Science shows that the brain continues to change and mature throughout childhood and adolescence.  Due to the stage of their brain development, adolescents are more likely to act on impulse and misread or misinterpret social cues, and less likely to think twice, change their mind, or pause to consider the consequences of their actions. The legislature has recognized this as it has delved into issues related to juvenile justice.

The Legislature passed a bill that prohibits sentences of life without parole for a person who committed his or her offense as a minor.  The United States is the only country in the world that sentences its children to life imprisonment without the possibility of release or parole.  No inmates are currently serving such a sentence in Vermont. Nevertheless, this bill recognizes that, because their brains are not fully developed, juvenile offenders are less culpable and have the unique ability to be rehabilitated. The bill does not guarantee release.  Rather, it provides the opportunity for an offender to demonstrate rehabilitation to a parole board.  This bill will ensure that Vermont is in compliance with a series of recent U.S. Supreme Court decisions related to the Eighth Amendment, which prohibits cruel and unusual punishment.  It promotes a common sense policy that protects public safety and recognizes that juvenile offenders are different than adult offenders.

The legislature also passed a bill that aligns juvenile court jurisdiction with brain development research and best practices. Vermont is one of the few states where 16 and 17 year olds may be charged as an adult in Court for any offense, including a misdemeanor. The juvenile jurisdiction bill would result in fewer youth entering the adult criminal system, thus avoiding the long-term consequences of a criminal record. When youth have a public record due to conviction in an adult court, they face collateral consequences such as obstacles to employment, exclusion from the military, and ineligibility for college loans.

Studies have shown that youth are much more amenable to treatment and rehabilitation and, as such, should be treated differently than adults. Studies have also shown that youth incarcerated with adults, or supervised along side adults, have poorer outcomes including higher rates of recidivism.

The bill makes incremental changes in how youth are adjudicated in Vermont. Currently, the Family Division generally has jurisdiction over delinquency proceedings, subject to exceptions, until the child reaches 18. One exception is that prosecutors can bring charges against 16 and 17 year olds in either the Family or the Criminal Court. Also, a 14-17 year old charged with a “Big 12” offense (the 12 worst felonies such as murder, arson causing death, etc.), is brought to Criminal Court. A 10-13 year old charged with such an offense is brought to Family Court, but can be transferred up to the Criminal Court on a prosecutor’s motion.

Under the bill, the graduated changes are as follows:

• Starting in July 2016 10-11 year olds charged with a Big 12 offense can only be charged and adjudicated in the Family Division.

• Starting in January 2017, 16 year olds who commit a misdemeanor or a felony (not Big 12) must be charged in the Family Division. If it is a felony charge, the case may be transferred to the Criminal Division on motion. Misdemeanors shall be adjudicated in the Family Court.

• Starting in January 2018, 17 year olds are treated the same as 16 year olds.

• Starting in July 2018, the bill extends youthful offender status from 17 year olds to 21 year olds.

In addition, the bill directs the Justice Oversight Committee to study the feasibility of raising the age of the juvenile court jurisdiction to 18-20 year olds who are charged with something other than a Big 12 offense.

For years Vermont has subjected too many kids to a lifetime of limitations arising from carrying a criminal record with them through life.  The legislature’s actions this biennium should reduce these limitations.

 

In a rural state like Vermont, access to transportation is critical for economic prosperity, public safety, and healthy communities. Many Vermonters lack access to a vehicle or public transportation, but a less obvious barrier exists in the form of driver’s license suspensions.

Sixty percent of suspended Vermont driver’s licenses are suspended for failure to pay judgments on traffic violations.  Presumably, the legislature intended to encourage payment of fines with laws that suspend driver’s licenses for failure to pay.  This intent clearly has not been fulfilled, as there are currently about 59,000 license suspensions, many of the suspensions due to failure to pay traffic tickets.

Too often, individuals who fail to pay are unable to pay.  In such cases, even when their underlying offense was unrelated to unsafe driving, their licenses are suspended.  License suspension results in further debt burdens, including a fee that must be paid to get their driver’s license reinstated after the conclusion of the suspension period.  They are either hindered from getting to and from work or to job interviews or they are stuck with taking the risk of driving with a suspended license.  If they take the latter course, they may be caught and charged with the additional violation of Driving with a License Suspended, which comes with additional fines.  In such a situation, individuals may become trapped in a cycle of poverty and law breaking.  They are subjected to debt that they are unable to pay as well as the continued lack of a driver’s license, further obstructing their ability to gain or keep meaningful employment.

In short, license suspension is a contributing factor to poverty in Vermont.  As a 2014 Vermont Child Poverty Council Report stated, the lack of a driver’s license can cause “a crushing debt for a parent struggling to make ends meet.”  It undermines one’s ability to access jobs, housing, and resources, particularly in rural areas.

Recognizing this problem, Chittenden County States Attorney T.J. Donovan organized a “Restoration Day” in March 2015, during which individuals in northwestern Vermont could get their licenses back for a fraction of the amount they owed.  In December, a “Restoration Day” was held in Windsor County. These efforts helped highlight as well as alleviate the problem, as hundreds of individuals took advantage of the opportunity to regain their driving privileges.  The huge participation in these programs made it clear for purposes of geographic justice that a statewide legislative resolution was needed.

To that end, last spring the chairs of the House and Senate Judiciary Committees requested that the Department of Transportation convene a task force to study the issue and recommend solutions.  During the first week of this legislative session, the House Judiciary Committee received the task force report, which not only highlighted license suspension as one factor affecting poverty, but also examined the costs to Vermont of administering license suspension.  The Committee heard from a number of witnesses who described the extent of the problem.

The legislature enacted a bill, H.571, that lowers the obstacles for individuals to have their driving licenses reinstated; reduces the duration of suspensions and eliminates suspensions for conduct that does not relate to unsafe driving; and limits the use of license suspensions for offenses unrelated to driving. Specifically, the bill addresses three time frames.

First, it clears the slate of suspended licenses that were based on traffic tickets that predate July 1, 1990.  These tickets were issued in an era when traffic violations were considered misdemeanors.  Most of the tickets underlying the suspensions were in a fire, doused with water, and scattered to various locations throughout the state.  The bottom line is that there is no way of really knowing why individuals with these pre-1990 suspensions lost their licenses.  The Attorney General has sought dismissal of all the approximately 20,000 charges underlying these suspensions.  H.571 instructs the Department of Motor Vehicles to reinstate these suspended licenses.

Second, the bill establishes a three-month restoration period from September 1, 2016 to November 30, 2016.  Individuals with licenses suspended between July 1, 1990 and July 1, 2012 can apply for restoration.  They must pay $30.00 on each underlying ticket, either all at once or pursuant to a payment plan under which they will pay up to $100.00 per month toward unpaid tickets (often these individuals have many unpaid tickets).  Once they have paid or started a payment plan, their driver’s license will be automatically reinstated without their having to pay a reinstatement fee.

Finally, the bill establishes a path forward.  H.571 eliminates license suspension as a penalty for certain non-driving related infractions, including the underage possession of tobacco.  Suspension is also eliminated as a consequence for failure to pay fines on non-moving traffic violations, such as failure to have an inspection sticker, and as a consequence for failure to appear at a civil contempt hearing initiated by the Judicial Bureau for purposes of collecting unpaid fines.  The Judicial Bureau will use other methods to collect any fine owing, including through tax refund offsets and referral to collection agencies.

The bill distinguishes between violations such as the foregoing that do not relate to safe driving and those that do.  Thus, nonpayment of fines for moving violations that carry points on a driver’s license can still lead to license suspension.  The bill modifies these suspensions.  Upon failure to timely pay a fine, an individual’s license would be suspended for 30 days, rather than the 120 days under current law.  The driver’s license will be reinstated after the 30-day period or upon payment of the fine, whichever occurs earlier, and upon payment of a reinstatement fee.  If the fine remains unpaid after the suspension, the Judicial Bureau will use the other methods mentioned above to collect any outstanding fines.

H.571 also stiffens the penalty if an individual drives while under suspension. If a person is caught driving without a license a second time within a two-year period, he or she may be charged with a misdemeanor.

Recognizing that indigent drivers may have difficulty paying fines, the bill also contains provisions to ensure that such drivers know they are able to seek a reduction in a fine while not contesting the underlying traffic violation.  Finally, the bill requires a report related to the statewide driver restoration initiative and reports over a five-year period to allow an evaluation of the impacts of the license suspension provisions.

The driver’s license suspension bill should improve the safety of our roads.  It will allow law enforcement to deploy its resources more effectively to address dangerous driving offenses rather than policing what has proved to be an ineffective payment collection tool.  More importantly, it will reduce the number of drivers who have suspended license, allowing individuals whose offenses are unrelated to highway safety to retain their driving privileges, ability to earn a living, and opportunity to contribute to the economy.

 

Since moving on from our consideration of S.241, the Senate bill that would legalize marijuana possession, Judiciary has taken up a number of other bills that came over from the Senate, including S.155. That bill contains a number of provisions related to privacy protection and generally covers four topics.

First, the bill addresses health care privacy. It tracks existing privacy protections for protected health information contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA generally prohibits health care providers, insurers, and others (defined as “covered entities”) from disclosing information about a person’s health condition and treatment (defined as “protected health information”). S.155 would adopt the HIPAA definitions and prohibit, as a matter of State law, a covered entity from disclosing protected health information.

Second, it addresses law enforcement use of drones. The bill would permit law enforcement to use a drone for activities not involving crime-fighting, such as search and rescue, or aerial photography for assessment of accidents, forest fires, flood stages, etc. It would prohibit a law enforcement agency from using a drone or information derived from a drone for the purpose of investigating, detecting, or prosecuting crime. There would be exceptions if the agency has obtained a warrant or the use is pursuant to a judicially-recognized exception to the warrant requirement, including consent or exigent circumstances, such as hot pursuit.

During committee discussions, I have expressed a concern about allowing the use of drones pursuant to one of the existing judicially-recognized exceptions to the warrant requirement: the Plain View Doctrine. Under this exception, objects in plain view may be seized if the officer’s presence in the area is lawful. My problem with applying this exception to drones is that they have a much broader plain view than a walking or driving officer. Because drones can see much more, the doctrine would be stretched beyond its original application. It is not clear how far the Committee will go to address this concern. Should the Plain View doctrine simply not apply when drones are used?

At a minimum, I would like to prevent law enforcement from being able to use the Plain View doctrine in situations where it is using drones for crowd control or public safety. Allowing law enforcement to monitor public gatherings has the potential to impinge upon not only privacy interests, but also certain constitutional rights. Judiciary is still considering language that would address this concern by explicitly prohibiting law enforcement agencies from using drones for surveillance of private citizens peacefully exercising their constitutional rights of free speech and assembly.

In addition, taking a different tack than North Dakota, which has legalized drone-mounted tasers, the bill would prohibit anyone from equipping a drone with a dangerous or deadly weapon or from firing a projectile from a drone.

Third, S.155 would establish the Vermont Electronic Communications Privacy Act (VECPA), which would address law enforcement access to e-mails, communications data, and other records held by electronic communications companies. It would require law enforcement to obtain a warrant before obtaining “protected user information,” defined as the content of the communication, location data, and the subject line of e-mails. A warrant must be based on probable cause to believe the information constitutes evidence of a crime or is relevant to an ongoing criminal investigation. Law enforcement would need to have a subpoena to obtain other information such as “subscriber information,” which includes data such as names, e-mail addresses of senders and recipients, account numbers, payment information, etc. A subpoena may be based on the lower threshold of reasonable cause to believe that the information is relevant to an offense or reasonably calculated to lead to the discovery of evidence of the offense. Disclosure of protected information without a warrant or subpoena would be permitted under existing, judicially-recognized exceptions to the warrant requirement. The bill would require law enforcement, with certain exceptions, to provide the person who is the target of the warrant with notice that the information was obtained.

Fourth, S.155 would replace an existing law due to expire on July 1, 2016, that governs the use of Automated License Plate Recognition (ALPR) systems and the confidentiality and retention of ALPR data. ALPR data may be used for “legitimate law enforcement purposes,” including the detection, investigation, analysis, or enforcement of a crime, or commercial traffic violation (or defending against the same); operation of an AMBER alert; or a missing or endangered person search. Law enforcement would be prohibited from retaining ALPR data for more than 18 months unless this period is extended pursuant to a warrant or a court order or is relevant to a person’s defense.

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Last week, the House Judiciary passed out four bills that it received from the Senate. One, S.154, provides a lesson in how legislation sometimes moves through the General Assembly at this late stage of the biennium. As passed by the Senate, this bill provided for enhanced penalties for assaulting an employee of the Family Services Division of the Department of Children and Families. It also created a new crime called criminal threatening. After hearing testimony, the House Judiciary Committee decided to strike the new threatening crime, as it seemed redundant of currently existing crimes and the Committee generally is opposed to creating any new avenues to incarceration unless there is a clear showing of need. We did keep the enhanced penalty, however.

S.154, as passed by the House Judiciary Committee this past Friday, also includes all of the language from our stalking bill that the House passed out earlier this year. We attached it to this Senate bill because the Senate Judiciary Committee did not pass the bill that the House sent to it earlier. It is my understanding that the Senate Committee simply ran out of time. Attaching the language to S.154 will give the General Assembly a chance to pass the stalking bill into law.

After taking four weeks of testimony, including joint hearings with the Government Operations Committee and the Human Services Committee and a two-hour public hearing in the well of the House, the Judiciary Committee voted out a strike-all version of S.241 on April 8.

The House Judiciary Committee significantly scaled back the scope of S.241. Through hearing from many witnesses, it became clear to the Committee that Vermont is not sufficiently addressing various problems right now that arise from the use of marijuana in the State. Law enforcement witnesses explained that Vermont lacks the infrastructure to appropriately address risks to highway safety from driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.

Although youth usage of marijuana has remained steady, the perception that regular use of marijuana causes harm has been declining. The Committee heard from members of the medical and educational communities on the deleterious effects of regular marijuana use on the developing brain and mental performance. It also heard from members of the education community who explained that the State does not currently devote the appropriate resources to address substance abuse, be it from tobacco, alcohol, or marijuana.

Dr. Harry Chen, the Commissioner of the Vermont Department of Health, reviewed the Department’s Health Impact Assessment related to marijuana. The report explains the many negative health effects from regular marijuana usage, including increases in psychosis, decreased psychosocial functioning, motor vehicle accidents, development of use dependence, and decreased academic performance.

Witnesses from Colorado and Washington shared their experiences and offered advice. The bottom line, however, is that it is too early to tell what the long-term impacts of marijuana legalization will be in those states. Increased usage in Vermont and the increase in negative impacts to highway safety are concerns if Vermont is the only New England state to legalize marijuana given that Vermont is within a day’s drive of some 40 million people.

Judiciary also heard from many proponents of legalization. They explained that marijuana is already widely used by Vermonters. These users should not have to confront the dangers associated with the black market, including product that includes pesticides or other additives and exposure to dealers selling other, more harmful drugs. Individuals should have the same right to moderate use of marijuana as they do to consume alcohol without being subject to criminal penalties so long as they are not causing others harm.

Taking heed of the testimony, on Wednesday the Committee Chair proposed a strike-all amendment to S.241. The bill retained certain provisions of the Senate bill, including sections establishing an education and prevention program, creating a crime for certain dangerous chemical extraction processes (such as was uncovered recently in Winooski), prohibiting the consumption or possession of marijuana in a motor vehicle, calling for the Vermont Governor’s Highway Safety Program to expand its public education and prevention campaign to include drugged driving, requiring additional training for law enforcement, and establishing a workforce study committee. The bill also retained a modified provision establishing a marijuana advisory committee.

The proposal also established a new impaired driving violation to account for the heightened traffic safety risk from polysubstance use – the combined consumption of both alcohol and marijuana. The strike-all amendment would prohibit individuals from operating or attempting to operate a vehicle with an alcohol concentration of .05 or more and any detectable amount of delta-9 THC in the person’s blood.

Acknowledging testimony from numerous witnesses that individuals who use small amounts of marijuana or grow a limited number of plants should not be treated as criminals, the proposal also extended the decriminalization efforts of the last legislature. It provided that possession of up to 2 ounces of marijuana would be treated as a civil violation, as opposed to the current one-ounce limit. It also decriminalized the cultivation of up to two marijuana plants, recognizing that decriminalizing possession of a small amount of marijuana is inconsistent with requiring users to engage in criminal conduct to obtain that marijuana. In addition, the proposal decreased the penalties for other marijuana offenses, changing certain offenses to misdemeanors and reducing maximum jail times and fines.

This proposed strike-all was voted down on a 6 to 5 vote. An amendment to the bill was proposed that took out the provisions related to decriminalization. This strike-all amendment passed on a 6 to 5 vote.

With the strike-all amendment, the Judiciary Committee recognizes that Vermont seeks to address public health and safety issues that currently confront the state from marijuana use. It also recognizes that legalization of marijuana is likely going to occur more broadly in the region. It allows the state to prepare for that eventuality while also addressing current concerns.