End of Session Report

I am honored to represent District 7-1 in the important work that has been accomplished in the virtual State House. The following addresses some of the legislature’s accomplishments this session, including those of the Judiciary Committee, on which I sit.

I. COVID RECOVERY

The legislature is creating an equitable recovery plan to rebuild the economy in all 14 counties. Federal funding over the past year gives Vermont a unique opportunity to make thoughtful investments over several years that advance our priorities and accelerate recovery in every corner of the State. Our current FY2022 budget and American Rescue Plan Act investments prioritize:

● Strengthening systems and services that increase mental and physical health and social well-being.

● Expanding broadband and connectivity to facilitate remote work, telehealth, online learning, and small business creation.

● Investing in childcare to increase access, affordability, and quality for working families and raise wages for early learning professionals.

● Increasing affordable housing stock for low- and middle-income Vermonters; transitioning homeless Vermonters to permanent housing with services.

● Addressing climate change by curbing emissions, electrifying transportation, and  weatherizing more homes.

● Investing in higher education and workforce development to prepare Vermonters for 21st century jobs within the State.

● Advancing clean water and the health of our lakes, rivers, wetlands, groundwater, and drinking water systems; ensuring a toxics-free environment that protects our natural resources.

● Fostering racial and social equity in our investments; dismantling structural inequities that limit the economic opportunity and mobility of Black, Indigenous, and Persons of Color (BIPOC), LGBTQIA+, women, people with disabilities, New Americans, and vulnerable Vermonters.

Investments to Ensure COVID Recovery

In the Spring of 2020, Vermont received $1.25 billion in federal CARES funding. These

dollars provided relief for Vermonters in desperate need, including individuals, families, communities, and local businesses in all 14 counties. These dollars were also key to stabilizing critical systems in healthcare, human services, and childcare.

Spring 2021 has brought Vermont $1.052 billion in federal American Rescue Plan Act (ARPA) funds, and once again the legislature is focused on leaving no one behind. To the extent allowed by federal regulation, Vermont’s use of ARPA dollars is focused on the well-being, present and future, of the State’s human infrastructure.

This investment is apparent in the allocations of ARPA funding in the FY2022 State budget, a total of $599.2 million. Included, for instance, is $109.2 million targeted to economy, workforce, and communities; $99 million to housing; and $51 million to rental assistance. The State has also allotted $150 million for broadband investments and $52 million for technology modernization, as well as $50 million for climate action and $115 million for clean water investments. ARPA dollars not “spoken for” are still available for use when we have a better sense of ongoing or unanticipated needs. This flexibility is permitted by ARPA, as we have through FY2025 to use these funds.

Business & Workforce Grant Programs Launched

To get relief to Vermonters quickly, the legislature passed Act 9 in early April, a $97.5 million pandemic relief bill that invested federal funds before the end of the session to jumpstart the State’s recovery. This bill created $10.5 million in Economic Recovery Bridge Grants, targeting new and small businesses not initially eligible for assistance. Act 9 also allocated $500,000 to the EMBRACE Grants for Micro Business program, providing up to $5,000 to low- and moderate-income Vermonters with businesses under five employees and less than $25,000 in annual revenue. Finally, $8.2 million was approved for the Vermont State Colleges, UVM, and VSAC to provide up to two free classes to adult Vermonters looking to boost job skills or change careers, and to all 2020 and 2021 high-school grads, as well as to train more licensed nurses (LPNs).

Building Back Better: Statewide Infrastructure

The legislature passes a Capital Bill in the first year of each biennium. This is where we make long-term investments in buildings and infrastructure using money from state-issued bonds. This year’s Capital Bill, Act 50, invests $123 million in a range of projects critical both to pandemic recovery and to the future of Vermont, including courthouse renovations and HVAC, clean water, State park upgrades, State office building maintenance, mental health facilities, and affordable housing.

The legislation also expands the Building Communities Grant Program, which invests in local economies and helps communities preserve historic buildings, improve ADA accessibility, and address fire safety in recreational, educational, cultural, and human service facilities. Municipalities, schools, libraries, and nonprofits are encouraged to apply.

Universal Access to Broadband

The COVID-19 pandemic highlighted how essential high-speed internet is to daily life. We use the internet to go to work, attend school, see a doctor, interact with the government, and connect with our communities and the world at large. Unfortunately, the promise of modern communications has bypassed too many rural communities in the State with twenty-five percent of Vermonters still lacking access to broadband.

Act 71 dedicates $150 million of the federal stimulus funds to the construction of broadband infrastructure in the most underserved parts of the State. (The legislature anticipates spending a total of $250 million for broadband deployment over the next three years.) The bill includes funding for pre-construction planning and design costs, grants for building broadband infrastructure to unserved and underserved areas, and a new broadband workforce development program.

Childcare: Essential to Economic Recovery

The pandemic highlighted the importance of available and affordable childcare to support Vermont’s children, families, communities, and economy. Act 45 takes significant steps towards reforming our childcare system. Not only does Act 45 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 for a more securely-subsidized universal childcare system.

By increasing access and affordability for Vermont’s families, we help parents stay employed and contribute to their local economies. By increasing childcare workers’ wages, we can support and grow our workforce of early care and learning professionals. By prioritizing the well-being and development of our children, we are giving our youngest Vermonters a head start to success.

II. PROMOTING EQUITY

Expanding Office of Racial Equity

Before the 2021 session, legislators heard from constituents that Vermonters were not dealing with one pandemic, but three: COVID-19, climate, and systemic racism. In addressing systemic racism, one of the glaring needs identified was bolstering personnel at the State’s Office of Racial Equity. When this office was created and Xusana Davis hired as Director, the legislature did not know the extent of how widely its services would be used and requested.

The workload has continued to grow, with the Director being flooded by requests to sit on committees and boards, meet with Vermonters, review policies, and offer expertise to all three branches of State government. It became clear that the needs of the Office were far greater than one person could handle. To help, two positions were added to the Office of Racial Equity and passed in the budget, effective July 1, 2021.

Promoting Healthcare Equity

The Department of Health’s 2018 State Health Assessment reveals that not all Vermonters have an equal opportunity to be healthy. From higher morbidity to access to health care, statistics show significant disparities across the Green Mountain State based on race and ethnicity, sexual orientation, gender identity, and disability status. Act 33 begins the long-term process of breaking down these barriers. The bill creates a Health Equity Advisory Commission made up primarily of Vermonters whose lives have been impacted by historic inequitable treatment in accessing health care, while empowering them to develop an Office of Health Equity by no later than January 1, 2023.

Healthcare for Undocumented Children and Pregnant Women

Act 48 provides immediate increased access to healthcare for income-eligible children and pregnant women, regardless of their immigration status, by establishing a Dr. Dynasaur-like healthcare program. This coverage begins on July 1, 2021. These undocumented women and children often work or live with their families on the farms and dairies that are essential to our Vermont economy. Because of fear that their immigration status will be revealed, confidentiality is critical. We know that prenatal care and medical care in childhood can improve health outcomes over a lifetime, as well as reduce costs for both education and healthcare systems.

Promoting Economic Opportunity for BIPOC Businesses

This session, legislators embraced their responsibility to address racial wealth disparities and begin addressing the historical impacts of economic exploitation and exclusion from economic opportunity. The legislature engaged BIPOC business and community leaders across the State to inform and develop legislation to create the BIPOC business development project detailed in H.159. It invests $150,000 in a process to be driven by the BIPOC community and may include the creation of a minority business development center or authority. This legislation will also provide technical support for BIPOC businesses in procurement of State contracts, improve language access and cultural competency practices within State economic development programs, and strengthen State data collection to better serve the variety of identities represented within the BIPOC community. H.159 did not itself pass, but these provisions were incorporated into the budget bill.

Equitable Access to Transportation

In the transportation sector, inequity takes any forms, from not having “a seat at the table” when large transportation projects are planned to not being able to access or afford private or public transportation. This year’s Transportation Bill addresses inequity by requiring a comprehensive analysis of Vermont’s transportation programs. The resulting report will create an equity framework that will be used to increase mobility options, reduce air pollution, and enhance economic opportunity for Vermonters in communities that have been historically underserved by the State’s transportation programs. In addition, millions of dollars in incentives have been appropriated to help Vermonters who may have to choose between filling up the flivver or filling up the fridge. These income-qualifying programs include “Emissions Repair” (to help pay for repairs needed to pass vehicle inspection), “Replace Your Ride” (an incentive to turn in an inefficient vehicle), and “Mileage Smart” (to help purchase a used vehicle). And for those using public transit, Zero Fare bus transportation continues through June 2022.

Racism as a Public Health Emergency

The COVID-19 pandemic has magnified the severe inequities in our public health systems. For example, while Black residents comprise only 1 percent of Vermont’s population, they accounted for almost 5 percent of the State’s COVID-19 cases in 2020.

Highlighting a strong body of evidence, J.R.H.6 acknowledges systemic racism as a direct cause of the adverse health outcomes experienced by BIPOC communities in Vermont. It also commits our State to the “sustained and deep work of eradicating systemic racism throughout the State, actively fighting racist practices, and participating in the creation of more just and equitable systems.”

J.R.H.6 was drafted through the collaboration of impacted communities, and gained the broad support of the legislature and the Vermont Department of Health. J.R.H.6 is just one important step in an ongoing effort to create equitable systems that promote justice, dignity, and health for all Vermonters.

Legislature Apologizes for Eugenics

In J.R.H.2, the Vermont legislature acknowledges and apologizes for sanctioning

and supporting eugenics policies and practices through legislation that led to forced family separation, sterilization, incarceration, and institutionalization for hundreds of Vermonters in the early 20th century. These policies targeted the poor and persons with mental and physical disabilities, as well as individuals, families, and communities whose heritage was documented as French-Canadian, French-Indian, or of other mixed ethnic or racial composition, and persons whose extended families’ successor generations now identify as Abenaki or as members of ther indigenous bands or tribes.

The traumatic ripple effect of these State led actions has been felt through generations and has had real and tangible effects on the lives of Vermonters today. The resolution does not undo the harms of the past, but it marks an essential step towards a future of accountability and reconciliation for the generations of Vermonters who were harmed by State-sanctioned violence. The resolution recognizes that further legislative action should be taken to address the continuing impacts of eugenics policies.

III. CRIMINAL JUSTICE

Addressing Sexual Assault in Vermont

The legislature passed Act 68, which revises and clarifies our laws addressing consent to sexual activity, including the impact of alcohol consumption. The law will clarify 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 reduced 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 action against the victim. Act 18 prohibits the use of such a defense in Vermont.

Penalties for Hate-Motivated Crimes

Act 34 updates Vermont’s response to crimes motivated by hate, providing 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 Act 57, 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 also a danger to self or others, the person is committed to the custody of the Department of Mental Health for treatment. That law provides no way for the crime victim to be made aware when the person returns to the community. Act 57 closes that gap by creating a system of victim notification in such 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.

Reforming Vermont’s Correctional System

Recognition of the need for reform and culture-level change in the criminal justice and corrections systems has been growing for years. “Warehousing” offenders does not help them prepare to reenter society successfully. Vermont is committed to building a criminal justice system that is equitable and rehabilitative, where State employees and the incarcerated Vermonters in their care are safe and treated with dignity and respect.

This year, the legislature passed Act 56 to address sexual misconduct and systemic issues within the Department of Corrections (DOC) that came to light at the women’s facility in South Burlington. Act 56 establishes an independent Corrections Monitoring Commission and a Corrections Investigative Unit; expands State law to criminalize sexual contact between DOC employees and anyone under the department’s supervision; and requires that DOC work with the Criminal Justice Council to develop a proposal for training standards and a process for certification and decertification of correctional officers.

New Women’s Correctional & Reentry Facility in Planning Stages

Changing the culture of Corrections is not only a matter of programming, it is also a matter of facilities. Most of Vermont’s six regional correctional facilities were designed with a mindset that is now outdated and built decades ago. Most require significant repair and maintenance. In particular, the women’s Chittenden Regional Correctional Facility is in dire need of replacement to better serve women and their unique reentry needs.

The Capital Bill includes an initial $1.5 million investment in planning and program design for a new women’s correctional and reentry facility or facilities. In summer and fall 2021, the Department of Corrections (DOC) will hold focus groups with key stakeholders, including correctional officers and other staff, inmates, and outside service providers. DOC will work with Buildings and General Services to develop a proposal for size, location, and preliminary design that the legislature will review during the 2022 session.

IV. ENVIRONMENTAL PROTECTION

Prohibiting “Forever Chemicals” from Consumer Products

Many Vermonters know that polyfluoroalkyl (PFAS) chemicals were found to contaminate drinking water in Bennington and North Bennington in 2016. PFAS are known as “forever chemicals” because they accumulate within our bodies over time and do not biodegrade in the environment. This exposure leads to a number of adverse health effects, including an increased risk of cancer. Research is showing that even those who do not live in a contaminated area may be exposed to PFAS because these chemicals are used in many consumer products.

Rather than limiting our solutions to downstream clean-up, Act 36 addresses this issue upstream by preventing these toxic substances from entering our State. It prohibits the manufacture and sale of PFAS from four products that pose the highest risks to Vermonters’ well-being: food packaging, fire extinguisher foam and firefighting PPE, rugs and carpets, and ski wax. Act 36 takes comprehensive steps to protect Vermonters from toxic chemicals and prevent future harm to the environment and public health.

Updating Vermont’s Bottle Bill

An update to Vermont’s 50-year-old bottle bill passed the House this session. H.175 will expand the types of containers subject to deposits, which will now include water bottles, wine bottles, hard cider and tea containers, and others. This bill will also increase the handling fees paid to vendors, which will encourage the opening of more redemption centers. Containers recycled via the deposit system are cleaner and more valuable than if they go through the general recycling stream, and a greater percentage of them will be made into new containers. Glass, in particular, is much easier to manage as a recycled material if it goes through redemption centers versus a curbside bin. The bill has not yet passed the Senate.

New Agricultural Innovation Board Created

Act 49 creates the Agricultural Innovation Board (AIB). It will tackle areas of concern such as pesticide use and how to reduce it, and how to transition from agricultural use of plastics to more biodegradable materials. Vermont is the only state that has a Seed Review Committee that allows for the review of the seed traits of a new genetically engineered seed proposed for sale, distribution, or use in the State. The legislature created this committee last biennium in response to the use of Dicamba (a pest-controlling herbicide) in other parts of the country. The AIB’s approach will be a more holistic approach to soil health and pesticide use.

Steering Vermont Transportation Into the Future

For a century, the word “transportation” in America has been virtually synonymous with the word “car.” And not just any car, but cars using an internal combustion engine (ICE). This year, the legislature worked on several bills that recognize and embrace that change is here, driven by customer demand and environmental concerns. The Transportation Bill and FY2022 State Budget appropriated millions of dollars for incentives to help Vermonters shift gears from ICE vehicles to plug-in hybrid electric vehicles (PHEVs) and battery electric vehicles (BEV). To make sure Vermonters can “fill up” their new rides, support is also set aside for additional public charging stations. Don’t want to drive? Sign up soon for $200 off an electric bike. And while electrifying our transportation system saves Vermonters money and reduces greenhouse gas emissions, the transportation transformation is best approached comprehensively. As such, funds were also directed to address stormwater and improve water quality, to construct bicycle and pedestrian facilities as well as Park and Rides, and to support the growth of carpools and vanpools.

V. EDUCATION

A Step Forward on School Buildings

Built decades ago, it’s no surprise that many of Vermont’s school buildings, including our South Burlington schools, are aging and in urgent need of repair. Act 72 is an initial step to address the problem. The work begins with an update of the State’s school facility standards and a statewide conditions inventory and assessment for all school buildings. The bill also establishes a renewable and efficiency heating systems grant program administered by Efficiency Vermont and requires each public and independent school in the State to perform radon measurements by June 2023. Additional time for testing is granted to schools in the process of implementing indoor air quality improvement projects. The long-term goal is to make sure that our school buildings are well-maintained, energy-efficient, safe, and healthy places that meet the needs of 21st century education and technology. Unfortunately, a funding source to upgrade our school buildings has not yet been identified.

Community Schools Pilot Program

As schools across Vermont focus on pandemic recovery and re-engagement, Act 67 invests $3.3 million in a demonstration grant program that will allow eligible districts to explore the innovative “community schools” model. Sometimes known as full-service schools, community schools help kids and families access vital services such as healthcare, mental health counseling, or help with food or housing, often right in the building. They serve as resource hubs that provide a range of accessible, well-coordinated, and culturally inclusive supports and services. Now gaining traction across the country, community schools tackle head-on the challenging and complex out-of-school barriers, like poverty and hunger, that hold so many of our students back. They help close the achievement gap for low-income students, special education students, BIPOC students, and English language learners, and improve student outcomes ranging from attendance and academic performance to graduation rates. The bill also kick-starts a grant program to help schools buy more food that’s grown or produced in Vermont, and creates a task force with the goal of achieving universal school lunches by the 2026-2027 school year.

Task Force to Implement Pupil Weighting Factors

In 2019, a team of UVM-led researchers delivered an extensive report on Vermont’s “weights,” the numeric factors used to account for the varying costs of educating different categories of students—for example, English language learners or children from economically deprived backgrounds. Act 59 establishes a task force that will work over the summer to develop an implementation plan, a roadmap the legislature will use next session in considering how to integrate the new recommended weights into our complex education funding formula. The weights have a profound impact on how we calculate equalized pupils, which in turn affects taxing capacity from district to district. The report, due in December 2021, will also consider the excess spending threshold, how we calculate poverty for the purposes of school finance, and other factors intertwined with our unique school funding system.

IV. OTHER ACCOMPLISHMENTS

Preserving Public Pensions System for State Employees & Teachers

The Legislature focused this session on putting Vermont’s public pension system on a path towards long-term sustainability, so that teachers, troopers, and all State employees can rely on a well-funded, solvent system when they retire. Legislators are balancing commitments – one to State employees and teachers and another to Vermont taxpayers – in the face of a $5.6 billion unfunded liability that will continue to grow exponentially without action.

Act 75 engages more stakeholder voices in the process. The legislation focuses on governance changes that will amend the Vermont Pension Investment Commission to include more independent, financial expertise. It also established the Pension Benefits, Design & Funding Task Force to meet this summer with a “report-back” to the legislature with recommendations for putting the retirement systems on a sustainable path.

The legislature has reserved $150 million of General Fund dollars (freed up by ARPA dollars), along with a separate annual payment of $316 million, for a total investment this year of $466 million. This amount is a massive commitment from the legislature in a single year. Resolving this pension crisis in the short term with robust participation from all stakeholders is the fair and responsible thing to do for all concerned.

Increasing Access for Voters

Universal Vote-By-Mail was a great success during the 2020 General Election, contributing to record turnout even during a pandemic of a 74 percent participation rate. It expanded voter access and encouraged increased participation in our democratic process. Act 60 continues the Vote- By-Mail program, adds other important election measures, and counters the prevailing trend across the U.S. where state legislatures are curtailing voter access with more restrictive election laws.

Harm Reduction Through Buprenorphine

In addition to the COVID-19 pandemic, Vermont has been suffering from an epidemic of fatal drug overdoses. With 157 opioid-related deaths, 2020 was one of Vermont’s deadliest years for overdose on record. Almost all of these deaths were accidental, and the vast majority (88%) involved fentanyl, an extremely potent opiate that, unbeknownst to the user, is mixed with heroin. Use of buprenorphine offers a safer alternative for people living with opioid use disorder. Buprenorphine reduces the risk of relapse for people in recovery by blocking opioid cravings and reducing the likelihood of fatal overdose from fentanyl.

There are a number of barriers to Vermonters receiving prescribed buprenorphine, however, including geographic distance from a clinic, lack of transportation or insurance coverage, inconvenient clinic hours, and other cumbersome requirements to maintain a prescription. In response to the urgent need to reduce harm from opioid use, Act 46 removes criminal penalties for possession of non-prescribed buprenorphine that is less than a two-week supply. This legislation will save lives by supporting Vermonters in the management of their substance use disorders, encouraging them to seek safer alternatives and begin formal treatment.

Legislative Climate Action

Water wells going dry in parts of Vermont due to an ongoing drought. A shortened sugaring season. Recurring annual algae blooms as Lake Champlain and other State bodies of water become progressively warmer.

These all serve as reminders that Vermonters need to continue to do their part in addressing climate change. The choices and actions of individuals are important to reduce carbon emissions. The choices and actions of the State’s legislature and Governor are also critical to address the challenge. 

At the State level, last year the Vermont legislature passed the Global Warming Solutions Act (GWSA). This Act creates legally binding greenhouse gas emission reduction targets. It requires the State to reduce greenhouse gas pollution to 26% below 2005 levels by 2025, to 40% below 1990 levels by 2030, and to 80% below 1990 levels by 2050. The law created a Vermont Climate Council and charged it with developing a Climate Action Plan by December 1 of this year. That Plan must lay out an implementation strategy for the transformative change required by the statute. The Council must consider methods to reduce greenhouse gas emissions, opportunities for long-term carbon sequestration, and ways to enhance the resilience of Vermont’s communities and ecosystems to weather events caused by climate change. 

The legislature continued its work on climate this year. In the budget, it is supporting the work of the Climate Council and also investing $50 million on climate action. Those funds will be used, in part, to weatherize homes and support renewable energy projects.  

It also passed legislation that establishes Vermont as a leader in fighting climate change in the transportation sector. For a century, the word “transportation” in America has been virtually synonymous with the word “car.” And not just any car, but cars using an internal combustion engine. This year, the legislature worked on several bills that recognize and embrace that change is here, driven by consumer demand and environmental concerns. The Transportation Bill and FY2022 State Budget appropriated millions of dollars to triple incentives to help Vermonters shift gears from internal combustion engine vehicles to plug-in hybrid electric vehicles and battery electric vehicles. An individual earning less than $50,000 is now eligible for incentives of $3000 for a plug-in electric hybrid or $4000 for an electric vehicle. For individuals with incomes of $50,000 to $100,000 or families with incomes of up to $125,000, the incentives are $1500 and $2500.

To make sure Vermonters can “fill up” their new electric rides, the legislature also set aside support for additional public charging stations. Additionally, it provided grants for charging stations at multi-unit apartment buildings. And for those who would rather ride than drive, the legislature clarified regulations for electric bikes and provided an incentive program to encourage individuals to purchase this mode of transport.

 While electrifying our transportation system saves Vermonters money and reduces greenhouse gas emissions, the transportation transformation is best approached comprehensively. So legislation provided funds to construct bicycle lanes and safer streets for pedestrians and to expand Park and Ride facilities to support the growth of carpools and vanpools. The legislature also extended for a year a program providing fare-free transit on buses statewide and continued its support for establishing direct rail from Burlington to New York City.                 There is, of course, much more that needs to be done, both at the personal and State level, to do our part to address the threat of climate change.

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.