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.
It has been a busy week in the legislature after returning from the Town Meeting Week recess. The House passed a bill, H.40, that sets a renewable energy standard for Vermont, with emphasis on utilities meeting goals for renewable energy and efficiency. The Judiciary heard extensive testimony on enforcement provisions included in the water cleanup bill, H.35. In addition, Judiciary passed out of committee three bills: H.95, which makes incremental progress toward having cases against juvenile offenders brought more often in the family rather than the criminal division of Superior Court; H.105, which makes it a misdemeanor to disclose sexually explicit images without consent (so called revenge porn); and a committee bill that strengthens the ability of the Attorney General to bring cases against contractors for home improvement fraud.
Today, the House passed a bill, H.120, that I helped report out on the House floor yesterday.
The bill proposes to create a Vermont False Claims Act — an anti-fraud law modeled on the Federal False Claims Act (“FFCA”). The FFCA was first enacted in 1863 to combat fraud by suppliers of goods to the Union Army during the Civil War. Since that time, the FFCA has been amended several times to broaden its scope and enhance its ability to combat fraud against government funds in all sectors. Starting in 2009, the federal government has used the FFCA to recover over $23 billion in cases related to government programs.
The Vermont False Claims Act would provide for penalties for anyone who knowingly submits false or fraudulent claims to the State’s government. It would also authorize a person who has evidence of fraud, called the relator, to bring action on behalf of the State against those who commit fraud against government programs. Any recovery is refunded to the State, and in certain circumstances such as those involving Medicaid, to the federal government. Relators are eligible to collect a percentage of the funds recovered as an award for having rooted out such fraud.
The federal government has had such success in combating fraud and abuse with the FFCA that it created incentives in the Deficit Reduction Act (“DRA”) of 2005 for states to enact anti-fraud legislation of their own. These incentives relate specifically to recovery in cases of Medicaid fraud. The Medicaid program is funded jointly by the federal government and each state’s governments. Normally any recovery of funds fraudulently obtained under the Medicaid program are returned to the federal and state governments proportionally to the shares that each pay into the program. States that enact DRA-compliant legislation are qualified to receive a ten percent increase in their share of any amounts recovered under these laws. As a result, the majority of states have enacted some form of a False Claims Act.
If H.120 is ultimately enacted, Vermont’s share of Medicaid fraud recovery will increase from 46% to 56%. The financial incentive would allow Vermont to compensate Relators, while ideally detecting, enforcing, and recovering a greater percentage of the fraudulent claims filed in the state.
Enactment of the bill would have a positive impact on revenue for the State. The Joint Fiscal Office estimated that, through the law, Vermont could recover at least $280,000 dollars annually.
Earlier this week, we were visited by members of the South Burlington High School Young Democrats. I introduced the group from the floor of the House and the four South Burlington representatives chatted with them about our work. Here we are with the Young Dems.
In the Judiciary Committee, we continued to review H.120, which proposes a state False Claims Act. The basic purpose of the Act is to protect public funds, and the state stands to collect significant money should it enact the law.
The Act would improve the state’s ability to recover penalties from businesses and others who defraud state government. It would help detect fraud by providing incentives to individuals, known as relators, to bring actions against companies that have made false claims in their dealings with the state.
H.120 is modeled after the federal False Claims Act, which has resulted in the recovery of billions of dollars from defendants. The federal law is frequently used to address Medicaid fraud, including in Vermont. Because Medicaid is a joint federal and state program, approximately 46% of any recovery in such actions is shared with Vermont. To give states an incentive to enact their own False Claims Act, and thus increase enforcement, the U.S. Congress has provided that any state adopting such an act would receive an additional 10% of any funds recovered. Judiciary has heard from various interests and, with certain adjustments to the bill, most testimony has favored enactment.
Judiciary also heard testimony on H.95, relating to jurisdiction over delinquency proceedings by the Family Division of the Superior Court, and H.105, relating to the online dissemination of sexually explicit photographs or videos of individuals without their consent. In the coming week, the committee will consider redrafts of these bills.
In addition to false claims, delinquency, and “revenge porn,” the committee took up H.103, which would add psychological abuse as a ground for obtaining a Restraint From Abuse order. Although recognizing the concerns related to such injuries, testimony on behalf of the Judicial Branch and other witnesses emphasized the great difficulty in basing emergency restraining orders on allegations of psychological abuse.
Also, this week I joined the basketball caucus, a Friday early morning get-together at Montpelier’s Recreation Building of eight to twelve legislators and other Statehouse stalwarts. We have real jostling for advantage and elbows flying on the court for an hour in advance of the verbal jostling that might occur on the House floor later in the day.
When a bill is first introduced in the House, it is called the first reading, even though the bill is note actually read aloud. At that time, the clerk of the House reads out just the title of the bill and the Speaker assigns it to a committee. Not all bills assigned to committees are acted upon during a session. If and when it does decide to take the bill up, the committee will hear from the sponsor of the bill and will take testimony from witnesses. The bill may still die in committee. Alternatively, the bill may be voted out of the committee, with or without amendments to the bill’s language as introduced. It will then go before the full House for the second reading, again not actually a reading. At the second reading, a legislator from the committee that has considered the bill will report it out, which entails explaining the bill on the floor of the House – its purpose, its provisions, why it should be passed, etc.
On Wednesday of this past week, I had my first opportunity to report out a bill, H.86, which is an amendment to the Uniform Interstate Family Support Act (“UIFSA”). Here is a photo of me reporting out the bill.
As I explained to the rest of the representatives, H.86 amends UIFSA, originally enacted in Vermont in 1996. UIFSA establishes uniform rules for interstate enforcement of both child support and spousal support orders. The law has two overall goals: first, there should be one support order between parties that is controlling at any given point in time, and second, the terms of the support order should be readily enforceable in any state.
It is important to have uniform laws in this subject area because families move. UIFSA helps to ensure that children are being supported when a noncustodial parent owing support resides in a different state than the child. There are roughly 15 million child support cases nation wide and about half of these involve parents in different states or countries.
Increasingly, it is important to have more uniformity not just among states, but also among countries. To that end, in November 2007, the United States signed a treaty establishing uniform procedures for processing international child support cases. The Uniform Law Commission, a non-partisan organization that drafts uniform laws in areas of state law where uniformity is important, incorporated the requirements of the treaty into proposed amendments to UIFSA. In order for the treaty to go into effect in the United States, all 50 states must enact these amendments. They must do so or risk losing federal funds that support state child support programs. Failure to enact these amendments during the 2015 legislative session could result in Vermont’s annual loss of $56 million in federal funds. Enacting the UIFSA would not only ensure continued receipt of federal help for Vermont’s child support enforcement efforts, but would also improve the enforcement of Vermont child support orders abroad and ensure that children residing in Vermont will receive the financial support due from parents, wherever the parents reside.
After I explained this in my reporting out of the bill, other members had the opportunity to “interrogate” me by asking questions about the bill, or could make statements in support of or in opposition to the bill. In the case of H.86, no one interrogated me or made statements. It was a noncontroversial bill, plus a significant amount of federal funds rides on enacting the UIFSA amendments. After the opportunity to interrogate, the House voted unanimously to approve the bill for a third reading. After the vote, as I learned is traditional, a number of legislators had pages deliver notes to me congratulating me on my first opportunity to report out a bill – another example of the collegiality of the House.
Between the second and third reading, legislators have the opportunity to seek amendments to the bill. There were no amendments to H.86, and on Thursday, the third reading was held and, again, the bill was passed unanimously and has been moved to the Senate for its consideration.
Although preparing for reporting out H.86 took up quite a bit of my time last week, I was also involved with other matters. The Judiciary Committee took testimony on a number of bills, but spent most of its time considering a State False Claims Act, which provides incentives for individuals to report fraud or false claims of companies in their dealings with state government. It also took testimony on bills related to “revenge porn,” and whether cases involving minors should be filed in the family or criminal division of state court (see last week’s post for more information regarding these latter two bills).
In addition, I tried to keep up on other areas of interest. I attended the climate caucus, which is an informal gathering of legislators from all parties and from both the Senate and House who are interested in this particular topic. I also attended a gathering of legislators interested in rural economic development. Finally, I spoke with the chair of the House General, Housing and Military Affairs Committee, which is considering the bill that I introduced related to teacher collective bargaining. We discussed the status of the bill and a related bill and what additional testimony might be helpful. See my most recent article for The Other Paper, which I posted yesterday, for more information on this bill.
On a lighter note, the Friends of the Vermont State House, a citizen’s advisory committee, held a fundraiser during the week. They sold Valentine’s Day cards with Statehouse themes and provided the services of a calligrapher to write notes in the cards. I believe Anne, Griffin, and Tess each enjoyed receiving the beautifully inscribed cards today along with chocolate hearts that I purchased at a top-notch chocolatier in Montpelier. Happy Valentine’s Day.