Vermont Legislature SmartTranscripts:

[Alice M. Emmons (Chair)]: Folks, we this is House Corrections and Institutions Committee. It's Wednesday, January 14, and we are back for our last bit of testimony on the day. We have with us our legal counsel, Hillary Chittenden Ames. I'll call you Hillary Ames.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: My dad will be sad if you drop the Chittenden. That's okay, both of them. I will say Chatter, not of any.

[Alice M. Emmons (Chair)]: I wanted to spend some time with the committee to give you a walk through of the current law of dealing with pretrial supervision. We really have to understand how that program is set to operate, how we want it to operate by statute, because there will be some recommendations coming from the council state governments for some changes. And I'm sure with the pilot project, the accountability court, the three b court in Chittenden County may raise some issues as well for the pretrial supervision. If it is to be expanded throughout the state, we only appropriated 600,000, not last session, but the session before. That doesn't do it. It's about a $1,300,000 program. So if we support something like this and we want to expand it to other counties, there is a cost to it to DOC, just to be clear. And that's what we have to balance. So I had Hillary go through the current law. And if folks remember, half the committee was here not last session. It was the session before that we put this program in place. The thing to remember, this is for folks who have been charged with a crime, and they go and be arraigned. And then the court releases them on conditions that could have bail, and they've made bail, or they're just released. This is not dealing with folks who have been incarcerated. This is not dealing with folks who have been sentenced. It's none of this. And currently, right now, outside of the Chittenden project, there is no supervision of the folks in the community. It's our local law enforcement that basically will know that someone's been released on conditions and what those conditions are. But the pretrial supervision program is, it has DOC folks do that supervision. And it was an attempt to beef up public safety for folks who are circling cycling through the, court system. So the folks have been charged. They go in for an arraignment. And then if the court releases them back into the community with conditions of release, this program is for DOC folks to supervise. So just keep that in mind. This is very different than anything else we've spoken about. That makes sense to folks? Okay. There you go, Hillary. Walk us through the law.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Right. For the record, Hillary Chittenden Ames, the Office of Legislative Counsel. I will go ahead and share my screen for those of you who are visual learners.

[Alice M. Emmons (Chair)]: And if we don't finish today, we can schedule Hillary back as well. Alright.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Alright. Went pretty smoothly. So Chair Emmons already gave you everything in a nutshell. Reminder that we're talking about pretrial. So this is folks who have been charged but who are awaiting trial. So not sentenced, not on probation. As Chair Emmons mentioned, the pretrial supervision program was created in 2024 as part of Act 138. So that act added section seventy five fifty five to title 13, establishing the program. Couple broad things to keep in mind, and then we'll jump into the details. Act 138 tasked the Joint Justice Oversight Committee with reviewing and recommending how to best use the contingent and limited funds for the program and where DOC should first implement the program. And Act 138 also included a prospective repeal of Section 7,555 in 2030. As Chairman has mentioned, pretrial supervision program is a condition of release. So when a court is thinking about whether a defendant can be released awaiting trial, court asks if they are of white risk and if there are conditions of release to impose before letting them back into the community. And that's what the Progile Subversion Program is. Only certain defendants are eligible to be placed in the program. So by statute, there are two categories of defendants that can be placed in the program. And that's defendants who are charged with violating a condition of release. So who have already been before the court, have had conditions imposed, who are released and then violate one of those conditions, then they are eligible to be placed in the program. Or defendants who have five or more pending dockets. And as Chair Emmons mentioned, DOC administers the program. Pause me at any time for questions, please. But we'll jump right into the details. So the statute sets out the purpose in 7555A. Purpose of the program is to improve pretrial compliance with conditions of release, help support providing pretrial services for defendants who might most need it, and try to decrease the potential for defendants to recidivate while awaiting trial. So that's the goal. I think you'll hear from other witnesses about how the program is being implemented and whether it is serving these intended purposes. As I mentioned, by statute, only two categories of defendants are eligible. So again, it is defendants who have already come before the court. The court has released them, but imposed certain conditions of release. The defendants have violated the condition of release. They come back before the court. The court can now modify their conditions of release to require placement in the pretrial supervision program. And the other category of defendants who can be placed in the program are those who have five or more pending dockets. So multiple cases.

[Alice M. Emmons (Chair)]: Let me just for clarity. Do people know what some of those conditions of release could be that the court would impose? We'll play popcorn.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: We can name one and I'll chime in.

[Troy Headrick (Ranking Member)]: Check another PO? No. Yes.

[Alice M. Emmons (Chair)]: That could be one. Yep.

[Shawn Sweeney (Clerk)]: No contact with a certain individual.

[Troy Headrick (Ranking Member)]: Substance use?

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Yes, substance use treatment. You can acquire participation in a program for substance for alcohol use.

[Shawn Sweeney (Clerk)]: Therapy? Electronic monitoring? Electronic monitoring

[Hillary Chittenden Ames (Office of Legislative Counsel)]: is one. And detention is could be. Yes. So the statute down the road. Yeah. So the statute talks about conditions of release in two ways. The default is imposing the least restrictive conditions that will make sure that someone shows up again to future court proceedings. They're not a risk of flight. So as chairman said, home detention, pretty restrictive. The court is going to look to impose more of the less restrictive conditions that will ensure the defendant comes back before they think about home detention. And the court also thinks about conditions of release to ensure the defendant shows up again before the court asks whether additional conditions might be necessary to protect the public. So the two things the court is asking when they're thinking about conditions of release are, first and foremost, risk of flight. Is the defendant going to leave and not come back for future court proceedings? Remember, it's pretrial. The whole point is the court wants the defendant to come back. And then second, the court seeks stop protecting the public. Brian?

[Brian Minier (Member)]: I think it's two remedial questions. One is the review of whether the defendant is appropriate. That doesn't expand the categories. It just is to say, does the defendant fit these categories? Do it still has

[Unidentified Committee Member]: to be the same five

[Brian Minier (Member)]: four or dockets or conditions.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Yeah. So we'll hop ahead to the next slide on placement in the program. There are three steps to actually having a defendant placed in the program. The first is that the prosecutor, the defendant or the court, so one of the parties or the court, can move to review if the defendant is appropriate for pretrial supervision. So your question was, is that review more than just are they eligible? And the answer is yes. Skipping ahead to the next part, after one of the parties or the court requests review by a motion, then DOC conducts a screening and recommends a supervision level. So the statute lists some examples of what supervision levels might include. So again, that's electronic monitoring. That might be daily check ins with a pretrial supervision officer. But the statute doesn't specify what vision levels are or say much more about how a defendant is placed in the program. And instead, it says that DOC needs to establish policies and procedures. So there's more about this at the end, but DOC has a policy that governs this, that sets out the levels of supervision, and that says a little bit more about the requirements for them to be able to supervise someone. So, for example, I learned this reading the DOC policy. Someone Someone has to be a Vermont resident with a Vermont address for DOC to supervise them. A DOC witness would be able to explain why, but that is apparently part of what they need to be able to do to be able to supervise someone. So the appropriate for pretrial supervision is what DOC is looking at or some of the things in that policy about whether that person is a good candidate apart from eligibility. So it doesn't expand it. They still have to be one of those categories set out in statute. But there are some additional things that DOC thinks about in recommending placement in the program and what supervision level might be appropriate.

[Shawn Sweeney (Clerk)]: Troy?

[Troy Headrick (Ranking Member)]: I don't know if I recall this conversation. And it might be more for the chair. I'm trying to remember why DOC became the screener and the supervisor. And maybe the answer is as simple as because they would otherwise be detained. But the courts are still making that decision as to whether or not somebody is going to be held without bail. So this feels more like a court screening than a DOC screening. Does anybody remember why DOC was I

[Alice M. Emmons (Chair)]: think because we're asking DOC now to do supervision that they haven't done before.

[Troy Headrick (Ranking Member)]: I'm asking that question, too, is why is DOC supervising these people who haven't been sentenced?

[Alice M. Emmons (Chair)]: Because there's nobody else to do it. Because the court doesn't have any employees. The court doesn't do any supervision. So probation is a sentence from the court, and probation is under the court. So if there's a violation, it goes to the court to make the decision, but it's our PMP office that supervises them. In other states, there are court folks who supervise folks on probation. So this is expanding the world supervise of what DOC supervises. And they already do some evidence based screening as well. And I think for the supervision level, I think it was also working within their capacity as field offices and what they can really do for supervision.

[Troy Headrick (Ranking Member)]: Were they a willing participant? I can't remember.

[Alice M. Emmons (Chair)]: They were, yeah. They were concerned about the cost and they were concerned they couldn't do it in the current workforce that they had. So it's the expansion of having to have one or two supervisors of this in the state and then beefing up their PMP offices.

[Shawn Sweeney (Clerk)]: Kevin? Can an individual be in the pretrial supervision program more than once? In other words,

[Alice M. Emmons (Chair)]: they violate They've got if have if they keep violating and it escalates,

[Brian Minier (Member)]: then

[Alice M. Emmons (Chair)]: they get tighter and tighter supervision until a point that they may be pulled into being a detainee held for sale.

[Shawn Sweeney (Clerk)]: So they can. Okay.

[Alice M. Emmons (Chair)]: They can escalate in terms, I believe, if I remember correctly.

[Shawn Sweeney (Clerk)]: But then I get maybe you're gonna ask that, what's the value of the program if you can violate it multiple times? I would think that if you're released on conditions and you fail to meet those conditions, then you would be held.

[Alice M. Emmons (Chair)]: Doesn't work that way. I hear you. Even now it doesn't work that way. And there's no supervision in the community, right? I think it depends what you committed as well. If you violate a condition of release, it's very different than creating a new crime.

[Shawn Sweeney (Clerk)]: Oh, no. I understand that. Yeah. Okay. And

[Hillary Chittenden Ames (Office of Legislative Counsel)]: that might be a question that a future witness could speak to in more detail, how they see and practice this working out, what kinds of violations they often see. They might be able to give you some examples of how that plays out in practice. But I think those questions are leading us to the next slide. I guess quickly before we move on, just remember that for placement in the program, there are these kind of three steps. One of the parties of the court has to move for the review. DOC has to do the screening and make a recommendation and the court has to hold the hearing. The court has to actually decide that this is an appropriate condition of release. So it will ensure that the defendant shows back up in court or will reasonably ensure production of the public. If the court imposes it as a condition of release, then it is to DOC to administer the program. So a DOC free trial supervision officer supervises each defendant. So they're the ones who will be having the weekly calls for the defendant if that is part of the conditions of release. They're the ones with the regular contact. They're the ones monitoring whether the defendant is complying with the conditions in the program. If a defendant violates program conditions, it's the pretrial supervision officer who notifies, first, the prosecutor by statute. So in the statute, the pretrial supervision officer notifies the prosecutor and does their best, makes reasonable efforts to notify the defendant. So the pretrial supervision officer does not go directly to the court, even though, ultimately, if the court has imposed placement in the program and conditions, the is the buck does stop with the court. But it's the pretrial supervision officer that first notifies the prosecutor. If the condition is imposed by the court, so when the court is setting conditions of release, places the defendant in the program as a condition, and might set other conditions related to that. If it's a condition imposed by the court, then the pretrial supervision officer has to tell the prosecutor if the defendant violated the program condition. There are also some conditions, kind of administrative conditions imposed by DOC as part of administering the program. And if a defendant violates one of those, then the pretrial supervision officer can, but they don't have to notify the prosecutor and the defendant.

[Alice M. Emmons (Chair)]: So that's not related the DOC one is not related to the conditions of release that the court has set. It is related to DOC administering the program. So there's confusion. I lost.

[Shawn Sweeney (Clerk)]: Before this legislation was passed, if you violated your conditions, what happened? Did you just get another chance with tighter conditions or were you detained? Neither?

[Alice M. Emmons (Chair)]: It may not have been found violated your conditions because nobody was supervising them in the country. So

[Hillary Chittenden Ames (Office of Legislative Counsel)]: there are two provisions. There's 70 fivefifty five, which is what was added in 2024 and created the supervision program, which is one condition of release. There's another provision, which is seventy five fifty four. It comes right before that sets out all of the conditions of release. So I get that we're using the word conditions in two places to mean two different things, which is why you are very reasonably Confused. Confused. The conditions of release are all of the kinds of requirements the court can impose. Placement in the program is one of them. But like we talked about, there are others like undergoing treatment or home detention is the most restrictive. But that's another example.

[Alice M. Emmons (Chair)]: That's a whole different thing.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: So those are the conditions of release. Here, we're using the word conditions to talk about requirements inside the program. So the pretrial supervision program is itself a condition of release, and there are some requirements that specify what you have to do as part of being in the program. And that's what we are talking about when we say the defendant violates one of those internal program conditions, then the pretrial supervision officer is telling the prosecutor that the defendant violated them.

[Alice M. Emmons (Chair)]: So let's just take a step back to what's happening in all the other counties in Vermont right now. There's only one place that this program is playing out, and that's in Chittenden. All the other counties do not have this program. So someone is arrested locally. They're arraigned. Okay? The court decides to release them with conditions. Could be you stay away from the victim. You don't drink, you don't whatever. You have curfew. There is nobody in the community that is supervising that person right now. Okay? The person's released. They're accountable to the court. There's no one in the community who supervise. They may be violating something. And until that comes up to the top of local law enforcement, and then they realize, well, there is a condition of release for this person. Sometimes law enforcement local, will know that there's conditions of release, but local law enforcement isn't supervising them. There's no supervision of these folks in the community right now. Okay? So they could be violating their conditions of release left and right. Nobody knows about it until it comes up. And this is current. This is what's happening in all of our counties.

[Brian Minier (Member)]: It's picked up. There's something in the report. Say, by the way, Johnny Smith Yep.

[Alice M. Emmons (Chair)]: If they

[Shawn Sweeney (Clerk)]: picked him

[Alice M. Emmons (Chair)]: up. Right. And then that triggers them going back to court. But unless they're found out, k, that's current. So we were concerned about public safety, and we were concerned about people getting a slap on the wrist and coming back. So we said, well, let's do a little bit more supervision. So it's DOC. So we've established this pretrial supervision program as a condition of someone's release, that you're part of this program now. So what it's going to do could be a variety of things. It could provide more public safety because people are being monitored out in the community right now by DOC if this ever got expanded statewide. But it's really going to pick up those violations, which then could trigger the person being held in a correctional facility. So you're your detainee numbers because now they're being picked up.

[Shawn Sweeney (Clerk)]: Okay.

[Alice M. Emmons (Chair)]: Okay?

[Shawn Sweeney (Clerk)]: Yeah. That'll help them. Thank you.

[Alice M. Emmons (Chair)]: So you have to understand what's happening now across the state and what this was an attempt to do. That's what threw me off. If you tell your kid, don't take that candy, but you never watch them,

[Shawn Sweeney (Clerk)]: what do you expect them to do?

[Alice M. Emmons (Chair)]: They're gonna take the candies.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: I take the candy even if watched. Yeah. But And

[Brian Minier (Member)]: some people will take the candy even if they're not watched.

[Shawn Sweeney (Clerk)]: You know some rare people.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Mine was just a comment on my love candy. Any other questions about administering the program? What happens when a through child supervision officer knows that a defendant has violated court bearing conditions. So the key thing to remember here is that the pretrial supervision officer does not go directly to the court. The statute doesn't say the pretrial supervision officer can themselves file a motion in court or go directly to the court to say defendant violated the conditions. The pretrial supervision officer is to the prosecutor, but they also have to make reasonable efforts, try their best, to notify the defendant. Alright, as I mentioned before, the statute spells some things out, but there are a number of details about the supervision levels and how the program works that the statute doesn't specifically say. So the statute does require that DOC establish written policies and procedures for the supervision levels, evidence based criteria for each supervision level. The evidence based criteria is in the statute as a requirement. And then the means of contact that are appropriate for each supervision level. So that's all in DOC policy that outlines how DOC reviews, screens, and assesses supervision levels. So it's not in a statute, but it is in DOC laws.

[Alice M. Emmons (Chair)]: So DOC has a lot of directives, internal directives. It's probably about this thick. Internal directives, and it's called their directives and policies, that implements state statute and implements their practices. And that's where the rubber meets the road. You can lay out in broad scope statute, but it's those directives and policies that carry you through. And there could also be actual rules that's different than that. Correct.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: And the key is that the statute authorizes DOC to establish and, in fact, requires that DOC establish those policies and procedures.

[Alice M. Emmons (Chair)]: We're not experts in terms of doing the minutiae to how to technically implement a program.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Yes, it is a common legislative device to say, here's the guidance, Agency, use your expertise to decide how this should play out within the confines of what we told you in the statute. Alright. We're almost at the end. There are two more.

[Alice M. Emmons (Chair)]: It's one committee to understand this program. And

[Hillary Chittenden Ames (Office of Legislative Counsel)]: thankfully, Chair Emmons has great knowledge about the context for this particular bill, among many other things. So funding introspective repeal, I mentioned this at the outset. The statute provides contingent funding. It says the program shall operate only to the extent funds are appropriated for its operation. And if the program is not operating in a particular county, which it's not, it's not operating in many counties, courts shall not order pretrial supervision as a condition of release. So a court can only order this if the program is funded and operating in the county where court is ordering it. Act one thirty eight in creating section seventy five fifty five also included a prospective repeal. That's a way for the legislature to say, please come back and review this. We're building this in. So unless the legislature takes action before 12/31/2030, section seventy five fifty five will be repealed and there will not be a program. But again, prospective repeal is a way to build in to legislation, a reminder to say, please come back, review, see how that's working, take action as well.

[Troy Headrick (Ranking Member)]: How has that tracked?

[Alice M. Emmons (Chair)]: Well, we haven't expanded it yet. So we started out really small. We were very clear that we weren't getting fully funded. Fully fund at that time was about 1,300,000.0. And in this conference committee and appropriation, they found 200,000. So we wanted to be very careful in how we rolled this out because it was brand new. We knew it was gonna put pressure on DOC. We weren't sure how many people going through the court system would qualify for this. So we didn't wanna inundate corrections and our budgets. So we said, let's start small. And then as it expands, the legislature will know about it because we need to appropriate more money for it. And then this committee, of course, oversees DOC. So this would be an item that we keep tabs on. And we put in a sunset because is this program going to work? Is it putting too much pressure on DOC? Is it increasing our detainee population? Is this program not working at all? And why leave it on the books? So by doing a sunset gives you an automatic review.

[Troy Headrick (Ranking Member)]: Okay. That's

[Alice M. Emmons (Chair)]: why we did it.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: All right. Final slide. Short one. We already mentioned most of this. The Joint Justice Oversight Committee was tasked by Act 138 with making recommendations about how best to use funds, where to first implement the pilot program. The act set a deadline for the committee to do that. Consistent with that, the committee recommended that DOC first implement the program in Orleans and Essex Counties. I understand that it has since been shifted into Chittenden related to the accountability court docket. But I think other witnesses will, at some point, be speaking more to those details.

[Alice M. Emmons (Chair)]: I think, too, one thing that we should also look at as a committee is understand the progression of this pretrial supervision. And I would be talking with DOC about this, but the way the statute is structured, a person comes through the court, court sets up conditions of release. DOC doesn't do monitoring day in and day out. Could be a check-in once a week, that type of thing. There's violations that occur. It goes back to the court and the court could then put on a little stricter violations. And then eventually they could put electronic monitoring as part of a condition for this. So there's steps there that increase the amount of supervision. And that came at the request of DOC for that. So it would be good for us to get DOC in to really talk and look at the statute itself and how it plays out for that. Also, the Council of State Government is gonna make some recommendations on this.

[Troy Headrick (Ranking Member)]: How did they get involved?

[Alice M. Emmons (Chair)]: The DOC went out, contracted with them to just kind of look at the pilot project and that's absorbing. And there's some restrictions to this program that's limiting the number of folks who can participate. So they may have some recommendations to change that. The other thing that they're going to recommend is if there is a violation of a condition in this program, if there's a violation of one of those conditions of release, it's the correctional person, the PMP person, that files that with the prosecutor. And the prosecutor may or may not proceed to go to the court with that violation. That's gonna be up to the state of state's attorney to determine what they do there. Council of state governments is recommending that DOC goes directly to the courts. That's gonna be an issue. But that's what they're recommending. So in order for us to understand what council state governments is recommending, we really have to understand the pretrial service, the pretrial supervision program first. So that's why I want to spend time with the committee to really understand that pretrial supervision program and all the lit There's a lot of little nuances to it for them. I'd like to spend It might be good to spend a little bit more time next week with DOC on this. And Hillary should be in the room, too, for that. And it might be handy to have state prosecutors. It might be 10 rulers, Dumont, and the judge because those three are playing together.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: So hopefully, the handout can be a reference about what the statute provides. And then other witnesses will be able to speak more to how the program has been

[Alice M. Emmons (Chair)]: implemented and how it works. So the statute totally is in Title 13. There's nothing in Title 28. Right?

[Hillary Chittenden Ames (Office of Legislative Counsel)]: Not for it's all in Title 13, which is our criminal justice supports. So as you mentioned in the beginning, a lot of what the committee has been talking about is in title 28. So the parole board is in 28. Probation is in 28. That's corrections. But the prejudice supervision program, because it's a condition of release as part of bail, is in title 13 with the other Brian Seymour procedure.

[Alice M. Emmons (Chair)]: That's a good way to end the confusion of the day. Right?

[Shawn Sweeney (Clerk)]: So

[Alice M. Emmons (Chair)]: we've had a full day. I do want to spend some time. Thank you, Hillary. You'll be back. You'll get to know us really well and vice versa.

[Troy Headrick (Ranking Member)]: Are you in Burlington?

[Hillary Chittenden Ames (Office of Legislative Counsel)]: I'm in Montpelier.

[Troy Headrick (Ranking Member)]: You're on in Vermont is what I'm asking.

[Hillary Chittenden Ames (Office of Legislative Counsel)]: In Vermont full time. Yes.

[Alice M. Emmons (Chair)]: She's here. She's not on Zoom. Thank goodness. So we'll spend some time tomorrow. I'm gonna spend some time tomorrow to digest what we heard this afternoon and also to talk through a victim notification issue. And Kevin and Shawn, you're meeting with Trevor morning?

[Shawn Sweeney (Clerk)]: Or No.

[Alice M. Emmons (Chair)]: Noon because

[Troy Headrick (Ranking Member)]: He suggested noon. Did you get that on

[Alice M. Emmons (Chair)]: your text?

[Shawn Sweeney (Clerk)]: I'll put it on here.

[Alice M. Emmons (Chair)]: We have we as a committee need

[Shawn Sweeney (Clerk)]: on that right here. Right.

[Brian Minier (Member)]: Hold on.

[Alice M. Emmons (Chair)]: Hold on. We're

[Shawn Sweeney (Clerk)]: on YouTube.

[Alice M. Emmons (Chair)]: We do need to weigh in on the $8,000,000 proposed increase for WellPath. And we need to give our recommend to the House Appropriations Committee. The other thing we need to spend some time on, I hope we have some time this week, I gave Tate Folks remember, House government operations always takes a yearly look at all reports that are coming back for respective committees. We got a list of reports that we need to look at to determine, do we want to continue getting these reports or say, we're not looking at it. We don't need it. Let's get rid of it. So we've gotta go through that exercise. Tate has that sheet with a list. So we've gotta do that soon too. Okay? Yeah. Go ahead. It's the end of the day. Let's go home. Okay. So let's go out. Some of us had meetings.