 Welcome. Good afternoon. It is Wednesday, April 14th. Welcome to Vermont House Judiciary Committee. And we are going to be looking at S7 regarding expungement, which is a bill that we've been working on for quite some time right now. And we have with us, Attorney Bryn Hare, I thought it would be helpful for the committee to get very high level kind of walkthrough overview of the bill. Reminder of where this bill came from, the genesis of the bill. And then review some of the testimony that we heard and in reference to the bill and how that testimony fits. And then we do also have a memo from the Office of the Executive Director of the State's Attorney's and Sheriff's because there is a policy decision that we have to have to make in the bill. And so we'll look at that as well. So with that, welcome Bryn. Thank you. Hi, good afternoon committee for the record, Bryn Hare from Legislative Council. So I will follow your lead on the best way to get started. But it sounds like maybe the high level overview of the bill, just like a return to the bill and do a high level walkthrough again might be a good way to start. Yeah, and actually, maybe actually tell like, where did this come from? Where? Yeah, sure. So I'll just remind the committee we talked about this when I first did the walkthrough. The genesis of the bill as as you know it passed the Senate last year before actually I think it was after the shutdown that it did pass the Senate last year. And the genesis of the bill last year was Act number 32 of 2019 was an expungement and sealing bill that the legislature passed that directed the sentencing commission to conduct like a comprehensive assessment of the sealing and expungement statutes and identify other crimes that should be eligible for sealing or expungement. As the committee is aware, there's only a there's a pretty short list of crimes right now that are eligible for sealing or expungement. I shouldn't say pretty short, but it's primarily misdemeanors are eligible for sealing or expungement and then you do have a list of a few felonies that are eligible now. So the sentencing commission in 2019 undertook this kind of big project, which was to take a look at take a comprehensive look at Vermont and how Vermont deals with sealing or expungement and identify what other crime should be eligible. How should Vermont do this in a way that is more that provides more access to sealing or expungement. So the commission issued their report in the fall of 2019. And the report is is where this bill came from. This bill really codifies the report's recommendations for the legislature. So in their report, as you know, they recommended that most crimes be eligible for sealing or expungement excluding excluding certain crimes. And as we know, that's the drug trafficking, drug trafficking offenses, and the listed crimes. So part of the commission's report was to establish the sort of tiered system for when offenses are eligible for sealing, and when they're eligible for expungement, if at all, qualified qualifying offenses, of course. And that is partially why this why the S seven is a pretty complex piece of legislation is because the sentencing commission's report established a pretty complex way of dealing with criminal offenses and whether they should be sealed or expunged or both. So I hope that's I hope that's helpful. I'll pause here to see if there are other questions about that before I before I go into S seven. Seeing any but that that is that is very helpful. And was that I forget if it was if there was a minority opinion, or if it was much majority of the sentencing commission or that no, there wasn't a minority report, as far as I'm aware. Great. Thank you. Tom Listed listed offenses. Where I should be able to just find it. But where do I find the listed offenses? Yeah, that's so it's funny, because I should have that memorized as well. But it's in title 13. I wonder if there's another witness on that can jump in. No, there's not is there? I will email it to the committee. It's just I can't remember the citation for the list of crimes. It's it's generally all of the violent offenses are listed crimes as as you probably know. But I can all send you guys the link to the statute as soon as I'm done here. Right. And what's on my mind is are the sexual offenses on there? Yes. Okay. And that would that would include women and children and all the above, I guess. I don't know what you mean by that. Well, I mean, we've dealt a lot in the last couple of years with some with sexual offenses, as far as women goes. And of course, with the ICAC stuff. So I guess I'll wait till I till I see see the list and I might be able to pose my little better. Representative Colburn just very handily pointed out that section one of the bill is the the list of crimes. That was just what it is you that was representative Donnelly, but you helped realize that I had just at inadvertently recycled my cheat sheet of the 12 crimes that I have been keeping on the back of an envelope. So I was able to retrieve it from there safely. Anyway, thank you whoever. Yeah, thank you. We can't say it's Monday or late Friday, unfortunately. No, no. Just Wednesday. Zoom time, as we were saying, so, okay. Okay, so I'm going to I'll go into the bill then. So I'm not going to I won't do a section by section walk through. It sounds like maybe the community doesn't need that level. But I'll just remind you that section one is the list of crime statute. And we've just got some technical corrections there that were recommended by the Sentencing Commission as a part of its report on expungement. Section two, this is the surcharge provision. So this is essentially implementing the provision that passed last year that allows surcharges to be waived by judges for expungement and ceiling proceedings. If the petitioner demonstrates an inability to pay. Section three is the definitions in the expungement chapter. So we're changing the definitions of the crimes that qualify for ceiling or expungement to include any criminal offense, except for those listed crimes that are found in section one, and drug trafficking offenses. It defines qualifying property offense, because that's one of the categories that the the next section identifies for ceiling or expungement. And it also defines subsequent offense, which is a phrase that appears throughout the bill. So I'm going to go to section four now. So unless I see some questions, because this is really the the heart of the bill that sets out the procedure for ceiling or expungement based on the category of offense. Right, so so we're neither now or at some point, but I noticed that most of the bill says ceiling expungement and ceiling or expungement or ceiling. So so at some point, if you can. Yeah, and that's really what I was going to talk about now in section four, because section four is where the bill sets out what offenses are eligible for ceiling and not expungement, what offenses are eligible for ceiling, and then later expungement, and then what offenses are eligible for expungement right off the bat. So we do we don't refer to them interchangeably. There is it is very specific within the statute what is eligible for what. Okay, so section four. I guess I'll start out with page nine, that new language at the bottom of page nine, I think you're gonna I think this is what the memo from the Office of States Attorneys and Sheriffs is about that language that provides that the prosecutor who prosecuted the case has to be the one who stipulates to a petition to seal or expunge that's filed earlier than what the statute provides for. So I won't go into that. You're going to talk about that later. Well, yeah, actually, I am going to ask you while you're okay. Where do you know where that language came from? So that language was a request of the Office of States Attorneys and Sheriffs in the Senate. Okay. Thank you. That did not appear in the bill as it passed the Senate last year. Okay. Thank you. Okay. Sorry. Where's that language? Are you talking about number two? Subsection two? Yeah, it's subdivision two. It's subdivision A2 on the bottom of page nine. So, so when you go and you say that, Britain, does that mean that all that means it's not the individual that prosecuted before it's just the state's attorney office is going to come back and prosecute again, correct? It's the office that prosecuted the case. Okay. Thank you. But prior to this language, it could could be that office or the Attorney General's office, correct? Correct. Okay. And do you understand why the why the change, why that was asked? I believe it's because the bill establishes this provision throughout this next section that we're going to go through that provides that for an earlier hearing, if the person files for expungement or ceiling before the statute, the statutory timeframe has elapsed, that is allowed as long as the prosecutor stipulates to that petition. So, because that's a new that's a new policy set out in the in the statute, I think that there was some desire on the part of the state's attorneys to ensure that it was if they had prosecuted the case, they would be the one who was reviewing the petition, as opposed to the Attorney General's office. And I think I mentioned before that there I think that the state's attorneys raised in the Senate the concern about the expungement clinics that were held where the Attorney General was reviewing those petitions. Okay. Thank you, Martin. So, while we're on this section, can't we put something in there that along the lines unless the state's attorney has delegated the authority to the AG? I would think I don't like how absolute it is. Even if the state's attorney wants to allow the AG to make these decisions at one of those clinics, this would prohibit that. But I just want to flag that as a possibility that might make this more acceptable. Could the Attorney General delegate or know that the state's attorney can agree that the AG can make that call? I think that you could come up with some language that would provide that in limited circumstances. They could waive the requirement that they be the one to stipulate to the petition. Yeah. Something along those lines. And maybe David Shearer can weigh in on precisely how that would work. But I know from my understanding and having participated in one of these clinics that some state's attorneys essentially informally say to the AG that, yeah, you can go ahead and take care of these for us. So, but this provision here would forbid that. So, allowing that flexibility I think might be a way to make this a tolerable provision. I'm looking for the current law. Is it just what's not underlined into or are we missing? Because they have concurrent jurisdiction now. You are, will you say what you mean by current law? Do you mean about this? Yeah. Yeah. I think it is just there in two that provides that the respondent is either prosecute, prosecuting office. Okay. And I think that David could explain that. Yeah, I think it's concurrent jurisdiction, but perhaps it's just out of courtesy that at these clinics, the AG clears it, you know, with, if they're in Chittin' Colony, clears it with the Chittin' Colony prosecutor, for instance. But David can tell me if I'm misremembering that. Okay. All right. Thanks. Sorry, Barbara. Barbara, go ahead. So, by us leaving the state attorneys' request in there, it sort of goes against one of our committee principles of geographic justice. And that concerns me. Where an argument for going to the AG's office is it would be uniformly handled. Okay. Thanks. Thank you. All right. We'll come back to this section. Okay. Thank you, Brynn. Okay. So, I'm going to move on to page 10 now and talk about the new language in subdivision five. And this is the provision. This was not in the bill as passed the Senate last year, but it was added this year in the Senate. And this is that specific provision for that applies to people who served a term of probation with payment of restitution as a condition of that probation. And once they've completed their probation, this language allows them to petition the court to adjust the waiting period, the statutory waiting period for stealing or expungement as set out in the statute. And the idea there was that if a person is on probation until they've paid their restitution, they may be on probation for a very long time as they make payments towards their restitution. And so this would allow them to petition the court and say, I'm supposed to wait, you know, eight years from the date that I've completed my sentence. But because I've been on probation so long, I'm petitioning the court to adjust that waiting period just in these specific circumstances. And I believe you heard testimony that the courts really don't impose restitution as a condition of probation anymore. So this is probably going to apply to a pretty limited subset of people moving forward. Okay. And could this section be seen as one of the areas that raises the DOC's concerns? So I hesitate to speak for the department, but conceivably because it would allow a person to petition to have their record expunged prior to the statutory waiting periods, which are triggered by the completion of the sentence or the completion of a subsequent offense sentence. It could be, yes. I mean, from how I understood the department to be characterizing their concerns, one of them was that if a person is serving a sentence for a subsequent offense, it concerned them that they could then have a prior conviction expunged. Okay. Thank you to folks. Understand that? Or want to explain again or? Yeah. Bryn, could you just do a hypothetical on it? I'm pretty sure I understand it, but I guess a hypothetical situation in with a hypothetical crime on what it might look like, I guess. And maybe even a little commentary on how DOC may not be favorable. So my understanding, and I don't, again, I'm just going to preface this by saying I'm not speaking for the department. I don't want to speak for the department, but I understand from the testimony I heard was that one of the concerns was the potential situation where a person who was serving an incarcerated sentence for a different crime was able to petition the court to have a prior conviction expunged. And that was concerning to the department for a few reasons. They talked about risk assessments. And I think they talked more generally about being concerned about being able to evaluate a person for their likelihood of reoffense once they're released. So I'll get the hypothetical I'll give is that should apply throughout the bill, not just specifically to the subsection five. But throughout the bill, there's a provision that a person can petition the court prior to the date that their conviction is eligible for expungement. They can petition the court for expungement or ceiling prior to that date. And if the prosecutor's office stipulates to that petition, then the court can go ahead and grant that ceiling or expungement. So that means that a person because the statutory timeframes in S seven are tied to the date the person completes their satisfies the judgment for their offense, be it the offense they're seeking expungement for or the or a subsequent offense, whichever is later. So if a person say a person commits a petty larceny, and they're trying to get their petty larceny conviction expunged, but they later commit another offense. And they are serving an incarcerated sentence for that other offense. They can petition the court to have that earlier conviction expunged ahead of ahead of schedule ahead of the timeframes that are set out in the statute. So if the prosecutor's office stipulate stipulates to that petition, then a person could conceivably be serving an incarcerated sentence and have an earlier conviction expunged while they are serving that incarcerated sentence. So that's my understanding of one of the areas that the department was concerned about. Sure. Yeah, yeah, I can certainly understand that. To me, expungement is, I guess, in a sense, a reward, I guess, for lack of better terms. To me, it's a reward for good behavior, I guess. And, you know, so people can get on with their lives. But if somebody has committed another crime, I don't personally just don't understand the reward after committing another crime, even though it's not the same crime. But maybe it's something we can talk about, or I think it's something we are going to talk about. It sounds like going forward, especially concerning the issues DOC may have with it. So, all right, thank you. Okay. Yeah, that's going to advance. Okay, thank you. Shall I keep going then? Yeah. Okay. So the remainder of this section sets out those tiers of offenses and how Ramana is going to handle sealing or expungement for various tiers of offenses. So the first one is at the bottom of page 10, subsection B. These are qualifying non-predicate misdemeanors and possession of a controlled substance offenses. So, this may be considered, you could consider this like the lowest level of offense. And for these, expungement is really the default. But the court may seal these offenses if it chooses in the interest of justice. So, you can see that. Oh, sorry, go ahead. I was going to have you remind us about predicate and non-predicate offenses. Sure. So, non-predicate offenses are offenses for which a later offense can't be levied to increase the sentence for a later offense. So, maybe I should say what predicate offenses, and this is also defined in the bill. So, it's a criminal offense that can be used to enhance a sentence for a later conviction. And so, it would include things like a DUI conviction is a predicate offense. A later DUI conviction can result in a greater penalty if you have a prior DUI conviction. So, non-predicate offenses are offenses for which there's not an enhanced sentence if you commit the same offense again later. So, with the DUIs, if you have a DUI one that's been 10 years, it can't be used to increase the sentence, right? Around. Right. So, the bill handles DUI separately from other types of offenses. So, we're going to get to that in a minute. We can talk about that when we get there. Okay. So, these non-predicate misdemeanors and possession of a controlled substance offense are eligible for expungement five years after the date the person satisfies the judgment for the offense, or if the person commits a later offense, a subsequent offense, the date on which the person satisfied the judgment for the subsequent offense, whichever is later. So, essentially the person has to have five years clear of no additional offenses, and then they're eligible to have the offense expunged. But also, I just want to point out that there is a provision that if the court finds that a ceiling would better serve the interest of justice, the court can order that the record be sealed rather than expunged. So, I'm sorry. Does anybody else have there? Nobody else does. So, after five years expungement can be considered. I guess, why wouldn't it be considered if somebody had been, you know, had met all the stipulations? I'm sorry. I have another phone ringing, and I can you just repeat that question for me? Sure. Sure. Yeah. So, after five years, expungement can be considered. And so, why wouldn't expungement be be granted if somebody had followed all the recommendations and stipulations? Right. So, as long as the person is eligible for other reasons that are enumerated in the statute, then the court will grant the expungement. That's the way that it's set up. Okay. Yes. But again, I was just pointing out the provision about ceilings. I know there were some questions about when do we seal and when do we expunge. So, I just wanted to make it clear that ceiling is also available for these offenses if in the judge's discretion that would better serve the interest of justice. And also, the prosecutor can make an argument that ceiling better serves the interest of justice at the hearing. And that's current law, right? That's current law. Yes. Okay. Thank you. And while we're, while we're, oh wait, not yet, I guess. Sorry. Later on, I want to point some, I want to point out a typo in the bill that I need to fix. So, we're ready to move on to subsection C. Okay. So, I'm going to move on to page 12. Subsection C, now we're going to move on to the qualifying predicate misdemeanors. And again, DUIs are handled separately, but qualifying predicate misdemeanors. Ceiling is the default for these offenses. So, it provides that the court shall grant the petition in order that the record be sealed if five years have elapsed since the person satisfied the judgment. So, it's again, again, a five year waiting period. Or if the person committed a subsequent offense, then five years from the date on which the person completed their sentence for that subsequent offense. And then, if you look to page 13, it also provides that, oh, I just want to point out on page 13, the line 13, you see the word expungement there. That should be sealing that I need to, that's a correction I need to make if the committee decides to amend the bill. I have made a note of that. I just wanted to point that out for the committee. So, so, Bryn, I think actually this would be a good time to either read or at the hypothetical that you said again, or another hypothetical that, you know, would explain this, the default of sealing. Because I think there might be an impression that sealing isn't done all that often. Right, so this is really a new, this is new policy here, different from existing law. So predicate misdemeanor offenses aren't eligible for expungement currently. So, S7 would open it up to sealing eligibility for predicate misdemeanor offenses. Again, within that, you have to wait five years from the time you complete your sentence. And then, if you look to page 14, it provides that those offenses are eligible for expungement five years after the sealing order, if the person hasn't committed any subsequent offense from the time that the original conviction was sealed. So, using that hypothetical, if a person commits some predicate misdemeanor offense, I'm blanking on one right now, they could be eligible to have that offense sealed five years later from the date that they completed their sentence for that predicate misdemeanor. If they commit another offense during that five years, then they have to wait five years from the date that they've completed the sentence for that subsequent offense. And then the record is eligible for sealing. And then, if they don't commit, so say they petition the court and the court grants the petition to seal that underlying predicate misdemeanor offense. As long as the person doesn't commit any other offense five years from the date of the sealing order, they can then petition the court to have the record expunged. So, essentially, that would be 10 years free of committing any offenses. Would they be eligible to have that record expunged? And again, the provision applies. I just want to point out that throughout the provision applies that if a person petitions the court early prior to that statutory timeframe, and the prosecutor stipulates to the petition, they can have it sealed or expunged early. But again, that would be if the prosecutor stipulates to that early petition. Thank you. Okay, so I'm going to actually keep going. So, I'm on page 14 now. And then subsection G, this is the DUI offenses provision. And the bill really doesn't change the way sealing or expungement happens for DUIs in a substantive way. What it provides for is that a person can have a DUI conviction sealed 10 years after the date that the person completed their sentence for that conviction. So, no substantive changes to the existing law there. And I can answer questions about that. Just wondering if those DUIs, is that automatically sealed or does it have to be petitioned? No, it has to be petitioned. Okay. And how do you do that? Asking for a friend. You know, I can send you some links to how that process unfolds if that would be helpful. It would. Okay. Thank you. Ken. Why were the DUI offenses 10 years and other offenses were only five? You know, when the legislature passed Act 32 in 2019, there was quite a bit of conversation about opening up access to sealing for DUI offenses, because currently they're not eligible for sealing or expungement. So, the idea is that it's really a, you know, it was a policy decision based on the idea that DUI offenses are predicate offenses and that they are seen as a public safety type of offense. So, they had a, the legislature established a longer timeframe, a longer look back, if you will, for, for DUI offenses and for other offenses. But, okay. All right. I answered my own question. Thank you. Selena. And then Tom. So, I was the reporter for that bill. And I think also at the time we heard some testimony from the Department of Public Safety that without sort of allowing the, a certain window of look back time in case there were subsequent offenses that we would be putting perhaps some federal funding at risk that they use for highway safety. Thanks. So, that was, I think DPS was helping us to weigh in and figure out how to structure that in a way that they would be, you know, that would not create that issue. All right. Thank you. Tom. And I think the first number that was thrown around a few years ago, I think it was, we had talked 20 years. And a couple years ago when we passed this, it got knocked back to 10. Thanks. I think the other thing with that was, was I was pretty staunch in, because I think at first it started with DWI, with it was just alcohol. And I didn't like that. And where I was just going back with Bren, when I was going to ask a question, is when I went back there and I see it's now DUI, which I don't think I caught that before. So, now that covers all categories, if I understand that right, which I think I do. So, I'm okay with that. Yeah. Driving under the influence means under the influence of any intoxicant. Yeah. The other thing, while I've just started, is it down further somewhere where the commercial driver's license is dealt with more by chance? So, it doesn't apply to people with a CDL. Those CDL licenses are carved out of this eligibility. And that I think was also due to a federal funding issue. Carved out. So, that means they can't be expunged. They can't be nothing, right? Right. Correct. They do not apply to DUIs on a commercial driver's license. I wonder if that has maybe since changed or been looked at, if you have been for clean for 10 years, or if there isn't another violation, for the simple reason is you've served your time, you know, all kinds of things that we've been gone, that we've done, and the need for drivers as long as they're safe. Right. I can look into that. I know the Senate probably also the House heard testimony from the DMV about this provision in 2019. So, it was, you know, three years ago, there was federal funding tied to this CDL issue, and that's why they were carved out. But that may have changed in the prior three years. I don't know. Thank you. Okay. Great. Keep going. Okay. So, I'm going to skip through over the burglary offenses. Burglary offenses are dealt with separately from other, from other crimes. And that's a 15-year look back timeframe. No substantive changes to that in S7. So, I'll turn to page 16, which is the qualifying property offenses that are defined earlier in the bill. And also, the selling dispensation or transport of regulated substances. So, for this category of crimes, ceiling, again, is the default. These are eligible for ceiling. Eight years after the person completed their sentence, or eight years after the person completed a later, the sentence for a later offense, whichever is later. And then it also provides on page 17 that the offenses, these offenses are later eligible for expungement. But I want to point out on page 17 that, again, I have an error here that needs to be corrected. Line four on page 17 refers to expungement that should say ceiling. And then it's the next subdivision, subdivision two right below it that provides that these sealed records for these types of offenses are eligible for expungement eight years later after the ceiling order as long as the person doesn't commit any subsequent offense. So, we've got eight years ceiling eligible and then eight years after that, as long as there's no subsequent offense, then they're eligible for expungement for this category of offenses. Okay, I'm going to keep going. So, subdivision J is qualifying felonies. And these are all felonies that don't fall in any of the earlier categories. And these are eligible for ceiling 10 years after the date, the person completes the sentence, or 10 years from the date that the person completes their sentence for a later offense, if they do commit a later offense, and they are not eligible for expungement. So, all of these other felonies that are not property offenses are not expungement eligible, only ceiling eligible with the 10 year look back. So, that completes that section of the bill. Those are the various categories of offenses and how the Sentencing Commission recommended that Vermont open eligibility for offenses to either be sealed or expunged and on what time frames. Right. And so, it looks like a number of these new provisions are just sealing as a default. Is that? Yes. Yes. I think the majority of them sealing as the default, except for, or at least ceiling happens first, and then there's a longer wait period for the offense to be eligible for expungement. But the only one that is eligible for expungement right off the bat is the first one, which is that non-predicate misdemeanor and possession of controlled substances offenses. Yeah. Thank you. So, I'll keep going to the build-in with that section five, which is the effective sealing statute. And this is that provision on the bottom of page 18 that clarifies that courts have to make a reasonable effort to notify individuals with a sealed record that they may, that offense may be eligible for expungement later on. And then we've got the, what does reasonable effort mean? That means first class mail, last known phone number. And then section six, sealing of records for individuals 21 or older, or I'm sorry, in younger. So under current law, youth under 21 shall have their juvenile record sealed two years after their final discharge if the individual wasn't convicted of a listed crime and the court is satisfied with their rehabilitation. So the change here raises that age to 24. So individuals up to 24 are eligible to have that offense sealed and also changes it so that as long as the person hasn't committed a list of defense 10, within 10 years of their application to seal. And then the other criteria are met, then they're eligible. So it raises the age and also kind of broadens eligibility for sealing a little bit. And then. Thank you. As I just, I think the current law on the effective sealing is important that the order shall be legally effective immediately and the person whose record is sealed should be treated in all respects as if he or she had never been arrested, convicted, et cetera. Oh, right. And that eligible or the effective sealing statute. Yes. Yeah. Yeah. Yeah. And I think, you know, just to talk about the corollary, which is the effective expungement statute, that statute provides that once a record, a criminal history record is expunged, all records of it have to be destroyed. But I wanted to remind the committee that there is a requirement that the court maintain a special index of cases that have been expunged. And the special index is includes only certain data points like the person's name and date of birth and the docket number. And I think the conviction, what the conviction was. And there's limited access to that special index. I think the access is only for the person whose record it is. And also for research purposes, the court can allow access to the special index. So if somebody who's had their record expunged is applying for a job and their future employer found on the internet that person you know, had been convicted of a crime, could that person petition the court, you know, for proof that from the special index. Yeah, I believe so because the statute provides that the person has access to this to the special index. So for if the employer called, the court would have to say no record exists, but if the person were able to access it themselves and provide it to their employer, I think that would be an option. Okay, because I know we are concerned with expungement that that would not be possible for somebody possibly entering the military or who is in line for new job. But it sounds like that really is not a concern under current law. So I guess I would respond to that by saying this the committees did here have her testimony about those concerns over the years as you've worked on stealing an expungement. And that's part of the reason why you've created that language that gives judges the discretion to order that record be sealed rather than expunged in the interest of justice. So that is an option. Also, but then you also did work on that language about the special index and you ensure that the person themselves would have access to that to that indexed record as well. But you may want to I mean, it may make sense to hear from the courts about that specific point, since they would know better. Thank you, Barbara. So, Bryn, I was going to ask you if somebody produces a subpoena for a sealed record, would that be permitted? If it's a valid subpoena? So this the effective sealing statute provides that it can be this a sealed record can be used for a later adjudication. It can be used by any entity that has that that sealed file. So that typically is going to apply for it to like the prosecutor's office. We'll have access to those records. So it isn't on par with expungement, because if it were truly expunged. Right. The person gets a fresh start. Right. The prosecutors retain access to those for for a limited purpose if the record is sealed. But again, if it's expunged, then that that access isn't there. And in looking at the collateral consequences resource center, it looks like half the states that seal and expunge give law enforcement access to sealed records. That sounds I mean, that sounds right to me. I don't want to confirm or deny that because I haven't done that reading. Sure. But would this be where is this bill on law enforcement access? So I think that law enforcement access includes the prosecutor. Prosecutors are considered law enforcement for purposes of enforcement of the criminal statutes. Is that what you mean? No, I mean, you get stopped by a police officer and they want to check and see if you have had priors. I see. So I don't believe that Vermont allows for for a law enforcement officer to access those sealed records immediately. But I would like to confirm that before I say it unequivocally. OK. And if they would have access through a subpoena. The other thing is what if somehow somebody violates this, whatever we choose to do and gives information, is there any relief that a dictum of it being released would have in terms of damages? I mean, I realize that's more civil. But like, is that something that we would need to put in the bill if we wanted to make sure, you know, there's not a yeah, they have a record, you know, record or. So I'm not sure. I think there there could be a civil cause of action depending on what kind of statement is asserted about the person. But if you mean if an entity violates their like, for example, if the court did not respond to an inquiry in accordance with the statute, is is that what you mean? I was thinking more if. Again, I read that a lot of these private clearance companies that people hire to do the clearances for them get lazy about updating their database. So let's say they say that Kate has a record when really last year she got her record expunged or sealed and she didn't get the job because somebody was careless. Right, I think I'm going to respond by saying I imagine that they're it's possible that there could be civil damages if if Kate could show that she suffered. She suffered some type of damages as a result of that exposure. But again, that's a great question. And I would like to think about it some more and maybe consult with some some experts in that practice area before I respond. And same thing probably with getting into public housing. If you have a felony sealed or getting a federal Pell Grant or something, you know, I just it feels like the stakes can be high for some of these things. Right. Yeah. And I was just quickly looking at the effective expungement statute to make sure I wasn't forgetting some like civil penalty that's put put into the statute and there is not one. Okay. But again, I understand that you're talking more broadly about the the private entities that conduct these record searches. I mean, it could be it could be anyone. It could be someone in the state attorney's office. It's a small town and, you know, they I don't know. Like I could just see a lot of ways that it could be shared if it's sealed. So anyway, thank you. Yeah. Well, I cannot get you in a second. Current law though does talk about who has access to to sealed records and it's and it seems like only people within the particular agency curve. So so DPS would have access to to all the records that they sealed. Is that correct? Am I reading that correctly? I'm looking at. Yes. Yep. That's how that's how I read that as well, that any agency that has that record can access it if in a in another litigation. Yeah, in terms of accessing it doesn't says they have access, right? So it doesn't say any an entity that possesses a sealed record may continue to use it for any litigation or claim that arises out of the same incident or currents and involves the same defendants. And then a criminal justice agency also has may use those criminal history records without limitation for any criminal justice purposes. And then again, those sealed records are admissible as evidence for in during a during a prosecution of a predicate a leader predicate offense. Okay, only for predicate offense. Okay. But also they are I mean, I think that the sentence prior to that that provides that law enforcement or criminal justice agencies can use it without limitation for criminal justice purposes means that it can be used in in a later prosecution, not necessarily just for a predicate offense. Okay. So we heard that we heard testimony about, you know, maybe the use of force and use of force litigation. And I'm not sure how many of those are really criminal. I always thought they were more unprofessional conduct. But but it sounds like law enforcement would have access to if there if there were criminal records regarding use of force. Is that is that correct? If the record was sealed, yes. And I think if you're talking about the records, the criminal history records of a law enforcement officer in a who who was adjudicated in a criminal court case for the use of force, I would just point out that that is is pretty infrequent. The if law enforcement do use force. And that force is deemed inappropriate. Often those are those are either civil proceedings or the officer is administratively determined to have have violated the use of force policy. So access to seal or sponge records and probably is not particularly relevant or if it is, it's very rare. I think so. That would that's my assessment that if you're talking about records of criminal records of law enforcement officers who are criminally prosecuted for using force, I think is pretty is pretty uncommon. Thank you, Ken. So, Bryn, representative Rachel Sen just brought up something that made my brain think. What happens if a landlord goes and rents an apartment or building or whatever to someone that's had an expungement or sealed or whatever? That person does something really, really bad in that person's building. Is a landlord held responsible for anything or does the expungement and seal cover the landlord for a possible lawsuit of renting out to a person that could have been known as bad from social media, something like that in the past. And now it could come back to like, well, if the landlord would have been paying attention back then or did his homework or something like that, it might have popped up. If you Google there's something like that. You know what I'm saying? I hope. I think so. I think that you may be asking a question about landlord civil liability for the decisions that a landlord may make about who he or she chooses to rent to. And if they have a record that's been expunged or sealed and then that person does something horribly wrong and then to a new victim and then the new victim decides to sue the landlord because they should have known that this situation was a problem from years ago. So that's an interesting hypothetical. I am off the cuff going to answer it. It sounds like it would probably be a tort claim and the duty of care that is owed by a landlord to their tenants would probably be satisfied by doing a criminal record check. And if that criminal record check didn't reveal any criminal history because that criminal history had been sealed or expunged, I would suspect that that landlord would not have violated their duty if they did do a criminal background check. If that is a part of how the landlord conducts their business. Is that clear? I mean I think that the idea is that if a record is sealed or expunged, people don't have access to it in general. So a landlord wouldn't have access to it. Yeah I understand that but I'm saying the way society is now that it's like I just have a concern that it could go back even further than that and it was like a public record at one time and then the current victim could go after a landlord that he should have known better even though it was expunged and sealed. That's all. It's a concern. I see. So that sounds like less of a question for me than more of a statement. Yeah thank you. Okay thanks bear with me as I'm asking this question. I'm trying to listen and go through the language of this bill and my brain is getting a little jumbled. So I'm looking at page 19 section 6 talking about stealing of records and brand new or just read it seemed like reading off some statutory language related to the stealing of records and how it could be used and I'm wondering if it's a language you were referencing is in the bill in front of us or is that from a different section of the statute? It's from a different section. I mean it's the same section of law but it's not in the bill. It appears where those like the ellipses are online. That's where that language appears in existing law. So it's the exceptions to the effect of a ceiling order. So that list of exceptions provides for who can have access to our sealed record despite the fact that it's sealed. So if you if you look online at 33 VSA 519 sub C you'll see that language. Okay and so does that like because the language is in this bill the way that it reads is like is essentially some version of like if something is sealed all that will be available is this like indexed information which is you know the name date of birth and the subject of the file the docket number and then it lists the people who could have access. It says that the special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file. So the language is in the bill seems like in theory very narrow but are you saying this other section and I can go back and look at the other language are you saying this other section is more expansive? Yes so I would say yes the language in the rest of this statute just fleshes this out a lot more and we do legislative council does this a lot we don't put in the full statute if we're not making any changes to a certain part of the statute but in this case it may have been helpful if that language about exceptions was was there in the bill for the committee to reference as you're as you're working through these issues so yes I would I would I would characterize the language that's in subsection C which is does not appear in the bill to be more expansive than than the language in E that provides for who has access to the special index. Okay that's helpful to know and then I guess maybe this is a question for I'm not sure this is a question for you but it makes me curious about the within the sections that we have again department or agency may request to unseal a file. Do folks know like I'm curious what that process is like is that a simple process is that a complex process like we're talking about unsealing a file try to get a sense of what that means. So the court administrator's office may have testified to this in previous years that that the legislature has worked on the expungement and sealing statutes but I it was technical enough in nature that I am not I don't remember and you may want to hear from them about that. Okay thank you Martin. So I just have a much more I guess basic question. Um why don't we have our own impact of sealing records under the expungement and have to refer to this statute that really deals with juvenile records as I understand it. Is am I missing something there? I mean 5119 is you know title 33 it's human services. I do understand that okay we have this kind of restrictions on when people can access sealed records but it's in the context it's in a different context. I understand there may be some overlap but I guess I'm just not understand why we don't have a whole separate here's the impact and here's the restrictions on the use of sealed records when those are records that have been sealed under the expungement statute. So we do have a statute that deals with the effective sealing is that what you mean because that's in section five and again much of that much of that statute doesn't actually appear in the bills just a part of it because the only part that you were changing was the part about notice um notice to individuals who've had their records sealed. So so section six is only dealing with the juvenile records that are sealed. That's right. Okay I'm sorry. All right must be afternoon after you know a nice day and nice lunch and warm weather that confused me. Thank you. Well the title is almost the same. Okay so should I just talk about section seven and eight quickly and then sure okay thank you. So section seven is that automatic expungement provision for those judicial bureau offenses. I do think that you've heard some testimony from Judge Pearson about some proposed changes to that section and then section eight is the sentencing commission directive and I just wanted to point out that this the section also did not appear in the Senate passed bill last year but the Senate added it this year to specifically address the issue of sealing and expungement and when we use which and whether it's overly complex because the directive is really for the sentencing commission to decide whether or not Vermont should carry on with using this two-track process of sealing and expungement or if it should simplify the process into a one-track system either sealing or expungement and it also specifically asked the commission to look at a way to make this an automated process or a petitionless process rather than this pretty pretty complicated petition process for sealing and expungement and I know that you've and I just wanted to point that out because I know you've heard some testimony from witnesses about the complexity of the statute so the Senate also recognized that and went out of this language. Right and I know we took testimony on sort of the dates and what happens what happens when I think the bill goes into effect before the before the report is due and that that seemed fine with the sentencing commission and others. That's my understanding. Yeah I think the idea was that they would report back in time for the legislature to craft another excelling and expungement bill next year. Okay great. I suppose we can't put this bill on the wall until we see that. I'm only kidding of course. Okay well that that was really helpful I'm not sure if other folks feel the same but I think it was incredibly helpful thank you for and especially in terms of some of the some of the concerns that we've that we've heard and so again in terms of access DOC does not have access to the special index correct. The special index of expunged files no they do not. I'm just reviewing the who has access to sealed records and I know I read a little bit of that language earlier but I just wanted to point out that criminal justice agencies are defined as all Vermont courts and other governmental agencies or subunits that allocate at least 50 percent of the agency's annual appropriation to criminal justice purposes. So I would read that to mean that the Department of Corrections would have access to sealed records. Okay thank you it's helpful. Okay any questions for Bryn on on the bill? Okay so Bryn anything else you wanted to add in terms of some of the oh sorry Barbara. Bryn did the Senate hear from any national advocacy groups or other states at all or did they really just focus on Vermont? You know um I can't remember about last year in 2020 I think I want I think that they may have heard from CSG on the expungement bill in 2020 but I I'm not positive about that. Okay they don't always put up their testimony I've noticed but okay thank you. Kate. Yeah check out I wasn't sure if right now like if I just have general questions about the bill is it the time for that or is it just a resource like reading through right now and we'll have more discussion later. Okay go for it. Yeah I guess I'm I guess I think I have some research and homework to do so I probably have a lot of questions but I guess the initial question is um you know there's no my understanding is currently for listed crimes there's like zero safety hatch there's like no there's no pathway to sealing there's no pathway to expungement am I understanding Matt? That's true now that's true now and it's also true under S7. Okay and I guess I guess you know this isn't maybe a question for brand I think this is more of a policy question I guess I guess I'm I'm curious about that you know if being new to this discussion I'm not sure you know has that been discussed like building in some sort of mechanism you know I think in part expungement is you know as representative Burt it was describing it can be viewed as like you know you've done you've done you served your time you've done well like you know some sort of like reward so to speak but I guess when I think about expungement I also think about it in the context of systemic racism and oppression and the fact that the you know the courts have disproportionately impacted certain people and it's a mechanism for allowing people to be freed from that system that may have done them a disservice and there's not a lot of avenues to do that and so I think my concern is that you might have people who have listed crimes as you know on their record who do not pose any kind of risk and who may have in fact been charged due to a variety of systemic issues that are oppressive in nature and they currently have almost no avenue to be freed from that and that concerns me so I guess I just want to drop drop that out there. May I respond just to that and to represent a Breachison's point earlier point which I may have made it I just wanted to correct myself and that is that the Senate did hear from CSG's Justice Center about sort of issues related to collateral consequences of conviction and expungement and sealing and in the course of hearing about this bill and also they did hear testimony that they're from the Justice Center that listed offenses are people who commit listed offenses are often people who don't wind up committing any more offenses afterwards and so that was part of the reason that the Senate put in the language directive to the Sentencing Commission to look at expanding access to listed crimes in their report during the interim so that can be found on page 23 lines 15 to 17 make all criminal offenses eligible for sealing or expungement except for big 12 offenses so still still not all offenses but many listed offenses. Okay thank you so it's something that we're just sort of like slow walking a little bit there we're taking a deeper look into okay that's helpful thanks. Martin. Yeah I just wanted to note that the Sentencing Commission subcommittee last year did start talking about this very issue Kate and looking at expanding it to everything except for the big 12 so they have looked at this before but they decided to keep it a little narrower and looking for the incremental change that we can definitely get through because that one's going to be the biggest challenge to extend it to violent crimes so so yeah it has been discussed and I'm sure it will be discussed again when the subcommittee takes it up again this fall. Okay that's helpful thank you and go ahead Brim. That's all I have I think that's really the end of the bill except for the effective date which is July one of this year. Great thank you and in terms of my list I think you answered it all I didn't know if there's anything else in terms of testimony that that we had heard that that you wanted to respond to or. I don't I don't I don't think so I unfortunately wasn't I didn't see all of the testimony that you heard I don't think I did see some of it but if there are specific questions for me to respond to some some testimony feel free to ask and I'll let you know if I heard it. Okay great thank you yeah and this is I thought this is very very helpful um so we do have that that one section where we have differences of opinions with the state's attorneys and the Attorney General's office we do we do have the written testimony from the state's attorneys and sheriffs explaining why why they wanted the change in the language which is and I had that email to to all of you since we this is how this is how the state's attorneys chose to submit their testimony do it in writing so but Martin you also said that you'd like to have David share come back and discuss this well I mean I just throw it kind of a compromise I I'm kind of with Barbara as well on this as far as having the AG be involved may address some of the geographic justice concerns and the disparities around the state but then again on the other side of that scale is the local knowledge that a state's attorney might have about victims and some of these crimes particularly when we're extending to extending to crimes that definitely have victims even though a lot of the property crimes that that consideration is important as well so I proposed just something that a little bit of a compromise doesn't quite take care of the geographic justice concern but definitely allows the AG to have a bigger role and if if people are interested in that as a possible compromise then yeah I would like to hear from David so so Britain is it correct that um that the new language just grants the authority to waive the waiting period so it doesn't do anything in terms of the concurrent jurisdiction that's right it's really specific to when a person petitions prior to the date that they're eligible according to the statute that's when it when it limits the respondent to just the prosecuting office that prosecuted the underlying conviction okay I'm just okay well let's um I'd like to think about this about this more um because what's gotten and the impact on geographic justice and the distinction between between the language regarding waiving the time frame as opposed to waiving the actual expungement who handles the expungement I have one question on that as far as if we want to hear any from anybody else I know one individual who's testified a lot before on geographic justice issues is Bobby Sands I don't know if this is the kind of issue that we would want him to weigh in on whether this kind of thing would help or not I just don't know if this is outside of his belly wick or not okay you can find out okay all right well great I'm not seeing any other questions so I think we'll we'll call it a day um it's helpful we'll get back to s3 tomorrow morning and it sounds like we're gonna have a long day on the floor so we don't have anything scheduled um in the morning we're also hearing from um folks from the um special investigative union I'm forgetting exactly where but I think Bob up in your your area um hearing from Jennifer Pullman so that that should be that should be interesting um so any other questions before we adjourn