 Good. We're back live now. This is Senate judiciary Tuesday, February, Thursday, February 11 2021 we're taking up s 18 an act relating to earn time Eric, do you want to Share the screen and go over the the highlighted changes Sure, and draft 2.1 dated 2 10 21 5 24 p.m Yep, sounds good. This is Eric Fitzpatrick with the Office of Legislative Council as Senator Sears said it here to go over the Committee amendment to s 18 The revised committee amendment, I should say we have the The first version that you'd already looked at I think it was yesterday and The version we're going to look at today is a revised amendment based on the committee discussions that took place yesterday as well as some Back and forth that I then had with some of the witnesses on the proposed changes. So The first one will I'm just going to pull it up here real quick. So here we are Um Can everyone see that? Yes. Thank you. Okay, great. Sure. So this is as Senator Sears said version 2.1 of the committee strike all amendment You'll see the first section has to do with the topic of Providing notice to the victim remember that because the sort of big picture concept of what's going on here is that the Prospective portion of the bill that was in the in the version has introduced in other words it applied to Offenders going forward who had committed a disqualifying offense has been struck from the bill But that was sort of done with the understanding that the notice to victims would be beefed up so that going forward it would be a situation where Victims would have noticed that The application of earned time has it's going to be called Could potentially affect how much time The defendant serves so you'll see that language is added to the statute that already provides information That is required to be disclosed to the victim by the prosecutor And then it adds another piece Which you the first part of it you looked at yesterday and that specifically says that as part of that Series of information points that have to be disclosed You add that you add to it that the victim is informed of the maximum amount of earned time that the defendant could accrue And then there was an addition to that that was discussed yesterday So in addition to notifying the victim about the amount of time you also provide Notice that that earned time only affects when a defendant is eligible for parole consideration But it's not necessarily a result in the defendant's release So I shared that language with sara robertson at the network and She said they supported it So that's the concept that that's supposed to address. I think senator sears you had mentioned that yesterday. So that's That seemed like it captures what you were hoping for it to get for me. It's great anybody else on the committee No, I think it's a good addition Clarifies it Thank you sure So that Is the victim notification piece then we go into section two, which is the substance of the earned time program again, uh The phrase Good time is changed to earn time. So you see that that hasn't been changed but that Uh is carried over from the previous draft The list of Sort of groups of offenders who don't qualify for the earned time program It's what you see in subdivision one there and recall that What was added to that at the request of the department of corrections Was a fender sends to serve an interrupted sentence Now the definition of interrupted sentence will see a bit further on because there's a definition section to this statute And I added that that definition which we'll get to in a moment The second sentence you'll see just has some technical corrections. The first one senator berouf pointed out yesterday had Was incorrectly phrased now because It's not going to be applying going forward anymore this earned time I should say the earned time program does but the the disqualifying offenses piece of it Isn't going to be disqualifying anybody who's convicted after the effective date of the act So in terms of what tense to be used there It didn't make sense to be saying an offender who is convicted because it's only applying To defendants who have already been convicted and already incarcerated at the time That the bill is passed. So that's changed from is to The disqualifying offense only applies to offenders who have been convicted of a disqualifying offense or has been in the sense of this sentence That's that first correction and the second one again Similar concept and that since the perspective piece of the bill is being struck That was all in subdivision six. So there's no No reason to continue referring to subdivision six since it doesn't exist. So that struck And no changes here other than the continued ones that we saw on changing the name Question on on on page three line 11 And i'm rereading that That basically says If after the adjudication you would get Furn time But prior to sentencing you wouldn't get it if you're Frequently, I know that Defense attorneys will say Joe needs drug treatment. He's willing to go Um to a program And they'll hold off sentencing until after joe just finished with the treatment That's basically saying that joe doesn't get Earned time During that period, but if after sentencing He he go Joe goes to drug treatment He would get her in time. Is that correct? That it's definitely right for the post sentencing Universe that you're talking about senator sears the ones who They they then go to treatment. They can get a one for one Day reduction for earn time. I'm not sure you're probably I you know more than I do about the pre adjudication Well, that's what I'm wondering it If somebody were to assuming I'm the reporter of the bill Um, somebody asked me on the floor Is that what this means? I need uh, actually I think I need doc to Somebody to make sure that I've got it right This is current law Oh, it is. Okay. Yeah This is current law if you have a condition of release that orders you um to to be in a uh Locked for you know a Treatment facility then you get credit for time served against your sentence Um for the time that you have been held profile in your in the treatment facility um And the real question is does Your earned time because there wasn't earned time before Um will the earned time Apply to that Um typically you only get earned time for the time that you've been sentenced to Not for the credit that you've earned Pre Conviction Right, so somebody who's in Jail or in treatment I should say But for their phone But for their sentence before they're found guilty right or innocent obviously they're found innocent If they're found guilty they would not receive earned time for that time in drug treatment spent In lieu of going uh being incarcerated Correct, but they would get credit for time served Yeah Right, but they wouldn't be eligible for So I can also oh go ahead. Sorry somebody who's uh in jail Yeah, help me Monica somebody that's in jail who has not been Adjudicated is not eligible for earned time That's correct. You have to be a sentence offender in order to receive earned time I can offer some clarification on this section around post adjudication Residential treatment if if you're interested in knowing is as the defender general said it's current law So we're already okay. I think that all right. No, I'm fine with that. I just needed to understand the All of that Thank you. So before we go on to something else, I wonder if I could go back to page one So the sentence and inform the victim of the maximum amount of earned time that the defendant could accrue Um, you know, if this is uh A victim who's there without a lot of support I I wonder if we could add and the earliest possible date of release So that somebody has something in mind You know that stays there Six years down the road rather than then trying to figure out. Oh, how do I calculate that again? if I think that would make it really clear and just say and the earliest possible date of release Well, actually, I would say the earliest possible date of parole. Oh, yeah, okay eligibility It's this is not necessarily released. We're trying to make it clear that Parole eligibility Okay, I was just trying to scroll down on my screen here. I couldn't do it But Do can they is it is this at before sentencing that they're informed about that? When they're making the plea agreement and how would they know what the earliest date is if If there this is at or before the sentencing hearing So if they wouldn't know what the they would know I guess I'm confused about that Eric, can you help me? Again, this is existing law. So I know but How could you how could we tell them what the earliest date of their potential? If they haven't been sentenced yet Yeah, I think you can only tell them that they would dare They're eligible For to serve nine years instead of the 10 that were if they do everything right they'd serve Eight years Six months or something of that nature Yeah, it might be a good question for matt and for peppers as far as you know What facts are known to them at that time and could could that be disclosed? You know, I don't know the answer but one of the problem but but senator nick has raised one of the problems that was in the earlier At a rate iterations of good time before we ended it was that even lawyers? and even some doc Personnel weren't sure what the release what the earliest possible role hearing would be Either was the judge and nor was the judge So I don't know that you could say what the release date is because you don't know what the day of sentencing was because this is all being done But you could say that they are eligible for 365 days of earned time in this whatever period and Go from there I think that's the idea behind this anyone I mean, I mean, I'd like somebody to be able to know maybe Maybe there's a better way to do this, but I think this is not Quite good enough for the victim to really know well maybe if you wish maybe I I can't see who's here. So sir robinson or chris venner or matt valerio or james cupra wants to speak To me this is one of the easiest parts of this Yeah, I mean in the old days when when I was dealing with Good time and and the client wants to know as well when's the earliest time You say look if you at that time I would basically say to them if you Earn all your good time then you're going to get a third of your sentence reduced Which is basically what it was at the time 10 days for every 30 And now it's you know, you can literally put it on a chart and see if somebody's Somebody sentences x number of Years or months Then and they earn all of their good time the earliest possible day that they're going to be able to do it And be right there on the chart It's not it's not a it's not a hard. This is an easy one. It probably should cast out with victim information on every with every plea agreement It's basically a week a month And so in in 12 Months you would get 12 weeks if you earned it all off their minimum off their minimum Yeah off their parole eligibility day somebody out there with a computer make up the chart I think you do that senator Yeah, this is james pepper. I I agree that this is a relatively easy calculation to do and I don't think the Victims advocates have any problem with being the one to deliver that information for the prosecutor's office I do think that we would want some help from doc to do an easy calculation because if you look at the way the good time rule was drafted There are certain complexities about especially providing a specific date And we don't want, you know bad information being passed to a victim You know, because I think it's actually instead of seven days for every month. I think it's actually Seven days off the men in the max for every 30 days And and then there's fractional amounts for partial 30 days So, you know, if you're serving between one and nine if you're serving between one and nine days Then there's two days off if you're serving between nine and 15 days and there's five days off There's some some complexities to this system that I wouldn't feel comfortable having our victims advocates try and calculate The very specific date and then you get into the idea, you know, if it's Seven days for every 30 days and then some some years have leap years that you know might impact that If there was an easy calculator that doc could provide I think the victims advocates could certainly provide The maximum amount of time potentially accrued, but we would need some help in the actual calculation I mean, is this the kind of thing where they have to know the very exact possible day that they might be eligible for Or is it the kind of thing that, you know, within a five day or 10 day window You know, they they're gonna need to know I it's uh, there are these nuances That but, you know, even when lawyers are explaining this to their clients You know, they're not giving them an exact day. They're giving them A ballpark that gets you within a week of What it would be no matter no matter what it's the prisoner's rights office You know, when you've been in jail for some period of time a few days extra is not just a few days extra It means something to you um, you know, they end up arguing about those kind of things, but You know, you're you're always within a you know, five to 10 day window um The of eligibility. I mean, I don't I don't know that an exact date is the important thing, but maybe it is. I don't know Yeah, I I think that would be overly Oh, sorry, chris. You can I don't want to jump ahead if chris wants to go. I'll wait Okay, I don't think the I I don't I think anybody who was given an exact date There's all kinds of things that can happen So I think I would think that the important thing is that they understand how it's calculated They're going to be getting uh, if they want they're going to be getting notification of how much is being earned And then hopefully Advocates will be able to help them because they can call the advocate Years later and uh have a conversation about what this all means But I think you know, lots of things can happen the compassionate Release, you know, you don't want to give people a date Because I don't think it's realistic to think Especially for longer sentences that that's going to be the day they get out or the day they get paroled Yeah, I agree If I could just add senator, um, yes, please. Thank thank you. Um, I it's interesting, uh Defender general mentioned a chart because that was something that had occurred to me as well I I do think it it would be Really valuable for the victims advocates at the state's attorney's office to have something that that's easy to show Like in the best case circumstance This is um, how much would come off someone's minimum and maximum sentence And and show people and I think that you know, we could work together to do that What I what I would want to avoid was having every sentence have to be calculated twice by our sentence comp unit In order to give people an exact date So I think we can work something like that out because the calculation is fairly straightforward and then in and as um We've all said just being in in the range just to show Is probably good enough and our victims advocates will also Are also going to be available and there's also more information that we're going to be putting Making available to people About someone's release date and and that will be available That is available publicly now and will continue to be available publicly Thank you Okay, senator I'm okay if it's even within the month, but I think to Just everybody have a victim's advocate aren't are there not some people who don't People that weren't a victim or people who don't want to The victims does every victim who's out there that you know of have the Taking care of by the victims advocates office This is chris been out what I would say to that is that At one point they had access to a victim advocate. They may not In in the real time, but that's where the corrections advocates could step in and Be able to explain things, but I do know that there are advocates In the state's attorney's office who talk periodically to people years after The the person has been incarcerated Okay, thanks so is that Comfortable moving on from here senator nicka. Yes. Oh, I'm sorry So we'll have to be Sounds good. Thank you So I'm sort of I'm hearing that I think for now this language is okay as is. Okay So that was as we said that was a discussion that all relative to victim notification Now we're back into the substance of the earned time program itself. We went through these technical corrections just now Move further down to Substance of the program and again, this is for offenders who are serving A sentence at the time that this goes into effect So it's only applies to that universe of offenders folks who are Serving a sentence at the time and it has to be for a disqualifying offense And if you are serving a sentence for a disqualifying offense at the time this Bill is passed and signed Then going forward that person doesn't earn any further earned time They would still have the right to keep any earned time that they had earned Up until the effective day of the act, but they wouldn't earn any additional amounts Going forward. So the as the committee was discussing that means obviously the Crucial point in defining that universe is what is a disqualifying offense? And you'll see voluntary manslaughter is highlighted Because the committee wanted to look at that again I don't think It still says you have two subdivision b's there just because I don't think a final decision had been made But you wanted to at least look at it again and think about it So the ones you have agreed on I think are murder Kidnapping L&L with a child with the age gap exception that we discussed sexual assault aggravated sexual assault and aggravated sexual assault of a child The voluntary manslaughter one I think is still on the table for discussion I might even before we get to that since we see it right now And I already mentioned the interrupted sentence piece. I'll just point you to that language as well You see it highlighted on page five again, this is A carve out for Folks to whom the earned time program does not apply we have a several groups of people who don't earn good time under the existing law including life without parole Sentences and a couple of others and at DOC's request They wanted to add interrupted sentence to that list of folks that wouldn't earn good time And I worked with uh monica emailing language back and forth a few times and this is where it settled out So the definition remember the committee wanted a little more Clarity in the definition. Actually, there wasn't a definition in the first draft, but wanted a definition of the term And so the language you see is that it means a sentence that is not served continuously including a sentence to be served in intervals, which is Means refers to a weekend sentence because it's an interval you're there for the weekend But then you're not there during the week or a sentence to the work group, which is also also not continuous because you're only there during the work day And those are that uses the term including In other words, not a not an exhaustive list. There could be other Types of sentences that would meet the definition, but now you have language in the bill That clarifies what interrupted sentence means Okay, I'm okay Looks good Mm-hmm And I think oh Sorry, go ahead center sears. No, no No, I just want to say that that you also have the Uh compassionate release section is still in here, but I know that was also something the committee was discussing and uh if you wanted to see the um The existing language that I think monica had mentioned on Release and center sears you'd referred to it as well that that there is some existing language in statute For one person a person I think has a terminal illness um I think we can Should be able to pull up here um Let's see Oh, you're working with your I just did a white I'm trying to run your screen. I did the same thing Your screen not mine Yeah, okay. Thank you. I was doing it from my end It's weird I have my little mouse over here Moving it around moving your thing around. It wasn't working What wasn't wasn't having any effect. No All right, well just so you can take a look at the language. You see the uh It's I believe the reference was the subsection d here of 502 a when uh an inmate um Has a terminal or serious medical condition that renders the inmate unlikely to be physical capable of presenting a danger It may be released on medical parole to hospital Hospice other license inpatient facility other suitable housing accommodation recommended or sorry specified by the parole board um Then there's some sort of accompanying requirements to go along in it with it, but that is the uh The big picture of that group of people that can qualify For release on the basis of their medical condition Yeah, um, sorry. Did you want to speak to her? Um, yep So I think that have to be an age under that correct Correct It could be somebody 45 years old Could have just been sentenced So I think that brings us to the end of the walkthrough of the new draft. Uh, it's still Obviously a couple of things to discuss this compassionate release and the manslaughter piece but or any any other points that you want to discuss too, obviously I think we're down to compassionate release some manslaughter voluntary manslaughter Where are those definitions? Uh, we've got them I've got them on a thing I printed out But eric provided to us maybe Yeah, you put up the definition of um the manslaughter That you had you've printed you did for us eric This ledge 353 133 v1 that helps Thank you. Yeah, let me try and pull that up The voluntary manslaughter is an intentional unlawful killing of another human being Committed under sudden passion or great provocation Oh, my wife just fell I got to go help You take over senator white No senator baruch Yeah Voluntary manslaughter is an intentional unlawful killing of another human being Committed under sudden passion or great provocation that would mitigate But not justify the killing Sudden passion or great provocation can reduce a charge of murder to a charge of voluntary manslaughter And in the discussion Last time it seemed that One of the worries was that uh more serious crime would get pled down to this And so in effect we would be allowing earned time To someone who had committed a more egregious Crime than this. Um, but for various reasons got not pled down um So I'm trying to remember where the committee was on this I have to say I'm not personally um Against re-including this Even though we we straw voted to pull it out before Because of the testimony from uh The attorney general's office and other things I could I could uh vote for keeping it in the disqualifying offenses Um alice I see you nodded. So I I'm wanting to have voluntary Included as as being excluded Yeah And Are you uh saying then that you would be okay with continuing to have involuntary Not one of the disqualifying offenses not crazy about it, but yes, okay Jeanette what where are you on that? um It's hard for me to say because I have issues with the entire Yeah, yeah Understood senator benning Well, certainly involuntary manslaughter Um shouldn't be one of the disqualifiers. I'm looking at voluntary manslaughter and saying to myself There's in my head a reason why somebody should be able to get The um credit And alice while I understand your concern all that this really does is require the state's attorney to have a conversation prior to entry into a plea agreement um to Make sure that the victims understand that that's part and parcel of the process So I don't know why we would have this um on the list Because there are situations that it's not pled down that it was a straight up charge of voluntary manslaughter and there's there's an element of Passion and provocation That society in general understands You got to pay for something here, but it doesn't rise to the level of a higher murder charge And the only thing that we are going to be doing by Allowing credit if this section is removed Is it says to the state's attorney? They've got to be able to have a good conversation with The victims family in that situation In order for them to understand what would be happening in the event of a plea agreement And the prosecutor doesn't have to agree to the plea offer so it puts in my head A little equilibrium to the discussion Not sure that's the right word, but frankly i'm torn for words these days That's all Senators sears we uh, we were just each weighing in on it. Oh, okay Um so uh i'm fine with having having it in as one of the disqualifying crimes I think that's three three votes to re added in that is voluntary manslaughter Which means to exclude them from? Yes right okay Three to two Yep. Yeah, you you me and alice are okay with putting it back in Good. All right um, let's move to Is there any other sticking point other than? um The compassionate release Well, I I just wanted to say I still agree with senator white on this piece. I think she's right I can't support it without some language regarding the Nebulitating disease I'm I'm worried about A lot of things about this Well dick for whatever it's worth. I'm going to agree with you. Um I suspect this provision contained in this bill is going to be a poison pill going over to the other side It will be They took it out last time I've already been told that they won't accept it. Um What I can agree to do is look at this in the miscellaneous bill Looking at that section Of law that eric just showed us And making sure that There's some provision here We've seen it during cobit by the way people who are There's been an attempt by the department of corrections and some prosecutors and Obviously defense bar Get people out who are a heightened danger to This is nationwide not just To not have people incarcerated might So come to cobit But on the other hand i've got Keep in mind this guy from florida who's been avoiding a sentence for Or a trial for A lewd act with a child Um, he was actually from the york state and was over in the strapping area, I believe And uh He's been avoided by claiming his heart condition couldn't stand a trial But they have pictures of him down in florida getting on a boat And this has been going on for at least two decades. It's not longer Um what I I know where you're coming from senator white. Um What I think, um I would Be more than willing to look at something we could do to improve the current law regarding compassion I'm happy to have it done someplace else So eric could you um You and senator white and myself maybe get some Time offline to discuss Something in the miscellaneous bill that would improve upon the current law regarding compassion. I'm gonna call it. Um What do they call that law? I think it was medical release medical to revisit medical release Sure, that sounds good. Thank you Sure Okay um So we would take that out and uh Everything else stays in as presented in draft 2.1 eric can you just a remote to to the uh disqualifying Yeah, we um So it starts right there there. There we go. Yeah That sounds good So you got two b's you'll have to in draft it would it be draft 3.1 erics? Yes, exactly So in draft 3.1 it'd be a You'd have another you'd have to renumber. Yes. Thank you. Yep Is that the only change from And would take out the Ambassador release is that the only change from All right Yep from the current version that's it as far as based on the discussion that the committee just had it Those are those are the only two I think Okay I'm in the process of Making them right now Um Is the remotion to report favorably draft 3.1 or actually to To yeah senator bruce So moved senator bruce has Move that we report That we amend s18 as seen in version 3.1 Which we just discussed Preparing right now Is there any further discussion? Um senator white Is this the appropriate time for me to say what I have to say Yep. Okay. Well either now or when we vote on the bill. Okay. I'll wait. Okay Uh senator bruce has moved peggy. Would you please call the roll on amending the bill? I'm doing oh second Oh, yeah Senator benning Senator nickah Yes Senator white Yes Senator bruce Yes Senator sears Yes Okay, we've now amended the bill Is there a motion to report? draft 3.1 favorably senator wait No, I'll wait till the motion is made Make a motion that we we report it favorably senator nick has moved that we report Version 3.1 of the bill as amended 18. Is there any further discussion senator white? Yes, I I have to say that um, I have great sympathy for the victims for the the necessity the Potential necessity for them to relive um the Crimes done to them Earlier and potentially more often than um, they would if if we didn't pass this But this does I have to remember that this doesn't guarantee release only the ability for a hearing and I do Uh sympathize with them that they would have to go through that hearing process But I do also trust the parole board to make decisions Um taking in mind the types of crimes and by um Doing this what we've done is we've We've uh eliminated all kinds of cases Just we've eliminated categories of crimes as opposed to Um the individuals within those and there's a great disparity Within each of those categories of crime. I believe around the the individuals within those categories so, um I I think that it creates two classes of victims those who Absolutely new and those who will be slightly unsure even though they've been um informed of that and two classes of prisoners somebody who is um doesn't get earned time because of a A particular crime and somebody who does get earned time because of a particular crime We also this morning heard from sarah george that Some states attorneys use old records which could in fact Influence the current sentencing and so I believe that it would and we know that states attorneys Prosecute in many different ways and we have 14 of them and I believe that this would Exacerbate the inequality of justice around the state So while I really honor the committee's process and the give and take and the Everybody's willingness to compromise here and I Really want to vote to support that process. I can't support this bill for those reasons Any other comments? I'm appreciative of your view senator white. Um, this is Difficult bill because it's difficult to admit you made a mistake um, and I think unfortunately victims Were eloquent and spoke Here and I it was a testimony of them and some others that I heard from That led me to support this bill when I Um when we first got noticed and I looked back at what we had done In 2020 In advancing this bill uh I remember uh a email from chris fennell representants crime victim services Indicating support but concerned about how victims were notified how the victims know This change had taken place At the time we did this. I don't remember anyone raising an objection to that Or everybody was involved the state's attorneys the attorney general The victims groups other than the network. I don't believe the network was involved um Sometime in october november I had conversations with the attorney general um About what once the victims have been notified by the department corrections And I agreed to sponsor the bill. I am actually very glad that the committee chose to move prospectively Allowing her in time for everyone. I think that was an important statement because But if you're going to change the rules of the ball game You usually don't do it in the middle of the game and unfortunately For some of those victims They had made agreements during a plea bargain With the prosecutor To a certain Sentence and We changed that sense without Only understanding the impact of That's tough for me as a politician admit a mistake What Just as the attorney general said when he Was here in the first witness of the bill that he made a mistake And that's tough for somebody who's a statewide Elected officials to do and I I respect them for that Uh, which is the reason that I agreed to sponsor the bill the reason I'm supporting the bill now and I do want to say I respect senator white. You were wasted in opposition to this I'm going to vote. Yes Anybody else who would like to speak at this time Peggy, would you please call the roll? senator binning Yes senator nikta yes Senator white no senator baruth yes senator sears yes um, I'm happy to report the bill once eric's got it Drafted and we go through this process During coven Getting the information to the secretary senator nikta Then um, eric once you have the final version could you give that to peggy so she can get it to us, please Yeah, sure. Yep. He'll give it to me. Oops, sorry I was just saying that it still has to be approved by our editors So it may not be till tomorrow morning, but sometime today or tomorrow I'll send it to peggy and then she can post it Okay, or can you actually send it to us peggy? Please I I can send it to you guys and I'll give it to senator sears who will send it up to the senator Terry's office with the vote I'm also supposed to alert the secretary's office that the bill will be coming Um, so I will let them know to expect it either later today or tomorrow morning, correct I think real realistically we'd have to say tomorrow peggy. Okay. That's fine. Yeah, I think um, I actually would prefer to be reporting it. Um Not next tuesday. I think at least we should have a clock to discuss and the and both parties may wish to discuss it So senator sears, does that mean that You'd be comfortable. So if the if it did go to the clerk comes up if it comes up tomorrow and it got to the clerk tomorrow I'm flying with that because I never go on notice A vote on wednesday beyond notice on tuesday perfect So take your time Thank you Well So I'll tell them most likely tomorrow morning then correct Yeah, okay Yeah, tomorrow. I don't know if it'd be in the morning. Yeah Depends on the editors. I don't know how backed up the end of desire either all right, um Why don't we take a one minute? And 30 second break you don't have to shut things down pegging just We're gonna take a brief break to Transfer over to brinn and a different bill s45 Which is the probation Thanks, eric for all the work on this appreciate it. You bet. Thank you All right, good work. Thank you. All right. We'll see everybody soon Um What brinn you did a terrific job on draft 2.2 and I especially like the green Maybe you want to share this draft for us to go over While brinn is sharing the screen tomorrow morning. I'm taking my wife to a doctor's appointment So I'll be by phone, but senator beruth if you could Run the meeting on the robo calls I haven't found anybody that's in favor of them yet, but we might hear Probably get robo calls about them probably I'll be on the phone so they won't be able to send me a robo call But I'll do my best to be involved While I'm at the doctor's office So peggy if you could send me the zoom information Well, you will send me the zoom information Tomorrow Yes, I will and you can use any of those numbers that are included on it Okay, because I may dial in and do it by phone and I'll I'll do my best to be involved, but obviously I can't chair the I should be back in time for the discussion Data the chargers like a Purpose of probation is anything in green has changed from the last version of the bill Yeah, so for the record Bryn here from legislative council walking you through draft 2.2 of S45 and I just wanted to start out by saying that Yesterday you remember that the committee was taking some testimony on this bill And I think that you had thought you were going to return to it So I quickly did a new draft and sent it out to the witnesses Around 1130 yesterday and that was draft 2.1. So they may have reviewed that version This 2.2 is really substantively the same as that one. I only changed a few things. So If if the witness so that's just for the for the witnesses edification, okay So there's the purpose of probation Yep So we added a new statute to the probation chapter in title 28 that sets out the purpose of probation as being rehabilitative And reducing the risk that offenders will commit another offense and protecting the safety of the victim and of the community I have not heard back from any witnesses on on the draft. So they they I wasn't able to incorporate any comments. So I imagine they will share with you their thoughts when they testify I'm just curious if after the word and there should be thereby By Something like that thereby protecting the safety of the victim and the community instead of of the community Just seems to Flow a little better Okay, I'll make that note That okay with everybody Okay So then this Change was made at the request of the department just to clarify this section. It's not the recommendation of the commissioner But it's the commissioner's motion to discharge And then we've changed commissioner to prosecutor here It's the prosecutor who would file the motion to continue probation not the department And then I've changed this I've narrowed it down here to preponderance of the evidence Um, I thought that I heard some witnesses coalescing around that Standard with the narrowed list of crimes. So I put it in here But again, it's in green. So it's flagged if you want to return to a different standard of proof Then I moved down to page two. So these are the findings that the court has to make in order to um In order to grant a Motion of the prosecutor to continue probation So be your member is what we've been sort of working on that language and be and I gave a couple of options here The first is that defendant hasn't completed any determinant period of rehabilitative or risk reduction services required as a condition of their probation Or is not substantially in compliance with the condition of probation in this language matches The criteria that have to be met in the second section for the department to File a motion to discharge in the first place So you'll see this language again later Alternatively, um, I know there was quite a bit of discussion about um The grounds on which a court may choose to continue the probation Uh, I think you could also remove b. Um, since the department is already um screening probationers for this criteria Um, they're doing that up front. So if a probationer meets this criteria Um, then they'll go uh to before the court if they don't meet it. They won't wind up before the court um in the first place So I think you could remove that language. Yes Um, oh, sorry No, go ahead. I had senator bruce and then senator white So I'm I'm I think I see what the language is trying to do. I think I think there's a little ambiguity But maybe I'm reading it wrong. So when you say any determinant period of rehabilitative or risk reduction services You mean, uh, a programming requirement that has a determinant length Correct. So so it's a six month Program, but what it says is has not completed any determinant period Of the services So if it's a six month thing and I've completed three months That is a determinant period It's just not the complete program You know what I mean, so I I think the the languages Is a little muddy in that way it could it could say something like Defendant has not completed um Any determinant has not completed a determinant program Of rehabilitative or risk reduction services Does that make sense? Yeah I I think that kind of was my same question but my question still is here How do we or maybe we addressed it somewhere else if if you are told that you have to have a Six in philips case a six month um program But the program doesn't start until a month before your potential hearing How do we deal with that to make sure that people Have access to programming? While they're there because I've heard that they often don't start the programming until the end of toward the end of the The minimum sentence Does that make any sense to anybody well except that these are people on probation? Oh, these are the same Okay, got it. Yeah, but the same problem might exist that yeah If you have class a is already in session and you might have to wait two months to get into class b because you you know Right. Yeah, it has nothing to do with any of your behavior. Just waiting to get into the Into whatever the treatment is that last three months you could be Past your midpoint Through no fault of your own So how do we deal with that at all? Well, that's a good question Especially in some cases, um, I'm not sure this is true everywhere, but my guess is that in some places in the state Certain programs may not be available um On a regular basis and may only come up a couple times a year Yeah, crash would be one I think I don't know well There anybody who would like to comment on this Environment who's in the room? Again, I can't see who's in the room and so Matt. Yes. Thank you. Um, this was the Area one of the areas that I was talking about the last time I I talked about this and I know we're trying to You're trying to do something to address the way programming But I do think you have a vagueness or a loophole kind of issue going on with determined Subsea has completed any determinate period of rehabilitative or risk reduction Services required as a condition of probation and is substantially in compliance with the remaining conditions um Because I don't see though. That's not Normal language. That's not something that we're familiar with um, you know, we we're I don't I don't I don't know what to tell people what a determinate period of rehabilitative risk or reduction services means um I can guess But if this isn't something that we've ever described in statute before and um So when you try to put people on notice of what this means It's very It's not easy. I honestly, I don't know what I don't know what to say beyond that I mean, I know you're trying to get at there's domestic violence counseling. There's So let's take crash for an example, right? You have to complete the crash program to get off probation and the program started in September but you weren't convicted until october and now you have to wait until december to get in Right. How would that work in this with this language? That's my question Is that I think I'm getting hung up on the word it's determinate period That's where the problem lies, huh? Because it's not really the time frame. It's the thing right. Yeah I I think we need to remove this And don't I think it would complicate I think it's covered elsewhere Frankly, uh, this is judge greerson Yep for the record, uh, brian greerson chief superior judge I would agree with matt that length the first part of that language or the first part of that paragraph Again is not terminology that the court Uses um but I would think That by just the second clause is not in Is not substantially in compliance with conditions of probation Would cover This area Because it would apply to basically any conditions And the situation you described I don't think it's uncommon if someone has a condition of probation that they haven't met that The condition I mean the probation can be extended For a period of time to allow them to complete a condition So we'd read a Termination and discharge will kind of present a risk of danger to the victim of the offense or to the community Or b is not substantially in compliance with the conditions Is that how I would read that that's my I'm good with that midi sounds good Okay Next is Right so subdivision two. This is just changing again the word Commissioner to prosecutor here. So if the court grants the prosecutor's motion to continue probation Um, it has the option to continue for the full term or a portion of that term And then the new sentence there the court shall also review the conditions of probation and remove any conditions that are Not necessary for the remainder of the term That was discussed yesterday Okay, I'm going to move down to Section two where we get into the requirement that the department do the midpoint review so again We're on now we're on page six I um didn't hear definitively that the that the committee wanted to do this But I made this change that now subdivision b one of the criteria for the department recommending a person for discharge Is that that person is not serving a sentence for committing A domestic assault or a stalking offense or a sexual assault offense or an l&l with a child so we've Narrowed the number of crimes that are excluded And then see oops, sorry You see this language again, um about determinant period of rehabilitative or risk reduction services. So, um We you may want to move back here again that the The non-qualifying crimes domestic assault stalking l&l with a child and was there another one there and sex assault any of the sexual assault offenses You thank you You're on c on line 16. Yep. So We took out highlighted Underline and struck through language here was that indeterminate period of programming to the satisfaction of the probation officer I removed that sounded like nobody liked that language But again, we've left I've this is this language about a determinant period is still here Again, this is the commissioners. This is what the department is reviewing So I don't know if you want to leave it here for the department to review whether or not the person has completed any Defined amount of this type of programming or not Or if you want to narrow this down to Ensuring that the person is substantially in compliance with their conditions Yes Dale, do you want to come up? um I would agree that the determinant period of Rehabilitative Services is not really clear. So I'm not really sure what how we would want to play that As far as the department requirement My concern is that if you only go to substantial compliance That the offenders will not have had the opportunity. That doesn't mean completing of the program So I guess the question the policy question is And I'll give two examples one would be substance abuse treatment And then one would be like a batter's intervention program substance abuse treatment There's not really a sit number of sessions to complete per se. It's based on the progress of the offender And the the batter's intervention program for domestic violence. There's a sit number of classes to successfully complete So I guess the question would be What level of completing of the risk reduction services Is um Is going to be the policy decision. Do you want individuals to complete their risk reduction services? Do you want to um So so that would be so we'd have to make the determination of someone's and substantially compliant They could be in a sex offender program And they could be going and doing what they needed to be do but they haven't reduced their risk as of yet So that's that's kind of where the language How you want to word that language? I don't really have recommendations You know, we did have it was taken out here But to the satisfaction of the probation officer because that would leave them the ability to make those determinations But if you want to restrict the discretion of the department Um, that that does it in it, but but the language needs to be clear Kind of what what you want As far as a policy decision well If here she has completed Rehabilitative or risk reduction services Required as condition of probation is instantially in compliance for the remaining Conditions we took out the term in a period. I don't know that would help me Um, I would agree Senate Senate judiciary schedule for today What sorry Sorry, I'm trying to get this thing on my phone. Oh So So can I ask a question about that? So if we if you said has completed um The rehabilitative Is that what you're suggesting is just taking upsetting taking out the words any determinant period right So if you has completed rehabilitative services Um, I think that people with substance abuse issues That goes on forever and ever it isn't you don't complete that Well, I know it's whatever was required in the conditions of probation It wouldn't require they might require let's take the dui You're required to go through crash right you've completed that you've been through it or Anger management there's five sessions of anger management. You went through it You've completed it doesn't mean that you Successfully completed it unsuccessfully completed it you went to them things Right, but what if it says uh work with voc rehab to work toward finding a job Or work with vermont adult learning to complete the degree or usually I counseling They aren't can well, I don't know their conditions. Do we have those open conditions? Yeah, I mean yes, you can any anything that that is on agreement. It could be pretty wide open Yeah, I think that it should just be substantially Is in uh, uh, I can hardly read it but in compliance with the conditions of probation Oh Thank you, Brynn Thank you Senator if I might Take a chair David, please. Yep. Um A couple thoughts one is actually, you know, when we're thinking about this bill, this is a As a whole it's sort of a two-step process that we're creating and the this is actually the first step Even though it comes second in the uh in the text Uh comes below the court piece, but the court piece is second. This is first and I think it's Uh in order to ensure that Uh, we're getting as many of these discharge Recommendations as possible to up to the court. I think it's really important that we try to make this d1 Uh a series of on-off and not just that we're getting as many but that there's an equal opportunity across the state We want to make these conditions as much an on-off switch as we possibly can Where there's very little judgment as to whether the switch is on or the switch is off Um, and so when the switch is on bam, it goes up to the court And then if there's a question about victim safety or substantial compliance, the court can Adjudicate that with with input from prosecutors and and uh defendants But I think here What would make sense and I'm not sure if I have the phrasing right, but um I I'm sure I don't have the phrasing right but my recommendation would be to have something like um Programming You know can let me explain the concept and then perhaps we can somebody else can work on the wording Having a little trouble with that, but I think the idea is That for this sub c conditions have to be completed Where the program at the outset has a set term So in other words not like substance use treatment which could go on forever not finding a job which could take a long time But something like project crash, which has a set term and you know, it's an on-off switch somebody's done it or they haven't done it And that's it But for all the programming where it could go on it could go on at the judgment of the Person administering the program it could go on to the satisfaction of probation officer all that stuff should not Judgments about the substantial completion. I believe should not be in d1 because The step that's within The department should basically be in as much as we can possibly create it be an on-off switch. All right the the person's hit it Let's hit these switches. Let's send it to court if there's issues about victim safety or substantial compliance with other conditions that have to do with rehabilitation like Substance use treatment stuff that's ongoing or job finding jobs ongoing The prosecutor will have a chance in court to say well We'd actually I know this got sent up because it hit the switches in d1 But we actually think there should there needs to be a bit more work here. So that would be my recommendation as The rubric for how we look at d1 should be Is it very easy to know that it's been done or not done? and so that would be my recommendation and then I think we can Leave it to that court process to sort of do a little cleanup where needed I think senators here stepped away. I don't know what Somebody else may have to take over. Okay. Happy to do that any More questions about this section This isn't necessarily a question about this section. I'm just curious if when when this happens when this mid review happens is the offender notified that it's Happening and Do they have a chance to To speak to it if if the I mean doc Sends it to the state's attorney. Is that right and then the state's attorney decides Does the offender have any idea that it's happening or not happening We would be discussing it with the offender. I mean that's that's going to be one of the ascentos That the probation officer uses in order to motivate the probationer to complete the conditions in order to get off supervision And is that what happens now? Yeah If if if there it's an internal review so Usually part of the intake it understands what's going on with with probation, but if the offender is not in compliance The offender generally knows are not compliance and then we wouldn't be filing the discharge the motion for discharge now Okay, thanks Brynn Okay, I'm gonna keep going then. Okay so I'm gonna scroll down here the next page. You'll see all of this Old language is or existing language is struck through What what I've done there is that removed that requirement that was in the former subdivision two That required the department to file a motion to reduce the term of probation if they didn't file a motion to discharge And instead in this new subdivision two We've changed this language to require that the department file for discharge Once the probationer meets all of those criteria that you've set forth in d1 So again referring back to that a b and c In subdivision one So again, whatever whatever You do and d1 will affect what happens here as well subdivision four. Whoopsie. We've just removed this language about The commissioner adopting a rule that really is existing statutory language. It's underlined here because I moved it around So essentially that will be language that's repealed But as the department testified because the the statutory language here is so Directive they they sounds like they don't need a rule to effectuate it And then we've changed the directive here about victim notification to require the prosecutor To make that notification, which I believe is current practice Of brim. Yep. Quick question. Good faith effort. Is that currently the The language so good Good faith effort. Um, I was I believe Requested by a couple of the witnesses that you were talking about Um last week. I don't know if you wanted to the committee wants to put in more specific language about what good faith effort means You do that in some areas of the law and some you do not It it seems a pretty loosey goosey um term, uh Because good faith is always in the eyes of the beholder senator sears Just wondering about, uh, your thoughts on good faith effort to notify victims Yeah Chris feno had testified that it was too weak Yeah, I make it you can't make it a direct connection that they actually make connection with the victim though because Years go by and the victims Could be anywhere and they may not be able to locate them. So that's why I think this good faith effort Is there for that reason Okay, um Brynn, who would who would adjudicate if there was a dispute about the good faith effort? Who who would deter would that be the court? I am not sure. I imagine that um, I imagine that the prosecutor could argue. Um I'm not sure about that Okay, I think maybe if I can jump in senator brief. Please judge gris So I would expect that When there is a request for discharge and the state is opposing it um The court would would make inquiry um of of the prosecutor What the what the victims position is on this? And And I and I would agree with what senator benning had to say You know, this could be some time After the the original sentencing They may not have contact with the victim but ultimately Whatever attempts have been made I mean would we have to go forward with the with the proceedings so Some folks may wish it was a a stronger wording but I think good faith effort covers what What we would expect the prosecutor to do I mean we would expect an explanation if Yeah, I mean presumably if the prosecutor is opposed to the discharge They would have had some contact with the With the victim. Maybe that's a wrong assumption on my part. In other words, I think you'd be more concerned if the state was not opposing a discharge um case I think the language meets Would meet the obligation Yeah, um, there are cases where the If the prosecutor tried to reach the victim and they don't have a phone number. They don't have an address anymore The victim has moved You know, some of these cases are people are fairly transient and so I think I I think I'm all right Did you want to comment? Yeah, I mean I was going to say that this could be months or even years after the the case resolved and there may have been no contact with the victim with the probation or the courts or anybody So I think good faith effort is as as good as you can do um under the circumstances because if it had required actual notice or anything you'd be spending A lot of effort trying to track people down who Maybe really don't want to have anything to do with it anymore I think sometimes people have moved on. Um One of the problems I know the corrections department has is people don't notify the corrections department that they want information So when somebody's released or something for example On furlough, I know there was problems with oh, I didn't get notified. Well, they never asked to be notified I could uh, just mention one thing if it's helpful. Yeah This is james pepper from the department of state's attorneys and sheriffs There is a similar standard In the expungement statutes um, it's uh 13 bsa 7608 related to victim notification prior to um agreeing to an expungement which says that the prosecutor's office Shall make reasonable efforts. Um, but that those efforts shall not um Be a bar to granting the petition and then it defines reasonable efforts as sending first class mail to the last Known address and making a telephone call to the last known number So there could be a cross reference to that or just a copy and paste and Yeah, you could do that. That sounds good to me. That's good to me seems a little sorry in law Yeah, sounds like a good idea then It's a little bit stronger. So You would support that as the prosecutors That's what we're doing anyway Um for for the midpoint review. Um, so yes, that that seems reasonable to the judge said What what does the victim think you would report? We've tried to contact the victim The last known address the last known phone number Is that right? Is that okay brin? Have you got that? Yep Okay Moving right along to page eight So the last change is that we've added a section here directing the sentencing commission um To take a look at the probation statute and the pew charitable trust study that was referred to in in committee yesterday And consider whether vermont should limit the duration of probation terms for misdemeanors to two years And then report back to the justice oversight committee Um by october of this year Did everybody get this report? We posted or how did I? No, I mean maybe we did it hold it up again I got a a great big Couple reports. Is it this one? Oh, you can't see me. Oh, yeah, I it's not that one This is from few charitable trusts. Yeah, and it looks at states. It's entitled states. Oh, yeah Probation and protect public safety. Yeah, you're well done cool Well, I looked at um age 18 many states cap probation for misdemeanors at two years And we're actually an outlier with no maximum You know, we're I think we're better than we used to be I remember when I was first in the legislature for summary, I don't know how this came up, but there was a sentencing committee and Somebody named zikaro maybe was on there. Yeah, and um, this is a carl. They let they let me come in and testify I remember going up to the governor's office Because we had our probation at the time and I'm not sure it was all of them But some of them said you're on probation until you can be good And I said Who who on earth can Be good always and I just so I think we're better than we used to be agreed Oh, I we've come a long way the zikaro commission was on on That's the one that recommended that we'd build no new prisons. But if we were going to build one, it should be an attention It should be what? A detention facility. Oh, I believe con hogan Um, zikaro they were appointed by Douglas. I can't Was it ginsberg I don't remember. There were three or four All men of course in the room when I went to testify yeah Ginsberg I understand but edzoo carol said that He was the chair wow Yeah, he was the chair of the zikaro commission. It was uh A Douglas appointed commission. I believe to look at prisons issues There was some event that occurred and I can't remember which one it was. Do you remember matt? Yeah, I mean, I I know that that was the one you were You were talking about that that happened during the douglas administration for sure It was maybe like 2004 or five or something Yeah, because I was first in the legislature. Actually, I still got that report sitting on the top of the file cabinet and senate jish here Not anymore It's in a box somewhere. Nothing. Well, nothing's out. Okay. Well, it was sitting on the top of the where the computer is not Peggy's but the The midi computer right there on the top there Everything's gone. I tried to find my I tried to find my 1974 um law enforcement study That was on the top of the filing cabinet when I went up there and it's gone somewhere Whenever we go whenever we get the opportunity to go back to Montpelier, I'm sure we'll have a Field day trying to find all the things I knew right where it was I don't know. I hope they haven't cleaned out Alice's ball No, they haven't They don't have the combination Is the fluff still there? Yeah, the fluffer nutter is gone Fluffer's gone That's gone. I threw that out I got a jar of fluff here Okay I think we pick up with this on thursday. Can we do a final draft? Or hopefully get something out to people with thursday brin Yep, sure thing So looking at next week's agenda and I believe it was 8 30 to 10 15 So if we plan for 8 30 On this on thursday the 18th If you can get things out to all the witnesses and the committee members I Like are you going to start meeting on 8 at 8 30 on thursdays? Yeah, no just that one thursday because that's the day we have the stupid election Trustees at uvm and state agriculture college Okay And so it's eating up the entire month most of the morning and I wanted to get two hours in so Okay, the other one is eating up afternoon committees Yeah, well That's also ridiculous I don't mean that The inspector the adjunct inspector general and sergeant of arms are not ridiculous Us putting trustees on uvm's board Senator hardy and I agree that it's a bad idea. She's taken over of senator ash It is not a bad idea. Well We'll debate it when the bill comes up on the floor from the education committee They're gonna remove the public trustees Well, I I I don't know that that's a done deal to come out of the education committee. Oh, okay. Well, I guess we I'll have to put pressure on campion I will I will tell you that I believe the election of the adjutant general is ridiculous Okay We did we passed it last year and the house Well, it's very complicated and uh, I bet I voted for it You did wagons wagons Wagons over there exactly join me in my constitutional amendment to cut it to 75 Can't we do it by administrative rule? No The other way that we could do it is reduce the budget so we only pay for 75 You have 150 would pay for 75. Yeah And they'd have to choose who gets paid who doesn't foolproof It is All those on the budget Say aye I'm sure we could get it past the senate