 Good afternoon, and welcome to Vermont House Judiciary Committee. It is Thursday, May 13. And this afternoon we are going to be considering S7 and bill pertaining to expungement and sealing of criminal records. And we're going to be looking at draft 3.0, which is on our committee website. And we will start with a walkthrough of this draft by attorney Bern here. Welcome. Thank you. Thank you. Good afternoon committee for the record brand here from legislative council. So here to talk about draft 3.0 of S7. And I'll just start out by saying that I was asked to create this draft that removes two of the sections of the of the bill as it as you've seen it prior to this point and as it came over from the Senate. The two sections are the section that defines what crimes are eligible for sealing or expungement. So the qualifying crime definition section has been removed, and also the section that sets out the each different category of crime, and how it's eligible for either expungement or both. So those two sort of big provisions of the bill are you will not see in this draft. So that I would say is the really biggest change that you'll see. And the other changes. You'll see some language and yellow highlight and that's just all the highlighted all the differences from the Senate version that came over to you. So you'll see everything that has changed from what came over from the Senate except for those two sections that are just gone. So if everybody has the bill in front of them. I'll just go ahead and start section one this is a list of crime definition. And you'll remember that this just makes some technical updates to this to the list of crimes that are included in this definition. There's no changes to the section from the version as it passed the Senate. Same with section to no changes from the Senate version. This is that language that sort of implements that provision about the surcharges and how those are waved if the person has an inability to pay. Section three is the effective sealing section. There is one change to this section as it came over from the Senate and we talked about that in the last draft. If you remember, this section provides that the court has to make a reasonable effort to notify a person whose record is sealed that they may have the opportunity to have that record expunge. And the change here is just to what reasonable effort means. And it means that the court has to attempt to notify the person by electronic means, rather than by phone call, and or first class mail their last known address. So that's the change to that section from the Senate version. Section four, this has to do with sealing of records for people who are juveniles at the time they committed a crime and there's no change to the section as it came over from the Senate. Let's scroll down to section five. This is the section that has to do with offenses from the judicial bureau that are now eligible for expungement and you'll see a bunch of yellow highlighting here on the committee will probably remember that the changes here are sort of there. I wouldn't call them policy differences between this version and the Senate version. This language was requested by Judge Brierson to more appropriately implement this section based on the agreement that the court negotiator's office has with the or between the judicial bureau and the Department of Motor Vehicles to ensure that these are appropriately these records are appropriately handled pursuant to this section. One change that you made to this section that it is a policy changes at the bottom of page. And this is the provision that creates an exception to the expungement requirement for research entities. And it, I actually shouldn't describe this as a policy change this is really making it clear that research entities that have these records in their possession already are not required to destroy them once they've been expunged. And this only applies to research entities that are maintaining these types of records for the purposes of analyzing and disseminating criminal justice data. Primarily, I believe to the legislature at the General Assembly's request. This is not happening currently researchers already if you remember from the effective expungement statute have access to this information. So this is just making it abundantly clear in this provision regarding judicial bureau records, because of the way the statute is worded that requires that all records that are maintained outside of the judicial bureau's case management system have to be destroyed. We've added this language to make it clear that that that requirement does not apply to research entities. So, that's really new language that didn't exist in the senate version. And then lastly, section six. This is the study language. So I've highlighted justice oversight committee because you'll remember that the senate version had the study being done by the sentencing commission. So you've made a few changes here to the study the first is to shift who's responsible for it from the sentencing commission to justice oversight. And then also I've highlighted the word. I've highlighted the words or most online nine. So really are changing the directive a little bit so that the committee is now tasked with considering a comprehensive policy that would consider all or most offenses for eligibility for expungement, except for those big 12 offenses. That next sentence that's in yellow highlight sort of gives a little bit more direction for the committee to consider whether to exclude from expungement or ceiling eligibility those criminal offenses that are associated with or resulting from domestic and sexual violence. So kind of asking them to take a take a look specifically at those types of crimes and consider whether they should be eligible or not. So the last change is in subdivision one their lines 14 to 17. And this is, this is the list of of directives for the committee to propose legislation on so it's recommendations on a policy to make all our most records eligible for ceiling or expungement, except for big 12 offenses, and any other fences the committee deems appropriate for exclusion. So it's just giving a little bit more discretion, this language gives a little more discretion to the committee to, to look at all the offenses and determine what, what offenses should be appropriate and for eligibility for ceiling or expungement. So the remaining subdivisions there two and three and for those directives remain the same. So the committee has to shall propose legislation on its recommendations on what crime should be eligible individuals or entities that should have access to sealed records, whether Vermont should carry on with this ceiling and expungement or if we should just use one or the other, and then implementing a petition list process to get records sealed or expunged. So those directives remain unchanged from the Senate version. So that's it. Thank you. Thank you so much, Brennan. Thank you so much for the quick turnaround. Because I know you're busy. So, questions for, for Bren, Barbara. Thank you. So, Bren. That was really helpful and one thing I was trying to figure out is. Let's say when the Justice Oversight Committee is trying to look at the comprehensive policy. You're right. Like just go with me for a moment. What if something on the list of crimes that they're not supposed to be considered fits in with that bigger philosophy that they're looking at. This would prohibit them from presenting that like it's, it's tying. Yeah, I just, I don't think it would prohibit them from doing that it is a directive to the committee so if you want them specifically to consider the crimes on the big 12 list, then I might remove that section but the Justice Oversight Committee can do whatever they like and they can propose whatever legislation they like. Okay, because I know when we heard from the governor's attorney, she pointed out that we should look at a comprehensive overhaul so this almost narrows it from that charge of actually what the commissioner said to that look broadly and so it's almost predetermining that there's an issue before Justice Oversight got to fully look at what the underlying principles are. By specifically excluding the big 12 because I think that's really the only thing that is specifically excluded. Yeah. Yeah. So I don't think that's a question for me that's really more discussion for the committee. Yeah. Okay. And I don't know if this is this is probably a question for Judge Gerrison, but how many, I have no idea how many, what percentage of the people that the court would try to contact have an electronic way of contacting them like so it does provide that or they could also send a letter so it doesn't have to be electronic. Okay. Thank you. Thank you. Any other questions for Bryn. Thank you Bryn. I'd like to know. There you go, David. Good afternoon. Good afternoon, chair and good afternoon to the committee for the record David share with the Attorney General's office. We do support this way of moving forward given where things are in the session and think this is a reasonable way forward but I also feel the need to correct the record on a number of issues that were discussed yesterday by the administration and to let the committee know where we stand more broadly and where we hope to see this moving forward, but I'll try not to take up too much of your time and doing that and I'm of course happy to answer questions. As we as we as I go through this. A couple of things I want to address in particular one is the broad issue of stakeholder input, and that being a part of an expansion process. The second is some of the more specific questions about what was being proposed in our prior drafts and some of the back and forth of the administration. And thirdly, I'll just briefly say a couple more words about this draft is some of the upsides actually I think that haven't been discussed as much so far. In terms of 3.0 what we're looking at today. First and foremost, we heard yesterday from members of the administration that the way to do expungement appropriately is to ensure a lot of stakeholder input including from victims and victims advocates and others like that. I want to be very clear. I know the committee has heard some of this but I want to be very clear about the process that led to the bill that was passed by the Senate and they came to this house. That bill did have an enormous amount of stakeholder input. There was a it was done by the Sentencing Commission but not only by the Sentencing Commission the Sentencing Commission produced the proposal that became that bill. It was a creating a subcommittee which I chaired that subcommittee did not solely include members of the Sentencing Commission included other people as well who had an interest in it. It's important to remember that the Sentencing Commission itself does have representation from the Center for Crime Victim Services, the proposal that came, excuse me. Sorry, lost my voice there. The proposal that came out of that subcommittee unanimously was not the most expansive version of an expungement bill that some members of that subcommittee wanted and it was not the most expansive version precisely because victims voices had a serious part in that and other law enforcement voices had a serious part in that proposal in that process. And so I just want to be very clear that this already has been a highly vetted process and the notion that this was in a process that had real input from law enforcement from victims advocates who did not, in fact, agree with the most opinion of expungement proposals that were being put forward and prevented those from coming forward ultimately and ultimately the proposal was agreed to unanimously within the subcommittee. And as a result of that compromise effort, the entirety of the Vermont Sentencing Commission voted in favor of it again I believe the committee has heard this but I was reviewing the minutes from that meeting which took place in October of 2017, and which at which was present the Department of State's attorneys and sheriffs, the Department of Corrections, the Department of Public Safety, including the current commissioner, and every single one of those individuals voted affirmatively for the proposal that came out of the Senate unanimously out of the Senate as well, and came before this committee so I just want to be very clear about this notion that the bill did not have stakeholder input or needed stakeholder input to adequately reflect all of the interests going into play. We feel very strongly that this did have that the one piece that got added in the Sentencing Commission as I reviewed the minutes was in the full Sentencing Commission before it went that proposal went out to the legislature was that to have this legislature take a second look at the notion of when to which records should in fact be completely destroyed or not. And that was a point of real contention. You've heard from the administration yesterday that well if we spend a little more time we can just figure out this issue of you know it's like a little thing, or this is my impression of the way it was being discussed it's a let's that's a matter we can massage in terms of whether records should be completely destroyed when their exposure seal. I'll tell you from the debates that that's not a small matter that that is a fundamental disagreement. A profound disagreement and when you hear people from both sides of this saying well I think we can simplify the process. Their ideas about how the process gets simplified or not reconcilable with each other. One of those ideas is to have it all be ceiling and the other side's ideas is to have it all be the way that we reconcile that in this proposal was to have the two step process where ceiling was available early and expungement was available later. There's no other real way and that's partly how we got such a broad buy. There's no other real way to massage that either it's going to you're going to destroy the records entirely or you are not. And I think for whatever categories of crimes you want to do that for. And it may ultimately be the case that when this gets considered again. It may be that the side that advocates for having records completely destroyed which I can tell you is a strong set of voices. Maybe the ones that win that argument. And because that's going to be a discussion that will have to happen again. I wouldn't be so confident if you are among the if folks listening are among the group that wants the records to be retained forever that that's necessarily going to be the side of the argument that wins out. And I also want to point out a couple of more specific issues with respect to what was represented yesterday I heard the governor's council say that there were three points in particular that had not been adequately addressed and I wanted to be clear that they had been and in fact the law did exactly what the governor's council had asked for to do. One was not expanding the waiver authority, in other words not having it be able to be transferred. As I think the committee understands the what we have put in the bill is actually a contraction of the current waiver authority. It was narrowed. We had spoken against as you know. So that's just not the case. There was a concern about and there was of course the door was reopened to allow for that if a state's attorney allowed agreed to it but that was it is still overall a contraction. One other issue was that they didn't want there to be early waiver ability for the felony property offenses that in fact was not there in the bill, and that was not allowable. And the final piece I just want to reiterate is there was the concerns reiterated about the DOC, having access and access to records. During that discussion, the administration repeatedly invoked David demora, who then came in and quite emphatically rejected the notion that there was any issue with risk assessments in terms of retaining old records. And I think that is the definitive statement on that, especially given the fact that the administration themselves wanted to that to be the figure of authority on that. We believe and I think it is simply accurate to say if you look back at the governor's counsel's proposal. We agreed to every request that the governor made every specific request of the governor's administration made, including ones that were made both in writing and verbally during testimony in the last couple weeks. We made those we agreed to those and worked on implementing them because we believed that that could lead to an agreement. Even after all of we were and we engaged in that in good faith. Of course, even after all of those were put forward, the administration found reason to oppose those changes, despite that, and that was certainly disappointing to us. But that's also a choice that they made. And that's a choice that they're going to have to live with. I can tell you that we will push for as we as we push for previously and as we will, and as we supported previously, a very broad version of the expungement law. We believe that Vermonters want that we believe that most of the stakeholders want that. And we know that 30 out of 30 members of the Vermont State Senate voted for that already. The administration may have left on the table, the best opportunity they had to have a narrower version of the expungement bill. And it's certainly our hope and our intention to work to achieve a law that is very broad, and that we hope that legislative processes will proceed in a way that allows that law to be that expansive version of expungement to become the law regardless of what the governor's office might prefer. So we stand strongly for expungement still. We will be working hard to achieve an expansive version of expungement, which again we believe there is a lot of support for is disappointing to us that our efforts to accommodate concerns. And we accommodated every concern that was stated turned out not to actually be a real negotiation. And we don't believe that we ever could have as it turns out, it certainly appears that we never could have found agreement given given the how events unfolded. So that I just wanted to correct the record on those points make it clear where we stand and what we're going to be working for and hopefully supporting you the legislature and the joint justice oversight committee and working for. You know we do support where this bill is gone and the and I do want to end on a positive note here by saying that section five has gotten almost no discussion in the committee. This is the expungement for violation of records, but this was actually this took us a lot of work to design back in 2019. We actually think it's a really important innovation it's the first time that violations are going to be able to be expunged ever in Vermont. And these types of changes don't always make headlines they're not the thing that gets written about, or that even gets, you know, gets noticed all that much, but these types of changes, especially around our driving laws and about the sort of burden that low income drivers have to carry can have really consequential impacts for low income Vermonters. Some members of this committee, some members current members of the committee were here last year when you all passed the SR 22 the change SR 22 insurance. And I get a lot of attention but I can tell you because our programs work with folks who labored under those restrictions that that has made a huge difference in the lives of Vermonters we live in a rural state where people have to drive. And it's save people money it's gotten people driving legally again which is what we want. It's what's safest. And so, things like section five don't get as much attention but they're really important. And I'm pleased to see that that at least will continue forward this year and I think that will make a big difference even if it doesn't get as much attention to some of these other issues so I just wanted to end on a more uplifting note here. And I appreciate the committee for indulging me here. I did feel the need after all the work that's gone into this, all the work that our office has done on it and that and that you've all done on it, I did feel the need to just correct some of those points that were made and to make a difference so thank you to the committee and happy to answer any questions. Thank you David I, Barbara you can ask you a question about the study and about the crimes, because I was going to ask. I wasn't actually different question. Okay, then. So, so David I don't know if you heard Barbara's question earlier but in terms of the study. She says that the big 12 will be ineligible and cars those out and Barbara was wondering wondering if, if we should do that. You could do it I'm not actually too worried about it because this is a directive to your fellow legislators who can do whatever they want in terms of what they propose. If this is a directive to the sentencing commission then you'd have to be clear. You have to be more, you know, more precise but you know it's your fellow legislators and I think they can they can choose to propose legislation as they decide so you could change it. I wouldn't be too worried about it. Personally, I think it'll be fine. You, Barbara. Thanks. So David. You've heard Dale from DOC testify, right. Yes. I think the thing that he talked about that we, I don't think we ever got back to addressing, which is, and I'm going to get the word wrong that he was saying that the DOC and I can't remember Commissioner Sherwin said this as well uses the law enforcement. Initially is proposing, and I know that Martin commented on this rather so they were saying that if the records. We never know what sort of the plea deal was and they want to look they want access to those original charges. And I understand in talking to a constituent that that might be like a major violation of taking into consideration a crime that somebody was not convicted of. And I just wondered if your office has been following the use of the pre conviction charges and why they are able, why they're even staying in someone's record. So I actually did testify to this briefly, and I don't know I don't have current information about what's happening and I would prefer to assume the best but obviously we can't you know we have to be careful in these things and assumptions are always aren't always wise. I understand that the government is requiring people to take actions and punishing them or requiring rehabilitation for behavior that somebody has not been found guilty of and has not been proven, or has not been pled to I think that's a, I find that disturbing distressing. And, and I would, and I do think that that's something that needs to be investigated more clearly if in fact that is what was stated as possible I misunderstood what was being said there. But I think of several members of the committee heard it the way you're describing it. And yes I think that is a that's a serious concern to me I think that you know the judiciary gets to say the judicial process is the process that gets to say what somebody is guilty of or not. And the executive doesn't get to step back in and say well we actually think you did this other thing and we're going to treat you accordingly. That's not the way our justice system works and I think that's unconstitutional and a serious problem for civil liberties so I do think before I say you know we've got we have a problem on our hands. I do think you need to investigate more clearly. But if that is the case then that is something that needs to be looked at. And shouldn't that I guess I'm wondering, I mean because I do feel like we heard that I mean I will go back and watch again but I'm pretty sure we heard that that that is happening with the OC, and if we seal records. It seems important that we discuss what is in a record that is getting sealed and what is getting destroyed. Right, like, even if it isn't someone's record. Some of those things need to get out of the record. Don't they like I don't know how it normally works but it does sound concerning. But again with the ceiling versus expungement thing that is going to be something that the joint justice oversight will re engage with again. And, but I do think it's slightly different it's related because we're talking about expungements but the question of what information do see is using exactly to make its decisions is slightly different because that could apply to any case. Right before the way before the expungement or ceiling. I totally agree and it's sort of. It just makes me wonder like what gets defined as what is in a file, you know what I mean because if. And I'm, I'm approaching it more with my mindset of like somebody's like just from the social work social service world, like there's certain things that just don't go on somebody's file and you wouldn't put them in their file because they're not appropriate. You know, I wish I knew but I, I think that our committee needs to somehow bracket this issue because if it is, as you said, if it is happening, it's a huge problem. Yeah, I do think it's actually broader than the expungement issue and I'm not solely related to it but I'm happy to work on that as if you do choose to move forward with that. Thank you. Martin David actually do I'm looking at the time are you okay take in. I have three I can take it right up to the hour. Thank you. Okay well I just this real quick then I did kind of probe that question with a couple witnesses at least. What I did also here is they weren't necessarily looking at the affidavit to say oh this person should have been charged with x instead of why there shouldn't have been the plea deal whatever. Somebody subsequently was saying they were looking at the behavior that was in the affidavit. I don't know what the ultimate charge was that may or may not make a difference. I don't know but I just want to make that a little bit clear that that was a little less troubling to me but troubling in a different way. I mean it'd be much worse if they said oh well this person could have been charged with a felony and that's what we're going to treat this as but they were pled down to amiss me. So there are some questions that certainly should be followed up on that. I think that's right I think you make a reasonable distinction but how that actually plays out in reality in terms of which facts are being used I think matters a lot and certainly worth looking into that. No other hands and you've got two minutes to spare. Thank you very much thank you. Thank you. Thank you very much. I'm going to turn to the state's attorneys and sheriffs and welcome Evan Evan mean good afternoon. Good afternoon everybody Evan mean and on behalf of the Department of State's attorneys and sheriffs. I just wanted to start off by saying that you know that the Department greatly appreciates the amount of additional work that this particular committee put into this bill. It's a big important issue. You spend a lot of time considering it and I think that you know draft 2.3 which was the one immediately proceeding this. It was a much improved bill from the department's perspective. But the department is also comfortable with this particular version 3.0 if that's the decision if that's the way that this committee decides to go. And the department is willing to do its best to assist the justice oversight committee and the work that it's going to do over this summer. And the legislature reconvenes next year. This conversation about expunging and sealing can continue. So so we're comfortable with draft 3.0 if that's how the committee wants to proceed. And if there's any questions I'm happy to do my best to answer them. Thank you so much. Appreciate your testimony committee members any questions. Not seeing any hands. Easy. Well, thank you so much. And I know it was short notice so certainly appreciate it and then we appreciate your support. Thank you. Okay, so committee that's all we have on this I think, in terms of other witnesses and I'm not sure we. Other witnesses we certainly did hear from Legal Aid and Defender General's Office who put forth this proposal. But I'm certainly turning to the committee to see if they do want other witnesses. Language in here also came from from the judiciary. I would like to put it for vote tomorrow. So, is administration waiting on this at all I mean I just listened to David. Where's the administration. Well my understanding from the letter that I received from and the memo that I received from the administration and have the exact date pointed out that we were able to get to yes on the DMV piece. And so I took I took that and given that DMV is part of the administration and you know worked very closely with the judiciary on this. I take that as support. But but if you would, if you want DMV to come back in that's I don't want DMV. I want I want to see somebody from administration I mean I just listened to David I mean I want it. In my mind I mean, I mean, there's a lot of questions that may not have been answered or may not have been asked. Correctly, God knows what we're going through with this legislative session but obviously somebody doesn't like something and I just want to make sure if I'm going to be involved in a vote, I want to make sure where administration is that's all. If I'm, I can certainly send attorney Johnson this draft and ask her to, if she's available to review it. So, I guess I was my question has the administration seen this current draft they haven't then. They've not seen this current draft but remember this this draft is very similar to what. What we have worked on and with the Senate has worked on and the concerns have been in sections that are not in this draft the administration's concerns that have all been on sections that have been taken out of this draft. But I'm happy, happy to send it and happy to invite them to testify. I would feel better if we did that. Thank you. Anybody else. Okay. All right, so that is, that's all I have for today, we can enjoy the dry sunshine and no other questions we will adjourn. Thank you to people. I'm going to raise their hands.