Judiciary Committee Session Accomplishments

            The first half of the 2021-22 biennium concluded last Friday. Despite legislating remotely, the General Assembly accomplished a great deal. The House Judiciary Committee, on which I serve, had a busy session, moving several important bills through the legislative process, some of which I highlight here.  

            Addressing Sexual Assault in Vermont:  The legislature passed H.183, which revises and clarifies our laws addressing consent to sexual activity, including the impact of alcohol consumption. The law will eliminate confusion as to when consent to sexual activity has not or cannot be given. The bill also creates a Campus Sexual Harm Task Force to confront the high number of sexual assaults that take place on our college campuses.

Eliminating the “Trans Panic Defense”:  In some states, courts have allowed defendants to rely on a “trans panic defense” to have assault charges against them lessened or dismissed altogether. The defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction towards the victim.  Act 18 prohibits the use of such a defense in Vermont.

Penalties for Hate-motivated Crimes: Act 34 updates Vermont’s response for crimes motivated by hate, which provides an enhanced penalty that a prosecutor can charge in addition to the underlying crime. To apply the enhancement, the law had provided that a prosecutor must prove that a crime was maliciously motivated by the victim’s race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability, sexual orientation, gender identity, or perceived membership in any such group. Act 34 eases the burden for prosecutors by providing that the person need not be maliciously motivated; rather the person need be simply motivated in whole or in part by the victim’s inclusion in one of the protected categories.

Clarifying Police Use of Force: Last year, the legislature enacted Acts 147 and 165 that together provided statutory standards for police use of force, including lethal force. This year, the legislature passed Act 27, which clarified that law enforcement may use chokeholds only when lethal force is justified. Under the law, before use of a chokehold or other deadly force can be justified, its use must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

Mental Health and Criminal Justice:  The legislature passed S.3, which clarifies provisions related to court proceedings in criminal cases that address either the defendant’s sanity at the time the offense was committed or the defendant’s competency to stand trial for the offense.  Under current law, if an individual is found not guilty by reason of insanity or incompetent to stand trial and is a danger to self or others, the person is committed to the custody of the Department of Mental Health for treatment.  Current law provides no way for the crime victim to be made aware when the person returns to the community. S.3 closes that gap by creating a system of victim notification in these cases.  In addition, the bill creates a forensic working group to identify gaps in mental health coverage and procedures in Vermont’s criminal justice system and to make recommendations as to whether a new forensic treatment facility is necessary to house individuals who have been committed to the custody of the Department of Mental Health.

Punishing Sexual Exploitation of Children: Act 29 makes simulation of sexual conduct with a child illegal. Before Act 29 became law, explicit depictions of sexual exploitation of children were illegal only if physical contact is shown. Material that suggested sexual exploitation, but where the child and adult are inches apart or where the camera angle is such that physical contact is implied but not visible, was not against the law. Act 29 makes such conduct a crime. The Judiciary Committee worked on additional bills that the legislature passed, including Act 26 repealing the statute of limitations for civil actions based on childhood physical abuse and H.87 establishing a classification system for criminal offenses.

Mental Health in the Criminal Justice System

The following is the report that I delivered on the floor of the House for Senate bill S.3.

S. 3 contains a number of provisions related to court proceedings in criminal cases that address either: (1) the defendant’s sanity at the time the offense was committed; or (2) the defendant’s competency to stand trial for the offense.

The first point to understand about S.3 is that while the insanity defense and a defendant’s competency to stand trial both concern a criminal defendant’s mental health status, the two concepts are very different. 

The insanity defense concerns the defendant’s mental health status at the time the offense was committed. A person is not guilty by reason of insanity if, as the result of a mental illness, the person either could not understand that their conduct was criminal or could not conform their conduct to the requirements of the law.  It is a complete defense if a person is found not guilty by reason of insanity; the person is not guilty and cannot be charged with the crime again.

A defendant’s competency to stand trial is different. It concerns the defendant’s mental health status at the time of the trial, not at the time the offense was committed.  And the standard is different. A defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense.  Also, unlike the insanity defense, a person found incompetent to stand trial can be brought to trial for the offense later, after the person regains competency. 

Current law describes in great detail the court procedures related to both the insanity defense and competency to stand trial.  S.3 proposes several amendments to these procedures.  I’ll explain the first three sections of the bill chronologically, in the order in which the procedures occur when sanity or competency are at issue.

Section 1 of S.3 can be found on page 2417 of today’s calendar.  This section deals with the psychiatric examinations that must occur when the question of the defendant’s sanity or competency has been raised in a criminal proceeding. There are separate examinations, one for sanity at the time of the offense and one for competency to stand trial. The current statute requires that both examinations take place, so there must be an evaluation of both the defendant’s sanity and the defendant’s competency.

Because sanity and competency are two different questions, however, it is common for only one of them to be raised in a particular case.  Subsection (a) rewords the statute to make clear that there may be examinations that evaluate the defendant’s sanity, or the defendant’s competency, or both.

Subdivision (c)(1) clarifies that the examinations will be conducted either by: (1) a psychiatrist (if the person‘s insanity or incompetency is the result of a mental illness); or (2) a psychiatrist and a psychologist (if the person‘s insanity or incompetency is the result of a developmental disability).  

This subdivision also addresses who receives the report after the examination is completed. Currently, the report goes to the State’s Attorney and the respondent’s attorney if the respondent is represented by counsel.  The bill expands the distribution list to include the respondent, the Commissioner of Mental Health and the Department of Disabilities, Aging, and Independent Living, or DAIL.

Subdivision (c)(2) addresses those cases where issues have been raised regarding both the defendant’s sanity at the time of the offense and the defendant’s competency to stand trial, and the court has ordered an examination on each one. In these cases, Subdivision (c)(2) requires that an examination of the defendant’s sanity should only be undertaken if the defendant is first found competent to stand trial, unless the defendant requests that the examinations occur concurrently. This language follows model language established by the American Bar Association.

If the sanity evaluation does not occur at the same time as the competency evaluation, the provision requires the psychiatrist or psychologist to make a reasonable effort to collect and preserve any evidence necessary to form an opinion as to sanity. If the defendant does regain competency to stand trial in the future, a sanity evaluation may then be required to determine whether the defendant may be not guilty by reason of insanity.  This provision ensures that, at that time, necessary evidence has been preserved for the sanity evaluation.

Section 2

In Section 2, we move to the next step of the proceedings.  This section concerns the court proceeding required after a defendant has been found either to have been insane at the time of the offense or to be currently incompetent to stand trial.

After such a finding, the court holds a hearing to determine whether the person is a danger to self or others.  If a danger to self or others, the person must be committed to the Department of Mental Health for treatment. If the person‘s insanity or incompetency is the result of a developmental disability and the person is a danger to self or others, the person is committed to the Department of Aging and Independent Living.

Currently, the statute provides that the person’s criminal defense counsel continues to represent the person at the hearing regarding whether they are a danger to self or others.  But this hearing is no longer a criminal proceeding to determine whether the defendant is guilty of a crime.  It is a separate commitment proceeding to determine what, if any, treatment the person needs to protect the safety of the person and the public. An attorney assigned from the Defender General’s Office is not an expert in a such a proceeding.  Accordingly, section 2 provides that the person is entitled to have counsel appointed from Vermont Legal Aid, whose attorneys have significant experience in representing people in such hearings.  A person who would prefer to be represented by a private attorney can still choose to do so.

Section 2 also provides that the Department of Mental Health and, if applicable the Department of Aging and Independent Living, are entitled to appear at this particular proceeding and call witnesses.

Section 3

Moving to Section 3 of the bill and moving along in the chronology of the proceedings.

If the court does find the person is a danger to self or others and commits the person to the custody of the Department of Mental Health for treatment, current law provides no way for the crime victim to be made aware when the person returns to the community. Section 3 closes that gap by creating a system of victim notification in these cases.  

Under Section 3,the victim notification requirement applies if a person has been committed to the custody of the Department of Mental Health after either (1) having been found not guilty by reason of insanity or (2) having been found incompetent to stand trial. Notification is not required if the criminal case has been dismissed because these are typically minor matters such as shoplifting where notice to the victim is not necessary.

When notice to the crime victim is required, the Commissioner of Mental Health must provide it whenever one of 3 circumstances occurs.

First, the Commissioner must provide notice at least 10 days before the person is discharged from the custody of the Department of Mental Health, or at least 10 days before the person is discharged to the community for treatment under what is called an order of non-hospitalization.

Second, notice is required at least 10 days prior to the expiration of a commitment order if the Commissioner decides not to seek continued treatment of the person.  This ensures that notice is provided even when there has not been a formal discharge if the person will be returning to the community.  

And third, notice is required any time the person elopes from the custody of the Department of Mental Health. “Elope” is the term used in the mental health statutes for when a person escapes from the Department’s custody.

If notice of the action is required, the Commissioner must notify the State’s Attorney of the county where the prosecution originated, or the Attorney General if that office prosecuted the case.  The State’s Attorney or Attorney General must then provide notice of the action to any victim of the offense who has not opted out of receiving notice.

Section 4

Turning to Section 4 of the Bill.

When a defendant provides notice that sanity at the time of the offense is an issue in the case, Vermont Rule of Criminal Procedure 16.1 permits the prosecution to ask the court to allow its own psychiatrist or other expert to conduct a mental examination of the defendant.  However, the Rule does not permit the prosecution to request its own exam when the defendant’s competency to stand trial is at issue.  Section 4 does so, adding new language that permits the prosecution to ask the court to allow its own psychiatrist to examine the defendant when the court-ordered examiner has found the defendant incompetent to stand trial.

I will briefly review sections 5 through 7.  Your Judiciary Committee worked closely with the Health Care Committee on these sections of the bill and they reflect recommendations from that Committee as well as the Committee on Corrections and Institutions.  In my report, I will only briefly summarize these sections. After my report on behalf of the Judiciary Committee and after the report of the Committee on Appropriations, the Representative from Northfield will provide further details regarding these sections.

Section 5 requires the Department of Corrections and the Department of Mental Health to jointly submit a report to the General Assembly by January 1, 2022.  The report must contain an inventory and evaluation of the mental health services provided by the entity with whom the Department of Corrections contracts for health care services.

Section 6 requires the Department of Mental Health to convene a Forensic Care working Group of interested stakeholders to provide recommendations on issues related to mental health and the criminal justice system.

Section 7 adds two members to the Joint Legislative Justice Oversight Committee, the first of whom is a member of the House Committee on Health Care and the second of whom is a Senator chosen at-large.

Section 8 provides that the act shall take effect on July 1, 2021.

The Committee heard from the following witnesses:

 General Counsel, Department of Mental Health 
 Impacted Citizen, Bennington 
 Training Coordinator, Team Two, Vermont Care Partners, which is an organization that provides training for law enforcement and mental health crisis workers.
 Member from Northfield 
 Member from Bennington
 Executive Director, Center for Crime Victim Services 
 Legislative Counsel, Office of Legislative Counsel 
 Deputy Commissioner, Department of Mental Health 
 Chief Superior Judge, Vermont Judiciary 
 Impacted Citizen, Colorado 
 Director of Mental Health Law Project, Vermont Legal Aid 
 Defender General, Vermont Defender General’s Office 
 Founder, MadFreedom
 President, Vermont Medical Society 
 Deputy Director, Vermont Network Against Domestic & Sexual Violence 
 Supervising Attorney, Disability Rights Vermont 
 Assistant Attorney General, Vermont Attorney General’s Office 

Addressing State Pension Liabilities

The pensions of Vermont’s teachers and public employees are ailing. In the 1990s and early 2000s, the State failed to contribute required funds into the pensions and the 2007-09 recession harmed the pensions’ return on investments. Over the past 13 years, the Vermont legislature has been contributing extra funds into the pensions to make up for the earlier underfunding and the suppressed investment returns.  Nevertheless, the pensions are still deficient, as we learned earlier this year when the State Treasurer produced a report showing that the systems are in much worse shape than we thought. 

The two pension plans do not have enough assets to pay for the expected costs of the retirement benefits they must pay out in the future.  The gap between the amount of future retirement benefits that must be paid and the value of the assets in the plan is called the unfunded actuarial accrued liability. This gap has grown substantially in recent years and it is expected to worsen in the future unless action is taken.

Projections from earlier this year show that the unfunded liability for the teacher and state employee pensions will grow by another $604 million just in the coming year, bringing the total unfunded liability to nearly $3 billion.  The state employees’ pension is 34% underfunded while the teachers’ pension is 49% underfunded. Plans that approach a 50% funding level are considered to be in critical condition. To address this increasing shortfall, the State’s contribution to the fund has substantially increased.

Every year, the State contributes funds to the pension plans. The amount contributed is determined by actuaries using assumptions regarding current and future demographics such as the ratio of current employees to retirees, life expectancy, investment returns, payouts to beneficiaries, and other variables. Trends in these variables have required an ever-increasing State contribution. More and more retirees are drawing from the plans relative to the number of current employees paying in.  Life expectancy has increased.  The number of beneficiaries and the amount they are being paid is increasing. And investment returns have not met projections.

Due to these factors, the State must contribute an increasing amount of funds to the teacher and state employee pension plans to address current and anticipated payouts to beneficiaries. An additional contribution is required to pay down the unfunded liability.  All told, the State’s contribution to these pensions increased this year from about $200 million to over $300 million. That payment represents 13% of Vermont’s general fund for Fiscal Year 2022.

            There are consequences if we do not get a handle on the State’s burgeoning pension liabilities. The State’s bond rating could be downgraded, leading to increased costs for capital projects such as updating wastewater treatment plants or building a new women’s correctional facility. In addition, growth in the unfunded liability means that more money must be paid into the pension system from the State budget. This, in turn, will drain resources from other areas. If the current trend continues, we will not be able to fund other key spending priorities. And if the State does not bolster the position of its pensions now, when a recession inevitably hits we will be unable to meet the State’s pension obligations without significant cuts to services or an exorbitant tax increase.

            The Vermont House is not sitting idly by. Earlier this year, the House Government Operations Committee floated a proposal that would provide additional funding to the pension plans and make structural changes to those plans. To allow more time for other stakeholders including the Senate, the Governor, and representatives of the teachers and state employees to work with the House on a solution, the Government Operations Committee dialed back its initial proposal.  Last week, the House passed a bill that requires these stakeholders to work together to recommend changes to stabilize the pension systems.  Such action is necessary to honor the State’s commitments to Vermont’s active and retired teachers and State employees while also fulfilling other State priorities and recognizing the limits on our taxpayers’ ability to pay. In addition, the bill makes immediate changes to the entity that makes investment decisions for the pensions, bringing more expertise and independence to the governance of the retirement funds.

Setting Standards for Police Use of Force

Last week, the House passed a bill that will update two laws enacted last year related to the use of force by police.  Act 147 established a criminal offense, holding law enforcement officers criminally accountable if they use a chokehold on a person and cause serious bodily injury or death. Act 165 established statewide statutory standards governing police use of force, including the use of deadly force.

Act 165 tightened the existing restrictions on use of force in several ways. First, in determining whether a use of force was justified, Act 165 requires a court to look, in part, at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, without also considering what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, that use must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 and Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety (DPS) to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and continues its work on those implementing policies.

To assist it in drafting these policies, DPS asked the legislature to clarify certain parts of the use of force law. Last week, the House passed H.145, which would provide the necessary clarifications.

The primary need for clarification involves chokeholds. H.145 clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address. The bill also makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified. Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  But there are situations where the use of a chokehold may be the best or only option that a law enforcement officer has in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities than if the officer could use a chokehold in such a situation. In short, H.145 continues strict restrictions on the use of chokeholds but recognizes that in very limited circumstances their use may be justified. 

Report for H.87 – and act to establish a classification system for criminal offenses

Below is the report that I gave today in the House for H.87, which passed on a unanimous voice vote.

Vermont’s current criminal law is a patchwork of common law crimes that have been put into statute and new offenses created by the legislature over the years. With no attempt to standardize them, our criminal laws have evolved in a manner that has led to inconsistencies. Similar conduct leads to different punishments under different parts of the criminal code.  Not only that, the structure of the laws itself is confusing to those who encounter the criminal justice system.

Recognizing that Vermont needed to modernize and simplify its criminal code, in 2013 the Legislature passed Act 61.  This law created a Criminal Code Reclassification Working Group to review all of Vermont’s criminal penalties as well as to look at other state’s sentencing structures.  The Working Group was tasked with recommending a sentencing structure that allows for consistent sentencing that match the gravity of the offense and the culpability of the offender.

In 2015, the Working Group recommended a 5-tier classification system for felonies and misdemeanors. Each tier has a maximum term of imprisonment and a maximum fine. In 2018, in Act 142, the Legislature tasked the Sentencing Commission with making recommendations for which offenses should be placed in which tier. 

The Commission has been working on this project for the last 3 years. It includes prosecutors, defense attorneys, judges, law enforcement, legislators, and other stakeholders. Their initial recommendations formed the basis last year of H.580, which the House passed. Because of COVID and the State of Emergency, H.580 was not taken up by the Senate and that bill now forms the basis of what you have before you in H.87.

To reach our goal of having a rational, consistent, and simplified criminal code, H.87 establishes the structure of the code, or the classification system, based on the Commission’s recommendation. H.87 also starts to place criminal offenses into their appropriate classes, focusing on property crimes based on the Commission’s recommendation. 

Because of the complexity of this project, the Commission has phased its recommendations for different categories of crimes. Your Judiciary Committee is doing the same. We are starting with property crimes, but in future bills, we will address other Sentencing Commission recommendations on sex crimes, crimes against persons, drug crimes, and other categories. 

Turning to the bill’s language.

Section 1 of the bill is found at page 436 of today’s calendar.  This section sets up the classification system for criminal offenses.  There are five felony level classifications, from Class A that carries a maximum sentence of life imprisonment and a maximum fine of $100,000, to Class E, which carries a maximum term of imprisonment of three years and a maximum fine of $7,500. 

The bill also sets forth five classes of misdemeanors, from a Class A misdemeanor with a maximum 2-year term of imprisonment and maximum fine of $5000, to a Class E misdemeanor that carries no incarceration and a $250.00 fine. 

The bill in subsection (c) provides that the court must consider defendant’s financial ability to pay a fine when determining the amount of any fine. This provision codifies the current discretionary practice of courts.

Section 54 of title 13, starting on page 437 of today’s calendar,  provides transitional provisions.  When this bill goes into effect, in July 2022, all crimes that the legislature has not explicitly placed into a class will be automatically placed into a class.

But we should be able to address all crimes by July 2022 so that this automatic placement will not be necessary. The Commission has continued its work.  It has provided recommendations on sex crimes and crimes against persons and should have the remaining offense categories addressed by the end of the year. There will be plenty of time for the legislature to act on its recommendations before the transitional provisions go into effect.

The remainder of the bill addresses the classification of property crimes.  Currently, the sentence for many of Vermont’s property crimes depends on the value of the property involved. 

The Commission recommended that we keep this basic principle and use a tiered system of sentencing depending on the value of the property. Tiered systems for determining penalties for property crimes are commonly used in other states.

The tiers can be found at pages 438-439 of today’s calendar.  The Judiciary Committee followed the Commission’s overall recommendation, but modified the specifics of the proposed tiers. 

The key difference between the Commission’s recommendation and H.87 relates to what is referred to as the felony threshold.  Under current law, the felony threshold for many property crimes is $900.00.  If you steal over $900.00, you are facing a felony.  If under $900.00, a misdemeanor.  The Commission suggested that the felony threshold should be moved up to $10,000.00.  But the Committee felt that moving from $900.00 to $10,000.00 was too large a leap.  Also, that felony threshold would be far above what any other states have set.  The Committee therefore reduced the threshold to $3000.00 to be more in line with other states.

In addition, the Committee changed the maximum terms of imprisonment for offenses involving values over the felony threshold.  The Commission recommended that felony offenses be categorized as either Class D felonies, carrying a maximum term of imprisonment of 5 years, or Class C felonies, carrying a maximum term of imprisonment of 10 years. The Committee, however, decided that it was more appropriate for felony offenses to be charged as either Class E felonies, carrying a maximum term of imprisonment of 3 years, or Class D felonies, carrying a maximum term of imprisonment of 5 years.

How the tiered system works, and how we justified using maximum terms of imprisonment of three or five years for felonies, is best explained by way of an example.  I’m going to skip over section 2 of the bill for now to explain.

Lets turn to the crime of False pretenses, which can be found at page 442 of today’s calendar. Say you commit the crime of false pretenses and the value of the property is less than $900 –  under current law your maximum term of imprisonment would be one year.  But if the value of the property is over $900, that maximum jumps up to ten years. The bill replaces this structure so that it is more gradual. It provides that the sentence will depend on the value tiers and classification system found at sections 52, 53, and 55, of this title, which can be found at pages 436 to 439 of today’s calendar. Under the bill, if the value involved in a false pretenses charge is over $3000 but less than $100,000, the offense would be a Class E felony, with a maximum term of imprisonment of 3 years.  Over $100,000, it would be a Class D felony, with a maximum term of imprisonment of 5 years.

The Committee looked at actual sentences imposed over the past five years for the crimes addressed in H.87, including for the false pretenses offense.  The average minimum term of incarceration for a felony-level false pretenses offense was 1.1 years.  The average maximum term was 3.6 years.  Offenders simply are not being sentenced to anything close to the 10-year maximum term. The penalty structure in H.87 is in line with the typical sentence for the false pretenses offense and the other property offenses in the bill. 

A number of the property offenses addressed in H.87 were not susceptible to tiering by value and therefore do not follow the tiered system.

So, for instance, the offense of identity theft, found at page 443 of today’s calendar, is classified as a Class E felony for a first offense and a class C felony for a second offense.  It does not use the tiered property value for purposes of determining a sentence.  Simply put, it would be difficult to put a value on what is taken when one’s identity is stolen.

I won’t go through every one of the property crimes in H.87.  Sections 3 through 21 and 23 through 50 of the bill modify the penalty provisions of Vermont’s property crimes by either following the tiered system or classifying the offense as a class C, D, or E felony or a class A, B, C, D, or E misdemeanor. 

I will turn your attention to Section 22 of the bill found at page 446 of today’s calendar.  This section creates a new crime of organized retail theft.  This new crime is included due to a concern raised in Committee.  There are groups of individuals acting in concert who shoplift from stores and sell the goods on the black market.  These individuals take particular care that they are not exceeding the value of goods such that they may face a felony if caught. The new offense of organized retail theft would allow law enforcement to aggregate the total value of stolen goods over a period of time to determine the appropriate sentencing level. The Committee believed that it was important to add this new offense to provide law enforcement with an additional tool to address this activity.

I will turn briefly back to section 2 of the bill, found on page 439 of today’s calendar.  This section aligns Vermont’s attempt law with the new classification scheme.

Finally, section 51 of the bill provides that the law would become effective on July 1, 2022.

The Judiciary Committee heard from:

Executive Director, Center for Crime Victim Services 
Legislative Counsel
Executive Director, Crime Research Group of Vermont
Director of Research, Crime Research Group of Vermont 
Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs 
Assistant Attorney General, Vermont Attorney General’s Office 
Advocacy Director, ACLU of Vermont 
Judge, Vermont Judiciary 
Head of Appellate Division, Office of Defender General 
Vice Chair, Sentencing Commission 
Chair, Sentencing Commission 

The vote in the committee was 11-0.

H.87 initiates the modernizing, rationalizing, and simplifying of Vermont’s criminal code. We ask you for your support.

Report for H.145 – Amendments to Use of Force law

The following is the report I gave today on H.145, which passed on a unanimous voice

Last year, we passed two bills involving police use of force.  S.219, which became Act 147, established a criminal offense, holding law enforcement criminally accountable if they used a prohibited restraint on a person and caused serious bodily injury or death.  A prohibited restraint was defined as a maneuver that impedes the flow of blood or oxygen to the brain.  In other words, a chokehold.

The second bill, s.119, which became Act 165, established statewide statutory standards for police use of force, including the use of deadly force. Act 165 tightened the existing restrictions on use of force in several ways.

First, in determining whether a use of force was justified, Act 165 requires a court to look at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, not what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, it must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 along with Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and it continues its work on those implementing policies. To assist it in drafting these policies, DPS has asked for clarifications of certain parts of the use of force law. H.145 provides the necessary clarifications.

The primary need for clarification involves prohibited restraints, or chokeholds.

Under the laws we passed last year, an officer who uses a prohibited restraint (chokehold) that results in death or serious bodily injury can avoid criminal liability by invoking the justifiable homicide defense.  That defense applies if deadly force was justified under the standards set forth in Act 165. The laws passed last year provide an indirect way of getting to the conclusion that use of a chokehold is permitted if deadly force is otherwise justified. H.145 is more direct, clear, and transparent in reaching this conclusion.

First, H.145 changes the terminology in the law.  Instead of the term “prohibited restraint,” the bill would call it what it is – chokeholds.

Second, it clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address.

Third, it makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified.

Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  Before use of a chokehold can be justified, it must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

There are situations where the use of a chokehold may be the best or only option that a law enforcement officer may use in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities then if the officer could use a chokehold in such a situation.

In short, H.145 provides strict restrictions on the use of chokeholds, but recognizes that in very limited circumstances their use may be justified.

H.145 provides other clarifications that I will cover in my section by section overview.

Section-by-Section Analysis

The language of the bill can be found starting at page 458 of today’s calendar.

Before I proceed to the text of Section 1, I will address a technical issue as to how H.145 appears in today’s calendar. You will note that all of the language in Section 1 of this bill is underlined, which usually means that it is new language. Here, it isn’t really new language.  Most of Section 1 of H.145 is the same language that was passed as Act 165 last year.  But Act 165 does not go into effect until July 1 of this year.  The way we amend a law that has not yet taken effect is to repeal it and to reintroduce it with any changes. So, although it looks like H.145 is all new language, most of it is language we passed in Act 165.

On the Judiciary website, under today’s date, you can find a document under my name that highlights the language in H.145 that changes the language in Act 165.

In addressing Section 1, my report will focus on those aspects of Act 165 that this bill changes.

In Section 1, H.145 defines chokehold as “any maneuver on a person that employs a lateral vascular neck restraint, carotid restraint, or other action that applies any pressure to the throat, windpipe, or neck in a manner that limits the person’s breathing or blood flow.”  This definition is more straightforward than that provided in Act 165 and covers the actions that we wish to prohibit.

Totality of the circumstances is modified from Act 165 by adding the following language:  “including the conduct of the person or persons involved.”  This clarifies that it is not just the conduct of the law enforcement officer that is relevant.  The conduct of the person or persons involved in the situation is also relevant to a determination of the justification of a use of force by the officer.

Subsection (b) found at page 459 of today’s calendar provides the standards for use of force.  The first four subdivisions of this section contain the same language as Act 165 but have been reordered for clarity.  Subsection (b)(1) was subsection (b)(4) in Act 165 and subsection (b)(2) was subsection (b)(3) in Act 165.

Subsection (b)(7) on the top of page 460 of today’s calendar provides that an officer has a duty to intervene when the officer observes another officer using a chokehold in a situation where deadly force is not justified.  This provision was in the use of deadly force section in Act 165, but we moved it to the use of force section. The placement in the use of force section, as opposed to the use of deadly force section, clarifies that a chokehold may not be used when deadly force is not justified and that officers must intervene in the event that a chokehold is being used in such a situation.

Subsection (c) sets forth the standards for use of deadly force.  The standards set forth in this section are the same as found in Act 165 with the exception of new subsection (c)(6), which provides that “a law enforcement officer shall not use a chokehold on a person unless deadly force is justified. . .”

Section 2 of the bill, starting at the bottom of page 460 of today’s calendar, replaces the definition of “prohibited restraint” with the definition of a chokehold in the criminal offense for the unjustified use of a chokehold.

Section 3 replaces the term prohibited restraint with the term chokehold.

Section 4 changes a cross reference in 13 VSA 2305(3), the justifiable homicide defense.

Section 5 and 6 change the terminology and definition from prohibited restraint to chokehold.

          Sections 7, 8, and 9 are a bit technically complicated, but here is the upshot of what they do.  They repeal the use of force standards set forth in Act 165, which are replaced by the standards in this bill.  And they make the provisions in this bill effective on September 1, 2021.  This is an extension of time from July 1, 2021, to give law enforcement sufficient time to complete its policy and additional training on the use of force standards.

          We heard from the following witnesses:

Legislative Council

Retired Director of the Human Rights Commission

Chief, South Burlington Police Department and representing the Vermont Association of Chiefs of Police

Representative from Northfield

Major, Vermont State Police

Executive Director of Policy Development for the Department of Public Safety

Staff Attorney, Disability Rights Vermont

Chief of Police, Montpelier, and representing the Vermont Police Association

Deputy States Attorney from the Department of State’s Attorneys & Sheriffs

Advocacy Director, ACLU Vermont

Commissioner of the Department of Public Safety

Windham County State’s Attorney

Director of the Civil Rights Unit of the Office of the Attorney General

Attorney from MadFreedom

The vote in your Judiciary Committee was 11-0-0

AMENDMENT

The First instance of amendment provides clarity in the chokehold offense that passed last year and is the subject of Section 2 of H.145. The language that is being amended can be found at page ______ of today’s calendar.  It clarifies that this criminal offense does not apply if a chokehold is applied in compliance with use of deadly force standards.

The Second instance of amendment is technical and recommended by legislative council as the more appropriate way to accomplish what sections 7, 8, and 9 in H.145 sought to accomplish.  Namely it repeals Act 165 and extends the effective date for the use of force standards to give law enforcement sufficient time to complete its policy development and training on those standards.

Town Meeting Report – Legislative Update

Introductory Message

The 2021-2022 biennium began in total virtual mode with legislators logging into Zoom from 150 locations across Vermont. We are mirroring the schedule of a normal in-person session, though the process of legislating remotely 5-7 hours per day is somewhat slower than normal. Despite these challenges, we are making progress on critical policy goals, including:

  • Creating an equitable COVID recovery plan that rebuilds the economy in all 14 counties
  • Increasing affordable housing options for Vermont’s working families
  • Investing in the state’s child-care system to improve access, affordability, and quality
  • Expanding broadband service to rural communities for telehealth, education, and remote work
  • Crafting policies with a revised lens of racial and social equity that uplift BIPOC, LGBTQIA+, women, people with disabilities, and other vulnerable Vermonters

Below, I provide highlights of some of the work of the House Committees, starting with the Judiciary Committee, on which I serve.

Judiciary

Clarifying Police Use of Force

Near the end of the legislature’s extended session last year, and in the wake of the murder of George Floyd and the nationwide outcry that arose in response to it, we passed legislation establishing new standards for use of force by law enforcement officers that specifically prohibited chokeholds. This year we are revisiting and clarifying this law via H.145. All Vermonters deserve the assurance that they will not be subjected to excessive use of force by law enforcement in any situation. Our law enforcement officers deserve a clear and concise statement of what Vermont law allows and prohibits while they conduct their jobs and protect the public. Our work on this important legislation will add clarity to the law and better establish the protections for all Vermonters put in place last year.

Smoothing Paperwork Path for Home Buyers & Sellers

COVID has disrupted many aspects of our daily lives. One important event that has been completely altered is the buying or selling of a home. While we are in quarantine, it is not possible to get the buyers and sellers into the same room for the signing of legal documents. As a result of this, signings are currently being done by other people using power of attorney for the actual buyer and seller. Because this is a new process, it is inevitable that some of these documents will contain errors—not properly referencing the power of attorney used to carry out the signing of the documents, for example. We are working on a bill, H.199, that will ensure the validation of these documents despite the errors that may creep into the current process. Vermonters attempting to get through the challenges of COVID should not discover years later that one of the most important legal transactions they will ever conduct, the buying of their home, is not technically valid. We are working to ensure stability in this process for Vermont homeowners.

For additional details regarding the work of the Judiciary Committee, please review my post dated February 25, 2021.

Appropriations

Fiscal Year 2022 Budget

House Appropriations is currently working on the FY2022 budget, which covers the programs of state government and its community partner organizations from July 1, 2021 to June 30, 2022. The committee is on target to present its proposed budget to the full House in the middle of March.

Balancing the extraordinary infusion of federal and state revenues that will not be sustained over time while meeting the extraordinary need of Vermonters as they endure the pandemic are the principal challenges of developing the budget. In a typical year, there is a structural gap between revenues and expenditures. This year, when we have 10 times the usual number of people living in temporary housing, when we have five times the usual number of unemployed people, when every downtown and rural community has businesses that are struggling on a day-to-day basis, the challenge is making strategic use of non-recurring money that will help Vermont build back better.

The committee is going deep into the numbers, hearing budget testimony from all state-related entities from all three branches of government. It is looking at performance accountability in new and old initiatives. It has sought input from the public, hearing from 73 Vermonters in oral testimony and 29 in written testimony. It has also sought recommendations from each of the legislative policy committees.

The goals? To craft a fiscally responsible budget that supports and strengthens Vermont communities and families. To protect and lift up the most vulnerable Vermonters. To move us beyond a maintenance budget, across all 14 counties, and leave no one behind.

Federal Support: Dollars Flowing from DC

Since the early weeks of the pandemic in 2020, the COVID-related dollars flowing to Vermont from Washington have been substantial. As of mid-January 2021, the federal infusion equaled approximately 20 percent of our state’s economy. It is estimated to yet reach as much as 30 percent.

As of early December, approximately $5 billion had come to Vermont, much passing directly to agencies and departments for specified COVID relief purposes. Within this amount was the $1.25 billion that became the Coronavirus Relief Fund (CRF), from which the legislature had authority to appropriate dollars to target specific support of Vermonters and their communities. Allocations ranged from assistance to dairy and non-dairy farms, working lands, state parks and other public lands to connectivity, health care stabilization, and childcare; to a variety of economic business sectors, both for-profit and nonprofit, to UVM and the Vermont State Colleges system; from municipalities and pre-K-12 school districts, to all manner of housing and justice-related entities.

Because use of CRF dollars had to follow strict federal guidance, until Washington unexpectedly changed that guidance at the very end of 2020, portions of allocations were reverted, reallocated, transferred. The bottom line is that, as of early February, $6.3 million was back in the CRF. The House Appropriations Committee is considering carefully so as to allocate those dollars to the greatest immediate needs.

Note that all of this federal help, with even more on the way, is one-time money. Once we are at the better side of the pandemic, Vermont must stand on its own in support of Vermonters coping with residual and on-going economic, emotional, and social hardship.

Commerce & Economic Development

Protecting Vermont’s Small Businesses
The COVID-19 pandemic has had serious impacts on many small businesses, including the hospitality, events, and tourism industries in particular. Over the past year, a number of federal and state grants and forgivable loans have helped to ensure the survival of these operations. However, some businesses (such as those started or purchased in 2020 or late 2019) have not qualified for nor been able to access this assistance due to program criteria. The legislature has been working with the Governor’s administration to create a $10 million “gap” grant program to help businesses that have received minimal to no assistance. This grant program recognizes that all businesses, whether new or smaller in size, play a critical role in the state’s economic recovery by putting Vermonters to work.

Revitalizing Downtowns
After the completion of a pilot program, the legislature is working with the Governor to devote $5 million to create the Better Places Program. This program would provide grants between $5,000 and $20,000 to improve the vitality of downtowns, with a focus on projects that can make an immediate impact to public spaces. Public area beautification, bike baths, use of vacant property and storefronts, enhancing farmers’ markets or community gardens, and projects to support downtown performing arts are examples of ways these funds could be used to revitalize town centers. Municipalities, community groups, and nonprofits would be eligible to apply.

A further budget request has been recommended to add $5 million to the Downtown Transportation Fund. This fund supports many larger projects aimed at improving the infrastructure of downtown centers, including streetscape improvements, street lighting, parking and signage upgrades, and pedestrian and bicycle safety.

Natural Resources, Fish & Wildlife

Bringing the Bottle Bill into the 21st Century
Vermont’s beverage container and redemption law, the “Bottle Bill,” was enacted in 1973 to address roadside litter and increase recycling. It was last updated 30 years ago to add liquor bottles and containers of beer, wine coolers, and carbonated beverages. After three decades, another update is needed to address the growing variety of beverage containers and rising litter and recycling needs.

The update has three main parts. First, an increase in the deposit from 5 cents to 10 cents. The nickel deposit has not changed in nearly 50 years. If the deposit had kept up with inflation, it would be closer to 30 cents today.  Second, an expansion of the types of containers accepted, to include wine bottles, hard cider and non-carbonated drinks except for milk. Third, bill would provide an increase in the handling fee given to vendors.

The Bottle Bill has been an effective policy that incentivizes recycling and reduces waste. Containers covered under the Bottle Bill have greater market value for recycling than those that go through the general recycling stream. Updating the Bottle Bill will allow us to capitalize on market demand and ensure that less waste ends up in the state’s only operating landfill.

Protecting Water Quality

Water quality standards are the foundational tool that the state uses in its efforts to restore and maintain the health and proper uses of its surface waters. These standards are codified in the federal Clean Water Act and approved by the EPA; they are used to assess the quality of water for drinking, swimming, fishing, boating, and habitat function.

H.108 clarifies the long-time interpretation and practice that Vermont’s water quality standards apply to all surface waters, including rivers, lakes, ponds, and wetlands. The bill also updates the state’s Clean Water Act Section 401 provision to help the state better manage large projects that may discharge to Vermont’s surface waters.  This includes projects that are subject to a federal permit or license, such as an interstate energy project.

Promoting Forest Health & Biodiversity
The Natural Resources, Fish and Wildlife Committee is developing strategies to support forest health, including initiatives to support and enhance wildlands and intact forests. Protecting the biodiversity of our forests is essential. We are facing a moment in time when forest fragmentation, habitat loss, the loss of connecting habitat, and the introduction of invasive pest and plant species are severely impacting our wildlife, diminishing the abundance, diversity, and native species type of wildlife populations. Biodiverse forests not only protect our wildlife, they also store precipitation during severe weather events, and are a cost-effective means of sequestering (absorbing) and storing carbon. The committee is looking at how our neighbors, New Hampshire and Maine, support wildland conservation. 

Education

Equity & COVID Recovery

The focus of the Education Committee’s work this year has been equity and the intentional allocation of educational resources, instruction, access, and opportunities according to need. We started by hearing updates from Vermont schools on their COVID-19 response plan and how they will continue to move all students forward into the recovery and learning re-engagement phase. Common themes emerged: the most at-risk students need critical supports, the social and emotional needs of students are significant, access to stable internet has been an ongoing challenge, staffing is difficult due to COVID, and capacity and resources have been seriously stretched. Through all these challenges, staff and students have shown remarkable innovation and resiliency. We’ll continue to keep an eye on equity as we seek to better serve all students statewide, while directing our resources in a targeted way to assist students who struggle.

School Construction: Taking Stock & Studying Funding

Built decades ago, it’s no secret that many of Vermont’s school buildings are aging and in dire need of repair.  We are working on addressing the state of our school buildings and significant deferred maintenance needs by moving forward with a committee bill (DR 21-0782). Vermont is currently the only state in New England without a school construction funding program; with the exception of emergency projects, our aid program has been suspended since 2007. The proposed language starts with an update of the school facility standards and a statewide needs assessment survey for all school buildings. It also includes a report on funding options due in December 2022. Improving the physical learning space yields healthy and energy-efficient facilities and better educational outcomes.

Education Funding: The Weighting Study

The committee is continuing to address proposed changes to Vermont’s education funding formula. A December 2019 legislative study conducted by UVM (Study of Pupil Weights in Vermont’s Education Funding Formula) concluded that the manner in which the state calculates the cost of educating certain categories of students (including low-income students, English language learners, secondary and preK, and rural students) is outdated and inaccurate. While this work is starting in the Senate, the committee is discussing various proposals regarding how to implement the report’s recommendations and provide more equitable funding across the state.

Vermont State Colleges: A Critical Crossroads

Last year, former Chancellor Jeb Spaulding touched off a firestorm when he published a white paper on the crisis facing the Vermont State Colleges. In response, the legislature passed Act 120 of 2020, which created the Select Committee on the Future of Public Higher Education to address “the urgent needs of the Vermont State Colleges and develop an integrated vision and plan for a high-quality, affordable, and workforce-connected future for public higher education” in Vermont. Working with the National Center for Higher Education Management Systems (NCHEMS), the committee delivered its second report to the legislature on February 12. The report urges the legislature to “act with urgency” in providing sufficient funding — over the next six fiscal years — to keep the state colleges stable while VSC commits to a far-reaching restructuring plan. Recommendations include maintaining the Community College of Vermont as a separate entity focused on sub-baccalaureate and workforce-relevant training (especially for adults); combining Vermont Tech, Castleton, and Northern Vermont University under a single accreditation; and an “aggressive coordination” of administrative services. The FY22 budget request of $67.4 million includes a historic $30 million base appropriation, funding to cover the ongoing structural deficit (gap between anticipated revenues and expenses), and investments in institutional transformation (IT, project management, marketing and more).

Corrections and Institutions

Funding Capital Projects at State & Local Level

The Corrections and Institutions Committee continues to take testimony regarding the Governor’s proposed Capital Budget. The $123 million proposal funds building and infrastructure projects across state departments through the allocation of bonded dollars each biennium. Projects in the pipeline span restoring the slate roofs at the Waterbury State Office Complex, replacing door controls at Southern State Correctional Facility, relocating the courthouse in Newport, and an overhaul of the parking garage at 108 Cherry Street in Burlington. While the majority of funds go to specifically planned projects, a significant amount of money is designated for grants and loans to Vermont communities.

This locally-focused component of the Capital Budget creates important opportunities for municipalities and community entities to leverage state dollars to initiate projects, stimulate growth, and address local needs. Some of the grant and loan opportunities considered include:

Visit each program’s website to learn more about the application process and deadlines.

Corrections: Investigating Allegations, Changing the Culture

The Corrections and Institutions Committee recently reviewed a report produced at the request of the Agency of Human Services by law firm Downs Rachlin Martin. Committee members took extensive testimony about the issues the report raised, as well as the intention of Department of Corrections to change its culture. The report was the culmination of months of investigation into allegations of sexual harassment,  misconduct, abuse, and exploitation at the Chittenden Women’s Correctional Facility. While clear guidelines have been in place regarding these issues since 2014, numerous misconduct allegations were reported nonetheless. Interim Commissioner James Baker wants to incorporate many of the DRM report recommendations seeking to change the workplace environment in the state’s correctional  facilities and throughout DOC. Proposed changes include: having staff that provide direct service to incarcerated individuals wear body cameras, having pre-employment polygraph tests, and forming both an advisory commission and a special investigation commission to address these kinds of misconduct.

Energy & Technology

Broadband: Supporting Rural Buildout

Access to high-speed internet is essential to daily life. We use the internet to go to work, attend school, see a doctor, interact with government, and connect with our community and the world. Unfortunately, the promise of modern communications has bypassed many rural communities in Vermont.

H.360 seeks to accelerate community broadband deployment throughout Vermont. Key elements include: funding for pre-construction expenses, expanded grants and loans for building broadband infrastructure in unserved and underserved areas, a new workforce development program, and protections for Vermonters’ privacy and unrestricted access to the internet. This bill would bring over $50 million of new capital to support the construction of community-based fiber assets in the most underserved parts of the state.

The legislation also establishes the Vermont Community Broadband Authority to coordinate and fund broadband buildout, to support Vermont’s regional communications union districts (CUDs) and their partners, and to advocate at the federal level for programs and policies that will accelerate the deployment of universal broadband in rural Vermont.

Modernizing Our IT Infrastructure

For decades, Vermont has under-invested in state government’s information technology infrastructure. By dedicating a significant down payment to long-deferred IT projects this year while establishing a funding mechanism for ongoing upgrades, we can address an issue that affects all of state government. The pace required to keep up with the necessary technology replacements and maintain hundreds of applications requires a systemic approach and consistent funding. In particular, the fast-evolving cyber-security landscape brings new threats to the functionality of government systems and the security of private information.

The legislature is considering one-time investments for systems upgrades such as replacing the four-decade-old mainframe at the Department of Motor Vehicles, modernizing the Bright Futures Information System to serve childcare programs, addressing severe technology constraints at the Department of Labor’s unemployment program, and making critical cybersecurity upgrades.

Weatherization: Energy Savings & Healthier Homes

Vermont has some of the most energy-inefficient housing stock in the nation. Addressing this issue can help our state meet its climate goals, save Vermonters money, improve our local economy, and help citizens be more comfortable and healthy in their homes. The legislature will be providing increased support for accelerated weatherization programs. Weatherizing a home often pays for the investment in less than five years and provides continued reduction in greenhouse gas emissions, energy costs, and health care costs, while increasing public health, for many years into the future.

General, Housing & Military Affairs

A Place at the Bargaining Table for All School Employees

In Act 11 of 2018, the General Assembly set up a mechanism for negotiating school employees’ health care benefits on a statewide basis. The first go-round convinced both sides that Act 11 needed statutory revisions. The House passed those revisions, which incorporate recommendations from both the Vermont National Educators Association and the Vermont School Boards Association, on February 17. The bill would allow negotiation teams to bargain premium shares and out-of-pocket expenses that are different for support staff members, teachers, and administrators. If the parties are unable to reach agreement, current law provides a dispute resolution process. H.81 would increase the transparency of this process, particularly related to the health insurance costs to be borne by employees and employers.  

Formal Apology for Eugenics

House General is considering a Joint Resolution (J.R.H.2) that would formally apologize for the role of the Vermont General Assembly in supporting Vermont’s eugenics program. In 1931, the General Assembly officially endorsed eugenics through statute by passing an “Act for Human Betterment by Voluntary Sterilization,” which sought to prevent procreation of “idiots, imbeciles, feeble-minded or insane persons” to improve the public welfare. Historians testified that eugenics project activities extended beyond sterilization to removing children from their families and institutionalizing or incarcerating individuals, with generational implications.

The resolution recognizes and apologizes for the General Assembly’s role in state-sanctioned eugenics policies and practices. In addition to the apology, the resolution further commits that further legislative action should be taken to address the continuing impact of eugenics policies and the related practices of disenfranchisement, ethnocide, and genocide in Vermont.

Government Operations

U.S. Census & VT Reapportionment
The U.S. Constitution calls for a nationwide census and reapportionment process every 10 years. This ensures that any population changes are reflected in legislative districts to maintain equal representation. This time around, COVID and other factors have thrown a wrench in the gears, and the Government Operations Committee is hearing that the U.S. Census data won’t be ready until September 30.

While Vermont doesn’t have a big job with our single U.S. Congressional district, state legislative districts will have to be aligned with any population shifts. One national trend that may impact some districts is a move away from multiple-member districts. Last year, the legislature passed a bill to change the Chittenden County format from one district with six senators to two districts with three senators. The current state population sets the suggested number of constituents per House district at 4,200. The Secretary of State’s website has a map with some preliminary looks at reapportionment and some districts that are not meeting the 4,200 threshold. That process will have a different timeline now, given the Census delay. Learn more here.

Pensions: Bridging the Unfunded Gap
State pensions are grabbing lots of headlines recently. Vermont oversees the pension management for three groups: state employees; teachers in pre-K to 12 schools; and municipal workers. The upkeep and viability of these funds is a vital oversight concern for the Legislature. In a January report, Treasurer Beth Pearce recommended changes that would significantly reduce the $4.5 billion unfunded pension and other retirement liabilities — for example, increasing employee contributions or reducing cost-of-living adjustments for future retirees — but it’s important to remember that her report is just a starting point. The Speaker has committed to bringing together all stakeholders to craft an equitable solution, and the Government Operations Committee has so far heard from the Joint Fiscal Office, Treasurer Pearce, and key employee groups. The process of determining the best course of action will be time-consuming and laborious. Stay tuned.

Health Care

Solutions for Healthcare Workforce Crisis

Vermont is facing a healthcare workforce crisis. The Rural Health Task Force submitted a report on January 10, 2020 (before COVID) that highlighted needs in nearly all healthcare professions and settings. One year later, we have an even deeper understanding of the needs of our healthcare workforce.

The Health Care Committee is exploring this problem in depth. We know that the population in Vermont and our healthcare workforce is aging. Demand for healthcare and long-term care services and support are increasing. It is estimated that roughly 5,000 nursing-related positions were needed prior to the pandemic, a deficit that’s likely to increase.

Solutions are being implemented to address this problem, including scholarships and loan forgiveness for healthcare providers, tax incentives to retain newly graduated nurses, and modifying professional requirements so more nurses can be trained. One particularly exciting new program is the Vermont Workforce Loan Program (VWLP).  Since inception, the VWLP has awarded 69 scholarships to students in LPN/RN programs. This compares to 5–8 annual scholarships awarded in previous years since 2015. The Health Care Committee is exploring how to extend and expand this program.

Addressing Healthcare Disparities

A disturbing reality has been brought into focus by the pandemic. Data from a December 2020 Vermont Department of Health report reflects the disproportionate effects of COVID-19 on Vermonters who are Black, Indigenous and People of Color (BIPOC): “Although BIPOC Vermonters represent 6% of the population, they represent 18% of COVID-19 cases. In addition, BIPOC Vermonters have significantly higher hospitalization and chronic disease rates, relative to white non-Hispanic people with COVID-19.” A recent Health Department survey reveals that health disparities are greatest for Vermonters of color, LGBTQIA+, people with disabilities, and those living in poverty.

H. 210, an act relating to addressing disparities in the healthcare system, was introduced to address these worrisome concerns. The bill proposes to: (1) establish the Office of Health Equity; (2) establish the Health Equity Advisory Commission; (3) issue grants for the promotion of health equity; (4) collect data to better understand health disparities in Vermont; and (5) require an additional two hours of continuing education on cultural competency in the practice of medicine.

Meeting Mental Health Needs

The Health Care Committee has spent significant time and focus on mental health in Vermont, taking testimony from the Department of Mental Health, designated agencies, and specialized service agencies. Mental health is an essential part of overall health for adults, children, and families. The committee is exploring funding avenues to strengthen our system, as we know there will be increased demand as a result of pandemic-related stress. Pathways Vermont Support Line, funded by the Department of Mental Health, has averaged 1,200 calls per month in the last year with a dramatic increase of calls during the COVID-19 pandemic. The Support Line is open 24/7 to provide confidential, nonjudgmental support and connection to all Vermonters. Anyone can call (833) VT-TALKS or to text, use (833) 888-2557. COVID-19 has significantly increased the stress in all our lives and having these resources available is crucial.

Human Services

COVID-19 Response: Ensuring Lasting, Equitable Recovery

The COVID-19 pandemic has been an unprecedented public health emergency. In response, the legislature has worked tirelessly to leave no Vermonter behind. We dedicated more than $60 million in hazard pay to our essential workers. We allocated the resources necessary for long-term care facilities to deliver services safely to older Vermonters. We assisted mental health and substance use counselors to operate remotely through telehealth. We provided the resources to sustain childcare and afterschool programs and supported organizations that assist our most vulnerable Vermonters.

With the vaccine roll-out well underway, we are expecting the next round of federal funding to continue supporting our communities. These federal funds, passed in December 2020, will further assist the state’s COVID testing, contact tracing, and vaccination efforts. Emergency rental assistance will be provided to help those who cannot pay rent or utility bills. Childcare providers will receive a boost in funding, as will mental health and substance use prevention programs. The legislature looks forward to continuing the work with our communities to ensure that relief efforts go to those who need it most.

Ambitious Plan for Childcare System

High-quality childcare is an investment in Vermont’s future. By increasing access and affordability for Vermont’s families, we help parents stay employed and contribute to their local economies. By  increasing childcare worker wages, we can support and grow our early educator workforce. By prioritizing the well-being and development of our children, we are giving the next generation of Vermonters a head start to success.

H.171 will make these investments a reality. The reforms offered in this bill are based on feedback from Vermont’s parents, providers, employers, and community members. Not only does H.171 make childcare more affordable, it removes barriers to access, ensures fair wages for providers, establishes workforce development programs, and creates a study to identify future revenue sources.

We know that childcare is essential to keeping our communities strong. Meanwhile, Vermont’s childcare system is sorely in need of resources. H.171 is a monumental step towards funding childcare in a way that reflects its true value to our state.

Sustainable Future for Community-Based Care

Thousands of Vermonters, from the very young to the very old, are supported by private nonprofit providers who accept Medicaid as payment for services. These providers are often referred to as home and community-based providers. They serve people with a variety of risk factors including, but not limited to significant healthcare issues and drug and alcohol use. They also support needs related to aging, mental health issues, and developmental disabilities. As a state, our policy reflects the evidence-based findings that people achieve the best care and outcomes when served in their communities, close to friends and family, rather than in institutional settings. However, we have yet to develop a sustainable system to pay for these community-based services.  H.153 begins to provide the framework to consider changes and recognize cost of living adjustments to the Medicaid rate reimbursement system for these critical supports to vulnerable Vermonters.

Transportation

Transportation Modernization Act

The Transportation Modernization Act of 2021, introduced with 70 co-sponsors, moves climate and equity goals into the Transportation Budget Bill. The bill seeks to:

  • Save Vermonters money
  • Reduce climate pollution
  • Expand existing programs like the state electric vehicle (EV) incentive and Mileage Smart
  • Make it easier for low- and moderate-income Vermonters to purchase low- and zero-emissions vehicles that are cheaper to fuel and maintain
  • Continue fare-free transit to eliminate transportation costs for people who might not be able to afford it otherwise
  • Expand the Complete Streets program and improve high-traffic corridors for cyclists and pedestrians

The associated costs would ideally be funded through the increased federal monies that are coming to Vermont to support transportation. The committee will work with the Administration to find the right financial allocations for these goals.

Infusion of Federal Funds

The Transportation Committee has moved into high gear during this virtual legislative session and has been working on priorities like investing in community infrastructure, maintaining our highways and bridges, increasing rider access and affordability in suburban and rural communities, incentivizing the transition to electric vehicles, and making high-MPG cars more affordable for all income levels.

While transportation revenues remain below pre-COVID levels, we are fortunate to be receiving an infusion of federal funds, an estimated $50 million with the potential for more. The committee is determining the best use of these funds to support Vermonters by comparing the recommended budget from the Administration with the priorities of committee members.

Transition to Electric Vehicles

The legislature and administration have supported several efforts in recent years to help Vermonters transition to electric vehicles and to expand EV public infrastructure across the state. The Agency of Transportation serves on an interagency team that’s administering the current grant program for charging stations. The first two funding rounds granted approximately $1 million to add roughly 30 charging stations across Vermont. The third funding round will dedicate about $1.7 million to fill gaps in the fast-charging network along highway corridors. Once constructed, these new charging stations will put fast chargers within about 30 miles of almost every address in Vermont.

In the FY22 budget, the committee is reviewing the continued financial support needed to expand Level 2 charging at workplaces, multi-unit dwellings, downtowns, and other destinations. The legislature worked with various stakeholders to remove the Public Utility Commission jurisdiction over public charging stations, thus allowing charging companies to construct and operate new stations without the need to obtain a Certificate of Public Good and to price charging by per-kilowatt hour.

Federal grants have increased Vermont’s ability to purchase electric buses for the statewide transit system. Two buses are currently in service and an additional 12 have been ordered. In the FY22 Transportation Bill, the committee is reviewing a long-range plan that outlines the costs, timeline, training, maintenance and operational actions required to move to a fully-electrified public transportation fleet.

With the assistance of electric distribution utilities, Drive Electric Vermont (DEV) continues to administer a point-of-sale or lease incentive program for new plug-in electric vehicles. DEV provides consumer education and outreach relating to electric vehicles, research and data tracking, and stakeholder coordination.

Ways & Means

House Ways and Means

The Ways and Means Committee views its work in the context of six pillars that underlie good tax policy: sustainability and reliability, economic competitiveness, fairness, simplicity, accountability, and tax neutrality.

School Budgets & Yield Bill

Every year the legislature sets the education property tax rate in the “Yield Bill.” This is a complicated formula based on the sum of school district budgets, the number of equalized pupils, and the balance needed in the Education Fund after other revenue is taken into account. This has been a difficult year for revenue projections (along with everything else) and a letter from the Tax Department sent in December, based on outdated projections, pointed to significantly increased tax rates. Fortunately, thanks to significant federal spending and direct federal payments to individuals, we saw increased consumer spending statewide that led to revenues in the Education Fund above and beyond our expectations. Much of this spending happened online and Vermont has been well-poised to collect sales tax on those online sales because of recent legislation allowing us to collect taxes on online purchases sold into the state.

Additionally, proposed spending from school districts, as reported to the Agency of Education and not yet approved by voters, points to a lower increase in school budgets than anticipated.  If this trend continues, the average education spending increase—which is what tax rates are based on—will be less than 1 percent. We will continue to work on this issue and on final rates, but this is the latest in a series of signals that our education property tax rates are likely to be substantially lower than were predicted in December. The yield bill that was passed out of committee (H.152) will likely keep property taxes close to flat across the state.

Tax Structure Commission Recommendations

Approximately every 10 years, the Vermont Legislature charges an independent tax commission with looking across our system of taxation to make recommendations for the future. We just received a draft of their report, and it includes recommendations for moving to a fully income-based system of education taxes, broadening the sales tax base, and seeking to tax wealth more accurately through capital gains, estate tax changes, and more. Their recommendations are not immediately actionable but will help guide our work over the next few bienniums.

Corporate Income Tax Changes

Proposed corporate tax changes in H.189 are intended to shift the tax burden away from corporations with a significant physical presence in Vermont by (1) changing to a “single sales factor,” a switch many neighboring states have made as our national economy moves towards a higher proportion of service-based corporate income; (2) changing methodologies to determine how to apportion profits (from the “Joyce Rule” to the “Finnigan Rule” — for a deep dive, click here); and (3) changing how to consider any corporate sales not taxed in any other state when assessing total and apportionable sales. Our intent is for the corporate tax burden, in general, to continue a shift to out-of-state corporations and support our Vermont employers.

Agriculture & Forestry

Working Lands & Farm to School
While new bills, like babies, often attract much oo-ing and ah-ing, it’s good policy for committees to check in with the “legacies” of past legislation. Early in the session, the House Committee on Agriculture and Forestry heard “what have you been up to?” testimony on two programs it helped create and cultivate: the Working Lands Enterprise Initiative (WLEI) and the Farm to School program (F2S). Working Lands (which provides grants and consulting for rural economic development projects) is such a success that the Governor has proposed adding $3 million in a one-time appropriation to next year’s WLEI budget. F2S, which advocates for, and coordinates, getting local food into our schools, is an on-going win-win-win (farmers benefit economically, healthy students are more focused, schools achieve better results); the only restriction on expanding its success is financial, as there are never enough dollars for deserving programs. 

Ag & Food: Road Map for the Future
Eighteen months in the making, with input from over 1,500 Vermonters, the Vermont Agriculture & Food System Strategic Plan 2021-2030 debuted in February with much fanfare and appreciation. A collaboration between the Vermont Sustainable Jobs Fund’s Farm to Plate team (F2P) and the Vermont Agency of Agriculture, Food and Markets (VAAFM), the work provides, as Secretary Tebbetts summarized, “a road map to the future.” “The Big Book,” all 200 spiral-bound pages of it, is made up of 54 product, market, and issue briefs. For the next decade, this go-to resource will be the dog-eared “Ag bible” for policymakers and stakeholders, not to mention a good read for select boards and planning commissions, and a must-have for town libraries. Let’s just say you want to know what the bottlenecks in hop production are. It’s there. Or you want to dig into Vermont food opportunities in major metropolitan markets. It’s there. Or you want to see what the experts recommend for food security, or farm succession, or racial equity in the Vermont food system. It’s all there. Not to mention strategic goals, priority strategies, and credits for the 52 lead authors and 111 expert contributors.  Available online at: vtfarmtoplate.com/plan/ or, if you ask the F2Pers nicely, as a hard copy.   

House Judiciary Committee Update

Despite the challenges inherent in remote legislating, the House Judiciary Committee on which I serve continues its work protecting public safety. One of the first bills passed out of the Vermont House of Representatives this year was H.18, which would tighten Vermont laws regarding sexual exploitation of children. More children will be protected and more predators held accountable once H.18, which criminalizes simulated sexual acts involving real children, becomes law.

The Committee is currently considering H.133, a bill that would clarify a court’s ability to provide appropriate protection to victims of domestic abuse. Emergency relief from abuse (RFA) orders have long been an inexpensive and uncomplicated judicial avenue for victims of abuse to seek immediate safety.  This legal pathway is essential. The Vermont Network Against Domestic and Sexual Violence testified that victims of domestic violence are at their highest risk of being killed when they are leaving an abusive situation, which is when they often seek an emergency RFA. H.133 would codify current court practice and clarify the ways in which the court can protect those who are seeking safety.  

To grant an emergency RFA, a judge must find that a victim has proved that abuse has occurred and that there is an immediate danger of further abuse. If these requirements are met, a judge will issue an order that outlines certain conditions the defendant abuser must meet. A judge may rely on the court’s inherent authority to protect a victim of domestic violence as a basis for ordering a defendant to relinquish firearms as part of this order. H.133 creates a statutory basis for this authority, giving it a firmer foundation than the court’s inherent authority and making that authority clear to all parties.

There is a clear and undeniable link between fatal domestic violence encounters and access to firearms.  Over half of all homicides in Vermont are domestic violence-related. 55% of domestic violence-related homicides in Vermont are committed with firearms and 77% of domestic violence-related suicides (murder-suicides) in Vermont are committed with firearms. Women are five times more likely to be murdered by an abusive partner when the abuser has access to a gun. The two leading risk factors for domestic violence homicide are the presence of firearms in a violent home and a person leaving the relationship.

The connection between firearms and domestic violence has been recognized by leaders across the state, and multi-disciplinary efforts are underway to explore how to address this deadly relationship. Leaders within law enforcement are advocating for legislative support to enhance safety for those who live with intimate violence. H.133 is an effort to meet this request and has strong support from Vermont law enforcement and the Department of Public Safety.

The Committee is also working on H.128, which would prohibit a defendant in a criminal proceeding from invoking the victim’s actual or perceived gender identity to justify their actions. While many of us prefer to envision our society as moving steadily forward in terms of acceptance and compassion, the sad truth is that 2020 was the most deadly year ever for transgender and gender-nonconforming Americans. All too often when a transgender person is physically assaulted, the realization of their transgender identity is used by the attacker as a defense in court or to lessen any penalty imposed by the court. H.128 would deny such a defense in these situations.

As the session progresses, the Judiciary Committee will continue to work on bills that help protect the safety of all Vermonters.

End of Session Report – 2020

Session Overview

The Vermont House of Representatives passed its final bills and adjourned on Friday, September 25th. This concluded an unprecedented two-year session in which COVID-19 caused numerous disruptions, including the closure of Vermont’s State House. Despite the challenges of legislating remotely, we were able to move forward Vermonters’ priorities.

The public health crisis prompted rapid action, and we responded, providing crucial support to Vermonters in need. Following the closure of the State House, lawmakers immediately transitioned our work online and set up a system for remote meetings.  The legislature rapidly authorized hundreds of millions of dollars for emergency needs.

Relief efforts continued through the Spring and into the Summer. The House worked collaboratively with our state and federal partners to advocate for additional resources to help us rebuild strong, healthy communities. All told, we authorized more than $1.2 billion of federal aid to individuals, small businesses, our schools and public colleges, and the frontline workers who have kept us safe.

At the same time, we addressed long-term challenges. Over the course of the two-year biennium, we passed a law to connect more Vermonters to broadband, established a permanent funding source for clean water, increased support for childcare, protected reproductive rights, and began a process to reform our criminal justice system. This year, we overrode the Governor’s veto to increase the minimum wage to give thousands of Vermonters a raise.

In the one-month session that began August 25th, we enacted the Global Warming Solutions Act, over the Governor’s veto, to move us toward our climate goals. We advanced meaningful police reform and measures to address systemic racism in our corrections system. And we created a COVID-19 Equity Stimulus Package to ensure that women- and minority-owned businesses can access the resources they need.

These are challenging times for our nation and state. Vermont has faced its share of hardship and tragedy. And 2020 has brought a set of challenges that are uniquely fraught with uncertainty. I am proud of all we have accomplished together as Vermonters to face these challenges. Our work will continue into the Winter as we prepare for the next legislative session, which begins in January. My focus is on the needs of our community and on ensuring no one falls behind during this pandemic. If you need any assistance, please reach out. I can be reached at mlalonde@leg.state.vt.us or 863-3086.

Budget

The Vermont House of Representatives gave final approval to the $7.17 billion state budget bill on Friday, September 25th, and the Governor signed it into law on October 1st. Because of the COVID-19 pandemic and its impact on our region, this year’s budgeting process was longer and more complex than any in recent history. The fiscal year 2021 budget expedites relief to those in need and puts us on a strong financial footing to continue our recovery efforts when the legislature reconvenes in January.

The budget builds on the priorities we established in 2019. The bill authorizes the final round of federal Coronavirus Relief Funds to strengthen our communities. It bolsters all Vermont colleges and makes a record investment in public post-secondary education, including $23.8 million in bridge funding for the Vermont State Colleges system and $10 million in pandemic relief for UVM.

The budget allocates resources to make childcare more affordable, provides dollars for vulnerable Vermonters looking to start businesses, expands hazard pay for frontline workers, directs financial assistance to Vermonters left out of federal stimulus payments, and supports the reform of our corrections system. It funds the State’s Global Warming Solutions Act and strengthens public transportation and incentives to reduce the cost of electric vehicles.

These investments are achieved without making cuts to the services Vermonters count on. Our budget priority list was developed with feedback from constituents, with several public sessions held throughout the state in August. We sought creative ways to fund critical programs while keeping our promise to fully fund long-term obligations. Our rainy day funds are also funded at or above statutory levels, ensuring we have a cushion to absorb financial shocks in the uncertain months ahead.

Criminal Justice and Police Reform

Justice Reinvestment

During this Biennium, the House has been focused on criminal justice reform. The work is driven by a commitment to building a 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 to improve criminal justice outcomes, Vermont now 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 health needs are identified and connected to resources. The COVID-19 pandemic has put additional stressors on our mental health and correctional systems.

This session the legislature passed Act 148 (S.338), Justice Reinvestment II, a significant piece of legislation that restructures furlough and parole to consistency and access to due process.  The bill also advances policies to allow people to earn more time off their sentences for good behavior, strengthens connections to appropriate substance use disorder treatment and mental health services in the community, and develops re-entry housing that better fits the needs of people leaving prison. These policy changes and strategic investments will enable more successful re-entry for those leaving prison and lower recidivism and re-incarceration rates, which should result in savings, greater public safety and better outcomes.

The legislation also creates a working group that includes members of the Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel and the Executive Director of Racial Equity, and members from the judiciary and law enforcement. The group will work with the Crime Research Group to look at the relationship between race and sentencing outcomes.  It will also evaluate where current data systems and collections are insufficient and what staffing or resources are needed to support more robust reporting on race and demographics. 

Addressing Systemic Racism Within the Department of Corrections

S.24 aims to address systemic racism and promote social equity within the Department of Corrections (DOC) by focusing on training and supervision practices and shifting the Department’s focus from a model of punishment and surveillance to one emphasizing human services. The goal is to create a system based on inclusive, reparative, and restorative practices with a focus on recruiting, training, and retaining a diverse and high-quality workforce.

The bill tasks the Commissioner of the DOC to present a proposal for a long-term strategy that focuses on changing the way the DOC recruits and trains its workforce with an aim of emphasizing equity and inclusivity. This legislation sets a direction for the DOC to change its culture and systems to be more equitable and just for the people who are incarcerated and for our state employees. 

Police Reform

The national reaction to events over the past several months has brought systemic racism in the United States into dramatic focus. While Vermont’s legislature has pursued many efforts over recent years to begin to identify and address implicit bias, recognition of the urgency of this work has grown, particularly related to law enforcement.  In response, the legislature passed S.124, which addresses many issues affected by implicit bias. Provisions in S. 124 include:

Police Oversight.   The bill changes the membership of the Vermont Criminal Justice Training Council (VCJTC), which oversees police training and reviews police misconduct, to add members of the public for the first time and more non-law enforcement members, such as the Executive Director of Racial Equity.  It also requires a report back to the General Assembly in January on models of civilian oversight that can be used across the state.

Police Misconduct.  The bill revises the law so that more instances of police misconduct will be reported to the VCJTC and requires a report to the General Assembly to identify a central point for reporting allegations of police misconduct.

Data Collection. The bill prohibits a law enforcement agency from having officers trained at the Police Academy if the agency is not in compliance with the requirements for collecting roadside stop data.  It also requires the Vermont Criminal Information Center to ensure that such data is more uniform.

Training and HiringThe bill requires the VCJTC to adopt rules for alternate routes to police certification aside from attending the Police Academy.  It also requires the Council to report to the General Assembly on whether appropriate training is provided in the areas of cultural awareness, implicit bias, and de-escalation as well as recognizing and responding to people with mental health conditions.  It requires a hiring law enforcement agency to contact an officer’s current law enforcement agency about that officer’s performance at that agency.  It also requires reports to the General Assembly on universal standards for interviewing and hiring officers, and cultural sensitivities in and overall appropriateness of law enforcement exams.

Body Cameras.  The bill requires all law enforcement agencies to follow a model body camera policy.  It also requires a report to the General Assembly on changes that may need to be made to that model policy, including how to respond to public record requests for body camera footage.

Military Equipment.  The bill requires a report to the General Assembly on the development of a policy on limiting the acquisition of surplus military equipment by police departments.

Addressing Racial Bias and Excessive Use of Force by Law Enforcement

Act No. 147 (S.219) makes State grant funding to law enforcement contingent on the Secretary of Administration confirming that the agency has complied with race data reporting requirements within the past six months.  It requires that the roadside stop data collected by law enforcement includes data on law enforcement use of force, including threatened force; that the data collected be sent to the Executive Director of Racial Equity; and that it be posted in a manner that is analyzable, accessible to the public, clear, and understandable. 

The law also amends unprofessional conduct parameters for law enforcement, providing for discipline of an officer who uses a prohibited restraint or fails to intervene or report to a supervisor when an officer observes another officer using a prohibited restraint or otherwise using excessive force on a person.  A prohibited restraint is defined as the use of any maneuver that applies pressure to the neck, throat, windpipe, or carotid artery that may prevent or hinder breathing, reduce intake of air, or impede the flow of blood or oxygen to the brain.

The law creates a new crime prohibiting law enforcement from using prohibited restraints that cause serious bodily injury or death.

Finally, the law requires the Department of Public Safety to equip all Vermont State Police with video recording devices.

Law Enforcement Use of Force Standards

The last time the legislature put restrictions on police use of force was in 1840.  At that time, it provided that a law enforcement officer will be guiltless if he kills or wounds someone, while serving legal process, or in suppressing opposition against him in the just and necessary discharge of his duty. This hoary and likely unconstitutional language provides lax guidelines for police use of lethal force and is in dire need of updating. S.119, which the legislature passed on the last day of the Biennium, modernizes statutory standards for law enforcement use of force.  It clarifies what Vermonters expect of law enforcement and ensures that law enforcement officers are accountable when their use of force does not meet these expectations.  

While the Judiciary Committee first considered S.119 in June, it became clear that many people in communities affected by police use of force wanted to weigh in on that bill as well as on other police reform efforts. To enable that input, we took advantage of the time that the recess offered and, with the Government Operations Committee, hosted three public hearings on S.124 and S.119.  In coordinating those hearings, we worked with the legislature’s Social Equity Caucus to ensure that we were reaching out to Black people, indigenous people, and people of color (BIPOC) and disability rights communities to encourage their involvement.  The Social Equity Caucus also conducted an online survey that, among other topics, asked for input on S.119.  There were over 1500 responses to the survey.

When the House Judiciary Committee started the post-recess session, we invited representatives of the BIPOC and disability rights communities to testify on the bill. The Committee also heard from representatives of the law enforcement community. They were generally not supportive of placing use of force standards into statute. Instead, they would prefer to have such standards set forth in a uniform state-wide policy to be developed through the Vermont Criminal Justice Training Council.

To address the concerns of law enforcement, the bill establishes that the Department of Public Safety and Executive Director of Racial Equity will work out the details of implementing the use of force standards in a uniform state-wide policy pursuant to the Governor’s Executive Order issued this past August. Broadly, the statutory standards provide that the use of force by law enforcement is lawful if it is “objectively reasonable, necessary, and proportional” and the use of deadly force is lawful if it is “objectively reasonable and necessary in defense of human life.” It is the oversight responsibility of the legislature to create standards governing the use of force. For the most part, Vermont police already train and act in a manner consistent with these standards. But, by putting these standards in statute, they are enforceable in court and have far more potential to shape police culture and provide further protections for BIPOC Vermonters ad others. 

Other Work of the House Judiciary Committee

Act 145:  This law establishs requirements for creating life estate deeds in Vermont. Life estate deeds are gaining in usage as a means to transfer property after the death of the owner.  Lack of clarity in existing law has the potential to create genuine hardships for some Vermont families. This law will help prevent that.

Act 96:  With all of the challenges and uncertainty people are facing in our current circumstances, many have come to the conclusion that they should create a will or update an existing one. This becomes a challenge, however, because the law had required two witnesses to be in the same room for the signing of the document: a violation of social distancing that could especially endanger the older Vermonters most inclined to address their wills during the pandemic. Current law also risked turning a notary into a potential transmitter of the virus.  Act 96 provides that, during Emergency Administrative Rules for Remote Notarial Acts adopted by the Vermont Secretary of State, wills may be signed while the witnesses take part in the proceeding via video-conference. This will help prevent the spread of COVID-19 and ensures an important legal process can be completed without needlessly endangering Vermonters. When the emergency rules are no longer in place, the system for completing wills will revert to what it is now, but Act 96 will make remote witnesses possible for any similar emergencies in the future without further legislative action.

S.234:  In a rural state like Vermont, access to transportation is critical for economic prosperity, public safety, and healthy communities.  Many Vermonters lack access to a vehicle or public transportation, but a less obvious barrier exists in the form of driver’s license suspensions.  Most driver’s license suspensions are due to either failure to pay underlying tickets or failure to pay the reinstatement fee necessary to get the license back. Around 25,000 Vermonters have a suspended license because they have not paid their tickets or their reinstatement fee.  Often, their poverty keeps them from being able to pay and their inability to drive to work perpetuates that poverty. Over the past several years, the legislature has passed bills that reduce the number of individuals who have a suspended license solely because of failure to pay a fine or court fees.  Section 25 of S.234 continues that work.  The bill establishes a Reinstatement Fee Waiver Program.  It requires the Department of Motor Vehicles to reinstate drivers’ licenses without requiring a reinstatement fee under certain conditions.  Vermonters who have had their licenses suspended for non-criminal reasons can have their licenses reinstated if the suspension has lasted more than one year and if the person has satisfied all other reinstatement conditions and requirements. Those licenses are under suspension for accumulating 10 or more points as of the program’s effective date are not eligible for the fee waiver. DMV must reinstate eligible licenses by April 30, 2021.

H.962:  A victim of domestic abuse can seek a Relief From Abuse (RFA) order from a court.  Initially, the victim can seek that order without the alleged abuser having to be present at the court hearing.  The court can then issue a temporary order and must schedule a hearing within 14 days includes the alleged abuser. Under current law, if the defendant does not attend the court hearing, the temporary RFA ends with the court proceeding and any subsequent RFA ordered by the court does not go into effect until the defendant has been personally served with the paperwork. This places the victim in a situation where they lose the protection of the temporary RFA order for an unknown amount of time, which can be an added psychological burden in what is already a traumatic time. It also gives some defendants incentive not to attend the court hearing and then avoid law enforcement attempts to serve the RFA, as doing so allows them to continue to attempt to hold power over the victim. It also uses a considerable amount of law enforcement time as they attempt to serve the RFA on someone who has decided to actively avoid them. H.962 remedies this situation by continuing the terms of the temporary RFA until the defendant is actually served with the new RFA. This fix is to remain in effect until the current state of emergency is lifted.  During the next Biennium, we will consider whether to make it permanent.

Protecting the Environment

Global Warming Solutions Act

The House and Senate overrode the Governor’s veto of H.688, the Global Warming Solutions Act.  The GWSA will put Vermont on a path toward meeting its commitment to the Paris Climate Accord by 2025 and achieving net-zero carbon emissions by 2050.  The Act puts in place a comprehensive response to the climate crisis appropriate to Vermont. It sets a required timeline for reducing carbon emissions.  It also requires strategies to enhance resilience and mitigate consequences of the changing climate. The bill creates a Climate Council of 23 experts and executive agency heads. The Council is charged with crafting a Climate Action Plan to coordinate programs, measurement and evaluation, and also to ensure geographic, economic and social equity in the Plan. The Agency of Natural Resources will then propose rules to implement the Plan.

GWSA sets an aggressive schedule for these actions commensurate with the challenge before us. But the Climate Council and ANR are not on autopilot. The Council reports back to the Legislature annually regarding progress and recommendations for necessary legislation. The Plan’s fiscal impacts will be analyzed by the Joint Fiscal Office and reviewed by legislative policy and money committees. The Agency of Natural Resources’ proposed rules will be reviewed by the Council and legislative policy committees prior to undergoing the normal rule-making process.

Importantly, GWSA allows citizens to file a lawsuit to hold state government responsible for meeting the obligation to act. But the remedy is limited to complying with the law — there is no provision for monetary damages or penalties — and the State may recover costs and attorneys’ fees if the case is “frivolous or lacked a reasonable basis in law or fact.”

Reducing Transportation Emissions

To address the fact that 45% of carbon dioxide emissions in Vermont come from our transportation activities, the General Assembly established a New Plug-In Electric Vehicle (EV) incentive program that rolled out in December 2019. It has already helped incentivize about 200 new plug-in car purchases. This program still has funding from last year that is available for more EVs to get on the road. In addition, in the 2021 budget, the legislature added $1,000,000 toward the program. With a combination of VW Settlement funds and new state investments, every Vermonter will have a DC Fast-Charging station within 30 miles of their home by the end of 2021. We have also set up MileageSmart, a grant program to help low-income Vermonters trade up into higher-efficiency vehicles.

Improving public transit and reducing single occupancy vehicle travel is a top priority for additional funding and has received significant federal funding due to COVID-19.  In the 2020 Transportation Bill (Act 121 / H.942), the legislature funded a grant program to increase more flexible “microtransit” bus routes as well as innovative Transportation Demand Management (TDM) activities. TDM promotes carpools, biking, and telecommuting to reduce the need for commuting and parking spaces.  This year’s budget also includes more funding for bicycle and pedestrian projects and the Downtown Transportation Program.

Efficiency Vermont’s Role in Reducing Greenhouse Gas Emissions

Efficiency Vermont is an energy efficiency utility that has, over the years, helped to substantially reduce electrical demand in the State.  S.337, signed by the Governor in September, broadens its role by allowing it to use up to $2 million annually of its current funds to assist in reducing greenhouse gas emissions in the energy and transportation sectors. Vermonters spend 80% of their energy budget on how they get around and how they heat their homes.  Those two sectors also account for 90% of Vermont’s carbon emissions. The bill does not affect the current efficiency charge paid on monthly electric bills.

Migratory Birds

Vermont is an important stop for birds that migrate along the Atlantic Flyway. And Vermonters lead the nation in the percentage of bird watchers per capita. But the state has experienced a 14% decline in its forest bird populations over a 25-year period.

With the passage of H.683, the legislature restores important protections for migratory birds. The federal Migratory Bird Treaty Act, a century-old law, was weakened by the federal government in 2017, making migratory birds more vulnerable to the impacts of environmental degradation, oil spills and chemical contamination, unprotected utility wires, and negative habitat impacts.

H.683 provides incentives for industries to follow best practices that will sustain these bird populations.

Ban on Plastic Bags

At many Town Meetings across Vermont over the past few years, voters overwhelmingly supported banning plastic bags because of concern about the environmental impacts of single use products on our environment and in our landfills and solid waste districts. Faced with a different set of rules in every location, the Vermont Grocers and Retailers asked for one uniform statewide law. The legislature listened. 

Act 69 prohibits single use plastic carryout bags at check-out. Stores must charge no less than 10 cents (to which no tax is added) for a carryout paper bag to dissuade customers from switching to paper and to help merchants cover the cost of paper bags. Vermonters can use their own reusable bags at carryout. According to the Vermont Departments of Health and of Environmental Conservation regarding COVID-19, “Neither single-use nor reusable bags nor cardboard present a particular health hazard.”

Act 69 also bans plastic stir sticks and plastic-foam food and beverage containers. In restaurants, plastic straws can be provided upon request. Recyclable paper bags, bags used by a pharmacy for prescription medications, and all bags used inside a store and not at the register are allowed under Act 69.

Education

The 2021 budget provides $103 million in Coronavirus Relief Fund (CRF) appropriations for PreK-12 education.  Of this total, $13.5 million is directed to Efficiency Vermont to support and fund school district work to improve air quality in schools by upgrading heating, ventilation, and air conditioning systems.  The remaining $88.3 million is to reimburse school districts for COVID-19 costs through the Coronavirus Relief Fund LEA Grant Program being administered through the Vermont Agency of Education.

 The bill also addresses education policy issues for the 2020-2021 school year. It establishes a count for average daily membership (ADM) – the pupil count for which a school district receives money from the Education Fund – for each school district not less than the district’s 2019–20 school year ADM. It requires 170 student attendance days, down from 175 days, for the 2020-21 school year. The bill also creates an Afterschool Task Force to recommend the framework for, the costs of, and long-term funding sources for access to universal afterschool programs.

Licensing

Though the Office of Professional Regulation (OPR) oversees the licensure of 50 different professions, there are some professions whose regulation and licensing requirements fall to a different entity. It is important that all professions, regardless of which entity oversees them, have certain uniform standards. S.233 requires that OPR, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Electricians’ Licensing Board, the Board of Medical Practice, and the Plumber’s Examining Board create uniform standards for the licensing processes of the professions they regulate. Among other changes, the bill requires each entity to have a process to allow individuals licensed in other states to work in Vermont. By making licensure more uniform and taking into account professional experience in other states or countries, we hope to attract much-needed skilled workers to Vermont.

Retail Cannabis

In September, the House passed the cannabis bill (S.54). The bill creates a Cannabis Control Board to establish a retail cannabis market in Vermont, with licensed marijuana dispensaries to open as soon as May 1, 2022. The commission will issue regulations that will enable adults to buy safe, consistent, tested products. Taxes on the sale of cannabis will be used, in part, to fund youth drug use prevention programs. Highway safety will be addressed by allowing saliva tests pursuant to warrants to screen drivers for drug use and enhancing drug impairment training for law enforcement across the state. Municipalities will need to vote in favor of allowing dispensaries within their boundaries. The Cannabis Control Board will recommend advertising restrictions in consultation with the Vermont Health Department and the Attorney General’s office.

The bill also brings Vermont’s medical marijuana system into alignment with the new adult-use market, which will make cannabis for symptom relief easier to access for Vermonters who need it. Small, Vermont-scale growers and retailers will be given priority in the new cannabis market, as will women- and minority-owned businesses. Also, Vermonters who have a criminal record for cannabis offenses in the past will not be automatically prohibited from getting a license in the new cannabis market. In a separate bill (S.924), cannabis convictions from the past era of prohibition will be automatically expunged.

Expansion of Broadband

The Coronavirus shutdown exposed Vermont’s digital divide. Students in families without access to broadband lost three months of school. Medically vulnerable people without internet service could not avail themselves of telehealth services. Office workers lacking connectivity — who otherwise could have telecommuted — were out of work.

The Public Service Department drafted an Emergency Broadband Action Plan, components of which were included in H.966 (Act 137): $19.5 million toward line extensions and last-mile builds including fixed wireless and WiFi hotspots (many already deployed); “lifeline” internet subscription subsidies; telehealth capabilities; Communications Union District logistics; and telecom recovery planning. The 2021 budget added an additional $3 million to this effort.

Longer-term parts of the Emergency Broadband Action Plan will require additional funding and further work: support for partnerships among existing telecom providers, electric utilities, and Communication Union Districts; state assistance for such groups to access federal funding; and development of training for telecom line workers and installers. 

Housing for the Vulnerable


As the pandemic began, the State instituted a moratorium on ejectment and foreclosure actions during the emergency. 1,961 people, including 273 children, were moved out of shelters into hotels in order to mitigate contagion. A rehousing plan was developed with advocates, other House committees, and the administration to use federal dollars from the Coronavirus Relief Fund to systematically address the needs of those precariously housed. This $85 million housing plan supports homeless and low-income Vermonters.  It provides capital investments to create more affordable housing and renovate shelters, rental arrearage and foreclosure stabilization, financial and technical assistance for landlords and tenants, and wraparound services for rehousing those with multiple needs.

Municipal Assistance

The legislature passed a number of bills to make it easier for cities and towns to operate and address fiscal concerns during the COVID-19 crisis.  These bills include:

  • H. 681 (Act 92) – This Act allows city and town selectboards and other public bodies to choose not to designate a location for an open meeting or to have a person present at that location during the COVID-19 state of emergency.  It also allows a quorum of members of the public body to attend that meeting through electronic means as long as the public can access the meeting through the same or similar means. 
  • H. 947 (Act 105) – This Act allows a legislative body of a city or town to adopt a budget and municipal tax rate for FY21 if an annual or special meeting cannot be held in 2020.
  • H. 948 (Act 106) – This Act addresses boards of civil authority and other quasi-judicial proceedings and allows them to be conducted through electronic means during the COVID-19 state of emergency.  It also permits a board of civil authority to decline to physically inspect a property that is subject to a valuation appeal, but rather inspect the property through electronic means.
  • S. 344 (Act 102) – This Act provides that during the COVID-19 state of emergency a city or town’s legislative body is authorized to:
    • Extend or establish a new time and method of payment for property taxes;
    • Establish a grace period for, decrease, or waive any penalty, interest or fee imposed on taxpayers for the late payment of property taxes; and
    • Reduce the municipal property tax rate.
  • S. 345 (Act 113) – This Act allows a selectboard or other public body to post any meeting agenda or notice of a special meeting in two designated electronic locations instead of in two public places during the COVID-19 state of emergency.  It also must post the notice at or near the clerk’s office and provide a copy to the newspaper of general circulation for the city or town.

In addition to this assistance, the General Assembly passed H. 966, which among other things, provided $15 million from the Coronavirus Relief Fund to reimburse cities and towns for eligible COVID-19 expenses.  Out of the $15 million, $12.65 million was available to counties and local governments.  The bill would set aside $200,000 for solid waste management districts’ eligible COVID-19 expenses and $150,000 to be used to contract with one or more regional planning commissions to help smaller towns identify and document eligible COVID-19 expenses.  The bill also provides $2 million in grants to towns to digitize their land records if they had offices that were closed due to COVID-19.

Health Care

When a state of emergency was declared on March 13, the legislature had already passed essential legislation to ensure that the critical systems that support Vermonters’ medical, mental health and economic security needs would be fully operational. Telehealth services were expanded for patients and clients with insurance reimbursements approved for providers, and most insurance companies granted enhanced coverage with waived co-pays for Coronavirus-related care.

Act 136: This law provided a $275 million Health Care Provider Stabilization Grant Program using federal Coronavirus Relief Funds for cash grants to eligible providers that had lost significant revenue or seen increased expenses due to the pandemic. The grants, administered by the Agency of Human Services, supported a broad spectrum of providers, spanning self-employed practitioners to peer services providers to nursing homes to hospitals. A $28 million Front-line Employees Hazard Pay Grant Program was also created to support those health care and human services workers in direct service to Vermonters affected by the COVID-19 emergency.

Act 140: This legislation brings together a series of miscellaneous health care provisions and expands telehealth care and coverage after the emergency declaration ends. The bill continues healthcare reform, addresses workforce shortages, moves closer to the integration of mental and physical health oversight, and continues a push towards transparency in consumer healthcare costs.

Older Vermonters Act

H.611 establishes rights for older Vermonters, laying out a plan that ensures our elders are aging well across the state. The bill details a system of services, supports, and protections for Vermont residents 60 years of age or older that would cover their self-determination; safety and protection; coordinated and efficient system of services; financial security; optimal health and wellness; social connection and engagement; housing, transportation and community design; and family caregiver support. The aim is to put Vermont on a path to become the best state to age in.

The legislation requires the Department for Disabilities, Aging and Independent Living to administer all programs related to the Older Americans Act, as well as to establish a State Plan on Aging. The legislation sets up a process for registering all business organizations providing in-home services to older Vermonters not covered by Medicaid. The bill creates a Self-Neglect Working Group to provide recommendations regarding adults who, due to physical or mental impairment or diminished capacity, are unable to perform essential self-care tasks.

Expanding Access to Contraceptives

This tri-partisan bill makes contraception more accessible to and affordable for those of reproductive age; ensures Vermont youth are receiving comprehensive health education in schools; and aims to reduce unintended pregnancies and the spread of sexually transmitted diseases. A few highlights of H.663 include:

  • ●       Requires health insurance companies to cover without cost-sharing at least one drug, device or product in each method of contraception, or a name-brand product if deemed medically necessary by the health care provider
  • ●       Provides coverage without cost-sharing for voluntary sterilization of men and women
  • ●       Provides coverage for a 12-month supply of prescribed contraceptives
  • ●       Permits pharmacists, in accordance with state protocols established by the Commissioner of Health (to be established by Jan. 1, 2021), to sell self-administered hormonal contraceptives to patients over the counter

The bill also requires all school districts to make condoms available for free to all students in its secondary schools; at a minimum, condoms must be available in the school nurse’s office.

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 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, which occurred, 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.

Additional Accomplishments of the Biennium

Highlights this biennium included increasing the minimum wage and protecting victims of domestic and sexual violence from housing discrimination. For our veterans, we secured honorable disposition of any unclaimed remains and the creation of an Airborne Hazards and Open Burn Pit Registry. Indigenous Peoples’ Day replaced Columbus Day, and Abenaki names will be included on all state park signs going forward.

The legislature established a long-term funding source for water quality projects across the State. Six percent of revenue from rooms and meals taxes will now be deposited into the Clean Water Fund to help pay for the restoration of impaired waters statewide.

Act 143 grants Abenaki free Vermont fishing and hunting licenses, righting historical wrongs and aligning Vermont law with the deed wherein an Abenaki chief conveyed land: “I have this day given to them, their heirs and assigns forever, with the following conditions and reservations, viz.–that I reserve free liberty to hunt all sorts of wild game on any of the foregoing territories, and taking fish in any of the waters thereof for myself, my heirs and successors and all Indian tribes forever.”

Law Enforcement Use of Force Bill

The following is my report that I delivered today in support of S.119, which passed on a 106 to 37 roll call vote.

Events across the nation have focused attention on police use of force. These events have focused our attention, as legislators, on the following question:  What is the legislature’s role in overseeing and guiding police use of force in Vermont?  Your House Judiciary Committee’s answer to this question is that our role is significant.  When it comes to use of force, we must ensure that law enforcement is accountable to the citizens of Vermont.

It has been a long time since the legislature has played any role in this area, let alone a significant one. With S.119, the legislature fulfills its responsibilities.

The State created law enforcement entities and gave them certain duties.  It gave them the duty to implement the adjudicative processes of criminal law – in other words, the duty to investigate crime, serve legal process, and make arrests and the like.  It also gave law enforcement the duty to maintain public order. 

The legislature has given explicit powers to State law enforcement.  In 24 VSA 293, the legislature provided that a sheriff is to execute lawful writs, warrants, and processes.  24 VSA 302 provides sheriffs with the power to execute searches pursuant to warrants.  24 VSA 299 provides that “a sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary unlawful disorder.”  24 VSA 1931 allows municipalities to create police departments while 24 VSA 1935 provides that police officers shall have the same powers as sheriffs.  20 VSA 1914 provides that state police have the same powers with respect to criminal matters as sheriffs.

The Vermont legislature in the first instance sanctioned police authority, including the authority to use force. It is well within the legislature’s purview to limit that authority by setting standards for that use of force. Indeed, in its role in ensuring public safety, it is the legislature’s responsibility to regulate the powers granted to law enforcement, particularly the power to use force.

And it has done so in the past.  Well, it has kind of done so in the long ago past.  Subsection (3) of 13 VSA 2305 gave law enforcement broad authority to use deadly force.  That provision states, in part, that a law enforcement officer will be guiltless if he or she kills or wounds someone “to assist in serving legal process, in suppressing opposition against him, or her in the just and necessary discharge of his or her duty.” This provision was enacted in either 1779 or 1787 and amended in 1840.

This aged language, to say the least, provides lax guidelines for police use of lethal force.  It is in dire need of updating.  Given modern U.S. Supreme Court cases related to police use of excessive force, this provision is likely unconstitutional.

S.119 would provide a needed update of statutory standards for law enforcement use of force.

The State has imposed duties on law enforcement that put officers into situations where they may need to use some level of force to meet legitimate law enforcement objectives or to protect the officer or another person. Because the State is authorizing the use of force, it also should lay the ground rules for that use of force. Those ground rules, or standards, will clarify what Vermonters expect of law enforcement when it comes to use of force.  They will ensure that law enforcement officers are accountable when their use of force does not meet these expectations while allowing use of force when necessary.

S.119 would set forth standards for the use of force and the use of deadly force in statute. The Department of Public Safety and Executive Director of Racial Equity will then work out the details of implementing those standards in a uniform state-wide policy.

These statutory standards are modeled from legislation enacted in California in 2019, and also draw from law enforcement use of force policies in Seattle, Washington; Camden, New Jersey; Washington D.C; and Burlington and South Burlington, Vermont. The bill also draws from, and is consistent with, existing standards found in federal and state case law related to use of force.

Broadly, the standards provide that the use of force by law enforcement is lawful if it is “objectively reasonable, necessary, and proportional” and the use of deadly force is lawful if it is “objectively reasonable and necessary in defense of human life.” 

SECTION BY SECTION ANALYSIS

Sec. 1  – 20 V.S.A. § 2368

This section creates the standards for law enforcement use of force. 

Subsection (a) sets out definitions that apply throughout the statute.

Subsection (b) sets out the standard for the lawful use of force in policing.  It describes the general policy that force should be used judiciously and with respect for every person’s right to be free from excessive use of force.

Subdivision (b)(2) requires that any use of force by law enforcement to achieve any lawful law enforcement objective must be objectively reasonable, necessary, and proportional. 

As provided in subdivision (b)(4), the objective reasonableness standard must be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances. That subdivision also provides specifically that the analysis of objective reasonableness shall consider whether the officer failed to use feasible alternatives to force.

(b)(5) imposes a duty on law enforcement officers who know that a subject’s conduct is the result of a factor beyond the subject’s control, such as an impairment, disability, or language barrier, to use that information in deciding whether the use of force is appropriate.

(b)(6) affirms the right of a law enforcement officer to act in self-defense.

 Subsection (c) sets out the policy for use of deadly force by law enforcement, which is force that creates a substantial risk of causing death or serious bodily injury.

(c)(1) describes when the use of deadly force is appropriate.  It provides that a law enforcement officer is justified in using deadly force upon another person only when, based on the totality of the circumstances, such force is objectively reasonable and necessary to either:

  • defend against an imminent threat of death or serious bodily injury to the officer or to another person; or
  • to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.

(c)(2) provides that force is “necessary” when, in light of the particular circumstances, an objectively reasonable law enforcement officer would conclude there was no reasonable alternative that would prevent death or serious bodily injury to the officer or to another.

The remaining subdivisions under (c) provide that

  • law enforcement shall cease the use of deadly force as soon as the subject is under their control or no longer poses an imminent threat,
  • law enforcement must use reasonable efforts to identify themselves when feasible before using force,
  • use of deadly force is prohibited against a person based on the risk that person poses to themselves and no one else,
  • use of certain restraints, commonly referred to as chokeholds, are prohibited
  • a law enforcement officer is required to intervene if they observe another officer using a prohibited restraint.

Sec. 2.   13 V.S.A. § 2305

This section amends the justifiable homicide statute, the statute initially enacted in the late 1700s.  It modernizes the language in subdivision (1).  It makes the intent clearer in subdivision (2).  And it aligns subdivision (3) with the new standards for law enforcement use of force. 

As I mentioned before, currently subdivision (3) is likely unconstitutional, as it appears to provide protection for law enforcement that interferes with the constitutional protections against unreasonable search and seizure provided for in the 4th Amendment. The amended language in subdivision (3) provides that law enforcement are entitled to the defense of justifiable homicide if they kill or wound a person while using force that is in compliance with standards set forth in Sec. 1. 

This defense is available to a law enforcement officer who uses a prohibited restraint in violation of the criminal offense that was created in S.219, which passed before the legislature recessed in June and was signed into law by the Governor. So, even though a chokehold is prohibited as a restraining technique, it may still be used where deadly force is justified, namely where a law enforcement officer needs to use it to prevent death or serious bodily injury to the officer or another person.

Sec. 3. Repeals of sunsets

This section repeals two sunsets imposed by S.219: 1) the sunset on the new crime regarding law enforcement use of prohibited restraints and 2) the sunset on the justifiable homicide statute that is amended in Sec. 2.

Sec. 4.  DPS model policy

Section 4 directs the Department of Public Safety and the Executive Director of Racial Equity to report to the standing committees in February 2021 on the process and outcome of their work to develop a statewide model use of force policy for law enforcement.  That process was directed by the Governor’s Executive Order Number 03-20, issued on August 20, 2020.

Law enforcement witnesses testified that they would prefer, instead of setting forth standards in statute for the use of force, that we should rely on a model policy to ensure uniformity in police use of force across the State. 

This approach would shirk our oversight responsibility, our duty to create standards governing the use of force this body has authorized.

In addition, policies generally are not enforceable in court.  Statutory standards are. 

This fact is understood by law enforcement.  The Vermont Criminal Justice Training Council is the entity that trains all law enforcement officers in Vermont on the use of force.  In the Council’s training materials, it states that “a violation of a department policy can result in sanctions or punishments from your department,” but only if the policy mirrors the law can its violation result in criminal charges or lawsuits.

The possibility of criminal charges or lawsuits can help motivate compliance with standards for use of force and ensures accountability of law enforcement to Vermonters. 

Because of its enforceability in a court of law, an enacted statutory provision would have far more potential to shape police culture than internal police regulations would.

This is not to say that a uniform state-wide use of force policy is not vital. A policy would provide the necessary details for police conduct to comport with the statutory standards.

S.119 provides guidelines for the use of force and use of deadly force in statutory standards while leaving to the Governor’s process the development and adoption of a uniform State policy for implementing those standards.  To give time to the Department of Public Safety to develop that policy consistent with the statutory standards, the effective dates in Section 5 of the bill provide that the statutory standards take effect in January of next year. The remainder of the bill takes effect on passage.

That concludes my section by section overview, and now I will turn to a broader issue.  In the absence of this bill, the legal standards that apply to law enforcement use of force in Vermont are set forth by courts, primarily by the U.S. Supreme Court, the U.S. Court of Appeals for the Second Circuit, and the Vermont Supreme Court.

For the most part, the standards in S.119 are the same as those set forth by the courts.  The bill also includes important clarifications.

First, how should we expect law enforcement to deal with individuals whose conduct is the result of a medical condition, mental impairment or some other factor?  Courts suggest that law enforcement should take such impairments into consideration when determining what force, if any, should be used in a particular situation.  Subsection (b)(5) requires law enforcement to take this into consideration.

[Chamberlain v. City of White Plains, 960 F.3d 100 (2d Cir. 2020);Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted”); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (Where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining . . . the reasonableness of the force employed.”)]

Second, subsection (c)(2) provides that deadly force is necessary when, given the totality of the circumstances, an objectively reasonable law enforcement officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force. As the Vermont Attorney General testified, deadly force should be a last resort. The controlling case law is not entirely clear on this point. So, the language in subdivision (c)(2) makes it clear – under Vermont law, deadly force may be used only as a last resort.

[Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (“Graham thus stands for the proposition that a government office may not intrude on a person’s Fourth Amendment rights by employing a degree of force beyond that which is warranted by the objective circumstances of an arrest.”); Rogoz v. City of Hartford, 796 F.3d 236, 248 (2d Cir. 2015) (the jury “could well find that Watson had used more force than was necessary.”); Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 208) (“the Graham factors are not exclusive.  Other relevant factors include the availability of less intrusive force. . .”); Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (“[Whether listed in Graham,] other relevant factors include the availability of less intrusive alternatives to the force employed … .”); Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994) (noting that “the availability of alternative methods of capturing or subduing a suspect may be a factor to consider” in determining whether a particular application of force was unreasonable; Estate of Heenan v. City of Madison, 111 F. Supp. 3d 929, 942 (W.D. Wis. 2015) (“The failure to use an alternative, non-deadly force is not dispositive, although whether such an alternative existed is a factual question that may weigh on a trier of facts’ ultimate determination of objective reasonableness.”); Becker v. City of Evansville, No. 3:12-cv-182-WGH-TWP, 2015 U.S. Dist. LEXIS 8414, at 37 (S.D. Ind. 2015) (“The availability of other means of apprehension presents a relevant consideration in the Graham analysis”). ]

In 2016, the Police Executive Research Forum, published the Guiding Principles on Use of Force.

In the words of the Chief of the Metropolitan Police Department of Washington, D.C., “The question is not, ‘Can you use deadly force?’ The question is, ‘Did you absolutely have to use deadly force?’ … And the decisions leading up to the moment when you fired a shot ultimately determine whether you had to or not.”  

Which leads me to the third critical clarification in S.119 of existing court-created standards for use of force.

The definition of “totality of the circumstances” in subsection (a)(6) includes the conduct and decisions of the law enforcement officer leading up to the use of force. It is not entirely clear where the Second Circuit is on whether conduct leading up to the use of force should be considered in determining whether that use of force was reasonable.  In a 1996 case, Salim v. Proulx, the court stated that the officer’s “actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.”  In a case decided at the end of May of this year, Chamberlain v. City of White Plains, the Second Circuit came to a different conclusion, finding that conduct leading up to a use of force should be part of “the balancing of factors bearing on whether the offer’s use of force was objectively reasonable under the circumstances.”

At least two other circuits, the First and Third, have clearly stated that such conduct should be considered in determining whether the use of force was objectively reasonable. Other circuits disagree.

[Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999); St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995)]

S.119 clears up this uncertainty in Vermont. Police officer conduct leading up to the use of force should be considered.

The standards in S.119 should not change how most of our law enforcement officers already act in situations involving use of force.  Police departments such as the one in South Burlington already have policies that largely comport with the standards in S.119.  In his testimony before the Judiciary Committee, the main trainer on use of force for the Vermont Criminal Justice Training Council stated that they already train police officers in the use of proportional force and in de-escalation techniques, for example. Still, it is important that we hold law enforcement officers accountable to these standards by having them in statute.

Before I list the witnesses that the Judiciary Committee heard from, I will give a bit more background regarding the process that we undertook to receive input on S.119.

While the Committee considered S.119 in June, it became clear that many people in communities affected by police use of force wanted to weigh in on that bill as well as on other police reform efforts. To address that, the Judiciary Committee took advantage of the time that the recess offered and, with the Government Operations Committee, hosted three public hearings on S.124 and S.119.  In coordinating those hearings, we worked with the Social Equity Caucus to ensure that we were reaching out to Black, Indigenous, and People of Color and disability rights communities to encourage their involvement.  The Social Equity Caucus also conducted an online survey that, among other topics, asked for input on S.119.  There were nearly 1500 responses to the survey.

When we returned from recess, to receive further input, House Judiciary invited 20 representatives of the BIPOC and disability rights communities to testify on the bill.  We received oral and written testimony from seven individuals representing these communities. The Committee also heard from representatives of the law enforcement community and modified aspects of the bill to try to address their concerns.

S.119 Witness List

Attorney and Founder of MadFreedom, a psychiatric survivor rights organization

Executive Director, VT Human Rights Commission

Executive Director of Racial Equity, Agency of Administration

Executive Director, National Alliance on Mental Illness (NAMI) of Vermont

Movement Politics Director, Rights and Democracy Vermont

Councilor, Burlington City Council

Retired Defender General and Director of the Human Rights Commission

Advocacy Director, ACLU of Vermont

Representative from Northfield

Legislative Counsel

Vermont Attorney General

Director, Civil Rights Unit, Office of the Attorney General

Assistant Attorney General, Vermont Attorney General’s Office

Commissioner, Department of Public Safety

Director of Administration, Vermont Criminal Justice Training Council

Chief of Police, Montpelier, and on behalf of the Vermont Police Association

Chief, South Burlington Police Department, and on behalf of Vermont Association of Chiefs of Police

Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs

State’s Attorney for Washington County

The vote in our Committee was 8-3.