 Good afternoon and welcome to Vermont House Judiciary Committee. It is Wednesday, May 5th, and we are going to be looking at H428, which is a bill regarding hate-motivated crimes that we passed, and the Senate passed and did make some changes. So we do have attorney Bryn here to help us understand the other body's changes. Thank you, Bryn. Sure. Good afternoon, committee. For the record, Bryn here from Legislative Council. I think that you all have dropped 3.1 of the Senate's Judiciary Committee amendment to H428. And so I'm going to be reviewing that. They did do a strike all amendment. This is a pretty short and straightforward bill. So I think that it's not going to be too difficult to point out where the two differ. But if the committee remembers the way you passed the bill was to make some pretty limited amendments to the hate crime statute, specifically you removed the word maliciously so that in order to seek this enhanced penalty a prosecutor wouldn't have to prove that the conduct was maliciously motivated by the victims protected status, but just that the conduct was motivated by the victims protected status. And you also added the words or the National Guard to the list of protected categories. And the third thing that you did and you did, you made that change. The removal of the word maliciously you did that both in the hate motivated crime statute and the cross burning prohibition statute. And then the last thing you did was to include some language that required an annual report to the General Assembly specifically the committees on judiciary. That required the Department of State's attorneys and sheriffs and the office of the Attorney General to report data to the committees on categories of bias motivation and types of offenses that were coded with an offender bias motivation. And that was to be an annual report to the committees and some other it was required some other reporting as well. So that's what you did and the Senate, first of all removed that annual report requirements. So that no longer appears in the hate crimes statute. They left the your removal of the word maliciously so that's still not there. And they added the words and whole or in part if you're looking at the Senate amendment you'll see that online 10. The language now provides that a person who commits any crime whose conduct is motivated in whole or in part by the victims protected status is subject to criminal penalties. The second change that they made was to you'll see that the list of protected categories is struck out there on lines 11 through 13 and replaced with the term protected category. So they've defined the word protected category in subsection see so they've just sort of taken that list out and plopped it into a definition instead. They, the change of adding the National Guard they left there. And lastly they've added this subsection be which is a provision that the victims actual or perceived protected category doesn't need to be the predominant or the sole reason for the defendants conduct. So that sort of plays ties together with the language in whole or in part that they inserted in subsection a. Section two remains the same as the house pass version just removing the word maliciously in the cross burning statute. And then they added section three, and this is subset subdivision six from the civil statute on hate crimes. And this was really just my suggestion for a technical correction to drop in or the National Guard in that statute, as well, where it defines protected category. That is the extent of the changes. And I see that there are questions. Thank you bring today. They take any testimony on the the data section. I do not believe that they did take testimony on that section. But I can recall, I wasn't always there. So I can't say that with certainty, but I don't believe so. Okay. And any discussion that you remember about about that section and I take it out that I think that there was a concern about the burden. On the, the entities that were tasked with, with collecting and reporting that data. And I believe there was also some conversation about the number of reports that are received by the General Assembly and whether or not they are reviewed. Thank you. Ken's hand up. Ken Martin. Brent, will you just explain to me on that line 10 what in whole or in part what what what does that mean why was that inserted. So that it essentially broadens the the statute a little bit to so that if a prosecutor is seeking this enhanced penalty. So if a person commits a crime, and that crime is motivated by the victims protected status. Essentially what it's saying is that the person could have more than one reason for committing this crime against this particular victim. The victims protected status need not be the only reason for the defendant's criminal conduct towards the victim. Thank you. Yeah, that. All right, thank you. That was going to be one of my questions to about that in whole or in part. So, so Brent, does that make it easier to charge somebody. Harder to charge somebody I mean if it's broader I guess it's going to be easier to charge somebody and I'm just wondering if there could be some ramifications with it with people. Maybe getting potentially getting charged with something they didn't do I guess. Would that be more possible. Well, I think you could see it as as potentially being easier for prosecutors to obtain a conviction although it may also be seen as clarification because the existing language doesn't specify if it has to be the only reason. So it may, you could look at it both ways I suppose. Sure, sure. Yeah, great thank you. And I just find it interesting and maybe you can explain why in section one a race color religion all that's crossed out but then in the following sections that's put back in. I think I think two more time. So that that was really. This was I see this is really a technical change to the to the section of law because that's how it's written in the civil counterpart. It's the list is defined as protected category. And so that way you don't have this long list that's hanging out in this in this language about what is prohibited and instead you've got a definition that you can reference. Okay. So I see that as really being more of a technical change there. All right, great. And one more. If you can do it real quick. What did the study do the study that was in the house version. Yes, yeah the study that they pulled. There wasn't a study so much as it was a it was a requirement for data reporting. And it required that the. I'm just going to pull it up really quickly. It required that the how that the executive director for states attorneys and sheriffs and the Office of the Attorney General. In an annual report that detailed for the prior year, all incidents that were reported to the national incident based reporting system on for crimes that were bias motivated. Any convictions in the criminal division that were enhanced pursuant to the hate crime statute. Any reported bias incidents that resulted in a final judgment in the in the civil division. And that feasible you require that demographic information about the defendants be included and the reporting protect the confidentiality of the victims. Right and you said you weren't there so you weren't sure why. So they, there was some conversation about it I wasn't there for every hearing so there may have been testimony taken that I missed. But they, they, there was some sort of general conversation about the number of reports that are received by the General Assembly and, and, and questions about whether those reports were always were always read by by members. Right, right. And would there be. We've done a lot of stuff here in the last, you know, couple years around, you know, mainly around race but in now we're getting more into the gender stuff but is there other reporting or studies or anything like that that could that that may make up for some of that information. I know that I don't feel like I'm equipped to answer that at the moment because I'm not sure where the status of all of the bills that are moving that I am not drafting. Sure. So I know that there are some days some bills that may not be making it all the way through this year that require a bunch of data collection. But I'm not up to speed on all of them. I'm sorry. I don't know. I understand. There's only one, what, what seven 800 I don't know. All right, thank you. And I do want to point out that that this language was worked on, I believe by James Pepper, the Attorney General's office. I think the victims advocates were involved, but I wouldn't an ability to do this. I'm not I'm not sure that's an issue because, because this was a proposal that was that was brought forth to us from from stakeholders. Yeah, one more thing Maxine since you brought that up just crossing my mind and something that Brin said to and just our conversation is, how do we potentially not duplicate I guess you know with with all the, all the things that we do, especially around the, you know, the racial issues that were, you know, we've done a lot of work on, you know, whether it's, you know, traffic stuff or crimes or, you know, hate crimes. I just hate to see it doubled up I guess you know if there's anything else and, you know, going through the legislature. I understand that's why we need a Bureau of Racial Statistics at some point. But that's another conversation. But yeah, I agree. Instead of having it piecemeal throughout we need an entity that will do that important work. Let's see. Ken Selina and Martin. I think Martin was up before I was there. I can see you Ken. Go ahead. So, just so, Brent, just to go back to that. I don't want to make too big of a deal of this but that that in whole or in part couldn't. The one thing I really scares me about things is wouldn't two lawyers interpret take those things differently. That meaning differently I should say. Well, I think lawyers can always interpret things differently I know. You know, I think that's kind of the nature of lawyers but I think if your question is, if, if that is clear language, that is language that other states use in their hate crime statutes. And I think that it is clarified by the by subdivision be that language provides that the victims protected status doesn't need to be the predominant reason or the only reason for defendants conduct. So, I hope that helps you in your determination of whether or not it's clear enough. Yeah, your first part of that answer was probably one of the best ever. Thanks. Okay. Go ahead Martin. As a lawyer, I resemble that I suppose. So, actually, I can was getting to the issue and you answered one of my questions is whether other states did this and or had the same kind of language. Another question I had and I think you probably answered this one as well but I want to make sure that that would when we have different language and be is that clarifying what we mean and all in whole or in part where we're using slightly different language, the predominant or the sole reason I mean is just this like piling on or, or giving more clarity or is it going to confuse things because we're using two different phrases. Um, you know, we did the committee did talk a little bit about whether they should limit it to just that and whole or in part, and an earlier draft of the bill was a little bit broader and it provided that the defendants conduct need not be. A significant reason was the word that was used a significant reason the predominant reason or the, and they removed that I can't remember if it was significant I may have to check on that. But they, they tried to narrow it and scope a little bit so that it was, it was instead it doesn't have to be a predominant or sole reason for the defendants conduct. I think that the Senate ultimately came to the conclusion that it provided additional clarity, as opposed to muddling things, which is why they did it that way. And is it unfair for me to ask you if you agree with that. Um, I, you know, to me I see it as really a policy question whether you want to become that specific about about how much of a motivation factor it needs to be, or if you want to leave it in the hands of the court to decide. I think that if you left it as in whole or in part it would be a little bit less specific than it is now with the, with the additional language and subdivision be. All right, so one one other question in, I think this is to, to perhaps help us and how, how this will be interpreted. Could you tell us kind of the standard that a court uses when they're, if there's any kind of ambiguity in a criminal statute, how it's my understanding that the court reads it in favor of a defendant. I may have that slightly wrong if you're able to kind of elucidate that a little bit. So they'll look to the plain meaning of the words. I mean there I think they there's several things that courts will look to and interpreting a statute they'll look to the plain meaning of the words they'll try and interpret it in a way that makes sense as opposed to you know they want to avoid any result that would either be nonsensical or unfair. And, and, but with respect to criminal statutes in particular is that your question. Yeah, yeah, I thought that there was a standard of interpretation that kind of gives a benefit of the doubt to a defendant. I think that is, I, that does sound right to me in order to give you the precise standard I'd like to take a minute to look it up. But it would be nice to have that just generally because when we look at these kind of cases to understand, you know, if there is any ambiguity where, where, where does it fall. So, I would appreciate that. And it doesn't have to be now just email it to us at some point yeah, yeah. Okay. Okay, then I'll move to Selena. This is a little redundant. It's just, I was actually raised my hand to comment on what you said about the reporting section way back which is that that section had, there had been work with, I think, crime research group and others and I drew on work from those bills to just really make sure that we were talking about an achievable, you know, existing data set that could be readily communicated into reports so I don't know if this bill is the right, ultimately the right place for that provision but it is something that I think was very important to the sponsors of each 128 and that would love to try to find a home for seeing if we can continue to carry that forward. Right. So it passed the Senate today. Micah message today and be on notice. Yes, we'll be on notice tomorrow. I'm just trying to think about how much time we have to think it through. Yep, it should be on notice in the house tomorrow. Okay. Right. Any other questions or, or thoughts. So I do have the answer to represent the long question, but I can wait until everybody else finishes asking their question. Go ahead. Okay, so I can send that there's some some Supreme Court cases that talk about this and I can send them to the committee. There's a rule of lenity that requires the court to resolve any statutory ambiguity in favor of the criminal defendant. And it's been ingrained in the criminal law for decades, I believe in since the early 1800s. So if there is, if there is a doubt that in the construction of the statute then it will resolve it in favor of the defendant. I appreciate that. I appreciate that. So, so Ken can sound like an attorney in the future he just has to remember the rule of lenity. And then thank you, Brent. Barbara. So in trying to decide our options is there. Are you worried that if there were a conference committee, there wouldn't be time to address it if it should. Seriously, should that be an option. So much. I'm not so much worried about time I'm just kind of thinking it through as to whether or not there is another bill to to put it on. You know, certainly other miscellaneous judiciary bill. Right. Okay. Right. But this, but it was important to the, to the bills sponsors of 128 it was important to us. Right. And there was, there was work done on, on behalf of the group that got together to right and came back with very specific recommendations about what could be obtained but what, you know, right. And we know data is important, but it is curious why it got taken out. Yeah. So, given that we don't have to act today. I think it's, I think it's a good idea for us to, to wait and think about it. Thanks. And then tomorrow with Martin you have a big lineup of witnesses but we need to carve out some time tomorrow morning to, to respond to this if it's on, if it's on notice tomorrow so that will be prepared for Thursday. I mean tomorrow is Thursday. So we'll be prepared for Friday. Yeah. So, okay. All right. So any other questions for Bryn before we adjourn. Okay. All right. So before we do, Madam Speaker, Madam Chair, sorry, it's been a long day. So I'm wondering if we should talk in a committee about each 317 and where we're going to try to head for that or should we talk offline later. Either way, did you want to report on the RDAT meeting or something? Yeah. Yeah. And if coach wants to, perhaps just, just to let folks know where we are and what coach and I think the next step is going to be. Coach, are you with that or do you want to do that some other time? If we could probably do it pretty succinctly. All right. Yeah, go ahead. If you want me to, I'm deferring to you coach, I'm deferring to you. Well, I think everybody's aware of the proposal that we put forth to our DAP. And that was to have our DAP be the home of the Bureau of Racial Statistics. So they called a special meeting that occurred on Tuesday. And upon their review of the proposal, there was a lot of interest. But as there always is with these, you know, standing up a new program, there's always a lot of questions as well. So, basically, where we're at. And what we would like to propose is is that we shift this to a working group that would formalize the details of the move. So that when we come back at the beginning of the next session, we'll be able to move the program forward. And this way, everyone, all of the players, the partners, because when you look at the composition of our DAP. It's, it, it encompasses the areas that we would want it to. And having it sit there. There's just a few minor corrections that the bill would take moving forward. For example, the language to include the office of racial equity into our DAP itself. It was there because it wasn't an existence when our DAP passed. The office has been participating, but it's been kind of participating. Ex officio. So, what we would be doing in this new draft would be setting forth the expectations of the working group. We would correct the statutory language for the office of racial equity, and also correct the size of our DAP to include two additional members that would be appointed by the office of racial equity to also add more community voice of the affected communities to the committee, which they felt very comfortable with those amendments. So that that's the cliff notes version. Does that. Yeah, I think the bottom line is to try to having a having a working group to kind of iron out those details. And that by the end of the year will have those details worked out into either 317 or a different bill. And I think the concept that the working group and what I would propose is that it would go into the miscellaneous judiciary bill. And I also talked to, I was talking to Eric about as green just asked him what kind of timing he had so perhaps coach and I, if there's somebody else wants to be part of it, we'll be talking with Eric. Hopefully by the end of this week Friday or Monday, depending on your schedule coach to get some language together that we can look at next week. Cool. Thank you. Thank you. That's helpful and I did last week, speak to Sarah Freeman from the Council for State Governments, who has been attending our DAP meetings and looking closely at this issue in her role as consulting on justice for investment too. So, and she also had some, some thoughts and models of some other states that we could look to but Yeah, and she's she was there last night. I think that's very eager to be part of this as well. It's kind of folded into justice for investment too. Right. So I forgot to mention that. Right. Thanks for mentioning that because she was a she shared, you know her thoughts on behalf of CSG and that I think helped some of the other members see that this couldn't move forward in a positive way. Okay. Great, so you'll be meeting with with Eric to get some some language correct. And Sarah and I we're going to talk after last night's meeting so I'll check in with her as well but but yeah that sounds good. Thank you. Okay, let's adjourn because I have a meeting and I'm sure other people have more meetings as well and phone calls to make before the meeting.