 I think you should be live now Good morning. This is Tuesday. No, it's Wednesday already got my flies when you're having fun It's Wednesday, February 10th, 20 21 and This morning we are taking up a bill on probation Uh Bryn here is the legislative counsel who has done a rewrite of the bill and it can be found on the committee webpage There's s45 And as part of the justice reinvestment new initiative So that Handed over to Bryn. Um, it's draft 1.1 Uh, 29 21 1108 a That's the one we're talking about Good. All right. Um So there's a bunch of yellow stuff in section one Yep, so good morning committee for the record Bryn here from legislative council. Um, so I just wanted to preface walking through the changes in this um in this amendment by saying that um I think that this draft really reflects And like the first crack at pulling together some of the threads that um this committee was talking about in its work on this bill last week Um, I didn't manage to get this draft out to the witnesses until yesterday afternoon. So um I didn't have the opportunity to incorporate any feedback of theirs. Um Into this draft. So I anticipate that the witnesses will have quite a bit of feedback. Um I myself have some questions about how this would work. So I just really Want the committee to take this for the first draft that it is Okay So or today in Vermont I didn't hear you senator nick. Will you say that again? I should have been muted. I was trying Oh, okay I'm sorry. Okay. It's okay I was just trying to get a copy. I was just trying to look on my phone to get Oh, yeah, it would it be helpful if I put it put it up on the screen Probably, uh, would that be helpful? Um If somebody has a question, I may not see you. So just shout out and I um as well as those in the um in the audience who are invited to Discuss drafts as we mark up those Okay, so let me share my screen It's not sharing There you go And everybody see that Yep And if I scroll can you see it scrolling? Yes All right great So, um as we always do I put the changes in yellow here So I'll just walk through those yellow portions And this for the first change that you see in section one this um new language and subdivision b One and two. This was um a recommendation or this was a suggest some suggested language That was given to me by judge Greerson um, and so the change here Um provides that the sentencing court This language directs the sentencing court to automatically discharge at the midpoint unless The commissioner seeks a continuation of probation And the court finds by one of these standards of evidence It's either clear and convincing evidence or a proponent of the evidence. That's for the committee to decide That either one of these factors is true in a or b Termination and discharge will present a risk of danger To the victim of the offense or to the committee Or that the defendant is not in compliance with the conditions of their probation friend Yes Just a question b one begins with the commissioner recommending and then one of his options is Not to recommend but to seek a continuation It seems like there's a Um Do we really need? um I don't know how to put it but he wouldn't recommend if If he saw a continuation Right. So this is I think this is one of the little language tweaks that need to be made depending on how the committee comes out on on this issue In 252 the section 2 That's where the directive to the commissioner lies for filing the filing the motion to either Discharge the person from probation or to reduce the person's term of probation. Yep so, um I I I look forward to hearing from the witnesses and figuring out how exactly to these directives work whether the commissioner is required to file And then the court based on the commissioner's recommendation is required to discharge Or if the court is going to discharge Unless the commissioner files A motion to continue the probation. So I think I think there's a little confusion in this draft about The commissioner's directives and the court's directives. Yep And I'm hoping that that some witness testimony will will give me some more direction on this Okay, thank you but So I wanted to highlight a different section here that we'll have to decide whether it's clear and convincing or proponents of the evidence but Um in b the defendant is not in compliance with the conditions of probation and then over on page six On line seven we have c which is um Has completed any determinant period of rehabilitative or risk reduction programming requires condition of probation And completed any just indeterminate period of programming to the satisfaction of the nation officer um I think That that should be added to our reference to that should be added to b because if if the only reason the person's You know, it sounds like is not in compliance Would they not be in compliance if they haven't completed programming? So maybe they're you know, we're sentenced to a year of probation and their programming takes nine months So I don't want it to look like they're not, you know, so if there was either a referral or refer back there or somehow Loop that Back in here Okay Because it looks terrible if you're not in compliance for conditions of probation, but it may be you're not in compliance because you haven't completed Right Right. Yeah, you've just identified another kind of question. I had About this version of the draft. So I do hope that witnesses will weigh in on that piece as well Okay Well, we keep walking through but okay um so b2 is the next um piece of Recommended language from judge berson and this would provide that if the if the court um, if the commissioner filed a motion to continue probation The court has these options the court can continue probation for the full term or any portion of that term And the court can also modify the conditions for the remainder of the term So now i'm gonna okay, i'm gonna complicate this a little further to back tonight They could modify the conditions of probation in terms of completing the treatment if Let's say one of the conditions of probation was you shall attain your g ed And it's just been determined that that's impossible Given their Educational background or whatever Um that they would never be able to do it within a reasonable amount of time Would that be an ability to change that condition or allow them to be discharged? Right the way I think the way it's set up now it sort of gives the court The discretion to change conditions as it sees fit. It's not really based on anything as it's drafted now Could it add conditions though? It looks to me like it modifying conditions. Um, I think that language is pretty pretty broad. So it looks to me like it thinks senator bedding has a problem in her question. Yeah, that was my concern was that this is the court may modify on its own Decision without anybody petitioning for a modification. I find that a little bit troubling Okay So I'll make a note about that. Yeah, I agree with senator bedding I'd hate to see them adding things in without any Yeah, keeping in mind that probation came about as a result of a plea agreement or a sentencing And I get a little leery without somebody petitioning the court that the court could actually Take it upon itself to just change Whatever the original sentence was So we keep going. Yep So I'm going to skip down now to page six where the we're in section two now and remember this is the Sub subsection D is the directive to the commissioner to do conduct this midpoint review So we've got some changes here So these are the circumstances under which the commissioner shall file a motion requesting a dismissal of the probation term If the offender hasn't violated the conditions, that's a V is the new one. This is this is um the language that carves out certain crimes So The commissioner shall file a motion for discharge if the person is not serving a sentence for either committing a listed crime That's 13 vsa 5301 Or there was also some talk about Other more specific crimes rather than the whole list of listed crimes so I Put in 13 vsa chapter 19 sub chapters 6 and 7. Those are the domestic assault crimes and the stalking crimes Or 13 vsa chapter 72 sub chapter 1 and those are the sexual assault crimes I will note that this doesn't include l and l with a child. That's um, that's a separate statute. So Depending on where the committee wants to go with with excluding certain crimes. Um, we may want to get more complete here um, I have a to me What crimes we add here? Determines for me what I choose in the And whether it's the clear and convincing or ponderance So for example for me if you included l and l with a child which usually by the Then I might consider it being clear and convincing because they wouldn't be eligible Correct Correct if you included that here, then they would not be eligible. Yeah, but if I don't then I might want to go with the other ponder It depends on who's included in this group of people who are eligible for this midpoint review Or midpoint dismissal me and I'm happy to hear witnesses comment on that After we finished the walkthrough this I think they're all of this is connected to the things in on page six are clearly connected to the Decisions we may campaign So the language and c is also different. So these are this is What we've put in to try and address the issue of indeterminate programming so This puts in a requirement that um, the probationer has completed in a determinant period Of rehabilitative or risk reduction programming that's required as a condition of their probation And that they've completed any indeterminate period of programming to the satisfaction of the probation officer I know you heard from some witnesses that they didn't like this language um I put it in with with the following sentence As a way to kind of address that concern about having only the probation officer making that decision Which is that the probation officer shall maintain sufficient records So that the determination of the completion of an indeterminate period of programming may be reviewed by the commissioner and by the court If you decide to go with that, I think we need to put in some specific language in section one directing the court to actually review Those records of the probation officer. I just didn't know if this is the direction the committee wanted to take so Just a note there that we should put in some more language if you do want to go this route Um As much as possible, I don't want to have differences in either probation districts and how they do things or Probation officers and how they do things entering into this as much as possible For it to be um pretty clear I know Tell you a brief story Years ago And this is over Almost 40 years ago It was a kid in the program and um His probation officer was on vacation And the kid did something. I don't remember what I wasn't there and They called over probation in parole and the kid um Put a bureau up against his door to not let the probation officer Into the room So the probation officer called the police broke down the door dragged him off the jail um Not a violation This this is a long time ago, but long story short Marty's probably been one of the most successful kids that ever completed the program at 204 notwithstanding What one probation officer did in a really unusual circumstances And uh, it's hard just It just Worries me when we give that much latitude to individual probation officers to determine these things I'd like to have it pretty clear. Come on. I'm gonna keep going. We're just about finished with this with this draft so um subdivision two is the language that directs the commissioner to File a motion to request a reduction in the term of probation And again, I think here we might need to get more specific whether you want to require the commissioner to file a continuance of probation um, or if you want to allow them the um the discretion to request a reduction in term if the probationer doesn't meet the criteria for eligibility Um listed here in subdivision one So can I just ask a question about that? So for those persons would would a person who's on lifetime supervision be included in that in other words that they could make a request to Get that person out. I know at one point we were talking about Not having the people on lifetime supervision included in this So these so these are this is really the people that are serving a specified term Okay, um well Lifetime she'll review. Yep Yeah, the language here provides that commissioner has to review everybody's serving specified term. So I think um I would let the witnesses weigh in on that um, whether that would be considered a specified term or if it would apply to those people Okay So I'm going to move on to subsection three here So this is that language that provides that if the commissioner doesn't file a motion uh to discharge in accordance with subdivision one or a motion to Reduce the term and as provided in subdivision two Or if the court denies the commissioner's motion then It requires the commissioner to conduct a review upon each like at each point that the probationer completes one of their conditions of probation And I think that that was a suggestion from the department So that's new language there And then it provides that if the probationer meets those criteria that we talked about in d1 um, the commissioner has to file a motion requesting dismissal And if the probationer is ineligible pursuant to those criteria then the commissioner can file a motion requesting reduction in the term And then lastly the new language in subdivision four Directs the commissioner to make a good faith effort to notify any victims of record About any motion that's filed to reduce the probationer's term pursuant to the subsection So I may I imagine you may hear some comments on that Victimification piece as well. Yeah, well, why don't we try to are there any questions from the committee? Might be a good idea if we could hear from some of the Folks in the room for this I don't know if that's what you call this in the room Judge greers Yes, good morning senator. Good morning committee. And thank you for the opportunity to uh Speak on s45 for the record brian greerson chief superior judge um, and I apologize for not uh being able to talk with brinn Last night about the draft the the first section She's right that I did make suggestions on that and the suggestions I made Well, let's put it this way they're not The way the draft reads is not what I had proposed. So there's no question. There are issues in there One of them certainly raised by senator beruf. It needs to be corrected What my uh suggestion was and and I don't know if Any of the other stakeholders agreed with it was at the midpoint It basically the default was that the person would be discharged From probation unless the department Moved to continue the probation So the way it's written now it definitely needs to be Things now be glad to work with brinn on that but if you look at the The language where it talks about you could leave it as upon the recommendation of the commissioner pursuant to 252 And I believe that's the way the the department would like to proceed The court shall terminate the period of probation discharge the person Unless it shouldn't be the commissioner at that point It would have to be the state that is opposing the discharge and they would then carry The burden whatever burden the committee decides is appropriate. So that by just changing The line that says unless the commissioner seeks a continuation it would be Unless the state or state's attorney seeks I think that would clarify it and I think that would be consistent with what the department would like when you get into Um The conditions a and b I think that's consistent with an earlier draft not in compliance with the conditions. I would agree Um Senator sears with your comment about linking it to the latter part of the the bill the conditions um of probation could include the Rehabilitative portion of the sentence. So I think that language could be clarified The the idea In in two in granting the motion It would essentially be At that point if the if the commissioner is seeking a discharge It wouldn't be their motion That would be granted. It would be the state's motion Uh to continue probation. So again, that would have to be clarified Then this Authorizes the court or allows the court To modify the Term of probation at that point obviously reduce it and modify the conditions What I had in mind and I would agree that that language is not clear. It's not to add conditions It would be to reduce conditions that Perhaps they've complied with with Conditions and remove those so that it only leaves If probation is not discharged the idea would be that the person would continue perhaps for a reduced term If it made sense in on reduced conditions Because they've complied with them and they're no longer necessary That that was the idea behind that section And I can see somebody that has the interlocked system that driving and there may be no longer needs that Exactly Take that off the probation but Continue there whatever Right. Yeah, the purpose was not to add conditions, but rather to It as we're going forward, you know reduce the Eliminate the what then hopefully unnecessary conditions that were appropriate at the time of sentencing but because of compliance They're no longer necessary Hopefully that Clarifies where I'm sorry senator benning judge. I just want to make sure The way it's worded now says that the court may modify the conditions I understand that if there is a reduction of the conditions But leaving it To modify suggests the possibility of additional conditions No, I I agree senator I know what your intent is. I just want to make sure that whatever the drafting language ends up being That we are all on the same page that Additional conditions can't be added. Otherwise, you're you're interrupting what was a plea agreement And that means that the defendant would be entitled to withdraw their plea No, I agree 100 and that that was not the intent as I said, I'll be glad to rework that Yeah, I think with with brand like it may reduce or eliminate conditions Or remove conditions that are no longer necessary or whatever the language is to make it clear You can't add right a new condition that you Go to texas and work on an oil rig right so that That was my attempt, but But again, I'll be glad to work with brand or any other folks to discuss that language, but As written was not what what I had in mind other comments Any other comments on the on the Redraft judge, I don't think so senator. I'll listen to the witnesses and if Something occurs to me. I'll let you know, but I was focusing on that That section of the bill Might be a good time to hear from either dale or monica Thank you if they're ready from the department of corrections Can you hear me? Yes For some reason My video says it cannot start Well, we can hear you loud and clear dale so We can give it a try Okay, I don't know I don't see anyone. Hi for the record. My name is dale crook. I am the director of field services for the vermont department of corrections They're What the the judge just said we're we're kind of in agreement with that first section The only additional thing that we would we'd recommend is at the beginning of b1 upon the recommendation It really should be when the emotion to discharge is filed by the commissioner Because it's not it's it's not so much a recommendation as it's following the statute laid out in previous parts of the section um We do agree with the the judge that the commissioner should not be the one seeking a continuance Kind of not our role. I think the the judge laid that out Well Another concern that we have in in in a practicality. I think judge gerson kind of hit on it a little bit is Reducing a portion of of the time This will be also carried on in and further sections It really sits up Some concerns It's not very practical and also I think what senator sears mentioned earlier about having different standards from the po's across each office It would sit that up I will talk about the reasoning behind that later farther in this section As far as the criteria a or b Below that it's it's really a policy choice. The rest of that section is fine Then we move toward the end of the bell On page six As far as b is concerned. I think that's really a policy decision You know currently we have a may our current rule and in that may Through the rule process we eliminated sex offenders being discharged, but that is really The department can make any of that criteria work That's really what the the committee feels Comfortable with or what other witnesses will come forward as far as the policy decision on that As we move to c on page six I would recommend that we change that first sentence instead of risk reduction Programming that we change it to risk reduction services The department operates risk reduction programs and I wouldn't want that to be confused that had to do that for a discharge There can be other risk reduction services out there mental health substance abuse anger management That is not operated by the department I think it meets this I think it meets what the criteria of what the legislation is trying to look for But will reduce confusion on the department's and and everyone that works With the department on that area On the back end of that section This is different, this is I understand I think I understand what Brent was trying to do here We could probably strike out the commissioner But really this is just documentation. This is This is case documentation That we have And and that information or evidence so to speak would be brought if there was a To object to our recommendation for discharge. The commissioner doesn't need to review review that Reprobation officer operates through the authority of the commissioner So just strike out the commissioner that other language is fine. We keep case documentation discharge summaries from treatment providers, etc That's that's not a burden On lines 13 on page six and number two. This is where I start talking about the partial reduction And practicality it doesn't it doesn't work out well on a few different reasons One this really should be the court determination to reduce the term Though at a hearing it won't be a probation officer Saying he's completed three out of four someone reduce his term 25 While someone else could say well, this was a more important condition that he didn't do so I'm only going to give him 10 it leads up to a lot of disparities that way And then in an operational practicality it doesn't necessarily work, especially with the new language Um, so if at the midpoint, and I'll give an example So if at the midpoint review if we reduced the term because it completed a few of their conditions of supervision Um, we have to do paperwork and follow motion of the court The court has to approve it. Um, and that's this Time and it really doesn't have a lot of impact because once the offender completes the condition We'd be recommending a discharge So you have this process that really doesn't have any impact on the offender's sentence But it will occupy a lot of administrative burden for both the department and the courts and possibly the state's attorneys and prisoners rights on the flip side As we request a reduction of the probated term and the offender doesn't complete that condition by the by the end of the new reduced term We'd have to file a violation So they can complete that condition so it's it it kind of There in practicality it doesn't it doesn't really work. Um, when it when it's moving forward I'm almost confused, but um, so if you could help me out Dale If the person The person had a two-year term, um, they still needed something Wouldn't we be better off to say they'll be reviewed in six months or three months or whatever? If they are not eligible So I I don't think we need to sit time to review The way the probation officers will work is they'll be working through the conditions of probation And with the language that's in there that as soon as these criteria are met We would so it's almost like a reviewer every time you meet the offender or go through the case So it's not a set time that we review it that could actually extend it if we wait every three or six months It could be two months longer than we actually would need to submit the discharge If I didn't explain that well, I'll try to Maybe do a case that I could walk through that might make more sense. I don't want to confuse But I am confused All right, so I'll have I'll do a straightforward example. Let's say an individual has a two-year term A probation and he has four conditions to do and at the midpoint review He has completed three out of the four So the probation officer say well, let's reduce it 25 because he did 75 of the conditions and we reduce it by six months. All right Everyone approves that reduction. He now has an 18 month term now If that offender completes all his conditions the following month We we were required to file for a discharge So that motion to reduce the term was just an administrative burden That really has no impact on the case Been on the flip. So whenever the offender completes his terms, we'd file for a discharge So unless the offender doesn't complete the The required last condition And we're getting toward the end of the term the new reduced term We'd have to file a violation because he's not in compliance with his probation In order to extend the term so the offender can complete the term That adds some clarity Does it mean that when we file a discharge that the court when it gets reviewed if the state's attorney objects They can make that determination to reduce the term. It should not be on the probation officer I think that opens up for a few other Disparities that I think the that the senator was looking to avoid As we So that takes care of two and kind of three as well. Does it that same partial reduction of language? on page seven number four The notification of victims of record that really is the state's attorney's responsibility Does it mean the department doesn't work with victims? But that is really on the state's attorneys. I think that's a current practice now In addition, I'm not sure a rule is necessary for this Amendment because it lays out pretty clearly what the department is supposed to do The rule would basically just be regurgitating what the statute is laid out There's not really a lot of decision points for the department to To make in a rule In addition Otherwise, we'd have to file an emergency rule and update the rule and go through that process because Rulemaking takes more time than to be effective on on july 1st for the department. It actually would be recommending to strike number four the rule Any questions? No, I think it's clever now for me By the way, senator white is not here if she um had announced She had to go to grace cottage Vaccinations Since she announced it publicly yesterday, um, who would like to go next maybe um anybody Mr. Attorney general assistant attorney general under general There's the assistant attorney general I'm calling you an attorney general until you may make your current boss a little nervous Um morning senator, you know, I think that I actually defer to some of the other folks on the call who may have more operational input. I think that um The drafts, uh, the draft is moving towards taking care of some of the concerns that we had regarding uh programming Um the definitions look like in terms of the determinant Uh programming an indeterminate program. I actually think we're getting towards a solution here in terms of What we're looking for with respect to making sure that people Are continuing probation who need to but there's also the flexibility to uh Make sure we're not holding people past where they need to I think that some of the other folks have more granular Knowledge on um how the stuff works will be more helpful to at this point in terms of ironing out the language that sounded like judge gerson and and Dale crook already made some good suggestions for Tweaks to make it workable But uh for now, I'll I'll sit back and let some of the other practitioners weigh in on some of the detail aspects of it And the overall goal goal remains to get people off probation and don't don't need to be on probation That's right. And I do I I I do support where this is going. I think that the draft has is At least in concept is getting towards solving a bunch of the sticking points that we had Matt or Pepper either one of you matt go ahead Thanks, I'd like to bring you back obviously to start at section one um The uh some of this has been brought up But I think that You end up in a situation with I'm looking at b where the defendant is not in compliance with conditions of probation um Sometimes in plea agreements you end up with surplusage When it comes to conditions of probation that you ultimately They they aren't really relevant to the Uh specific crime even though the law says that they're supposed to be And that is something that you end up determining along the way It's it's one of these things that defendants get hung up on conditions that aren't really relevant to their rehabilitation or to the crime Um, and they may not be in compliance Sometimes there are things like driving conditions um or um Or certain types of employment conditions and and the like um I I don't mind if that is in there, but I would suggest that there'd be a sub-c Where the court could find that there's no further need Um to continue the person on probation um because the court can look at the Facts as a whole and just say There's not a risk to the public and while this defendant is not in compliance to the with the all of their conditions of probation There's no further need to continue this person on probation Um, and so I would suggest that there'd be a catch-all that allows the court to discharge people who aren't necessarily fully in compliance, but have met the um The risk um and danger prong of of the conditions One of the things that I think I'd love to have the Legislature make a statement on this which is That probation it should not be used for punishment purposes probation should be used for um Rehabilitative restorative purposes um Focusing on those concepts um If somebody needs it's going to be punished per se, then they're they're probably going to end up confined somewhere whether it's a You know 24 hour curfew or or something on probation or or which I've seen on occasion not very often um, it's a little bit of a shame that home confinement went away but The uh, they're going to spend some time in in a facility or a work camp or something like that And uh, um The concept is to try to get people off probation who don't need to be on And that we shouldn't be holding people for punishment purposes only on probation I agree with the Discussions that have been had about modifying conditions um a probation deal in a plea agreement is a contract that is uh Has to be upheld by both sides and if you modify the Terms of the contract Then you end up in a situation where a person could um file could withdraw their plea or file post conviction relief To get the agreement vacated The conditions could be modified and they have been are modified somewhat regularly by agreement of the uh parties Senator benning or had a comment or question that Yeah, but before you leave page one met, um, if we added a catch all subsection c The line on the line 16 We were trying to decide between clear and convincing and a preponderance of the evidence Does that make a difference if that catch all phrases that as to which of those two clauses you'd be happier with? Well see now we're This is interesting because I I hadn't thought of the concept that senator sears brought up earlier is conditioning the types of crimes that it would be um The subject of this to whether or not One standard or the other Applies so there's that level of it um and And now you're asking me about on a different issue Uh I I have a general feeling about this and I think even reasonable defense lawyers could disagree about this one Um personally, I'd rather have a preponderance standard and exclude um A bunch of crimes except for the most serious ones rather than uh A clear and convincing standard and And uh, I think I said that backwards I think there's I think there's a robo call and somebody's background because they really wants to know if my uh auto warranty has expired yet Well, if you'd like to testify on friday about your auto warranty, we're taking up robo calls Friday morning I only I only get 10 calls like that a day I do have certain glee and picking it up and just hanging it up on them, but any of that um Yeah, I mean I I think I would rather exclude, you know to to senator sears earlier point. I'd rather exclude Crimes from uh um You limit this to a small number of uh um Serious crimes And go with a lower standard um But I can see how people might disagree with that I think the court will make I think the court if it wants to come to a conclusion will make findings of whatever The conclusion it is to get to where they want to get but if they're prevented from making those decisions regarding uh What they can consider then the standard of proof doesn't mean as much You know, you know what i'm saying? Yep um So that's at least on that issue um, I again, I I don't know if it's a matter of if it could be part of legislative history, but uh a statement regarding what Probation should we can always do a finding although usually the house does findings We can do a finding or a Statement of purpose of probation There's been many times over the years where I've had people and there's actually not in statute any any real, uh Support for this you're either on probation or you're discharged from probation, but I've had many cases where um They've been on for a period of time. They didn't get everything done, but they aren't causing any more trouble They aren't committing any more crimes But they didn't quote-unquote do everything that we want you to do and they get quote-unquote Unsatisfactorily discharged. Um, there's actually in statute. No Nothing that says there's such a thing as unsatisfactory discharge And you know may it may be buried in d.o.c rules somewhere that i'm i'm not aware of but Um, you know, this is akin to that which is basically saying look you've done The relevant parts of what we need you to do and while you haven't complied with everything Um, we're still going to discharge you because there's no point in carrying you on probation anymore or you being part of this Um, well, there is a point where you've gotten all you can get exactly And really what you want is people not to be committing new crimes and if that is the case then That it doesn't matter what the probation conditions are exactly I think, um Brynn, um, if we could make some statement regarding probation should not be used is not Rather than should not be used probation should not be seen as a punishment rather conditions that make positive changes like Rehabilitation or I hate to wear rehabilitation. You know But i'm thinking of those that But all they can get out of them The probationary sentence they may not be successful to you and I but They've done well Yep, I can add a section that does that All right, um All right, so i'm skipping down to section two 252 be well, it's it's where the obviously where it's I don't know if you highlighted or I did Because I have all these notes on the side, but it's basically making decisions between What's going to be included? um I'm not against having The department be able to Make this work in the manner that Is easiest for them to track And make sense with current procedures so they don't have to be rewriting a bunch of rules The And I'm mindful of what senator sears sears has said about Leaving too much to the discretion of the of a probation officer and determining whether somebody has satisfactorily completed Um Certain programming what I'm what is confusing me. I I know what a term probation is and I know what indeterminate Probation is What I don't Understand honestly is what Determinate programming versus indeterminate programming means because that's not a term that we particularly use Um, are we talking like, you know A. A might be for life Um, domestic violence programming You know the batter's intervention programming might be some number of weeks um I I don't know where I don't I don't understand what we're talking about there Um, when we're talking about indeterminate programming versus Term type programming Can anybody that is maybe I don't know if dale did dale introduce that terminology to us I don't I don't know so I um I don't think that I got that Language specifically for many one of the witnesses That was my attempt to capture what was being talked about with different kinds of programming Just like you mentioned, there are some types of programs that a person continues on And others that have actually like a six month completion date. Um, so That was me trying to capture that and if there's a better way to do it, I would be glad to What I don't want to get have happened here. This bill is designed To get the vast majority of people off probation that don't need to be on probation any longer By requiring the midpoint review and I don't want to lose sight of that That's the goal here And I I'm afraid sometimes the yeah, um, so I I'm As much as possible It should be either completed the The I hate the word completed you participated in the programming you were required to participate in And that you make a good point that a a is for life Other treatments More long term so very I You know, maybe we could there's some way to Maybe that just has to get out of there somehow um Again the goal, I mean, I think we need to make sure we don't do things that hinder the goal of the bill Which is to get people off probation that don't need to be on it. There was Dale was talking about in in sub three of this section the idea the That the commissioner filing a motion reduction in term regarding probation again, um if the And he was So if there's a mod if I'm trying to get to what this is if there's a modification At a midpoint review or a denial at a midpoint review. There's going to be reviews down the road and Dale, I think suggested that if there wasn't compliance Then the the department would have to file a violation Um Even if the person Didn't pose a risk I wasn't I wasn't understanding that because I Couldn't they file a motion? Again with the court in first of all, they could always discharge Um, whether it's satisfactory or not um, and they could always Request a modification of conditions Which would Better suit the person rather than filing or they could file a violation if one is warranted um So I think there are options besides just filing violations Unless I'm misunderstanding what Dale was trying to get at Dale. Do you want to comment? I'm just kind of an example. Let's say, um Someone's taking BEP and they didn't start enrolling BEP until Let's say the midpoint review um They may if we did a reduction of term, they may not complete that programming And time in order to do that we'd have to extend that term So they're in compliance with their condition Um while if if they did have time once they completed the term Once they completed the BEP or the programming we would just file a by um a motion to discharge It's then as an added layer to extend and move the the midpoint or the The term ending That really would create confusion and that really should be on the court's end If they want to reduce the term and not the department making a recommendation It starts getting really confusing for staff where everyone's going to have a different Perometer where everyone doesn't want individual POs and offices making individual decisions Some may say that condition is worth six months. Some may say three months. Some may say Whatever so I think that whole reduction of term And then the fact that we have to that it could be mute out And many options it just adds burden to the system that doesn't need any more administrative burden added to it Okay, so it's not that there aren't things that are doable. It's just there you see an administrative burden And I get that I mean nobody wants to add more to what they're But I don't see I don't see providing a benefit So if I file a motion to reduce the term and then a monthly vendor completes the condition that we reduce the term on Then we'd file a discharge to end the term And about this in counties particularly where there's a lack of availability of services so, you know The bit program only comes up so often or I mean is that where you're seeing this being a big issue? I'm just trying to understand Because you might get on probation then the next program doesn't start for You can't get in it for six months um So nobody's not in they're not not in compliance, but they are unable to access the Service that they need There could be many reasons why they don't complete Maybe someone has three different types of conditions and they can only do one condition at a time And it just takes them longer to have it completed because they're working and doing other things. So it's really um, you know, what the goal is I think is once someone completes their conditions um, as an incentive we want to discharge them from probation Um, and I think that's where we want our time focused on Yeah, we basically don't want people doing effectively dead time on probation with just being on probation with nothing left to do Okay um for me, I guess the only other thing to You know to talk about is uh You know what crimes might be? It might be on the list to be excluded. Um And the Again, I would obviously prefer that prefer there be a shorter list and a um preponderance standard for uh For burden of proof the I This is it's always one of those ones. I think it's because of the The words that are used, you know lewd lascivious conic with a child was one that was I think proposed to still be on the air even though sexual assault on a minor involving Two individuals who were of similar age um Was not going to be on the list, but the same That same uh period of time applies to l and l with a child as well So I I if you're going to do sexual assault Consensual between minors Then you should do the same thing with you know exclude that from uh From the from not being able to do this then you should do the same thing with the l and l with a child Under the same circumstances I think that's all I have but I'm sure I'll think of other things as uh this evolves How do you deal with split sentences? I'm thinking of those types of crimes Well, I mean that's a very common thing. So, you know, they're going to end up doing Doing time whatever it is and and then they're going to have some amount of their sentence That is going to be as you said split to serve on probation and um But I think you just look at it halfway through what if Whatever that All right, so you know If you're doing uh You know two to ten Also spend it on probation except for Uh two to serve then you're probably going to look at them at five years and see where they're at Well, I think you could eliminate anybody who's on lifetime Yeah, I that's yeah anybody who has an indeterminate life sentence, uh might be One again except for to be those that have the consensual element of minors in the sex cases but the uh There's that other group that just says until further order of the court Which in theory could be life but uh Is uh But you know is not an indeterminate life sentence by statute Uh, thanks Who's like to go next to whoever'd like to comment? Maybe pepper Sure Thank you for the record James pepper department of state attorneys and sheriffs um I think this bill again is moving in the right direction It sounds to me like all of the people that are spoken today and have spoken offline Are in agreement with the underlying principle that the midpoint review should be strengthened and that people that no longer need um the kind of Supervision of the court um should be removed from probation We have uh, you know, I think I should just focus mostly on section one because it sounds like section two um, there's general agreement but there needs to be some um Kind of cleanup or clarification on some of those sections that I think, you know, we're all pulling in the same direction there, but uh with respect to uh, the first section And this is when you know, there's been a motion filed by corrections and it's now within the court process um, I would agree with judge grearson that you know, it should be the State that's seeking a continuation of probation not the commissioner of corrections um I would agree with matt Valerio that we I think the state's attorneys would prefer the preponderance of the evidence standard here with um And having it Having the exclusions applied to fewer crimes Because I think that what we have mostly been concerned about are the super the supervision conditions that are related to victim safety and uh victim harassment victim contact And so if that's an issue I would want the court to have The ability to not have to face I would not want the court to be faced with a decision where they must discharge because there wasn't clear and convincing evidence of a victim issue um, but I would like them to go down to that second part Of section one, which is this is a good opportunity to review and modify the conditions and maybe get rid of the You know, no Ignition interlock maybe get rid of the curfew or some of the other conditions that aren't really related to victims Or or reduce the term And so that that's why we would prefer the preponderance standard here Senator Sears, yeah um James matt had suggested a catch-all phrase Uh, basically allowing the court To make another determination altogether, but that would also if we plug that in here You understand with the preponderance of the evidence standard that standard would apply to that catch-all phrase as well So I wasn't uh You know, I hadn't considered the catch-all phrase until matt uh valerio just brought it up I'm not I don't believe that the state's attorneys would support that catch-all phrase right there mostly because what he was saying is that compliance with conditions should not be a prerequisite for discharge and compliance with conditions, um I think when you're out on probation you're kind of on a A trial period with the court and if you're not complying with your conditions Then I think that that should indicate that maybe Discharge isn't appropriate at this time and you know when matt suggested that Some conditions aren't relevant to the crime you know, I I work In my summers and you know in the appellate division of our and you know, we frequently are litigating cases about Conditions not being they're not being in nexus to the crime and they're dropped very frequently. Um So there is a remedy for folks that have you know over broad conditions or conditions that don't Let me give you an example if uh, one of the conditions one of the standard conditions of probations is that you meet with your probation officer When and where as directed And if there was a planned uh meeting with the probation officer that was missed the uh The offense of that did not rise to the level of the probation officer deciding to file a violation but technically he is The probationer is not in compliance With what has been suggested Um, and the way these two provisions a and b are right now as I read them If he's not in compliance with conditions of probation b would knock him out of being eligible for this remedy No, wait, sorry Well, I I see Matt's suggestion of a catchall phrase that Court could look at and say, you know that They've done what we really wanted them to do They may not technically be in compliance as a result of having missed this particular meeting But why are we going to keep them on probation? And I saw the wisdom in matt's suggestion. I understand you're objecting to it I'm throwing you back that example as something that I could foresee being used to deny somebody in this circumstance well So the the denial That would occur if you added a subsection c would be um Just related to discharge So a person that uh the individual that you're discussing Would still have a remedy here in that the you know, there could be a decision by the court not to discharge But to reduce and modify and I know that there's some concerns around the term modification And there should be some clarification because again, we're all on the same page here that this should be a reduction of either the term or the conditions or both but that um, but that If someone is not compliant with their conditions I think that should that should indicate that maybe discharge is not appropriate But that a modification would could be appropriate and that would still be allowed under subsection two so it's just it's a It's just one one of those disagreements that I think that we have that you know Modification is likely appropriate if someone If potentially someone is not compliant with their conditions and of course it depends on what those conditions are But that you know, this bill allows an avenue towards a significant reduction or You know or a modification Of terms Even for those folks that are not compliant with conditions Seems to me reading it that they would still be denied The ability to get off probation under those circumstances if we left it the way it is Court doesn't have an option. They can modify the conditions, but they're still not eligible for getting off probation at that point If they're not compliant, right? Yeah, and if if they're not compliant with a standard condition of meeting with their probation officer when and where as directed Um, I I can see that being a snag under the way. This is currently worded well Can I weigh in here for a minute if we If we change that language in subdivision b on the top of page two to tie it More closely to the language in the second section about that programming It then the language won't be in compliance with conditions of probation. It will it will actually be Um more specifically tied to their programming um, and so with that would that solve the The problem here or it helps it helps For some reason I keep going back to one individual who um became infamous and You know led to act one and 20 and or might have been Doesn't matter act one was following the murder And you know the the evidence that we gathered about michael jakes on probation Would lead me to believe that whatever we do um There the individual patient officer decided not to violate Because he didn't recognize the red flags I'd gone out of state when he wasn't supposed to waiver of injunction. I mean uh Whatever that leaven Lebanon, New Hampshire or whatever There are a lot of red flags and I think as much as possible. I want to leave the discretion To the court Just another thing I get uncomfortable with Dick I agree with your lack of comfort in the case of a worst case scenario But it's a pretty standard thing in my business for somebody on probation To miss a meeting with their probation officer And that's one of the standard conditions of probation. So everybody is going to have that responsibility And as I read it right now If they're going to be released at the midpoint Um, the only way that can happen Is if they are in compliance with the conditions of probation So technically they're not and I'm thinking that the court ought to have some kind of an override Where it sees that the infraction is really de minimis and We don't keep them on probation Simply because they may have missed An appointment and a probation officer hasn't deemed that a violation of probation So if I may this is a Um, but understand I the the decision We're not concerned. I'm just trying to give them information that the department will not file the discharge Um That they've been found in violation by the court within the previous six months So so the situation that senator benning is talking about unless we file a violation in court and The judge holds a violation Then we would be submitting a discharge Um, as far as what language you use is not a concern Is just trying to to help the committee by understanding that you have to be in no violations for six months before we even file the discharge Well, dale The way that I read this now the intent is to get somebody off of probation at the midpoint unless the court Finds one of these two things now if the court asks the question Um has the defendant complied with his conditions That require him to meet with a probation officer Even if the probation officer has not filed a violation the probation officer assuming they're telling the truth would say well They've made six out of ten planned meetings Is that person in compliance with conditions of probation? I would submit it doesn't sound like it to me And I don't want that to be a hang-up if probation has never decided that that alone was worthy of a violation to be filed So i'm i'm thinking that the catch-all provision that matt was suggesting made some sense to me and i'm going to leave it at that If you if you don't mind that no, I don't the ones that I I am wary of our conditions that you maintain stable housing and While the person may not be Committing any crimes and they might be doing their programming They may also in the course of a year change houses Some number of times or they may lose their job through no fault of their own or Would end up changing jobs or that kind of thing and so it's the Kind of the stability of your of the things that are outside of your control that may give rise to You know questions about Compliance that are not Um, you know, even even something is like, you know, having it maintaining a phone or something um the those types of those types of things concern me and What senator benning was talking about is another typical Kind of thing making all your meetings That sort of thing You know to me as long as you are not committing crimes and that you're you are attending your you've done your programming Some of these other things that are difficult for even people who are not on probation If you are You know on the lower economic rungs of our society you They should not be the thing that keeps you on probation How about a word like how about the trend that is not substantial compliance with condition? Senator if if I may throw in a suggestion that hopefully is helpful enough. No um Looking at the uh, the way the mechanism is working as I see it is basically the way the court gets these is through a recommendation from the commissioner And so what we're really arguing about and we could change that mechanism, but the way the statute is currently set up That's the concept here. And so you have to go down to page five and six to see What are the triggering Things that are going to send this that the commission that is going to require the commissioner to send this to the court And so there's there's two Well one important point that I think dale was was making which is that I read subdivision a on the at the very top of page six It would be limited only to those cases where there was a v. O. P That somebody was adjudicated in court for a violation of probation So not that somebody was not in compliance and the department Knows about that. They didn't show up to a meeting. They were having trouble maintaining housing but that there hadn't been a violation probation filed with a court and an adjudication of guilt found on that which is quite a bit different I think than the sort of and in a higher bar and frankly policy-wise good because that limits the Discretion of the department and means that more of these cases are going to be going to the court So I'm not so I think that we're talking about a fairly limited Issue here and that it's only if the v. O. P has been filed in adjudicated guilty by a court There already was a judge who had to have said you're in violation not just that a probation officer thinks that they're in violation Before and so unless that pretty serious Process has been fulfilled with some serious due process protections This is going to be filed with the court as long as the other two b and c have also been met the other thing I would suggest and I realized the department may not be Okay, but I'll throw it out there as a suggestion is another Additional protection you could have is to basically say hey If you meet the conditions of D one Which is contained on pages five and six, you know, the the things shall be filed But under subsection two you could still give the court you could give the commissioner the discretion to say You won you could request the reduction term of probation or request dismissal So basically it's like D one is a shall you meet those conditions? You you get the recommendation and then the court checks it according to the things on page one and two Or you don't meet the conditions of D one It's no longer a shall but the commissioner still has the discretion to say well, you know that v. O. P We filed was adjudicated five and a half months ago. There's been no issues technically they don't meet D one, but This still gives the discretion to say you can either reduce the term or or is charged So those are a couple thoughts that I have On that issue. Hopefully productive Oh, maybe not No Um Anybody else would like to speak that hasn't so far the network is here chris fennel's here Um, we haven't heard from them and we haven't heard from on monica if she has anything to add Chris for the record chris fennel from the brahmant center for crime victim services Very interesting conversations so far and I would say That the the things that are being suggested are ones that we would support Um, again going back to that issue about clear and convincing or preponderance we fall on the preponderance side um That dealing with risk to the public is an important thing um, and so that that needs to Be clear that the defendant does not pose a risk Um In terms of the modification Just wondering I I agree a couple people have spoken today and and the other day That the subjective nature of a probation officer Is I think confusing to trying to get fairness across the board. Um So I would suggest sort of Meaningful measurable and specific criteria to be used For instance, and we've talked about this too completed programming Take out that piece of successful. Um We're in favor of that. Um, and then finally And I I didn't have time to look this up, but I'm sure somewhere in statute There is a definition of good faith effort and my concern is that good faith effort Looks different from one place to another And just to make sure that there are sort of parameters around what that means um And those really are are our only concerns at this point Thank you. Any questions for chris? Thank you Yes, Jessica Hi Hi, all thanks for having me. Um, Jessica barquess from the vermont network against domestic and sexual violence And I will just agree with many who have come before me and say that I think this bill is headed in the right direction and we Um, definitely support many of the changes that have been made Um, I support the added language that strengthens the victim notification. I think that is really important and like chris and others have said before I would also support the preponderance standard and excluding more of the crimes from the Carve out than the clear and convincing standard. So thank you so much for taking the time to make these changes Anybody else who wants to comment before we take a break um One thing I'd like to consider adding is Many states cap probation for misdemeanors in two years Alabama, Georgia Hawaii, Indiana, Illinois, Iowa, Kansas, Kentucky Louisiana The list goes on New Hampshire Delaware, Indiana and Maine cap it at one year for misdemeanors Um I'm wondering if we uh, we're able to put a section in and ask for a report from Sentencing commission to justice oversight recommendation Make sense to me At the same time as this was being done As this bill was being drafted. Um, there was a Pew study december 2020 um Regarding the number of things regarding probation We're pretty well in good company, but we have indeterminate, um probation terms even for misdemeanors And we're only with florida mass juicents south Dakota and vijinia Um, I don't want to get into felony right now. It's a little more complex Anything else before we take a break? Yeah, wow one more thing, sir Okay from the department. Um We we did hear what, um The network said and and the other Issues the concern is still with the good faith effort being placed on the department. That would be an added Responsibility our victim service specialists We currently have three in the department and their primary function is to work with Offenders being released for the victims to make sure that there's safety plans Notifications going out when our offenders are released Um, we do believe that the victim should be notified, but this this responsibility Currently lies with the state's attorneys and we would like to suggest that it remains with the state's attorneys um at this point, okay All right, um when we get them back we're going to take up s 18 which is the earned time bill and then Um, and then come back to this at 11 30. Um, we may not be ready to vote But If we aren't great if we aren't okay, um, we may need to to chat a little more amongst ourselves um, but um Eric is Peggy has posted A redraft of s 18 Earn time bill and on the bidding page And chris feno has a statement We'll be back at 10 45 and we're going to end the live stream But those who are watching on youtube can catch us back at 10 45