 Okay, thank you. We are back in Vermont House Judiciary Committee after a brief break. Thank you everybody for your for your patients. It's a busy week before crossover. And so lots of people are witnesses are in many places at one time so I'd like to please start with James Pepper of the state's attorneys and sheriffs and We could first look at the annual report that is in this draft committee bill and very much appreciate you working over the break in the last few days with with the sponsors of which was h128 where this language or something like it the intent was in there and coming bringing this language forward so good morning and welcome. Thank you for the record James Pepper from the Department of State's attorneys and sheriffs. So, when I first saw the reporting requirement, you know, my instinct was to reach out to the courts who collect conviction data. And the crime research group, who just really has kind of a wealth of knowledge about where to find data how to analyze it, what's what's available. And so I did both of those things and I also reached out to the office the attorney general because I thought one thing that might be missing from that report really is things that fall short of a hate crime things that couldn't be proved beyond a reasonable doubt for the under the hate crime statute, but might, you know, result in a civil action. And under, you know, some of our other civil statutes so things that are prosecuted under the civil rights office at the Attorney General's office and you know I'm the, what's called the bias incident coordinator for the Department of State's attorney so things that get reported as hate crimes or bias incidents, but end up not being prosecuted for one reason or another. I refer over to the civil rights office to see if there's any civil actions that could be taken so. So, I took an attempt to redraft this by the way when I reached out to the courts, I asked for any conviction over the from the last two years that the sentence was enhanced by the hate crime statutes which is 13 vs 35. And so they were able to run a report and sure enough, there was only one conviction where the sentence was enhanced by a hate crime in the past two years. That's not a very, I think, useful report other than the fact of the kind of absence of evidence there. What, what Robin joy and the crime research group were able to provide is much more robust report that includes incidents of bias motivated crimes that were referred to prosecutors offices in Vermont. That maybe didn't end up in a conviction, or definitely didn't end up in a conviction that that data in that data can actually be broken out by demographic information. So that is the first section of the reporting requirement that I put together, which is incidents reported to the national incident based reporting system where there is an offender bias against sexuality or gender identity. And so that that is something that crime research group can provide to the state's attorneys in a kind of consistent way. And the second piece would be any convictions in the criminal division of the spirit core for which the sentence was enhanced pursuant to 1455, the hate crime statutes that you can, I think that the, what you'll see there is where there was a bias incident. But then from in a and then from B you'll see, did it actually lead to a conviction. And then the last part of this would would be subsection C was that last piece that I discussed from this kind of the civil rights angle, which is biased incidents that resulted in a final judgment in the civil division so those would be the cases that through the bias incident reporting system didn't really end up in a hate crime conviction, but we're referred over to the civil rights office and led to a final judgment there. So I think, and so and then I got on the phone. Yesterday with Robin joy, and the two lead sponsors of the bill representatives quarters and small and, you know, walk through some of the kind of complexities of this and some of the limitations, especially when we're talking about small populations and trying to report on demographic information, particularly of victims. It would inevitably identify the victim of these incidents because you know we're talking about usually less than five in incidences, certainly in the case of convictions under the hate crime statutes, you know one in the last two years. So, it's just that, you know, probably would want to get consent from those victims to kind of republish the demographic information related to their case. So, I just thought, and they, and they were in agreement that taking out the demographic information about victims and adding that language to the extent possible, or to the extent feasible about the demographic information of the defendants would probably be a good. Good thing to do for to protect people's privacy, but that's how we came up with this language and again, the lead sponsors are think that this is a good path forward and also recognize that some of the other work that I was discussing about the kind of Bureau of racial justice statistics and some of the other data collection initiatives that we've been looking at. We'll add more consistency to data that's being collected and reported and we'll add a lot more value to the, the analysis. And so they felt confident that this would be a good report and that there's more work to be done that probably is not covered by this reporting requirement. Great. Thank you. Thank you so much. It's very helpful. Let me see. I'm not seeing any hands or questions. Oh, Selena. Can't hear you Selena. Sorry about that. I'm just pulling up the language I had is a question on just one provision that I thought you would perhaps be the best person to answer so it's in the reporting section. It's be one a. So, um, I mean I know each 128 was focused on offender bias against sexual sexual orientation gender identity, etc. I'm, and I think that's important information to peel out but I'm wondering, you know how accessible the national incident based with the all of the incidents we sent to the national reporting system like are there other ways that that information is generally accessible to us. Unfortunately, Robin was the one that kind of helped provide this information is works closely with that but my understanding is that there are many other categories of bias motivated coding that that happens in law enforcement. But it could be reported here, it would not be difficult for instance to include race, ethnicity. You know, if that's the direction that the committee wants to go I don't think that that would be very difficult and honestly, if you look at sub to where their convictions. You know, where the sentence was enhanced by the hate crimes. You know it's going to cover a lot more than just gender, gender identity or sexuality so in some ways, I mean I don't want to move too far away from the original intent of this reporting without you know I mean the committee, I didn't want to do it the committee certainly can. But I was trying to kind of stay true to the original intent but if that section were expanded I don't think it would be an additional complication on for the purposes of this report. It was really helpful and that that was my thought to like let's extrapolate this data but while we're at it, you know we might as well ask for the whole picture of of how those those incidents are breaking down unless that's really transparent and accessible in some other way already. So I appreciate it really appreciate that. Yeah, I mean I'm looking at the, I'm currently looking at the report that Robin pulled from the neighbors it's called not a shorthand neighbors system and you know she only isolated the ones that related to the heterosexuality or gender identity and so there's a category here of anti gay anti lesbian anti LGBTQ anti heterosexual anti trans. So, you know these are the different codes that law enforcement uses when they're reporting to this. So I don't see, I don't think it would be difficult at all to kind of expand that list to include anything that might be considered a hate crime under 13 vs a 1455. Yeah, I think I would advocate for us to go in that direction. Thank you. Thank you. Coach. Good morning. At an earlier meeting this morning. Coach it's hard to hear you. Is that better. Much better thank you. Okay, great. I guess my mic was aimed down at an earlier meeting this morning. We were talking about how this information gets disaggregated. And James spoke clearly about that, as far as it becomes very specific because of our small populations here in Vermont. So depending on the direction that we go to Selena's point. We, we do see that happening. My, my question on the front end of all of this is, the steps are being taken to ensure that the complaint is actually being referred to law enforcement. And then the question becomes, is it getting into the system, so to speak. Representative Christie, that is a great question. And one that was flagged as a real problem with our data currently is that the vast number of these crimes go unreported for any number of reasons. It could be a mistrust of law enforcement. It could be someone's not doesn't you know is embarrassed or ashamed or doesn't want to make this situation public. And so there are any number of reasons why this data is under reported and that this, you know, this report will not give a true picture of what is happening in people's lives. Yeah, thank you. Selena. This is the comment, not a question, but I would also say that another complicating factor to coach's point. Attorney Peppers is that sometimes not, not all law enforcement equally has the skill to recognize incidents as being motivated by bias, and then that was something I saw a bunch of times in my work as a city counselor in you know, had to intervene with constituents at times, because in their initial interactions with dispatch or with law enforcement, there wasn't for whatever reason, there just wasn't an understanding or an articulation of like, oh, this is this person is experiencing, you know, harassment or or an assault or something and the motivation for that is is bias. So I think it's in addition to that the under reporting that just might happen there's also, I think reporting happening of incidents. And there might be really varying skills among dispatchers and law enforcement about their perception of those events and their, you know, willingness or ability to kind of code them in these ways. So multiple layers of complication. Thank you. Okay. Seeing any other hands. Anything else, James at this point. No, I mean, I was in the other committee, I'm happy to look at the ACLU's proposal, and I can try and do it in the, in the interim but I'll. I don't have anything else right now. Okay, great. Well, thank you. Thank you so much. And again, I appreciate you, your work on on this reporting section. It really is helpful and certainly we'll, we'll move this forward, I'm sure, at least this section of the committee bill. Okay, great. David, David share, please, Attorney General's office. Thank you, Madam chair for the record David share with the Attorney General's office. Again, I apologize having to jump back and forth between committees like attorney pepper. I was not privy to all of the discussion and debate. I will say that a few things here I'll keep my comments relatively brief just because I don't want to reiterate too much of what you might have already heard but talk about a few issues and then certainly happy to answer any questions that the Attorney General might have or ask me to go more deeply into some of the issues I'm happy to do so. The Attorney General's office supports this language. The Attorney General's office believes that it is constitutional and thinks that it could be a helpful tool to remove what a court might interpret as an additional element and additional burden in bringing one of these enhancements, I should say improving one of these enhancements. I would also like to bring Vermont in line with the majority I think the great majority of jurisdictions that have an enhancement along these lines. So, you know, we, we do support it and think that it is constitutionally supportable as well. So specific issues I want to talk about and I'll address a bit of the ACLU's proposal, although I haven't had a chance to review it until just about 25 minutes ago, and I've been desperately trying to read some case law wall pepper was talking about reporting so I'll do the best I can here but if the committee wants to go deeper I may need to come back on that, but I can give an initial read of it. And an initial read on a couple of the other issues that I've heard being debated earlier in this bill's in the discussion of this bill. So first of all, again, we don't think that the term maliciously is something adding the term maliciously is something that is constitutionally required in fact we don't think that there is any constitutional basis for for that. And I don't think that there's a case out there that would support that. I know there were some discussion I think brief discussion around the shank case that came out in 2018. I don't think that that is relevant to the inquiry here shank was really talking about what types of behavior can be criminalized under the disorderly conduct statute, and basically held that under a certain provision of the disorderly conduct only physical conduct can be held to be criminal, not basically it said that no speech could be held to be criminal under that provision so that was really talking about what may be criminalized. And it's important to remember that we're talking about here, by definition, everything that we're talking about is a crime, because this is an enhancement for a crime so we're not talking about what behavior maybe criminalized or not. We're talking about only criminal behavior. All we're saying is, how can you sentence that once a crime has been found. The first amendment is not protected by the first amendment, and anytime that somebody has been. And if there is an argument about whether something may be criminalized consistent with the first amendment that argument will happen will happen pursuant to the underlying crime for example going back to shank. And whether the disorderly conduct statute can criminalize certain types of expressive conduct that constitutional argument will be happening pursuant to the criminal provision. But this provision only comes into play when a crime has already been established there isn't a constitutional issue with that crime. And, you know the crimes improve and now we're just talking about how somebody can be sentenced. And sort of by itself is a significant constitutional protection, because we're only talking about behavior that is not protected by the first amendment. We're talking about criminal behavior here. And as the committee has also heard I believe there's been some discussion of the key Supreme Court case on on this issue. The Wisconsin versus Mitchell case, which does allow for the US Supreme Court did hold that enhancing penalties on the basis of biased motivation is permissible. The ACLU's provision, as I understand it is essentially trying to bring this proposal very precisely in line with the statute that was at issue in the Wisconsin case. And I think it would potentially narrow some of the applications that this could be used for. The initial read of this and again I may have to come back after having done a little bit more research on the various circuit cases that apply. But my initial read of this is that the reasoning of the Wisconsin case is not so precisely limited to the language of the statute, it's that was at issue in the Wisconsin case. The reason why I have it was that hey we're talking about unprotected behavior, we're talking about crimes, not protected behavior under the first amendment. And it is permissible for a state to say that motivations that lead to that offense can be considered in sentencing, and they used other analogous cases to to support that. It's not based its reasoning on the act of solely on the act of victim selection. It's reasoning was really saying that motivations that the state motivations for an offense for a, you know, for what is constitutionally unprotected behavior a criminal offense motivations for that can be taken into account when a court is deciding what a severe sentence should be, and motivations that the, you know, the criminal expression, you know, motivations that result in a criminal expression are as the court noted especially harmful to society, and it is reasonable to sentence those more severely. And I don't read the victim selection aspect, the fact that it was a victim selection freezing in the Wisconsin statute as limiting the court's decision and reasoning, solely to the active victim selection. I believe the court's reasoning is supports the slightly broader notion that bias motivated action is, it is permissible to have a sentence enhancement for that. So that's my initial read. I would need a little bit more time I think to give you a more comprehensive view of where the circuit courts around the United States have landed on issues like that. And I was in the middle of trying to skim a bunch really quickly but I couldn't say that I was able to complete that process by any means in the last few minutes. So that's an initial response, we do support the bill. We think it is constitutional and as it is written and introduced and I think we appreciate the work that says attorney pepper did or attorney pepper did on the reporting requirements and think of that as a reasonable way to proceed. And happy to continue discussions on implementing that. Thank you. Thank you very much, David and I realize I'm putting you on the spot so appreciate you doing what you what you can in a short time. Coach. Thanks for doing the yo yo thing today, David. It's that time of year. What you made about attorney peppers work on the data section. So part of that collection piece. I know that your civil rights division had implemented a bias reporting system. Is that going to be that point of information or that you know that data from the AG's section. Yes, we'll certainly have to be involved and put this together and make sure that everything's being captured, especially that subdivision be convictions, or sorry subdivision see reported bias and incidents that resulted in a final civil division will certainly be involved and making sure that those are cataloged. Right. So, just a quick question right now. Do you have a reference to the categorization, you know, of the reports that are coming to you. That would really yeah I mean it's a very good question I know others have been thinking about that as well. And I think what you're getting at is how do we define what falls within this category of bias motivated incidents and I think representative cobalt and raised a good point as well but there are various levels of understanding around what may fall into this category and what there needs to be some consistency on that. That's something that our civil civil rights unit is very aware of. And those questions are not simple to answer. I think that the way this is written, it's very clear and I think very the process is very doable. So, that's a good thing. I think that we all need to do more work in making sure that there is a common understanding and a common reporting practice for all of these incidents across the board, including ones that don't result in a final judgment in a court. So that's work that's ongoing and I know Julio Thompson are ahead of our civil rights unit has been engaged in law enforcement training on this. He's actually been doing that for years and I think that we all understand that's something we need to continue on and really hope we gain that sort of common understanding and reporting practice around what constitutes an incident like this and how do we make sure that we're being reported consistently across the state. Thanks, Steve. Great. Giving folks a chance to raise their hands or and meet themselves. I'm not seeing anybody. Okay, thank you. Thank you so much, David. Thank you. Thanks. I would now like to turn to Rebecca Turner if you are available to speak to the reporting language, please. Good morning, everyone. And thank you. I will focus testimony on that for the record Rebecca Turner from the Office of the Defender General. Although I'd also like an opportunity to respond to the ACLU suggestion. And maybe let me go there first. And that was about replacing language that tracks more closely to that Wisconsin v Mitchell and I heard Bryn's suggestion as well as to whether or not adding criminal to conduct was enough. And then of course, the others might my my response to all of it is that even the ACLU's proposed language doesn't fix the first amendment problem that while appreciating everyone's attempt to make sure it complies with Wisconsin v Mitchell. And at that decision, it's complicated but not that complicated. It's the statute at issue is absolutely different from the statute here, even taking the language that ACLU is proposing doesn't get close enough. Just getting to an intent requirement doesn't save the statute. I know the time is short here and I can go further into it. If I want to discuss that in more detail, because it is absolutely it's a complicated area of law. And just because David sure suggested that just because crimes may be limited to protecting unprotected categories of speech from the first amendment, that somehow gives sentencing statute enhancement statutes the green light to selectively punish the Supreme Court decision. So I think it's a little bit higher based on thoughts within that unprotected category we actually have a US Supreme Court decision and say no that is not possible you still have to be within first amendment bounds there so it's not a free reign to just punish these particular thoughts. So I just want to leave that there. Turning to the data. Can you tell me what Supreme Court case. Yep, yep. I am will pull that up while we're talking. Let me let me share that with you later. I'm not just a hold up and it's, it's funny because this is of course the case that's always there but not this morning. This more this the data, the deep points I think overall comments is, it strikes me as extraordinarily one sided strangely selective although hearing the comments here. So some indication that it would be broader than just merely collecting bias against sexuality or gender identity. Certainly, the hate motivated crimes captures a wide, wide variety and that should should should certainly be attempted. So one sidedness, you know the focus here on page to line 1112 demographic information just being collected on the part of the defendant, not of the complainant, not of law enforcement police officers prosecutors involved. So that is a failure and missed opportunity. If you're going to collect data, you should get the full picture, I think. Questions from committee members this morning have raised that point which is how do we make sure that we get to the issue of underreporting or even if there's reporting what happens next and why doesn't something happen. Don't get that by just getting demographic data from the defendant. The other point of concern upon initial read was the vagueness of the terms used bias. I understand that that pepper is referring to commonly understood reporting incident reports I'm certainly not familiar with them in the civil division. I don't know what bias means to get those kind of reports together should be some link somewhere identifying what that standard is understood to be. And I think just looking through my notes that's what I have here. And I find that decision representable London I will share that with you shortly. Thank you. Thank you. Oh, I have. Okay, it's our AVV city of St. Paul, Minnesota. I don't have any more comments on this bill. Happy to come back if there are more questions for me. Actually, I do see some Martin is your hand up from before. Do you have a follow up. I had a follow up but the questions more for I think probably pepper and I'm just wondering about whether. And I'm just wondering about whether the demographic information of the parties is something that is available as opposed to just the defendant. And wouldn't we want the demographic information of the of the. Well, it's not really a plane of this isn't this I know it's a criminal but of the individual who has had the crime against them because of their race or other factor. But the question really is, I mean, is that information that's available that broader demographic information not just the defendants. I believe it is available. So we could do it. You know Robin joy had some real strong reasons why if there's fewer than five cases. I wouldn't like to release any demographic information, particularly about victims, because it would just immediately identify and publicize the case. So she had some real discomfort with the language around identifying victims demographic information. But I mean it's a it's a policy choice for you all that is available. So, and maybe you the question is, I mean, is it are those is that public information already it's just a matter of not highlighting it as much. I think the kind of amplification of it by putting it in a report. And she also I can't quite remember but she had some information also about how that data is collected I think it's. I forget they kind of masks, some of the actual information, whether it's officer observed or self reported I forget what she said how it's collected that actually won't. But I don't want to speak for her I mean we spoke about this at length with the two sponsors, the lead sponsors yesterday and they agreed with her that that it wouldn't be helpful to include the demographic information of the victims but maybe maybe you could hear from her on that. Thanks. Thank you Selena. Yes, thank you. I am just once again, calling up language, I think I heard you say in the reporting section in subsection be one be that was utility in expanding the reporting requirements beyond convictions. Which I agree with conceptually and I think when we were working on the previous, you know that same the same similar provision in the previous bill. We got a lot of feedback that it was really hard to trace things that were not. But I think we can make it to the final stage of conviction I'm just wondering if you were any other of the, not to keep retreading this issue but if you or any of the other witnesses want to comment on, you know how we could. How would we could get the fuller picture beyond convictions. What are the reporting requirements. Well, I think the, I'm just going to call it the neighbors the national incident based reporting system, which is just referred to as neighbors that will capture incidences where police have created a report. And so that that's what that data is it's it's the reporting data where they've identified a bias motivation. And there's a number of different categories of the type of bias. And so they've generated a report, presumably that report has been referred to the state's attorney so to me that really is the kind of incident number and then when you compare that to the convictions you can see just a huge fall drop off between the number of bias incidents and the number of convictions under the hate crime statute. And then I think the third piece of that would be to look at convictions or judgments in the civil division because when when we get a bias incident report we then refer it over to the civil rights office so I think that there's kind of three prongs to this and an incomplete picture, I think it's the kind of the data that we are able to get and and report back. And again I'm happy I just emailed Robin to ask her for a meeting to talk about whether or not we could do expand that subsection one of the reporting requirement. Great. Thank you for that and I guess I'd love to hear any response from attorney Turner as well since I think I understood her to be raising some of these questions if there might still be some missing pieces in the in the data collection picture here. If there's any, you know, further data streams or concrete just as about how to round out that picture. Thank you. Yes, I do how to round out that picture. I think I almost point to sort of the exhaustive soft of work that the art adapted and and and proposing a data collection that that went towards that again building the full picture and contacts behind understanding why, why certain things are moving are not moving and I think that that's where you can draw upon what kind of data should be collected. And so having just gone through that exercise I just look at this and proposal as just being incomplete and in dangerously incomplete particularly when we're trying to understand. It's not just the number of reports but but why this is happening is what I'm presuming is the motivation here why why this is happening. Why are there why are the numbers the way they are. Is it an under recording who's going on how can we understand that by just knowing the demographics of the defendant I think I understand even including the complainant information even more useful would be the law enforcement who's involved there again law enforcement being not just the police but the prosecutors understanding the demographics there. Whenever we get bias issues, it is useful to know the background of all the key players, and it's not just the defendant in this case. Thank you Rebecca. Okay, anybody else. All right, so I'd like to take a pause on on this for now and think about it and we'll come back to committee discussion. But let's take a break and then we have each 87 and I, we should have a new new draft I think. So we can look at that so why don't we, why don't we come back around 10 of 11. Okay.