The following is the Floor Report delivered by Representative Karen Dolan last Friday.

S.12, as amended by your House Judiciary Committee, takes key steps to modernize the system for criminal record clearance in Vermont. For those of you who were here last year, the contents will likely sound familiar as a majority of the bill is modeled after a bill passed in the House last year. Before getting into the details of the bill, I will offer some background information. 

The General Assembly has worked on policy regarding the expungement and sealing of Vermont criminal history records for several years to ensure that old records of nonviolent offenses do not unduly hinder Vermonters from obtaining jobs, housing, or educational opportunities once a sentence has been successfully completed. In policy development on this topic, the plan is to develop systems and practices that balance our goal of minimizing the collateral consequences of a criminal history record with our collective goal of ensuring public safety and minimizing the impact on victims. 

Currently, Vermont employs a two-track system for expunging and sealing criminal history records. I’ll take a moment to outline the difference in these two terms, which can have different meanings across states. In Vermont, expungement refers to the deletion of a record and sealing refers to the closing of a file to general access. In current law, whether criminal records are eligible for expungement or sealing is determined by the type of offense, the length of time since the person completed the sentence, and whether the court finds that expungement or sealing the record “serves the interests of justice,” among other factors. The current system is overly complex, the result of years of amendments and a piecemeal approach to the issue and therefore is poised for clarification as proposed in the bill before you.

S.12 builds on recommendations proposed during prior legislative sessions, as well as those from the 2021-22 Joint Legislative Justice Oversight Committee, to develop an improved record clearance process. The bill moves Vermont from a two-track record clearance system toward a one-track sealing process. 

Record clearance is an important part of our criminal justice system as it addresses significant barriers that exist for those who have been sentenced, specifically related to housing, employment and educational access. A study in Michigan showed that people whose records were cleared saw an average of 25% increase in income within two years of clearance. In our current employment environment, individuals with long- completed criminal sentences are finding it hard to find jobs and housing. Three social factors that are correlated with the commission of crimes are unemployment or unstable employment, lack of support or inclusion in a family, and engagement in a community. When people have old, irrelevant records, this can prevent them from finding housing and jobs, and exclude them from communities. We want to prevent this type of situation as it is counterproductive to our current public safety concern. 

When discussing our criminal justice system it is always important to discuss racial disparities. A 2022 study by the Council of State Governments showed that Black and Brown Vermonters are 350% more likely to be charged with a misdemeanor, 600% more likely to be charged with a felony, and 1400% more likely to be charged with a felony drug crime, despite no difference in drug use compared to White Vermonters. While we are considering measures to prevent these disparities, it is important for us to also address the harmful reality that currently Black and Brown Vermonters disproportionately have criminal records in our state. Record clearance is one tool we can use to mitigate this disparity post conviction. 

While the evidence in support of record clearance is significant, there are different schools of thought in regards to the type of process used. As shared earlier, Vermont currently has a two-track system involving both sealing and expungement. S.12 moves the majority of the record clearance process to sealing with a few carve outs remaining for expungement. 

Testimony shared in committee revealed some concerns around complete record deletion such as that found in expungement. Witnesses discussed the value records can hold for future cases. Even if old records are no longer serving as predictors of future crime, witnesses shared that these records can offer criminal justice purposes including impeachment considerations and prosecutorial discovery needs. 

Additional witnesses shared the relevance records can provide for the hiring and oversight of law enforcement. S.12 moves toward a sealing regime, in order to meet the goals of record clearance while also creating space to address this and other concerns. The streamlined process proposed also addresses system inefficiencies identified by witnesses. With a more efficient sealing regime, the expectation is that there will be increased confidence in the record clearance process and create new opportunities to strengthen the system in the future.

In determining the qualifying crimes for record clearance, S.12 followed the lead of last year’s legislation and referred to the list recommended by the 2021-22 Joint Legislative Justice Oversight Committee. Many of the expanded qualifying offenses included in S.12 have been considered by the legislature in previous sessions and were originally proposed to provide pathways forward for Vermonters in recovery from substance use disorder, following justice system involvement. As will be shared in the bill section overview, the list of qualifying crimes consists of primarily misdemeanors and a limited number of non-violent felonies. 

Now, I will turn to reviewing S.12 as amended by House Judiciary. For those following along, you can find House Judiciary’s strike-all amendment to S.12 on page XXXX in yesterday’s House Calendar.

Section 1:

As an overview, this section amends the chapter adopted by the General Assembly in 2012 that sets forth the process for a person to petition to have a criminal history record sealed or expunged.  In general, this section moves from a complex system of sealing and expungement to one of sealing in most instances, with an expanded list of qualifying crimes, and limited access to sealed records for certain entities that require such records for criminal justice purposes. 

Subsection 7601 is the DEFINITIONS section

•  The definitions of “court” and “criminal history record” remain as is in current law. 
• The definition of “predicate offense” is removed as it is no longer relevant 
•  “Qualifying crime” is updated to include:

(A)  all misdemeanor offenses EXCEPT those listed and

(B)  ONLY the specific list of felonies included

I will spare the body of reading the full language of qualifying crimes, but I will refer folks to the list in yesterday’s calendar on pages XXXXX related to the listed offenses. In general, the misdemeanors that are excluded include listed crimes and those related to domestic and sexual violence. And for felonies, the included list is specific to non-violent and property-related offenses.

§ 7602. 

Sets forth the process for a person to petition for the sealing of a criminal history record if the offense is no longer a crime or if it is a “qualifying offense.”

It clarifies that whichever office prosecuted the offense resulting in the conviction, the State’s Attorney or Attorney General, will be the respondent in the matter unless the prosecuting office authorizes the other to act as the respondent.

Under this section, the court shall grant the order without a hearing if the petitioner and the respondent stipulate to the sealing.

It is also made clear that the process is not available to an individual who is the holder of a commercial driver’s license or commercial driver’s permit seeking to seal a record of a conviction for an offense committed in a motor vehicle.

Next, this subsection outlines the conditions that need to be met in order for the court to grant a petition of sealing for each type of qualifying offense.

For Offenses that are no longer prohibited by law, those conditions include:

(1)  The petitioner has completed any sentence or supervision for the offense.

(2)  Any restitution and surcharges ordered by the court have been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court.

For Qualifying misdemeanors, those conditions include:

(1)  At least three years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3)  The respondent has failed to show that sealing would be contrary to the interest of justice.

For qualifying felony offenses, those conditions include: 

(1)  At least seven years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3)  The respondent has failed to show that sealing would be contrary to the interest of justice.

For Qualifying DUI misdemeanors, those conditions include:  

(1)  At least 10 years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3) The person is not the holder of a commercial driver’s license or commercial driver’s permit.

(4)  The respondent has failed to show that sealing would be contrary to the interest of justice.

Lastly, this section clarifies that sealing a criminal history record related to a fish and wildlife offense does not void any fish and wildlife license suspension or revocation imposed pursuant to the accumulation of points related to the sealed offense.  Points accumulated by a person shall remain on the person’s license and, if applicable, completion of the remedial course shall be required.

§ 7603.  Outlines the procedure for granting a petition when a conviction does not occur.

In that case, unless either party objects in the interests of justice, the court shall issue an order sealing the criminal history record related to the citation or arrest of a person if the petitioner and respondent stipulate to the sealing or within 60 days after the final disposition of the case if:

(A)  the court does not make a determination of probable cause at the time of arraignment; 

(B)  the charge is dismissed before trial with or without prejudice; or

(C)  the defendant is acquitted of the charges.

If a party objects to sealing the record, the court will schedule a hearing to determine if sealing the record serves the interests of justice.

A person may file a petition with the court requesting sealing a criminal history record related to the citation or arrest of the person at any time. 

§ 7604.  

This section states that a court must wait to act on a petition for expungement if the person has another criminal offense pending.

§ 7605.  

States if a petition for sealing or expungement is denied, the petitioner must wait two years before filing again unless authorized by the court.

§ 7606.  

Retains the current law regarding the effect of expungement because there are still some areas of law, such as court diversion, where expungement is used. The House Committee on Judiciary added language to the statute to require a State entity that inquires about a person’s criminal history record is to advise the person of the person’s right not to disclose expunged records.

§ 7607 outlines the EFFECT OF SEALING

Except for certain circumstances where persons or entities are granted access to sealed records, a sealing order is legally effective immediately and the person whose record is sealed is to be treated in all respects as if the person had never been arrested, convicted, or sentenced for the offense.

In any application for employment, license, or civil right or privilege or in an appearance as a witness in any proceeding or hearing, a person may be required to answer questions about a previous criminal history record only with respect to arrests or convictions that have not been sealed. The House Committee on Judiciary added language to the statute to require that a State entity that inquires about a person’s criminal history record is to advise the person of the person’s right not to disclose sealed records.

Subsection (c) establishes who can use and under what circumstances a sealed record can be used.

If a party who has been granted authority to use a sealed criminal history record pursuant to the exceptions established in this subsection, wishes to use the record in a court proceeding, prior to any use of or reference to the record in open court or in a public filing, the party must notify the court of the party’s intent to do so. The court will determine whether the record may be used prior to its disclosure in the proceeding. If a party submits a filing that contains a sealed record or a reference to a sealed record, that filing must be filed under seal and remain under seal unless the court permits the use of the sealed record. This does not apply to a person using their own sealed record. Other entities will be able to access sealed records for specific purposes, including:

1. An entity or person may use in any litigation or claim arising out of the same incidence related to the record, including use of the record in reasonable anticipation of litigation.

2. A criminal justice agency as defined in 20 V.S.A. § 2056a and the Attorney General may use the sealed criminal history record for a criminal justice purposes 

3. A defendant may use a sealed criminal history record in the defendant’s criminal proceeding.

4. Use of a conviction for DUI I may be used as a predicate offense for a penalty enhancement for any subsequent offense.

5. A sealed record may be cited in a court order or decision.

6. A sealed record can be used for firearms background checks.

7. Prosecutors may use a sealed record to meet discovery requirements.

8. The person who is the subject of the record and the person’s attorney may use the record.

9. A law enforcement agency may use a sealed record when considering an applicant for a LEO position or an investigation into a current employee.

10. Persons or entities conducting research shall have access to a sealed criminal history record to carry out research in accordance with State law.

11. Information and materials gathered by the Department for Children and Families during a joint investigation with law enforcement are considered Department records that shall be maintained and may be utilized as prescribed by law and produced in response to a court order.

12. Information and materials gathered by Adult Protective Services during a joint investigation with law enforcement are considered Department records that shall be maintained and may be utilized as prescribed by law and produced in response to a court order.

The court is required to bar viewing of the sealed offense in any accessible database that it maintains. The case file remains publicly accessible until all charges on a docket have been sealed. When all charges on a docket have been sealed, the case file becomes exempt from public access.

When a sealing order is issued by the court, any person or entity, except the court, that possesses criminal history records must bar viewing of the sealed offense in any accessible database that it maintains or remove information pertaining to the sealed records from any publicly accessible database that the person or entity maintains, and clearly label the criminal history record as “SEALED.”

As currently happens, the court will keep an index of sealed cases.

§ 7608. VICTIMS

Current law requires the respondent to notify any known victim if a petition has been filed. The amendment adds e-mail as a method for contacting the victim.

§ 7609. EXPUNGEMENT OF CRIMINAL HISTORY RECORDS OF AN INDIVIDUAL 18–21 YEARS OF AGE

Allows a person who was 18–21 years of age at the time the person committed a qualifying crime to petition to seal the record after 30 days from the date the person completed the terms and conditions of the sentence for the conviction. The court shall seal the record if the following conditions are met:

(1) Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court.

(2) The respondent has failed to show that sealing would be contrary to the interest of justice.

(Note: Current law allows this process, but the records are expunged.)

§ 7610. CRIMINAL HISTORY RECORD SEALING SPECIAL FUND

No changes.

§ 7611. UNAUTHORIZED DISCLOSURE

This section includes law enforcement officers in the list of people who are subject to a civil penalty for knowingly accessing or disclosing sealed criminal history record information without authorization. A violation is subject to a maximum civil penalty of $1,000.00.

Sec. 2. RIGHT TO NOT DISCLOSE EXPUNGED OR SEALED CRIMINAL

HISTORY RECORDS

Directs the Secretary of Administration to notify all State administrative entities and the Court Administrator to notify the Judicial Branch of their obligation to notify persons of the right not to disclose an expunged or a sealed record.

Sec. 3 DEFERRED SENTENCES

Currently, when a person successfully completes a deferred sentence, the criminal history record pertaining to the offense is expunged. The amendment substitutes sealing for expungement.

Sec. 4. APPLICATION TO DEFERRED SENTENCES

Sec. 3 of the act applies prospectively to deferred sentences issued on or after July 1, 2025.

Sec. 5. EXPUNGEMENT OF MUNICIPAL VIOLATION RECORDS

Expunges municipal violations two years after satisfaction of the judgment, provided the person has not received any additional municipal violations.

This section is modeled after a similar provision enacted in 2021 regarding traffic violations and will apply to municipal violations that occur on and after July 1, 2025.

Sec. 6. EXPUNGEMENT OF TRAFFIC VIOLATION RECORDS

Amends the previously adopted statute requiring expungement of traffic violations to clarify the implementation date.

Sec. 7. EFFECTIVE DATE – July 1, 2025.

IN COMMITTEE WE HEARD FROM a wide range of  WITNESSES, over 25 individuals that I will share:

• President, Vermont Sheriffs’ Association
• Family Services Division Director of Policy & Planning, Department for Children and Families, Family Services Division
• General Counsel, Office of Professional Regulation, Secretary of State’s Office
• Court Administrator, Vermont Judiciary
• Director of Policy and Legislative Affairs, Attorney General’s Office
• Director, Court Diversion and Pre-Trial Services
• Director, Adult Protective Services Division, Department of Disabilities, Aging and Disabilities
• Deputy Secretary of State
• General Counsel, Department of Public Safety
• Director of Research, Crime Research Group
• General Counsel, Vermont Department of Health
• Consultant from Kaye Consulting
• Vermont State Archivist and Chief Records Officer
• Legislative Attorney, Vermont Department of State’s Attorneys and Sheriffs
• General Counsel, Department for Children and Families
• Deputy Defender General and Chief Juvenile Defender, Defender General’s Office
• Executive Director, Center for Crime Victim Services
• Vice President of Vermont Association of Chiefs of Police
• Deputy Commissioner, Department of Motor Vehicles
• General Counsel, Department of Disabilities, Aging and Independent Living
• EMS Programs Administrator, Vermont Department of Health
• Director, Vermont Crime Information Center, Department of Public Safety
• Executive Director, Crime Research Group
• Founder, MadFreedom
• Chief Superior Judge, Vermont Judiciary

Madame Speaker,

The thoughtful and balanced record clearance approach established in S.12, establishes a modernized framework for Vermont and creates a clear path for further reforms as progress is achieved. S.12 offers a solid foundation for future considerations such as petitionless sealing, qualifying crime expansion and the ideal balance of sealing and expungement systems. I look forward to these future discussions in following years.

S.12 as amended by House Judiciary passed out favorably with a vote of 11-0-0 and we ask that you join us in our support by voting yes.

The following is my floor report for H.98 on May 13.

Earlier this Session the House passed H.98, which established a confirmatory adoption process.  The Senate has concurred with that portion of the bill. It also amended H.98, adding provisions that establish what is referred to as Standby Guardianship.  

The language of the bill can be found on the legislative website. As a reminder, section one of H.98 establishes an expedited confirmatory adoption process for parents who conceived a child through assisted reproduction, and who are already recognized as parents under Vermont law. This process gives additional protection for parental rights when these parents travel outside of Vermont. It provides a judgment issued by a court that must be recognized by other states. The Senate made no changes to this provision that passed the House. 

The Senate’s amendment added Sections 2 through 8. These sections clarify the process for immigrant parents to create a guardianship for children in the event that the parents are subject to adverse immigration proceedings. 

Before walking through these sections, I’ll provide a bit of background. Vermont Legal Aid currently oversees an Immigrant Minor Standby Guardianship Project. The project helps immigrant parents make a plan for who will care for their children if the parents cannot do so because they have been arrested or detained by immigration authorities. The project connects immigrant parents with legal representation. The attorneys meet with parents and proposed guardians to fill out Powers of Attorney and minor guardianship documents, which can subsequently be used in a petition to the court to create the guardianship.

So, what happens if a parent is arrested or detained by U.S. Immigration and Customs Enforcement (ICE). There is an ICE directive that addresses this situation. Madam Speaker, may I read from that directive? 

“ICE personnel should accommodate a Covered Individual’s efforts to make alternative care arrangements for their minor children . . . prior to their arrest or detention. . . If the Covered Individual cannot make an alternative care arrangement for the minor children at the time of arrest, . . . ICE personnel must contact the local child welfare authority or law enforcement agency to take custody of the minor children.”  End quote.

Presumably, under this directive, ICE would accommodate the plan that an undocumented parent has put together with the help of Vermont Legal Aid, and would facilitate placing the children in the alternative care arrangement. If for whatever reason ICE does not accommodate any care arrangements prior to arrest or detention, the Vermont Department of Children and Families would likely become involved.

In that case, DCF has an operating agreement with Vermont Legal Aid (or VLA). Madam Speaker, may I read from that agreement?

“DCF and VLA believe that the well-being of children of immigrant parents who have been detained by U.S. Immigration and Customs Enforcement (ICE) is best promoted through efforts to establish safe and appropriate legal guardianship arrangements with people already known to the children whenever possible. DCF and Vermont Legal Aid are making this agreement to honor the intent of immigrant parents to establish powers of attorney and minor guardianships for their children whenever possible.” End quote.

Under the agreement, when DCF learns of children of parents who have been detained by ICE, DCF will contact Vermont Legal Aid. If there has been minor guardianship and power of attorney paperwork prepared for the family. and there is no concern regarding the safety of the children, DCF will coordinate with Homeland Security, Border Patrol, or local law enforcement, as well as Vermont Legal Aid to unite the children with their proposed standby guardian.

One way or another, either directly by ICE or through DCF, the children could be united with the proposed standby guardian where one has been arranged ahead of time. 

What if the parents have not made arrangements for alternative care ahead of time and they face arrest or detention? Again, under ICE policy, the parents may, at the time of their arrest, try to make an alternative care arrangement for their minor children. If the parents are unable to make alternative care arrangements on such short notice, the child would likely end up in DCF custody. Making these arrangements earlier allows the parents to communicate with potential guardians in a non-urgent context and avoid the many downsides of DCF custody, which I will explain later.

In any event, to make the proposed guardianship official, the parent or their representative must petition the court. And that is where H.98 comes in. The bill clarifies the court process to create a so-called “Standby guardianship.”

Back to a section-by-section explanation of the bill.

Section 2 of the bill provides various definitions. Subdivision (8) defines “Standby guardianship” as “a consensual guardianship agreement between the custodial parent and their chosen guardian . . . in which the custodial parent has been subject to an adverse immigration action that has rendered the parent unavailable to care for their child.” Subdivision (9) defines “Adverse immigration action.” This subdivision provides six different situations in which a custodial parent could be rendered unavailable to care for their child due to either deportation, detention, or denial of entry.

Section 3 begins by amending Title 14 VSA 2623 to differentiate between petitions for regular guardianship and standby guardianship, and when it is an emergency petition. 

This section establishes requirements for the information to be included in the petition, such as the proposed guardian’s relationship to the child, names of other household members, why the guardianship is being sought, and several other important factors that a court shall take into consideration when determining whether or not to grant a guardianship. 

This section also requires notice of service to all parties involved, although there are exceptions. The court may waive notice requirements if the identity or location of the parent is unknown, if the parent is detained as a result of an adverse immigration action, or if no contact can be made with the parents after reasonable efforts have been made. If the factors involved in this exception change, the court must reopen the proceeding at the request of a parent of the child who did not receive notice. 

Section 4 concerns the hearing that must be held before a guardianship petition is granted. Under current law, subsection F permits the court to delay a hearing until after an emergency petition is filed if the parents are unavailable because they are medically incapacitated or deceased. This bill also permits the courts to grant an emergency petition for a standby guardianship if the custodial parent has been subject to an adverse immigration action that renders the parent unavailable to care for the child. 

Section 5 describes the procedures for obtaining a standby guardianship. The custodial parent and the proposed guardian can sign the petition and other required forms in advance, so that the guardian or the parent’s attorney can retain the signed forms and only file them with the court if the parent is subject to an adverse immigration action. 

In summary, subsections A through F provide rules related to submitting consent forms by the custodial parent, the numerous requirements that must be agreed to between parents and potential guardians, the manner in which the Vermont Rules of Evidence shall apply, the threshold of evidence needed to grant a petition, a rebuttable presumption that the guardianship is in the best interest of the child so long as certain factors are established, and the required timelines for both holding a hearing and issuing a guardianship if granted. 

Section 6 adds standby guardianships to the list of guardianship orders that may be issued by the Probate Division. The order must include provisions addressing the guardian’s powers and duties, the expected duration of the guardianship (if known), a family plan consistent with the parties’ agreement, and the process for reviewing the order.

If a standby guardianship is granted due to an adverse immigration action, the custodial parent may be detained in a federal facility or relocated outside the country. For that reason, Section 7 permits the guardian to provide status reports to the custodial parent at the parent’s last known email address, because contacting the parent by regular mail may not be feasible. 

Additionally, because the parent’s location may limit their ability to meet court procedural requirements, Section 8 permits the parent to appear remotely at continuation hearings, and permits the court to waive formatting and signing requirements for good cause shown in proceedings to terminate the guardianship.

Section 9 provides that the confirmatory adoption proceedings section of H.98 takes effect on July 1, 2025, and that the standby guardianship sections take effect on passage.

• We heard from the following witnesses:
• Legislative counsel
• The director of the Vermont Asylum Assistance Project
• An attorney from Vermont Legal Aid
• The chief superior judge
• Deputy Commissioner of the Department of Children and Families
• An alternate guardian from Bellows Falls

The vote in committee was 6-3-2.

H.98 clarifies a process that allows immigrant parents to identify trusted adults who can step in as temporary guardians if the parent is detained or deported. The parent’s children can get some comfort by knowing the person that would care for them in the event their parents are detained. This process helps ease traumatic separations or confusion in emergency situations.

It also avoids the necessity for DCF to take legal custody of the children in these situations. Under current law, some courts may grant petitions for temporary guardianships when a parent is detained or deported by ICE.  But some courts may not grant such petitions. H.98 clearly authorizes Vermont courts to approve Standby Guardianships so long as the criteria of the bill are met. H.98 provides needed clarity and consistency in our courts to help avoid unnecessary DCF custody.

And there are downsides to DCF custody in these situations. The Department’s focus is on taking care of children in abusive situations, not in situations where children are separated from their parents due to an adverse immigration action. In addition, once children have been placed in DCF legal custody, they cannot be released to an informal guardian or easily reunited with their parent in another country. 

DCF is fully supportive of H.98.

H.98 is centered on ensuring the best interests of children. It allows families some peace of mind, knowing that there is a path to put into place their plans to keep their children safe and in community care.

I ask for your support. 

My interview discussing the Session starts at about the 2:45 point in the linked episode of Under the Dome.