Report for H.87 – and act to establish a classification system for criminal offenses

Below is the report that I gave today in the House for H.87, which passed on a unanimous voice vote.

Vermont’s current criminal law is a patchwork of common law crimes that have been put into statute and new offenses created by the legislature over the years. With no attempt to standardize them, our criminal laws have evolved in a manner that has led to inconsistencies. Similar conduct leads to different punishments under different parts of the criminal code.  Not only that, the structure of the laws itself is confusing to those who encounter the criminal justice system.

Recognizing that Vermont needed to modernize and simplify its criminal code, in 2013 the Legislature passed Act 61.  This law created a Criminal Code Reclassification Working Group to review all of Vermont’s criminal penalties as well as to look at other state’s sentencing structures.  The Working Group was tasked with recommending a sentencing structure that allows for consistent sentencing that match the gravity of the offense and the culpability of the offender.

In 2015, the Working Group recommended a 5-tier classification system for felonies and misdemeanors. Each tier has a maximum term of imprisonment and a maximum fine. In 2018, in Act 142, the Legislature tasked the Sentencing Commission with making recommendations for which offenses should be placed in which tier. 

The Commission has been working on this project for the last 3 years. It includes prosecutors, defense attorneys, judges, law enforcement, legislators, and other stakeholders. Their initial recommendations formed the basis last year of H.580, which the House passed. Because of COVID and the State of Emergency, H.580 was not taken up by the Senate and that bill now forms the basis of what you have before you in H.87.

To reach our goal of having a rational, consistent, and simplified criminal code, H.87 establishes the structure of the code, or the classification system, based on the Commission’s recommendation. H.87 also starts to place criminal offenses into their appropriate classes, focusing on property crimes based on the Commission’s recommendation. 

Because of the complexity of this project, the Commission has phased its recommendations for different categories of crimes. Your Judiciary Committee is doing the same. We are starting with property crimes, but in future bills, we will address other Sentencing Commission recommendations on sex crimes, crimes against persons, drug crimes, and other categories. 

Turning to the bill’s language.

Section 1 of the bill is found at page 436 of today’s calendar.  This section sets up the classification system for criminal offenses.  There are five felony level classifications, from Class A that carries a maximum sentence of life imprisonment and a maximum fine of $100,000, to Class E, which carries a maximum term of imprisonment of three years and a maximum fine of $7,500. 

The bill also sets forth five classes of misdemeanors, from a Class A misdemeanor with a maximum 2-year term of imprisonment and maximum fine of $5000, to a Class E misdemeanor that carries no incarceration and a $250.00 fine. 

The bill in subsection (c) provides that the court must consider defendant’s financial ability to pay a fine when determining the amount of any fine. This provision codifies the current discretionary practice of courts.

Section 54 of title 13, starting on page 437 of today’s calendar,  provides transitional provisions.  When this bill goes into effect, in July 2022, all crimes that the legislature has not explicitly placed into a class will be automatically placed into a class.

But we should be able to address all crimes by July 2022 so that this automatic placement will not be necessary. The Commission has continued its work.  It has provided recommendations on sex crimes and crimes against persons and should have the remaining offense categories addressed by the end of the year. There will be plenty of time for the legislature to act on its recommendations before the transitional provisions go into effect.

The remainder of the bill addresses the classification of property crimes.  Currently, the sentence for many of Vermont’s property crimes depends on the value of the property involved. 

The Commission recommended that we keep this basic principle and use a tiered system of sentencing depending on the value of the property. Tiered systems for determining penalties for property crimes are commonly used in other states.

The tiers can be found at pages 438-439 of today’s calendar.  The Judiciary Committee followed the Commission’s overall recommendation, but modified the specifics of the proposed tiers. 

The key difference between the Commission’s recommendation and H.87 relates to what is referred to as the felony threshold.  Under current law, the felony threshold for many property crimes is $900.00.  If you steal over $900.00, you are facing a felony.  If under $900.00, a misdemeanor.  The Commission suggested that the felony threshold should be moved up to $10,000.00.  But the Committee felt that moving from $900.00 to $10,000.00 was too large a leap.  Also, that felony threshold would be far above what any other states have set.  The Committee therefore reduced the threshold to $3000.00 to be more in line with other states.

In addition, the Committee changed the maximum terms of imprisonment for offenses involving values over the felony threshold.  The Commission recommended that felony offenses be categorized as either Class D felonies, carrying a maximum term of imprisonment of 5 years, or Class C felonies, carrying a maximum term of imprisonment of 10 years. The Committee, however, decided that it was more appropriate for felony offenses to be charged as either Class E felonies, carrying a maximum term of imprisonment of 3 years, or Class D felonies, carrying a maximum term of imprisonment of 5 years.

How the tiered system works, and how we justified using maximum terms of imprisonment of three or five years for felonies, is best explained by way of an example.  I’m going to skip over section 2 of the bill for now to explain.

Lets turn to the crime of False pretenses, which can be found at page 442 of today’s calendar. Say you commit the crime of false pretenses and the value of the property is less than $900 –  under current law your maximum term of imprisonment would be one year.  But if the value of the property is over $900, that maximum jumps up to ten years. The bill replaces this structure so that it is more gradual. It provides that the sentence will depend on the value tiers and classification system found at sections 52, 53, and 55, of this title, which can be found at pages 436 to 439 of today’s calendar. Under the bill, if the value involved in a false pretenses charge is over $3000 but less than $100,000, the offense would be a Class E felony, with a maximum term of imprisonment of 3 years.  Over $100,000, it would be a Class D felony, with a maximum term of imprisonment of 5 years.

The Committee looked at actual sentences imposed over the past five years for the crimes addressed in H.87, including for the false pretenses offense.  The average minimum term of incarceration for a felony-level false pretenses offense was 1.1 years.  The average maximum term was 3.6 years.  Offenders simply are not being sentenced to anything close to the 10-year maximum term. The penalty structure in H.87 is in line with the typical sentence for the false pretenses offense and the other property offenses in the bill. 

A number of the property offenses addressed in H.87 were not susceptible to tiering by value and therefore do not follow the tiered system.

So, for instance, the offense of identity theft, found at page 443 of today’s calendar, is classified as a Class E felony for a first offense and a class C felony for a second offense.  It does not use the tiered property value for purposes of determining a sentence.  Simply put, it would be difficult to put a value on what is taken when one’s identity is stolen.

I won’t go through every one of the property crimes in H.87.  Sections 3 through 21 and 23 through 50 of the bill modify the penalty provisions of Vermont’s property crimes by either following the tiered system or classifying the offense as a class C, D, or E felony or a class A, B, C, D, or E misdemeanor. 

I will turn your attention to Section 22 of the bill found at page 446 of today’s calendar.  This section creates a new crime of organized retail theft.  This new crime is included due to a concern raised in Committee.  There are groups of individuals acting in concert who shoplift from stores and sell the goods on the black market.  These individuals take particular care that they are not exceeding the value of goods such that they may face a felony if caught. The new offense of organized retail theft would allow law enforcement to aggregate the total value of stolen goods over a period of time to determine the appropriate sentencing level. The Committee believed that it was important to add this new offense to provide law enforcement with an additional tool to address this activity.

I will turn briefly back to section 2 of the bill, found on page 439 of today’s calendar.  This section aligns Vermont’s attempt law with the new classification scheme.

Finally, section 51 of the bill provides that the law would become effective on July 1, 2022.

The Judiciary Committee heard from:

Executive Director, Center for Crime Victim Services 
Legislative Counsel
Executive Director, Crime Research Group of Vermont
Director of Research, Crime Research Group of Vermont 
Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs 
Assistant Attorney General, Vermont Attorney General’s Office 
Advocacy Director, ACLU of Vermont 
Judge, Vermont Judiciary 
Head of Appellate Division, Office of Defender General 
Vice Chair, Sentencing Commission 
Chair, Sentencing Commission 

The vote in the committee was 11-0.

H.87 initiates the modernizing, rationalizing, and simplifying of Vermont’s criminal code. We ask you for your support.