After a bill is introduced, it is assigned to a committee of jurisdiction.  The committee considers the bill and may or may not pass the bill out of committee.  If the bill does pass, it will either proceed to another committee for consideration or will go to the House Floor for a Second Reading.  (The First Reading occurs at the time the bill is introduced.)  The bill is noticed on the House Calendar and the next day a committee member explains the bill to the House, known as reporting out the bill.  This past Thursday, I reported out H.533 related to the rights of victims of crimes.  The following is the report I provided.

Our criminal justice system provides a number of rights to victims of crimes. Victims have the right to receive certain notifications about the status of the offender, the right to participate in certain proceedings, the right to confer with a prosecutor, and the right to be heard at sentencing.

This bill addresses certain of these rights.

First, it clarifies a victim’s right to be notified. Notification of an offender’s release from custody, confinement, or supervision is essential to the security of a victim. Notifications allow victims to plan for their safety and that of their families and to mentally prepare for seeing the offender in the community. In domestic violence cases in particular, safety planning after arrest and throughout prosecution is vital because of the heightened risk of re-offense during that time.

H.533 will close gaps in the existing Crime Victim Rights statute (Title 13, Chapter 165). It clarifies the victim notification requirements at two key phases in the criminal process: 1) when corrections terminates or discharges an offender from probation and 2) when an offender is arrested, cited, and then released back into the community by law enforcement prior to arraignment.

Second, H.533 addresses a gap in the Crime Victim Rights statute related to the opportunity to be heard. Victims currently have the right to be heard at sentencing hearings. The bill would extend that right to be heard to hearings involving a change in plea that also includes a deferred sentence, which I will explain further when I discuss that portion of the bill.

Altogether, this bill ensures that victims receive statutory release notifications and opportunities to be heard in court regardless of how the case moves through the system or is disposed.

Section One

13 V.S.A. § 5305 sets out the information victims are entitled to request from agencies having the custody of a defendant.

Sec. 1 changes the title of the section from Information Concerning Release from Confinement to Information Concerning Release from Custody. This more accurately reflects when victims are entitled to information about an offender’s status.

Typically in our statutes, Confinement refers to what happens when a person has been convicted of a crime and sentenced to a term of confinement (which could include incarceration or home confinement furlough); custody is a broader term referring to the care or control of a person.

In subsection (a) the bill adds “termination or discharge from probation” to the list of events triggering the right of a victim to request notification before the defendant is released.

Section Two

13 V.S.A § 5314 sets out the information law enforcement must provide to victims of all crimes, and additional information that must be given to victims of listed crimes.

Normally, when someone is arrested, the offender is processed and the States Attorney is informed. The State’s Attorney Victims Advocate is then responsible for notifying the victim of the status of the offender.

But in some situations, this procedure cannot be followed. For instance, an arrest can occur on a Friday night and the defendant taken into custody for processing at the station. Rather than lodging the offender until an arraignment, the court may be called to set bail and conditions of release. The Victims Advocate would not know of the release and therefore could not inform the victim. New Section (b)(6) clarifies that where this situation occurs, law enforcement is responsible for notifying the victim because it is the only source of information at this early stage in the case. It is our understanding that this often already happens, but H.533 will codify the practice.

The new section provides that law enforcement shall use reasonable efforts to give the victim of a listed crime “Information concerning any bail or conditions of release imposed on the defendant by a judicial officer prior to arraignment or an initial court appearance.”

Section Three:

This section was formerly in H.675. Because that bill also involves victim’s rights, the section was incorporated into H.533.

13 V.S.A. § 5321 sets forth the rights of the victim to be notified and to appear and be heard at a sentencing proceeding involving the defendant.

But a court may make some decisions about deferred sentencing outside of sentencing hearings.

If the prosecution and defendant agree, a court may enter a deferred sentence at a change of plea hearing, instead of during a sentencing hearing. If the defendant successfully serves a period of probation, the deferred sentence is dropped. In other words, there would be no sentencing hearing so long as the defendant does not commit additional offenses or violate probation.

It is not clear under current law that a victim can be heard at such a hearing because it is not a “sentencing proceeding.” Some judges routinely allow victims to speak at change of plea hearings in deferred sentence cases. Other judges, however, have adopted a strict reading of 13 V.S.A. § 5321 and do not allow victims to offer their views at the change of plea.

This bill addresses the situation in which the prosecution and defendant have stipulated to the plea and deferred sentence. Under certain conditions, a court may order a deferred sentence where the prosecution and defendant have not agreed to the deferral. In this situation, under existing law (13 V.S.A. § 7041(b)), victims have an opportunity to express their views. This bill extends that opportunity to situations where there is a stipulation between the prosecution and the defendant.

Section 3 adds provisions that require notice and the opportunity to appear and be heard at a change of plea hearing in which the court is considering a deferred sentence. The court shall consider the victim’s views (if offered) in determining whether to defer the sentence.

Subsection (e) adds a provision requiring the prosecutor to instruct victims of listed crimes about the significance of a deferred sentence. This instruction would also include the potential consequences to the defendant of violating any conditions imposed by the court before the change of plea hearing.

Sec. 4. Effective date

Takes effect on July 1, 2016 to allow time for law enforcement to update their practices for providing notification.

We heard from representatives from:  The Center for Crime Victims Services, Office of Chief Superior Judge, Public Safety Department, Defender General’s Office, The Department of State’s Attorneys and Sheriffs, Network Against Domestic & Sexual Violence

The Judiciary Committee vote was 11-0.

 

 

 

 

 

I am planning on posting an update regarding the work of the Judiciary Committee every two weeks.  The focus on traffic safety issues may seem a bit redundant with some of my other recent posts, but that is what the Committee has been focusing on.

In the past two weeks, the Judiciary Committee has continued its focus on the state’s roadways. We have taken extensive testimony on H.571 related to driver’s license suspensions and have been narrowing and focusing the questions we need to address to move a bill to the floor. The committee is dealing with three areas.

First, we are looking to clear the slate of suspended licenses that were based on traffic tickets that predate 1990. These tickets were issued in an era when traffic violations were considered misdemeanors. We have learned that 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. So, we are paving the way to reinstate all licenses suspended solely due to these pre-1990 violations.

Second, we are trying to address the large number of licenses that have been suspended since 1990 due to certain non-traffic violations or failure to pay a fine. We are trying to find a balance between getting people’s licenses back to them while still finding a way to collect at least some of the outstanding fines.

Finally, we are trying to establish a path forward. The Committee generally agrees that license suspension is not an effective way to get many people to pay their fines – 28,000 are suspended for failure to pay and many continue to drive. Nor should it be a punishment for certain non-driving offenses, such as underage tobacco use. But we also want to make sure that the Judicial Bureau has sufficient means to collect fines. We want to carefully consider what combination of payment mechanisms and incentives will best allow the Judicial Bureau to collect the fines owed while getting Vermonters back driving legally. We will be spending additional time over the next couple weeks trying to strike the appropriate balances.

The Committee has also been taking testimony regarding DUI laws. Our primary focus has been to consider ways to increase the usage of ignition interlock devices to decrease impaired driving by those who have been charged with a DUI. One of the issues that we are grappling with is how to ensure that such devices are available to all who could benefit from them, not just those who can readily afford the installation and monthly fee for the device.

The Judiciary Committee has also addressed some non-driving concerns. We have considered issues related to victim notification (H.533) and a victims right to be heard at change of plea hearings (H.675). These two bills have been combined and will likely hit the floor in the coming week as H.533.

The Committee’s oversight of the state courts has also been on our agenda. We heard from the State Auditor and Court representatives regarding collections of fees related to the provision of public defenders to indigent defendants. We also reviewed proposals to streamline certain appeals and other court procedures.

 

In a December post, I described the process I undertook to formulate a bill that addressed the issue of distracted driving. This bill, H.527, was introduced on January 8th. As I previously explained, this bill had a unique component: an “implied consent” provision. Under this provision, if a law enforcement officer had reasonable grounds to believe that there had been a violation of the distracted driving law, he could search an operator’s portable electronic device for the limited purpose of enabling him to determine if a violation had occurred.

This provision generated significant attention. Within an hour of the bill’s introduction, I received the first of numerous emails, many expressing concern regarding the impact of the implied consent provision on privacy interests. People understandably did not want law enforcement rummaging through their smartphones.

When formulating the bill, I had understood that this would be an issue that would have to be addressed. As I explained to those concerned about privacy, I included the implied consent provision in the draft bill to get the discussion going on this potential enforcement tool.  In my research, including discussions with law enforcement, I had found that detection and enforcement are the greatest barriers to implementing the current laws.  The implied consent provision was an attempt to address that issue.  Moreover, I had passed this provision by Legislative Counsel, the attorneys who help legislators draft bills, and the Executive Director of the Department of State’s Attorneys and Sheriffs, and I had understood from them that the provision was worthy of consideration.

I knew that the provision raised privacy concerns, but felt that it should at least be explored through the deliberative process of the Judiciary Committee.  It was my belief that, if the concept of implied consent could not be implemented without unduly impeding reasonable expectations of privacy, it would not be adopted. Indeed, I would not have been in favor of pushing forward with this portion of the bill if we could not thread the needle between the need for new enforcement tools and the protection of privacy interests.  Still, it was appropriate to see if there was a way that that needle could be threaded.

The controversy over the bill also sparked press interest. A number of articles were written and news segments broadcast about the bill, bringing additional attention to the issue of distracted driving and the proposal’s privacy implications.  Burlington Free Press; WCAX; Fox 44.

The attention was not all negative. Many individuals applauded my efforts at addressing this continuing risk to the safety of our highways, even if they had concerns regarding the proposed implied consent provision. Many also suggested other ideas for addressing the problem. This was positive. I received more input and ideas in the two weeks following the introduction of the bill than I had in the previous five months of exploring the issue.

The Judiciary Committee decided to take up the bill on January 19^th and our Committee chair made me responsible for conducting the hearing. I arranged for testimony from various law enforcement representatives, a policy authority from AAA, public safety officials, and a representative from the ACLU.

On the morning before the hearing, however, the attorney from the Legislative Counsel brought to my attention a case, Bernard v. Minnesota, that the U.S. Supreme Court had recently agreed to consider. That case, though involving DUI laws, would squarely put the constitutionality of implied consent provisions before the Court. After discussing the implications of the Supreme Court’s action, we decided that any consideration of the implied consent provision in H.527 should await the ruling in Bernard. The opinion will either ban use of such a concept or provide guidance on how such a concept may be appropriately used. Because the Supreme Court will not decide the case in time for the legislature to take up the issue this session, we decided to table this aspect of the bill. Later, during the hearing on H.527, the Committee agreed.

Nevertheless, we took testimony from the witnesses regarding the issue of distracted driving and the other provisions of the bill that do not involve the implied consent provision. We also discussed some of the other ideas for addressing the issue that had been generated after H.527 had been introduced. The press reported on the deliberations and the demise of the implied consent provision.  Burlington Free Press.

At this point, the bill is being modified based on the testimony and the decision to table the implied consent provision. The Committee may still take action on certain provisions such as strengthening certain penalties for inappropriate use of portable electronic devices and providing additional resources for education and enforcement. There is more we can do to help reduce the incidence of distracted driving.

I have learned a number of lessons from my experience with this bill. I understood that the implied consent provision would be controversial, but did not appreciate the amount of attention the privacy issue would generate. But, I have learned that not all attention is bad. It focused the community on the fact that the state has not resolved this highway safety issue. We heard from numerous witnesses that distracted driving is the top concern in Vermont for highway safety, equivalent to the problem of driving while impaired by alcohol. We also generated additional ideas for addressing the problem.

I will continue to pursue solutions to this issue along with the many other concerns that the Judiciary Committee and the Legislature face.

In the first three weeks of the legislative session, the Judiciary Committee has taken to the highways. We have been working on a number of bills related to the safety of Vermont’s roads and to helping Vermonters retain or regain their driving privileges so they can be productive members of their communities.

H.560, which both the Transportation Committee and Judiciary Committee are considering, would strengthen a number of highway safety laws. One of the primary provisions of this lengthy bill would expand the use of ignition interlock devices, which are breathalyzers for an individual’s vehicle. Since 2011, the use of interlock devices has prevented 6000 incidents of driving while impaired. Current law, however, contains certain disincentives to the device’s broader use. The bill would remove these disincentives so that more individuals would drive with a Restricted Driver’s License, using an interlock device to ensure sober driving, rather than facing a license suspension.

In addition, H.560 would provide that any driver who is in a crash resulting in serious bodily injury or fatality will be deemed to have given implied consent to a blood test to determine if the individual was driving while impaired. This provision is likely to suffer the same fate as the implied consent provision in H.527, a bill that includes such a provision to assist in the enforcement of Vermont’s laws banning texting and the use of handhelds while driving.  The U.S. Supreme Court recently granted certiorari in Bernard v. Minnesota, which will likely address the constitutionality of implied consent provisions such as those in H.527 and H.560. Upon learning of this while taking up H.527, the Committee decided to table consideration of the implied consent concept, although other aspects of the distracted driving bill, including some strengthening of penalties, should receive further consideration.

The Committee has also been examining the issue of driving with a suspended license. License suspension contributes to poverty in Vermont. Losing one’s license undermines the ability to access jobs, housing, and resources, particularly in rural areas. 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 34,000 license suspensions due to failure to pay traffic tickets. These suspensions reflect a driver’s inability to pay rather than whether that driver can safely operate a vehicle on our public roads.

We are addressing this situation in H.571, which would cut traffic fines for low-income Vermonters in half; reduce the duration of suspensions and eliminate indefinite suspensions for conduct that does not relate to unsafe driving; limit the use of license suspensions for offenses unrelated to driving; and eliminate license reinstatement fees. So that these changes to the law are revenue neutral, the bill would add a surcharge to all traffic tickets. In any event, enactment of these provisions should reduce costs to law enforcement as well as to courts. Most importantly, however, the bill would reduce the number of drivers who have suspended licenses. It would allow individuals whose offense is unrelated to highway safety to retain their driving privileges, ability to earn a living, and opportunity to contribute to the economy.

Judiciary has also been reviewing metrics on state court performance relative to population-level outcomes. We have heard testimony from the court administrator related to caseload, throughput, and other statistics that show how the courts are doing in providing Vermonters access to justice. In short, the court system is currently challenged by the collateral consequences associated with opiate addiction, primarily in the Superior Court family division. The recent appointment of four additional judges and the implementation of a new case management system should alleviate these challenges.

The courts, and the Judiciary Committee that oversees the judicial system, sit at the end of the pipeline, dealing with the consequences of societal problems. The Secretary of Education provided an enlightening presentation to the Committee about how our schools are trying to deal with those problems early, so that the courts do not have to address them later. She explained how the State is working to reduce the incidence of suspensions and expulsions from school, which, if unaddressed, can become a pipeline to prison. Investment in initiatives such as early education and the use of restorative justice in schools can reduce the number of individuals entering this pipeline and reduce the costs of the court system.