The following is my Floor Report for S.195. The Senate further amended the bill with relatively minor changes.

In order to explain what S.195 does, I’m going to start by explaining what happens in the Vermont criminal justice system when someone commits a crime.

Let’s assume that a police officer arrests an individual in the act of committing retail theft. I’ll assume the individual is a male and I’ll use he/him pronouns in this hypothetical. The value of the merchandise stolen is $500.00, so the offense would be a misdemeanor retail theft. To be a felony, the value of the goods would have to be at least $900.

In most cases, for a misdemeanor like this one, the officer would issue the person a citation to appear in court for arraignment at a future date, probably not for several weeks. In this hypothetical, though, let’s assume that this isn’t the first time that the individual has committed retail theft. Let’s also assume that this person has previously failed to appear in court when cited and, in fact, attempted to evade the officer when they arrived on the scene. So, instead of citing him, the officer arrests and detains the person and takes him to court for his arraignment because the alleged event occurred during normal business hours.

At the arraignment the defendant, if indigent, will be appointed a public defender. He will hear the charges against him and enter a plea. The court will also address two concerns at that time. First, is there a risk that the defendant will not show up for pretrial hearings or for the trial itself? Second, does the defendant pose a risk to public safety? If no such concerns exist, the defendant is likely to be released on his own recognizance. If there is a concern, the prosecution can ask for bail to be set and can also ask for conditions of release, or the court can impose bail or conditions of release on its own initiative.

As to bail, under the Vermont Constitution, the only legitimate purpose of bail is to mitigate the defendant’s risk of flight from prosecution and to ensure his appearance in court. In other words, the purpose of bail is to encourage the defendant’s appearance, ensuring that the defendant has a vested interest in showing up. If he doesn’t appear, he may forfeit the bail amount. As the Vermont Supreme Court has held, Madam Speaker may I quote from State v. Pratt:

“In setting bail, courts must always be guided by the goal of securing a defendant’s appearance at trial, and should not set bail at an unattainable level for the purpose of detaining a defendant rather than assuring the defendant’s appearance.”

In my scenario, the Defendant is charged with a misdemeanor that is eligible for expungement. Vermont law caps the amount of bail that can be imposed on such offenses at $200. We will assume that the prosecution argues that this particular defendant presents a risk of flight from prosecution – in other words, that he will try to avoid future court proceedings. The Court will consider a number of factors in determining the risk of flight from prosecution, including the seriousness of the offense charged and the number of offenses charged. After these considerations, in this scenario, the Court sets bail at $200 and the defendant posts bail.

To ensure that the Defendant is going to appear, the prosecution also requests that the Court impose certain conditions of release. They request and the court imposes a restriction that requires that the person show up in court when required to, keep his attorney informed of his address and contact information, and stay 300 feet away from the business where the theft allegedly occurred.

If the Defendant also posed risks to public safety, similar or additional conditions of release could also be imposed.

As I explained when reporting H.880 earlier this session, the courts are facing a significant backlog of cases. If our courts were not facing the current case backlog, the Judge in my scenario might set a trial date. But because of demands on the court’s time from more serious cases such as violent felonies, our Defendant will not face a trial date until months, if not years, later.

And while he awaits his trial date, he may get in further trouble with the law. That is, in fact, what is currently happening in Vermont and is causing significant concern with the public. As the Judiciary Committee learned in testimony, it is not unusual to have a defendant with over 10 charges with multiple violations of conditions of release and failures to appear in court. State’s Attorneys have seen an increase in cycles of noncompliance with defendants repeatedly violating conditions, committing new crimes, being arrested on a warrant for those violations and crimes, and then being released again on conditions.

S.195 contains several provisions to help address this problem while we are working to properly resource the criminal justice system to reduce the court backlog.

I will now turn to the bill.

Section 1 of the bill, found on page 4782 of today’s calendar, amends 13 VSA 7551 related to the imposition of bail. Let’s take the defendant I mentioned, who is charged with a misdemeanor offense eligible for expungement. Under current law, if a court finds it necessary to impose bail to address that defendant’s risk of flight from prosecution, it can impose bail at a maximum of $200.

S.195 provides that the $200.00 maximum does not apply if the court finds that the person has previously engaged in flight from prosecution. In other words, if that person has already avoided court appearances despite having conditions of release and/or imposition of bail, the Court may impose a higher bail amount in order to incentivize the person’s appearance in court. The Court still must consider the defendant’s financial resources in determining the bail amount. The amount can’t be excessive and can’t be designed to punish or detain the defendant.

Section 2 found on page 4783 of today’s calendar amends 13 VSA 7554, which relates to the release of a defendant pending trial.

Subdivision (a)(1) addresses a defendant’s risk of flight from prosecution. It states that a defendant shall be released on personal recognizance or on bail unless the court determines that such release will not reasonably mitigate the risk of flight from prosecution. In determining that risk, the court currently considers a number of factors. S.195 adds additional considerations related to the defendant’s compliance with prior court orders. It adds the following:

“whether, at the time of the current offense or arrest, the defendant was released on conditions or personal recognizance, on probation, furlough, parole, or other release pending trial, sentencing, appeal, or completion of a sentence for an offense under federal or state law; and whether, in connection with a criminal prosecution, the defendant is compliant with court orders or has failed to appear at a court hearing.”

We learned that courts already may consider these factors. This amendment clarifies that court’s should consider these factors.

Subdivision (a)(1)(A) lists the conditions of release that the Court may impose on a defendant. S.195 adds two more possible conditions of release: pretrial supervision and home detention. Subdivision (H) allows the Court to place the defendant in the pretrial supervision program. This program is created in section 4 of the bill. Subdivision (I) allows the Court to place the defendant in the home detention program. This program is addressed in section 3 of the bill.

If the court decides that the conditions of release imposed to mitigate the risk of flight won’t sufficiently protect the public, it can impose additional conditions of release. Subdivision (a)(2) addresses these conditions of release, and S.195 adds the same conditions as in the prior subsection – placement of a defendant in the pretrial supervision program or home detention program.

Subdivision (b)(2) sets forth a list of considerations for the court in determining what conditions to impose. These considerations mirror those related to risk of flight from prosecution. S.195 adds the same considerations as it added with respect to the determination of risk of flight.

These considerations are added because they are relevant to whether a defendant is a risk of flight or a risk to the public.

Section 3, found on page 4788 of today’s calendar, relates to the home detention program.

Currently, defendants who are unable to pay bail may be placed in home detention pending trial. Under the program, a defendant may be confined in a preapproved residence. The confinement is enforced through appropriate means of surveillance and electronic monitoring by the Department of Corrections. S.195 would expand the program to allow courts to place defendants who have allegedly violated conditions of release in home detention to mitigate the defendant’s risk of flight. I will skip the details because this section of the bill falls primarily under the jurisdiction of the Committee on Corrections and Institutions. That Committee’s amendment to S.195 reworks this Section.

Turning to Section 4, found on page 4789 of today’s calendar.

Currently in Vermont, there is inadequate supervision of State Court criminal defendants who are awaiting resolution of their cases. They may be released on conditions, but no-one is officially monitoring whether they are in compliance. And they may not be receiving help in complying. Nevertheless, they still are often caught violating conditions of release.

Other states offer pretrial supervision services. Such services can provide defendants with assistance in complying with conditions. They can, for example, make sure that defendants are accessing substance abuse treatment or mental health counseling. In addition, they can help make sure the defendant attends scheduled court appearances.
Section 4 creates a pretrial supervision program.

Subsection (a) provides that “the purpose of the Pretrial Supervision Program is to assist eligible people through the use of evidence-based strategies to improve pretrial compliance with conditions of release, to coordinate and support the provision of pretrial services when appropriate, to ensure attendance at court appearances, and to decrease the potential to recidivate while awaiting trial.”

Subsection (b) provides a definition of “absconding.”

Subdivision (c)(1) provides the criteria for when a defendant may be placed in the pretrial supervision program. The program is to start on January 1, 2025 to give the Department of Corrections time to establish policies and procedures.

As to the criteria, only a defendant who has been charged with violating a condition of release or who has no fewer than five pending cases can be placed in pretrial supervision. If the defendant meets this threshold, the defendant must also pose a risk of nonappearance at court hearings, a risk of flight, or a risk of endangering the public.

Subdivision (c)(2) requires the Department of Corrections to assign pretrial supervisors to monitor defendants and coordinate pretrial services for the defendant. The Department also determines the appropriate level of supervision for the defendant based on evidence-based screenings of eligible defendants. Four levels of supervision may be set: telephone monitoring, telephonic meetings, in-person meetings, or electronic monitoring. There is also a catch-all provision allowing any other means of contact deemed appropriate.

One note on electronic monitoring. As passed the Senate, S.195 established a stand-alone, separate electronic monitoring program. Some witnesses were concerned that having a separate program that could be used on anyone pretrial could be overused and unduly restrict individuals’ liberties. We therefore decided to limit the use of electronic monitoring to those individuals who need more supervision – specifically, to those individuals placed in the pretrial supervision program.

Subdivision (c)(3) provides that a court placing a defendant in the program shall set the level of supervision based on the DOC’s recommendations.

Subsection (d) provides the procedure for determining whether a defendant is to be placed in the pretrial supervision program. The prosecutor, defendant, or court can request that the defendant be reviewed for the program. The review would proceed after the court receives the DOC’s recommendation of supervision level.

The Court will first consider the eligibility criteria – that the defendant violated a condition of release or has at least five pending court cases. If the eligibility requirements are satisfied, the Court will determine whether placement in the program will ensure the person’s appearance in court, mitigate the person’s risk of flight, or reasonably ensure protection of the public. In making that determination, the Court considers the factors listed in subdivision (3)(A) through (E).

Subsection (e) addresses compliance and review. Under subdivision (e)(1), pretrial supervisors are to notify the prosecutor of violations of the Program’s supervision requirements. Subdivision (e)(2) provides that the prosecutor or defendant can request review of the pretrial supervision conditions. Subdivision (e)(3) allows the prosecutor to seek a warrant for arrest of a defendant who fails to report to the pretrial supervisor, commits multiple violations of supervision requirements, or has absconded.

Subsection (f) requires DOC to establish written policies and procedures for the Program.

Subsection (g) provides that the program shall operate only to the extent funds are appropriated for its operation.

Subsection (h) provides that DOC may support the program through grants or contracts for services.

Once established, the Pretrial Supervision Program is designed to help defendants stay out of further trouble while they are awaiting resolution of their case, or cases.

The amendment of the Committee on Corrections and Institutions will propose a further amendment of this section.

Section 5 is found on page 4791 of today’s calendar.

As passed the Senate, S.195 included a new provision that established procedures to address violations of conditions of release. We learned in testimony, primarily from the Chief Superior Judge and the State’s Attorneys, that the provision actually makes for a more cumbersome process.

House Judiciary decided on a different approach to ensure such violations can be expeditiously addressed. We decided to accept the suggestion of the Chief Superior Judge that we could amend a current section of title 13 to achieve our purpose.

So, to Section 5, which amends 13 VSA 7559. S.195 renames this section “Violations of Conditions of Release; Failure to Appear; Warrantless Arrest.” It also moves language related to Release and Designation to new section 7559a.

Section 7559 aims to provide an expedited route for holding accountable a defendant who violates a condition of release.

Subsection (a) is existing language that is moved from subsection (e) of current section 7559. It provides that a State’s Attorney can bring an action for criminal contempt against a person who violates a condition of release. The alternative is to prosecute the violation as a misdemeanor.

Subsection (b) modifies existing language in 7559. Currently, 7559 provides that “Upon commencement of a prosecution for criminal contempt, the court shall review, in accordance with section 7554 of this title, and may continue or modify conditions of release or terminate release of the person.”

The new language makes it clear that this review and modification may occur when someone is arrested after hours or at their initial appearance on the criminal contempt charge. This is the language that makes clear that the court can expeditiously hold someone accountable for violating a condition of release. They can modify the conditions of release, potentially change the bail amount, or detain the person.

Subsections (c) and (d) are current language.

In short, section 5 provides the means to hold individuals accountable if they violate conditions of release. That, in turn, enhances public safety and mitigates the risk of flight.

Section 6 found on page 4793 of today’s calendar creates a new section, but does not change current law. All of the language that was struck from section 7559 has been moved to this section.

Sections 7 and 8 found on page 4793 of today’s calendar is a belt and suspenders section. Members may recall in H.534, related to retail theft, that community restitution was added as a sentencing alternative. To ensure that this provision makes it through to law, we have added the same provisions to this bill.

Section 9, found on page 4794 of today’s calendar, amends 13 VSA 4253. Subdivision (c)(1) provides that “use of a firearm” includes using a firearm while selling or trafficking a regulated drug. Subsection (d) provides that the offense of using a firearm while selling or trafficking a regulated drug shall be considered a violent act for the purposes of determining bail.

The result is that a person who committed this offense could be eligible to be held without bail pursuant to 13 VSA 7553a.

Section 10 provides that the act shall take effect on passage.

While we continue to work to provide appropriate resources to the criminal justice system so that alleged offenders can be expeditiously held accountable for their crimes, the provisions in S.195 will help to assure accountability while the alleged offender awaits resolution of their case.

The Committee’s vote was 9-0-2 and we ask you for your support.

THE FOLLOWING IS MY REPORT FOR THE SENATE AMENDMENT

After further discussions with our colleagues in the Senate, we decided that further limitations on the home detention program were necessary. In short, we want to limit the use of home detention to defendants who violate conditions of release and who pose a significant risk to public safety.

Turning to the language in the amendment, subsection (a) provides the intent for the program.

“It is the intent of the General Assembly that the Home Detention Program be designed to provide an alternative to incarceration and reduce the number of detainees at Vermont correctional facilities by accommodating defendants who would otherwise be incarcerated or pose a significant risk to public safety.”

Subdivision (b)(1) contains a technical correction.

Subdivision (d)(1) adds language clarifying when someone may be placed in home detention if they violate conditions of release. The Court must find that the defendant poses a significant risk to public safety, placing the defendant on home detention will reasonably mitigate such risk, and the proposed residence is appropriate for home detention.