 Welcome, welcome to Vermont House Judiciary Committee and we are continuing our discussion on h18 and act relating to sexual exploitation of children. On our agenda it says committee discussion and possible vote I know on Friday or Thursday when we last discussed it, people were feeling like they were ready to vote but just want to check in. We don't have any witnesses today, but they are on, they're available, as well as counsel. Any questions. All right, then. So can are you set with as clerk or you set with what you need for a forum in terms of for both. I have the forum right in front of me I'm just, I think I just got here late I'm really not sure what we're doing. Okay, I mean we're going to call the world we're going to call a vote. Yes, on 18. Yeah, and then at the end of the day. The clerk's office instead of coming to each committee room they actually will send an email asking if there's anything for the calendar. So we'll say yes and then I'm not sure in terms of getting, well, maybe Michelle you can help us and or I can ask the clerk's office in terms of, you know, getting the amendment and the signature and, and all of that that we need to hand into the clerk's office for the calendar. Right, I would have I would have you check with Betsy Ann and the staff to figure that out because I'm not sure how that's all what you all are doing in the virtual realm for that. Right. I did just want to check and make sure what version you guys have for the for the strike all amendment. Okay, to make sure that So you should have, I think I really like I'll get I'll get Ken a clean copy because I have a little bit of highlighted language on draft 2.1 of the strike all. Right. Mike sent me an email I think we know what we're doing. That's for that's for the vote part. There's a little more complicated once you get the bill ready to go. Yeah, so thank you Michelle so yeah it is 2.1. Yep, and I'll send something out to Mike and Ken right now that just doesn't have the highlighting that way they've got a clean copy but I'm not changing any of the language. Okay, great thank you. Committee members everybody have 2.1 did 128 942 am this seeing seeing nods. Okay. All right, well, I would entertain a motion to make that motion. Okay. And what is your motion. I make the motion we accept the draft number 2.1 of h 18 dated 128 21. Second. Okay. Any discussion. No, I'm going to hold my tongue. Okay. Why that's unusual. Okay. Not singing any hands. Sometimes it's best. Okay. Okay. Then the clerk shall commence to call the roll and committee members you could just say yes, you don't have to, you know, hands or anything like that just say yes, hopefully yes, or just say what your vote is. So we're ready. Thank you. Yes. Donnelly. Yeah. Yes. Yes. Yes. Not. Yes. Norris. Yes. Christie. Yes. Rachel son. Yes. Berdek. Yes. Brad. Yes. Great. Great. Well, thank you everybody and congratulations. Our first bill. And you will be the reporter. Yes. Great. Thank you so much. And I just got a bit earlier, the penalties. From David share. So I'll send those to you in case anybody asks what the, what the penalties are. Okay. Sure. Michelle and David will. Help you tremendously. If you need it. And. I do. And, and. I will ask. And I think I just did. Well, you've been great on this before I really, really, really. Excuse me. Really appreciate your leadership and committee. Really appreciate all of you coming together on this bill. And thank you, Michelle. That's great. Okay. Great. Great. Thank you. So, Tom, are you heading out to plow? Yeah, yeah. If I may. Not discussion, but it is about this bill. I just, I just want to thank everybody that was involved, you know, between, you know, Marshall and David, this. To me, this, it was just really strange the way this came about with, you know, with all the back and forth. You know, and, and, and I realize, you know, you know, depending on which side you're looking at, it's, it's not what you wanted. But I do think that it's, I do think it's a good bill. You know, in the bottom line is, I think, I think it would might have been Barbara last week that kind of brought things back into focus. You know, as far as what we're doing and what this bill is about. You know, it's about the kids, you know, and protecting the kids because, you know, I got to believe, I mean, I've never seen any studies or had, you know, been in on any discussions on, on what happens to kids and what their lives are like after being traumatized, you know, with some of the things that happen, you know, in that, in that world that they get forced into. But, but again, I just want to thank everybody. I really want to thank Michelle, you know, for all the work that she did on this. It was at times, I feel like she was a referee almost, but, but just, just a great job. I mean, you know, with the, you know, with the constitutionality stuff and, you know, in the language, just, I don't remember exactly what part it was, but it was, you know, language, it took like 30 seconds and had new language that was better than what we had. And, but just thanks to everybody. And I think everybody in committee knows how, how near and dear to my heart this topic is. And, and it's just the right thing to do. Thanks. Thank you. Thank you. Coach back in. Okay. All right. Great. Thank you. So we're going to move on to H. 20 and Eric, are you able to do a walkthrough of by Tom? I am leaving. Okay. Of the. Of the latest draft. That we have on. An H 20. Just let me. I don't think there's a new draft. Is there. Yeah. I'm sorry, you're right. It's no, it's not a new draft. But it's the. Basically 1.1. It's not as introduced. So. It would be great if you could, if you could walk us through that. Yeah, absolutely. And if you can compare what's here to how it was introduced, I think that would be helpful. And. Do folks have it. It's on our committee page. If you go to. Today's date, you'll see it under Eric's name. I'm just getting, getting to that myself. Okay. Great. And that. Is, as you mentioned. Representative grad is the, is a strike all amendment. I'll pause for a moment just to. Introduce myself for the record. So this is Eric. That's Patrick with the office of legislative council. And I'm going to go to the committee. So. Here to talk to the committee for a moment about age 20, which is an act relating to pre-trial risk assessments. And pre-trial services. Does anybody not have the committee strike all amendment in front of them? That's version 1.1 dated. 127 2021. 128 PM. I'll assume that. That everybody does have it. Thank you. So remember, we, we, uh, walk through this once before. We're going to refresh your recollection, as we say in the legal world. So that everyone has, has that fresh in their mind. As you talk about, uh, what you want to, what direction you want to go with the bill today. So remember, we talked generally about the amendment process. And this is a strike all amendment. So it strikes the bill. As introduced and replaces it. With what you would see in front of you. And still contains the yellow highlighting to show what the changes are between the amended bill, which you would see in front of you. And the version as introduced, and I'll mention those as I, as I go through where those changes are. Uh, so the first one that you see, if you just start right on page one, and that's that lines nine through 13, remember this is the big picture of what's going on here is that this, the bill relates to risk assessments, pre-trial risk assessments and need screenings. And remember that the, uh, after hearing a testimony from a number of witnesses and having, uh, quite a bit of committee discussion about. The efficacy and potential bias involved in risk assessments, the decision that the committee made was to scale back. Uh, how risk assessments are going to be used and scale back. Uh, their authorization in the statute. Uh, almost entirely. Now you see that there's, we'll see that there's. One way in which they continue to be used, but for the most part, what happens in the proposed bill now. Is that risk assessments are in large part gotten rid of. So you'll see that's what's going on in lines nine through 13 on page one. That just strikes all the references to risk assessments right there. That is also a difference just to remember that was not the way the bill was introduced as it was introduced. Uh, just change risk assessments from being, uh, mandatory to discretionary. So that was the bill is introduced to change the, uh, a may to. Sorry, it changed a shell to a may. Now where you've landed, uh, in the amendment is to sort of go beyond that and not just make risk assessments discretionary, but actually, uh, phase them out, uh, almost entirely. So that's sort of the big change between that, that both the bill is proposing and between the bill, the amendment that you're looking at and the way the bill was, I was introduced. And that's what you see there on page one. Uh, so, uh, you see some renumbering there. That's just technical to because you're striking that hole for subdivision one. So you do some renumbering to make sure that the, the, uh, numbers are now correct. Again, starting toward the bottom of the page, you'll see in subdivision two lines, 18 to 19 again, just striking references to risk assessment. So that again, that's consistent with one of the two main things that's going on in the bill, which is that risk assessments are being phased out. So when you see them in the statute, they're being, uh, repealed. So that's what's going on there. But you keep the references to need screening because those, those are being maintained. Uh, so again, the, uh, uh, phase out of risk assessments is not complete. And you'll see in the next subdivision starting on line 20, the way in which they are retained. So for what purpose will risk assessments be retained? You see that a judge may request, request one, um, for it to be performed by a pretrial services coordinator. Um, if, and this is, uh, to determine whether the person poses a risk of flight. And this goes over onto page two now. If the person has essentially been arrested in, uh, uh, uh, lodge for 20 more than 24 hours. And they're not able to post bail. So in that situation, you've got someone who's been arrested and lodged and can't post bail for 24 hours. And that situation risk assessments are potentially retained. I say potentially because it's a request that can be made. The judge may request. Butrial services coordinator to perform one to determine, uh, risk of flight. And so that's what you would have. Going forward as the manner in which risk assessments could still be used. Again, you see some language struck there. And the second part of that same paragraph, uh, which is a little bit different. Uh, really just doing the same thing that I just described. It's, um, uh, narrowing the circumstances under which a risk assessment can be requested in the way that we just, I just described. Um, I don't know if anybody heard that. Sorry about that. That's her dog sitting and we have a dog here who's, who's got a little pneumonia, but she's taking her good medication. So she's doing well. But she has a nasty cough. So, um, I don't know if anybody heard that. I just heard. Um, anyway, uh, so moving along. Again, you'll just see as you continue down the page, all references to record risk assessment are struck. Um, again, consistent with the, with the change that you're making. Then the second main thing going on in the bill, you'll see is not highlighted because this has not been changed from the bill has introduced. This is the same as it was. And this is over, this is on page two at the bottom. And it's essentially providing, um, the ability of certain group of people to make sure that they continue to have the ability to get, uh, these, um, These need screenings and, uh, it's in some ways a bit of a technical point, but the idea is that, uh, when you, when the legislature, I should say, uh, expanded the, uh, the juvenile statute to permit, uh, people who are a little bit older to still be treated as juveniles, you didn't want to inadvertently, uh, limit their ability to get needs screenings. So what this language does is it makes sure that, um, even those folks who are 18, 19 years old, who can still now under the new law, under certain circumstances be charged as juveniles, make sure that that group of people can also get, um, the needs screenings or the risk assessment for that matter. Um, but either way that they can, they can engage with a pre-trial services coordinator, just the same way that someone under 18 could, if they were charged as a juvenile. So essentially it just makes their treatment consistent. And that's the other, uh, the other main thing that's done in the bill that you see in line, lines eight to 10 of page three, that's just a technical boots and suspenders, so to speak, to make sure that the language is consistent with what I just described, the, just make sure that that introductory language does the same thing, make sure that that same universe of 19, 18, 19 year olds is included for, um, pre-trial services. And that's about it. That's the, there's the rest of the bill, as you can see, is not highlighted, not underlined. That's really just shown for context. So, um, that gives you a big picture review of what the amendment does and how that's different from, uh, what age 20 was as introduced. Great. Thank you. Thank you very much, Eric. Any questions for Eric? Okay. When we last met, there was a question about, um, the, uh, the word request that the judge made request and, um, David shared, did, um, check with judge Greerson and he was, he was, okay, is okay. Judge Greerson is okay with, um, with, um, with the board, uh, request. David, I see you just came on. If you're welcome to add some comments soon. Sure. Um, thank you, uh, madam chair, David chair with the attorney general's office for the record. Um, as the committee may remember, this is in fact the same draft that you had seen last week. So after some discussions, the, there hasn't been any need to change anything. Uh, there's some tech, like really very technical points that we talked about with respect to. If the draft gives sufficient permissions for pre-trial services to do what it needs to do. And we think it does. Uh, judge Greerson did, um, notify the chair in writing that he was okay with the term request as opposed to order. Uh, he did note that, um, you know, he said that with the understanding that risk assessments may not always be available. Um, he wouldn't have known this, but I will just tell the committee that our office is treating the, um, the language of this bill to require us to be ready to administer our risk assessment. Should it be requested? We don't anticipate that that's going to be a frequent occurrence for all the reasons we've talked about, but our staff will have risk assessments available. Uh, you know, prepared in the file ready to be, uh, uh, given if a judge does request it. So we don't, we do think that they will be all available. Um, and of course a defendant always retains the right to, to refuse that if, even if a judge requests it. Um, so that's really the only update. It's, it's largely the same as what it is the same as what you reviewed last week and, um, you know, you know, I'm happy to answer any questions. Thank you, David. I do see, um, two hands. I'm not sure what order they went up in, but coaching and Selena. David, uh, thank you very much. Um, for your work with the, um, the rest of the, uh, witnesses, uh, around, um, um, amending, uh, the original, uh, the, the, uh, the, uh, the evidence is much more equitable. Um, you know, as we're moving forward. And the hope would be that as we do move forward, that the AG's office and the, uh, victim, I mean, excuse me, the, uh, Willis group, uh, will be looking at, uh, to help facilitate this work. But I do want to thank you and the judge and James and, you know, the rest of the, uh, the witnesses, uh, for amending it. Thank you. Thank you, coach. Thank you, coach. Um, Selena. Um, yeah, I was listening along in the democratic caucus today where there was some good conversation about this bill. And I think one of the questions that came up. There was like, why are we retaining them at all? If they have bias. And, um, I would love to hear your comment on that. And just an ex, and just to help us think through some of those rare instances where it might really make sense for a judge to request it. And, you know, I think that's where we should be. Um, I just wanted to put a lot of hypothetical. Too many hypothetical situations out there, but just just sort of understanding that provision that we've retained and, and where it, where and how it might come into play. Sure. Uh, so with respect to this bill in particular, I think, um, I have two thoughts that came to me. One directly answer answering your question. Another little bit of a broader thought about risk assessments in general. With respect to this bill, we did talk to a number of people after the initial committee discussions. And one of the areas where some folks had concerns with respect to retaining at least the ability to give a risk assessment was in particular the potential for somebody charged with a domestic assault case. And Judd is trying to figure out what's really going on with respect to where people live, how likely they are to return what the real conditions are. There's concern that those are particularly tough cases for a judge to evaluate. And they may want to use that tool or ask that tool to be used. And the second reason was the one that we talked about a little bit, I think, in the immediate prior meeting on this bill, which was that it does retain an avenue for a defendant to ask for one if they really want one. Again, we don't see that as a likely thing. It doesn't seem to be used much now. But that was another concern that a couple folks on the committee had brought up, that if it could be beneficial, there should be a pathway, even if it's a narrow pathway, to getting that used. And this seemed like a way to accomplish that as well. And your first point, I just have a question about that. Because looking, I mean, just all the testimony I've ever heard about these assessment tools is that they're really, really inadequate in domestic cases of domestic violence results. And I note that the language that we struck in section A1, when we did have the risk assessments more in place, says the assessment shall not assess victim safety or risk of lethality in domestic assaults. So we're just, but it would be really just looking at risk of, I guess I'm trying to understand why these tools would be of particular use in those scenarios when everything I've heard is actually to the contrary. Yeah, well, a couple things to keep in mind. You raise an important point. And we made explicit a limitation that was really only in practice before in this bill, which is that these will only be used to assess risk of flight. And I think the issue that I was hearing, again, we were trying to make sure we were addressing as many concerns as possible while minimizing the use of these. The concern that I heard was not that these could be or they can't be used to assess dangerousness or lethality or anything like that. These are risk of flight only assessments. And they won't be used in any other way. There won't be any other kind administered in this situation. But that those were cases where there was difficulty understanding all the facts of what was happening with respect to issues that are relevant to risk of flight. And so a judge may want them in that case. And I don't want to overemphasize that particular crime. That was one that I had discussions that came up in discussion where those were cases where facts are difficult to ascertain, including those that are relevant to risk of flight. But I think the concern was broader than that that there could be other cases where a judge may choose to use the tool. But again, we envision this being limited. One broader thing I do want to remind folks of is that risk assessments are, this is worthy of a broader discussion. Risk assessments are currently used in the Vermont system in a much broader way than these ever were. And certainly it will be now, including the Yazi screenings for youth. I think there's my sense is that among people who are practitioners, those are in fact useful, helpful baselines to understand what different kinds of risk really are in those situations. And there's an understanding that these are imperfect tools. So I say that only to complicate things, perhaps unnecessarily, but just to understand that we are focused tightly on a very narrow usage of risk assessments, which were largely, although not completely, eliminating. But this is part of a broader universe of trying to assess risk of various kinds in the fairest way possible. And I think that merits discussion and understanding in a broader way also probably outside of this bill. But this is an issue that's a big one. Thanks. That's helpful. Appreciate all that. Great. And thank you, Slayna. That was a good question for sure. Anybody else missing any other hands? But OK, great. Well, I'm going to put this one back for now. And Eric, I hope your dog gets better or whoever your friend or whoever your dog's sitting for. Yes, thank you. It's our neighbor. She's actually doing pretty well. As bad as that cough sounds. Otherwise, she's doing great. But thank you. I'll pass along your best wishes. And also, Representative Grab, were you wanting a clean copy perhaps for next time? Because of the amendment, maybe a clean strike all I could send it through our editorial staff and have it proof so that you'd be ready to move forward if you decide you want to go that route. That'd be great. Yeah, thank you. Sure. So much. OK, great. OK, so now, committee, we're going to turn back to H87, actually relating to establishing a classification system for criminal offenses. And we have a number of witnesses that we were not able to get to the other day. Give folks have the bill or what they need in front of them before we before we start. Looks good. Yeah, OK, great, great. Then why don't I welcome Rebecca Turner from the Defender General's Office. And I think you're the vice chair of the Sentencing Commission as well, right? And so welcome. Nice to see you. Thank you for joining us. Thank you. Thank you for the invitation, Representative Grab. And for those of you who have not or haven't gotten to meet yet, I'm Rebecca Turner here as representative of the Office of the Defender General, where I am supervising a Pellet attorney for the Pellet Division that oversees all appeals in from the criminal divisions, family divisions, glean delinquency, and CHIN's cases, where I've been since 07. And from that perspective, I was included on the Sentencing Commission when it was brought back to life. And while I haven't been around as long as some of my fellow members on the commission, I've certainly benefited from all the work that's come before, and so come to you both from my perspective as a criminal defense litigator, but also as vice chair of the Sentencing Commission. H87 that you have before you came as part of the proposal, I think, in 2019 was from the Sentencing Commission relating to recommendations on general reclassification across the board for all crimes, but particularly focused on property crimes. And that work was primarily handled by a subgroup of the Sentencing Commission. Judge Treadwell understand I came and spoke with you about that work last week. And I was on that subcommittee with him, and so come to you also with that background in terms of rolling up the arm sleeves hard work on translating those recommendations into a particular category of offenses and so here are property crimes. While I didn't speak with you specifically about this bill last session, my colleague, Marshall Paul, did, and I understand how that progressed and what passed last session is the same as before this committee now. The Defender General's position last session, and it continues with this H87, that we generally support this version, for the most part, vastly decreases penalties for criminal offenses consistent with the reclassification schemes that the Sentencing Commission came up with. There were recommendations made by the Sentencing Commission for specific offenses that I and others and the members of the defense community couldn't support on the Sentencing Commission. And those objections were shared last session, and those related to any place in the bill where the result is actually not the same penalty currently on the books were decreased, but where the results actually increase the penalty. And so to the extent that there are still a couple, I think I found two that are still shaking out that way and this H87, the objection continues. And again, just to be clear, the objection is to why those penalties should be increased. Our task on the Sentencing Commission, of course, was to not make any suggestions that would result in an increase in current penalties unless there was a compelling reason. And we were not. I certainly didn't find a compelling reason to justify the suggested increases in penalties. And those two continue on here, I think primarily in the two offenses of unlawful mischief and false claims. So I just want to put that on your radar. And that shakes out to be an increased penalty than what is on the books, where the value of the property at issue is more than $100,000 of loss. So we're talking about the higher end theft cases or property cases. And that would be for unlawful mischief and false claims. Again, I think that is revealing a little bit of the arbitrariness and of the levels of property loss that were pit, particularly where it starts following and tracking the felony graduated increased classifications. And so I just want to make sure that the committee sees that the current proposal does not result in a reclassification with all same or lower penalties on the books, but results in two new ones to the extent that I don't see a compelling justification for increasing those crimes or hasn't been a presentation that I've heard that otherwise explains that there was a problem that needs to be fixed, that such a problem could be fixed by way of increased incarceration. That is where our standing objection continues. And the only other objection we have is the proposal for a new crime. And that was the organized retail theft crime in this H87. Again, my understanding, I just don't see how the current crimes or property crimes in the books can't otherwise address the issues there. And I think if there are any questions, I'll pause here. I know there are a lot of people waiting to talk. Thank you very much. There are questions and really I want you to take your time and don't feel rushed. Appreciate you being here. So Selena and then Martin. Yes, I have a question, but just before I forget for the committee, I think at one point when we were looking at, nearly identical legislation last year, we had a really nice chart that showed us current penalties and then how things change. I might be, maybe I'm imagining that, but that was helpful, I thought at the time. So my question is really relates to your last statement. And I just know we have heard so much in this committee and it's something I hear a lot about in my community in Burlington about the whole question and issue of organized retail theft. And so I just, and prosecutors and business owners and particularly feeling like we need different or stronger tools than we have. And I'm wondering, I would just love to hear more about your perspective that the laws on the books really are adequate to address that. So if there's more you would are able to say about that, I think it would be helpful to have you on the record on in a little more detail. Sure, let's do your first point in terms of a helpful chart. The only chart I recall seeing was what came as an appendix with the sentencing commission's report, but I would love to see if there was a chart produced last session to guide, because it is really a maze to sort of untangle. In terms of your question as to unpackaging, what new does the organized retail theft crime provide that doesn't otherwise cover by current statutes? I think that for me, it's helpful to look at the proposed language specifically, right? I think that what we can presume is in the crime based on the title organized retail theft. Actually, when you open it up, it's a pretty low threshold of what could actually be done here on Triggered. And I'm looking at, let's see, page 18 on my version is where the language of organized retail theft is. And as proposed here, it's committed whenever retail theft is committed and so it references back to the definition and elements of retail theft. So here's the extra, right? The extra is an ax in concert with one or more persons on one or more occasions within a period of 180 days. So to me, we have aiding and abetting. We have conspiracies, you know, we already have these incoen offenses that you can attach to the substantive property offenses. And I don't see why that doesn't otherwise get covered here. Except for, I think the opportunity to throw on some extra penalties. Again, what was the mandate or certainly the project and hand before the Sentencing Commission, I certainly as a defender and see this close up over the years, really question what purposes, what is the goal being achieved by increasing incarceration. I think one of the opportunities that is presented by this project reclassification I think is exciting, particularly in the broader context of trying to check disparities in the criminal and juvenile justice systems generally. Racial specifically has been a hot issue. And certainly that came up really in the summer of last year, probably, and I'm guessing after a lot of the discussion of this version last year took place. I think that to the extent that the legislature plays such a critical role in checking abuses and discretion before they happen, right? We spent a lot of time trying to understand it, proposals of collecting data, to understand where it's happening, seeing the studies play out in terms of racial disparities and traffic stops and on and on, where I think there is such a huge role for the legislature to play in that in not perpetuating and continuing through this structural system where disparities can easily come through is creating new crimes to increase penalties for those crimes because the effect of that is to increase or allow for more discretion by judges, more discretion by prosecutors and police to enforce those or to impose penalties closer to those maxes. And so to the extent that this reclassification project allows for shrinking a check, right? A reorientation of what we think is, A, a proportionate and appropriate penalty. And I understand, and I think it is brilliant to commit to sort of looking on an overview of big pullback lens to make sure that our penalties are consistent and make sense. Consistency is a reason, but not just to have consistency, right? They should be proportional to what harm is being caused and what you hope to achieve through penalties. We know that our criminal justice system has fundamental problems with disparities, going in, staying in, coming back out all along the way through our discretionary points, discretionary decision-making points. And to the extent that this review of maximum penalties that are imposed on criminal offenses and new crimes that could just stay off the books because there are already crimes that exist, this is such a potent, this is just an incredible area where this committee could focus. So, when you look at this and consider these things, it is easy to say, oh, the vast majority of these offenses, the effect is we're dropping the penalties. What's the harm that there are only two, three handful of offenses here where the net effect is? The penalty increases where certain, in this instance, where certain theft value thresholds are met. What's the harm of just adding one new crime? I think the question really is, are we keeping that entrenched system? Are we giving more discretion that we're actually seeking to check? I'm sorry, that was a very long answer to your question. No, that was super helpful and just a follow-up, maybe half question, half statement, but that as you were talking about aiding it, sort of there's tools already on the books, like aiding and abetting and conspiracy. And so what, as you were talking about the potential and hence disparities, I wondered about that aspect of things too, when you create like yet another, when there is multiple avenues to charge something that seems like that would create, with different penalties associated potentially, that seems like that would create more discretion too, that could, or bias could come into play. And so I'm wondering, in the work of the Sending Sync Commission, how much that was part of the equation is looking at, are there three different ways to charge this? And can we clear things up so that there's not such an array? I can speak for the subcommittee that worked on these categories of offenses and that was not a factor in terms of how much overlap there is already, right? And you're right, it is about the discretion and in this instance, it's about how many counts, how many charges were the same underlying act? Can the prosecutor file against the defendant? Judge Dreadwell talked about how oftentimes when he's presented at time of sentencing, an actual plea deal, right? And so his discretion perhaps is not checked, is more checked or is limited because it's limited by the proposal that the parties come to him, right? Well, then the question is, is why do defendants plead to certain offenses? And there is where the prosecutor's discretion and the power it wields is enhanced by having the ability to pick and layer up multiple counts, layering up the potential penalties with consecutive sentences, right? For the same underlying act. Thank you, thanks. Thank you, Martin, and then coach. Thank you, Rebecca, for testifying today. It's been good working with you on the sentencing commission. You always have very good input on these issues. Could you comment a little bit more on the impact of raising the felony threshold for a lot of these crimes from $900 to $3,000? And you could also certainly comment on the fact that the sentencing commission suggested $10,000, but if you could comment on the consideration of the so-called felony threshold. Yeah, yes, I think that one of the net effect is that the threshold amounts that were selected as a basis results in a general lowering of penalties currently on the books or the same penalties. So on one level, if I'm just looking at this is the end result good as assessed with lowering penalties? Yes, I think where the unpacking came in and where I didn't find really great explanation for it was why those numbers, why those amounts? And it plays into, and I understand there was some discussion last session between drop $10,000 to $3,000, right? And I think the same point is made there. Why $3,000 versus $10,000 versus $20,000? Where are we seeing the numbers? What are the values of losses suffered? How much, to the extent we could find useful data where we see how many crimes are being committed involving X amount of thefts of loss, that would have been helpful. We didn't have that kind of data. And I know that there are folks from CRG here who can speak more to that. I know that the prosecutors pulled from other jurisdictions to get examples on what threshold amounts we should use. Again, except for the fact that someone else is using it, there wasn't an explanation that there was a connection to what we were trying to achieve in the amounts, right? And again, I just wanted to raise to this committee's awareness that when we start comparing to other jurisdictions and just use and see their labels as felonies and misdemeanors, that Vermont is, I don't know, the only state in the country, but certainly in the minority in terms of labeling, our misdemeanors are up to two years. And whereas other jurisdictions, it's one year or enough. So you'll see references to, oh, this one's punished by a felony and these are the jurisdictions and for us only a misdemeanor, but in fact, the maximum time imposed is similar. So that complicates comparing apples to oranges in effect. Thanks. Hey, Kirch. Just a quick reference to everyone. The report that Selena was referring to was the Sentencing Commission report that we got last year. And within that report is an incredible amount of really interesting information to help clarify a number of the points that were made. The survey that was referred to, some of the charting of the differences between them, it's there, it's a lot to digest, but at least it's good evening reading, right? If I could just follow up with what Coach said. Under my name, there is also an updated grid given some of the changes that we made relative to the Sentencing Commission recommendations. I have to double check to see if it's the one that actually matches what we finally passed out last year, but I think it is. I just haven't stepped through to double check, but you can find it under my name. There's a few documents there that are all relevant to this bill. Great, thank you. I think I got everybody. So go ahead, continue please, thanks. I just wanted to make a final point, which is thanks for the reference to the Sentencing Commission's report. In there, there is an appendix on page nine that includes sort of a list of what the property amount thresholds are in other states, but one of the interesting bullets there, particularly in the context of the discussion here of 3,000 versus 10,000. The commission's recommendation was to have a $10,000 a little bit, I understand that the committee has the recommendation adopted last year or brought that down to 3,000. The effect, of course, meaning that less or amounts 4,000 now or above 3,000 will be punished at a higher rate. I just wanna point out that the appendix here references South Carolina where when they change their cutoff amount, 10,000 or just generally change and increase the property value amount as a threshold that no increase in property crime was observed and I think that hasn't been said yet, but at least that's important to see that it hasn't jeopardized or triggered an increase in crime. And again, that I think is consistent with what we understand from the studies, this was the recidivism studies, the deterrence studies that just because you have a lengthy maximum sentence on the books doesn't encourage crimes. And so just wanted to put that appendix on your radar. Thank you. Yeah, if there are no other questions, I don't have anything else to add, I think. Yeah, no, thank you very much, appreciate your testimony. I'm looking around, not seeing any other questions. So, well, great, thank you, appreciate it. Take care. Bye. Bye. James Pepper, good afternoon. Hey, good afternoon. For the record, James Pepper from the Department of State's Turnies and Sheriffs. And so H87, as you've heard, is largely a straight translation of a recommendation from the Sentencing Commission. I don't want to be too repetitive. Many of you have heard extensive testimony on this bill last year, and you've also heard from the chair and the vice chair of the Sentencing Commission this year as well as Judge Treadwell. But I would like to just briefly discuss the origin and justification for this bill kind of from a state's attorney's perspective. So the primary task of the Sentencing Commission was to develop a classification system that categorizes all of our criminal offenses based on their maximum penalties. That's what you have before you in section one. But the commission was also asked to look at existing statutory penalties and what their actual going rate, the prevailing average sentencing practices are in the state and the effective uses of criminal punishment. And they were supposed to lower, unless there was a compelling rationale to raise, but to lower penalties based on these existing statutory or the going rate. So this is important work for a number of reasons. First, this system that we have before us in H87 categorizes sentences by the gravity of their harm versus a kind of more ad hoc approach of our current system that can be more susceptible to the emotions at a given time or a kind of desire to send a message that might exist at a certain point. And I always think about the trafficking offenses in Vermont carry a 30 year or a million dollar penalty. No one has ever been sentenced to the maximum penalty. I think we've heard over time that the average is around seven years for trafficking and that no one's ever gotten that million dollar fine. So it's important to kind of rationalize what's actually happening with what our sentences are in Vermont, our potential sentences. I also think about some of the disparities that exist between or historically have existed between crack cocaine and powder cocaine federally and the kind of huge detrimental impacts that those have led to. And also just in categorizing crimes into this structure, we were able to identify for the legislature certain irregularities that have developed over time. Specifically one that we came across was non-consensual sexual assault carries a maximum of life in prison and then under the indeterminate life sentence statutes. Whereas if the crime of non-consensual sexual abuse of a vulnerable adult, which has the exact same elements, except the only difference is that the victim of the crime is a vulnerable adult, I actually carries a shorter sentence, a 20 year sentence. So this bill, while it doesn't totally eliminate the possibility of creating a penalty that's out of sync with other crimes of similar harm, it at least starts to kind of shape the legislature's thinking when they're thinking about crimes, creating new crimes, creating new penalties to associate them with other crimes that have a similar harm. And it kind of sheds a spotlight on some of these outlier sentences. Again, just this was an important project because a recommendation because it really is adjusting our sentence ranges to reflect actual sentencing practices. I mentioned this before, but the heroin trafficking is a good example. This is also helpful for prosecutors and judges because there really is a dissonance that occurs when the public sees that the maximum penalty for heroin trafficking is 30 years and yet a prosecutor is recommending maybe seven years or five years. And the public seems to think, well, why wouldn't the prosecutor just ask for the maximum sentence? But really it's just, this helps to rationalize and kind of reduce this kind of public perception that seeking the maximum penalty is a possibility. And then most importantly, I think that what this bill does by grouping crimes by the harm that they incur or the property damage, it de-incentivizes or it just, it furthers the kind of truth in charging and more geographic consistency in charging. You know, the classic example that I raised last year and we talked at length in the Sentencing Commission is there are a number of overlapping offenses where the same conduct could be charged several different ways. So the one that we look at is fraudulent use of a credit card, let's just say $1,000 or false pretenses of $1,000. False use of a credit card is a one-year or $1,000 penalty. False pretenses of $1,000 is a 10-year or $2,000 penalty. The only difference between the two crimes is with the credit card, you have to prove that the fraudulent instrument you use was actually a credit card. So there's an additional burden of proof in the lower crime. So you see very few charges for credit card fraud or fraudulent use of a credit card. You see when people are actually fraudulent using credit cards, you see it off and charged as false pretenses. So this eliminates that kind of sentence-based charging decisions amongst the state's attorneys and leads to more kind of truth in charging, I would call it. So we are generally supportive of this bill. There's the one major point of disagreement that the state's attorneys have is the same one that we had last year. It's the automatic classification, which is the section on page three, beginning on line 13, which just essentially says by July 1st, 2022, all of our current crimes will be categorized based on this classification structure. And with respect to the property crimes, I don't think that's all that controversial. I think that these crimes are mostly, for the most part, property crimes are not being sentenced anywhere near their maximum penalties. And I think that this proposal does a good job of even raising the felony threshold, which hasn't been adjusted, and I think it's currently $900, hasn't been adjust for retail thefts, for instance, hasn't been adjusted in over a decade, maybe 15 years. And there's actually a subsequent portion of the report, which from the Sentencing Commission, which says that all of these property crime thresholds should be re-looked at every couple of years, maybe with the help of JFO to adjust them upward for inflation. But when you get to some of the more serious violent crimes, there are outlier crimes with penalties like seven years or 15 years or 25 years or 30 years that don't fit squarely into the tiered structure that is being created. And so they're going to have to be dealt with legislatively. I mean, I know there's a provision in the transitional section that says that unless otherwise provided by law. And so I just, the legislature will likely have to deal with how to categorize those crimes. And we're talking about first agreed aggravated domestics, ludenous civius with a child, some of the most serious crimes that we have. And I think, given just the Zoom legislature and the inability to kind of really, I mean, the Sentencing Commission hasn't met in person since March and of last year. I think that, to really fully flesh out how these crimes should be categorized, it makes sense not to put a deadline of automatic transition for those crimes. But other than that, the state's attorneys are largely supportive of H87. Great, thank you so much. Martin. I have a few questions, but I'd like to start with that transition period. The Sentencing Commission, if I'm not mistaken, has recommended last in the report in November, how to address those outliers that you just spoke about. Isn't that the case? Am I misremembering? The, I forget if we've done, well, no, I think we have done the sexual crimes. I mean, there are, but there are again some legislative choices that we put into those reports for, I mean, there are strict policy decisions and they're not really the Sentencing Commission other than some of the members aren't really capable of deciding what the maximum penalty should be. I mean, it's, so they've presented the legislature with choices on some of the more difficult ones. So now the onus, I think the onus with having this transition period in the bill last year was to make sure the Sentencing Commission addressed those particular crimes. Now, perhaps have this transition period in there to give the legislature a boost to make sure that they address this before the transition period comes into effect because we do now have the recommendations. I know there are a couple of competing recommendations from the defender side and the prosecutor side, but we do have those. And certainly that's something that's high on my agenda for once we get away from remote to have a bill that puts that forward and addresses that. So I still think having the transition period in there, again, it's, I understand your concern and I understand the concern with making sure the legislature gets this done, but this doesn't go into effect until July of 2022. So there is quite a bit of time and we can also give the legislature a little bit more time if we haven't dealt with this by then. I just see that maybe this is not a question, I apologize, I'm kind of pontificating on that particular provision right now, but it certainly give you an opportunity to speak to what my view is on this, that this really is to provide the incentive that we need to get the rest of these crimes addressed. And maybe there's nothing more for you to say on that, but let me, if you go ahead, if there is otherwise I have a couple of specific questions. I just only to say that I'm looking at the crimes that don't fit neatly within these tiers and they're ones with very dramatic impacts on victims. And it just seems that if we're meeting remotely, throughout the rest of this year and potentially into next year, then I just, the state's turn is just have some concerns about having anything happen automatically without a pre, without a legislative kind of action. But I mean, that of course is, I understand the need to kind of have some encouragement, some deadline, in order to act to help motivate action, but it's just one that the state's turn is, would prefer not being the bill. Right, so let me turn to the areas that the defenders general's office has had issues with and if you could address them and I'm trying to see which ones those were. Unlawful mischief is one and false claims is the other that Ms. Turner raised. And I wonder if you can address why you think this bill is the appropriate way to address those crimes? Well, if we're gonna create a classification system based on the amount of harm or property damage, it doesn't make sense for the state's attorneys to have certain exceptions to that, which honestly are crimes that are overlapping with others. I mean, you know, credit card fraud, I know it's slightly different than fraudulent, you know, for fraudulent uses, but honestly, like if the property damage is the same, it makes sense to me and someone's using a credit card, it makes sense to have that charge be what reflect the actual conduct. And if that requires increasing penalty, I think that that sort of consistency across all of the classification, I mean, it's the underlying motivation for a classification scheme is to add some consistency to Title 13 and Title 18 and 23. And then to have all of these exceptions, you know, I don't see the real purpose in doing this. If we're gonna, you know, have it applied all crimes, except for a handful of ones that really were probably the product of negotiation years and decades ago and probably aren't all that relevant. This, you know, they just haven't been updated. They haven't been looked at for a number of years. So is it safe to say that the compelling reason, as you saw or see this is the need for consistency along around these crimes? And truth in charging, you know, if someone is using a credit card fraudulently, then I think that that should be charged as fraudulent use of a credit card, not as false pretenses. Do you have any comments on the organized retail theft and new crime that Ms. Turner also talked about? Well, if I recall correctly, that came from the Chittenden County State's attorneys after speaking with the Retailers Association and the small business owners in their community. And really it just came out of a, what they were seeing on the ground, which is, you know, folks going on kind of a, you know, over the course of, you know, months, just using, you know, going from store to store and using the same kind of distraction techniques. And then, you know, people making off with merchandise. And I think that that was a crime that was identified, not, and I think it is separate from either accessory after the fact or the, or accessory crimes, but it's about kind of the aggregated charge. It allows for kind of, it'll, I mean, it allows to enhance a penalty, right? But I will say that overall, all of these crimes have drastically reduced penalties by jumping that, by increasing that felony threshold from 900 to 3000. And that one of the end results of that is that it's making a vast majority of property crimes that we see in Vermont, presumptive diversion crimes, expungement eligible crimes, deferred sentence eligible as well. So I don't, I mean, I think that for that specific crime, it makes sense to listen to the business community that's really saying that this is a problem that we're seeing. And honestly, $3,000 worth of damage for a small business owner could be devastating. So that's my kind of last question or issue if you could address. So why 3000 versus 10,000 versus 900 versus 20,000 for the so-called felony threshold? Well, as I've noted a couple of times, I think the kind of current $900 threshold, especially for retail theft is certainly outdated. I think almost all the state's attorneys agreed that it's one of those thresholds that should be considered every few years and inflated to match or increase to match inflation. And I think again, I would just note that on the Sentencing Commission report, there is a recommendation that that threshold be increased. I think it was use JFO to kind of index inflation from the prior three years and increase the threshold. And so I think that 3000 is a good level. And I would say that when a prosecutor is looking to develop a plea bargain and someone's stolen say $10,001 and they're looking at a felony, they're probably not going to jump down to a misdemeanor, which would then be kind of deferred sentence eligible or diversion eligible for that kind of damage. But at 3000, it's much more rational to think that a prosecutor might be able to jump down. So 10,000 was a placeholder number. I know that that's probably gonna be controversial thing to say. I have checked in with committee C, 10,000 wasn't some magical number. That if you look at the recommendation, there was 10,000, 100,000 a million, just factors of 10 or factors of a hundred for the various levels of property offenses. I think a lot of folks assumed that that would be subject to legislative debate and not a just straight translation from the recommendation. Which we certainly had last year. So we could still have it again this year where we land. All right, thanks. Thank you. Ken and then Selena. Did I just hear Pepper say there's like two different sets of crimes here. Like we're dealing with like property and stuff like that. And then I heard the sexual stuff and I can't find it on here. Is that what I heard? Should I answer that? Okay. Yes. So the sentencing commission was tasked with reclassifying all crimes. That includes sexual crimes, fish and wildlife crimes, property crimes, assaultive crimes, motor vehicle offenses. And so what they did was they broke out into subcommittees and they worked on each category of crime in turn and made recommendations kind of on a rolling basis to the judiciary committees. And so what this bill H87 encompasses the first two recommendations from the sentencing commission. The first one being to create that tiered structure. That's the felony ABCDE, misdemeanor ABCDE. That's the tiered structure that you're seeing. And then the second step is to fit the existing crimes into that tiered structure based upon their current statutory penalty, but then with a kind of veneer over it of what are people actually getting sentenced at what rates are they actually getting sentenced at? And so to lower those crimes into, let's just say heroin trafficking 30 year penalty that would be a class A felony. But if we're seeing that actually for heroin trafficking most people are getting seven years then it might drop down to a class C felony. So the recommendations that you're looking at are the bill that you're looking at has the recommendations around the tiered structure and then it has the automatic classification or the classification of the property offenses. And I think what you'll look at next are the sexual offenses and the assault of crimes. And then to kind of just round it out you'll need to do the drug offenses, the motor vehicle offenses and then all other crimes. So real quick, Ken, it's not in this particular bill we didn't put that recommendation as far as sex crimes into this bill that that would be a future bill presumably. Okay, so thanks. So if I understand this correctly your concern is when this bill goes into effect if it passes because we haven't done enough due diligence on studying it all together in the house. So our concern is when you have this provision that says by July 1st, 2022 all crimes will be categorized into this tiered structure unless you decide otherwise unless otherwise provided by law. And so you see that the tier structure has, you know, life imprisonment as a maximum fine as a class A felony. You've got 20 years maximum penalty as a class B felony. You have or as a 10 is next but you have a number of crimes that just fall outside of those, outside of those tiers. You know, I'm thinking, you know there's a number of like losing the civius with a child as a 15 year penalty. So under a straight classification scheme based on the transition language, you know, there's gonna have to be a decision point. Does that go up to a 20 year felony maximum or does it go down to a 10 year maximum? And I think under the straight transitionary provision I don't know exactly where it would go but the idea is that that's a decision that this committee and the legislature at large will have to make, is that gonna be considered, you know, a class B or a class C or some other class? And, you know, for the property crimes it's not quite all that difficult but for some of these other crimes where there are, you know, very traumatic situations that have happened and they are designed to deter a very specific type of harm I think that'll be much more difficult to classify those. Okay, I got you. Thank you. So, Madam Chair, can I ask this question? Can, these are two different crimes and I heard Martin say what he said about a different bill or something, but when, so is this sexual in these more critical crimes for lack of a better word? Are they going into another bill or are they all going under this general change that's gonna be July of 22? Martin, do you wanna, I think I know the answer but Martin do you wanna respond to that? Yeah, sure. I mean, the intention is to have an additional bill or bills that take up the other recommendations of the sentencing commission, that being the sex crimes, the crimes of violence and those we already have recommendations and also down the road, motor vehicle crimes or offenses, just one second and drug crimes. So, yeah, that is the intent and I can, I know that last year there was a lot of committee discussion of whether to keep this transition period in or not. Again, as I mentioned earlier today that part of the rationale for doing so was to make sure that there, that sentencing commission was gonna continue to give us these recommendations and it's a new, probably a new debate or new discussion we should have again, whether that transition period should stay in because we have additional recommendations now. But yes, the idea is that this sets up the whole system, the categorization system and it categorizes the property crimes. In part, it shows how this is going to work and there was discussion of whether just to have one huge bill that did this with every crime that we have to deal with, that's 840 some crimes and really decided that it made more sense to get it started with this and take it in more manageable bite-sized pieces, so to speak, because there's gonna be a lot to do with each of these categories of crimes and it may have just been too overwhelming, I think, to have it with one bill covering everything. I don't know if that answered the question enough for you or not, Ken. A lot better for right now, thank you. Okay, see Selena and then Kate and then we will take a break. Thank you so much and I think some of my questions were answered, I really had the same question as Martin about the just knowing, not to be a dead horse as the saying goes because we did have a lot of discussion about this last biennium, but knowing that the state's attorneys were one of the folks who really advocated for lowering that threshold felony threshold level, I wanted to hear more thoughts on what y'all think that's still important and I just will add that I think one thing you didn't know just to check in about it was when you said that for the sentencing commission, it was the 10 K, it was a placeholder. I also was under the impression that it was a little bit derived from the results in South Carolina was where they enacted that felony threshold and didn't see an uptick in criminal activity. Was that not a, was that a factor in the sentencing commission's recommendations or a remand number? So the felony thresholds in South Carolina, I just, I have it here, it's sorry, it's not 10,000. The highest felony threshold in the state or in the United States is 2,500. But again, you have to take into account some of the issues with our felony misimeters being two years in Vermont, but South Carolina raised it to... So it's not the, I'm sorry, I misspoke. It's not the felony threshold, but it's the, it's just the associated penalty of a 10 year maximum, they made tied a 10 K to a 10 year maximum penalty. So I guess I somehow thought that there was more of a, that that was like more of a model because of the evidence around it for... Well, you're right about the evidence, generally speaking, we've seen, I think a number of states raise their felony thresholds over the years and we haven't seen a subsequent increase in crime. So yes, that is definitely true. I think there's 20 states that have changed their felony threshold. Sorry, I'm looking at a chart here from the Pew Charitable Trust, which is actually included in the sentencing commission's 2019 report, which I can provide to Evan and have him posted if that would be helpful. But the real, I mean, again, the felony threshold has not been raised in I think 15 years. And it's $900 for most crimes. And I think that that is something that needs to be looked at every couple of years to think about this, but $10,000 is a pretty significant jump from 900 to 10,000 and would encompass, I think, 90, it would encompass the vast majority of property crimes in the state. And I just think that, I mean, the state's journeys and others feel that it's just that, you know, that that would be a devastating amount to most small businesses and retail organizations. To lose that kind of, to have that kind of theft happen in their stores. And so again, like, it's really just, the state's journeys felt comfortable raising it, but they just, their 10,000 just seemed to be, would put its way out of sync with the rest of the states. Okay, that's helpful. And then I just, I didn't know if you wanted to comment in more detail about the question. You started to a little bit, but about the question of the new retail theft crime and why something like eating and abetting and maybe that's a conversation for another day to really dig into like comparing, you know, I'd be interested in comparing that crime to some of the other tools on the book in more detail, but I don't know if you wanted to give us more analysis now while we have you about why you think some of those other tools are inadequate. And I would be happy to kind of have that conversation more in depth with, you know, but, you know, this, it's not the organized retail theft to me is more, not about the kind of two people acting in concert, although that's an important aspect to it. It's more about the aggregation over a number of months. And I think that that's where we're seeing a lot of, you know, I mean, this concept was one that was brought to us. I think, you know, there was a bill, I think three years ago that did this exact same thing. And it came from kind of small business owners just saying, you know, there's, there are, you know, these groups of folks that, you know, distract our clients, our employees, and then they, you know, and someone else is kind of running off with a bunch of merchandise. And so it's this kind of acting in concert, but then aggregating it over a couple of months is the real concept there. But I'd be happy to kind of think about how accessory or conspiracy crimes might cover some similar ground. I think that would be a good exercise for our committee to dive a little deeper into that if there's time, but thank you for your thoughts. That's really helpful. Thank you. And then after Kate, we'll take a break. Go ahead, Kate. Thank you. Yeah, I know, I know I'm hungry. So I appreciate my committee members' patience. So I just had a question, you know, you use the word harm a few times that part of what we're trying to do here is, finds something that reflects harm that's done. And I guess, you know, I'm thinking about the property value aspect. And I actually, I think I'm hearing you now sort of talk about this from the perspective of small business owners kind of getting at my point, which is the last question. How are we assessing harm when we're looking at like property value in association with a crime? So right now what I'm seeing in the bill is that the sentencing is just directly related to like the value of the property that's been impacted in some way. But in my mind, just thinking about the concept of harm and certainly from like a restorative perspective, the value of a property that's being impacted doesn't necessarily reflect the harm that's being done to the owner of that property. And in fact, sometimes you might, I think if I were to be working with a homeless person who had one thing to their name and that we're stolen from them, the harm arguably done to that person is greater than a massive amount of property being taken from a Walmart, for example. And so I guess I'm just curious how those conversations are being had as we look at sentencing and just acknowledging what you're hearing from the small businesses, which is like when we just look at it in terms of cost of property, it's maybe negatively impacting smaller businesses and lower income folks who are the targets of staff. It's a great question. I would say that our criminal laws are imperfect and they certainly need to have some kind of baseline consistency around them so that people aren't being treated differently for similar conduct. We do have in other areas of the law things that take into account, the harm to the victim. I know, for instance, restitution applies to uninsured loss. So a big company that has proper insurance and loses a lot of merchandise, they're not gonna get reimbursed for their, they'll only get reimbursed to their uninsured loss. For instance, the kind of harm that might befall a small business as compared to a big corporate retailer, that kind of harm can come out through our victims advocates and through our in-et sentencing. So a judge or a prosecutor can try and really think about what's going on with the victim and try and craft the sentence that, and it could be a reparative board sentence. It could be a totally alternative justice approach, but it can take into account some of the differences in harm to the individual victim. But for the purpose of classification, I mean, it's just, it's imperfect, but it is kind of one way to look at how crime should be categorized as opposed to looking at their current, just classifying based on their current statutory penalty to really look at, try and add some consistency around just focusing on what exactly, what the exact property value of the damage done or the property stolen is and categorized based upon that. Thank you. Great. Okay. Thanks. Is it possible if we ask a quick followup to that just before we lose pepper on this? So the felony threshold of $3,000, if presumably more crimes that would have been charged as a felony threshold would be charged as a misdemeanor threshold, does that open up the avenue for diversion to restorative justice to more people where that harm can be addressed? All of these crimes are, all the property crimes are diversion eligible. Even the felony? Even the felony, yeah, diversion and Tamarack eligible. It's really just, you created presumptive diversion where a prosecutor will defer someone or send to diversion someone unless they stayed on the record why diversion would not serve the interests of justice for any crime that's expungement eligible. So it's any misdemeanor that's expungement eligible. So these are presumptive, the misdemeanor level is presumptive diversion but all property felonies are diversion eligible. Okay, thanks. Okay, great. So I think we do need to break James, did you have more testimony that, no? No, I didn't, but I'm happy to come back if you ever need me for this. Absolutely. Okay, so let's come back about five minutes after three and try to finish our witnesses if we can. Need a hard stop at 3.45 because number of us have more meetings this afternoon. So, okay, thanks so much. It's like most folks are back, okay. So I realized we still have three witnesses and we may not get through everybody but as testimony so far is shown is we do need quite a bit more time on this bill. So I just wanna put that out there to our remaining witnesses that please don't feel rushed to testify to everything that you have on this bill. We certainly will be revisiting it. So why don't I start with Falco, ACLU, thank you. Hello, hello and welcome everyone. My name is Falco Schilling. I'm the advocacy director for the ACLU of Vermont and I really appreciate the opportunity to testify to you all on this bill. So in essence, H87, as you have already heard is in many ways a rerun of a piece of legislation that passed out of this committee last year after some pretty significant discussion on a number of issues. So we're gonna be going through some of our thoughts and concerns about the bill, but largely say we are supportive of this piece of legislation. I was also very appreciative of the defender general's office that they went first and they broke a lot of ground and laid tracks for me because our testimony very much reflects the testimony you heard from the defender general's office. So I think that might actually make things go a little bit quicker because you've already discussed many of these points in the previous testimony. So I think in terms of starting on this bill, I wanna say one of the reasons that we are supportive of this legislation is what it would do to decrease the maximum incarceration times as well as penalties for a number of property crimes across the board. And as we look at trying to end mass incarceration in this country, sentencing reform is one of the most effective tools that we have to do that. And what I mean by that is over the last number of decades we saw across the country significant increases in both the prison population as well as sentence lengths. And luckily here in Vermont, we've been making a pretty concerted effort to turn back some of those changes and to create a prison system that's more fair, just and rooted in community-based solutions. So to give you an idea of how these changes and sentence lengths have impacted the prison population both here in Vermont and across the country, if you look at our prison population, it rose by 363% from 1980 to 2009 and peaked at 2,200 people. If you look at our population today, we're down to about, I think it's 1,275 approximately. So there's been a lot of really concerted work by members of this committee, members of the legislature and others to safely reduce that prison population. And this is another step, importantly, in that direction. And during that same time, if you look around the country, prison populations in states rose approximately 222%. And when the studies have shown that that increase over that period of time, almost half of that increase in population can be attributed to increased sentence lengths and that from 1993 to 2009 alone, sentence lengths increased by 33%. This is a general trend we saw in legislatures across the country, increasing sentence lengths, which then led to increased amount of time that people were spending in prisons, also increased prison population. This is something the ACLU is working on in state houses around the country and nationally. And we greatly applaud the work of the Sentencing Commission to bring forward these recommendations because we know the increased sentence lengths are not really effective. And most severe sentences are often necessarily punitive, have diminished returns and do not effectively deter crime or decrease recidivism. So for example, the National Bureau of Economic Research found that sentences longer than 20 months had close to no effect on reducing recidivism upon release. And lengthy sentences often do not prevent or control crime and in fact result increased recidivism that incarcerating people for longer times might not have the effects that we're actually looking for. And so I did submit some written testimony to the committee referencing where I'm getting some of these statistics. So I think that should be up on the website. And for those of you who were in the committee last year, you have already heard me give this speech. So this should be somewhat old news. And on top of that, we've also seen that people effectively age out of crime as they get older, as people get older, they are less likely to commit new crimes when they are released. Also, we have to think about the impact that increased sentence links have on people outside of the criminal justice system and especially people who are directly connected to those who are incarcerated. And as we think about what's happening here in our state, there's about 6,000 children in this state who are directly connected to people who are currently incarcerated. So the longer we ask someone to stay in prison, that can have a direct impact on communities and others. Many of those are caregivers and that's something we want to take into consideration as well. On top of that, you all should know that as you were looking at reducing sentence links, Vermonters are supportive of these efforts in a poll that we did last year, looking at criminal justice reform generally and then specifically at sentencing reform, 70% of Vermonters, the smarter they support reforming Vermont sentencing laws to reduce sentence links consistent with current research and best practices. So all that to say, we are supportive of all the portions within this bill that reduce maximum fines and maximum imprisonment sentences. We would echo the testimony provided by the defender general's office that we are not supportive of those areas where fines and fees increase. I understand the concerns put forward by the state's attorney's office that was balancing that consideration on the side of consistency, but we would rather balance it on the side of reducing sentence links. We know that generally sentence links overall are too long and that we shouldn't increase any sentence links without strong justification and that's the charge of the sentencing commission and what guided these recommendations. So we would second what the defender general offered on that and are not supportive of areas where fines and fees increase. In terms of the felony threshold that we are highly supportive of the language in this bill that would raise the felony threshold to $3,000. We were also supportive of the sentencing commission's recommendation that this be raised to $10,000. And in part, this is because the research shows that these raising of felony thresholds does not result in an increase in crime. Attorney Pepper referenced a study that was submitted by the sentencing commission from the Pew Charitable Trusts. This was released in 2016 and it had three major findings which I wanted to share with you all. One, that raising the felony threshold has no impact on overall property crime or larceny rates. Two, states that increase their thresholds reported roughly the same average decrease in crime as the 20 states that did not change their theft laws. And three, the amounts of state felony, the amount of a state's felony threshold, whether it's 500, 1,000, 2,000 or more is not correlated with its property crime and larceny rates. So what we're seeing here is that as these felony thresholds increase, we're not, generally these states saw a correlating decrease in crime that folks across the country saw in states where they did not raise their felony thresholds. This also leads to our opposition to the inclusion of the new crime of organized retail theft. Just as a matter of principle, the ACLU does not support the creation of new crimes, enhancements or penalties, unless it is absolutely necessary to protect public health and safety. And don't believe that in this case, this has been shown to be something that's absolutely necessary. As we've heard from the defender general's office, there are other ways to charge these crimes. And we think it could lead to unintended consequences due to how that language is structured. And thinking about situations where someone might be involved, as we heard earlier, someone might be providing a distraction of some sort, but then by providing a distraction, they could then be charged with a felony, a higher level of theft than what they actually committed. So generally, as a principle, I don't think it's all that surprising that the ACLU does not support the creation of new crimes and so are not supportive of this portion of the bill. Looking at the other elements, in my testimony, I didn't speak to this, but we are supportive of the transitional provision found within this bill. I think as you've heard, this is something that's gonna be important to make sure that the legislature keeps moving forward with this effort. We think it is essential that we continue to look at how to reduce sentence links across all categories of crimes and by putting this provision into statute one that creates more impetus for this body and others like the Senate who heard this bill and did not fully take it up, take it up and consider it last year to continue moving forward with these efforts. This is not, these are not always easy discussions as you have seen, and you will see moving forward, but by putting in place those provisions which would require crimes to be categorized within this schema, if you will, and essentially round down those crimes that we were not able to have a specific discussion on. So we would be supportive of this going forward. It allows time for future legislative discussion and debate in 2021 beyond what is happening this year and would be supportive of keeping that within the bill. So I think that is all I have to offer on the bill today, but we'd be happy to answer any questions that anyone has. Great, thank you so much. I appreciate your testimony. I'm not seeing any hands, but I'm gonna give people time to either. Okay, thank you. I think, oh, I'm sorry, Ken. So a small business owner could go and the way this law is written, and I'm a small business owner in case anybody forgot, could go and be ripped off 10,000 bucks. And it's like, there's no restitution, there's no nothing, and hopefully I can absorb it and move on, correct? I mean, in terms of the restitution that might come from an individual who is charged and convicted with these crimes. Sure, basically, if we change this to $10,000, they can get it, they can, a lot of this is going on already. It's already well-organized, they know how to do this, and it's only getting worse, and I'm gonna suffer the consequences, or forget about me, a lot of business owners, they can't absorb $10,000 worth of loss. I don't think I was for this last year, and I'm definitely not for it now. So in terms of that, I think that would be an individual provision to be worked out within the sentencing of each individual case based on ability to pay restitution. And I think that would have to be on a case-by-case basis. I don't think I can say blanket statement about how that would impact everyone. Within the bill is drafted, the felony threshold is not at $10,000, it's at $3,000, which is lower than what the sentencing commission recommended. And I do believe that this bill passed out of committee last year with a unanimous approval, I could be wrong. There might have been some holdouts, but I do think there was a pretty thorough discussion around how this would impact folks and a number of these different considerations. And I think that's why the committee last year actually revised the bill as introduced and lowered that felony threshold from $10,000 down to $3,000 because there was more, there was concern about folks, especially small retailers. Okay, thanks on that information. I wasn't as experienced then, I guess. Thank you, Martin. Yeah, I just wanted to add that this doesn't change any of anything regarding requirements for restitution, Ken. It doesn't affect that at all. So I just wanna make that clear, if somebody steals that much, generally, restitution is part of a penalty for property crimes. Thanks. Okay, yeah, thank you. Thank you, Martin. Anybody else? Okay, great. Thank you so much. Thank you. Great, good to see you. Okay, so now we're gonna turn to Robin Joy and Karen Gannett. I'm not sure. I'm used to seeing you seated at the table side-by-side. Good afternoon. Good afternoon, everybody. Good afternoon. As I said, they have a hard stop, but certainly we'll have you back. Okay, we may be able to get through this. I don't think we have... Robin's piece is a little more complicated than what I'm gonna talk about, but I'll be fairly quick. Okay, great, thank you. So you're welcome. For the record, I'm Karen Gannett. I'm the executive director of Crime Research Group. And with me today, I have Dr. Robin Joy, who is our director of research at Crime Research Group. And I just wanted to give you a little background. I know I haven't met a lot of you yet and I'm really happy to be here to meet you. We're a small nonprofit research center. We do criminal and juvenile justice research. Our primary work is through a contract with the Department of Public Safety doing providing services as Vermont Statistical Analysis Center. So we work for the state of Vermont primarily under that contract and we provide quite a few different services at no cost to the state other than through this contract. So we can provide data requests. If someone wants to know the going rate for sentences, you can call us up or send in an email to us and we can tell you what the going rate for specific sentences are. If you have any issues that you'd like to have us provide technical assistance on, we can provide technical assistance at no cost for a variety of different issues. And we work with federal and state partners on developing research studies on issues that are important to the state of Vermont and a couple of the ones that we're working on right now, we are looking at equal access to alternative programs and how it affects communities of color and the rate of incarceration for the state of Vermont. We're looking at racial differences for victims in Vermont and we're working on a project right now that's about law enforcement and mental health. And then we also do work outside of our SAC contract. And so for example, we are partners with Center for Crime Victim Services on a Human Trafficking Grant. A couple of our recent technical assistance projects, we worked with the National Center, National Criminal Justice Reform Project on data integration and research. And then we analyzed 1500 surveys that the social equity caucus developed and sent out to the across the state of Vermont and needed some assistance in analyzing those surveys. So years ago, I'll just tell you a little briefly. So we added a couple of handouts to your site. So there's the statistical analysis center facts. There's a sheet on what we do and who we are that I just went over briefly. We also provided a sheet that talks about what a data request is and what research is. A lot of people wonder, so if we're gonna ask you a question, is that research or is that just asking for some data? So it just gives you a little bit of a snapshot of what's considered a data request and what's considered research. We also provided the Act 61 reclassification of the Criminal Code final report from 2015. So I just wanted to give you all a little bit of history on how this reclassification came into being. And this was a group that started back in 2013, 2014 and has since evolved to where we are today. And it's been a huge body of work. During that time, one of the things that Robin provided and that we did as a technical assistance piece is she developed a spreadsheet that has all the crimes in Vermont that are punished by fine only. And that's on our website has not been updated since 2015. So keep that in mind, but it gives you a really, really good idea of what's punished by fine only. And she also put together a spreadsheet that for crimes that have not been charged from the past 10 years. And some of those are anachronistic crimes and some of those are crimes that you still wanna keep on the books in case because they don't happen very often. But for example, one of the crimes that could probably be repealed is defacing a butter crate. That is still on Vermont's books. And so it gives you a really good idea of some of the crimes that are in the books that haven't been charged and to take a look at those. And I think the Sentencing Commission and one of their subcommittees is gonna be looking at both sets of crimes. The last piece of work that Robin put together was to take a look at all crimes in Vermont and the actual sentences that have been given out. And that is the last handout that is on your site and it's Sentencing Data by Offense Spreadsheet. So she did a side by side with the Sentencing Commission's recommendations and the actual penalties for the same crime. So those are side by side. And with that, I will pass it over to Robin to describe that to you. Thank you so much. Hi. Hi Robin, welcome. Hello, thank you. And I apologize for not being able to do video but that's just a thing I can't do. So hi, I'm Dr. Robin Joy and I'm the Director of Research for Crime Research. And so I think that this document that I'm going to talk about is a document that you all were referring to earlier. And I sent it to Mr. Bailey also in an Excel spreadsheet this morning because I think I had better eyes when I wrote that last year. And some of that stuff was really small. So I put it in the Excel spreadsheet. I could expand it and see it better. And what you have there is the recommendations from the Sentencing Commission on whether it's going to lower or raise the penalties from where it is and what the current sentences are for the crimes updated through 2019. I want to caution this committee and legislators in general about, although I have 2020 data, I don't know the effect that COVID has had on our processes yet. And so I don't like to use 2020 data until we figure out what really has happened. And so if we go back in time to look at before COVID, 2019 is our last full year of that. And so I'm still okay saying not to update it to 2020 because we don't know what effect COVID has had on sentencing arrest patterns, et cetera, et cetera yet. And I'm still analyzing all of that. So it's through 2019. Something else that I provided to the committee last year, and I will redo if this is something that is of interest is we have access to another data set that's called the National Incident-Based Reporting System. And this data set gives us a really rich look at crimes and who's committing them and the circumstances of those offenses, et cetera. And so the last time I appeared in person, I was able to get you the amount of retail thefts or property crimes in general that were over $10,000 in value and under $10,000 in value. And I could break that down farther by county, by town, by type of location on whether it's a retail store or another private business or a home. So I can do that for any, you can write the dollar value of the property are in the data. You tell me the breakdowns of the numbers that you wanna see. If you wanna see 3,000, 10,000, whatever, I can do that for you. And I can update that table as well. So that's some of the data that we have and that we've contributed to help understand how crime and sentencing work in Vermont. And I was wondering, I guess at this point, since I can't see any of you, if there's any questions. Thank you, Robin, giving folks a chance to put their hands up or Martin, there you go. So a quick question for Robin, are you able to look on a screen at the documents that we have up? Yep, yep. Cause if you look under my name, I just, I had Mike Bailey load up a document that I'm pretty sure you provided last year. And it doesn't, it looks at the average and maximum, I believe property values for various property crimes. If you could just look at that and just confirm that that's, that is something that I... Actually... Or is that not something? So I can go on your website, on your committee website. I'm not on the Zoom thing. The committee website for today's testimony under my name has a document that was loaded up and I just wanted to confirm if that's... Yeah, there you are. Yep, so that was the one that I did. And so I can actually, this was through 2018, I can add 2019 data if that's helpful. Yep, so that's what that was. That was the average property value in these incidents that were reported and then the maximum property value that was reported in that data set for that year. So as a follow-up. And so these, yep. The follow-up, is it possible to find out how many of these crimes in these years had a property value of between $1,000 and $3,000 or is your data not fine to admit? No, no, I can do that. I think that would be helpful. So between $1,000 and $3,000? Yeah, I mean that essentially tells us the number of crimes that would be a misdemeanor that would currently be a felony. Sure, yep. No, that would be helpful, thanks. And does anyone else want any other information along with that? Selena, I see Selena's hand up. Go ahead Selena. Yeah, I'm just noting, I don't know if other people are having this too, but I'm not able to open the document that you submitted. So I'm struggling a little bit to know what more I might ask for. And I just wondered if that was unique to me or if that was a other people were having that problem. Which document is that? So if you under today's agenda under Robin's name, there's a document that says property crimes data. It looks like it's a PDF file, but none of my applications will open it. Is that the spreadsheet that tells you the going rate, Robin? That's what I think it is, yes. Let me just go back to that. If you want to go to either my name or last Wednesday under my name, I can leave, well, I thought it was... Yeah, I'm actually having the error on my name as well. It shouldn't actually be the one, if it's the one I sent this morning, it's actually an Excel spreadsheet and not a PDF unless it was turned into a PDF. Yeah, I wonder if that's the issue because it's showing up as a PDF. I wonder if that was it because it's showing up as a PDF. I thought I had, so okay, so it's actually not under that date. It's under Monday date, H87 sentencing data by offense spreadsheet. So you can see that. And so just to be clear that that data comes from our court data. And so what that has is it has your information, some basic demographics about the person, such as the age and race of the person and the sentence, what the original charge was, what the final charge was, if it went to... One thing I realized during the conversation that I have not yet provided to this committee on this topic and will add to something is that I didn't tell you how many of the cases have been sent to diversion. And I do know that. So how many property crimes, for example, so if somebody would find that helpful, I can add that to something somewhere for you and go by crime by crime and how many are disposed of at diversion. And then the Nibers data has a whole bunch of other data that's associated and that includes the time of day of the offense, the relationship of victim to offender, the demographics of the victim, the demographics of the offenders, whether somebody was using alcohol at the time of the offense. So it's a really rich data set and it's that data set that I drew the property values from. It tells me what was stolen and how much. And that how much hasn't been proven in a court of law, it's just what I tell the police officer when they arrive in my best faith estimate or what the officer's best faith estimate is. So I wonder, Robin, if we have time, I guess we still have time, if you could kind of just go over an example or two to tell us what we're looking at as far as, you know, my head is sideways because the document is sideways. Yeah, that's why I sent the spreadsheet this morning. So because it's also, I use a different computer program to get the answer for you than Excel. So I pasted the image from the other computer program in there. I also wanna remind you, and I'll send out that link as well, that website that I created for this committee and for this purpose is still up where you can select the crime that you're interested in and the sentence you're interested in and it'll give you the distribution of all the sentences. So I'll send out that link too so you can play with that. But if I start with what on my spreadsheet is the first one, which is credit card fraud, the offense name, $50 or less. It gives you the statute. The current penalty is six months of the $500 fine or both. The proposal from the Sentencing Commission was that it followed the tiered proposal and that was at the time based on the property values and the property values superimposed on the schedule of A, B and C, D and E felonies, et cetera. The notes, this was I did at the request of the Defender General and Subcommittee C. Whether the proposal is going to result in less time or more time and in this case for under $50 or less, it will result in less time. And then if you go over to the current sentences and this is the part that I had better eyes I think when I wrote it, you can see here that I gave you the types of sentences that were imposed, the average minimum in years and the average maximum in years. And then if it's a split sentence where a person does some time inside and then the rest of the time on probation, the way the sentence is given out is they are given a certain amount of days to serve. So if we take this example, for example, that was bad language. We have five records here that were sentenced. So five charges were sentenced to a split sentence. The average amount of time to serve inside was about 33 days and then they would have about a quarter to three months to six months in a probationary period on top of the 33 days. There were four people or four charges that were sentenced to deferred sentences and they were deferred for an average of one year. So this tells you, this gives you the kind of range of sentences that people are currently being sentenced to for all of the crimes that were listed. Great, thank you. Sure. And would you like me to add the diversion, the number of sentences diversion here or the numbers deferred, sorry, I'm not sentenced, since to diversion? Yeah, I'm seeing, yes, please. Okay. Seeing heads down. I will do that. Sure. Great. And anything else about the circumstances of the offenses? So that's the Niber's data, like do you wanna know where the offenses are happening? Yeah, property offenses. I have one other question. Do you track at all restitution issues? Is that in any? I know whether restitution was ordered. I don't know whether it was paid. I can tell you whether it was ordered. I think that that's helpful as well. Yeah, sure. Thank you. Okay, so one more hand and then we will need to wrap this up. Ken. And we also find out how many people went to diversion and then ended up committing another crime. Is there a statistic on that? No, that's a research study because then I'd have to pull everyone's criminal histories but I did do a study on that. And it turns out that diversion is wildly successful for a certain group of people, largely first time offenders. In fact, we found that they did better with diversion than if they had gone through the criminal justice system. There was a group of offenders who were not well suited for diversion as it was constituted. And those were people who had lengthy criminal histories and perhaps some other issues going on that diversion just was not at the time able to handle but we did do an evaluation of the diversion system. And it was, I have evaluated quite a few programs in Vermont and I have to say the diversion program for first time offenders was one of the most successful programs I have ever evaluated in Vermont. So I will say that. Could you say? Most people that go to diversion or are sent to diversion at first time offenders, correct? In that study sample, it was that has been, this legislature has actually, you guys have expanded it. So I'd have to go back with a calendar and figure out when my study ended and what you've done to expand it. But yes, those people, it can be first time offenders. It can be, it could be the first time you've offended in three years, right? We were basically looking at the first time offenders as a separate class of people in that study. Okay, thank you. Yeah, and actually we can have the attorney general's office in terms of diversion and they have a lot of numbers on that as well. So, okay. Can you get that report? Is it possible to get that report sent to us to Robin? The study that you mentioned. Yeah, I can do that. Yep. So Robin, any, just for today, closing remarks, and certainly we'll have you back when we take this up again. No, I have no closing remarks. And if you guys have any questions, you can just email me and I'll add it to the list and get it done for you. Great, great, appreciate it. Thank you so much. Yep. Okay, everybody, thank you all. And the, oh, please. Just mixing, could we work with committee assistance just to get Robin's documentation reposted in its Excel form, just because I found it hard to look at it sideways. Yeah, I believe my PDF and it's like such rich data set. Yeah, Mike has reached out to IT to. Oh, great. Yeah.