 So the way I understand it anyway is the issue that some people have now they may be paying for the SR 22 say for two and a half years and then they can't afford to pay it and then when they pick back up they have to start over and go no. So and I was here for that testimony but that's not entirely correct. Some factors could play into that so when you get suspended you are required to file this for three years from your date of eligibility. So theoretically I could get a DWI number one right now be subject to the financial responsibility law that's in effect for three years and I could sit back and not drive for three years and that requirement goes away. So if I was driving and got picked up for having no insurance then all of a sudden it starts over again. So I think what the individual that came and testified was talking about was she got picked up for no insurance, was filing the SR 22 then subsequently couldn't pay for it. So she got one in her suspension and got picked up for no insurance again. That caused it to go three more years. So with the three year penalties whatever you want to call it, with this language it still works the same way. Correct except for the no insurance would not cause you to file the SR 22. So you just get the ticket. Right but if you didn't have insurance for three years you weren't, didn't get cop driving then it would go away at the end of the three years. And it will work the same way for the one year on DUI ones. And the only time that gets would be a little bit different would be if you were under a life suspension. So for DUI three or more because you technically are suspended for life you're never eligible and then when you prove total abstinence you become eligible and then it's three years from now. So clarification is it from the point of when you're picked up or when you get your sentence? So for DUI, when the Department of Motor Vehicles issues your suspension it's a term so it's a DUI number one as an example. You would be suspended for 90 days. At the end of 90 days your three year period starts or in this new world your one year period starts. But that's not when you get the ticket that's when you go to court afterwards. So when the Department issues the suspension then you have to serve your term if you're talking a no insurance ticket. So I just got picked up and did not have insurance. I paid the ticket and went to the Judicial Bureau. Judicial Bureau notifies DMV as soon as it hits the system when it hits my system and it says no insurance INS our system would kick out a suspension letter to you that says you're required to file financial responsibility insurance for the next three years. Got you. So any idea how long it is between by the time you get picked up and you actually go through this whole process? So years ago we went through a process with the Judicial Bureau where they talked about the life cycle of a ticket and it could be 101 days from when you get the ticket until you're actually adjudicated depending on how it all flows out. So once you get the ticket you have 20 days to notify the Judicial Bureau of how you want to plea. Within 30 days I believe after that they would send you a notice and say hey you didn't send us a response and then they're going to notify the Department. The Department would give a 20 day lead time due process we have to give the opportunity for a hearing. So after all of those time frames chunked out it could be quite a while in between getting the ticket and actually having to file this or that. Does that happen frequently? I don't know how to say how many people just pay the ticket right off. I think some people do and some people don't so I don't have a good answer for that. Along the same lines you may not know the answer but say if somebody is going to contest the DUI but they do everything in a timely manner and you get to court and say that the earliest possible date and the idea from the time they get picked up until the conviction. I don't know. Because I think it depends on the courts and their busyness and stuff. I imagine Chittenden County is rather busy versus one that's small. So the only real problem there's two problematic pieces of this bill for the Department. The first is the effective date. So it's going to take us some work to be able to achieve this and upon passage it's going to be extremely hard for us. So one of the problems that we have and I was talking with the programmer this morning trying to figure out so if this went through how would we do this? Right now all convictions are all suspensions are kicked out based on the conviction code. DUI 1 we call this DA1 it's going to hit the system. I can deeply have that change to issue an SR22 requirement for one year. There are situations where at court it will be your second or third offense and the judge will convict you of DUI number one. Although when it comes to us we look at your record and you say one, two, three and I would give you a life suspension. So this is where it gets programing wise it's going to be problematic for us not insurmountable but problematic so we would ask that minimally July 1st preferably a little bit longer. One of the main reasons I ask for a little bit longer is when you look at the first section forward it's in here where it talks about going back in time that is going to be a manual process because of the fact that I can't just go to the computer system and say pick out all DUI number ones and end it because some of those DUI number ones may actually be number twos and number threes. It's just the way the system is set up and we put the conviction on based on what the judge convictions, conviction of, if I can spit that out, not necessarily what number conviction it is and I don't know if that makes sense. So September 1st, October 1st but like when you said July 1st or longer. Yeah, I mean, you know, the main thing that would concern me is make sure you have enough time. Yes, because the last thing I want to do is have some people that are not taking care of what others are. So I do not have a firm date as to how long this would take us. I mean, clearly if you said January 1st, 2021, that would be about the max that I would ask you for. We have to also balance this with everything else that comes through for July 1st. So any additional time you could give, we would take. Gracious. Okay, that's helpful. Yeah, let me just look at that timing part again. So between now and January 1st, my concern is that you might have a bunch more people that are getting added with three years and you're going to have to reprocess them. Is there a way that we can have a July 1st date, effective date, except for the work or for Section 4, it can be January 1st, the date for the waiver component of it. So you're not adding additional ones? No, I think that's actually wonderful. I need to talk to that. Yes, it does. You need a little time for a second. You need a little time. You don't want any of it effective right away. But as far as the going forward part of July 1st would be fine. Yes. Okay. Absolutely. So that would accomplish our goal and also give the department the opportunity to fix the other ones. Thanks. Thanks. Great. Thank you. Okay. Good afternoon. JVP with Piper Eglson Kramer this afternoon on behalf of the American Property Casualty Insurance Association. That's a national trade association numbering over 1,000 or so companies that write automobile property policy homeowners, several hundred of whom are licensed to Vermont for automobile insurance and include some Vermont based companies that we all know about. I've been asked to come in and comment on insurance reactions to the proposed strike all on age 578 and in particular the proposals to remove two violations from requiring an SR-22 and also the timeframe to maintain the SR-22 from three years to one. In looking at some of the testimony you received, either Wittenberg or Oral, my understanding is the motivation for this bill is in part to address certain populations that are having a hard time sort of coming out of the hole from an SR-22 or finding being able to meet that. Let's do that for now. Just a word on auto insurance underwriting. A number of factors will go into that that a company look at. The automobile, the make, the mileage, how many miles you drive. A very important part of the underwriting process is the driving record of the individual. Ensures access through DMV, three-year records which will identify violations, other information that helps ensures you get a better picture or understanding of the individual they're going to either renew for their insurance or give a new policy to. Ensures with that access to information to do a pretty good job in terms of identifying what potential risk for that individual is over time. And it won't surprise you to probably hear that those individuals that have higher violations, higher instances of risk are more likely to continue to make violations. Also, those individuals that have a higher risk profile are likely going to be asked to pay more for their insurance so that that premium would then match their potential risk. That's important for a number of reasons. Number one, to not only match the risk, but number two, for those of us, not me, who have the bad driving record, those of you with good driving records aren't necessarily subsidizing my poor driving so that the premium matches the risk profile and there isn't sort of subsidization of policy holders and drivers. Vermont is a mandatory state in terms of insurance, but I don't mean our laws, your familiarity requires individuals to have insurance and your predecessors and all, but New Hampshire have agreed that that's the right public policy to have and maintain all in, it's better for the system, it reduces uninsured motorist plans, it reduces costs, et cetera. Vermont's uninsured motorist rate currently actually compares very well nationally. Rate is around 6.8 percent and the national uninsured rate is around 13 percent. It's a number that can fluctuate annually, but right now, Vermont is compared very well. So as we look at this, with the auto insurance industry looks at this, I don't want to put it back on your lats, but it's really sort of a public policy question. In the interest of looking to help those that are facing the challenges there, do you want to run the potential risk of increasing uninsured motorist population on Vermont roads? The SR-22 is intended to act as an enforcement mechanism for people that are violating the law and not carrying, for example, proof of insurance, not carrying insurance. By removing that deterrent, are you then sort of signaling, well, it may be okay, or it looks easier to not have to maintain insurance? I don't know how many SR-22s are issued by DMV for this violation. I don't know how many SR-22s are sort of repeat offenders. In other words, do they satisfy the three-year requirement, and then that deterrent worked? Or are they back again with another SR-22 requirement? I'm not saying this will happen, but it certainly could be a potential outcome of removing this violation from requiring SR-22s. Maybe I'll just sort of leave it at that, I guess. I look at the three years to when we have no position on that. I don't know if you contemplated. It sounds like the timeframe from two to three years is the potential real challenge based upon what I've been hearing. I don't know if you thought about an initial step of having the one-year apply for a lack of maintaining insurance and see if that might work as opposed to removing that violation and its entirety. Just thought as I was sitting here, but I just thought I would share it with you from our perspective, potential impact. Now, there is an insurance market for individuals that have SR-22s, whether they're subsidiaries or affiliates of national companies, you might recognize. There's also a specialized market for companies that serve SR-22 populations. I can tell you that as someone reaches an SR-22 level, their risk for some companies may be too rich. They may say, sorry, we're not the company for you. You may want to look elsewhere and find auto insurance. So I just thought I'd mention sort of the market that's there as well. If someone's telling you that they can't find insurance, you can find insurance, but it's going to be more expensive. So make sure I understand your testimony, because actually, I just speak with Chairman Markoff, because one question would be, what's happened to his committee, and he sent us to you. So I want to make sure we really understand and lose. I understand the impact on the insurance industry and where you come down on this. Yeah, I mean, you know, I've kind of been straddling the line. Sorry if I haven't been clear. I mean, I think we see the biggest potential impact on increasing the number of ownership motors on Vermont roads. I don't know the numbers of SR-22. So I don't know if we're talking a lot. But if you remove the deterrent or enforcement mechanism, what sort of signal does that send? But I don't see, in terms of rating or insurance policies, again, for the vast majority of companies that represent, I don't see an impact. Because, again, when you've reached an SR-22, you're a very high-risk profile type individual, and you're probably looking at specialized insurance or secondary market insurance. So if that's one of your questions, hopefully that's an answer for you. Couple questions. So is somebody who doesn't, who operates without financial responsibility, without insurance, are they considered high-risk? It's one violation that gets thrown into that individual's profile. Some companies may take a different response. They may say, one, free buy at the Apple, no problem. Others may have an adjustment at premium, at renewal time. How does it compare to a DUI-2 or the reckless driving resulting in death and such? I mean, how does that rate, as far as how risky that particular individual is, somebody who simply has operated with, which I don't want people to do, but it's trying to rate that, as far as these other triggers for having an SR-22. It seems to be at a different level. So sure, I'm not exactly sure how companies would underwrite those different violations. I can certainly, it sounds like you're looking to move quickly, I can certainly look to try to get that information for you. But it would make intuitive sense that there's a different level of response. And my other question was, I understand your logic behind that, all right, this is supposed to be deterrence or enforcement for insuring people are getting insurance. Do you have any indication that our lower uninsured rate has anything to do with the SR-22 as an enforcement mechanism or deterrence for not having insurance? No, I don't have any data that would support that. There are a number of factors that would go into the uninsured motorists. What is the level of insurance that were required to maintain, for example? Could be one factor. It's interesting, it's also regional, the Northeast, and sort of northern Atlantic does very well in terms of its low uninsured motorist population. Other parts of the country are up in the 20% areas, for example, which is why we have sort of a 13% national rate. But expense, obviously, overall could be a factor that would drive the uninsured motorist rate up or down. And Vermont currently is a very attractive market for the consumer that's priced competitively. I think we're in the mid-40s in terms of average premium rates compared to other states. So it's very attractive. In the mid-40s, in terms of average premium across other states, we're situated very well in terms of affordability of insurance. Exactly. Other states like New Jersey have very, very high auto insurance, and it's much more of a factor for consumers down there. But obviously anything that is done to increase the price of insurance would have the potential impact to increase that number of uninsured motorists. Does this have, would this reflect the bundling of homeowners and auto too? Would this reflect that at all? Because the insurance companies are really pushing that now, right? You can certainly have, you know, achieves the discounts if you bundle some policies. I don't necessarily think that this would impact the bundling aspect. It would be more, the impact would be more on the individual's auto side, on the auto insurance side. But if they were forced into the SR22 or whatever it is, they're going to lose that insurance part, and then they're going to lose the bundling discount, right? If they lose the auto insurance, yes, they'll lose that eligibility for a... Which will cost them more money. But there's no way around that, anyway. So when I say lose that, that's it, right? Right, as I mentioned, companies will react differently to the SR22 requirement. But it certainly raises the risk profile. Thanks for the invitation. David Sharer with the Attorney General's Office. We certainly support the bill as it's been amended. This embodies what we were hoping to see. A couple quick notes, just in response to comments that had come up. Representative Gosselin, you had brought up the issue of, this seems like something that shouldn't be happening a lot or maybe happening a lot. And I did just want to refer you to our written testimony that we submitted, I think it was last, two, though, the most recent Tuesday that you were in a session, so two weeks ago. February 24th, we submitted stories that we gathered from our diversion programs around the state, because our folks do a lot of work with people who are trying to get re-licensed. And they were specific to the SR22 issue. So I won't take up too much of the committee's time right now, but you can take a look at that. There's a bunch of stories about how SR22 have been a real obstacle to people getting re-insured and getting re-licensed. One note on what you had mentioned. The, this was with respect to the suspensions for 1205, and I believe the way I read it is that all 1205 suspensions, which are suspensions that may happen for a DUI, but which are not as a result of a criminal conviction, they're the separate civil suspension that happens when you get a DUI or may happen to get a DUI. Those will all be one-year suspensions, because it's still covered under the first section, under, not under the first section, but under, let me, under section two. Under section, thank you, under section two. So that'll still be one-year. If, however, there is a criminal conviction of DUI second or subsequent, that's a three-year. So all the symbols, one, two, three, four, and two of them will all be one-year? Right, if there's no accompanying conviction, that's the, that'll be the default, boy, this is correct. Current law, right? No. No, it changed its current law. Wait, so I'm looking at it. So the default for all civils right now is three years, and the default for all civils going forward will be one-year. But again, if somebody gets a criminal conviction for a second or subsequent, it's a three-year. Okay, here. So just wanted to clarify that piece. Can I just ask you a very basic question? In what situation would you have three or four civil DUIs as opposed to it eventually becoming, or if they're being charged DUI? That is just beyond the scope of the bill, so yeah. I can just answer, I'm sure you might have an answer too. You know, from my experience practicing, I think it'd be very rare that you would have that many suspensions that are, that don't also eventually accompany a criminal conviction of a second or subsequent. It certainly is possible, because it often is plugged down that the first DUI is going down to a negligent operation, but they're still having to do the suspension. And then your second DUI, if you were to get one, then the prosecutor's more likely to be, all right, well, we already, we know we already gave you a break, as we can see you got this careless negligent, but you got the suspension, which means it was a DUI. So now we're not gonna give you your breaks. This is a DUI one, from the criminal side, but it's a two on the civil side. Is that a fair answer? Yes, absolutely. However, when we start talking about like multiple civil suspensions beyond two, I would have trouble believing that there'd be many prosecutors that wouldn't also be charging a second or subsequent DUI. You've got your third, you've got two bikes in the apple. Right, right. But yeah, that's just a practice question more than anything. And the final piece I would say is, you know, with respect to the licensing, I certainly appreciate the concern around making sure that people have insurance. I think our belief, which I admit is anecdotal, but from our, but it is a large number of anecdotes from our diversion programs is that removing some of the SR-22 burden will make it more likely that people are licensed drivers. And so our belief is that the sort of punitive aspect of this thing, it's an enforcement mechanism where the requirement to have it is actually making it less likely that we have licensed drivers on the road because the expense of sustaining the certificate is just too high. And that's the experience that we're seeing for folks who are really actually out there trying to get their licenses. So do you mean that's why we have more uninsured drivers on the road, at least unlicensed? Sorry. Both. Both. I mean, many, the plain reality as we all know is that many unlicensed people are still driving and that also means they're uninsured. It all certainly means that uninsured. So it's a little bit, I use those terms a little interchangeably, but that's because they often occur interchangeably. So it resulted in more insured and more licensed. That's, yes, based on the experience of our programs that we believe that this will resolve in more insured and more licensed drivers. Is there any concern at all that there could be a significant increase in DUIs coming up in your future that we're not ready to handle yet? Oh, you mean with respect to the, is this a Canvas bill in question? Yeah. You see how diplomatic that would be. Our office never, I think it's fair to say, it prosecutes DUIs or if we do, it's incredibly rare. So I think I would defer that question to the state's attorneys to what their impression might be because we really don't have the institutional experience on what we're seeing on the road because we used to aren't taking those cases. So I'd hesitate to weigh in on that and I'd let John Campbell or James Weber take swing at that. See, I ask diplomatic, and you answer political. No, diplomatic, political, it's the same thing. Because it doesn't want you to hear it. Yeah, that's right. All right, that was all I had if there's any other questions on it. Thank you. Thank you, thanks. So we are going to move on to the final four. Yeah, if you can look it up. Thank you so much. And it's one of our first bills, which I just can't see here, but we'll take a look at it. We're going to be taking it here. Okay, ready? Yes, sir. Ooh. Appreciate it, appreciate it. She's still fine. She's fine. She's fine. Cool. In fact, I don't think it's a good idea. How was Hogwarts? Yeah. It's okay, it's okay. It's okay, it's okay. How was my nurse support? She may have a friend today. He's the heck out of it. So did you have your journey of business I wish I could have. So good afternoon committee for the record, Brynn Hare from legislative council here to talk about each by 94. The bill is pretty brief, pretty straightforward. I thought I would give a little history to the felony murder rule first if that would be helpful. It'd be really helpful. What it is. Yeah, okay. Okay. And we're gone. Yeah. Sure. So at common law, the felony murder doctrine imputed the intent to murder when a death occurred during the perpetration of a felony. Even if the death was an accident or was otherwise non-intentional. And that, or that doctrine applied not only to the person who was committing the underlying felony who caused the death of a person but also to any accomplice who was there assisting the commission of the felony itself. So I'm not sure if that's clear to both. Right. So. Okay. A felony murder when somebody does. Yeah, so I'm talking about sort of generally like this goes back before Vermont case law has sort of narrowed the scope of the felony murder doctrine. So I'm gonna get to that in a minute but I'm talking about like historical cases at common law provided that if there was, a person who was committing a felony and another person died as a result of that, the commission of the felony, that the intent to commit that murder was sort of imputed on the person who was committing the felony itself. So separate felons, is that clear? So not just any murder, like a. Right, it could be like a robbery for example. And if there was any accomplices to that robbery, the intent to commit that murder could also be imputed to any accomplices in the robbery even if that accomplice didn't actually cause the. So using the robbery example, say two people break into some place and the other person gets shot by the homeowner, store owner. Could the other, could the second person still be charged for the murder at that? Right. They could under the common law, like historical common law, yes. Right. Okay. Perfect. So is that clear? So the driver for a bank robbery could. Yes. Could be held for the felony murder. That's right. Yes, even if they were not in the area where the, where they killed the accomplice. Part of the overall robbery has. Yes. So I would never play out for that, just a hair. Sorry, Bruce. So again, say bank robbery, they're, you know, they're getting away and somebody hits them and kills one of the people in the car. Yes. Okay. Wait a minute, who was it? No, no, the other, the other, the second person that committed the crime could still be charged with. Right. Yes, yes. The getaway car. Right. Oh, okay. Is it done for during the commission of a felony? Okay. That's the commission right for the, yeah. Yeah. I really like this one, I was in law school. Yeah. So, so this is a current law. No. So this is, I'm talking about sort of historical common law. Vermont law has narrowed from this, has narrowed the doctrine. Oh no. That is not current law in Vermont. I'm just sort of giving you a background or a history of what the felony murder rule is. Oh, all right, all right. Yeah. And now you're going to say how it works in Vermont? I am. Okay. I'm going to do that. I was hoping to make this clearer by giving you history. No it is, it's getting clearer than it is. So I'll tell you that there was a United States Supreme Court case that talked about the felony murder rule in 1987. And Justice Brennan wrote a dissenting opinion in which he said, he called the felony murder doctrine a curious doctrine that's a living fossil from a legal era in which all felonies were punishable by death. So in those circumstances, the state of mind of the felon was unimportant because he or she could be executed for simply unintentionally, or for intentionally committing the felony, not necessarily an associated murder. So Vermont, the Vermont Supreme Court has interpreted the felony murder rule narrowly to mitigate that harshness of the common law rule. And it's interpreted our murder statute, which is in the bill, 13 BSA 2301, to it's interpreted it narrowly and said that the intent of the legislature must have been to limit that common law felony murder rule in order to restrict its harshness. So, 13 BSA 2301, which we're going to look at in a minute, it's the murder statute. It precludes prosecution for first degree murder based solely on evidence that a defendant intended to commit one of the felonies that the statute enumerates and somebody dies during the commission of a felony. That's not sufficient for felony murder under the statute. So, in Vermont, so long as the state establishes that the defendant had the requisite mental state for a second degree murder conviction, any murder committed during the perpetration of one of those enumerated felonies constitutes first degree murder regardless of whether the defendant actually committed that killing. So, in addition to proving the defendant's intent to commit that one of those enumerated felonies, the state also has to establish that the defendant had one of the mental states for a second degree murder. And those include either the intent to kill, the intent to do great bodily harm, or a wanton disregard for human life with respect to the murder itself. And that wanton disregard for the human life is obviously the lowest level of mental state. So, at a minimum, the state in order to secure a conviction for felony murder, at a minimum, the state would have to prove that the defendant had a wanton disregard for human life and the requisite intent to commit the one of the enumerated felonies, even if that person did not actually commit the murder. So, the theory behind that limitation that the state has to prove the individual liability of each felon. So, even if, so there's one felon that actually committed the murder, and there's one accomplice felon that did not commit the murder, that person can still be held liable for felony murder if they had that requisite mental state. The court has held that it's fundamentally unfair and violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen and unagreed two results of another felon. So, each person who's committing that underlying felony has to have that requisite mental state. And if they don't, then, and the state cannot prove beyond a reasonable doubt that that person had the requisite mental state, the wanton disregard for human life, then there's no felony murder for that person. So, the felony murder rule is only when say that there's two people and something happens to one of them. Is that the, you know what I mean? The felony murder rule is saying two people break into the business, one of them gets shot, that and the other one can be charged for murder. Is that a good example of what the felony murder rule is, or is it? Well, it's a little broader than that because it doesn't have to be an accomplice. There could be just one person who's committing an enumerated felony, for example, a robbery. And if a death results during the commission of that robbery, for example, if... That's gonna drop some on the stairs. The homeowner, it has to be related to, it has to be caused during the commission of the felony. Okay. So it doesn't have to be one of the... Right, it doesn't have to be, okay, no, that's better. It doesn't have to be one of the people breaking in. Yeah, it's like the victim, like I said, fell down the stairs and died for whatever reason. Well, as long as the elements are met, so there are elements that need to be met in order for that to be a successful first degree murder process. We can, 17 year olds now can be charged as adults for murder, right, Ronald? Yes, because of the... Depending on situations. Yes, because that's a big 12 offense, so those are exempted from the changes in the juvenile jurisdiction laws. Should I say that again? Yes, because those are, murder is a big 12 offense and currently all the big 12 offenses are excluded for people over the age of 16, I believe, from the changes in the juvenile jurisdiction statute. So all people who commit offenses that are not big 12, all juveniles that commit offenses that are not big 12 offenses can be charged in the family division now. Right. But this is not... But the big 12, they can be charged as adults. Right. Okay. How does this affect that, or does that? How does the bill affect that? Yeah. Does it affect it taking away the potential to commit a 17 year olds as adults? No, I don't think it changes that. It just changes the requirements, the elements that are required for prosecuted to prove if the person is, for felony murder, if the person is 17 or under. Can the insanity defense be used at all in this? Yes. I mean, it's a... Hey, I'm not a lawyer. Yeah. Yes. But it doesn't really change the scope of this bill. Of how it would be looking forward to your help. How it would be prosecuted or anything like that. It would just be like an existing plea, right? Yeah, nothing about this changes the ability of a defendant to raise the insanity defense. Thanks. So, is that... Well, again, so what does this bill do then? Yeah, so I'll talk about the bill now. Yeah. So, section one, this is a one-section bill. It amends the murder degrees to fine statutes. And it provides that, it's essentially, like I said, it changes the elements for felony murder for juvenile, 17 or under. So, it creates that exception language in a new subdivision A. And then it creates a new subdivision B that says that an individual who's 17 or younger shall have committed first degree murder. It's the person actually committed the murder. Or if they don't actually commit the murder, if that person had the intent to commit murder and assisted another person in the commission of that murder. So, it changes what is currently required so that the person who's 17 or under would have actually had to have assisted, not only had that mental state for committing murder, but also would have to have assisted in the commission of the murder. Not just assisted in the commission of the felony. Just again. Pardon? Can you explain it again? Yeah, sure. So, like we talked about the felony murder rule that under Vermont case law is that if the person committed one of the enumerated felonies and also had that minimum requisite mental state of wanton disregard for human life, that person, if the state can prove those elements beyond reasonable doubt, that person can be convicted of first degree murder under the felony murder rule. So, they would not have to actually have been involved in the commission of the murder itself as long as they were involved in the commission of the felony and they had the requisite mental state for murder, second degree murder, then they could be found guilty. And this provides that anyone who's 17 or under has to have actually been involved in the commission of the killing itself. They have to have the mental state requirement and they also have to be involved in the actual commission of the murder. You probably won't be able to answer that. And I know you won't because I'm gonna ask you a question on policy, but I guess more or less to the committee is why wouldn't this apply to somebody committing a misdemeanor? Well, that's just the current law provides that there's only these enumerated felonies that apply for the felony murder rule. Right, and what I'm saying is somebody, to me, you know, if somebody's committing a felony or a misdemeanor and then somebody dies, the way I see it, there's no difference. They're still committing a crime and some of these died. But I understand that there's a certain, there's a list, there's a certain crimes that this is covered under. One more way, this is making a difference. Okay, and then the last subdivision too there just provides that a person who hasn't committed murder that is convicted of committing or attempting to commit one of the enumerated felonies shall be sentenced in accordance with the penalties associated with those enumerated felonies. I'm gonna be clear, I'm not looking to put this on to Mr. Peter, is that just? There was some part you said mental state, I should have wrote it down. That just caught my earing. Yeah, I can talk about the mental states again that are required for felony murder. Yeah, please? Sure, so the elements to felony murder are that the killing occurred while the defendant was committing a felony, one of those enumerated felonies. And in causing the death, the defendant acted with an intent to kill. Which, and we can talk about what intentionally means, intentionally is an act that's done purposefully and not inadvertently or because of a mistake or because of an accident, it was a purposeful conduct. Or the defendant acted with intent to do great bodily harm. And great bodily harm means bodily injury that involves a substantial risk of death, serious or permanent disfigurement or long-term loss or impairment of the function of any part of the body or bodily organ. Or a wanton disregard of the likelihood that death or great bodily harm would result. And a wanton act is a reckless act that's done with extreme indifference to the probability that death will occur as a result. So it's greater than extreme negligence, for example. Where's that language from? What part is that? I think that the case is state v. Jacobs. So it is a case, it's not a statute. Yes. Defining that. Give you that case if you want. Yeah, there was some word in there that I heard of. I think it was proving the mental state or something that it was like, how does I get done? It was probably a judge Pearson version. So, prosecutors. So, yeah, I'm sure that the prosecutors are glad to talk about that. The, they look at the circumstances of the case in order to determine a person's intent. With the mental, with the mental state. Rolled. Okay, all right, I'll just split. Thank you. Thank you. Good, she said. Thank you. James is Maxine. James, do you want? Hi, Madam Chair, yes, I'm on. Hi, so you're welcome. Do you want to testify now and then stay on the phone? Or do you want to, we have prosecutors and the Governor General's office and the Attorney General's office also going to testify? Do you want to maybe talk to us now about the, your work and thinking behind this, this bill and your working with other states that might be helpful? Absolutely, I can't really take enjoy it. Okay, and then are you able to stay on after, after you testify? Absolutely. Okay, great, okay. So go ahead. Well, thank you so much, Madam Chair and members of the committee for allowing me to testify today on H594, two really important pieces of legislation. My thoughts that I might just start out by giving a little bit of a history and background about why, you know, we're talking about this issue in the first place in terms of how kids are subjected to these sorts of penalties under the felony murder rule. Give a little bit of history of how the state courts around the country, including the U.S. Supreme Court have begun to evolve in terms of how they look at juvenile culpability relative to adults and then talk specifically about the intricacies of the felony murder rule and why given everything that we know about children, it's not an appropriate sanction to have in place in terms of the very harsh penalty that comes down on them given their diminished culpability. But let me first start off by thanking Representative Rachel for introducing this bill. Like I said, it's a really important piece of legislation that we see as integral to protecting the human rights of children in the U.S. justice system. And a little bit of history. Also, can you introduce yourself for the record in your affiliation, your organization, please? Absolutely. Jay is old for the record and I'm representing human rights to kids. We are a 501c3 nonprofit organization that's dedicated to promoting and protecting and advancing the human rights of children in the justice system. We work all across the country. We engage in policy advocacy as well as amicus advocacy in state courts and the federal courts across the country. So a little bit of history about this issue and sort of how we got to this place where we see so many kids subject to harsh penalties in the adult criminal justice system really sort of rewind the clocks when you go back to the late 1980s and early 1990s and there was a juvenile crime wave that had happened and a group of criminologists had theorized that there was this new group of super predator children who were coming of age who were more violent and less remorseful than ever before. These children were characterized as being godless, jobless and fatherless and states were really urged to make it easier to transfer children into the adult criminal justice system at that time to stem the coming crime wave as these criminologists believe was going to happen. So from the late 1980s into the mid 1990s and a little bit later, we see the trash of state legislation across the country. That does just that makes it very easy for kids to get transferred into the adult system which opens them up to these more sort of extreme punishments like life imprisonment as well as what we term the facto life sentences where kids can get 30, 35, 40, 50 year sentences that may not be age appropriate or trauma-informed given the particular circumstance of the child and their history and their background. So we fast forward a little bit over the next 15 to 20 years and there's a lot of new human brain and behavioral development science that comes out that really affirms what legal scholars and what parents, anybody who's raised children really knows which is that children are fundamentally different from adults. But for the first time, the science was actually able to prove that the prefrontal cortex in children isn't fully developed in the way that it is in an adult. And so as a result of that, they actually rely, which is why, number nine, one more primitive part of the brain called the mignal node, to process and to move and make decisions. It's impressive that children are more prone and susceptible to peer pressure and less likely to think through the long-term, simple conclusions of their decision-making or the consequences of their actions and why they're more impetuous. Now, it's one of the things that also, given what we know about the child's brain development, it's also what makes kids particularly successful to being able to be rehabilitated over time, particularly as the brain appears and their development happens over a period of time, which is also why some studies have shown that when you look at the rate of criminal behavior, the link with behavior that you will engage in, what we see is that the feeling with your criminal behavior in general is very common in adolescent children. But by the time children reach the age of 22, people, kids who've been involved in the justice system, we see a marked drop-off of their engagement in criminal behavior. And by the time they reach the age of 28, over 85% of them cease engaging in any sort of criminal or delinquent behavior. And we call this notion of aging out as prawns because we see so many kids who come into the system but after they grow, they no longer engage in the same sorts of conduct that got them there in the first place. This whole theory and this notion as well that underlined your whole brain behavior to the outside is backed up by how we teach children in every other area of society. We don't let children vote. They can't serve in the military. They can't enter the contract. They can't get married. We have certain protections in place to protect them from predators and people who play upon them because we inherently recognize that children are vulnerable. They're susceptible to being pressured into certain activities. And they don't necessarily think about issues in the same way that adults do. And so we sort of place these protections on them to protect them from others as well as protect them from themselves. Against this backdrop, the U.S. Supreme Court and the federal courts and state courts around the country began to sort of work as an issue of juvenile sentencing, starting back really in 1988 with a case called Oklahoma v. Constance where the court struck down the death penalty for children under the age of 16. But then sort of extended that doctrine in recent years to kids under the age of 18 in the case called Rupert v. Sevens relying a lot on juvenile brain and behavioral development side. These two cases stand for the proposition that kids are different and that the underlying rationale for getting rid of the death penalty for children really was informed by this idea that the penological justification for imposing the harshest possible punishment, that is this idea of retribution or a capacitation or retribution, really fall away when we look at the distinctive characteristics of youth. That is everything that I just explained based on the juvenile brain and behavioral development side as well as children's capacity to grow and mature over time. It's this underlying research and this underlying information that the court relied on to say that given everything that we know the use of these extreme punishments on children are disproportionate for child defendants because they have a diminished culpability relative to adults. That is to say that when a child and an adult, let's say a 17-year-old, for example, commits the same crime than a 30-year-old commits, while both crimes, depending on what the particular circumstances are, are going to be terrible. We are going to hold the adult offender more culpable and more responsible for the conduct because their brains are fully developed well as their children who are still going through that process of development in the current. So as the court lays the foundation for those kids who are different doctors, they issued several morseling court rulings in recent years. In 2010, they struck down life without parole for non-homicide offenses and they moved into the issue of life without parole for a kid who even invades a contract related offenses. And one of the cases that I wanted to highlight, Miller v. Alabama, is relevant to this conversation because it was involved in young men by the name of Countrywell Jackson, who had been convicted under a serious felony murder. In Mrs. Jackson's case, he was 14 years old. Him and another child offender decided that they were going to go and rob a arcade. Now, the whole sort of theory here was that the one kid who was going to go in and scare the clerk into giving him the money, Countrywell Jackson's role, what's going to be for him to stand as a lookout. So he actually never went into the store. He was standing on the outside of the store while his friend went in with what he thought was going to be kind of just a smash and grab. He was going to grab the cash and run out. But the other kid ended up having it done on him and ended up shooting and killing the store clerk. And as the kid comes out of the store, he takes off and runs. Mr. Jackson, not having any idea that the court defendant was going in there and was going to kill this guy, was still equally liable under the felony murder rule because you're essentially assumed to have transferred a tent that is, even if you don't hold a trigger, even if you don't intend for anybody to get killed, the lawful will be responsible for any quote-unquote sociable consequences or probable consequences that could result, as a result of you engaging in an underlying felony offense. Next to you, James, we have a, yeah. James, Tom Berda here. I met you a couple of weeks ago when you were in here. So in the question may not be for you, it may be for somebody else that's around the table here. In Vermont, can a 14-year-old be charged with this? No, in Vermont, I don't know. So that might be a great question for the public defender of the Attorney General's office. I know that 15 and 17 year old, but certainly, I don't know the age of the car for the chance to lodge. Right, right. Yeah, there's some people in here that might be able to answer, but I want to get that out on the table anyway, and maybe they can address it when they sit in the witness chair. Thank you. And James, Maxine and I should have told you, we need to get everybody in and stop by four o'clock because there's a special public hearing that members may want to go to. So just, if I could ask you to speak for a minute, just another few minutes, because I do want to make sure that we hear from the other, the folks that are there, prosecutors, defender of general's office and attorney general's office. Absolutely, absolutely. Thank you. I will make my remarks as well as the way you put it. As I was saying, this notion of kids are different, really set off this idea that there are individual circumstances that sentences judges courts need to be looking at when it comes to kids, and in the Miller case, the court said that these sentences misses too much if they treat every child as an adult and sentenced every child as an adult without regard for their child status. The reason that H594 is so important is because it gets rid of the felony murder rule that doesn't have this distinguishing characteristics for when an adult commits a felony offense when somebody ends up getting killed as a result versus a child who doesn't have the same capacity to proceed unintended consequences. So the remarks to claim court just very briefly sort of affirmed the felony murder rule in 2017 and basically there. And you know, essentially the elements for this is you know, essentially if the state proves that a defendant simply hasn't the intent to commit an enumerated felony and that the defendant had, at a minimum, a watch in disregard for human life, that is to say that they acted with extreme recklessness and extremely reckless conduct in regards to the probable consequences of taking human life. And so, you know, you don't have to be a child, you don't have to necessarily intend for anybody to be hurt or killed. They can simply be like in control states and go along with a robbery and not think you know, anybody's armed or anything, you know, how anybody could be killed as a result and yet they can still be held liable because the underlying felony offense is such that there's this sort of presumption that the conduct itself disregards the possibility that a person could die during the commission of the offense. And this is the problem with when you have legal standards that hold children to the same standards as adults because we can certainly all agree that, you know, for an adult vendor, you know, they're gonna be able to foresee unintended consequences that a child might not necessarily be able to. And so it's against that backdrop that we really wanna be able to say that, you know, we're not gonna hold children to the same legal standards that we do adults. And it's not to say that we're trying to resolve children, their responsibility for the harm that's caused by their actions. Quite the contrary, we want to be able to hold them responsible for what they engage in and the harm that they cause, but we wanna do those in a way that age appropriately and trauma-informed and reflects what we know about the children. And it's reflective of how we treat children differently in every single other area of our lives outside of the criminal context. And so, you know, under age 594, kids who engage in an unlawful crime, where somebody ends up being killed, but they don't intend for somebody to be killed or where they don't act with them as the aid or as that person, will be held liable, totally liable for their conduct. They will just be convicted and sentenced under the underlying felony sentence for which they originally engaged in that conduct. And so, against that backdrop that, you know, we would really urge the committee to support this bill and the necessary change in the law to comport with international human rights then, to comport with the juvenile brain and behavioral development science that shows us that we need to be treating children differently and adjust the system and have different legal standards for them. It's not about involving anybody with any culpability, but it is to say, it is a question of degree and what should be the consequences for a kid like in control of the accident case or so many other kids who don't necessarily intend for someone to be killed, but engage in an underlying felony offense where unfortunately that does happen. And so, we would submit that the appropriate response in such a case is to have a trauma and form an age-appropriate sentence because when a child is sentenced under the current regime, they're thinking a 35-year-to-life sentence that's a mandatory minimum. So they're gonna spend a minimum of 35 years in prison for not having actually killed anybody or intended for anybody to be killed. And as against that backdrop that, we wanna make sure that helpful 504 is enacted in the law so that we treat our children in more inappropriate ways and protect their human rights and with that, I will go and close my testimony. I'll be happy to stay on the phone and answer any questions that can be numbers they have. Thank you. Great. Thank you so much. Marshall Paul from the Office of the Defender General. I wanna start by saying that we support this billing concept, the idea of, in particular, of limiting juveniles' exposure to sentencing particularly for offenses that really involve a really sophisticated level of intent is a good idea, largely because kids' brains are not developed enough to really effectively develop sophisticated levels of intent. So we think it's a good idea. However, we have some real concerns about the way the bill is drafted. So just to begin with from the outset, this is a really complicated area of law and it's particularly complicated in Vermont. We are, as far as I can tell, the only state in the union that does not have a codified murder statute. Used to be us in Tennessee that still had common law murder statutes. Tennessee, it seems, has codified its murder statute. So nowhere in our statutory scheme, nowhere in section 2301 or anywhere else in the statutes do you find a definition of murder. Instead, you just find a statute that says, if you commit murder, then you shall be punished like this. And if you commit murder in a different way, you shall be punished like this, but there's nowhere that it actually spells out the elements of murder. So one of the problems with that is that when you start taking statutes and putting the elements of a common law offense into a statute, you really run the risk of changing the nature of the offense. Because for years and years and years, this law has developed through court decisions, not through statutory refining. And so it's super important to be very careful if we go down the road of writing this into statute, that we don't put anything into the statute that doesn't exist in the common law explicitly, and that we don't do it in any way that implies that we are changing the common law around murder. And so that's why I have some concerns about this, and I'll start my concerns with, when you look at the proposed language in, let's see. So to begin with, I'll go to the end. The language in the section B2, we would just say is, actually it's not B2, it is, or no, it is B2, number one, B2. We would say that that's unnecessary. All that language actually says is that someone who hasn't committed murder shouldn't be punished for committing murder, and if they've committed a felony, they should be punished for the felony they committed, which is the law anyway. And so putting this in there, the concern would be that by saying it, it some way implies that either this wasn't the case before, and therefore the legislature is repealing something, or there's, as a defense attorney, I would come up with a lot of arguments about what the legislature must have meant by doing something that everybody presumes to be law already and putting it in statute, but that must mean that it wasn't the law in the first place or something. It just adds confusion where there doesn't need to be any. Same with section B1A, so this B1A and B, which really talk about how a person under the age of 17 can commit murder, and what it basically does is tries to say someone under the age of 17 can commit murder by doing any of the first two things in section A, but not the third thing in section A. I think there's a lot easier of a way to do that. If we were gonna do that, I think the better way would be to, in subsection A, to simply start with the existing statute and create some subsections in subsection A, so that it would say murder committed by means of subsection one, poison, subsection two, lying in wait, subsection three, willful deliberate and premeditated killing, or subsection four, committed in perpetrating or attempting to perpetrate or some sexual assault, aggravated, et cetera, shall be murder in the first degree, all other kinds of murder, shall be murder in the second degree, and then you could drop a subsection B, which said no one under the age, no one shall be charged with subsection A4 under the, for an offense committed under the age of 17. That way you wouldn't be tinkering with the sort of substantive language, but still be accomplishing the same thing, which is saying someone who commits one of these offenses under the age of 17 should not get a first degree murder sentence for it. Now just to, I don't wanna take up too much of John's time, so I'll try to knock this out in like two minutes, just to not see if a little bit of background as to why we support this conceptually, felony murder rule has always been very controversial. It started out as a rule that really accomplished nothing because it was a rule that said that if you committed, if you killed someone while committing a felony, then you would be punished as if you had intentionally murdered them. When they created that rule at the time, the punishment for committing a murder was exactly the same as the punishment for committing any felony. So saying that if you commit a felony and somebody dies, you get punished for murder was really kind of meaningless. That was true for quite a long time. Has that changed? It really exposed some of the problems with this doctor and where you really are, you wind up with some really absurd results. For example, in Vermont, I have a client who's serving life without parole for felony murder. He is not the person who actually killed someone. He was a accessory. The person who actually killed someone did not get life without parole. And that's something that you see all the time. You see people who were the person who actually committed the killing gets the lesser sentence than the person who didn't commit the killing. You can see that when I look at cases, not just in Vermont, but in neighboring states where that's happened, you really see some really kind of scary optics around that. There's a case from New Hampshire I'm aware of where two people committed a rape and murder. One person was the one who actually committed the murder. The other person was in the car at the time that the murder was committed. The person who committed the murder was a middle-aged white man from New Hampshire. The person who was waiting in the car was a younger black man from somewhere in Massachusetts. That guy got life without. The guy who actually committed the murder did. So that's a scenario that can come up. It sort of speaks to the absurdity of saying we're gonna punish people as if they committed murder when they in fact didn't. So we certainly support that. And just to touch on a question that was asked earlier, this murder is the one offense in Vermont that you can be charged with at least as a juvenile all the way down to age zero. There is no bottom age for murder. So you can be charged as a delinquent with committing murder when you're two years old. No, that's never happened. And honestly, I don't think that you could ever really craft the situation where somebody under the age of 10 had the mental state that it took to commit a murder. But if you are 14 or older, any of these offenses, it's not a maybe charged in adult court. It must be charged in adult court. They are all these big 12 offenses if you're over the age of 14 mandatory adult court. You can move to transfer down, but it's gotta start charged in adult court. So not to put words in your mouth, but what I kind of took from your testimony was that maybe you would like to see our murder laws codified before doing something like this. Would it make things simpler? I don't know about that, and I'm not actually sure that it's a good point. If you could ask me if we could go back in time to 1983 and codify our murder laws then, that might make a lot more sense than doing it now. The reason being that there's a lot of law that's developed and built up in the courts around murder, because it's not just murder. It's all of our homicide offenses. So it's murder, second degree murder, first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter. We have a real body of law built up that it would be hard to take that body of law and codify it, and it would be hard to codify a law that is consistent with that. So you'd really be looking at making substantive change to that, and I don't know if there's appetite for making substantive change to our homicide laws at this point. Okay. Thank you. The chair's breaking. Thank you, Committee. John Campbell, Executive Director of the State Services, the chair is not here for James Pepper, who was going to testify, but his son is ill, so they're taking care of the fall. So he just texted me, and unfortunately they're on the way to the hospital, so I'm in the moment, yeah. Anyway, first if I could say that this statue, the bill, we had sent it around to the various state's attorneys, and there was only one state's attorney that was supportive, everyone else did not support this, and really what it comes down to is this is a policy decision that you all are going to have to make, and personally I believe that there is a purpose for this law. It's not one that you see commonly used. It's just not, it's one where there has to be some very specific facts bring through the elements, and the elements, again, as Marshall pointed out, that this has really developed more through our case law than what you read in the statute. Because if you read in the statute, the statute is just one of the ones where actually I think that there are probably more problems even than Marshall pointed out. I think that there's a possibility of being challenged, but the cases where it has been used was, in fact, the O'Hagan cases is probably the prime example, and that was in the Northeast Kingdom where there was three, I believe there were cousins, they went in with the intent to verbalize this O'Hagan's house, and they decided that they were going to bring guns to it, but they all decided they were going to be on loaded guns, except for one of them. One decided to bring a loaded gun, and of course, when they went in there, Mrs. O'Hagan was not asleep like they planned or they thought, and there was an altercation sued and the one person shot Mrs. O'Hagan and killed her, and the other gentlemen went in there and they were charged with felony murder, in this case, and in this case, obviously when the Supreme Court said that, even though they thought, well, I've got an unloading gun, so I shouldn't be, nothing's gonna happen, they should realize that there was a chance, a very significant chance of some bodily injury, death of bodily injury happening, whether it be from their gun, or from somebody that might be inside that might have a gun of their own when they see someone else with a gun, and so that they found it's they found that the felony murder rule did apply. So you have to look at, I think, what we are trying to accomplish with the felony murder rule here in Vermont. It is different than, you know, almost any place else in the country, and certainly the one that we all learned in law school, that has changed drastically through either common law decisions by courts or statutory changes, and probably for the best, because I think that the original felony murder rule, as, again, as Marshall pointed out, it just, it didn't, it sometimes reached absurd results. And however, I think that the courts through the states have seen this, and they have acted accordingly. So I also believe that if you start to amend this current statute, you really have to stand a chance of, I hate to use the word mucking, but mucking it up, not only from the standpoint of the potential of questioning what actually, you know, if a murder can be charged here or some of the crime can be charged, but also in thinking about all of the other work that you all have done over this past year and the past couple of years, just for sentencing and the fact that you have adjusted sentencing is down and you know, you have a situation where if it's a certain person, they're in it with good time and with this and with that, you know, somebody who might've gotten a 15 year sentence is down now to seven years, a seven year sentence. And finally, because I know you gotta get out of your mind, before the last thing I wanted to say was just also to remind you that this, the felony murder rule as far as to dropping it down with the age, I think it came out of, and I was not here, it came out of the case, it was a terrible case on the Essex where the 12 year old girls were abducted by a 14 or a 13 and 14 year old boys who rape, tortured and murdered one of the girls and one, fortunately, they left both of them to die, but one, fortunately, made it out. The one person is still serving time in prison now, but the one, one of the boys was, he was arrested and he's, I think they used a DCF custody for two years, then he got out, changed his name and nobody knows where he is now, today. So, if this was something that we used on a regular basis and it was done frequently and without really good cause, I would say you should take a serious look at it. But even then, I would take a serious look to where you make sure that you cover all your bases, not all your eyes and cross all your teeth. However, it's not really, it's not used that frequently. And so, it's not as if you don't act right now that something terrible is gonna happen or that someone is going to be negatively impacted. So, I would just urge you to use caution in dealing with this statute and this bill.