Author: lalonde

Judiciary Wrap Up

lalonde

Although Vermont is one of the safest states in the country, its citizens still rightfully expect the legislature to continue to prioritize public safety.  In considering bills that address public safety, the Judiciary Committee must also ensure that the law does not unduly infringe upon individual liberties and freedoms.  The Committee seeks to fulfill Vermonters’ expectations that they will have ready and equitable access to justice, that individuals will receive due process if their rights and liberties may be curtailed, and that the law will protect vulnerable citizens.  In addition to balancing these often-competing goals, the Committee focuses on many other aspects of the State’s judicial and legal affairs.

This session, to improve public safety, the legislature enacted a number of laws addressed by the Judiciary Committee.   Act 1 strengthens aspects of the Sex Offender Registry, ensuring that a sex offender reports updated information for the Registry to the Department of Public Safety prior to his or her release from a correctional facility. H.105 makes it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent and with intent to harm, even if the subject had consented to the taking of the photograph or video. S.102 assists law enforcement in its efforts to combat drug trafficking by modifying rules related to the forfeiture of assets used in perpetrating certain drug-related crimes. The Act also expands forfeiture rules related to dog fighting. Act 14 prohibits violent felons from owning firearms and requires state courts to submit to the National Instant Criminal Background Check System (“NICS”) the names of those whom a court has adjudged to be a danger to themselves or others due to mental illness.

While addressing these efforts to improve public safety, the legislature was careful to protect individual liberties. S.13 (a separate bill than Act 1) ensures that Sex Offender Registry information listed on the Internet is accurate. It also provides a mechanism for individuals to challenge the accuracy of information or their inclusion on the Registry. While S.102 allows forfeiture of assets used in the perpetration of certain crimes, it does not allow for such forfeiture to occur unless an individual is actually convicted of that crime. This contrasts with the federal forfeiture law, which allows for forfeiture when an individual is charged with certain crimes, whether or not convicted. Act 14 provides a procedure for individuals to have their name removed from the NICS database.

Criminal convictions often result in consequences for Vermonters beyond court-imposed penalties and sentences, particularly for felons. For example, even after serving their time and paying any imposed penalties, individuals who have been convicted suffer from an inability to obtain housing or employment due to their criminal records. In addition, incarceration for non-violent offenders is often costly and counterproductive.

Collateral consequences and counterproductive incarceration are particularly problematic for juvenile offenders. Current 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. They are, in short, more likely than adults to make bad decisions and to violate criminal law. So long as their record follows them, juvenile offenders will suffer the consequences of their errors long after they have reached adulthood and completed the court-imposed punishment for the crime.

The legislature has enacted law that seeks to alleviate the problem of collateral consequences and counterproductive incarceration, particularly for juveniles. S.115 establishes a quicker path to expunging their criminal record for individuals who committed their crimes when younger than 25. H.62 prohibits sentences of life without parole for a person who committed his or her offense as a minor. Each of these bills await the Governor’s signature. The House also passed H.95, which seeks to ensure that States Attorneys file more cases in the Family Division of state court rather than in the Criminal Division when those cases involve juveniles. If filed in the Family Division, the juvenile’s record will not be public, thus collateral consequences from the conviction will not travel with him or her into adulthood. The Senate did not act on this bill in this session.

In addition, the Judiciary has taken testimony on a bill that seeks broader reform of Vermont’s criminal justice system. The bill would, among other changes, reduce the number of crimes punishable as felonies; eliminate jail time for non-violent offenders; prevent people from being kept in jail past the end of their sentence due to lack of housing; expand parole eligibility for individuals who have serious medical conditions, were sentenced for an offense committed as a juvenile, or are 65 years of age or older; and eliminate incarceration for violations of parole conditions that are not new crimes. Although the bill was not advanced in this session, such issues will likely be at the forefront of Judiciary’s work in the next session, when it continues to seek to rationalize the penalties for the various crimes in Vermont law, reduce unnecessary and costly incarceration rates, and minimize the collateral consequences of conviction.

During the current session, Judiciary also worked to improve protection of children. The Committee assisted with a major initiative of the General Assembly in light of the tragic deaths of two infants last summer. It took testimony on aspects of S.9 that related to criminal justice. Further, in H.86, the legislature enacted amendments to the Uniform Interstate Family Support Act, which assists with the enforcement of child support orders regardless of where a child lives.

The legislature also enacted a State False Claims Act (H.120), which provides for penalties for those who knowingly submit false or fraudulent claims to the State. Full enforcement of this law should bring revenues to the State while also providing a further deterrent to those who would defraud the government. Addressing a separate type of fraud, the legislature also amended laws related to home improvement. Act 13 makes it easier for prosecutors to prove that a contractor has engaged in home improvement fraud.

In short, the Judiciary Committee had a busy and productive session.

Difficult Decisions

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During the course of this legislative session, I have had to make many decisions on how to vote, both in the Judiciary Committee and on the House floor. Many of those decisions have been relatively straightforward. Most of the bills have passed out of the Judiciary Committee on unanimous votes, and many have passed the House unanimously or nearly so.

Decisions on other votes, however, have been more difficult. Two such votes occurred this week, one on a bill to allow voter registration on the same day as voting and the other on a bill to eliminate the philosophical exemption for vaccination for children entering school.

Proponents of the same-day voter registration bill argue that voting is a fundamental right and any barriers to the exercise of that right should be eliminated. Easing the way to vote should bring more people to the polls, and a strong democracy depends on citizen participation. But others are opposed, claiming that same-day registration would make it too easy to register and vote, resulting in increased voter fraud. Elections tainted by voter fraud would undermine the very democratic ideals that free and open elections are supposed to serve.

The bill to eliminate the philosophical exemption for vaccination has been one of the more divisive of the session, as it involves the competing rights of individuals to make health care decisions and rights of a community to be protected from infectious diseases. Proponents and opponents of the philosophical exemption are passionate about the issue.

Proponents of the exemption allege that vaccines are risky and can harm children; it is too difficult to obtain a medical exemption from vaccination; vaccine manufacturers are not liable for the damages they incur and have little incentive to ensure the safety or effectiveness of their vaccines; and the state already has a high vaccination rate (94-98%) and a low rate of invocation of the philosophical exemption. They also assert that removing the exemption takes away the freedom and rights of parents to make educated decisions for their children in a situation where there is no imminent threat that requires the government to intervene.

Opponents of the exemption argue that scientific evidence overwhelmingly supports the safety and favorable risk-benefit ratio of vaccine administration. They reason that philosophical exemptions are associated with clusters of unvaccinated children and outbreaks of vaccine-preventable diseases; our current Vermont law not only contributes to rising rates of under-vaccinated children, but also puts others at risk, including children and adults with diseases or treatments that impact their immune system and those too young to be vaccinated; children, elderly, and immuno-compromised patients deserve to live in a place made safer by higher vaccination rates; parents do not have a right to put other children at risk by not vaccinating their own children; and once-vanquished diseases such as pertussis and measles are resurging as a result of declining vaccinations. In short, they assert that achieving high rates of vaccination in schools is a public health imperative to which individual choice should give way.

The decisions I had to make on these bills provide an opportune time to elaborate on my decision-making process in the legislature. There are many factors that go into my thinking when I decide how to vote.

One consideration is certainly the input that I receive from constituents. I do take into consideration the views that constituents express when they contact me or meet with me at my weekly sessions at the Panera on Shelburne Road. When I receive input from constituents, I do not simply count the pros versus the cons on the issue. I do not let the squeakiest wheel control my deliberation. Rather, I consider the arguments that constituents make and review the facts and supporting materials that they refer me to in order to arrive at my own conclusions.

Nevertheless, what my constituents might or might not think about an issue can only go so far in influencing my vote. It would not be possible for me to cast every vote in the legislature as the majority of my constituents might want me to in part because I simply cannot determine what that majority might think on each issue. Doing so would require me to poll District 7-1 each time a decision has to be made, which, of course, would be extraordinarily difficult if not impossible. Occasionally, however, a state-wide poll may be available on an issue, which can give a sense of where the broader community falls on a particular issue.

When considering certain bills, I also reach out to community members who I know have an interest in or expertise on an issue. For example, I spoke with Tom DiPietro, South Burlington’s Deputy Director of Public Works, to learn more about the city’s interests in the water quality bill the House considered earlier in the session. I also spoke with Donna Kinville, the South Burlington City Clerk, about same-day voter registration. I do not necessarily follow all of the advice that I receive from these community members, but I rely on them to help me make an informed decision.

On bills before the Judiciary Committee, I have the opportunity to gain detailed knowledge on the issues involved. The committee takes testimony from witnesses with various expertise, experiences, and viewpoints and committee members have the opportunity to ask them questions. We review materials that witnesses provide and that we locate through our own research. We receive guidance from attorneys of the Legislative Council and economists from the Joint Fiscal Office. In short, we become well versed in the issues related to the bills over which the Judiciary Committee has jurisdiction.

Because the issues that the legislature addresses are so varied, complicated, and numerous, it is not possible to delve as deeply into those bills that come through other committees. Accordingly, I must exercise a certain amount of deference to the judgment of the committees that investigate in depth the issues within their jurisdictions. This does not mean that I simply accept their judgments, although unanimous support for a bill from a bi- or tri-partisan committee does carry weight as to whether I will support its conclusion. To the extent possible, I seek to verify other committees’ conclusions and weigh the counterarguments. In doing so, and when I feel I need more information on the issue, I will also consider the viewpoints of experts and other witnesses from whom the committees have heard.

Typically, by the time a bill reaches the House floor and we are called upon to vote, my position on a topic has solidified. On other occasions, the debate on the House floor may crystalize an issue on which I am still wavering.

An additional factor that may influence my decision is politics. As a freshman legislator, I am still learning how this factor plays out. To date, I have not felt direct pressure from the leadership of the House or the Democratic Caucus to vote in a particular manner. But I also know that if I constantly vote against the majority, my ability to accomplish work on behalf of my constituents will be diminished. This session, I have voted against the party line on occasion. I sponsored an amendment to ban strikes and imposition in the context of teacher collective bargaining, despite the general opposition to this idea by the Democratic Caucus. But this has been one of the few instances where my own views have run counter to the party.

My votes this week on the bill that will allow residents to register to vote on election day and the bill that will eliminate the philosophical exemption for vaccination for children entering school provide examples of how I reach my voting decisions. I did not hear from any constituents on the same-day voter registration bill. I did, however, hear from the South Burlington Town Clerk, who opposed the bill. Primarily, she was concerned about the increased chances of voter fraud that she believes the bill will create. To alleviate this concern, she urged that individuals seeking same-day registration have an ID or other evidence of their residence.

I considered her input in my deliberations. The Government Operations Committee had also considered her input, which she had delivered in testimony, along with the input of other town clerks and the Vermont Municipal Clerks and Treasurers Association. The Committee sought to address these concerns by pushing off the effective date of the bill to January 2017 and requiring a study that would consider, among other issues, how other states with same-day voter registration address what type of proof of residency should be required by individuals seeking to register on election day.

In considering how to vote, I reviewed the rules related to voter registration in Vermont and the voter registration form. That form requires an individual to affirm that he or she meets the requirements to vote in the district: a United States citizen, a resident of the town in which he or she wishes to vote, and at least 18 years old. The individual must also take a voter’s oath. The form makes clear that giving false information as to one’s qualifications to be registered to vote in the town can result in penalties of up to $10,000 or imprisonment for not more than 15 years. I felt that the requirements and warnings set forth in this form would act as an adequate disincentive to most individuals who might consider trying to register fraudulently. I also reviewed reports and other evidence that had been provided to the Government Operations Committee and were available on its website that indicated the very low incidence of voter fraud.

From this review and from listening to the debate on the House floor, I was satisfied that the minimal risks of an increase in voter fraud did not outweigh the benefits of removing barriers to an individual’s ability to exercise his or her fundamental right to vote. I accordingly voted for the bill, which passed the House. In many states, Republican-controlled legislatures are introducing, not eliminating, barriers to voting, with the likely result of disenfranchising many impoverished and under-represented citizens. I’m proud that Vermont is taking a different approach.

In considering how to vote on the bill to eliminate the philosophical exemption, I considered the viewpoints of and facts offered by constituents, experts, and the Health Care Committee, and points made during the floor debate and in a packed public hearing. On this issue, I received more emails and calls from constituents than any other issue that has come before the legislature this session. All but one of these constituents urged me to vote to remove the philosophical exemption. I received emails from many other Vermonters including South Burlington residents outside District 7-1, many who sought to keep the exception in place. I also noted that a state-wide poll shows that over 70% of Vermonters support eliminating the exemption.

I reviewed materials that individuals referred me to and those that were available on the Health Care Committee’s website. On the one hand, I did empathize with many of the points that proponents of the exemption advanced, including their desire to make individual decisions that they viewed as in the best interest of their children. I was most troubled by the apparent difficulty that individuals face when they try to obtain medical exemptions to vaccinations.

On the other hand, I accept the scientific consensus that vaccines are safe and effective, a high vaccination rate is necessary to obtain so-called herd immunity in order to protect vulnerable individuals who are unable to be vaccinated, and the risks of harm from vaccinations are outweighed by the risks from infectious diseases that vaccinations protect against. I also was influenced by the fact that Vermont has one of the lowest vaccination rates in New England and that other surrounding states without the philosophical exemption have higher vaccination rates. The testimony of Vermont Health Commissioner Harry Chen and from a number of respected doctors supporting elimination of the exemption carried significant weight. Also, the bill modifies the provision relating to obtaining medical exemptions, making such exemptions easier to obtain. Moreover, by eliminating the philosophical exemption, doctors will need to consider patients’ requests for the medical exemption instead of simply advising them to exercise the philosophical exemption. Finally, during debate, I felt that those who supported eliminating the exemption were able to effectively answer all of the arguments in favor of keeping the exemption in place.

Ultimately, I was swayed by the view that individual liberties must be balanced against the responsibilities that individuals have toward the community in which they live and so I voted for the bill to eliminate the exemption, which bill passed the House. Having one’s children vaccinated before they enter school, unless one receives a medical exemption or invokes a religious exemption, is part of the responsibility that parents should undertake for the sake of the community’s public health.

These decisions were not easy, but in the end I think that they were in the best interest of my South Burlington constituents and Vermont.

I believe that voters gave me the honor of representing them because they expected that I would use my best judgment on the issues that are important to South Burlington and Vermont. They expect that I will evaluate the facts and policies that lie beneath the problems the legislature is asked to resolve, consider the proposed solutions and the consequences of those proposals, listen to and understand the input I receive from constituents, and use my experience and intelligence to arrive at what I believe to be the best outcome.

A Long Week in the House

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As the legislative session winds down (about two weeks left), long hours and controversial bills have been the norm in the House.

This past Wednesday and Thursday, the House took up a bill related to the Patient Choice at End of Life law, also known as the Death With Dignity Act. That law, which was passed in the last biennium, provides immunity for doctors who prescribe medication for the purpose of hastening a patient’s death. The law provides a number of protections, among which are the requirements that the patient must make two oral requests for medication to be self-administered for the purpose of hastening the patient’s death; the patient must make a written request for such medication in the presence of two witnesses who are not interested persons (e.g., family members, acquaintances); a physician must determine that the patient is, in fact, terminally ill, is capable, and is making an informed and voluntary decision; and the physician must inform the patient of the patient’s diagnosis, prognosis, range of treatment options, availability of palliative or hospice care, and the probable result of taking the prescribed medicine. The law also provides that these protections would sunset on July 1, 2016. After these protections sunset, physicians would still be immune from prosecution for prescribing medications that would hasten death. Apparently, to get this law passed, this sunset provision was included to get the votes of certain lawmakers who did not want the state involved in the matter.

The bill before the House would repeal the sunset provision and thus would keep the protections in place. Before voting on whether the repeal should go to a third reading the House considered an amendment that would have repealed the law in its entirety. After long debate, this amendment was defeated by a 60 to 83 vote, and the bill then was passed to a third reading.

The next day several amendments were offered at third reading to modify certain requirements of the law and to impose additional reporting requirements. Most were defeated except for one directing the Department of Health to adopt rules to facilitate the collection of certain information. The bill then passed, thus the protections of the Act will be retained.

I did vote for the bill, as I think having some control over one’s end-of-life choice is important, so long as protections are in place that ensure the choice is appropriate and informed. Representative Komline summed it up well when she said at the close of debate that “They take this medication when the time for hope is over. They’re not choosing death. They’re just choosing the way they die.”

On Thursday, the House next took up S.9, a Child Protection Bill. I have provided a description of this bill in a previous post. When the bill was first introduced in the Senate, it included a provision that would have created a felony for failure to protect a child. This provision sparked significant controversy primarily because it could act as a disincentive for people to get involved in trying to protect children. The bill that passed excluded any new or enhanced crimes and overwhelmingly passed the House.

Also on Thursday, the House started its consideration of a health care bill. My next article for The Other Paper, which I will post on Thursday, will address the main aspects of this bill. Here, I will mention three aspects of the bill that The Other Paper article will not address.

First, the bill was amended to include tobacco substitutes (electronic cigarettes) in current law regulating the display, sale, and use of tobacco products. In addition, it imposed a tax on the sale of tobacco substitutes.

Second, the bill relies on revenues generated through expanding the sales tax to include sales of candy and soft drinks, increasing taxes on tobacco products, and imposing a meals tax on items purchased from vending machines. These taxes, and the tax on tobacco substitutes, are appropriate sources for funding health care reform. The prices of these products do not fully reflect their costs to society, namely in the increased costs of health care due to obesity and tobacco use. Taxing these products internalizes some of the external societal costs that they impose – it makes the price of the product more accurately reflect their true cost. In addition, by increasing their prices, their consumption and use should decrease, with the resulting decrease in health care costs.

Finally, the bill includes provisions establishing performance milestones for Vermont Health Connect (“the Exchange”). Among these milestones will be the delivery of functioning technology by May 31, 2015 that addresses change of circumstances, and delivery of a fully automated system by October 1, 2015 that allows for 2016 plan enrollment. The bill provides for the independent review of the Exchange by the Joint Fiscal Office and requires the Agency of Administration to explore alternatives to the Exchange in the event the General Assembly decides to seek an alternate path to Vermont Health Connect.

Fortunately, it was not all controversy and work this past week. On Wednesday morning, I sang the devotional with the Statehouse Singers (see prior post). And on Thursday evening, after 10 hours on the House Floor, I participated in the annual Cabaret. This fund raising event features skits, jokes and songs performed by representatives, senators, and Statehouse staff, poking fun at each other and our work. I played guitar and sang a solo, the Gun Bill Blues, sang to the tune of Fulsome Prison Blues, and accompanied Judiciary Committee members in a tune about gaining weight over the course of the Session because of eating too many snacks in the Committee room. After a long, tiring day, the event was a welcome respite.

Judiciary Committee Update

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Over the past two weeks, Judiciary has heard testimony related to the Child Protection Bill, S.9. We have focused on adjusting language related to the responsibilities of Mandated Reporters to report to the Department of Children and Families. On one hand, we want to require timely reporting of suspicions of abuse and neglect of a child, but on the other, we want to avoid requirements that are too far-reaching. If the language requiring reporting is too broad, Mandated Reporters could flood DCF with calls to avoid potential prosecution or penalties for failing to report. Such a result would make it far more difficult for DCF to focus on those cases that present clear risks of harm to children. In the end, Judiciary and most witnesses concluded that getting the balance correct will depend less on the precision of the language crafted for the law than on appropriate and continued training of Mandated Reporters.

In its considerations of S.9, Judiciary also has sought the correct balance between reliance on the criminal justice and the child protection systems. The question that has hung over this bill from its introduction in the Senate is whether the legislature should emphasize punishing and deterring behavior that harms children, or emphasize education, treatment, and other services to avoid the harm in the first place. The bill as passed by the Senate emphasized the former, creating a 10-year felony for failure to protect a child. House Health and Human Services shifted the emphasis to the child protection system, eliminating the failure-to-protect felony from the bill and instead increasing the penalties of certain existing crimes. Judiciary has continued the shift away from reliance on punishing caregivers when something goes wrong. It is currently considering eliminating from the bill some or all of the increased criminal penalties that Health and Human Services added. Judiciary anticipates having a vote on the bill early in the coming week.

Judiciary has also taken testimony on S.102, which provides for forfeiture of property associated with certain regulated drug possession, sale, and trafficking violations and with dog fighting. The bill provides two avenues for the State to seek forfeiture of such property, one allowing forfeiture post-conviction and the second allowing pre-conviction forfeiture in certain limited circumstances. Testimony seems to be building to the conclusion that Judiciary should strike from the bill the second avenue that permits forfeiture without requiring a conviction. In addition, the Committee is considering whether the proceeds from forfeiture should, in part, go to law enforcement or whether all proceeds should go to the General Fund. We have heard testimony that allowing proceeds from forfeiture to go to law enforcement would act as an incentive for law enforcement to focus too many resources on those crimes that allow for forfeiture.

In the coming week, House Judiciary will also address amendments from the Senate to two House bills: H.120, which creates a state False Claims Act, and H.105, which criminalizes the nonconsensual distribution of explicit photos or videos.

Healthy Workplaces

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This past week, the House passed the Healthy Workplaces bill, H.187. The law, if it makes it through the Senate, would provide up to 60,000 Vermont employees with at least three days of annual paid sick leave after they have worked at their job for a year or 1,400 hours, whichever comes first. It would also expand mandatory paid leave to five days after two years of employment. H.187 would allow employees to use leave to care for themselves or sick family members.

The bill was sponsored by two legislators who are also small business owners. These sponsors had opposed other versions of such a bill in previous sessions, but felt this bill struck the right balance between the needs of employers and employees. A legislator who is also a doctor emphasized the benefits of the bill to public health, because it would allow parents to stay home with a sick child rather then sending him or her to school and would allow employees in food service industries to avoid going to work ill. The following provides some additional background as to the benefits of this bill:

A Pragmatic, Universal Approach With Employer Flexibility

• The bill creates a framework that allows employers the freedom and flexibility to manage business needs.

• The 1,400 hour waiting period takes into account turnover in industries like food service and construction. To put it in context, a weekend line cook would get one paid shift off after a year of work under H.187.

• Hard-working Vermonters are seeking employer support – this bill lets long-term, year-round employees know they are valued.

• The incremental two year phase-in gives businesses time to adjust.

• Employers have testified that benefits such as these lead to a happier and more stable workforce.

Paid Sick Days Make Our Communities Healthier

• Over 70 percent of food service establishments in New England do not provide paid sick time. Retail and personal care service jobs are a close second. The sectors that come into greatest contact with the public are the least likely to provide paid time off.

• When children go to school sick because their parents cannot miss work, other children and staff are put at risk.

• A 2014 Joint Fiscal Office Cost Benefit Analysis estimated that Vermont would save $5 million dollars in emergency room costs if earned sick days were provided with the understanding from research that people are 5.9 percent less likely to delay routine medical care and catch chronic conditions early if they have access to paid time off from work.

A Modest Step to Support Women, Children, Low-Income Workers

• Roughly 80 percent of the Vermont workforce currently has access to paid time off. The 20 percent that do not – about 60,000 working Vermonters – are disproportionately women earning low wages in multiple jobs.

• 72 percent of Vermont children under 12 live in households where all adults work. Women are more likely than men to stay home with sick children, and are currently much less likely to have access to earned sick days.

• A modest number of paid sick days reduce the trade-off between earning a paycheck and caring for a sick child or visiting the doctor. A recent UVM study shows that Vermont children are 15 percent more likely to have seen a doctor within the past year if their parents have at least three paid days off.

These points and the support of two organizations for which I have a great deal of respect, Vermont Businesses for Social Responsibility and the Main Street Alliance, convinced me that this was a bill I should support.

Firearms Possession Bill Passes House

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This past week, the House passed a bill, S.141, by a vote of 80 to 62. The bill has three main components: (1) it prohibits violent felons from owning firearms, (2) it requires state courts to submit to the National Instant Criminal Background Check System (“NICS”) the names of those whom a court has adjudged to be a danger to themselves or others due to mental illness, and (3) it establishes a process for individuals who are no longer so adjudged to regain their rights to purchase and possess firearms. This is a bill that both respects the Second Amendment and protects public safety.

It was an interesting, although sometimes frustrating debate. Throughout this session I have respected and understood the rationale behind different perspectives even if I disagreed with them. But most of the arguments against S.141 were worthy of little respect as they mostly relied on conspiracy theories, irrelevancies, and misinformation. Those opposing the bill complained that it was born of out-of-state money supplied by Michael Bloomberg (the previous Mayor of New York City and an opponent of the National Rifle Association). A conspiracy theory and, more importantly, irrelevant. The bill had broad support from Vermonters, including many of my own constituents.

Opponents also argued that the bill would lead to veterans declining to seek treatment for ailments such as Post Traumatic Stress Disorder out of fear that doing so would result in their losing their guns. Shamefully, opponents of the bill have obscured the purpose of the legislation and have stoked this very fear. If any veteran declines to seek treatment after this legislation passes, it will not be due to the contents of the law, but to the rhetoric of its opponents. Under the law, seeking voluntary treatment for a mental illness in no way would cause one’s name to be submitted to the NICS. A person’s name is submitted to the NICS only if a court finds by clear and convincing evidence that an order should be issued requiring that individual to enter treatment because he or she is a danger to himself, herself, or others.

S.141 stood on its own merits. During the floor debate, a number of proponents of the bill offered moving and persuasive testimony. One member, a Vietnam veteran, explained that he has received voluntary treatment over the past 30 years in his fight with Post Traumatic Stress Disorder. S.141 would not have applied to him, he noted. Another member closed the debate by telling of his brother who had been adjudged to be a danger to himself but was nonetheless able to purchase a firearm, which he used to commit suicide.

In explaining her vote, another proponent of the bill summed up the issue nicely:

“Vermont has a strong culture of gun responsibility, but giving easy access to violent felons has never been part of that. Federal law already prohibits dangerous people from possessing weapons, but right now aspects of this law can’t be enforced at the state level. We want our state to be a place where a violent felon knows that if he or she has a gun they will be prosecuted. We want the family members of those who have recently been adjudicated as a danger to themselves to know that if their loved one tries to buy a gun at a gun shop, the background check will stop them. We want to be clear that people can recover from mental illness, and that if someone who has been previously adjudicated gets better, there is a process in place so that they can get their rights restored. The bill does all of this, while carefully protecting the right to bear arms.”

So, probably the most controversial bill that we will face this session is behind us. There will, of course, still be disagreements and heated debate when the House takes up other issues such as requiring paid sick leave. It should continue to be engaging over the final few weeks of the session.

Some Q & A Regarding the Gun Bill

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Yesterday, House Judiciary passed out of committee a bill that would restrict gun ownership rights of violent felons and those who are a danger to themselves and others. Check out my April 11 blog post for more details on the bill. The following provides some answers to questions and concerns that I have been receiving from folks regarding the bill.

Q: Will this bill force people to decide whether they want to seek help or treatment and risk losing their right to have a firearm or not get help and keep their rights?

A: No. Seeking voluntary treatment does not lead to submission of a person’s name to the Registry. It is only by way of a court adjudication finding that someone is in need of treatment and is committed to the custody of the Department of Mental Health that a person’s name is submitted to the National Instant Criminal Background Check System (“NICS”). Through such an adjudication, a court may issue an order of hospitalization or order of non-hospitalization. Both such orders require a finding, by clear and convincing evidence, that an individual is a danger to himself, herself, or others.

Q: Will this bill make it almost impossible to have one’s rights restored once someone has been deemed no longer a threat to himself, herself, or others?

A: After an individual is no longer in the custody of the Department of Mental Health (in other words, is no longer subject to an order of hospitalization or order of non-hospitalization), the reason why that individual was put onto the NICS in the first place has been removed. Nevertheless, there remains a risk of relapse of such a person, particularly within one to two years after custody has ended. There are different ways to balance the procedure for regaining one’s rights and the risk of relapse.

The bill passed by the Senate addressed the balance by imposing an 18-month waiting period between the date on which a person is no longer in the custody of the Department of Mental Health and the filing of a petition for relief from disability (to get one’s rights to gun ownership back). The individual would have to show by a preponderance of the evidence that he or she is no longer in need of treatment and that it would not be against the public interest if relief were granted.

House Judiciary amended this provision. It eliminated the 18-month waiting period before a petition can be filed. Instead, the petition can be filed as soon as a person is no longer subject to an order of hospitalization or non-hospitalization. But, the State’s Attorney or Attorney General has six months in which to file an objection to the petition. This, in effect, will provide at least a six-month waiting period. If there is any question about whether granting the petition would increase the risk to the public interest, the State’s Attorney or Attorney General would likely file an opposition. It would thereafter take months for the petition to be resolved in Court. The bottom line is that, practically speaking, there will be sufficient time after release from custody to ensure that an individual has not relapsed and become a danger to himself, herself, or others.

Q: Isn’t this bill redundant with federal law and thus unnecessary? Isn’t this a solution looking for a problem?

A: Vermont is the only state that has not passed such a law. Forty-nine other states did not think having such a law would be redundant or a solution looking for a problem.

In addition, relying simply on the federal law requires reliance on federal law enforcement and prosecutors. Enacting this bill would reduce this reliance, placing additional law enforcement and prosecutorial authority with the State. Moreover, protection of persons and property within Vermont is not necessarily a federal function. Rather, that is a core function of the state. Accordingly, passing this law to assist Vermont law enforcement is, in one view, a state’s rights issue. This should be a pleasing result for federalism fans.

Under current law, when a Vermont law enforcement officer encounters a felon in possession, he or she will either formally or informally refer the matter to the ATF or U.S. Attorneys Office. The federal authorities act on only a small portion of these referrals because their limited resources are focused on interstate cases (e.g. drug gangs). Vermont officials often decide not to refer cases because they know federal officials will not pursue certain cases. Furthermore, they often decline to refer the felon in possession offense because it could lead to the disruptive situation of an underlining crime being prosecuted in state court while the federal felon in possession crime is prosecuted in federal court. The bottom line is that many instances of violent felons in possession of firearms are not prosecuted.

In short, it is reasonable to give state law enforcement and prosecutors the tool to keep guns out of criminal’s hands.