Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Committee this Thursday morning, January 29, we're gonna turn to a drive by of H five forty, which is a bill that is in corrections and institutions. It's an act of leading the recommendations of the post adjudication comparative program working group. And we're gonna have our first walk from our leading legislative council. So excited to have you here and telling us about this bill. Excited to

[Hilary Chittenden (Legislative Counsel)]: be here. So we're on H540, still the bill as introduced. Corrections did not have any suggested amendments.

[Martin LaLonde (Chair)]: Can identify yourself for the records as well?

[Hilary Chittenden (Legislative Counsel)]: Thank you. I think I'm supposed to remember to do. Hillary Chittenden. Hillary Chittenden, Barack's

[Barbara Rachelson (Member)]: the Ledge Slave Council. This

[Hilary Chittenden (Legislative Counsel)]: bill makes a few changes that were specific statutory language recommendations from the post reparative program working group. So 2024, Act 180, legislature made a number of changes related to restorative justice approaches, created a pre charged diversion program, and then essentially told this working group to make some changes to streamline and make uniform how post adjudication diversion worked. Representative Dolan, fair assessment of Act 180? Yes. Great. So the working group was chaired by Chief Judge Zone. There was a DOC representative and then several representatives from the different community justice centers and community based restorative justice groups. They met several times over the course of the year, submitted two interim reports, and their final report in December suggested several specific statutory changes. And that's exactly what this bill implements. So if the committee is interested at any point, there is a four page, concise, delightful final report from that working group that really lays this out with a couple of sentences of explanation about why they made those changes. I'll try to touch on that in this brief walkthrough, but that's the first place to check if you have some other questions. So section one. Prior to Act 180, there were two main places where the restorative justice program was mentioned. And that's in Title 13 in Crimes and Criminal Procedure because being referred to a post adjudication reparative program is a sentence. So that's what section one is doing, is making some recommended changes to where the sentencing provisions reference the restorative justice program. And then the second place, which will be the other two sections of the bill, are in Title 28. So because DOC is doing a lot of work related to referral and operation of the program, the probation sections in Title 28 or the other places to kind of make changes. So in terms of where we are in statutes, sentencing in title 13 and then probation in title 28. So section one, we're on page one, line 12. This section is talking about sentencing alternatives, and it basically lists factors a court has to consider in deciding whether to order what kind of sentence, and then it lists the possible sentences. So the bill, now we're turning to page two. The bill does not list all of the options. It lists one, two, and then you see the lovely three asterisks to indicate that there are some more possible sentencing options. But the changes here on to subdivision two, so lines two through 11, are really making some changes so that this subdivision looks like one, three, four, five, and six, which just have kind of a short reference to the option for the sentence, and they don't have a ton of language about what the sentence means. But don't worry, all this language is not gone. You'll see it has been instead moved to a new section that kind of puts in one place everything you need to know about the restorative justice program. So on line two, you'll see the recommendation was to change the word board to program to be more consistent with how this is referred to across statutes. And then lines three through 11 is removing language about referral and which cases can be referred. But all of that language we'll actually see in section three. So we'll talk about it more there. Any initial questions about section one?

[Martin LaLonde (Chair)]: Thank you.

[Hilary Chittenden (Legislative Counsel)]: We aim for clear, won't always get there. We'll do our best. Moving on to section two. So that's the only change, sorry, section one, that's the only change in title 13. So that's the one place where the sentencing provisions reference being sentenced to the restorative justice program, making really just kind of those changes for consistency. Now we're in Title 28. So these are several sections about restorative justice program. Section two is making one change to 28 BSA nine ten. First, we're on line 16 on page two. It's making clear by adding a sentence or on line 16, it's making clear that referral to a restorative justice program can be a sentence in and of itself. Or if you are sentenced to probation, one of the conditions of the sentence of probation can be participating in a restorative justice program. So we'll talk a little bit more about that on the next page. If anyone is not immediately clear to everyone exactly what that means. We'll talk about that a little bit more. But that's the change that's just clarifying existing law that being required to participate in a program can either be a sentence in and of itself or can be a condition of probation.

[Martin LaLonde (Chair)]: So this also connects up to the 13 BSA, the Title 13. In Title 13, we're saying this could be a sentence. And we're clarifying also when we get to the title 28. Yeah. This can be a sentence. It's kind of

[Barbara Rachelson (Member)]: Exactly. Okay. Thank you.

[Hilary Chittenden (Legislative Counsel)]: And in fact, in title 13, this is in the asterisk language that's not there. But there's a second section that says, and just to be clear, referral to the board can be a sentence or it can be a condition of probation, preparation attendance. So we say it in a lot of places to make it really clear for everyone that those are two options. But we'll say it most clearly in section three that we'll get to in a second. So the one other main change that section two is making is that under current law, being required to participate in a restorative justice program can be a sentence or condition of offendance of probation or can be something ordered for civil contempt of a child support order under 15 VSA six zero three. So section two would remove the language that would allow referral to a community reparative program for civil contempt of a child support order. So the working group two explanations for this recommendation. They said, one, we've never seen this. And two, this doesn't look like the other kinds of things. We are referring to a restorative justice program after adjudication because it's not a criminal violation. If you have more questions about that reasoning, I think you'll hear from Chief Judge Zone and he or other members of the working group could provide further explanation about that. Suggest a change. Yeah.

[Martin LaLonde (Chair)]: Go ahead.

[Angela Arsenault (Member)]: Just ask a question about on line 19, we're keeping the word boards there, community reparative boards. Is that because program was just mentioned in line 18?

[Hilary Chittenden (Legislative Counsel)]: Yeah. So there is this part of title 28 has a couple different sections, and it basically says in nine ten, there will be a program. The program will be carried out by boards. The next section then says, the boards will do the following things. So I think teacher Goslant in testimony before corrections had said, you have the program. Boards are under the program. They kind of carry it out. In future, there may be future places to pay attention to how all of these things are referenced in the statutes. But that at least for line 19 purposes. Thank you. No problem. Any other question about section two before we go on to section three, which is our big, big, exciting new section? Great. So as I was just saying to representative Arsenault, these sections in title 28 say there is a restorative justice program. The next section says, and it shall be carried out by boards. The next section says, the boards shall do these things. This would add another section after those saying, and here's how you are referred to a program, and here are other things about how the program's gonna work. This is kind of a one stop shop for how the restorative justice program will operate. So starting on, we're on page three, line three, Subdivision A or subsection A describes what cases are eligible for referral to the restorative justice program. So not all cases, you cannot sentence someone to participation in the restorative justice program for all cases. It has to be for either an offender who has pled guilty to a nonviolent felony, a nonviolent misdemeanor, or a misdemeanor that does not involve the subject areas prohibited for referral to a community justice center. I'll talk more about that in a second. But subsection A, it's saying what cases are eligible. That's actually current law. If you flip back to page two, lines three through six, we used to say which cases were eligible for referral to the program in this big paragraph sentencing. And instead, we're saying, alright, we have this new section talking about the program. We're gonna put it all here. And that's where we are spelling out. The bill would spell out which cases can be referred to the program. So it's not new, but it's putting it in this kind of one place to look for everything you need to know about the program.

[Martin LaLonde (Chair)]: But it's all current law.

[Hilary Chittenden (Legislative Counsel)]: Yes. Subsection a and kind of a preview subsection b too are not new. They are just moving current law that was in title 13 to title 28. So that if you want to know how restorative justice programs work, you come and you look at this one section. You don't have to cross reference. And we're not putting it in two different sections.

[Martin LaLonde (Chair)]: Thank you. Yeah, go ahead

[Barbara Rachelson (Member)]: and make sure that Can you

[Angela Arsenault (Member)]: just remind me why, as for post adjudication,

[Martin LaLonde (Chair)]: can you

[Angela Arsenault (Member)]: remind me why it's plead guilty and

[Barbara Rachelson (Member)]: not found

[Hilary Chittenden (Legislative Counsel)]: guilty? It's an interesting question. I'm not sure, but I'm happy to look into that and get back to you. Sounds like one of our future witnesses might know the answer. So I will look forward to hearing that too.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: I'll ask it again.

[Hilary Chittenden (Legislative Counsel)]: Great. Any other questions about subsection A?

[Martin LaLonde (Chair)]: So you may have questions.

[Hilary Chittenden (Legislative Counsel)]: All right. Subsection B. This section specifies, as we kind of mentioned before, that referral to the restorative justice program can happen even if the court does not place the offender on probation. So you can be sentenced to the program even if you're not put on probation. The sentence is go participate in the program. If you are sentenced to participate in the program on its own, not as a condition of probation, what happens if either the representative board doesn't accept the case or the person does not complete the program? In those cases, the person has to return to court for further sentencing. And at that time, the court will provide a different sentence. Again, that's not new. If we look back on page two, line six through 11, that is what is spelled out in current law. Subsection c on lines 14 through 15 is kind of corollary to that. It's saying that a court can sentence someone to the program on its own, not as a condition of probation. And also, it can be a condition of probation. That's all kind of clarifying current law.

[Martin LaLonde (Chair)]: Oh, is that Okay. So it's current law, but it's clarified.

[Hilary Chittenden (Legislative Counsel)]: Yes. So it's not taken from it's not removed from title 13, but this essentially mirrors language that remains in title 13, just confirming and does not change anything about how current law operates. Okay. Great. Any questions about that before we continue to move quickly through the rest

[Martin LaLonde (Chair)]: of this? No questions. Great.

[Hilary Chittenden (Legislative Counsel)]: Subsection D, currently there aren't factors spelled out anywhere, or there's nothing in current law that explains what a court should consider when deciding whether to sentence someone to participate in the restorative justice program. So the working group suggestion was that for uniformity purposes, providing some guidance about how courts should make the decision to refer someone to the program would be useful. So subsection D lays out that the court shall consider any relevant factors. So still very wide open for the court to consider anything it deems relevant, but it provides some factors that the court could consider, would be relevant. So whether there is an agreement between the parties for the referral, Two, the views of any victim of the offense. Three, the impact of the offense on the community. Four, the offender's willingness to participate in the program. Five, the offender's capacity to meaningfully participate in the program. And six, whether there are any orders of protection in effect or previously in effect between the offender and any victim. Any questions about that subsection? All right. Our last two on page four, lines six through 10.

[Martin LaLonde (Chair)]: Can I ask a quick question on that? Yes. So do we have those kind of factors elsewhere for I mean, where did those come from? Seems like I recall seeing these factors before when deciding whether to send something to conversion or preach Do we have total tactic on PK? Okay.

[Barbara Rachelson (Member)]: Karen, it's one question. Always

[Hilary Chittenden (Legislative Counsel)]: helpful when a member of the committee.

[Martin LaLonde (Chair)]: That's a better

[Hilary Chittenden (Legislative Counsel)]: Step in for me. Well, knows better than I, so excellent. Okay, thanks. The last two subsections, E and F, are also about kind of uniformity across the state. So making sure that the way this program operates looks the same or as much the same as possible across the state. So subsection e is saying that there shall be standard forms. The court administrator is charged with creating them, but that would be used in all courts in the state. Standard forms for referring to the program. And subsection f is that there will also be standard procedural rules and Supreme Court may adopt them. We don't get to say Supreme Court shall do something, but we get to say these procedural rules, please go forth and make them uniform if you so choose. Effective date, 07/01/2026.

[Martin LaLonde (Chair)]: Excellent. Alright. Any other questions? I don't see any. So thank you very much, and we'll hear from Jeanne McCloyd next if you could identify yourself for the record and weigh in from the perspective of a community justice center on this bill. Thank you for being available and for your flexibility.

[Jeanne McLeod (Director, Barre Community Justice Center)]: Sure. My name is Jeanne McLeod, and I'm the director of the Barry Community Justice Center, and I was a part of this work group. And we appreciate the clarity and making reparative probation a priority for the more serious crimes because the community is always affected. Even if it's a simple DUI, people are out walking their dogs when people are driving around. And this is really a place for our community to have a voice. I will say we do not call them boards and we haven't since about 2013, we call them panels. And I don't know if that's relevant, but it's, they've always been called boards for many, many years and that was why we wanted to change, put in program to try to move away from the word board.

[Martin LaLonde (Chair)]: All right, that makes sense. Yep. Is there question about Yeah, ahead. Specifically?

[Angela Arsenault (Member)]: Yes. Hi, Judy. Thanks for being here. So I know, for instance, things are going to change, but the will from GJC where I've

[Barbara Rachelson (Member)]: been a volunteer, there's a board, like kind

[Angela Arsenault (Member)]: of an executive board, and then there are the panels who are doing the work and meeting with community members. Is confusing in this event to have I'm really questioning the use of the term boards, and I know they used to be just called preparative boards, but that language doesn't reflect current terminology in my experience. Is that fair to say?

[Jeanne McLeod (Director, Barre Community Justice Center)]: That is fair to say. And it was changed for a reason that I am very vaguely recalling about what a board is and what a panel is. And the boards are open to the public and panels are not. And what happens in restorative panel is not a public event. So that was why the language was changed all those years ago. And but you know, it's hard to break a mold. We've always been your reparative board was how it was born. But that was kind of why we use the word program. So I was a little surprised to see boards throughout here still. If the work is the work, and it's done by what we call a reparative panel, restorative justice panel.

[Angela Arsenault (Member)]: Right. I guess that's Yeah. Right. I would just wonder if there are still going to be boards under the name of Yeah. That'd great.

[Barbara Rachelson (Member)]: So I think it's because there's two different titles that we're working in. And title 28, board is referenced multiple times, and that is a corrections thing. Like, they would need to work on cleaning that up. When we did act 180, that was in the diversion, and we have more authority to be

[Angela Arsenault (Member)]: able to clarify and make it clear. No counties, Yes.

[Martin LaLonde (Chair)]: Thank you. I would suggest that, and I would imagine that they've heard this sound in the corrections, but I can pass that along. That a little confusing for us.

[Angela Arsenault (Member)]: I may, Jean, I think

[Barbara Rachelson (Member)]: you would say even though this includes the board language, this still clarifies a lot of the work from where it has. This is a huge step forward and there are tweaks that can still be made.

[Jeanne McLeod (Director, Barre Community Justice Center)]: Absolutely, yes.

[Martin LaLonde (Chair)]: Okay. Any further comment on this or do we have any other questions? Yeah, Tom.

[Thomas Oliver (Member)]: I'm just curious, trying to figure out the best

[Martin LaLonde (Chair)]: way to word it.

[Thomas Oliver (Member)]: Restorative justice sentences open ended? Can you be referring to restorative justice programs multiple times? Or is there a cap or or is there a place in this in which somebody might think it's not meaningful for this person anymore? It just concerns me sometimes.

[Jeanne McLeod (Director, Barre Community Justice Center)]: Yeah, and that would be where the program itself would be like, wow, we've seen this person three times, and we're not going to do that. We can bet a case and say no, and then it would go back to the court. If we feel a person had been through multiple processes, and it was not being effective for them, the center has the ability to say it's inappropriate and send it back.

[Thomas Oliver (Member)]: And so that's going to come directly from the court or some type of pretrial services or something like that. Is that how you're going to get the case?

[Jeanne McLeod (Director, Barre Community Justice Center)]: That would be, you know, the coordinator of the program and probably run it by the panel themselves on a meeting saying, Look, Joe is coming back to us for his third time. And honestly, the court also looks at that too. And they're probably if they understand they've been through a few times may not send them again, unless the crime was very different, unless the crime had a lot of people impacted, because we're also there to be the voice of the victim and give the victims a chance to speak. It's, again, that ability of the coordinator and the program to say this case is not appropriate would take care of repeat offenders who we feel wasn't working for.

[Martin LaLonde (Chair)]: Thank you. So this might not be a question that you can answer and it's maybe slightly out. No, it's not outside of this. Bill. So I understand court diversion at the end if it's successful, records can be expunged. We have a bill that would change that to ceiling. If somebody is sentenced to restorative justice program, at the end of their sentence, at the end of either the probation or their term in the restorative process, what happens to the records in that instance? Are they expunged or are they not deleted because it was as part of a sentence, not court diversion?

[Jeanne McLeod (Director, Barre Community Justice Center)]: Correct. They're not expunged. There is that twist of it's called reparative without probation, but even so, but they're on probation and that's going to be also on their record. So both of them, I believe, are, mean, I don't know, we don't do reparative without probation much here, but they both still are on their record. But these are also more serious crimes than probably are going to the pre charged diversion. So they probably should stay on their record.

[Martin LaLonde (Chair)]: Right, okay. All right, thank you. Any other questions for Jeannie? Natsu, thank you so much again for being available. So we'll hear from Kim. So we'll postpone Kim again. Thank you for being here. I would say thank you for your patience, but I don't that'd be presumptuous of me. I know you're so sorry. That you're patient.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: No. As long as I'm joking, I'm actually not. Yeah. So if I stop joking, then you'll know I'm

[Martin LaLonde (Chair)]: Oh, okay. Alright. Fair enough.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Kim McManus, Department of State's attorneys and sheriffs. My testimony is very short on H540. As was explained by legislative counsel, none of these changes are changing existing law. They're just clarifying how it's stated and where it's stated. The only thing that is new are the factors. And I would just point out that in the report, the November report, the working group did note that there are no analogous provisions in current statutes to these factors. So they created these factors, but they said in there, they're not pulling it from somewhere else. I think the pre charge diversion, there's different requests for policies to be made about the factors, but there aren't actually factors in statute. So just wanted to note that. But the factors listed here from our department's perspective, as long as the department has the discretion and that is there, whether or not we agree or not to the referral, and that that's one of the issues that could be discussed when this is caught up, our department has no issue. Five, one, zero.

[Martin LaLonde (Chair)]: And you had a question.

[Angela Arsenault (Member)]: I have two questions. I'll go in backwards order because the second question is about the factors, or one of the factors in particular, number six, page four, lines four and five. I'm curious if from, I don't know, the prosecution's perspective and certainly the court's perspective, if the existence of orders of protection might hinder the moving, say, a domestic violence case to restore the communities?

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: If there's a protective order in place, very possibly. Though I would think domestic assault charge would likely fall outside of that because it would be considered violent, not a nonviolent misdemeanor. So it's eligible for recharge but not post adjudication? I think Okay.

[Barbara Rachelson (Member)]: So we passed a law forget how many years ago, like three years ago, if wanna share. That

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: it could be considered if they had a program and an MOU.

[Barbara Rachelson (Member)]: So there's very specific factors that would need to

[Angela Arsenault (Member)]: be in order for an

[Barbara Rachelson (Member)]: intimate partner violence case to be seen at a justice subject.

[Angela Arsenault (Member)]: Right. And I'm worried that I think that law was passed to try to address the very real need for victims in these cases to feel a sense of justice that they don't tend to get from the criminal justice system. So, I guess at this point, they'd already have gone through the criminal justice system, their post adjudication. And it's a folly that the court shall consider.

[Barbara Rachelson (Member)]: So, it'd be looking at,

[Angela Arsenault (Member)]: do these folks want to come together? Right. I wonder if the views of any victim of the offense, if that would be enough to If a victim were to say, I would like, I need this person to be making a living and not in prison, and whatever can we have can we go through I wonder if that would be enough to counter updating HIPAA. And who knows what the the orders of protection, what the stipulations would be and everything. I'm just trying to think Trying to make sure we're not working against our own efforts as a legislator and aware of the very real challenges faced by victims of domestic violence in the criminal justice process. If we're just throwing up another

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: No, I think, Dirk, I understand your concerns. I think by having these be factors that the court weighs, the victim's views are one factor. If there is an existing or was an existing protective order, we can look at that, see what the protective order as you said, there's a real range there. It might be that they can communicate, but the person can't be at their house. There's levels, and those can also be modified depending on where the criminal case is going. That protective order could be modified, and maybe that's being factored in as well. So I think the fact that there's not an outright prohibition, that if somebody has a protective order in place, you automatically can't go, it's just raising the awareness that that's another thing to just check and cross check. Because often what will happen, and it's unintended, is the criminal case will finish. And sometimes the victim will conflate the protective order on the criminal case, even though they're completely separate, and think, oh, that protective order is all done, and it's not. So it's just, I think, listing it here is making it having it be an awareness for the court. And with the work group's reasoning, the idea of these factors is so that we're having more consistent outcomes as far as what cases are going into the program. I believe that was the intention. Judge Lena, you can most certainly talk more to that. But I think as having factors and just the fact that a factor exists doesn't mean it's not outweighed by other factors.

[Angela Arsenault (Member)]: Okay, thank you. And then the first question that I'm asking second is on page three, line four. I was just wondering if you have thoughts on the use of the word pled guilty, who has pled guilty instead of who has been found guilty?

[Barbara Rachelson (Member)]: I don't know. This is my assumption of it, but I don't know if it is because part of the restorative process is that somebody takes accountability for their actions. And so if you plead guilty, you're admitting to it. I don't know. That's my assumption in it versus if you're found, you might not be willing to

[Angela Arsenault (Member)]: Yeah. It's an amenability measure. Yeah. Yes. We also mean, we also mentioned that as a factor, vendors' willingness to participate in the program and capacity to be able to participate. Yeah. If it's intentional, that's great. Then it also doesn't close the door to this as an option if folks were found guilty?

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: The way it's written right now, And I would have to look at I mean, that is the language that exists right now, so I'd have to look back when that was written. I believe that was intentional to the point of that somebody is. Yes. Okay.

[Martin LaLonde (Chair)]: All right. No other questions. Thank you so much. All right. So this afternoon we'll have to donate on this bill. And I think that we share jurisdiction, but corrections is taking us up. I'll ask folks at the end of that if there's anybody else we wanna hear from or if we're ready to take a straw poll on this. It sounds like it's largely moving things around in our statutes. Alright. So we're we also have Lutzom Milot at 01:00 to comment on the latest revision of the Annapolis Volatile Bill. There's a couple other things this afternoon, including a vote at 02:30. Can you tell so so do you wanna give us where you were since you were Steven Brown did call you out on me. Called me out. Good. Yeah. Left. But I went to do the drive by with government operations and military affairs on H4541, the interference of voters in elections bill. They had some interesting questions. I tried to represent our committee as best as I possibly could, but I'm sure I was found lacking. Attorney Devlin did his job, and they came out on a straw poll of ten zero one. In favor of that? Favor. In favor. So we have a scheduled vote on it at 02:30 this afternoon. At 03:00, we have three individuals in who are in the state house on mental health awareness day. I just asked them to address concerns related to the intersection of mental health and criminal justice. We'll see what they have to say. And if there's a little time slot in among all those things, I would like to get back to the voyeurism bill to just talk about what I understand are the two remaining issues that we