents 60 years of age or older to remain as independent as possible into their later years. This “bill of rights” ensures that policy decisions relative to older Vermonters enhance their self-determination, safety and protection, financial security, optimal health and wellness, social connection and engagement, housing and transportation, and family caregiver support.

The legislation also directs the development of a Master Plan for Aging in Vermont to serve as a blueprint for state government, local communities, private organizations, and philanthropy to build environments and systems that promote healthy aging.

The bill ensures that the Department of Disabilities, Aging and Independent Living (DAIL) will act as a guiding voice in state government regarding the needs of older Vermonters. It also requires DAIL to set up a process for registering all business organizations providing in-home services to older Vermonters not covered by Medicaid.
Other features of the bill include a study committee to examine the issue of self-neglect in older Vermonters, as well as formal reporting on adult abuse and neglect complaints and investigations.

Reforming Noncompete Agreements
This year, the House Commerce and Economic Development Committee looked at reforming noncompete agreements. Such agreements require employees to promise not to work in the same industry in a geographic region for a certain amount of time after leaving the job. In some cases, these agreements have been overused by employers. Signing a noncompete agreement may mean that the employees cannot find gainful employment in their area of expertise or geographic region for a period of time. This disproportionately harms low-level employees, leaving them without the ability to work. At the beginning of the Biennium, I introduced a bill (H.1) that would ban noncompete clauses in Vermont. In February, the House passed an amended version of the bill that would prohibit most noncompete agreements between an individual and a business. The bill limits noncompete clauses to a small sector of employees – those that are higher-income earners (about $75,000) and are key executive or administrative employees. It provides them with ten days to review the agreement, and the ability to have the agreement reviewed by an attorney, with the cost reimbursed by the employer. Non-solicitation agreements and confidentiality agreements remain available for businesses to use with their employees to protect proprietary information and client lists.

Regulating Cannabis
In 2018 the legislature decriminalized the possession of small amounts of cannabis. Cannabis is therefore already legally in use in Vermont, and has been in use even before these legalization efforts. But, in Vermont, individuals’ primary source for cannabis is the black market. The bill the House passed (S.54) creates a regulated market for cannabis, ensures that the state collects tax revenue from the sale of cannabis, and regulates cannabis products so that Vermonters know what is in the products they purchase and consume. A key feature of this bill is the use of tax revenue to focus on preventing youth use and ensuring our roads are safe. The goal of this bill is the elimination of the black market as much as possible, delivering products of certified purity and known potency, and minimizing the growth of heavy and hazardous use by adults and any use by children.

Strengthening Vermont’s Rural Health Care Systems
During the 2019 session, the House took the lead in creating the Rural Health Services Task Force to evaluate the state of rural healthcare in Vermont and consider what is needed for the sustainability of this system. The Task Force brought together members of State government with different types of health service providers from across rural Vermont, including representatives of hospitals, mental health services, substance abuse treatment, primary care, visiting nurses, and private practice. The task force returned to the legislature at the beginning of the 2020 session with two main recommendations: to expand telehealth and to address our healthcare workforce shortages. The House is now focusing health care policy around these two themes.

“Telehealth” incorporates a variety of practices that allow for medical care and advice to be delivered remotely. In “telemedicine,” an appointment takes place via a real-time video connection between a patient and a provider. The House is working on expanding insurance reimbursement for telehealth. Telehealth has potential to increase access to healthcare for rural Vermonters, older Vermonters, and others who face challenges in getting to an appointment. Telehealth access is only available to the extent that communities have strong enough Internet to take advantage of these opportunities, so the House recognizes the link between broadband Internet expansion and access to healthcare.

Vermont’s health care workforce is currently in need of 70 primary care physicians, and this number is only expected to increase: 36% of Vermont’s primary care physicians are over age 60. Vermont is also short nearly 4,000 nurses, which puts significant strains on our remaining workforce and also impacts the quality of care for our patients. The House is putting forth a variety of plans to address this workforce need, including supporting students through scholarships and loan repayment and reducing excessive barriers to licensure. In addition, the House is considering a proposal to put additional funding into training for EMS personnel, a need that is felt by many of Vermont’s communities. We look forward to supporting educational opportunities for Vermonters while also maintaining a strong health care workforce.

Updating Our Constitution
The House is committed to defeating structural racism to build a truly just and equitable society. People of all races and genders who live in, work in, and visit Vermont should feel welcome and safe. Proposal 2, a proposed amendment to ban slavery in the Vermont State Constitution, unanimously passed the House on January 21st. It would amend the Vermont Constitution to clarify that slavery and indentured servitude in any form are prohibited. Article 1 of Vermont’s Constitution currently outlaws only adult slavery, setting the age for which a person cannot be enslaved at 21. This implies that the Vermont framers condoned child slavery. (In actuality, they were more likely allowing for youth apprenticeships that were very common at the time.) While the 13th Amendment of the U.S. Constitution banned slavery in 1865, Proposal 2 would close the age loophole and send a very clear message that slavery or indentured servitude is not condoned under the Vermont Constitution.

The process to amend the State Constitution spans two different sessions in the Legislature. An amendment must originate in the Senate and be approved by a two-thirds vote. Then it must receive a majority vote in the House. The passage of this amendment requires House and Senate approval in this biennium (before May 2020) and in the next biennium (before May 2022), and then a majority vote in the general election (November 2022). It is a deliberately slow process as changing our State’s Constitution should not be taken lightly.

 

Domestic Violence and Firearms

Vermont is a safe state. According to the Federal Bureau of Investigation, Vermont has the second lowest per capita rate of violent crime in the country. Despite this distinction, Vermont has a persistent and dangerous domestic violence problem. Over the past five years, the number of people sentenced for felony domestic violence has increased by 23%. Between 1994 and 2017, half of all homicides in Vermont were related to domestic violence.

There is a strong and deadly relationship between domestic violence and firearms. Of all women shot to death in the United States, half were shot by their intimate partners. In Vermont, over half (55%) of domestic violence homicides between 1994 and 2017 were committed with firearms. Even when abuse does not end in homicide, abusers’ access to firearms can enable them to injure, threaten, and traumatize their partners.

Often, before these harms occur, law enforcement has been involved. Of women killed by their intimate partners in the United States, half had contact with the criminal justice system about their abuse within the preceding year. Contacts with law enforcement provide critical windows of opportunities for intervention to prevent harm.

Recognizing this, in 2018 the legislature passed Act 92, which allows law enforcement to remove firearms when they respond to a report of domestic violence. Similar protections, however, are not in place for domestic abuse victims who use the civil court process to seek safety. The most lethal time for victims of domestic violence is when they initially separate from their partners. At this time they may seek a relief from abuse order requiring the abuser to cease contact.

During the current session, the House Judiciary Committee has been working on a bill, H.610, that would provide additional protections when an individual seeks a relief from abuse order in civil court. The bill seeks to ensure that these protections are consistently available to victims across the State. It standardizes procedures to ensure relinquishment of firearms by an abuser when a relief from abuse order is issued, thus taking advantage of the window of opportunity when a victim has taken the step to end the abuse.

Courts already have the authority to order relinquishment of firearms, but this authority is inconsistently exercised. Perhaps a victim does not think to tell the court that the abuser possesses firearms. Even if the court orders firearm relinquishment, it may not occur because there is not a clear path for law enforcement to retrieve firearms from households.

H.610 would add clarity and consistency to the process of seeking emergency and final relief from abuse orders that include provisions requiring relinquishment of firearms. When someone goes to court to seek a relief from abuse order, the individual must fill out an affidavit and complaint form provided by the court. The bill would require the affidavit to include a prompt asking whether the alleged abuser possesses firearms. If the affidavit or other evidence indicates that this is the case, the court must include a relinquishment requirement if it issues a relief from abuse order.

When a law enforcement officer serves the order, the officer will determine whether to immediately seek relinquishment or whether to obtain a warrant to seize the firearms, depending on factors such as safety and the logistics of removing the firearms. The bill requires that the return of service (a document filed with the court indicating that the order has been served) must state the number of firearms, if any, that were relinquished. The bill also requires law enforcement serving the order to attempt to contact the person who sought the order following relinquishment or seizure of firearms. Both of these provisions are aimed at providing information to help give the person escaping abuse a sense of security.

Ensuring that the issue of firearms relinquishment is addressed would save lives, as research demonstrates. A study published in the American Journal of Epidemiology, for example, found that state laws requiring that abusers relinquish guns are linked to a 12 to 16 percent reduction in intimate partner murders with guns.

H.610 contains other provisions to reduce firearm violence, particularly in the context of domestic violence. It would close the so-called Charleston Loophole for background checks; make it a State crime for an individual subject to an emergency or final relief from abuse order to possess, ship, transport, or receive a firearm; and allow a family member to seek an Extreme Risk Protection Order directly from the court rather than having to go through law enforcement. The bill provides additional tools to reduce firearm homicides and injuries in the context of domestic violence.

Medical Monitoring

Vermonters exposed to toxic chemicals by polluters may develop debilitating or deadly diseases that do not become symptomatic until long after exposure. It is critical to detect any disease that does develop as early as possible. This is done through medical monitoring, which includes screening and ongoing observation to detect the symptoms early of diseases linked to exposure to a toxic substance. It ensures that those harmed are referred for medical care at the earliest possible time, when effective treatment can improve outcomes.

Last year, for the second time in two consecutive Bienniums, the legislature passed a bill that would require companies that have wrongly exposed Vermonters to disease-causing toxic chemicals to pay for medical monitoring. Under the bill, to prove that they are entitled to the remedy of medical monitoring paid for by the defendant, plaintiffs would have to convince a judge or jury that (1) the company wrongfully exposed them to a known toxic substance, (2) the exposure to the toxic chemical increased their risk of developing a latent disease, (3) the exposure was at a level that could credibly trigger the need for medical monitoring, and (4) there are diagnostic tests that can detect the latent disease. While it set a high bar of proof, the bill would have provided a path for Vermonters to receive a remedy that was not available under Vermont law.

Just as he had done when the prior version of the bill reached his desk the previous Biennium, the Governor vetoed the 2019 version of the bill, claiming that it would make it difficult for Vermont manufacturers to secure insurance or cover claims. This view, unfortunately, was based on speculation regarding insurance cost and availability. Testimony before the House Judiciary Committee did not provide any evidence that manufacturers in the 16 states allowing the remedy of medical monitoring have faced problems obtaining insurance. The Governor’s veto was based on being risk averse to business uncertainty when he should have been risk averse to the uncertainty faced by individuals who have been exposed to toxic chemicals and are worried about their health.

In any event, the Governor’s concerns about insurance have largely become moot in the past month. As the legislature sought to ensure that the remedy of medical monitoring was available to Vermonters, a lawsuit seeking that remedy had been progressing in Vermont federal district court. In December, the court ruled that, indeed, such a remedy is recognized under the common law (court-made law) of Vermont.

This ruling does not, however, mean that there is no need to pass legislation establishing the medical monitoring remedy. Creating the remedy in statute as opposed to court-made law would provide more certainty to Vermonters. The bill the legislature passed is more specific as to what plaintiffs must prove to show they are entitled to the remedy. In addition, under the bill, it would be less burdensome for plaintiffs to prove entitlement to the remedy than under the court’s ruling. It would still be difficult, just less so. The bill also exempts farmers and small businesses from being subject to the medical monitoring remedy whereas the court-created remedy has no such exemptions to its application. Finally, the court-recognized remedy is not yet assured as the case will likely go through a lengthy appeals process in the courts.

In short, when the legislature returns for the second session of the Biennium, it should override the Governor’s veto of the medical monitoring bill in order to provide Vermonters exposed to toxic substances the certainty they deserve.

Updating Vermont’s Criminal Laws

Vermont’s current criminal laws need to be reexamined and reorganized. Over 900 criminal offenses are contained in various parts of the Vermont statutes. Statutory criminal prohibitions in the State cover commercial interactions, environmental regulations, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine to death. Archaic criminal offenses such as defiling a butter crate are still on the books. Some of the State’s crimes come from common law developed by judges that has long since been written into the criminal code. Others were created by the legislature over the years, often triggered by a crime or social problem that gained public interest at the time, compelling the legislature to act.

The structure, or more accurately the lack of structure, of Vermont’s current criminal law presents challenges. There are inconsistent penalties for conduct that deserves similar consequences. For example, someone who writes a check to themselves out of grandma’s checkbook can face up to 10 years in prison, but someone who uses grandma’s credit card without permission for the same amount faces only one year in prison.

In 2018, the legislature passed Act 142 to reconstitute the Vermont Sentencing Commission. Its goal is, in part, to reexamine and reorganize the State’s criminal code and make recommendations regarding criminal sentencing to the legislature. It was charged with reducing geographical disparities in sentencing and developing a classification system that creates categories of criminal offenses based on the maximum potential period of imprisonment and the maximum potential fine. In doing so, it was to review existing sentencing law and practice as well as the effective use of criminal punishment to determine whether current statutory penalties are appropriate. In short, the Commission will determine how Vermont’s criminal laws can be transformed into a more rational criminal code.

The Commission is made up of a diverse group of individuals involved in the criminal justice system: legislators, prosecutors, defense attorneys, and representatives from the Department of Corrections, Department of Public Safety, the Crime Research Group, and the Center for Crime Victim Services. I have been serving on the Commission on behalf of the House Judiciary Committee.

Since its creation, the Commission has met eleven times. In November, it issued a report as required by Act 142. The report made several recommendations, but also noted that additional work remained to be done.

The Commission recommended that the legislature implement a classification scheme that includes five classes of misdemeanors (Classes A through E) and five classes of felonies (Classes A through E), with tiered maximum imprisonment terms and maximum fines. For instance, a Class A misdemeanor would carry a penalty of maximum imprisonment of two years and a maximum fine of $10,000, whereas a Class E misdemeanor would carry no term of imprisonment and a maximum fine of $500. The Commission defined four broad categories of offenses – sexual offenses, property offenses, motor vehicle offenses, and crimes against persons – and reviewed each offense and their associated statutory penalty within the categories to determine how they should be placed in the proposed classification structure. In its report, it made classification recommendations for sexual offenses and property offenses.

Work is continuing on classifying motor vehicle offenses and crimes against persons. The Commission will also continue to evaluate whether to decriminalize certain fine-only offenses, making such offenses civil infractions rather than crimes. The end goal of this multiyear effort is to create a more consistent and understandable criminal code to improve our criminal justice system.

Access to Justice

The Vermont Supreme Court has declared that November is Access to Justice Month. This designation casts light on the fact that each year thousands of Vermonters enter courthouses as plaintiffs or defendants without a lawyer. Without legal representation, they do not have equal access to justice and can suffer profound impacts on their housing, family, livelihood and wellbeing.

Many Vermonters simply decide not to go to court to resolve legal disputes. When they do go to court, it is often without legal representation. Statistics from Vermont in 2012 show that 94% of defendants in small claims cases represented themselves; 84% of parentage cases and 54% of divorces involved at least one self-represented litigant; 90% of the defendants in landlord-tenant cases were self-represented compared to only 24% of plaintiffs; and 84% of defendants in collections and 74% in foreclosure cases represented themselves, usually facing lawyers on the plaintiff’s side. There is no reason to believe that this rate of self representation has substantially changed in recent years.

Having legal representation in court, particularly when facing a represented opponent, can be critical for equitable access to the civil justice system. Some low-income Vermonters are fighting for custody of their children or are seeking protection from an abusive spouse. Others may become homeless due to eviction or foreclosure. Elderly Vermonters may be victims of fraud. Unable to afford a lawyer, such individuals must either forego judicial remedies, perhaps failing to show up in court at all, or proceed at a disadvantage, particularly when they face a lawyer for the other side.

Many organizations are trying to alleviate this situation. The Vermont State Bar Association provides assistance through its pro bono (providing legal representation for free) and low bono (providing it at reduced rates) programs. The Vermont Law School assists through its South Royalton Legal Clinic. Vermont Legal Aid, a non-profit corporation, provides free civil legal services to those with a disability, living in poverty, or over age 60. Its partner, Legal Services Vermont, provides a legal advice hotline and coordinates pro bono services of private lawyers through the Vermont Volunteer Lawyers Project. Those facing eviction can receive assistance through the Pro Bono Eviction Clinic also run by Legal Services Vermont. Unfortunately, because of inadequate funding, these groups are able to assist only a fraction of those in need of assistance or representation.

It would be to the State’s economic benefit if more indigent litigants received legal representation. A recent report, Economic Impacts of Civil Legal Assistance Programs in Vermont, shows that money invested in providing legal services to Vermonters has a high rate of return. The report quantifies the economic impact that legal services for low-income citizens have on the Vermont economy. It determined that every dollar invested in such services returns eleven dollars to the economy. The returns to individuals and families include SSI, SSDI, and other Social Security benefits; Medicaid and Medicare-funded reimbursements; child and spousal support payments; and Veteran’s benefits. Often these returns are coming into the State economy from Federal programs. In addition, legal aid organizations in Vermont also achieved cost savings for the State. By preventing incidences of domestic violence, they reduced the need for emergency treatment and lower law enforcement costs. They also saved by avoiding the costs of foreclosure, and avoiding the costs of emergency shelters and other costs of homelessness by preventing evictions. These returns and cost savings were obtained when litigants were provided legal counsel. And the benefit is not solely monetary – the income generated or saved goes into the pockets of individuals and families to pay for groceries, rent, medicine, clothing, and transportation, providing a level of stability to these families.

In the upcoming session, the legislature should keep in mind the benefit of ensuring that indigent litigants have access to legal representation. Doing so not only provides significant economic returns, but also fulfills the State’s obligation to provide equal justice under the law.

Justice Reinvestment

The State has recently launched a Justice Reinvestment initiative to develop policy options to reduce the costs of incarceration and reinvest those savings in programs that reduce recidivism and increase public safety. But this is not the first such effort in Vermont. In the mid-2000s, Vermont faced a high and unsustainable rate of prison population growth. To address this problem, in 2007 Vermont formed a Justice Reinvestment Working Group.

The State received help from the Council of State Governments (CSG), a bipartisan organization that helps states shape public policy. To develop options for justice reinvestment, CSG worked with individuals involved with the Vermont criminal justice system to analyze its criminal justice data and interview stakeholders across its criminal justice system. As a result of this work, in 2008, Vermont enacted laws that improved screening and assessment of offenders for behavioral health treatment needs, increased their access to community-based substance use treatment programs, focused supervision resources on individuals most likely to reoffend, and expanded transitional housing opportunities and job training programs. Since then, the legislature has expanded eligibility for alternatives to incarceration, such as house arrest and furlough, and reinvested additional funds in prison and community-based treatment and reentry services.

These laws helped to reverse the upward pressure on the State’s prison population. In 2007, that population was projected to increase 23% by 2018. Instead, the population actually fell 16% between fiscal years 2007 and 2018. Even though the State’s incarcerated population has declined, Vermont has maintained one of the lowest crime rates in the nation, with the second lowest rate of property crime and violent crime.
Despite this progress, Vermont’s criminal justice system is currently facing some adverse trends. The State has had an expanding pretrial detention population (individuals held without bail or unable to post bail). Although still low, the violent crime rate has inched up. Recidivism rates, though generally quite stable, have been on the rise.

Because of these trends, State leaders recognized that we should re-evaluate whether we are effectively investing in strategies that break the cycle of crime and incarceration. They also recognized that we need to better identify, analyze and address the challenges in the State’s criminal justice system caused by the opioid crisis. Accordingly, the second Justice Reinvestment Working Group was formed, again with the assistance of CSG.
The new working group, which first met in August, consists of leaders from all aspects of the Vermont criminal justice system as well as mental health experts and legislators. It is charged with assessing the population trends and programming in the State’s corrections system and considering criminal justice reform strategies with the overarching goals of promoting safer, healthier communities and reducing costs.

The working group, with CSG’s help, will delve into the following key questions: How can the State reduce the number of people who cycle back through the system into prison while improving public safety? How can the State build on successful substance addiction treatment programs to reach additional rural and isolated communities and populations? How do individuals’ behavioral health challenges, such as serious mental illnesses and substance addictions, affect their movement through the criminal justice system and reentry into their communities? How can the State improve data sharing, tracking, and measurement of the prison population to better inform decisions and planning?

To answer these questions CSG staff will review the available data held by the Department of Corrections, courts, prosecutors, and others. They will also interview individuals in the criminal justice and mental health systems, as they did in 2007. Then the working group will analyze that material and, by December 1, 2019, report on the data collected, options developed and analyzed, and recommendations for policy changes. I will be collaborating with the Chair of the Judiciary Committee, who is a member of the working group, to further this important work.

Let’s Not Wait

“Do something!” the crowd chanted, drowning out Ohio’s governor at a vigil following a mass shooting on a busy street in Dayton. That shooting, in early August, claimed nine lives. It occurred less than 24 hours after 22 lives were taken in a mass shooting at a Wal-Mart in El Paso, Texas and less than a week after four were fatally shot at a food festival in Gilroy, California. At the end of August, another mass shooting, with a killer shooting randomly from his car, took seven lives in Odessa, Texas.

The calls to “do something” initially resonated in Washington. It appeared that the Senate would actually take up legislation expanding background checks and promoting “red flag” laws. Unfortunately, that resonance has dissipated. The issue quickly lost its salience in the nation’s capital.

Salience is defined as “the quality of being particularly noticeable, important, or prominent.” The urgency of addressing gun violence is most noticeable, important, and prominent soon after horrific events like those in Dayton, El Paso, Gilroy, and Odessa. Last year, gun violence was salient in Vermont after the mass shooting in Parkland, Florida and the near miss in Fair Haven, Vermont. The salience of those events helped pave the way for the legislature to pass, and the Governor to sign, laws making it harder for those who mean to hurt themselves or others to obtain firearms and reducing the lethality of firearms that may be misused. Act 97 allows law enforcement to show a judge that an individual presents an extreme risk of harm to himself, herself or others and obtain an Extreme Risk Protection Order, requiring the person to relinquish any dangerous weapons. Act 92 allows law enforcement to temporarily remove firearms from the scene of a domestic violence incident. And Act 94 expands the requirement for background checks to include private sales, places restrictions on the sale of firearms to those under age 21, limits the transfer and possession of high-capacity ammunition magazines, and bans the transfer and possession of bump-fire stocks.

The salience of an issue, though necessary, may not be sufficient impetus to enact laws to address gun violence. Last December, a young man committed suicide in Essex with a handgun that he had purchased four hours earlier. His parents made this incident salient, urging legislators to pass a law to establish waiting periods for firearm purchases. And the legislature did pass a bill that established a 24-hour waiting period for the purchase of handguns. But despite testimony and studies showing that such a waiting period would save lives, Governor Scott vetoed this bill.

I would prefer that legislative action on beneficial policy such as reasonable firearm regulation did not require salience: Vermont should not have to wait for the next salient event – a near miss or personal tragedy – to do something to reduce potential harm from firearms. And despite the progress that the State made last year, in light of the setback from the Governor’s veto this year, there is more to be done. Let’s not wait until the issue becomes salient again.

Let’s not wait until we have more firearm victims in domestic violence situations. Let’s find ways to make sure firearms are kept from domestic abusers or those threatening such abuse.

Let’s not wait until a child accesses an improperly-stored firearm and harms himself, herself or another person. Let’s strengthen our safe storage laws.

Let’s not wait for additional individuals to acquire firearms easily and quickly to cause harm to themselves or others. Let’s continue to push for a reasonable waiting period for the purchase of firearms. Let’s consider restrictions on the most lethal firearms.

Let’s not wait for federal action to address firearm violence. Let’s continue to act locally, knowing that we are participating in a regional solution, joined by other New England states implementing commonsense firearm restrictions.

In the next legislative session, I do not intend to wait. I will continue my efforts to “do something” to reduce the harm from firearms.

Restoring Lake Champlain

The deteriorating condition of Vermont’s waterways harms the State’s economy and way of life. Restoring them requires the State to raise sufficient funds and use them efficiently on appropriate cleanup projects and initiatives. In my June column, I explained that, after four years of consideration, the legislature agreed to a dedicated long-term funding source for water cleanup efforts. I now explain how the legislature has addressed implementing, administering, and funding clean water projects.
For years, Vermont has been confronting the growing threat to Lake Champlain from pollution, primarily too much phosphorous. This nutrient stimulates excessive growth of algae in the Lake, which poses a public health hazard and harms recreational uses, aesthetic enjoyment, and the Lake’s wildlife. Phosphorus comes from a variety of sources. It spills into the Lake from farm fields and barnyards, where it is a product of fertilizers such as manure. It also comes from eroding streambanks, stormwater runoff from developed areas including roads and parking lots, stormwater runoff from forested lands, and wastewater discharges.

In 2015, the legislature took a major step in addressing this ongoing problem when it passed Act 64, Vermont’s Clean Water Act. The law was intended to help the State meet its obligations under the federal Clean Water Act, particularly to satisfy restrictions known as a Total Maximum Daily Load (TMDL). The TMDL caps the amount of phosphorous allowed to enter twelve different segments of Lake Champlain.

To meet these caps, Act 64 modifies existing regulatory programs and creates new ones. These programs require entities to obtain permits from the Agency of Natural Resources (ANR) or the Agency of Agriculture, Food and Markets for a variety of activities that may discharge pollutants into the State’s waterways. To obtain a required permit, an entity may have to implement and maintain best management practices such as building a stormwater retention basin, which treats stormwater runoff by emulating the water-treatment provided by natural watersheds.

The legislature recognized that such practices required by regulatory programs would not reduce pollution sufficiently to meet the State’s water quality standards. Voluntary, or “non-regulatory,” projects were needed as well. Thus Act 64 amended the statutory cleanup requirements, requiring non-regulatory reduction strategies. These could include restoring wetlands, reforesting buffers along streams, reducing development in floodplains, and assisting with practical and cost-effective management practices for stormwater control from construction, redevelopment, or expansion of impervious surface that does not require a permit. To encourage nonprofit organizations, landowners, municipalities, and other entities to undertake such projects, the Act established a Vermont Clean Water Fund to provide resources to both required regulatory and voluntary projects.

During the 2019 Session, the legislature determined that oversight of voluntary projects would be improved by using a regional watershed-based implementation system for them. It passed Act 76, which directs ANR to designate “clean water service providers” for each impaired water basin. The designated entities will likely be regional planning commissions, natural resource conservation districts, or local clean water associations. The providers will approve, implement, administer, and oversee clean water projects at the local level when the project is not required under a regulatory program. Act 76 requires ANR to assign a provider for each of the Lake Champlain basins by November 1, 2020. There are six Lake Champlain basins – areas of South Burlington are within either the Winooski River Basin or the Northern Lake Champlain Basin.

To help direct the providers’ oversight, ANR will establish the amount of pollution reduction that each provider will be responsible for achieving. By November 1, 2021, ANR will establish a methodology for determining the cost per unit of pollution reduction for clean water projects in the Lake Champlain basins. This will help the clean water service providers ensure that they are reducing pollution in the most efficient way. They will consider the costs and benefits of proposed projects’ phosphorus reduction as they weigh which projects to fund. The providers will report annually to ANR regarding implementation of clean water projects and compliance with their pollution-reduction goals.

This new service delivery model will be integral to the State meeting its clean water obligations for Lake Champlain.

 

Access to Justice for Victims of Childhood Sexual Abuse

One of the Judiciary Committee’s major accomplishments this year was eliminating the statute of limitations for civil lawsuits based on childhood sexual abuse. The statute of limitations that had been on the books denied access to justice for some victims of such abuse and enabled some abusers to avoid liability.

Sexual abuse of a child often leads to depression, post traumatic stress disorder, alcohol and opioid abuse, and many other health problems. Mental health experts categorize it as an “adverse childhood experience” that can lead to years of negative impact on the victim. However, victims of childhood sexual abuse often do not disclose the abuse or seek legal remedies until long after it occurred. They may not do so because the resulting psychological and emotional damage may not manifest itself until adulthood, they are ashamed of the abuse and keep it secret or repress the memory of the abuse, or they are initially reluctant to sue an abuser who was someone the victim trusted or someone in a position of power.

In short, victims may for years be unaware of the damage they suffer due to childhood sexual abuse or may bury the abuse. But they may eventually come forward. The average age for disclosure of childhood sexual abuse is 52 years old. If there is a restrictive statute of limitations, barring claims after just a few years, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

Vermont law had provided that a victim could bring a civil lawsuit for childhood sexual abuse within six years after the abuse. Alternatively, the victim could bring a civil lawsuit within six years after the victim had “discovered” that an injury or condition was caused by the abuse. This is called the discovery rule. It extended the time within which a victim of childhood sexual abuse could bring a civil lawsuit against an abuser if the victim did not connect an injury with the abuse until long after the abuse occurred.

But, as the Judiciary Committee learned, there were problems with the discovery rule. Even though it extended the time to sue, it still imposed an unnecessary barrier to a victim’s ability to seek justice. Under the discovery rule, victims have to prove the point in time when they learned that their injuries were caused by previous abuse. There was no rational reason to place this burden on victims. The more important point in time is when victims are psychologically ready and able to pursue relief in a court of law.

Because of the drawbacks of the statute of limitations for lawsuits based on childhood sexual abuse, the legislature passed and the Governor signed Act 37 (H.330), which eliminates the statute of limitations for such lawsuits. A victim is now able to sue his or her abuser at any time, when ready to do so. The law also provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively. That means that if a victim’s claim was barred by the previous statute of limitations, the victim is now able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse. This law eliminates the statute of limitations for that claim as well.

Eliminating the statute of limitations to open the courthouse doors to adult survivors of childhood sexual abuse will shift the cost of abuse from the victims to the abusers, provide an additional deterrent to this conduct, and identify hidden child predators.

Funding Water Quality Improvement

Clean water is essential to Vermonters’ health, economy, and way of life. It is important to the State’s ecology, tourism industry, drinking water, and property values. But right now over 350 Vermont lakes, ponds, rivers, and streams have unsatisfactory water quality. The legislature has sought to address this complex issue over the past three Bienniums.

The Vermont Clean Water Act (Act 64) of 2015 was an important step in addressing water pollution statewide and meeting the State’s legal obligations under the federal Clean Water Act. Act 64 did not, however, include a necessary element for the successful implementation of the Vermont Clean Water Act: a long-term and stable funding source for the Clean Water Fund.

The State Treasurer, in a Clean Water Report submitted in January 2017, estimated that it will cost $2.3 billion over 20 years to achieve compliance with water quality requirements. The Treasurer projected that revenue from current sources available for water quality improvement over that period would be approximately $1.06 billion, leaving a 20-year total funding gap of $1.3 billion. To fill this gap, the Treasurer recommended that the State raise $25 million in additional revenues per year to dedicate to water quality. The gap in funding would initially be filled through bonded debt. The Treasurer evaluated a host of other revenue options to meet the funding needs starting in fiscal year 2020.

Based in part on the Treasurer’s report, the legislature in 2017 established a working group on water quality funding to develop draft legislation by December 2017 to implement an equitable and effective long-term funding source to support clean water efforts. The Working Group unfortunately failed to recommend a long-term funding method and instead proposed that the legislature continue to rely on government bonding for the next five years.

Recognizing that relying on bonding is not a sustainable long-term funding solution, the legislature made incremental progress last Biennium on identifying other revenues for the Clean Water Fund. It decided to continue a property transfer surcharge that was a component of Act 64 and to use unclaimed deposits on returnable beverage containers (called escheats). These sources of funds were still not sufficient, however, to cover the shortfall in necessary funding.

This year, the legislature reached agreement on an additional dedicated long-term funding source, which the Governor is expected to accept. The legislature decided to allocate 6% of the existing rooms and meals tax to the Clean Water Fund, resulting in $7.5 million in the upcoming fiscal year and almost $12 million annually thereafter. The tax is not being raised, but rather being reallocated. With these appropriations, along with funding included in the Capital Bill (bonded debt), the total available for clean water will be $50 million for fiscal year 2020 and $55 million per year thereafter.

These funding sources are not necessarily the revenue streams that I would have preferred to fund water quality improvements. I would have favored a revenue source that would promote mitigation (in other words, one that would encourage positive or discourage negative behavior) and would have a more direct relationship with water quality. An excise tax on fertilizers (reflecting the impact of phosphorous runoff) or a per-parcel fee (taking into account the impact of impervious surfaces on stormwater runoff) would have been more apt. Nevertheless, I did support the proposed solution because it relies on identified, dedicated and sustainable funding streams that the State can count on to protect this vital resource.