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Judiciary Committee Off to a Fast Start

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The House Judiciary Committee got off to a rapid start this year. On January 7th, the second day of the Session, the Committee passed two bills, both holdovers from last year.

H.28 implements technical fixes to our statutes related to oaths and affirmations, which are used when an official is sworn into office or a witness in court swears to tell the truth, for example. An oath is a solemn promise invoking a higher power, while an affirmation is a similar, legally binding promise based solely on one’s personal honor. Both have the same legal weight and lying under either is considered perjury. Some Vermont statutes currently provide only for an oath and this bill adds the option of providing an affirmation instead, depending on the individual’s choice. This technical bill covers some statutes; future bills will address the remaining laws. The bill aims to ensure inclusiveness and personal choice when an individual must make assurances under penalty of perjury.

The other bill the Committee passed relates to bail. Criminal defendants in Vermont have a constitutional right to bail – unless they have committed a violent crime against a person, they are entitled to be released pending their trial, with or without conditions of release. Bail may be imposed, however, if they are a risk of flight and they will be held unless they post (or pay) bail.

In situations where a defendant has not been detained pending their trial but later commits an infraction such as violating a condition of release, prosecutors can make a motion to the court asking a judge to take away (or revoke) the defendant’s right to bail. Granting that motion would lead to the individual’s detention. To date, Vermont courts have only allowed revocation of bail in very limited circumstances. If the judge denies that motion, there is currently no clear way for a prosecutor to seek relief of a higher Court (our Vermont Supreme Court) to argue that the lower court judge got it wrong. H.409, which the committee voted out unanimously, allows prosecutors to appeal a denied motion for revocation of bail, which will help move the case forward and may provide clarity as to the allowable circumstances for bail revocation.

The Committee also took testimony on H.5, which would amend Vermont Rule of Evidence 804a. This rule creates a specific exception to the general rule against hearsay, which prohibits using out-of-court statements as evidence because they are less reliable than live testimony.  There are exceptions to the rule against hearsay, including that established in 804a.

Rule 804a allows out-of-court statements to be admitted in court where they are from young children (or vulnerable adults) about sexual abuse or other serious crimes, provided certain conditions are met that suggest those statements are reliable. 804a balances the need for evidence with the protection of vulnerable victims from further trauma. Currently, 804a excepts children who are age 12 and under from the rule against hearsay. H.5 would increase the age for the exception to 15.

Witnesses testifying in the Judiciary Committee asserted that the current age-based distinction in Vermont’s hearsay statute does not reflect how trauma affects children. A child’s ability to disclose abuse, remember events, or withstand the pressures of court is not fundamentally different for a 12-year-old and a 15-year-old. Adolescents ages 13 to 15 remain developmentally and emotionally vulnerable. This is particularly true when abuse involves a trusted adult, family member, or caregiver. By extending the existing hearsay exception to older children, the bill aligns Vermont statute with child development research and adolescent brain science.

Other testimony pointed out the potential downsides of H.5. Rather than preventing trauma of 13- to 15-year-olds, Rule 804a may also be understood as a tool to strengthen the prosecution’s evidence. It would increase the amount of admissible evidence and would presumably make it easier to convict individuals who have allegedly committed sexual or violent offenses against adolescents. Because defendants are presumed innocent, easing the ability of the prosecution to evade the hearsay rule could be unfair to the defendant. It could increase the risk of convicting someone who is not guilty.

The current version of 804a provides important safeguards to protect defendants’ rights. It requires the child to testify under cross-examination if called as a witness, thus protecting the defendant’s right to confrontation. Also, before admitting any out-of-court statement under 804a, the court must consider the time, content, and circumstances of the statement to determine whether they substantially ensure its trustworthiness. In addition, if such statements are admitted into evidence, the defendant still can try to undermine the reliability and credibility of the statements through cross-examining witnesses.

The question that the Judiciary Committee must answer, then, is whether the bill appropriately balances the rights of defendants with the need to ensure that children who have experienced abuse are not silenced by procedural barriers that fail to reflect their developmental reality. I anticipate that the Committee will soon answer that question.

In January, the Committee will also consider bills to strengthen our laws against animal cruelty and advance protections against voter intimidation. We will also consider a bill to create a new crime to cover cases of sexual extortion, also called “sextortion.” Current Vermont law prohibits disclosing nude or sexual images without consent but does not criminalize the threat to do so. In February, we will turn our attention to the functioning of the criminal justice system. What else can we do to ensure swift and certain consequences when criminal laws are violated? What lessons will the Chittenden County “accountability court” pilot provide?

Priorities for the Upcoming Session

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When the Vermont General Assembly returns to Montpelier on January 6th, the legislators will face significant challenges.  In the second session of our 79th Biennium, the committees will continue to work on complicated, long-term issues. They will continue to take on education reform, seeking the best way to provide a quality education for all of Vermont’s K-12 students at a cost that communities will support. Other committees will pick up on their own ongoing efforts to increase the availability of affordable homes in Vermont. The Health Care Committee will build on their work to tackle rising medical care and health insurance costs.  The Appropriations Committee will make tough spending decisions in a tight budget year. And all of this work, along with that of the other committees, will need to be accomplished in the face of federal uncertainty and bellicosity.

Despite these challenges, I am eager to get back to the State House to continue in my role as Chair of the House Judiciary Committee. Although I will continue to follow and provide input on other issues facing the House, my focus will be on the work of the Judiciary Committee.

There, we will continue to focus on improving public safety and access to justice. The committee will conduct oversight hearings to understand whether our increased funding of courts, prosecutors, defense counsel, and victim advocates has led to swifter and more certain consequences. We will also examine other initiatives to expedite processing of both criminal and civil cases.

We will analyze any recommendations from the so-called “accountability court,” a pilot project in Chittenden County that runs into February.  A special prosecutor, assigned judge, and dedicated service providers are focusing there on expeditiously resolving the cases of repeat offenders in the county. The early results of the pilot are promising, but not necessarily surprising – for the past three years, my committee has been advocating for just such an influx of resources as is being provided, albeit temporarily, for the pilot project.

Last year, one of the Judiciary Committee’s priorities was to take a deep dive into our juvenile justice system. We passed Act 4, which implemented some changes, and that work will continue in the coming session with a focus on our Youthful Offender (YO) law.  

The current YO law provides an alternative to adult criminal court for youth ages 14 to 22, allowing their cases to be handled confidentially in Family Court if certain criteria are met. An individual with YO status may be placed on juvenile probation with both the Department of Children and Families and the Department of Corrections having jurisdiction over the individual. The focus of juvenile probation, and generally of YO status, is rehabilitation with services like education, treatment, and job training. The goal of YO status is to prevent long-term collateral consequences for the youth and allow them to avoid having a criminal record. If the youth violates their probation, however, the individual may be transferred back to the criminal court for sentencing, which helps ensure accountability.

In the coming session, the Judiciary Committee will study different ideas to improve the YO law. We will consider strengthening provisions related to accountability of YO participants and expanding victims’ rights in the law.

The intersection of mental health and substance use disorder with the criminal justice system will also be a hot issue in the coming session, although I anticipate that the Senate Judiciary and Health and Human Services Committees will address this initially.  They may consider the creation of a forensic facility to hold highly violent offenders with severe mental illness and may work towards implementing a competency restoration system.

As I discussed in my most recent column, the Judiciary Committee will also continue its focus on concerns brought on by what is happening at the federal level and in other states. We will seek ways to ameliorate impacts on vulnerable Vermonters, including undocumented and immigrant members of our communities. In addition to these matters, the Judiciary Committee will likely consider bills related to voyeurism, animal cruelty, voter intimidation, and other matters. It promises to be a busy session for the committee.

Addressing Concerns at Federal Level

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In recent months, I have heard from concerned Vermonters appalled that immigration agents nationwide are wearing masks and failing to properly identify themselves while detaining individuals. These Vermonters have urged the legislature to follow California’s lead and pass a law barring state and federal law enforcement officers from wearing face coverings that shield their identities.

I anticipate that the legislature will consider such a bill in the upcoming Session, which starts in early January.

While we do not currently have a law barring the use of masks by law enforcement,  the Vermont legislature has in recent years passed laws to improve transparency and to ensure accountability of law enforcement officers. Law enforcement agencies have also implemented policies with those goals.

For example, the use of body cameras has increased among Vermont law enforcement agencies. In 2020, the Vermont State Police began deploying body cameras to all uniformed troopers, requiring them to activate the cameras during law enforcement activities like traffic stops and investigations. Local Vermont law enforcement agencies followed suit, and the legislature in turn enacted 20 V.S.A. § 2369. That statute requires each law enforcement agency authorizing its officers to use body cameras to adopt, follow, and enforce a model body camera policy established by the Vermont Criminal Justice Council.

In addition, Vermont’s Fair and Impartial Policing Policy requires state law enforcement officers to identify themselves. The policy provides that, during pedestrian and vehicle stops or other interactions with members of the public, officers must introduce themselves by providing their name and agency affiliation and also state the reason for the stop unless doing so would compromise officer or public safety or a criminal investigation. The policy states that it intends “to cultivate and foster transparency and trust with all communities.”

Note that these laws and policies apply only to state law enforcement officers. While the legislature can require state officers to unmask on the job, it is not as clear that a state ban could apply to federal agents operating in Vermont. As it is likely that the California law will be challenged in court, we may have guidance on the legality under federal law before we consider a mask-ban bill.

If the legislature does consider such a ban, we will need to balance the benefits of law enforcement transparency against the safety of law enforcement officers. Are there situations when it would be legitimate for a law enforcement officer to conceal their identity other than when a medical mask or breathing apparatus is required? I will need to be convinced.

This past session, the House Judiciary Committee and the General Assembly passed bills that respond to other concerns brought on by what is happening at the federal level and in other states. These bills are intended to ameliorate impacts on vulnerable Vermonters, including undocumented and immigrant members of our communities.

Immigrant parents may be deported and their children left behind in Vermont.Through the establishment of standby guardianships, Act 31 clarified a process that allows immigrant parents to identify trusted adults who can step in as temporary guardians if the parent is detained or deported. This proactive step can provide some measure of comfort to parents and their children because they will know in advance who would care for the kids in the event their parents are detained or removed from the country. This process helps ease traumatic separations or confusion in emergency situations. It also avoids the necessity for the Department of Children and Families to take legal custody of those children. 

Under Vermont law, the Governor has sole authority to enter into certain agreements with federal Immigrations and Customs Enforcement (ICE) if there is a declaration of a state or national emergency. Previously, there was an exception to that authority in the law, but Act 28 eliminated it and kept the Governor as the only one in Vermont who could enter into an ICE delegation-of-authority agreement. This will keep the State accountable to Vermonters regarding how our law enforcement interacts and cooperates with ICE.

Another legislative response was required to protect many Vermont parents, some LGBTQ, who had children through the use of assisted reproductive technology. They are already parents under Vermont law, but other states may not recognize this legal parenthood. A confirmatory adoption provision in Act 31 provided a clear and expedited process for these Vermonters to obtain a court order declaring parenthood that must be honored in other states. This provides a necessary level of protection for many Vermont families.

Finally, Act 8 expanded Vermont’s statute on hate-motivated crimes. It increased the scope of who can be considered a victim of a hate crime, more accurately capturing the conduct that the statute was intended to penalize. Hateful conduct is not acceptable and Act 8 helps ensure that such conduct can be named and prosecuted effectively. 

Vermont Can Hold Polluters Accountable, by Senator Nader Hashim and Representative Martin LaLonde

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When floodwaters tore through Vermont in July 2023 and then again exactly a year later, they left more than physical destruction in their wake. They also revealed to Vermonters the mounting price tag of climate change. While national media attention may have shifted to climate-change catastrophes in other parts of the country, Vermont families are still displaced, businesses are shuttered or drowning in debt, and communities are struggling to rebuild.

The financial toll of climate change in Vermont is real and ongoing. Every washed-out road, damaged bridge, and flooded home and business represents a cost someone must pay – and right now, that burden falls squarely on Vermont taxpayers. We see it through higher property taxes, rising insurance premiums, and reduced municipal services.

This dire reality prompted our legislature to pass the Climate Superfund Act, applying the same principle that has governed environmental cleanup for more than 40 years: Those who contribute to a problem should help pay for its solution. 

Overwhelming scientific consensus tells us that some of the world’s largest and most profitable fossil fuel corporations are at the root of the climate crisis. For decades, these corporations knew their products were likely to cause the kind of costly damage Vermont increasingly faces as the planet overheats. Vermont’s Climate Superfund Act applies this established polluter-pays approach to the mounting costs of our climate-related disasters, requiring these corporations to pay their fair share and help clean up the climate mess their products and activities have caused.

Americans across the political spectrum have long embraced the ethical standard that when someone makes a mess, they should help clean it up. Directing these massive fossil fuel corporations to contribute to recovery efforts isn’t radical, it’s basic fairness.

The U.S. Department of Justice has filed a complaint in the U.S. District Court of Vermont to stop the law from being enforced. DOJ makes several claims including that the Climate Superfund Act is preempted by the Clean Air Act, exceeds the territorial reach of Vermont’s legislative power, unlawfully discriminates against interstate commerce, conflicts with federal interstate commerce power, and is preempted by federal foreign-affairs powers. Last year, when we took up the bill that would become the Climate Superfund Act, he House and Senate Judiciary Committees vetted the legal and constitutional claims that could be made against the Act and we were confident that it would stand up in court.

As chairs of the Vermont General Assembly’s Judiciary Committees, we take our legal and constitutional obligations seriously. We appreciate the proper balance between state and federal authority. States have long served as the proving grounds for practical solutions to our challenges, and Vermont’s Climate Superfund Act continues this proud tradition. 

The law establishes a careful, science-based process to determine which companies should contribute and how much, ensuring fairness while addressing pressing needs.

This law passed with strong support from Vermonters of all political parties, but we knew that powerful interests would fight back. The recently filed lawsuits against Vermont and our neighbors in New York, who passed their own Climate Superfund Act, merely confirms what we already understood: Our approach is effective enough to warrant powerful opposition.

Vermont has always stood firm in defending our right to protect our citizens and preserve our way of life. From our founding days to the present, we’ve maintained that local solutions often best address local problems. We deeply appreciate the work Vermont’s congressional delegation and state officials are doing to defend our state’s authority, and call on them to continue that work as long as necessary. We must hold accountable those who profit while others pay the price.

Climate change presents unprecedented challenges but addressing them requires the same principles of responsibility and fairness that have always guided our legal system. Vermont’s Climate Superfund Act upholds these principles while protecting taxpayers from bearing costs they shouldn’t have to shoulder alone.

Public Safety Update

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Public safety continues to be a concern for many Vermonters. In his January budget address, the governor noted that Vermonters do not feel safe and incidents of certain types of crime have increased. He correctly noted that “one solution is more accountability.” The governor also said that taxpayers “made it clear they want us to fix broken systems, not just fund them.” 

The governor’s suggested fixes were contained in a so-called omnibus public safety bill. The bill was not introduced until late in this Session, but based on a preview of what it would contain, the House and Senate Judiciary Committees were able to start work on proposals in that bill in early January.

In the House Judiciary Committee, we tackled concerns related to juvenile justice, including the “raise the age” initiative. Vermont was the first state in the country to treat 18-year-olds accused of most crimes as juvenile offenders rather than adults. 

Based on research showing that 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. There, cases remain confidential and 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. 

In 2020, the state brought 18-year-olds into the juvenile system and 19-year-olds were set to follow in 2022. However, the Legislature has had to repeatedly extend the date for adding 19-year-olds, most recently to April 1, 2025.

After extensive testimony, it became clear that the administration, through the Department of Children and Families, was again not ready to proceed with raising the age to 19. In part, this was due to difficulty in recruiting and retaining staff. It also stemmed from the challenge of holding 18- and 19-year-olds accountable when they are resistant to treatment and unwilling to change their behavior. In light of these concerns, the administration proposed repealing the law that would allow 19-year-olds to be treated in family court rather than criminal court.

Our committee agreed that adding 19-year-olds to DCF’s workload at this time would stretch its already over-stretched resources. But, given the recognized benefits to public safety of addressing most youth in family court and providing them with rehabilitative services, last week the legislature in H.2 instead delayed the addition of 19-year-olds to July 2027. The delay will give the administration and the legislature additional time to develop approaches to improve accountability for those treatment-resistant individuals in the older age group.

In the second half of this Session, the House Judiciary Committee will work on bills received from the Senate that also address provisions in the administration’s public safety bill. S.12 would create a uniform, simplified system of sealing – rather than completely erasing or “expunging” – criminal records. It would allow criminal records for certain crimes to be sealed automatically if the offender receives no additional criminal convictions over a defined time period. The individual would no longer have a criminal record, which would eliminate overly punitive obstacles to obtaining housing, employment, and education. Sealing rather than expunging these records would also ensure access for law enforcement and criminal justice purposes as well as for background checks necessary to ensure public safety.

The House Judiciary Committee will also continue to work on amendments to the State’s extradition procedures, bail revocation, and the definition of recidivism, also among the administration’s priorities.

I support these initiatives and some of them might bring additional accountability. But they won’t “fix” the system, despite the administration’s claims. True accountability for criminal offenses requires additional funding for the criminal justice system.

Our court system currently faces a backlog of cases and recently experienced a number of judicial vacancies, which exacerbated the problem. These vacancies have since been filled and the legislature approved three additional judges in the FY 2025 budget. The increase in judicial resources will help, but without additional resources for pre-charge diversion, as well as additional resources for prosecutors and public defenders, it will still take years to clear the backlog. And due to the backlog and a lack of resources, criminal cases are not being processed in a timely manner.

Funding programs to divert cases out of the criminal justice system and thus reduce pressure on the courts is a top priority of the House Judiciary Committee. The governor’s budget contains no funding to divert cases from the courts through the 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. Over the past three years, an average of 698 cases per year have been diverted from the courts prior to being charged. Act 180 of 2024 established a state-wide pre-charge diversion program, which should divert even more cases from the courts. But this program requires funding.

The governor’s proposed budget does not provide the resources the criminal justice system needs to ensure the public is safe. Accordingly, the House Judiciary Committee recommended that the budget include the resources necessary to enable cases to be resolved 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.

This is admittedly a difficult budgeting year, with many needs but reduced resources. Nevertheless, to improve public safety by ensuring more expeditious resolution of criminal cases, it is critical that we find a way to provide the entire justice system with sufficient resources.

H.2 Raise the Age Bill report

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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.

Statement from Public Safety Press Conference

lalonde

Even though Vermont is a very safe state, Vermonters are feeling less safe. Indeed, data has shown that over the past few years, some of Vermont’s crime rates have increased.

To tackle this issue, it is most important that we address the root causes of crime. These include insufficient resources to address the instability in people’s lives that may be caused by substance use disorder, mental health issues, homelessness, and poverty. Strengthening Vermont’s infrastructure in these areas continues to be a top priority, but the Judiciary Committee’s jurisdiction lies at the end of the line, the criminal justice system, when people have committed crimes. So, that will be the focus of my comments today.

Last year, the legislature passed a package of initiatives to improve public safety through the criminal justice system.

We targeted crimes that have specifically impacted our state, such as retail theft in Act 128, auto theft and trespass into an auto in Act 129, drug trafficking in Act 125, and the proliferation of ghost guns in Act 120.

In Act 138, we tackled issues related to conditions of release and bail. We clarified that when a court is determining whether a defendant presents a risk of flight, it should consider whether that defendant has violated conditions of release. And if the court finds a risk of flight, it is no longer limited to a $200 maximum bail if the defendant is a repeat offender. Act 138 also established a pretrial supervision program that includes electronic monitoring to ensure that people are complying with conditions of release as they await resolution of their cases.

We also provided additional resources to the state’s courts, prosecutors, defenders, and victim advocates so that our criminal justice system will work more effectively. And we passed Act 180 to expand restorative justice throughout the State as a vital part of our public safety package.

Some of these laws are already helping, including the changes to bail.  But it will take some time for our other initiatives to have an impact. For example, the three additional judges that we approved are only now taking the bench. Also, the pretrial supervision program is starting as a pilot in Orange and Essex counties.

Nevertheless, as the administration recognized when it unveiled its proposed omnibus public safety bill, there is more to be done. I appreciate that the administration is engaging in continuing to improve public safety. I applaud the Governor’s proposal to provide more rehabilitative help to Vermonters suffering from substance use disorder.  

The House and Senate Judiciary Committees have already been working this session on questions raised in the administration’s proposal. For example, House Judiciary has been taking testimony to understand issues related to juvenile justice and how we can improve accountability in that system. Senate Judiciary is taking testimony on sealing and expungement, starting with a bill that the House passed last year but the Senate did not. That bill does most of what the Governor now seeks in his proposal on that issue. We will evaluate other proposals in the administration’s bill, including bail revocation and modifying the definition of recidivism.

But there is an important element missing from the administration’s proposals. And that is a focus on ensuring that our criminal justice system can deliver swift, certain, and fair consequences.

To deter crime, you need two things: first, the risk of being caught committing a crime and second, certain and swift consequences for criminal activity. 

These consequences do not necessarily have to involve incarceration. They can include probation, community restitution, deferred sentences, diversion, and mental health or substance use treatment. The key is that the consequences for offenders must be certain and swift.

But in Vermont, consequences for criminal activity have become uncertain and slow. Deterrence has therefore declined. Why has this happened? There is one major reason. Over the past several years, Vermont State courts, prosecutors, defenders, and victim advocates have lacked the resources to resolve criminal cases expeditiously.

How do we fix this?  How do we get our criminal justice system running more expeditiously? We can approach this problem in three ways. First, we can provide resources to the actors in the criminal justice system so that cases can be more swiftly processed. Second, we can take pressure off the courts by diverting more cases away from the criminal justice system. Third, we can examine other procedural or sentencing fixes to expedite court processing.

As to the first approach, last year, we did provide a boost in resources and we should see the impact of that investment in the coming year.  But additional resources are needed for prosecutors, defenders, and community justice centers. I am hopeful that the administration’s budget will recognize the primary importance of providing sufficient resources to Vermont’s criminal justice system.

As to the second approach – to take pressure off the courts, last year, we established a state-wide pre-charge diversion program to have certain types of cases resolved through restorative justice practices in community justice centers before ever reaching the criminal justice system. A well-functioning, well-resourced restorative justice system can ensure certain and immediate consequences, often with better outcomes for victims and offenders than the criminal justice system. Diverting more cases pre-charge will take pressure off the courts to allow the criminal justice system to take care of the current backlog and speed up case processing. This year, we must make sure that this program gets off the ground and is appropriately resourced.

As to the final approach, examining other fixes, last year we re-established community restitution, also known as work crew, which the Department of Corrections had ended. This was a tool that prosecutors, defenders, and the courts had used to quickly resolve many cases, but similar cases now languish. This year, we need to make sure this sentencing option is appropriately implemented.

We will keep working, including with the administration, to improve public safety in Vermont through responsible, holistic, system-wide solutions with the best interests of all Vermonters front of mind.

Looking Ahead to Upcoming Session – Public Safety

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On January 8, the Vermont General Assembly will convene its 79th Biennium. Based on what we have heard while reaching out to constituents, the legislature’s priority will be affordability, primarily as it relates to education and health care. I hope to continue to serve as Chair of the House Judiciary Committee, where we will resume our work addressing concerns related to public safety.

In the last session, the legislature passed several initiatives to address public safety concerns. We targeted crimes that have specifically impacted our state, such as retail theft in Act 128, auto theft and trespass into an auto in Act 129, drug trafficking in Act 125, and the proliferation of ghost guns in Act 120.

We also tackled systemic issues. In Act 138 we established a pretrial supervision program that includes electronic monitoring to ensure that people are complying with their conditions of release as they await resolution of their cases. We re-established community restitution, also known as work crew.

The legislature also provided additional resources to the courts, prosecutors, defenders, and victim advocates so that our criminal justice system will work more effectively. And we passed Act 180 to expand restorative justice throughout the State as a vital part of our public safety package.

The criminal justice system has several important goals: rehabilitation of individuals who have committed crimes, incapacitation of violent individuals who pose a threat to society, and deterrence.

Effective deterrence relies on two factors: (1) the risk of being caught and (2) certain and quick consequences for criminal activity. The consequences do not necessarily have to involve incarceration. They can include probation, community restitution, deferred sentences, diversion, and mental health or substance use treatment. The key is that the consequences for offenders must be certain and swift.

In Vermont, consequences for criminal activity have become slow and uncertain. Deterrence has therefore declined. Why has this happened? There is one major reason. Over the past several years, Vermont State courts, prosecutors, defenders, and victim advocates have lacked the resources to resolve criminal cases expeditiously.

To get to a point where cases can be promptly resolved, the Vermont criminal justice system must address a significant backlog of proceedings, 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 new filings left the courts falling even further behind.

The courts use several metrics to track whether they are making progress on reducing the backlog. One of those metrics is clearance rates – the number of new filings compared to the number of cases the courts dispose of each month. Cases in compared to cases out. If the clearance rate is over 100%, that means the backlog is being reduced. As of the end of October of this year, the courts have achieved a clearance rate on criminal cases of 111%, an improvement over last year’s clearance rate of 106%. But our goal is to achieve a rate of 125%, which would allow the system to substantially decrease the backlog in the next four years.  

Due in part to the court backlog and a lack of resources, criminal cases are frequently not being processed in a timely manner. The Vermont courts track the time from when a case is filed to when the court disposes of it. They set forth disposition goals: for example, 98% of standard misdemeanor cases should be resolved in 180 days and 98% of standard felonies should be resolved in 365 days. Currently, approximately 50% of cases are meeting disposition goals. That means that, for many individuals alleged to have committed criminal offenses, the consequences are far removed from the offense, diminishing any deterrence value.

How do we reach these goals? There are two primary solutions. First, we can provide the resources to the criminal justice system so that cases can be more expeditiously processed. This past year, the legislature provided additional resources to the State’s courts, prosecutors, defenders, victim advocates, and Community Justice Centers.

Second, we need not rely solely on the courts to provide expeditious consequences for criminal activity. A well-functioning, well-resourced restorative justice system can also ensure certain and immediate consequences, often with better outcomes for victims and offenders than the criminal justice system.

Restorative justice is a community-based response to crime that focuses on repairing harm and making amends. It holds individuals accountable for the harm they have caused in a manner that centers on the victim and the community that has been harmed. 

For years, Vermont has successfully used restorative justice through its established court diversion program. Under this program, defendants charged with crimes can be sent to the diversion program as an alternative to being prosecuted. 

Some communities in Vermont also successfully use what is called pre-charge diversion. In these communities, for low-level crimes and first-time offenders, law enforcement or prosecutors can send an alleged offender to a community justice center before they are charged with a crime. They are diverted from the criminal justice system earlier, with better results for victims and the community and quicker accountability for the alleged offender.  

Pre-charge diversion had not been available or uniformly applied across the state. There was no pre-charge diversion program like there is for court diversion.

Act 180 corrected that problem. It establishes a state-wide pre-charge diversion program that will be overseen by the Office of the Attorney General, which currently manages the court diversion program. It sets forth standards for program implementation and access across all counties. It requires uniform data collection that will allow Vermont to more precisely evaluate program effectiveness and overall cost savings. Critically, diverting more cases pre-charge will take pressure off the courts to allow the criminal justice system to take care of the backlog and speed up case processing.

It will take time for the work of this past Session to have an impact on public safety. The pre-trial supervision program will start as a pilot in Orleans and Essex Counties before rolling out to the rest of the State. As to the courts, in May we approved the addition of three judges; in early September the Judicial Nominating Board recommended to the administration twelve candidates for the judgeships; and on November 27 the administration appointed judges from this list. Filling positions takes time, and there will be a learning curve for these new judges and for additional prosecutors and defense attorneys. 

Looking to the upcoming session, the House Judiciary Committee will monitor progress in addressing the backlog and will evaluate additional resource needs, including for the pre-charge diversion program. We will also consider other initiatives to ensure that our communities are safe.

Update on Public Safety and Access to Justice

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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.

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.