End of Biennium Report – Judiciary Committee

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Public Safety

One of the priorities of House Democrats this Biennium was public safety, a concern raised by Vermonters across the state. In the last Biennium, the legislature made substantial investments in the judicial system to address the court backlog. Reducing the backlog will improve the timeliness and certainty of consequences for criminal behavior.

This Biennium, House Judiciary again prioritized proper funding to ensure that our judicial system continues to have the resources it needs to move cases to a speedy and just resolution. Beyond funding, House Judiciary also passed the following legislation aimed at addressing public safety concerns.

Juvenile Justice. In general, when a person is charged with an offense in Vermont, the court system they enter depends on their age and the severity of the crime. Before passage of Act 4, with some exceptions, if someone age 10 to 18 is charged with a crime, their offenses are addressed in delinquency proceedings in Vermont Family Court. If they are charged with one of the most serious crimes such as murder or arson, their case will commence in Vermont Criminal Court. 

Act 4 addresses the ways our juvenile justice system handles the supervision, care, and rehabilitation of juveniles accused of criminal acts. Among other changes, the Act raises the minimum age of juvenile jurisdiction from 10 to 12 years of age.This change would mean that 10- and 11- year-olds accused of crimes are not subject to any delinquency proceedings. Instead, their behavior may be addressed through a Children in Need of Care and Supervision (CHINS) proceeding in Family Court. The Racial Disparities in the Juvenile and Criminal Justice System Advisory Panel (RDAP) recommended the change based on data connecting racial disparities and disparate outcomes for youth of color. All testimony before the House Judiciary Committee supported this change.

Youthful Offender Law. This law provides an alternative to adult criminal court for youth ages 14 to 22, allowing their cases to be handled confidentially in Family Court if certain criteria are met. A court can place an individual with YO status on juvenile probation, under the jurisdiction of both the Department of Children and Families and the Department of Corrections.

The focus of juvenile probation and YO status is rehabilitation with services like education, treatment, and job training. The goal of YO status is to prevent long-term collateral consequences for the youth and allow them to avoid having a criminal record based on actions taken before their brain has fully developed. If the youth violates their probation, however, a court may revoke their YO status and transfer the individual back to Criminal Court for sentencing. 

Act 140 would change Vermont’s YO law by strengthening provisions related to accountability and by expanding victims’ rights. The law would extend the jurisdiction of the court’s Family Division beyond the youth’s 22nd birthday if there is a motion pending to revoke their YO status. This extended jurisdiction would last either until the court revokes the youth’s probation and sends the case to the Criminal Division or until the court discharges the youth from probation. This new provision addresses the situation where youths have “timed out” of their juvenile probation because they turn 22 while there is a pending motion for revocation of their YO status.

Act 140 also clarifies the factors a court considers when ruling on a motion to revoke YO status; confirms that if a youth fails to appear at the probation revocation hearing, the court may order an officer to pick up the youth and bring them to court; and expands the right of victims to be heard at YO hearings.

Accountability Docket. To deter crime, there must be a real risk of being caught committing a crime and certain and swift consequences for criminal activity. A pilot rapid accountability docket in Chittenden County focused resources on the second deterrence requirement, ensuring certain and swift consequences. The pilot program, which helped clear a backlog of repeat-offender criminal cases, brought together judges, prosecutors, defense attorneys, and human services staff to resolve cases faster and connect offenders to the services they need.

In Act 165, we defined a structure for expanding this accountability docket concept to other Vermont counties. The law sets forth the goals of an accountability docket, including: (1) accelerating court proceedings of repeat-offender cases with consistent and timely availability of judicial, prosecutorial, defense, corrections, and human services resources; (2) connecting individuals with treatment, housing, and social services to reduce the circumstances that may contribute to recidivism; (3) reducing the number of pending criminal cases that involve individuals with multiple pending cases by providing targeted resources for a limited period of time; (4) improving accountability for those individuals by providing immediate follow-up and a court schedule that makes it more likely they will appear; and (5) improving collaboration among law enforcement, prosecutors, and social workers to provide faster resolution of repeat offender cases.

For those counties that will employ an accountability docket, the law requires the county’s State’s Attorney to convene stakeholders to develop a plan to implement the program that meets these goals. It also requires the courts, prosecutors, defense counsel, and the administration to provide resources for 90-day accountability dockets. And it mandates data tracking and reporting to measure the effectiveness of these dockets.

Criminal Justice Data. Act 94 provides current criminal justice data to inform the work of the legislature. The law creates a standardized definition of recidivism in Vermont law. Recidivism rates measure how often individuals previously convicted of a crime commit a new offense. Currently, the definition of recidivism in Vermont is outdated and arbitrary, focusing on a narrow subset of individuals. Act 94 brought stakeholders together to improve the definition, making it relevant and useful in future studies and legislation related to criminal justice in Vermont.

The new law defines recidivism simply as a new criminal conviction following a prior conviction. The relevant period for counting new convictions begins when an individual is released from incarceration or sentenced to a non-custodial sentence. 

Act 94 also establishes a number of annual reports from the Vermont Statistical Analysis Center. The reports will include bail rates and information on individuals held pretrial in Vermont correctional facilities; recidivism rates calculated over three- and five-year periods; arrests and clearance rates organized by offense type; and information on the twenty crimes with the highest number of convictions, including sentencing data and total years of probation and incarceration imposed. The reports are to include demographic information, when available. Act 94 improves consistency in how Vermont measures recidivism and provides clear, comprehensive data on trends in our criminal justice system. 

Forensic Facility. Act 147 directs the Vermont Agency of Human Services (AHS) to establish a plan to develop a forensic treatment facility for certain incarcerated individuals with significant mental health challenges or cognitive disabilities. The law will address longstanding gaps in Vermont’s behavioral health infrastructure. It creates a plan to develop a therapeutic, secure setting designed to provide competency restoration, stabilization, treatment, and care while also maintaining appropriate public safety measures.

The facility is intended to better serve individuals whose needs are not met in typical correctional settings, while improving outcomes for those individuals as well as victims of crime and the broader community. The law primarily applies to two groups: Individuals charged with serious crimes punishable by life imprisonment who are found incompetent to stand trial and individuals found not guilty by reason of insanity for life-sentence offenses. The anticipated population is small —approximately six individuals annually for competency restoration cases. The facility would be operated by AHS, not the Department of Corrections (DOC), except for limited perimeter or intake security functions by DOC.

The Act establishes who can be committed to a forensic treatment facility, the process for committing individuals to the facility and keeping them there, and the paths individuals can take to end their time in the facility. The House Judiciary Committee focused on relevant court processes as well as ensuring due process and equal protection for those who qualify for commitment to a forensic facility in Vermont. The law also sets forth the requirements for the facility’s operation and requires AHS to provide a feasibility plan related to the details of the facility, including where it will be located and who will operate it. The Committee on Corrections and Institutions worked on these aspects of the law and the Committees on Health Care and on Human Services also provided input. The facility is expected to be available by July 1, 2029.

Act 147 also provides an interim competency restoration and forensic program to work with individuals currently in our system who need this treatment while the State develops a permanent facility plan. Because the interim program will be provided within DOC facilities, the Act allows DOC a broader role in providing security for the interim program, including increased involvement monitoring individuals released under supervision. DOC will focus on ensuring public safety while the AHS Medical Director will oversee competency restoration and any other clinical needs.

The inclusion of this interim program recognizes that the status quo is doing a disservice to victims and those charged but found incompetent to stand trial. The alleged offenders are languishing in prison, often for months, receiving no competency restoration treatment and limited mental health services. They are not getting their day in court or other resolution of their case, and the victims are not receiving closure or any sense of justice. It’s important to improve the status quo while the State implements a more permanent forensic facility solution.

Addressing Domestic and Sexual Violence

Act 46 revises Vermont’s civil protection order statutes to provide better relief to victims of domestic violence, sexual violence, and stalking. Protection orders, also called restraining orders, are a critical legal tool for victims. This legislation will help victims of domestic violence obtain the protections they need to get and stay safe.

Act 12 establishes procedures to ensure access to orders against sexual assault after regular court hours or on weekends. Currently, survivors can only request a sexual assault protection order during regular court hours, leaving them at risk when assaults occur on evenings, weekends, or holidays. By ensuring that victims can access orders against sexual assault outside of regular court hours, the law allows for swift action whenever it is needed.

Act 89 modernizes Vermont’s laws addressing image-based abuse and digital exploitation, in part by expanding the statute of limitations for some cases and by recognizing that not all harm from such crimes is physical. These updates follow a Vermont Supreme Court decision that highlighted limitations in existing law related to nonconsensual recording in private spaces.

Act 89 also creates a new criminal offense prohibiting sexual extortion, or “sextortion,” a form of online exploitation that disproportionately impacts young people. Together, these reforms strengthen accountability for digital forms of abuse and provide clearer legal protections and recourse for victims.

Government Accountability and Transparency

Another priority for House Democrats this Biennium was responding to the ever-changing federal landscape due to the actions of the Trump administration. Vermonters across the political spectrum have been concerned about the administration’s orders and decisions related to undocumented and immigrant members of our Vermont communities, as well as the erosion of respectful political discourse and targeting of our most vulnerable communities. 

House Judiciary passed several bills that aim to protect targeted communities and restrict how Vermont law enforcement may cooperate with federal law enforcement. 

Through the establishment of standby guardianships, Act 31 clarifies a process that allows immigrant parents to identify trusted adults who can step in as temporary guardians if the parent is detained or deported. This proactive step can provide some measure of comfort to immigrant parents and their children because they will know in advance who would care for the kids in the event their parents are detained. This process helps ease traumatic separations or confusion in emergency situations. It also avoids the necessity for the Department of Children and Families to take legal custody of the children in these situations. 

The confirmatory adoption provision in Act 31 provides a clear and expedited process for Vermonters who became parents through the use of assisted reproduction technology (who are already parents under Vermont law) to obtain a court order declaring their status as parents. This change provides a necessary level of protection for families who may travel to destinations that do not recognize the legal parenthood of LGBTQ parents and others who have used assisted reproduction technology.

Vermont law had allowed an exception to the Governor’s exclusive authority to enter into certain agreements with federal Immigrations and Customs Enforcement (ICE): State and local authorities could consent to such an agreement if there was a declaration of a state or national emergency. Act 28 eliminates this exception and keeps the Governor as the sole authority in Vermont to enter into ICE delegation-of-authority agreements. This change will keep the State accountable to Vermonters regarding how our law enforcement interacts and cooperates with ICE. Currently no such agreements exist in Vermont.

Act 8 expands Vermont’s hate-motivated crimes statute. It more accurately captures the conduct that such a statute is intended to penalize by expanding the scope of who can be considered a victim of a hate crime. Hateful conduct is not acceptable. Act 8 helps ensure that such conduct can be named and prosecuted effectively. 

Act 87 creates a legal claim for damages against a state, local, or federal official who violates the U.S. Constitution. Under the law, any resident of the State of Vermont, or any other person within the jurisdiction of Vermont, could sue to allege a constitutional violation that infringes their rights. They could bring such a suit against a person acting in an official capacity if that person deprives someone in Vermont of any of their federal constitutional rights, or if they cause someone in Vermont to be deprived of those rights.

For example, under this law, individuals could bring claims for violations of the Fourth Amendment related to unreasonable searches and seizures. Such claims could cover police brutality, excessive force during arrest, false arrest, and unlawful searches of homes or property. Claims may arise under the First Amendment if government officials attempt to suppress the right to free speech or the right to peaceably assemble. Claims could arise under the Fourteenth Amendment for violations of due process or equal protection. These violations could involve deprivation of life, liberty, or property without proper legal procedures. 

Act 150 expands protections against civil arrests without a judicial warrant in sensitive locations across Vermont. Prior law protected individuals attending or traveling to and from court proceedings. This new law broadens those protections to include individuals accessing educational institutions as well as those present at healthcare facilities, polling places, and government buildings, to name a few.

The Act addresses concerns related to civil immigration enforcement actions conducted pursuant to administrative warrants (versus judicial warrants) and seeks to ensure that individuals can safely access essential public institutions and services without fear of warrantless civil arrest.

Act 126 provides that no one can intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce others for the reason of obstructing their right to cast a vote or their right to choose who to vote for. It imposes possible criminal penalties for such interference. The Vermont Secretary of State and town clerks strongly supported this part of the law, which originated in House Judiciary.

Other House Judiciary Work

Act 118 provides comprehensive reforms to Vermont’s animal cruelty statutes and procedures. The law expands and modernizes the definition of animal cruelty, updates criminal penalties to better reflect the seriousness of abuse and reworks the civil animal forfeiture procedures to improve protections for animals at risk of harm.

Act 118 will also streamline the process for removing abused animals from dangerous conditions while helping reduce the financial and logistical burdens placed on shelters, humane organizations, and volunteers assisting with animal protection efforts – something that is currently a significant issue in Vermont.

Act 134 is a firearms storage and safety law that improves the system for ensuring compliance with court-ordered firearms surrender. It does not create any new restrictions on possession or ownership of firearms.

Firearm injury is the leading cause of domestic violence-related homicide in Vermont. But all too often, protection orders requiring firearm surrender are not effectively implemented. When firearms are not properly relinquished, survivors’ safety is at risk. Uncertainty about whether an abusive partner still has access to firearms can prevent survivors from feeling safe enough to return home, go to work, or continue daily life. A court order (such as a relief from abuse order) can only protect survivors when its conditions are clearly communicated, consistently followed, and reliably enforced. Act 134 provides practical updates needed to make that possible. The process created by the law also applies to relinquishment as part of an extreme risk protection order, which may be issued when a person is shown to be a risk of danger to themself or others. 

Act 60 takes key steps to modernize the system for criminal record clearance in Vermont. Record clearance is an important part of our criminal justice system as it addresses significant barriers that exist for those with criminal records, barriers specifically related to housing, employment, and educational access.

Act 60 creates a uniform, simplified system of sealing – rather than completely erasing or “expunging” – criminal records. It allows criminal records for certain crimes to be sealed automatically if the offender receives no additional criminal convictions over a defined time period. The individual would no longer have a criminal record, eliminating overly punitive obstacles to obtaining housing, employment, and education. Sealing rather than expunging these records would also ensure access to them for law enforcement and criminal justice purposes as well as for background checks necessary to ensure public safety.

Continued Focus on Public Safety

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The House Judiciary Committee has continued its focus on improving public safety in Vermont. The Committee has recently approved three bills that meet that goal: H.642, which makes changes to the youthful offender (YO) law in Vermont; H.937, which lays out a structure to expand the pilot “accountability docket” to other counties; and H.410, which improves the availability of criminal justice data to guide the legislature’s work. 

Youthful Offender Law.  This law provides an alternative to adult criminal court for youth ages 14 to 22, allowing their cases to be handled confidentially in Family Court if certain criteria are met. A court can place an individual with YO status on juvenile probation, under the jurisdiction of both the Department of Children and Families and the Department of Corrections.

The focus of juvenile probation and YO status is rehabilitation with services like education, treatment, and job training. The goal of YO status is to prevent long-term collateral consequences for the youth and allow them to avoid having a criminal record based on behavior before their brain has fully developed. If the youth violates their probation, however, a court may revoke their YO status and transfer the individual back to criminal court for sentencing. 

H.642 would change Vermont’s YO law by strengthening provisions related to accountability and by expanding victims’ rights. The bill would extend the jurisdiction of the court’s Family Division beyond the youth’s 22nd birthday if there is a motion pending to revoke their YO status. This extended jurisdiction would last either until the court revokes the youth’s probation and sends the case to the Criminal Division or until the court discharges the youth from probation. This new provision addresses the situation where youths have “timed out” of their juvenile probation because they turn 22 while there is a pending motion for revocation of their YO status.

H.642 also clarifies the factors a court considers when ruling on a motion to revoke YO status; confirms that if a youth fails to appear at the probation revocation hearing, the court may order an officer to pick up the youth and bring them to court; and expands the right of victims to be heard at YO hearings.

Accountability Docket. To deter crime, there must be a real risk of being caught committing a crime and certain and swift consequences for criminal activity. A pilot rapid accountability docket in Chittenden County focused resources on the second deterrence requirement, ensuring certain and swift consequences. The pilot program, which helped clear a backlog of repeat-offender criminal cases, brought together judges, prosecutors, defense attorneys, and human services staff to resolve cases faster and connect offenders to the services they need.

In H.937, the Miscellaneous Judiciary procedures bill, we defined a structure for expanding this accountability docket concept to other Vermont counties.The bill sets forth the goals of an accountability docket, including: (1) accelerating court proceedings of repeat-offender cases with consistent and timely availability of judicial, prosecutorial, defense, Corrections, and Human Services resources; (2) connecting individuals with treatment, housing, and social services to reduce the circumstances that may contribute to recidivism; (3) reducing the number of pending criminal cases that involve individuals with multiple pending cases by providing targeted resources for a limited period of time; (4) improving accountability for those individuals providing immediate follow-up and a court schedule that makes it more likely they will appear; and (5) improving collaboration among law enforcement, prosecutors, and social workers to provide faster resolution of repeat offender cases.

For those counties that will employ an accountability docket, the bill requires the county’s State’s Attorney to convene stakeholders to develop a plan to implement the program that meets these goals. It also requires the courts, prosecutors, defense counsel, and the administration to provide resources for 90-day accountability dockets. And H.937 mandates data tracking and reporting to measure the effectiveness of the accountability dockets.

Criminal Justice Data. The Committee passed H.410 to provide ongoing criminal justice data to inform the work of the legislature. The bill creates a standardized definition of recidivism in Vermont law. Recidivism rates measure when individuals previously convicted of a crime commit a new offense. Currently, the definition of recidivism in Vermont is outdated and arbitrary, focusing on a narrow section of individuals. H. 410 brought stakeholders together to revamp the definition to make it relevant and usable in future studies and legislation related to criminal justice in Vermont.

The bill defines recidivism simply as a new criminal conviction following a prior conviction. The recidivism period for new convictions begins when an individual is released from incarceration or sentenced to a non-custodial sentence. 

H.410 also establishes a number of annual reports from the Vermont Statistical Analysis Center. The reports will include bail rates and information on individuals held pretrial in Vermont correctional facilities; recidivism rates calculated over three- and five-year periods; arrests and clearance rates organized by offense type; and information on the twenty crimes with the highest number of convictions, including sentencing data and total years of probation and incarceration imposed. The reports are to include demographic information, when available. H.410 improves consistency in how Vermont measures recidivism and provides Vermont with clear, comprehensive data on trends in our criminal justice system. 

If you have any questions or input on these or other matters, reach out to me at mlalonde@leg.state.vt.us.

H.410 – An act relating to the calculation of recidivism and other related criminology measures

lalonde

The following is the floor report delivered by Representative Karen Dolan on H.410, which I sponsored and passed out of my committee on a unanimous vote.

H.410, as amended by your House Judiciary Committee, creates a standardized definition of recidivism in Vermont statute and directs the Vermont Statistical Analysis Center (SAC) to produce annual reports on key criminal justice system indicators. H.410 improves consistency in how Vermont measures recidivism and provides Vermont with clear, comprehensive data on trends in our criminal justice system.

Recidivism is the measure of when an individual convicted of a crime commits a new offense. Currently, the definition of recidivism in Vermont is outdated and arbitrary, focusing on a narrow section of individuals. Due to the limited scope of the current measure, data related to recidivism is not effectively used in Vermont criminal data analysis. H. 410, brought stakeholders together to revamp the definition of recidivism in order to make it relevant and usable in future studies and legislation related to criminal justice in Vermont.

H.410 also creates a new chapter in Title 13 entitled, Criminology Measures. This chapter establishes a number of annual reports which will be generated by the Vermont Statistical Analysis Center related to measures such as bail rates, recidivism rates, and arrest and conviction data. Some may remember the passage of S.14 in 2023 (now Act 40) which launched an initial criminal justice data report. With the success of that report, H.410 provides a long-term plan for maintaining related reports- this is critical for future legislatures to make data-driven decisions related to our criminal justice system.

Now I will provide a brief review of the sections of the bill. You can follow along starting on page 1241 of today’s calendar.

Sec. 1. Creates a new chapter in Title 13 establishing a statewide definition of recidivism and directing the Vermont Statistical Analysis Center (SAC) to produce annual reports on several criminal justice indicators.

Subsection 8121 Defines recidivism as a new criminal conviction following a prior conviction. The date of arraignment for the new offense is used as a proxy for when the offense occurred. The recidivism calculation period begins when an individual is released from incarceration or sentenced to a non-custodial sentence.

Subsection 8122 Requires Vermont’s SAC to submit annual reports by April 1st of each year to relevant legislative committees. The reports must include:

  • Bail rates and information on individuals held pretrial in Vermont correctional facilities.
  • Recidivism rates calculated over three- and five-year periods.
  • Arrests and clearance rates organized by offense type using National Incident-Based Reporting System categories.
  • Information on the 20 crimes with the highest number of convictions, including sentencing data and total years of probation and incarceration imposed.
  • This section also requires inclusion of demographic information, when available, and directs state and local agencies to provide data necessary for SAC to complete the reports.

Sec. 2. Repeals the current statutory definition of recidivism used by the Department of Corrections, as the definition is now established in Title 13. This change was reviewed and supported by the House Corrections and Institutions Committee.

Sec. 3. Removes references to the prior recidivism definition and related reporting requirements that are replaced by the new definition and reporting structure in Title 13.

Sec. 4. Appropriates a total of $25,000 from the General Fund in fiscal year 2027 to support the preparation of the annual reports required in the bill. 

Sec. 5. States that H.410 shall take effect on July 1, 2026.

The Committee heard testimony from the following: 

  • Office of Legislative Counsel
  • Director of Policy and Legislative Affairs, Attorney General’s Office
  • General Counsel, Governor’s Office
  • Director of Research, Crime Research Group (VT’s current SAC)
  • Director of Research and Data Analytics, Department of Corrections
  • Executive Director of Policy and Strategic Initiatives, Department of Corrections
  • Legislative Attorney, Department of State’s Attorneys and Sheriffs
  • Defender General, Defender General’s Office
  • Deputy Defender General and Chief Juvenile Defender
  • Executive Director, Crime Research Group
  • Deputy Division Director, State Impacts, Council of State Governments Justice Center
  • Chief Superior Judge, Vermont Judiciary
  • House Corrections and Institutions also reviewed the bill

In summary, H.410, as amended by House Judiciary, establishes consistent statewide measures for recidivism and other criminal justice indicators so that Vermont has clearer, more reliable information to inform policy decisions as we continue our goals to address public safety and criminal justice reform. With the long-term vision of H.410, Vermont will have a solid foundation to build on these efforts. 

H.410 as amended, passed out on a vote of 10-0-1 and your Committee on Judiciary asks for your support.

H.642 – An act relating to youthful offender proceedings

lalonde

The following is the floor report delivered by Representative Ian Goodnow on H.642, which I sponsored and was voted out of my committee on a unanimous vote.

Before the chamber is House Judiciary Committee’s strike-all amendment to H.642, entitled “An act relating to youthful offender proceedings.” Madame Speaker, this bill proposes to make changes to two existing statutes related to the youthful offender laws in Vermont to both improve how revocation of the youthful offender status occurs and allow for more victim input in the process. 

By way of background, the Youthful Offender system allows the transfer of jurisdiction from the Criminal Division to the Family Division for cases involving youth aged 14 to 21 for certain alleged criminal offenses. This transfer of jurisdiction provides for a confidential process in the family court which is premised on the science related to adolescent brain development and data. The data tells us that when a youth’s case is prosecuted in the Criminal Division rather than in the family division, the outcomes as measured by recidivism are not good. H.642 deals primarily with the procedures related to what happens when an individual on youthful offender status  violates juvenile probation.  Specifically, what happens when there is a motion to revoke youthful offender status and send the youth to criminal court due to a probation violation. 

Moving on to the bill itself, Madame Speaker, Section 1 can be found on page ___ in today’s calendar. Section 1 proposes changes to 33 V.S.A. § 5285, and is related to  modifications or revocations of a youth’s juvenile probation. 

The first change to this section is to add a new subsection a(2) to 33 V.S.A. § 5285, which extends the jurisdiction of the family division beyond the youth’s 22nd birthday if there is a pending motion to revoke the youthful offender status. This extended jurisdiction would last either until the youth’s probation is revoked, or the youth is discharged from probation. This new provision addresses a serious issue that currently exists where youths have “timed out” of their juvenile probation because the youth turns 22 while there is a pending motion for revocation or modification. This change will allow for the youth to remain within the Family Court’s jurisdiction to either complete probation, or have their Youthful Offender status revoked and be transferred to criminal court or to the Department of Corrections’ custody..

Madame Speaker the second change in section one can be found on page ___ of todays calendar. Here we are still operating in 33 V.S.A. § 5285 related to motions for revocation of a youthful offender status. These proposed changes relate to how the court determines what to do once it’s ruled that there has been a violation of probation. The Court has multiple options as to what can happen once its made that ruling: it can continue the youth on probation with any modifications it feels are necessary, it can revoke the youth’s probation and transfer them to criminal court for sentencing, or it can revoke the probation and transfer the youth into the custody of DOC. 

H.642 proposes to provide a number of factors for the court to consider when deciding which of those outcomes to order. These can be found in the new proposed (c)(2) in 33 V.S.A. § 5285. The three factors proposed are 1) if public safety will be protected if the youth continues on probation 2) if the youth continues to be amenable to treatment as a youthful offender and 3) if there continues to be sufficient services to meet the youth’s treatment and rehabilitation needs. 

Further, H.642 clarifies that if a youth fails to appear at the probation revocation hearing, if good cause is not shown for why the youth failed to appear, the court may order an officer to pick up the youth and bring them to court. 

Moving on to Section 2 Madame speaker, H.642 proposes to make multiple changes to sections of 33 V.S.A. § 5288 relating to rights of victims in youthful offender proceedings. These changes can be found on page ___ of today’s calendar.  The primary change can be found in 33 V.S.A. § 5288 (a)(2), H.642 proposes to add language to allow victims to be present at the preliminary hearing to determine whether a youth should be considered for youthful offender status and, critically, to allow the victim to testify as to whether they believe youthful offender status to be appropriate for the youth. The further changes in 5288 align the language for court procedure to make clear the victim’s rights as it relates to youthful offender status. These changes are important, Madame Speaker, as a victim’s experience and ultimately the outcome of their case will be dramatically different depending on whether the youth is transferred to the youthful offender system or remains in the criminal court, and thus the victim’s voice should be heard and considered when the court makes that determination. 

The Youthful Offender System is an important tool in Vermont’s criminal justice system for young vermonters. H.642 will help to strengthen that system. 

The bill was reported favorably out of House Judiciary on a vote of 10-0-1 and the committee respectfully asks the House to join us in supporting its passage.

H.606 – An act relating to firearms procedures

lalonde

The following is the Floor Report delivered by Representative Angela Arsenault on H.606, which was passed out of my Committee on a split vote.

Madam Speaker, H.606 is a carefully-crafted public safety bill that proposes to address three specific firearms-related issues, mainly by relying on existing federal laws that have been upheld by numerous courts, including the United States Supreme Court. 

This bill carefully balances second amendment rights with the need to keep Vermonters safe. It helps improve Vermonters’ safety by keeping guns out of the hands of individuals who have been found by a court to be a danger of harm to themselves or others. It also mimics the existing federal prohibition on machine guns, which are not tools for hunting or self-defense. 

In short, this bill upholds the long-standing tradition of narrow, targeted, Constitutionally-sound restrictions on gun ownership in this country.

The text of the bill can be found on page TKTK of today’s House Calendar. Let us now walk through the bill. 

Section 1 amends Vermont’s existing grand larceny statute by adding theft of a firearm. This means that the theft of a firearm, regardless of the value of the firearm, would be a felony offense punishable by not more than 10 years in prison, a fine of not more than $5,000, or both. Typically, theft of objects or goods valued at less than $900 would be a misdemeanor charge. This change reflects the seriousness of the offense. 

The definition of “firearm” in this provision refers to 13 VSA § 4017, which expressly excludes antique firearms. This definition replaced a more expansive definition of “firearm” that was used in an earlier version of the bill – a change that was made at the request of gun-rights group the Vermont Federation of Sportsmen’s Clubs. 

Section 2 proposes several amendments to the existing Vermont statute that prohibits possession of firearms by persons convicted of certain violent crimes. Similar prohibitions exist in all 49 other states and under federal law. Vermont’s law was passed in 2015 and provides that possession of a firearm after being convicted of a violent crime is a misdemeanor subject to a maximum penalty of two years in prison. Section 2 proposes to increase the penalty to a 3-year felony if a person commits the crime for a second or subsequent time.

In addition to persons convicted of violent crimes, there are several other categories of persons who are prohibited from possessing firearms under both Vermont and federal law. Current Vermont law prohibits possession by fugitives from justice and persons subject to relief from abuse orders or orders against stalking. These persons are also prohibited from possessing firearms under federal law. At the request of the Department of States Attorneys and Sheriffs, Section 3 proposes to add to Vermont law another category of persons who are already excluded from firearms possession by federal law: persons who have been involuntarily committed by a court order because they were dangerous to themselves or others. Persons seeking voluntary mental health treatment will not be subject to this prohibition.

Federal law prohibits all persons who have been involuntarily committed from possessing firearms permanently, regardless of whether the commitment order is still in effect. However, Section 3 only prohibits possession by persons who are currently subject to the commitment or hospitalization order. Under the bill, when the commitment or hospitalization order ends, the state-level prohibition on firearm ownership ends. In addition, H.606 prohibits persons from possessing firearms if they were found not guilty by reason of insanity or incompetent to stand trial for certain serious offenses. Section 3 adds the same increased penalties for second or subsequent offenses that were added in Section 2.

This section also includes a pathway for individuals to petition the court for relief from firearms prohibition using the same process as individuals barred from firearms possession for mental illness under the federal statute which is spelled out in 13 VSA § 4825.

Section 4 prohibits the possession of machine guns under Vermont law. Federal law already prohibits possession of machine guns, so by making it a state crime Section 4 permits a Vermont state’s attorney to bring a charge for the offense in a Vermont state court. The bill defines “machine gun” in the same way it is defined under federal law, namely, a firearm that is capable of shooting more than one shot without manual reloading and with a single pull of the trigger. Included in this provision are the exceptions provided in federal law for machine guns that are registered under the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

And just like federal law, this section effectively prohibits devices that turn a semi-automatic weapon into a machine gun, including auto sears like “Glock switches.” Such devices are easy to manufacture or 3D print and can shoot up to 1200 rounds per minute. They are present in Vermont and have been recovered at crime scenes. Twenty-eight states already prohibit these, and gun manufacturer Glock supports their prohibition.  

Machine guns that are still lawful to possess under federal law, and would therefore still be lawful to possess in Vermont, are those lawfully owned prior to 1986, when the federal prohibition went into effect, and those possessed by a state or federal government agency.

Again, if you own a machine gun legally under federal law, you will still be able to legally own a machine gun in Vermont.

Finally, Section 5 provides that the bill takes effect on passage

The bill passed out of your House Judiciary on a vote of 6-5-0 and we encourage members to vote “YES” in favor of common sense public safety measures. 

H.744 – An act relating to procedures for release after arrest

lalonde

The following is my floor report for H.744.

H.744 amends Rule 3 of the Vermont Rules of Criminal Procedure. This rule generally involves arrests without a warrant. It lists the types of offenses for which an arrest may be made without a warrant, including felonies, misdemeanors that a law enforcement officer witnesses, and some nonwitnessed misdemeanor offenses. Rule 3 also outlines procedures for the arresting officer to follow after the arrest. 

H.744 amends subsection (k) in Rule 3 related to temporary release. The language can be found on page 805 of today’s calendar. The provision requires the law enforcement officer making the arrest to contact the court to determine whether the alleged offender should be released or held. Often, this rule comes into play after hours when the court is closed. The arresting officer will contact an on-call judge or judicial officer in those situations. The arresting officer must provide the judicial officer with an affidavit or sworn statement, including information that allows the judicial officer to determine whether to release or hold the individual. 

Under the current rule, which the legislature passed in 2019, the arresting officer’s affidavit or sworn statement must indicate the crimes to be charged by the officer. This language is problematic and has led to the need for this amendment – an officer does not make charging decisions. It is the prosecutor who makes the charging decision.

H.744 fixes this problem by striking this sentence. In its place, the bill clarifies that the presiding judge for each court MAY require that prosecuting attorneys indicate the charge or charges that they intend to file. The presiding judge may also require the prosecuting attorney to request any conditions of release, bail, or orders to hold without bail. 

This additional clarifying provision codifies existing practice.

A bit more background is necessary related to this bill. Both the legislature and the courts have authority under the Vermont Constitution to amend judicial rules within the confines of separation of powers. The legislature generally cannot amend a court rule that involves an inherently judicial function, but Rule 3 is not such a rule.  Indeed, both the legislature and the court have amended Rule 3 multiple times over the years. In fact, it was an amendment to subsection (K) made by the legislature back in 2019 that H.744 is now revising. 

The judicial branch proposes rules through committees, including the Advisory Committee on Criminal Rules. 

That Committee has proposed an amendment to subsection (K) different than the language in H.744. The Advisory Committee’s proposal would have provided that the presiding judge SHALL require the affidavit or sworn statement to include the charge or charges that the prosecuting attorney intends to file.  H.744, again, provides that the presiding judge MAY have such a requirement. The court’s proposal was mandatory, H.744 is discretionary.

According to witness testimony, H.744’s approach codifies existing practice. H. 744 addresses and clarifies the issues that the Criminal Rules Committee sought to address in its proposed Rule 3 amendment. In contrast, the Advisory Committee’s proposal would substantially change existing practice, and would place a significant, and often unnecessary burden, on law enforcement and prosecuting attorneys.

Accordingly, the Judiciary Committee has exercised its authority to amend subsection (K) in H.744, thus clarifying the legislature’s previous problematic amendment to that provision.

Under H.744, individual presiding judges will continue to determine if and when they need direct input from prosecuting attorneys as opposed to relying solely on law enforcement in determining whether to release or hold an alleged offender. 

The committee vote was 11-0 and we ask for your support.

Fan of Federalism

lalonde

I have become a big fan of federalism. The American political system shares and divides power between our national government in Washington and our 50 state governments. 

Under the Tenth Amendment of the U.S. Constitution, powers that are not specifically delegated to the federal government are reserved to the states. Under this Amendment, Vermont and the other states have authority to manage fundamental issues such as education, health, and public safety. The federal government does have exclusive authority over some areas and states share some authority with the federal government as well. And the Supremacy Clause of the Constitution (Article VI, Clause 2) provides that federal laws take precedence over conflicting state laws.

These basic tenets of federalism and the intersection of these areas of authority are at issue in a bill that has already passed the Senate. The House Judiciary Committee will take it up soon.

Senate Bill 208 is an act relating to state standards for law enforcement identification.  It would require all local, state, and federal law enforcement officers to clearly identify themselves by name or badge number. It also prohibits masks or personal disguises for law enforcement, with exemptions for certain hazardous situations and deployments. 

In my view, Vermont has the authority under the Tenth Amendment to impose the requirements in this bill on not only state and local law enforcement, but also federal officers. Ensuring public safety has historically been and continues to be a function primarily left to the states. The federal government handles national security and interstate crimes, but the day-to-day responsibility for law enforcement falls to state, county, and municipal governments. 

Public safety is enhanced when we ensure transparency in law enforcement. With some limited exceptions, all law enforcement operating in Vermont should identify themselves. With such transparency, we can know if particular law enforcement officers are following the rule of law. The rule of law is a foundation of our democracy.

H.541, which originated in the House Judiciary Committee, grapples with the intersection of two other fundamental principles of our democracy: the right to vote without interference and the right to free political speech.  This bill focuses on election officials, voters, and activity around polling stations. Much of that activity will be political in nature and thus protected by the First Amendment. What was asked of the House Judiciary Committee was to craft a criminal statute, narrowly focused, which provides a way for the State to prosecute those who would interfere with State elections or voters while not infringing or chilling the protected First Amendment right to political speech. H.541 successfully strikes that careful balance.

H.541 provides that no one can intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce others for the reason of obstructing their right to cast a vote or their right to choose who to vote for. It imposes possible criminal penalties for such interference. A leading constitutional scholar and the Deputy Solicitor General of the Vermont Attorney General’s office both testified before the Committee that the bill protects the right to vote in a manner that does not infringe on or chill free speech rights. The Vermont Secretary of State and town clerks also strongly supported the bill. H.541 passed the House on a unanimous voice vote and the Senate will take it up later in the session.

If you have any questions or input on these or other issues before the legislature, contact me at mlalonde@leg.state.vt.us.

Judiciary Committee Off to a Fast Start

lalonde

The House Judiciary Committee got off to a rapid start this year. On January 7th, the second day of the Session, the Committee passed two bills, both holdovers from last year.

H.28 implements technical fixes to our statutes related to oaths and affirmations, which are used when an official is sworn into office or a witness in court swears to tell the truth, for example. An oath is a solemn promise invoking a higher power, while an affirmation is a similar, legally binding promise based solely on one’s personal honor. Both have the same legal weight and lying under either is considered perjury. Some Vermont statutes currently provide only for an oath and this bill adds the option of providing an affirmation instead, depending on the individual’s choice. This technical bill covers some statutes; future bills will address the remaining laws. The bill aims to ensure inclusiveness and personal choice when an individual must make assurances under penalty of perjury.

The other bill the Committee passed relates to bail. Criminal defendants in Vermont have a constitutional right to bail – unless they have committed a violent crime against a person, they are entitled to be released pending their trial, with or without conditions of release. Bail may be imposed, however, if they are a risk of flight and they will be held unless they post (or pay) bail.

In situations where a defendant has not been detained pending their trial but later commits an infraction such as violating a condition of release, prosecutors can make a motion to the court asking a judge to take away (or revoke) the defendant’s right to bail. Granting that motion would lead to the individual’s detention. To date, Vermont courts have only allowed revocation of bail in very limited circumstances. If the judge denies that motion, there is currently no clear way for a prosecutor to seek relief of a higher Court (our Vermont Supreme Court) to argue that the lower court judge got it wrong. H.409, which the committee voted out unanimously, allows prosecutors to appeal a denied motion for revocation of bail, which will help move the case forward and may provide clarity as to the allowable circumstances for bail revocation.

The Committee also took testimony on H.5, which would amend Vermont Rule of Evidence 804a. This rule creates a specific exception to the general rule against hearsay, which prohibits using out-of-court statements as evidence because they are less reliable than live testimony.  There are exceptions to the rule against hearsay, including that established in 804a.

Rule 804a allows out-of-court statements to be admitted in court where they are from young children (or vulnerable adults) about sexual abuse or other serious crimes, provided certain conditions are met that suggest those statements are reliable. 804a balances the need for evidence with the protection of vulnerable victims from further trauma. Currently, 804a excepts children who are age 12 and under from the rule against hearsay. H.5 would increase the age for the exception to 15.

Witnesses testifying in the Judiciary Committee asserted that the current age-based distinction in Vermont’s hearsay statute does not reflect how trauma affects children. A child’s ability to disclose abuse, remember events, or withstand the pressures of court is not fundamentally different for a 12-year-old and a 15-year-old. Adolescents ages 13 to 15 remain developmentally and emotionally vulnerable. This is particularly true when abuse involves a trusted adult, family member, or caregiver. By extending the existing hearsay exception to older children, the bill aligns Vermont statute with child development research and adolescent brain science.

Other testimony pointed out the potential downsides of H.5. Rather than preventing trauma of 13- to 15-year-olds, Rule 804a may also be understood as a tool to strengthen the prosecution’s evidence. It would increase the amount of admissible evidence and would presumably make it easier to convict individuals who have allegedly committed sexual or violent offenses against adolescents. Because defendants are presumed innocent, easing the ability of the prosecution to evade the hearsay rule could be unfair to the defendant. It could increase the risk of convicting someone who is not guilty.

The current version of 804a provides important safeguards to protect defendants’ rights. It requires the child to testify under cross-examination if called as a witness, thus protecting the defendant’s right to confrontation. Also, before admitting any out-of-court statement under 804a, the court must consider the time, content, and circumstances of the statement to determine whether they substantially ensure its trustworthiness. In addition, if such statements are admitted into evidence, the defendant still can try to undermine the reliability and credibility of the statements through cross-examining witnesses.

The question that the Judiciary Committee must answer, then, is whether the bill appropriately balances the rights of defendants with the need to ensure that children who have experienced abuse are not silenced by procedural barriers that fail to reflect their developmental reality. I anticipate that the Committee will soon answer that question.

In January, the Committee will also consider bills to strengthen our laws against animal cruelty and advance protections against voter intimidation. We will also consider a bill to create a new crime to cover cases of sexual extortion, also called “sextortion.” Current Vermont law prohibits disclosing nude or sexual images without consent but does not criminalize the threat to do so. In February, we will turn our attention to the functioning of the criminal justice system. What else can we do to ensure swift and certain consequences when criminal laws are violated? What lessons will the Chittenden County “accountability court” pilot provide?

Priorities for the Upcoming Session

lalonde

When the Vermont General Assembly returns to Montpelier on January 6th, the legislators will face significant challenges.  In the second session of our 79th Biennium, the committees will continue to work on complicated, long-term issues. They will continue to take on education reform, seeking the best way to provide a quality education for all of Vermont’s K-12 students at a cost that communities will support. Other committees will pick up on their own ongoing efforts to increase the availability of affordable homes in Vermont. The Health Care Committee will build on their work to tackle rising medical care and health insurance costs.  The Appropriations Committee will make tough spending decisions in a tight budget year. And all of this work, along with that of the other committees, will need to be accomplished in the face of federal uncertainty and bellicosity.

Despite these challenges, I am eager to get back to the State House to continue in my role as Chair of the House Judiciary Committee. Although I will continue to follow and provide input on other issues facing the House, my focus will be on the work of the Judiciary Committee.

There, we will continue to focus on improving public safety and access to justice. The committee will conduct oversight hearings to understand whether our increased funding of courts, prosecutors, defense counsel, and victim advocates has led to swifter and more certain consequences. We will also examine other initiatives to expedite processing of both criminal and civil cases.

We will analyze any recommendations from the so-called “accountability court,” a pilot project in Chittenden County that runs into February.  A special prosecutor, assigned judge, and dedicated service providers are focusing there on expeditiously resolving the cases of repeat offenders in the county. The early results of the pilot are promising, but not necessarily surprising – for the past three years, my committee has been advocating for just such an influx of resources as is being provided, albeit temporarily, for the pilot project.

Last year, one of the Judiciary Committee’s priorities was to take a deep dive into our juvenile justice system. We passed Act 4, which implemented some changes, and that work will continue in the coming session with a focus on our Youthful Offender (YO) law.  

The current YO law provides an alternative to adult criminal court for youth ages 14 to 22, allowing their cases to be handled confidentially in Family Court if certain criteria are met. An individual with YO status may be placed on juvenile probation with both the Department of Children and Families and the Department of Corrections having jurisdiction over the individual. The focus of juvenile probation, and generally of YO status, is rehabilitation with services like education, treatment, and job training. The goal of YO status is to prevent long-term collateral consequences for the youth and allow them to avoid having a criminal record. If the youth violates their probation, however, the individual may be transferred back to the criminal court for sentencing, which helps ensure accountability.

In the coming session, the Judiciary Committee will study different ideas to improve the YO law. We will consider strengthening provisions related to accountability of YO participants and expanding victims’ rights in the law.

The intersection of mental health and substance use disorder with the criminal justice system will also be a hot issue in the coming session, although I anticipate that the Senate Judiciary and Health and Human Services Committees will address this initially.  They may consider the creation of a forensic facility to hold highly violent offenders with severe mental illness and may work towards implementing a competency restoration system.

As I discussed in my most recent column, the Judiciary Committee will also continue its focus on concerns brought on by what is happening at the federal level and in other states. We will seek ways to ameliorate impacts on vulnerable Vermonters, including undocumented and immigrant members of our communities. In addition to these matters, the Judiciary Committee will likely consider bills related to voyeurism, animal cruelty, voter intimidation, and other matters. It promises to be a busy session for the committee.

Addressing Concerns at Federal Level

lalonde

In recent months, I have heard from concerned Vermonters appalled that immigration agents nationwide are wearing masks and failing to properly identify themselves while detaining individuals. These Vermonters have urged the legislature to follow California’s lead and pass a law barring state and federal law enforcement officers from wearing face coverings that shield their identities.

I anticipate that the legislature will consider such a bill in the upcoming Session, which starts in early January.

While we do not currently have a law barring the use of masks by law enforcement,  the Vermont legislature has in recent years passed laws to improve transparency and to ensure accountability of law enforcement officers. Law enforcement agencies have also implemented policies with those goals.

For example, the use of body cameras has increased among Vermont law enforcement agencies. In 2020, the Vermont State Police began deploying body cameras to all uniformed troopers, requiring them to activate the cameras during law enforcement activities like traffic stops and investigations. Local Vermont law enforcement agencies followed suit, and the legislature in turn enacted 20 V.S.A. § 2369. That statute requires each law enforcement agency authorizing its officers to use body cameras to adopt, follow, and enforce a model body camera policy established by the Vermont Criminal Justice Council.

In addition, Vermont’s Fair and Impartial Policing Policy requires state law enforcement officers to identify themselves. The policy provides that, during pedestrian and vehicle stops or other interactions with members of the public, officers must introduce themselves by providing their name and agency affiliation and also state the reason for the stop unless doing so would compromise officer or public safety or a criminal investigation. The policy states that it intends “to cultivate and foster transparency and trust with all communities.”

Note that these laws and policies apply only to state law enforcement officers. While the legislature can require state officers to unmask on the job, it is not as clear that a state ban could apply to federal agents operating in Vermont. As it is likely that the California law will be challenged in court, we may have guidance on the legality under federal law before we consider a mask-ban bill.

If the legislature does consider such a ban, we will need to balance the benefits of law enforcement transparency against the safety of law enforcement officers. Are there situations when it would be legitimate for a law enforcement officer to conceal their identity other than when a medical mask or breathing apparatus is required? I will need to be convinced.

This past session, the House Judiciary Committee and the General Assembly passed bills that respond to other concerns brought on by what is happening at the federal level and in other states. These bills are intended to ameliorate impacts on vulnerable Vermonters, including undocumented and immigrant members of our communities.

Immigrant parents may be deported and their children left behind in Vermont.Through the establishment of standby guardianships, Act 31 clarified a process that allows immigrant parents to identify trusted adults who can step in as temporary guardians if the parent is detained or deported. This proactive step can provide some measure of comfort to parents and their children because they will know in advance who would care for the kids in the event their parents are detained or removed from the country. This process helps ease traumatic separations or confusion in emergency situations. It also avoids the necessity for the Department of Children and Families to take legal custody of those children. 

Under Vermont law, the Governor has sole authority to enter into certain agreements with federal Immigrations and Customs Enforcement (ICE) if there is a declaration of a state or national emergency. Previously, there was an exception to that authority in the law, but Act 28 eliminated it and kept the Governor as the only one in Vermont who could enter into an ICE delegation-of-authority agreement. This will keep the State accountable to Vermonters regarding how our law enforcement interacts and cooperates with ICE.

Another legislative response was required to protect many Vermont parents, some LGBTQ, who had children through the use of assisted reproductive technology. They are already parents under Vermont law, but other states may not recognize this legal parenthood. A confirmatory adoption provision in Act 31 provided a clear and expedited process for these Vermonters to obtain a court order declaring parenthood that must be honored in other states. This provides a necessary level of protection for many Vermont families.

Finally, Act 8 expanded Vermont’s statute on hate-motivated crimes. It increased the scope of who can be considered a victim of a hate crime, more accurately capturing the conduct that the statute was intended to penalize. Hateful conduct is not acceptable and Act 8 helps ensure that such conduct can be named and prosecuted effectively.