 Good morning. This is Tuesday, February 2nd, Groundhog Day. Down here in southern Vermont, we had a tough ride to work. We'd go out and shovel about eight inches of snow before I could get to the newspaper. That's the full extent of my walk this morning. Good thing Campion wasn't on the front page. I know. Poor thing. He's in Montpelier probably sitting in my seat. I sent him a text asking him not to mess it up. I always keep mine clean. This is always messy. Today we're dealing with S18. It's an act relating to limiting earn good time sentence reduction for offenders. He's convicted of certain crimes. I did receive a letter from an offender named Sean Breyer. And I will just mention that he did send me this letter. He's an offender who would be impacted by this change. He feels that he feels there's over sentencing as a result of plea deals where prosecutors overcharge. And that's created a increase of one term inmates in our prison population requiring contracts with private prison companies for supplemental housing. And says he understand attorney general's perspective and the feelings of those who have been victimized. I disagree that a victim's long term time and expectations from a flawed plea deal negotiation process should exclude these offenders for demonstrating their rehabilitation while incarcerated earning some credit for it. Eric. Where are we. Maybe I should, we maybe should have met first he sent an email to us, suggesting that there definitely be litigation where we to pass. I don't know if you want to share that with us Matt. Oh, sure. I mean, this is something that I, I brought up relatively early on. This was honestly the basis when there was a change in good time. You know what 10 plus years ago. Maybe maybe more than that during the Douglas administration where all good time was eliminated. The individuals who were under the various forms of good time at the time. They were tested right in receiving the good time that they under the systems that they had. And the only way that you could start a new system basically that had no good time attached to it was to either allow the existing systems to continue going forward. Allow them to earn it, which would have been very unwieldy or to do what you did do, which was to grant everybody who had a right to good time under the then existing statutes. The good time that they would have received had they earned it. And that's what you did is that you so so called trued up the good time system by awarding everybody. Under whatever system was available there was a time when there was good time off the mid and the max. There was a time when there was good time, only off of the max. There was the elimination of good time and I believe actually there was a third iteration where the numbers were actually different. Now at the time it was 10 days per month and and I'm doing this in gross terms so that you so you know so we don't have to get too much into the prison math, but 30 days 30 days served got you 10 days. That's basically a one third reduction in your sentence. And depending on what system you are on it's off the mid in the max or off your max, except for the people who were had life in prison cases, you know, like as as your as your maximum. The others were getting it off the off the minimum. In any event you trued everything up now as of last year when you passed the bill to grant good time under our Constitution which is, and has been interpreted many times regarding the application of laws to criminal defendants and expose the facto application. The, there's a statute that sets it forth and says that you pass a statute that gives grants rights to particular individuals. If you then subsequently change that statute to take away that right into the future. You can't take away a vested right that you've already granted to the people who are in in in the facility or in the jail if you're as far as, for example, in this case it's good time. So when you passed the statute last year, you granted everybody who was under sentence, the right to good time. Right. Now it doesn't matter if you wait 10 years or if you wait if you wait 10 days. All of those people in during that snapshot period of time, until there's a change, have a vested right in that good time. And so, going forward you can change the law and say, well we're not going to allow good time for people who are sex offenders and murderers just to use, you know, gross terms rather than the specific crimes. All of the people who are already under sentence for those things right now, have a vested right in that, that you can't take away, because you made that change last year. And under the Constitution and your statue in the statutes. It's one was it 1214 Eric title 1214 section 214. I had written this all out and I actually I was working on some budget stuff so I don't have that right in front of me so I'm just basically discussing this with you without those notes in any event. Whatever you do now is going to only be applicable to the people who get go under sentence going forward. It's not going to apply. And frankly to any of the victims folks who you have coming in and testifying that they don't want this to occur. It's going to apply to future victims. And, you know, there's, there's actually so little dispute about this that the last time you went around doing this. And they should just granted everybody all of their good time going forward without ever having them earn it now in this particular case. I don't think that that's really what you should do if you want to change the law. What you should do is identify the relative small handful of people of whoever. You know if you limit it to aggravated sexual assault and first degree murder and aggravated murder. And then you are, you know, you have a very small universe of people who this is going to apply to, and then going forward. It will, you know, you can do do what you want to do without impacting the rights of the people you granted this right to, when you passed the statute last year. I have a question, but and then I haven't follow up. Okay, Matt, I just want to make sure I'm understanding you. So we've been talking about the bill as if it were to pass. There would be there would be a group of people who received good time under the bill we passed two years ago or last year whenever it was. Okay, a couple of months ago. And then their good time would stop on the passage of this bill. No. Okay, so that's my question is, we've, we've been proceeding as though that were a possible path. You're saying that that's just on its face. Impossible or illegal. Correct. Okay. But, but mass. So my understanding of what we're doing here was to limit it. And we can argue about what should be applied to. I think that's still to be determined on the discussion. I'm not sure that the list of crimes we have is the right list. But let's just say for the sake of argument, it's the small group you just described aggravated, aggravated sexual assault murder. They were sentenced with no good time. Right. Right. So, correct. That was, that's the, but, but, but so what you're arguing is that once we've granted this. We've automatically given it to them. And we can't take it. We can't change that. Correct your argument. I mean, the other group, the group you're talking about, the group you're comparing had already been sentenced with the understanding they were going to get the good time. This group and sentence for the understanding they weren't going to get. I see it as somewhat different, but what am I missing. Well, what you've done is you've granted them a right you've improved their situation you've, and once that applied to them. You can't take it away. That's the point. And that's what the, you know, if you take a look at 1214 and the constitutional cases that support that that's what the basis of, of that is. So, you know, I know what you're, I know what you're saying as far as the equity of it, you know, is it is it fair for someone who didn't have an expectation 20 years ago to have it given to them and then take it away. Well, what the law says is if you vest the right in somebody in a criminal case, relative to their sentence and punishment. You can't subsequently take that away. Expo's facto even if you do it during the, during the interim period it wouldn't matter if it was. I said, you know, if, if what you had done, just done, you waited five years and then changed it. It doesn't matter. It's just it's the same issue because they'd be operating under that five year period of time. Everybody anxious about this is that it just happened a couple months ago. But we're not taking away whatever they might gain between now and the actual passage of the law. It doesn't matter. It doesn't matter. I wonder if we could hear from Senator Nick. Eric had a comment but then I wanted to have something to our is, are you saying Matt that, based on the law that went into effect on January one, everybody in prison, including, you know, murderers, all those people are right now falling into that category where they would have a vested interest. Life without parole. Correct. Unless they have life without parole. Eric, did you have a comment. I was going to call on David sure. No, I was just pointing out that that the statute was on your web page so that Matt was referring to the fact that you didn't have the language in front of them but in case you want to look at the language while you talk about this it's. Peggy posted it. Good for Peggy. Thank you, Peggy. Now I gotta get to the web page. Yep, Tuesday, February 2nd. Don't take me Eric sent it to me. To 14. General provisions. David sure any comments. I'm sure the Attorney General knew about this. Yes, Senator is something that we had thought about in drafting the law and we understand of course that the inmates who are incarcerated now where to whom this change may apply may file suit and that may even be the obligation of the defender general's office to pursue that but we do not believe that the law. That there's a sort of once granted all you know once given always always held right. We read the law differently than that and we think that any lawsuit that's filed is not likely to succeed. Let me explain that a little bit more. There's two related but not identical concepts that the defender general's discussing here. There's the prohibition on ex post facto laws, which is a constitutional prohibition in the US Constitution and certainly one applies to Vermont. And the second is the statutory provision and one vsa 214 again they have a similar operation but one statutory ones constitutional with respect to the constitutional limitation it's important to understand what exactly it is. And then we can explain why this proposal doesn't is not applicable, where I should say why expose factor concept is not applicable this proposal. I'll read you a one sentence definition, one of many in Vermont case law describing expose facto laws. So this one is in Ray, in Ray blow from 2013 I believe it says a prohibited expose facto law is one that is or is applied in a way that is both retrospective and more onerous than the law and effect on the date of the offense. That last clause is essential. It is the key to the discussion we're having today, which is that what matters is what the law was on the date of the offense. What we're doing here and in this law is we are not changing anything that was an effect on the date of the offenses that this law would apply to by definition. These would all apply by definition both of last year's law and this one. These are all offenses that occurred and were sentenced before the change in the law. So bringing what this law proposes to do essentially is put offenders back in the same position that they were at the time of the offense, they are not this law is not making any punishment more onerous. The right is returning to the state of the law at the time of the, of the offense. In fact, it, you know, it's, it could give some people a slightly better outcome because we are allowing the, you know, that that which they are accumulating right now, potentially accumulating right now, they could, they could hold that so they might even be in a slightly better position than they were at the time of the offense. But that's the key concept here is we are not going back and changing and making more severe a punishment from, you know, that was in place at the time of the offense and that's what exposes fast X post facto laws are applicable to. And that's the key difference also with the earlier and good time change there, the issue with one of the main problems and there was a, that was a very complicated change there was a bunch of problems there but one of the problems with respect to X post facto was that you were potentially changing somebody's punishment and making it more severe than it had been on the date of the offense. And that would not have been allowable or constitutional, because it's not, it's not an open and shut case but there's clearly inmates would have had a strong argument that they were potentially being exposed to more severe punishment I think that argument was a likely winner. And, and the legislature couldn't do that but again that's not the case here this is this that you are returning people to the same position they were in at the time of the offense with respect to section 214. Yeah, so section 214 of title one. It's a similar issue that that the provision that's applicable to criminal offenses and that is, I'll say frankly not written in a way that we would probably write a statute today it's a little bit confusing to follow. But I'll read it quickly and then explain and there's a there's a case that explains it a little bit more to it states the relevant provision states that, and when I read this listen again to the last clause of what I'm saying because that's the key here but I'll read the whole sentence. If the penalty or punishment for any offenses reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the actor provision as amended. And that is a key distinction here with respect to a 214. And there's a case I believe it's a state be barren from 2011 that explains that final sentence a little bit further and says, the, the, sorry state be barren reads the, the sentence that issue here in state be barren was imposed prior to the date of amendment. And state be barren basically says, you know, that is the key, key clause here, the key relevant clause and that would be the same in these cases too. These are all sentences that were imposed prior to either of the statutes we're talking about here so 214 wouldn't apply because again the sentences were imposed prior to the date of amendment. So it's our read that this is, this is, you know, squarely lawful, it is not placing anybody and forcing them into greater punishment that they faced at the time that commission of the crime or at the time that they were sentenced to the to the degree that that is the more relevant inquiry under 214. And I think the case law states that plainly. I was somewhat tempted to ask Judge Grishin if he wants to weigh in but my guess is he prefer not to give us the ruling. It sounds like it might come our way, Senator depending on what you do with this bill so I will not offer an opinion at this time but thank you. Well thank you. Yeah, please. I appreciate what Dave shares talking about but he misses the key point of what 214 is talking about. Sub A under 214 the amendment or repeal of an actor provision under the statute shall not revive an act or statutory provision which has been appealed and then under B, the amendment or repeal of an act or statutory provision except as provided in C below shall not. Okay, because this is not a new sentence, but affect any right privilege or obligation or liability acquired a crude or incurred prior to the effective date of the amendment or appeal. And so what's going on here is you guys last year. What's the right privilege, right or privilege, and that writer privilege vested in the defendants in the people who are under sentence. And as a result, if you subsequently change that, you can't take it away for those people who are who are subject to that right being vested in them. So it doesn't have to do with a change in their penalty or punishment so much under C, but as to a right privilege writer privilege that is that is has been granted to them by your statutory change last year. So, I do agree with judge Greerson completely that he will, he or his minions will have the ability to take a look at this, and we will see what happens but just, you know, to let you know. We have this one teed up. I appreciate that Matt. Senator Bruce. Matt, I'm just wondering if you can respond specifically to David's on less claws that that last clause that in both cases, he had us focus on what's what's your specific answer to that piece. That has to do with the penalty or punishment for the offense not to the right granted in time. So you're changing a sentence you can't change somebody's minimum or maximum sentence. But what you've done is granted good time which is not a minimum or maximum sentence it's a right that is outside of the sentence itself. This is no guarantee of it. But we could not withstand. I don't think you can do that. You can. We can withstand a lot not withstand anything. We wrote the law. I guess we could repeal it if we wanted to. I think what I think it was originally based what this what I think 214 did is take the collection of expose facto case law and explain it in the statute, which is what, you know, sometimes you do to clarify, or organize case laws as they come down over a period of time. But I don't know why we couldn't not withstand it. Not withstand a lot of things. David, did you want to comment on not was standing. Yes, Senator couple couple comments and I certainly understand that Governor General's office has this teed up and courts will be laying in on this or our discussions here today will be repeated later but I did want I do think first to answer your question. Initially, yes, I think you could do a not with standing this is a statute it's up to the legislature to treat it how it will and I agree with the center general the area that that aspects of it are certainly constitutionally based. I've already, we already discussed why it's our reading that the expose facto provisions don't apply to this. I'm going to say briefly and again I understand we're waiting into the waters of statutory interpretation deeply that will be weighted into again and more detail and court but I would just know a couple things one that, you know the subsection, some division be that Senator General pointed to notes that that subsection applies, except as provided in subsection C, which was the subsection I was reading from and it's our read that subsection C is what would be applicable to a criminal offense we read the statute to apply that way and we believe the case law has applied it that way. That being said, if for assuming for the sake of argument that subsection be might apply which again is not a read that we have in the statute. We would say that when when the statute says affect any right privilege obligation liability acquired accrued or incurred prior to the effective day of the amendment. What that saying is that you can't take away something that has been gained, but it's not making any statement about what could happen in the future. In other words, I do think that that provision the statute was would mean that you could not it take away from an inmate or a good time that they have earned already by operation of law, which this proposal does not attempt to do, but that would make that unlawful and would supersede any attempt to do so. But I don't we don't believe it speaks to future rights. It speaks to rights already accrued so that again, I recognize that this is a matter of statutory interpretation that will be discussed again later but we I just wanted to give the committee our reasons for why we don't believe it applies in this case and we do think and not withstanding is appropriate in this case if the committee chooses to go in that direction. I just would like to understand. I'm reading over the 2602 Louden lascivious conduct in the child which is on our web page. If we were to say that a person convicted of be little b2 excuse me little b. 2602 a little a to sections to not apply if the person less than 19 years old, at least 15 years old in the conduct is consensual. This is the old age gap room in Julia thing. I find that actually problematic. The child were 15 and that guy was 20. That we are are actually 19 years and one day. And the girl was 15, let's say that would put him into this category. That's one of the areas where I'd like to explore as we look at the crimes, but if we were to change that law. How would it affect people currently sentenced if we just said, okay, make it 14 rather than 15. How would that affect people currently sentenced for that crime. Center is that a question for me. Either one of you actually. Okay. I don't understand this to 14. That title one to 14 and the other law. The constitutional factor. It wouldn't affect anybody who's currently sentenced. Although I think that a person would have a legitimate argument to attempt to get their conviction seal or expunged. Based on the fact that it was effectively legal that used to be illegal. If you remember back that's the way the Senate passed the bill. Back in 2010, I believe. Right. The 14 was 14 and the house insisted that it. But the person would have to argue that doesn't apply the same. Yeah, I mean that's a that's something became legal. But I don't know. Their consensual act when they were convicted has been made legal subsequently. They got the benefit of it. Senator White. So when we're looking at this list of crimes that. We are now in this bill considering exempting from. Immigrants. And that is what we're using, I guess. So. Can somebody give me. I'm still concerned that we're. Using categories instead of individuals here. And can somebody give me an example of just in this one that you pointed out, Senator Sears. Can somebody give me an example of what. Can somebody just give me an example. Of somebody who might be convicted of that. What the. Is it exposing yourself in the park. In the, at the playground. I mean, what is it? That could be. You know, touching of the, of a person. In their private areas that. Doesn't involve. You know, could be over the clothes could be. You know, that kind of thing. It could be exposing yourself in the park. Could be. To. At the playground. To a minor. Yeah. It seems to me that. By including this whole category. That. Anyway. Is Mooning as you go from the high school bus football bus. Is that. Luton lascivious. What is that. That could, could be a lewd act, but not lewd and lascivious conduct with a child. With a child, but it could be lewd. Yes. It's a different, different crime. Okay. I'm just really concerned that about. Exempting these. Exempting. Exempting. Exempting. Exempting. From. Good. Let's, let's use the. Maybe we should start using the term. Creating disqualifying crimes. So we're saying that certain crimes disqualify you from getting good time. And. Might be a better way to look at it than exemptions. You know, we're not exempting them. We're saying. These are disqualifying crimes. And maybe we should. I don't know. If it's just the proper measure of what we need to do. If it's just an. The religious criticism. Errone time for credit or whatever. We don't want to use it. Good time. I would the English professor in our midst. Might have a great word. A better. But the. That time is good. Anyway. So are we. Finished with the discussion about. Whether it's constitutional and whether we should not withstand. whether we should not withstand vital one section. I just, and anybody, including Matt, should feel free to correct me if I'm wrong, but if we do not withstand it, it makes the case if it's adjudicated stronger for what we would be trying to do, I believe. Matt might say ultimately it won't result in a successful verdict, but it would definitely strengthen the effort, I think, so. Eric, why don't you prepare an amendment that I mean, pretty simple, I guess, not withstand something. Yep, George, you did it. You did it, you may recall having added the notwithstanding section 214 for the last session when you passed the statute that was permitting civil actions based on child sexual abuse. Remember where the statute of limitations had expired? So we can do something similar here, certainly. Senator White. I have a hard time weighing in on whether we should do a withstanding or declared unconstitutional or constitutional since I'm not sure that I agree with creating disqualifying crimes in the first place, so just throw that in. So I can't weigh in on the withstanding. Well, we can't not withstand the Constitution, so there will be a battle over this, but. If we pass this. If we pass the bill, we cannot say notwithstanding the Constitutional right, but we can say notwithstanding what's the statute. We can do that frequently, actually. We do it all the time in the darn budget, by the way. Somebody should go up and notwithstandings in the budget every year. The big bill. I would, Eric prepared a list of the crimes that are disqualified and I think we should kind of, excuse me, is Chris Fenow or Sarah Robinson wanna chime in here on any of this first discussion about the constitutionality? I'm not sure that I'm your gal for that, but Sarah Robinson, Deputy Director at the Vermont Network, I will just broadly say that our primary concern throughout this conversation has been that some of the most serious crimes that took the life of or had lifelong impacts on victims that ought to be weighed in this process. And really what I think this committee has heard from victims and certainly what we have heard from victims is that it's extremely important to victims that the promise that they felt like they had from the state of Vermont is honored in terms of people that had been previously sentenced. And we do feel like the proposed language would ensure that that's the case. And in terms of people being sentenced moving forward, I know that you're, sounds like you're about to have a conversation about which crimes may or may not be included. And I would just say that kind of parallel to that policy conversation, we still absolutely believe that there ought to be some language in the bill to ensure that victims are notified prior to sentencing moving forward so that victims in the future aren't in a similar place as the victims that you have heard from over the past several weeks. So right now there is no absolute right to notification. And in the conversations that victims may be having with prosecutors or victim advocates or others, they may be hearing about sentence lengths. And we do think it's important that prior to their opportunity to provide a victim impact statement, they can at least be aware of and just be noticed of the fact that whatever the statutory scheme ends up looking like, good time may or is or is not a possibility for the person that caused them harm so that they are aware of that and clear about that moving forward from the time of sentencing. I suppose that, but if it was, if we didn't change any of these crimes, what I guess my example would be if we took manslaughter out, left murder in and if somebody was trying to plea down to manslaughter, you're wanting the victim to be notified that if they get manslaughter, they would still occur good time. That's right. I think it's fair for all the parties to just be aware that the sentenced crime may look different and victims ought to be aware of that in those considerations. Aren't they notified of that now by the victim's advocates? It's not there. Maybe I need help from Chris here. It's not guaranteed that they are. Yeah. Chris Fennell from the Vermont Center for Crime Victim Services. Right now the legislation that was passed and I tested on it at the time is that victims will be told at sentencing. So it would be explained to them what impact this might have on the sentence. And I personally think the prosecutor should do that. I think it probably will fall to the victim advocates and I think that's a little problematic too to make, they're not attorneys. So there might need to be some training and things that need to happen around that. But if somebody commits a crime that's not disqualifying, then no, they're gonna get good time. Yes. So I mean, there isn't an issue. I thought we have that under the Victim's Bill of Rights. Senator Shears, I think part of the issue is that is around plea bargaining is that we heard last week from one Victim's family that they let out to a lesser charge. They could have been charged with homicide, but they didn't do that because they didn't want to have to sort of rehash everything that had happened to their daughter. So knowing that if it had been, he had been actually muted for some reason, Chris. They said they had evidence to charge him and have his sentence be life without parole, but that would have meant a trial. So they said, okay, we don't wanna rehash everything that happened to her, but it's just that kind, right now, what that means is that offender who got 34 years, I think. 43. 43, but regardless of that, he now can because he took that plea agreement, he can now earn time off of his sentence because of that. So what I think Sarah is alluding to is that those kinds of, if in fact, S18 passes and becomes law, it's gonna be really critical that the people who are explaining sentencing to victims understand what that means and that prosecutors understand what that might mean to a victim to take a plea deal and move them into a category where they might be able to earn time off. I think I understand what you're thinking about, Sarah Jean. Well, I would just note that, it's not that victims are notified of the underlying sentence that currently happens, but what would be helpful to have in the language is to ensure that victims have the right to understand, be notified of the potential impact of good time on the underlying sentence based on the offense. Smashing my mailbox, not in the series. If somebody's smashing, how, what crimes are we talking, all crimes? Just in the normal course of, the normal course of victim notification in the general court process right now, victims of all crimes have a right to be notified around sentencing of the person that caused them harm. And their primary place that they have a voice in the process is the victim impact statement. And so from our view, it's essential that they just understand, it's just clear to all parties when they are able to offer that statement about the potential impact for good time on the sentence so that a victim can speak to that and the impact that it may have for them. All right, I think I understand what you're, doesn't mean we have to rewrite the bill. We have to have an amendment. I think if you want to guarantee that right for victims, there would need to be language, yes. I have a suggestion. I would be happy to send you some language and I'd be happy to work with Chris on that and then send you something on behalf of both of us if that would be helpful. That would be okay. Sure. We don't have the state's attorneys represent here today but we do have the attorney general. Please watch, Mr. Deputy General. There's Joe. Oh, Joe. Well, I asked David a question, so maybe I should. So I don't know when this started or why, but for the life of me, every felony that I'm doing a sentencing on, a judge will stop the proceeding if the victim hasn't been invited to the sentencing. And I don't know whether that was legislation that was passed or whether there was a rule that was imposed. I'm just dawning on me that in virtually every case, sentencing can come to a complete standstill if there isn't an official waiver by the victim for appearing at the sentencing hearing. And I've seen it happen several times. I don't know where it began. I don't know if that's a statute or a rule. I think it's part of the victim's bill of rights. It is, I believe so. I don't know if that needs to be amended here or what they're suggesting, but I don't have language right now. Well, it would beg the question then, why would we want to add language to this particular bill? We asked them and they said they wanted it. I don't know. It's like it would be any amendment. Do we want to adopt it or not adopt it? They are witnesses suggesting that they want to make sure victims are fully aware of how a good time law that passed two years last October would impact that victim. Mike, that's what I understand what they're asking. David. Senator, just to answer your question and perhaps a couple others. We would support such an amendment if the committee were to consider it and adopt it. I think it goes to the core of what this bill does, which in the policy this bill is trying to address, which is really a notice problem more than it is questioning the concept of earned good time. Under this bill, everybody moving forward retains the ability to get earned good time and we support that and we believe in earned good time. We think that's a good thing. What this is trying to do is correct a very serious problem with respect to notice and fairness for people in the past who have already been sentenced and with victims who had a certain understanding of what that sentence meant. And we're trying to correct that unfairness and I think in keeping with that, it makes sense to have a guarantee of notice with respect to earn good time moving forward. Again, that's very much in line with what we're trying to achieve in this bill, which is to make sure that victims have an adequate understanding of what's really happening while at the same time allowing for what we believe is a good policy change, which is to allow earn good time. And again, we support keeping that possible for everybody in the future. I think it's a good balance and that this addition would help achieve that balance. I look forward to seeing something from both of you and Eric, let me ask you a question. You and I discussed the other day, the Texas model as an alternative here. The Texas model is everybody still gets the good time no matter of the sentence, but certain crimes following disqualifying crimes here would not change the date of the parole. So in other words, while you could earn the time, you wouldn't change the parole date. So it wouldn't give somebody who had a 43 year minimum any earlier role. Right, and we had looked at that a little bit. I thought you may recall, Senator Sears, you and I discussed that it seemed like that there was a more significant ex post facto problem with that approach because of the fact that it was clearly impacting someone's sentence by changing the date at which they could be eligible for parole and that there seemed to be a number of cases, particularly on the parole point. Although, I see based on what I've heard today, I think the age year, defencing whoever would be defending the statute might argue that there's a distinction based on the fact that what comes into play is the time that the defendant was sentenced as opposed to what happened subsequently. But at least the cases I read seem to suggest that the parole, the particular point of changing the date that someone retroactively changing the date that someone would be eligible for parole seemed like the ex post facto issue was even more significant with that, if that were the approach. And as you point out, that's the approach that Texas takes. Not to say it's gonna get litigated anyway, so you could certainly try it. That was another alternative. James Pepper's hopped on and I wonder if you have a thought about the victim's issue we were just talking about. I think you were watching us on YouTube, so. Thank you for the record, James Pepper, Department of State's attorneys and sheriffs. So this victim notification around good time was contemplated in the Justice Reinvestment Bill, Act 148, and there is a section there that maybe needs a little bit of modification, but I think it was at least in the contemplation of the committee that moving forward that the prosecutor would at the time of sentencing prosecutor's office, whether it's through the victim's advocate or from the state's attorney or the prosecutor, him or herself, there's language that added that the prosecutor's office shall ensure that victims are made aware of the right to notification of an offender's scheduled release date pursuant to this section. So that was designed to begin the conversation with the victim at the time of sentencing about good time and the potential credit that could be earned against them in a max and perhaps it needs some clarification. And I also remember there's another section of the bill that said that DOC shall work on clarifying for prosecutors the potential for earning good time. So if a sentence is, you know, six to 10 years that the prosecutor at sentencing shall know precisely how much earned time could be earned or how much good time could be earned at the time of sentencing. So if we wanna clarify, you know, exactly who's responsibility it is and at what point, you know, that would be the section to do it in. But I think that this is, there's at least a requirement right now for state's attorneys to notify. Thank you. So with that in mind, that's very helpful, Pepper. Thank you. Would it be okay to spend a few minutes? We've got about a half an hour left on what the crimes would be. But whether we agree with all the disqualifying answers that are listed here. And again, it's on our webpage and it might be easier if Peggy could, it's up to all of you on the committee. We could have Peggy put the crime, listed the crimes up. The first one listed on my page is 501, arson causing death. Would you, would committee rather have to see it or do you wanna? Sure, sure, that's helpful. Eric, you did send us the bill. Yeah, but. Okay, is it different than what's in the bill? No, I should see. Oh, I mean, there's an explanation of the crime. Oh, okay, great. Okay, yes. It's the actual statute. Do you want me to do it or do you wanna do it? Pass an explanation, put it up please. That would be helpful. Oh, let me see, hold on. Page, if you go to page four of the bill, C. And it says, as used in this section, disqualifying offense means line 13, arson causing death. Then Eric has posted what exactly the statute is that you're considering disqualifying. I would love to see that. Okay, so why don't we post that? It's posted, but I just pulled it up. Okay, can you do a one-pager or? Yeah. No, I meant the thing that's on our webpage that Eric provided. Isn't this it, the disqualifying? This is it. Yeah, there it is. That's the bill. Oh, yes, it is. Oh, I'm sorry, yes, it is. Okay. It is. Okay, can you just do one page at a time or? And make it a little bigger? Let's see, I don't know. That's how it came up when I posted it. Hold on, let me see if I can figure this out. Sorry. Look at, do the type size up above? Hold on, guys. I think I might be able to do it. Hold on. How's that? Eric? That's better. That's much better, thank you. You're welcome. A person who willfully and maliciously burns the building of another or willfully and maliciously sets fire to a building owned in a hole or a park by himself or herself, by means of which the life of a person in the wash shall be guilty of murder and murder. Can I ask Eric a question about this? Absolutely. Eric, as I'm just reading this little synopsis, it seems as though the loss of life could be completely unintentional, is that? Eric, can you hear me? I have a feeling, Eric, because he never answered me either. OK. So maybe he's asking for a second. I'll just put that out there. Oh wait, can you hear me now? Yeah, we can hear you now. Sorry about that. But I understood the question, Senator Barouf, and you might not necessarily intend to kill the person by setting the fire. That's true. But the use of the terms, you'll see it's willfully and maliciously burns the building of another. So you have to intentionally set fire to the place, and maliciously means there is some bad intent. In other words, it's not just that you accidentally burned some mattress. I definitely see that. But it seems to me there is a distinction to be made between somebody who says, you know, my neighbor that I've been having a property dispute with, I'm going to burn down his shed or a building he has doesn't know that the person is in there. All right. So is it true that the law makes no distinction in that case? I think in that case, right, you could, for example, the fact that you described that could potentially be an arson causing death situation. Because this goes back to Senator White's point about disqualifying people and the purpose of prison as a reformatory system. If death resulted not through any intent of the person, then in my mind what they intended to do was arson, which is, you know, don't get me wrong. It's a horrible crime. But should that disqualify that person from ever receiving any benefit if they can demonstrate reformation? So that's the only piece of that that I stumble over. Whereas murder in the first degree, or premeditated murder, you've adjudicated it and proven that the person planned to do it and then did it. So I just throw that out there as a asterisk over arson causing death for me. And I think just to follow up on that, Senator Baruch, that if you were looking exactly at first degree murder as you just were pointing out the next paragraph down under 2301, one of the ways in which first degree murder is possible is, in fact, if you've murdered someone while committed in perpetrating or attempting to perpetrate arson. See, that's that third line. So I think that covers the intentional situation, which yes, I'm intending, I'm intentionally taking the life of another person by fire. And the reasoning would be that if you intentionally do that crime or kidnapping, you're creating such a dangerous situation that you should know somebody could die in doing it. Yep, you've described what's known in the law as felony murder, but that's exactly right. All right, thank you. Yep. I agree with Philip on the arson one. I think that if somebody burns down the garden shed of their neighbor, and they just happen to be asleep in the garden shed, that that really isn't, in my mind, premeditated murder. It's arson. Could be a lot clearer. It could be a lot easier to see if you recognize the language could result in somebody running out to hose down the garden shed while it's burning, and then the garden shed collapses on them. The same could apply in this particular situation. I agree. I don't think this should be in this exclusion category. Is that a majority opinion? An apparent majority. An apparent majority. I could be in there, but to go along, OK. Murder, first and second degree, I don't think so. Well, actually, murder defined. Section 2301. Yeah. What does mask a question? What does or a wanton under second degree or a wanton disregard of the likelihood that death or great bodily harm would result? So we're lumping in great bodily harm with death here. No. In murder. It says or great bodily harm is second degree. Tend to do great bodily harm. Huh? Person didn't die, but there was an intent to kill the person. That's how I read. Or it says, Eric, can you answer the question? I think it means that that the possibilities for the second degree murder charge that you intend to kill the person. That's the first clause. Or you intend to do great bodily harm, but the person dies anyway. You still have to have the death, but your intent was to do great bodily harm or my wanton disregard. That's generally another way to phrase recklessness. So that's here. It's more than negligence. Because you'll see negligently causing the death of another person can be a manslaughter charge. But wanton disregard is generally reckless. You conscious disregard of a known risk. You know that something is risky. You do it anyway. You know that death or serious bodily harm could result from what you do, but you do it anyway. Push them off the cliff. Right. That's a good example. So my question is... Sorry, I didn't catch that, Alice. Then you push them off a cliff. Yeah. By some miracle they live, but you and I... So my question is, is it considered second degree murder if the person doesn't die but they suffer great bodily harm? No, but it could be attempted second degree murder. If the person doesn't die, you can't have a murder if the person didn't die, but it could be attempted. So where is attempted second? Attempts are in a separate statute, but it generally speaking attempts are. Yep. Thank you. Sure. I think it should... If anything should be in there, this should... That should be in there. My opinion. I agree. The difference between voluntary and involuntary manslaughter. Yes, Peggy, would you be... Can you hear me? Would you be able to move the page down, please? So that the... You wanna have voluntary... Yep. Okay. A little bit more. Actually, that's fine. That's perfect. Because now you can see in front of you, I think that everybody see that you have bolded both voluntary and involuntary manslaughter. Yes. Right. So the difference is whether or not there's been an intent to take human life, essentially. The difference between voluntary manslaughter and involuntary. You see, the voluntary manslaughter is an intentional unlawful killing of another human being, but it's committed under sudden passion or great provocation that mitigates the killing. So that's a situation where someone's emotions have risen to the level of sudden passion or provocation. In that case, that's very common and long been held in the law that those are mitigating factors to the taking of another life. So perhaps it ameliorates the culpability, essentially, not as culpable because of the existence of this provocation person's been provoked or some rise in the passion. And that can reduce the charge of murder to voluntary manslaughter. And you see this language here is from the model jury instructions, which I took from the Vermont Bar Association's webpage. Now involuntary manslaughter, on the other hand, you see, look down to the next paragraph is unlawful killings. In other words, it's not justified. It's not self-defense or something like that, but it's not done with the intent to take human life. So you cause the death of another person, but you didn't intend to do so. You see the second sense, it's an unintentional killing where the person acts either recklessly by disregarding. And again, I said earlier, recklessness is conscious disregard of a known risk. You know something is risky and you engage in the conduct anyway. Or it could be criminal negligence. You see, that's the second bracketed phrase. Could be, you accidentally killed somebody, but you acted negligently. You acted unreasonably under the circumstances. You had a duty of care and your reasonableness under the circumstances to take care, you failed to do so. And if you do that and accidentally cause the death of another person, then it can be involuntary manslaughter. You see the penalties as well, I included there just so you could see that the penalties for manslaughter are much lower than the penalties for murder. It's only a one-year minimum, 15-year maximum, whereas the murder penalties are 35 years to life. So significantly different because obviously the culpability in the two situations is very different. That sort of helped understand the concept. Yeah, but... Can I ask a question? Yeah. But they're both included under number three. It doesn't give you any option with regard to voluntary or involuntary. Is that correct? Yes, that's correct, Senator Knicker. Thanks. It seems... That's a good explanation of it. I'm not sure it belongs or it doesn't belong. I'm happy to hear arguments from those that are in the room right now, which includes committee members as well as the judge, state attorney victims group, Matt Valerio. I would say it doesn't belong. Certainly think voluntary does belong, but it's not separating out the two. Well, can I just ask a question about what would be the result of this issue? Somebody goes to confront somebody that they have been, that has been bullying them, consistently bullying them. And they go with a gun, with the intention of confronting the person and then shooting themselves because they're so depressed. In the process, the person begins his bullying again and continues to bull in, bull in, bull. And the person loses it and shoots them. Now, it seems to me that that's voluntary manslaughter because it's in the height of a passion. And there wasn't... He never had an intent to shoot that other person. But it's included under here as something that can't be, can't be qualified for. Is that my understanding, Eric, is that that's the way that would work? That would be voluntary manslaughter? I think my reading of it is that what you described that could be provocation and that's the word. So that conceivably could be a voluntary manslaughter situation. I think I'd also defer to Matt and David with more experience in practice with this than I, but... I wonder if anybody, David, Matt, or Pepper, or folks in the victim. I can't see everybody right now. So the cases that I've handled like this that have the voluntary manslaughter, you're really looking at the difference between voluntary manslaughter and second degree more than voluntary manslaughter and involuntary manslaughter. What tends to happen is if you have a, what would otherwise be a second degree murder where you have great provocation or sudden passion, it reduces the second degree murder to a voluntary manslaughter. And these arise, oftentimes, there are a bunch of different ways that arise. One of the ways that arises is somebody gets involved in a mutual fight and then uses excessive force to try to extricate themselves from the fight or the like and somebody dies as a result. So it's kind of the, somebody pulls a knife during a fist fight. Somebody, there's a big brawl going on and somebody picks up a baseball bat and hits somebody in the head or something and they end up dying as a result. Now they didn't intend to kill them, but the provocation was there as a result of the fight. The other thing that's kind of the typical one that you hear about is somebody comes home and finds somebody in bed with their wife. And so they go start beating on the guy or whatever it is. And that's the sudden passion where you don't have an intent necessarily to kill but the person ends up dying as a result of that. There's cases down in the Wyndham County area. I recall one that one of our guys did where there was a fight outside a bar. The guy got punched in the head and fell on the side of the curb, hit his head and he ended up, the guy who fell ended up dying. That is another example of maybe the distinction between voluntary manslaughter and involuntary manslaughter. Involuntary manslaughter is, of course, very, is really a almost pure negligence situation where there was no intent to kill or even to understand that what you were doing might have resulted in the death. It's a mistake that results in the death of somebody else. And that's, to me, that I would definitely push that out of there. And I feel the same way about voluntary manslaughter only because the issue is not, the issue really is, what are you trying to deter in the conduct? You can't deter an unintentional act. You know, you can't, if the intent wasn't to cause the death or if placed in the same or similar situation, the death was the accident even if the act was intentional. You know, it implicates what we call imperfect self-defense type arguments where somebody maybe reasonably believes or they believe that they have to use a certain level of force, but they overreacted, you can end up in a question, you know, on the edge of voluntary manslaughter versus second-degree murder. If a jury finds voluntary manslaughter, if the police to voluntary manslaughter, what you're saying is that it's something less than a unmitigated attempt to kill or intention to kill. So, you know, I gave you some examples. I have said before that I think the manslaughter should be out and I understand second-degree, first-degree murder if it goes this route. And remember what you're doing here is excluding somebody from the opportunity to have, it allows them to get good time. You're not changing, you know, there's not a sentence that's being impacted. It's their eligibility for release at the time of, you know, with good time off the minimum. So, you know, that's the key. David, sure, is there a reason manslaughter was in here? If so, why should we keep it? Thanks, Senator. You know, the list was originally generated as one that was an attempt to focus on the most serious crimes in Vermont's, you know, the catalog of Vermont crimes. And in developing that list, we looked to the Big 12, but we felt that the Big 12 was actually too many and we wanted to reduce our reliance on those pre-existing lists. So, we took a subsection of the Big 12. There's eight here. A couple of them actually are not from the Big 12 but fall within the sort of category of the very serious crimes, including aggravated sexual assault on a child. The, you know, I think it's important to remember for something like this, these are still crimes where there's somebody has lost their life and somebody's lost a family member. And I also want to emphasize, and that's a very serious loss, you know, it's not, we're not talking about purely accidental behavior where there would not be any crime involved. And the other thing I want to emphasize here is what the committee is doing is a relatively narrow thing in that all they are, all you're doing, all you're guaranteeing that you'll do by passing this bill is that people who have already been sentenced and with a particular understanding of what that's, and the victims had a particular understanding of what that sentence was, the family members or the people who died in this case had a particular understanding of what that sentence was. Those people are going to retain the same sentence they had before. Again, in the future, the bill does allow for anybody to get earned good time. So I just want to re-emphasize that, that we are talking about past sentences here, not that this committee is going to drastically reform how sentences will be granted in the future. Yeah, okay. Anybody else who wants to speak on this? So Senator Sears, can I just say, so if I understood Matt right from before, the manslaughter sentence, is it true, Matt? It's only, but it's a 15 year maximum? Yes. So. $3,000 fine or in prison for not less than one year, not more than 15. Somebody could actually get a one year sentence. Jeez. It's not unusual in close cases like this to even see just suspended sentences. Even on the voluntary? Not so much on the voluntary. I mean, those are typically, you see five to 15s. The real serious, if it looked like, there's some that look more like involuntary manslaughter than voluntary manslaughter. And those are the ones that are going to get the five to 15 if they're voluntary. There are others that look more like second degree murder, but end up as voluntary manslaughter. And those are going to get the ones that are like 10 to 15 or like the higher, higher minimums. Either the victim's community members here want to speak or James Pepper. Are they all still on? I don't know. I can't. Sarah, I've been here. Sarah. Yes. I'll just say on what you have covered so far that, you know, we supported the bills that were identified by the attorney general, exactly for the reasons that the assistant attorney general outlined, that it was a narrower subset of bills, not the big 12, that these were bills that had really lifetime impacts on the victims. And I would concur with that. This is Chris Fennell. The list came out of the attorney general's office. It seemed reasonable. I am a little concerned because I thought this wasn't going to just be applying to pass, but also to forward. Yes. So it has no effect on somebody who commits first degree murder now. If I could just clarify. No, I will. No, yeah, yeah. No, it will affect anybody who does it now. We focus in terms of the expo factor and those other things, we focused on those who are currently sentenced. Right. But if the bill passes, it would affect everybody who's sentenced after the data. Actually, I don't know if it's the date of the crime or the date of the sentence. David. I just wanted to clarify it. The bill does contemplate a petition process for these crimes going forward. So everybody retains the ability to get it. They don't have a guarantee of getting it as the bill is currently drafted. But, right. May I ask David a question about that? This is Jeanette. So you just said that this would allow them to going forward to petition, but isn't that the same for the past? It allows them nothing in this, in what we passed before, says that anybody's sentence will be reduced. It says that the date by which they can petition for a or have a hearing might be moved forward or backward, whichever you want to call it. But it doesn't guarantee that they're going to be released. It just guarantees that they will have a hearing at which anybody can come and testify about why they should or should not. And I'm- You're talking about two separate processes. You're talking about the parole process. Correct. Somebody who's currently sentenced when they get up, come up for parole, they don't automatically get parole. Right. But he's talking about a petition process that would take place before the court if you were sentenced after the effective date of this and you committed one of these crimes or convicted of one of these crimes, you could petition to earn good time. And that's how the bill reads. But wouldn't you still have to then go before the somebody to, so you can petition to get the good time, but just because you get it doesn't mean that you're going to be released. Wouldn't you still have to go before somebody and have a hearing? Okay. That's my question. Just would be an earlier date that you'd be able to get the hearing than you would otherwise. But it doesn't guarantee anything, except an earlier hearing. Right. Yeah. So the question was, should we keep manslaughter in? No. One no. Two no's. Two no's. Three no's. Three no's. I'd say yes. I'd say yes with the fact that I'd rather it was just voluntary kept in, but. Okay. Well, it's three to one to one. What's the one that I haven't voted yet? I agree with you, it'd be better if voluntary were. Can't we just write it that way? Well, we could. But in voluntary manslaughter. I don't know. With three votes to take all manslaughter out. Oh, okay. Kidnapping. Peggy, can we move down a little bit? Thank you very much. Appreciate it. Is there anybody currently incarcerated for kidnapping? We do get those cases. I know I'm assigning them on occasion to the. Prisoners, I mean, to the serious felony units when they come up because of the potential for life in prison in them. A lot of times they are pled, they're charged as kidnappings and pled to something else. It's a, you see them arise a lot of times in domestic cases and sexual assault cases where somebody is held for even a small amount of time during the assault. During the assault. And then it's very hard to try to enhance or the state's bargaining power, basically. My question now was, is there anybody currently sentenced who would be impacted by it? I'm sure there is actually. There's not many of all of these. I mean, you're talking about a couple of handfuls. Maybe if you had it all together. Can I ask Matt a question? Sure. Did you say that there are cases where, and I see here that be that where somebody temporarily holds someone in some kind of a standoff or whatever it is and holds them temporarily as a hostage and then releases them that they can be charged with kidnapping? Is that what you said? Yes, because there's kidnapping and there's unlawful restraint and they're different charges. But oftentimes what you find, you can do that, but think of kidnapping, they kick up the Lindbergh baby or something. That's not, that is clearly kidnapping, but kidnapping also can be holding somebody for a small amount of time, literally some number of minutes. You can result in a kidnapping charge. You know, it's obviously serious, but they arise a lot in domestic cases and sexual assaults where the perpetrator is not letting the person go during the course of the assault and then you get a charge on top of your domestic or sex case of kidnapping to up the ante. I would support keeping kidnapping in. I would too. It's such a wide range, but normal. It is just, it's a wide range. I just would, well, if somebody is holed up in an apartment and they have somebody there and they're not hurting them, but they're not letting them go, it seems to me they shouldn't be being charged with kidnap, but if they eventually let them go, but I don't understand our criminal justice system at all. Makes no sense to me. It just makes- You do. It makes no sense to me the way we, the way we charge and treat and define things. And anyway. Well, this is what they're sentenced to for. Yeah. Well- So if they hold them for 15 minutes, then they're going to be charged with kidnapping. That doesn't mean- They may be charged with it. They may be charged with it, but what will they be sentenced to? Well. We're going to pick up here next Tuesday. I'm going to suggest that we pick up with Lune Lascivious Conduct with a child. And Eric, if you could just find out for us, I really need, it's been a while since I've gone over L and L with a child. You've got jury instructions and all of that, reporters notes. So it might be helpful for us to have a thorough foundation on L and L with a child. Because it can involve a lots of different scenarios, right? Could Eric send that maybe to whatever he comes up with to us in an email and then I can print it off. So because it's so hard for me to read it on the screen if. Well, yeah, I mean. Okay. I think that's going to be one of the. I already identified a to the section should not apply to persons less than 19 and the child is 15, but if the person's 19 years old and one day in the child's 15, there could be charged with L and L conduct with a child. Or if the child is 14 and. 364 days. Yeah, that sounds good. And also just on that point, you're you may recall that you used a different age gap in the sex offender registry statute. I only point that out to say that you can, you can certainly adjust that for purposes of the good time law if you wanted to. Without, without adjusting the underlying offense, I mean. Right. Right. I know I get. Right. If you could remind us of what we did in the sex vendor registry. Yeah, sure. I'll put that in the, in the. Summary. There's everybody. And are there any of the sexual assault. Versus aggravated sexual assault. You have to look at which we'd like to look at the definitions of each. Yeah. Well, that's what I'm asking Eric to do is a little summary for us. Yeah. So those ones in the, in the document you have are pretty straightforward. Okay. Much clearer than the L and L with the child. Right. So you can, you can see the sexual assault. It's just, it's limited to only two, two types of the sexual assault violation either without consent or, or sorry, three threat or coercion or placing the other person in fear that they're going to suffer imminent bodily injuries. So you don't, you don't have the same sort of. The city is sort of. Terms that are open to interpretation that you have in the L and L statute. Okay. So my plan. By then you should have your title 13 because Toby. Tony mailed it yesterday. Great. Thank you. So my plan is to take this up again next Tuesday. Same format. And hopefully my printer's out of paper. And hopefully. We'll be able to. Move this bill forward. One Tuesday. Or not. Mr. Chair. Oh, go ahead. I just wanted to say to reiterate my. Feeling I got a little confused about. What David share was saying. He was referring to it as the bill. Going forward. Included everybody. I understood the bill is introduced. To continue the exclusions going forward. Yes. And I had said that I could vote for something that was. Excluding retroactively, but not. Prospectively. So I just wanted to clarify that. Yeah. Yeah. You support dealing with those that have already been sent. But not those that. That have yet to be sent. Yet to be sent. Yeah. I remember that. Okay. Sorry. We've got some difficult decisions to make. First of all, what is the final draft look like? And then if we. Want to amend it further. Senator. Senator Bruce position or do we want to go forward with the attorney general's position? I just, I didn't quite hear Phil. What Phil wanted. You wanted to apply to before and after. No. So. I had asked the attorney general when he testified. Why, why it wasn't just. Excluding those offenses. And I just wanted to make sure that. I just wanted to make sure that. I just wanted to make sure that. I just wanted to make sure that. Where there had been an agreement. Prior to passage of the bill. On, on the length of the sentence. If, if the purpose of the bill was to. Keep good faith with victims. Because going forward, everybody would be informed. That all categories would be eligible for good time. Does that make sense? So you're comfortable with just going forward. Trying to. You want to do the past and the present and the future. I mean, a past. No. The bill does everybody who's sentenced in the future. As well as those currently. Sentenced. Right. The effective date of the bill. Okay. Well, I think Senator Baruch's talking about is only making it effective for those were a deal was made. The victims were involved. Yeah. In the future, the victim. Would know that formed. Yeah. Be informed at the good time. That the person might receive. That would be a different. There hadn't been an agreement. I understand. Yeah. Okay. That's. Good. We'll see.