Commitment to Climate Action

October 12 2017 other paper

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Racial Justice Reform

In addition to starting to review Senate bills, House Judiciary has directed significant effort toward considering H.492, a bill related to racial justice reform. The Committee has heard extensive testimony on the bill, which, as introduced, involved two main initiatives: (1) establishing a Racial Justice Oversight Board to manage and oversee the implementation of racial justice reform and (2) ensuring uniformity across the State in the adoption of fair and impartial policing policies by all law enforcement agencies in Vermont. After extensive consultation with the sponsors of the bill, the Office of the Attorney General, and advocates of the bill, the Committee has decided that the best route forward is to have two different bills.

The first bill, which will continue to be H.492, would establish the Racial Justice Oversight Board. The Board would be established in the Office of the Attorney General and would have an advisory role. The members would be drawn from individuals across the State with diverse racial, ethnic, religious, age, sexual orientation, and socioeconomic backgrounds. It would review racial justice reform efforts across the State, including within the systems of education, labor and employment, housing, health care, economic development, and criminal and juvenile justice by monitoring the collection and publication of race-based data, recommending policies and training to address systemic implicit bias, and evaluating racial justice policies, practices, and results.   Among other responsibilities, it would make recommendations to the Criminal Justice Training Council and the Vermont Bar Association on model trainings and policies for law enforcement, judges, and correctional officers to recognize and address implicit bias and use of force in policing.

A separate Committee bill would address fair and impartial policing policies. It would amend 20 VSA 2366, related to such policies, by requiring all State, local, county, and municipal law enforcement agencies in Vermont to adopt the Criminal Justice Training Council model fair and impartial policing policy in its entirety. This would ensure uniformity among the law enforcement agencies. Currently, agencies may adopt only certain required parts of the policy, not all of the policy. In addition, the bill would require the Criminal Justice Training Council in consultation with the Attorney General to ensure that the model policy does not conflict with federal immigration law.

The Committee anticipates voting these bills out in the coming week.

Next Step to a Better Criminal Code

This is the report for the third bill that I reported to the House during the week.

H.308 Report

H.308 would establish a committee of legislators to reorganize and reclassify Vermont’s criminal statutes.

In the 2013-14 legislative session, the Vermont Legislature passed Act 61. This Act created a working group to review all of Vermont’s criminal penalties, review other states’ sentencing structures, and recommend a sentencing structure. This structure would allow for sentencing consistent with “the gravity of the offense, the culpability of the offender, the offender’s criminal history, and the personal characteristics of an individual offender that may be taken into account.”

The working group consisted of prosecutors from the Association of States Attorneys and Sheriffs and the Attorney General’s office, the Defender General, a Judge, and a representative from the Crime Research Group.

The Group met several times to discuss current sentencing laws, the laws of other jurisdictions, and the recommendations of the Model Penal Code. The working group came to a consensus on a sentencing and fine structure, which was presented in a report published in July 2015.

The group recommended a structure that included five classes of misdemeanors (Classes A through E) and five classes of felonies (Classes A through E), with tiered maximum imprisonment terms and maximum fines. For example, a Class A misdemeanor would carry a maximum imprisonment term of 2 years and fine of $10,000, a class D misdemeanor a maximum imprisonment term of 30 days and a maximum fine of $1000 and a Class E misdemeanor would have no term of imprisonment and a $500 fine. The Group did not, however, specify which current crimes should be in which category.

H.308 would build on the work accomplished by the Working Group.

Vermont’s current criminal law could be defined as a hodgepodge. It is made up of common law that has been put into statute and new offenses created by the legislature over the years. Our criminal laws have evolved in a manner that has led to inconsistency between offense levels – similar conduct leads to different punishments.

Vermont has over 850 criminal offenses. The offenses are contained in various titles in the Vermont Statutes. They cover aspects of commercial interaction, environmental regulations, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine, to death. (defacing a butter crate, treason).

The work to be done pursuant to H.308 would be the next step in a process to provide a rational criminal code. A clearer, more rational code would provide more consistent interpretations of our criminal offenses, better notice to citizens and police as to what conduct is prohibited, and greater proportionality between offenses and punishment.  The end goal is to create a more consistent and understandable code to improve our criminal justice system.

The committee’s primary task would be to come up with a proposal to place each of Vermont’s over 850 criminal offenses into one of the classification offense categories. The proposal of the committee would be taken up in the 2018 legislative session.

Section by Section Explanation

Section 1 provides for the creation of a criminal code classification implementation committee.

Subsection (a) sets forth the purpose of the committee – to develop and propose a classification system for purposes of structuring Vermont’s criminal offenses.

Subsection (b) relates to membership of the committee. Three current members of the House of Representatives and three current members of the Senate.

Subsection (c) sets forth the powers and duties of the committee.

(c)(1) provides that the Committee will develop a classification system creating categories of criminal offenses on the basis of maximum potential imprisonment and maximum fines. Also, the Committee shall propose legislation that places each of Vermont’s criminal offenses into the classification categories.

(c)(2) – provides that the committee shall consider the recommendations of the Act 61 Working Group.

In addition, the committee may consider other issues:

1) Rules of statutory interpretation for the criminal code

2) Consistent use of mental element terminology, such as intentional, knowing, or reckless states of mind.

3) A comprehensive section of definitions applicable to all criminal provisions.

(d) provides that the Committee will have assistance from the Office of Legislative Council and the Joint Fiscal Office. In addition, the Committee may consult with the Vermont Crime Research Group, the Vermont Law School Center for Justice Reform, and others as needed.

(e) provides that the Committee shall submit a report with proposed legislation by December 31, 2017

(f) relates to conduct of the meetings of the Committee.

The act shall take effect on passage.

The bill was presented to the Committee on Government Operations, which had no objection to the form and conduct of this committee.