 last week. Right Senator, I believe that's true but I believe I fairly well wrapped up and said and I know that there's, I'm happy to answer any questions but I think I've wrapped up what I have to say and I think that the state's attorneys and sheriffs have some proposals and probably everybody else. I wanted to, there is a letter, I don't know if it's in our file. I didn't read it from A.J. Rubin regarding the testimony about the lawsuit. I don't know if you want to. Did you get copies, did you send that to Peggy? Peggy, do you have copies of the letter from the page upside? I guess I'm talking to them all. Which has been what I've been doing lately. In fact, getting back on track, Peggy, there was a letter to the committee from A.J. Rubin. Oh yeah, I did not print that out. You just print that out to the committee and then at some point you can hear it. Okay. I hope it's true. House numbers keep you forever. No, no, no, this is just here. There is no rush, really. I was up the House Congress and she asked me whether or not it was on that Cooperville. She said, well, if you consulted with Encoilus, what? That one Europe represented from Brattleville there. It represented strong. What's her name? The one from Brattle. Oh, Vastord. Vastord asked me if I consulted with Encoilus. Huh? What is Encoilus? They're Encoilus insurance people. Yeah, but they're supported by Encoilus. And Cummings loved them. Cathy Keenan, Cathy Keenan. Encoilus? Encoilus? All right. I found out that I probably won't get any money from them. I'm so bummed out. Encoilus? I was counting on her. I probably won't get any money from the body groups. You wouldn't mind a chunk. All right, probably won't. The policy director of ACLU is next. No, I... She's already been here. James Pepper and David Shure are from the Attorney General and the State Attorney's Office. That seems to correct the language. All right, so actually I was just going by the agenda. So I brought a proposed amendment for folks. Oh, great. Thank you. The Attorney General's Office and I... This is the whole pile. Okay. Keep one to yourself. All right. I need one. I guess I'd say for the record, James Pepper, Department of State's attorneys and sheriffs, and the State's attorneys and I, or the Attorney General and I sat down and reviewed the latest draft and kind of found some areas where we agree and some areas where we don't. And so I tried it in my proposal. You'll see that there's... I don't know why this morning I have a problem. You sat down with the Attorney General, not the Defender General. Sorry, the Attorney General, yes. I may have, I probably... I got the wrong general. While I was thinking of the Attorney General, you sat down with the Attorney General and came up to some agreement. I should say the Attorney General's Office. You're the general. Well, we followed those. Yeah. And so what you'll see in my proposal, and I'll go through them step by step, but some yellow sections and those are the areas where we agree, I believe. And if I misspeak, Dave Sherrill, let me know. And then some green sections and those are the areas where we disagree. Who's in favor of the greens? Those are the State's attorneys' positions. You're so cool about that. So I'm moving to green. So I guess moving to page two, the first highlighted section, this reinstates bail for expungement eligible misdemeanors. We believe that that's important, particularly just kind of for the administration of the court and issuing warrants. The Attorney General is not opposed to that. I think he would like it lower than $1,000, but we think some reasonable amount, like $1,000, keeping in mind that that amount would be at the court's discretion. That any portion of that could be a secured portion, the rest unsecured. And, you know, just one thing to keep in mind, we did hear testimony in the House that, you know, after hours of bail bondsman's not going to come out and bail someone out for $200. It's just too low of an amount. Can you just go back to, who are the green? The green of the State's attorneys. The yellow is... Okay, but I thought you just said the Attorney General wanted it lower than $1,000, and that's in green, which is... The yellow is where they agree. The green is where it just states attorneys. The Attorney General wants no maximum. Or a lower maximum. No, we want a lower maximum. So... Okay, State's attorneys want $1,000. So $1,000, they would want something along lines of $150 or $200. Something like that was the original proposal. $150? $200. $150 to $200 they want? Wrong. I'll pick $200. That's fine. So if we were going in between it would be $750. Let's go $750. No, no, I... I just said, I'm sorry. I don't want to happen to me. I think I'm still trying to figure out the eggs. Feathers kind of collared. I know. I think that's... Okay, so the second portion relates to this idea that we're eliminating, ensure his or her appearance and substituting, mitigate the risk of flight from prosecution. The Attorney General's office or office agree, I believe, that unexcused non-appearances should be the basis for imposing bail, and that by making this change there's a risk that a judge might think that an unexcused non-appearance might never be the basis for imposing bail. So our suggestion is either defining flight from prosecution, which you'll see under subsection C, which we suggest in language it could be anything we want, but the idea that any action or behavior to avoid court processes, alternatively you could put the word or, after ensure his or her appearance at future proceedings, or mitigate the risk of flight from prosecution. Just so that it's clear that non-appearances for good cause should be excused, but that non-appearances that are kind of unexcused should be the basis for imposing bail. That's our position. I don't reasonably say non-appearance for good cause instead of trying to do something that nobody can understand. I have selected a definition. I don't even know the definition of what it means. Okay, any action? I ran the definition by Judge Greerson, and he said that makes sense to him as well. So are there questions about section one? Section one? Those three changes are all part of section one. The only question is what was the amount decided on number two? Right, but I'm not deciding that. Okay. We get to mark up later. Okay. We can reject them. Right now, this is a proposal from the state's attorneys. Good. Anyone else who wants to speak on these proposals and then do our mark up. I'm not feeling real rough on this, but I wanted, are we done with section one? We'll come back to it. I want to hear what others think about it. Section two. Okay, so section two relates to the idea that it's changing the rules of criminal procedure to require that law enforcement officers making an after-hour arrest consult with a state's attorney, and then the state's attorney shall contact the judge. And now, I think that, I think that Erica Marthage, I wasn't in the room, but I think she testified. You said the police officer with contact. Exactly. I think she said that, you know, the law enforcement officers on the scene, he'll be able to answer any sort of questions that come up. And she said that if she was required to call the judge, she would probably just conference in the law enforcement officer because he's the one that... So I changed that section that just... How do you remember that? That basically forces the law enforcement officer to consult with the state's attorney, the on-call state's attorney, prior to calling the judicial officer, but not requiring the state's attorney to actually call. I want to note on that, I don't know if that was something different from what Erica wanted for the law enforcement officer added to prosecuting the attorney, and she said she already does this herself. It's not a problem. She should not make a call, however, in situations where a case is already pending. Therefore, she wanted the law enforcement officer added to the court. Right. In case she had a case pending with the person, it could be another matter. Right. I don't have any ex parte conversation with the judge of the law. This proposal by James is allerating her over here. So I... Well, a woman had heard from calling the judicial officer. So all of Erica said she doesn't know. Right. So the alternative could be and the prosecuting attorney or the law enforcement officer shall contact the judicial officer. That's fine with us, too. I would... And then we also... I'm sorry, I told you... I didn't have it. Thank you, Brett. We both need part-time. What's the kind of difficulty for a child? I emailed you already. We also suggested eliminating the affidavit requirement. We recognized the intent behind having an affidavit. Affidavits are required in search warrants. They're required in other circumstances. However, we do think that this will... have the consequence of people being held for hours while an officer is preparing an affidavit and potentially the on-call state attorney will then have to review the affidavit and it adds a pretty big step into the process. And I would... I mean, I should just note here that this section does create a new obligation on the state's attorneys, especially the on-call state's attorneys. I think it's a good one. I have just a few numbers from this past weekend. Chittenden County, I know Erica does this already in Bennington, but Chittenden County is kind of its own separate thing. Over the weekend, they had 11 lodgings, one flash site, so that would be 12 additional calls that the on-call state's attorney would be taking, in addition to the five calls that they already took and the three hours of work that they put in for those five calls. So just... The week before, they had 23 lodgings, so they would be called in every one of those circumstances, too. I need to do on-call. I don't have Facebook. Me too. You have to wake up. You get woken up by a drunk person? Once. It's a lot of fun. It's a lot of fun. Especially when the officer who calls you says, I have a defendant here who's specifically asked for you and you put him with a guy and he says, I have a defendant here who's specifically asked for you. The only question is the officer within your shot. I don't remember whether ... My drunk was actually as a state senator. I struggled. Corbin put him on to it, I said, why the hell he said, I said, why the hell, and he said, well, people have a right to call them back to Hanifords. You wanted to know why he couldn't carry his firearm at Hanifords, and that was violating his First Amendment. I was like, I'm not a threat. And I thought to myself, you're drunk, and you've got a pistol hanging from your hip, and you're shopping at Hanifords at midnight. I wanted to watch somebody at Hanifords. Anyway, go ahead. Okay. My next change is the highlighted section on page three of my amendment. So this goes back to the idea that judges may consider non-appearances, or shall consider non-appearances when making bail terminations. Moving on to page four. This is an old place of abode. Place of abode. So we would not trust new and pretty generals to start to agree on housing. Right. I think that's right. I mean, I think we're willing to accept removing place of abode restrictions when you're talking about securing appearance. But when you're talking about protecting the public, we strongly oppose limiting a judge's authority or discretion to make place of abode restrictions. We very much like to see that go back in when you're talking particularly about protecting the public. You know, the courts only allowed to impose a place of abode restriction if it's part of the least restrictive means to ensure public safety. I did a Westlaw search on place of abode restrictions. And to the best of my knowledge, it's only ever been challenged one time. And the court vacated that condition. So the process, you know, I think that the process is working and these are being used appropriately. And then the last change that I have is in reviewing conditions of release. Currently, a defendant who's being detained may seek a change in conditions of release and the hearing will happen within 48 hours and the review will happen. We'd just like to say that if there's a material change of circumstances that the state's attorneys be afforded the same 48 hour review. That's the review changes. David, do you want to speak on behalf of the general positions? Others that they want to speak. And then at eight days, if you want to speak to your letter, we'll hear from you as well regarding the testimony from the weaponry general. For the record, David Chair with the Attorney General's Office. I'll just comment, I'll limit my comments to the green part since that's where we disagree. But obviously I'm happy to answer your questions about any aspect of it. So turning to page two of the state's attorney's proposal and talking about the maximum amount. We've always been okay with having some amount of low amount of bail imposed I think for purely administrative purposes and allowing those administrative processes to happen. I think it might be necessary to be able to impose a small amount of bail especially in the issuance of arrest warrant context. However, we think it's very important that that amount be low. And so the House Judiciary Committee started with a $200 number which admittedly was, you know, I think somewhat arbitrary. But the key thing is making sure that, or from our standpoint, the key thing is making sure that number is below $500 at least and arguably, you know, $100 or $200 would be ideal. And the key thing here is just making sure that for these lower-level misdemeanors I think it's often a sort of reflexive request that bail be set at $500. That's oftentimes, I think, when you sit in criminal court you see that as a standard number that's considered a pretty minimal number. But as a matter of reality, that's a very difficult amount for many people to reach. And so setting it low at $100 or $200 seems like whatever we believe is an important step forward. $1,000 is pretty high. It's above what's currently used as the minimum right now as a sort of reflexive default. And so we're not sure that that would... We don't believe that that would have much effect and it's important to set that low for those expungement eligible misdemeanors. So we're okay with having some amount to allow administrative processes to work but we think that amount should be low. So can I ask a question? So is there a minimum amount? Or don't care about that. Is that okay? Judge decides 20 bucks. That's fine. Okay. Good. So that's our pitch on that. We asked for $100, $200 somewhere in that neighborhood. Turning to the next section, subsection three, we are fine with adding a definition to clarify that we're really talking about the willful avoidance of court process. I think that's always been our understanding of what mitigate the risk of flight means. We wouldn't want to leave in the language about ensuring appearance because, again, that's capturing a set of circumstances that really doesn't have... doesn't necessarily have to do with the willful avoidance of court process. That captures a bunch of circumstances that low income defendants often find themselves in in terms of inability to get to court for a whole variety of reasons around transportation issues, childcare issues, job issues, problems with notification, things like that. So we want the part of the point of this is let's move away. Let's pull out all those things that are really just the circumstances of being a low income individual out of the judicial weighing and make sure we're really focused on what we're worried about, which is people who are trying to avoid court process and we fully acknowledge that is something that we need to... courts need to have the tools to deal with. And so mitigating the risk of flight from prosecution, we think is the way to do that with a definition that's either the one proposed here or something similar we think is a smart clarification. We're talking about the same willful action or behavior to avoid court process. I was thinking myself of somebody who's decided to enter into a treatment program. They're obviously not in court because of that presidential treatment program and I was just saying the thought process you were having... So your question would be would that fall within that? Would that fall... the way I'm reading it right now is any action or behavior to avoid court process. So if I enter into a court treatment residential treatment facility, technically we have a violation of that definition as I'm reading it. I don't think that's the kind of situation we want to have violating this particular group. Right. And I definitely agree with you on that. I don't think that's the type of behavior we're trying to capture here. I think, you know, if somebody's entering a treatment program like that, I think it's a reasonable argument that they're not doing it for the purpose of avoiding court process even if it creates conflicts of avoidance. So, yeah, that would be my initial thought on it, but I see the issue as something that we can perhaps try to write around. Turning to... And then so back to the old place of a vote argument, which we've had and discussed. This is on page four. Again, the place of a vote condition is an especially powerful condition in that when it's imposed, if an individual can't meet it, and usually it's just stepping back for a second as a practical matter what that usually means is prosecution asked for it, judge will say, okay, we're going to limit your place of a vote. Maybe you can't live where you've been living and you need to have somebody else come in and be able to state to the court that you're going to be somewhere else and they can attest to the fact that you're going to be somewhere else and that they're letting you stay there and they will report to the court if you're violating conditions of release or they're willing to report to the court if you're violating conditions of release. And that often has the very real consequence of holding somebody because they cannot meet the condition of release and it may not even be that they're held on bail in that circumstance, they would just be held because they can't meet the conditions of release. So it's one of the more powerful conditions of release in that it's very consequential. And I think it's often... I think the way that defendants and defense attorneys deal with it is usually to pretty rapidly find a place where they can go as best they can and have that person come in and testify but that will still potentially mean that they're being held for a night or two or three nights while they're getting a witness who can come in and testify. So it does have the consequence of having somebody be held. We think it's very reasonable, given that, to say, sure, for public safety reasons, of course, that this should be necessary. So we think that the definition and proposed definition on subsection B has enough carve-outs for the crimes that deal with danger to the public or danger to a specific individual to protect public safety. So we think it's a reasonable middle ground making sure that people aren't being held where there's not really a public safety concern or the place of a vote isn't being imposed but allowing it to be used or necessary. Can I just ask a question that may not be... So with regard to... You're talking about the person to come in and testify. Are you talking about the person who will house the person? That's right, generally speaking. Okay, so last night, believe it or not, he got a call from a grandfather who has, at his house, a 17-year-old who was charged with, I don't know, the exact charge that he hit his mother who doesn't live with this mother. In other words, this is the grandfather and the father of the mother. Anyway, he says his grandson hit his mother and he agreed to take him into his house, although I'm good. But then, somehow, the paperwork, who knows what's true and not true, but at three different times, he was asked by the police to keep signing a statement. One time they said they filed a two-blade, another one of them couldn't find it, and asking them to come to court on three different occasions. So he's pretty pissed off about having to sign this and nobody knows, and then the court had called him and said, you've got to be here tomorrow. And so he's like, well, why would I get arrested? The grandfather. Yeah, he goes, they told me I'm going to be arrested if I don't get them there. So he goes, why would I get arrested? Here, I'm trying to do something good here. So anyway, he's the witness that they're looking for, then. Okay, I get it. Did he sign anything? He had signed at least twice that he would get the kid there. And each time it got screwed up and they said, no, he didn't have to be there. And now there's a third time. He's not wanting to sign anything else. He's scared now that he'll tell them he would get arrested. But that's the witness that you're looking for who would get arrested. So that is an example of the witness we'd be talking about here. And I can't, you know, I don't want to speculate on that particular. No, no, no, no. But generally, yes, that's the idea. And in that particular crime, I would imagine would be charged as a domestic assault based on your description. I'm not certain, but that would actually, that would fall within the list of crimes that would be allowed to place a restriction under this proposal. Well, that's probably a good idea. It's all right. So what you're saying is that if you take out place of a vote there on the top, that there are enough provisions that relate to protecting the public for the safety of the public, that if that were necessary, if it were necessary to put place of a vote condition on there, it could be done under those other, under the protection of the public. Yeah, well, it would be done specifically under subdivision G, which is in this version crossed out under the state's attorney's proposal. And we're saying that if you take out place of a vote in subdivision B and add subdivision G set instead, that that would allow for sufficient tools as I described for the protection of the public. So that's the specific proposal. If you put section G back in, you have section G. That's right. But that would cover that. That's our contention, yes. Just take that situation of the guy last night. Okay. So that's not a listed crime, right? His crime of getting us another domestic. If it was charges of domestic, that is a listed crime. That is a listed crime. So I'm just to be clear, do you think you can take out place of a vote and still provide for adequate restrictions? Under this proposal, which does allow for the place of a vote restriction under subdivision G. So it's not entirely taking it out. It's just limiting the categories of crimes and what should be used. For which leaving it in or taking it out? I'd leave it in. And yeah, I mean, a proposal is to leave it in in part. I understand that, but I'd leave it in on feet. The state's attorney wants to unstrike G. No, I think their proposal is to say, forget about G. We don't need it because we're going to have place of a vote. Your proposal, is that correct? Our proposal would be to unstrike place of a vote and then you could, you know, G was added. G was added to kind of give place of a vote restriction in certain circumstances. Just say place of a vote can be restricted. We don't need G anymore. Exactly. That's right. It's a one or the other proposal between us. Yeah. Thank you. That's all. But I can answer any questions. So the rest of it you both agree to. That's right. Are there any other questions for David at this point? So just Greerson, do you have any comments on the proposals from the state's attorneys or do you have any comments on outfill or whatever you want to do? Okay. Happy to hear from you. All right. Thank you. Find out who confuses today. Well, I'm already confused sitting back there so hopefully I won't confuse you any more than I already am. For the record, Brian Greerson, Chief Superior Judge, let me at least start with the proposals that I understand from the state's attorney's office. Let me go back for a minute. In the House Judiciary, when we testified about this issue surrounding risk of flight versus non-appearance, one of the suggestions I had made that I think was in a draft at one time or another was to make it an alternative. In other words, keep the language non-appearance or risk of flight. I would still encourage that. But I would also, if that's not going to happen, then support the state's attorney's proposal to define risk of flight. His flight. That was why the definition was there. I had no to define that rather than... So I would suggest either continue to have non-appearance as it presently exists or risk of flight and then define risk of flight. I have been convinced after talking with judges this idea of having the state's attorney call the judge. I've had a considerable discussion with the judges and we would support the language proposed by the state's attorney that they would contact... The police would contact the state's attorney before contacting the judge and still allow law enforcement. So there'd still be that consultation but the state's attorney would... So we support that. Do you care whether it's either of them or can both of them call you after they consult with each other? No, either one could. But at a minimum we would want to make sure that the police have consulted with their state's attorney before they call us. But if the state's attorney chooses to call, that's obviously appropriate. My argument had been that we're dealing with conditions that release a bail and that's more properly a discussion between the state's attorney as opposed to police. But I, as I said, I've talked to a number of judges and we can live with this language but it wouldn't preclude the state's attorney from calling. The judge may never get called. That's true. If the state's attorney might say, well, look, this is not a bail. This happened four months at the allegiance and this happened four months ago. If they had no restrictions on the individual, why would we put them on that? Exactly. And they may decide that they're not seeking monetary bail. But if you remember 4-2, I believe, we had made one qualification that is its domestic violence. They will call at least four conditions released. So we're in support of that. I quite frankly have never really understood the concern about leaving the restrictions on including place of abode as proposed by the state's attorneys because I have not, it has not been my experience that that condition has been abused or there's been a claim that it's been abused and there are situations where apart from the conditions in Section G as proposed by the Attorney General's office, a situation where, for instance, a drug dealer living next to a school would not fall under a listed crime, but you may not want them to no longer live there. And I just don't see the need to restrict our discretion in that regard. Absent, you know, some claim that we have a pattern of abusing it. I would also support under their review of conditions the state following the material change and circumstances giving them that authority. And going back, my confusion was under the first page of the state's attorney's proposal where it talks about limitation on imposition of appearance bonds and going on to the top of page two because I think what's happened, they've gone back to the language that was in the bill as introduced and I was looking at as passed and I recognized that the bill as passed if you look at page, the top of page two as passed, that section I would agree is not clear. The idea was not to prohibit a request for monetary bail. It could be read as passed that bail could not be imposed or requested upon the temporary release of a person pursuant to rule five. I think the language that needs to to qualify that or clarify that would be if either the temporary release of a person pursuant to rule five be or at the initial appearance of a person. In other words, both of them should be qualified by eligibility for expungement and then that would not, that would seemingly clarify that provision. The state's attorney's proposal going back to the original language would also seem to clarify that. The court takes no position on whether you have a maximum amount of bail, whether it's $200 or $1,000. That's clearly a policy question. I'll take the bill for $100. We want to be clear that we are not precluded from setting bail when a call is made for temporary release. And I think... Senator Bennett, that's correct. Sure. Do you have any position on the request that we either provide you with information on that for David or a sworn statement or not? The source of that is the fact that if a person is going to be lodged, the police have to file an affidavit when they lodge the person. But I recognize that if the police are going to contact the state's attorney that there may be a delay. They're not going to know until after they consult with the judge as to whether or not bail is going to be set. So, again, I guess I've been convinced that it's not necessary, although my concern is that there is no record of what we've based a bail decision on the night before. That was the reason for requesting the affidavit. So, do you prefer the House as a past language or do you prefer the state's attorney's proposal? I'm content with the state's attorney's proposal as far as it goes with respect to having the police call the state's attorney. There are some judges, I will tell you, that feel that having that affidavit is important to have a record of what they base their decision on. So, I would encourage the committee to strongly consider that. I understand the downside of that request because of the time involved. But that is the only record. Otherwise there is no record of the basis for the decision. And that sometimes changes overnight. By the time we get into court there may be a different charge from us and that was the reason for it. So, I think it's important and many judges do. The other issue that came up in last week's testimony but I haven't seen any proposal, we spend a considerable amount of time in the House judiciary talking about the ability of someone to pay bail. And the bill is passed calls for us to consider that issue but not hold a separate hearing on the ability to pay. And we certainly would not want to see that hearing if it was. And I'm not sure if the ACLU is still advocating for that type of hearing. But the problems we saw were who has the burden of proof to show whether someone has the ability to pay, is it the state's attorney having to prove that they have the ability to pay or the defense coming in and we would not hold that hearing during an arraignment proceeding otherwise we would never get through the day. So, I would urge the committee to accept the language in the bill as passed which allows us to consider it but not hold a separate hearing on that issue. It's on page 4 under section D the language was added to the current statute to say upon consideration of the defendant's financial means. And essentially what that would amount to and I don't know that I have them here today all we receive on day of arraignment is a request for assigned counsel that's a best day one page after David. Would you like that back in? We would like to keep that as consideration without the necessity of having a hearing. So as passed we can live with that. We can consider it. That's our position. Okay. We'll add that back to the... What? I think I just want to keep it as... There may have been a proposal by the ACLU to create a separate hearing. It was. But I don't know. It's not how it passed so it's not what it was. Well, we can hear from the ACLU right after we hear from the judge. Do you want it in? I'm satisfied with the language as passed. What I do not... Yes. I do not want to suffer. I do not want to suffer. I do not want to suffer. I do not want to suffer hearing. You've never get out of the day. We've never get out of the day and what it would really require in my view is once we've set bail if the defendant then feels that we could... Well, we can also determine whether it's from a public defender of that hearing. Well, that... We have adjusted to that... It's a whole separate proceeding if you're determining ability to pay. It's a whole separate issue. And it would really require if we set bail for the defendant to then say, I can't afford this, have them file a motion and have a hearing at a later date on the ability. And that's why... Thank you. We'd like to stay away from that. And I believe those are all the comments. Does everybody understand the judge? I think so. Thank you, Judge. Thank you. Chloe, do you want to comment? Sure. Come on. I always have to get up. Chloe White, ACLU. So this is... I just saw this for the first time about ten minutes ago. We were very disappointed about the $1,000 max. I mean, the point of this is, for comparison, you have two people committed the same crime, say, shoplifting. Both shoplifting, you know, $200 worth of goods. One person can get... One person has money and is able to get out of jail and to pay bail and get out. The other one, hands. I mean, this is really... We're trying to look at, you know, disparities here and trying to fix those disparities. I mean, $1,000, that's a high bar. I'm worried that also putting $1,000 into statute might lead more judges to then start setting things at $1,000, even though it's a max, rather than right now, as the attorney general's office has said, you know, the $200, $300, which is the normal practice. We would prefer for the bill to stay as is with no bail. You know, but, you know, we certainly would oppose $1,000 max. That's very high. You know, I think also flight and prosecution, what the AG's office and state attorneys talked about seems all right, although I wouldn't mind unfortunately splitting in an infinitive but to intentionally avoid or avoid intentionally core processes. I think on page three, where it says considering non-appearance, we're supposed to consider non-appearances when considering bail, I again would want to emphasize that we wouldn't... I think considering non-appearances that are... I would say not willful attempts to avoid core processes would be a mistake. So ensuring that they're just... that considering... they're just considering the ones where there was a willful flight from prosecution would be better. And we'd support the AG's office on the place of abode restrictions. You know, I get it. Personally, I would rather the bill as is and, you know, than this $1,000 max. Regarding what Judge Grissin said, I don't know if we'd ever propose a separate hearing, although, you know, we would, in ideal circumstances, like a... like a thing in statute and trying to statute, saying you cannot impose bail that someone cannot afford. But, you know, I understand that not wanting to have a separate hearing I think something on the record saying, you know, we determined, even from this one-page affidavit for a signed counsel that this person could afford or can't afford might be... just written on the record might be useful, especially because it says the statute they must consider financial circumstances. So having a record of that required consideration might be good. But I don't think, you know, I don't think we're gonna... I don't think a separate hearing is going to be something that is successful here. But thank you. I appreciate it. Thank you. Thank you, Senator. So, as you might guess, we oppose the changes, which hopefully is... All of them? Well, we'll go through them one at a time. I think it's all of them. But we'll see if there's one in there that I missed. So I'll start on... I'll start on page 2, at the top of the page, it's subsection 2 under 7551B sub 2, which is the instatement of $1,000 maximum for the expungible crimes. Now, frankly, if you put that in there, you know, I think as a practical matter, you're just making no change at all. Right now, for those crimes that are expungement eligible, it's not likely that people are seeing bail set at more than $1,000 in the cases that I have had recently that I've done arrangements. I haven't seen anybody getting more than $1,000 set for an expungement eligible offense. That does not, however, mean that there's a whole class of people out there who have a bail set that they are able to reach. There's a lot of people who cannot afford $1,000 bail, they can't afford $200 bail, they can't afford $500 bail. It's a... frankly, as a matter of practicality also, $1,000 is an interesting number because at least in Vermont, that's the lowest that you can get a bail bondsman to post bail for. So anything under... just by way of example, the judge sets bail at $1,000 with $100 deposit to a bail bondsman, you can get $1,000 bail posted. If the judge sets bail at $800, which is less than $1,000, you can't get bail posted by a bail bondsman and therefore, you've got to find a way to come up with $800. Which is... Now, there's a difference there, which is if you post an entire $800 deposit and you don't... you get a trial and submit the sentence and you get your $800 back, you don't get your $100 back from the bail bondsman who posted your bail. But at the end of the day, as far as a barrier of affordability goes, if you set this cap, we're really just not going to change anything about the status quo. I think that it's important to recognize that even low bail, so the AG's office talking about $200, $500, the state's attorneys want to see $1,000, and I agree that it's good to see the state prosecution office is moving in the direction of wanting to see in statute a low bail requirement rather than our current sort of open-ended requirement. But at the end of the day, as far as a practical matter goes, it's not going to affect the thing. The same people who are currently being held for lack of very small amounts of bail are going to continue to be held for lack of very small amounts of bail. And, you know, once we get up over $1,000 that's more in line with, we're not seeing that imposed in these types of cases anyway. And I think that brings to sort of point number two about this $1,000 bail, which is that, you know, frankly from my perspective, setting bail for $1,000 or $200 or $500 is really you know, legally meaningless because the only reason we set bail is to say we want you to appear for trial. The idea being that if you have a substantial amount of money sort of in hawk somewhere that you are going to want to appear for your trial because you don't want to be out that money. You know, it's a balancing thing that we presume that a defendant says, man, I would totally like, flee and avoid this trial and, you know, accept that, man, I want that money back. Now, even my most indigent clients, and I have like the most indigent clients you can have, none of them have ever, you know, and I feel fairly safe saying this, none of them have ever said like, man, I would totally flee and avoid trial but I want that $250 back and I guess if that means going to trial, I'll stick around so that I get my $250 back. We're talking about, it's really, that's not the decision people are making, but the framework that the AGs and state's attorneys are asking for pretends that that's the decision that people make and so really what it is, is it's not a sort of legitimate request for, you know, a money deposit to ensure that somebody appears at trial, what it is, $200 bail on someone, is it is, you know, basically saying, if you don't have $200 you're going to go to jail. It has nothing to do with insuring appearance or not insuring appearance when you're talking about $200. And it doesn't, you know, for that matter, it doesn't have to do with that when you're talking about $1,000. I use $200 as an example but likewise, you know, there's not a lot of people out there who are saying, man, I would totally avoid this whole court process, but for, I want that $1,000 back. It's, it's Is it usually their money? Often it is, and if it's not, it's often relative to someone who do they care about, and that's, you know Or don't care. Or don't care about them. But so that's, that's to begin with that's why we would oppose that. As far as the definition of flight from prosecution, we think that's just unnecessary and if you include it, it's not legally meaningful because flight from prosecution is a constitutional term. It appeared it's gone back to Stack v. Boyle and United States v. Salerno and the U.S. Supreme Court has refused to define it. They say we're not going to, we're not going to say here is what flight from prosecution means. Instead what they say is they go through and they just, it's a case by case factual analysis. So circuit courts look at a case and they make a factual determination about, you know, is this evidence of risk of flight or is it not? You know, I don't think this is a terrible definition but at the end of the day, it doesn't matter because what really defines the question is how the courts interpret the language that appears in federal constitutional cases that have interpreted the 8th Amendment and bail provisions around that and you know, like I said, there's no definition we can turn to. They haven't provided us with one instead. It's kind of like due process. If you were to write into a statute you know in the last section the word due process shall mean blah blah blah. That's not really meaningful because due process is a constitutional concept and what matters is not how it's defined in statute but how it's been interpreted and applied by the courts. You can put any definition you want in statute but at the end of the day it's what the constitution means that matters. So does it inadvertently think of it in there? You know, I think it adds confusion. We end up in arguments about the constitutional applications of the word words risk of flight, which is what appears in Statue of Oil. It's what appears in United States v. Salerno versus the statutory definition that didn't really have a legal basis for it. It wasn't something where somebody was like pointing at a particular case and saying here's where we got that definition from. But I mean like, you know all the liars are still left out. Oh, I don't know about all the liars but public defenders will know. We have a chance. We have a chance. So moving on to the issue of the judges making phone calls versus the police making phone calls. You know, frankly we think it would be better if the judges are the ones contact, I'm sorry the prosecutors, not the police are the ones contacting judges for the setting of after hours bail. I think that's important for the for the same reason that it was part of the House passed bill, which is to say that there was recognition in there that the officers on the scene very likely have a different perspective on the case than the prosecuting attorney does, and that it's important to have an attorney make the decision about what the state's request is going to be, not the prosecution. As far as there being some problem with ex parte contact because a prosecutor makes the call rather than a cop, you know, frankly, I just don't buy that at all because if there's a problem with ex parte communication, it would be a problem if a cop consults with a prosecutor and then talks to the judge just as much as if the prosecutor talked to the judge on their own you know, we've got a lot of cases and an ethical rule to say that when there is a third party, like a cop, who is connected with one of the parties in the case, in this case the prosecution, that you are violating the rules of professional conduct, whether you do something wrong which, you know, the presumption here is that an ex parte phone call about bail would be wrong, which I don't actually buy, but if that were the case it would be just as wrong for a cop to do it in consultation with a prosecutor as it would be for a prosecutor to do it, because it's incumbent on all of us who are lawyers to ensure that anyone who is working at our direction isn't doing anything that violates the ethical rules. So, frankly, I think this is a question that if it were true that it was a problem for prosecutors to make a phone call to a judge, then it would also be true that it would be a problem for cops to, in consultation with a prosecutor to make a phone call to a judge. So, you know, we think it would be better for the prosecution to be making these decisions and making these calls, not the cop, and we don't think that this has any effect on any sort of anyone's ethical obligations or anything like it. And the affidavit, again, you know, has just said before if someone's going to be lodged an affidavit has to be filed anyway and we think it's important for there to be a record of how these after-hours bail decisions are made right now, you know, it's not a recorded phone call, it's not, it limits the ability of anyone to see how a decision was made and it's important to have that record. And so we think that the affidavit requirement is important just for that reason. And if we were not to have that then I think what we would suggest, if there wasn't going to be an affidavit requirement, it would be some other way to create a record of the proceeding. What that looked like, I think, you know, the idea was we're going to we're going to get rid of the affidavit requirement and we want you to come up with some other way to create a record. I have to think on what that would look like but whether it means getting some kind of a written decision, getting some kind of a recorded decision, getting some kind of an audio recording of the conversation, I'm not sure that's something I'd have to think about and probably talk with a few of the other people involved in this about what else could be used in substitution for the affidavit as far as providing some record of the reasoning for the decision. So the next one actually might not be a so this is 7554 A1 as well as any prior instance in which the person charged avoided court processes. That one I have to take a closer look at so this is page 3 about halfway down the page and that one I'm going to have to star and get back to you. We did not get these. It's on page 3 of what the stage attorney gave up. Sorry I was clear about that I should have referred to the right office. That one I'm going to have to get back to the committee on. We've only had this proposal on our hand for about 10 minutes now and this one I have to look a little bit deeper into so I'm going to skip over that one for now. We would agree with the AG's office regarding Place of the Boat they keep the as-pass language in and we would agree with the reasoning of the AG's office on that which is that there's already enough ways to provide the protection that people are looking for without putting in what really is probably the most restrictive condition of release you can put in which is a restraint on where someone can and can't live and we'd be happy to see that. As far as the last proposal goes which is including allowing the state to request a bail review we would oppose that right now the defense can request a bail review the state cannot that reflects a few things to begin with it reflects the fact that the state has longer with the case than the defense does the state has had time to prepare a bail argument at the time of the arraignment where the defense has not had that time the defense has generally just met their client and makes the best argument they can on the basis of the information they can get from their client in the hallway and that's why there is often a need for a bail review because you know it's totally different you can have a totally different outcome at a bail hearing when you have someone available to testify when you have information that you may not have in that first few minutes of having a meeting with your client and I think also it just leans in the wrong direction the point of this bill was to reduce the number of people that we are holding on bail and to try to free up some of those beds that are currently occupied by the detainee population and I think that allowing the state to move for modification which would presumably be used in cases where someone is not held and they seek to after the initial decision to have the person not held to then have them held really just gives them two bites at the apple and is contrary to the purpose of the bill itself and that gets to the end and I have to answer any questions or just sit down any questions thank you A.J. would you want to talk about making those questions or whatever you want to talk about okay I'll take that as an opening my name is A.J. Rubin I'm an attorney at disability rights from where we are your mental health ombuds people my staff does a lot of work with criminal defendants in prison and we're contacted a lot by folks with disabilities who are in the criminal justice system I'm here mostly today to respond to John Wallace's submission April 4th this committee regarding this bill he culminates his statement with a request that there be an amendment that would seek to reiterate or actually create a new right of a court to put someone in prison for the purpose of getting a psychiatric evaluation that's not the current law and we believe that would be constitutionally infirm Mr. Wallace was apparently very confused when he wrote this the law is that people are only held in emergency departments pending a psychiatric inpatient stay if the doctors think they're too sick to be released and bail really has nothing to do with it if bail is imposed on a criminal defendant and the court also worries the person be evaluated in a hospital but there's no bed that results in the person going to prison without adequate mental health treatment until a bed is opened I believe Dr. Judge Greerson has been working on solving that problem but the problem Mr. Wallace raises is simply not does not exist there's nobody who's being detained in an emergency department because of a criminal proceeding if they're being detained in an emergency department because they're too ill to be released and there's no bed so I thought that was really important to identify that the folks who need mental health care are not really an issue in this bail reform I would take the opportunity to say what you do you're saying the problem of people being held in emergency rooms is not one of correct, is not one of a criminal activity because there's a lack of space in a mental health facility the person who's being charged with a crime is before the judge and the judge wants to have a mental health evaluation that person could be held or could be released where would they go so the confusion Mr. Wallace had was that the statute says that a court would order a mental health competency evaluation for a defendant to be either in a correctional facility or in a mental health hospital what Mr. Wallace didn't get was that the judge can only order the person go to a hospital if a screener says they need inpatient treatment so if you're bailed so people only wind up in the emergency department if they are too sick to be released so a court, a criminal court never orders a person to be held in the emergency department that never happens there is an EE process which is like a civil system that doesn't involve a court but there's the emergency evaluation process the court is never saying you have to go to the emergency department and stay there until there's an inpatient bed what the court can do is say you have to have an inpatient evaluation and if there's no bed it's really not clear what happens what has been happening is if there's no bed the court will impose small bail and the person goes to jail and so there's a bed opening we've been litigating about that I believe Judge Pearson is trying to stop that it can't be held in the emergency department if the doctors think they shouldn't be released because they're not safe so when somebody this isn't related to the bail issue necessarily when somebody is in an emergency room in a hospital the judge decides they need to have an inpatient competency test they need to have a competency test so the judge is in criminal court there's an arraignment and the judge says I think you need an inpatient cop so they're not in the emergency department they're in court there's a guy or a woman in court who's a defendant the judge says you should be in a hospital for this evaluation if there's no bed the judges have been imposing small bail so that they can go to prison before there's a bed so the people that are languishing in the emergency room are not criminal defendants on bail have they been do they have any criminal charges against them? often not these are mostly people who have been picked up in the emergency exam statute where a doctor and an interested person sign a piece of paper and a police person can pick that person up and take him to the hospital then they have to be evaluated by psychiatrists within 24 hours if that psychiatrist says they really need to be held they can be held for three days and then the department of mental health has to file an AIT but they haven't been charged with anything necessarily not necessarily it may have been charged but if the court didn't impose bail then they would be free in the street if the court says you have to be in an inpatient hospital for evaluation and there's no bed the practice has been they impose some bail so they go to jail pending a bed I know they're going to stop that practice but I haven't seen that happen so there's nobody in the emergency room that has been charged with a crime on a criminal charge but ends up in the emergency room because they're just too sick to leave them on the street no that may be true I think what's not happening is there's no judge criminal court judge saying that no so when that person is there could they have that competency test then in the emergency room instead of at the retreat could somebody administer a competency test in a hospital emergency room most of the hospitals now have two or three rooms set aside for mental health patients could that happen? theoretically it could practically that it would not happen this is why so if a judge believes that someone's competency or sanity is a question about patient competency evaluation if that person is being held on bail because there are huge risks of flight that outpatient eval can happen in prison the fact is that the psychiatrists who do these competency evaluations are very busy and it's unlikely they'll be able to respond within a day or two in the emergency department these folks who are in the EDs because they're too sick to be released but we don't have the step down kids so we can't put them there because the bottom line though he's wrong there's no criminal judge that you have to stay in an emergency department I'm asking a question so I understand this if there were a bed available would a judge be able to order the person in to say the brow of the retreat without going through the screener no the statute currently says that they could the legislature changed the statute to say you can't order inpatient evaluation unless the screener approved I think it's 45 or 48 to 15G so the screeners are the control they are some control yes I did this one really quickly comment I was a public defender in Welling County for almost 10 years for 9 and a half years my experience having done criminal defense law is that the bail statutes are really for what Marshall was talking about therefore the risk of flight from the jurisdiction the idea is that if you're going to leave our jurisdiction we can't get you back bail should not be imposed for nuisance failures to appear when I was a public defender in Welling we had people on disorderly conduct on lawful mission cases who would never appear on court but they were hanging out at the shopping center these were not people who should be bailed these are mostly my clients with some mental health disabilities who just weren't showing up at court but everyone knew they can be arrested for bailing to appear you can go grab them bring them back but the question is should they be bailed should they be held because they're going to flee the jurisdiction they're not going anywhere so it's really important that bail be focused on people who are not going to stay in the jurisdiction but not be imposed for people who simply are hanging out on the street court who are not showing up so how about someone says I wouldn't want to watch my TV show I'm not going to go there so you arrest that person well if they don't show up for court they get arrested the question is do you put them in jail spend all of our money housing them and cause severe problems with them because you don't have time to spend in jail and more problems you get there are other ways to get them in the other thing I want to say is my clients get held on bail on small amounts of bail $150-200 because they're often on fixed income and these are people who are not going to leave the jurisdiction so there are pre-trial workers there's social work to be done but I don't think we should be filling the jails up with people who are simply hanging out on the street court but not wanting to show up for court they can be arrested and reminded but these are not people who are going to leave the jurisdiction and that's what they should be held for and I appreciate your time on that I didn't address the testimony last week and just to follow up the committee has five minutes I can just give you a quick summary of if you've got a thought then I'll take five so the way that it works out in the criminal process if someone comes into court and there's a question of competency whether it's raised by the court the state's attorney, the defense attorney we bring in a screener to do a mental health screening to the court they're brought in the only caveat to that is if that person cannot if the screener is not available within two hours the court can make the decision but generally speaking they're always available they come into court to do the screening it's only if that mental health screener says this person needs inpatient we cannot order an inpatient evaluation unless the screener says you need this person needs an inpatient evaluation we then go to the question as AJ pointed out the next decision for us is whether or not this person poses a risk of flight if they do not pose risk of flight and we do not impose monetary bail there are four designated hospitals by statute that we can direct this person to for an inpatient evaluation so if we impose bail if it's a risk of flight they will get that evaluation in the facility if we do not impose bail and we release them on conditions one condition would be you go to the nearest designated hospital not necessarily for the evaluation what they do initially is they bring in a psychiatrist to determine whether or not the person in fact needs an inpatient evaluation so it's a second review exactly but it's done by a psychiatrist now if that psychiatrist at the hospital says this person needs inpatient then that person is in the department of custody and it's up to them to find if they say no this can be done on an outpatient basis if the judge has done what they're supposed to have done they will have issued conditions of release that will allow the person to then be released from the hospital into the community so that first evaluation in the hospital is not a competency evaluation it is only to determine whether or not they in fact need inpatient I just want to be assured that this bill will not exasperate the problem of the hospitals having backups in their emergency rooms if I'm paraphrasing Mr. Wallace's concern was that we would have additional because of this bill would back up the hospital emergency rooms whatever the cause is it's embarrassing to have a legislature at least the other body never dealt with that problem this year putting it off another year in their capital bill so Vermont has a problem we don't have any place for evaluation we don't have any place to hold folks more mentally ill so some of them are ending up in the correctional system some of them are ending up in our emergency rooms will this bill exasperate that problem that's the question Senator I don't think it will but I will qualify that by saying that while I was sitting here I did get an email from the Department of Mental Health with expressing exactly that concern that this bill would exasperate that issue and I'm not sure why they feel that way but I think in talking with the state's attorney if I go back to that section I'm looking at the as-pass version on the bottom of page one and going on to two there's some confusion so that the top of page two there are some folks are reading that to say that we cannot impose bail on any person charged with misdemeanor that language needs to be clarified and I will work with both Marshall and the state's attorney general's office to make sure we clarify that may be where the fear from Department of Mental Health so I'll follow up on that email and find out more about their concerns it brings in that loop and Peggy when you schedule this for next Tuesday ask department whoever you want Department of Mental Health to come in and make sure we get this don't exasperate that problem and I will follow up on that because that's exactly it we'll make this up again next Tuesday committee is there a particular number on page I think that's it pardon me I said them a note asking oh okay all right is there a particular number so Bryn can prepare something a number what on page thank you on page two page two 25 let's think it a little higher than that do I hear 500? yes no thank you if you're talking about somebody who has a lot of money it's no problem it's only 10% right? no because you can't get a bail for under a thousand dollars so it's 500 dollars if you impose 500 dollar bail it's 500 they have to come up with it can be up to $100 but they still have to come up with $100 which is a lot of money for somebody who lives on to their mother and I don't know that bail bonds would write a bond for a thousand at 10% cost my understanding is my feeling is that 5,000 is the limit that's 500 dollars anything below that 25 25 to 200 225? no between 25 dollars and 200 dollars friend give us proposal A would be $200 proposal B would be a thousand we'll have to make a decision next Tuesday um and I any decisions on a boat I think we should take them out I'm going with a boat I'm going with a boat I'm going with a boat I'm going with a boat I'm going with a boat okay so choice A with a boat choice B without a boat looks like senator ass will be the deciding boat on both of those situations he is the decider well hopefully he gets fully immersed in this while he's sick