judiciary

Update on Public Safety and Access to Justice

lalonde

This session, the House Judiciary Committee has focused on addressing Vermonters’ concerns about public safety and access to justice.

Increasing Resources for the Criminal Justice System: Most of the witnesses testifying before our committee on criminal justice — representatives from the Vermont courts, State’s Attorneys, the Defender General, as well as victim advocates and others — have emphasized that the two most effective ways to deter crime are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. This factor is not under the Judiciary Committee’s jurisdiction, so we focus on the certainty and immediacy of consequences. These outcomes 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, which 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 this issue is the State’s budget. The Judiciary Committee has been working with the Appropriations Committee to ensure that all elements of the justice system have sufficient resources. Unfortunately, although the Governor in his budget address explained that public safety is one of the administration’s priorities, his proposed budget does not align with this priority. For example, to meet the administration’s budget, the State’s Attorneys will need to cut up to eight deputy State’s Attorney positions. To properly address the deluge of criminal cases, we should instead be adding up to ten additional State’s Attorney positions as well as additional victim advocates and administrative staff.  The Defender General’s Office needs over one million dollars more than the administration’s budget just to maintain the Office’s status quo. Although the administration’s budget does include funding for two additional judges, it does not provide funding for the necessary court staff.

We believe that the Governor’s proposed budget fails to provide the resources the criminal justice system needs to ensure the public is safe. Accordingly, the Judiciary Committee will continue to work with Appropriations to ensure that the budget will include the resources necessary to enable cases to be heard in a timely fashion. Only by doing so will individuals be held accountable for their actions as soon as possible after offending – a key to ensuring public safety.

The Judiciary Committee has been working on other public safety bills as we continue to advocate for proper criminal justice resources, including the following:

Filling Court Vacancies: When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. When a judicial vacancy occurs in Vermont state court, a governor reviews and appoints judges from a list of candidates provided by a nonpartisan Judicial Nominating Board. The House Judiciary Committee passed H.780, which will help expand and diversify the applicant pool for judicial vacancies so a governor will have more quality potential jurists from which to choose. The bill will also expedite the process by limiting the number of times that a governor can ask for additional candidates from the Nominating Board.

Expanding Offenses Related to Automobiles: The House Judiciary Committee passed H.563, dealing with motor vehicle theft, unlawful operation, and trespass. This bill closes a few gaps in our statutes, including the fact that current law does not prohibit a person from entering another person’s car without consent unless they are told to stay out or the car is posted with a no trespassing sign. This expansion of the law is designed to encompass incidences of rummaging through someone’s car. Accidental entry into a vehicle (“I thought that was my green Subaru”) will not be criminalized.

Codifying Pre-Charge Diversion: The House Judiciary Committee has been working on H.645, which would create and codify a state-wide 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 community justice centers, instead of to 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 offer such a program. H.645 would add stability to those existing programs by placing administrative oversight in and funding through the Attorney General’s Office. And by expanding pre-charge diversion statewide, our entire State will benefit from more timely justice interventions and reduced pressure on the courts. The Committee will likely vote out this bill by mid-February.

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 are clear in their request for legislative action. The House Judiciary Committee has been working on H.534 to address this concern.

The bill includes a provision that would allow aggregation of the value of more than one retail theft. Currently, retail theft offenses can be charged as either misdemeanors or felonies depending upon the value of goods stolen. Anything up to $900 is a misdemeanor; over $900 is a felony. H.534 would enable prosecutors to charge individuals with a felony if the total value of goods stolen within a 14-day period exceeds $900.

The bill also would 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 retail theft. The community restitution 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 serving prison time. In the House Judiciary Committee, we deal with public safety issues through the criminal justice system. It is equally important, if not more so, to address such issues before they land in the criminal justice system. Thus, the work that other committees in the State House are undertaking is critical to help address root causes of crime, including substance use disorder, homelessness, and limited access to mental health services.

Public Safety and Access to Justice

lalonde

As I wrote in my November column, Vermonters are concerned about public safety. The following explains what the House Judiciary Committee will be doing in the upcoming Session to address this concern.

Increasing Resources for the Criminal Justice System: In the Judiciary Committee, we have learned that the two most effective crime deterrents are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. The certainty and immediacy of consequences depend on a well-functioning, well-resourced criminal justice system made up of the courts, prosecutors, defenders, victim advocates, and community justice centers. The Judiciary Committee will focus on ways to ensure that cases in the criminal justice system are efficiently processed, leaving issues related to law enforcement to the Government Operations Committee.

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

The legislature’s primary lever to address this issue is the State’s budget. The Judiciary Committee will work with the Appropriations Committee to ensure that all vital elements of the justice system have sufficient resources. This work will enable cases to be heard a timely fashion so that individuals are being held accountable for their actions as soon as possible.

Filling Court Vacancies: When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. That process takes too long. The courts have been down several positions for a good part of the year. Fortunately, the Governor has just appointed five individuals to fill seven of our current vacancies. But it took four to six months for him to fill three positions earlier this year and nearly a year to fill a judge position in Rutland. It took two-and-a-half months to fill four of the most recent vacancies, an improvement but, still, the time it is taking is cause for concern.

A nonpartisan Judicial Nominating Board sends nominations for judicial openings to the Governor. This board is made up of legislators (currently including Democrats and Republicans), members of the Vermont Bar, and people appointed by the Governor. The Governor reviews and appoints judges from the list of nominees.

The House Judiciary Committee will likely consider a bill to speed up the process by which nominations are made to the Governor, to attempt to hold the Governor to a timeframe for appointments, and to expand the applicant pool so the Governor will have more quality potential jurists from which to choose.

Codifying Pre-Charge Diversion: Building on the successful outcomes of pre-charge programs in counties across Vermont, the Judiciary Committee is exploring the creation and codification of a statewide pre-charge diversion program. 

Under such a program, law enforcement or prosecutors can divert certain misdemeanor offenses before they reach the courts, allowing judges the capacity to manage more serious offenses. These misdemeanor offenses are referred to restorative justice entities, such as community justice centers, to hold individuals accountable and develop agreements to repair harm and build skills to prevent future crime. If an individual’s referral is unsuccessful, they are then referred back to the traditional court system. 

Some Vermont counties already offer such a program. By expanding pre-charge diversion statewide, our entire State will benefit from more timely justice interventions, reduced pressure on the courts, and consistent access for community and victim voices in restorative processes, all while creating a uniform system for implementation and reporting.

Expanding Availability of Treatment Courts: The Judiciary Committee will advocate for additional resources for treatment dockets. These dockets provide individuals who have substance use disorders and mental health conditions the opportunity to enter treatment and avoid certain consequences, such as incarceration. The goals of these dockets include keeping communities safe, supporting treatment for participants, and ending defendants’ criminal or harmful conduct. Evidence shows that treatment courts can reduce court costs, and studies have demonstrated that such courts can effectively reduce recidivism, including fewer re-arrests and less time in prison. Reducing recidivism, in turn, can reduce the caseload in our courts.

Addressing Repeat Offenders of Retail Theft:  The backlog our courts are seeing creates an additional challenge that has received a great deal of press. Individuals committing retail theft are arrested, but are then released and committing the same crimes, often in the exact same stores, the next day. The offenses that are being committed are typically misdemeanors because they involve merchandise valued at less than $900 (the felony threshold).

Due to the court backlog, courts are prioritizing felonies and violent crimes instead of misdemeanor offenses such as these retail thefts. An individual can often get arrested several times for such misdemeanor charges before they are even due in court for their first appearance. 

The Judiciary Committee will take up a bill at the start of the legislative session that will combine multiple misdemeanor retail theft charges that an individual has received over a set period. If the value of the total items taken exceeds a certain amount, these combined retail theft charges would become a felony charge, which the courts can process more expeditiously.

Combining retail theft charges will serve two purposes. The first will be to hold repeat offenders more accountable – the consequences they face will be more certain and timelier. Additionally, replacing several misdemeanor court dates with a single felony court date will free up the court’s time to move cases more expeditiously.  The House Judiciary Committee will likely seek solutions to other issues impacting public safety. In addition, work in other committees will help address root causes of crime, including substance use disorder, homelessness, and limited access to mental health services.