Vermont’s Sentencing Commission

Earlier this year, the legislature passed Act 142, revitalizing the Vermont Sentencing Commission. The Commission originated in 2005 but had been dormant for several years. It was originally established to oversee criminal sentencing practices in the State, reduce disparities in sentencing, and make recommendations regarding criminal sentencing to the legislature.

Since the Commission was originally established, the State has faced the increasing crisis of opiate addiction. The opiate epidemic has affected many aspects of State government, including the judiciary. Family courts have been inundated with cases shaped by problems that arise when parents suffer from addiction. In the criminal justice system, addiction often motivates the offenses that land people in court. Individuals enter the system because they illegally possess opiates such as heroin or have committed property crimes to feed their addiction. The State is wisely moving toward understanding that addiction is best addressed as a mental health concern, not as a criminal matter.

Act 142 tasked the reconfigured Commission with developing responses to the significant impacts of increased opiate addiction on the criminal justice system. The Commission is to consider whether and under what circumstances offenses committed as a result of opioid addiction should be treated as civil rather than a criminal offenses. It will also consider whether the possession or sale of specific, lesser amounts of opioids and other regulated drugs should be treated as civil rather than criminal offenses. The Act recognizes, however, that simply changing the legal status of such offenses is not sufficient. It is not enough to move individuals whose actions have been motivated by addiction out of the criminal justice system. Rather, such individuals have to be steered toward resources that treat addiction as a mental health issue. So, Act 142 also tasks the Commission with recommending how to maximize treatment for offenders as a response to offenses committed as a result of opioid addiction.

The Commission has other, broader tasks. It will review existing sentencing law and practice to determine whether current statutory penalties are appropriate. It will also consider whether certain Vermont criminal offenses that carry only a monetary penalty should be reclassified as civil violations. In short, the Commission will determine how Vermont’s criminal laws can be transformed into a more rational criminal code.

This part of the Commission’s charge arises from the fact that Vermont’s current criminal law is somewhat of a hodgepodge. Some of the State’s crimes come from law developed by judges that has long since been written into statutes. Others were created by legislatures over the years, often triggered by a crime or social problem that gained public interest at the time, compelling the legislature to act. Over 850 criminal offenses are contained in various sections of the Vermont statutes. Statutory criminal prohibitions cover aspects of commercial interaction, environmental regulation, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine to death.

The structure, or more accurately the lack of structure, of Vermont’s current criminal law presents several challenges. There are inconsistent penalties for conduct that deserves similar consequences. In addition, Vermont’s disparate criminal laws sometimes lack sufficient clarity for individuals to readily understand what conduct is prohibited and what the consequences are for engaging in illegal conduct. Without such clarity, the criminal law’s deterrence effect is weakened.

The Commission is made up of a diverse group of individuals involved in the criminal justice system: legislators, prosecutors, defense attorneys, and representatives from the Department of Corrections, Department of Public Safety, the Crime Research Group, and the Center for Crime Victim Services. I will be serving on behalf of the House Judiciary Committee. The Commission has met twice during the off-session and will submit a report and recommended legislation to the House and Senate Judiciary Committees by November 30, 2019.