Pending Changes to School Funding

Changes are on the horizon for how we fund Vermont schools, changes that may result in a higher homestead tax rate in South Burlington. A task force is currently at work developing a plan to implement funding changes recommended in a 2019 report to the legislature. The legislature will consider the task force’s plan next year.

To begin with a brief overview of State education funding, Vermonters decide in local votes how much their schools will spend by approving or rejecting budgets proposed by their school boards. Most of the money for the approved local budgets comes from the State’s education fund, which consists of revenue from the sales and use tax, vehicle purchase and use tax, meals and rooms tax, lottery revenue, non-homestead property taxes, and homestead property taxes. To ensure that voters have a stake in how much a district is spending, the local homestead property tax rate is based on how much the district spends per pupil. The more a district spends per pupil, the higher its local homestead tax rate.

But not all pupils are counted equally in this calculation. The education funding system looks instead at weighted or equalized pupils. Weighting or equalizing pupils accounts for the fact that certain categories of students cost more to teach. Students with different learning needs and socioeconomic backgrounds require different types and levels of educational support to achieve equitable educational outcomes. Different educational supports, in turn, lead to different costs for different categories of students. For instance, it costs more, on average, to ensure that economically disadvantaged students or English language learners (ELL) meet education standards. Under the current system, these students are weighted as 1.25 pupils, which means that these students presumably cost 25% more to teach.

The 2019 study considered whether the current weighting factors, which were put in place over 20 years ago, accurately reflect the cost to educate certain categories of students. It found that there was scant empirical evidence to support the weights. Through a complex statistical analysis, it concluded that it is far more costly to achieve equivalent educational outcomes for students in poverty and ELL students than the system had assumed. The study therefore recommended that these students be given substantially higher weights than under current law. It also recommended adding population density (rurality) as a new weighting factor because it found that rural districts pay more to educate students.

By changing the weighting factors, districts with more impoverished or ELL students and districts with more rural schools would be able to spend more to achieve appropriate educational outcomes without significant changes in their homestead tax rates. Statewide, this would be a positive outcome, providing equitable education opportunities at an equivalent cost across all schools.

But there may be a downside. Due to the way the State’s school funding formula works, non-rural districts such as South Burlington with fewer students in poverty and fewer ELL students could find that their local homestead tax rates will need to be higher to maintain their current spending levels.

The task force will recommend how to transition to the new weights in a manner that eases the financial impact on school districts during the transition. It will also recommend ways to mitigate the impacts on residential property tax rates and to consider tax equity between districts. And the legislature could then amend the task force’s plan. So it is not yet clear what the impact will be on districts such as South Burlington.

I will be following the efforts of the task force to see how it addresses these and other concerns that I have regarding a transition to a new pupil-weighting system for our public education. My main concern is that our efforts to update the equalized pupil calculation may not translate to increased levels of spending in districts with higher needs, as intended, but will instead be used to reduce taxes. The changes must focus on ensuring that students in poverty and ELL students receive equitable educational opportunities so they can achieve appropriate educational outcomes.

A Step Forward on School Buildings

Students’ success depends on a variety of factors:  their aptitude, motivation, and morale as well as their attendance and alertness; supportive parents and community; quality teachers and administrators; and facilities that are safe, healthy, and designed for effective learning. Studies have shown that facilities in disrepair undermine students’ ability to retain and recall information. Inadequate heating, cooling, and ventilation adversely affect student performance, health, and attendance. Poor acoustics challenge students’ short-term memory and speech perception, as well as their relationships with their peers and teachers. Classrooms with limited natural light degrade student performance on standardized tests. And a poor learning environment does not just hurt students. Education facilities in disrepair with substandard air quality, inadequate lighting and acoustics, and spaces designed for outmoded instructional practices may cause low teacher morale and make it difficult to retain high quality, motivated instructors.

Investment in school infrastructure, in short, is an investment in improved educational outcomes. School districts throughout Vermont are, indeed, making those investments. Between 2008 and 2019, they issued approximately $211 million in bonds for school construction projects. In 2020, they planned and proposed an estimated $445 million in bonding for future school construction projects statewide. Over the past decade, the South Burlington district has spent approximately $750,000 annually for facility maintenance and improvement and also issued a $6 million bond for improvement projects. In 2020, after several years of evaluating its infrastructure, the district proposed a $209 million bond to build a new combined middle and high school. Voters rejected this proposal and the district continues to evaluate continuing facility needs.

The State used to provide financial assistance for school construction. But this aid, provided through the State’s bonding authority, has been suspended since 2007. In past Bienniums, I have sponsored bills to lift the moratorium on State school construction aid so that Vermont would no longer be the only state in the Northeast without a school construction program. Though these bills did not pass, they helped push the conversation to the forefront. Sometimes tackling significant problems takes more than one Biennium. And this year, the legislature took an important step to address the State’s school infrastructure needs.

After days of testimony, the House Education Committee passed H.446, which would eventually be signed into law as Act 72. The legislature found that “the backlog in the State’s school construction projects has resulted in unsafe and unhealthy learning environments and disparities in the quality of education, including between wealthier communities and communities in need across the State.” It is not surprising that many of Vermont’s school buildings, which were built decades ago, are aging and in urgent need of repair.

The bill’s stated goal is “to address the needs and conditions of the State’s school buildings in order to create better learning environments for Vermont’s students and increase the equity in the quality of education around the State.” The work begins with an update of the State’s school facility standards and a statewide assessment and inventory of all school buildings to inform the Agency of Education and legislature on facilities’ needs and the costs to meet those needs. From this inventory, the legislature will be able to prioritize schools with the highest needs for future school construction funding. By January of 2023, the Secretary of Education will provide to the legislature an analysis of the challenges and opportunities of State funding for public school construction projects and recommendations for a funding source for such projects.

Not all aid for infrastructure improvements will need to wait for this planning process to conclude and a funding source to be identified. For the short term, the bill establishes a grant program for renewable and efficient heating systems administered by Efficiency Vermont for the improvement or repair of existing systems. Also, to help ensure that the school buildings do not harm the health of their occupants, the bill requires each public and independent school in the State to perform radon measurements by June 2023. Additional time for this testing is granted to schools that are in the process of implementing indoor air quality improvement projects. Act 72 takes the first step towards meeting the goal of ensuring that our school buildings are well-maintained, energy-efficient, safe, and healthy places that meet the needs of 21st century education and technology.

End of Session Report

I am honored to represent District 7-1 in the important work that has been accomplished in the virtual State House. The following addresses some of the legislature’s accomplishments this session, including those of the Judiciary Committee, on which I sit.

I. COVID RECOVERY

The legislature is creating an equitable recovery plan to rebuild the economy in all 14 counties. Federal funding over the past year gives Vermont a unique opportunity to make thoughtful investments over several years that advance our priorities and accelerate recovery in every corner of the State. Our current FY2022 budget and American Rescue Plan Act investments prioritize:

● Strengthening systems and services that increase mental and physical health and social well-being.

● Expanding broadband and connectivity to facilitate remote work, telehealth, online learning, and small business creation.

● Investing in childcare to increase access, affordability, and quality for working families and raise wages for early learning professionals.

● Increasing affordable housing stock for low- and middle-income Vermonters; transitioning homeless Vermonters to permanent housing with services.

● Addressing climate change by curbing emissions, electrifying transportation, and  weatherizing more homes.

● Investing in higher education and workforce development to prepare Vermonters for 21st century jobs within the State.

● Advancing clean water and the health of our lakes, rivers, wetlands, groundwater, and drinking water systems; ensuring a toxics-free environment that protects our natural resources.

● Fostering racial and social equity in our investments; dismantling structural inequities that limit the economic opportunity and mobility of Black, Indigenous, and Persons of Color (BIPOC), LGBTQIA+, women, people with disabilities, New Americans, and vulnerable Vermonters.

Investments to Ensure COVID Recovery

In the Spring of 2020, Vermont received $1.25 billion in federal CARES funding. These

dollars provided relief for Vermonters in desperate need, including individuals, families, communities, and local businesses in all 14 counties. These dollars were also key to stabilizing critical systems in healthcare, human services, and childcare.

Spring 2021 has brought Vermont $1.052 billion in federal American Rescue Plan Act (ARPA) funds, and once again the legislature is focused on leaving no one behind. To the extent allowed by federal regulation, Vermont’s use of ARPA dollars is focused on the well-being, present and future, of the State’s human infrastructure.

This investment is apparent in the allocations of ARPA funding in the FY2022 State budget, a total of $599.2 million. Included, for instance, is $109.2 million targeted to economy, workforce, and communities; $99 million to housing; and $51 million to rental assistance. The State has also allotted $150 million for broadband investments and $52 million for technology modernization, as well as $50 million for climate action and $115 million for clean water investments. ARPA dollars not “spoken for” are still available for use when we have a better sense of ongoing or unanticipated needs. This flexibility is permitted by ARPA, as we have through FY2025 to use these funds.

Business & Workforce Grant Programs Launched

To get relief to Vermonters quickly, the legislature passed Act 9 in early April, a $97.5 million pandemic relief bill that invested federal funds before the end of the session to jumpstart the State’s recovery. This bill created $10.5 million in Economic Recovery Bridge Grants, targeting new and small businesses not initially eligible for assistance. Act 9 also allocated $500,000 to the EMBRACE Grants for Micro Business program, providing up to $5,000 to low- and moderate-income Vermonters with businesses under five employees and less than $25,000 in annual revenue. Finally, $8.2 million was approved for the Vermont State Colleges, UVM, and VSAC to provide up to two free classes to adult Vermonters looking to boost job skills or change careers, and to all 2020 and 2021 high-school grads, as well as to train more licensed nurses (LPNs).

Building Back Better: Statewide Infrastructure

The legislature passes a Capital Bill in the first year of each biennium. This is where we make long-term investments in buildings and infrastructure using money from state-issued bonds. This year’s Capital Bill, Act 50, invests $123 million in a range of projects critical both to pandemic recovery and to the future of Vermont, including courthouse renovations and HVAC, clean water, State park upgrades, State office building maintenance, mental health facilities, and affordable housing.

The legislation also expands the Building Communities Grant Program, which invests in local economies and helps communities preserve historic buildings, improve ADA accessibility, and address fire safety in recreational, educational, cultural, and human service facilities. Municipalities, schools, libraries, and nonprofits are encouraged to apply.

Universal Access to Broadband

The COVID-19 pandemic highlighted how essential high-speed internet is to daily life. We use the internet to go to work, attend school, see a doctor, interact with the government, and connect with our communities and the world at large. Unfortunately, the promise of modern communications has bypassed too many rural communities in the State with twenty-five percent of Vermonters still lacking access to broadband.

Act 71 dedicates $150 million of the federal stimulus funds to the construction of broadband infrastructure in the most underserved parts of the State. (The legislature anticipates spending a total of $250 million for broadband deployment over the next three years.) The bill includes funding for pre-construction planning and design costs, grants for building broadband infrastructure to unserved and underserved areas, and a new broadband workforce development program.

Childcare: Essential to Economic Recovery

The pandemic highlighted the importance of available and affordable childcare to support Vermont’s children, families, communities, and economy. Act 45 takes significant steps towards reforming our childcare system. Not only does Act 45 make childcare more affordable, it removes barriers to access, ensures fair wages for providers, establishes workforce development programs, and creates a study to identify future revenue sources for a more securely-subsidized universal childcare system.

By increasing access and affordability for Vermont’s families, we help parents stay employed and contribute to their local economies. By increasing childcare workers’ wages, we can support and grow our workforce of early care and learning professionals. By prioritizing the well-being and development of our children, we are giving our youngest Vermonters a head start to success.

II. PROMOTING EQUITY

Expanding Office of Racial Equity

Before the 2021 session, legislators heard from constituents that Vermonters were not dealing with one pandemic, but three: COVID-19, climate, and systemic racism. In addressing systemic racism, one of the glaring needs identified was bolstering personnel at the State’s Office of Racial Equity. When this office was created and Xusana Davis hired as Director, the legislature did not know the extent of how widely its services would be used and requested.

The workload has continued to grow, with the Director being flooded by requests to sit on committees and boards, meet with Vermonters, review policies, and offer expertise to all three branches of State government. It became clear that the needs of the Office were far greater than one person could handle. To help, two positions were added to the Office of Racial Equity and passed in the budget, effective July 1, 2021.

Promoting Healthcare Equity

The Department of Health’s 2018 State Health Assessment reveals that not all Vermonters have an equal opportunity to be healthy. From higher morbidity to access to health care, statistics show significant disparities across the Green Mountain State based on race and ethnicity, sexual orientation, gender identity, and disability status. Act 33 begins the long-term process of breaking down these barriers. The bill creates a Health Equity Advisory Commission made up primarily of Vermonters whose lives have been impacted by historic inequitable treatment in accessing health care, while empowering them to develop an Office of Health Equity by no later than January 1, 2023.

Healthcare for Undocumented Children and Pregnant Women

Act 48 provides immediate increased access to healthcare for income-eligible children and pregnant women, regardless of their immigration status, by establishing a Dr. Dynasaur-like healthcare program. This coverage begins on July 1, 2021. These undocumented women and children often work or live with their families on the farms and dairies that are essential to our Vermont economy. Because of fear that their immigration status will be revealed, confidentiality is critical. We know that prenatal care and medical care in childhood can improve health outcomes over a lifetime, as well as reduce costs for both education and healthcare systems.

Promoting Economic Opportunity for BIPOC Businesses

This session, legislators embraced their responsibility to address racial wealth disparities and begin addressing the historical impacts of economic exploitation and exclusion from economic opportunity. The legislature engaged BIPOC business and community leaders across the State to inform and develop legislation to create the BIPOC business development project detailed in H.159. It invests $150,000 in a process to be driven by the BIPOC community and may include the creation of a minority business development center or authority. This legislation will also provide technical support for BIPOC businesses in procurement of State contracts, improve language access and cultural competency practices within State economic development programs, and strengthen State data collection to better serve the variety of identities represented within the BIPOC community. H.159 did not itself pass, but these provisions were incorporated into the budget bill.

Equitable Access to Transportation

In the transportation sector, inequity takes any forms, from not having “a seat at the table” when large transportation projects are planned to not being able to access or afford private or public transportation. This year’s Transportation Bill addresses inequity by requiring a comprehensive analysis of Vermont’s transportation programs. The resulting report will create an equity framework that will be used to increase mobility options, reduce air pollution, and enhance economic opportunity for Vermonters in communities that have been historically underserved by the State’s transportation programs. In addition, millions of dollars in incentives have been appropriated to help Vermonters who may have to choose between filling up the flivver or filling up the fridge. These income-qualifying programs include “Emissions Repair” (to help pay for repairs needed to pass vehicle inspection), “Replace Your Ride” (an incentive to turn in an inefficient vehicle), and “Mileage Smart” (to help purchase a used vehicle). And for those using public transit, Zero Fare bus transportation continues through June 2022.

Racism as a Public Health Emergency

The COVID-19 pandemic has magnified the severe inequities in our public health systems. For example, while Black residents comprise only 1 percent of Vermont’s population, they accounted for almost 5 percent of the State’s COVID-19 cases in 2020.

Highlighting a strong body of evidence, J.R.H.6 acknowledges systemic racism as a direct cause of the adverse health outcomes experienced by BIPOC communities in Vermont. It also commits our State to the “sustained and deep work of eradicating systemic racism throughout the State, actively fighting racist practices, and participating in the creation of more just and equitable systems.”

J.R.H.6 was drafted through the collaboration of impacted communities, and gained the broad support of the legislature and the Vermont Department of Health. J.R.H.6 is just one important step in an ongoing effort to create equitable systems that promote justice, dignity, and health for all Vermonters.

Legislature Apologizes for Eugenics

In J.R.H.2, the Vermont legislature acknowledges and apologizes for sanctioning

and supporting eugenics policies and practices through legislation that led to forced family separation, sterilization, incarceration, and institutionalization for hundreds of Vermonters in the early 20th century. These policies targeted the poor and persons with mental and physical disabilities, as well as individuals, families, and communities whose heritage was documented as French-Canadian, French-Indian, or of other mixed ethnic or racial composition, and persons whose extended families’ successor generations now identify as Abenaki or as members of ther indigenous bands or tribes.

The traumatic ripple effect of these State led actions has been felt through generations and has had real and tangible effects on the lives of Vermonters today. The resolution does not undo the harms of the past, but it marks an essential step towards a future of accountability and reconciliation for the generations of Vermonters who were harmed by State-sanctioned violence. The resolution recognizes that further legislative action should be taken to address the continuing impacts of eugenics policies.

III. CRIMINAL JUSTICE

Addressing Sexual Assault in Vermont

The legislature passed Act 68, which revises and clarifies our laws addressing consent to sexual activity, including the impact of alcohol consumption. The law will clarify when consent to sexual activity has not or cannot be given. The bill also creates a Campus Sexual Harm Task Force to confront the high number of sexual assaults that take place on our college campuses.

Eliminating the “Trans Panic” Defense

In some states, courts have allowed defendants to rely on a “trans panic” defense to have assault charges against them reduced or dismissed altogether. The defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent action against the victim. Act 18 prohibits the use of such a defense in Vermont.

Penalties for Hate-Motivated Crimes

Act 34 updates Vermont’s response to crimes motivated by hate, providing an enhanced penalty that a prosecutor can charge in addition to the underlying crime. To apply the enhancement, the law had provided that a prosecutor must prove that a crime was maliciously motivated by the victim’s race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability, sexual orientation, gender identity, or perceived membership in any such group. Act 34 eases the burden for prosecutors by providing that the person need not be maliciously motivated; rather the person need be simply motivated in whole or in part by the victim’s inclusion in one of the protected categories.

Clarifying Police Use of Force

Last year, the legislature enacted Acts 147 and 165 that together provided statutory standards for police use of force, including lethal force. This year, the legislature passed Act 27, which clarified that law enforcement may use chokeholds only when lethal force is justified. Under the law, before use of a chokehold or other deadly force can be justified, its use must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

Mental Health and Criminal Justice

The legislature passed Act 57, which clarifies provisions related to court proceedings in criminal cases that address either the defendant’s sanity at the time the offense was committed or the defendant’s competency to stand trial for the offense. Under current law, if an individual is found not guilty by reason of insanity or incompetent to stand trial and is also a danger to self or others, the person is committed to the custody of the Department of Mental Health for treatment. That law provides no way for the crime victim to be made aware when the person returns to the community. Act 57 closes that gap by creating a system of victim notification in such cases. In addition, the bill creates a forensic working group to identify gaps in mental health coverage and procedures in Vermont’s criminal justice system and to make recommendations as to whether a new forensic treatment facility is necessary to house individuals who have been committed to the custody of the Department of Mental Health.

Reforming Vermont’s Correctional System

Recognition of the need for reform and culture-level change in the criminal justice and corrections systems has been growing for years. “Warehousing” offenders does not help them prepare to reenter society successfully. Vermont is committed to building a criminal justice system that is equitable and rehabilitative, where State employees and the incarcerated Vermonters in their care are safe and treated with dignity and respect.

This year, the legislature passed Act 56 to address sexual misconduct and systemic issues within the Department of Corrections (DOC) that came to light at the women’s facility in South Burlington. Act 56 establishes an independent Corrections Monitoring Commission and a Corrections Investigative Unit; expands State law to criminalize sexual contact between DOC employees and anyone under the department’s supervision; and requires that DOC work with the Criminal Justice Council to develop a proposal for training standards and a process for certification and decertification of correctional officers.

New Women’s Correctional & Reentry Facility in Planning Stages

Changing the culture of Corrections is not only a matter of programming, it is also a matter of facilities. Most of Vermont’s six regional correctional facilities were designed with a mindset that is now outdated and built decades ago. Most require significant repair and maintenance. In particular, the women’s Chittenden Regional Correctional Facility is in dire need of replacement to better serve women and their unique reentry needs.

The Capital Bill includes an initial $1.5 million investment in planning and program design for a new women’s correctional and reentry facility or facilities. In summer and fall 2021, the Department of Corrections (DOC) will hold focus groups with key stakeholders, including correctional officers and other staff, inmates, and outside service providers. DOC will work with Buildings and General Services to develop a proposal for size, location, and preliminary design that the legislature will review during the 2022 session.

IV. ENVIRONMENTAL PROTECTION

Prohibiting “Forever Chemicals” from Consumer Products

Many Vermonters know that polyfluoroalkyl (PFAS) chemicals were found to contaminate drinking water in Bennington and North Bennington in 2016. PFAS are known as “forever chemicals” because they accumulate within our bodies over time and do not biodegrade in the environment. This exposure leads to a number of adverse health effects, including an increased risk of cancer. Research is showing that even those who do not live in a contaminated area may be exposed to PFAS because these chemicals are used in many consumer products.

Rather than limiting our solutions to downstream clean-up, Act 36 addresses this issue upstream by preventing these toxic substances from entering our State. It prohibits the manufacture and sale of PFAS from four products that pose the highest risks to Vermonters’ well-being: food packaging, fire extinguisher foam and firefighting PPE, rugs and carpets, and ski wax. Act 36 takes comprehensive steps to protect Vermonters from toxic chemicals and prevent future harm to the environment and public health.

Updating Vermont’s Bottle Bill

An update to Vermont’s 50-year-old bottle bill passed the House this session. H.175 will expand the types of containers subject to deposits, which will now include water bottles, wine bottles, hard cider and tea containers, and others. This bill will also increase the handling fees paid to vendors, which will encourage the opening of more redemption centers. Containers recycled via the deposit system are cleaner and more valuable than if they go through the general recycling stream, and a greater percentage of them will be made into new containers. Glass, in particular, is much easier to manage as a recycled material if it goes through redemption centers versus a curbside bin. The bill has not yet passed the Senate.

New Agricultural Innovation Board Created

Act 49 creates the Agricultural Innovation Board (AIB). It will tackle areas of concern such as pesticide use and how to reduce it, and how to transition from agricultural use of plastics to more biodegradable materials. Vermont is the only state that has a Seed Review Committee that allows for the review of the seed traits of a new genetically engineered seed proposed for sale, distribution, or use in the State. The legislature created this committee last biennium in response to the use of Dicamba (a pest-controlling herbicide) in other parts of the country. The AIB’s approach will be a more holistic approach to soil health and pesticide use.

Steering Vermont Transportation Into the Future

For a century, the word “transportation” in America has been virtually synonymous with the word “car.” And not just any car, but cars using an internal combustion engine (ICE). This year, the legislature worked on several bills that recognize and embrace that change is here, driven by customer demand and environmental concerns. The Transportation Bill and FY2022 State Budget appropriated millions of dollars for incentives to help Vermonters shift gears from ICE vehicles to plug-in hybrid electric vehicles (PHEVs) and battery electric vehicles (BEV). To make sure Vermonters can “fill up” their new rides, support is also set aside for additional public charging stations. Don’t want to drive? Sign up soon for $200 off an electric bike. And while electrifying our transportation system saves Vermonters money and reduces greenhouse gas emissions, the transportation transformation is best approached comprehensively. As such, funds were also directed to address stormwater and improve water quality, to construct bicycle and pedestrian facilities as well as Park and Rides, and to support the growth of carpools and vanpools.

V. EDUCATION

A Step Forward on School Buildings

Built decades ago, it’s no surprise that many of Vermont’s school buildings, including our South Burlington schools, are aging and in urgent need of repair. Act 72 is an initial step to address the problem. The work begins with an update of the State’s school facility standards and a statewide conditions inventory and assessment for all school buildings. The bill also establishes a renewable and efficiency heating systems grant program administered by Efficiency Vermont and requires each public and independent school in the State to perform radon measurements by June 2023. Additional time for testing is granted to schools in the process of implementing indoor air quality improvement projects. The long-term goal is to make sure that our school buildings are well-maintained, energy-efficient, safe, and healthy places that meet the needs of 21st century education and technology. Unfortunately, a funding source to upgrade our school buildings has not yet been identified.

Community Schools Pilot Program

As schools across Vermont focus on pandemic recovery and re-engagement, Act 67 invests $3.3 million in a demonstration grant program that will allow eligible districts to explore the innovative “community schools” model. Sometimes known as full-service schools, community schools help kids and families access vital services such as healthcare, mental health counseling, or help with food or housing, often right in the building. They serve as resource hubs that provide a range of accessible, well-coordinated, and culturally inclusive supports and services. Now gaining traction across the country, community schools tackle head-on the challenging and complex out-of-school barriers, like poverty and hunger, that hold so many of our students back. They help close the achievement gap for low-income students, special education students, BIPOC students, and English language learners, and improve student outcomes ranging from attendance and academic performance to graduation rates. The bill also kick-starts a grant program to help schools buy more food that’s grown or produced in Vermont, and creates a task force with the goal of achieving universal school lunches by the 2026-2027 school year.

Task Force to Implement Pupil Weighting Factors

In 2019, a team of UVM-led researchers delivered an extensive report on Vermont’s “weights,” the numeric factors used to account for the varying costs of educating different categories of students—for example, English language learners or children from economically deprived backgrounds. Act 59 establishes a task force that will work over the summer to develop an implementation plan, a roadmap the legislature will use next session in considering how to integrate the new recommended weights into our complex education funding formula. The weights have a profound impact on how we calculate equalized pupils, which in turn affects taxing capacity from district to district. The report, due in December 2021, will also consider the excess spending threshold, how we calculate poverty for the purposes of school finance, and other factors intertwined with our unique school funding system.

IV. OTHER ACCOMPLISHMENTS

Preserving Public Pensions System for State Employees & Teachers

The Legislature focused this session on putting Vermont’s public pension system on a path towards long-term sustainability, so that teachers, troopers, and all State employees can rely on a well-funded, solvent system when they retire. Legislators are balancing commitments – one to State employees and teachers and another to Vermont taxpayers – in the face of a $5.6 billion unfunded liability that will continue to grow exponentially without action.

Act 75 engages more stakeholder voices in the process. The legislation focuses on governance changes that will amend the Vermont Pension Investment Commission to include more independent, financial expertise. It also established the Pension Benefits, Design & Funding Task Force to meet this summer with a “report-back” to the legislature with recommendations for putting the retirement systems on a sustainable path.

The legislature has reserved $150 million of General Fund dollars (freed up by ARPA dollars), along with a separate annual payment of $316 million, for a total investment this year of $466 million. This amount is a massive commitment from the legislature in a single year. Resolving this pension crisis in the short term with robust participation from all stakeholders is the fair and responsible thing to do for all concerned.

Increasing Access for Voters

Universal Vote-By-Mail was a great success during the 2020 General Election, contributing to record turnout even during a pandemic of a 74 percent participation rate. It expanded voter access and encouraged increased participation in our democratic process. Act 60 continues the Vote- By-Mail program, adds other important election measures, and counters the prevailing trend across the U.S. where state legislatures are curtailing voter access with more restrictive election laws.

Harm Reduction Through Buprenorphine

In addition to the COVID-19 pandemic, Vermont has been suffering from an epidemic of fatal drug overdoses. With 157 opioid-related deaths, 2020 was one of Vermont’s deadliest years for overdose on record. Almost all of these deaths were accidental, and the vast majority (88%) involved fentanyl, an extremely potent opiate that, unbeknownst to the user, is mixed with heroin. Use of buprenorphine offers a safer alternative for people living with opioid use disorder. Buprenorphine reduces the risk of relapse for people in recovery by blocking opioid cravings and reducing the likelihood of fatal overdose from fentanyl.

There are a number of barriers to Vermonters receiving prescribed buprenorphine, however, including geographic distance from a clinic, lack of transportation or insurance coverage, inconvenient clinic hours, and other cumbersome requirements to maintain a prescription. In response to the urgent need to reduce harm from opioid use, Act 46 removes criminal penalties for possession of non-prescribed buprenorphine that is less than a two-week supply. This legislation will save lives by supporting Vermonters in the management of their substance use disorders, encouraging them to seek safer alternatives and begin formal treatment.

Legislative Climate Action

Water wells going dry in parts of Vermont due to an ongoing drought. A shortened sugaring season. Recurring annual algae blooms as Lake Champlain and other State bodies of water become progressively warmer.

These all serve as reminders that Vermonters need to continue to do their part in addressing climate change. The choices and actions of individuals are important to reduce carbon emissions. The choices and actions of the State’s legislature and Governor are also critical to address the challenge. 

At the State level, last year the Vermont legislature passed the Global Warming Solutions Act (GWSA). This Act creates legally binding greenhouse gas emission reduction targets. It requires the State to reduce greenhouse gas pollution to 26% below 2005 levels by 2025, to 40% below 1990 levels by 2030, and to 80% below 1990 levels by 2050. The law created a Vermont Climate Council and charged it with developing a Climate Action Plan by December 1 of this year. That Plan must lay out an implementation strategy for the transformative change required by the statute. The Council must consider methods to reduce greenhouse gas emissions, opportunities for long-term carbon sequestration, and ways to enhance the resilience of Vermont’s communities and ecosystems to weather events caused by climate change. 

The legislature continued its work on climate this year. In the budget, it is supporting the work of the Climate Council and also investing $50 million on climate action. Those funds will be used, in part, to weatherize homes and support renewable energy projects.  

It also passed legislation that establishes Vermont as a leader in fighting climate change in the transportation sector. For a century, the word “transportation” in America has been virtually synonymous with the word “car.” And not just any car, but cars using an internal combustion engine. This year, the legislature worked on several bills that recognize and embrace that change is here, driven by consumer demand and environmental concerns. The Transportation Bill and FY2022 State Budget appropriated millions of dollars to triple incentives to help Vermonters shift gears from internal combustion engine vehicles to plug-in hybrid electric vehicles and battery electric vehicles. An individual earning less than $50,000 is now eligible for incentives of $3000 for a plug-in electric hybrid or $4000 for an electric vehicle. For individuals with incomes of $50,000 to $100,000 or families with incomes of up to $125,000, the incentives are $1500 and $2500.

To make sure Vermonters can “fill up” their new electric rides, the legislature also set aside support for additional public charging stations. Additionally, it provided grants for charging stations at multi-unit apartment buildings. And for those who would rather ride than drive, the legislature clarified regulations for electric bikes and provided an incentive program to encourage individuals to purchase this mode of transport.

 While electrifying our transportation system saves Vermonters money and reduces greenhouse gas emissions, the transportation transformation is best approached comprehensively. So legislation provided funds to construct bicycle lanes and safer streets for pedestrians and to expand Park and Ride facilities to support the growth of carpools and vanpools. The legislature also extended for a year a program providing fare-free transit on buses statewide and continued its support for establishing direct rail from Burlington to New York City.                 There is, of course, much more that needs to be done, both at the personal and State level, to do our part to address the threat of climate change.

Judiciary Committee Session Accomplishments

            The first half of the 2021-22 biennium concluded last Friday. Despite legislating remotely, the General Assembly accomplished a great deal. The House Judiciary Committee, on which I serve, had a busy session, moving several important bills through the legislative process, some of which I highlight here.  

            Addressing Sexual Assault in Vermont:  The legislature passed H.183, which revises and clarifies our laws addressing consent to sexual activity, including the impact of alcohol consumption. The law will eliminate confusion as to when consent to sexual activity has not or cannot be given. The bill also creates a Campus Sexual Harm Task Force to confront the high number of sexual assaults that take place on our college campuses.

Eliminating the “Trans Panic Defense”:  In some states, courts have allowed defendants to rely on a “trans panic defense” to have assault charges against them lessened or dismissed altogether. The defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction towards the victim.  Act 18 prohibits the use of such a defense in Vermont.

Penalties for Hate-motivated Crimes: Act 34 updates Vermont’s response for crimes motivated by hate, which provides an enhanced penalty that a prosecutor can charge in addition to the underlying crime. To apply the enhancement, the law had provided that a prosecutor must prove that a crime was maliciously motivated by the victim’s race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability, sexual orientation, gender identity, or perceived membership in any such group. Act 34 eases the burden for prosecutors by providing that the person need not be maliciously motivated; rather the person need be simply motivated in whole or in part by the victim’s inclusion in one of the protected categories.

Clarifying Police Use of Force: Last year, the legislature enacted Acts 147 and 165 that together provided statutory standards for police use of force, including lethal force. This year, the legislature passed Act 27, which clarified that law enforcement may use chokeholds only when lethal force is justified. Under the law, before use of a chokehold or other deadly force can be justified, its use must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

Mental Health and Criminal Justice:  The legislature passed S.3, which clarifies provisions related to court proceedings in criminal cases that address either the defendant’s sanity at the time the offense was committed or the defendant’s competency to stand trial for the offense.  Under current law, if an individual is found not guilty by reason of insanity or incompetent to stand trial and is a danger to self or others, the person is committed to the custody of the Department of Mental Health for treatment.  Current law provides no way for the crime victim to be made aware when the person returns to the community. S.3 closes that gap by creating a system of victim notification in these cases.  In addition, the bill creates a forensic working group to identify gaps in mental health coverage and procedures in Vermont’s criminal justice system and to make recommendations as to whether a new forensic treatment facility is necessary to house individuals who have been committed to the custody of the Department of Mental Health.

Punishing Sexual Exploitation of Children: Act 29 makes simulation of sexual conduct with a child illegal. Before Act 29 became law, explicit depictions of sexual exploitation of children were illegal only if physical contact is shown. Material that suggested sexual exploitation, but where the child and adult are inches apart or where the camera angle is such that physical contact is implied but not visible, was not against the law. Act 29 makes such conduct a crime. The Judiciary Committee worked on additional bills that the legislature passed, including Act 26 repealing the statute of limitations for civil actions based on childhood physical abuse and H.87 establishing a classification system for criminal offenses.

Mental Health in the Criminal Justice System

The following is the report that I delivered on the floor of the House for Senate bill S.3.

S. 3 contains a number of provisions related to court proceedings in criminal cases that address either: (1) the defendant’s sanity at the time the offense was committed; or (2) the defendant’s competency to stand trial for the offense.

The first point to understand about S.3 is that while the insanity defense and a defendant’s competency to stand trial both concern a criminal defendant’s mental health status, the two concepts are very different. 

The insanity defense concerns the defendant’s mental health status at the time the offense was committed. A person is not guilty by reason of insanity if, as the result of a mental illness, the person either could not understand that their conduct was criminal or could not conform their conduct to the requirements of the law.  It is a complete defense if a person is found not guilty by reason of insanity; the person is not guilty and cannot be charged with the crime again.

A defendant’s competency to stand trial is different. It concerns the defendant’s mental health status at the time of the trial, not at the time the offense was committed.  And the standard is different. A defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense.  Also, unlike the insanity defense, a person found incompetent to stand trial can be brought to trial for the offense later, after the person regains competency. 

Current law describes in great detail the court procedures related to both the insanity defense and competency to stand trial.  S.3 proposes several amendments to these procedures.  I’ll explain the first three sections of the bill chronologically, in the order in which the procedures occur when sanity or competency are at issue.

Section 1 of S.3 can be found on page 2417 of today’s calendar.  This section deals with the psychiatric examinations that must occur when the question of the defendant’s sanity or competency has been raised in a criminal proceeding. There are separate examinations, one for sanity at the time of the offense and one for competency to stand trial. The current statute requires that both examinations take place, so there must be an evaluation of both the defendant’s sanity and the defendant’s competency.

Because sanity and competency are two different questions, however, it is common for only one of them to be raised in a particular case.  Subsection (a) rewords the statute to make clear that there may be examinations that evaluate the defendant’s sanity, or the defendant’s competency, or both.

Subdivision (c)(1) clarifies that the examinations will be conducted either by: (1) a psychiatrist (if the person‘s insanity or incompetency is the result of a mental illness); or (2) a psychiatrist and a psychologist (if the person‘s insanity or incompetency is the result of a developmental disability).  

This subdivision also addresses who receives the report after the examination is completed. Currently, the report goes to the State’s Attorney and the respondent’s attorney if the respondent is represented by counsel.  The bill expands the distribution list to include the respondent, the Commissioner of Mental Health and the Department of Disabilities, Aging, and Independent Living, or DAIL.

Subdivision (c)(2) addresses those cases where issues have been raised regarding both the defendant’s sanity at the time of the offense and the defendant’s competency to stand trial, and the court has ordered an examination on each one. In these cases, Subdivision (c)(2) requires that an examination of the defendant’s sanity should only be undertaken if the defendant is first found competent to stand trial, unless the defendant requests that the examinations occur concurrently. This language follows model language established by the American Bar Association.

If the sanity evaluation does not occur at the same time as the competency evaluation, the provision requires the psychiatrist or psychologist to make a reasonable effort to collect and preserve any evidence necessary to form an opinion as to sanity. If the defendant does regain competency to stand trial in the future, a sanity evaluation may then be required to determine whether the defendant may be not guilty by reason of insanity.  This provision ensures that, at that time, necessary evidence has been preserved for the sanity evaluation.

Section 2

In Section 2, we move to the next step of the proceedings.  This section concerns the court proceeding required after a defendant has been found either to have been insane at the time of the offense or to be currently incompetent to stand trial.

After such a finding, the court holds a hearing to determine whether the person is a danger to self or others.  If a danger to self or others, the person must be committed to the Department of Mental Health for treatment. If the person‘s insanity or incompetency is the result of a developmental disability and the person is a danger to self or others, the person is committed to the Department of Aging and Independent Living.

Currently, the statute provides that the person’s criminal defense counsel continues to represent the person at the hearing regarding whether they are a danger to self or others.  But this hearing is no longer a criminal proceeding to determine whether the defendant is guilty of a crime.  It is a separate commitment proceeding to determine what, if any, treatment the person needs to protect the safety of the person and the public. An attorney assigned from the Defender General’s Office is not an expert in a such a proceeding.  Accordingly, section 2 provides that the person is entitled to have counsel appointed from Vermont Legal Aid, whose attorneys have significant experience in representing people in such hearings.  A person who would prefer to be represented by a private attorney can still choose to do so.

Section 2 also provides that the Department of Mental Health and, if applicable the Department of Aging and Independent Living, are entitled to appear at this particular proceeding and call witnesses.

Section 3

Moving to Section 3 of the bill and moving along in the chronology of the proceedings.

If the court does find the person is a danger to self or others and commits the person to the custody of the Department of Mental Health for treatment, current law provides no way for the crime victim to be made aware when the person returns to the community. Section 3 closes that gap by creating a system of victim notification in these cases.  

Under Section 3,the victim notification requirement applies if a person has been committed to the custody of the Department of Mental Health after either (1) having been found not guilty by reason of insanity or (2) having been found incompetent to stand trial. Notification is not required if the criminal case has been dismissed because these are typically minor matters such as shoplifting where notice to the victim is not necessary.

When notice to the crime victim is required, the Commissioner of Mental Health must provide it whenever one of 3 circumstances occurs.

First, the Commissioner must provide notice at least 10 days before the person is discharged from the custody of the Department of Mental Health, or at least 10 days before the person is discharged to the community for treatment under what is called an order of non-hospitalization.

Second, notice is required at least 10 days prior to the expiration of a commitment order if the Commissioner decides not to seek continued treatment of the person.  This ensures that notice is provided even when there has not been a formal discharge if the person will be returning to the community.  

And third, notice is required any time the person elopes from the custody of the Department of Mental Health. “Elope” is the term used in the mental health statutes for when a person escapes from the Department’s custody.

If notice of the action is required, the Commissioner must notify the State’s Attorney of the county where the prosecution originated, or the Attorney General if that office prosecuted the case.  The State’s Attorney or Attorney General must then provide notice of the action to any victim of the offense who has not opted out of receiving notice.

Section 4

Turning to Section 4 of the Bill.

When a defendant provides notice that sanity at the time of the offense is an issue in the case, Vermont Rule of Criminal Procedure 16.1 permits the prosecution to ask the court to allow its own psychiatrist or other expert to conduct a mental examination of the defendant.  However, the Rule does not permit the prosecution to request its own exam when the defendant’s competency to stand trial is at issue.  Section 4 does so, adding new language that permits the prosecution to ask the court to allow its own psychiatrist to examine the defendant when the court-ordered examiner has found the defendant incompetent to stand trial.

I will briefly review sections 5 through 7.  Your Judiciary Committee worked closely with the Health Care Committee on these sections of the bill and they reflect recommendations from that Committee as well as the Committee on Corrections and Institutions.  In my report, I will only briefly summarize these sections. After my report on behalf of the Judiciary Committee and after the report of the Committee on Appropriations, the Representative from Northfield will provide further details regarding these sections.

Section 5 requires the Department of Corrections and the Department of Mental Health to jointly submit a report to the General Assembly by January 1, 2022.  The report must contain an inventory and evaluation of the mental health services provided by the entity with whom the Department of Corrections contracts for health care services.

Section 6 requires the Department of Mental Health to convene a Forensic Care working Group of interested stakeholders to provide recommendations on issues related to mental health and the criminal justice system.

Section 7 adds two members to the Joint Legislative Justice Oversight Committee, the first of whom is a member of the House Committee on Health Care and the second of whom is a Senator chosen at-large.

Section 8 provides that the act shall take effect on July 1, 2021.

The Committee heard from the following witnesses:

 General Counsel, Department of Mental Health 
 Impacted Citizen, Bennington 
 Training Coordinator, Team Two, Vermont Care Partners, which is an organization that provides training for law enforcement and mental health crisis workers.
 Member from Northfield 
 Member from Bennington
 Executive Director, Center for Crime Victim Services 
 Legislative Counsel, Office of Legislative Counsel 
 Deputy Commissioner, Department of Mental Health 
 Chief Superior Judge, Vermont Judiciary 
 Impacted Citizen, Colorado 
 Director of Mental Health Law Project, Vermont Legal Aid 
 Defender General, Vermont Defender General’s Office 
 Founder, MadFreedom
 President, Vermont Medical Society 
 Deputy Director, Vermont Network Against Domestic & Sexual Violence 
 Supervising Attorney, Disability Rights Vermont 
 Assistant Attorney General, Vermont Attorney General’s Office 

Addressing State Pension Liabilities

The pensions of Vermont’s teachers and public employees are ailing. In the 1990s and early 2000s, the State failed to contribute required funds into the pensions and the 2007-09 recession harmed the pensions’ return on investments. Over the past 13 years, the Vermont legislature has been contributing extra funds into the pensions to make up for the earlier underfunding and the suppressed investment returns.  Nevertheless, the pensions are still deficient, as we learned earlier this year when the State Treasurer produced a report showing that the systems are in much worse shape than we thought. 

The two pension plans do not have enough assets to pay for the expected costs of the retirement benefits they must pay out in the future.  The gap between the amount of future retirement benefits that must be paid and the value of the assets in the plan is called the unfunded actuarial accrued liability. This gap has grown substantially in recent years and it is expected to worsen in the future unless action is taken.

Projections from earlier this year show that the unfunded liability for the teacher and state employee pensions will grow by another $604 million just in the coming year, bringing the total unfunded liability to nearly $3 billion.  The state employees’ pension is 34% underfunded while the teachers’ pension is 49% underfunded. Plans that approach a 50% funding level are considered to be in critical condition. To address this increasing shortfall, the State’s contribution to the fund has substantially increased.

Every year, the State contributes funds to the pension plans. The amount contributed is determined by actuaries using assumptions regarding current and future demographics such as the ratio of current employees to retirees, life expectancy, investment returns, payouts to beneficiaries, and other variables. Trends in these variables have required an ever-increasing State contribution. More and more retirees are drawing from the plans relative to the number of current employees paying in.  Life expectancy has increased.  The number of beneficiaries and the amount they are being paid is increasing. And investment returns have not met projections.

Due to these factors, the State must contribute an increasing amount of funds to the teacher and state employee pension plans to address current and anticipated payouts to beneficiaries. An additional contribution is required to pay down the unfunded liability.  All told, the State’s contribution to these pensions increased this year from about $200 million to over $300 million. That payment represents 13% of Vermont’s general fund for Fiscal Year 2022.

            There are consequences if we do not get a handle on the State’s burgeoning pension liabilities. The State’s bond rating could be downgraded, leading to increased costs for capital projects such as updating wastewater treatment plants or building a new women’s correctional facility. In addition, growth in the unfunded liability means that more money must be paid into the pension system from the State budget. This, in turn, will drain resources from other areas. If the current trend continues, we will not be able to fund other key spending priorities. And if the State does not bolster the position of its pensions now, when a recession inevitably hits we will be unable to meet the State’s pension obligations without significant cuts to services or an exorbitant tax increase.

            The Vermont House is not sitting idly by. Earlier this year, the House Government Operations Committee floated a proposal that would provide additional funding to the pension plans and make structural changes to those plans. To allow more time for other stakeholders including the Senate, the Governor, and representatives of the teachers and state employees to work with the House on a solution, the Government Operations Committee dialed back its initial proposal.  Last week, the House passed a bill that requires these stakeholders to work together to recommend changes to stabilize the pension systems.  Such action is necessary to honor the State’s commitments to Vermont’s active and retired teachers and State employees while also fulfilling other State priorities and recognizing the limits on our taxpayers’ ability to pay. In addition, the bill makes immediate changes to the entity that makes investment decisions for the pensions, bringing more expertise and independence to the governance of the retirement funds.

Setting Standards for Police Use of Force

Last week, the House passed a bill that will update two laws enacted last year related to the use of force by police.  Act 147 established a criminal offense, holding law enforcement officers criminally accountable if they use a chokehold on a person and cause serious bodily injury or death. Act 165 established statewide statutory standards governing police use of force, including the use of deadly force.

Act 165 tightened the existing restrictions on use of force in several ways. First, in determining whether a use of force was justified, Act 165 requires a court to look, in part, at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, without also considering what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, that use must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 and Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety (DPS) to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and continues its work on those implementing policies.

To assist it in drafting these policies, DPS asked the legislature to clarify certain parts of the use of force law. Last week, the House passed H.145, which would provide the necessary clarifications.

The primary need for clarification involves chokeholds. H.145 clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address. The bill also makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified. Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  But there are situations where the use of a chokehold may be the best or only option that a law enforcement officer has in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities than if the officer could use a chokehold in such a situation. In short, H.145 continues strict restrictions on the use of chokeholds but recognizes that in very limited circumstances their use may be justified. 

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.

Report for H.145 – Amendments to Use of Force law

The following is the report I gave today on H.145, which passed on a unanimous voice

Last year, we passed two bills involving police use of force.  S.219, which became Act 147, established a criminal offense, holding law enforcement criminally accountable if they used a prohibited restraint on a person and caused serious bodily injury or death.  A prohibited restraint was defined as a maneuver that impedes the flow of blood or oxygen to the brain.  In other words, a chokehold.

The second bill, s.119, which became Act 165, established statewide statutory standards for police use of force, including the use of deadly force. Act 165 tightened the existing restrictions on use of force in several ways.

First, in determining whether a use of force was justified, Act 165 requires a court to look at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, not what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, it must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 along with Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and it continues its work on those implementing policies. To assist it in drafting these policies, DPS has asked for clarifications of certain parts of the use of force law. H.145 provides the necessary clarifications.

The primary need for clarification involves prohibited restraints, or chokeholds.

Under the laws we passed last year, an officer who uses a prohibited restraint (chokehold) that results in death or serious bodily injury can avoid criminal liability by invoking the justifiable homicide defense.  That defense applies if deadly force was justified under the standards set forth in Act 165. The laws passed last year provide an indirect way of getting to the conclusion that use of a chokehold is permitted if deadly force is otherwise justified. H.145 is more direct, clear, and transparent in reaching this conclusion.

First, H.145 changes the terminology in the law.  Instead of the term “prohibited restraint,” the bill would call it what it is – chokeholds.

Second, it clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address.

Third, it makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified.

Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  Before use of a chokehold can be justified, it must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

There are situations where the use of a chokehold may be the best or only option that a law enforcement officer may use in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities then if the officer could use a chokehold in such a situation.

In short, H.145 provides strict restrictions on the use of chokeholds, but recognizes that in very limited circumstances their use may be justified.

H.145 provides other clarifications that I will cover in my section by section overview.

Section-by-Section Analysis

The language of the bill can be found starting at page 458 of today’s calendar.

Before I proceed to the text of Section 1, I will address a technical issue as to how H.145 appears in today’s calendar. You will note that all of the language in Section 1 of this bill is underlined, which usually means that it is new language. Here, it isn’t really new language.  Most of Section 1 of H.145 is the same language that was passed as Act 165 last year.  But Act 165 does not go into effect until July 1 of this year.  The way we amend a law that has not yet taken effect is to repeal it and to reintroduce it with any changes. So, although it looks like H.145 is all new language, most of it is language we passed in Act 165.

On the Judiciary website, under today’s date, you can find a document under my name that highlights the language in H.145 that changes the language in Act 165.

In addressing Section 1, my report will focus on those aspects of Act 165 that this bill changes.

In Section 1, H.145 defines chokehold as “any maneuver on a person that employs a lateral vascular neck restraint, carotid restraint, or other action that applies any pressure to the throat, windpipe, or neck in a manner that limits the person’s breathing or blood flow.”  This definition is more straightforward than that provided in Act 165 and covers the actions that we wish to prohibit.

Totality of the circumstances is modified from Act 165 by adding the following language:  “including the conduct of the person or persons involved.”  This clarifies that it is not just the conduct of the law enforcement officer that is relevant.  The conduct of the person or persons involved in the situation is also relevant to a determination of the justification of a use of force by the officer.

Subsection (b) found at page 459 of today’s calendar provides the standards for use of force.  The first four subdivisions of this section contain the same language as Act 165 but have been reordered for clarity.  Subsection (b)(1) was subsection (b)(4) in Act 165 and subsection (b)(2) was subsection (b)(3) in Act 165.

Subsection (b)(7) on the top of page 460 of today’s calendar provides that an officer has a duty to intervene when the officer observes another officer using a chokehold in a situation where deadly force is not justified.  This provision was in the use of deadly force section in Act 165, but we moved it to the use of force section. The placement in the use of force section, as opposed to the use of deadly force section, clarifies that a chokehold may not be used when deadly force is not justified and that officers must intervene in the event that a chokehold is being used in such a situation.

Subsection (c) sets forth the standards for use of deadly force.  The standards set forth in this section are the same as found in Act 165 with the exception of new subsection (c)(6), which provides that “a law enforcement officer shall not use a chokehold on a person unless deadly force is justified. . .”

Section 2 of the bill, starting at the bottom of page 460 of today’s calendar, replaces the definition of “prohibited restraint” with the definition of a chokehold in the criminal offense for the unjustified use of a chokehold.

Section 3 replaces the term prohibited restraint with the term chokehold.

Section 4 changes a cross reference in 13 VSA 2305(3), the justifiable homicide defense.

Section 5 and 6 change the terminology and definition from prohibited restraint to chokehold.

          Sections 7, 8, and 9 are a bit technically complicated, but here is the upshot of what they do.  They repeal the use of force standards set forth in Act 165, which are replaced by the standards in this bill.  And they make the provisions in this bill effective on September 1, 2021.  This is an extension of time from July 1, 2021, to give law enforcement sufficient time to complete its policy and additional training on the use of force standards.

          We heard from the following witnesses:

Legislative Council

Retired Director of the Human Rights Commission

Chief, South Burlington Police Department and representing the Vermont Association of Chiefs of Police

Representative from Northfield

Major, Vermont State Police

Executive Director of Policy Development for the Department of Public Safety

Staff Attorney, Disability Rights Vermont

Chief of Police, Montpelier, and representing the Vermont Police Association

Deputy States Attorney from the Department of State’s Attorneys & Sheriffs

Advocacy Director, ACLU Vermont

Commissioner of the Department of Public Safety

Windham County State’s Attorney

Director of the Civil Rights Unit of the Office of the Attorney General

Attorney from MadFreedom

The vote in your Judiciary Committee was 11-0-0

AMENDMENT

The First instance of amendment provides clarity in the chokehold offense that passed last year and is the subject of Section 2 of H.145. The language that is being amended can be found at page ______ of today’s calendar.  It clarifies that this criminal offense does not apply if a chokehold is applied in compliance with use of deadly force standards.

The Second instance of amendment is technical and recommended by legislative council as the more appropriate way to accomplish what sections 7, 8, and 9 in H.145 sought to accomplish.  Namely it repeals Act 165 and extends the effective date for the use of force standards to give law enforcement sufficient time to complete its policy development and training on those standards.