 Good afternoon and welcome to Vermont House Judiciary Committee. It is January 6 and we are continuing our work on looking at racial disparities in the justice system here in Vermont and we started this morning with the chief justice of the Vermont Supreme Court in his role as the chair of the justice reinvestment to working group to discuss the the the work that the group has done specifically on racial disparities in Vermont, something that the that council state governments brought to our attention it's something that many of us knew about. It's uncomfortable to talk about, but it's incredibly important, and I'm very grateful for the Chief Justice in his leadership and the Council of State Government in their, their research and their data collection in showing us the data, the Vermont data and giving us recommendations to to mitigate and begin to eliminate those racial disparities in Vermont and in their presentation the Council of State Governments did reference our DAP and our DAPs work on racial disparities and the need for a Bureau of Racial Statistics or some entity that will do that data collecting and that and what an important piece that is for this continuing work. So, so to that end, I have invited a 10 Nostrad and Longo to discuss with us the R DAP report and I know that you wear a few different hats so I welcome you to to introduce your yourself and and tell us about the incredible work that you've been doing and to get this right. So, so welcome and and thank you. Thank you. I'll turn it over to you. Thank you. Great, great. Thank you for the introduction I am. It is an uncomfortable thing isn't it. I'm very aware that today is January 6. It's really hard not to be aware that today is January 6. It's been very hard. I know just personally having many people. Sadly, a lot of Caucasians talk to me about how white supremacy really wasn't a foundational thought that was going on a year ago today at the Capitol. I remember watching the events unfold on television and seeing flags of various organizations that made it quite clear to me that there was a lot of connection with the idea of white supremacy. We were, as the R DAP, very aware of that notion, certainly when we began with our report that was due, we've had a report due 2019, 2020 and 2021. And in the 2019 report in the preamble, we quoted the legal scholar and critical race theorist Francis Ansley about white, about white supremacy in fact, as we named it in that report and I'd like to just start by reading that. She says, by white supremacy I do not mean to allude only to the self conscious racism of white supremacist hate groups. I refer instead to a political, economic and cultural system in which whites overwhelmingly control power and material resources. Conscious and unconscious ideas of white superiority and entitlement are widespread and relations of white dominance and non white subordination are daily reenacted across a broad array of institutions and social settings. We summed up after that for the preamble. In short, we speak of a social order in place for many centuries, which causes damage not only to people of color, but also to various Caucasians who, at the same time, benefit in many ways from the privilege that it confers. It is the system that we have all been part of either consciously or unconsciously. It lives in all people and institutions, regardless of individual desire, belief, or comprehension. And the way that we went about starting to attack that issue was very much rooted in questions that act 54 of 2017 raise. There were several. One guided the IRDAP to think about how a public complaint process would be put together to address perceived implicit bias across all systems of state government. We were also asked to talk about racial profiling, whether and how to prohibit it. And lastly in this, we were asked about data collection and about data collection practices, and we came up with a very great list I thought. The feedback that we got from joint judicial oversight was that it was a wonderful view from 50,000 feet, but that they really would like something that would be even more detailed than this. And what we did come up with and just the broadest parts were firstly to increase data collection with respect both to court processes and administrative processes. We actually collected data that captures the high impact, high discretion decision points that occur during several moments. One, judicial processes within states attorney's office, Office of the Attorney General, Office of the Defender General and then other places, Department of Children and Families Corrections and so on. We also moved that and recommended that there be an expansion and improvement of data collection with respect to law enforcement. And finally, we urged a commitment to staffing and other resources to collect and compile data properly. That to me is the significant point here. Because that point on its own led to the report that came the following year. That report was focused more on detail. I remember a group of us that was that report was specifically about section 19 of Act 148 of that year. And what we did broadly was to find a lot of data that had been siloed, pull it out, look at the high impact, high discretion moments and with help of various partners in the state with whom we work, notably crime research group. We were able to pull out what data do exist, what data do not exist, and what would have to be kind of finagled in a sense because the systems that are used to codify and say corrections are not immediately compatible with systems that are used in public safety. Everyone did Yeoman's work on this. We were very grateful certainly also to crime research group for what they were able to give us. That report consisted largely of prioritized moments, high impact, high discretion moments within the criminal and juvenile justice systems at which data should be collected. And those were there are tables. I didn't hand that into Amber Burke I figured enough reports I gave her one I thought I didn't want to like give her everything we done over the last three years. I figured that would, you know could come later if you wanted to look at it certainly. And of course you all have it on the website. So those. We broke those moments down and ended up having to prioritize them because there were a lot of moments. There were a lot of moments. There are a lot of moments. It really became a moment for us a moment of making decisions about what is most important and what is perhaps front loaded would be a better term than most important. And we did that that was really difficult work. It was, it was intensely difficult work, because so many things, you know you don't want to shelve things. How to put it, just take the sentence, we're going to shelve a moment of discrimination, that's not something you ever want to say. That's just not something you ever want to say and it's certainly not something you want to hear. So it was rather difficult to come up with this but we did it anyway, and really sort of emphasize that these other moments needed to be kept in mind, as things progressed. We were able, again, with the help of the Council of State Government to make connections with the state of Connecticut's criminal justice policy and planning division in the office of policy and management, because they have a group of people who do this sort of work, not just limited to the criminal and juvenile justice systems, but that that was certainly one of their big mandates was to look at disparities in those in those areas. We brought that to the attention of the legislature, and then based on several meetings with them we were able to make further recommendations, and it again, one of the first and this is Act 148 of what two years ago I'm losing track of time. The first was that a body charged with the definition collection and analysis of data pertaining to racial disparities across the juvenile and adult criminal justice systems be both be created, and staff experience has shown that Connecticut has created three staff members charged with data collection and analysis. In a strange sense, that was the paragraph that led to the report that we're now discussing, which is about Act 65 of last year. You will note that all of these reports are sort of the our gap with parachutes we started at 50,000 feet, and we're getting closer and closer to earth. This one. This is on earth, if I may, if I may go so far, I do not know how much more detailed it would be possible for this group of people as it is presently constituted with its partners, including crime research group to go. I mean, there's a lot more around data collection crime research group is thinking about that, along with several members of the art that. But in terms of making overall recommendations and presentations to the legislature. I think we're on the ground now to carry the metaphor to the logical conclusion, maybe a little bit below ground. But before it is exhaustive in my, in my belief system, at least, we were asked by that act to really look into a bureau at that point was called the bureau for a variety of reasons we changed it to office. The, the act has a bureau asked us to speak about the creation of this bureau, which would collect and analyze data related to systemic racial bias and disparities within the criminal and juvenile justice systems. And there are five things, one, where the bureau should be situated, taking into account the necessity for independence and the advantages and disadvantages of being a standalone body, or being housed in state government to how and to what extent the bureau should be three, what should be the scope of the bureau's mission for how the bureau should conduct data collection and analysis and five, the best methods for the bureau to enforce its data collection and analysis responsibilities. And with a lot of people that we were asked to speak with crime research group, the national center on restorative justice, UVM, and any other entity that would be of assistance to the bureau and certainly to the our data. We were asked to consult and have the assistance assistance of the chief performance officer and the chief data officer. The, we really reviewed this report as a continuation of the work that had begun two years before we spent the summer writing it. We met every Monday night. We, we had homework. As you can imagine, we relied very heavily upon principle set out in the actionable intelligence for social policy. And this report was published by SP racial equity tool kit. A quote from there this body of work seeks to encourage shifts of awareness and practice by centering racial equity and community voice within the context of data integration and use. The vision is one of ethical data used within racial equity lens that supports power sharing and building across agencies and community members. And so what we came up with was an exhaustive I keep using that word but I don't know what else to use. The report that described the structure of this bureau, how it should be governed, how power and information should flow. We are very blessed to have some people who are data experts on the our DAP itself. They contributed that would I mean they contributed enormously to the section of the report that I will admit with a bit of a smile I don't understand. Where they go into extraordinary detail about how the data need to be thought of what kind of agreements need to be gathered in order for the data to be gathered itself. How the staffing of the bureau interacts with the, the kind of data that are being extracted, and so on and so forth. And this document really dovetailed quite extraordinarily with what the Council of State Governments had come up with. Because as you know from this morning, they came back at us and said, one of our most cherished beliefs of Vermont exceptionalism that we treat everybody differently here than happens in the entire rest of the United States is not true. Which I don't think was a surprise for a lot of us with certain kinds of tinting, but it was certainly a surprise for certain for monitors. That's fine. That's why we do data. So we can answer these questions and figure out what are our biases about ourselves, as well as biases about others. And that's what they were hoping for and that's what we, in a certain sense separate from what they were doing came up with when we put this report together. And I think that's really, I would just take questions at this point I'm tried to give you another 50,000 foot view of our movements over the last three years culminating with the report that you now have in front of you. And if there are any questions or comments I'm certainly open to answering what I can. Thank you. Thank you so much. I'm going to ask you, you could just remind us because there are also people from, we don't know where but have have access by YouTube to watch this. Can you remind us who is on our gap and what is our gap stand for. Okay, our gap is not actually the acronym. racial disparities advisory panel, the, it is proper name is the advisory panel on racial disparities in criminal and juvenile job. No. Yes, the advisory panel on racial disparities and the juvenile and the criminal and juvenile justice systems. It is under the ages of the Attorney General. It is an interesting body in that it involves community members as well as governmental actors, who all come together with radically different viewpoints and sit down at the table and work through disagreements, viewpoints so on and so forth. We were brought into being in 2017 by act 54, which also asked for that first report. We are to produce a report every two years. We're ahead of schedule I'm proud to say that we, you know, to talk about where things have gone, how much has gotten done. The data issue has for a variety of reasons risen to the four to the top. And so we have been concentrating very heavily on that for the past couple years. Who's on it. Oh my God, list, which I cannot I will have to pull that up. Yeah, I think what I wanted. And I think he just had a very diverse group of stakeholders. Oh my God, yes. Yes. That's important. That really did come together with a lot of agreement after a lot of discussion. So great. And we can look it up. I'm going to start talking and I'm going to leave somebody out, you know, and that's going to go badly. No, I appreciate that. And it is on our committee committee page. So we'll, we'll make sure that that those who would like to see it has access to it. You know what I can do it. I can do it. Which she are these are the community representatives which he are to data warehouse specialist and social justice consultant. Jessica Brown visiting assistant professor of criminal law at the law school. Jeff Jones former Vermont State police trooper Sheila Linton co founder and executive director of the root social justice center in Brattleboro, myself. And chief Don Steven Stevens of the Mel Hegan band of the puse of the abnaki nation. Those are the community representatives. The state government representatives. We have Tyler Allen who is representing Department of Children and Families. Susanna Davis who is the executive director of racial equity for the state. Jennifer Furpo law enforcement certification and training coordinator at the criminal justice council. Judge Greerson was on it he has retired, which annoys me enormously although I am now getting to meet judge zone. He will be taking his place. Evan meaning from the deputy state's attorney, he's a deputy state's attorney, the Department of State's attorneys and sheriffs. Captain Barb Kessler from the Vermont State Police, who represents Commissioner Shirley was who the Thompson from the Attorney General's office. I believe it's now Aaron Oh Aaron what is your last name this is so embarrassing a bremson. I've gotten it wrong. Oh, I'm embarrassed. Anyway, I will get her flowers. Rebecca Turner appellate defender office of the defender general and Monica Weber who is the administrative services director for do see. Thank you that that's very helpful because it shows that there's really quite a number of people and I have subcommittees, and so very diverse comprehensive group doing very important work so thank you thank you so much. Yeah, there was any questions comments. Again this is we'll we'll come back to this. Okay, so Bob and then Selena. Thank you, Dr Longo eton I don't know what you prefer but thank you. It's perfectly fine that's what my mother uses. Well I'm showing not your mother. A couple of quick questions eton. One is the Connecticut model is based on three or if this office of statistic gathering comes to fruition. The Connecticut model is with three individuals running this correct. Correct. Secondly, from one of my fellow representatives much more knowledgeable and I am at this obviously on this committee. There are several entities that gather these statistics already. What do we hope to gain from setting up an individual office added much additional expenses I might add. Good question. None of these systems talk to each other. None of them. They do not speak to each other. One of the things that we have grown to understand, or I should say I've grown to understand perhaps along with several other members of the panel. Since 2017 is that it's not a simple matter of this talks to this talks to this. It doesn't work that way. It should. It feels logical. It feels self subsistence feels very understandable. It doesn't work. So that as long as you may want the information to be cross correlated, but it doesn't it needs help. And that takes experts and data management. I'll finish with this question obviously so is it a matter of us simply coordinating these individual efforts that they do talk to one another rather than create another office for whatever reason and costing taxpayers more money in the same process. I would say not. I would say not, because I think it's more than the coordination. You have to have a certain stance on social justice to know what data are in fact important. And that's not always obvious to people. Okay, thank you there'll be several questions I'm sure as we go along but I appreciate you being absolutely Selena. Thank you so much. It's always a pleasure to have you with us and really appreciate the, I know the legislature just continues to ask more and more of this group and so just appreciate all the, all the labor that you and others have put into. I appreciate every report and beyond and I just want to make sure I understand the chronology of all the reports that you were talking about. So is the most recent report from art app is the one on the data that we just sort of looked at with you. If I can 2021 or have you authored any additional recommendations or analysis since then, I just want to make sure I'm not saying anything. We put a report together that we submitted on November 15 that outlines the structuring of this proposed office of racial justice statistics. Thank you for clarifying that for me a little bit. I get it. I get that. I keep looking at them and realizing we use the same font for all of them so they all look the same. Maybe we need to change that. Good. Thank you, Martin. I'm going to try to put my hand down and do all these things, not not working really quickly on those yet, we'll get better over the next week. I guess it's more a couple of comments I just a little more context, and perhaps also for Bob that going into my eighth year right now in the past eight years and I'm sure that I've seen and Barbara and Tom can probably all share this frustration that we've had that we've been trying to address various issues and criminal justice system and really kind of flying blind or just or just basing it on anecdotes, rather than good data and and there's been times where we really have sought data and it's been really hard to come by, even with research with the crime research group. I think also, you know what we saw that the CSG could do with their dive into data, and they only really looked at you know there's a lot of stuff missing from what they were trying to look at or would like to look at. We were able to actually show some things in our criminal justice system that, you know, we weren't really aware of, and I think it's trying to uncover those, those inequities in the system that that the data will help. And I think Bob what you can really see the scope of the data that that we're talking about is being very important in the bill that was introduced last year h3 17. So all the various data points that are important their high impact data points. And a lot of them we don't have the data yet, and the data is not being collected and part of this office is to actually work with these different agencies, the state's attorneys, the Department of Corrections, the courts, law enforcement, etc. So to gather that data and aggregate it make it useful for our decision making and for the administration's decision making so. So it's been years that we tried to do this and it just. So I think it's a little bit perspective that I just wanted to offer there. Thank you. And thank you, Martin. I appreciate that. And as to that I don't oppose the data gathering. That's not what I oppose I oppose duplication of efforts, having the same and costing taxpayers more money in the process data gathering is good. I agree with that but let's make sure we do it the right way. Absolutely, absolutely agree. And Bob those would be great questions that I hope you asked again when we when we dive into the into the bill and and look at it and and follow up on it as one of the council state government's recommendations to us that we heard this morning. Well great well thank you thank you Tom thank you so much. My pleasure thank you all for your time. You bet, and we will see you soon. Thank you. Absolutely. Bye bye. So committee we are going to take care we are going to transition to expungement. How about if we take about a five minute stretch break. I need to find my printed out hard copy from my printer and with the bill have a shell. The bill should be on online for all of us, as well as the justice oversights report from justice oversight which Michelle is going to go through. So, let's really, you know, three five minutes stretch come back and have Michelle do a walkthrough. Thank you. I'll start with the justice, justice oversight report. So good afternoon Michelle good to see you. Hi nice to see you guys. Welcome back. Thank you. You let me know when you're ready to go. Ready. Okay. So, y'all probably remember that last year when you worked a lot on ceiling and you did wind up passing as seven. But it was pretty heavily kind of scaled back from from where you had been doing a lot of substantive work. I'm obviously taking this over from Brent since Brent had been working on it for several years so you probably have a lot more of the background and the reasons for some of the poly policy decisions actually more than than I do. But what happened was last year in a seven you directed the Justice Oversight Committee to take a look at it. And so they did and so I'm going to share the screen. Can everybody see the memo. Yes. Yeah. Yeah, we can. And all right sorry I'm never quite sure with the share Michelle Michelle can upload just a touch. Let's see. Beautiful. Thank you. All right wow I learned another little tab on my zoom screen thank you there Tom. The committee did take it up. And you probably know for Justice Oversight, it's comprised of legislators from a variety of committee so you have folks from judiciary of folks from institutions from human services and health care folks from the money committee so it's a really varied group because there's such a broad jurisdiction that that that committee covers. And so I think it was you know if you think back on the work that you guys have done on the ceiling and expungement issue for the last several years. You know it's complex and you know if you even if you're the committee of jurisdiction that does it day in and day out for for the last few years. And so it was a little bit. I think I don't think I'm stepping out of bounds or say it was a little of an unwieldy topic for folks who hadn't really dealt with it before. And so they, the directive which I'll go through here if you look at the memo. And you'll see the legislation and s seven which was act 58 that designated the task for justice oversight you'll see that the committee was to propose legislation for this year. On certain recommendations the first one being a policy to make all or most criminal history records eligible for ceiling or expungement with the exception of what we refer to is like the big 12 that are entitled 33. And one was that the individuals or entities that should have access to those sealed or those sealed records if you go with ceiling instead of expungement. Whether or not Vermont should continue to use a two track system where we have both ceiling and expungement or whether or not Vermont should move to a one track system that picks either ceiling or expungement for eligible offenses. The last one is how to implement an automated process for automatic ceiling so that it would not be up to the person who has the record to be doing the petitioning the court to obtain the ceiling or the expungement. I do believe that they did take up the issue at several meetings and discuss that they heard from all the usual cast of characters who are interested in this topic and who have come before you at previous hearings. But they weren't able to come up with a solid proposal. I think because of just the complexities of it and they thought that a lot of the issues were more appropriate for the committees of jurisdiction. So I did address some of the issues the first one being that they decided that it would be preferable to go with the one track ceiling system over the system that you currently have. And I'll put in the caveat there that that's predicated on the idea that you would have a different definition of ceiling and then what you have currently because right now in the law for ceiling as you know so if for what we have for ceiling essentially the the record is destroyed and no one has access to that record if the record is expunged, but for a sealed record. There is access and most notably I think the one that people were concerned about was just general law enforcement access to all of those sealed records for what is termed as law enforcement purposes pretty it's pretty broad there and I think that was what people identified as their their biggest concern around what does ceiling mean and how if we're going to use a one track system how would we redefine that. So you see just the memo talks a little bit about how the oversight committee views the existing system as overly complex and unnecessarily complex and that moving to a one track system of ceiling would be easier for everyone, especially people who are looking to have those records sealed. So, the next issue is, is to look at the offenses that would be eligible under a ceiling proposal. And again, a lot of this I think will will look fairly familiar to you because it was primarily taken from the last kind of substantive version of when your committee was really digging down into the details of which offenses should be legal. The version that had come over from the Senate to you was more expansive but my understanding was that the administration had concerns that they expressed to you that they would not be supportive of the Senate version and so you were trying to work with stakeholders and the administration on trying to put that list down and so this more closely mirrors that. So you see with respect to eligible offenses. The first is to include all misdemeanors with the exception of the following here so you'll see the list there. The first one is listed crime so you know that that's that list and 5301 pretty, pretty long list of offenses. The second one is that crimes that would not be eligible would be under chapter 64 which I know you guys are familiar with that chapter because you just worked a lot with it last year and that's regarding sexual exploitation of children. Next would be any, any crimes related to violation of protection orders. Like voyeurism, cruelty to animals, violation of aggravated disorderly conduct, neglect of duty by a public officer, failure to comply with sex offender registry requirements, obscenity, hate motivated crimes and abuse of a religious symbol. So again, those, those crimes I think were taken from your last kind of substantive list in s seven. There's a bunch of questions here I see that yeah, I think my hand went up first, but I always defer to Tom. You're fine. Thank you. So, what what what was the basis for for these exclusions I mean is it because the administration didn't want these was their information or data about recidivism rates are these these just consider particularly egregious crimes was there what was before the justice oversight committee to make these recommendations I'm curious. They did not go into the reasons for this they just picked up the last work of your committee, and chose to move forward with that they did not hear from the administration on the, the particulars and there were similar questions, you know, in justice oversight, I think, particularly like well why is neglect of duty by a public officer there are certain ones. And I honestly I don't know. But this so I don't read in because I hadn't worked on it last year. I'm not sure why this list looks the way that it does but this was kind of where it left off and house judiciary last spring. So presumably we can ask witnesses on this on what they think of each of these whether they should be included or not and what the basis is okay thanks. Correct. Yeah. See everybody but go ahead Tom. Yeah. Oh, I'm sorry go no go ahead Maxine. I was just calling on you but I'm saying that if I don't see, but I don't see people who sounds are up just jump in. So, go ahead Tom. Okay great thank you. Number 10 Michelle violation related to obscenity. What is that it seems like it could be pretty broad. That's a great question Tom I have to say I don't really where I haven't worked much in the obscenity chapter. So let's see if we can. I don't know if I can switch my, let me see if I can switch my screen real quick and we can take a quick look. So this is an education for you also. It is. Okay. So, so disseminating. Can you see the screen. It's the same screen that it was but that's all right. Let me see. Oh I think I have to take the other one down. Oh well, well I'll just tell you, it's disseminating indecent material to a minor. In the presence of a minor disseminating indecent material to minor outside the presence of a minor. So generally just distribution of indecent material and I can send you that link. That's fine. Okay, I'm good with that we're most sounds like most of it's geared around minor so that's, that's a good thing. Thank you. Right, sure. All right now I'm going to have to remember how to get back. So you can still you can still see the memo right. Yeah the original screen is still okay sorry about that it's, this is my first zoom with sharing since we've been back so I've forgotten a little bit of my tricks. So yeah so I think generally, you know, most of the discussion has been on the on misdemeanors that relate to violence or sexual crimes things like that so you know I think probably most folks questions have related to these things that don't involve that, and I think you'll probably just need to hear from the witnesses and specifically from the administration, as to why they were looking to have these, these crimes in eligible for ceiling or expungement. So the next is so so generally the rule would be all misdemeanors except this list. Okay. And then the opposite is the truth is true for felonies so the, the Senate included all felonies, but had a list of exempted felonies that wouldn't qualify, but again because of up is my understanding opposition from the administration, the House looked at doing what you have here which is most felonies would not be eligible. However, these would. So the first being that that burglary and that burglary would be a qualifying offense excluding any burglary into an occupied dwelling unless the person was 25 years of age or younger at the time the offense was committed and the person did not carry a weapon. Then designated property felony property offenses which you can look you can see their footnoted here so you can see those are also in the draft and we're going to go over with you so there's certain felony property offenses that would be eligible. The third category are offenses relating to selling dispensing or transporting regulated drugs. And so but that does not include trafficking. So anything that would be that would be selling or dispensing, but short of trafficking would be eligible and again when I'm talking about eligible doesn't mean that it's automatic you would have to apply and then meet the conditions. And then the fourth one being any offense for which a person's been granted an unconditional pardon from the governor. So again just kind of to try to get your head around it, it's that all misdemeanors, except for a list, and then no felonies, except for a list. So it's kind of the opposite so I know there's a lot a lot of offenses moving around there and then especially once we get to the draft it'll really make your head spin but that's the general role. Any, any other questions general about that. Okay, and so I just wanted to note there that the Justice Oversight Committee while they weren't now recommending that most felonies be eligible for ceiling. They did believe that that's the direction that the General Assembly should be going and that the list should be expanded over time to include most nonviolent felonies, providing that the court finds that the ceiling is in the interest of justice and prosecutors continue to be notified of the petitions and have an opportunity to weigh in on the petition before the court makes a determination. The next issue is the definition of ceiling. They weren't, again, I think able to in the time a lot of to really dig into who should have access to what and for how long and under what circumstances. The committee did feel that a new definition of ceiling should be developed and that the general rule should be to be protecting that information and only allowing very limited access to those sealed records for a certain period of time. And so that's, and then what the draft that you have does do that. The committee supported designating some offenses as eligible for automatic ceiling, meaning that they wouldn't, the defendant wouldn't have to file for a petition, but it would just happen automatically on some kind of tickler system. However, considering the time and expense required for that undertaking. And it's really unclear now plus coupled with the fact that the court is having a hard time, just because of coven and money and resources and all those things being able to comply with what's set out already with regard to expungements and ceiling that to kind of just add more on to that right now until there's a little bit of catch up time. And there's a clear proposal coming from the stakeholders that would be tasked with doing the ceiling that right now there wasn't they were not recommending any movement towards an automatic ceiling or adding any new offenses for an automatic ceiling. But they are supportive of the idea. And that's it for the memo. So okay to move on to the draft for everybody. All right, now I got to remember how to take it down. Can you can somebody remind me, Amber, can you remind me how to move it. Oh, stop share and then I have to reshare again I think, let's see. So, and while Michelle is getting us set up I just want to reiterate what I stated yesterday is that today is is a walkthrough of the bill. The stakeholders, folks that we've heard from last year and also that watched the work of this is oversight. And a copy of the of the bill, as well as the YouTube link in case they wanted to watch today's walkthrough and then I hope to have testimony next week. And, and like, pretty much any draft that's introduced. It's a starting point, starting point of the conversation. And Michelle has a lot of work on this to come up to speed. And since it's very complicated as you know it's been saying for years. It's very complicated and then we keep adding on to it and adding on to it. So I really, I really really appreciate your work on this. Sure. Thank you. Okay, can everybody see the draft up. Okay. So I will say that because this issue is new to me this year and looking at it. I just wanted to just scrap the whole thing and start all over. Honestly, and rewrite it but I realized that folks said there's a lot of folks who have been working with this particular chapter and such and I, I thought it might be harder to be able to follow along and be able to come to look at the changes the policy changes if I got rid of it all and just repealed it and started out with something new. But I would say for you to think about as we work with this chapter. What you think about that idea because I think that maybe once we kind of get a handle on where the committee wants to go. I do think that it would be best to repeal, if not the chapter, at least some of these sections and for me to write it fresh for something that's going to move forward you don't have to do it now at this point and we can work within it but it's really because I think it, it's a chapter that has been amended so often over the last several years and in a real piecemeal way. I do feel as though it's kind of structured. I think that it needs to be and I think you I think if we rewrote it from from scratch, I could make it a lot more user friendly for everybody because, you know, I mean you guys know I've been doing criminal law with you guys for, you know, more than a couple decades and it was hard to understand what was going on in here for me and took a while and and we don't want that we want anybody obviously it's you know our goal when we're drafting these statutes is for anybody whether you're a lawyer or not to be able to open up the green books and to be able to have a general sense of what it's what it's saying and. And so I just put that out to you to say you know as we kind of slog through this think about whether or not you think it might be better to just get rid of get rid of it and start from scratch. So we're going to start out with section 7601 in the definition section. The big change here being if you look on line 19 on page to being the definition of qualifying crime and that's what we just kind of went through. And now it has listed as a misdemeanor offense that is not so that's kind of similar to what you have but it's a bigger misdemeanor list so you have there that we talked about it's going to be all misdemeanors except the ones we just went over in the memo. And then the second thing is it's going to be instead of all felonies it's just going to be a handful of felonies and so it's going to be those burglary into an occupied dwelling. For a small slice of that it's going to be designated property felony property offenses it's going to be selling or dispensing drugs. And it's going to be offenses for which there was an unconditional pardon subdivision five there on page six is your list of the designated felony property offenses. Page eight is you have the definition of subsequent offense means the conviction of a crime committed by the person who's the subject of the petition to seal a criminal history record if it arose out of a new incident or occurrence after the person was convicted of the crime to be sealed and so that's where sometimes when you have so making sure that we're not talking about the same incident or same offense and multiple charges that came out of that. So section two on page eight so here's the process starting in subsection one here's what the general process is for the petition so person may file petition requesting ceiling and again. And then right now if you recall what you have is this two track where people can seal under certain circumstances and expunge under certain circumstances and it depends on the type of crime and the length of time that's gone by. Let me see Bob's hand is up. Yeah. Yeah, a quick question on number six subsequent offense. Sure. On the old writing, there was a time period, but this simply states the conviction of crime committed by with no time period is less than five years more than five years. What's the difference. I think you have to look at it when we go through and we look at the, the criteria for each grouping of crimes. And then you'll see, there will be time periods within each of those. And so it doesn't so much apply any longer to when, how long there was a separation for that set for that subsequent offense. But there is still a time period for how long it's been since it's kind of built in in a different way substantively so when we get to that I'll kind of point that out to you if that makes sense. Thank you. Sure. So for so under a one these are the folks who can apply who can petition the court for sealing of the record. A one a being the person was convicted of a qualifying crime and that's that list we just went through. They can apply if the conviction was for an offense that is no longer prohibited by law, or designated as a criminal offense the one that we think about often is for possession of an ounce or less cannabis which is was criminal misdemeanor and is no longer a sub division a one C relates to the relates to DUI top of page nine subdivision a one D has to do with burglary. So division a two on page nine. This is the process so the state's attorney or the attorney general is the respondent in the matter so they are always notified and are are included in the process. So for the you'll see new language for those offenses eligible for an early petition with stipulation. So this process to do with who can, who can answer. So if a person petitions to seal a criminal issue record prior to the date of the offense that is eligible for sealing only the office that prosecuted the offense that is the subject of the ceiling petition can stipulate to that petition stipulate just again is just saying we agree with this where there's an agreement between the petitioner and the respondent to to do the ceiling. Subdivision four is that prosecuted the fence can wave that requirement if they so choose to do that. So subdivision three court is to grant the petition without a hearing if the petitioner and the respondents stipulate to the granting of the petition. Subdivision four is just an exemption for for CDL drivers. Subdivision five top of page 10 is except for criminal conviction records of offenses for which the underlying conduct is no longer prohibited a criminal conviction record of a person who's under the supervision of doc at the time the person files a petition shall not be eligible for conviction. So you'll see when we go down to the individual kind of criteria for all these different offenses. The basically the first criteria and all those is that the person has satisfied the judgment which means that they've served any sentence that was ordered as part of that conviction you have to have completed that so you can't be under doc supervision as part of the conviction and be eligible. So Subsection B is where we start in the different category back up and ask a question about that Michelle. Yep. Um, so sorry I'm having I'm reading it from my my own screen because it's a little hard to read from this year screen with my aging eyesight. I mean is this just anyone who's under supervision of doc period or is it just like if you're still under supervision for that particular crime, or like could it be like I, I'm under supervision for a crime that I recently committed, but I that means I'm not eligible to have any past convictions expunged under this. What we want to do is we want to look at each category and each category has certain criteria. And my recollection is it's for some of them you have to have basically if you have a subsequent offense, you have to have completed the term and the conditions of that subsequent offense and I think maybe for others, not necessarily. Does that answer your question. And as we go through, I guess as I'm reading you it just seems like anybody who's under doc supervision at all whether it's, but I'll let's keep going. It's a good question. Let's go through it and then we'll circle back because I'm not I may not, I may not know the answer to that without going through it myself. Okay. I mean I think I know based on testimony we heard last year kind of where coming from it was a concern raised by doc but I anyway right want to understand a little better the implications of this thank you right. I think generally it is if you but but we'll take a look but I think generally it is is if you if you are under supervision for a subsequent offense that you're supposed to have completed that as well. But let's see. Subsection B qualifying non predicate misdemeanors and possession of regulated drug misdemeanor so this is to remember our two categories are all misdemeanors except certain ones and then only a handful of felonies and then what the next few sub sections do is create sub categories within the misdemeanors and the felonies. So this one is non predicate so meaning they don't build or get hot gets more like you know where you have a first offense second offense for the for the certain type of crime where you have an increased penalty. So that those would be those so there's non predicate misdemeanors and then possession of regulated drugs. So under those circumstances, the court is to grant the petition. The first one conditions are met. The first one being at least three years have elapsed since the date on which the person successfully satisfied the judgment. Or if they had an indeterminate term of probation, at least three years previously so we don't have that indeterminate probation any longer but we used to and so I think that's intended to be just to kind of catch some of those older cases. One more question for Maxine, should I flag because we might be rewriting this a provision that's particularly confusing which is just the way it's written this number one, the at least three years that, or should I not worry about that at this point. Yeah, it's just, it's just the way that that reads that I just don't think that we should have the subsection a or B, it should just be all one paragraph and then it makes sense I had to read it three times to kind of understand what the whichever is later really was confined to, for instance, and, and just the a little awkward starting subsection be with the if the person committed a subsequent offense, not so awkward if it comes directly after the or with a comma there, for instance, but you know that's if we stay with this I would really suggest that that was particularly confusing. And I think it's repeated one other place with similar language. So I think that's good for you. Sure. I'm, I'm with you Martin. I, again, I was trying to use the last draft and work off of that, because people were familiar with that and that was something that y'all had put a lot of work into but I think a rewriting of this would look pretty pretty different. Because there are a couple places actually where it's redundant, and it doesn't need to be separated out into different sections, but I just kind of went with what was there, and the format for how it had been laid out but it doesn't need to be organized in that format any longer. So you'll see the top of page 11 subdivision be if the person committed a subsequent offense the date on which the person satisfied the judgment for the subsequent offense whichever is later. So under that circumstance. So it seems as though going back to Salina Salinas question is. So for those types of misdemeanors, they, it sounds as though they would not need to have to have completed it. So, all they did satisfy the judgment now you're right so it would have to be they would have to have completed any term of probation and not be under doc supervision for that. And then the third is any restitution that was ordered or surcharges has been paid in full. And then the third is that the court finds that ceiling the record serves the interest of justice and so those three conditions, one that the person satisfied the judgment and has served any term of incarceration or community supervision has been completed. And then the third is that the institution has been satisfied and that the court finds the ceiling is serves the interest of justice. Those are the three that you're going to see some version up and each one of these categories. So the next one's the top of page 12 subsection C. So these are qualifying predicate misdemeanors. So except as provided in subsection G, which is DIY. The rules here are that so in the previous one for non predicate misdemeanors and drug possession you remember it was three years for qualifying predicate misdemeanors. It is five years. And the conditions are the same. The person has satisfied the judgment. There's a subsequent offense the date on which the person satisfied the judgment for the subsequent offense whichever is later so. And then the last, the restitution provision and then the top of page 13 that the court finds that it's in the interest of justice. Next one is top of page 14. These are offenses that are no longer prohibited by law. So, for these that it has to be that the petitioners completed any sentence or supervision for the offense, and any restitution and surcharges were satisfied but there does not have to be that third piece where the court finds that it's in the interest of justice it's no longer an offense in Vermont and so that criteria is not part of this. There's a subdivision to and this is to address I, I'm guessing that this was added because of the, the change to the cannabis laws so you call that when you did legalization for an ounce or less. There was a little bit of a tricky part there in the sense that be prior to when you did Decrem of an ounce or less it used to be that it was two ounces and under that was a misdemeanor. And then you wound up decrimming an ounce or less and then legalizing an ounce or less and so somebody could have an older misdemeanor conviction for possession of cannabis. And you wouldn't necessarily know if it was half an ounce or an ounce and a half. And therefore, just by looking at the criminal history record you have to go into the affidavit and look at the affidavit with regard to the amount. And so, and that particular circumstance it would be the petitioner's responsibility to establish that the conviction was based on an ounce or less. And therefore that the, that the offense for which they were convicted is not currently an offense anymore. Barbara. Thanks. So, Michelle, the section that you just went through of ones that are no longer a crime. I'm confused about why we would still make people pay the fines and the fees if it's no longer a crime. And maybe that's not a question for you because you were doing what was asked of you, but I'll know that that's a good question. Yeah, I'll note that down. Okay, thank you. Martin. So this, I guess I'm trying to understand how subsection to a and b work together that also confuses me a little bit why the person under to a, what would it entail do they just have to show that I was charged I was, I was charged for phone guilty for having one ounce or less, the rebuttable presumption and subsection B says that are charged said one ounce or less. Now under a don't I just have to show that that's no longer, you know, just point to the law. I'm just trying I'm just confused by how to a and b work together. And maybe that's not for right now but but this was again this is something that came from your last version. So I wasn't there for the discussion but I, the way that I would read it and understand it is that so again if you're just looking at, you know, the conviction record you're going to see the person had, you know, let's say a 2009 conviction misdemeanor conviction for possession of cannabis. Right. And so, because, and therefore, if somebody's going to be petitioning to have it expunged, they would have to offer proof that they have that that that conviction was based on an amount that is no longer criminal. And so they would have to provide information, let's say from the law enforcement Safa David or whatever the charging documents or whatever is contained in the record that said, you know, this amount of cannabis was seized from the defendant and therefore this is evidence of the violation for misdemeanor cannabis. So that they would have to kind of provide that information to show that the amount that they were alleged to have possessed is an ounce or less. Between an ounce and two ounces which is still criminal. But when when subsection B is saying it's a rebuttable presumption that the amount in the affidavit of probable cause is what the person was convicted of. So it's saying on the one hand, it's a rebuttable presumption. So if it's rebuttable presumption the, the defendant or whoever's trying to be do the expungement isn't the one that's supposedly rebutting that that would be, the prosecutor who doesn't want to occur. Right. Right. And I don't again, I don't know why those two I would read it saying that the that the petitioner has to have be providing the information that was in the affidavit of probable cause like it's their, like when they petition that they have to provide that information to the court that says see here, I only had a half an ounce on me and that's not illegal anymore rather than just petitioning and saying I want to expunge this misdemeanor but not including in their petition the information, and that if the petitioner files the affidavit with their petition, then there's a rebuttable presumption that that's correct. Right. I got you. That's how I'm reading it but again I don't know how this language was originally crafted so. Well they can't just come in and say hey I was convicted and it was an ounce and look at the law says it's less than an ounce. They rather than make the whoever might be opposing that petition for expungement or ceiling I should say at this point to go and show that oh no it was two ounces. This person has to bring in something and we're putting the burn on them to bring forth the paperwork. Exactly so that so that the court has the information. I get go when they receive the petition that the that the petitioner has set has shown evidence of the fact that it was only half an ounce. Okay, thanks. I have a question. I mean it isn't one to two ounces of civil penalty now position of cannabis. How does that. I thought that's part of why we did that was actually to make the expungement pathway clearer around cannabis and I'm looking at the statute and it does define one to two over one ounce and up to two ounces as a civil penalty so how does it's not a criminal. Yes, pride if it's a it's if it's an earlier criminal charge but it's so I'm just trying to understand how that intersects because I thought expungement was a big reason we made that kind of technical change. I know it's embarrassing that I don't remember that because I wrote that but there's some been so much stuff over the years it's all starting to blend together but I would say if you look at subdivision to say an amount that is no longer prohibited by law. The fact that it's a civil offense it's still not, it's still not. It's still prohibited. Right. It's just not create it doesn't create a criminal record, though. But anyway, it might be worth just looking at how those things. Yeah, I'm not sure of the policy intent originally behind this so. I think that was part of part of it was to make those the just misdemeanor cannabis. Possession convictions period more readily expungible and so we, we made, we sort of decriminalized but retain civil penalties for that one to two ounce amount but anyway, we can keep talking. I mean, I would read this is and again, I don't know where it came from but you know the fact that it says in an amount that is no longer prohibited by law or for which criminal sanctions have been removed. So criminals if criminal sanctions have been removed for an ounce or less, but between an ounce and two ounces. It's still prohibited by law, even though it's a civil offense. It looks like this is saying that you can't that you know it's only the ounce or less that's eligible. That's how I would read that. So that might be something for us to think about as a committee, just as we move forward through this because I think we had. Yeah, anyway, I don't want to belabor the point but I'm just looking at it. And I don't know I don't know if, if anyone remembers but with the changes that you guys had in as seven that this is based on did did the administration submit a draft or a list or a memo that had like some of the things that I don't seem that familiar to some of you in here but even though it was a judiciary draft I'm just wondering about I can try to track that down if anybody recalls, like if changes were made based on an administration proposal. I definitely did issue a memorandum citing some of their concerns but I think most of that's the drafts that we looked at in s seven in response to the administration's concerns were crafted fairly closely with the Attorney General's office is my recollection. Okay. I can go back on and through the committee web page and see if I can track something down so I can kind of see what exactly the administration was proposing or, or, or opposed to, and we can try to understand some more of where this came from. But these weren't these weren't new decisions by justice oversight or whatever it was just picking up where House judiciary left off last year. Moving on to qualifying DUI fences. So for those, as we already mentioned doesn't apply to CDL. Here the time period is at least seven years have a lap since the date in which the person satisfied the judgment. I see subdivision to these things haven't changed much you'll see that it's still the same that at the time of filing the petition the person has only one conviction for DUI. And the person has not been convicted of a subsequent offense since the person was convicted of the of the DUI. And, and that's just a, that's just a tweak of the of the terminology. Third one is that any restitution has been paid in full and fourth that the court finds a ceiling of the criminal history record serves the interests of justice. I'll jump in with another point of clarification maybe it's a language, just that at the top of the page there has, unless the court finds that ceiling would not be in the interest of judgment of justice and then this that subsection for says the court finds that the ceiling of the criminal history it seems like that's a little redundant. And I, and I think that same thing happens in the next provision as well. I think you're going to rewrite the whole thing you know you'll. But I think you're making my case for me there. I will tell you, I got, I got the stamp of approval from Brent to to just throw it all out and rewrite it. I'm sort of of that as well. And, but in talking with her we thought maybe we just start with a, an updated version of where house to share a left off last year, and get people comfortable with it, and then, and then I can rewrite the whole thing. Once you figured out the policy that you want. So good. So next we move on to burglar into an occupied dwelling committed when the person was 25 years of age or under. And so those are eligible. After 10 years. And the person has not been convicted of a subsequent offense. Restitution has been paid and the court finds it's an interest of justice. So here the qualifying property offenses, as well as the selling dispensing or transporting regulated drugs. So these are the felony offenses. And you'll see the top of page 18 grants it if at least seven years have gone by since the person satisfies the judgment. The person committed a subsequent offense the data on which the person satisfied the judgment for the subsequent offense, whichever is later so the person could have been convicted of something completely unrelated at another time but as long as they have satisfied that judgment then you start ticking off seven years from that date. Any restitution is paid and the court finds that ceiling is in the interest of justice. So there's a provision to their online 14 prior to granting a petition for a violation of burglary, the court has to make a finding that the conduct underline the conviction didn't constitute a burglary into an occupied dwelling. And the petitioner has to bear the burden of establishing that fact. So next I'm going to move on to the effective ceiling. So section three. So I'm not going to go over just the basics because I think you guys are well versed in what ceiling generally means and that it's not something once a record is sealed it's not available to the public it's something that is is kept confidential, however with some limited statutory access by certain persons. So we're going to go down to subsection C. So exceptions to ceiling. So what you have here starting on page 20 so the first one is that an entity that possesses a sealed record may continue to use it for any litigation or claim arising out of the same incident or occurrence involving the same defendant so that is unchanged. So section two is changed and that's probably the biggest change and the one that folks were most concerned about so you see that this the struck language starting online for is that a criminal justice agency may use a record a sealed record without limitation for criminal justice purposes. And so that is gone. That's out now. The new subdivision to is that for sentencing and subsequent offenses the court and parties in a criminal case shall have access to sealed records as follows. So and this is going according to the little groupings that we have up above so for non predicate misdemeanors and offenses that are no longer prohibited by law. They would have access for three years. Okay, so I have a question about that one before you jump ahead and this is a little more substantive I think. Can can can non predicate. I'm not going to try to say it can those misdemeanors. Can they actually be used for sentencing and subsequent offenses if they're non predicate. I mean our misdemeanors is that the kind of thing that that prosecutor can get into evidence. Maybe I'm just wondering. Again, I am. So I don't know the reasons as to why they feel so that information would be important. I'm guessing is that they're just looking at it holistically in terms of persons prior criminal history record in terms of sentencing maybe for that, that new offense, I don't know. I think that would be a good question for the witness about why it's important for them to have information about non predicate misdemeanors for sentencing on subsequent offenses. I think generally what I tried to do on this provision, and it's not identical at all but I looked at what was submitted by legal aid in terms of its suggestion, I mean it's. Your suggestions were very different and that they wanted all offenses to be eligible essentially so they're cats so they don't have the same categories but I was trying to look at some of trying to use the categories that you have in here and and compare them a little bit to the timelines and the reasons that legal aid kind of put forth for for access to sealed records and tried to kind of combine the two and it's apples and oranges so it doesn't quite go together but that's how we kind of wound up with what you have here. Question for later, thank you. Yep. Next one is qualifying DUI offenses they would have access to that for seven years. We're going to occupy dwelling when the person was 25 years of age or under they would have access for 10 years. And for qualifying felony property offenses and selling and dispensing drugs for seven years. So again that's for sentencing and subsequent offenses. 21 subdivision three Department of Corrections should have access to sealed records for the purpose of conducting risk assessments and making supervision decisions as follows misdemeanors and offenses that are no longer prohibited by law for three years, qualifying DUI offenses for seven burglary into occupied dwelling for 25 or under for 10 years in property fences and selling or dispensing drugs for seven years. Subsection D exceptions for dismiss charges so prosecution should have access to cases dismissed without prejudice for three years in case they want to bring back those charges prosecution may object to the loss of access at three years by proving that the loss of access would pose quote a significant risk to public safety. And then that's it those are the only exceptions. So it's for essentially for DOC for sentencing and for prosecutors being able to bring back a charge for a case that was dismissed without prejudice. I have one question but I think my hand went up first I don't know but I'll go ahead. So, so I believe in the past we've had some opportunity for access to sealed records by court order specifically by researchers and I know that the very last section has something about research entities but that doesn't have to do with the sealed records. Is that something that we've lost in this or is that something that we could still also have as an exception or at least you know propose that as an exception. I mean I'm thinking of work that for instance crime research group does and looking back at past records as something that could be helpful in understanding disparities among different counties etc. I was pretty sure that I thought at a previous draft or a previous iteration of what we've done in this, that a research entity by court order would be able to access seal records and I remember. Do you remember that Selena I'll ask because you've really been involved in this as well. It sounds familiar but I, I don't know if that was something we actually enacted or that might have been in that more expensive version of a seven that we didn't move forward Martin. I mean it is something I'd like to at least have as a possibility for discussion. You know that limited purpose purpose by court order that research entity could get access to seal records. Right, I think. I don't think that there was any if it's if it's not addressing here or somewhere else and existing law that we didn't change in there I don't think that there was an intention or I don't recall here to eliminate that so I'll go back and see it may just be an oversight something that's not addressed in here and so I'll take a look it may exist elsewhere and be untouched so let me get back to you on that one. Thanks. Yeah, I thought it was existing law. But, but yeah, thank you. Thank you so much for that clarification on that. See, Barbara and then Selena actually had her hand up first I know. I sell just wanted to make sure I'm so two things I feel the need to say and this is not a walkthrough thing but I'm having a hard time with us doing expungement light and calling it ceiling and so I know this is just a starting point. I want to say that the other piece that's not in this bill and I don't even think you talked about it ever. But I know at least one state has it is. Penalties or fines for something for people who violate somebody's right to have their record expunge like sharing information inappropriately or hurting the person that we're trying to help. I'd love to see us consider putting something in here so that it's not like, oops, I'm sorry that sealed the record. I don't know how it fell on your desk and you've got to see that before acts. But, but I just think that it's going to be important to talk about that too. You'll be happy to see section four then. Oh, good. Yeah. So if I can. Second is just that I did add a new section in there for unauthorized disclosure. I wasn't sure what kind of penalty folks would really want or whatever so I just for as a placeholder for a penalty of more than $1,000 so there is something in there and we can work with that. Thank you. Sure. Jump in with my question. Yeah, please. Sorry, I couldn't get my to me. I mean, look at that. So yes, please. No worries. I know it's hard to see when we're all on the side like that. This might be more just a question for witnesses but I, I'm curious about, you know, when we look at how we've constructed ceiling in the past. These are more limited forms of access to records, the records for law enforcement that are proposed in this draft, but there. They also provide a lot more access than law enforcement have historically had to expunged records and I'm just wondering if justice oversight I know in the past like this day colder group that worked for a long, long time through the sentencing commission on the expungement proposals that we've been looking at over the years, really did a deep dive into sort of how much access other states allow to sealed and expunged records and I don't know. Was that part of the discussion. I mean I think Michelle you're sort of saying you just created a starting point here and kind of use the logic of legal aids memorandum as a little bit of a framework for that. But I didn't know if justice oversight or there been any. Look out sort of just how much access other states do and don't allow to these kind of categories of records. And if justice oversight did not get into that I do recall that the state's attorneys did offer their own take on, you know how that's addressed in other jurisdictions and other states in terms of whether other states, expunge or seal, and I don't recall if there was then kind of a drill down into how much access and by whom. But that's certainly you know something we can, you know, try to reach out to NCSL or or someone on to see if you're interested in what most states do, but I don't have that information currently. Yeah, I think that might be helpful because it is. It definitely is a pretty substantive change I think in some ways that's being proposed so thanks. Hi. Hi Michelle. So with the cannabis now being changed if they were charged under a DUI with this level of the cannabis with with that now also go away. So the fact that possession of an ounce or less of cannabis is legal doesn't make it legal for somebody to be high and drive. So whether you're intoxicated by alcohol or by cannabis or heroin or whatever it is and so they're they're not really related so the DUI would provision would be unaffected by legalization so DUI is simply that you are impaired by alcohol or drugs. It doesn't matter if it was a legal substance that impaired you or an illegal substance that impaired you. Okay, thank you. So I got a couple more. So this bill or whatever we're calling this right now, this here, whatever is on here for listed offenses. We're doing away with the expungement part of it completely and just going straight to ceiling. Am I understanding this correctly. Yes, but you have to look at this definition of ceiling is really kind of a combination of ceiling and expungement because what happens is the record will get sealed. There's a certain amount of time based on you know those subdivisions we're looking at so three years five years. Seven years 10 years right that that certain folks would have access to that sealed record and then after that time period is up. They don't have access anymore. And it essentially expunged except and it'll just be on that index that would then and then arguably researchers could have access to it. And it's still kind of in some ways, you know, a combination system of ceiling and expungement because while they're sealed, there will be limited access for a certain period of time based on what type of crime that is. And then those folks won't have access to it at all any longer so if. So remember we're talking about, you know, court can have access for sentencing, but they only have access for a certain number of years to that sealed record. And then they won't have access any longer. So let's just jump up to this unauthorized disclosure. Like, um, Somehow another, my wife and I were talking in the other night, and it was about that Michael. I think it was Mike Jakes from Randolph that killed his niece or murdered his niece. And he had a record expunged or crime expunged from years ago which I didn't, obviously I didn't even know what the word meant then. But then I, I wonder if that record wasn't expunged. If the guy ever would have been able to get to the point of what he did, which I guess I can't ask that or say that but in all this expungement stuff like that goes through my head. But going back to the unauthorized, like the, the, the only reason why I know about that is it's on, it's on the internet. I mean that's where I caught it so it's not really unauthorized because that's where I found it right. Right. I actually wrote the report on the Jakes investigation for the legislature and, and I think you're talking about Jakes had a had a deferred sentence for one of his offenses was my recollection he had a juvenile record, which we had no written in a deferred sentence and then a deferred if you can, if you successfully complete the terms of probation for deferred than the record is expunged. But, but you, you know, as a member of the public reading a legislative report or reading about it in the paper things like that, you would not be subject to this penalty because you're not disclosing sealed information for most of your record without authorization. So this would be specifically for people who are holders of the record, who have access to that sealed information who then disclose that outside the permitted reasons. No, you, you talking about it you hearing about it from someone in the community or you reading about it on the internet or whatever it is that's not what this is geared toward. Okay. Thank you and, and you're right, I did read your name and I do hope that is, it is permissible for you to rewrite this because it needs work, but thank you. Lisa. Yeah, thank you and just a quick question Michelle, I was reading through and forgive me if I missed it. I'm going to have to wait briefly. But, does this do anything to make the current ceiling process more comprehensive. It came to my attention this summer. Even if a record is sealed, if there is duplicates of that record outside of the judiciary that are still within state government, they're not considered sealed. And that to me is a massive flaw. And I'm not, I didn't know that of this issue. In a session, like I said, I kind of came up to it this summer. But I couldn't find anything in this draft that really addressed that and we're talking about unauthorized access. There are copies of records that are reported to other state agencies and other other departments within state government outside of the judiciary that are not being compassed when a record is sealed and they certainly wouldn't be encompassed. And I'm not sure that time period has lapsed and that record would be considered expunged. So I'm really, really nervous that we are not being holistic in our approach, and that there are there. Sorry. Kind of cracks that some things have fallen through here apologies squeaky toy if my dog's not respected in that well. So, so I hear what you're saying and I would say we let's look at the existing statute and whether or not it needs further clarification with regard to the communication between entities that possess the records. So my understanding is that when a record becomes sealed it's sealed across the board and it's not like that you it's sealed just with the with the judiciary. And, but that if somebody wants to go to their local states attorney's office they can somehow get access to that. That's not the intent here. If there needs to be some clarification on the process of how that works then then we can certainly do that in the legislation. I'll need to take a look and see kind of, you know what we've got in statute and what's happening on the ground and if they're the same and whether or not we need to add a little more detail in there but the intention is certainly that it is sealed across the board that is not just sealed in one location. Yeah, it's it came to my attention that I wasn't sure. People were finding that sealed records were popping up through other state departments. Right. And that just may be an internal I can say from years ago when we when this committee was working on sealing of juvenile records, it, you know, and this was probably maybe 15 years ago it. Well, that that issue came up as a real concern and that the records would be sealed one place, but because all these different agencies were not communicating to one another. And there wasn't any follow through or sealing policies at local agencies that it wasn't being done consistently or a monk throughout state governments and so I don't know, you know, what's happened since that time. But I think that that would be something to hear from witnesses about so in talking to the court about when they issue either a ceiling or expungement order I know that that is sent to VCIC. But the question I would have is then, well, where else, who else does it go to and how do they identify all the entities that may possess records in order to be able to notify all those other entities that they too must seal their record and I'm just not familiar with that process. Yeah, and I'd love to kind of work with that because that to me kind of stands right in the way of the work that we're trying to do. And I don't have enough familiarity with that part of the processes notification and if it is an issue of kind of like siloed communication or if it is an issue of statute so and I would appreciate my sense has always been that it's more of a logistical issue but but it doesn't mean that it can't that the logistical issue can't be helped with some clarifying directive language. Yeah, well thank you. Yes, Michelle this is probably questions for the witnesses that are to come before us shall we say, but in reference to the ceiling or expungement records, I don't know if we can ever do that in its entirety because when someone's arrested, there's four affidavits that printed one goes to the arresting agency one goes to the court one goes to the public defender one goes to the defense and one goes to the prosecutor, but depressed till access to all this stuff here and even after the person may be found guilty or not guilty the press and the public anybody goes in on the Poyer request to access this record so the only entities we are precluding from releasing this information is the courts, defense, the state and the arresting agency correct. Yep, I mean it's very different today up. You can, you can Google someone, you would just, you see what comes up there's not only with just press reports but also if anybody starts you guys about like record compilers you know you there are private companies out there that will aggregate criminal justice data and create their own kind of databases and that exists out there and it could be accurate might not be accurate they might have things on there that were offenses that were sealed or expunged by the state so you wouldn't be able to obtain that information from the state but maybe you could from a private organization so you know this this you're doing basically just what you can do at the state level with regard to the entities that that have those those records but that doesn't mean that that somebody still can't find out about it. Thanks, Michelle. Good to see you again. Um, I imagine we'll come back to the language of this bill a few times so I'm going to set some of my questions aside I feel like my head spinning a little bit looking at other language but I did have a question related to on page 20. Where so it's under I guess what maybe some section sees from page 19 exceptions. There's this section number two on page 19. For sentencing and subsequent offenses the court and parties in a criminal case shall have access to field records as follows and then it lists a variety of things non predicate misdemeanors and offenses that are no longer prohibited by law for three years. I find you I attended for seven years etc etc. Is that saying that essentially for three years after a record has been sealed for a non predicate misdemeanor. The court could essentially have access to that field record for an additional three years for a subsequent offense. So it will be sealed in terms of for all the other reasons and that the public won't have access to it. If an employer does a record check they won't see it if if you're applying for a job you are legally permitted to say I, you know I do not have a record or I was not convicted of this crime. But for this particular reason for sentencing and subsequent offenses, the court and the parties have access to that sealed record for those time periods depending on what type of crime it was. I don't chair grad I guess just for maybe just for the record. I guess I just want to sort of flag that piece. I think given the testimony we received earlier this morning about the Justice Reinvestment Act and the work of the Kansas State Government and looking at disparities and sentencing. I guess I just have some concerns about the length of time that a field record could be available for the court for those purposes. Thank you and I'll ask you to ask our witnesses when they testify as well about that. Thank you. Any more questions on this before I move on to municipal violations. So we're on page 23 now section five, and this is really kind of a placeholder that I based it on what you did in s seven with regard to certain motor vehicle violations where you did make a certain motor vehicle violations that go to Judicial Bureau that is expungible and so I just kind of mirrored that language and the concept is that that would also apply for municipal violations. So municipal so depending on a municipality's charter they can have their own ordinances and create either civil violations or criminal violations for certain types of offenses. If it's a misdemeanor, it would already be eligible under your existing system for what you have. So it would be a qualifying offense. But if it's a civil offense where you just have a kind of a civil monetary penalty where you're essentially given a ticket you can decide to admit it on the ticket and send in the waiver amount on the ticket. So I'll move on to those so two years following satisfaction of judgment. Judicial Bureau shall make an entry of expunged and notify the municipality of the action. And so these are automatic expungements after two years. And again we're talking about expungement and I don't know how the traffic violation one came about and the decisions around there so this is a little different that it's not a ceiling it's an expungement but you can probably make a policy differentiation as to why you don't need municipal violations or traffic violations sealed but rather you can get rid of them entirely. You'll see subsection be the effective expungement. The entry of the expunge cases only accessed by the clerk of the court for judicial bureau. I did note on here municipal violations related to zoning shall not be eligible for expungement so I don't know municipal law I was going to say well I would probably say actually at all and so there are probably just like you did with the offenses above for misdemeanors and felonies. There are probably exceptions to the municipal violations in addition to zoning whereby municipal attorneys might say well we really do need we need to say that those aren't expungible because they're predicate offenses and if somebody has, you know, half a dozen of the same violations year after year after year we want to know that because that's important for us in terms of enforcement. But just, this is the general framework for what you have for the motor vehicle expungements and so I just kind of just set it up for the municipal and then once you hear from witnesses we can further refine the pieces here and what offenses might might not be appropriate for expungement. So I will give credit to Selena who tracked down this language about court ordering access but it raises a question for me. It's in 13 VSA 7606, which has to do with the effect of expungement. I noticed that 7606 is not part of this bill. Are there going to have to be some changes made to that section as well to comport with what we're doing here. I just, I mean it talks about some ceiling at presumably but then again we have past records that have been expunged right so we kind of need that as well. Right and you still do have, you still have deferreds that are expunged, you're not changing that in here so and I, and so I think they're, you know I didn't repeal the effect of expungement provision because there still will be as you said records that have been expunged or circumstances where and there may be continuing expungements either. So, yes, I think once you get a consistent policy will go through the entire chapter and make sure you true it up everywhere. But again, you know I think a lot of this is as the chair said is is a starting point for for y'all based on where you left off last spring, combined with the recommendations from justice oversight and and then you go from here and then we'll true everything up and I'll rewrite everything. So, so yeah certainly look I mean, and then also rate raises the issue that the subject of sealed records should have access to the records as well which I don't think we have clarified here. It does have the access to records when they're expunged. If they exist, or the index at least. But yeah, so yeah 7606 definitely has some of the language I was talking about earlier that I would want to consider for the sealed records as well so. And thank you Selena for being such a good librarian and finding that. I will say that, if you look at page 22 on the special index and this may be what you were mentioning Martin but maybe it won't more there is that is that inspection of the ceiling order may be permitted only upon petition by the person who is the subject of the case. And that's actually the language that I was just talking about now that I see it a little closer that's the chief superior judge may permit special access to index to the index in the research right that's exactly from 7606. So that is in there thank you very much, I probably should have noticed that. There's a lot in there, there's no worries. I have a question but I want to make sure you're well and truly done with your walkthrough Michelle before I am well and truly done. Okay. Um, so I've heard a lot of interest and I share this interest in sort of really looking. You know, as we did for possession after legalizing cannabis. We looked at things around possession to try to make those records more some of those records more readily expungible. Now we're moving into a phase this year where corporations are going to be able to sell and profit off the sales of just large amounts of cannabis in our state. So I think there's some interest in thinking about for folks who've historically been charged with with comparable amounts of sales, like how do we, you know, there's an equity question right potentially about making sure those records are expungible. So, under the provisions in this draft that would look like, because we're not talking about trafficking amounts that would look like someone needing to wait seven years to be eligible for expunging those records right and if we wanted to, if we wanted to change that we need to do a carve out that was sort of more unique to the cannabis sales. Yes. Yeah. You could do that you could separate it out and say, we're going to treat cannabis differently, or we're going to treat the lower levels of dispensing and sale differently than the higher levels on all the drugs or just on cannabis we could, you know, we can further refine that of course. We're just the categories that have been put forth earlier. Yeah, I think that's something there's, there's going to be a minute or no full her testimony on that or not but I've definitely heard interest in questions and concerns about that so I think that's something for us to thinking about and looking at to as we move through this. All right, and my understanding from is that the cannabis control board has put forth their proposal with regard to social equity applicants and I think that one of the ways you can be considered a social equity applicant for a license is to have a conviction. So, I have to think about that because you want them well I guess they would have access to their own record because I was going to say they're going to want access to the record to be able to show for license, which is the exact opposite of usually what you would want. Right. Right. It's interesting. Yeah. Well, thank you. Thank you everybody I've been, I've been taking notes of everybody's questions and certainly a lot of testimony amber has sent this out to many, many people who will also be invited to testify so we'll go through it and like I said, it's a starting point for discussion and appreciate your thinking about it and continuing to think about it but this is a very important issue to me and I know it's very important to the Senate and we did want to keep working on it and move further than what we passed in S7. I hope we can, I hope we can do that. Thank you Michelle I know this was very, very heavy lift and it'll be great to have it rewritten. You want me to start working on a rewrite now I mean I'm happy to do that. I just kind of didn't want to throw out all the work that had been done last spring and I didn't want to be too forward with that but I can start just rewriting it as a as a clean, you know, just repealing all of that stuff and starting out everything clean language underlines new. It's up to you. I think that makes sense for a drafting standpoint. And if it's easier for you, I'm, you know, I just want to make sure because then you can't really see the new language exactly next to the old language which some people, you know, might not like but I think it'll be easier to read for sure. Yeah, let's hear from coaches. Based on the questions and the way they've been asked, and just this read this afternoon, you know it. Why waste the time. I think we just need to. There seems to be agreement, at least that I've noticed that, you know, having that clean copy to start with, so we can grow it from there make sense. I was going to say, I agree but I think not to make more work for you but I think sometimes what has been helpful when we're really just looking at the language really new is to have some kind of table. The real change is. We've done that before. That's a little I will say that's a little harder in terms of the table because the This is to apples to orange because there's so many variables in each thing. Do you mean it's not just you can't just be like have to call and be like it's here now it's here there. I remember one time when I was reporting this, the, an expungement bill for the first time brain gave me a flow chart, because there's a lot of we've looked at expungement. But just like you noted with deferrals there's like in juvenile cases, there's a lot of points where there's expungement eligibility like there's many more pathways than we've even fully discussed I think in this committee at times. And anyway, I just remember she gave me this flow chart of all the possible expungement one time and I was like whoa, this is a lot so I feel you maybe a table is not the right. Maybe we just those of us who want to get into it just need to really have the current lawn hand as we're in the discussions. Yeah, let me let me take a stab I'll look at you know just kind of starting to rewrite some of the main sections, plain language get the concepts and reorganize it. And even if you decide not to go with that as the official version, I think it might help you get your head around the policy better. Yeah, I agree I think that'd be really helpful I'm also thinking about. So this, this version is out there and witnesses. I want to I also want to make it. You know, best for our witnesses so, and I don't know what your time is sort of thinking out about you but in terms of the rewrite and Do you know when you're going to take it back up next. Next week, my hope, we haven't done our scheduling yet. So my hope was to do it Wednesday morning for the policy. Let me see how far I can get and get something done, you know, maybe by end of day Monday, you know I can, I can try that and and I'll let you know if that's unrealistic. Okay, great. But the policy decision will be the same that'll, and hopefully just be that much clearer for right when this isn't committee to to discuss. Yeah. Yeah. Okay. Great, thank you. Anybody else. Great. Well, thank you very much. So I don't know. Actually, I guess we can go online just going to talk scheduling meeting so so we can adjourn and go. Thank you.