Reporting Out a Victims’ Rights Bill

After a bill is introduced, it is assigned to a committee of jurisdiction.  The committee considers the bill and may or may not pass the bill out of committee.  If the bill does pass, it will either proceed to another committee for consideration or will go to the House Floor for a Second Reading.  (The First Reading occurs at the time the bill is introduced.)  The bill is noticed on the House Calendar and the next day a committee member explains the bill to the House, known as reporting out the bill.  This past Thursday, I reported out H.533 related to the rights of victims of crimes.  The following is the report I provided.

Our criminal justice system provides a number of rights to victims of crimes. Victims have the right to receive certain notifications about the status of the offender, the right to participate in certain proceedings, the right to confer with a prosecutor, and the right to be heard at sentencing.

This bill addresses certain of these rights.

First, it clarifies a victim’s right to be notified. Notification of an offender’s release from custody, confinement, or supervision is essential to the security of a victim. Notifications allow victims to plan for their safety and that of their families and to mentally prepare for seeing the offender in the community. In domestic violence cases in particular, safety planning after arrest and throughout prosecution is vital because of the heightened risk of re-offense during that time.

H.533 will close gaps in the existing Crime Victim Rights statute (Title 13, Chapter 165). It clarifies the victim notification requirements at two key phases in the criminal process: 1) when corrections terminates or discharges an offender from probation and 2) when an offender is arrested, cited, and then released back into the community by law enforcement prior to arraignment.

Second, H.533 addresses a gap in the Crime Victim Rights statute related to the opportunity to be heard. Victims currently have the right to be heard at sentencing hearings. The bill would extend that right to be heard to hearings involving a change in plea that also includes a deferred sentence, which I will explain further when I discuss that portion of the bill.

Altogether, this bill ensures that victims receive statutory release notifications and opportunities to be heard in court regardless of how the case moves through the system or is disposed.

Section One

13 V.S.A. § 5305 sets out the information victims are entitled to request from agencies having the custody of a defendant.

Sec. 1 changes the title of the section from Information Concerning Release from Confinement to Information Concerning Release from Custody. This more accurately reflects when victims are entitled to information about an offender’s status.

Typically in our statutes, Confinement refers to what happens when a person has been convicted of a crime and sentenced to a term of confinement (which could include incarceration or home confinement furlough); custody is a broader term referring to the care or control of a person.

In subsection (a) the bill adds “termination or discharge from probation” to the list of events triggering the right of a victim to request notification before the defendant is released.

Section Two

13 V.S.A § 5314 sets out the information law enforcement must provide to victims of all crimes, and additional information that must be given to victims of listed crimes.

Normally, when someone is arrested, the offender is processed and the States Attorney is informed. The State’s Attorney Victims Advocate is then responsible for notifying the victim of the status of the offender.

But in some situations, this procedure cannot be followed. For instance, an arrest can occur on a Friday night and the defendant taken into custody for processing at the station. Rather than lodging the offender until an arraignment, the court may be called to set bail and conditions of release. The Victims Advocate would not know of the release and therefore could not inform the victim. New Section (b)(6) clarifies that where this situation occurs, law enforcement is responsible for notifying the victim because it is the only source of information at this early stage in the case. It is our understanding that this often already happens, but H.533 will codify the practice.

The new section provides that law enforcement shall use reasonable efforts to give the victim of a listed crime “Information concerning any bail or conditions of release imposed on the defendant by a judicial officer prior to arraignment or an initial court appearance.”

Section Three:

This section was formerly in H.675. Because that bill also involves victim’s rights, the section was incorporated into H.533.

13 V.S.A. § 5321 sets forth the rights of the victim to be notified and to appear and be heard at a sentencing proceeding involving the defendant.

But a court may make some decisions about deferred sentencing outside of sentencing hearings.

If the prosecution and defendant agree, a court may enter a deferred sentence at a change of plea hearing, instead of during a sentencing hearing. If the defendant successfully serves a period of probation, the deferred sentence is dropped. In other words, there would be no sentencing hearing so long as the defendant does not commit additional offenses or violate probation.

It is not clear under current law that a victim can be heard at such a hearing because it is not a “sentencing proceeding.” Some judges routinely allow victims to speak at change of plea hearings in deferred sentence cases. Other judges, however, have adopted a strict reading of 13 V.S.A. § 5321 and do not allow victims to offer their views at the change of plea.

This bill addresses the situation in which the prosecution and defendant have stipulated to the plea and deferred sentence. Under certain conditions, a court may order a deferred sentence where the prosecution and defendant have not agreed to the deferral. In this situation, under existing law (13 V.S.A. § 7041(b)), victims have an opportunity to express their views. This bill extends that opportunity to situations where there is a stipulation between the prosecution and the defendant.

Section 3 adds provisions that require notice and the opportunity to appear and be heard at a change of plea hearing in which the court is considering a deferred sentence. The court shall consider the victim’s views (if offered) in determining whether to defer the sentence.

Subsection (e) adds a provision requiring the prosecutor to instruct victims of listed crimes about the significance of a deferred sentence. This instruction would also include the potential consequences to the defendant of violating any conditions imposed by the court before the change of plea hearing.

Sec. 4. Effective date

Takes effect on July 1, 2016 to allow time for law enforcement to update their practices for providing notification.

We heard from representatives from:  The Center for Crime Victims Services, Office of Chief Superior Judge, Public Safety Department, Defender General’s Office, The Department of State’s Attorneys and Sheriffs, Network Against Domestic & Sexual Violence

The Judiciary Committee vote was 11-0.