 Good morning and welcome to Vermont House Judiciary Committee and it is Wednesday, March 10th and we are starting with a committee bill. Which is a study in it from h128. And then also is looking at amending our current law and hate motivated crimes. I'd like to start with the study language. When we were working on h128 we all agree that that was very important information. However, the language of the reporting needed to be worked on and we did want to get h128 out at that time so we put the reporting language to the side and I very much appreciate James pepper. And then in our G number of folks got together, as well as the sponsors of h128 got together over the break and then in the past few days and did propose language which bring has incorporated and that is in draft 2.1 which will be looking at. And so good morning, Bryn, and we'll start with a walk through of that please thank you. Maxine before we start I'm drawing a blank on CRG. I'm sorry. Crime research group. Okay. Right yeah I know I should have spelled it out but yeah thank you or said it. Yeah, thank you Tom. Okay, great. Good morning. Good morning committee for the record Bryn here from legislative council. Would you like me to share my screen so I can show you the language, the new language. Okay great. Thank you. Yeah. Okay so hopefully you can all see I'm on page here I'll just scroll up here. I'm going to jump right into the language that the chair just talked about that kind of was the the origins of that were from h128. And these are some suggestions that were made by the office of the states attorneys and I believe in connection with the defendant or the Attorney General's office. Section B requires an annual reports this is this language is dropped right into the hate motivated crime statute, because it's an ongoing annual reporting requirement that deals directly with convictions of these enhanced penalties. So we drop it right in there, requiring an annual report, starting January one of next year from the executive director of states attorneys and sheriffs in consultation with the office of the Attorney General. The report comes directly to the House and Senate committees on judiciary, and it has to detail these three things for the prior year. First incidents reported to the national incident based reporting system in which there's an offender bias against victims, sexuality or gender identity. So any convictions in the criminal division of the Superior Court for which the sentence was enhanced pursuant to the hate motivated crime statute. And finally any reported bias incidents that resulted in a final judgment in the civil division. There's also a requirement that to the extent feasible the report that's required by the subdivision shall include any demographic information about the defendants involved in those enhanced penalties. And that concludes that reporting requirement. I think you've looked at the other sections of the bill already. We have right and so I thank you for any questions for Bryn. On this language. And I'm trying to get a hold of pepper because like I said he's over he's in Senate has judiciary. Explain how they, how they came up with the different provisions I don't know if, if you have any of that background or waiting for him or. So I wasn't involved in those discussions about the language so I'm not sure how they, how they came to that there may have been I don't know if there were committee members that were involved in crafting some of these requirements. I don't think on our community. James pepper is up next in the Senate, let me see if I can get a hold of David he's also down there. Over there or whatever. Okay, thank you. Folks for bearing with me. All right, well then I think what I'm going to do is until we see them come on. So what I'd like to do is I do see that that Falco is here and he has not had an opportunity to testify at all on the bill so if we could turn to him and bring that would give you an opportunity to hear his concerns and then when we can come back to the recording section when our witnesses are available. So, thank you. And thank you all for having me my name for the record is Falco Schilling and I'm the advocacy director for the ACLU of Vermont. So this, when you look at this change this proposed change the legislation, at least the proposed change and they hate crimes and the cross burning sections as a small word change but this is, as you all I think have figured out a very complicated area of the law where there's a lot of moving pieces, and a lot of factors that need to be considered. And so when you're thinking about this where the ACLU is has neat things we need to balance a number of important factors. One is the clear intent to protect people from this type of discrimination, which is intended and often has the effect of depriving people of their basic rights to participate in society. And then at the same time balancing that with protected constitutional rights for free speech and free association, as well as the other considerations around is criminalization the correct tool to be using to try and address hate speech, as well as how it's going to be implemented and will this be used in a manner that might not have been intended by the community, or by the legislature and passing such a legislation and how it might in fact be used in a way that discriminates against the very people that is meant to protect. So when weighing all those factors that the ACLU's policy is that we need to make sure that the statute is really narrowly drawn, and that when looking at the, the evidence that comes into help to bolster or create a case around a hate crimes argument that that evidence needs to be very closely drawn and specifically related to the crime itself, and the intentional selection of a victim for that crime, not just on general actions or protected thoughts association and speech that could to show a larger motivation so I did submit some proposed language to the committee last night that speaks specifically to the small change within the statute itself. I think that this proposal, both gets at the intent of what the Attorney General's office was trying to do in terms of removing maliciously, but also more narrowly draws the lines around what information would be gathered and helps bolster the constitutional protection so the proposed language change would just as you have in front of you would just be to remove the motivated and intend instead put in language that says intentionally selects the victim based on these characteristics I'm just pulling up the papers in front of me. Yeah, I want to make sure we all make sure it's posted and that we that we have it. I have it in my emails. Everybody else have it. Evan hasn't been posted. I have it. I think I sent it along. It might have come in after five or close to there. We've been trying to figure out exactly what submit on this so based so I will I can just walk through the actual language change very quickly if you're looking at the statute. Yeah, I can, I can email it. Let's see this is to members it's on your letterhead is that it. Yep. Okay. Nice. Why don't I email it to committee members. Sorry folks. Hopefully, folks are getting it now. I can also be happy just to read it aloud so that the folks falling along at home can also hear what I'm proposing as well so yeah, thank you folks have it. I'm happy to jump in but basically what we'd be asking is to change 13 vsa section 1455 to read a person who commits causes to be committed or attempts to commit any crime and intentionally selects the victim on the basis of their actual or perceived sexual or religious national national origin sex and stress free age service in the US armed forces dis or disability is defined by 21 bsa sexual orientation or gender identity. So the rest of that language after the proposed change is all the same, but it would change the from saying whose conduct is maliciously motivated by the victims actual or perceived factors to say, this selects the victim on the basis of their actual perceived race color, etc. So this is language that more closely tracks the statute that was that issue in the Supreme Court case of Wisconsin v Mitchell. And so that is one area that's one reason that we think that this could be helpful in terms of strengthening the statute. So it's closely tracks with it's in line with the ECL use position that to pass constitutional muster the statute must focus on conduct and intentionally selects the victim on the basis of individually discriminatory factors. So those are the reasons for the change. We think that this does accomplish what the AG was trying to accomplish by removing the requirement of showing a malicious motivation. This also helps pen in the inquiry into a into a more constitutional inquiry that is less likely to veer into protected things such as speech thought and association that might be used to show a larger motivation, but might not be directly related to the crime itself. So that is that is proposed change to this actual statute. There are concerns about the underlying statute itself and some thoughts about how that could be improved, but this is our proposal in relation to this small change, specifically related to the, the mode, removing maliciously. And I can keep going but happy to answer questions at this time if that's helpful. Thank you I do see that Selena's hand is up. I can, I can wait until you're done. Okay. Yeah. Thank you for one of the, we, there are some other larger concerns about the underlying statute. One is, I guess, kind of a belt and suspenders concern and that one of our major opposition to any hate crimes legislation in the past has been that it would require inquiries into constantly protected activities such as speech and association. So one way the underlying statute could be improved would be adding language, and I'm happy to send over another language suggestion if this is helpful that states that evidence of expression or association of the defendant may not be introduced as substance evidence at trial unless the evidence specifically relates to that offense. However, this would not affect the rules of evidence governing impeachment of a witness. I think would address what we're concerned about, but also make sure that that inquiry is more narrowly tailored and specific to the crime itself, because what we're concerned about is we don't want to be criminalizing thought, speech and behavior. And analyzing actions is what this bill is looking to do and we think this helps make that more clear is the actions that are motivated by hate and results in a crime that we that are acceptable to legislate in this manner. The other concern that we have is that this does apply to all crimes. The crime can have this enhancement put on it. It's the position of the ACLU that hate crime legislation should be limited to situations where the underlying criminal conduct involves harassment injury or threat of physical injury to the victim, or the damage or threatened damage the victims property. So in thinking about this, many, many, many of the crimes covered in this would fall under that category in talking to our attorneys they did have a concern, specifically around the fact that this would apply to things like disorderly conduct, especially since we do have a criminal threatening statute, which would, which would cover most of the situations we think this is rightfully applied to. So that is just a larger concern about the statute itself. I don't know if the committee is going to delve into that. But that is just one of our general concerns around the underlying statute as it already exists. On top of all that some of the other considerations that need to go into moving forward with legislation like this are one is criminalization, the correct way to try and address. To address hate and more and more we've seen evidence that further criminalization might not be the answer and we also have know that, as I've testified in front of this committee and multiple occasions that the increased sentence links are more links are one of the primary drivers of mass incarceration so in conjunction with the proposed report back that is in this bill at this point we think it's really important that it be tracked to see how often these enhancements are used. When they are used, and also importantly to know when they are you the demographics of the people they are they're being charged with these enhancements. There is a concern that these type of enhancements could be used in some situations to to actually criminalize behavior of people that they are intended to protect. If they are, you know, could be missing. So the way that the committee would need to, and the legislature would need to continually monitor these and we appreciate the inclusion of the study language. And then also would like to take this opportunity to make our pitch for age 317 which was introduced just that's the the Bureau of Racial Justice Statistics bill, which we think is really important would help further the ability to collect this type of data. In the proposed language it says that demographics will be collected went to the extent feasible. I understand that language but it's also disappointing that there's times that that will not be feasible and we think that should always be feasible. So we're making these types of decisions and we under trying to understand the impacts that these types of decisions have so to kind of sum everything up. In terms of this small specific change to the maliciously motivated language, we would suggest changing that to intentionally selects as has been shared with you. And if the committee wants to delve deeper into the statute itself, we could provide language around limiting the evidentiary inquiry to the, the two things that relate directly to the crime itself. We open to a discussion about the application of which crimes this should be applied to. I appreciate your testimony thank you so much. Am I correct though that at least this for the study. You do support the study I understand your concerns about the data not, you know, not being available. Okay, great. Thank you appreciate it so let's go to Selena and then Barbara. Oh, sorry. Thanks. Okay. So I'm not sure if the language has been posted at this point but just listening to you. It. It really struck me that what you're proposing creates a. I mean, yes, it eliminates the word maliciously. As this proposal does. But it seems like it creates a higher bar than current law firm to me and with the bar being the really intentional selection of a victim and the language that you're proposing around that and I wonder if you can speak to that and if that is, in fact, the, the intent behind the proposal. I think that we think this is the appropriate bar that should be applied this is the test that we believe should be applied when legislators are passing hate crime based, you know, legislation related to hate crimes, and that it needs to relate to the intentional selection of a victim as the basis for that enhancement. So I guess it could be looked at as possibly a higher bar but we're trying to make it clear and this is the state of position of the ACLU that this is the these are the factors that should be considered in any sort of hate crimes legislation. Thank you are you Selena you are you going to do a follow up. You answer my question. Thank you. Yeah, no thank you I was saying question Barbara. Thank you. Good morning. So, it's interesting because I've been talking to a, not a constituent but a Vermont or who I know well who was troubled about her adoptive child's brother, who was being horribly like bullied and stocked in elementary school or middle school, and no one first was able to do anything and she just mentioned to me that they are charging him with a hate crime related to stocking I think and I'm wondering if that seems like one of the crimes that the ACLU would recommend to be tied to this or not. I mean it was related to his race. So the position is that we would support this be related to crimes that involve harassment. So I think that would fall under that category. Thank you. Any, any other questions I'm not seeing any other hands and we're still waiting for our other witnesses. I just want to give you an opportunity to weigh in. Now if you have anything or if not we can, we can certainly wait. Sure. So, I think it is will probably be helpful for the committee to hear from the prosecutor's office and other attorneys who may be involved in these types of cases to weigh in on whether or not they see this as being a higher bar. I do think that the proposed changes change the elements that a prosecutor would need to prove in order to obtain an enhanced penalty for these types of this type of conduct. I would I think it's important for the committee to note that, and if it's helpful I can put it up on the screen again or if everybody has it on another device that the statute does require that the person. Commit a crime, and that crime be and actually the statute provides that the person's conduct has to be motivated by the victims protected status. So, as I understand the testimony of the ACLU there is some concern that they want to avoid criminalizing the thoughts or protected speech of defendants in these situations. This would like to point out that a prosecutor would still have to prove beyond a reasonable doubt that the defendant's conduct was motivated by the victims protected status. One suggestion that I can think of is to add the word criminal before conduct to make it clear that the statute requires that the defendant's criminal conduct has to be motivated motivated by the victims protected status. That may be another idea to make it clear that the legislature doesn't intend to criminalize the thoughts or protected speech of the defendant. I did want to point out that Title 7, Federal Title 7 makes it unlawful for an employer to discriminate because of a person's protected status. The Title 7 uses the words because of. So, and that has been upheld to be constitutional. So, so I'm not sure that you need to use the use that that heightened element and and have the statute still be constitutional or upheld as constitutional because you use that motivated by and again the suggestion was to add the word criminal to the word conduct to to ensure that the statute provides that defendants criminal conduct has to be motivated by the victims protected status that may be that that may be an alternative for the committee to think about. Okay, thank you and can you please say just or maybe explain a little bit more about the federal language in Title 7 that you just referred to. The Wisconsin case does refer to Title 7 in its analysis. I'll just read you that that portion of the statute, or the decision. So it provides a title seven, for example, makes it unlawful for an employer to discriminate against an employee quote because of such individuals race color religion sex or national origin. And the link to that is 42 USC section 2000 E. And then it cites some cases where they rejected an argument the title seven infringed on employers First Amendment rights. So I use that as an example because it comes from this case that upheld the state crime statute in Wisconsin. It's a little bit less specific language it just provides that title seven provides that that employers can't discriminate because of an employees protected status, which is a little bit similar to the hate motivated crime statute in Vermont which provides that defendants conducts be motivated by protected status so a little bit more similar wording there. Thank you. I'll go I don't know if you want to want to weigh in or or not. I mean, in relation to the proposal of, of adding criminal that's something I'd have to take back and talk with our attorneys. But yeah, I mostly our suggestion is one that has been the position of the ACLU since 1997 and is more directly taken from the language of the Wisconsin statute. So, I can't opine on whether or not the existing statute is in itself constitutional right now but think that this could work closely track with that decision is in line with ACLU positions on this issue. Okay. Thank you. Appreciate that. Barbara I think your hand is up probably from before. Okay. All right. So committee let's, let's take a break kind of stay close I know that David will be here. And about five or so minutes and I'm not sure about pepper so why don't we sort of stand at ease and watch our screens and but, you know, come back in about five or 10 minutes so we can hear from our other witnesses. Okay, thank you.