criminal justice reform

Busy Week in the Legislature

lalonde

In anticipation of our internal deadline for moving bills between the House and Senate, the House passed a number of bills last week that have gone to the Senate for its consideration. Three of these bills improve our criminal justice system by decreasing incarceration, reducing the collateral consequences of a criminal record, and clarifying policing practices. Four other bills that the Judiciary Committee considered before they were passed by the House are discussed below.

H.261, the “ban the box” bill, would prohibit employers from asking on an initial job application whether an applicant has a criminal record. There would be an exception for circumstances where certain criminal infractions relate to the job (for example, childcare providers could ask about criminal records related to child abuse). By prohibiting such a question on an initial application, the bill would give an individual with a criminal record a better chance at not being screened out from an employment opportunity at the initial stage of the application process. At a subsequent interview, the employer may ask about an individual’s criminal record, but also must give the applicant the chance to explain. The law would moderate the collateral consequence of a criminal record by giving individuals a chance in the job market, easing their reintegration into society.

H.623, a bill on parole eligibility, provides that older inmates who have not yet served their minimum sentence but present a low risk to the public are eligible for parole. It applies to inmates aged 55-64 who have served ten years, and inmates 65 and older who have served five years.

In addition, an inmate with a serious medical condition that makes the inmate unlikely to be physically capable of presenting a danger to society may be released on medical parole. I was pleased to see this “compassionate parole” bill make it out of the House, as I had cosponsored it with two other legislators.

H.743 extends the legislature’s efforts in implementing fair and impartial policing practices. The bill requires the Criminal Justice Training Council to develop a model policy in fair and impartial policing and law enforcement agencies to train their officers on the policies. In addition, the bill modifies existing mandates related to collecting traffic stop data. Current law requires law enforcement officers to collect roadside stop data such as the age, gender, and race of the driver and the reason for the stop. H.743 requires this data to be provided to the Criminal Justice Training Council and the Human Rights Commission, and that it be posted electronically in a way that is accessible to the public. Law enforcement officials were fully in support of this bill and the improved transparency it provides to Vermont’s policing practices.

The House also passed out two bills related to traffic safety that I have discussed in previous posts. H.571 addresses driver’s license suspensions, which I reviewed in prior posts on March 2nd, February 6th, January 23rd, and January 15th. The bill would fix the broken system in Vermont that relies too much on suspending driving privileges as a means of modifying behavior, particularly as it is misused as a consequence for nonpayment of fines for infractions unrelated to the safety of our roads. It would shift the focus to the points system. Motorists who violate laws that relate to highway safety, such as speeding prohibitions, receive points for such infractions. When they receive 10 points, their driving privileges are suspended because by then it has become clear that they are a danger on the roads. The bill goes beyond the license suspension issue and recognizes that distracted driving reduces highway safety; thus, it provides that an individual violating the handheld ban will receive 2 points for a second or subsequent offense. In addition, it increases the number of points that individuals receive if they violate the handheld or texting bans in a work or school zone. I have previously written about my efforts to address the issue of distracted driving in posts on December 11th and January 30th.

The House also passed H.560, which will add incentives and mandates for individuals to install an ignition interlock device after they have been caught driving under the influence. With such a system, the individual can continue to drive, sober, rather than serving a period of license suspension. Because individuals found to have driven under the influence serving a suspension often drive anyway and sometimes drive drunk, incentivizing first time offenders and mandating subsequent offenders to use an interlock device should lead to safer roads. For further information on the issue, you can view previous posts from March 2nd, February 24th, February 12th, January 23rd.

The House passed out two other bills that the Judiciary Committee had considered. H.818 updates the State’s stalking laws, which I explained in a previous post on February 24th. In addition, H.869 streamlines certain procedures in the courts and adds a new Special Master position to the courts. H.869 is appropriately named the “lighten the load” bill. Finding efficiencies in the courts is necessary because of the alarming increase in CHINS cases (CHINS stands for Child in Need of Care or Supervision) and TPR cases (termination of parental rights) in our court system. These neglect and abuse cases are due to the opiate epidemic in our state and add a substantial strain to the court system, stretching its resources because these cases are complicated, lengthy, and time-consuming. H.869 is a result of many months of collaborative work by stakeholders in the judiciary system and this bill takes steps in finding ways to more effectively and efficiently utilize the resources of the courts. The bill creates a pilot of a new position called a Judicial Master, who will facilitate the implementation of proven treatment court concepts. The Judicial Master will coordinate early intervention and judicial monitoring in cases where substance abuse or mental health issues bring an individual into the judicial system. The bill also streamlines certain appeals of civil violations (primarily traffic tickets) and appeals from the Licensing Board and the Transportation Board.

The next step for these bills is the Senate, where I hope they will receive the attention they deserve and ultimately pass into law.

 

 

 

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.

Education, Water, Infrastructure and More

lalonde

In the past week, the House debated and passed a major education reform bill (H.361), a water clean-up bill (H.35), and the capital bill (H.492).

I voted yes on the education bill even though, as a school board member, I had some major concerns with aspects of it, particularly the inclusion of a cap on local school spending. In my next article in The Other Paper, which comes out this Thursday, I will be addressing this issue more fully (stay tuned). In the interim, a couple good articles about the cap can be found in VTDigger and the Burlington Free Press. Also, the Vermont School Board Association published an extensive analysis of the bill as passed. And take a look at the write-up of the Vermont League of City and Towns for an alternative view of the bill.

I also voted for the water bill, which was less controversial than the education bill. Its detractors were concerned about impacts to small farms and the funding mechanism for the cleanup, but the concerns could not turn back the momentum that was behind this important bill. The bill would raise $8 million in new revenue, including $2.3 million in fee increases to be paid by farms and others contributing to the pollution entering the State’s waters. It would also add a .2% surcharge on the property transfer tax. H.35 takes a large step on what will be a long journey to clean State waters, including Lake Champlain. For more information, see my prior blog posts about the water bill and this VTDigger article.

Finally, I also voted for the capital bill, which funds State infrastructure projects over the next two years through issuing long-term bonds. Among other priorities, the bill provides $7.6 million dollars over two years to the Vermont Housing Conservation Board, with at least $1.5 million of that amount to be used for statewide water quality improvements in FY16 and another $1 million in FY17. The Committee on Corrections and Institutions, which works on this bill, recognizes that it is essential that the State address the water quality issue before the EPA mandates a solution, which could mean a more expensive and less effective approach to the cleanup of the waters of the State.

The only controversial part of the bill was a provision that a fair wage be provided to Vermonters working on projects that the Department of Buildings and General Services (“BGS”) oversees. Payment of a fair wage, which is referred to as the Davis-Bacon Prevailing Wage after the federal law that established it, is already required when Vermont is paying for part of a project that also includes federal dollars. This new provision addresses all projects undertaken by BGS.
I, along with the rest of the House, spent most of the time over the past two weeks on the House floor taking up the budget and revenue bills last week and the bills discussed above this past week. Still, some work was accomplished in committees.

The House Judiciary Committee continued to take testimony on H.221, relating to criminal justice reform. Although supporting the general concept of seeking to decrease incarceration rates in Vermont, representatives from the Attorney General’s Office, the Court, and the Department of State’s Attorneys and Sheriffs’ Association expressed concerns over some of the ways the bill seeks to accomplish that end. The Vermonters for Criminal Justice Reform, headed by former House Representative Susan Wizowaty, is working with these agencies to offer language that addresses their concerns.

In addition, S.115, relating to expungement, should be on the House floor next week. This bill allows for wiping from the record convictions that were based on conduct that has been decriminalized, such as convictions for possession of marijuana in an amount that is no longer criminal. House Judiciary added a section to the bill that provides an alternative avenue for expungement of crimes committed by an individual who was 25 years old or younger at the time of the qualifying offense. Under this provision a person can petition for expungement 5 years (as opposed to 10 to 20 years) after satisfying the terms and conditions of his or her conviction and successfully completing a term of public service programming as approved by the Community Justice Network. In addition, the individual has to have paid any restitution order of the Court and cannot have been convicted of a later crime. The Court also must find that the expungement serves the interest of justice. This new language would help reduce the collateral consequences of conviction, which is one of the aims of H.221 discussed above.

In the coming week, Judiciary will be focusing on S.141, relating to possession of firearms, which just passed the Senate. After a thorough walk-through from Legislative Council Counsel, Judiciary started taking testimony during breaks from the floor over the past week. The bill would restrict gun ownership for violent felons and individuals with certain mental illnesses who are a danger to themselves and others. It also provides a procedure for individuals who had suffered a mental illness to regain the right to gun ownership. I have already been receiving many emails that weigh in on this bill.

Judiciary Committee Update

lalonde

In the past week, the House passed a variety of bills that had been voted out of the Judiciary Committee. One such bill would ensure that States Attorneys file cases involving juveniles in the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than in adult criminal court, which lacks such protections (H.95). Another bill would make it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent, even if the subject had consented to the taking of the photograph or video (H.105 as amended). A third bill would make it easier to prosecute home improvement fraud (H.483).

The Judiciary Committee took testimony on a bill passed out of the Senate that would modify procedures related to placement on the Sex Offender Registry (S.13). Currently, the Department of Public Safety administers the Registry, making decisions as to the posting of an offender’s information to the Registry before his release from incarceration. The bill would instead have the court make determinations related to an offender’s inclusion on the Registry at the time of sentencing, deciding whether the offender should be placed on the Registry and, if so, for how long. In addition, the bill provides a procedure to allow individuals to challenge the information on, or to request removal from, the Registry. These changes were prompted by audits of Registry’s error-rate, which were performed to determine whether address information would be included on the Internet version of the Registry. The Committee is considering what Registry error rates would be acceptable to allow an individual’s address information to be placed on the Internet Registry, which would be widely available to the public.

In addition, the Committee has taken up a bill relating to criminal justice reform (H.221). This 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 at 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. The overall aim of the bill is to reduce unnecessary incarceration and thus reduce Vermont’s prison population and its associated costs. It represents a start in updating the 19th and 20th century solutions in Vermont’s criminal code that are currently used to address our 21st century problems.

Judiciary also took testimony on the enforcement provisions of the water bill (H.35). It has made recommendations to the Committee on Fish, Wildlife, and Water Resources suggesting changes to those provisions of the bill. In addition, Judiciary started its consideration of the Child Protection Bill, (S.9), participating in a joint hearing with the Human Services Committee.

Judiciary took testimony from and worked with the State Court Administrator and Chief Superior Judge to evaluate efficiencies that could lead to savings in the Justice System. For example, the state courts are considering an initiative to start conducting arraignments by video conferencing, which would produce savings from decreased need to transport defendants and for Court security. The Committee provided its various proposals related to Court savings to the Committees on Ways and Means and Appropriations.