Justice Reform

The Judiciary Committee received a preview of a number of issues that will likely occupy significant attention during this session. We focused on various aspects of justice reform – ideas to fix potential problems in the State’s criminal justice system and to reduce incarceration rates – and on other aspects of how our courts are doing at providing equal access to justice. By focusing on these concerns, the Committee will seek to reduce negative impacts to individuals involved in the criminal justice system and reduce costs and improve efficiencies in the courts. Doing so will help improve the State’s economy and assist in developing and maintaining a strong State workforce.

Geographic Justice

The location where an offense takes place should not be determinant of the range of outcomes for an offender. But in our State, where there are effectively 14 criminal justice systems, one for each county, this is often not the case. For the same action, an offender in one county could face a felony charge while an offender in another county could be diverted to a treatment court without being charged with a crime. Although we may not be able to eliminate all disparities across counties, as a matter of fundamental fairness we should strive for rough equivalency of opportunities to avoid conviction or incarceration.

More specifically, three counties currently have separate drug treatment dockets and one county has a DUI docket. In these dockets, certain qualified offenders whose addiction has led to criminal behavior are provided treatment services with the close oversight of a judge to ensure the offender is complying with his or her treatment requirements. Where there are treatment courts, an individual charged with a drug crime or first offense DUI has the opportunity for charge reduction, charge dismissal, or a lesser period of incarceration.

The Judiciary Committee will be evaluating whether the treatment court dockets can be expanded to all counties. When treatment courts follow best practices, double-digit drops in recidivism rates can be obtained. In short, as a matter of policy, every county should have drug, DUI, and mental health treatment dockets.

Geographic disparities are also encountered due to broad sentencing ranges for certain crimes. For example, a conviction on heroin trafficking carries a sentence under State law of 0 to 40 years. The average sentence for those convicted of this crime in Vermont is 4 to 7 years, but the wide sentencing range allows prosecutors to seek much longer sentences for the same crime. The potential disparity can be addressed by narrowing the potential sentencing range. The legislature can ensure that similar offenses carry similar maximum penalties. Maximum penalties can be set so that they are high enough to account for egregious but rare behavior and low enough to inhibit one county from adopting an average sentence that is far longer than the statewide average.

Bail Reform

Witnesses also explained the need for bail reform. In order to ensure against flight risk and nonappearance in court, offenders may be required to post bail to be released before their trial. Often individuals may not have the resources to post bail and thus are incarcerated at a substantial cost to the State. In addition, individuals who cannot post bail may decide to plead to an offense rather than remain incarcerated pending a hearing. The system works a disservice to the impoverished and is a poor use of the State’s resources.

The Committee will address over-incarceration due to bail policy, including by disallowing bail for those who are cited into court as opposed to those who are arrested and lodged. If a police officer has decided to cite a person into court rather than to arrest him or her, then the officer’s judgment that the individual does not present a flight risk should be respected. In addition, rather than holding individuals because they have failed to appear, a better investment may be to develop a system to notify offenders of pending court dates. Such notification systems in other states have proved effective in increasing appearance rates. Other ideas for reforming our bail system were proposed.

Results-Based Accounting

The Committee also focused on Results-Based Accounting. We first received an overview of the state of the judiciary from the Justices of the Vermont Supreme Court. Then the Court Administrator reviewed statistics addressing how well the courts are doing in achieving the State constitutional requirement to provide every Vermonter with free and prompt justice in conformity with the law. Generally, the courts are effectively addressing the many cases that come before them. But we also learned that the courts continue to face challenges in addressing a growing number of juvenile cases related to abuse and neglect and termination of parental rights as a result of the ongoing opioid epidemic.

In addition, we heard from representatives of the Crime Research Group (“CRG”), which studies the results and the cost and benefits of various law enforcement and judicial programs. They addressed the statistics related to potential bias in police stops and arrests. In addition, they reviewed the effectiveness and efficiency in reducing recidivism of a number of criminal justice programs such as the Community High School of Vermont, housing support, Restorative Justice Panels, treatment courts, and several other programs.   The Committee will be taking a deeper dive into the valuable performance information that CRG and the Court Administrator provide as we evaluate the effectiveness and cost/benefit of programs of the law enforcement and judicial systems.

Unrepresented Litigants

There are numerous measures of how well our courts are doing, including whether cases are being decided expeditiously and whether litigants receive procedural fairness. An increasing number of litigants in our courts do not have legal representation, which potentially negatively affects each of these measures. The courts run more efficiently and with improved procedural fairness when litigants are represented, but we are experiencing a growing number of litigants who do not have legal representation.

The Vermont Bar Association and organizations such as Vermont Legal Aid and Legal Services Law Line are offering assistance to indigent litigants in court. In addition, the courts are modifying rules and procedures to make it easier for unrepresented litigants to navigate the legal process. This is a growing problem, however, with no easy solutions.

Miscellaneous

Other related issues that the Judiciary Committee may be tackling during the session relate to expanding the availability of expungement to reduce the collateral consequences of criminal records and improving the use of pre-trial and pre-charge services to avoid criminal records in the first instance.

Marijuana Legalization – Post Mortem

Senate Bill S.214

The General Assembly’s consideration of whether to regulate and legalize marijuana started in the Senate. After considering the issue for a year, the Senate passed S.241, a bill that would have created a detailed regulatory system for licensed cultivation, retail, and testing establishments. It would also have legalized the possession of up to an ounce of marijuana and the sale of up to a half-ounce for residents (a quarter-ounce for nonresidents). Legalization would have begun in January 2018 and would have been restricted to individuals 21 or older.

Under the Senate bill, the Department of Health would have promulgated rules addressing a myriad of details, including the creation of a marijuana education and abuse prevention program, the establishment and operation of marijuana dispensaries, and marijuana advertising. The Agency of Agriculture, Food and Markets would have been tasked with adopting rules on cultivation and testing. The bill would also have established a commission to review and recommend action on such matters as the sale of edibles and allowing home-grown marijuana. It would have raised funds through license fees and a 25% tax on the sale of marijuana; changed current laws on medical marijuana; invested in highway safety, including increasing the number of Drug Recognition Experts (DREs); and created a committee to study the use of marijuana in the workplace.

House Attempts to Amend the Senate Proposal

The House Judiciary Committee took testimony for nearly four weeks then passed out a significantly scaled-back bill that did not legalize activities related to marijuana. Rather, the amendment addressed concerns related to marijuana use in Vermont and laid the groundwork for eventual marijuana legalization. Next, the Ways and Means Committee considered the Judiciary Committee’s bill and offered a further amendment that would legalize the possession of an ounce of marijuana and up to two marijuana plants. As the Senate bill and these amendments lay dormant at their next stop, the House Appropriations Committee, the Senate attached the language of S.241 to an unrelated bill, H.858, that it sent to the House.

House Rejection of Senate Version

Late in the session, the Senate version of marijuana legalization had its day on the House Floor when H.858 was considered. The House rejected the Senate version on a 121 to 28 vote. The vote in part reflected the sentiment held by many representatives that there had not been sufficient time for the House to vet the complicated issues involved in the initiative. Nor had enough time passed to understand the costs and benefits of marijuana legalization in states that have recently legalized marijuana. In addition, a number of representatives were concerned about creating a commercial market for legal marijuana, particularly if Vermont were the only state to do so within a day’s drive of some 40 million people. The Senate approach also frustrated those who wanted to see the legalization of home-grown marijuana.

House Rejection of Decriminalization of Possession of Two Plants

After overwhelmingly rejecting the Senate proposal, the House considered an amendment that would have decriminalized the possession of up to two marijuana plants. (Decriminalization is not the same as full legalization. If possession were decriminalized, it would not be a crime, but the possessor would still be subject to a civil penalty.) The amendment sought to address the current inconsistency in Vermont law whereby individuals who possess up to one ounce of marijuana are subject to a civil fine (such possession is currently decriminalized), but in order to obtain that ounce of marijuana they must engage in a criminal transaction. The House defeated this amendment on a 70 to 77 vote.

House Passage of Amendment Addressing Education and Highway Safety and Creating Marijuana Advisory Commission

The House did pass another amendment, however. This amendment recognized that Vermont is not addressing problems caused by current use of marijuana in the state, primarily health risks to youth from use of marijuana and highway safety. In addition, it recognized that marijuana legalization in Vermont and neighboring states is likely inevitable, and our state needs to prepare for that eventuality.

First, although youth usage of marijuana has remained steady, fewer young people believe that regular use of marijuana causes them harm. In fact, youth use of marijuana does raise a serious risk of harm. The medical community has articulated the deleterious effects of regular marijuana use on the developing brain. Addiction specialists have explained how youth are particularly prone to develop addictions if they start using marijuana in their teens. To address this issue, the House amendment would have directed the Department of Health, in collaboration with the Department of Public Safety, the Agency of Education, and the Governor’s Highway Safety Program, to develop and administer an education and prevention program focused on the use of marijuana by those under 25 years of age.

A second concern relates to the safety of our roads. Vermont lacks the infrastructure to mitigate highway safety risks from those driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down overall in Vermont, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.

The House amendment would have directed the Secretary of Transportation and the Commissioner of Public Safety to work collaboratively to ensure that funding is available for two programs that would assist enforcement of impaired driving laws statewide. In one program, law enforcement officers would receive training in the Advanced Roadside Impaired Driving Enforcement (ARIDE) program. In the ARIDE program, officers learn how to observe, identify and articulate the signs of impairment related to drugs, alcohol or a combination of both. The other program would involve training additional Drug Recognition Experts (DRE). DREs are officers who receive more intensive training on recognizing impairment in drivers under the influence of drugs. The funding for both of these programs would be obtained through existing grants from the National Highway Traffic Safety Administration, as administered by the Governor’s Highway Safety Program. A separate transportation bill would have established a new impaired driving violation to account for the heightened traffic safety risk from poly-substance use – the combined consumption of alcohol and marijuana. It would also have allowed the use of road-side and evidentiary saliva tests to detect the existence of THC in a person’s blood.

Third, the House also recognized that a neighboring state will likely legalize marijuana in the near future and that Vermont will eventually also end marijuana prohibition. Thus, the amendment would have established a Marijuana Advisory Commission to guide the administration and the General Assembly. The Commission would advise on issues relating to the national trend toward reclassifying marijuana at the state level and the possible emergence of a regulated adult-use commercial market for marijuana within Vermont. In addition, a Workforce Study Committee would have been created to examine the potential impacts of alcohol and drug use in the workplace.

Senate Rejection of House Actions

The Senate did not pass the House amendment described above. It failed to support the provisions on youth education and highway safety and the establishment of the advisory commission. Nor did it agree with the House’s provision in the transportation bill that would have created a poly-substance impaired driving violation and would have permitted the use of saliva tests to detect THC.

Conclusion

No law addressing recreational marijuana made it out of the legislature this year, despite the fact that many representatives in the House were sympathetic to the arguments in favor of legalizing or decriminalizing possession. Proponents of marijuana legalization have argued that prohibition and the war on drugs have failed. Marijuana is already widely used by Vermonters, and in order to obtain marijuana, users must confront the dangers associated with the black market, including product with pesticides or other additives and exposure to dealers selling other more harmful drugs. Proponents assert that individuals should have the same right to moderate use of marijuana that they do for alcohol without being subject to criminal penalties so long as they are not causing others harm. But the House majority was not yet ready to legalize or decriminalize. Nevertheless, many in the House recognize that legalization is likely going to occur more broadly in the region, and potentially in Vermont in the future. The work done by the House in examining the issues will help the State to prepare for that eventuality.

“Under the Dome”

I appeared for a second time on the Channel 17 program “Under the Dome,” along with two state representatives who serve on the House Committee on Corrections and Institutions.  I discussed some of the issues that the House Judiciary Committee has been addressing this session, including suspended drivers’ licenses, impaired driving, the smoking age and marijuana. You can view the program here.

Busy Week in the Legislature

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 Committee Update

The Judiciary Committee continues to pave the way for improved highway safety. As to H.571, related to driver’s license suspensions, the committee is nearing consensus on how to address the backlog of tens of thousands of suspended licenses. We are also closing in on deciding how to avoid the future accumulation of licenses that are suspended based on failure to pay or other violations unrelated to traffic safety.

The Committee continues to work on a bill (H.560) related to driving under the influence, seeking how best to bring swift and sure consequences to those who drive impaired. Concurrently, the Committee is formulating solutions to ensure that more drivers who have been charged with DUIs use an ignition interlock device in order to reduce the number of impaired drivers on our roads. H.560 also contains a provision that increases the penalty for negligent operation of a vehicle if that operation results in a fatality or serious bodily injury. Currently, there is no additional penalty when negligent operation has such results.

When the Committee has managed to exit from our state highways, we have addressed other concerns. First, H.749, which should soon be out of committee, would allow individuals who are 16 years old or older to seek a relief from abuse order on his or her own behalf (currently one must be 18 years old or older to seek such relief).

H.818 would update Vermont’s stalking laws. In Vermont, 3 out of every 4 stalking civil protective order requests are denied, most likely due to the inflexibility of and confusion surrounding the definition of stalking. That ossified definition is from a different era. The modern stalker is usually not “lying in wait.” Rather, he (or she) is using different technologies to monitor, observe, and threaten victims. H.818 would modernize what it means to stalk.

The bill changes other elements of the crime of stalking. It relieves prosecutors of having to prove a negative, namely that there was no legitimate purpose for the alleged stalking behavior. It prohibits conduct that causes a reasonable person to fear for the safety of another such as a child, not just fear for his or her own safety. It does not require an offender to make an overt threat; he or she need only act in a manner that would cause a reasonable person to feel threatened. It clarifies that the stalker need not have had the intent to cause the victim’s fear, but that a reasonable person in the victim’s circumstance would have felt that fear.

The Committee intends to work through certain concerns raised by court representatives related to this bill in order to update the State’s stalking law.