Vermont Legislature SmartTranscripts:

[Kevin Winter (Member)]: Good night. It's George.

[Alice M. Emmons (Chair)]: Hey. Welcome to NAPQUOTES. This is House Corrections and Institutions. It's Thursday, March 12. We are looking at House four nineteen, house bill four ten, which is in house judiciary committee. But they are looking at a piece that pertains a little bit to corrections, which is the definition of recidivism, which currently is in, 28 BSA, which is the state statute title that pertains to corrections. So the definition itself is being changed, and the placement of where that definition is is changing to title 13, which is your criminal justice title. It doesn't deal with corrections in that title. So we have Michelle Childs with us, who is legislative counsel. So Michelle, I'm going to turn it over to you. If you could introduce yourself.

[Michelle Childs (Office of Legislative Counsel)]: Good morning. So for the record, Michelle Childs Office of Legislative Counsel and the chair gave you a great little synopsis of what's going on with this proposal. And if you'll recall, I think I was here

[Alice M. Emmons (Chair)]: weeks ago, two and three. I don't

[Michelle Childs (Office of Legislative Counsel)]: know, it's all starting to blur together at this point. But we talked a little bit about the existing definition in Title 28 of recidivism, how that was adopted a number of years ago prior to Justice Reinvestment I. And it was a definition that was being used by some other states. Working with CSG, Vermont decided to adopt that definition. But it's a rather complicated and clunky one. And I think, I know house judiciaries heard testimony, and I believe you've heard some testimony, it's not something necessarily that folks are really using. And so I think there's been a strong interest in having a more flexible definition and one that is easier for people to understand and to use and that will be more helpful in getting you the data that you need. And so what House Chittenden decided to do is they are basically creating a new chapter in Title 13. So Title 13 is Crimes and Criminal Procedure. And so they're creating a new chapter there where we can start to put all of these types of study and data collection, all that stuff, because it's kind of a little scattered through the statute. So you have some things that are in Title 20 in your public safety title. You have a little bit in Title 28. And the idea is that maybe we're going to start to kind of pull everything together, make sure there's not unnecessary overlap in some of the studies and analysis, and really kind of help you target the information that you want. And so the House History Committee is working with CRG on the language. So they've been partners with the committee on that and have signed up on this. This the Crime Research Group. And I know you've had probably Monica and Robin in before, and they are the real you're now probably watching. They are the experts on that. So if you look at this and have questions about certain types of studies or how they do that, you're going to probably have to ask them about that kind of stuff. But I'll review the language with you and I'll share my screen. Okay, so you can see this is a strike all amendment to H-four 10. And as I mentioned, so Section one is just creating a new chapter in Title 13, where we're going to start to have all these, different statutes relating to, assessing criminology measures. And so the first thing in there, and we've only got one definition so far in this chapter, and you'll see it's a new definition of recidivism. And so here it says that recidivism means a relapse into criminal activity as evidenced by an individual who was convicted for a criminal offense after receiving a criminal conviction for a previous crime. So it's a much more kind of plain language, simpler definition than the one that exists currently in Title 28. And it's kind of like, what do you think of, which is like, you've been convicted once and then you're convicted again, right? So the next sentence is talking about how you calculate. So the date of the recidivism event is the date of arraignment for the subsequent offense. So when they're going to look at that and how they track that, because you think there's not an easy way for them to look necessarily at when they're doing the data compilation of the date of offense, but it's easy for them to look at the record and see the arraignment date. So the arraignment date is the first time that the defendant appears before court and there has to be a finding of probable cause for the case to continue. But you're still It has to be conviction and a conviction. But that point, that date, because you're gonna term it, because you're gonna say from what was three year or five year or something like that, they're gonna use the arraignment date.

[Alice M. Emmons (Chair)]: That's when the clock starts.

[Michelle Childs (Office of Legislative Counsel)]: Yeah. Well, you have the conviction. You have You have the conviction, right? And then the clock starts. And if, let's say, if you're looking and saying it's a three year look. So here's a conviction on 01/01/2020. So if there's an arraignment and probable cause is found for a subsequent offense and it's within three years, then it would qualify.

[Alice M. Emmons (Chair)]: So it's the arraignment of that second conviction that makes sense for the based on when that first conviction is.

[Troy Headrick (Ranking Member)]: But it's after release for that first conviction.

[Alice M. Emmons (Chair)]: We're not there yet.

[Troy Headrick (Ranking Member)]: Well, okay. I just, I wanna be

[Alice M. Emmons (Chair)]: clear so people understand. Okay? So, someone's been convicted of a criminal offense. Okay? They're on probation. They're on probation. They have a sentence. Conditions of releasing that probation. And one of those conditions is are supposed to be in by a certain time in the evening, by 11:00. Okay? They haven't made that curfew. It's a violation of the condition of release. Is that violation something they would go to an arraignment for to be convicted of a criminal.

[Michelle Childs (Office of Legislative Counsel)]: Unless it well, not unless it's a new crime.

[Alice M. Emmons (Chair)]: No. It's not a new crime. It's a condition of release. Mhmm. The condition of one of the conditions is the person being on probation. They just are violating the condition of meeting curfew. They're not creating anything. They're just violating that condition. And they're cited for that.

[Michelle Childs (Office of Legislative Counsel)]: Now, there has to be two convictions. So that's the first thing you need. Right? You have to be convicted once, convicted a subsequent second time. Okay? The point that for the first offense, when the clock is going to start ticking is as Representative Headrick mentioned. You'll see the highlighted language, and that's the new language that judiciary They've looked at all of this, but this is something that they haven't seen yet. And that's where the clock starts is the date that an individual is released from incarceration. So conviction, if they're sentenced to an incarcerative setting, let's say, serve a year, that date that they're released, then the clock starts to tick. Right. Or if on the date that they're convicted, they're sentenced to probation. So it's not an incarcerative sentence. That starts from the time that they are sentenced to that probationary period. Okay. So that's when the clock starts, then they're going along and they are subsequently convicted of another crime. And then they would measure not to the date of the second conviction. They would measure to the date of the arraignment for that second conviction.

[Alice M. Emmons (Chair)]: So what I'm trying to get at is there's some confusion in this committee at times. So when there's a condition of release, that that could be calculated as recidivism. And conditions of release are conditions that are set by the court. And it's not always a criminal activity when they violate a condition of release. Correct? Correct. That's what I'm trying to get at. There's some confusion.

[Michelle Childs (Office of Legislative Counsel)]: This definition is just for purposes here. And know that you can always be using different parameters requesting a study or requesting information from CRG or putting something in here and say, for these purposes, we want this kind of information around folks who are violating conditions. But for purposes here, we're talking about convictions for criminal offenses. So recidivism is just gonna be, you have been convicted at least twice. Kevin, you had your hand up before I interrupted everything.

[Kevin Winter (Member)]: I got it now.

[Alice M. Emmons (Chair)]: Got it? Because the conditions of release is what people were Yeah. So it's a new conviction, a new crime. Yep.

[Kevin Winter (Member)]: But not necessarily a different, the same crime. It could be any crime.

[Alice M. Emmons (Chair)]: Correct. So

[Michelle Childs (Office of Legislative Counsel)]: next section in this new chapter, this is requiring some annual reports that are going to look probably familiar to you. I think what it is Act 140 from a couple years ago when you did some justice for the investment work. And so in this new section, it's requiring some annual reports annually. So it's going to be every year. What you have, I think, in title 28 on the justice reinvestment is every three years. And you had one in 2024. We don't remember any of those. Okay. Well, these will be every year, every spring. The Vermont Statistical Analysis Center, which for Vermont's version of that is CRG. So it's Robin and Monica. So I'll submit the following reports to the House and Senate Committees on Judiciary, Committee on Corrections and Institutions, and Senate Committee on Institutions. And then there's a few on page two that are specifically designated to just kind of get the ball rolling and start. And the chair and House District thinks we're going to kind of build on this as we kind of assess what kind of information you all need to be doing your work. The first one is bail rates. And so that is a annualized report on bail rates, including pulled without bail, monetary amounts and bail posting information aggregated by county. And the report shall include data on pretrial detainees held in Vermont correctional facilities, including the prime type and jurisdiction for which they are held. The second one

[Alice M. Emmons (Chair)]: is That I would really encourage that we do because that is very, very important information because

[Kevin Winter (Member)]: a lot

[Alice M. Emmons (Chair)]: of folks feel that the bail amounts are too high that people can't afford can't afford the bail. And it it's just really information good information to know the breakdown of folks who are detainees who are being held without bail, in those monetary amounts because they're not it's a different when you look at that data, you walk away with a different impression of what's going on.

[Michelle Childs (Office of Legislative Counsel)]: So the next one is on recidivism. So a report on the annual recidivism rate using that new definition, so we're only talking about convictions, that measures individuals who are convicted of a criminal offense after receiving a criminal conviction for a previous crime. And then here, the recidivum rate shall be calculated using a three a five year kind of look back. Okay, so those are the periods they're gonna take a look at.

[Alice M. Emmons (Chair)]: So what's the difference between a three year look back and a five year look back? What? Is it just data? I know it's

[Unidentified Committee Member]: two years.

[Michelle Childs (Office of Legislative Counsel)]: You wouldn't have to ask CRG. I will say that that in I'd have to look if that's in the title VA, but that came from CRG. So I think that that is a standard measure that they use. As to why they use that, I don't know.

[Alice M. Emmons (Chair)]: The way we already have it is

[Kevin Winter (Member)]: But I asked the question a different way.

[Alice M. Emmons (Chair)]: Yeah. It's a three year cycle If we

[Kevin Winter (Member)]: you re offend six years after your initial

[Alice M. Emmons (Chair)]: Conviction. Conviction. Yeah. Then you wouldn't be

[Michelle Childs (Office of Legislative Counsel)]: captured in that data.

[Kevin Winter (Member)]: Wouldn't be considered a

[Michelle Childs (Office of Legislative Counsel)]: Cynapist. In that particular report.

[Kevin Winter (Member)]: Yep. Drop off. We no longer consider that a Yeah. That's what I'm hearing. We wanna know three, we wanna know five, but after that, we don't care.

[Michelle Childs (Office of Legislative Counsel)]: I don't know that I

[Unidentified Committee Member]: I would say we don't care.

[Kevin Winter (Member)]: Well, if you don't get the date, you obviously don't care. I mean,

[Alice M. Emmons (Chair)]: if you wanna know a 10, well, I understand what

[Kevin Winter (Member)]: you're saying, but we're saying we've watched long If there's a re offense, how else would you capture that? What I'm saying. Understood. That's the question.

[Alice M. Emmons (Chair)]: When you're looking at the rate of recidivism, you're not saying the person didn't recidivate or create a new crime. You're just looking at the rate of recidivism. That's what you're looking at. It's a recidivism rate. You're not saying that that person is not recidivated, didn't create another crime. It's not what that language is saying. It's talking about the rate. Do we have a 30% rate of recidivism? Within a certain period Right. Of

[Unidentified Committee Member]: I do.

[Alice M. Emmons (Chair)]: Certain period of time. But is that period of time a three year cycle or a five year cycle? That's what that looks confusing to me.

[Michelle Childs (Office of Legislative Counsel)]: And for that, I would say just you need to talk with CRG about understanding or I can shoot them an email or they're probably listening and will shoot me an answer.

[Alice M. Emmons (Chair)]: Is that clear in terms of the calculations of what it's used for or not? It's clear to me. I'm just trying to explain why three and five, but it's not three, five and seven. After five years, if you reoffend, we're not publishing that information. Is that another way to say it?

[Unidentified Committee Member]: Yeah. I'm not down the hall. And so it would be hard for me to explain what I think it means. But if you re offend like ten years later, it's probably not necessarily connected to the original or any rehabilitation you've had in the facility. It just after you get so far out, the causality or the whatever doesn't seem to be there. I don't think it's a matter of not caring. It's whether or not it's relevant to the specific thing. And that's all I was

[Kevin Winter (Member)]: trying say. The reason I used the word care is if you care, you're asking for the information, but we're not asking for the information after five years.

[Troy Headrick (Ranking Member)]: But again, would draw a distinction like it's which data are valuable and somebody somewhere decided that three and five is valuable or maybe 10 doesn't tell you something.

[Unidentified Committee Member]: Don't I think that's not caring. Think it's

[Troy Headrick (Ranking Member)]: saying that's not valuable in the same way.

[Kevin Winter (Member)]: Different way it's saying

[Unidentified Committee Member]: it's not valuable.

[Alice M. Emmons (Chair)]: Let me throw in a curveball So to a person has been convicted of a crime. Six years later, they're convicted of another crime. Court records, unless it's been expunged.

[Michelle Childs (Office of Legislative Counsel)]: Because I don't wanna give you There's no more expungement.

[Unidentified Committee Member]: Yeah. Well Except

[Alice M. Emmons (Chair)]: for the knows that there has been a previous sentence. Yeah.

[Michelle Childs (Office of Legislative Counsel)]: There's no it's all public information. It's all out there. There's nothing that if you subsequently wanted to ask CRG for information and say, I want a ten year look back for whatever purposes, there's nothing preventing you from doing that. This is talking about just in the context of the annual reports. What has been advised is my understanding from the experts that work with the data is that the information that's most valuable, that tells you the information you need around recidivism, what is working, what's not working, is a three to five year look back. And then once you get past a certain point, if someone has gone beyond five years and not recidivated, then it is less valuable knowing that. And also the instances of recidivism really drops significantly as well, the longer someone goes with not having committed a subsequent offense.

[Alice M. Emmons (Chair)]: Other questions? Anything else? Other questions? Okay.

[Michelle Childs (Office of Legislative Counsel)]: Michelle? The next one is arrests and clearance rates. So an annualized report on arrests and clearance rates. Arrests are to be organized by crime according to data from NIBRS.

[Troy Headrick (Ranking Member)]: Well, I'm not sure that's relevant. What's organized by crime? How specific is that, I guess? Is that by category or by

[Michelle Childs (Office of Legislative Counsel)]: By NIBRS does it a little it's not like using the Vermont one. They kind of if you look at some of the CRG information and probably some of the reports that you got last year from CRG on some of these things that are in Title 28, it's not like groupings like theft or sexually based offenses. Not that big, but there are certain groupings and certain offenses. And then our offenses would fall into certain categories. But that's the data they have to use. And so they can look at baseline. The next one is most convicted crimes. So, it'd be a report detailing aggregated information on the number, type and length of sentences, including fines for the 20 crimes with the highest number of convictions. And so CRG has a list of those, the crimes that are most often charged across the state and result in convictions. And so they'd be looking at kind of We were trying to figure out the right way to say it because they were first calling it kind of, these are the top 20 crimes. And it sounded like it was, I don't know, something on Family Feud or something. And I was trying to figure out how do you say that? Like, knew what they meant, but this is essentially the 20 crimes that are really most prevalent that you see across the state. And then a report detailing the total combined years of probation and incarceration sentenced by the court in the prior year for those most convicted crimes. The report is to include, and then moving on to page three, an analysis of which crimes and counties contributed most significantly to the sentences imposed. And so, has been, they're trying to make sure that they show the data in a way, And as long as I've been here, there's always been this real focus on, we want a more unified system of justice so that if you commit a certain offense in Bennington or you commit it in Burlington or you commit it in Barrie, you're not getting vastly disproportionate sentences in that case. Geographic justice. Exactly. To do that for thirty years. I think you guys have come a long way on that from the nineties, from what I remember. Subsection B on demographic variables, the information required shall include race, gender, age and other demographic available whenever possible. C is just saying that anybody who has data, that CRG needs that data to basically be producing these annual reports, shall provide that information to CRG So they are to cooperate in getting them the information that they need. So Section two is the repeal of the current definition of recidivism in Title 28. So you can just look, and I know you guys have seen this, but if you think about what your new definition is, which is like you've been convicted once and then you're convicted again, right now, it's you calculate based upon offenders who are sentenced to more than one year of incarceration, who after release from incarceration, return to prison within three years for a conviction for a new offense or a violation of supervision, resulting in the new incarcerative sentence or time served of at least ninety days. So there's a lot of variables in there. It's very, very specific, which means with the new definition, you're going to get a much broader snapshot of what's going on in the criminal justice system. When

[Troy Headrick (Ranking Member)]: we do this, when we move a definition from 28 to 13, do you want to make sure that any references in existing statute are also changed?

[Michelle Childs (Office of Legislative Counsel)]: That would be me.

[Troy Headrick (Ranking Member)]: Okay. Do that in this bit?

[Michelle Childs (Office of Legislative Counsel)]: I took a look at it, and it doesn't really appear much. I do have a list, it was only You'll see, and then that takes me actually to the next section, which is section three, which is entitled 28, section 125. And this is on your criminal justice trends report on your every three years is we've taken the recidivism definition that cross references it out as well as the three year recidivism rate report, because you're gonna be getting this more detailed annual report. That's okay.

[Troy Headrick (Ranking Member)]: It's already there.

[Michelle Childs (Office of Legislative Counsel)]: That's okay. And then there's a couple other instances of where the word recidivism appears. But one is in your pretrial supervision statute, which is going away. And then the other one is, I'm just trying to make, I think like in some of the juvenile justice statutes, but it's used as a not this, it's not tied to this definition. Do you what I mean? It's just a general thing about trying to reduce or eliminate recidivism amongst youthful offenders.

[Alice M. Emmons (Chair)]: Where the statue is now, it rests in DOC, and it's the Department of DOC that calculates So it's really for the use within the DOC's world per se.

[Michelle Childs (Office of Legislative Counsel)]: Right. And there's nothing that if you repeal this, stops them from deciding they want to if they find that that's valuable to producing data that stops them from doing that.

[Alice M. Emmons (Chair)]: So for the current definition of the recidivism, it's DRC that calculates the rate of that. Is that used anywhere else besides in corrections world?

[Michelle Childs (Office of Legislative Counsel)]: I don't know. You'd have to ask DSA.

[Vermont Department of Corrections representative (name unknown)]: I'm not sure. I mean, it's publicly available on our website. But the thing that I will note is that due to the current definition, it is somewhat limiting to use. And so we often don't refer to recidivism as a measure in which we make our decisions by because we do collect so much other data and the measure of recidivism is so delayed. So that by the time it comes out, we're probably well into the tenure of the next commissioner, seeing as the average tenure of a commissioner is only twenty four months nationally. We do support the change as well as the conversations with the crime research group around their calculation of it in the future.

[Alice M. Emmons (Chair)]: So by moving it out of the DOC statutes really puts it more into the bigger world. And for use, more in the bigger world. Whereas being just in corrections, it's more insulated within corrections. And then out in the public, we use the word recidivism, but the definition doesn't rest in a place in statute that is really out there for public use. It's more insulated within DOC.

[Kevin Winter (Member)]: Kevin? I'm trying to make sure I'm understanding this old definition. You had to have been sentenced for at least a year. So the question I'd be curious is, how often does someone sentence for less than a year? Often? Rarely?

[Vermont Department of Corrections representative (name unknown)]: I have to pull that information from our offender management system. I don't have it in front of me. But

[Kevin Winter (Member)]: It's a curiosity. Personally, I like the change that we took that out of there. Because if someone offends and they're out in ten months and they re offend, I think we need to understand that rather than So I'm happy with the change. I just was curious as to how often someone is actually convicted and goes for eleven months.

[Alice M. Emmons (Chair)]: Oh, wow. It would be an important If that helps you

[Michelle Childs (Office of Legislative Counsel)]: get that information in these reports.

[Alice M. Emmons (Chair)]: I know. I'm applauding it is

[Kevin Winter (Member)]: what I'm saying.

[Alice M. Emmons (Chair)]: I wanna make sure

[Kevin Winter (Member)]: I'm reading it right. I think this is great.

[Alice M. Emmons (Chair)]: Okay. It would be sentenced to more than one year of incarceration. It doesn't mean- Not

[Michelle Childs (Office of Legislative Counsel)]: necessarily served.

[Alice M. Emmons (Chair)]: Not necessarily served because they could be detained for that one year, but they haven't been sentenced. And then they get a sentence for a year and they're out on that day because they've already served times.

[Michelle Childs (Office of Legislative Counsel)]: But it's still a very narrow definition. Yeah.

[Kevin Winter (Member)]: Right.

[Alice M. Emmons (Chair)]: Very narrow. And sentenced, it's only to incarceration. And I mean, would be such a minor misdemeanor that we don't do that anymore, really.

[Michelle Childs (Office of Legislative Counsel)]: So the next section, section four is your appropriation section. So for FY '27, you'll see the monies that will be appropriated for the different studies. So $10,000 for the annual bail rate report, 10,000 for the annual recidivism report, 1,000 for the annual arrest and clearance rates, Subdivision 4, 4,000 for the annual sentencing reports. And then it would take effect this July. So

[Alice M. Emmons (Chair)]: we're just getting update. It's not something we have to take formal action on, I think it would be good just for the recidivism definition to just get a barometer, temperature check. Are people feeling better about this particular definition? I think one thing that really clarified it was when the flux started ticking. Because we had concerns earlier that a wealthy person is serving five years. Is it beyond that time of calculating the rate, when does the clock really start? And that seems to have been clarified. Any questions? Anything?

[Kevin Winter (Member)]: One more, and I'll stop.

[Alice M. Emmons (Chair)]: Yeah, go ahead.

[Kevin Winter (Member)]: The fact that it's underlying appropriated from general funds, these figures, 10,000, 10,000, 1,000, etcetera, We haven't had an appropriation in past years for the current?

[Alice M. Emmons (Chair)]: Well, this is for the work for For CRG. CRG, them to do the work. And usually, if we're asking them to do some extra work, we try to pay them.

[Michelle Childs (Office of Legislative Counsel)]: Right. So the current one, the way that it's working, as the chair had mentioned before, was something that DOC, when they're doing because they're already tasked with doing reports and collecting data and sharing that with policymakers. So that's just about telling them how to do the calculation. This new one is like an annual report that they would be doing that we would Generally, the state is contracting with them to do that.

[Kevin Winter (Member)]: So are we spending this appropriation every year or this is a one time? It's not

[Michelle Childs (Office of Legislative Counsel)]: a one time. This is for f y twenty seven. Right. So will the 25,000 also be required in f y twenty eight? I mean, I would assume

[Alice M. Emmons (Chair)]: Because it's an

[Michelle Childs (Office of Legislative Counsel)]: ongoing report to to do the work, but

[Alice M. Emmons (Chair)]: I'm contracting out with a prime research grant.

[Kevin Winter (Member)]: So is there 25,000 coming out of someplace else? Or is this

[Alice M. Emmons (Chair)]: It's just what we're an appropriations committee, and it would be, I don't know whose budget that would

[Kevin Winter (Member)]: have it.

[Michelle Childs (Office of Legislative Counsel)]: Right. I mean, I think, so House Treasury received the numbers from CRG of what it would cost to do those reports. As the chair mentioned, once it's voted out of House judiciary, it's going to go to appropriations. Appropriations will consider it. They may decide to add some of the language you've seen maybe in some other bills that says, upon available funds, or they may change it from the general fund to something else, but that's all to be seen.

[Alice M. Emmons (Chair)]: And it will be an ongoing expense. Right.

[Kevin Winter (Member)]: Hopefully this amount is coming out of someplace else.

[Alice M. Emmons (Chair)]: Sweeney, whatever. It's part of the general fund budget. That's where it is. It's all part of the general fund budget. It's up to appropriations to see where the money comes from. I mean, we can't say here it's gonna come from an entity in the agency of human services that's gonna lose 25,000. It's gonna go over here.

[Michelle Childs (Office of Legislative Counsel)]: And that's why judiciary, you know, hasn't spent a lot of time in this section because they know it's really, you know, the work of house appropriations to make those determinations. They just wanted to get the numbers from CRG of what would be needed. And then it'll be up to appropriations whether to agree or strike this action or use contingent funds language.

[Alice M. Emmons (Chair)]: Anything else? So I think it's pretty positive in terms of the new definition for recidivism, correct, for the committee? Yes. So you could relay that for whatever it's worth.

[Michelle Childs (Office of Legislative Counsel)]: I'm I'm sure they'll be pleased. Yep.

[Troy Headrick (Ranking Member)]: Kevin may have to put some gun on floor.

[Kevin Winter (Member)]: That's me, though. Galfella's gonna be there too. You guys forbear me for my education. I wouldn't do that out there.

[Alice M. Emmons (Chair)]: You can do it in a small group. So let's take a lunch break. We are back here at 01:00. We have one thing left that we're working on, five fifty, gender equity within our correctional facilities. So we'll be back at

[Kevin Winter (Member)]: one