juvenile justice

H.2 Raise the Age Bill report

lalonde

The following is my report that I delivered in the House Chamber on H.2.

The juvenile justice system handles the supervision, care, and rehabilitation of juveniles accused of criminal acts. Vermont’s juvenile justice system has several goals: To protect public safety. To connect youth to age-appropriate services that reduce recidivism. And to shield youth from the adverse impact of a criminal record, helping them become responsible and productive members of the community.

The system helps to prevent the taint of criminality from the juvenile offender. To this end, unlike in criminal court, juvenile delinquency proceedings are confidential. In addition, the juvenile is not saddled with a criminal record. While rehabilitating the juvenile is a focus, the system also seeks to ensure protection of the community and accountability to victims.

In Vermont, juvenile offenders are brought to Family Court instead of Criminal Court. In general, when a person is charged with a criminal offense in Vermont, the court system they enter depends on their age and the severity of the crime. Currently, with some exceptions, if someone age 10-18 is charged with a crime, they are processed as juvenile delinquents in Family Court. One of the exceptions occurs if they are charged with one of the most serious crimes such as murder or arson. In that case their case will start in criminal court. If the offender is over 18, they are processed in Criminal Court. But for individuals 18 to 21 years old who are alleged to have committed a crime, there is another path to the family court called Youthful Offender. H.2 does not deal with Youthful Offender, but it is good to have the whole picture.

H.2 addresses several issues related to the treatment of juvenile delinquents. The bill primarily amends the age range for individuals who initially appear in Family Court in a delinquency proceeding.

I will now take you through the bill.

Sections 1 and 2, starting at page _ of Today’s Calendar, concern the age range of children who can be subject to juvenile delinquency proceedings in the Family Division of the Superior Court.

Under current law, a delinquency proceeding can be brought against a person who is at least 10 years old and not older than 18. If a person younger than 10 commits an unlawful act, the behavior might still be introduced in another type of proceeding, such as one to terminate parental rights, but it could not be the basis of a juvenile proceeding in Family Court. The only exception to this is that a juvenile proceeding can be brought against a child under age 10 for murder.

Section 1 of H.2 proposes to change this structure in two ways. First, the bill proposes to increase the minimum age, so that a child would have to be at least 12 in order to be subject to delinquency proceedings. The effect of this change would be that delinquency proceedings could not be brought against 10- or 11-year-olds. Second, H.2 proposes to repeal the exception for murder, so that children under 12 could not be subject to delinquency proceedings for any offense.

This change was prompted by a recommendation in a 2024 report from the Racial Disparities in the Juvenile and Criminal Justice System Advisory Panel (RDAP).

This change recognizes that children are fundamentally different from adults. Their brains are not fully developed. Young children, regardless of the misconduct, do not have the legal capacity to form criminal intent or the competency to comprehend basic legal principles.

The Vermont Defender General’s Office provided testimony in support of this change and stated that it would be very challenging to find a youth under 12 years old to be competent to stand trial. Witnesses also noted that, in the past 25 years, the exception for ten-year-olds related to murder has not been used.

There are other, better ways to handle individuals in this age group who break the law. Courts are empowered to order a broad range of services designed to support a child and their family to address any behavioral concerns without criminalizing young children.

While about half the country has no minimum age for juvenile court jurisdiction, many of our neighboring states have a higher minimum age. For example, New York and Massachusetts both have a minimum age of 12 for children who can be brought into Family Court, and New Hampshire goes even further with a minimum age of 13 (with certain carve-outs).

No witness opposed this section of the bill.

Moving to section 3, found on page _ of today’s calendar.

Generally, jurisdiction over a juvenile ends at age 18. But current law permits a court to extend its jurisdiction if the person committed the offense as an older teenager. For example, if the person was 16 or 17 years old when they committed the offense, the court can extend jurisdiction to 6 months beyond the person’s 19th birthday. This permits the Department for Children and Families to supervise and treat the person for a longer period.

Section 2 of the bill adds one year to this authority, so in the case of an offense committed by a 16 or 17 year old, the court could extend its jurisdiction to 6 months beyond the person’s 20th birthday. In the case of an offense committed by an 18 year old, the court could extend jurisdiction to 6 months beyond the person’s 21st birthday.

During testimony on H.2, witnesses shared that there are missed opportunities for accountability when a juvenile ages out of the system and full adherence to case management plans can’t be achieved. When a juvenile ages out of the system, court supervision ends and all intervention regarding that specific case stops. To address this, H.2 extends the opportunity for court supervision so there is more time for the juvenile court supervision process to provide rehabilitation and accountability.
Turning to sections 3 through 9 starting on page _ of Today’s Calendar.

Sections 3 through 9 propose an additional 2-year extension, until July 1, 2027, on the further implementation of the Raise the Age initiative.

Prior to this initiative, most youthful offenders age 17 or younger could be charged as a juvenile in the Family Division.

Upon passing the “Raise the Age” law (Act 201) in 2018, Vermont became the first state in the country to treat 18-year-olds accused of most crimes as juvenile offenders, rather than adults.

Based on research that shows young people’s brains are still developing into their 20s, the reform was set to gradually increase the age that youth could be sent to family court, where cases remain confidential. As discussed earlier, through the family court process, offenders receive rehabilitative services aimed at helping them avoid future criminal behavior. Young adults accused of serious violent crimes, like murder and a handful of other felonies, would still be charged in adult court. The state brought 18-year-olds into the juvenile system in 2020. 19-year-olds were set to follow in 2022, but the Legislature extended that date by one year, to July 1st of 2023, as a result of the COVID emergency. Two years ago the Legislature extended that date by another year, to July 1st of 2024, and last year the Legislature extended it again to April 1st of this year.

With the last extension, this body added a reporting requirement to monitor progress by the Department for Children and Families in moving toward the implementation date. Although reports showed some progress on this measure, DCF’s last report asked lawmakers this year to pause the move indefinitely.

Since the start of the session, House Judiciary has taken extensive testimony focused on understanding the processes involved with juvenile justice, and specifically with the long-delayed Raise the Age initiative. The committee heard testimony that covered a range of perspectives on this topic. The Department of Children and Families, Department of State’s Attorneys and Sheriffs and Department of Public Safety called for a repeal of the act raising the age to 19 year olds. The Office of the Child, Youth, and Family Advocate testified that we should proceed on April 1st. Still others, including the Office of Racial Equity and the Office of the Defender General testified that raising the age to 19 is the right approach, but we should only proceed when the change is likely to succeed. And currently, due to staffing, programmatic, and infrastructure inadequacies, DCF is not ready to proceed to this next step.

Based on this testimony, and on the reporting of DCF, your House Judiciary Committee concluded that now is not the right time to expand Raise the Age to 19-year-olds.

Adding 19 year olds to DCF’s workload at this time would stretch already over-stretched resources. DCF’s ability to supervise and serve the youth already in the juvenile justice system would be hampered. DCF, and specifically the Family Services Division that oversees juvenile delinquents, is already having difficulties with recruiting and retaining staff. In FY24, the vacancy rate for Family Services Workers rose to 11.4% with a turnover rate of 16%. Expanding to 19 year olds at this time would exacerbate this problem by putting additional stress on Family Services workers.

Also, working with 18 and 19 year olds in this context presents different challenges than working with those who are under 18. Different interventions are needed when individuals in this age group are resistant to treatment or otherwise opposed to changing their behavior. DCF needs additional time and experience to get those interventions right while working with 18 year olds.

The delay will give DCF additional experience in adapting more effective interventions for 18 year olds before adding 19 year olds. It will also give the administration and the legislature additional time to develop approaches to improve accountability for those treatment resistant individuals in the 18 year old age group before adding 19 year olds.

In short, DCF has inadequate capacity and experience to expand Raise the Age at this time. More time is needed to make sure the system is ready for the expansion.

So, sections 3 and 4 delete the April 1, 2025 implementation date, and Sections 5-9 reenact the language changes necessary to permit 19-year-olds who commit certain offenses to have their cases start in the Family Division. These are offenses that are not part of what we call the Big 14 – murder, arson, and similar serious offenses. These language changes become law on July 1, 2027 under the Effective Date provisions in Section 11. This extension gives DCF more time to increase capacity and experience for the expansion.

But to check on whether necessary progress is being made, Section 10 of the bill, starting on page _ of Today’s Calendar, outlines clear reporting requirements to monitor readiness.

Section 10 requires the Agency of Human Services to provide the Joint Justice Oversight Committee (as well as several other Senate and House Committees) with two progress reports on the requirement that the Raise the Age initiative be implemented on July 1, 2027. These are very similar to the bimonthly reports that AHS provided over the past year. They must describe the steps taken to achieve such specified goals as establishing a secure residential facility, expanding capacity for nonresidential treatment programs to provide community-based services, and improving recruitment and retention of staff.

This year a new provision was added to the report requiring AHS to provide data on the Red Clover Treatment Facility, including the number of youths who use the facility, their length of stay, their treatment needs, and their racial and gender demographic data. Section 10 also makes clear that the failure by DCF to meet one of these progress report goals cannot be a basis for extending the implementation of the Raise the Age initiative beyond July 1, 2027.

Section 11 contains the effective dates. A particularly important part is subsection (b), which has a March 31, 2025 effective date for the sections that repeal the Raise the Age provisions scheduled to go into effect on April 1st. This is necessary to ensure that the provisions are repealed before they go into effect.

The Committee heard from the following witnesses:

H.2 provides important updates to the age of individuals subject to juvenile delinquency proceedings as opposed to criminal proceedings. It also pauses the next step in Vermont’s Raise the Age initiative given the reality that more work is needed before we take that step. If we do not pass this bill, that next step will occur on April 1 of this year, less than three weeks from today. DCF is simply not ready to properly supervise and serve a population of 19 year olds at this time. And by further taxing DCF’s resources, we will be dis-serving those youth already under their supervision.

The Committee vote was 7-2-2 and I ask for your support.

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.

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.

Town Meeting Day 2015

lalonde

Today is Town Meeting Day in South Burlington, and tomorrow is Election Day.  I prepared a summary of my Committee’s activities so far, as well as other relevant legislative updates, as a handout for my constituents on Election Day.

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Week Five – An Update on Judiciary Committee Matters

lalonde

The past week in the legislature has been a full one on many different fronts. I worked on issues that came before the House Judiciary Committee, tracked the action on education funding reform, introduced my own bill related to collective bargaining between school boards and teachers associations, continued to follow potential legislation addressing the cleanup of Lake Champlain and climate change, and tried to continue to be aware in a general sense of the many other issues that are coming before the legislature.

Over the past two weeks, the House Judiciary Committee has heard testimony on and delved into issues related to juvenile justice. It considered H.62, which would prohibit sentences of life without parole for a person who committed his or her offense as a minor. Currently no inmates are serving such a sentence in Vermont. Nevertheless, enactment of the bill would recognize that, because their brains are not fully developed, juvenile offenders are less culpable and have the unique ability to be rehabilitated. Eliminating this harsh sentence would not excuse a juvenile’s behavior, but would provide the opportunity for such an offender to demonstrate rehabilitation to a parole board.

House Judiciary also considered H.95, which relates to jurisdiction over delinquency proceedings by the Family Division of the Superior Court. The objective of the bill is to channel more cases involving juveniles into the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than adult criminal court, which lacks such protections. The Committee received mixed testimony, the primary concern being whether the Family Division would have the resources to hear these additional cases. Currently, the judicial branch, and in particular the Family Division of state court, lack sufficient resources to keep up with caseloads that have been increasing due to the fallout from the opiate addiction problem in Vermont. Accordingly, we are paying close attention to this resource crunch when considering bills that would expand the number of cases that come before the state courts, particularly the Family Division.

During the course of hearing testimony on these bills, the Committee received interesting and enlightening testimony related to brain development. Current science on this topic supports our efforts to ensure that Vermont’s criminal justice system is appropriately handling juvenile offenders.

The Committee also considered H.105, which would amend the State’s laws related to voyeurism to impose criminal sanctions on individuals who disseminate sexually explicit photographs or videos of individuals online without their consent, even if the photograph or video itself was taken with consent – so-called revenge porn. Websites created specifically for this type of pornography sometimes include a victim’s name, address, and links to social media profiles with the images, and some websites charge a fee to have the materials removed. H.105 is different than laws adopted in most other states in that it also imposes sanctions on dissemination of digitally-altered sexually explicit images of another person without their knowledge and consent. The Committee will hear additional testimony in the coming week, including testimony addressing concerns related to First Amendment protections, particularly with respect to digitally-altered images.

House Judiciary also voted H.86 out of committee. H.86 will amend the Uniform Interstate Family Support Act (“UIFSA”), originally enacted in Vermont in 1996. The Act sets forth jurisdictional rules and determines which state’s law applies when more than one state is involved in establishing, enforcing or modifying a child support or spousal order, or is establishing a child’s parentage. UIFSA requires that every state defer to child support orders entered by courts of the child’s home state. Modifications to a support order may occur only in the home state unless the child and parents no longer live there. Custodial parents may request either directly or through the state agency responsible for child support that another state enforce the support order. I will take on the responsibility of reporting out this bill to the full House this coming week. That involves explaining the bill on the floor of the House and responding to any questions.

In addition to my work on the Judiciary Committee, this past Thursday I introduced H.102, “an act relating to labor relations for teachers and administrators,” which is a bill that I have worked on since early December. In an article that will be published this Thursday in The Other Paper, I describe my work on that bill. I’ll post the article next week.

On a lighter note, this past week I discovered that the Statehouse Cafeteria serves up excellent homemade chocolate chip cookies. I already knew that their chef makes the best cake doughnuts in Vermont, if not in all of New England. I, however, am trying to behave and keep my consumption of these delights to a minimum or else I will put on an extra ten pounds by the end of the session.