 We're on the record, and we're going to try to get through as much as we can. S-234 may get held up today, because a lot of several people have asked to testify on life without parole. But I'm going to start off with Bryn to go through the latest draft, and then Skyler, and then we have, I don't know if Chris Menow from the Center for Criminal Services is going to be here. I don't think she can make it. And Regine here, if you have any other witnesses, we'll try to hear from them, but then we have some folks from the St. John's very area who are going to testify. So the morning committee for the record ran here from the legislative council. I have a new draft 2.1 of the bill to talk to you about. There's really only a couple of changes to this draft, so I'll just go through those. And so the first change is in section one. I added a new sort of phrase at the beginning there of subsection A, except it's provided in subsection G of the section. So that language is intended to make it clear that this new penalty section applies to any workers that were committed after that 2006 amendment to the statute for anyone who hadn't been charged after that. So we talked about that. That's some clarification there. And the next change is in section two. This is the consecutive sentences statute. This is sort of that section that is meant to deal with any sentences that are imposed back to back. So it's sort of a default life about parole. And I think there was a suggestion from the Department of State's to change this language so that it's clear that anyone who is 25 or younger when they commit crimes, rather than say that a court can't impose any consecutive sentences, it says that any aggregate minimum of a sentence imposed on a person who's under 25 shall not exceed 35 years. And that sort of makes it consistent with the new upper limit penalty for first degree murder. So those are the only changes to this draft. Okay. I would just reiterate that. I'm sorry. Go ahead. I'm just wondering about aggravated murder there on page five. Where is it? The last line on page five. Oh. So is the thrust of the bill now that aggravated murder remains a way to apply for aggravated murder? Yes. And I should have mentioned that the other change that I made was to rename the act to limiting the counts of life without parole because it would prohibit a court from imposing a life without parole sentence unless it's for somebody convicted of aggravated murder. Because that's been one of my concerns throughout, is that we're moving toward life without parole, but we're leaving life without parole on the table. So all you have to do in order to get life without parole is use aggravated murder as opposed to, well, take aggravated murder of a firefighter. So we created that crime and the only change it made is that it produced a life without parole situation. Before that, it was just the murder of a firefighter and that would have been under this draft that would not have been a life without parole. So it seems a small bit schizophrenic for the committee to be preserving that last line there which keeps a class of life without parole. Does that make sense? It makes sense to you. But my feeling is I have to listen to testimony last week that particularly from the victims, that it would be hard for me personally to vote for a bill that didn't have something in it. So, you know, we can change that, take it out to the majority of the committee once after we hear the testimony. But it was my judgment that it's still pretty, I mean, to kill a firefighter in the performance of their duty purposely and you prove all the intents of aggravated murder is still a pretty high bar and I don't know how many people actually have been convicted of aggravated murder versus other forms of murder. It'll still be something for the stage attorney to deal with. And if you have a truly horrific, all murder is horrific obviously, but if you have certain elements of aggravated murder, at least you have on the books a way for the public to deal with it and frankly it brought home to me by what's happened this past week when we look who murdered somebody who I knew personally who received at first a 17 to life sentence or 17 to 99 years and I've got 21 to 99 repeated failure on furlough and it just seemed to me that I don't think it was aggravated murder in his case, they couldn't approve that but that brought home to me if it had been, if he had killed both James Brilliant and his brother Patrick over there that would have been a double murder who knows what the prosecutor would have done so I have to ask for an answer and ask Rin to draft that this in that way and I'll hear from the witnesses I think Senator Rinneke also expressed a concern about not having something still I don't speak for her, that's my feeling I think they said there were 16 people 16 or 15 I don't know how many of them were aggravated I don't know how many of them were aggravated Right, they weren't Some of them just regular murderers Hard to say that I don't know how many of them are aggravated any murderers are aggravated but we heard from the victims last week compelling testimony on both sides by the way the guy from California whose son was murdered by a 14 year old who's changed the laws in California and we heard from Mr. Silver So it would be interesting to hear how difficult it is to charge and prove aggravated murder Well we have the list but I mean from the not from the list of things but from the practical point of view of the state's attorneys of how hard is it to reach that bar I don't know if someone shoots a firefighter off a ladder That comes under that right? Might be better to hear from witnesses and their thoughts on this proposal and then move forward and then make our decisions which we marked and built So, thank you for that Tyler do you want to jump up? Also, can you meet with Senator Kemp and I at 10? Yeah T.J. just talked to me about the other day The college is getting on him about it We don't want that? Yeah, we don't want him getting in trouble Skylar's helping me and the college are doing a diversity discussion with T.J. Donovan I think Susania is going to be Is it her name? Susania? Yeah, Susania I'm going to follow her I'm going to practice that by martial arts All of my town meeting we break I'm going to be pronouncing that name and you have another person Hopefully Reverend Thomas but he hasn't been able to get back out of yet We're trying to make that We're trying to make that And why is Brian Kemp in getting in trouble? Because he's working on a contact He's working at the college He's the CEO of the Center for Advancement of Public Engagement Public Action Public Action Capital Alright I know Bennington College better than you do That's true Yeah What was that? You have to excuse my voice is a little weak right now I was battling the flu last week but I'm good now The voice just remains I would not have put the state house at risk by bringing in the plague I was still under siege but for the record, Skyline Nash student activist is probably the best title I can think of at the University of Vermont I've been working on variations of this bill now to eliminate the issue of life without role alongside Tom Dalton from Vermont for criminal justice reform and our national partner Susan Lawrence for just over a year now and I got to tell you that this was not at the top of my list when I was looking at criminal justice reform and pressing issues I don't think it was for many people a particularly hot button issue that we were thinking about day in and day out but over the past years I've started to dive into the issue it has really risen to the top of that list for me not just here in Vermont but I think nationwide and it's been a very interesting process because we're dealing with the worst of the worst in terms of these crimes but what it comes down to me is our criminal justice system going to be acting in the interest of justice or what makes us feel better and I think that Vermont has an opportunity to be on the forefront of a change that I think is going to become more common practice over the next 5, 10, 15, 20 years and I hope when that time does come that we can look back and say that we were able to have the political courage or other courage necessary to do what I think that the data tells us and most expert tells us is best practice in terms of not just public safety but also justice you know I don't have I'm not going to go through the numbers and the studies that Susan Lawrence has gone through because I don't know them as well as she does and you guys have heard them multiple times by now what I will say what has been a sticking point for me is that I know many times over the past 100 years there have been crossroads in terms of us redefining what justice looks like and what justice is and what's in the best practice and interest of justice and I think those have been hard changes to make because they don't always feel like justice or feel like the safest decisions for us to do and they can be scary because these crimes are scary but that's what we need to put forth that courage to do what is really the best practice in terms of pursuing justice not just for victims not just for offenders and I really truly do believe that the elimination of life without parole wholly not even not with a cut out for aggravated murder it is really the best practice in pursuit of justice I don't have much more to say other than that a big thing for me through this entire period and I've evolved on this a lot of different ways over the past year is that it has never quite made sense to me once I started looking at this issue why it is so easy for us to trust the criminal justice system to tell us on a day of sentencing that this is a person that will never be able to return to society safely and we accept that but then on the back end it is so scary for us to trust that same system if it tells us that this person may have an opportunity to come back to society and be safe to me we can't have it both ways if we are going to trust that system to lock people up and throw away the key then if that system were to come back to us and say this is somebody that can return society and be a contributing member of society and safe to return then us denying that person a chance to make that case or have that opportunity is a denial of justice as well which is not always the easiest case to make but I think that it is the case to make and that's what it really boils down to me is that if we are going to trust this system we need to trust humble fans and we need to give people the opportunity to make that case Thank you I was talking to somebody last night who was on this committee in 1987 Mr. Bill on the death penalty is the death penalty that you had been ruled on the books and were ruled unconstitutional by the U.S. Supreme Court and so this then Senator introduced the death penalty in 1987 and what the judiciary committee came up with was life without parole so that's really the history of it. Prior to that there had been I believe it's still on the books but are not constitutional law regarding the death penalty I don't know why we don't get rid of it well you could do that here if you wanted unconstitutional I guess they never wanted to I don't really know why we repealed it I don't know but that lends myself to my point I think is that during that time I wasn't trying to argue with you I didn't know about that history until last night when I was talking with the senator and at that point we probably looked at life without parole and said great we found a solution to the problem and I think we made those compromises in terms of evolving of justice a lot of times nationally is there information on how the death penalty like without parole is used based upon race more rock I mean as with every aspect of the criminal justice system there are racial disparities but as Susan Lawrence has talked about they are extremely high when it comes to life without parole sentencing obviously that's not as big of a problem here in Vermont just with the people that we have currently serving it but nationally both at the federal level and then just if you look at the country as a whole there are large disparities and I think that while we want to focus on Vermont I have also during this process taken a national view of that I do think that nationally this will eventually become the law of the land but it's going to take some states to take that first jump as it has with a lot of other issues and so at the end of this one that is the case which I think it will be I would like us to be able to say that we were on the right end of this and we're leading the charge rather than following along with Pennsylvania or whatever state comes first and your thoughts on this draft um I mean like I said in my test you're an intern to this committee in different positions student interns if you'd rather not that's okay I feel comfortable in asking you that question yeah um like I said I would prefer a bill to come out of this committee that did not have a cut out for aggravated murder because I think that if we're going to say that life without parole sentencing is wrong we have to say that it's wrong in all cases we do have to say that it's wrong and that we are trying to slow a change that we I think are saying that we need to make by changing it for first and second degree murder but we're trying to kind of hedge that change by saying we're going to cut it out for aggravated murder which I understand has to happen sometimes but personally I would think that if we're going to say that it's wrong for first and second degree that we should also say that it's wrong for aggravated I just think it's important I like your analysis about the trust if we trust it on one end we should be able to trust it on the other end and I think that that when people when a lot of people hear this they assume that the person is going to be paroled but it's not necessarily right I mean there are some people that probably never will be paroled because absolutely because there yeah and there are probably he came up for parole several times and he was never released right so I think but I think it's important that people understand that this isn't giving paroled this is giving them the right to ask for it and honestly I would think that if we have you know the most violent among us in jail that the people inside jail whether it be their other inmates or the correctional officers are going to be better off if that person has the self delusion that they're going to be able to finally prove their case someday and because of that they behave a little bit better you know use some services to try to improve themselves that they may not have beforehand I think we're better off with that as well that's an interesting point alright any other questions thank you thank you very much do you like to testify both can come up at the same time feel free we just need your name for the record I'm Meredith Barry I can do this so it's hard to put on the spot I guess my cousin Melissa Jenkins 8 years ago almost I was murdered here in Vermont and one of the big persons is on life without parole right now the other one is not and I understand it's retroactive but if it wasn't it's not retroactive so she could still get out she could still the one who was sentenced to a period of who wasn't sentenced to life he was sentenced to life what was his name I don't know he was sentenced to life without parole for aggravated murder his wife was sentenced she was life without parole he was not he actually went to jury went to trial so she went to life so she cannot under this bill he could under evidently under the sentence but you just wondered if it was retroactive no it was not retroactive the bill as written now um there may be a court suit filed by someone to say that because this bill passed it should be retroactive but I don't know that it would be successful particularly if we leave aggravated murder in my first my first incident is her son those people took her away from our two year old in front of her he's now 10 and half done he when he's 30 and he could possibly be able to be out for parole and come out I don't know what her age it is I just can't imagine how it will affect him I worry for him I don't think he'll ever be out in my lifetime I think he could possibly in his I don't know so I fear for him and if you decide to take away what would have been for a first, second, aggravated whatever it is I fear for what the family would do if they got out I fear for my family I've heard people say let him out and then I would lose more family members it was to me one of the most horrific things I've been through lots of deaths I've had brother in law's car accidents I've had lots of people with heart attacks to cancer but there's no other death that you lose so much to murder which just doesn't explain anything and I don't believe that anybody that goes through whether it's first degree, second degree, aggravated it's murder you take someone's life I don't believe that you can be rehabilitated from it I don't think Ted Bundy ever would be I think of Elizabeth Smer who was kidnapped and when she was 14 in Utah and she was one of the 2% that actually lived through it after being raped and kept capital for nine months and she has actually spoken and said how she has forgiven her abductors and how when she was kidnapped, when she was raped when she was beaten if she lived through it maybe she would be able to forgive them but she didn't have the opportunity to live through it instead she was left with ropes and cement blocks tied to her and the people that do that should never come out again my family my children never should be out of the opportunity to see them again I don't know I'm not sophisticated as people in this room I don't know how to word it correctly I think you've done pretty good jobs my daughter is here to speak as well and she can tell the bad of me Are there any questions? I think you expressed yourself very well if you feel nervous that you might not have been my best speeches are always on the way home after I've given them so feel free Thank you My name is Jane Berry and I'm also most of the cousin and she was my godmother as well and I hope you don't see this as me just trying to play on to your emotions and anything like that so it was spoken a lot about how people who committed these horrific crimes should be given the opportunity to rehabilitate but my question is what is the quality of the rehabilitation in these programs the U.S. has the highest number of people incarcerated in the world even though we don't have the highest population the rate of reoffence is high so who's to say that the quality of the good enough for these people to be let out who's to say that the quality that they're receiving provides them what the necessary means to be a functioning member of society and also if they are given the opportunity to rehabilitate the people that they did this to are not given the opportunity to rehabilitate most of Jenkins isn't given the second chance she isn't given the chance to change where these people would be if I obviously am aware that they would not be getting the same like I know that these people would not be let out this bill doesn't apply to them this this is something that will happen again whether we like to say it or not it will happen again and the same situation should happen if this bill is passed where someone can be given the opportunity to rehabilitate the opportunity to change but the person that they did it to does not get the opportunity to change because they took their life to me that just doesn't seem fair and we also talk about the elements of aggravated murder is they took more than one life where in this situation that I'm emotionally attached to they did take one life they took one life but they impacted hundreds most of the kids were still here her son would have a mother her family members would be would still have her hundreds of students at St. Jack would have the ability to be taught by such a wonderful teacher and though this is just one case I feel there's something like this well it's down to happen again if this happens again and someone has given the opportunity to rehabilitate if you will then I feel as if it is unfair to the person that they did to the family members involved into the community and literally everyone else involved who would have to be out there knowing that these people committed such a horrific act and were able to rehabilitate themselves and become a functioning member of society and the argument also is that in all cases so because we're making this first and second degree murders the life without parole will be taken away if it's going to be for some cases it should be for all cases I believe that this type of crime is so different than other crimes where I think that there should be different yes there should be and it shouldn't be for all cases because there's different scenarios for each case so I would make it for all cases if each crime is on a different level anyway to me it just doesn't make sense more early or at all thank you very much I know how difficult it was for both of you to come there and talk about it when I talked to the brother of Jim James Brilliant on Saturday morning being re-victimized every time this guy's let out on parole that's pretty powerful so I understand whenever even the possibility of the discussion comes up of Mr. Prue being released I'm sure that will bring back core memories I don't want to be at all callous but statistically many people who commit murder are actually looking at their likelihood to re-offend is relatively low as compared to other criminal activity but such an early crime but it's truly particularly in cases where that's part of the reason that some people receive threats under current law that many people who might commit a murder don't get life without parole Mr. Prue didn't get for whatever reason I don't know I wasn't there I have no idea of the attorneys and the state's attorney and how they ended up settling that case and why that happened I guess he avoided going to trial you went to trial Virginia do you have any comments on behalf of the Senate for crime victim services if you don't that's fine I can I believe that Chris Fennel sent in her she sent in the testimony but the testimony that I got in my evening was only the bill it wasn't her testimony so that's confusing she may have said something because she said something about she said something late last night but it turned out just the bill late last night so I apologize I didn't make copies I'll just make sure I get it to Peggy later so Virginia Renfrew tore the center for crime victims and the Vermont Center for Crime Victims opposes S-261 our main concern centers on the possibility of parole hearings for the most serious crimes where victims of parole would potentially be re-traumatized it's important to provide judges with a discretion to welcome the parole for crimes that warrant such a sentence this discretion is relevant as well to cases where plea agreements reduce charges when a person may have murdered multiple people we encourage this committee to consider not remembering the sentence of life without parole at this time thank you for your consideration thank you the letter that you're thinking of was this one from the the network yes the network the network letter we've got but we didn't get the person's letter I just have it okay thank you anybody else who wants to testify on this excuse me can I speak briefly sure we didn't need to state your name for the record Susan Carr and I'm a retired victim advocate but still an advocate I guess I worked closely with Meredith and her family in the Melissa Jenkins case and I just want to briefly say it is so traumatic for the families to go through the murder the trial and all of that to have to think that someday there may be a possibility for the offender to get out is just overwhelming and it would be this burden that they carry with them constantly until that issue comes up or doesn't come up and to say that they have an opportunity to address the parole board is assuming that all the pieces are perfectly in place for notification and having worked in the system for a long time there's lots of places for problems with notification in the system to victims especially when a case is 25 35 40 years old so to assume that the victims will have a say when the parole hearing comes up may not be accurate so personally no maybe for a different bill we improved that system actually I talked about Saturday morning conversation with the brother of a person who got murdered who has been repeatedly out on furlough he's never made parole because the parole board is denied he was serving in 21 to 99 years sentence so he was out on furlough last week in bellows falls well I never got notified but his ex-wife the ex-wife of the victim was notified somehow he got left out of the notification so this individual had made threats against him so he was concerned that he was out I don't know how as a victims advocate if you have any suggestions we'd be happy to hear how we could improve that system you know I think that now this person will get noticed but maybe I don't know if you know senator benning represents any suggestions you have to improve that system of victim notification be happy to hear about it because it did fall down I guess this weekend last week unfortunately that's a conversation for another day because I'm offering an opportunity I would be glad to be part of that conversation but systems change within corrections from one system to another system something doesn't get moved into the new system and sometimes people don't look at a case and say this is a sexual assault this is a murder there's probably somebody who cares about it if the box wasn't checked they don't look well again I'm offering and I'm more than willing to be part of any discussion about that senator benning just so you know I didn't know that you guys were going to be here to testify this morning I did hear from James that you were going to be here Susan I got your email right after I got James 15 this morning every Thursday I'm wrapped up in another committee that starts at 8 o'clock which is why I couldn't be here this morning I humbly apologize for not being here for your testimony I would have made arrangements to be here with the other committee chair if I didn't know where I was looking to testify sorry about that well I was like getting here married with them where I was coming until last night it was last minute it was not scheduled but I would be glad to be a resource whenever thank you I certainly do anyone else any thoughts on this draft draft Joe has aggravated major changes that aggravated murder but still be allowed to have a senator to lighten up the role so I'll just repeat for Joe's benefit what I said before I think 35 years is a long long time and at the end of that time to say that there's the possibility of parole to me is nothing like a guarantee of parole so I respect the testimony that we've heard and I know it's difficult to begin but the original name of the bill was an aggravated to eliminating life without parole this draft really makes it more like reducing the use of life without parole and I think that's useful and I can vote for that but I feel that again what we're doing is preserving the concept of life without parole and it's just we're sort of agreeing to use it a little less so I suppose one possibility is that we could straw vote on the aggravated murder piece and as I say I can support the bill because I think it's better than what we have even in this version but what we were shooting for originally I thought was better still. There are two things, page 5 line 11 which I'd recommend not to exceed 35 years that we can debate whether it should be 25 30 whatever the idea behind that was that when other states have looked at life without parole they've left that alone and so if somebody a bank property then you have a murder of a teller and you have an escape from them attempting to elude and you get all three of those crimes and you get them to run consecutively you could effectively bypass life without parole and that was why you could do 25 years, you could do 35 years but it was that idea of that consecutive sentence and when Skyler first proposed this bill to me the first thing that Michelle Child said before she turned it over to Bryn was well you have to get around that problem so that's what this does so we could debate the number we could also do the reason for the aggravated murder I gave earlier I don't know if I mentioned it I just think it leaves the state's attorney with the ability and particularly a certain crime's ability to ask for life without parole when I first talked with my state's attorney about the bill she said we've never used it so I'm fine with it and then later on I discovered that she wasn't fine with it other state's attorneys weren't as well so this is an attempt to meet somewhere in the middle so if people want to express their for or against the aggravated murder staying in as the opportunity of life without parole I vote yes to keep the aggravated murder if someone is convicted of aggravated murder they could receive a sentence of life without parole which is what this draft has so you're keeping that in I'm supporting Phil with like a straw poll so I'm giving my vote to keep that in I'm getting confused now though as to what the question is do you agree to give life without parole on everything except the aggravated murder no you think life without parole for aggravated murder you think life without parole for aggravated murder let me put it I guess I've confused the situation page five line um no it's actually eleven is no line nineteen on page five section three do we have do you want to include section three which would keep the crime of aggravated murder where a sentence could be life without parole for aggravated murder so what I would like to hear is how what is the bar for getting to aggravated murder I mean I know I know that we got from this but what I would like to hear is the reality how how hard is it to meet that bar and if it's relatively easy will people will state's attorneys file aggravated murder a lot more so that's what I would like to hear I know that what the statute says but well we know that don't we so James Pepper department state attorneys and sheriffs there's eight aggravating factors any one of which can enhance first-degree murder, it's aggravated murder those factors any one of them needs to be found beyond a reasonable doubt so it's not oh this person was a firefighter so it's aggravated murder the defendant had to have known that he was a firefighter we have to prove that element that he knew that he was a firefighter that he was in fact a firefighter and that he was performing his duty proving beyond a reasonable doubt which is the highest standard that we have the highest burden of proof that we have so take the case of Melissa Jenkins one person received aggravated murder one person received so I think I'm looking at the factors I think that there was perpetrating or attempting to perpetrate a sexual assault I don't know that I okay you may not maybe it's not good to go to a specific case so what would you need to prove to get the aggravated murder if it was not a firefighter corrections officer supposing somebody killed two people or more each one of these factors has essential elements to it and we have to prove each one of those elements beyond a reasonable doubt I mean it's not it's that simple but it's not easy I mean you know a jury has to say I mean we have to show there was multiple people that they were premeditated intent to kill both of these people and that both people did in fact die and that you know the jury needs to find all of those essential elements beyond a reasonable doubt okay so in the talented case I can't remember if she did she get aggravated I believe she did couldn't remember if she did or not because her intention was to kill the first one I don't think her intention was to kill the second one I mean I know that sounds pretty stupid but he just happened to come on the scene and in her state of mind she had killed his father and so so I mean you know this these are murders that as you've heard impacts a huge a broader community and you know I said in my original testimony that these are the kind of murders that make people not want to go into public service if you're a firefighter or not want to help out a person that they know which was the case we heard about today and and that's the kind of reason why a targeted murder probably deserves a certain special distinction you know it's the most horrific crimes do you James did you testify in this already on the amendment no but you know the state's attorneys have a strong preference for leaving life without parole in all cases certainly have a preference between the original justice for this for the amended bill it was our suggestion on the kind of de facto life with that the highlighted language that you have that I would be adamant not exceeding 35 years that came from our and that was to avoid what the original bill did was just said anytime that there's multiple charges, multiple convictions you can't have concurrent you can't have consecutive sentences and I laid out a few scenarios I think for the committee where that actually discourages sometimes cleaning down a felony to a misdemeanor if you have another misdemeanor also so that was one of the most horrific I was just looking at Charles Gondola he was the one with Bacon who Gondola was ringmasters I recall that was the murder they were on a new thing they were on work release a work crew and they murdered that couple Gondola they murdered him the teacher from living you're thinking of another guy who can't remember Gondola received 72 to life Bacon who was less involved life without parole I can't explain it I'm just saying that sometimes I don't know what that means for this bill but it isn't always obviously 72 years to life is a long minimum each judge goes through the kind of four pillars of sentencing the purposes of sentencing I suppose I don't know how old Gondola was 20 so it was like when you're turned 99 you're eligible for parole I suppose I mean it's just that's how the system dealt with those two cases and the best of my knowledge Gondola is still out of state and not in Mississippi I remember his Gondola was about 17 and 18 82 he was 37 in 2002 that would have been right then or the court really I met him much he was in other trouble long before this well it brings it's an old case but it was done under that new law writing late without parole but I find it state's attorney's fashion sentences no matter what our law is so can I ask James I haven't been here for all the testimony this morning you know you've provided some language for this amendment it's still your preference however to leave the law just the way it is that the state's attorney's yes I mean it's not universal it's the state's attorney's but yes so is that helpful yeah so we're still at the straw pool and I'm the only one that's voting well I think Phillip has voted well I would you know I would prefer to take out Section 3 I think as a consistency I would prefer to take it out but as as a coming to some kind of middle brown I would I would support leaving it in although philosophically it doesn't make sense to me but if those are there are very serious I guess what does that vote mean that vote means that I would prefer to take it out but if it's necessary to get the bill passed I would leave it in that's what that vote means Ellis is calling the question right I mean I'm not willing to take it out I'm not willing to go to letting somebody off hopefully against the bill no matter what not absolutely sure I mean I think I won't look at that list again and also I have to admit you know horrific murders where there's you know premeditated is horrible situation that happens for instance somebody's torture to death that would be a hard time with saying that that would be aggravated yeah yeah well is it right on the list as that you want time to look over the list I'd like to look at the list but count me as an old at this point I know I'm taking out I mean I know on the bill alright as well with the bill quite frankly I see this as an improvement still we know on the bill all together so you are know on the bill all together you know one of my thoughts is if somebody has been rehabilitated which I agree some people have I mean you also see people in prison who do find things in prison in terms of helping their fellow man those persons who have been rehabilitated work within the system I mean one thing we did check on the person we heard from California Montlau does not allow a governor to commute a sentence a governor can pardon a person like the guy we heard from California and I doubt if a mont governor is going to pardon a murderer unless they want to act like that governor of Kentucky who got thrown out beside pardon a whole bunch of people so a governor in Vermont under the company we have to take the constitutional change to give the governor of Vermont the opportunity to commute a sentence to change any sentence something that I'm not sure about talking with Sarah George the self state attorney in Chittenden County evidently a state's attorney can change a sentence can change a sentence I'm not sure how that happens but she says she I don't know how she did a sentence reconsideration in seven days of the sentence but nothing like what we're talking about here I don't think there's any way under current law to to commute by any there is a way to get a re-sentence but one of those cases going on right now a case going on now where the state's attorney is well it's been brought up as somebody's appeal and then the state's attorney maybe it's just in negotiations agreed to in an appeal if the individual appeals I suppose well it was rather than going through with the appeal but anyway I'm happy to hold this off till next week if you want to look at it think about it but it would appear that there's as of today there's three votes to approve the bill if aggravated murder stays in I wouldn't vote for the bill without aggravated murder at this point then I would vote for leaving it in because if that's the way it passes thank you for the straw pool no thank you well I'm assuming you vote for the bill if it has aggravated as I said I think even with that in it's better than the system we have and the 35 years we could discuss that that's not a big deal to me I just you know think there needs to be I just want to avoid having the court just override it and give somebody such a long sentence that they would never know like somebody got a 400 year sentence to life yeah that's what it's all about the newspapers right well thank you all very much think about it thank you thank you thank you thank you thank you thank you Eric has an exciting amendment to this bill that I'm thrilled about I'm excited about it we should all be excited about it it's full of diversions awareness yep all that and more yes good morning everybody Eric good morning Eric I think we're well good here with the office of legislative council to talk about and walk the committee through new strike all amendment to S-234 which is the judiciary miscellaneous bill you probably notice already that it's substantially lengthier than it was the last time you looked at it yep and well now this version 10 pages long it should be 26 the one we're looking at 26 pages it's right here she just passed it out well she just passed it out and laid it on on top of everything right there right on the corner I think thank you either she forgot me or I put it somewhere else thank you 26 pages yes draft 1.1 of S-234 yep I mean I presume that everything's so the first actually six sections of the bill all do the same thing you notice each section you'll see the change of the word abuse to awareness happens throughout the first six sections of the bill and this does is a proposal from the attorney general's office that and the office of court diversion programs and the issue here is that the program is currently known as the youth substance abuse safety program evidently there's some young folks who have been talking to participate because sort of concerned about the name implies a stigma or that there's a substance abuse issue with their may not be an individual cases so the good response so that takes you right up to page seven yes thank you although actually yes on there is another actually Senator should I just change this so that takes us up to page seven to see section seven there is actually no change to that section anyway that's the same as it was in the original section just to clarify because I think minors in possession of all beverages the teen alcohol provision is prosecuted under title seven the teen alcohol statute not under it's counterfeiting more serious statute but no changes to that so section eight this was a piece that was requested by the court to address a problem that's going on in the judicial bureau that's based on the way the language is written see line ten line eighteen line four all the same thing using the language admits does not contest or deny is evidently leading some persons to plead no contest thinking that they're still going to be able to contest the ticket later on now realizing that when you plead no contest it means it's really an admission well it's not an admission of guilt we are able to contest it later on languages change to clarify what the what the language is going to be on the ticket so people aren't confused into thinking that they're pleading one thing when they're not they'll still be able to be clear to them when it is that they're going to be able to appeal so that's the reason for the language change in section eight sections nine and ten part eight nine twenty you're going to take that line sorry line twenty once you're limiting it to females her or she her or she alright thank you yes I think that it is limited to females definitely being constitutional this is part of our this year women having a parade on 22nd funding of $20,000 what what are you talking about the suffragettes anniversary the 100th anniversary parade you can't call them suffragettes any more apparently you have to call them suffragettes whatever suffragettes suffragettes suffragettes suffragettes is a diminutive ETT is a diminutive which means that I'm diminished right what page is that the typo that's on page eight line twenty nice cats on your back thank you it says her or she I think you should say he or she I think so big patch alright the next change is over on page 11 and this section was actually in the bill in the first place and that has to do with a request from the department of state's attorneys and chairs you may recall there's a concern there's going to be a loss in federal grant money it has a way in which the timing is set for HIV next week frankly maybe just back it's very important to the senator important lose that funding this funding replaced unfortunate reductions by the senate for crime victim services if you remember senator senator pepper James pepper from the property attorney's chairs I would just add that that's with the compliance officer department of justice and she said that this language brings us into compliance so we wouldn't sacrifice any funds great great idea whoever came up with that idea to do that change the language it's actually me oh my god thank you the only change to that section you'll see is there was a couple of changes but there's some language on line 70 to 18 and the same language changed on line 15 and 16 on page 12 this was to to clarify when it is that the court may sorry when the victim may obtain the order for testing the original language evidence of guilt is great judge guruson and defender general and I think pepper as well all thought that should track rule 41 which weren't language in the rules of criminal procedures so I ran that language by that got the concept better so everyone would find out the language here that more closely mimics the standard that's used in the general requirement I'm going to mix up here what bill is attached to this in terms of the original bill versus all of this say that again turn it where did all of this come from that section may have been numbered differently because I had to re-number when we added all these new sections but it was in the original bill with that I did change on line 17, 18 page 11 so the section was in there but that might just be changed a little bit I have a problem I'm just wondering when I have it from this one the numbering has changed so bill is introduced that's where we are now there's a lot more to it it's a lot heavier six pages more but it wasn't from another bill correct, not in that case not in that whole case increasing the size of the bills onto the next there may be one that was imported from another bill but I'll mention that when I get to it but everything else is just taximony that you've heard people were making requests so speaking of sections that are added that takes us to page 15 section 13 what I did for any section that is newly added rather than having the whole thing for the most part I just highlighted the section introductory language for example line 1 page 15 that was highlighted because that wasn't in the previous bill and this reflects this reflects a request from the Attorney General's office has to do with the fact that risk assessments the way the language is phrased right now risk assessments do have to be offered to a person who is unable to post within 24 hours of lodging but according to the testimony these risk assessments can't be done because the prosecutors don't have access to that sort of information so they can't be done, they're not being done as a matter of practice either they still get the need screening so the need screening isn't changed they still get the need screening but the risk assessment so the risk assessment language in the title of morning 2 is that still covered under this section in sub A or sub C that we don't have in front of us that's a good question it may be that that should be struck as well so let me double check the rest of theva that you can see I've paid four of these Oh I know Section 14 and 15 both these were in the court's proposal to clarify that a person's criminal history records can't be expunged until they've paid court surcharges and this is consistent with other provisions of law that prohibit expungement until various fees or surcharges and the restitution have been paid is making clear that search artists have to be paid as well before expungement can happen. And that's the same. That's section 14, section 15 as well. Section 16, this basically is a permission for the probate court to allow a will to be valid, essentially to be admitted as valid if there's no objections. When one of the witness testifies that the will was properly executed. So if there's no objections, there's a bit of a streamlined process for allowing the will to be admitted. And that doesn't mean that every provision of the will is gonna be valid and it goes further on but just to admit it has the valid will. You can do it if there's no objection and this is the new age, 18 lines one through five. I see that? Line six through seven, although it's moved, that's actually still in, that's just a repeat, it's in the statute at the top of the page. But the new provision is subdivision one. It allows the will, upon the testimony of only one of the witnesses, if they testify of it, it was properly executed. As long as there's no objection. You do have a time for that too. All right. Line four executed as provided. Oh, thank you. As you can tell, this has not been to the groupers yet. It was not late last night. But that will obviously happen next but thank you for catching that. We already talked about the 10,000. Yeah. Yes, exactly. And I finally after, we were sort of trying to understand how that worked and after further exploration, I understand that the way it's drafted works, well, adding the existing section. There's no need to make any changes to the way the language is set down in the existing provision of title 14. So it just offs the amount. So that the superior court doesn't have to approve settlements of $2,000, $2,500, $3,000 that their supervisory requirement, their approval requirement doesn't kick in until it's a settlement that's greater than $10,000. We're new to have a break in 10. I don't know what the committee wants to do. We can go to at least get the walk-through done and take testimony after the break. Yep. Sounds good. So that brings us to section 20 and the rest of this is gonna go pretty quickly, I think anyway. This is just a change because there's a reference in the child support statute to parent-child contact. But parent-child contact is not decided in child support. Child support, how much money has to be paid in terms of support, not if not to do with the actual contact between the parents and children. So that's removed for that reason, it's not relevant there. You'll see that in sub division 20, sorry, sub section 21 is in the mental health proceedings, which sometimes take place in the criminal division, sometimes take place in the family division, right? But the statute says criminal division only, that's not accurate, so it's changed to superior court because sometimes it's in one division, sometimes in the other, depends on what stage of the proceedings you're at. Section 22, this actually is new. This was a provision that cut added last evening. That was meant to be included earlier, but there was an oversight. So it's in here now. I think Judge Gershwin will be able to explain a little bit or we'll both explain it a little bit. Yeah, I don't know. My understanding of it is it's a request from the judiciary. There is a problem with the, I almost thought that as a coding error. But I don't know, it is something to do with the entry of information in the judiciary bureau, and they're not able to do it properly with respect to admissions. Somehow, with the statute being changed to incorporate admissions, then they will be able to do their data entry properly, have it correlate with payment and fines to the bureau. Sections 23 and 24, this is the two pieces that did actually come in from another bill. 23 and 24 came in from the corrections, the general corrections bill that we were looking at earlier this session. And this has to do with when the Department of Corrections has to provide separate facilities for youthful offenders. Under current law, you'll see, and this is on the top of page 22, under current law, separate facilities have to provide for offenders under age 25. If I see that, line one and two, that's existing law. The proposal is that appropriate facilities would still have to be maintained for people under 25, but the separate facilities, you go down to line five, would only be for folks under age 19. So there's a lowering of that age as to when the facility has to actually be separate. Then- And separate, me and Sighton, is that right? I believe so. That's an issue that we're gonna deal with in another bill at some point, because when we talk about the closure of Woodside, that's an issue because if you close Woodside and you presume that an 18 year old kid is gonna go to 17 year old or an 18 year old, we pass this law, well, can you close Woodside where the 17 or 18 end up at the four bed in Marble Valley? The current interim commissioner of corrections does not want that to happen. He says that no matter what you do, you shouldn't be holding that age group in prison. But if currently there's a 15 year old at Woodside, so to use that example, you close Woodside, that 15 year old would require two correctional officers round the clock, which would probably total four or six of them to supervise that guy in a motel or that kid in a motel. I don't know if it's a guy or a boy. So that's something that we're gonna talk about in the Woodside when we talk about the bill we had yesterday when we get to where there are not you close Woodside. The juvenile justice bill that we talked about yesterday with Ken Schatz, and we're gonna continue that conversation, but that is one of the considerations. You know, I'm fine with this in here, but if in fact we choose that we don't wanna hold kids in Marble Valley in that four bed unit and you close Woodside, you have a dilemma. We have a little bit of testimony out, but I support this change. This is consistent with what the raised the age didn't. Yes, and as the next step. Actually, I'm wondering if those two shouldn't be in that other bill actually. Right. To be consistent, that's the issue is there. I think Prince doing that bill on juvenile justice technical amendments. We took it up yesterday. It's actually S-232, so that these sections probably belong in S-232. Okay. So that we're consistent, whatever we do, we'll be consistent with that bill. Sound good. I'll follow up with her. Yeah. I'll put those sections in 232. But this makes perfect sense to me. So then we'll skip section 24, move over to section 25. This is a proposal also from the court and from the probate judges association evidently. Right now there's a language that allows for a fee to be charged that actually probate division does not have jurisdiction over those cases. Those cases are in civil division. So since settlement of these minor cases doesn't happen in the probate division doesn't make sense for that language to be there providing for a probate fee in those cases. So it's struck. Bank that I probably say since probate court not open to business, they're working hours. Working people we want to keep those minor cases in another court. The next section 26, also purely technical. You see in the existing law on page 23, line 19. There's a, see that line 19, the very first phrase there, guardian ad litem. So the guardian ad litem is already permitted to inspect files, notwithstanding the general confidentiality version. But for some reason, the same person is repeated again and it's just the next subdivision later line two of page 24. They're not trying to sneak in or name change for gardeners. How did I know? We gave up on that. Section 27 is the same concept I talked about earlier. Again, this is another provision around expungement and sealing of records, making clear that in this case, the sealing of records and juvenile cases doesn't take place until restitution and surcharges are paid. No change to sections 28 or 29. Section 30, this is a repeal of, this is also requested by the court. This is a lengthy chapter in title 12, sub chapter rather than allows for voluntary arbitration and medical malpractice case. Remember, nobody's ever done it. Since 1975, I don't think it's been used. It's a great idea to set me up. Right. I can just leave them now. Wow, they probably had long debates. I'm not done. They were debating health care and action and medical malpractice. Line 15, is that supposed to say section 29? Is that? Line 15 of? On page 24. Because it's section 28 and then there's section 30. Is that supposed to? Actually no, that's an interesting, it's a confusing way that because section 29 of the bill, which starts on line 13, a man's section three and see that, that's why that's indented. I got it, I didn't see that section. It is, it's always visually confusing. Yeah. Lastly, this is a new provision, section 31 that the committee may recall discussing but we hadn't had the language in front of you yet. So I worked with David's chair on the language from the Attorney General's office and again this basically establishes a reinstatement fee holiday program that allows people to get their suspended driver's licenses back without paying a fee. That's the general gist of the program. It applies, I'm sorry, it's in existence for a month. You see line seven to eight. The application period is during September of 2020. Available to anybody who applies for reinstatement during that month and if you do, if you apply to the Judicial Bureau, this is line 10 for reinstatement during that month, you can have your license reinstated without paying any fees. These fees that would be waived would include, this is line 14, the DMV reinstatement fee, any fees imposed by the Judicial Bureau for failure to answer the complaint, failure to pay fees and any surcharges imposed by the court. So all these fees are waived and the only thing that the person would have to pay you see line 19 of page 25 is a $10 document. Is this for all suspensions? No. Suspensions that are not criminal. Right. That were not a DUI. Right. Right. That aid. Carlos is negatively criminal. Right. But it's for fines. It's for fines and surcharges and the reinstatement fees. Shouldn't that be made clear? It just says permit, whose motor vehicle license has been suspended. I don't know. When we get back after the break we can talk about what should be clear. I also want to consider that on October 1st all licenses have to be real ID in order to get on an airplane. And we might want to move the dates to like August 15th to September 15th to give people time to make sure that they had a license suspended and they want to get on an airplane. They're going to need a real ID to do it. Which may give some people an incentive to do it. So, then they might, motor vehicles might need time to just have this system. I don't know, but that's just a consideration. I saw the ad yesterday. We had about being a real ID at first. After October 1st to fly, you have to have a passport or a real ID under a federal law on your license. That means if I want to go visit my daughter I better get rid of my little green cracker jackpot. Yeah, I don't, maybe I'm using the wrong term. You have to have a certain license. So, to get a real ID, is it enhanced, driver? Maybe it's enhanced. I get confused between the two. But you can't fly with your hands over seats. No, you have to have a real ID, a real ID. You have to have a passport. Password, passport. Yeah, you can't go to Europe, you have to have a real ID. No, I'm going to go to Canada or Mexico. Right. So, the question on the last page. Nope. Says the public education required by the subsection is showing food encouraging program applicants to check all DMV records. What do we mean by that? Well, if there's an out of state suspension, say you had your license suspended in Vermont, and you also have a suspension from Massachusetts or New Hampshire, there's nothing we can do about that. But, at the time you're taking care of your Vermont suspensions, you may want to take care of your New Hampshire or Massachusetts suspension. So you need to check the record to make sure it works. But, I mean, this makes it sound like they have the ability themselves to check DMV records. They're just going to go to the DMV and say. And David will explain that to you. That's as simple as voting. But I mean, it sounds like the public education campaign should encourage them to do something besides going to the DMV and saying, what do I do? I think the idea is that if somebody were to go to the judicial bureau, say. Yeah. And not the DMV, which is a possibility. They would want to check DMV records for the purpose of the center. Sears mentioned it also to make sure that every ticket that was assigned to their license was being checked because sometimes people, names are spelled differently or people have changed their names. So if you go in with us and say, hey, such and such name, I want to pay off all my stuff. It might not actually get every ticket that's assigned to you. And DMV apparently was saying, we're discussing this. That is a real issue that comes up. It was that they were really wanting to encourage people to check with them, even if they go through a different avenue, to make sure they get everything. All right. We need to discuss this. But. Let's discuss this more after the meeting. Yeah. Yeah. What? We'll do it. Take a break and then come back for discussion. Yeah. We've done the walkthroughs. I thought that's what you said originally. We've cleared the walkthrough. Yeah. Our first time. Yeah. I thought that's what you said earlier. Yeah. David will testify next. Yeah. Please. Grilled. You know that. What time are we coming back? 10.30. Isn't she? 10.30. It looks like you're there. Peter Stirling wants to talk to a couple of you. David, Senator Nithka has a number of questions. She's not here. Okay. So I guess we'll just agree for that. Just a little more than a question. I don't know the answer. My kids counseled too. Yeah. They also didn't go to the lawyer's. I don't know if they went to the doctor. Okay. We're on the record. So we're still on through to the lawyer. We're still on 2.30 or more until 11 a.m. and then at 11 a.m. we're going to switch back to the insanity defense. So you want to explain your proposed amendment? Sure. So I wouldn't say it's hard. It's really your brain job. Thank you for that. David's here with the Attorney General's office. So I think Attorney Fitzpatrick did a good job of giving an overview on it. I mean, the basic concept here is to have a month where people can come in and wipe out their old fines without having to also be burdened by the main statement fees that come along with that. And those fees come from both the DMV and the Judicial Bureau. And we're just trying to get as many people licensed as we can. I think we all agree on the policy behind that. And we're trying to be safe over the license and ensure drivers. This is a way of doing it. This does result from a meeting we had that included DMV, the judiciary with Judge Berson was there, and Joanne Charvino from the Judicial Bureau, David Evans from DMV, and several other people who would be involved administratively at rest. A couple of ideas that have actually bubbled up this morning would be to get rid of the fine altogether and just have an administrative process where we could pretty rapidly wipe out. Because the fine just isn't, we're not talking about an amount of money that's all that meaningful. You mean the $10? Yeah. And so one idea that just came up, and this hasn't really been vetted through the group yet, but it could be that we just have no fine at all and use an administrative process to wipe out the fines that followed in this category, suspended for non-criminalite. There had to be some effort to communicate with people to make sure they know that that happened. But those are issues we can think of. So those are a couple of ideas that have just come up, and we can work on refining this more and keep working with that group. Three questions I have. One is, how do we know this is just for civil, I'll call it civil, that somebody who has their license suspended for DUI is not eligible? I think that's a good point. We should clarify that in the statute. I'm sure it was counsel, but I feel like it's official and defined already. But I think it's probably a worry to make that clear. So we can amend that. Second question is, I know that I'm going to get pushed back from my town manager. He's going to say, well, you're taking away my fine money from my town. It's already down. So somebody who has $800 in fines, surcharges interest, they're not going to pay it. They've been suspended for a year. Clearly, what about the person who's suspended? License comes up on August 31st. And now all of a sudden, they can get rid of their fine. Should there be some kind of a oldness to it? I don't know how to put it, but it has to be more than six months old. I suppose that that could be a safeguard on that. I think that it may be kind of unfair to me who's going to pay my fine or somebody next to me to just walk in and who got fined $250, including all surcharges and just get away with it. Not have to pay anything because they were lucky enough to get fine during the month of September. I mean, I'm speculating a little bit, but it would be something that would really have to be clever and Fred the needle just right to they have it all the timelines work out so that they know they're going to be suspended during this month. And then they wait, go under suspension, and then get out from under the ticket. I frankly think it's unlikely that somebody's going to do that or even know enough about the timelines to be able to gain the system that way. Well, but we're advertised. But you would have to put, again, the timeline. You have to make sure it's not like you get the ticket and go under suspension. There's timelines that precede them into place. So somebody would have to calculate it correctly if they missed the month. Then now they're out the other side and they're just sitting there with a suspended ticket to pay everything. And frankly, the timelines don't always happen exactly as they're advertised, because there's mail time that happens. I see the point, and I think that's something we could do. I don't see there being a big risk of scoff laws, because I don't think it's actually that easy for somebody to do that. And the group for simplicity sake felt like it was easiest just to say, let's forget about those sort of system gamers and just say blanket. I don't know about the time of manager, the local government that we're losing our client money. I think everybody agreed in that meeting that the collection rates are low for this type of stuff. You're not actually talking about losing much money here because you're not getting money now. And that came from DMV, too, and they can testify a little bit more expertly to some of the collection rates. But the reality is, both with the general reality, the people who are under suspension for a while aren't likely to pay. And also, apparently, with some of the legal changes more recently, it's made the collection rates go even lower. So you're not talking about a practical loss. You're talking about a non-collection either way. So so far, Alice, you've talked about how to make it clear that it's not a criminal license suspension for a DUI or Carlson Necklin's tribe, but it's criminal. The second thing we talked about was whether or not there should be any fine at all. Currently, as it's drafted, on May 19, if you had 10 tickets, you'd pay $10 a ticket or $100. It would be the total fine, and maybe there should be no fine at all. I mean, in terms of just the general public thinking about this, in terms of there's surely an issue, no, there's not much. I can't hear you right now with that door open. I'd like the $100, I mean, as people are getting into this gift. Well, yeah, assuming they have 10 tickets, I don't know. Yeah. It's taking some personal responsibility. I'd like your idea of a delay, too. If someone, like the more recent person, doesn't just jump right in. And even though that would be rare, the perception of the whole thing would be. Well, let's get a testimony from DMV about whether that could happen. Could I ask a question first about the $10? Does it cost more to process the $10 fee for everybody than it would be worth? I mean, do we end up collecting about $3? I couldn't add it. OK. To further, if you disagree on DMV on that, I don't know about the cost. Any other thoughts on this? I would? Well, yeah. Well, that's DMV. I would like if you would send us out to DMV and any other parties that aren't in attendance today and set up some time next week for comment on this. Then I want to, after we've finished it, I want to run it by the Transportation Committee. All right. Thank you. Is there any other comment today? Are there any other judges? I'm just going to talk about what you mean. And I would want to clarify that it's for a traffic violation. Right. You were talking about the center suited the dates of the period two, if you want to change it to August 15th, it's a term for two. I think obviously, in line with this thickness, actually I'd like to hear from the actually could actually do that question. If somebody was to pay off their fine or get their license reinstated on September 30th, would they be eligible to get a real ID on October 1st? How long would it take for others to take a week for their process, for example? So that's their DMV questions? Yeah, really. I don't know how long it takes for them to work through the system that the person's license is no longer suspended and is now they're OK to go get a new license. So do you want to set up, have them come in next week to respond? Well, but I would like them to get it. Mike Smith is probably the person to send the copy to. He just, yeah. He is. Is it Jake? A little bit from you. Is Jake still there? Yeah, still there. Jake may be one of the testifying judges. OK. Judge? Just briefly, Brian Greerson, Chief Superior Judge, testifying with respect to S-234 draft 1.1. We've seen the draft. I think the committee looks like all of our requests have been incorporated in this most recent draft, the exception of the section relating to judicial evaluation to understand the committee's position with respect to that and will decide, I guess, whether we're going to continue to pursue it otherwise. But I understand the committee's position and thank you for putting everything else in that draft. With respect to the fee holiday, I've written to folks internally in the Office of Judicial Bureau my immediate reaction to it is if you're down to $10, I'm wondering if it makes more sense to eliminate any payment and just allow the Attorney General's Office to provide the court with a list of cases to be dismissed. We make an entry and we're done with it. And I mean, to the effort to process a $10 payment doesn't seem to make any sense to me. But I don't know internally what it would mean to turn this into a dismissal. But we then wouldn't have individual petitions. Attorney General could get the list of cases that are applicable from DMV. Here's a list of whatever it is, 100 cases, send it to the court. And then you send the letter to the person saying it's good. Or somebody would. I don't even know that. I haven't gone that far ahead. But people would still have to do something affirmative in order to take part in this. I mean, it wouldn't be like the lines, but it'd be like the, maybe I'm just understanding. They still have to do take some personal responsibility by at least contacting DMV, or what do we envision here? I know when they did it in Chittenden County, there were lines stretching out to the screen. That's because if I understand how that process worked, they declared whatever it was, amnesty, and came in. And there was a reduction in the number of words that were payments processed. It involved the court in approving agreements. And so there was some significant amount of work involved in that. This, all I'm thinking, and I may be wrong. That's why I'm waiting to hear back from the judicial bureau is that if you're doing all of this work for $10, maybe you should just dismiss the cases. And then it's from our end, the central entry system, that they're dismissed as far as how people get notice of this. Let's have some time to talk with the judicial bureau and how they've been about this idea and see what would be involved. Is there going to be pushback for the state's attorneys? These are not criminal issues. I mean, to be honest, they become criminal issues if you get a number of tickets in a certain number of years. And these are the lowest-level prosecutions, lowest-priority prosecutions that we have. So I don't see why the state's attorneys. I mean, I'll reach out to them with this language, but I don't see big pushback on this. And I know when this was first being discussed before we saw it in this form, I think someone was putting together a fiscal impact information for the committee. I don't have it with me, and I will find out where that stands. I don't know who would do that, David. We should invite them, too. I'm not sure. Who gets the money from the fund, the searcher? Oh, for these searchers, I think. It's like the technology fund is what Dan's going to tell me. The fees go to the technology fund. The searchers are just the same, right? You can talk to the victims groups. And the technology fund is what, in part, is paying for the new case management. Another was built into requests for case management. If they don't get paid, you don't get the money. Right, right. I was going to say that they don't get paid. So that's why very little that you would end up with, because they're not going to pay the fines anyway. I'm not sure if I have a fiscal impact. Make sure the committee has it. Katie, would you make sure that we take this up next time, next week, that we ask the victims of the network? Just? VGCC, I think it's the center. Center for Crime Ridden Services. I know that the local government will probably have to push back. They're in town today, too. Well, they're not testifying today. No, but I mean, they're around the building. But we probably should contact the leaders that he's in town, too, so they can give their testimonial. Thank you. Thank you. Yeah, go ahead. Just for the mechanics, is it the bureau that would dismiss these? Yeah. So maybe it wouldn't need to even involve the EG, right? People from the EG would know. And I'm thinking out loud that we're talking with David. Probably the EG could go to DMV to find out, get the list of people that these are only civil tickets and not the criminal violations. They would have that list, and they'd break it down by county where these tickets are. And then send the list to, let's say, Washington County. Here are whatever number of cases. And the state is requesting that they be dismissed. Then we would do a computer entry of dismissed. Thank you. Would you also get that? I've got to talk with you. OK, so we're going to see how it works. It may not be as simple as I explain it. We're on DMV for this $10. We've got somewhere where I put it. Processing an individual to do that. Yeah, that makes sense. I'm just going back to what I was saying. It's a lot of this bill. How are we going to rate now? The tape, it has to go in and apply. I know. How do we do that? That's what I've got to talk with David about. Thank you. Now we're going to talk. This has been an interesting day that we've gone from late without parole to license suspension to competency to stand trial. Our first witness on the competency is Jack McCullough, director of the Mental Health Law Project, Vermont Legal Aid. Welcome back to you. Thank you. Thank you, Mr. Chairman. I'm Mr. D'Smitty. I'm happy to be here. I'm Jack McCullough. I'm an attorney at Vermont Legal Aid. And I'm the director of our Mental Health Law Project. In that role, we represent people in all of the civil involuntary mental health proceedings in the state. And what I'm here to talk about mainly is the issue in the bill before you about what's described now as party status for the Department of Mental Health and for the Mental Health Law Project in hospitalization hearings. We agree that it is important for the defendants in hospitalization hearings to have representation by an office with the expertise and knowledge of the mental health system. And back a few years ago, in S61, we had a proposal that would have created an appointed mental health law project to represent people in these involuntary, in the hospitalization hearings. What it passed out is a memo that sets forth essentially a tweak of the language that we have in S61. I agree with the people who observed that it doesn't really make sense to talk about it, either the Department of Mental Health or an attorney has been a party to the litigation. Because we're not a party, we're just a lawyer who represents people. And so the change that I propose to section three of this bill is to, as you see, that the court when a person is found incompetent or insane, and we're now at the point of hospitalization hearing, that the mental health law project would be appointed by the court to represent the defendant in the hospitalization hearing. And the Department of Mental Health would also have the opportunity to appear in that hearing and be represented by the Attorney General's office. And so what this is designed to do is not to oust the other state's attorneys from their role in prosecuting these cases, because I understand that they want to maintain the ability to assert their position. But it would also allow, in addition to that, the Department of Mental Health to be in there and argue for their preferred outcome. Just going to ask the question. Are you proposing, in our bill, there is no five. So you're proposing putting a five? This would be an addition, yeah. And so then would you, on the top of page four, those two lines, would you eliminate them at the same time? I would eliminate those, yes. But leave the rest of four? I've got my file upside down, so I should check to make sure you know what I'm saying. I think you've correct it. This is, as the believe it, Attorney General, I was concerned about that section as well yesterday. This would remove that. I'm assuming we remove the firm parties to the hearing. Well, remove all of those two lines, right? And add this instead. Right, yeah, it's one, two, and page four would go on. Yeah, OK. And then add those five. Yes, OK. What about section one? The commission shall be a party with the issues of competency of age, that's 2016. I would take that, too. You're suggesting in hearing that legally the president of the resources take on this original case load, you being a member of the appropriations committee along with Senator Nick, I'm always concerned when we talk about additional resources that will be needed, you have an estimate of what that might be. We've been talking to Judge Greerson to see if we can find out, estimate how many cases it would be. The last time we had this proposal, there was a fiscal note that was pretty substantial. It was based on an assumption of about 197 cases a year. I don't know if that's the right number or not, but the judiciary is querying its database to see how many cases we could expect to have to litigate. But based on around 200 cases a year, we're thinking it probably requires to add two attorneys. About 200,000. I think it was around 240, somewhere in that neighborhood. The other factor, it would probably involve an additional expense for independent psychiatric exams that are not being done at this point. Right. Probably asking, no matter whether we put this in or leave it out, the change of making all of you parties to it would also be a resource issue. So whether we adopt this amendment, and I think we need a fiscal note, we can have a phony to pass this, and then not fund it. If you could find the lawyers I've been talking with, several people who hire lawyers, different general, state attorneys, they're having a hard time. I don't know if you are legally. And we've been successful at hiring great attorneys. I think probably some of you know, Moria O'Reilly has been working on expungement. And we take the job of hiring new attorneys very seriously. And so if we don't get a good tool, we will be an advertiser. And then I have someone who's not going to do the job. But we'll be successful at getting people to come. Yeah, we heard how they made a great job. So I don't know what else to say at this point. How does the committee feel? Well, first I guess we should hear from the AG and the Department of Mental Health on this proposal. Thank you. Thank you. Good morning. For the record, Morning Fox, Deputy Commissioner of Department of Mental Health. Thank you for having me today. In reviewing Mr. McCullis' memo and language, I think the department is able to be in support of this language moving forward in regards to this. The one piece that I guess I'm just a little confused and looking for some clarification is that understanding about the department being able to have that status at hospitalization hearing placement, one thing we had discussed was the department at least having party status and I forget the actual terminology, but so that we could receive notice upon competency or sanity findings or issues coming up prior to an actual hospitalization hearing just so that the department is aware that those things are going on to ensure that we have that notice. I just didn't want to lose sight of that piece, but otherwise the language here that Mr. McCullis put forward is acceptable for the department. Did you anticipate spending more money when you proposed having? Was it you that proposed having? Party status? With the legal aid. Yes, we think that it's our hope to be able to endure that in our current situation. Somehow, never it ceases to amaze me. Somehow we very much have to testimony, particularly from the defender general, seriously cut back the bill to some issues that I thought were important. Victim notification and the competency hearing and somehow we were spending more money than we did when we had the 90-page bill. How did this happen? Well, you're spending less on paper. It's getting worse proportion. Never ceases to amaze me here. I didn't, I just kind of assumed that we were doing less. So I'll start it because Chittenden County and not Chittenden County. You know, if that was part of New York, we wouldn't be having this problem. Or can? It is part of New York compared to, say, some people. No. I've heard that the best thing about Chittenden County is that it's pretty close to Vermont. I just don't know. Can we just add in Job Engine for the state? No. Revenue driver of the entire Vermont. By the center of Chittenden. I just don't know how this happens. But OK. The answer is always have really long bills. Because it's an inverse. Will this leave us with a better system? Mostly, surely. In my opinion. I guess it remains to be seen. I didn't think the current one was particularly broken. But others disagree. Well, I think the governor disagrees. I know, but sometimes we don't agree. Sorry. Nice to be an independent. State's attorneys, any comment? What would you rather wait until tomorrow? Are you taking it up tomorrow? Yeah. I think I'd like to wait until tomorrow. We're not taking it up tomorrow. We don't have an unscheduled. We do have free from 10.15 to 11. We haven't unscheduled for Tuesday at 10.30. Well, I don't want to. We have marked up in mode Tuesday at 10.30. We're never going to get it to park. We need to take more tests. We should take more tests tomorrow. If we expect to get there on Tuesday. I don't know the timing. We don't have a chance to go there tomorrow. No, no, no. I'm at testimony tomorrow. What's that? Oh, the fiscal one. Oh, maybe we should wait until Tuesday. What do we do tomorrow from 10.30 to 11.30? No, I don't think so. Maybe we could do what they did with S54. So I think they're voting it out today. No, really? I don't know it. We're trying to make that year deadline. Are you available tomorrow at 10.30? Yep. What would you like to take? I don't know. Thanks, Pity. See what else we have. Well, there might be something you'd like to take note of. To do this from waiting. We could review the miscellaneous bill we were talking about this morning. Yes. Yeah, but we don't need much more to be able to talk about it. They're the main group. And Jake can't come over tomorrow? He couldn't come tomorrow. So maybe he'll come over. Yes, please do. And then maybe Jack, he was well. Or what else would you like to try me on this? So going back to section one, I'm hearing you were mentioning the fact that removing the DMH's party status using that terminology and adopting the language that Jack suggested later on in the proceedings covers that issue. At the earlier stage, I think what you were getting at was the section one removal of that language. So instead of saying, be a party, just say, shall receive notice. Like with that, kind of cover what you're getting at. And that way. Thank you. Did you do the expounding report? Any questions? No, that's fine. Did you do the bonus? On the notice? Yes. So once there was a finding by the court in competency, the next step would be hospitalization hearing. And that's when they're talking. That's where Jack's amendment would come in. That's when they would get, they would represent, as Steve pointed out, right? And we, at that point, the court would include notice to DMH. Right. I think they're asking for earlier in the proceedings, what's on this and something. Yeah, just to have the notice earlier, not representation. Notice after a finding of this confidence. I think we're actually thinking that just notice that the confidence is at issue as it's at issue. That's why I was thinking that once we've made that determination, that's what would make sense to immediately tell you so that you could be ready for the hospitalization hearing. That's what I had in mind. That would be covered by Jack's amendment, right? That's the stage you're talking about. And then we're going to be obviously notified of there being provided the opportunity to be represented through the AG. On the face of it, I think I agree. I just want to check with my commissioner to make sure we're on the same page. OK, thanks. She thought it was rent-available. If you're available, you can call me. Yeah. You can get full bills of money in almost every other day. Thank you very much. That's what I was going to say. Yeah, we can get all orders. Right. Good for you. All right, well, I don't know that I want to waste anybody's time. Anybody else comment on the Sandy? I do not mind at all. I mean, I mean, you're right. I'll take him on the page out for you, too. I'll just show it, I'm afraid that I can run free. Matt Valerio, Defender General, back on the sanity. I raised an issue yesterday on page, I believe, at 7 of the 10th involving an addition to the non-testimonial order statute, or rule 16.1, which would allow a mental examination by a psychiatrist or other expert by the state. And I indicated at that time that I believe that it was, first of all, inappropriate for non-testimonial order to be in that to be dealt with under those terms. And my initial review of it personally was that it implicated 5th and 6th Amendment rights of a defendant not to testify, effectively, to give any verbal testimony regarding his situation and that the sanity issue is a defense that is subject to the decision of the defendant if they've been found competent. I told you I was having this reviewed by the appellate division to see if my analysis was accurate. In fact, my analysis, according to my appellate division, was accurate that a mental examination is testimonial in nature, not non-testimonial, you understand the difference. So when you're getting a non-testimonial order, you're talking about the taking of fingernail clippings or hair or DNA or blood or saliva or whatever it is to usually to establish the identity of somebody. It is scientific in nature in that it's chemical or physical or the like. And you need to have a warrant before you can see these fingernail clippings or blood or whatever it is that you want to take. A mental examination is testimonial in nature in that it requires the defendant to speak and to describe what might have been going on or not going on or the like. And our Constitution says that you have a right to remain silent, that you don't have a obligation to speak to the prosecutor and quote, unquote, tell your side of the story of what was going on at the time and that as a result of not putting this in to kind of term it, first of all, shouldn't be a non-testimonial order section. Second of all, the reason it probably never was in, unlike in civil cases where you can get evaluations of people depending upon the issues you raise, is that constitutionally, you're required from having the defendant test, quote, testify before it's contrary to their interests or maybe in favor of their interests. They don't have an obligation to do anything. They can just sit there throughout the trial and argue sanity and defenses based on facts and circumstances. So in any event, it was pretty clear that to them that this doesn't hold constitutional muster because it is testimonial in nature as opposed to not. And under the current statutory framework, what is going on is effectively a review by the state expert of the information that is available, kind of like a record review or a whether it's medical records, mental health records or a factual review of what went on in the case, or usually all of that stuff, that gives rise to an opinion as to whether or not that the defense has an expert, whether that defense expert, whether their opinion holds water or not. And so going forward, that is going to be an issue for us if it remains in the bill. And I told you why. And sometimes you don't agree with me. But I know that it is a thing that the state's attorneys would love to do is to kind of have any ability to talk to your client while the case is pending, which is something that they cannot do now. But under current law on line 17 on page 6, submit to a reasonable physical or medical inspection of his body or, as notice is given by the defendant, that sanity is an issue or that exception or that expert testimony be offered as provided by rule 12.1 to a reasonable mental health examination by a psychiatrist or other expert. And what we've added is that submit to a reasonable medical examination by a psychiatrist or other expert on a court examiner pursuant to the 13 but reports that the defendant is not competent to enter. Is that what you're complaining about? That's what I'm complaining about, Jeff. Well, but current law provides that. Not in, while the case states share out that indicates that you can't compel a individual to have an examination of the kind that you are talking about in J. And what I think is that the statute is based on it. It's constitutionally based. So again, you just say, well, it's statutory. Because that's the easy way to do it. But the statute is constitutionally based based on 56 amendment graphs. Of course, that's going to be the argument when it gets to the Supreme Court if you put this in there. But I'd be remiss if I didn't let you know that we find it problematic. No, I appreciate that. But I'm just saying that currently the court can order that and then send a kind of law. This just adds an end. It doesn't happen that way. Well, well, are you all of this out? Is Michelle available? In fact, that's what's happening. Why do you need it? Is Michelle available? No, I think the question is, what's the distinction between allowing the court to order the mental examination when it's mandate defense is raised, as opposed to the one to the process? Because competency is jurisdictional and sanity is a defense. Both the state and the defense have, in theory, the same interest on a competency evaluation as they go forward. Because either one of them would want to have, and I think this is important, but it's technical legal garbage, nobody wants to have an incompetent person be subject to the jurisdiction of the court. And a prosecutor would be unethical for a prosecutor to try to prosecute somebody who they knew was incompetent. And it would be unethical for an attorney representing that person to allow the person to be subject to the jurisdiction of the court if that person was incompetent. Once you get by the issue of competency, now you're the issue of defense. And now you're subject to the jurisdiction of the court. The next step is defense. And as part of defense, the client doesn't have an obligation to provide testimony on their own behalf in support of a defense. That's the, it's a different constitutional issue. So one is jurisdictional, am I subject to the power of the court? And the second is, what do I have to do when I raise the defense of insanity? You can raise the defense of insanity, never hire an expert, put all of the evidence that you have in, except for the client testifying and say, look, jury, can't you see this guy was insane at the time? And the jury has the right to make a decision, yes or no. Now, as I had surveyed before with my people that nobody ever wins an insanity defense for the jury, but in theory, you can do that. You don't need an expert. But if you have an expert, the state has the right to cross-examine that expert on the basis for their opinion. So if they had interviews and they had, and doctors do this all the time, reviewing other doctors' records to make determinations as to whether or not they're applying the appropriate statutory scheme, whether or not they're looking at the, whether or not they're qualified to make the evaluation and whether or not they're up on the standards in the medical and psychiatric profession and the like, and they can test that person's opinion. But they don't have the right to talk to your client. That's the testimonial part. And that's what the problem is. And when I argued before the Supreme Court, if you decide to blatantly get out of the Constitution like that's in the bill, even when I get a chance to argue it, I'll say the same thing. And we'll be there. And then I'll come back and I'll say, take us up as a tool. And excuse me, because I'm a regular here. That's tool five going into the explanation of the bill. That's a great one. Can I ask you a question? Yes. So in an order of hospitalization or not hospitalization, I can walk through that. That's civil. And so that's the five years. Okay, that's civil. So that's once competency is found or not found? Right, right. Or somebody's going to be by saying to it in one bill. This is part of the criminal case. Okay, got it. Thank you, though. So you can consult somebody to testify in their criminal case, and this is testable. Okay, I get it. Okay. Speaking for the prosecution, just like it'd been on a jury. James Pepper, Department of State of the Surgeons and Sheriffs. Well, you can come up. I would never want to be on a jury. Wow, this is what it's like. So our appellate division drafted this provision. And our appellate division, in fact, it was the attorney that argued the Sherrill case. And he does not feel that there's a fifth or sixth amendment issue here. Anything that comes out during the competency evaluation, other than the recommendation of competency or incompetency, cannot be used against the defendant in the criminal case. So I just, I don't see an issue here. The Sherrill case was decided on a statutory interpretation. If we want to change the statute as opposed to the criminal rule to move it out of the non-testimonial order section, I can understand that. That was something that we discussed. Either what we, the reason why we chose to do it here, as opposed to in the statute, is that we didn't want to tinker around with anything else that might have an implication on sanity. But I'm sure that this will go to the Supreme Court and the same attorney that argued Sherrill probably argued this. Something a little more important. If we leave it in. If you leave it in, that's right. Either. And if we take it out, what is the impact? The impact would be the status quo that the state would not be able to retain an expert to evaluate a person who's claiming to be incompetent. So other questions I know are either matter. Could you check with the Supreme Court judge and see how that would be? I will. Thank you. I wouldn't comment beyond that since I sometimes fill in on the Supreme Court so I'm not gonna offer any opinions to that one. But if you were to. That's what I'm gonna say. They won't do that. I know they won't. That was a rhetorical point. I wish sometimes they would do that. They used to give an opinion. Sometimes they give opinions with direction. For example, here. They used to never even show up here. They used to even show up? They didn't even show up. They didn't even show up. They used to, they have given opinions, in opinions that the legislature should change that sort of thing. But not ahead of time. But they would not give us an opinion ahead of time whether they would have found this to be possible. That's why I was joking with judges. That's why I'm leaving. That's why the judges leave. That's why they come to the committee once and ask. I'll let you talk about it. Any other arguments on this bill today? We will pick up here on Tuesday or Wednesday. Stay tuned. Pepper, are you available tomorrow around 10.30? I was gonna take up the expungement bill. Brings available to walk us through it. And since you're the clerk of the Sentencing Commission and since it is the Sentencing Committee for the work we've got to do, we'll walk us through that as well. So that would get us ready for our meeting on the 27th of Manuski, so we've already walked through the bill. My afternoon thing got screwed over because it's winter break.