Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: This year, a committee this Thursday January. And we're going to start on H-four 10. And we're going to get a walkthrough by our legislative council. Thank you for being here, Michelle.

[Michelle Childs, Office of Legislative Counsel]: Morning. The record, Michelle Childs, Office of Legislative Counsel. And we are looking at H-four 10 as introduced, an act relating to calculation of recidivism and other related criminology measures. I just want to start out and let you know, so I didn't draft this bill. And that's important to know because I'm going to have a lot of questions about it. Because in reading through it, there are things that I felt like were unclear, policy needed to be clarified, or there were some inconsistencies. And so I just wanted to let you know that upfront. And then as you're hearing from witnesses, they may have similar questions or they may be able to clarify what was intended. Then we'll just go from there because it's really just about what you want moving forward. So no stress over the fact that there's some vagueness here.

[Rep. Martin LaLonde (Chair)]: Yeah. We keep on on this one, version eight will probably give you a hint of being able

[Michelle Childs, Office of Legislative Counsel]: to Yeah. Karen. So

[Rep. Barbara Rachelson (Member)]: We did review this last session as well, right?

[Michelle Childs, Office of Legislative Counsel]: I have this and I have notes on.

[Rep. Martin LaLonde (Chair)]: If I could give a little background real quick before the walk, Fingrich, that yes, we took this up last session, and it quickly kind of got derailed. A big part of it was we really didn't like, and I think everybody agrees, we didn't like what the recidivism definition is in statute. But where it kind of went, we didn't really get into whether we liked the new definition in here because we got stuck on, well, who can in fact do the work to give us recidivism studies? And it was, can DOC do it? Etcetera? Kind of, we didn't have a place to put it, and can it be annual? And there's those basic questions, not even what the definition should be. And that's where we said, oh, we don't have time to figure that all out, and we put it aside. But we're back to it now. But that gives you kind of I think that's essentially it as I'm recalling it.

[Michelle Childs, Office of Legislative Counsel]: Yes. Just to not we aren't starting from scratch,

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: we didn't make it far.

[Rep. Martin LaLonde (Chair)]: Yes. Yes. We're kind of almost starting from scratch, almost. Where we're sitting.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Well, that's

[Michelle Childs, Office of Legislative Counsel]: good, because that's where starting from. And it could be that I'm just using my editor's hat and trying to read it from a plain language standpoint. So it could be that perhaps it is clear in some areas that I don't think it is, and maybe it just needs a little little tweaking. So I just wanna start out. So it is in the current definition is in title 28 in your corrections title in just like the first chapter. I will say, like, depending on where you wanna go, you might like, we might wanna consider it being under 13 because of how it is instead of 28. So I just toss it out there. Not a biggie, but, something I might recommend depending on where we end up. So, first section is amending the definition the current definition section that applies to the entire title for corrections. Right? So it applies throughout the title, and it's adding a couple new definitions. So the first definition is on page three, subdivision 11, and this definition of recidivism. So new definition of recidivism means that a person who is convicted of a criminal offense after receiving a criminal conviction for a previous crime. Next definition is at the top of page four, subdivision 12. And this is definition for repeat violent offender. It's a person who's committed repeated criminal offenses for which the crime type against another individual is considered violent. So and so the two members who just walked in, I just I missed my little intro there is that so I gave a little disclaimer to the committee. So I didn't originally draft this and was not a part of the committee discussions last year. In preparing for this, I had a lot of questions about language. Some I felt like there's some big some things that need to be clarified and also seemingly some inconsistency. So I'm just gonna make sure that I point those out so that witnesses can talk about them, then we can have a clear path to

[Rep. Martin LaLonde (Chair)]: move forward. I really want to make sure this might happen, so.

[Michelle Childs, Office of Legislative Counsel]: So the first one is it. So on line three against another individual is considered violent. So you're going to need to have some guidelines around. So first of all, it's considered by violent. Is there a list? I know that this committee has grappled with that issue in a number of ways, right? Because violent offenses, and I use that term very generally, right? There's all kinds of different lists in different places. So you have 5,301, Title 13 under listed crimes, subdivision seven that has what people generally consider to be violent offenses and has a few misdemeanors, but mostly felonies. There's things in Title 28 that refer nonviolent felonies and nonviolent misdemeanors. So you kind of have to read it backwards. But you want to be clear on what does this mean? Because when you read the statute here, you're not being referenced to another definition. You're not sure who is making the determination for what is considered violent. Section two, so this is amending the existing definition in section four, and I think CRG is going give you a little bit of the history on this definition and where it came from. But it's creating a new way to calculate and classify recidivism. And so if you look on page five, so again, remember, we're going back to the we're always keeping in mind the definition that's in the first section of the bill. And so they're looking at classifying folks for someone who's convicted of a criminal offense and they meet one of the following. And then subdivisions one A through D are based on how the time that has elapsed from the time of sentencing before a person commits a new offense that results conviction. So you can see there, subdivision A is that it's one year, B is that it's three years, C is that it's five years, and D is that it's ten years. So some things I just want to draw your attention to because they're important in looking at how you're going to do the calculation is that they're calculating from the time of sentencing. So for earlier offense, time

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: of

[Michelle Childs, Office of Legislative Counsel]: sentencing, and then it says before the person commits a new offense. And then the third part is that results in a conviction. So you want to think about all those different moving parts. So let's say someone sentenced for an offense and then they commit a new offense. But let's say those charges are dismissed, whether without prejudice or for whatever reason, but it does not result at that time in a conviction. So then that wouldn't qualify under this. Right? So those are there's three elements there that you want to keep in mind. Subdivision 2 on calculations. I think that you want that this that that Subdivision 2 is just applicable to Subdivision 1 and not later to Subdivision B, but that's, I think, something that you'll wanna clarify. So for calculations, and I'm going to the way that it reads it now is a person sentenced to incarceration will be considered eligible to recidivate upon release from a correctional facility. Find that difficult to understand, and it feels a little weird to say you're eligible to recidivate. So I would say, just think of it in terms of like, for a person sentenced to a term of incarceration, recidivism shall be calculated from the date the person is released from a correctional facility. Okay, so if someone receives an incarcerated term, right, instead of probation or something like that, then they're going to calculate from the date they are released from that facility. So it sounds as though maybe they're released on furlough. Maybe it's a split sentence and they for some period of time, but then they're out on probation. Right? But then for purposes here, that if you have an incarcerative setting, you start to calculate recidivism the time they walk out the correctional doors. Okay?

[Rep. Martin LaLonde (Chair)]: Yeah, Barbara.

[Rep. Barbara Rachelson (Member)]: Can you clarify if we're just talking about adults or people being tried as adults?

[Michelle Childs, Office of Legislative Counsel]: Well, there's nothing in here about Yeah.

[Rep. Barbara Rachelson (Member)]: Delinquency. So you're assuming we're just going to look at People who go through the adult system. Including youth who I don't

[Michelle Childs, Office of Legislative Counsel]: think it doesn't make any distinction. Okay.

[Rep. Kenneth Goslant (Clerk)]: Okay. Thank you. So on page one on 18, why is child even mentioned?

[Michelle Childs, Office of Legislative Counsel]: Because these definitions in section three of 28 apply the to the entire title. So the word child appears in title 28 in corrections. It may not apply in terms of recidivism, but it applies elsewhere in the title. And we're mending and adding new definitions to the title, to the full title of corrections.

[Rep. Ian Goodnow (Member)]: Thank you. Yeah. Oh, yeah.

[Michelle Childs, Office of Legislative Counsel]: So with this is line 17 on page five, the one that we just went. So saying that the calculation can't start until the person is released from the facility. Mhmm. I guess I'm trying to think, what if somebody commits a crime while they're in the facility? I don't. Yeah. Yeah. They're just making me think, like Yeah. That would make a note.

[Rep. Ian Goodnow (Member)]: Yeah. Have you done have you finished your broccoli? Yeah.

[Rep. Martin LaLonde (Chair)]: You're holding your question? Yeah, I'm holding your question.

[Michelle Childs, Office of Legislative Counsel]: Okay, topic page six, subdivision 2B. So it currently reads, person sentenced to a non partial sentence are considered eligible to recidivate on the disposition date of a case. Okay. I was going to rephrase that to be an active voice to be a little clearer. Would be for a person who receives a penance that does not include incarceration. Recidivism shall be calculated from the date of disposition of the case. I do not know what in this context disposition means. There's not a definition of disposition. Other places, it's used about the date of the offense. You could use there's a lot of things. It could be date of arraignment, date of offense, date of sentencing, date of release from confinement. You can certainly use disposition, but you'll have to clarify what disposition means in that context. Okay. Next line on subdivision two c on line six. It says I think

[Rep. Martin LaLonde (Chair)]: we all have some different numbers. It's you're under two c, essentially.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah, I'm on page five on line 21 for that.

[Rep. Martin LaLonde (Chair)]: That weirdly happens. I mean, you have the same language.

[Michelle Childs, Office of Legislative Counsel]: Yeah, okay. So subdivision Okay. And that language reads, a conviction will determine whether a person has recidivated. You don't need that. Because if you look back to subdivision 1, it says clearly that you're talking about the time that has elapsed from the time of sentencing before the person commits a new offense that results in a conviction. So you already have in Subdivision 1 that a conviction is required for that piece, I think it's confusing. And I don't think you need that. Subdivision d. So that says that the arraignment date associated with the conviction will determine the recidivism classification. So the way that I read that, to me, it conflicts with what you have in Subdivision 1. Because if you look at Subdivision 1 and you look at subdivisions like a through d, not less than one year has elapsed from the time of sentencing before the person commits a new offense. So right. So they're talking in subdivision one is talking about permission of the offense. And in two d, it's the arraignment. You can pick whatever you want. It's just a policy standpoint. I just wanted to point out that from when I read it through there, it seems inconsistent. So it could be these are all policy choices for you. And when I'm pointing things out, it's just as a fresh reader and someone who hadn't worked on this last year or written it, when I read it with my limited knowledge of this area, that there's just some things that don't match up. But you can change it to however you want.

[Rep. Martin LaLonde (Chair)]: Right. I think I actually understand what D does, but Okay. But it's not clear. Yeah, it may be just

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Okay.

[Michelle Childs, Office of Legislative Counsel]: So subsection B, repeat violent offenders. I had a question there about whether or not there should be a notwithstanding subsection A or if it's in addition to A. So if you qualify, so depending on what your offenses are, if someone has multiple offenses, could there be a calculation under A and then there's a separate calculation under b. And so and that's probably for the data folks and how they would use that. And and but I would just wanna be kind of clear about that, whether you can be both or you're or you're one or the other.

[Rep. Martin LaLonde (Chair)]: Right.

[Michelle Childs, Office of Legislative Counsel]: Subdivision b one. So class one, repeat violence. So it says not less than one year has a lot from the time of sentencing before the person is convicted of a violent offense. I just had a question about whether or not for the first offense, for the predicate offense, could that be any offense? Or is it supposed to or is the predicate offense in order to qualify under this also to be a violent offense? And I think you just wanna again, small language change order, but just to clarify.

[Rep. Kenneth Goslant (Clerk)]: So where it says violent offense, that doesn't clarify

[Michelle Childs, Office of Legislative Counsel]: it? Well, it does for the subsequent offense. But for the prior offense, remember, we're talking about a repeat. So not less than one year has elapsed from the time of sentencing. And my question there is that sentencing for any criminal offense or sentencing for a violent offense?

[Rep. Martin LaLonde (Chair)]: It just says from the time of sentencing for a violent offense before the person is convicted of it.

[Michelle Childs, Office of Legislative Counsel]: Right. So is that the intent?

[Rep. Martin LaLonde (Chair)]: But we'll hear. Okay. But that's how we wanna kinda fix that.

[Michelle Childs, Office of Legislative Counsel]: These are all just things that I think you can easily address. It just, I was not clear about the intent, just looking at the language. And that's really all my comments. The section three is just a cross reference update. And the bill is due to take effect on July 1. Twenty sixth. Of twenty sixth. Yes. It's a bill from last year, so you just have to update that. Yep. Yep.

[Rep. Ian Goodnow (Member)]: So I'll just just go through a couple of things briefly. For the repeat violent offender, the definition so our pages are fine, but

[Rep. Martin LaLonde (Chair)]: so what subdivision would be?

[Rep. Ian Goodnow (Member)]: The under subdivision.

[Michelle Childs, Office of Legislative Counsel]: 11, the definition. Definition, 17. Or 12 for repeat violent offenders.

[Rep. Ian Goodnow (Member)]: For repeat violent offenders. So that is almost the language from 13 VSA 70 for crime of violence. To pull it To out. So it's a felony with a crime of violence. And I'm wondering, is that what we're trying to get? I don't know.

[Rep. Martin LaLonde (Chair)]: We'll get more testimony. We'll see what we should Okay.

[Rep. Ian Goodnow (Member)]: And then the only other thing I okay. And then this is just, I think and I don't know if you're the person to answer this.

[Michelle Childs, Office of Legislative Counsel]: Probably not.

[Rep. Ian Goodnow (Member)]: Okay.

[Michelle Childs, Office of Legislative Counsel]: But go ahead.

[Rep. Ian Goodnow (Member)]: I mean, I'll just throw it out here so that it's for the calculations for the incarceration versus non incarceral sentence, the thing that is kind of confusing is furlough. So you serve there's a presumptive parole now, and so you're in for a certain amount of time, then you're out. You're on parole, then you go to furlough. But the sentence was, you were convicted of a sentence that you were serving time for. I don't really know which one we're trying to capture there.

[Rep. Martin LaLonde (Chair)]: I would say, well, we can have our witnesses tell us that. Could save that for

[Rep. Ian Goodnow (Member)]: Do you think that would be incarcerated

[Rep. Martin LaLonde (Chair)]: sentence? I don't know. No, don't think so. Not necessarily. And

[Michelle Childs, Office of Legislative Counsel]: I would suggest, I think you bring up a good point, which is I think a lot of the stuff, it just needs to be spelled out about what the clear intent is on that. So when you're looking at how that's applied, like on subdivision, what is it, 2b. Right? So nonparcelial sentence. Yes. Right? I had the same kind of questions and thinking about, like, do you just wanna if you're really just talking about you walk out the the either you walk out the correction doors or you don't. Right? But having a little something there that if it's but if if if this provision is supposed to apply also, like, if you're on furlough and you're you're on all these other things, it's good to state it. You know? Let's just be really clear and upfront about that so that people so that, you know, there's no questions about it.

[Rep. Ian Goodnow (Member)]: Yeah. Yeah. Okay. And,

[Michelle Childs, Office of Legislative Counsel]: again, it's all just everything here. There's no legal issues. My things I raise is just about the clarity and intent. So it's all within your purview to decide where you want to go

[Rep. Ian Goodnow (Member)]: with it. Yeah.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Can you ground us again of why we're doing this? Yes.

[Rep. Ian Goodnow (Member)]: So

[Rep. Martin LaLonde (Chair)]: I think it really starts well, a higher level is that we're trying to understand repeat offenders and what does that mean. And we have a definition currently in statute that doesn't make any sense to kind of quantify repeat offenders. And the bigger picture is looking at trends over time as far as how we are doing in the criminal justice system. And we don't have data that we're tracking on an annual basis. What we've been tracking at DOC, this, again, doesn't make sense. So that's the kind goal for this. The way I look at it, there's different people who look at it differently, and we can hear from other folks that suggest that. I mean, this language came from a group that I can't remember everybody who was in it, but it was part of state's attorney. I thought the attorney general, I thought BPS, but we can get that part. I know CRG, I think, was in the loop that they proposed this. And we put the language in. I think the language remembering right, I think it's essentially the same language I think is an H411. But I may be misremembering. I was trying to double check that. My view is that we need to get this right so we can have something kind of set for tracking how we are making. So that's more tricky. That's why I brought this exercise back even though everybody didn't like it last year. So we're gonna make great progress this time. We're gonna start with General Counsel, Jade Johnson. Thank you so much for making the time to come and kick us off on our journey in recidivism in the 2026 session. Well, thank you very much.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Happy New Year. Thank you for having me, Mr.

[Michelle Childs, Office of Legislative Counsel]: And Chair and

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: for the record, I'm Jay Perchen Johnson, Governor Scott's legal counsel. I agree with the chair, I will back him up on that statement that, and I will repeat in my remarks, it's absolutely a performance measure. And it may say things, different things to different people, but not doing anything is, I mean, you could do nothing and you would remain with a standard that's relatively meaningless. And then people could continue to ask questions about data, and we will not be able to answer them because nobody's collecting data that way. So I think that it's important to recognize that this is an exercise that's, I would say, is it imperative? Will we suffer greatly if we don't change the definition? Oh, we'll suffer in that we don't really know how we're doing. But again, different people will differ on what that means even when you generate that data. But I think that at least you have it for discussion purposes. So right now, the state standard measure measures individuals sentenced to more than one year of incarceration. So, and to my mind, it's important to realize, and again, there will be no perfect definition. And I really want to avoid the bogginess of this. Everybody will talk about whether we need it or whether we don't need it, or whether it's important or whether it's not important. And everybody will have perspectives on whether we do and whether we don't, and whether it is and in what context. But so we'd have to kind of avoid getting bogged down and think about what we want from this. But so right now, the individuals who sentenced to more than one year of incarceration, who after release, return within three years for a new incarceration sentence of at least ninety days, or for an incarceration for a violation of supervision, where the time served is at least ninety days. So you're returning after your sentence ends. You're returning within three years after your sentence ends. So it provides some data, but it's limited in what it conveys with respect to what's useful and how we're doing. I haven't looked at the data recently, but for like twenty two, we have stayed relatively flat for many, many, many years. It tells us generally nothing. And our criminal justice system and our outcomes are, and our criminal population and the impacts on our communities have changed significantly in the last decade. So I think that it doesn't tell us anything, our current measure. But it's not terrible, it provides a little snapshot into a thing, or a couple of things. New incarceration sentence of at least ninety days. I think one thing that's important to think about is very few misdemeanors receive incarceration sentences. And incarceration sentences for misdemeanors are very, very short. So whether a person returns to prison is not the question we're answering. It's whether they return to prison within and serve a term of at least ninety days. And that will not tell you about recidivists who are coming in and out and in and out for for low level crimes and serving a term of, say, thirty days. And maybe there will be no perfect definition that tells us everything we want to know, but we should understand the questions we want to answer. And then the same thing for violation of supervision, where time served is at least ninety days. So they have a violation of their probation or parole, or there's a question about furlough. And I don't know that the time served is actually over ninety days. So you may not capture any of that information, you might capture some of it. But it provides some limited information. But I think my bigger problem with it is, this isn't generally what most people think when we refer to recidivism. Have, example, in the accountability docket, which has been the pilot over the last three months in Chittenden County, none of the individuals with five or more crimes, even those who are being sentenced now, will be considered to be recidivists under our current definition. So many of them, because they commit high impact, but low level crimes, many of them, but for this court, would have sat for maybe more years without having their cases ever heard, because Chittenden County has the most murders to try and the most aggravated assaults and the most sex assaults in the state that they need to handle before they handle the low level crimes, even though they're high impact on the community. So I think that we have to think about what we want from this data. And so that said, again, we can easily find ourselves down the rabbit hole because everything is important to different people at different times. And where do you draw the lines? What's So it useful for? It's a performance measure generally. If we say to the public, we haven't had an increase in our recidivism rate in five years, that is people in the community who refer to our criminal justice system as a revolving door or a catch and release system, this will not mean anything to them. They will say, how can that be? So I think it needs to be understandable in terms of the data that it generates. How are we doing on public safety? Is our rehabilitative incarceration system actually rehabilitative? Are we helping the people we purport to help once we put them into an incarcerated setting? Same goes for, and I appreciate some of the terms used in here, same goes for probation. They're released into the community with a connection to services. How are we doing? Are they being re arrested? Again, I don't know that we can answer all those questions with a single bill that's gonna address all of those data needs. And then you're gonna get into the whole like, well, who's gonna collect that data? And where's it gonna go? And how much it's gonna cost? And blah, blah, blah. So I think we also have to talk about what's realistic within the resources that we have. So if we're talking about a multimillion dollar data lake that is not likely to happen in the next few years, because the state has other priorities, in my opinion. But again, the committee of jurisdiction, the legislature can allocate that money to those purposes if they so believe is necessary. So, and again, are individuals on probation succeeding? They have a probationary sentence. Are they going back to jail for violations of their conditions of probation? Which at least in the accountability court, are all related to substance use, mental health and drug treatment. Mean, not all, but in many, many cases, we're talking about those kinds of service needs that we are trying to effectively tie people to services through the tools available in the criminal justice system. Is it working? We won't know. So for thirty, sixty, ninety days a year, two years, three years, are those people reoffending or not? Are we effectively connecting people with services? Those are the kinds of questions to my mind we should be answering. But very often, I think what we're gonna be forced to talk about is things like violent crimes, repeat violent offenders. But again, it's like, what is the information we want to know? What is it the Vermonters are most concerned about? So my recommended changes to this particular bill, which I also was not involved in drafting, was it would ideally But I have to say, we have been interested in this idea of revising this statute for several years. I do believe it has to because, you know, it's like everybody sees a different piece of the puzzle. It has to be a collaborative process. And you have to hear from DOC and what they're collecting now and what they're capable of collecting and reporting. You have to talk to CRG about what their contract says and what they're collecting and what they're required to collect and what it would cost to do more or whatever. I think you have to involve the state's attorneys and sheriffs in the conversation. And the Defender General's Office, obviously. If we just keep getting bogged down, it'll never move forward. Again, will it be fatal? Not really. But you'll have this definition that's relatively meaningless to everybody. So unless it means something to CRG and I don't know what the answer is. Can

[Rep. Martin LaLonde (Chair)]: I ask you a couple of questions before we go on? Yeah, sure. Before I lose what you.

[Michelle Childs, Office of Legislative Counsel]: And I'm sorry, it's a little bit

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: of What was your hand on my hand again?

[Rep. Martin LaLonde (Chair)]: This is very helpful, it's raising lots of questions. Does the definitions that we have even here really answer the questions that you just mentioned.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Some of them don't. I mean, they don't. And I have some suggestions, and even my suggestions will not answer many of the suggestions that I'm making.

[Rep. Martin LaLonde (Chair)]: So I guess Alright. So the other big question to me is, are we trying to set something up where we're gonna have an annual report like we have from DOC? Or are we gonna lay out, well, here's what we consider recidivism is when there are ad hoc reports? Or are we just not gonna, you know, the third option is just strike what we have in the statue right now. Get rid of that with the understanding that whenever we ask for ad hoc reports that we will look at what the appropriate recidivism definition is. So do you understand? It's like, what are we I think it started with getting rid of the old definition.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah. I mean, yes. I mean, it does give us some limited information, but not very useful information. I would say that from my perspective, the way I came out after reviewing the bill and putting together my remarks, I was thinking it would probably be several reports. I mean, because first of all, it's who's going to require it. Public safety, obviously, with the contract, could be asking for information at any time and paying for it. Is the legislature gonna require those ad hoc reports session by session? I mean, I think that we need to maybe manage that a little bit. You know, if you want consistent reporting on kinds of data, I think it would be helpful to maybe establish what that should be and who should provide it when you have the opportunity and you've taken the opportunity. So that would be my suggestion is DOC has over the past several years upgraded its collection and analysis capabilities, and theoretically should be able to provide you more data than it was able to do in 2011, when this definition was changed. CRG can maybe provide some other data, and I have some ideas about that in my remarks, but which you may or may not be able to do. And then the same thing with the AG's office, because I also think we can't ignore the restorative justice system and recidivism. So the AG's office theoretically is collecting data about outcomes. Those would be my suggestions, and then you're basically getting three reports possibly. Maybe you could roll up a CRG report into a DOC report. But again, I'm very conscious of doing things within existing resources. And that's where people can tell you what they can provide, and then maybe roll up data into a single report if possible.

[Rep. Martin LaLonde (Chair)]: So it could be just a matter of, we do ask for reports that are ongoing. And within that, well, we could have the definition here like this and we could have the three reports that you're talking about and direct those to be collected, having to find out if there's any resources to actually have that done. Am I understanding that?

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yes, that's what I'm thinking. It would be regular reporting that the committee finds useful. And then at the state, I think actually this kind of information is useful to the executive branch and the legislature, and should be both anyway, because we need to understand what it is we're doing that's working or not working. In a resource constrained environment, what programs are succeeding and which ones are not? How do we get the best return on our investments on what kinds of services we're delivering? What kinds of, if we add, if, you know, I mean, one thing that we have in our omnibus proposal again this year is continuum of care proposal, funding, additional funding for things like crisis beds in the community, all the way to additional drug treatment and longer term recovery services in DOC facilities, and every step along the way. But what works and what doesn't? I think that we've had successes and failures in the past. What if we put a whole lot of money into DOC to provide longer term drug treatment and recovery, and individuals aren't actually stabilized, and we haven't done a good job handing off to a recovery housing situation, or a recovery apartment, or, We don't understand any of that if we're not tracking it. But it gets very boggy. What is it you want to know? There will be other reports you're gonna want. How did that program But at least you'll have some quantitative data rather than we put this much money into it and we don't understand the outcomes, but we definitely spend a lot of money, which we're really good at, but we should be doing better monitoring outcomes. So I think my recommended changes would ideally capture more information than the current draft. I realize we need to keep it simple because I know it falls apart in various places. Again, I became very interested in this issue when I realized that there's a federal Department of Justice, Office of Justice Programs report that I sent links to Nate. Don't really need to refer to, but I suggest you look at them. You may or may not find them useful or informative, but I thought it was interesting that there is a relatively consistent way of tracking recidivism data across to 34 states from releases in 2012, and a follow through period of five years through 2017. There was a follow-up, another report on re arrests within, I think, following 2012. So at its most basic level, this report can tell me the percent of state prisoners released in 2012 who had a new arrest, a new conviction, or returned to prison after release. And that's by year, one through five. I think the triggering event incarceration sentence of at least one year and release. And it tracks that data, which I believe we can do by age, gender, race, and crime type. So to your question, Representative Rachelson, it would be, yes, you would track everybody in the criminal system. We don't have any criminal justice system for juveniles, really. It's all in family court, it's all confidential, there's no facility. I mean, I don't know how we do on data there or recidivism, all of it's confidential. So maybe somebody's tracking that in some aggregate way. I don't know how we're doing. But at least in the adult system, 19 and up theoretically is gonna be tracked. And we would track, but again, by age, gender, race, and crime type. So that's what you can find in this report. It's a 2021 special report. And I think it's interesting at the very least. My specific comments are, and again, I think I had Michelle's draft, on page six in lines 18 through 19. What I'm referring to is the definition of recidivism, subsection 11 in the definitions. So mine was page three. Sorry, did I say page three? Page three. At the bottom of page three for a second. Okay, line 18? Then I think I have the same draft as you. I would recommend that the definition and again, there are going be experts who I'm sure have different opinions, but just in my simple mind, the definition of recidivism is broader to capture the rate at which a person returns to prison after conviction and following release.

[Rep. Martin LaLonde (Chair)]: So I don't have to write this down, are you gonna be able to send me that?

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: I can send you that, yes. So it does. Again, there's a question of after conviction, is that a conviction for a one year period? Is that any conviction? But again, it also assumes Well, actually with the calculations piece, it assumes a probationary term or an incarcerative term. So I say returns to prison after conviction and following release. I just think it should be broader than conviction to conviction. Because conviction to conviction, I think is, there's gonna be huge time lags. I don't know how that, I mean, that data will be, I guess, easy to collect, and there must be some certainty in that definition. I don't know, because I wasn't, again, involved in the drafting. But I think conviction to conviction, you don't get necessarily any information on rearrests. You don't necessarily get any information on releases and returns after probation and parole. So I think that that's important.

[Rep. Martin LaLonde (Chair)]: Think the field, this is where it goes to that provision that's at the top of page six. D, the arraignment date associated with the conviction will determine the definitive So we're saying conviction to conviction, but the date that is appropriate for the person's subsequent conviction is when they were raped. So that takes care of the fact that it could take two years.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: I see what you're saying. Until the

[Rep. Martin LaLonde (Chair)]: acts are convicted, it probably shouldn't count. I mean, it could, we could be signed into arrests, but I think But

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: I don't think it has to be either or. Why wouldn't you what you could just do, re arrests and raiment and then subsequent convictions. That's what you see in the federal report. Okay. Re arrests and convictions. Okay. Yeah. Okay. Good. So just to

[Rep. Kenneth Goslant (Clerk)]: be clear on this whole thing, this if we upgrade this or whatever terminology needs to be used on this, has actually given us good actual data, that data, whatever you want to say, that will be shared, right? It's not one of these things that, oh, we're not going share it with this committee and that committee and all that stuff, correct?

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: It will be public. It should be public information.

[Rep. Kenneth Goslant (Clerk)]: And then on top of this Aggregated, but that's And then all the years that I've been in this committee, is I won't even go there. But I'm not gonna be sitting in there. We don't have that accurate data. We don't have this. We don't have that. This will, this will list exactly what we have. We know exactly what's going on. So nobody can jump to a different figure that, oh, we don't have that, we don't have this, or we can interpret it this way or that way, right?

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Well, should measure certain it will measure it's intended to measure more things than we measure now. And we will be able to identify what those things are. If think there's an important piece of information and data that you can track over, say, a five or ten year period, then we should be thinking about what that information is and how we define it. I do want to be clear, I think in order to not get too bogged down, we are inevitably going to come up with a definition that doesn't collect everything everybody wants to know. And maybe you can do specialty reports on whatever that is, but it will collect more information and tell us more about what we're doing and how we're doing than we have now. That's kind of the point here. And I guess I don't want to have the perfect be the enemy of the good in terms of getting nowhere, simply deleting the definition we have, and then catch, catch, I don't know that that gets us any better place. It

[Rep. Martin LaLonde (Chair)]: doesn't do much.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah. But

[Rep. Kenneth Goslant (Clerk)]: but we must do better than what we're doing right now. I mean, percentage wise, to have something like this is is going to increase it. I I don't know. You probably don't wanna say a percentage, but maybe seventy, eighty, 90% that we have better data to go and and make Vermont more safer to what we're doing in in in the in the criminal system, correct?

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: At least understanding, hopefully, and some would argue you would never understand this from recidivism data. But I mean, hopefully doing a better job of understanding from various points in time what a change in programming, or what a change in legislation, or what a change in, you know, the impact that had on criminal repeat offense behavior.

[Rep. Kenneth Goslant (Clerk)]: It's because going forward, you you always have a change in legislators, governors, whole nine yards. I would think that the information like this will be absolutely critical in which way the state is going and how we're doing about about public safety.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yes, I think that's right. I I think more information that's collected over time that's consistent is better than what we have now. And so we should be thinking about what that is that we want, without getting too bogged down in, Well, it doesn't do this and it doesn't do that, and it should. Okay, well, if it should, put it in, but can anybody do it? And then if they can't, that comes out. Because we have to be realistic about what we can do, and also I think about is it helpful, is it not helpful? So again, I would make the definition of incidivism a little broader. So it's not conviction to conviction, but it would capture other things like re arrests as well as returns following probation and parole. And furlough, again, is a policy question. We did a lot to address churning in furlough during justice reinvestment back in the twenty nineteen, twenty twenty, twenty one period. So what? Well, there's this we had this furlough law that was so burdensome. It was collapsing under its own weight, where people are released for at least six different kinds of releases. And people were in and out and in and out of DOC all the time. And we couldn't count recidivism because they were always going out and coming in. So it was sort of a, this is too much, this is too burdensome. Our corrections officers can't even view this work. I mean, it's just too much stuff. So we skinnied down our furlough law so that individuals are still sentenced, but they're released into community. And if they can succeed, it's better to have them in the community. If they can't succeed, they need to go back to DOC. And then there's levels of, anyway, so do you wanna count furlough as well as probation and parole? That's one question. But I would say at least probation and parole. And then you have, and that's following sentencing, actually. So then so that was my suggestion. Yeah. And I haven't discussed this with state attorneys and sheriffs or the Defender General's office. And I would, again, urge you to consult with them and DOC about their capacity. So at the very least, I think we should be capturing re arrests, returns to prison for violations of probation and parole, and returns to prison for new convictions. Then I had the same question about violent offender. On page four, lines one through three, repeat violent offender. And again, the term that's used later, violent offender. We have at least four standards for violent offender. That's prohibited person, Big 14, listed crimes, the constitutional standard, maybe others. At least maybe one other. And I think that I would like to capture crimes against a person, as opposed to crimes against property. So, you know, think, is a a misdemeanor domestic violence incident a crime of violence? Well, it's enlisted, but it's not in the Big 14. You're going to run into all those questions. Is larceny a crime against a person when you rip their necklace off? But I think my intent would be violent crime on a person as opposed to crime against property. I don't know if that's any better. And I don't, because we have so many standards that are actually in statute for different purposes, but used in various ways, I don't know if we need a new standard, my concept would be crimes against a person. Then, you know, I mean, some might argue simple assault is not really crimes against a person, but if you're in jail, simple assault, that's significant. Anyway, and you probably aren't. Anyway, so that's one. And there is the question of, is it a violent offense after any crime, or is it a violent offense after a violent crime? And I'm thinking if you're thinking in terms of a priority pyramid, it's repeat violent offenders. How many DV convictions does this person have where in fact there are vulnerable victims who actually never show up to testify, and the most a prosecutor could do was get a deferred sentence? Well, at least you know, are they repeat violent offenders? And you're counting that as part of a system that may or may not work for the victims, but hopefully you can count as the number of repeat violent offenders that you have. Anyway, think that that's Crime's Means to a Person is very general and will cause its own problems. But I think that that's concept that I would want to get at. And then on page five, starting with line four, I support reporting on returns to prison within a period of years, but oh, and I'm happy to start by day one. They have one, three, five, and ten. I'm happy with one, three, five, and ten. But also changing the definition of what it means to recidivate. Again, I'd to I'd like to capture re arrests in this sort of scheme. And and in that, both resulting in a hold with bail or hold without bail, and resulting in conditions of release. Because in some cases, you will be rearrested and released into the community on conditions, not necessarily put in jail for ninety days. So the returns to prison for violations of probation and parole, I think we should be capturing, and returns to prison for new convictions. Actually, probation and incarceration.

[Rep. Martin LaLonde (Chair)]: Well, I mean, of probation. Well, I guess violation of conditions or release is a new crime. It's a violation of probation as well, isn't it?

[Rep. Ian Goodnow (Member)]: It's a whole different so you're denial, different you're a respondent. Yeah.

[Rep. Martin LaLonde (Chair)]: If it is a new crime that they've committed and violating. Okay. All right. Yeah.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: And then you will run into issues of, well, there's technical violations and real violations. And are you returning to prison? I think if you're not changing your circumstance, except for maybe some additional conditions, it is a technical violation and you're not returning to our system. That's another sort of wonky technical rabbit hole you could go down, but I would say don't go down it. What's important? Returns to prison for violations of probation and parole. That would be kind of where I'd have to stick, otherwise it just gets too complicated. How are we supposed to count all of those technical violations? And do they have any meaning? And is the personal So on page five, line 16 on the calculations, I do like that we're talking about release from a correctional facility and release from probation, how that's worded, and Michelle may be correct, technically it needs some work. And, yeah, C and D, and how that works together was also confusing to me. But I understand what the chair was saying about the arraignment problem.

[Rep. Martin LaLonde (Chair)]: I have a follow-up? It's not search. On a The wording is kind of strange. Eligible during the civil debate. Yeah. Talked about

[Rep. Ian Goodnow (Member)]: Yeah. What

[Rep. Martin LaLonde (Chair)]: if they stabbed somebody while they're in prison? Yes.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: That's Yes. Answer. Again, is that data you want to collect? And if it's data you want to collect and add this into as an element of recidivism, you would have to add that as an element of recidivism. Is it worth the headache? Maybe, maybe everybody can agree. If it turns out that And we definitely count that as a new crime, maybe a crime of violence. So maybe as we have that data, it may be very important and easy to collect. And maybe you categorize it as a separate data not necessarily a it a this or a that, it's own thing. Repeat violent offenders, again, if I had my brothers and I had to make a choice, it would be repeat violent offenders. So two DVDs, two aggravated assaults, an aggravated assault in prison and an aggravated assault outside of prison. I think we need to understand our violent offender population, and you'll capture that, actually, if you're collecting all the data elements of prime type, you will know that. So if you're collecting, I mean, you're collecting primetime, you'll know how many people are convicted of murder who were released and re offended within five, ten years. And was that a violent offense? You would know that if you're collecting that data.

[Rep. Martin LaLonde (Chair)]: We don't have that data out there, it's just that the data is there, and we can get it in an ad hoc manner. But we're trying to make it a little more consistent. Barbara had a question.

[Rep. Barbara Rachelson (Member)]: I'm thinking a lot about what we can do with our current resources, and I've got to break that down so I would try to stay focused. What we need, as you said, everybody needs something different. So I'm like, what do we need? And so, yes, it matters what type of time, But it also seems like it's really important to know, we'll get this, I think. Is there a sweet spot for how long people were spending in prison? Did some people get some service? Because if we're just looking at it in the aggregate, the people that got methadone and got their GOP might be the ones that are not recidivating. And so it just seems like knowing what the variables are in terms of what we're spending, right? Because as you said, if somebody doesn't need to be in prison, why spend whatever? I don't know what the figure is right now either. Especially if they're I know nationally we hear the longer the sentence, the more likely for certain I mean, not life sentences, but it doesn't help lower incidivism rates. So it does seem like that would be really important information as we look at what we spend and how we get our money's worth is easier.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: I think that's a great point. And I think, though, that as we think about this, the heading of the statute is a standard. So it's a standard. It does give you information about, again, theoretically, age, race, gender, crime type, and how long, if they re offended, within what period of time. And then I think if you want to dig in to those kinds of questions, which of these offenders received methadone and behavioral health treatment and their GED, and they were there for three years, as opposed to a person who was released in two and didn't I I don't know, you really have to have an apples to apples thesis, which I think then you come up with for your specialty reports. And the theory is you can ask DOC what they did, or AHS. If this person was released into the community successfully, I mean, that's another thing that we haven't even gotten into is desistance and how many people are not going back to jail after five years. But again, how are we So I think that it's, at that point, maybe you are talking about specialty reporting from AHS and DOC about their programming. I know that when the criminal justice council comes in and has comments on the criminal justice system, it often devolves to our human resources system, I mean, human services system. So it's like, how are we doing? And we know it's not just putting people in jail and releasing them, it's providing them with appropriate connection to services. So we only have two more minutes. Sorry. No,

[Rep. Martin LaLonde (Chair)]: no, no, we often have lots of questions included. Ian has a quick question, and maybe Angela has a quick question. And

[Rep. Ian Goodnow (Member)]: probably not an answer per se. But appreciate it. And clearly, the more information we have, the better we can make informed decisions, blah, blah. My question is just, is there any information that we need around accessing federal funds based on having data or definitions of recidivism? I think it would be something I would want to make sure that we're looking at so that we can craft our definition so that if we can provide that data and get access to monies, that we're actually doing that.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah, yeah. No, that's a great question. I

[Rep. Martin LaLonde (Chair)]: just wanted to

[Rep. Kenneth Goslant (Clerk)]: have that answer. Yeah,

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: yeah. No, I think that's a great point, and that's a great question. And we should maybe public safety has some insights. Maybe DLC has some insights.

[Rep. Ian Goodnow (Member)]: And maybe we're not able to access those funds now because we just don't have the data to be able to or the definition, so we don't.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Well, that's a good question. In this 30 to 34 state group that actually has consistent data, more or less consistent data, is that because they've been required to do something.

[Rep. Ian Goodnow (Member)]: Or some funding.

[Rep. Angela Arsenault (Member)]: My question is along the same lines or under the same category, in that it's probably not I don't expect an answer right now.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: But I really appreciate you saying that you don't know how we're doing regarding juvenile justice and probation. We do know how we're doing, in many cases, well. In some cases, Okay. But we don't have insights into that, I don't think.

[Rep. Angela Arsenault (Member)]: Right. And so as we're talking about the need for data in the criminal system and how vital it is, I want us to be mindful of the need for data in the juvenile system and understanding the respecting confidentiality and everything. But wondering if in your conversations, it's discussed, how can this data be collected and shared in a way that respects the confidentiality, but still provides us the tools we need and the information we need to to make our to make our decisions, to make statutory changes that are data driven rather than anecdotal.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah. No, I believe that DCF operates on a very antiquated data collection system. So that is a frustration that we face. We don't have data. And they can manually collect it by going through files, but they have case managers who are now so overlooked, worked with their key slip burdens that it seems like the last thing they feel like doing after a long day. So I do feel like that is an issue. It absolutely is. But right now for the recidivism definition, it doesn't address the juvenile system because it can't. And we don't have a facility. And if you're talking about arrests or detentions, you know, the closest thing we have is Red Clover. And my understanding is that's very short term crisis response. Yeah. Yeah. I think the definition of them to be

[Rep. Martin LaLonde (Chair)]: tailored. Yeah, yeah. So one step at a time, I guess. So I really appreciate it. No, this has been helpful. Been glad to think and talk about. And we'll be having, I predicted eight versions before we get to a bill to pass.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yes. We get there. That'll be great.

[Rep. Martin LaLonde (Chair)]: And and if you'd send us your your your suggestions, and we're gonna have some more testimony this afternoon. Tomorrow, we're gonna probably have some discussion about what to do, but I have some ideas that I'll propose given your testimony that we've already had, but we'll be circling back to another

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Okay, thank at some point. Yeah. I do have a I mean, I have a real interest in how the accountability court or the accountability docket does, because it's different in that it's doing a warm handoff in the courtroom with an assessment, a case assessment and a clinical provider right in the courtroom. It's a limited population of, well, mean, 43 resolutions, but a universe of about 107 individuals. It's a trackable, countable initiative that I would think that we would want long term data on, in terms of recidivism. Whatever that means in that context, it may not be this.

[Rep. Ian Goodnow (Member)]: And on

[Rep. Martin LaLonde (Chair)]: the accountability, we're ready for hearing with the Senate Judiciary. But probably the February when it's wrapped up and we can get the information for the whole thing. So that's kind of the timing wise. Because my understanding is wrapping up to the February is what I've been told. And Chittenden.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: Yeah. Wrapping up is a strong word in that it's wrapping up in its current format. They're talking about how to fill the hole. Right, right.

[Rep. Martin LaLonde (Chair)]: Timing wise, I wanted to let you know that, because we'll certainly have you on that as well. Thank you.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: So we'll get to you guys,

[Rep. Martin LaLonde (Chair)]: but not right now. No, yeah.

[Jaye Pershing Johnson, General Counsel to Governor Phil Scott]: So I was gonna go out

[Michelle Childs, Office of Legislative Counsel]: and do it. It's like

[Rep. Martin LaLonde (Chair)]: until 01:00, and go off live.