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.

Reporting out H.86, and other week six highlights

When a bill is first introduced in the House, it is called the first reading, even though the bill is note actually read aloud. At that time, the clerk of the House reads out just the title of the bill and the Speaker assigns it to a committee. Not all bills assigned to committees are acted upon during a session. If and when it does decide to take the bill up, the committee will hear from the sponsor of the bill and will take testimony from witnesses. The bill may still die in committee. Alternatively, the bill may be voted out of the committee, with or without amendments to the bill’s language as introduced. It will then go before the full House for the second reading, again not actually a reading. At the second reading, a legislator from the committee that has considered the bill will report it out, which entails explaining the bill on the floor of the House – its purpose, its provisions, why it should be passed, etc.

On Wednesday of this past week, I had my first opportunity to report out a bill, H.86, which is an amendment to the Uniform Interstate Family Support Act (“UIFSA”). Here is a photo of me reporting out the bill.

martin on the House floor 2 11 2015 rotated

As I explained to the rest of the representatives, H.86 amends UIFSA, originally enacted in Vermont in 1996. UIFSA establishes uniform rules for interstate enforcement of both child support and spousal support orders. The law has two overall goals: first, there should be one support order between parties that is controlling at any given point in time, and second, the terms of the support order should be readily enforceable in any state.

It is important to have uniform laws in this subject area because families move. UIFSA helps to ensure that children are being supported when a noncustodial parent owing support resides in a different state than the child. There are roughly 15 million child support cases nation wide and about half of these involve parents in different states or countries.

Increasingly, it is important to have more uniformity not just among states, but also among countries. To that end, in November 2007, the United States signed a treaty establishing uniform procedures for processing international child support cases. The Uniform Law Commission, a non-partisan organization that drafts uniform laws in areas of state law where uniformity is important, incorporated the requirements of the treaty into proposed amendments to UIFSA. In order for the treaty to go into effect in the United States, all 50 states must enact these amendments. They must do so or risk losing federal funds that support state child support programs. Failure to enact these amendments during the 2015 legislative session could result in Vermont’s annual loss of $56 million in federal funds. Enacting the UIFSA would not only ensure continued receipt of federal help for Vermont’s child support enforcement efforts, but would also improve the enforcement of Vermont child support orders abroad and ensure that children residing in Vermont will receive the financial support due from parents, wherever the parents reside.

After I explained this in my reporting out of the bill, other members had the opportunity to “interrogate” me by asking questions about the bill, or could make statements in support of or in opposition to the bill. In the case of H.86, no one interrogated me or made statements. It was a noncontroversial bill, plus a significant amount of federal funds rides on enacting the UIFSA amendments. After the opportunity to interrogate, the House voted unanimously to approve the bill for a third reading. After the vote, as I learned is traditional, a number of legislators had pages deliver notes to me congratulating me on my first opportunity to report out a bill – another example of the collegiality of the House.

Between the second and third reading, legislators have the opportunity to seek amendments to the bill. There were no amendments to H.86, and on Thursday, the third reading was held and, again, the bill was passed unanimously and has been moved to the Senate for its consideration.

Although preparing for reporting out H.86 took up quite a bit of my time last week, I was also involved with other matters. The Judiciary Committee took testimony on a number of bills, but spent most of its time considering a State False Claims Act, which provides incentives for individuals to report fraud or false claims of companies in their dealings with state government. It also took testimony on bills related to “revenge porn,” and whether cases involving minors should be filed in the family or criminal division of state court (see last week’s post for more information regarding these latter two bills).

In addition, I tried to keep up on other areas of interest. I attended the climate caucus, which is an informal gathering of legislators from all parties and from both the Senate and House who are interested in this particular topic. I also attended a gathering of legislators interested in rural economic development. Finally, I spoke with the chair of the House General, Housing and Military Affairs Committee, which is considering the bill that I introduced related to teacher collective bargaining. We discussed the status of the bill and a related bill and what additional testimony might be helpful. See my most recent article for The Other Paper, which I posted yesterday, for more information on this bill.

On a lighter note, the Friends of the Vermont State House, a citizen’s advisory committee, held a fundraiser during the week. They sold Valentine’s Day cards with Statehouse themes and provided the services of a calligrapher to write notes in the cards. I believe Anne, Griffin, and Tess each enjoyed receiving the beautifully inscribed cards today along with chocolate hearts that I purchased at a top-notch chocolatier in Montpelier. Happy Valentine’s Day.

Week Five – An Update on Judiciary Committee Matters

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

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

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

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

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

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

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

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