Month: January 2017

Strengthening Vermont’s Laws Against Sexual Assault

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Despite significant progress in strengthening Vermont’s laws against sexual assault, too many victims of sexual violence are not ensured access to effective justice, health care, and social services. The Judiciary Committee took up three bills that aim to reinforce the State’s sexual assault laws.

H.25 sets forth procedures and notification requirements related to medical forensic examinations of sexual assault victims. Each year, Vermont’s certified Sexual Assault Nurse Examiners perform approximately 250 sexual assault forensic exams. The forensic exam kits are, in turn, analyzed by the Vermont Forensic Laboratory. The bill would establish the right of sexual assault victims to receive the examination without cost, set forth timelines for delivery of kits from law enforcement to the Lab, and establish requirements for notifying victims of results and available services.

H.27 would eliminate the statute of limitations for sexual assault-related crimes. Sexual assaults can be some of the most challenging cases to investigate, charge and prosecute. For various reasons, many victims choose not to immediately report sexual assaults to law enforcement. Because it can take years for sexual assault victims to be ready to engage with the legal system, it is important to eliminate the barrier of the current six-year statute of limitations for such cases.

H.74 would establish a new misdemeanor crime of lewd and lascivious conduct, including nonconsensual touching of another’s genitalia or other intimate body part or nonconsensual exposure of one’s own genitalia. This new crime is needed to address a recent Vermont Supreme Court Case, In re: KA, which limited misdemeanor lewdness charges brought under the existing crime of “prohibitive acts” to the context of prostitution. Prior to this case, prosecutors used this crime in cases that did not involve prostitution both in plea deals or to bring a misdemeanor charge when the evidence or the offender’s behavior did not support or justify a felony charge. H.74 would provide a way to resolve cases to ensure there is a record that a sex offense occurred without requiring a felony charge or placement of the offender on the Sex Offender Registry.

The Committee was informed of other factors that influence the effectiveness of the State’s efforts to address sexual violence. Law enforcement could use additional resources to address the large number of sexual assault cases. For example, one Special Investigation Unit in Lamoille County has only two officers who must deal with nearly 400 sexual assault cases annually. This unit suffers from high turnover.

 

Judiciary Committee Update – Good Samaritans and other matters

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During the third week of this Biennium, the Judiciary Committee took up its first bills of the session and received its first review of the marijuana legalization issue.

The Committee considered H.14, a bill that would modify the State’s Immunity Statute, or Good Samaritan law. Say the State wants to encourage an activity, such as trying to help another person in danger. To do so, a law may get rid of disincentives to taking that action, such as eliminating potential liability for any injury that may result. Generally, immunity statutes protect the Good Samaritan from liability for ordinary negligence – failing to use reasonable care resulting in injury to another. Such laws do not provide immunity for gross negligence or willful and wanton omissions or acts or conscious disregard of a known risk.

H.14 would tweak the law on immunity related to Automatic External Defibrillators (“AEDs”). Currently, the law provides immunity when someone is negligent in the use, ownership or training in the operation of AEDs. There are exceptions. Manufacturers, designers, developers, distributors, installers are not, for instance, immune from product liability laws if the AED is defective. The exceptions provision also applies to “suppliers,” which has raised a concern. H.14 proposes to strike the word “supplier” and replace it with the term “seller.” “Supplier” may be taken to mean an entity, such as a nonprofit, that donates an AED to a community-owned building. We do not want to discourage donations of AEDs by subjecting Good Samaritan donors to liability for negligence. The change from “suppliers” to “sellers” in H.14 would eliminate this disincentive.

The Committee also took testimony on H.20, which would modify the State’s open container law by prohibiting not only alcohol consumption in a moving vehicle, but also marijuana consumption. Under current law, possession of an ounce or less of marijuana, be it in a car or elsewhere, would subject an individual to a civil fine.   The bill would tack on a higher civil fine when the possessed marijuana is consumed in a vehicle, recognizing the increased danger posed by driving under the influence of marijuana.

Marijuana came up in a different context when the Committee received a report on the work of the Joint Justice Oversight Committee, made up of five representatives and five senators who meet during the off-session. The bicameral committee held six meetings over the summer and fall to look at issues related to the regulation of marijuana. In its report, it did not take a position on whether Vermont should legalize marijuana for adult use. Rather, it recommended that if the General Assembly does advance such a proposal, it should include the following:

* a well-regulated commercial market that includes small cultivators,

* an allowance for adults 21 years of age or over to cultivate up to two mature and seven immature marijuana plants and the marijuana that is harvested from those plants,

* a strong education and prevention program aimed at youth under 25 years of age that is rolled out well in advance of any retail sales of marijuana, and

* a financing structure that covers all costs to the State related to legalization of marijuana while supporting a regulated market that can undercut the illegal market in hopes of moving illegal sales into the regulated market.

The Joint Justice Oversight Committee also recommended that the General Assembly pay close attention to any federal guidance coming from the new administration and keep in contact with other states that have legalized marijuana or are considering legalizing marijuana to keep abreast of the latest policies, practices, and challenges. I anticipate that the House Judiciary Committee will be hearing more about this issue in the weeks ahead.

This past week, the House and Senate Judiciary Committees held a joint meeting to consider loopholes in Vermonts sex abuse laws. Details on that hearing can be found in this Vermont Digger article. In addition, the House Judiciary Committee learned about and weighed in on funding of victim’s services in the Scott Administration’s budget adjustment proposal, received further training on how to apply Results-Based Accountability to the programs the Committee oversees, heard from the State courts’ administrator as to efforts to streamline CHINs cases (children abuse and neglect cases), and considered a bill related to how to calculate time periods for court deadlines (See H.4).

Justice Reform

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The Judiciary Committee received a preview of a number of issues that will likely occupy significant attention during this session. We focused on various aspects of justice reform – ideas to fix potential problems in the State’s criminal justice system and to reduce incarceration rates – and on other aspects of how our courts are doing at providing equal access to justice. By focusing on these concerns, the Committee will seek to reduce negative impacts to individuals involved in the criminal justice system and reduce costs and improve efficiencies in the courts. Doing so will help improve the State’s economy and assist in developing and maintaining a strong State workforce.

Geographic Justice

The location where an offense takes place should not be determinant of the range of outcomes for an offender. But in our State, where there are effectively 14 criminal justice systems, one for each county, this is often not the case. For the same action, an offender in one county could face a felony charge while an offender in another county could be diverted to a treatment court without being charged with a crime. Although we may not be able to eliminate all disparities across counties, as a matter of fundamental fairness we should strive for rough equivalency of opportunities to avoid conviction or incarceration.

More specifically, three counties currently have separate drug treatment dockets and one county has a DUI docket. In these dockets, certain qualified offenders whose addiction has led to criminal behavior are provided treatment services with the close oversight of a judge to ensure the offender is complying with his or her treatment requirements. Where there are treatment courts, an individual charged with a drug crime or first offense DUI has the opportunity for charge reduction, charge dismissal, or a lesser period of incarceration.

The Judiciary Committee will be evaluating whether the treatment court dockets can be expanded to all counties. When treatment courts follow best practices, double-digit drops in recidivism rates can be obtained. In short, as a matter of policy, every county should have drug, DUI, and mental health treatment dockets.

Geographic disparities are also encountered due to broad sentencing ranges for certain crimes. For example, a conviction on heroin trafficking carries a sentence under State law of 0 to 40 years. The average sentence for those convicted of this crime in Vermont is 4 to 7 years, but the wide sentencing range allows prosecutors to seek much longer sentences for the same crime. The potential disparity can be addressed by narrowing the potential sentencing range. The legislature can ensure that similar offenses carry similar maximum penalties. Maximum penalties can be set so that they are high enough to account for egregious but rare behavior and low enough to inhibit one county from adopting an average sentence that is far longer than the statewide average.

Bail Reform

Witnesses also explained the need for bail reform. In order to ensure against flight risk and nonappearance in court, offenders may be required to post bail to be released before their trial. Often individuals may not have the resources to post bail and thus are incarcerated at a substantial cost to the State. In addition, individuals who cannot post bail may decide to plead to an offense rather than remain incarcerated pending a hearing. The system works a disservice to the impoverished and is a poor use of the State’s resources.

The Committee will address over-incarceration due to bail policy, including by disallowing bail for those who are cited into court as opposed to those who are arrested and lodged. If a police officer has decided to cite a person into court rather than to arrest him or her, then the officer’s judgment that the individual does not present a flight risk should be respected. In addition, rather than holding individuals because they have failed to appear, a better investment may be to develop a system to notify offenders of pending court dates. Such notification systems in other states have proved effective in increasing appearance rates. Other ideas for reforming our bail system were proposed.

Results-Based Accounting

The Committee also focused on Results-Based Accounting. We first received an overview of the state of the judiciary from the Justices of the Vermont Supreme Court. Then the Court Administrator reviewed statistics addressing how well the courts are doing in achieving the State constitutional requirement to provide every Vermonter with free and prompt justice in conformity with the law. Generally, the courts are effectively addressing the many cases that come before them. But we also learned that the courts continue to face challenges in addressing a growing number of juvenile cases related to abuse and neglect and termination of parental rights as a result of the ongoing opioid epidemic.

In addition, we heard from representatives of the Crime Research Group (“CRG”), which studies the results and the cost and benefits of various law enforcement and judicial programs. They addressed the statistics related to potential bias in police stops and arrests. In addition, they reviewed the effectiveness and efficiency in reducing recidivism of a number of criminal justice programs such as the Community High School of Vermont, housing support, Restorative Justice Panels, treatment courts, and several other programs.   The Committee will be taking a deeper dive into the valuable performance information that CRG and the Court Administrator provide as we evaluate the effectiveness and cost/benefit of programs of the law enforcement and judicial systems.

Unrepresented Litigants

There are numerous measures of how well our courts are doing, including whether cases are being decided expeditiously and whether litigants receive procedural fairness. An increasing number of litigants in our courts do not have legal representation, which potentially negatively affects each of these measures. The courts run more efficiently and with improved procedural fairness when litigants are represented, but we are experiencing a growing number of litigants who do not have legal representation.

The Vermont Bar Association and organizations such as Vermont Legal Aid and Legal Services Law Line are offering assistance to indigent litigants in court. In addition, the courts are modifying rules and procedures to make it easier for unrepresented litigants to navigate the legal process. This is a growing problem, however, with no easy solutions.

Miscellaneous

Other related issues that the Judiciary Committee may be tackling during the session relate to expanding the availability of expungement to reduce the collateral consequences of criminal records and improving the use of pre-trial and pre-charge services to avoid criminal records in the first instance.