 Okay, great. Welcome back to House Judiciary Committee. We're continuing with H195 and actually relating to use of facial recognition technology by law enforcement cases involving sexual exploitation of children, sexual assault, homicide, or kidnapping. And we just had a walkthrough of a proposed amendment new draft. Where the intent was to narrow the applicability. And if I could, we could hear from the Attorney General's office. That'd be great. David, good afternoon. Good afternoon. Thank you, Madam Chair. David share with the Attorney General's office for the record. I know the committee has already heard from me on the substance of the bill. I'm really going to try to keep my remarks to about three minutes here, but wanted to officially say to the committee we support this change. We believe it encompasses and addresses the concerns the committee raised last time about keeping this to investigations that stem from investigations into child sexual abuse materials. I'll just remind the committee very quickly the about the implications of the bill we certainly come at this from the perspective of skepticism about the use of facial recognition technology and making sure we are being narrow and not implicating civil liberties and doing so. The bill does have the three protections we talked about last time. You know, it's confined to data to devices that have been seized likely pursuant to a search warrant potentially, you know, something that somebody willingly gave up by consent but most likely seized pursuant to a search warrant. They are only of individuals who are in a specific invest known as part of a specific investigation victims or suspects and not searching general databases this lot is not allow for anything like that. And finally, the limitation around the types of offenses which again as I just said has been narrowed to make clear that these are investigations that originated with child sexual abuse materials. And I just remind the committee that these are investigations these reviews of these images are reviews that happen now. They're reviews that will happen anyway regardless of whether this passes. These are the materials that will come into the possession of our investigators through the normal course of these investigations pursuant to a search warrant. And they are going to do these reviews regardless of whether this law passes or not so this is not expanding police power it's not allowing officers to do something that they can't and won't do now, all it's doing is the very now of speeding up what they are going to do anyway and what they're lawfully able to do currently and frankly returning to the prior state of affairs that they were at before. So it's very narrow it's not further impinging on anybody's, you know it's not expanding police power impinging on civil liberties. And that's all I wanted to say just summarize those points really quickly and happy to turn it over to other witnesses. Okay, thank you. Thank you very much David committee members. Any questions for David. Okay. Thank you I'm not, I'm not seeing any. Okay, thank you David appreciate it. So, Falco, shelling from the ACLU. I wonder if you're available. Great. Good afternoon. For the record, my name is Falco shelling and the advocacy director, the ACLU of Vermont. We appreciate the opportunity to testify today on h195. We were a big supporter of the legislation passed last year that put a moratorium on the use of facial recognition technology by law enforcement. And do you have some concerns about this legislation as it's put forward. We are sympathetic with the request from the Attorney General's office, in terms of the use and making sure that uses strictly strictly limited, but we have some concerns that I don't think that this language as presented limits that to the point that we're comfortable we think there are some places where it might, it will, it would expand the ability for law enforcement to use this type of technology in a manner that's not being used now. And so I think the number one concern that we have when looking at this language is when you look at section B. Something in this says that the, the suspect has to have been someone who has already identified and would not be identified through the use of this technology. So that is something that we would like to see changed is that is clear that this technology is not used to identify a person who is not already known to law enforcement because that's where the, the inaccuracies of this technology are going to play is by identifying trying to identify someone who is not known against some sort of database or set of images. And then making an assessment on who that individual is based off of that and so when you look at this language. It says that it would be used to look at images, they're in possession of law enforcement of an individual they believe to be a victim potential victim, or suspect. So a possible change that we would, we would be supportive of is including the word identified before suspect, making it clear that this is have to be someone who had already been identified by law enforcement, and that they could then use that technology to see if that person's image shows up within these databases that they have identified so it's not using that information to somehow try and identify that suspect from electronic media that had been legally seized. So, because that legally seized in itself, it does not necessarily indicate a warrant. And also there's a wide range of information that could be legally seized so this could be something where, you know, maybe an image is pulled off of a surveillance camera, and then used against a database that is legally seized to try and identify a suspect so I think that is our primary concern is that this technology not be used for suspect identification. It could be used in terms of understanding who the suspect is, but could be used to identify a known suspect within a set of images that is that something that we are sympathetic to in terms of the speed with which law enforcement can do these assessments and bring these cases forward. And then the other concern that we had in terms of trying to make sure that this bill is as narrow as possible and meeting the, the purpose put forward by the Attorney General is a question around, is this necessary to expand this exception to all law enforcement, or would it be appropriate to be more prescribed to the offices that are doing this investigation against these types of crimes so those are I think our two main concerns that were we have about this bill and how it's currently drafted. Though I understand, you know, we are sympathetic to what the HG's office is trying to do and more the committee is trying to go with this bill and appreciate the narrowing of the scope that happened between the last test testimony and this draft so those are our concerns on the bill and happy to take any questions. Great, thank you. Thank you very much. Tom. Thank you. Thank you Falco. So, as far as the language in here. How do I want to say this, if the bill was narrowed down to just the language that has to do with sexual exploitation of children. Is the ACLU support that. So I think that's what the bill is trying to do that the one concern that that I have is that this would be used to try and identify unknown suspects so if that language is sufficient so I possibly have adding identified suspect or or something along those lines to clarify that that's something that that that we would not oppose. Right right yeah. Yeah, that the other language other than being around sexual exploitation of children getting away at all. It just is generated from a case from sexual exploitation of children, but from there could go could go anywhere. If it's, you know, having to do with any kind of sexual assault homicide or kidnapping. It's not that it relates to you in any way I have trouble with any language other than dealing specifically facial recognition dealing specifically with an only sexual exploitation of children but that's just my opinion on it. Well thank thank you for clarifying that and I think we're in line with you that that further narrowing is something that we would support and appreciate you bringing that forward. Great, thank you. So how do you know you could ever limit it to to just the kids. Once it starts how how do you know you know what I mean, how do you know that's where it's limited to. I think that's that's a great concern to raise. And that's part of how the critical eye we're trying to bring to this piece of legislation is once that door is opened. What uses could come from it how could it be that scope be expanded into ways that we don't want to see as a state so I think limiting that language has represented bird it put forward would be helpful I don't know if it's an absolute stop I think we'd have to make sure we're seeing how this is moving forward, but that does seem to limit it much closer to what's been put forward by the AG's office and what the committee has discussed as their intent as well. Thank you, Martin. Thank you for your testimony. Could you just explain the rationale for why, if it's limited to the sexual exploitation of children. Why the further limitation on only if the suspect identity is already known. So understanding you correct you could provide that what that rationale is for that. So the rationale for this is that the main concern with the ACLU has in this type of technology is that it is used in a way to try and identify individuals and then to further pursue them for arrest and prosecution, because we know that there's a lot of controversies inside of these softwares and in particular when they're used to try and identify people who have darker skin tones and especially women who have darker skins to skin tones. So as I read this language, it says to me that they could look for you have an image of someone who they don't know who it is, and then use that against legally seized media to try and identify who that person was. So the main concern that misidentification could happen and then start a further investigation and possible arrest into crimes that are extremely, extremely serious. And so we want to make sure that this technology is not being used to try and identify people who are not already known. Thank you. Great. Thank you. Any. Tom, yes. I have a question. And I would certainly, I won't lead the witness, I guess. Do you consider it a considerable expansion from the from the moratorium to just to open it up to sexual exploitation of children. I agree. I wouldn't say that I think it is. I mean, you did not posit that but I would say I think it isn't a significant expansion, especially of this legislation that was just passed last year. But that that's something that through the testimony we've heard we are sympathetic to the needs of law enforcement to use that that technology in very limited circumstances. Especially when they're very vulnerable victims involved, but you have to be very careful because it can be kind of slippery slope. I agree. I agree. And I guess with that, I mean, I would. I mean, I'm skeptical internet, internet exploitation of children is kind of a important topic to me now and that's kind of why I would, you know, open it up, the willing to open it up to to this. And in, I guess it would almost be a good bell weather for the future to see if we do want to go any further with it to see how it's working out in this, this one small, but big, but important area so. All right, thank you. Thank you. Any other questions. Committee. That's the beginning. Okay, great. Marshall, good afternoon and welcome. Good afternoon. Thank you. So, Marshall Paul from the office of the defender general. We have essentially the same opinions about this that Falco and the ACLU have, which is to say that, you know, our biggest concern is when we talk about, you know, the, the bill and the AG's office refer to facial recognition technology. And it's almost, you know, it's certainly not purposefully deceptive, but it's almost deceptive simplification because there isn't really no single technology called facial recognition technology. There are hundreds of different technologies out there that provide different levels of facial recognition, different levels of sophistication. And what we know about those technologies is that some of them are fairly accurate. In particular, as Falco said, fairly accurate when it comes to identifying a known individual out of a pool of images, so that for example, if what you're trying to do is when you have one picture of a probable victim in a child sexual abuse material case to identify other pictures of that victim within the pool of pictures that's been seized. For those purposes, there are some very reliable, very accurate facial recognition technologies that are available and that are out there. There are other facial recognition technologies, particularly ones that try to match unknown people against giant pools of, you know, essentially like driver's license images or images seized from surveillance cameras or things like that, which are incredibly inaccurate. And that speaks to sort of the impetus behind the original moratorium on facial recognition technology, which is to say that, you know, talking about facial recognition technology, as if it's all one unified thing really doesn't make sense. It is very accurate, some of it is very inaccurate. And until we get to a point where the state is ready to regulate facial recognition technology with a lot more specificity. It's generally appropriate to have a moratorium on its usage at all. That said, like the ACLU we certainly understand and appreciate what the, the purpose behind this bill and we don't want to get in the way of police and investigators and people to identify victims with, you know, identified victims within some pool of images. Our concern is more to ensure that this statute has written or this bill is written in such a way that it is very tightly confined to identified individuals who may be found within a pool of sexual child sexual abuse material, and that it doesn't expand beyond that because that's when we start to get into these dangers of facial recognition technology that's inaccurate and really, you know, what I'm getting at that, you know, I think Falco alluded to also is that when I'm talking about facial recognition technology being inaccurate. It's inaccurate in a way that's very biased. It's, there's a lot of examples of facial recognition technology out there that have been shown to cause a lot, a much greater percentage of misidentification around minorities than the white population. One of the things that's kind of interesting about that is it doesn't seem to be like, you know, it's not something that's a problem with the software itself it's a problem with the people who make it when you base systems on these like pools of images that are gathered from mug shots and that kind of thing. It's incorporating the biases of the people who create that database and that system into the software itself so for example like the, you know, the country in the world that uses facial recognition the most aggressively and the most invasively is the government and in China they have facial recognition technology that does an excellent job at distinguishing among Han Chinese citizens it does a terrible job of identifying white people. Facial recognition technology developed in the United States often has the exact opposite problem it does a fairly good job of identifying white people it does a very bad job of identifying people who are minorities in this country. Until those problems are sorted out, you know, our office is not comfortable with a bill that is expansive, and that's why our interest like the ACLU is in ensuring that this is as narrowly written as possible. And to that end we would support the ACLU suggestion to insert the word identified before the word subject in section B. And we also have some concerns about expanding it from simply saying, you can use this technology in these types of investigations about child sexual abuse material, and instead saying, well you can also use it. As long as the investigation begins as a child sexual abuse material case, you can expand it into other crimes. I don't think we necessarily quite understand the logic behind that. And so don't support it at this point. Maybe if there was a better explanation of why that needed to be there and why those particular crimes were selected. So I don't think we would encourage these things but you know we certainly are not comfortable with it expanding beyond the child sexual abuse material realm. Great. Thank you. Appreciate your testimony. Thank you. Tom. Sorry, that must have been up from before. Okay. Thank you. Thank you. Thank you. Thank you for having any other hands from committee members. So I'd like to turn to the attorney general's office. David, if you, if you do have any. Reactions thoughts about. The term identified suspect. And also the other crimes. If you, if you can. Yes, thank you madam chair. Thank you. Okay. I'm going to go through the identified issue first. My sense is that that is actually already within the intent. And I don't think that there should be a problem accommodating what the witnesses are saying that being said, the precise language always matters. And I wouldn't want to sit here right now without having a few more minutes to think about the implications. I don't know if I'm going to approve type of answer or are, you know, I was going to be workable type of answer, but I do think that that's basically the. Intent here already is to say, Hey, we're talking about people that the investigators already know about. And that's who they're looking to find. This is not. A broad sweep of. You know, who, who, who we could possibly figure out, you know, the specific people that we're concerned about in the investigation. So I think that we can accommodate that and we'll certainly work with the stakeholders in that with respect to the other crimes piece of it. Commander Raymond gave a really good. Example of why that is necessary. And I think the type of crime has to do with the type of. Offences that are likely to stem from these investigations, but I think I've turned it over to commander Raymond, if that's okay with the chair to give an example about why. The language allows for an expansion into. Investigations about those other offenses. Sure, absolutely. Good afternoon and welcome. Hi, thank you for having me. Again, Matt Raymond, the commander of the internet crimes against children task force. So we had over the last year actually we had a couple of cases that. Started. One that we charged this year. It started as a case where someone was trading. Child pornography on kick or child sexual abuse material on kick, which is a application. And the person was arrested for that confessed to it was arrested. And then when we were examining his computer, we found. Video of him sexually assaulting his own two year old daughter. And then with facial recognition. If we use that on that case, and then search for images of his daughter to find. The child sexual assault. And then when you find more videos of the sexual molestation, it changes. Obviously you're in. Child's year and a child sexual exploitation. Investigation, but now it's also aggravated sexual assault. And then, then when you find multiple images, it changes to aggravated sexual assault of a child. You know, and completely larger crime with a potential life imprisonment to it. You know, it changes to aggravated sexual assault. And that included sexual assault. Because at what point does it change from child exploitation. To sexual assault. When you're. When you're using the technology. And then the other case was. We actually downloaded. Child sexual abuse material from a suspect. Went to his residence. And then we did the examination of that computer. We discovered he was contacting persons in South America. And paying thousands of dollars for videos of the torture and sexual assault of children. The torture of children and actually paid for the kidnapping and murder of a person by suffocation. And all that stem from one of our, from downloading child pornography from this, from this person. So again, when, when would you stop being able to use the face or recognition? And again, we're not trying to use it to identify a suspect and I, and I understand the concerns there. Me personally, of course, I defer from our office to David. I'm not a lawyer, but I would have no problem saying identified suspect because we are not using this to identify suspects. And the only other point I would like to make is. Again, before the moratorium, we, we'd use this for years and years. So this isn't anything, this isn't new. And we're not asking for permission to use new technology. We're asking to go back to the way things were when we've used this for hundreds or thousands of cases with no issues. There's not. I don't know of one documented issue. That anybody's brought up about how we've used this technology. This is not new technology. This is technology we've been using for years and years. And it's how we used to do business all the time before this moratorium took effect. And then we had to change how we do business, which added hours and hours and has now as exacerbated a backlog. That's a year long now that we're waiting. So in that, all that digital media that we're waiting, because again, at the end of the day, we are going to look through every image. If we can use facial recognition and speed it up, we get through those devices faster. Without that, we have people paging through every image and every video. So we're going to look at that data anyways. It's not protecting anybody's privacy, but it is exacerbating our backlog in that. With those kids that we rescued in those cases, I just explained, in that year of backlog could be hundreds of kids waiting to be saved and we can't get to them because we can't use this technology. Which we had been using for years. Thank you. Thank you. Thank you. Tom has a question and then Michelle, I believe has a question as well. Oh, Michelle is back on. Yes. Okay. Cause I just looked and I didn't see her. Okay. And so I guess the question would be for Michelle is, what's the definition of a sexual exploitation. What's the definition of a sexual exploitation in the bill is in references. All the crimes that are contained in chapter 64 of title 13, which is the chapter you just revised last year. And then tweaked. Earlier this year with regard to the simulated conduct. And so it's things like. Promoting. If you wanted to review it again. The, if you wanted to review it and then it's by a child. It's the possession of child sex abuse materials and things like that. I can email the, the chapter to you if you want to take. If we want to review it again. Well, where I'm going with it is the scenario that the commander. Described a finding. an aggravated sexual assault on a child? Would that be covered under this definition of? Not under sexual exploitation. So aggravated sexual assault of a child is in the sexual assault chapter, which is chapter 72. That's why you have the additional language. It's not in chapter 64 where you have sexual exploitation. The sexual exploitation chapter is dealing primarily around issues of child sexual abuse materials, either the possession or creation of those materials. So that's chapter 64. And that's where they're using an investigation for those types of crimes. But what it led to, what Mr. Raymond was saying is that it led to seeing that the defendant in the child sexual abuse material case was actually sexually assaulting a family member, which then is another crime, separate and apart from the child sexual abuse material crime, the sexual assault on his child fits within the elements of aggravated sexual assault of a child under chapter 72. So what they're saying is, first we were investigating the sexual abuse child pornography case, and then we realized that this defendant has been assaulting his child, and then therefore we're gonna charge him with the aggravated sexual assault, not just the possession of the materials or the production of the materials. Okay. Of course, nothing is simple. I don't think it's any secret that I have no interest at all in expanding the use of facial recognition, but if there's, is there any kind of simple language and I don't even expect an answer right now that you could come up with or somebody could come up with that could include something as narrow as that? And from there, if we did go in that direction, I'd certainly want Defender General and ACLU to have their say on it too, but I would like to see. So that's, the language you have in front of you is my attempt to do that. So it's, if you want to further refine the universe of crimes, you can do that. So this is, so what you have in the proposal is it's, is that if you investigate for child sexual abuse materials and then you discover any of those other crimes in those chapters, you can still use it, but you, if you may look in those chapters and say, well, I don't want to use it for sexual assault, but I would use it in the case of aggravated sexual assault around a child. So you can further refine that if you want to look within those, those chapters and have it only maybe apply to crimes involving a child if you wanted to do that. I mean, you could, you could whittle it down, but That's kind of, that's kind of what I'm thinking almost exactly that if it, if it still relates to a sexual crime against a child, I wouldn't have any issue with that, but going into the, you know, expanding it or expanding it or narrowing it depending which way you want to look at it with the, with the homicide and kidnapping and all that I have an issue with, but I would love to see some potential language around the aggravated sexual assault of a child. Well, in terms of language, I think what the committee would need to do is that if you, if you're uncomfortable with the breadth of having those three chapters, then you would, we would need to go into each of those chapters and go into each offense. And then you tell me what offenses you want included and which ones you want excluded. Um, so. Okay. Okay, thank you. So Michelle, you had a question, right? I just had a question. I was wondering about, you know, I'm listening to Marshall and his discussion of the technology and, and I don't, I don't really know anything about this technology. So I'm not coming from an educated perspective there, but I did just email everybody a copy of the definition that's used, that was used in the bill last year that established the moratorium. And I sent you the definition of facial recognition and facial recognition technology. And I guess I just was wondering in order to try hearing the discussion, is there any way, if there are concerns about the breadth of that, of that type of technology that it can be further refined or narrowed in a way that, that might meet Mr. Raymond's, you know, what he needs in order to do the job, but provide some more comfort to the Defender General's Office and ACLU. And I guess I just put that, I just put that out there in terms of, and it may be that it's, it's, you can't do that. I just wanted to raise the issue because Marshall had brought it up about the type of technology and the, and the wide variability on the reliability of that technology. Marshall or anybody else sway in if they can now or? I don't know how the definition made it. I don't know where it came from originally for Act 166, because I didn't work on that one. Okay. And I just to, you know, to respond to that, I don't think that I have anything off the top of my head that I could say, that I can propose that narrow that to address those concerns. I mean, I think to me it's something, there's, you know, I think that this is gonna have to be the use of facial recognition technology by law enforcement is an issue, not just here, but all over the place. And the use of it is being refined and improved. And I think that down the line, it might make sense to refine the definition to more closely tied to particular types of technology that are available or not available. But I don't think, you know, my understanding of things, and I'll certainly talk to one of our forensic computer experts, but my understanding is that the current state of things is there's just too many different technologies out there to be trying to narrow this down at this point. But like I said, before this comes up again for discussion, I'll talk to one of our forensic experts and see what they have to tell me. Cause like everybody else, I am not really an expert in this technology like everybody besides Detective Raymond. All right, okay. All right, thank you. Barbara, we'll hear from you quickly. And then we'll need to move on to age 87 in the interim. Hopefully stakeholders can work together to address some of these concerns. Barbara. So I very much was supportive of the very narrow way and pretty much agreed with what Tom said. I do think that we have the moratorium in place for a reason and whether or not people have been using the technology isn't so relevant. Although I understand the perspective of the people using it that they think it is, I also have a bill on the wall that does talk about us getting permission and knowing what technologies are being used because I think Marshall raises a really good point. And so technology has sort of jumped ahead of our laws. And so I feel like I could support this with the very narrow changes to the bill being made but hope that we're not gonna chip away at the moratorium we're looking at or technology. No, I certainly appreciate that, thank you. Okay, all right, so I think we have our path forward. And again, things are, time is moving quickly, crossover is the Friday when we come back after after town meeting. So, okay, great. Then we'll thank you everybody on this one and we will now move to H87. Martin, I'm gonna turn this over to again, this afternoon's testimony, my understanding is limited to the question of fines, right? And the impact H87 might have on fines. And sure you are Martin, but how about if we start with Judge Zonay, the chair of the Sentencing Commission. Welcome, thank you so much. And I'm sorry, we're a little late. Thank you for your patience, I appreciate it. Of course, my pleasure. Just for the record, my name is Tom Zonay, I am a superior court judge and I am the current chair of the Sentencing Commission. I have, I'm aware that I think it was representative LaLonde as well as Judge Treadwell and a host of others have done walk-throughs on the classifications, including the jail side, the imprisonment set in sight, as well as the fines. So I'm not gonna repeat that. I understand there's been some questions raised about fines and the impact of the classification system on the fines. I actually had an opportunity to also to visit with Judge Treadwell, who is the chair of committee C, which is the committee that's been dealing with that. What I would offer is that what has been, what was sent over originally with our classification of fines was what the Sentencing Commission came up with as, I don't wanna say a compromise, but what it thought was fair on both sides. The different constituencies got together, looked at what's the purpose of a fine. We looked at our fines actually given out in many cases, what are the amounts, different factors affecting fines. And I believe it was an H580 that the house actually lowered what had been sent over from the Sentencing Commission. And I note that because the issue of fines is one that when we look at fines, I would say that most cases in the state of Vermont do not have fines actually imposed. Often we see them in motor vehicle offenses, that's as a resolution. We do see them in criminal cases at times. There are some areas where there are mandatory fines to be imposed, but if someone's getting a jail sentence, someone's being put on probation, it is the exception that there is also a fine imposed. And the fines, when we look at maximum amounts, I can't think of very many times you see a maximum fine in cases other than for instance, a motor vehicle offense where someone might for instance, be charged with the DWI. And as part of a negotiated plea agreement, the state agrees to amend that charge to a negligent operation. And the quid pro quo for that exchange is that the person agrees to the maximum fine. So you will see that at times, but generally you don't have fines imposed by the judges at the maximum level. And so when you're looking at fines and the classification scheme, what you're going to see also is as we go through the different categories, ones you haven't even received yet, for instance, the motor vehicle offenses and what we're putting together on those for classifications and where they would fit into the class A, B, C, D, E of misdemeanors or felonies, what you will see is some do go up and some do go down. But I think overall the sentencing commission's view was that there is enough flexibility and when we look at what is actually happening in the trial courts and in the sentences, the framework that H87 sets forth provides an adequate and an appropriate mechanism for justice to be done as far as fines are concerned. And I certainly, if there's any specific questions, I would be happy to answer them. Great, thank you. Thank you very much. Barbara, I see your hand is up. Or is that from before? It is from before, but I just have a question. Okay, great. Perfect. Convenient. Hello, Judge Zone, how are you? I'm fine, thank you yourself. I'm well. So a few years ago when our committee was looking at fines for something, we looked at what a couple of countries do with sliding scale, fines that are trying to replicate if something's a $500 ticket for someone who that's a lot of money for, how do we make it as painful for the person that is like, sure, I'll pay the $500 fine. Is that, how realistic is it for us to think about those types of philosophies, at least at this juncture? I think that the classification, when you would specifically fines, allows us to do what Vermont does and that is individualized sentencing. What you just referenced was an individualized sentence reflects the fact that to someone making $100,000 a year, a $500 fine is much different than someone making $25,000 a year. And that is what we try to do when fines are imposed. Again, in most situations, over 98%, I believe, of the cases in the state are resolved by plea agreement. And so much of these determinations are negotiated between the parties. But I can assure you that when the court looks at an appropriate fine and has to determine what fines are, those are other types of factors that we consider. And the classification, the numbers that the committee had put in previously in H87, they do appear to give the type of flexibility necessary to account for those circumstances, both up and down. Thank you, Martin. Well, just following up, thank you for being here, Tritone, first of all, but following up with what you just were saying, is there language and statute anywhere that requires courts to look at the ability to pay and setting the fine? And if not, is that something that you would see as problematic if we put something like that into the statute? First question, the answer is yes, there is something like that. But if you look at 23 VSA section 1210 under motor vehicle offenses, when determining the amount of the fine the court takes into account, the court is to consider the cost of any treatment or other programs as well as the income of the defendant. And so that is something that at least in that area is considered, it's supposed to be considered. And when you look at the other fine structure, no, we don't have, that I'm aware of, a general provision that sets forth, here's what the court looks at. And I wouldn't note for comparison's sake, if you look at the state of Maine, I believe it was a couple of years ago in a title 17A section 1702. Maine actually enacted a statute that was criteria for imposing sentencing alternatives that include fines. And 1702 one says consideration of financial capacity to pay in financial burden in determining the amount of a fine, unless the fine amount is mandatory. And in determining the method of payment of a fine, the court shall take into account the present and future financial capacity of the convicted person to pay the fine and the nature of the financial burden that payment of the fine will impose on the person or a dependent if any of the person. And so I point that out because it sounds like that's the type of consideration that you were asking about. And we don't have that Maine does. And I'm speaking right now for myself, not as the chair of the sentencing commission because this provision has not been discussed at the sentencing commission, but something like this would codify what we should be doing anyway. And that is making sure we consider these matters. It sounds like it'd be codifying what you are already doing. Interesting, okay. I'm sure that Eric is here and hearing this and can take a look at, because that may just be something we want to float depending on what the rest of the committee thinks, but that may address the issue that I think the discomfort that some of us have about what we have here in the fines, but at least for me, it does. I don't know, but we'll certainly find out as we discuss this a little further among the committee, but thank you. Other committee members, Mark, give another? One, yeah, I have one other question, it's separate. It's not what we asked you to come here for, but I'm going to ask you this question anyway, because it's something that's come up during the, if you have a view of this, something that came up as we took a deeper dive into each of these offenses. And for a couple of the offenses related to extortion, we were thinking, the embezzlement, I should say, where really the offense had to do with a position of trust that we would stick with the current, well, actually not quite sticking with the current, it would actually be a little bit less as far as the felony level, but officer or servant of an incorporated bank, it's really not tied to an amount under current law. It's just, I think the idea that it's a person in a position of trust, and then the same is for receiver or trustee. And the recommendation of the sentencing commission was to go with the tiered structure. And what I'm going to suggest as a proposed amendment, which we just haven't put before the committee yet, is that we make that a class D felony, which is a little less than the current 10 years, but it comports with what we're doing elsewhere because it's a level of trust and seems to be unrelated to the amount of money. Maybe, I don't know if you have any opinion about that or not, but... I think that there are, as when you look at the property crimes in H87, there's a number of them that sometimes may not necessarily lend themselves to the tiered approach as easily. And another one that comes to mind is counterfeit monies and things like that, how are you going to address that? Is it gonna be what someone's possessing or only what they try to pass? Things like that. And in those categories, it may be appropriate as a policy decision to say, we're not going to tier approach that, we're simply going to classify it as a class A, B, C, D, whatever it may, we're you as the policymaker determine it appropriately fits. And I think that works well within the classification system that H87 sets forth. Again, there are some crimes that work better when you look at it to just classify as, again, A, B, C, D, whatever type it may be, as opposed to trying to put it into the tiered approach. And you're not losing any, if you will, potential sentence because you're still putting a term of imprisonment and a fine with that crime. It just makes it, it streamlines it and makes it more predictable, if you will, and straightforward as to what the potential consequence could be. Yes, that's seeing any hands. Great, thank you. Appreciate your testimony, appreciate your time. Thank you so much. Thank you, I'll have a safe day and stay healthy. Take care. You too, thank you. Okay, Rebecca Turner is the vice chair of the Sentencing Commission. Hello, good afternoon. Oh, good, you can hear me. Thank you, Chair Gradd. So yes, for the record, vice chair of the Sentencing Commission and also the supervising attorney of the appellate division of the Office of the Defender General. And as you just heard, Judge Zonay relay about fines and I'll address my comments here. And Pepper shared this earlier in earlier testimony before this committee. In 2019 November, the Sentencing Commission did submit its report to this committee and the Senate judiciary. And in that report, as Pepper relayed, when we started inputting the fine classification table that had been adopted, we learned as you see in H87 that either across the board, substantially or nearly across the board, the fines increased. And because of that, the recommendation in that 2019 November report by the Sentencing Commission was that the legislature go forward with the classification tier system as to imprisonment sentences and not to fines and to hold off and that the Sentencing Commission would go back and review. I would like to further clarify that the work on the Sentencing Commission, unless I have missed it, but I'm also on that subcommittee see with which Judge Treadwell chairs and we've been charged with developing that. I'm not aware that we've returned to revisiting that given these concerns. And I think what certainly I can speak from the members from the Office of the Defender General our push has been that whatever fine classification system is adopted, we want there to be some kind of evidence-based approach to those numbers that we didn't want to have these numbers just randomly plucked elsewhere. And I understand that again, CRG provided some background on where the current fine classification system came from. It was before my time. I came on board of the Sentencing Commission this most recent reiteration of it. Many members of the commission were there before including Robin Joy who spoke to it and probably Judge Treadwell were involved. And I have no reason to question that their basis was from pulling from whatever states and comparing. From my perspective, from our perspective that still doesn't answer the question. Again, evidence-based approaches to why we pick these numbers in terms of whether they in fact support where I understand the legislature is increasingly going in terms of serving the purposes of punishment specifically deterrence and lowering recidivism. So again, we were looking at where the study is showing that increasing fines actually deters, actually lowers recidivism. And because what we had seen and there are some recent study of the Brennan Center in 2019 and 2012 and others, which shows that certainty of penalties, right? Certainty of penalties, not the severity of penalties actually shows to deter. And so that would, in terms of applying that to the fine classification, just increasing the severity of the fines doesn't help to deter. Knowing what the fine is is where the study showed there is the supporting again, the goals of deterrence. So that's where the Sentencing Commission left it. I'm not sure we can get resolution on that commission given the different positions. I think fundamentally, as representatives on this committee have already talked about, the concerns of fines is not just that there'd be a classification system that builds in flexibility. The reality is, and there's been testimony to the fact that the vast majority of the people who go before judges come from representation by the Defender General's Office, that is to say they're indigent, right? And so while a fine may be imposed and we cannot sentence someone to jail for failure to pay, there has become known as the equivalent of the paper imprisonment, right? The effect that having this kind of debt, this criminal debt over your head, whether it's fines, whether it's restitution, prevents someone from really rehabilitating upon reentry, prevents someone from getting a job. Even if they can get a minimum wage job, can they advance? Even if they're otherwise stellar employees, does having the criminal record prevent them from advancing? How do they still have a criminal record because they aren't eligible to have an offense or a connection expunged or sealed because of the unpaid debt? This is how these fines, which may just be $200 and perhaps a mere inconvenience for the lucky sum is actually an insurmountable debt for many. Again, not just job problems, right? But housing, right? Housing applications, inability to get admitted into training programs, educational programs that will help them advance. Even if they can get into training programs and can qualify, can they pass and get the professional licensing with that criminal record? Again, I hear proposals, and there was reference to the main statute. There are several states out there that have adopted statutes to address this concern, either a presumption of no fines based on a determination of an inability to pay or really enforcing those exemptions or waivers. The other point that I wanna address to that is that's at the time that sentences are imposed, but I think it's critically important to consider and build in a backend look as well, a second look, particularly when someone is eligible to expunge an offense, a revisit, what's holding them back? Is their debt still unpaid? Can and should, and I suggest yes, another determination of an ability to pay. Again, it just helps to ensure that we're not adding and burdening the system of these debts where someone is otherwise not a threat to the public. I wanna make sure I leave room for time for questions. Thank you, appreciate that. I do see Barbara and then Martin's hand up at this point. Thank you. Thanks. Hi, Rebecca. So one thing that always doesn't make sense to me is especially if we're trying to not incarcerate people unless they're gonna be a danger or we believe that it's gonna be rehabilitative, to have it be a fine or imprisonment just seems odd to me because if they're not dangerous and can pay a fine, why would we put them in instead of a fine? And if they can't pay a fine, yeah. So I just struggle with either or thing. And I think your struggle is our struggle and there are lots of suggestions and sentence and alternatives, right? And there was sort of justice model, certainly diversion and things like that. And I think that's a good point. In terms of H87 and this narrow question of how to address the classification of fines, I would just throw out there that certainly the defender general's recommendation and that was consistent throughout the process and the work of the Sentencing Commission. So there's nothing, no different approach here as then would be to just not pass any legislation that certainly increases fines currently in the books. CRG confirmed, Judge Zone just confirmed what we see actually happening on the ground. It's way less, way far below the maximum possible. The very least we should not, we should be looking at those levels for guidance. But again, I think the ultimate question is what are you trying to achieve by having this type of sentencing with fines? Is it deterrence? Does increasing the fines deter? Okay. Thank you. Martin. Thank you, given us a lot to think about and stuff that we have been thinking about for a while and trying to determine the best way forward given the offenses and fines that we have on the books right now, which are somewhat all over the place. I definitely, they do appear to be lower than these fines. It certainly want to have the opportunity to allow the court, if it makes sense, to impose a fine and possibly even a significant fine, but really depending on the ability of an individual to pay. So trying to figure out a way forward, I think we really feel we have to address the consistency of fines in this and not punt this down the road because I don't know that we're gonna, as you even suggested, we're not necessarily going to get a unified viewpoint from the sentencing commission on it. So I do feel we should try to address it. I mean, it could be as much as just really lowering what we have put in here as fines, because again, they're not being used, although we definitely want that to be an option in the few circumstances that it may make sense. We certainly don't want to touch the fine component when we're talking about environmental crimes and crimes against companies and the like, but that's a whole other story. That's not what we're dealing with right at the moment. But the idea of the presumption of no fines, be it main or be it some other language, and if you have any other recommendations of that, is that enough to get us there initially, as far as, I'm just trying to figure out a way forward with this bill because I think it's really difficult for us to not have the fines attached to the different levels. The other issue, I'll have you answer that first if I've even, if you even see a question in what I've been rambling on about, then I just had one other point. I do think if the question I hear you saying is do I think it'd be useful to have an explicit statute establishing a presumption of no fines or at the very, with a determination of inability to pay or something requiring an ability to pay determination and either presumption of no fines or whatever, would that be useful? Yes, I think that'd be useful. And I can share, I'll try to dig up. I saw some sites too in the Brennan Center's report to some states, Hawaii, Kansas, Connecticut, I can pass along some language there and just judge Zona passed along main, which I wasn't familiar with, but that was helpful. So that I think is useful. I forgot, what are your second part? Well, I'm just wondering if there's, if we significantly reduce what the fines are in those categories we have right now. We did that already with respect to some of the misdemeanors. I also though, my understanding was that there's a threshold for fines that allow an individual to get a public defender, is that correct? So we don't want to mess that up necessarily. Well, certainly our positions would not be to increase fines to make sure they're eligible for a council because that can be addressed a different way, right? Just lower than threshold. So I don't, I think to the extent you should divorce that concern, right? I mean, the issue is that there should be no prison or debt, right? There should be no criminal debt when someone can't afford to pay it back and have that hangover them and prevent them from being able to rehabilitate. So I think across the board it should be lower if it's looking, if you're looking for something to be consistent, you could adopt one number, misdemeanors, felonies, right? And have it be as simple as that. You can have it, but whatever this committee, if you land on assessing some sort of fine, I think the critical part is putting into statute, making an explicit judicial finding of ability to pay and allowing for waivers because of indigency. And I would just encourage that, not just front end a time of sentencing, but to also build that in a time of expungement or sealing or another time in terms of just that, because again, there's this movement of foot in sentencing reform generally. And so to put it at least when you're considering fines of second look, safety valves, again, because ability to pay changes over time. People can have a job at time of sentencing and then lose it. And again, the stress is not just on the defendant, but these are families who end up having to take on the debt as well and creates hardship for the entire household. So on the expungement side, of course we don't have that bill in front of us, like the Senate is looking at that. And I don't know if this is an issue. I know it's an issue we've talked about with respect to restitution, with respect to fees paid to the court and such. And it also fines for that matter. And certainly this should be flagged for us when we get that bill from the Senate, if they haven't looked at it. I mean, I've always, I mean, agree, I don't think a fine should keep a person from expunging. I have a little bit different viewpoint on the restitution component of it, but that's something we could take up later. All right, I appreciate that. Given certainly needed a lot to think about and try to figure our way forward with this, thanks. Could I give my two cents on your question on embezzlement and counterfeiting for what it's worth? Sure, so I understand the consideration of sort of cutting that or removing that offense because of the sense that there was this extra concern of breach of trust is what, if I'm hearing that in terms of the impending embezzlement. And I think the response of that is, I would encourage the committee to keep those offenses in with the tiered system only because I think when you look at who is actually getting charged with embezzlement from our perspective where it's really not a significant difference in terms of whether it's a retail theft, it's a theft offense, right? It's people who either it's an opportunity offense. So the idea of one requiring a heightened punishment based on the trust issue, I think that when you actually look at who is getting charged for this, it's the minimum wage earners at convenience stores working the cash register, right? Who just don't have a salary. And so their incentive to commit theft, whether there are minimum wage earning or committing another theft, I just think that that's not your concerns. Just don't warrant taking it and removing it from the rest of the classification system, proposing the property offenses. And in terms of counterfeiting, we were just looking at how many counterfeiting offenses the ODG system has had over the past five years not dividing up use versus production. And our database showed 33, 33 cases over five years. And that's a comparison to 22,000 cases a year, 22,000 cases times five compared to 33. So again, just putting in perspective because I know there was some discussion on how much this offense impacted our system from the ODGs very little. Again, no reason from our perspective to cut that out of what was proposed from the system tiered value-based approach. Let me just make real clear on the embezzlement charge the proposal I'm gonna make, it hasn't been made yet would keep the tiered system for the basic embezzlement offense. It's only the offense for the officer or servant of an incorporated bank or a receiver or trustee just to be clear on that. Oh, okay. Thank you for that. That's helpful. Yes. Kate. I don't know why my computer, thank you, start. My computer's been taking a while to unmute lately. Yeah, I guess I just sort of have a comment. I know I had mentioned my concern about the fee structure and I appreciate this conversation. And I guess I just sort of wanna, I'm open to sort of feedback on these thoughts. I guess that the sense I get of this bill is that at least a part of it seems sort of driven by this desire to move towards sort of more equitable sentencing and that having these sort of tiered structures helps to bring consistency across geographical locations and courts and whatnot. And so I guess I just feel what I've been hearing so far not in terms of a justification for the fee structure that's in the bill but just as sort of a maybe offering at some sort of concert around it is like, well, we don't apply these fees anyway. And so I'm not sure if I'm sort of supposed to be left to feel comforted by that. I guess my concern is that part of the reason that we have to make these kinds of adjustments as it pertains to equity is because inequitable outcomes occur without people intending them to. And so if the sort of justification again but if the sort of like offering is like, well, let's not stress too much about these fees because they're probably not gonna be applied. I think what we find in actuality is sometimes they do get applied. And when they do get applied, they don't, they inequitably impact people. And so I guess we just, again, I'm encouraged by the course of conversation. And I'm hopeful that, I believe in the sort of heart of this bill and I'm hopeful that we can come to some kind of resolution around the fees that doesn't have such as to, I mean, again, it didn't bring it up necessarily because it's small. It's like a lot of them go up and some of them go up substantially. So I guess I'll just sort of leave it there. There just some thoughts that come up for me. Thank you, Kate. I don't know if Rebecca, if you wanted to respond to that or Martin, if you want to respond. Well, I guess, and I'll, yeah, I don't really have a response right the moment except that it's something needs a little bit more thought. And I guess I would ask Rebecca if you know, if other, how other jurisdictions might be addressing fee or fines. I know that other countries are doing it very differently like Barbara Ritchison explained. But I mean, if you know of some model other jurisdiction that seems to have gotten it right from your perspective, because I know you've looked into this kind of thing, that would be very helpful to inform what we can do. I mean, personally, I'd be fine to get rid of all fees but that's not something that would be very easily passed through I think the house. That would be just a pretty shocking change for a lot of people, whether it's, it makes a lot of sense or not. So that's what I'm struggling with is ultimately where I would love to see all this go. And I'm in line with what Representative Ritchison is talking about, why do we even have this as a choice? But I'm also trying to look at the practicalities of what we can actually get through to law that significantly would improve where we are right now. I think by the minute, so that's kind of where my struggle is. And I'd rather not have this bill not progress because we haven't figured out this part because we have lost all the really good things this does. But having said that, if there's some other way to attack the fees that we all make on our side, the judgment of whether this is something we can make, get all the way through to law, I definitely like to hear that, so. And I'll dig a little deeper and pass along any more that I can find and I appreciate the interest and Representative Donnelly in terms of your concern about leaving too much flexibility effectively leaves room for having fines imposed inadvertently, unintentionally, perhaps unconsciously, but having the effect of disproportionately impacting certainly people who are impoverished, but also people of color, studies have shown elsewhere that that has been borne out. And certainly in other contexts, this committee has heard through our DAP, which I'm also a panel of that whenever we have and leave room for flexibility where discretionary decisions can be made and sentencing as a huge one is that leaves room for that. So I appreciate the concerns and I think the studies show that there are reasons to be concerned for that, but I will representable long look out and pass along with more details of our choice kitchens and what they're doing beyond the passage of statutes requiring ability to pay and providing for exemptions and waivers, whether or not there's motions of foot to actually eliminate fines. And I don't wanna speak now, but I do think there are some interesting developments. I just have to dig in one more. Yeah, I really appreciate that. And if at all possible, sometime the next week and a half, we are off next week, but I will be studying this. So, and then we only have that one week when we get back to get bills passed out over to the other body. And again, I'd hate to lose a lot of the really great things that this bill does. Yeah. Thank you. Thanks. Great, thank you. Kate, is your hand up from before? Do you have another question? No, you're good. Okay. All right, I'm not seeing anybody else. Oh, Bob, there you go. Didn't mean to come in the last minute. It's fine. So I'm listening to all the concerns and speaking of impoverished individuals and so on and so forth. And we don't want to incarcerate people for nonviolent crimes. We're worried about the fines where there's a maximum, up to a maximum that can be opposed. The judges inherently have the ability to do whatever they want. So my question is if in fact, someone suffers hundreds of thousand dollars of loss from a crime, what about the victims in this particular situation? And I'm glad you asked that question. And this committee heard from Chris Fennell on the restitution unit. And really that is the purpose served by the restitution unit and restitution awards. And those are separate, right, from fines. And I know you heard that from Eric and others. And it's worth confirming again, fines are separate from the restitution order and restitution both can be imposed in a given case. And so a person may be subject to having to pay both, right? And I was trying to run down and I couldn't come up with the answer because I heard those questions come up earlier from this committee, which is who's first in line to get paid or to collect, right? If someone can't afford those and now there's a collection agency out there. Do the fines get paid first before restitution? But certainly in terms of if there's a complainant who has suffered uninsured loss and a judge imposes restitution, that is the separate mechanism to make sure that that person is made whole, the complainant. And we did hear Rebecca, thank you. But I believe that we were also told that there was a maximum limit that restitution would cover also up to $10,000, I believe. I think the, my understanding is that it's $10,000. The amount she said that can be paid upfront before that amount is collected from the defendant, from the person. So that if a judge determines, okay, you can only pay $20 a month given your salary or low wage will put you on the lifetime payment plan for that $10,000, right? But upfront, the complainant doesn't have to wait until all that $10,000 comes in. I think Chris Fennell though said there was some exception with small business owners, perhaps aren't qualified for, I'm not familiar and deferred of her testimony on that and the amount, $10,000. But certainly if it's $10,000 or less, that is whatever the threshold limit is for the restitution is, the complaints are getting bad individuals who are complaints are getting bad upfront. And I just wanna make sure through these conversations that we take everything into account here. Everything that we've been talking about along with the victims is, I guess laying my hat on this conversation here, the victims that are involved here, they suffer immeasurable losses here. And again, I think that the restitution order is where that best serves and goes right to, and that was the purpose of the restitution unit raised to address the losses to us and make sure the complainants are made whole. So that's that's that in terms of fines, again, others can better speak to where the fines go once collected by the courts, but they certainly don't go into the pockets of the complainants, but that's the restitution and its relationship with the complainants. Thank you. Thank you. Thank you very much. Okay, I am not seeing any other hands. I'll talk slowly in case somebody wants to jump in, but I think we've got to everybody. All right, well, thank you very much. Thanks so much. And, okay, so this concludes our testimony on H87 committee, just to spend a few minutes kind of wrapping up. Selena, welcome. Good to see you. And just want to make sure that we get your vote on 199. 199. Yes, I am ready when the clerk is ready. Selena. Yes. Thank you. Great, okay. Excellent. So Felicia, you'll see I sent you some emails, but basically you can be in touch please with the clerk's office letting her know that it's the bill is introduced, that there weren't any committee amendments and what the committee vote is, which is 11-0, and that you're the reporter. And that'd be great. I can do that. Okay, great, appreciate it. That's great. Wonderful. Okay, and then in terms of 195, I would like to, Tom, maybe you and I or maybe a few of us can talk, but I would like to see if there's some way that we can respond to ACLU, Defender General, still have this available, but maybe narrow, again, narrow the crimes, narrow it, maybe do just sexual exploitation of a child and then have a report in terms of what, how many kidnapping or sexual assault cases perhaps. The Attorney General's office wasn't able to use the technology. I don't know, I'm just throwing something out, but. Yeah, that would make sense, I guess. I mean, I don't think it's any secret that I would like to see it very narrow, with just the sexual exploitation, because when this was originally proposed, and I had conversations with some of the witnesses, that's all that was brought up to me. None of the other stuff was brought up. And I was pretty surprised at the language that came forward last week. And again, I would like to see it very narrow and as maybe as facial recognition, changes we could change or, and again, see how many crimes they're missing out on, you know, going forward, I'm gonna guess it's not gonna be that many, you know, it's not gonna be that substantial. And as facial recognition improves, to me, it would make sense to expand it. If it was good enough right now, then the expansion other than the child, you know, the exploitation of children, it would be a standalone bill that could pass on its own. But as it stands right now, there's not a shock, you know, even a small chance of that passing on its own. Okay, all right, thank you. So I'll be in touch with Michelle and hopefully we can look at another version. Right, not to put her on the spot, but I would like to, I would love to hear what Barbara has to say as I put her on the spot. That's your word, Barbara, is she? Is she still here? It doesn't, well, must be she stepped off. Yeah, she must have, yeah, must have dropped off or something. Okay, well. Okay. Yeah, well. But I don't think it's gonna be much different than what I'm thinking. So, okay. All right, well, great. Well, thank you, everybody. Why don't we adjourn and.