 Okay, great. Good morning and welcome to Vermont House Judiciary Committee. And this morning we are going to be looking at H87, which is an act relating to establishing a classification system for criminal offenses. I'm Maxine Grad, Chair of the Committee. And this morning I'm going to turn it over to Representative Martin Lalonde to do a walkthrough. Generally we do have legislative counsel doing a walkthrough, but there are often our times where legislative counsel is needed elsewhere. And as Representative Lalonde will tell you, this is a bill that went through this committee past the House. And because of the pandemic, the Senate was not able to get to it. So Representative Lalonde is very familiar with it. And so it's great that he is available to do the walkthrough in the absence of a counsel. So I'm going to turn it over to you, Martin. Thank you so much. Thank you. Thank you. This won't be as smooth, I'm sure, as Eric will do my best. I will ask whether folks have this, if they prefer for me to have it shared screen, so because I'm going to be kind of bouncing around on the bill a little bit, or if they just want me to point to pages. What's the preference, Bob, Felicia, Kate? I've had it up on my screen, so I'm probably going to be following that along better than on the screen, but that's just my preference. Okay. Yeah, Bob. I have it on my screen also, Martin. And Kate, do you want me to, you're on your phone, so you probably can't see it very well anyway. So I'm pulling it up on my phone, so that's part of the reason I have to have my video off. So I can look at it on my phone as you're talking, I guess. It works for me if you don't share. All right. I won't do the share screen, and if some folks are watching this out in YouTube world or going to watch it, they can get the bill on the committee page, or just it's H87. So all right, so we'll do it this way. I'm going to give a little bit background first, and then we'll get into the language of the bill. This has been an issue that's been going on for quite some time, trying to restructure the criminal code for a number of reasons. But really, there was a recognition back in 2013 that Vermont needed to modernize and simplify its criminal code, which led to Act 61. And that law created a criminal code reclassification working group to review all of Vermont's criminal penalties, as well as to look at other state's sentencing structures. And the working group was tasked with recommending a sentencing structure that allows or sentencing consistent with the gravity of the offense and the culpability of the offender. So in 2015, the working group recommended a five-tier classification system for felonies and misdemeanors with a maximum term of imprisonment and a maximum fine for each tier. That particular report, I've had Mike Bailey load up onto our site, so you'll be able to see that if you want to look at the website. You don't necessarily look at it right now, but that has been uploaded. So after some initial work, it was determined that implementing this recommendation was going to require a substantial amount of analysis by all the stakeholders in the criminal justice area. And since the sentencing commission already existed, though it hadn't really been meeting for a while, there was a body already there that included all the relevant stakeholders. So in 2018, under Act 142, the legislature appropriated a small sum for the commission to be reconstituted to examine the classification issue. It also cast the commission with making recommendations for which offense should be placed in which categories of the system. So the sentencing commission includes prosecutors, defense attorneys, judges, law enforcement, legislators, and other stakeholders. ACLU has a person who is sitting in on it as well. The purpose of the commission's work was to establish a rational criminal code using Vermont's current code as a starting point. And the idea, and there's some reasons to have a restructured criminal code. A clearer, more rational code would provide for more consistent interpretations of our criminal offenses, better notice to citizens and law enforcement as to what conduct is prohibited, greater proportionality between offenses and punishment, and greater uniformity and set to be out in Vermont. So the end goal is to create a more consistent and understandable code to keep our criminal justice system. And we'll have witnesses in who will explain this a little bit further. But I do want to just highlight something we heard last year from one of our witnesses on this. And that was the attorney for the Defender General's Office, Marshall Paul. He testified last year, and we'll probably have him in again, that the Vermont's criminal code is more difficult for criminal defendants to understand than the criminal codes of other states that have adopted a classification system. He also testified that current criminal code, that our current criminal code leads to inconsistency across the state and between sentences for similar conduct, and that the current complexity and inconsistency in Vermont's current criminal laws causes Vermonters to mistrust the criminal justice system. So last year, we really started the process with what was then H580, which is now H87, of simplifying the Vermont's criminal laws. Excuse me, Martin, be free. I see that Ken has his hand up. Does anybody else lose to Martin a lot, like for probably two minutes there for a span? No, no. Okay, thanks. Sure. Ken, if you need to turn your video off, that might help if it's on your end. Yeah, I did. It didn't work, but I'm going off. Okay. Thank you. All right. Thanks, Martin. No problem. So to reach our goal of having this rational, consistent, simplified criminal code, H580 and now H87 establishes a structure for that code, or the classification system, we can call it. And based on the, that was based on the commission's recommendation. And it also starts to place criminal offenses into their appropriate classes. And we're starting by focusing on property crimes based on the commission's recommendation. So this is work that's ongoing. And since, since actually we decided to just proceed with one area of the criminal code, and that was property crimes. We had a recommendation and it's awaiting us still dealing with sex crimes. And since, since this bill since last year, the sentencing commission has come out with additional recommendations related to classification of crimes against persons. And they are currently working on classification recommendations for drug crimes and motor vehicle offenses. So those things are coming. But the idea behind this bill is to set up the system and move the ball essentially towards the end goal of having this restructured criminal code. So I'm going to turn to the bill's language now and kind of walk through what it is. But let me just also point out that on the website, in addition to uploading the report from 2015, you can find the commission's report, sentencing commission's November 2019 report is with on which this is based, this bill is based. There are a number of other factors that are issues that the sentencing commission looked into that are not really relevant for this bill at this time, but I did have that put on to our website. So looking at the bill, each 87. So the first section, section one, it sets up the classification system for criminal offenses. There are five felony level offenses from class A that carries a maximum sentence of life imprisonment, the maximum fine of $500,000 to class E, which carries a maximum term of imprisonment of three years, and maximum fine of $15,000. So you can see, and that's really on page two, where it sets for the various the various sentences for the various classes. So it also had the committee, well, let me first explain that the committee made a couple of different changes from the recommendation of the sentencing commission. The commission recommended that a class B felony should carry a sentence of 25 years. But the week we change that this bill changes that to 20 years. And the primary reason for that was just how the crimes fit. If we had a 25 year, we had some kind of outlier crimes that really didn't fit in. And this is something we can get into further down the road if necessary. It just made more sense that 20 years would be the class B level. So the committee also reduced the maximum fines that the sentencing commission had recommended. One of the things we learned through, well, one of the things that sentencing commission also saw, but we also learned through testimony last year, is that courts seldom impose anything near the maximum fines that we had listed before. And frankly, what we have even listed right now. The sentencing commission is doing further work on fines. And we may see something down the road where we might be changing those fine levels, but that work continues with the sentencing commission. So the bill also on page page two subsection 52B sets forth five classes of misdemeanors from a class A misdemeanor with a maximum two year term of imprisonment and maximum fine of $10,000 to a class E misdemeanor that carries in no incarceration and a $250,000 fine. With this, the committee made a couple changes to the fines for misdemeanors and that's found on page three are the fines that are associated with those different classes. We cut in half the fines for the class D and E misdemeanors from the proposal that we received from the sentencing commission. Otherwise, we stayed pretty true to what the sentencing commission had recommended. So section 54, which is in the bottom of page three, that provides a transitional provisions. So when this bill goes into effect, and let me double check what we have with the effective date, 2022, the reason first of all for that longer effective date that effective date pushed out is hopefully we can implement the other recommendations of the sentencing commission before this goes into effect. But any event, if for those for those offenses that haven't been specifically classified through a bill such as age 87, this transition period, or this transition provision, I should say, kind of automatically places crimes that we haven't otherwise explicitly classified, it puts them into classification. So for example, so all felonies punishable by a maximum term of 10 years or more, but less than 20 years would be deemed a class C felony. And that carries a maximum term of imprisonment of 10 years. So if an offense has a 14-year maximum term of imprisonment and there are some that do, it would automatically be considered a class C felony with a maximum term of 10 years. So that's essentially how the sections 54 transition provisions work. I could walk through every line there, but I think you get the point with how that would work. And I'm hoping that that is not going to be very necessary that we will have gone through all the various offenses and have actually made explicit choices of how they should be classified. Excuse me, Martin, before you go on, let's just check in with committee members. Anybody have any questions? I was just curious, Martin, in looking at this, of course, from my experience, I think that two years and one day becomes a felony within the state of Vermont. Obviously, that's we're looking at changing this. But if both jail sentence and fines are imposed, and let's say it's up to 20 years and our courts have established a 14-year period for this individual, if they are unable to pay the fine, what happens then to they get more added on to their sentence? Or what's the direction you're heading in there? No, they don't. If they're unable to pay the fine, there are other ways that the court tried to get payment of fines. For instance, if there's a tax refund that can be deducted from a tax refund, there's different ways that courts collect fines. Whether they're associated with incarceration or not, but they're very separate. The incarceration and the fine are separate components of the consequences of being convicted of one of these offenses or having agreed to a plea deal. So an individual not paying a fine that does not lead to additional incarceration, if that's the question, if I'm understanding that, right? Yes. Thank you. Yep, no problem. So section 55. Sorry, Martin. Kate has her hand up. Hey, sorry, can you hear me okay? Yes. Okay, great. I don't know if this is the right question for right now, but just to understand more clearly, were you saying that you found that courts are not giving sentence length as long as the maximum sentence very often or are actually doing it quite rarely? Is that what you were saying? So I was specifically speaking about fines at that point, that courts really, they, fines are not something that is emphasized as far as consequences and are often far lower than the maximum. As I'll explain in a little bit when I give an example of how this all works, that is the case also with the incarceration sentences as well. And in fact, this, the bill here and other efforts of the Sentencing Commission actually generally reduces, though not in all cases, the term of a maximum sentence. And part of the reason for doing that is they're trying to match what's called the so-called going rate. So when I get to it, there's some crimes that would have a 10-year period, but no court is sentencing even close to the 10-year and the so-called going rate, the average for sentence length is around two and a half, three years. So in those kinds of situations, we're trying to narrow that box of discretion to more closely reflect what people are actually being sentenced. It's almost somewhat of a truth and sentencing kind of aspect to all this, that we're actually looking at what the sentences are and trying to put the maximum sentences more in line with that. I don't know if that answers your question. Yeah, that was my question. I'll have a specific example when we get there. And just as a highlight, I'm not planning on going through every page of this 36-page bill, because I don't think it's necessary because once you see the pattern, it all kind of makes some sense. Barbara has her hand up. Yes. Hi, Martin. So you may have said this, I was switching from my phone to my iPad and was offered a smidgen and I can't recall the answer from when we talked about it before. But in addition to trying to put sentences into a system that makes sense, are there discussions about things, for example, making some crimes go away or holes where new crimes are needed? I hesitate to say that, but can you remind me about that? Yeah, sure. There is one new crime, which because of the way we set up the property offenses has been necessary, and that's retail theft, which I'll explain in a minute. The other issue is not in this bill, but it is, and it's something I neglected to mention as far as ongoing work of the Sentencing Commission, is to look at archaic crimes, ones that are not being charged, ones that don't make sense to be crimes anymore, and decriminalizing, you know, getting them off the books. So that is ongoing work of the commission as well, and making some possible crimes simply civil offenses. So that's another big thing that they've been working on. They just haven't come up with the recommendation yet. And what about minimum sentences? Did you mention that today? So I didn't mention minimum sentences. At this point, the commission hasn't recommended changing minimum sentence certainly in the property crimes. I do believe, if I'm remembering right, the recommendations that we're going to see on crimes against persons may modify that, but I may be misremembering. One of the directives of the law that put this in place with the Sentencing Commission states that the commission is not supposed to increase sentences unless it's really called for, unless just to make this whole thing make sense, and not to have any minimum sentences. If there's going to be changes, don't put in new minimum sentences. And are you able to do away with any minimum sentences? Well, that's the part I just don't recall. I seem to recall that we may have done so with personal crimes. I don't believe there are minimum sentences in the property offenses. So I also just had Mike send out to everyone that PowerPoint from the NCSL workshop, and I'm wondering if the commission would be open to us sending or working with recid, I can't remember the name, recidico or something, to model out what some of the recommendations are. Yeah, I don't know. I haven't had a chance to look at that yet. Okay. All right. Thank you. I know that the Council of State Governments who have been doing the justice reinvestment have been following what's going on with the Sentencing Commission. I know it's a different outfit, but we do have some outside expertise who have been following us. Thank you. So on page five of the bill, there's section 55 classification of property offenses. And this is a fairly significant, though, very good change that pretty much everybody agreed to the concept in the Sentencing Commission. So currently, the sentence for many of the Vermont's property crimes depends on the value of property, not all of them, but many of them do. And generally, as the law stands right now, if the value of the property stolen or damaged is less than $900, and again, it's not all the property crimes, but it's a good deal, good number of them, then the offense is a misdemeanor. If it's over $900, it becomes a felony. So the commission though recommended a tiered system of sentencing depending on the value of the property involved in the crime. And there are other states that do this as well. So in making the recommendation, the commission was not really breaking new ground because, again, other states have followed this. So we followed the commission's recommendation, but we modified the proposed tiers slightly from what the recommendation is. The key difference between the commission's recommendation and this bill relates to what is referred to as the felony threshold. So as I mentioned before, under current law, the felony threshold for many property crimes is $900. If you steal over $900, you're facing a felony. If under $900, it's a misdemeanor. The commission suggested that the felony threshold should be $10,000. The commission felt that moving from $900 or the committee felt that last year. And this is the one issue that we really went back and forth with a lot and really gave a lot of consideration and heard different viewpoints from witnesses. But ultimately, we decided that moving from $900 to $10,000 was too large of a leap. And also that a felony threshold of $10,000 would be far above what other states have set. So we agreed last year, and it's what's reflected now in this bill. It's what passed out of the House. We reduced the threshold to $3,000 to be more in line with other states. And I can make some comments about that later if necessary. So in addition to that, the committee changed the maximum terms of imprisonment for offenses involving values exceeding the felony threshold. So the commission recommended that felony offenses be categorized as class D felonies, which carry a maximum term of imprisonment of five years, and class C felonies, which carry a maximum term of imprisonment of 10 years. But this bill in the committee last year decided that it was more appropriate for felony offenses, property crimes to be charged as class E felonies carrying a maximum term of imprisonment of three years, or class D felonies carrying a maximum term of imprisonment of five years. So there shouldn't be any of the 10-year felonies for property crimes. So that was the other big change from what the commission recommended. But in the end, we had testimony from a lot of commission members. And there were some disagreements in the commission, and there were disagreements in the testimony that we received. But overall, there was support, broad support for the overall concept and what we were doing. And I know that there wasn't any objection to these. Well, there was an objection that some folks wanted to stay at $10,000 for the felony level. But as far as the change I just mentioned to being a class E and class D felony instead of a class C, yeah, class D and class C felony received support from everybody. So I'm going to go over how this tiered system works and how we have justified using the maximum terms of imprisonment of three or five years for felonies. And the best way to do this is I'm going to do an example. So I'm going to skip over the attempts section two, the section nine attempts just for now, so I can make sure I've explained how this whole tiered system works, including with the classes. So I'm going to have you jump ahead, if you could, if you're following along to page 11, because it's just the one I'm going to use as an example of false pretenses or tokens. So currently, the maximum term of imprisonment for false pretenses is one year, if the value of the property is less than $900. But if the value of the property is over $900, the maximum term jumps up to 10 years. So the bill replaces that structure. And you can see at the bottom of page 11, it replaces that structure so it is more gradual. It provides that the sentence will depend on the value tiers and classification system that is found in sections 52, 53 and 55, which we went over a moment ago, but I'll jump back and forth in a second. Under the bill, if the value involved is a false pretence charge is over $3,000, but less than $100,000, one can look at the property offense classification on page five. And you can see if the value of the property, it's on subsection, let me see, I'm trying to make sure I'm following my notes, right? Subsection four, if the property, if the value of the property is at issue in the offense is less than $100,000 and equal to or greater than $3,000, the offense shall be a Class E felony. So you can jump back to the second page. And you can see that a Class E felony has imprisonment for three years. Page three, a Class E felony has a maximum fine of $15,000. So that's kind of generally how these sections work together. So if it's over $100,000, it would be a Class D felony with a maximum term of imprisonment of five years. Once again, you can see on page five, subsection five, section 55, subsection five explains that it would be a Class D felony. And one can look at page two and three and see what that would be a maximum term of imprisonment of five years, maximum fine of $25,000. So that's how that generally works through most of these, most of these property offenses that are through this bill. But so the committee looked though at actual sentences last year. And this is information that I don't recall if I've uploaded that document. If I haven't, I will have Mike upload that document. But we worked with the crime research group, which is able to provide a lot of information about what over the last 10 years has been charged, what the sentences have been, what the average sentence that data is available and was very helpful. So, so for false pretenses, what we learned from looking at the data provided from CRG, the crime research group, is that the average minimum term of incarceration for a felony level false pretence offense was 1.1 years. The average maximum term was 3.6 years. And again, that doesn't mean there's an automatic minimum. That's not what that's saying at all. But that just happens to be what the average minimum, average maximum was. So the offenders were simply not being sentenced to anything close to the 10 year maximum term. And this so-called going rate for sentences for false pretence felonies is between one and 3.6 years. So the penalty structure that we set up in H 87 is in line with the going rate for the false pretence offense and other property offenses in the bill. And this is something that the Sentencing Commission looked at as well. It is something that was presented to us by various witnesses as well. So and I know we did hear last year from the Department of State's attorneys who testified that for these property crimes, offenders generally are not being sentenced to the maximum terms allowed. And they supported this new structure, including a felony with a maximum five-year term of imprisonment. So a number of the property offenses addressed in H 580 were not really susceptible to this tiered system. And I will give you a couple examples here. And one can walk through it. I'm happy to walk through every one, but I just don't think it's probably necessary. But for instance, the offensive identity theft. And that's found at page 13 of the bill. That's classified as a Class E felony for a first offense and a Class C felony for a second offense. It does not use the tiered property value for purposes of determining the sentence. It's, and simply put, it wouldn't, it would be difficult to put a value on what is taken when one's identity is stolen. So we tried to follow fairly closely to what the current punishment or current incarceration for that offense was. So that's why we said Class E offense, which matches the three-year, the current term of three years. And we, for the second offense, we matched the 10-year term by saying that that would be a Class C felony. So I'm happy to go through every one, but I don't know that we need to. I can say essentially that, you know, sections three through 21 of this bill and sections 23 through 50 of the bill modify the penalty provisions of Vermont's property crimes by either following the tiered system that I mentioned or that we've gone over or classifying the offense as a Class C D or E felony consistent with what it currently is charged or a Class A, B, C, D, or E misdemeanor. But I am going to turn your attention to section 22 of the bill, which is at page 18. Actually, Martin, before you do that, let me let's just check in with folks. A lot of information here. Questions? No. Okay. Oops. Kate. Okay, that's a question. Yeah, I have a lot of questions that are coming up, but again, I don't know if their best address right now or not. Some of them include like, and I apologize if you said this already, whether there are acts that were moved out of felony and misdemeanor out of felony all together. And what was the other question that I had? I guess the other question that I have is more sort of whether you guys can point me in the direction of resources that helped me understand what else is included when something is classified as a felony. It impacts people in ways outside of justifying they have to pay and the length of sentence that they have to serve. And I was curious, again, if you could point me in a direction of resources that could sort of explain that a little bit more of what people have to go through when they fall into one over the other. Yeah, that's a critical point. And that is a major underlying reason for increasing the so-called felony level. What we have understood from testimony and we can certainly this is questions that you want to ask States attorneys, AG, defenders, others. But the fact that just over $900, and we did get some information, I'll have to try to track it down where it tried to explain, and unfortunately, the information is not great. It's just not really comprehensive. But try to look at, well, how many crimes are over $900 and under $3,000, or under $10,000 is one of the things we're looking at. How many crimes fall into that scope that would be a felony? And how many offenses are we now changing that would be a misdemeanor instead of a felony by moving up to $3,000 as the threshold or $10,000? So from what I'm recalling, by moving up to $3,000, we were making some significant inroads on reducing the number of felonies for property crimes. And the rationale, the reason for that is a felony has much longer term negative consequences for an individual. As far as housing, as far, I mean, it's a criminal record having a felony on the criminal record rather than a misdemeanor. It has consequences. Also, I think our expungement laws that we've been continuing to work on at some point, presumably most property crimes, if they're not already, I think they may already be expungible, the property crimes, they're nonviolent property crimes. So allowing somebody to get that off the record is also something that deals with those collateral, so-called collateral consequences of having a criminal record, particularly a felony record. But yeah, I'm sure that I don't have sources off hand, but I'm sure that Marshall Paul, James Pepper, David Shear would all be able to point to studies. It probably represented Rachelson probably can point us to studies as well as far as the downside of having a felony versus a misdemeanor. So yeah, bottom line is that this particular bill and actually other recommendations coming from the Sentencing Commission will reduce the number of felonies that are being charged and have more moved to misdemeanor type crimes where there are presumably somewhat less collateral consequences. I don't know if that answered your question, but it's a big, it's a big question. It's a primary motivating rationale for what we're trying to do with the criminal code as well. Thank you. So all right, so we did on page 18, unless there's another question, I'll move ahead. All right, so page 18 in section 22, it creates a new crime of organized retail theft. And this new crime is included due to a concern that was raised in the committee last year, that there are groups of individuals acting in concert who shoplift from stores and sell the goods on the black market. These individuals take particular care that they're not exceeding the value of goods such that they may face a felony of caught. So the new offense of organized retail theft would allow law enforcement to aggregate the total value of stolen goods over a period of time to determine the appropriate sentencing level. And the committee last year determined that the appropriate, you know, that it was important to add this new offense to provide law enforcement with an additional tool to address this activity. And also, you know, to address some input that we shouldn't move to a $3,000 felony level because of this kind of situation. But this addresses that situation where you can accumulate the value. So I'm going to turn back to one bit that I jumped over and then we'll be happy to take other questions. And that is the attempt language. That's on page five. It's section two. And it's subsection. It's nine. And what that section is doing is simply aligning. It's fairly straightforward, but it aligns Vermont's attempt law with the new classification scheme. I think it's I believe itself explanatory, but that that's the purpose of that particular section. So I think that's all I have at the moment. I'm happy to hit on a couple other issues, but they're as far as, you know, the felony threshold, if anybody wants to hear more about the felony threshold, or if we should postpone that when we hear from other folks. Committee. Tom and then Selena. Thank you. Martin is section two under the attempts. What's coming to mind is I don't know if you remember the young man in Fairhaven that made threats toward the high school. If you remember that at all. So I'm just wondering if that under this language, would that be considered an attempt just because he, I mean, he had it in what some people call the manifesto, but he had it written down his plans, you know, what he allegedly, you know, intended to do. And I'm just wondering if that if this section nine attempts would address that? No, it doesn't change the current law as far as the attempts. It just changes what the subsequent punishment would be. I mean, as you recall, we did look kind of deeply at I think it was even a bill. I think it even may have been a bill less sponsored that that changed attempt law to track what some other states do looking at behavior earlier in a process or earlier in a where where somebody is planning a crime. Our current attempt law has essentially provides that you have to be pretty darn close to committing that crime temporally and physically. And we were trying to change this does not change that and that that bill we never did pass out of committee, if I'm recalling right. Right. Yeah, I think I'm mixed. I think I'm mixing both of them together in my head. Yeah. Yeah, that was a separate one. This really doesn't change how the template was applied just just what the punishment or the incarceration period is. Great. Thank you. Okay. Selina and then Barbara. I have a question that's about sort of the just the an overall strategy around the bill. And I don't know if now it feels like the right time to ask that or not. Are you done? You're done with your bill presentation, right, Martin? Yeah, I can add some if there's questions about the felony threshold, I can this is not a question about the felony threshold. Should I just hold it? Okay. Um, I'm sorry, my sound is a little wonky this morning, but I my question I know I meant I just want to say for the record, I'm pretty agnostic on this, but we're kind of doing two things in this bill, right? One is we're really going crime by crime and the property crimes and revising the associated penalties and mapping them as best we can to the new schema. But the others were sort of like saying, okay, this is going to be the new schema and really setting it forward. And I know last biennium at one point, those were two separate bills that got kind of brought together. And that one of the things we heard a little bit of pushback on at times are just questions about including from our from our counterparts in the other chamber, I think was that question of like, do we really need to move the whole new schema forward now? Is that putting the cart a little bit before the horse? You know, if we're not actually going through the reclassification for the whole criminal, all the all the all the crimes on the books. And I just wonder what your response to that Martin is as we move forward with this work, like why why do we need the framework? Why is the framework important? And why is it important to move that forward now? And that's one that we've pondered a lot and kicked around as far as what's the best strategy or tactics for actually putting this into place. And I know in past legislatures, I think this may have been even before chair grad was on the committee, maybe it was during your time when Betty Nuovo was the chair, she she tried they back then tried to take on the whole restructuring. And it collapsed under its weight, I believe, is kind of how I've understood it. But so so I think the idea was to take these take this and kind of bite sized pieces, so to speak, so that it's not overwhelming. I mean, I think to go through 847 plus offenses, all at once, as opposed to dividing them up into property crimes, crimes against persons, sex crimes, drug crimes, etc. I think that it's manageable. It's more manageable. So that I mean, that's that's, I think, and that's how the Sentencing Commission has been approaching this as well. And I think we've looked ahead enough to the Sentencing Commission has looked ahead enough to see that this is going to work for those other crimes, but there are going to be decisions. And the tougher ones are frankly, so far that I've seen are in the crimes against persons, which is a recommendation that came out this past fall, that there are essentially a couple different recommendations. There was more disagreement of where to go with that one than with property crimes and sex crimes and others. So I think it just makes sense to we could really, well, for another reason is I think that this allows us to really dig into the particular area of property crimes. If we had 800 crimes, I don't think we'd be able to dig in as much as we've been able to dig in by taking it bit by bit. So it has been kind of a but we have kicked around. We also kicked around even for this session. Well, should we expand what we did on H580, expand it to the other recommendations that we have? Or should we try to since we've gone over this path once already? Should we try to get H87 out as soon as possible to get it over to the Senate for them to start considering this? And I think ultimately that's where we landed just because we're in this remote world. And I think it'd be harder for us to take up some of these other recommendations in the time that we have allotted really. Does that make sense? It does. I just really wanted to hear your rationale. And I found the thing that you said that I found particularly helpful in sort of support of this approach is that the enough work has really been done. And it sounds like even since last session more work has been done to start to map more and more of the crimes to this schema so that we know like, yes, there's some soundness to this. It really does work because I think that's the fear that I've heard from some folks is like, if we haven't done all the crimes, how do we know we got the schema right? But it seems like there's enough work coming out of the sentencing commission that we've kind of had ample opportunity to test the framework. And I would add that the recently with the crimes against persons. So we identified a while ago that there are some areas that we're going to be tougher to fit into this scheme into this classification. And I'll use an example of burglary of occupied dwelling. And the way that burglary with an occupied dwelling works is there's different tiers even within that. Well, there's burglary, there's burglary of an occupied dwelling, there's burglary of an occupied dwelling when the offender has a weapon. And these all have different times that didn't quite fit into the structure. But the sentencing commission, that's not one of the areas of disagreement, if I'm recalling right, for the crimes against persons, but they have dealt with that one. And there's a couple others that are kind of like that that have have already been dealt with in recommendations that are that have come our way that we just haven't put into bills yet. So the areas of outliers that I think there was concerned about have for the most part already been dealt with. So That's helpful. Thanks, Martin. Thanks, Barbara. So Martin, would it make sense? Sorry. And then so last question, Barbara, and then we're going to take a break. Okay. Yeah. Would it make sense to be making recommendations at the same time about eligible for automatic expungement? That's all right. So one of the things that the sentencing commission was assigned to do two years ago, something like that was was expungement looking further at expungement. And and we did and came up with I thought really, and I was on that subcommittee with a really either further complicating what expungement was. My view was and still is that once and it probably is going to work out is that once this structure is put in place, the whole expungement structure should be much more straightforward, you know, that that class different classes of crimes will have different expungement eligibility, essentially. And it can simplify that. And I'm hoping that that's where we end up. But but unfortunately, I well, maybe not unfortunately, because we need to in the interim still work on expungement. I know I understand that the Senate is going to do that. But it should become simplified. That's the idea. And that's what I've heard from folks who have, you know, the sentencing commission folks. Great. Thank you. Great. I'm going to stop us here for a break. And we do have witness at 1015. So take a break until 1015. Thank you. And thanks so much, Martin. Yeah, was not as smooth as what Eric would provide, but I did my best. Welcome. And the floor is yours. Thank you. Thank you, Representative Grabb, members of the committee. I think what might make sense is for me to give a little bit of background about myself. I'm probably familiar, very familiar to a number of members of the committee. And I see that there are a number of new members of the committee to I am a Superior Court judge presently assigned to the Wyndham Criminal Division. I was appointed in 2017. But prior to that, I was with the attorney, the criminal division of the attorney general's office from 2000 on. And among my duties was testifying regarding criminal justice matters primarily in the House and Senate Judiciary committees. So I've spent before my appointment quite a lot of time in your committee on a variety of topics, including this topic, which is classification of the criminal code. My apologies to Representative LaLonde for not being able to be present for the walkthrough. So to the extent that I cover matters that have already been addressed by other witnesses, please let me know when I can move on. The act, the bill that is before you currently, the work related to that dates back to I think the 2013-2014 session when a group was created, I think it was called the Criminal Code Reclassification Working Group. And the members of that committee were David Cahill, who was then the executive director of the Department of State's Attorneys. It was before he was appointed as Windsor County State's attorney. Myself, the Defender General, retired Superior Court Judge, Walter Morris, and Robin Joy from the Crime Research Group. We were asked to take a look at whether classification of Vermont's crimes made sense. Vermont is unusual, not unique, but unusual in that each criminal statute has its own, generally has its own criminal penalty, fine and or imprisonment associated with it. And there is no overarching classification scheme that many states have grouping felonies and misdemeanors into groups based upon the potential penalty. The working group's conclusion was that it made sense to classify felonies and misdemeanors into five categories A through E for both felonies, crimes punishable by more than two years, or misdemeanors crimes punishable by two years or less or fine only criminal offenses. Ultimately, I don't remember when, so the next step was that the legislature asked the Sentencing Commission to take a look at the question of classification. At that point, I was a member of the Sentencing Commission and a subcommittee was created to look at the issue of classification. The subcommittee consisted of representatives of the state's attorneys, the Defender Generals and Public Defenders, CRG, the Center for Crime Victims Services. I'm trying to think who else was on the subcommittee. I don't recall off the top of my head. Ultimately, the subcommittee came up with a proposal for classification which was substantially similar to the report that the working group developed and which was ultimately adopted by the Sentencing Commission and forwarded to the legislature and was adopted by the House slightly modified. The subcommittee has continued to look at basically classes of offenses since then. Property crimes, sex crimes, crimes of violence, motor vehicle offenses, Title 18 offenses to look at classification of those particular groups. What you have before you with the bill is the general classification provision which would take all existing crimes and categorize them into the groups and then a specific proposal with respect to property crimes which is, in fact, the most significant change that has come out of either the subcommittee or the Sentencing Commission on this point. The proposal regarding property crimes would take basically all existing property crimes and assign punishment, assign penalties, imprisonment or fine, based solely on the amount of loss involved or the damage which is very different than the way we do things now. A very good example is that under existing law there's a crime or fraudulent use of a credit card. If it's more than $50 involved, it's a misdemeanor. It's less than $50 involved. It's a lesser misdemeanor but that crime can also be charged as false pretenses, false personation, arguably identity theft and all of those carry far more significant penalties irrespective of whether more or less than $50 was involved. The committee concluded and it was not unanimous and the commission concluded and it was not unanimous there either that it made sense to propose this idea that all property crimes should be treated generally equally for purposes of the maximum potential punishment based on the amount of loss involved. That's a significant change from aunt law. I'm happy to answer questions. I'm happy to keep going. Not see any hands but let's give folks a minute. Any questions? Don't see any. So keep going please. Thank you. So the real purpose underlying this I think was the Vermont's criminal statutes lack transparency and consistency. You really have to know the statute and know the penalty associated with it in order to have some idea of where it fits in the sort of rank of seriousness of Vermont crimes. Also there because each penalty provision is enacted with the statute or updated as a part when the legislature acts to amend it. There are I would say anomalies. The most a very significant one is the distinction in penalty between DUI and DLS driving with a suspended license. The DUI is punishable by a fine and this is particularly on the fine issue a maximum fine of $750. DLS which I would suggest is a significantly less serious offense has a maximum fine of $5,000. That appears at least incongruous in terms of how Vermont should view the relative seriousness of certain criminal offenses. There are numerous crimes for which there are no fines. Assault and robbery has no fine. There are crimes which have extremely large fines. Trafficking offenses under Title 18 have a million dollar maximum fine. There is no I would argue that there's no consistency across criminal offenses. The purpose here was to try to create a structure into which all criminal offenses could be placed and then there could be decisions made as to the relative seriousness of particular offenses and offenses could be moved up or down within the classification to address those issues. Thank you. Any questions there? I know it's a lot of a lot of material. We've been doing this all morning and it's yeah. Sorry that and I probably should have sent the link. The Act 61 criminal code reclassification report is still available on the CRG website and has some interesting information in the comparison between classification schemes with other states. In fact, the model penal code classification is very similar for felonies to the proposal you have before you. Great. Thank you. Martin and then Kate. So thank you very much, Judge, for lending some credibility to some of the things I said a little bit earlier as well. Sorry to duplicate. No, no, no, no, it was not. It was expanded and credible. So just real quickly, the Act 61 report I have on our website already. There's a link there so you don't need to send but I wonder if you could just give us a little preview of some of the work that's still ongoing and we did talk and also maybe you don't want to or don't need to comment on this that the approach that we've decided to take is to get the structure in place. This bill puts the structure in place and deals with one of the categories and really felt we felt well, I felt and others felt that we need to get that out there and get this started and then subsequently we'll start fitting those other things in that the sentencing commission is providing. But if you give a little preview and if you could comment on how well or not well the other crime categories seem to be fitting into this categorization, that would be helpful. Sure. So the proposal that came out of the sentencing commission did what Representative Lalanda suggested. It created the structure for everything and then the hard work was reviewing individual offenses and deciding whether the what we've been referring to was automatic classification where they were sort of poured into the various category buckets made sense or whether they should be moved up and down. The property crimes was a complete restructuring. We did work with respect to sex offenses where there's a broad range of offenses that fell within that. I don't recall if that was forwarded to the legislature or not. There are two proposals with respect to crimes against persons. One primarily from the defender general's office and the other primarily from the state's attorney's offices with suggestions as to how offenses should fit into the categories. There is a Title 23 provision out there. There are concerns that have been raised particularly in the context of the Title 23 work as to what may happen to the potential maximum fines under classification that a number, even if the sentence of imprisonment is reduced, the potential maximum fine would be increased under the scheme that is here. Just a reminder, these are the maximums that could be imposed. My experience as a prosecutor and my experience as a judge has been that the maximum fine is rarely, if ever, imposed. Again, the vast majority of criminal prosecutions that result in a conviction are pursuant to a plea agreement where there is an agreement between the parties as to what the sentence should be. We've started work on what to do with Title 18 offenses. There are a couple of issues out there that need to be addressed and are potentially complicated. One is what to do with recidivism offenses, how to address those generally, and the other is what to do with penalty enhancements. Vermont handles penalty enhancements basically in two different ways. One is just to increase the penalty for the particular offense. For example, DUI 1 is a two-year felony, DUI 3 is a five-year felony. There are other penalty enhancements in Vermont statute that add additional potential term of imprisonment. If you are charged with simple assault, but that's enhanced as a simple assault on a protected professional, it's an additional one year. That's more complicated to handle in a classification scheme and will ultimately be an issue that the legislature I think will have to resolve is how generally to handle enhancement and recidivism offenses. Representative Lawn, did I address all the issues that you raised? Yeah, I think so. I put in the chat that Title 23 is the Motor Vehicle Offenses and Title 18 are drug crimes. I guess overall, there are some outliers that if I recall in the crimes against persons, there are a couple of different suggestions on how to deal with certain outliers. For the most part, it seemed like there was a lot of agreement with the different offenses, but then there are some outliers that you just talked about and there are different proposals of how to make that work with the classification system if I'm right. Yes, I think that's absolutely correct and the two I think key areas that were raised were domestic assault, which is a misdemeanor punishable by 18 months and under the structure there is no 18 month misdemeanor. The question is whether that becomes a two-year misdemeanor or a one-year misdemeanor or something else and there is disagreement. The direction to the Sentencing Commission was to make a proposal that did not increase proposed sentences except for a very good reason. The other area where there is ongoing discussion relates to offenses that are currently punishable by a maximum term of 15 years. Again, under the proposal, there is no 15-year felony that's either a 20-year or a 10-year and there are quite a number of serious crimes, both crimes against persons such as first-degree aggravated domestic assault, manslaughter and aggravated assault, which are punishable by 15 years. There are also offenses such as DUI with fatality resulting punishable by 15 years and the question ultimately will be if the Sentencing Structure is adopted with either with three, five, 10, 20 life as the felony maximums, where do the 15-year felonies go? Do they become 10 or 20 or something else? That's an area where the state's attorneys and the Defender Generals have competing different proposals. Thank you. Kate, see your hands up. Hi, Judge Treadwell, nice to meet you. Kate Honnelly, I'm one of the new members on the committee here. I appreciate your diplomacy and your testimony. That doesn't make that that is incongruous of this effort to be diplomatic. My question, I guess, if I can figure out a way to articulate it sort of aligns with that idea. In that example, you're using driving with a license suspended in a DUI and that the sentencing potential, I guess, I'm not sure of the language, is incongruous with these two things. The first part of my question is in actual behavior, do we see sentencing from judges being equally incongruous because of what is possible in terms of sentencing? I guess the next question I have tied to that, which is I keep Martin mentioned this, and I heard you mention it as well, that there seems to be a separation between what is allowable for sentencing and what is actually happening in terms of sentencing. I guess it just brings up questions for me about this kind of reclassification, which sounds really important for a variety of reasons. Is it actually designed to behaviorally shift judges' sentencing, or is it more for providing more transparency and things along those lines? I guess I'm a little unclear if it's rare that judges actually sentence the maximum sentence, and what are we sort of doing there? I guess I'm a little unclear on that. So those are excellent questions. One of the things we were asked to look at at the Sentencing Commission was the actual sentences imposed by judges for various offenses, and I believe CRG, I know CRG, generated spreadsheets showing the sentences that were imposed for all crimes for which there was a conviction over a 10-year period. And those, they're a little out of date now because I think they are from up through 2015, but we were asked to look at those when considering how to classify offenses. What we learned is that there is very little consistency, that there's an enormous range generally for most offenses of what can be imposed. The reality is that, as I said, and as you pointed out, the vast majority of sentences are imposed pursuant to a plea agreement. My role as a judge in deciding whether or not to accept a plea agreement is to determine whether I think that sentence is in the interest of justice. It may well not be the sentence that I would impose if I had, if it was after trial, if it was if I had the option to impose any legal sentence, but whether it is generally within the acceptable range is the question for me. The proposal here does in fact potentially constrain, you know, there are proposals that we could change how sentencing works for a significant classes of offenses. I believe there is a Title 23, a motor vehicle offense proposal out there which might make DLS punishable by six months or less. I mean, reality is that a vanishingly small number of people serve six months for a DLS. The vast majority of those cases are resolved for either extremely short periods of incarceration or work crew, except as I understand it, the department is not offering work crew currently or a fine or community service as required by the statute. But the statutory maximum is two years. There is a proposal out there that would reduce that significantly so that there would no longer even be the possibility of imposing such a sentence. Does that answer some of the questions you have? Thank you. Thanks. I'm not seeing any other hands, so back to you, Judge. All I would say is I'm happy to come back any time, assuming I can squeeze it between hearings. This is an issue that I've worked on for quite a few years, and I suppose I'm here as a representative of the Sentencing Commission, not in my various other roles with respect to classification, but to the extent that there are committee questions related to this, either now or later, I am happy to try to answer them. Great. Well, thank you so much. I really appreciate your work and seeing you, and thank you. Yeah, great. Thank you, too. It's also great to be back in front of the committee. It's part of my former job that I miss. Well, thank you, and I miss you, but good to see you in your relatively new capacity. Oh, thank you. Great. Thanks. So Martin, back to you. I know you had a few things that you thought you would still cover. Yeah, it's kind of the last dialogue there with Kate. I mean, part of, certainly part of the intention and what Sentencing Commission members have said, is that we are trying to narrow the box within which judges exercise their discretion in part to address what are often geographic disparities, that the same crime being committed in one county versus another can result in a very different result as far as the penalty. And by narrowing the box within which this discretion is exercised, presumably that will narrow those discrepancies. And perhaps we'll hear from other witnesses when they talk about that. I do want to highlight, I don't think I really mentioned during my presentation, that there are some issues, even within the property crimes, that there was some disagreement between the state's attorneys primarily and the defenders. But we'll hear from them as far as what those are. And these are the compromises that we reached last year. And I'm hoping that those compromises will stay in place this year and we can move this bill along. But I think we talked a little bit earlier about the other individuals we should hear from. And I think that we're set with that. I can't imagine it's going to take a long time. Okay. Well, we weren't able to get anybody for this morning. So yeah, I'm putting the schedule together for next week. And I'll do so with Tom and Coach. And maybe give it an hour or so, maybe next week. Let me think. So if we have, it depends, I think, yes, an hour should be fine for Marshall Pepper in ACLU. So Marshall sometimes likes to explain things, certainly, and it's helpful. Depends on how much we want to get deeply into the CRG information. That would possibly take a little bit longer. But that depends on how deep everybody wants to dig with that. And I'm about to send the spreadsheet that Judge Treadwell mentioned. I'm going to send it to Mike to load up as well. Okay. Great. Okay. Committee, any questions or comments? Anything that, especially new members, that would be helpful as we work through this? It's Tom. Thank you. I think I've said it before, but I just want to commend Martin again for all the work that he's done on this. I mean, this thing is potentially decades in the making. And just the work that he's done to keep it moving. And I mean, we're taking another step in the right direction today. And hopefully the finish line can be in sight here within the next, within this biennium, I guess. But anyway, I just wanted to give him the pat on the back that he certainly deserves. Well, you're very kind, Tom. And it goes back to you as well that last year, the biggest negotiation and compromising between Tom and I so that we could both support this bill. And that had to do with the felony threshold primarily. And it took us a while to arrive there, but we got there. Yep. That we did. Okay. Well, thank you, Tom, for saying something because it is a really very, very heavy lift, but an incredibly important one. Ken. My only concern, thank you. My concern with this whole thing is I keep going and I think back to the victims, the victims. Like this is, I know what, or I believe I know what you're trying to do, but it's still the victims. If you've ever had your house broken into and all that stuff, it's just, it's nothing you get over. If that's my problem. And I think I stated that last year when we were doing all this too, but if I could just comment real quickly on that is first of all, this particular bill doesn't get to the burglary of a dwelling and such. I mean, it's really those, those crimes of like armed robbery type that that's not part of this bill Ken. So, but I did want to mention one other thing about the property crimes that really isn't in this bill. It's just in our laws. It's present. The present law and that is restitution is a big part of the property crimes that part of a charge or part of the consequence is not just possibly a fine and incarceration, but the requirement to have restitution of whatever the value of the property was that was taken and such. So, so that that is very much victims centered that doesn't get part of this discussion. But I think it's important to know that that's out there. Well, I appreciate that. But so to turn it into something that is part of these these crimes, when it happens to you, you never forget it. That's all I'm going to say. Thank you. Thank you, Ken. Let's see. Will and then Barbara. Thank you. Yeah, I just wanted to and I can talk about it at more length later in the committee process if need be. But you know, I do just want to want to touch on this conversation we just had. Because you know, one of the things that is in here is retail theft. And you know, I manage a bookstore. And books are very easy to to slip in your pocket. And we we lose a decent amount of stock over the course of a year. Once we a year we do inventory, we adjust. You know, we have floor plans in the store designed to best enable our clerks to keep an eye on the higher theft items. But at the end of the day, what it comes down to for me is this, it's there'll be times where someone's in the store, and maybe don't pay attention to him or her because there's other customers and something goes missing. It's very obvious. We lose out of we lose out of tarot kits, for example, or Danforth jewelry. And you know, you would think, okay, it was probably that person who was wandering around and waiting for an opportunity. And you know, when I when I when I think about the people who who do this and for some of it, it's of course conjecture. I don't know them. But you know, I don't think that this is a, you know, they don't look like a gang of thieves who are striking. It looks like someone who really wants something that they can't afford. And someone who really feels the need for something that they don't have the money in the pocket in their pocket to get. And you know, I want these people to be held accountable. I want these people to make restitution for for their transgressions. But I don't see where extended incarceration achieves that goal. I don't see where that helps them at all. And it's certainly in the end of the day doesn't help me. So you know, I'm looking at this as something that can make our laws fairer on both ends. And quite frankly, if someone is committing, in this case, retail theft, sure, I want them to be accountable. I want them to I want them to have to think about what they've done and also put them on the path where they might not be as tempted to do it again. And there are services available that I would like to see utilized. And I think someone can do restitution, but also get the help that perhaps they need for various things, financial insecurity, so on and so forth, to get to a better place. And I don't see where an extended or any incarceration for that matter is something that helps the process either on my end or on theirs. So so when I look at this, yeah, I can I can think of this from victims eyes, sure. But I think we need to make certain that we're not talking about some form of revenge. And we're talking about a system that fairly treats everyone involved on both sides. Because I think that the vast majority of people in at least in my store's instances, if they were more financially secure, they wouldn't be doing this. So so I do think that we need a system that correctly reflects on the challenges that everyone is facing. Thank you. Great. Thank you. Thank you. Appreciate that. Barbara, do you have your hand up, right? Yeah. So I also I think this is a really good discussion that actually can raised and appreciate what we'll just said also. We heard a few years ago from for those of us that were on the committee for I think it was three, I don't know. I don't think it was last session where Representative Donovan had somebody from Macy's and Outdoor Gear Exchange come in. And it sounds like there are these businesses that like we heard they were taking out like 60 North Face jackets and, you know, I mean, very different than what Will was describing. And our current laws weren't really covering that crime. But I any crime that we make a felony is going to let no matter what we do pretty much unless we have automatic expungement or expungement is going to live with the perpetrator forever and not going to make their life better. So in addition to Will raising the point about incarceration, which costs us all financially, as well as in terms of the recidivism rate, the felony collateral consequences are so big for people in terms of going out of state, in terms of getting a federal loan and living in subsidized housing that I would love for us to really be as discerning as possible as who we put in a felony category. And just the other piece I want to say is I've been to some restorative justice events where the victims of the crime want some acknowledgement and, you know, in some cases they had a loved one killed or they were scared. And the unbelievable view that they take about not making somebody else's life miserable for something that's not going to change their situation was just remarkable. And I don't know if I would have grace in that situation. I hope I would. But it just made me realize how important restorative justice is and right revenge or just I hope we can look away from engaging in that. Great. No, thank you. Appreciate that. Martin, do you want to respond to that at all? Yeah, I mean, I did. So though it's not really so involved in this particular bill and it was a little bit of our discussion last week as far as what the Judiciary Committee does, I mean, we haven't really gotten into what the criminal justice system is supposed to accomplish. And one of the reasons for incarceration is punishment. It is retribution. And so, I mean, where Ken is coming from is actually, you know, historically is one of the purposes for a criminal justice system. Having said that, I mean, we are moving more towards wanting restorative justice practices, rehabilitation. Deterrence has in the past been thought of as one of the rationales, but studies upon studies show that penalties really don't have a deterrence effect or minimal. But I do recognize what Ken might be talking about as far as retribution being something that is part of the criminal justice system. And we can't overlook and just ignore that, even though we're trying to go into more of a restorative process. But not everybody chooses to want to go into restorative, the restorative process. Because as Barbara says, they don't have necessarily grace. And I mean, so anyway, I just, it's a legitimate viewpoint to say that people don't forget these kinds of crimes. However, having said that, that really is more in the realm of crimes of violence and crimes of sex. I mean, that these property crimes don't involve that as much. And certainly as we move forward, we will invite victims advocates for input on these bills. Okay. Anybody else? Okay. So we are ahead of schedule, which is always a nice thing. After the Florida Day, we'll hear about an update on age 20. And I'm hoping we can wrap that up. And then tomorrow morning at nine, we're going to hopefully wrap up age 18. And I'm hoping that there will be an agreement there. I know that that the AG's office, Attorney General's office and Legislative Council have all been working together on that. So we can move that along. So I guess I will adjourn us for the morning. And we have some extra time to do what we need to do. So