politics

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. 

Public Safety Update and Protective Orders

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Vermonters continue to be concerned about public safety. In the last biennium, the legislature sought to mitigate these concerns. We passed laws related to retail theft, auto theft and trespass into an auto, drug trafficking, the proliferation of ghost guns (those without serial numbers), conditions of release and bail, pre-trial supervision, and pre-charge diversion.

Our most important initiative in the last biennium, however, was advocating for and obtaining an increase in resources for the criminal justice system. The boost in resources for the courts, prosecutors, defense counsel, and victim advocates paves the way for quicker and surer consequences for criminal activity, which are critical for deterring crime.

Data from the courts allows the legislature to measure their progress on resolving criminal cases. Clearance rates measure the number of new filings compared to the number of cases the courts dispose of each month. If the clearance rate is over 100%, that means the courts are making progress on reducing the backlog of cases that has clogged the courts and caused delays in disposing of cases. Through June of this year, Vermont courts have achieved a 12-month clearance rate of 110%. Although this shows improvement, it is still short of our goal of achieving a clearance rate of 125%. 

The courts also track how long it takes to resolve criminal cases and have set out specific goals for the length of time to disposition. For example, 98% of standard misdemeanor cases should be resolved in 180 days and 98% of standard felonies should be resolved in 365 days. At the end of 2023, approximately 60% of criminal cases met these timeliness standards. As of the end of June of this year, 70% of pending criminal cases met the timeliness standards.  This trend is in the right direction, but the consequences for many alleged criminal offenders are still far removed from the offense, diminishing their deterrence value. There is more work to be done.

This session, public safety continued to be one of the governor’s and legislature’s top priorities. The House Judiciary Committee again prioritized proper funding of the criminal justice system so our judicial system can keep improving how quickly it resolves cases. Although resources were more limited this year, the budget did include additional resources for courts, prosecutors, and the pre-charge diversion program created last year in Act 180. 

Beyond funding, this year the legislature passed other bills aimed at addressing public safety concerns, particularly related to domestic and sexual violence.

Act 46 revises Vermont’s civil protection order statutes to improve relief to victims of domestic violence, sexual violence, and stalking. Protection orders – civil court orders requested by a victim – are a critical legal tool. They offer important protective measures to prevent future harm, including requiring a perpetrator of violence to maintain physical distance from the individual they victimized.

The Act revises Vermont’s civil stalking order to better capture device-related stalking. The definition of “stalking” in Vermont’s civil stalking statute requires the victim to show the perpetrator’s “course of conduct” – meaning two or more acts over a period of time, no matter how short the time – to meet the threshold for obtaining a protection order. It was challenging to apply this definition in cases of device-related stalking. For example, when a device like an Airtag or a tracking app is set in place and then used to continuously monitor someone, it was not clear whether those activities met that definition of “course of conduct.” 

Act 46 now provides that a stalking victim may establish a perpetrator’s “course of conduct” by their “use of any electronic, digital, or precise geolocation device or software or application to surveil a specific person or a specific person’s internet or wireless activity continuously for 12 hours or more or on two or more occasions over a period of time, however short, without authorization.” 

Also under Act 46, courts can now grant temporary possession of a vehicle to the relief available in a domestic violence relief from abuse order. A vehicle can be a lifeline when escaping violence and leading an independent life immediately afterwards. Explicitly stated forms of relief available to victims included primary possession of a residence or pets, or custody of shared children. This law adds primary possession of a vehicle as a form of relief. 

Finally, Act 46 adds completion of a domestic violence accountability program to the forms of available relief listed in the domestic violence relief from abuse order statute. Domestic Violence Accountability Programs, commonly referred to as DVAPs, are community-based treatment programs designed to address the needs of people who use violence in their intimate partner relationships. DVAPs understand that abusive partners are, in most cases, capable of change, and these programs seek to modify behaviors and develop skills to prevent future abuse.

Many victims have reported that an accountability program to change behavior would be extremely helpful as part of a civil protection order. Victims may want to reduce the risk of violence for their shared children, a future partner, or themselves if they want to maintain the relationship.

Vermont has 12 community-based DVAPs that offer in-depth group programming and are certified by the Vermont Council on Domestic Violence. While DVAPs are not the sole vehicle for holding abusive partners accountable or changing behavior, they are a critical component to our response to domestic violence and can improve outcomes for both victims and those who have used violence against them.

The legislature also passed Act 12, which establishes procedures to ensure access to orders against sexual assault after regular court hours or on weekends. Prior to the passage of this law, survivors could only request a sexual assault protection order during regular court hours, leaving them at risk when assaults occur on evenings, weekends, or holidays. By ensuring that victims can access orders against sexual assault outside of regular court hours, the bill allows for swift action to protect them from further harm. In the next legislative session, starting in January 2026, the House Judiciary Committee will continue to monitor progress on improving public safety in Vermont. I anticipate that we will continue to review safety issues that occur when alleged offenders await trial, including those related to pre-trial conditions and bail, repeat offenders, and the pre-trial supervision program established last year. We will also continue to advocate for the appropriate resourcing of our criminal justice system and will seek other ways to reduce the time it takes to resolve criminal cases.

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.

Reaffirming Our Commitment to Transgender and Nonbinary Vermonters

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Last week, the Vermont House of Representatives passed J.R.S. 15, a resolution that reaffirms our unwavering commitment to dignity, equality, and human rights for all people, especially our transgender and nonbinary neighbors, friends, and family members.

This public commitment should be uncontroversial and unnecessary. Unfortunately, it is neither.

The official policy of the United States government is that transgender and nonbinary people are not worthy of recognition and do not deserve protection of the law. Many states also have policies that echo this dehumanization and disrespect, putting their transgender and nonbinary citizens at risk.

The day after his inauguration, the president signed an executive order that sought to erase legal recognition of transgender and nonbinary people. The order sought to define these individuals out of existence. It went on to require federal agencies to remove all references to gender identity in their regulations and communications.

A later, similarly offensive executive order barring transgender individuals from serving in the military stated that being transgender is incompatible with “an honorable, truthful, and disciplined lifestyle.” A federal judge issued a preliminary injunction against the military ban, finding that it was “soaked in animus.”

In contrast with these degradations, Vermont has passed laws that recognize and protect the civil rights of transgender and nonbinary people. From laws ensuring access to education, housing, employment, and public accommodations without discrimination; to policies that allow Vermonters to affirm their identities in vital records; to legislation that safeguards the right to access gender-affirming care and shields families and providers from out-of-state political interference. Vermont has not only stood by its values, it has led.

Transgender and nonbinary Vermonters are part of the fabric of our communities. They are our teachers, our nurses, our baristas, our students, our colleagues. They deserve to live freely and authentically, without fear of discrimination or exclusion. We made clear in this resolution that in Vermont, they are not only welcomed—they are valued.

J.R.S. 15 is not only a resolution. It is a reaffirmation. A reaffirmation that the state of Vermont will not waver in our defense of equity. And a declaration that we will keep fighting to ensure every Vermonter, regardless of gender identity, is treated with the respect and humanity they deserve.

J.R.S. 15 is a promise to transgender and nonbinary individuals that we have their backs, that we’re here to protect them in Vermont. As the resolution states, “all individuals are welcome here and deserve to be treated with dignity and respect.”

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.

Statement from Public Safety Press Conference

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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.

Town Meeting Report

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This is from the report that I handed out at the polls on Town Meeting day.

H.850 Overview and Context for FY25 School Budgets

This year, we face a difficult school budget season as a perfect storm of financial pressures push education spending up across the state. These pressures are impacting every school district. School boards across Vermont — responsible for developing district budgets that must be approved by local voters — are struggling to deliver budgets that meet student needs and are reasonable for taxpayers.

Financial Context for FY25 School Budgets

Financial pressures at play this year:

●      The end of federal pandemic-era school funds

●      Rising healthcare costs and salaries for hard-working educators

●      Wear and tear on aging school buildings

●      High mental health needs and learning loss support for students in the wake of the pandemic

●      General inflationary pressures

 

Statewide education spending is forecast to rise by nearly $250 million for FY25, an unprecedented increase. Vermonters will struggle to cover the higher property taxes needed to fund this increase.

Increased education spending is the main driver of the spike in tax rates this year. When spending goes up, taxes go up. Other factors that are pushing up tax rates: rising real estate values; the reduction of sales tax revenue — which feeds the Education Fund — to normal pre-pandemic levels; and some legislative changes in Act 127 of 2022.

Act 127 and Pupil Weighting Changes

In 2022, the Legislature passed Act 127 with broad support and the Governor signed the bill. It updated Vermont’s “pupil weights” — a key factor in our complex education funding formula that accounts for the different costs to educate different categories of students. (Data shows it costs more, for example, to educate students in poverty and English Language Learners (ELL)). Act 127 is an important and necessary law for equitably funding education:  It was designed to increase the ability of districts with larger numbers of low-income and ELL students to fund vital education programming.

When passed, Act 127 also included a temporary 5% cap on annual homestead tax-rate increases at the district level. The goal was to provide relief for what was expected to be a relatively small group of districts that would be negatively affected by Act 127, districts that would need to have a higher tax rate to maintain their education funding.

However, as a result of education spending decisions across the state, every school district in Vermont is projected to see budget increases pushing them past the 5% tax rate cap. The entire state cannot be held to a 5% tax rate cap and still cover the projected new statewide education spending; tax rates must be set to raise enough money to cover the cost of the Education Fund.

Overview of Act 84

Therefore, to align school budgets more closely with the state’s ability to financially support them, Act 84 eliminates Act 127’s 5% tax rate cap mechanism. Signed by the governor on February 22, Act 84 provides a new mechanism that is more precise and will target only those districts that face higher homestead tax rates due to Act 127. While it aligns district spending with the resulting tax rate, it mitigates the predicted increase in property tax rates for those negatively impacted by the new weighting formula.

For the affected districts, this law provides a one cent relief on the tax rate for each percentage point of negative change to the district’s share of the statewide weighted pupil count. South Burlington saw a 6% decrease in its weighted pupil count due to Act 127 and will accordingly receive a six cent discount on its FY25 tax rate.

Law Enforcement and Public Safety

 

Last year the House Government Operations Committee focused on law enforcement training and accountability, as well as other bills focused on public safety. That work continues with efforts to increase courthouse security and improve training programs and recruitment for law enforcement. The Vermont Criminal Justice Council has made progress modernizing training and is hosting the largest classes ever at the police academy to fill law enforcement positions across the State. 

 

The Judiciary Committee’s Work to Promote Public Safety

Vermonters throughout the State have been reaching out to their representatives with concerns related to public safety. Although Vermont is considered one of the safest states, citizens are justifiably concerned about an increase in crime. The legislature has heard these concerns and is working to address them.

Most of the witnesses testifying in the House Judiciary Committee on the issue of criminal justice — representatives from the Vermont courts, State’s Attorneys, the Defender General, as well as victim advocates and others — 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 statement. For example, to meet the administration’s budget, the State’s Attorneys will need to cut up to six Deputy State’s Attorney positions. To properly address the deluge of criminal cases, we should instead be adding up to 15 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 provides just to maintain the Office’s status quo. Although the 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.

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

Filling Judicial 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, the governor reviews and appoints judges from a list of candidates provided by a nonpartisan Judicial Nominating Board. The House 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 a governor can ask for additional candidates from the Nominating Board.

Expanding Offenses Related to Automobiles

The House 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 instances 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 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 stabilize those existing programs by placing administrative oversight in and funding through the Attorney General’s Office. By expanding pre-charge diversion statewide, our entire State will benefit from more timely interventions and reduced pressure on the courts. The Judiciary Committee voted out this bill, which will be considered by the entire House after Town Meeting break.

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 have been clear in their request for legislative action. The House Judiciary Committee passed H.534 to address this concern. The bill will reach the House floor after Town Meeting Break.

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 would also 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 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.

Expanded Protection for Victims of Domestic Violence

Forty percent of all calls to Vermont law enforcement for violent crimes are related to domestic violence. This fact alone means any attempt to improve public safety must include efforts to prevent and address domestic violence.

H.27 is one such step. Passed by the House early this year, it adds “coercive controlling behavior” to the definition of abuse already in the civil statute, meaning that victims of such behavior may request a relief from abuse order.

During testimony, we heard chilling accounts of coercive controlling behavior that preceded physical violence, including domestic homicide. In one case, a woman’s husband removed the seats from the family minivan because he knew his wife would not drive her children in an unsafe vehicle. This action isolated her in their rural Vermont home, with no way to escape. He later killed her and their children. 

Current law requires seekers of relief from abuse orders to be physically harmed or in fear of imminent physical harm. The aim of this bill is to provide a pathway out of an abusive situation before physical violence occurs. 

Addressing the Root Causes of Crime

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 other committees in the State House are undertaking is critical to help address root causes of crime, including homelessness, substance use disorder, and limited access to mental health services.

Housing and Development

Many factors contribute to the current housing crisis in Vermont: decades of redlining; zoning that has prevented dense development in city centers; chronic under-investment in rental vouchers and affordable housing; an increase in housing demand combined with a decrease in the average number of people per household; new economic opportunities presented by converting long-term rental properties into short-term rentals; and a 57% decline in home construction since 1988.

From March 2020 through June 2023, Vermont invested over $1 billion — mostly through federal stimulus funding — into expanding our affordable housing supply and providing emergency housing assistance. These investments include constructing, acquiring and rehabbing affordable housing units through the Vermont Housing Conservation Board; bringing rental units online through the Vermont Housing Improvement Program (VHIP); supporting recovery housing; providing emergency rental assistance to tenants and landlords through the Vermont Emergency Rental Assistance Program (VERAP); supporting first-generation and missing-middle homebuyers; and providing non-congregate housing and services to homeless Vermonters.

Last year, the legislature passed S.100 (Act 47), which is a comprehensive housing law that updates our land-use policies to encourage development in vibrant, livable, and walkable downtowns while discouraging sprawl. These updates include zoning changes to enable more housing density, like allowing duplexes wherever single-family homes are allowed and at least five housing units per acre in areas served by water and sewer.

With the housing crisis and threats from a changing climate becoming dire, this year the legislature launched a deep examination of how to better protect our communities, air, water, wildlife, forests, and working lands. Since 1970, our statewide land use law, Act 250, has helped support compact development in downtowns and village centers while protecting forests and open lands. Last year, in Act 47, we changed Act 250 to make it easier to build housing in designated growth centers, downtowns, and village centers. We also made it harder to appeal much-needed housing projects.

H.687 is a comprehensive bill further amending Act 250 that is currently in the House Environment and Energy Committee. It seeks a balanced approach to improving the effectiveness and consistency of the Natural Resources Board in issuing Act 250 permits and handling appeals. It proposes new location-based oversight that defines three tiers covering (1) downtowns and village centers, (2) rural areas, and (3) the most ecologically sensitive areas.

Overcoming the Overdose Epidemic

All Vermonters deserve access to the support they need to live healthier and safer lives. That includes our neighbors, friends, and loved ones struggling with substance use disorder, who are increasingly at risk of overdose. Fatal drug overdoses are at an all-time high, causing immeasurable loss for countless Vermont families. The same public health framework used during COVID-19 can help us respond to the overdose epidemic.We have prioritized saving lives while appropriating millions of dollars into strategies rooted in scientific evidence. By bolstering our naloxone distribution efforts with vending machines, wall-mounted receptacles, and home mail order options, we are helping to make overdose reversal medications readily available in times of emergency. To address the increasingly lethal and unpredictable illicit drug supply, we have established high-tech drug testing programs. We have also removed unnecessary insurance barriers for Vermonters on Medicaid, so that low-income Vermonters aren’t left behind by our treatment system.We have also made investments beyond the Opioid Settlement Fund, including increasing resources to facilitate recovery through housing and peer support. We have funded youth prevention programs and strengthened connections between our mental health and substance use treatment systems. We have also created opportunities for workforce development for people in recovery.

Mental Health Crisis Response

Mental health care is a cornerstone of health care in Vermont and a priority this legislative session. To respond effectively and respectfully to the mental health needs of all Vermonters, we’re focusing on crisis response and community-based programs—specifically mental health urgent care, mobile crisis response, and the 988 suicide and crisis lifeline. 

Vermont has six mental health urgent care programs, including four brick-and-mortar centers providing psychiatric urgent care for children and adults. In addition, there are two “living room” models designed to be welcoming spaces where guests feel safe and meet with teams to get support. These provide alternatives to emergency departments.

A new statewide mobile crisis response also helps people experiencing a mental health or substance use crisis by providing mental health and welfare checks in lieu of police intervention. Services are delivered in the community by two-person teams who refer individuals to other forms of care as needed.

Connecting it all is the 988 Vermont Suicide and Crisis Lifeline that responds to calls, texts, and chats 24 hours a day, 7 days a week. Through these and other programs, we are making sure there is always someone to call, someone to respond, someone to prevent, and somewhere to go.