Racial Justice Reform

In addition to starting to review Senate bills, House Judiciary has directed significant effort toward considering H.492, a bill related to racial justice reform. The Committee has heard extensive testimony on the bill, which, as introduced, involved two main initiatives: (1) establishing a Racial Justice Oversight Board to manage and oversee the implementation of racial justice reform and (2) ensuring uniformity across the State in the adoption of fair and impartial policing policies by all law enforcement agencies in Vermont. After extensive consultation with the sponsors of the bill, the Office of the Attorney General, and advocates of the bill, the Committee has decided that the best route forward is to have two different bills.

The first bill, which will continue to be H.492, would establish the Racial Justice Oversight Board. The Board would be established in the Office of the Attorney General and would have an advisory role. The members would be drawn from individuals across the State with diverse racial, ethnic, religious, age, sexual orientation, and socioeconomic backgrounds. It would review racial justice reform efforts across the State, including within the systems of education, labor and employment, housing, health care, economic development, and criminal and juvenile justice by monitoring the collection and publication of race-based data, recommending policies and training to address systemic implicit bias, and evaluating racial justice policies, practices, and results.   Among other responsibilities, it would make recommendations to the Criminal Justice Training Council and the Vermont Bar Association on model trainings and policies for law enforcement, judges, and correctional officers to recognize and address implicit bias and use of force in policing.

A separate Committee bill would address fair and impartial policing policies. It would amend 20 VSA 2366, related to such policies, by requiring all State, local, county, and municipal law enforcement agencies in Vermont to adopt the Criminal Justice Training Council model fair and impartial policing policy in its entirety. This would ensure uniformity among the law enforcement agencies. Currently, agencies may adopt only certain required parts of the policy, not all of the policy. In addition, the bill would require the Criminal Justice Training Council in consultation with the Attorney General to ensure that the model policy does not conflict with federal immigration law.

The Committee anticipates voting these bills out in the coming week.

Next Step to a Better Criminal Code

This is the report for the third bill that I reported to the House during the week.

H.308 Report

H.308 would establish a committee of legislators to reorganize and reclassify Vermont’s criminal statutes.

In the 2013-14 legislative session, the Vermont Legislature passed Act 61. This Act created a working group to review all of Vermont’s criminal penalties, review other states’ sentencing structures, and recommend a sentencing structure. This structure would allow for sentencing consistent with “the gravity of the offense, the culpability of the offender, the offender’s criminal history, and the personal characteristics of an individual offender that may be taken into account.”

The working group consisted of prosecutors from the Association of States Attorneys and Sheriffs and the Attorney General’s office, the Defender General, a Judge, and a representative from the Crime Research Group.

The Group met several times to discuss current sentencing laws, the laws of other jurisdictions, and the recommendations of the Model Penal Code. The working group came to a consensus on a sentencing and fine structure, which was presented in a report published in July 2015.

The group recommended a structure that included five classes of misdemeanors (Classes A through E) and five classes of felonies (Classes A through E), with tiered maximum imprisonment terms and maximum fines. For example, a Class A misdemeanor would carry a maximum imprisonment term of 2 years and fine of $10,000, a class D misdemeanor a maximum imprisonment term of 30 days and a maximum fine of $1000 and a Class E misdemeanor would have no term of imprisonment and a $500 fine. The Group did not, however, specify which current crimes should be in which category.

H.308 would build on the work accomplished by the Working Group.

Vermont’s current criminal law could be defined as a hodgepodge. It is made up of common law that has been put into statute and new offenses created by the legislature over the years. Our criminal laws have evolved in a manner that has led to inconsistency between offense levels – similar conduct leads to different punishments.

Vermont has over 850 criminal offenses. The offenses are contained in various titles in the Vermont Statutes. They cover aspects of commercial interaction, environmental regulations, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine, to death. (defacing a butter crate, treason).

The work to be done pursuant to H.308 would be the next step in a process to provide a rational criminal code. A clearer, more rational code would provide more consistent interpretations of our criminal offenses, better notice to citizens and police as to what conduct is prohibited, and greater proportionality between offenses and punishment.  The end goal is to create a more consistent and understandable code to improve our criminal justice system.

The committee’s primary task would be to come up with a proposal to place each of Vermont’s over 850 criminal offenses into one of the classification offense categories. The proposal of the committee would be taken up in the 2018 legislative session.

Section by Section Explanation

Section 1 provides for the creation of a criminal code classification implementation committee.

Subsection (a) sets forth the purpose of the committee – to develop and propose a classification system for purposes of structuring Vermont’s criminal offenses.

Subsection (b) relates to membership of the committee. Three current members of the House of Representatives and three current members of the Senate.

Subsection (c) sets forth the powers and duties of the committee.

(c)(1) provides that the Committee will develop a classification system creating categories of criminal offenses on the basis of maximum potential imprisonment and maximum fines. Also, the Committee shall propose legislation that places each of Vermont’s criminal offenses into the classification categories.

(c)(2) – provides that the committee shall consider the recommendations of the Act 61 Working Group.

In addition, the committee may consider other issues:

1) Rules of statutory interpretation for the criminal code

2) Consistent use of mental element terminology, such as intentional, knowing, or reckless states of mind.

3) A comprehensive section of definitions applicable to all criminal provisions.

(d) provides that the Committee will have assistance from the Office of Legislative Council and the Joint Fiscal Office. In addition, the Committee may consult with the Vermont Crime Research Group, the Vermont Law School Center for Justice Reform, and others as needed.

(e) provides that the Committee shall submit a report with proposed legislation by December 31, 2017

(f) relates to conduct of the meetings of the Committee.

The act shall take effect on passage.

The bill was presented to the Committee on Government Operations, which had no objection to the form and conduct of this committee.

 

Bail Reform

The Following is from my report that I gave at the second reading of H.503, a bill to reform bail.

H.503 Report

The Right to bail is guaranteed by the Vermont Constitution. Ch. II, § 40.

Bail may be withheld only in the following circumstances:

(1) The defendant is charged with an offense for which the punishment is death or life imprisonment, and the evidence of guilt is great.

(2) The defendant is charged with a felony involving an act of violence against another person, the evidence of guilt is great, and the court finds by clear and convincing evidence that the person’s release poses a substantial threat of physical violence to any person and that no conditions of release will reasonably prevent the physical violence.

Unless a person is held without bail for these reasons, the Court should release the person on personal recognizance.

The Court may also require execution of a performance bond, in other words, it may require bail. The decision on whether to require a person to post bail depends on the risk that the individual will flee the jurisdiction or will fail to appear in court for trial. If there is a risk of flight or nonappearance, bail is imposed. Setting bail provides a motivation for a person to appear in court because if he or she does not the bail may be forfeited to the state.

If the court does not believe that bail itself will ensure the person will show up, it may also impose conditions of release to ensure appearance in court. The Court may also impose conditions of release to protect the public.

Pre-conviction imprisonment is costly and potentially unfair to those without the financial means to post bail. Individuals can be held because they cannot afford bail. Being detained for lack of bail can have a number of negative consequences. An individual so held can lose his or her job or housing. The individual will be at a disadvantage in building his or her defense. In certain circumstances, a person unable to post bail may enter a plea agreement simply to get out of jail. In addition, detaining individuals imposes substantial costs to the state.

In light of these issues, the House Judiciary Committee has spent significant time assessing how to reform Vermont’s bail laws.

The result, H.503, would restrict the use of bail in certain limited circumstances and would reform the use of bail in the context of violations of conditions of probation.

I’ll first address the context of pretrial bail and then will discuss reforms to probation.

When a person is suspected of a crime by law enforcement, there are two possibilities. He or she may be arrested and detained before a judge decides whether there is probable cause to continue the case. Or, that person may be issued a citation to appear at the probable cause hearing. That is called “being cited into court,” and the defendant is not taken into custody.

If the person is cited into court, at the probable cause hearing a prosecutor may argue that bail should be posted based on criminal history or past nonappearances in court. H.503 would provide that an individual who is cited into court and, in fact, appears at the probable cause hearing cannot be required to post bail. Being cited into court rather than arrested shows that law enforcement has made the judgment that the person does not present a risk to public safety. The officer did not think it was necessary to arrest and lodge the person. If the person has made his or her initial appearance, this alleviates the concern regarding future nonappearance.

H.503 also changes the law related to individuals who are on probation and have violated their conditions of probation.

  • “Probation” means a procedure where a person found guilty of a crime upon verdict or plea is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner of Corrections. 28 V.S.A. § 201.

Under current law, if a probationer violates the terms of probation, a corrections officer may arrest that person. H.503 would provide that the corrections officer may cite the probationer into court rather than arrest and detain the probationer in prison. It also expands the opportunity for the probationer to be released on conditions of release and/or after posting bail.

These changes will allow a decrease in detention of individuals. It will free up prison beds and will allow cost savings in the criminal justice system while also continuing to protect public safety.

Section-by-section summary of H.503, An act relating to bail

Sec. 1 – Cited misdemeanors

  • Prohibits the imposition of cash bail in cases where a person was cited for a misdemeanor.
  • Subsection (b) of 13 VSA 7551 provides that “No bond may be imposed at the initial appearance of a person charged with a misdemeanor if the person was cited for the offense in accordance with Rule 3 of the Vermont Rules of Criminal Procedure. This subsection shall not be construed to restrict the court’s ability to impose conditions on such persons to reasonable ensure his or her appearance at future proceedings or to reasonably protect the public in accordance with section 7554 of this title.”

Sec. 2 – Violations of probation

  • The bill’s change to subsection (2) of section 28 VSA 301 clarifies that a correctional officer may cite a person, instead of arresting him or her, if they suspect that person has violated a condition of his or her probation.
  • In determining whether the probationer should be cited or arrested, the officer should consider whether issuance of a citation will reasonably assure appearance and protect the public.
  • Taken together, subsections 4 and 5 modify when a court can release a probationer after violations of conditions of probation.
  • Currently, a probationer has no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony and the probation violation did not constitute a new crime. Subsection (4) deletes the requirement that the probation violation did not constitute a new crime. This deletion works in tandem with new subsection 5(A).
  • Subsection (5)(A) expands the opportunity for a probationer to be released back into the community if the court can set bail or conditions of release that will reasonably ensure the probationer’s appearance at future proceedings and conditions of release that will reasonably protect the public.
  • If these preconditions are met, the Court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony
  • If these preconditions are met, the Court may release a probationer who is on probation for a violent misdemeanor or violent felony. Again, the release may occur only if the court finds that conditions of release will reasonably protect the public.

Sec. 3 – Pretrial communications

  • Requires the Court Administrator, State Attorneys, Defender General, and the Vermont Chapter of the ACLU to work together and with other interested parties to examine options for facilitating pretrial communication between the courts and defendants. The goal of this effort is to find options that reduce the risk of nonappearance by defendants.
  • During testimony, we learned that states that have implemented notification systems have decreased nonappearance at court hearings. We determined, however, that further analysis of pretrial communication improvements or notification systems was necessary before we take any action on such an initiative.
  • The group is to report its recommendations to the Committees on Judiciary by 10/15/17.

On average, our prisons are holding, pretrial, 380 to 400 individuals daily. 75 to 100 of these individuals are being held for violations of probation. This bill takes a step toward reducing these numbers in situations where public safety can be ensured and the risk of nonappearance has been addressed.

The Revised Uniform Fiduciary Access to Digital Assets Act

Not all of the Judiciary work involves criminal laws.  The House passed out an important probate law related to individuals’ online, or digital, assets.  Here is my report on the bill that I delivered to the House on Second Reading.

Report for H.152

H.152 is a bill that would enact the Revised Uniform Fiduciary Access to Digital Assets Act. The bill would modernize fiduciary law for the Internet age. Fiduciaries are the people appointed to manage our property when we die or lose the capacity to manage it ourselves. Nearly everyone today has digital assets, such as documents, photographs, email, and social media accounts, and fiduciaries are often prevented from accessing those accounts by password protection or restrictive terms of service. Digital assets may have real value, both monetary and sentimental, but they also present novel privacy concerns. The Revised Uniform Fiduciary Access to Digital Assets Act would provide legal authority for fiduciaries to manage digital assets in accordance with the user’s estate plan, along with other assets, while protecting a user’s private communications from unwarranted disclosure.

The following are some of the reasons this body should pass H.152.

  • The law would give Internet users control. It allows users to specify whether their digital assets should be preserved, distributed to heirs, or destroyed.
  • The law would provide efficiency and uniformity for all concerned. Digital assets travel across state lines nearly instantaneously. In our modern mobile society, people relocate more often than ever. Because state law governs fiduciaries, a uniform law ensures that fiduciaries in every state will have equal access to digital assets and custodians will have a single legal standard with which to comply. To date, 22 states have enacted this uniform law. Eighteen states, including Vermont, have introduced bills this session.
  • The law respects privacy interests. Private communications like email and social media conversations are protected by federal privacy law. This law would prevent the companies that store our communications from releasing them to fiduciaries unless the user consented to disclosure.
  • The law addresses four common types of fiduciaries. It provides appropriate default rules governing access to digital assets for executors of a decedent’s estate, agents under a power of attorney, trustees, and guardians.

Section by Section Report

Section 3552 contains definitions of terms used throughout the act.

Section 3553 governs the applicability of the act. It clarifies the scope of the act and the fiduciaries who have access to digital assets under the Revised law. It also carves out an exception for digital assets of an employer used by an employee during the ordinary course of business.

Section 3554 provides ways for users to direct the disposition or deletion of their digital assets at their death or incapacity, and establishes a priority system in case of conflicting instructions.

Section 3555 establishes that the terms-of-service governing an online account apply to fiduciaries as well as to users, and clarifies that a fiduciary cannot take any action that the user could not have legally taken.

Section 3556 gives the custodians of digital assets a choice of how to disclose those assets to fiduciaries.

 

Sections 3557 to 3564 establish the rights of personal representatives, agents acting pursuant to a power of attorney, trustees, and guardians. Each of the fiduciaries is subject to different rules for the content of communications protected under federal privacy laws and for other types of digital assets. Generally, a fiduciary will have access to a catalogue of the user’s communications, but not the content, unless the user consented to the disclosure of the content.

Here, I would like to explain a bit further what is content and what is a digital asset.

As explained in the definition section, content of an electronic communication means information concerning the substance or meaning of a communication. There are three criteria that must be met for digital information to be considered content.

  • It must have been sent or received by the user
  • It is held in electronic storage by a custodian
  • It is not readily accessible to the public

When considering whether a Facebook, Twitter, or blog post qualifies as “content of an electronic communication,” one important consideration is the intended audience.  For example, a tweet that is accessible to any member of the general public who “follows” the twitter account is not protected content because it does not meet the third prong of the definition (“is not readily accessible to the public”).  However, a Facebook post that can only be viewed by the user’s Facebook friends is protected content, because it is not readily accessible to the general public.

Therefore, a Facebook account, Twitter Account, or blog account do not fall neatly into content versus other digital assets.  A fiduciary may be permitted limited access under the Act solely for the purpose of closing the account, but not to view any protected content.

The second category addressed by the Act is “Digital Assets,” which means an electronic record in which an individual has a right or interest. Here are a few examples of digital assets: Facebook account, Twitter or blog post, bitcoin or bitcoin account, email account, electronic bill paying account, electronic banking account.  In each case, the content could be protected if it meets all three prongs of the definition for “content of an electronic communication,” or could be accessible without user consent if it does not meet one or more of those three prongs.

Brief run through of these sections. Sections 3557 and 3558 involve the disclosure of digital assets to a personal representative of the estate of a deceased user. Section 3557 involves access to content of electronic communications while section 3558 involves other digital assets other than content. Essentially, access to content of electronic communications is more restrictive, requiring clear prior consent of the user.

The same general pattern is followed through the next several sections for other fiduciary relationships – more restrictive access to content, less for other digital assets.

Section 3559 and 3560 involves agents, sections 3561 through 3563 involve trustees, and Section 3564 involves guardians.

Section 3565 contains general provisions relating to the rights and responsibilities of the fiduciary.

This section provides that a fiduciary under this act has the same fiduciary duties for user’s information as for other property that may come under the fiduciary’s control. It sets forth what those duties and authorities are. These duties are the same duties each fiduciary has under current Vermont law.

Section 3566 addresses compliance by custodians and grants immunity for any acts taken in order to comply with a fiduciary’s request under this act.  Sections 3567 and 3568 address miscellaneous topics, including retroactivity.

As we heard from a probate judge, “Currently, there are no statutory provisions that explicitly provide fiduciaries with the authority to access digital assets. As a result, unnecessary complications can and do arise. Both in the practice and judicial arena, the statute is essential for fiduciaries in this digital age.”