 Good morning. This is a work that a judiciary was rejoining you. And the next subject on our agenda is 848, which is writing hate motivated crimes. Did we have a, we have a redraft brand or do we have anything here. Got the same draft that you looked at last week. I think that you heard from should be dropped 2.1. On your committee web page from I believe the 21st. Yep. You say that again. It's up on the website. I can share my screen for the committee to look at it. If you'd like. Yeah, please. We've already had, we've already heard from all of our witnesses. I believe so. Yeah. And folks are here now during markup. So yeah, it would be appropriate. So can everybody see that? Okay. Yeah. So I think that you looked at these, there are just a couple of changes to this 2.1 draft that you looked at last time. We added that motivated in whole or in part. And then in subsection B, we removed the word substantial. So now it's that the victims protected category. Need not be a predominant or the only reason for defendants conduct. So those are the two changes from draft 1.1. In addition, section three, we added. And then we also added that. This is the, this is like the civil statute, the civil counterpart, and we just dropped or the national guard in there. So it matched the change that the house made to the hate crime statute. That's just a technical. Fixed there. So those are the only changes from the, from the first draft that you looked at. Okay. It's good to me at the point. Anybody, I think that has a question. Please. I was just going to ask if the. If predominant I get, I understand the sole reason, but is it, do we. Just predominant just means that it can be parked as opposed to, is that the way we did would interpret predominant reason. So court would, would. Would interpret that would have to develop some jurisprudence about how to interpret the word predominant. I do think that you may have heard some testimony from witnesses that if you include that language about in whole or in part. You may not need subdivision subsection B there. But again, that's a question for the, for the committee. If you want to include that language about predominant reason, because then you may. You may be directing the court to. To find that even if it's even if that motivation based on. Protected category isn't largely the reason. They could still find that a defendant was subject to this enhanced penalty. I guess I, I, I, the way I read it is that B gives a little bit more directive to the court than the language in whole or in part. So Bryn. I guess now that I look at it. I'm wondering about whether we might better say. Need not be the predominant reason. And, and my thinking there is. That way we're staying among factors. It doesn't have to be the largest. But if we say a predominant reason. We get into more. More gray area. I think about. Whether it is. Or whether it is the predominant reason. Or whether it is the predominant reason. One of the predominant. I think it's easier to interpret the predominant. And that and sole reason exclude. Cases where. Or, or, or make it clear that it doesn't have to be the only reason. Or the largest reason. In order to trigger them. That makes sense. Yep. Okay. Well, where do we want to go from here? I can't see if anybody has a handle. I don't know. I don't know if anybody has a handle. I don't know if anybody has a handle. I can't entertain a motion, Mr. Chair. I certainly would. I would move that we report this bill favorably as. Amended right up to the last moment. Any comments from anybody who's here. Witnesses. John Campbell. Julio Thompson. Okay. I'm all set. Senator. Thank you. Anyone else. Right. Committee. Any further discussion? The motion is to report. To amend the bill as seen in draft. 2.1. I. Senator. I was going to say that I, I originally really did like what was proposed by the ACLU about the. Intentionally selected victim. But then when I heard the example of the two guys that get in a fight at the bar and it had nothing to do with that, but then the guy turns around and there's a black guy standing there and so he. That was a reason for him to continue into. And to continue beating up on the guy. I was swayed by that. Example. Because it was a reason, but not the predominant reason it. Added to the. The fire. That's not me. No, sorry about the background noise. Unfortunately I'm on a corner in Linenville. Oh, okay. I was afraid people would think it was. I was afraid people would think it was a reason that was wrong. But I would agree with the. The committee. Was in distress. I just want to interject here for a moment to say this will be draft 3.1. If you vote on this, just cause we made that one change. Senator. That we report. That we amend. Are there any further discussion? Hearing none, Peggy, could you please call the roll? Senator Benning. Yes. Senator Nica. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. All right. Somebody move the bill as amended. I think I did. Oh, I'm sorry. That's all right. Senator Baruth has moved that we report H428 as amended in draft 3.1 that we just approved. Are there any further discussion? Hearing none, Peggy, would you please call the roll? Senator Benning. Yes. Senator Nica. Did you say yes? I'm sorry. Yes. Okay, thank you. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. I don't know who would like to report this. Sure there's. I can report it. Thank you, Senator Baruth. Senator Baruth will report H428. All right. That gives us an opportunity to spend a little more time since Brent is with us and Brent is the draft or eight S7 the expungement bill will give us a little more time to work on that bill. So I see you're going to give you a brief, you're not going to believe what happened on the way to the forum explanation. After all of our work on expungement over the last several years, somehow different groups and the administration began to question the expungement process and what we were doing, blah, blah, blah. So Representative Grad and I got, Representative Grad first got approached about S7 and asking it to be held off into the next year and not to deal with the expungement bill. And Peggy, would you just let David Schurr know we're dealing with S7 right now in case he's available? So anyway, we got a letter from J. Johnson, the legal counsel to the governor, Commissioner Schurling of Department of Public Safety, Commissioner Baker of Corrections, and Commissioner, I'm going to say Berkshire, I messed up his name, of Department of Financial Regulation. Exactly, yeah. Thank you, I almost said Berkshire and I know that's a senator. Anyway, there had various complaints about S7 and when we looked at their complaints, we were kind of dumbfounded because many of them were expungements, expungement and the idea of an additional email from the Vermont Bankers Association suggesting that they wouldn't be able to check the records to find out the records of the person we expunged to particular events, they wouldn't be able to check the records to see what that person had done 20 years ago, which is obviously the reason that we have expungement. So it became quite a, I don't know what you might call it, I am really appreciative of the Attorney General's Office, P.J. Donovan called me, I'm sure, Maxine and as well as David Sher, who then prepared a letter, many of you may have seen the column that was in the paper about S7 to move forward with some significant changes to S7, assuming that we would deal with some of the concerns expressed by the administration and others next year. We don't know if that'll satisfy them, but David went through various sections of S7 and Bryn has drafted a amendment for the House to consider. Now, obviously they're still working on the bill, but I wanted to give some time this morning for us to be aware of where the Attorney General has suggested changes to the bill and trying to keep it alive and hopefully avoid a veto by the governor of our expungement. I don't know, Bryn, I'm gonna turn it over to you and if David, if you wanna make some comments while before Bryn, you're welcome to do that. Thank you Senator for the record, David, share with the Attorney General's office. You know, I'll keep my comments brief for now and happy to engage with discussion after Bryn presents, but I do very much appreciate the committee in our office and the Attorney General very much appreciate the committee looking at these issues. We really do think that a lot of the concerns of the administration are things that are addressed and we're happy to sit down at the table and do that. We've presented some possibilities here and we simply don't agree that we need to dramatically stop progress on a bill that passed the Senate unanimously and we think we can really move forward with addressing a lot of their core concerns and again, we're happy to continue with this process. So I'll let Bryn move forward and then we can dive in in more detail after that, but thanks again to the committee for working on this. Remember, this is still the House action will be on it so we don't know exactly what's going on. That's right. And obviously we defer to the House and this committee to the side on timing that's outside of our purview, but we appreciate you working on this. At some point we're gonna be asked to hopefully, but at some point we're gonna be asked to either concur or call for a committee of conference. And I think it's helpful to know how the Attorney General and both representative Grad and I've had a number of conversations about this. We really do appreciate these. Senator White. Can I just ask you if there concerns were the fact that they couldn't look back many, many years to see somebody's record, somebody who had committed some kind of a crime and then it had been many years because there's a long process before it gets expunged and they hadn't committed a new crime and they were concerned that about that. Is that the basic concern that they had? One of them, one of the concerns was and we had left, we may have made a mistake and left open the possibility that somebody could be incarcerated and expunged in a law that could be incarcerated in an entirely different matter and could get something expunged even though they were still incarcerated. That possibility and there was a couple of other issues. They are efforts to correct something for one particular person who had been on probation for failure to pay tuition, if you remember. That created also some questions for them and so that's another one that was raised. Okay, thank you. But yeah, it's the basic correction saying how can we do a risk assessment if we don't know what they did in the past? Especially 20 years ago. Right, or 40 years ago. Oh, man. So, but I may have missed something, David, but that was basically the objection. That was one of the main... They kept to talking about transparency too and I don't know what that meant. Yeah, I understand it. That's right. That was an issue and some of this as you're correctly identifying is sort of a philosophical issue here. Is it important that we remember and keep on the record forever? Very old offenses and we don't think that that serves a public safety purpose and does a lot of harm that is unnecessary. So, and then there were other sort of more technical issues around making sure that nothing's overlooked. And those pieces I think we can really address. Senator Baruth. I was just wondering to what extent this overlaps with what Judge Grierson has said in the past about wanting us to move to a single system of just sealing. He's made that argument more than once where we would basically walk away from the idea of expungement and have sealing with different levels of who can access that information. David, do you have a sense of is there, is that the same way of viewing it or do they just have a certain amount of overlap? That's a good question, Senator. And it was not instated explicitly in the letter that a regime that looked more like just sealing would be something that they would prefer. So I don't want to speak to that without having them say that directly. I don't want to mischaracterize what they were saying. That may be the case that that would be something that they'd be more comfortable with, but since that wasn't explicitly stated, I wouldn't hazard an answer on that without them weighing in. Because I have always taken Judge Grierson's point would obviously simplify things administratively. It would make it easier for the judicial system, but it gets rid of the central goal for the person involved, which is to have the offense gone, to have it existing somewhere under seal. I think we all know how that works. Information's gonna leak out in various circumstances. So anyway, I just thought I'd connect those pieces. Yeah, and I appreciate that. I mentioned one other thing that we sometimes forget. Other than a few sections, the one dealing with one particular person's issues, S7 was based upon the recommendations of the sentencing commission, on which set several members of the administration. It's not like this, you know, and so as the house started to go through the letter from the administration, they were somewhat dumbfounded because while there's a new commissioner of corrections and a new commissioner of public safety, the sentencing commission did have representatives of the administration on it. And that's where the generation of S7 came from that was not just pulled out of, anyway, pulled out of the sky and all of a sudden somebody came up with this wonderful idea. And it was a unanimous vote out of the sentencing commission. An anonymous vote from the sentencing commission. So if people start complaining about what crimes were in there, they should look back to their own sentencing commission. The vote are unanimously to recommend that S7 be the way it was. Given all those concerns, I'm gonna ask Ren, unless there's other questions, to walk through the changes, or at least where we're headed. I mean, there's a lot of changes, obviously, or to try to get something through this, to get the basis of the S7 to be, if you go to page five, I think that's where the significant change takes place. Yep, that's right. So good morning, committee, for the record. Are people rather have it posted on the screen or can you read it on our, it's on our webpage? Yes, it is. The only concern about that, Dick, is anybody watching on YouTube does not necessarily have two devices going at the same time. Okay, so go ahead and post on our webpage. Okay. Thank you. Sure. So thank you. That was a good introduction, Senator Sears, because I was about to start off going through this by saying this is a House Judiciary amendment that that committee hasn't looked at yet. So there's quite a bit of yellow highlight in this draft and some of it reflects the proposals as offered by the Attorney General. Some of it reflects some technical changes or amendments that I'm proposing and some of it reflects some of the work that the committee has done with other witnesses. So I'm going to try and limit this, my walkthrough to just those portions that are proposed by the Attorney General's office because it sounds to me like that's what you guys want to really hone in on. Okay, so page five is where the substantial changes begin and the first one is the definition of qualifying crime. So the committee will probably remember that the version that passed the Senate provided that all criminal offenses were eligible for either ceiling or expungement except for listed crimes and drug trafficking offenses. So the definition of qualifying crime is quite substantially changed here. So instead it provides all misdemeanors except for listed crime misdemeanors and misdemeanors involving sexual exploitation of children are considered eligible for either ceiling or expungement. And then, so we've kind of cut off that unlimited felony category. So instead, I'm going to scroll down here, you'll see. So subdivision A here are the misdemeanors that aren't those two types of misdemeanors. So B will be what is already existing law, the certain types of burglary offenses this committee will well remember. And then what will be subsection C are offenses relating to the possession of regulated substances. Sub D will be offenses related to the sale or dispensation or transport of regulated substances. And then sub E will be qualifying felony property offenses which is already defined in the bill with one addition, which I'll talk about. And then any offense for which a person has been granted an unconditional pardon from the governor. So that's a limited set of felony offenses, much more limited than the version that passed out of the Senate. So qualifying felony property offense, these are all the same crimes that you looked at before in the Senate passed version with the exception of one. And this is that 18 BSA 23 or 42 23 which this is a prescription fraud felony. And that's, so that's right now that is eligible for sealing or expungement. So I just popped that right into the qualifying felony property offense there. So the parameters for sealing or expungement that apply to felony property offenses will also apply to that type of offense. So is that relatively clear how we've changed what is eligible for sealing or expungement? I think it is, but it doesn't tell us what's not there anymore. Nope. Right, and I think that that was really intended to address the concern that was, are there all of these felony offenses out there that we don't really want to be making eligible? Okay, so I'm gonna... Yeah, I mean, it takes any crime of violence out. Right, all of the listed crimes are out as they were before, but it also eliminates those sexual exploitation of children crimes that some of which are misdemeanors. Okay, so I'm gonna keep going here. So now we're, this is section four. This is the actual expungement and sealing statute. Yep. And then we've got some language here that the house is working on, I think I'll skip over for now, because that was not part of the Attorney General's proposals. Here on page 11, this is that language that was, this committee works to craft about those particular circumstances where a person has served a probation term for which their probation was tied to their payment of restitution. So you'll notice that this is struck through. The proposal is to take that section out. And instead we've put in, we've dropped in some language here that says that a person who's under, who is under the supervision of the department at the time that they file a petition to have a criminal conviction record either sealed or expunged, that record is not eligible for sealing or expungement if the person is under the supervision of the department at the time they filed the petition. I'm gonna keep going. So this is all the same language that applies different standards for when a record could be sealed or expunged based on the type of offense. This is all unchanged until we get down here to J. This is the qualifying felonies. And you remember this was the section that provided that all other felonies that didn't fall into the other categories, which included the felony property offenses or the drug, regulated drug offenses were treated in a certain way. And we've just removed that section because there won't be any other felony offenses apart from those that were defined and dealt with earlier in the bill. So that's pretty straightforward, I think. And then I'm just gonna do a quick scan here. I think that may be it for the attorney general's proposals. Yes. Oh, and so I just wanna scroll to the very end to talk about section eight, which was the study. And although this, so this is not one of the attorney general's proposals, but I thought the committee may be interested. Well, actually that was my proposal. Yeah, yep. So this was the directive to the sentencing commission to ask the sentencing commission to study the issue of sealing and expungement and specifically how to make all offenses except for big 12 offenses. No, no. Eligible for either sealing or expungement and also directed the commission to look at taking one, should Ramon take one avenue or another either just sealing or just expungement. And so the proposal here is to change that directive. So instead of going to the sentencing commission, it will go to justice oversight committee and justice oversight will introduce as proposed legislation any recommendations that makes concerning a policy to make all offenses apart from big 12 offenses eligible, who should have access to sealed records and whether Ramon should continue to take both tracks, sealing and expungement or if it should just take one track and then how to implement a petitionless process to seal an expunge. So all of the same directives but now going to justice oversight instead of the sentencing commission. Well, the reason I chose justice oversight was because the sentencing commissioners already recommended those by and large. Mass. Senator White, sure. So, Bryn, going back up a ways, I don't remember exactly where it was, but it said that if somebody is under the supervision of the department of corrections, they can't apply to have a previous record expunged. And I'm just wondering if when somebody is 20 years old, they do something and it's not related at all to it and then 20 years later or 15 years later there, they do something else. They're not related at all. They have no, one was kind of a youthful, stupid move, but it has a record. Does that mean that the person can't apply to have that previous record expunged even though the time has gone and they did not have any crime in the intervening except during that time period and now they did something else? Yes. I mean, I think that the idea here is to eliminate all possibility of a person being under the supervision and being eligible to have a previous record expunged or sealed. And this, I think this proposal is in response to the department of corrections testimony and the House Judiciary Committee that they were concerned about the possibility of a person being under their supervision and having a record expunged because they were concerned about their risk assessments being able to make a record. It just seems a little draconian to me to say that if you did something when you were 20 or 21 years old and now you're, that had nothing to do with what, anyway, I, it just. Yeah, I would, I think I would, that was part of the letter from the four commissioners. Yeah, I know. The three commissioners and Jay. And, Well, we certainly don't want to forgive people for past indiscretions. Well, no, actually we do. I don't know that we intended to have somebody who was currently under the department of corrections to be able to get an expunging or something, but that we just, that's trying to, again, get a bill. This was the governor's letter was for the administration, but it was April 22nd, happy birthday Sears. I mean, we had started this bill in January. I know. They write on April 22nd. So, does that explain it Senator White or not? Yeah, I did. I just think that it's, I mean, I understand that, but I just, anyway, I think it's a bit stupid and I'm thinking about the grandmother that you had that wanted to go on field trip with her kid and she couldn't get that expunged because she had a DUI or so. I mean, anyway, I have nothing to do with what she did before. I will note, if it's helpful, I think that under S7, as it passed out of the Senate, I think the circumstances under which a person could be being supervised and have an offense eligible for sealing or expungement are very small. Because if you remember, most of those provisions for sealing or expungement provide that the person, if the person committed a subsequent offense, they have completed their supervision for that subsequent offense before they can apply for an expungement of their prior. So. Yeah, I get it. This language is really intended to appease the department, I believe. Yeah. Are there any comments from the audience? I can't see you. Oh, there we are. Any further comments? Marshall Paul, John Campbell, Judge Greerson, I think, did you have a comment? I didn't, good morning, Senator. Thank you for the letter, Brian Greerson, Chief Superior Judge, I'm sorry, I joined the discussion late and I don't know if Bryn had a chance to review the language on the Judicial Bureau was. I did not, Judge, I did not review that with them, if only because the House hasn't looked at that part yet, so. All right, so I don't have any comments on. Okay. Otherwise. Good, thank you. David? Senator, the only thing I'll add is, which I think is clear, we supported the bill as it came out of this committee and through the Senate and this is an attempt not to disavow, disabuse us ourselves with that good work, but simply to try to get something that could become law and some improvement is better than none. The letter from the administration did seem to indicate that the governor's office is not enthusiastic about letting the bill become law as it stood. And so we, again, let's not let the perfect be the enemy of the good here and let some improvement move forward. And that's the impetus behind these changes, which some of them are significant. I actually think that some are less significant, including somebody currently under the supervision. I actually don't think that's a big practical change, but yeah, just wanted to make that clear in case it hadn't been. No, I really, once again, it does make me wonder about the effectiveness of having a sentence in commission with a wide variety of membership of the courts, the defense part of the prosecution, the attorney general's office and many members of the administration. And then to have that commission make recommendations on legislation, which is what we asked them to do. And then roughly four months into the legislative session they're concerns about this bill that was basically released upon the sentence. That's more of, you know, it's problematic, quite frankly. I believe in the bill earlier this session, the sun set in the sentence in commission in 1922. It probably was a good idea. Anything else? No? Marcia? I was not gonna say anything, but I would just sort of chime in to echo David's share's remarks. You know, I think we are disappointed. This has been a lot of work in the Sentencing Commission and in the legislature and in subcommittees of the Sentencing Commission. And, you know, this was a proposal that received broad support in the Sentencing Commission. And so, you know, it is, you know, I'll say certainly frustrating to have all that work, you know, essentially not turn into anything. I mean, what this bill amounts to at this point is something that we could have developed during the session that's, you know, this didn't really require any of the Senate, you know, basically the work of the Sentencing Commission was sort of undone here. So certainly we had hoped to see something better. I think that it is what we very much support is the change to have the Joint Justice Oversight take a look at this because, you know, like I said, I think the Sentencing Commission has done its work in this area. And so frankly, you know, we still support the bill. We still think that something is better than nothing. We think that this is a step forward. It's just a very, very tiny step. And that's all. Thank you, Marshall. Anyone else? John Campbell. Thank you, Senator. I'm glad that these changes were made. I actually was the one who brought up the issue of the exploitation, sexual exploitation of children when I was in the house. That was the first time that I had seen it. I was not on the commission. And I think it really goes to the fact that you put a whole number of people, some of them who've never had any experience in the criminal justice system and not realizing that the way the laws are written that there's a lot of laws out there or that that could have been swept up in. And so I think it's a good idea that you are putting this into the hands of the Judicial Oversight. I just saw this draft this morning, so I haven't had a chance to go through. But again, as you pointed out, you guys have been working on this for some time. I'm just hoping that we caught all the potential problems that might exist. And I think the Judicial Oversight will surely have the opportunity to do that. Well, James Pepper was the main person from your office working on it. He testified extensively on the bill and worked to make adjustments that S7 is not the Senate. I might add unanimously. Well, we're here to try to help, you know. Oh, you've been a great help. I didn't mean that way. I appreciate the work of the state's attorneys. Well, thank you. It may have come out as, that it did not come out the way I intended it to. Well, you know, those things happen. Thank you for your help. I meant, thank you for your help, sir. Yeah. I'll leave it at that then. I'll say goodbye. Thank you. Thank you. Any other comments? I don't think we need to, we're actually gonna get done a little bit early today, which is fitting. Senator White. I don't mean to take us off track here, but while Marshall and David are here, I just wanted to mention that there was a fatal car accident down here last weekend. And they released, they did not release the name of the driver. And because the driver was under age was a juvenile. And when they were asked why they didn't do that, the police officer said the law has changed around releasing identifying information about, and it hasn't really changed yet, but he talked about that. And because it's going to family court, they did not release it. And I just wanted to thank the two of you for helping us work on that. I think that one interesting aspect of that is the media has been reporting this. And in fact, members of the media have been testifying house government ops that they were upset that the state police did not release the name of the victim. And they saw that as a new change. And what's entirely inaccurate about that is that's a law that's been on the books for a long time that the state police are not supposed to release the names of the victims of any crime, regardless of age. It's been, it's being spun as if that is some new change that, yeah, and it's not a new change at all. It's been the law for certainly as long as I've been practicing law that, and the press can still report the names of victims. It's just that the state police can't release the names of victims. Right, but they did talk specifically about the driver. Yeah. About not releasing that name. Yeah, but if you look at like the article that was in CAX today, they go on about how there's been some change that prevents the police from releasing the identity of the victim, which just isn't true at all. I mean, that's been, that's a law that's been on the books for a long time. And now it's being sort of lumped in with this other, this other circumstance. I'll have to check that out. Well, that building comes through. That was the government ops. Right, right, right. It was, but it was. That's one all seven. Yeah, and it passed out of the house on a 10 one boat yesterday or the day before. And that was also in the Bennington banner this morning. But the story related more to the failure on that particular case in Putney. The Putney where they're actually not releasing the names because of the rules. Right. I have sent everybody a copy of the Bennington banner of the article this morning on H 183. So what are we doing now with S seven? We've had this information. Well, the house needs to act. We passed it. They will need to act. My hope is that they end up somewhere along the version that was just passed. And that we'll be able to concur with them. But I wanted to, because the change is so huge, I wanted this committee to be aware of those changes and the ask of a study. And I don't know if we'll put it in or hopefully the house will put in that study by the justice oversight committee that Marshall just referred to that. Originally I thought the bill was gonna die over the house and then David and the attorney general resurrected it. I appreciate that. And so the house has taken testimony and believed marking up the version that we just looked at. Okay, okay. And then assuming they pass a bill out of the house, we would then We'll be ready for it. Be ready for it and decide whether to concur or ask for a committee of conference. If something happens and they don't pass the bill, my conversation representative grad would have put that section regarding the study into the miscellaneous judiciary bill. Okay, thanks. Good. Thank you all very much for the hard work this morning.