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.

 

Bail Reform

The Following is from my report that I gave at the second reading of H.503, a bill to reform bail.

H.503 Report

The Right to bail is guaranteed by the Vermont Constitution. Ch. II, § 40.

Bail may be withheld only in the following circumstances:

(1) The defendant is charged with an offense for which the punishment is death or life imprisonment, and the evidence of guilt is great.

(2) The defendant is charged with a felony involving an act of violence against another person, the evidence of guilt is great, and the court finds by clear and convincing evidence that the person’s release poses a substantial threat of physical violence to any person and that no conditions of release will reasonably prevent the physical violence.

Unless a person is held without bail for these reasons, the Court should release the person on personal recognizance.

The Court may also require execution of a performance bond, in other words, it may require bail. The decision on whether to require a person to post bail depends on the risk that the individual will flee the jurisdiction or will fail to appear in court for trial. If there is a risk of flight or nonappearance, bail is imposed. Setting bail provides a motivation for a person to appear in court because if he or she does not the bail may be forfeited to the state.

If the court does not believe that bail itself will ensure the person will show up, it may also impose conditions of release to ensure appearance in court. The Court may also impose conditions of release to protect the public.

Pre-conviction imprisonment is costly and potentially unfair to those without the financial means to post bail. Individuals can be held because they cannot afford bail. Being detained for lack of bail can have a number of negative consequences. An individual so held can lose his or her job or housing. The individual will be at a disadvantage in building his or her defense. In certain circumstances, a person unable to post bail may enter a plea agreement simply to get out of jail. In addition, detaining individuals imposes substantial costs to the state.

In light of these issues, the House Judiciary Committee has spent significant time assessing how to reform Vermont’s bail laws.

The result, H.503, would restrict the use of bail in certain limited circumstances and would reform the use of bail in the context of violations of conditions of probation.

I’ll first address the context of pretrial bail and then will discuss reforms to probation.

When a person is suspected of a crime by law enforcement, there are two possibilities. He or she may be arrested and detained before a judge decides whether there is probable cause to continue the case. Or, that person may be issued a citation to appear at the probable cause hearing. That is called “being cited into court,” and the defendant is not taken into custody.

If the person is cited into court, at the probable cause hearing a prosecutor may argue that bail should be posted based on criminal history or past nonappearances in court. H.503 would provide that an individual who is cited into court and, in fact, appears at the probable cause hearing cannot be required to post bail. Being cited into court rather than arrested shows that law enforcement has made the judgment that the person does not present a risk to public safety. The officer did not think it was necessary to arrest and lodge the person. If the person has made his or her initial appearance, this alleviates the concern regarding future nonappearance.

H.503 also changes the law related to individuals who are on probation and have violated their conditions of probation.

  • “Probation” means a procedure where a person found guilty of a crime upon verdict or plea is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner of Corrections. 28 V.S.A. § 201.

Under current law, if a probationer violates the terms of probation, a corrections officer may arrest that person. H.503 would provide that the corrections officer may cite the probationer into court rather than arrest and detain the probationer in prison. It also expands the opportunity for the probationer to be released on conditions of release and/or after posting bail.

These changes will allow a decrease in detention of individuals. It will free up prison beds and will allow cost savings in the criminal justice system while also continuing to protect public safety.

Section-by-section summary of H.503, An act relating to bail

Sec. 1 – Cited misdemeanors

  • Prohibits the imposition of cash bail in cases where a person was cited for a misdemeanor.
  • Subsection (b) of 13 VSA 7551 provides that “No bond may be imposed at the initial appearance of a person charged with a misdemeanor if the person was cited for the offense in accordance with Rule 3 of the Vermont Rules of Criminal Procedure. This subsection shall not be construed to restrict the court’s ability to impose conditions on such persons to reasonable ensure his or her appearance at future proceedings or to reasonably protect the public in accordance with section 7554 of this title.”

Sec. 2 – Violations of probation

  • The bill’s change to subsection (2) of section 28 VSA 301 clarifies that a correctional officer may cite a person, instead of arresting him or her, if they suspect that person has violated a condition of his or her probation.
  • In determining whether the probationer should be cited or arrested, the officer should consider whether issuance of a citation will reasonably assure appearance and protect the public.
  • Taken together, subsections 4 and 5 modify when a court can release a probationer after violations of conditions of probation.
  • Currently, a probationer has no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony and the probation violation did not constitute a new crime. Subsection (4) deletes the requirement that the probation violation did not constitute a new crime. This deletion works in tandem with new subsection 5(A).
  • Subsection (5)(A) expands the opportunity for a probationer to be released back into the community if the court can set bail or conditions of release that will reasonably ensure the probationer’s appearance at future proceedings and conditions of release that will reasonably protect the public.
  • If these preconditions are met, the Court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony
  • If these preconditions are met, the Court may release a probationer who is on probation for a violent misdemeanor or violent felony. Again, the release may occur only if the court finds that conditions of release will reasonably protect the public.

Sec. 3 – Pretrial communications

  • Requires the Court Administrator, State Attorneys, Defender General, and the Vermont Chapter of the ACLU to work together and with other interested parties to examine options for facilitating pretrial communication between the courts and defendants. The goal of this effort is to find options that reduce the risk of nonappearance by defendants.
  • During testimony, we learned that states that have implemented notification systems have decreased nonappearance at court hearings. We determined, however, that further analysis of pretrial communication improvements or notification systems was necessary before we take any action on such an initiative.
  • The group is to report its recommendations to the Committees on Judiciary by 10/15/17.

On average, our prisons are holding, pretrial, 380 to 400 individuals daily. 75 to 100 of these individuals are being held for violations of probation. This bill takes a step toward reducing these numbers in situations where public safety can be ensured and the risk of nonappearance has been addressed.

The Revised Uniform Fiduciary Access to Digital Assets Act

Not all of the Judiciary work involves criminal laws.  The House passed out an important probate law related to individuals’ online, or digital, assets.  Here is my report on the bill that I delivered to the House on Second Reading.

Report for H.152

H.152 is a bill that would enact the Revised Uniform Fiduciary Access to Digital Assets Act. The bill would modernize fiduciary law for the Internet age. Fiduciaries are the people appointed to manage our property when we die or lose the capacity to manage it ourselves. Nearly everyone today has digital assets, such as documents, photographs, email, and social media accounts, and fiduciaries are often prevented from accessing those accounts by password protection or restrictive terms of service. Digital assets may have real value, both monetary and sentimental, but they also present novel privacy concerns. The Revised Uniform Fiduciary Access to Digital Assets Act would provide legal authority for fiduciaries to manage digital assets in accordance with the user’s estate plan, along with other assets, while protecting a user’s private communications from unwarranted disclosure.

The following are some of the reasons this body should pass H.152.

  • The law would give Internet users control. It allows users to specify whether their digital assets should be preserved, distributed to heirs, or destroyed.
  • The law would provide efficiency and uniformity for all concerned. Digital assets travel across state lines nearly instantaneously. In our modern mobile society, people relocate more often than ever. Because state law governs fiduciaries, a uniform law ensures that fiduciaries in every state will have equal access to digital assets and custodians will have a single legal standard with which to comply. To date, 22 states have enacted this uniform law. Eighteen states, including Vermont, have introduced bills this session.
  • The law respects privacy interests. Private communications like email and social media conversations are protected by federal privacy law. This law would prevent the companies that store our communications from releasing them to fiduciaries unless the user consented to disclosure.
  • The law addresses four common types of fiduciaries. It provides appropriate default rules governing access to digital assets for executors of a decedent’s estate, agents under a power of attorney, trustees, and guardians.

Section by Section Report

Section 3552 contains definitions of terms used throughout the act.

Section 3553 governs the applicability of the act. It clarifies the scope of the act and the fiduciaries who have access to digital assets under the Revised law. It also carves out an exception for digital assets of an employer used by an employee during the ordinary course of business.

Section 3554 provides ways for users to direct the disposition or deletion of their digital assets at their death or incapacity, and establishes a priority system in case of conflicting instructions.

Section 3555 establishes that the terms-of-service governing an online account apply to fiduciaries as well as to users, and clarifies that a fiduciary cannot take any action that the user could not have legally taken.

Section 3556 gives the custodians of digital assets a choice of how to disclose those assets to fiduciaries.

 

Sections 3557 to 3564 establish the rights of personal representatives, agents acting pursuant to a power of attorney, trustees, and guardians. Each of the fiduciaries is subject to different rules for the content of communications protected under federal privacy laws and for other types of digital assets. Generally, a fiduciary will have access to a catalogue of the user’s communications, but not the content, unless the user consented to the disclosure of the content.

Here, I would like to explain a bit further what is content and what is a digital asset.

As explained in the definition section, content of an electronic communication means information concerning the substance or meaning of a communication. There are three criteria that must be met for digital information to be considered content.

  • It must have been sent or received by the user
  • It is held in electronic storage by a custodian
  • It is not readily accessible to the public

When considering whether a Facebook, Twitter, or blog post qualifies as “content of an electronic communication,” one important consideration is the intended audience.  For example, a tweet that is accessible to any member of the general public who “follows” the twitter account is not protected content because it does not meet the third prong of the definition (“is not readily accessible to the public”).  However, a Facebook post that can only be viewed by the user’s Facebook friends is protected content, because it is not readily accessible to the general public.

Therefore, a Facebook account, Twitter Account, or blog account do not fall neatly into content versus other digital assets.  A fiduciary may be permitted limited access under the Act solely for the purpose of closing the account, but not to view any protected content.

The second category addressed by the Act is “Digital Assets,” which means an electronic record in which an individual has a right or interest. Here are a few examples of digital assets: Facebook account, Twitter or blog post, bitcoin or bitcoin account, email account, electronic bill paying account, electronic banking account.  In each case, the content could be protected if it meets all three prongs of the definition for “content of an electronic communication,” or could be accessible without user consent if it does not meet one or more of those three prongs.

Brief run through of these sections. Sections 3557 and 3558 involve the disclosure of digital assets to a personal representative of the estate of a deceased user. Section 3557 involves access to content of electronic communications while section 3558 involves other digital assets other than content. Essentially, access to content of electronic communications is more restrictive, requiring clear prior consent of the user.

The same general pattern is followed through the next several sections for other fiduciary relationships – more restrictive access to content, less for other digital assets.

Section 3559 and 3560 involves agents, sections 3561 through 3563 involve trustees, and Section 3564 involves guardians.

Section 3565 contains general provisions relating to the rights and responsibilities of the fiduciary.

This section provides that a fiduciary under this act has the same fiduciary duties for user’s information as for other property that may come under the fiduciary’s control. It sets forth what those duties and authorities are. These duties are the same duties each fiduciary has under current Vermont law.

Section 3566 addresses compliance by custodians and grants immunity for any acts taken in order to comply with a fiduciary’s request under this act.  Sections 3567 and 3568 address miscellaneous topics, including retroactivity.

As we heard from a probate judge, “Currently, there are no statutory provisions that explicitly provide fiduciaries with the authority to access digital assets. As a result, unnecessary complications can and do arise. Both in the practice and judicial arena, the statute is essential for fiduciaries in this digital age.”

 

Judiciary Committee Update

 

In the past week, the Judiciary Committee has continued its effort to reform Vermont’s criminal justice system through initiatives to reduce incarceration rates, recidivism, and the collateral consequences of having a criminal record while ensuring public safety. The Committee passed a number of bills related to this effort.

H.213 advances the goal of providing access to treatment courts in the criminal division of the Superior Court. In an extensive findings section, the bill explains how such courts work and the benefits they achieve, including reducing recidivism. The bill would establish an Adult Treatment Courts Special Fund to expand geographic access to such courts. In addition, it would establish a Mobile Adult Treatment Court Pilot Program to provide access to treatment dockets in multiple counties across the State. Funding for the effort would have to be established by the money committees, but the bill includes suggested funding sources including a surcharge on requests for criminal history records from the Vermont Crime Information System.

H.503 would reform Vermont’s bail and probation laws. It would restrict imposition of an appearance bond at the initial court appearance of a person cited for certain misdemeanors. In addition, it would significantly change the process of summons and arrests of probationers who have violated conditions of probation. Rather than always arresting a probationer who has violated conditions, a correctional officer would have the option to cite the individual into court. Also at arraignment, the court will have the option to impose bail and/or conditions of release on an individual who has violated conditions of probation rather than continued detention as is currently required.

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, which created a working group to review all of Vermont’s criminal penalties and its sentencing structure. 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. H.308 would allow for the next step in providing a consistent and rational criminal code in Vermont. The committee’s primary task would be to propose placement of 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.

Expungement

This past Thursday, the House passed a bill related to expungement.  Vermont Digger covered the story.

The following is my report to the House, delivered on Wednesday:

H.171 addresses one aspect of Criminal Justice Reform.

By Criminal Justice Reform, I mean efforts to reduce incarceration, recidivism, and the collateral consequences of having a criminal record. Through such reform, we are able to help those caught up in the criminal justice system once again become productive, contributing members of society.

H.171 relates to one aspect of Criminal Justice Reform. The bill would amend laws that relate to the collateral consequences of having a criminal record.

Individuals who plead guilty or are convicted of an offense often suffer additional legal consequences beyond incarceration, probation, and fines. These are referred to as the collateral consequences of having a criminal record. Such consequences may include

being unable to get or keep some licenses, permits, or jobs;

being unable to get or keep benefits such as public housing or education;

receiving a harsher sentence if convicted of another offense in the future;

or being unable to serve in the military or on a jury.

One method to remove these collateral consequences, is to get rid of the record of the criminal conviction through a process called expungement. Expungement involves erasing a person’s criminal record. As an alternative, an individual’s record can be sealed. In that case, the record still exists, but the result is the same.

When a person’s criminal record is expunged or sealed, the person is treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense.

To have one’s record expunged or sealed, an individual can file a petition in the Court’s Criminal Division. Certain requirements must be met for the petition to be granted.

First, the person must have been convicted of a qualifying crime. A qualifying crime includes any misdemeanor offense that is not:

  • a listed crime
  • a prostitution-related crime
  • crimes involving sexual exploitation of children
  • violations of a protective order
  • or a predicate offense (offenses for which one would be subject to increased penalties for repeat offenses, including DUI, domestic assault, stalking).

Also three felonies are qualifying crimes: Unlawful mischief, grand larceny, and burglary, as long as it was not into an occupied dwelling.

Second, a waiting period has to have elapsed since the person successfully completed the terms and conditions of his or her sentence. The length of the waiting period depends on whether the person has been convicted of a new crime after the conviction for the qualifying crime.

Third, the petitioner has to have paid off any restitution ordered by the Court.

Section by Section Analysis

Sections 1 and 2 amend provisions related to the Uniform Collateral Consequences of Conviction act that was enacted in 2013.

Section 1 relates to a provision of this law that ensures offenders receive notice of the collateral consequences of pleading guilty to a crime. It also provides notice that one can obtain relief from collateral consequences. This bill adds a provision requiring notice of the availability of expungement at the time an offender enters a plea of guilty or nolo contendere.

Section 2 relates to a provision that notifies individuals upon completion of their sentence of collateral consequences and ways to obtain relief from those consequences upon completion of one’s sentence. Subsection (a)(4) adds a provision requiring notice of the availability of expungement. Subsection (d) adds a similar notice provision in cases where an individual receives a penalty involving a fine only.

Section 3 adds a qualifying crime to the expungement law. It adds violations related to obtaining and procuring drugs through fraud or deceit. Addiction often is behind this particular crime.

Section 4 relates to the procedure for obtaining expungement

Subsection (b) involves the situation where a person has not been convicted of a crime arising out of a new incident since the person was convicted of the qualifying crime.

Current law requires a court to explicitly find that expungement would be in the interest of justice. Subsection (b)(1) changes the presumption, stating that “unless the court finds that expungement would not be in the interest of justice” it should grant the petition so long as the other conditions are met. In other words, it would presumably be in the interest of justice to rid a person of his or her criminal record, unless the Court affirmatively decides otherwise.

The first condition involves the amount of time that must have elapsed since the date the person successfully completed the terms and conditions of the sentence or probation. Subsection (b)(1)(A) reduces the waiting period to three years from ten years.

Section (c) effectively extends the waiting period if the person has been convicted of a misdemeanor since the person was convicted of the qualifying crime.

(c)(1) once again changes the presumption related to the interest of justice.

Under (c)(1)(A), the waiting period to be eligible for expungement is reduced to five years from 20 years.

The section relates to situations where someone has been convicted of another crime before the three-year period under subsection (b) has run. If the petitioner commits a felony, then he or she is no longer entitled to expungement of the previous qualifying crime. This is set forth in subsection (c)(1)(B). If the petitioner is convicted of a new misdemeanor before the 3-year waiting period has run under subsection (b), an additional three-year period is tacked on to the waiting period from the time the person completes the sentence for the subsequent misdemeanor conviction.

Next, the bill repeals a long section of the current law. In 2015, the legislature added a procedure to provide an earlier opportunity for expungement for individuals who committed a qualifying crime prior to reaching 25 years of age. A number of additional requirements were placed on these individuals to be able to qualify for expungement. Keeping these requirements would be inconsistent with the other amendments to the expungement law in H.171. If this provision remained, individuals who commited their offense when they were 25 years old or older would be able to seek expungement after three or five years, without any additional requirements. Individuals 25 years old and under would have to wait five years and fulfill other requirements. The bill would provide the same opportunity for expungement regardless of the age when the offense was committed.

New subsection (d), formally subsection (e), relates to individuals seeking expungement of a criminal record involving an offense for which the underlying conduct is no longer prohibited by law or designated as a criminal offense. Again, as in the previous provisions, the subsection changes the presumption related to the interest of justice. Also, it shortens the waiting period. Instead of waiting one year after completion of a sentence or supervision for the offense, an individual can seek expungement as soon as the sentence or supervision is completed if the offense is no longer a crime.

Section 5 of the Bill relates to how long someone who has had his or her petition denied must wait to reapply for expungement. Current law provides a waiting period of five years. The bill provides that a petitioner can reapply after one year or a shorter period if authorized by the Court.

Section 6 addresses the automation of the expungement process. It is our desire to make the expungement process run more efficiently. The courts are moving towards implementing an automated case management system. Section 6 instructs the Court Administrator to evaluate and report on the feasibility of automating the expungement and sealing process through this case management system or through other methods.

Section 7 is an additional notification provision. It requires the Attorney General to provide public education and awareness regarding the availability of the expungement petition process. This provision recognizes that the notification provisions that occur at the entry of a plea or at the completion of a sentence will not reach those who already have served their sentence.

Section 8 states that it is the legislative intent to continue examining this issue, particularly through considering whether to expand the range of offenses eligible for expungement.

Section 9 provides that the act would take effect on passage.

We heard from:

The State’s Attorney, Windsor County

Clerk of State Courts

Staff Attorney, American Civil Liberties Union

Executive Director, Center for Crime Victim Services

Legislative Counsel

Chief Superior Judge, Office of Chief Superior Judge

Department of State’s Attorneys and Sheriffs

Defender Generals Office

Professor of the Vermont Law School

Chief of Trial Court Operations, Office of Court AdministratorDirector,

Vermont Crime Information Center

Associate Director of Public Policy, VT Network against Domestic and Sexual Violence

The vote of the Judiciary Committee was 10-0-1.

In closing, this bill will provide many individuals the opportunity to remove barriers to their becoming productive, contributing residents of Vermont.

*******

On Thursday, when the Bill was up for a final vote, I dealt with two amendments.  Also, I dealt with a concern that had been raised related to whether repeat offenders are treated too leniently.  Here is my response to that latter concern:

Repeat offenders question:

The statute carves out all convictions that the legislature has determined warrant increased penalties for repeat offenses. These are so-called predicate offenses. One cannot obtain expungement for a conviction if it qualifies as a predicate offense.

The Judge also has two opportunities in the law to address such situations: It can find that expungement is not in the interest of justice. Or it can seal the record instead of expunging it. Under section 7607(c)(2), a Court or prosecution may use the sealed criminal history record for future criminal investigations or prosecutions without limitation.

One of the purposes of expungement is to give a person a better chance at stability in housing and employment, which can reduce the incidence of someone recidivating. The chance to obtain stability by obtaining housing or a job is undermined by one having a criminal record.

The bill balances the cost of the infrequent circumstance where someone may game the system against the benefit for the many individuals who can again become productive citizens.