 bail a lot over the last several years with Bryn and you've made a number of amendments and but just as a reference and then also you had your big bail bill in 2018 H728 where you made a number of substantial changes that's where you went from assuring setting bail from the purpose of assuring appearance court appearance to moving to mitigating the risk of flight you set the $200 bail amount for those fences that could be expunged things like that so I just wanted to kind of just have those for you as a little bit of a refresher so Senator Sears is correct that the current language that you have in the Constitution which you'll see in the bill in section in the proposal in section two it was adopted in 1994 by the voters so it had been approved by the legislature in two previous bienniums and that's where you had the new language come in with regard to being able to hold bail in cases where if there's a felony offense an element of which involves an act of violence against another person and clear convincing evidence that maybe held without bail when the evidence of guilt is great and the court finds based upon clear convincing evidence that the person's release poses a substantial threat of physical violence to any person and no condition or combination of conditions will reasonably prevent physical violence so that was that was new language in the constitutional amendment was not there prior to that so what the proposal 7 does which is interesting because the amendment 94 was also proposal 7 interestingly is it's changing simply changing felony to a criminal offense so it's broadening it to include misdemeanors so it's what it's trying to do is set kind of a level playing field with regard to misdemeanors and felonies when there's an element of violence and and the court believes that withholding bail is the only way to protect the public so so again goes to what senator Sears is trying to do which is to say if we have kind of a setting the foundation a level playing field as if you're focused just on dangerousness and you're making determinations based on risk assessments maybe it's a misdemeanor offense so maybe it's a domestic assault case and with as a misdemeanor and but then based on the risk assessment there's a high there's a high risk there with regard to dangerousness should it be an option for the court to make a determination that a person might be able to or should be able to be held without bail my ask a question about that doesn't number three in the Constitution do that it says any person awaiting sentence or sentence pending appeal may be held without bail for any person's already been convicted awaiting so awaiting sentence yeah there I see yeah okay so somebody who's already been convicted got it is just waiting sentencing okay yeah so what is the range of violent misdemeanors you mentioned domestic assault you know I have to take a look at you know and you have a variety of options but you know I'd have to take a look but we could we could look at listed a friend of us we could look at things in the you know in domestic assault statues I think that's going to probably be the main one that the folks are looking at but I don't know I think probably some of the witnesses can talk to you about what they see in their practice okay so a person held without bail prior to trial shall be entitled to review of that determination by a panel of three Supreme Court justices seven days that's okay right yes it's clear convincing standard and all of these three things would have to pertain guilt is great yes substantial threat and no conditions but right so the same standards that are used now for you know for violent felonies and I will just note there's just interesting I was asking some other folks again who you know are out there and practice in this area but I was wondering about how is it working now with regard to is there any disagreement about what constitutes a violent felony and who didn't seem to be people didn't seem to be there was a problem but there's not necessarily a definition we have a definition of non-violent felonies I believe in statute but that's it goes to your question about kind of what offenses would we be talking about and then just as a refresher so you have the the language in the Constitution but you also have under 7554 under your bail statutes that's where you have in your subsection a subdivision one is these are the conditions that you can set to to mitigate risk of flight and then subdivision eight to these are the ones that you can use to protect the public and the difference being those two is that you can set bail for purposes of mitigating risk of flight from prosecution but you cannot set it for purposes of protection of what were they thinking in 1994 I was thinking about it being really interesting I haven't done it really dug into the legislative history about that but I might talk to Michael Trennick about that and see if we can pull some information I was on this committee here but I was brand new and you know just a young whipposnapper but Vince Lucy has a lot of history with this because Vince was on the committee when they I was here after the when it went to the voters in 94 I was not here when they passed the constitutional amendment the first time but I remember right after the amendment became effective there was a tremendous argument between John Bloomer senior Vince and some other long-term members of this committee with the Supreme Court over their decisions in how to apply the bail and from then on there was a feeling that what the legislature intended and what they thought the voters intended was not what was done that I believe that the real dispute was over some of these issues of who could be held which we're right back to today and so you know I again I wasn't as involved because I thought that it passed in 90 I thought that 93 was the effective day it was I think adopted by my first year was 93 and I'm thinking it was 92 and it was adopted it says in the Constitution it says in here 1994 I was elected in 1992 and started serving in 2003 so that was yeah 2000 no my second year 1993 1993 and 94 would have been the general I think there was there was even disagreement back then and I don't remember who the Chief Justice was then but there was I know John Bloomer and Vince went over to the Supreme Court it'd be interesting to hear Vince's take on it I know they went to the Supreme Court a couple of times to argue that the legislatures what the legislative intent was well I'm looking and saying that in 92 Senator Bacchus was the only person who voted against it Racine was presiding I'll pass this around I have the Senate Journal from 92 if you just want to take a look so you can see the language the original language for the for the for the prop anyway yeah that that was the I do remember that argument but I don't remember all the details but Vince Vince would probably be the person to ask to come in and testify about what that was in the legislature what he thinks obviously there's change from being a defense attorney to a prosecutor so he might have a different view now well since I envisioned Vince as being one of the first people who tried to bend the envelope so to speak and applying this this is the first day of testimony I don't see anybody on here talking about the specific number of start with the lowest civil assault by mutual fray work your way up there's a whole lot of cases out there that fall into that violent category I would like to know the potential is especially on how that interfaces with what we're trying to figure out corrections how many beds do we need I think it could be some stage old but I think what I was what I what I said in the beginning Joe matters to me is that we want a bail system that's constitutional but we also want a bail system that only holds people that are high risk to read to to the public or themselves and not holding people that aren't and whether it's a constitutional amendment that takes that some people who commit what would be considered minor offenses are extremely dangerous other people who commit what would be considered very violent offenses are not high risk there is there are studies regarding murder and the likelihood of reoffense but I'm not asking the court to do that so if we're great if we're look really looking at a constitutional change here if there's questions about just adding criminal in here and violent and stuff why don't we just really change the Constitution and write what we wanted to say the other option would be to make certain currently misdemeanor domestic violence offenses but but but I mean we could if we're going to change the Constitution we can rewrite it rewrite that whole thing so that it says what we wanted to say instead of just trying to tinker with it okay so my knowledge of what happened in New York is skeletal but am I right that one of the drivers for it is the idea that bail like roadside stops can be disproportionately used against people's color and what happened in New York was there's such a blanket thing people committed vehicle vehicular manslaughter were being are being released to we're already being held so they're being let out of jail and others like that so obviously every time one of those happens the press is there to say this dangerous guy and the victims there well not not looking at what went wrong with what they did but the impetus for what they did was to lower the number of people held on big on bail conditions because it was considered all the things that we already know that where people are more likely to be held but this goes the opposite direction not really I think it well no the goal the goal is not to go in the opposite direction the goal is to get to a system that is risk-based rather than offense based well but I guess what I'm saying is if if we're determining on risk and threat that's where I think the advocates to change to reform the system talk about especially black males being viewed persistently as higher risk than others and that accounts for so people think that they're applying a risk-based standard but often they're applying a in effect a racist standard that views a white defendant as less of a threat than the black I think don't believe that the risk-based standards that we have today are I think they're individualized yet the different assessments that corrections used today are pretty well established nationwide it's not an individual deciding whether there is a judge you know but they use but they they're using the assessment right but their assessment is affected well no the assessment isn't should be I mean there were there's there's all kinds of studies on risk assessment where it went wrong and what went wrong was not the not the assessment itself but how it was applied for example in Hawaii there was a whole series of cases where people weren't trained properly in the risk assessment they were doing risk assessments and they screwed it up completely but it wasn't because the risk assessment was bad it was because the training was poor and the people who do the risk assessment were poor but we're you know not doing a good job but as I understand it in Vermont anyway the risk assessments are pretty pretty good question is getting to that risk assessment if you're a defense attorney you don't necessarily want your client being assessed for risk if it's going to affect their liberty but I mean in my understanding correctly says somebody is suspected of domestic assault they're brought into court it isn't that the judge looks at what the prosecutor is misdemeanor the judge cannot hold on I cannot know but if this past this and that's angered to them that's my that's my point we would be increasing the number of situations where people could be held without bail on the say so of the judge which could theoretically be affected by could yeah could increase yeah because it doesn't say anything here about risk assessment or anything just says yeah yeah yeah it could increase the number no also theoretically have more appropriate hold system yeah I don't have any doubt it's going to increase the number I just want to know how many well before you killed it you know let's let's give it a fair hearing and I use when you say things like that Joe it makes me I hope we're all the same goal here just the goal is to lock people up who are dangerous to themselves or others and that's I mean we should not be locking people up who are not dangerous that's everybody agrees on that philosophy then how do we get there and I believe there are a lot of people who are locked up in this state who do not need to be incarcerated I don't know the number but you will see in the justice reinvestment study maybe a lot of women who are being held are incarcerated you don't need to be in a locked facility they may be just well treated in a more open environment less restricted they may need to be in some facility I believe there are a lot of people that are being held with on bail who have significant mental health problems and the reason they're being held is because we don't have a mental health bed for them we don't have the treatment I also believe there are a lot of people that are being held because of their offense not necessarily because of their risk of re-affect or dangerous so I think you know we all agree on the goal I don't give a damn if we do a constitutional amendment if we change the particular category of crime so it's eligible I don't care how we get there I just want to make sure we have a system that's all I care about I don't necessarily disagree with you I just figured that before you and I both get called out of this room yeah the next time we come back to talk about it I'd like to have the people on the witness list who are able to tell us what the prospective number of these situations would be because you are definitely broadening the category of offenses that could be subject to this and a judge finding those three criteria could potentially place somebody without bail on this system that we're trying to adjust the numbers make sure we hear those numbers and throw that into the mix of the conversation yeah but I agree I certainly would should be aware of what we're doing and how that would impact it sort of like the argument over an education committee should we require people to stay at school to their 18 or until they attain their degree high school degree oh no we can't do that because we can't afford to keep them keep 18 and 17 16 and 17 year olds in school they and we don't let them quit we'd have to pay more money I mean oh that's a ludicrous argument would you like to sign my bill that I'm handing in today how would you like to sign my bill that I'm handing in to you and Bobby Bobby's name I like to be the changes the dropout age to 18 unless you have you know gone through another course of study or something whatever dick is right every year that you guys have put that in the first thing that happens is the whole educational establishment comes in and makes the argument that which is ridiculous and I say we don't have the space we have tons of space I'm happy to sign on to that I didn't mean I didn't realize you were doing the bill again so that wasn't well I don't know I know I know this guy anyway I was gonna say Joe I can reach out to a crime researcher and try to get some numbers for you on those Mr. I think we're really only talking domestic violence listed crime not well in our mind when I look at it maybe that what not what it says Marshall but what the intent is so I'm just trying to be honest here and say you know we I introduced us because I thought it was a way to have this discussion after talking with Kale and evidently California's more risk-based system and I don't care how we can do a bill we can do the constitutional amendment so who are the people who would be able to help us understand how we achieve that without doing the constitutional amendment without being in the car with the I think the governor has a proposal I think that the I think the state's attorneys oh okay so I think there are other groups who have some proposals okay without doing a constitutional without you ask one question before you go so this it's a substantial threat of physical violence to any person it doesn't include some intent says you're gonna blow up a building but they're saying they're gonna do it without injuring any people something that's a remote building this is just based on what the with the current languages I can look and see how that's been interpreted but so it's just the same because it's not changing any of that standard language that's in there now it's just change the only changes to to section 40 are changing from a felony to a criminal offense thank you morning to a question Johnson the governor's legal counsel so anyway we were very heartened by Senator Sears constitutional amendment I do appreciate the comments that senator Sears has made about the system being a risk-based system and I think that we agree that we need to keep people who shouldn't be in jail out of jail I mean ideally on the early stages so that you're talking about prevention and early intervention and people are diverted out of a system before they become part of the system because we I think our greatest problems are in the areas of recidivism and people who are in the system so we have over many several decades established a variety of programs developing developed sentencing options with the goal of safely lowering criminal justice population to call David David Tana wants to listen. Oh, okay. He hasn't likely resigned yet. Oh, he's delayed his resignation. Did you say hello? Hello? They shut it off his email. Hello? Are you there, David? I'm there. Sorry, it's just a little broken up on the other end. Okay. I'm glad you still have a phone, David. I'll send it here. Me too. I say Johnson from the governor's office is speaking right now. Hi, David. Good to start the interruption. That's fine. So anyway, it's essential the state delivers the level of service necessary to effectively identify needs and connect people to care and programming. So, but the thing is we also need to ensure the accountability for those who require more traditional court sanctions and incarceration. So we really are also focused on what the expectations of Vermonters is when we're talking about dangerous individuals in the community. So because our primary responsibility is the safety of Vermonters and our communities. So one thing that we found very interesting about the work that the Council on State Governments is doing is the numbers with respect to the violent crime rate in Vermont, which I think we need to acknowledge that since 1990 has increased 30% while in the same period, the U.S. violent crime rate has decreased 48%. Luckily, our numbers are small. Vermont is one of the safest states in the nation. But research done by the CSG shows that since 2014 reports of crimes against persons are up 38% of violent crimes. High volume reported crimes decreased across the state, but simple assault, which is one of the high volume crimes, increased 15%. Reports of rape have increased 152%. Reports of intimidation have increased 181%. And reports of aggravated assault have increased 65%. So again, our numbers are low. We're one of the safest states, but those increases concern us when that's not the trend across the country. Those reported crimes, but over the past five years felony convictions have grown driven by increases in assault, domestic violence, and sex offenses. And this is actually in the third report of the CSG. They've done a series over the last several months, and so all of them are worth looking at, but that definitely is the one where I'm getting this information. And the other reports also put a lot of this into context. With respect to various other issues. And so I would really recommend, you know, becoming familiar with those reports. Is that on our website? I found it on there's. And I guess I can give you the link. Yeah. If you could give us the link, that would be great. Sure. What report are you looking at? CSG reports from, I guess, October, November, December. The ones that I'm getting this data on are the third report, which I think is November. I don't know if I've got those. Oh, okay. They're on the same page. I have this presentation, but I would like to meet you. The final report. I can give you their website, and you can find the links to their reports. Okay. So about 65% of our census incarcerated population has been convicted of aggravated assault, aggravated sexual assault, or murder. And that's from a DOC population table I got in October, which I'm sure we can get updated. Yet, with the increases in crime, typical felony incarceration sentences are one to three years. Median, and this is again from the CSG study, median minimum and maximum sentence lengths of incarceration for felony crimes against a person. So violent crimes are one year for minimum and five years for maximum. I just think most of our models would be surprised by the term lengths. Typical misdemeanor sentences are less than a year. So in an effort to prioritize public safety, we came up with a menu of ideas which includes imposing bail for violent misdemeanors, as well as updating the definition of listed crimes to your question before. So it was a happy coincidence when we talked to Senator Sears that he had introduced this constitutional amendment. We think it's essential that judges have the tools they need to keep our community safe. And I know that judicial discretion is an issue, as you were indicating before, whenever you add a human element. But at the same time, they need tools in order to keep Vermonters safe. So how do you strike that balance? One tool, as we're discussing, is bail for violent misdemeanors. And again, with a very stringent constitutional test. Guilt is great. There's clear and convincing evidence that the person's release poses a substantial threat of physical violence. And no combination of conditions will reasonably prevent the violence. I think that's a fairly stringent test. And I think our concern was to the extent that we're proposing a constitutional amendment. It's a lengthy, complicated, complex, and uncertain process. And we think that an alternative approach would be to increase the potential maximum prison terms of certain violent misdemeanors to 30 months. Right now, two years is the line between felony and misdemeanor, as I'm sure you know. So if you increase that term so that technically those violent misdemeanors are greater than 24 months, you basically have the same application of the felony and violence test. And that's in statute animal constitution. The same test would apply, and it would give judges the tool of bail for these crimes for the safety of the victim and the community. The increased term should include the listed misdemeanors right now, which are domestic assault and stalking. I also can tell you that they are, they relate to abuse, which has felony and misdemeanor sentences. Abuse by restraint, which has felony and misdemeanor sentences. Neglect, oh, sorry, neglect is felony only. And exploitation of services, which is a misdemeanor. Those right now are the listed misdemeanors. And what we actually would also propose is that, oh, so anyway, so with respect to this increased term, the term now for domestic assault and stalking is, domestic violence is 18 months, stalking is two years, so 24 months. So that would mean increasing the term for each of those crimes. We would also suggest that we modernize and update the definition of listed crimes. This definition, which is originally used in a victim rights provision of the criminal law, is now used with reference to both bail or to bail criminal history statutes and prohibited persons for purposes of firearm possession. So when we're talking about listed crimes, we're talking about all of those things. Spungements, bail, firearms. So we believe that the list should be updated to include crimes that have actually been since enacted and also others that are on the list and others that aren't on the list. So we read misdemeanor exploitation of services, misdemeanor abuse, unlawful restraint, unlawful confinement, criminal threatening, domestic terrorism, felony and misdemeanor hate-motivated crimes, willful and malicious injuries caused by explosives, injuries caused by destructive devices. These are not all misdemeanors. Some of these are felonies, but they are not listed crimes. Felony and misdemeanor sexual exploitation of children, felony and misdemeanor possession of dangerous or deadly weapon in a school bus or a school building or on a school property. So we would propose update in that list. And again, not all of these are misdemeanors, but to the extent they include misdemeanors, we would want those added to the list of listed crimes. So that's it for today. We haven't made that here short. Jay, I realize you've given us a wish list of many things that go far beyond the bill that's actually in front of us to talk about it here. Having a tool to address the perceived problem is one thing, but in my eyes, using a tool that's a sledgehammer where a thumb to put in a thumbtack is a much different conversation. I'm struggling because the way this language is heard in the language of two individuals who get involved in a pushing-shutting match by mutual consent and pain is popping up. All of a sudden you have a simple assault by mutual affray that is a violent offense that contains the element of violence. If it's a Yankees fan and a Red Sox fan, you know there's a substantial likelihood they're going to continue to battle with each other. So you're matching another criteria that there's a likelihood of re-offense. And if the judge decides, or the prosecutor decides that they're pursuing a whole without bail, to me that has a direct impact on the system two ways. One is you're going to have an additional way to the evidence hearing. That's a court hearing, and that's going to take court time. The other is, if the judge decides that is worthy of being held without bail, it's going to have a direct impact on the number of beds we need to court-share the pain. So I'm curious to know where in this chain of the various crimes that could be considered violent it makes sense to make a change as opposed to it doesn't make sense to make a change. When I'm reading this right now, it doesn't divide anything. It doesn't clarify anything other than say it's going to be a crime of violence. And to me that incorporates way too many things, and I'm using the sledgehammer to put in a thumbtack example because that's exactly what I'm reading. So I guess for the purpose of this proposal, what I would like to know specifically is what offenses does the administration consider to be a situation that is violent and worthy of being held without bail? Also for purposes of Prop 7, I would say first of all that what the constitutional amendment has done is create a fairly burdensome test while it may require an additional court hearing. That would be what I would think we would require when you're talking about a person's liberty interest. So the evidence of guilt is great. And based upon clear and convincing evidence that the person's release poses a substantial threat of physical violence to any person and that no combination or condition or combination of conditions will reasonably prevent the physical violence. I feel like that's a fairly stringent test. And that's why we have developed it for purposes of felony offenses. I think the Constitution prior to this time really only addressed capital offenses. Let me walk through the following scenario. Alice and I get into a dispute. It rises to the level of physical contact and violence. And we're swearing at each other. If I get a chance outside here, I'm going to wring your neck, whatever the case may be. There are a dozen witnesses in this room. So the evidence of guilt is great. We have injected already the element of violence. The question is, in what situation the judge takes those two things into account and then finds that there's no other way to separate Alice and I from having this battle. Technically, they've met the criteria of holding somebody without a date. To have that conclusion, there has to be a court hearing. There has to be a conversation. So you're increasing the number of court cases. Does the administration believe that a simple assault by mutual affray is the kind of offense that should fall into that category? Well, so what I have done is go through the list of listed offenses and simple assault is not on the list. So I would say that is not one of them. That's not what this proposition calls. The proposition doesn't specify listed offenses. So A, if you were going to take a legislative approach, that would fix that problem if you were going to say adjust terms. For this, again, I would say that the test is stringent and that courts are reasonable and have the ability to use their discretion. I don't think, and again, that's my personal view. I believe judges are reasonable. I think that it's a fairly stringent test. You're talking about the most violent offenders, and the courts appreciate that. Are there probably outliers in every system? Yes, because we're human. Bill? I just want to go down the same road as Joe. My inclination or maybe my expectation was that we would perhaps be looking at bail from the reverse perspective, in other words, ways in which bail was not advantageous or was not built into the system in the way that we would like and maybe reducing the reliance on bail. This, it seems to me, greatly expands the ability to keep people without bail, which I think is potentially an even worse situation than misusing bail to hold somebody. I would just second Joe's, it seems to me a very common sense thing to ask if we extend it to violent misdemeanors, what does that class look like? Are we comfortable with extending it to all those, and if we're not, what are the ones that we can agree we want to extend it to? That seems to me maybe better addressed in legislation than a constitutional amendment which is going to take years and years anyway. I have to admit that I'm really confused now. I thought I understood where we were going. And I'm confused by this and I'm confused by what you were saying because it seems to me that this increases the potential for the use of keeping people without bail and I thought our purpose was to only keep those people, only impose bail on those people who were at risk of flight or danger The constitution doesn't allow the dangerous test. I understand that, but so I'm confused now because I think both this and what you were saying increases the number of people who are going to be held without bail which is going in the opposite and I might be totally wrong here but that's just listening to everything it seems to me that that's what we're doing. So I don't get it. We're going to reduce the number of people that only hold the right people I mean the people who are of danger. That's big. So let's add that to the constitution. Instead of doing this, let's add a five. I think I was pretty clear in the beginning whatever you want. I'm just trying to get the conversation going. I think that we're all in the same but maybe we aren't all in the same direction. The goal was to have a more logical bail system that helped people again, I'll go back to what did we learn? If we go events driven, we end up holding people that probably shouldn't pay. If we go with a system that looks at the risk and if we can do that in a constitutional manner then we have a system that's funding people that are actually the dangerous. I think we all agree on that goal. The problem is how you get there and that's what we're trying to do. I realize that when I first approached this I had both a bill that I was going to introduce similar to what Jay's talking about and a constitutional amendment. The problem was that it was the view of our legislative council and I agreed with her that you couldn't do the bill without a change in the bail constitutional standard so that's the genesis of this. I don't really care if you think we can do a bill that I'm not interested in having more people incarcerated but I am interested in making sure that those that we do incarcerate are those that we need to incarcerate. Anyway, I think that's what we're all driving at because we're happy to work with you on that and I'm learning along with you as this discussion goes on. I just, you know, I sympathize with your concern, Joe but until we have a more concrete proposal I'm not sure it does anything good to find out how many we're talking about until we know if we're just talking about listing misdemeanors then we take a whole bunch off if we're doing the constitutional amendment that's presently presented then yes, we would have a huge group and I agree that would be it. That's not what I want. I don't want you in the house being held. You weren't here. I was trying to use a good example. I can easily see that you and I could have an argument during the playoffs during the Red Sox and the Angus and then if that argument grows to the level of us having violent actions against each other we're both in a situation of mutual affray as it would be defined in the criminal system and your simple assault by mutual affray has an active violence. That's the first criteria. The evidence of, the evidence is great and a weight of the evidence here because we've got 12 people that have witnessed this and they can all be brought into that hearing and the likelihood of you and I ceasing that if a judge decides it's not going to resolve them to laugh to the world series the judge could leap to that statement and say I'm going to hold it out of bail. That's a far extreme example but I don't think you can lump, you take away the word felony from what's currently in there. I don't think you want to lump every act of violence into that category. The listed offenses may be the way to bring a solution to that argument. So you're not getting those kinds of cases involved. I disagree. We have a witness on the phone who's at fault. That's right, he's on the phone. No, he's going to be Mr. Mung. Are we still there, David? I am. But it was actually a conversation with myself and David Cahill that led to this. Was Allison Clarkson involved in this? No, Clarkson had dinner on the insanity plate. That's where that came from. She had dinner on the insanity plate. They were having dinner. I'm amazed that people go up in dinner and talk about insanity plates but teachers own other conversations. I'm sorry, Jay. No, it's okay. I'm finished. Okay, thank you, Jay. Can I ask Michelle what is the highlighted? The misdemeanors. So these are the island misdemeanors? Yes, so I just wanted to print out your testimony for listed crimes since Jay was talking about those. So these are listed violent misdemeanors? Yes. But that's a subset of this universe. Yes. Which is all violent. That is shocking, actually. It's interesting the way that listed crimes, it'll list things and then the citations in listed crimes doesn't necessarily cart out what the misdemeanor offense is. It applies to the misdemeanor and a felony offense, so some of those are grouped together. So if you look at the vulnerable adult ones, there's misdemeanor offenses and there's felony offenses but they're all considered to be listed crimes. So I just highlighted to say there is a misdemeanor offense contained in those and so it's generally like things that Jay was talking about. So you have your domestic violence, you have violation of APOs, you know, stalking and then the vulnerable adult crimes. Good. I think David Cahill, did you do you want to give some testimony at this point? Absolutely. Thank you. Thank you very much for the invitation, Senator Spears. It's pleasure to see with you again this week. I think it'll be useful right now to ensure that we are all using the same vocabulary so we're not talking past each other and also I think it'll be useful to provide a brief historical context to give some sort of sense of the momentum behind us and where we could be going because this proposed amendment is just one small piece of a very big puzzle. First, in terms of nomenclature, let's make sure that we understand that when we're talking about bail, bail is a requirement to pledge collateral or liquid assets in order to secure relief, free trial having been charged with the crime. For that reason, historically, bail has been pretty good about securing an individual's appearance in court as in, you know, if you have to pledge the farm, collateral is not likely to please the jurisdiction because you don't want to have to force it to the farm that you own. That's historically how it works. Bail has been less effective as restraining future conduct is preventing dangerousness. And by that I mean it's the proposition that if I have to pay $25,000, I am less likely to try to kill my wife who I just tried to kill and that's what brings me to court. That is proven to be a dubious proposition. Also bail is not particularly effective in restraining future dangerous behavior for individuals of means bail is something that either you pay or you don't pay. If you're indigent and you can't afford the $25,000, of course it inhibits your dangerous behavior because you're in prison. But if you can pay the $25,000, then you're out of the community and you can go and commit that further crime that was the concern that caused the bail to be imposed. And for this historical reason that now in Vermont bail is something that is only restricted to risk of flight and lack of appearance in court. It's not something that is imposed for dangerousness. It is also worth noting before we get into the historical perspective that an individual is dangerousness, the risk of committing violent crimes in the future is not necessarily reflected in the climate which they are charged now. There are individuals who are charged with violent crimes now with very low risk of committing future violent crimes because what they did was a sudden crime of passion in a situation that is unlikely to repeat itself. On the flip side, there are individuals who are charged with seemingly low level offenses that are objectively quite dangerous because what happened was that law enforcement cost them into planning stages of a very serious event. So oftentimes we're checking people for crimes like criminal threatening or disorderly conduct by electronic communication. And the net effect is that they have come up with a credible plan to harm others and they just haven't done it yet. And that's why, again, I would caution you against working from the list of offenses and grouping people by the offenses with which they are charged. With that said, let's go into this historical concept. Vale first popped up as far as I can tell in medieval England that the idea was that individuals had to pledge collateral to secure free trial relief only for petty offenses. And medieval England was a society that was expressly divided by class. So no one was offended at the notion that only individuals of means would have access to Vale and everyone else would be in free trial detention and everyone charged with an offense other than a petty offense would be in free trial detention with no ability to post-Vale. They were effectively the subject of whole without Vale orders. Backdoor to the founding of the United States. We have a number of state constitutions that we're probably looking for because of Pennsylvania and Vermont. Vermont's original criminal justice provisions in its constitution are heavily borrowed from Pennsylvania, which in turn was inspired by the Quaker movement. The Quakers saw themselves as enlightened and progressive for today, specifically on criminal justice matters and from their perspective it was enlightened to offer Vale to a broader group of individuals than those just charged with petty offenses and those who are just members of the upper class. So it was a statement in the constitution a policy statement that all offenses will be available except for offenses punishable by death or life imprisonment. Of course, because Vale's a money system it still had a radioactive effect that you had to be able to post-Vale in order to have the benefits of the Vale system. But it is also worth recognizing that the society of Pennsylvania and also society in Vermont was very different than it did today. There were no... there were very few urban centers manufacturing could not yet taken off and we're talking about largely agrarian society. Why do I mention that? Because agrarian societies are landed societies and individuals physically have money that they can pledge as collateral. So what that means is that when the founders of our respective state were contemplating Vale they were contemplating the agility of agrarian families to post their landed collateral to secure appearance. So the notion was that your average person would be able to make Vale. And also still in those societies Vale was something that could be used to mitigate not only risk of flight but risk of dangerousness and hold without Vale was available for the violence. Fast forward to today our great version of our constitution indicates that offenses punishable by life imprisonment or felony crimes of violence are eligible for hold without Vale. So they are outside the money system and the court can make it dangerous to determine. All other offenses are presently still in the money system where it's easy to claim if you can post Vale you get out if you can't post Vale you stay in. And we're not supposed to use Vale for dangerousness. Now the reality is that because judges recognize that some individuals are dangerous even though they are not charged with the hold without Vale eligible offense judges are indirectly using the Vale system to hold individuals for dangerousness. And here's what I mean. It does seem very well safe to a defendant. Mr. Smith I see you're charged with criminal threatening but you it's evident from your journal and from your statement in court and from your statement to the police that you were intent on killing your wife. Because you were intent on killing your wife I find that you are at risk of further fight or not adherence and based upon that risk of flight I have been posing Vale in your case. So the system right now is using this elaborate workaround to try to detain individuals for dangerousness when in reality the constitutional and statutory structure does not allow it. What we have before us is an opportunity to reform the system in two ways at once. First we can reduce the effect of or fully eliminate the monetary Vale hate to play system. And secondly we can expand the authority of judges to hold individuals without Vale when they are objectively dangerous. Now I too am concerned about judicial discretion across the court of discretion and that is why if we were to reinvent the system we might think about plugging some objective risk assessment tools into the system. And what I am envisioning is that an amendment like this was passed then it would be followed by enabling statutes that are restricting the use of monetary Vale while authorizing the use of hold without Vale for those who are deemed objectively dangerous and also setting forth the criteria that courts are to use in finding that an individual is objectively dangerous. And no risk tool is perfect. It would be unlined to say the judge must use X risk tool and accept the outcome. There needs to be some measure of detraction. But the important thing here is that the standard that is built into the constitution already that the court has to find my clear convincing evidence that no combination of conditions would protect the public. That's a pretty good starting point. That's a pretty good starting point for the discussion. And then we just need to think about how risk tools play in here so that the exercise of discretion under that standard is wide, fair and reasonably uniform across the state. Thank you for your time. Thank you, David. Question? No. Hi, David. Thank you. So I especially like the history lesson here. So what your position is is that if this passed then you would follow up with more detailed procedures and statutes. Just to be clear, I think it makes things harder to start the amendment process sooner because it takes a lot longer to bring the provision than a statute. But you would want the statute to have the same effective date as the amendment. Because I do your concern and I share Senator Benning's concern. If you do this just by itself, you're not just opening the floodgate to further detention but you're certainly increasing the potential for it. So you would have the statutes that inject the risk assessment and all of that that would have a effective date. At the same time you probably worked on your bail repeal proposal. Clearly there needs to be some mechanism to make people show up for court. We don't want to show up for court. But you might want to work on eliminating those cases where people are held for $500 bail. Frankly to free up some beds for the people who are dangerous to you. This is Joe Benning. I appreciate the historical reference and while you were speaking I was reading the Magna Carta. I'm hearing you testify about risk assessment. Are you talking about something like the Ohio risk assessment tool being used at the moment of somebody's agreement? Right now there's a whole synopsily of potential risk assessment tools and some of them require interviewing the would be defendant which could be problematic in and of itself. And others are static relying on immutable factors like criminal history age, etc. And you need to have a public policy discussion about whether it makes sense to use an interview based system or static system. But yes, I would expect that that is a tool that would be administered between the time of arrest and the time of arraignment. Could you envision a wide disparity between prosecutors and how they approach this? Well, that's why it's your job to put us in a smaller box in which they exercise their discretion. Okay. I take it that smaller box would be something along the lines of making sure we minimize the number of actual offenses that might be subject to this. Well, I was thinking more, you know, that the checks and balances inherent in our system of government, you know, in the federal system they use, they make a whole without bail or don't whole without bail decision based upon assessments that are administered by pre-trial services which is a branch of the judicial branch in the federal system. So a good priority point might be to have the assessment administered by a neutral party who works with judicial branch. You have any idea how many weight of evidence hearings we would need to add or expect as a result of this change? There is no way to know how judges will exercise their discretion when given this possibility. So I honestly can't answer that. What I would say is that because the standard for a weight of evidence hearing is the same as on a motion to dismiss, the state could proceed surely based upon sworn written statements and it's not in common to do so. And if that were to occur, especially in an uncomplicated case like a typical misdemeanor, it would be an awfully short hearing. Okay, thanks. Other questions for David? David, you've been extremely helpful and I'd like the idea of doing a bill that's contingent upon passage of the constitutional amendment as well as effective upon the effective data of the constitutional amendment that would really I think solidify and help. I think every state is grappling with bail. I don't think we're alone in how to deal with this. I think we recognize the problem and that's how the genesis of this was yours and my conversations about California and their attempt to use risk assessment. I don't have any particular interest in locking more people up but I just want to make sure that we're locking up for those that need to. But I also am concerned about the number of people and I don't know if this we can get at this through the legislation or whatever but the number of people who have significant mental health issues who are being locked up in our correctional facilities because there's no place else to put them and yes they're dangerous but they're not being helped and those are the ones who are being held longer if you look at the statistically nationwide people with mental health illness issues are the ones being held longer on bail the general bail population is actually rather short in terms of stays but that group is in to the much longer stays as much as a year, 6 months to a year where the others are much shorter and I don't have the statistics in front of me but it's something we should also be aware of as we're dealing with this problem I brought it up before I have a constituent Matt Valeria was good enough to give me some more information about it but he's been in jail since October 23rd significant mental health issues, assault that is relative gets held in bail at Marble Valley and he's still there awaiting the family feeling you know if you've already assaulted one of your family members you really don't want to have him back home again but what is the program that you can offer to make us feel comfortable and it's corrections dealing whether it should be mental health or disabilities it's really an unfortunate situation that we've created for ourselves I would also like to look at that population as well and how we deal with that population in this particular case it was completely predictable in an out-of-state program under DCF he turned 18 I think everybody knew he was going to turn 18 I don't think there's any question that that's going to happen and you know not prepared those are the things that bother me about our current system I think we also have people who get let out and I know that the police and others that I've talked with you say you have nothing but a catch and release program with bail and I said there's no solution and so I want to be able to respond to that as well that those who you consider really dangerous are being let out and some people who aren't are being kept in that's my little spiel I appreciate your concern I'm concerned too I don't want people on detention we haven't made a debt for that in ten years thank you David happy weekend James Pepper Department of State's attorneys and sheriffs we struggle with the public perception about bail all the time really there is a perception out there that people that are committing crimes then release should be in prison while they're waiting trial and again just like you said look at the constitution we're not holding people unless they're committing violent felonies and the evidence of guilt is great or they can't afford their bail and bail can only be imposed for certain reasons it's a struggle to educate the public on these issues and I agree with everything that's been said today that unless you're looking to increase penalties for certain offenses that changing the constitution is a mandatory prerequisite towards moving towards a risk based system that doesn't involve the charge it involves the risk of the individual and that's either the risk to reoffend or the risk to the public there's issues that need to be worked out there and then that would also be a mandatory prerequisite towards eliminating cash bail all together from time to time I think when an act could be charged as a misdemeanor or a felony there is pressure on a prosecutor to charge it as a felony in order to hold someone on bail or hold someone without bail this eliminates that pressure and to a certain extent you know risk to the public is what's important here and that's what the prosecutor's job is to protect but I absolutely hear the concerns you know the constitutional amendment that's proposed doesn't really talk about risk to reoffend or risk to the public I don't think there's no real discussion of what a violent offense is so both of these leave open the door to a future general assembly to expand the use of hold without through statutory changes there is likely I mean the other concern which I think is probably true is that even if you move to a risk based system I don't think there's many judges out there that would release a murderer or an alleged murderer even if they scored a low risk to reoffend so there is the possibility that you're not going to decrease the hold without population but you might increase it I think that I also have concerns about risk assessments in general you know I think the Yazi is a good one that we're using that for the offenders I think the RS is good but on a committee right now that's being staffed by NJCSS or CSG is part of it and we're looking at are these risk assessments entrenching racial biases into our criminal justice system are they accurately predicting risk is it risk to reoffend for the offense that is before us or is it just a general public safety risk this group is actually going to do a retroactive study on a new risk assessment to see how effective it is at predicting risk do they rely on previous criminal histories and if so are those criminal histories infected with racial biases you know these are the kind of questions that come to mind when I think about moving towards a risk based system and how to accurately predict that I know the federal system uses risk assessments and seems to be working I don't know if there's any studies on how effective it's working but I think it seems to be working I think the crimes that we're certainly most concerned about are the criminal threatening the stalking the domestic assaults violation of abuse prevention orders those are the ones that I think that have the kind of potential for real lethality real disruption real just dangerous outcomes but then there's also the ones that you're just not going to know that could be risky the individual could be a real threat to the public but the only thing that they could be charged with you know David mentioned discerning the peace through electronic communications carrying a deadly weapon those are potentially dangerous situations and you don't want a prosecutor to seek out a more harsh charge in order because they think that this person is a real public safety risk I I I cringe at even mentioning it but you know a more robust electronic monitoring system pre-trial that's in real time I think that the one that was down it was run through Keith Clark's office was actually very effective it was just and I don't know the full history of it but it became incredibly expensive I can tell you the history of it and why it became expensive and I'm not fully prepared to flesh out maybe the due process or constitutional issues right now but having some sort of potential joint custody between DMH and DOC pre-trial for people that maybe don't rise to the level of person in need of treatment but people that do have significant behavioral and mental health issues those people could be released but then there would be some sort of Is there a general agreement that statistics are that people with mental illness nationwide spend more time without being held on bail conditions than people in general general offenders I've heard those statistics and I would assume that from time to time CSP could probably give a statistic they've got a mental health effort unfortunately their mental health effort is based on counties and counties have a stepping up provision and the stepping up is to deal with the mental health problems in their county in a different way rather than through the group and so the stepping up initiative is designed so county X which has you know the sheriff who runs the jail and the typical county government around the country getting those counties but they haven't been able to kind of put it together for those states with a unified system like Vermont but that's what my statistics are coming from is the stepping up initiative and I think you could look at it it would tell you that significant amount of time because nobody knows what to do they don't divert them quickly I did a resolution here a few years ago on the stepping up initiative but it's just a resolution it doesn't mean much so I don't know what we do with unified systems when I go to the board they bring it up every year and they're getting kind of tired Joe James I see this proposal as a one way there's nothing about this proposal that is going to decrease the number of people incarcerated who agree with that just this proposal in isolation yes I I mean there's I don't see I mean because it doesn't change the whole without it just adds more people that could be eligible I would agree with me then also that there's nothing about this proposal decrease the number of court hearings necessary to get from where we are now to where this will take us well for the same reason no you were here I think it was David yesterday we're all talking about deterrence and sentence structure has virtually nothing to do with deterrence would you agree with me that whether there's a statement out there somewhere that you could be held for lack of bail without bail I'm sorry if you commit this offense there's nothing about this that's actually going to lead to deterrence would you agree with that the deterrence question I I don't necessarily agree I do I do think that certain individuals especially habitual offenders that are familiar with what the outcomes for them could be might be deterred from certain crimes so I mean I don't I don't fundamentally believe that deterrence is out the window with baseline a sense of disagreement between the UN and the AG's office about that subject let me continue on the road you've testified that VAPOL would be something to think about VAPOL meaning violation of the use prevention order that would include would it not a situation where two people are not engaged in any kind of violence that are actually in violation of a communication prohibition so for instance a judge has some of your reign there's also an abuse prevention order out there that prevents them from having contact but I'm sure you're aware that in many instances in that scenario the victim actually commences the conversation it's a perpetrator and that's a VAPOL it's a violation of an abuse prevention order the reason I'm bringing all this up is somehow or other we've got to figure out if we're going to go down this road and I understand the rationale for it because this is all driven by the typical revolving door case that we see in the press and we all get picked on because we allow these folks to go out and people have never read the Constitution they won't understand it and I think the conversation is critical for me at least that the exact offenses for which you could become subject to this is as narrow as possible to prevent overuse and I'm not picking on any one particular prosecutor who shall name who shall remain nameless but I'm very familiar with there are frustrating situations in small town communities where it could be drug relating it could be there's just family animosity for years and years and one quick way of resolving all of that was to say I'm going to use this tool to my best advantage and to me that presents potential problems that we don't want to get involved so I'm I ask Jay there's a list of specific offenses I guess I would ask you David as well if he's going to testify what is it exactly we're trying to cure without going overboard in presenting situations that increase our need for bed space and increase our need for court time I want to have that as limited as possible to take care of the ultimate problem which is the revolving door public image problem that this whole presents so I'll pick up directly from there which is to say I do see that this would be a big expansion of hold without bail and as far as you know the extent to which that could be limited by sort of collateral legislation you know I think it's my sense that for the most part our legislation where it is bound by the constitution hues pretty closely to the constitutional baseline there are a few places where we have legislation that provides protection above and beyond what the constitution provides you know I can't count the number of times in this building that I have been in committees not necessarily this committee and the real question the committee has had in setting laws is what does the constitution allow and that's where we will set the law even if it was initially something where there was statutory protections that went beyond the constitutional provision the you know it would be sort of a natural regression for it to sort of slowly roll back to that constitutional baseline which would represent a really tremendous expansion of hold without bail I mean the offenses we're talking about here two offenses that are in the top five most commonly charged offenses are and I'm going off in statistics from a few years ago because I don't have the most recent ones here so these are from I believe a CRG report from 2015 looking at the last five years of charges and at that point two of the most five commonly charged offenses in Vermont were simple assault and disorderly conduct by fighting or tumultuous behavior both of which would fit into this category and none of the other most commonly charged offenses in Vermont fit into that hold without bail category so you're really talking about in that hold without bail category which is a very procedurally intensive process you know I respectfully disagree with David Cahill's assertion that these hold without bail hearings the weight of the evidence hearings that you have to hold would be very simple and straightforward they're actually not there are many trials and while certainly the prosecution and a weight of the evidence hearing can go forward on evidence that wouldn't itself be admissible in a trial that only serves to shorten the proceeding a bit you know recently I've been involved in a couple of them one of them was a day and a half half a day and you would be doing you would be putting those types of hearings in all over the place and I would also disagree that's been described in a few points as some sort of real barrier to holding somebody without bail is the weight of the evidence hearing we hold weight of the evidence hearings we very rarely win weight of the evidence hearings and the reason is that the standard that the legislature put in which is that the weight of the evidence is great doesn't actually mean the weight of the evidence is great the Vermont Supreme Court interpreted that to mean that that actually the weight of the evidence is just minimally sufficient to sustain the charge so I think Attorney Pepper mentioned it that the when you hold the weight of the evidence hearing if you win it you get your charge dismissed because the standard for dismissing a charge and the standard for the weight of the evidence is great are exactly the same which is I don't think an actually correct interpretation of the constitutional amendment that the legislature passed but it's what the Vermont Supreme Court has held so that's the definition we're stuck with so it provides it's a lot of procedure and we certainly there's no reason when you have a client who's being held without bail not to avail yourself of that procedure but it's also not much of a protection against being held without bail because all it means is that the prosecution has some evidence no matter how minimal to satisfy every element of the offense but it is exactly what they need to bring the charge in the first place so this would result in a lot more without bail a lot more court time a lot more detention and a lot more energy expended on the part of prosecutors and defense attorneys because honestly preparing for a weight of the evidence hearing is not a small feat it really is a mini trial you have to prepare for sort of all but a trial I think the two that I've done recently really took hours and hours and hours of my time just to prepare for those and to expand that into like one of the largest categories of offenses that's prosecuted in Vermont really would have an impact on the courts I also want to touch on a couple other things first as far as risk assessments go I just want to be clear that we're really behind the curve on risk assessments we have no risk assessments that deal with bail in Vermont right now neither is New York they talked about it when they were implementing their new bail system but they didn't implement one so there's not a lot of good examples of people using actuarial risk assessments for bail purposes even though I think there's pretty universal interest in it around the country also pretty universal skepticism there's been a lot of studies of these actuarial risk assessment tools that show that they sort of adopt the because they're all based on prior data so you look back at justice system data and use that data to create a forward looking risk assessment and one of the problems with that is if the justice system data that you are using reflects racial or economic or other kinds biases that would be incorporated into the risk assessment tool and there's been some studies that have shown that with particular tools whether or not there's studies out there whether or not there's tools out there that don't fall into that trap is certainly something worth looking at I would just say that I think we're at the very beginning of that stage not at sort of a point in that process where we're ready to start passing laws and implementing so finally I would just say that I think that this particular proposal I think would be counterproductive I think the legislature is working really hard to reduce the incarcerated population over the last handful of years and I think that this would absolutely without a doubt increase the incarcerated population really you know I can't quite picture what sort of collateral laws would go along with it that would lead to a decrease I mean this is such a expansion at one of the most sensitive points in the process because you know another sort of important piece of this is the way the Vermont Supreme Court describes the constitutional provision that says that someone who has is alleged to have committed a felony with an act of violence and therefore may be held without bail the Vermont Supreme Court describes that as changing the presumption that they are presumed non-vailable and it is up to them to prove that they are in fact bailable and so what that would mean is that in these cases thousands and thousands of cases a year that we would be adding to that hold without bail category they would for the most part at least go in and do some time because it's a practical matter when you're a defense attorney you meet your client for the first time and you don't have what it takes to prepare an adequate bail argument to overcome a presumption you can turn your sound up to overcome a presumption of hold without bail actually takes a lot of takes a lot of work and it's more work than you can do in the very brief time you have before someone is arraigned so the standard is what typically happens in felony cases where there's an element of violence is the person is held without bail initially and you schedule a bail review and then you go in and that gives you enough time to put on a good case for bail review to try to overcome that presumption of non-bailability that happens in very few cases because we have very few violent felonies in Vermont where as far as serious violent crime goes we're the safest state in the country we have one of the lowest rates of serious violent crime so we have one of the lowest rates of serious violent crime they've just taken over us they beat us but so we you know it is a very small pool of crimes to expand that to the thousands and thousands and thousands of violent misdemeanors that get charged every year is really going to mean that a lot of people are going to spend you know even just a short period of time in jail while we prepare a case to try to overcome that presumption of non-bailability so I think without a doubt this would increase the need for DLC beds it would increase the number of people being held it would increase the need for prosecutors and defense attorneys who would be preparing and doing this work frankly it would probably increase the need for judges in court time since that's already you know a real I don't want to say a crisis I think viewers might say a crisis but a problem you know we are very stressed as far as judging court time in Vermont and I think this would add to that so for those reasons we are opposed to this and I'll answer any questions I imagine my time is almost up well not completely I didn't expect any different but again the conversation is not necessarily are you in favor of PR number seven should we be looking at our bail laws and how should we refine those bail laws and are they working as we intended them to be which to me the intent was to protect us from people who are endangered to themselves or others and that's the key and I have a sense that we are locking people up who do not need to be locked up and we are letting people out who should be locked up and how do we get there that's my goal I don't really care my name's on this particular piece of constitutional amendment or legislation I just care that we have a system that's rational and I understand both the comments from Phil and Joe and yourself and others about this proposal and I don't mind that it doesn't matter to me I mean it matters what you think don't get me wrong but what I'm trying to do is you get the conversation going about how should we correct the system and I did hand out the stepping up initiative because it is designed for counties but then I know a few counties have established mental health courts I think Chittenden County is the only place and it seems to me that that's one of the problems we could identify clearly as part of this overall effort but I'm sure you see it with some of your clients that you're surprised that they didn't get locked up and others you're just surprised that they got locked up and there's no rationale for it and you're looking at it statewide rather than county by county I agree with you and I do think that one of the most interesting things if I was making a suggestion to the committee about sort of where to proceed and looking at Dale the thing that I find most interesting and that even you know it's my job to have opinions about this stuff I still haven't come up with a perspective of I'd like to know more is about the use of you know prearrainment screening tools actuarial risk assessment tools I know that there's problems with them I know that there are some tools in particular that have come under real criticism but I also know that there's a lot of people, really smart people who look at those as being potentially sort of the magic bullet when it comes to being a lot more accurate about who we lock up and who we don't and one of the things that that would lend itself to is identifying people who have mental illness very early in the process you would have a could potentially be part of that screening process could be not just a risk screening but also a screening to identify particular needs that need to be served as early as possible in the process so to me that's um that is the stepping up that those people with mental illnesses are coming into the criminal justice system excuse me at the earliest possible point and that's something that very well could fit in very neatly with a prearrainment risk assessment type of a model to me the question is just is there a prearrainment risk assessment that is actually valuable and accurate and if so is it implementable in Vermont um and I'm really curious about that that you know if I was making a suggestion for where the conversation about better would go that would be my suggestion is um to you know either bring somebody in from outside or put together a group of people from inside Vermont to look at what tools are out there how could they be implemented in Vermont are they accurate are they effective um and what would implementation look like