legal

Access to Justice for Low-Income Vermonters

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Courts need to handle matters efficiently, processing and adjudicating cases in a timely manner. In addition to complying with statutory time limits, courts must deliver certainty and immediacy to all parties.

Efficiency is plainly important in the criminal context. Defendants’ individual liberties are at stake and victims are seeking prompt justice. For a deterrence effect, accountability must follow offenses as soon as possible.

Efficiency matters beyond the court’s criminal docket as well. Expeditious case processing is essential not only to justice but also to the perception of justice. Civil cases that take a very long time to resolve can undermine the perceived legitimacy of the judicial system and reduce trust that the courts will resolve disputes fairly.

Research suggests that because of inefficiencies in the administration of justice, people may be less likely to turn to the courts to resolve their legal issues. In addition, people may be less likely to comply with court orders. Delays also result in increased financial costs.

Improving efficiency in court case flow is necessary to give confidence and satisfaction to those seeking access to justice in the courts’ civil and family divisions. Individuals pursuing personal injury, medical malpractice, employment discrimination, or other civil claims should not have to wait months or even years to have their cases decided.

Moving cases swiftly through the civil docket and family courts would also have a positive effect on public safety. For example, survivors of domestic violence may have pending divorce or child custody cases involving their abusers. When such cases languish, survivors may be further traumatized and unable to obtain closure.

Access to justice in civil matters should not solely focus on the speed of moving cases through the courts, however. The legislature also should ensure that individuals of limited means are assisted with their cases.

In civil court, individuals in poverty cannot afford an attorney and they will not have one appointed for them, as happens in criminal court. Currently a large percentage of cases involve pro se litigants, individuals representing themselves without an attorney. In certain types of cases, the fact that only one side is represented by an attorney often leads to a power imbalance. This is the situation, for example, in eviction cases: Landlords are represented by an attorney in over 90% of the cases while tenants are represented in less than 30% of the cases.

Providing legal assistance in civil cases to those who cannot afford an attorney would help enable stable families and communities. Stability, which is key to crime prevention, is challenged by housing and income inconstancy, substance use disorder, and untreated mental health conditions. Legal assistance organizations provide critical services that help low-income residents address issues impacting their families’ homes, incomes, jobs, and access to vital services. By creating meaningful access to the legal system to resolve disputes, obtain benefits or services, and defend rights and processes, these legal services bring stability to low-income Vermonters.

For example, legal assistance attorneys can help a tenant file an answer in an eviction proceeding, assist an immigrant in obtaining a work authorization permit, or ensure the reinstatement of a family’s health insurance. They can represent a domestic violence victim in a relief-from-abuse hearing, guide a client through the divorce and custody process, or help a low-income family connect with a pro bono bankruptcy attorney.

Low-income legal services help pro se litigants in poverty in a manner that supports families and communities and, in turn, advances public safety. To fulfill this role, these organizations need additional resources. Accordingly, in the current Session, I will be advocating not only for sufficient resources to improve the functioning of the courts, but also for additional resources for legal assistance organizations such as Vermont Legal Aid.

Public Safety and Access to Justice

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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.