Judiciary Wrap Up

Although Vermont is one of the safest states in the country, its citizens still rightfully expect the legislature to continue to prioritize public safety.  In considering bills that address public safety, the Judiciary Committee must also ensure that the law does not unduly infringe upon individual liberties and freedoms.  The Committee seeks to fulfill Vermonters’ expectations that they will have ready and equitable access to justice, that individuals will receive due process if their rights and liberties may be curtailed, and that the law will protect vulnerable citizens.  In addition to balancing these often-competing goals, the Committee focuses on many other aspects of the State’s judicial and legal affairs.

This session, to improve public safety, the legislature enacted a number of laws addressed by the Judiciary Committee.   Act 1 strengthens aspects of the Sex Offender Registry, ensuring that a sex offender reports updated information for the Registry to the Department of Public Safety prior to his or her release from a correctional facility. H.105 makes it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent and with intent to harm, even if the subject had consented to the taking of the photograph or video. S.102 assists law enforcement in its efforts to combat drug trafficking by modifying rules related to the forfeiture of assets used in perpetrating certain drug-related crimes. The Act also expands forfeiture rules related to dog fighting. Act 14 prohibits violent felons from owning firearms and requires state courts to submit to the National Instant Criminal Background Check System (“NICS”) the names of those whom a court has adjudged to be a danger to themselves or others due to mental illness.

While addressing these efforts to improve public safety, the legislature was careful to protect individual liberties. S.13 (a separate bill than Act 1) ensures that Sex Offender Registry information listed on the Internet is accurate. It also provides a mechanism for individuals to challenge the accuracy of information or their inclusion on the Registry. While S.102 allows forfeiture of assets used in the perpetration of certain crimes, it does not allow for such forfeiture to occur unless an individual is actually convicted of that crime. This contrasts with the federal forfeiture law, which allows for forfeiture when an individual is charged with certain crimes, whether or not convicted. Act 14 provides a procedure for individuals to have their name removed from the NICS database.

Criminal convictions often result in consequences for Vermonters beyond court-imposed penalties and sentences, particularly for felons. For example, even after serving their time and paying any imposed penalties, individuals who have been convicted suffer from an inability to obtain housing or employment due to their criminal records. In addition, incarceration for non-violent offenders is often costly and counterproductive.

Collateral consequences and counterproductive incarceration are particularly problematic for juvenile offenders. Current science shows that the brain continues to change and mature throughout childhood and adolescence. Due to the stage of their brain development, adolescents are more likely to act on impulse and misread or misinterpret social cues, and less likely to think twice, change their mind, or pause to consider the consequences of their actions. They are, in short, more likely than adults to make bad decisions and to violate criminal law. So long as their record follows them, juvenile offenders will suffer the consequences of their errors long after they have reached adulthood and completed the court-imposed punishment for the crime.

The legislature has enacted law that seeks to alleviate the problem of collateral consequences and counterproductive incarceration, particularly for juveniles. S.115 establishes a quicker path to expunging their criminal record for individuals who committed their crimes when younger than 25. H.62 prohibits sentences of life without parole for a person who committed his or her offense as a minor. Each of these bills await the Governor’s signature. The House also passed H.95, which seeks to ensure that States Attorneys file more cases in the Family Division of state court rather than in the Criminal Division when those cases involve juveniles. If filed in the Family Division, the juvenile’s record will not be public, thus collateral consequences from the conviction will not travel with him or her into adulthood. The Senate did not act on this bill in this session.

In addition, the Judiciary has taken testimony on a bill that seeks broader reform of Vermont’s criminal justice system. The bill would, among other changes, reduce the number of crimes punishable as felonies; eliminate jail time for non-violent offenders; prevent people from being kept in jail past the end of their sentence due to lack of housing; expand parole eligibility for individuals who have serious medical conditions, were sentenced for an offense committed as a juvenile, or are 65 years of age or older; and eliminate incarceration for violations of parole conditions that are not new crimes. Although the bill was not advanced in this session, such issues will likely be at the forefront of Judiciary’s work in the next session, when it continues to seek to rationalize the penalties for the various crimes in Vermont law, reduce unnecessary and costly incarceration rates, and minimize the collateral consequences of conviction.

During the current session, Judiciary also worked to improve protection of children. The Committee assisted with a major initiative of the General Assembly in light of the tragic deaths of two infants last summer. It took testimony on aspects of S.9 that related to criminal justice. Further, in H.86, the legislature enacted amendments to the Uniform Interstate Family Support Act, which assists with the enforcement of child support orders regardless of where a child lives.

The legislature also enacted a State False Claims Act (H.120), which provides for penalties for those who knowingly submit false or fraudulent claims to the State. Full enforcement of this law should bring revenues to the State while also providing a further deterrent to those who would defraud the government. Addressing a separate type of fraud, the legislature also amended laws related to home improvement. Act 13 makes it easier for prosecutors to prove that a contractor has engaged in home improvement fraud.

In short, the Judiciary Committee had a busy and productive session.

Judiciary Committee Update

In the past week, the House passed a variety of bills that had been voted out of the Judiciary Committee. One such bill would ensure that States Attorneys file cases involving juveniles in the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than in adult criminal court, which lacks such protections (H.95). Another bill would make it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent, even if the subject had consented to the taking of the photograph or video (H.105 as amended). A third bill would make it easier to prosecute home improvement fraud (H.483).

The Judiciary Committee took testimony on a bill passed out of the Senate that would modify procedures related to placement on the Sex Offender Registry (S.13). Currently, the Department of Public Safety administers the Registry, making decisions as to the posting of an offender’s information to the Registry before his release from incarceration. The bill would instead have the court make determinations related to an offender’s inclusion on the Registry at the time of sentencing, deciding whether the offender should be placed on the Registry and, if so, for how long. In addition, the bill provides a procedure to allow individuals to challenge the information on, or to request removal from, the Registry. These changes were prompted by audits of Registry’s error-rate, which were performed to determine whether address information would be included on the Internet version of the Registry. The Committee is considering what Registry error rates would be acceptable to allow an individual’s address information to be placed on the Internet Registry, which would be widely available to the public.

In addition, the Committee has taken up a bill relating to criminal justice reform (H.221). This bill would, among other changes, reduce the number of crimes punishable as felonies; eliminate jail time for non-violent offenders; prevent people from being kept in jail at the end of their sentence due to lack of housing; expand parole eligibility for individuals who have serious medical conditions, were sentenced for an offense committed as a juvenile, or are 65 years of age or older; and eliminate incarceration for violations of parole conditions that are not new crimes. The overall aim of the bill is to reduce unnecessary incarceration and thus reduce Vermont’s prison population and its associated costs. It represents a start in updating the 19th and 20th century solutions in Vermont’s criminal code that are currently used to address our 21st century problems.

Judiciary also took testimony on the enforcement provisions of the water bill (H.35). It has made recommendations to the Committee on Fish, Wildlife, and Water Resources suggesting changes to those provisions of the bill. In addition, Judiciary started its consideration of the Child Protection Bill, (S.9), participating in a joint hearing with the Human Services Committee.

Judiciary took testimony from and worked with the State Court Administrator and Chief Superior Judge to evaluate efficiencies that could lead to savings in the Justice System. For example, the state courts are considering an initiative to start conducting arraignments by video conferencing, which would produce savings from decreased need to transport defendants and for Court security. The Committee provided its various proposals related to Court savings to the Committees on Ways and Means and Appropriations.

First Four Weeks in the Legislature

My first four weeks in the Vermont House of Representatives have been illuminating, engaging, and energizing. I am quickly learning the protocols and procedures of Vermont lawmaking and familiarizing myself with the many challenges facing the legislature this session.

The Vermont General Assembly is considering a number of complex and potentially divisive issues, including child protection, education governance and funding, health care reform, production of a balanced budget for the next fiscal year, Lake Champlain cleanup, job growth, marijuana legalization, and mandated universal background checks for gun purchases. I am trying to keep tabs on these and other issues. Nearly seven hundred bills will likely be introduced during this session, though only a small percentage of those will actually become law.

I have jumped right into my duties on the House Judiciary Committee, co-sponsoring two pieces of legislation related to child support. One bill, H.85, would allow the Office of Child Support (“OCS”) to notify individuals electronically of administrative actions regarding enforcement of support orders. This bill is currently stalled as OCS reconsiders its approach after the Committee expressed a number of concerns at a hearing on the bill earlier this week. The second bill, H.86, would extend the Uniform Interstate Family Support Act to other countries that are members of a convention signed in 2007. The Committee will hear further testimony on that bill next week and may vote to send it to the House floor. I expect that it will pass the House, then move to the Senate for consideration. The bills I sponsor appear on my House Legislative web page here.

The Judiciary Committee has broad jurisdiction and deals with myriad issues. Bills already before the Committee involve adverse possession, transfers of property to minors, prohibition of life sentences without parole for minors, and jurisdiction over delinquency proceedings in the family court. My legal background has proved to be invaluable in understanding the issues before the Committee and in interpreting the language of proposed legislation.

With eight out of eleven members new to the Committee, we spent time during the first weeks of the session familiarizing ourselves with the issues, laws, and governmental and other organizations that come before it. Among others, we heard introductory testimony from Vermont’s Attorney General and Defender General, the Chief Justice of the Vermont Supreme Court, the Executive Director of the Vermont Bar Association, the Commissioner of the Department of Children and Families, the State’s Attorneys’ Office, several legislative liaisons from law enforcement, and a number of nongovernmental organizations. Here is a link to the Committee’s web page and its daily agendas.

One presentation before the Committee was particularly surprising and disturbing. Yesterday, we heard from officers of the Department of Homeland Security, the U.S. Border Patrol, and the Vermont State Police on matters related to human trafficking; here is a link to a news story on the topic. We learned that trafficking of women for prostitution is a growing problem in Vermont and is frequently linked to the drug trade and addiction. We are not likely to see any bills on the issue this session; the State Police Officer specifically said that law enforcement does not want to see any changes to the law, as it currently provides the correct framework for their efforts. He did, however, emphasize that the legislature needs to continue to provide resources for addiction treatment to help the victims of human trafficking.

Last week the House passed the first bill, H.16, that was voted out of the Judiciary Committee this session. H.16 requires certain inmates to report to the Sex Offender Registry before their release from a correctional facility. It specifically addresses a small number of offenders who are “maxing out,” or leaving a corrections facility without any further supervision or contact with the Department of Corrections (“DOC”). This was what is called a technical correction bill because it merely codified current practice, though the DOC and others testified that it is best to have it clear in the law.

A bill to which the Committee will likely give significant attention started in the Senate and should arrive on House Judiciary’s doorstep in mid-February. S.9 is a multifaceted bill addressing child protection matters. The bill came out of a joint committee that met before the session started following the deaths last year of two young children in families that the Department of Children and Families were working with. The House Judiciary Committee participated in joint hearings with the House Human Services, Senate Health & Welfare, and Senate Judiciary committees to receive background information on S.9.

Besides my duties on the Judiciary Committee, I have been working on a bill related to collective bargaining between school boards and teacher associations. I worked with the Office of Legislative Council to put my ideas related to the fact finding process and arbitration into a draft bill and then lobbied other legislators to co-sponsor the bill with me. It will be introduced next Tuesday and I am to present the concepts behind the bill to the General, Housing & Military Affairs Committee, which takes up bills related to labor laws. I will discuss this bill in more depth in a future post. In the meantime, here is a link to a newscast where I am briefly discussing the idea behind it.

Because Chittenden District 7-1 abuts Lake Champlain, I am also keeping track of how the legislature is addressing the cleanup of Vermont’s waters. I have been attending weekly information meetings of the Water Caucus, a group of House and Senate legislators who are interested in this particular problem and solutions, and I have been following introduced bills related to the issue.

It’s not all toil in the Vermont Capital. I have joined the Statehouse Singers, a group of legislators and statehouse staff who meet for short rehearsals during the session. Yesterday, for the devotional (a daily poem, homily, or music), the Statehouse Singers sang Vermont’s State Song, These Green Mountains. The acoustics in the chamber are fabulous and I have to say we sounded great.