The Judiciary Committee’s Work to Promote Public Safety

The overriding theme of the Judiciary Committee this session has been addressing pressing public safety concerns. Over the course of the session, the committee has addressed a range of specific criminal activities that have particularly affected the State, such as retail theft, auto theft, and unmarked ghost guns. Alongside these efforts, we worked to put broader systemic reforms in place including expanding restorative justice, providing significant additional resources to the criminal justice system, and restoring work crews, which benefit both the offenders and the judicial system.

Representatives from the Vermont courts, State’s Attorneys, the Defender General, as well as victim advocates and others emphasized to the Judiciary Committee that the two most effective factors to deter crime and improve public safety are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. The certainty and immediacy of consequences depend on a well-functioning, well-resourced criminal justice system.

One of the biggest challenges our court system currently faces is a backlog of cases that pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. After the courts fully reopened, a surge in filings left the courts falling further behind.

The legislature’s primary lever to address the backlog is the State’s budget. The Judiciary Committee worked with the Appropriations and Ways and Means Committees to develop a two-year plan to ensure that all elements of the justice system have sufficient resources. To pay for the effort, the bill (H.880) would have increased a marginal corporate tax rate and certain investment company fees. By the second year, this revenue source would have fully funded the projected additional $17 million over budget, the amount needed to sufficiently resource the criminal justice system. This revenue source did not survive the Senate or the Conference Committee. Nevertheless, the legislature reached a partial solution, investing $8 million above the amount the Governor recommended. The extra resources will fund additional prosecutors, defenders, victim advocates, and court staff, which should help speed the processing of court cases so individuals will be held accountable for their actions as soon as possible after offending. But additional resources may be needed next year to address the court backlog in a timely manner and ensure the expeditious processing of cases, which is essential for public safety.

The Judiciary Committee passed other legislation to address public safety, including the following:

 Codifying Pre-Charge Diversion

A priority of the House Judiciary Committee this year was crafting a thoughtful new approach to restorative justice, which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large. H.645 creates a path to accountability, overseen by the Attorney General’s Office, before alleged offenders enter the criminal justice system. Called “pre-charge diversion,” this approach could reduce the court backlog and, importantly, lead to better outcomes and closure for victims of crimes. Restorative justice centers victims’ needs, a stark contrast to the traditional criminal justice system, which focuses more on the offender. The bill also sets up improved data collection and takes small steps toward improved geographic justice. 

Pre-charge diversion occurs when individuals who commit low-level crimes are referred to community providers of restorative justice, such as community justice centers, instead of court. The bill would allow law enforcement or prosecutors to divert more offenders from the criminal justice system before they are charged with a crime. If an individual does not complete the restorative justice program, they would be referred to the traditional court system. 

Addressing Repeat Offenders of Retail Theft

There’s no question that retail theft is a major issue in several towns throughout Vermont, including South Burlington, and retailers have been clear in their request for legislative action.

As passed by the House and Senate, H.534 establishes increasingly severe penalties for repeat offenses of retail theft. We heard from numerous retail shop owners and employees about the brazenness with which a small group of offenders repeatedly steal items from their stores and their concern that there is little to no accountability for these thefts. This bill tries to address that, though the larger issue for accountability is the current court backlog. 

Expanding Offenses Related to Automobiles

H.563 is designed to close a few gaps in statute, including the surprising fact that current law does not prohibit a person from entering another person’s car without consent. This law is designed to encompass rummaging through someone’s car. Accidental entry into a vehicle thinking it is one’s own will not be criminalized.

This bill also creates a criminal violation for driving someone else’s car when you “should have known” that you did not have permission to do so. Current law only covers those cases where a defendant knows they did not have consent of the owner (what we typically think of as auto theft), but there are instances when the person should have known that they didn’t have consent. This will possibly be an easier standard for prosecutors to meet. 

Establishing a Pre-trial Supervision Program

Before trial, defendants may be release with a promise to abide by certain conditions, such as routine reporting to law enforcement, complying with a curfew, or staying away from certain individuals.  S.195 addresses conditions of pre-trial release and establishes a pre-trial supervision program aimed at helping defendants who have violated their conditions in the past or have five or more criminal cases pending. Several other states currently operate a pre-trial supervision program, but this would be a new step in Vermont.

The main purpose of imposing bail is to encourage people to engage with the court process, thereby increasing the likelihood that the defendant would appear. But bail can only be utilized under certain circumstances and presents obvious equity issues, as a person will remain in prison if they are unable to pay their bail. The pre-trial supervision program would offer various methods of monitoring (ranging from phone check-ins to electronic monitoring), as well as connection with pre-trial services, in an attempt to produce the same intended outcome as the imposition of bail without the financial incentive. 

The bill would also reinstitute community restitution (also known as work crew) as a sentencing option. Last year, the Department of Corrections ended this program, but we have heard from multiple witnesses (prosecutors, defenders, and the court) that work crew is an important tool for providing certain and swift consequences for persons charged with offenses such as retail theft. The program allowed courts to sentence low-risk offenders to pre-determined employment or community service for a maximum of 15 workdays within 60 days. So long as the offender fulfilled the work obligations, they would avoid prison time.

Modernizing Vermont’s Drug Law to Address Fentanyl and Xylazine

With drugs evolving, so too must the laws. S.58 adds xylazine to the controlled substances list, adjusts definitions, and reforms legal standards to hold individuals accountable. One big change is redefining the word “knowingly” so people who sell drugs under generic names like “uppers” and “downers” can’t avoid being held responsible for selling fentanyl and other exotic drugs. S.58 also removes a defense in cases with death resulting from selling drugs, where the law currently requires the prosecution to point to a single drug that caused the death—difficult when dealers are selling concoctions.

Raise the Age Delayed, Big 12 Amended

S.58 also delays the implementation of Vermont’s Raise the Age initiative, which would increase the age that an offender is considered a juvenile and thus eligible to have their case in family court rather than criminal court. The Department for Children and Families (DCF) testified that they lack the workforce, IT infrastructure, and physical infrastructure (a secure juvenile facility) to properly implement the next phase of Raise the Age. The bill delays until next April raising the juvenile offender age limit to 19 years old.

The bill also proposes adjustments to the list of the most severe offenses, known as the “Big 12.” It dictates whether alleged violations for older juveniles start in family or criminal court. It adds use of a firearm during a felony, trafficking regulated drugs, and aggravated stalking, while removing burglary into an occupied dwelling, bringing more consistency in the severity of crimes categorized under the Big 12. 

Expanded Protection for Victims of Domestic Violence

Forty percent of all calls to Vermont law enforcement for violent crimes are related to domestic violence. Any attempt to improve public safety must include efforts to prevent and address domestic violence.

H.27 is one such step. Passed by the House early this year, it adds “coercive controlling behavior” to the definition of abuse already in the civil statute, meaning that victims of such behavior may request a relief from abuse order.

During testimony, we heard chilling accounts of coercive controlling behavior that preceded physical violence, including domestic homicide. In one case, a woman’s husband removed the seats from the family minivan because he knew his wife would not drive her children in an unsafe vehicle. This action isolated her in their rural Vermont home, with no way to escape. He later killed her and their children. 

Current law requires those obtaining relief from abuse orders to prove that they have been physically harmed or are in fear of imminent physical harm. This bill aims to provide a pathway out of an abusive situation before physical violence occurs. 

H.27 complements three laws from last year that originated in the Judiciary Committee. Act 48 limits a convicted abuser’s ability to use the court system to continue harming a survivor. Called “abusive litigation,” this may take the form of frequent filing of motions or complaints that the survivor then needs to answer – costing them money, time, and a sense of actual safety or distance from their abuser.

Act 11 allows community justice centers (CJCs) to receive referrals of domestic or sexual violence cases under specific conditions. As many as 80% of victims never report their abuse, sometimes because they fear the typical criminal justice process. Opening the door to a restorative justice approach, which is entirely victim-centered and focused on repairing harm, may lead more victims to seek relief.

Act 8 bans child marriage. Vermonters who marry younger than 18 years old (89% of whom are girls) are more likely to be abused by their spouse and are at higher risk for a host of physical and mental health challenges. Previously, young girls could be married against their will with just one parent’s consent. Such marriages usually involved a man several years their senior. Married teen mothers are statistically less likely to finish high school than unwed mothers and more likely to spend their adult years in poverty. 

Other Work of the House Judiciary Committee During the Biennium

Preventing Suicides

Vermont’s suicide rate is 50% higher than the national average. This public health crisis drove the legislature’s work in 2023 on Act 45, which addresses suicide prevention. The vast majority of deaths by suicide in Vermont are caused by a firearm. A child who lives in a home with a gun has 440% more chance of suicide than one who does not. These staggering statistics required action, and Act 45 has already saved lives by reducing access to lethal means.

The Act requires a 72-hour waiting period for gun sales, a reasonable time period that will slow the impulsive actions that often lead to suicide. By creating penalties for negligent storage, parents are more likely to secure guns and children are less likely to find them. Household members are also empowered to directly petition a judge for an Extreme Risk Protection Order so they may remove guns from a home when someone is in crisis.

Regulating Ghost Guns and Guns at the Polls

At the intersection of drug laws and public safety, you will often find guns. House Judiciary worked at that intersection as we helped refine S.209, the Vermont Ghost Gun Act.

Vermont law enforcement officers have noted an increase in untraceable firearms – ghost guns – being used in the commission of various crimes, mainly those related to the drug trade. S.209 prohibits possession, sale, or transfer of firearms that do not bear a serial number. These guns can be assembled from parts (often sold in a kit) or printed using a 3D printer. Also troubling is the fact that individuals can possess such a gun without undergoing a background check. Under S.209, a person can still make a firearm on their own, but must bring it to a Federal Firearms Licensee to be serialized. They would also undergo a background check before the gun is returned to them.

The House Judiciary Committee added a provision that bans firearms at polling places during elections and early voting. The constitutionality of this law is well-established and the current political climate warrants increased protections of poll workers, candidates, and voters to ensure free and fair elections.

Proposition 4: Adding an Equal Rights Amendment to the Vermont Constitution

Proposition 4 is a constitutional amendment that would allow Vermont to join 22 other states that currently have equal rights clauses in their state constitution. Three others (in addition to Vermont) are actively pursuing the ratification of equal rights amendments.

Here is the full text of the amendment:

That the people are guaranteed equal protection under the law. The State shall not deny equal treatment under the law on account of a person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin. Nothing in this Article shall be interpreted or applied to prevent the adoption or implementation of measures intended to provide equality of treatment and opportunity for members of groups that have historically been subject to discrimination.

If the proposed amendment passes both the House and Senate again next year, it will reach Vermont voters in November 2026. This is an important (and overdue) step in requiring that all Vermonters must be treated equally.  

Protecting Health Care Providers and Patients

Last year, the legislature passed and the Governor signed Act 14 – also known as the Shield Law – which created the highest possible level of legal protection for Vermont-based providers of reproductive and gender-affirming health care (defined in the bill as “legally protected health care”), as well as patients receiving that care. The law also provides legal protections for any Vermont-based person or entity (e.g., health insurance company) who assists with or otherwise helps facilitate the provision of legally protected health care.  

With other states enacting draconian laws targeting both patients and providers, Vermont’s shield law blocks these attempts to create a chilling effect on important health care decisions made here.

Act 24 of 2023 also protects health care workers, in this case from the threat of physical harm. A troubling rise in assaults on hospital workers led the legislature to pass this law, which allows law enforcement to arrest a person without a warrant when that person assaults or criminally threatens a hospital health care worker or someone providing emergency medical treatment (e.g., an EMT). 

Environment and Climate Issues

Protecting Pollinators

Neonicotinoids are insecticides introduced in the 1990s that have proven to be extremely harmful to honeybees and other pollinators. The House and Senate passed H.706, which phases out the use of this class of insecticides. Neonicotinoids are primarily used to coat corn and soy seeds that grow into food for Vermont’s dairy cows. Farmers pay a premium for coated seeds, but hundreds of studies have shown that treating the seeds with the pesticide has little effect on seedling viability and provides no economic benefit. The bill would ban the use of seeds treated with “neonics” beginning in 2029, the same year that New York State is prohibiting their use. If a farmer cannot obtain an alternative seed, they will be able to apply for an exemption. In the meantime, spray application of these pesticides on vegetables and ornamental plants would be sharply reduced beginning in 2025. Limited use will still be permitted after bloom in apple orchards, where no equally effective alternative exists, and on golf courses. The Governor vetoed this bill, and it will be taken up for an override vote during the June veto session.

Balancing Development and Conservation

Since 1970, our statewide land use law, Act 250, has preserved Vermont’s rural character. It supports compact development in downtowns and village centers while protecting forests and open lands. With limited housing supply and increasing threats from climate change, H.687 sets out strategies to make it easier to build in the right places and better protect natural resources.

The bill incorporates broad areas of agreement among environmentalists, developers, regional planners, and others on changes to Act 250, including a switch to a new location-based permitting process and improved board governance. It proposes three tiers covering downtowns and village centers (tier 1), rural areas (tier 2), and critical natural resource areas (tier 3). Projects in tier 1 that meet certain criteria would be exempt from Act 250 review. Towns will work with their regional planning commissions on a future land use map to identify areas for growth and conservation. The bill also simplifies the process for designating town and village centers through the Vermont Department of Housing and Community Development.

The bill, along with the FY25 budget (H.883), also makes investments in housing. Truly affordable housing requires governmental financial investment to reduce the price so that our nurses, mental health workers, teachers, tradespeople, and other working Vermonters can afford to rent or purchase housing.

Together, these bills committed:

• $58M to expand and support emergency shelter and services for unhoused Vermonters (plus $30M in contingency funding in the likely event of FY24 surplus revenues)
• $19.2M to develop permanently affordable housing (VHCB)
• $8M to renovate existing structures to create new rental units (VHIP)
• $1M to support grants for First Generation Homeowners (VHFA)
• Almost $4 million in eviction diversion pilots, because it is far better and cheaper to enable a family with housing to stay in it
• $1M to support manufactured housing updates or repairs
• $3M for recovery housing, transitional housing for refugees, and community stabilization beds.

The FY25 budget also appropriates an additional $55M to create more affordable housing if unobligated ARPA funding can be redirected for those purposes.

Investing in Flood Safety

As Vermonters face increased flooding due to climate change, it is more important than ever to invest in prevention, planning, and infrastructure. Because they do not respect town borders, reducing costly flood damage around the State calls for holistic statewide regulations to guide safer development.

The Flood Safety Act (S.213) builds on existing programs to bring more resources to towns for managing development in river corridors and floodplains. As naturally spongy areas (wetlands) provide effective, low-cost flood prevention, the Act also expands wetlands protections in the State.

Vermont has over a thousand dams with only a few built to control flooding. If dams are not well-maintained, they can create dangerous conditions downstream. The Flood Safety Act funds more State engineering staff to inspect dams, finances more dam removal and repair, and brings dam oversight under one agency, the Department of Environmental Conservation. The Act also bans a type of foam used in floating products like buoys and docks because it breaks down into small beads that pollute shorelands and wetlands.

Renewable Energy Standard

Vermont’s Renewable Energy Standard, an energy policy passed in 2015, put Vermont’s electric utilities on the path to cleaner electricity from renewable sources like hydro, solar, and wind. Since then, the State has committed to transitioning away from fossil fuels as we join the global call to action to reduce carbon emissions and protect our future. Now, with historic funding available for clean energy, Vermont is set to make major progress over the next decade. H.289 reflects a remarkable collaboration among electric utilities, environmental groups, and legislators to bring more renewable energy into our grid faster. The updated Renewable Energy Standard raises electric utility requirements for renewable energy to 100% by 2030 for most utilities with a longer timeframe (2035) for smaller utilities. The bill would double the amount of new renewable energy built in the State, creating good-paying clean energy jobs and better protection from rising fossil energy prices. To make sure all Vermonters have access to the benefits of renewable energy, the bill also includes a study on current and needed programs for affordable housing developments and customers with lower incomes. The Governor vetoed this bill, and it will be taken up for an override vote during the June veto session.

Education

School Construction Aid: Taking the Next Steps

Vermont’s school buildings need more than $6 billion in investments statewide to modernize them, replace worn-out systems, achieve code compliance, and replace buildings that would be cheaper to rebuild than repair. Unfortunately, the State has not had a program to assist school districts in paying for major capital projects since 2007. A new school construction aid program would offer vital support to districts seeking to improve and update their facilities.

The legislature passed H.871 as a next step towards restarting Vermont’s school construction program. This bill creates a legislative working group to prepare draft legislation for January 2025 that designs a new state construction aid program. H.871 also creates a grant program to help school districts assess their current needs and plan for future projects.

Cost-Sharing for Education Services

Act 46 of 2016 at first encouraged, and then required, school districts to unify to better serve students and manage costs. Building on this progress, this year the legislature passed H.630, which allows school districts to establish Boards of Cooperative Education Services (BOCES) to collaborate on common needs such as specialized student services, joint supply procurement, professional development, and regional busing contracts. The basis of this bill is promoting strength and economy in numbers.

The Future of Public Education

This year school districts across the State saw unprecedented increases in education costs in their FY25 budgets. This challenging year created urgency around establishing a modern vision for public education in Vermont. As a result, the House Education Committee designed the Commission on the Future of Public Education. This Commission is charged with examining Vermont’s public school system: the structure, cost drivers, system size, and the services provided. After robust engagement with the education field as well as the public, the Commission will make recommendations about how Vermont can create a world class education system at a cost our communities can afford.

Health Care

Reducing the Burden On Primary Care Providers

Vermont is experiencing a severe shortage of healthcare providers. Those dedicated professionals spend around a quarter of their working time dealing with insurance companies that too often second-guess their medical expertise. H.766 will greatly relieve the red-tape burden on our providers, allowing them to spend more time treating patients. That translates to shorter wait times and better health outcomes for Vermonters.   

H.766 will eliminate the time-consuming practice known as “prior authorization” for all primary care providers: the physicians, physician assistants, and nurse practitioners that we visit at local offices, clinics, and community health centers.

When a primary care provider decides that a patient needs a test or referral, that patient will no longer need to wait for their health insurer to take a second look at that decision. Not only will Vermonters get the treatment that they need more quickly, H.766 will allow clinicians to spend more time with patients and less time on the phone with insurers or filling out paperwork.

While Blue Cross Blue Shield estimates that H.766 would increase individual premium rates in 2025 by 1.8% and small group plan rates by 1.9%, these estimates do not include the significant cost savings to Vermont’s entire healthcare system. H.766 will reduce costly delayed care that often accompanies a denied prior authorization, will reduce the need for imaging to be done at the more expensive hospital setting and will allow providers to redirect their staff to more patient-focused care, leading to more access and better healthcare for Vermonters.

Strengthening Peer Support Programs

One of the House Democratic Policy Priorities this biennium was to increase access to health care, mental health care, and substance use disorder treatment services and make them more affordable with a focus on prevention. H.847 creates a pathway for certification for peer support providers and peer recovery support specialists working in mental health and substance abuse treatment programs.

The goal of peer support programs is to help people experiencing a mental health crisis or those who are navigating recovery to connect with peers who have lived experience of trauma, mental health problems, or substance use challenges. This type of support emphasizes a nonjudgmental approach to care that promotes multiple perspectives, helps people access community-based resources, and provides employment support and workforce transitions.

Peer support programs are an integral part of our healthcare system. With the certification pathway in this bill, the role of peer support providers and peer recovery support specialists is strengthened and will enable them to be more available to Vermonters.

Supporting Recovery Residences – S.186

Recovery residences are an essential tool for those with substance use disorder. Having a safe place to live, free from drugs and alcohol, is a critical part of recovery from substance use disorder. S.186 addresses the certification of recovery residences. These homes are typically rental properties where a group in early recovery agrees to live in a setting emphasizing structure, accountability, employment, and community service. They are not treatment centers or medical facilities, and often partner with recovery centers that provide additional recovery coaching, group meetings, and peer support for individuals in recovery. 

Recovery residences offer the essential elements necessary for individuals to achieve sustained, long-term recovery. Currently, 13 privately certified recovery residences operate in Vermont. The Department of Health is directed to work with community partners to develop the rules and regulations for a certification process for recovery housing in Vermont, aiming to increase the number of recovery residences. Housing is essential for successful recovery, and this bill seeks consistency and best practices to protect individuals to have the best chance of success.

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Note that some of these bills may be vetoed by the Governor and may not become law. You can check their fate at the following website: https://legislature.vermont.gov/bill/search/2024.

The following is my Floor Report for S.195. The Senate further amended the bill with relatively minor changes.

In order to explain what S.195 does, I’m going to start by explaining what happens in the Vermont criminal justice system when someone commits a crime.

Let’s assume that a police officer arrests an individual in the act of committing retail theft. I’ll assume the individual is a male and I’ll use he/him pronouns in this hypothetical. The value of the merchandise stolen is $500.00, so the offense would be a misdemeanor retail theft. To be a felony, the value of the goods would have to be at least $900.

In most cases, for a misdemeanor like this one, the officer would issue the person a citation to appear in court for arraignment at a future date, probably not for several weeks. In this hypothetical, though, let’s assume that this isn’t the first time that the individual has committed retail theft. Let’s also assume that this person has previously failed to appear in court when cited and, in fact, attempted to evade the officer when they arrived on the scene. So, instead of citing him, the officer arrests and detains the person and takes him to court for his arraignment because the alleged event occurred during normal business hours.

At the arraignment the defendant, if indigent, will be appointed a public defender. He will hear the charges against him and enter a plea. The court will also address two concerns at that time. First, is there a risk that the defendant will not show up for pretrial hearings or for the trial itself? Second, does the defendant pose a risk to public safety? If no such concerns exist, the defendant is likely to be released on his own recognizance. If there is a concern, the prosecution can ask for bail to be set and can also ask for conditions of release, or the court can impose bail or conditions of release on its own initiative.

As to bail, under the Vermont Constitution, the only legitimate purpose of bail is to mitigate the defendant’s risk of flight from prosecution and to ensure his appearance in court. In other words, the purpose of bail is to encourage the defendant’s appearance, ensuring that the defendant has a vested interest in showing up. If he doesn’t appear, he may forfeit the bail amount. As the Vermont Supreme Court has held, Madam Speaker may I quote from State v. Pratt:

“In setting bail, courts must always be guided by the goal of securing a defendant’s appearance at trial, and should not set bail at an unattainable level for the purpose of detaining a defendant rather than assuring the defendant’s appearance.”

In my scenario, the Defendant is charged with a misdemeanor that is eligible for expungement. Vermont law caps the amount of bail that can be imposed on such offenses at $200. We will assume that the prosecution argues that this particular defendant presents a risk of flight from prosecution – in other words, that he will try to avoid future court proceedings. The Court will consider a number of factors in determining the risk of flight from prosecution, including the seriousness of the offense charged and the number of offenses charged. After these considerations, in this scenario, the Court sets bail at $200 and the defendant posts bail.

To ensure that the Defendant is going to appear, the prosecution also requests that the Court impose certain conditions of release. They request and the court imposes a restriction that requires that the person show up in court when required to, keep his attorney informed of his address and contact information, and stay 300 feet away from the business where the theft allegedly occurred.

If the Defendant also posed risks to public safety, similar or additional conditions of release could also be imposed.

As I explained when reporting H.880 earlier this session, the courts are facing a significant backlog of cases. If our courts were not facing the current case backlog, the Judge in my scenario might set a trial date. But because of demands on the court’s time from more serious cases such as violent felonies, our Defendant will not face a trial date until months, if not years, later.

And while he awaits his trial date, he may get in further trouble with the law. That is, in fact, what is currently happening in Vermont and is causing significant concern with the public. As the Judiciary Committee learned in testimony, it is not unusual to have a defendant with over 10 charges with multiple violations of conditions of release and failures to appear in court. State’s Attorneys have seen an increase in cycles of noncompliance with defendants repeatedly violating conditions, committing new crimes, being arrested on a warrant for those violations and crimes, and then being released again on conditions.

S.195 contains several provisions to help address this problem while we are working to properly resource the criminal justice system to reduce the court backlog.

I will now turn to the bill.

Section 1 of the bill, found on page 4782 of today’s calendar, amends 13 VSA 7551 related to the imposition of bail. Let’s take the defendant I mentioned, who is charged with a misdemeanor offense eligible for expungement. Under current law, if a court finds it necessary to impose bail to address that defendant’s risk of flight from prosecution, it can impose bail at a maximum of $200.

S.195 provides that the $200.00 maximum does not apply if the court finds that the person has previously engaged in flight from prosecution. In other words, if that person has already avoided court appearances despite having conditions of release and/or imposition of bail, the Court may impose a higher bail amount in order to incentivize the person’s appearance in court. The Court still must consider the defendant’s financial resources in determining the bail amount. The amount can’t be excessive and can’t be designed to punish or detain the defendant.

Section 2 found on page 4783 of today’s calendar amends 13 VSA 7554, which relates to the release of a defendant pending trial.

Subdivision (a)(1) addresses a defendant’s risk of flight from prosecution. It states that a defendant shall be released on personal recognizance or on bail unless the court determines that such release will not reasonably mitigate the risk of flight from prosecution. In determining that risk, the court currently considers a number of factors. S.195 adds additional considerations related to the defendant’s compliance with prior court orders. It adds the following:

“whether, at the time of the current offense or arrest, the defendant was released on conditions or personal recognizance, on probation, furlough, parole, or other release pending trial, sentencing, appeal, or completion of a sentence for an offense under federal or state law; and whether, in connection with a criminal prosecution, the defendant is compliant with court orders or has failed to appear at a court hearing.”

We learned that courts already may consider these factors. This amendment clarifies that court’s should consider these factors.

Subdivision (a)(1)(A) lists the conditions of release that the Court may impose on a defendant. S.195 adds two more possible conditions of release: pretrial supervision and home detention. Subdivision (H) allows the Court to place the defendant in the pretrial supervision program. This program is created in section 4 of the bill. Subdivision (I) allows the Court to place the defendant in the home detention program. This program is addressed in section 3 of the bill.

If the court decides that the conditions of release imposed to mitigate the risk of flight won’t sufficiently protect the public, it can impose additional conditions of release. Subdivision (a)(2) addresses these conditions of release, and S.195 adds the same conditions as in the prior subsection – placement of a defendant in the pretrial supervision program or home detention program.

Subdivision (b)(2) sets forth a list of considerations for the court in determining what conditions to impose. These considerations mirror those related to risk of flight from prosecution. S.195 adds the same considerations as it added with respect to the determination of risk of flight.

These considerations are added because they are relevant to whether a defendant is a risk of flight or a risk to the public.

Section 3, found on page 4788 of today’s calendar, relates to the home detention program.

Currently, defendants who are unable to pay bail may be placed in home detention pending trial. Under the program, a defendant may be confined in a preapproved residence. The confinement is enforced through appropriate means of surveillance and electronic monitoring by the Department of Corrections. S.195 would expand the program to allow courts to place defendants who have allegedly violated conditions of release in home detention to mitigate the defendant’s risk of flight. I will skip the details because this section of the bill falls primarily under the jurisdiction of the Committee on Corrections and Institutions. That Committee’s amendment to S.195 reworks this Section.

Turning to Section 4, found on page 4789 of today’s calendar.

Currently in Vermont, there is inadequate supervision of State Court criminal defendants who are awaiting resolution of their cases. They may be released on conditions, but no-one is officially monitoring whether they are in compliance. And they may not be receiving help in complying. Nevertheless, they still are often caught violating conditions of release.

Other states offer pretrial supervision services. Such services can provide defendants with assistance in complying with conditions. They can, for example, make sure that defendants are accessing substance abuse treatment or mental health counseling. In addition, they can help make sure the defendant attends scheduled court appearances.
Section 4 creates a pretrial supervision program.

Subsection (a) provides that “the purpose of the Pretrial Supervision Program is to assist eligible people through the use of evidence-based strategies to improve pretrial compliance with conditions of release, to coordinate and support the provision of pretrial services when appropriate, to ensure attendance at court appearances, and to decrease the potential to recidivate while awaiting trial.”

Subsection (b) provides a definition of “absconding.”

Subdivision (c)(1) provides the criteria for when a defendant may be placed in the pretrial supervision program. The program is to start on January 1, 2025 to give the Department of Corrections time to establish policies and procedures.

As to the criteria, only a defendant who has been charged with violating a condition of release or who has no fewer than five pending cases can be placed in pretrial supervision. If the defendant meets this threshold, the defendant must also pose a risk of nonappearance at court hearings, a risk of flight, or a risk of endangering the public.

Subdivision (c)(2) requires the Department of Corrections to assign pretrial supervisors to monitor defendants and coordinate pretrial services for the defendant. The Department also determines the appropriate level of supervision for the defendant based on evidence-based screenings of eligible defendants. Four levels of supervision may be set: telephone monitoring, telephonic meetings, in-person meetings, or electronic monitoring. There is also a catch-all provision allowing any other means of contact deemed appropriate.

One note on electronic monitoring. As passed the Senate, S.195 established a stand-alone, separate electronic monitoring program. Some witnesses were concerned that having a separate program that could be used on anyone pretrial could be overused and unduly restrict individuals’ liberties. We therefore decided to limit the use of electronic monitoring to those individuals who need more supervision – specifically, to those individuals placed in the pretrial supervision program.

Subdivision (c)(3) provides that a court placing a defendant in the program shall set the level of supervision based on the DOC’s recommendations.

Subsection (d) provides the procedure for determining whether a defendant is to be placed in the pretrial supervision program. The prosecutor, defendant, or court can request that the defendant be reviewed for the program. The review would proceed after the court receives the DOC’s recommendation of supervision level.

The Court will first consider the eligibility criteria – that the defendant violated a condition of release or has at least five pending court cases. If the eligibility requirements are satisfied, the Court will determine whether placement in the program will ensure the person’s appearance in court, mitigate the person’s risk of flight, or reasonably ensure protection of the public. In making that determination, the Court considers the factors listed in subdivision (3)(A) through (E).

Subsection (e) addresses compliance and review. Under subdivision (e)(1), pretrial supervisors are to notify the prosecutor of violations of the Program’s supervision requirements. Subdivision (e)(2) provides that the prosecutor or defendant can request review of the pretrial supervision conditions. Subdivision (e)(3) allows the prosecutor to seek a warrant for arrest of a defendant who fails to report to the pretrial supervisor, commits multiple violations of supervision requirements, or has absconded.

Subsection (f) requires DOC to establish written policies and procedures for the Program.

Subsection (g) provides that the program shall operate only to the extent funds are appropriated for its operation.

Subsection (h) provides that DOC may support the program through grants or contracts for services.

Once established, the Pretrial Supervision Program is designed to help defendants stay out of further trouble while they are awaiting resolution of their case, or cases.

The amendment of the Committee on Corrections and Institutions will propose a further amendment of this section.

Section 5 is found on page 4791 of today’s calendar.

As passed the Senate, S.195 included a new provision that established procedures to address violations of conditions of release. We learned in testimony, primarily from the Chief Superior Judge and the State’s Attorneys, that the provision actually makes for a more cumbersome process.

House Judiciary decided on a different approach to ensure such violations can be expeditiously addressed. We decided to accept the suggestion of the Chief Superior Judge that we could amend a current section of title 13 to achieve our purpose.

So, to Section 5, which amends 13 VSA 7559. S.195 renames this section “Violations of Conditions of Release; Failure to Appear; Warrantless Arrest.” It also moves language related to Release and Designation to new section 7559a.

Section 7559 aims to provide an expedited route for holding accountable a defendant who violates a condition of release.

Subsection (a) is existing language that is moved from subsection (e) of current section 7559. It provides that a State’s Attorney can bring an action for criminal contempt against a person who violates a condition of release. The alternative is to prosecute the violation as a misdemeanor.

Subsection (b) modifies existing language in 7559. Currently, 7559 provides that “Upon commencement of a prosecution for criminal contempt, the court shall review, in accordance with section 7554 of this title, and may continue or modify conditions of release or terminate release of the person.”

The new language makes it clear that this review and modification may occur when someone is arrested after hours or at their initial appearance on the criminal contempt charge. This is the language that makes clear that the court can expeditiously hold someone accountable for violating a condition of release. They can modify the conditions of release, potentially change the bail amount, or detain the person.

Subsections (c) and (d) are current language.

In short, section 5 provides the means to hold individuals accountable if they violate conditions of release. That, in turn, enhances public safety and mitigates the risk of flight.

Section 6 found on page 4793 of today’s calendar creates a new section, but does not change current law. All of the language that was struck from section 7559 has been moved to this section.

Sections 7 and 8 found on page 4793 of today’s calendar is a belt and suspenders section. Members may recall in H.534, related to retail theft, that community restitution was added as a sentencing alternative. To ensure that this provision makes it through to law, we have added the same provisions to this bill.

Section 9, found on page 4794 of today’s calendar, amends 13 VSA 4253. Subdivision (c)(1) provides that “use of a firearm” includes using a firearm while selling or trafficking a regulated drug. Subsection (d) provides that the offense of using a firearm while selling or trafficking a regulated drug shall be considered a violent act for the purposes of determining bail.

The result is that a person who committed this offense could be eligible to be held without bail pursuant to 13 VSA 7553a.

Section 10 provides that the act shall take effect on passage.

While we continue to work to provide appropriate resources to the criminal justice system so that alleged offenders can be expeditiously held accountable for their crimes, the provisions in S.195 will help to assure accountability while the alleged offender awaits resolution of their case.

The Committee’s vote was 9-0-2 and we ask you for your support.

THE FOLLOWING IS MY REPORT FOR THE SENATE AMENDMENT

After further discussions with our colleagues in the Senate, we decided that further limitations on the home detention program were necessary. In short, we want to limit the use of home detention to defendants who violate conditions of release and who pose a significant risk to public safety.

Turning to the language in the amendment, subsection (a) provides the intent for the program.

“It is the intent of the General Assembly that the Home Detention Program be designed to provide an alternative to incarceration and reduce the number of detainees at Vermont correctional facilities by accommodating defendants who would otherwise be incarcerated or pose a significant risk to public safety.”

Subdivision (b)(1) contains a technical correction.

Subdivision (d)(1) adds language clarifying when someone may be placed in home detention if they violate conditions of release. The Court must find that the defendant poses a significant risk to public safety, placing the defendant on home detention will reasonably mitigate such risk, and the proposed residence is appropriate for home detention.

I first announced my candidacy for the Vermont House of Representatives a decade ago. It has been an honor to represent my district for those ten years, and I hope to return to the State House in January to continue the important work of the legislature. Today I am asking for your support in my bid for reelection in South Burlington’s Chittenden-12 district.

I have had the pleasure of getting to know many of my constituents. We have discussed issues at my Saturday morning listening sessions, engaged in dialogue at the city’s legislative forums, chatted as I’ve gone door to door handing out my end of session reports, and talked to voters as I’ve stood at the polls. I have learned – and will continue to learn – how you feel about issues that are important to South Burlington and the whole of Vermont. And I hope to continue to represent you in working toward solutions to those issues.

This past biennium has been extremely busy and also extremely productive. It was my first term as Chair of the House Judiciary Committee, the committee on which I have served since I entered the legislative. I also served this session as Chair of the Special Committee on Impeachment Inquiry, which investigated accusations of misconduct by two elected officials in Franklin County, and Chair of the House Ethics Panel.

I am proud of my hard work on the House Judiciary Committee during the past decade and am eager to continue to make progress on several important issues. I have focused on criminal justice reform, including juvenile justice, bail reform, reducing collateral consequences of criminal convictions, restorative justice, drug treatment courts, and access to justice for all Vermonters. Much of my attention has been on bills that protect the most vulnerable in Vermont, such as victims of sexual assault, sexual exploitation, and domestic abuse.

I have also focused on public safety, clarifying police use of force, facilitating traffic safety, reducing the substantial court backlog so that criminal offenders can be held accountable, creating reasonable restrictions on firearms to reduce gun violence and to prevent suicides, and enabling medical monitoring for Vermonters exposed to toxic substances. And I was proud to report a bill to protect access in Vermont to reproductive and gender-affirming health care, shielding Vermont doctors, nurses, therapists, and others who are providing such health care that is legal here in Vermont.

Over my ten years in the Vermont House, I have also been involved with many issues beyond the Judiciary Committee’s jurisdiction. Environmental issues, including addressing global warming and cleaning up Lake Champlain, have been important to me, as have issues like education funding, collective bargaining, and school construction funding.

Thank you to the voters who have put their trust in me to represent their interests and the interests of Vermont. I ask for your continued support in November.

The House Judiciary Committee has focused on public safety during the decade I have served as a representative. This year, the Committee has passed bills to address retail theft, trespass into motor vehicles, domestic and sexual violence, and the backlog of cases in our courts. The Committee is currently considering Senate bills that address juvenile justice, drug offenses, and bail and violations of conditions of release. We have also continued our sustained efforts to mitigate firearm violence in a manner that respects the right to bear arms under the Second Amendment of the U.S. Constitution and Article 16 of the Vermont Constitution.

Last year, the legislature focused on implementing firearm policies that would reduce suicide. Act 45 required gun owners to securely store their firearms in circumstances where a child or person prohibited from possessing a firearm is likely to gain access to them. It also improved access to Vermont’s red-flag law, which allows a court to issue an Extreme Risk Protection Order (ERPO). An ERPO is a civil order that temporarily prohibits certain individuals from purchasing, possessing, or receiving any dangerous weapons, including firearms, where those individuals pose a danger of injury to self (including suicide) or to others. Finally, Act 45 added a 72-hour waiting period for firearm purchases.

This year, the Senate Judiciary Committee turned its attention to privately-made firearms. Guns can be assembled from parts (often sold in a kit) or printed using a 3D printer. When such firearms lack a serial number, they are known as ghost guns. S.209 would prohibit the possession, transfer, and manufacturing of firearms without a serial number. Without a serial number, guns are untraceable, which can frustrate an investigation when they are used in the commission of a crime. Also, people can obtain ghost guns without undergoing the required background check, including individuals who are prohibited from possessing a firearm.

The text of the bill as it passed the Senate provided that possession, transfer, and manufacture of non-serialized firearms would lead to a criminal penalty. The House Judiciary Committee changed possession of non-serialized firearms to a civil infraction out of respect for the long-standing gun-smithing tradition in Vermont. We agreed with the Senate in having the transfer and manufacture of non-serialized firearms as criminal offenses.

Under the bill, if hobbyists want to build their own guns, they may still do so. They are then required to bring their guns to a federally-licensed firearms dealer to have a serial number added and to undergo a background check. 

The bill also includes a provision that would provide a sentencing enhancement if an offender carried a ghost gun when committing a violent crime. The offender would be subject to a penalty of up to five additional years in prison.

The ghost gun provisions do not violate the Second Amendment. They are constitutional under the Supreme Court’s test in NYSRPA v. Bruen. 

First, this bill does not implicate the plain text of the Second Amendment. It does not impair anyone’s right to keep or bear arms; it simply requires that such arms have serial numbers on them. Second, S.209 is consistent with the historical tradition of firearms regulation. Identifying marks on firearms have a long history, dating back to sixteenth-century England and colonial America. S.209 is likewise consistent with other longstanding prohibitions aimed at keeping guns out of the hands of those who are prohibited from possessing them under existing state and federal law.            

The House Judiciary Committee added a provision to S.209 that bans the carrying of firearms or other dangerous weapons in polling places. This ban is also constitutional under Supreme Court precedent. In Bruen, the Supreme Court specifically identified polling places among so-called “sensitive places,” which are locations where firearms may be prohibited. The current political climate warrants increased protections for poll workers and voters alike from potential violence and intimidation.

Deterring crime depends in large part on having certain and speedy accountability for criminal activity. A well-functioning, well-resourced criminal justice system can lead to prompt consequences for offenders.

But we need not rely solely on the courts to provide expeditious consequences for criminal activity. A well-functioning, well-resourced restorative justice system can also ensure certain and immediate consequences, often with better outcomes for victims and offenders than the criminal justice system. Last week, the House passed H.645, which will improve how Vermont provides restorative justice. 

Vermont has long had many powerful restorative justice options to address criminal conduct outside the traditional criminal justice system. Those options may be available before adjudication (before an individual is convicted or enters a plea agreement) or after adjudication.

As to pre-adjudication, the Attorney General’s office oversees a diversion program that provides a restorative response for individuals charged with their first or second misdemeanor or their first non-violent felony. Community members support the person charged and help them repair the harm done to victims and the community. The restorative process requires the charged individual to take responsibility for the crime. It leads to the creation of a restorative agreement under which the responsible party must repair the harm they caused. A significant part of this process builds new skills to help the offender avoid causing further harm.

The Attorney General’s office also oversees the Tamarack program, which supports adults charged with a crime who have a substance use or mental health treatment need. Tamarack participants must be willing to take responsibility for their actions and, when appropriate, participate in a restorative process aimed at repairing the harm caused by their crime.

The legislature has also established a statutory framework for community justice centers (“CJCs”) “to resolve civil disputes and address the wrongdoings of individuals who have committed municipal, juvenile, or criminal offenses.” 24 V.S.A. § 1963.  CJCs “shall include programs to resolve disputes, address the needs of victims, address the wrongdoing of the offender, and promote the rehabilitation of youthful and adult offenders.” 24 V.S.A. § 1964(a)(3).

CJCs, which can be either municipal entities or non-profits, are involved with both pre- and post-adjudication restorative justice programs. Post-adjudication programs include reparative boards that provide community-centered restorative justice processes for offenders who have been required to participate in such a program as a condition of their probation.

The bill just passed by the House, H.645, would create and codify a statewide pre-charge diversion program. Pre-charge diversion occurs when individuals who commit low-level crimes are referred to community providers of restorative justice, such as CJCs, instead of court. The bill would allow law enforcement or prosecutors to divert more offenders from the criminal justice system before they are charged with a crime. If an individual does not complete the restorative justice program, they would be referred to the traditional court system. 

Some Vermont counties, including Chittenden County, already provide pre-charge restorative justice programs. H.645 would stabilize those existing programs by placing administrative oversight in and funding through the Attorney General’s office. By expanding pre-charge diversion statewide, our entire State will benefit from more timely interventions and reduced pressure on the courts.

Restorative justice avoids many adverse collateral consequences to the party responsible for the harm, including loss of employment, government assistance, housing, and parental rights. Restorative processes are also more effective than incarceration at reducing recidivism. In 2019, the Crime Research Group, which provides criminal justice research in Vermont, produced a report analyzing recidivism rates and costs of the diversion program of the Vermont Attorney General’s office. The report noted that first-time diversion participants without criminal history were much less likely to reoffend than individuals going through the traditional criminal justice system. The same report found that diversion is much less expensive than the traditional criminal justice system.

Victims also benefit from the restorative justice process.  Studies show that victims consistently report higher satisfaction with restorative justice programs than traditional prosecutions. In addition, when given the option, victims tend to opt for a restorative process. Victims want answers, want their voices heard, and want a sense of control relative to what happened to them. They do not want the person who caused their harm to cause further harm. A restorative process can better address these needs than the legal process and the courts.

The expansion of restorative justice, as proposed in H.645, comes at a critical time for Vermont. With increased community concerns regarding public safety and the challenges of court backlogs, along with mounting financial pressures in all areas of state services, it is essential that we invest in public safety measures that are both effective and timely. Community-based providers testified repeatedly before the House Judiciary Committee about how restorative justice offers a high impact, lower-cost intervention compared to traditional court interventions, and does so in a timelier manner – often within weeks of an incident rather than months or years. H.645 seeks to build on these positive outcomes.