Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Thank you, Nate. Welcome back, everyone. We're discussing bill h six four two, an act relating to youthful offender proceedings. And next, we're gonna be hearing for from Judge Davenport, counsel for Equitable Youth Justice.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: Right, thank you very much. And I'm once again happy to be here. I think this is the first time this session, Or I see her last year, guess. So this year. And I did file a memo on the original draft of the bill. I have it in paper copy if anybody wants it. I know some of you are very up with the electronic stuff, but I'm not as good at that. And the paper route. I love the paper route. I'm joined today, the Council for Equitable Youth Justice, as some of you may recall, is the state advisory group that we do a number of things, including grants with the federal juvenile justice money. We make recommendations to DCF with respect to how the juvenile justice money should be spent. Send out We try to look for gaps in the system, in the youth justice system. We send out requests for proposals to try to find services to fill gaps. We do follow legislation involving the juvenile justice system. I'm joined today by Judge Hayes. Judge Hayes is also a retired superior court judge who recently joined the council. She is helpful for me because she has far more immediate experience. I, as you know, retired in 2015 and do not regularly sit on the family rules committee, but I don't regularly sit in the family division or in the Superior Court. Judge Hayes has much more recent experience. I will be cycling off the council at the end of this month, and she has cycled on. And so you may see her more frequently in the future. I know that your time is limited.

[Rep. Martin LaLonde (Chair)]: Whatever time you need.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: Thank you. So before I comment on the specific provisions in the new draft, I just want to say, this is an incredibly successful program. We should be all patting ourselves on the back for a really successful program. You all very astutely asked CRG to give you data on this program. And data specifically related to recidivism. Now, sadly, with criminal justice programs, recidivism, and that is whether or not an offender re offends within a one, two or three year period. I know you all know about this because you've been looking at recidivism bills and definitions of recidivism. There are many ways that we could track how good a juvenile justice program is. We could look at education, we could look at housing, we could look at employment. We don't have easy ways to do that. The one way we have is to look at recidivism rates. Now, just to give you a context, in this age group, which can range from 14, although that would be rare, it would be more likely 16 or 17 to 22, you're dealing with an adolescent cohort that has a high recidivism rate. When the council funded a study, I think it was four or five years ago, to look at the recidivism rate of 18 and 19 year olds who had gone through the criminal division. And we specifically kept out of that study any big 12 offenses. So none of the big serious violent offenses. We were looking for a benchmark to compare what happens to them when they go through the family division. And that's a study that's currently in progress. But when we looked at the recidivism rate for those 18 and 19 year olds that went through the criminal division, the three year recidivism rate was close to fifty percent. Recidivism rate that you got for the ninety five in bio individuals that went through the bio program during a two year period, I think was from 21 to '23 or '22 to '24, the two year window. There were 95 individuals. And the criminal research group found that the one year recidivism rate was ten percent, the two year recidivism rate was sixteen percent. I don't know of any other programs involving offenders that have a recidivism rate that is that low. And that's why I'm saying this is an incredibly successful program. So not that it isn't important to look at various aspects of that program to tweak them if there are problems, but just keep in mind that this program as it exists today is incredibly successful, at least based on data. Yes. Kids Are that get into this program who mess up? Yes, there are. But are there kids in the adult programs that mess up? Yes, there are. It is the hallmark of adolescent kids that one time or another they're going to mess up, and sometimes very badly, and sometimes repetitively. So I just want to start with that because I think it's something that gets lost sometimes.

[Rep. Karen Dolan (Member)]: Don't know, Kate, do you

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: have anything to add, Doctor. Hayes?

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: No, that was great. Absolutely right. Thank you.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: Judge Hayes said, so looking at the First Amendment, adds to the criteria, whether or not the youth has acknowledged that harm was caused by the youth's alleged conduct. We had two concerns about this. I'm not a restorative justice professional, and maybe one should hear from restorative justice professionals. But my understanding is that acknowledgment of the harm caused by behavior is an outcome of restorative justice as opposed to what would get you into the restorative justice program to start with. So I worry a little bit that that's just putting the cart before the horse, although it is one out of a large number of criteria. The other is the additional language that was added to shield the use if the youth did acknowledge the harm in a hearing on YO consideration. To shield the youth from impermissibly having that acknowledgment. Because the youth is subsequently going to go to merits in the family division. And so this provided that the information related to the offense shall not be used against the youth is designed to try to allow the youth to say that he acknowledged harm without incriminating himself or herself. I just would remind the committee that the judge that's going to be making the decision in most cases, not all, but most cases, the judge that's going to be making the decision about YO eligibility is the same judge that's going to be hearing the case on its merits. It's not a jury, it's a single judge. And judges are really good at compartmentalizing, but that's a heavy lift in terms of compartmentalizing. So those are two concerns about adding that language. The next is the extension of jurisdiction on page five. I think we have no comment on that. We understand what the purpose is. Maybe it should have an endpoint. But we don't So that we're not talking about having the youth under jurisdiction indefinitely. And maybe it should have a requirement in terms of how quickly in those particular cases revocation hearings should be scheduled, because you want to get it scheduled quickly. But we don't have a problem giving those parameters with the extension. On page six, the two added criteria, are This just goes to revocation, sorry. On the revocation hearing, adding the criteria from Subdivision 528482. Maybe the language should be on whether the youth continues to be amenable to treatment. You've already found that the youth is amenable to treatment. That was your initial finding when you found them to be eligible for this program. So rather than, I guess the language that Eric has remains, continues to be, maybe it's the same thing. But I think that's the concept there. Whether there are sufficient services in the juvenile court system. I mean, things could have changed. So that the services that were looked at during the initial consideration, now the youth has shown some behaviors that require additional services and are those services available? So again, whether sufficient services continue to be available in the bugle of porphyry system. So really the most problematic, I think, is this failure to appear section without good cause. And there are many reasons why a youth in this age bracket, especially the youth that are 18 and over might fail to appear. And one of the most obvious ones is homelessness and the inability to get mail. The inability not having a phone, not being able to be contacted in some kind of way about a court hearing. But again, think your good cause language covers that. And I think that the language in the second provision issuing the court summons or a judicial summons, I would add a reference to 33 BSA 52,000 six-one, which is reference to the juvenile the provision that Eric mentioned that is in the subchapter on juvenile probation. And that does allow for the judicial summons. Does it pose a problem to have kids who go out of state? Yes. But I would really steer clear from giving the family division the tools that are in the criminal division's toolbox, I. E. An arrest warrant. Family division currently does not issue arrest warrants, and we shouldn't be issuing arrest warrants, I think, in this situation. So if you have a youth who is summoned using a judicial summons, maybe at that point they fail to appear, maybe at that point you revoke, send it to the criminal division. Let the criminal division issue the arrest warrant. Let the criminal division detain. But don't do it while they're still in the family's eviction. The family division has an overall rehabilitative purpose, and using those kinds of tools are generally thought of to be inconsistent with that.

[Rep. Karen Dolan (Member)]: So

[Rep. Martin LaLonde (Chair)]: could it be that we combine each two that essentially the first step is the second choice, the summons, and the issue in order for abstention? Then if that doesn't work That fails. The second step?

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: I think that that would be better than having the family division issue a restaurant. I just think then you begin to blur the lines between the two courts in a way that feels very uncomfortable as someone who's tried to figure out family conditions.

[Rep. Martin LaLonde (Chair)]: So is the order for the juvenile's apprehension in the arrest warrant, is that that's different, isn't it?

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: It's the order for the in the five two zero six talks about the court may summon the juvenile to appear before it. That's a judicial summons. And you can say a judicial summons during court hours. So they're brought to the court during court hours, But it's different from a restaurant. It is different from putting a kid in handcuffs. Right.

[Rep. Martin LaLonde (Chair)]: Right. Right. Yeah. So so but let me just make sure that, again, the juvenile's apprehension component, that is that fine under 33 BSA 5,206, that the way that language is? Or are you saying that it shouldn't have that

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: In order for the use apprehension for purposes I would just say consistent with section 5,206 subsection one. I would just cross reference that so it's clear that you're using the same kind of juvenile probation proceedings for getting youth to court in the YO when the YO is in the family division.

[Rep. Martin LaLonde (Chair)]: Karen? Yes. Chair, you, I think, were out when it came up about the arrest piece, that there was a recommendation to make it clear or suggest that you could arrest at 18. So that was a suggestion to change it. So I think that's why it's coming up.

[Rep. Karen Dolan (Member)]: And so if I just to go down that road a little bit is, and what I'm hearing you say is it's not a family court tool that would make things messy. And instead, your preference would be that just get the revocators go to criminal court rather than having that tool there. Right. And I'm trying to balance it because I I'm not yeah. I'm not saying I want to go there, but, like, if you put it into criminal court, now that opens everything up. But is that still less messy than giving a criminal court tool in family court? You know what I mean? I see it as, okay, not great, but I would rather them not be in criminal court, but in family court with a not so

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: great tool. To confuse things. There is one way that the family court does issue arrest warrants, but that is only in the criminal contempt. So holding somebody in criminal contempt for failure to appear in a child support case, for example, that would then trigger the arrest warrant because it's associated with a criminal contempt. I should make that clear. So there is an instance. I think when the youth is failing to appear You could give the adult court away once they've issued the arrest warrant, once they've got the juvenile. The juvenile comes in, the juvenile has a perfectly good reason why they didn't respond to the judicial summons, you could give the adult court the ability to send it back. But I just feel more comfortable.

[Rep. Karen Dolan (Member)]: If it goes to the adult, now everything's public and out there. Right? So you would have opened up the gates. Yeah, you do. Which is the piece that I want to do. But I hear the piece, the tension. Yeah.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: Yes.

[Unidentified Committee Member]: What about if we could do something that would allow for eitheror based upon adequacy or where the child may be, or the person might be if they're over a state line. A summons isn't really going to be helpful over a state line, the adult may want to go, or the behavior that's occurring, one might be appropriate versus the other.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: You mean one,

[Unidentified Committee Member]: I e To issue a summons first if it's appropriate situation, if not.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: And then go to the arrest warrant without a finding of contempt? Or you could make a finding of contempt. I just don't want it to take longer than it needs to.

[Unidentified Committee Member]: Well, could move it to the criminal court.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: Don't know. Think there's some other parameters.

[Rep. Karen Dolan (Member)]: Judge Haynes, do you have a thought on this?

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: There is an interstate compact on juveniles that we're part of, and that I think does enable It's not as efficient or as clean as NCIC. I know Wendy expressed concerns that whatever orders the family court issues are not as effective as arrest warrants because they can't be entered into the national criminal database. But there is a juvenile database that involves all of the other states that we regularly see folks living in and coming to and going to. I think all of the states are members of it and that would enable us to reach out to the, equivalent DCF in whatever state we know the person is in and ask them to pick them up and work with us to get them brought back.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: It would certainly work as long as they're 18. If they're over 18 and they don't qualify as a juvenile in those other states, then you might have

[Rep. Martin LaLonde (Chair)]: white choice.

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: Then the other thing that I thought of was, I wonder if we could, rather than simply saying revoke youthful offender, if we could suggest that it be temporarily suspended until they could be brought back to court, until they appeared in court, And an arrest warrant could then be issued in the criminal division. And then as soon as they popped into court, they would come right back. Or not. Or not. Yeah. If they didn't, then yeah. I think temporary suspension for a failure to appear without cause, and frankly, I think most judges are gonna, if there is any reasonable cause, they're gonna not treat this as warranting even a temporary suspension. Is there no cause?

[Rep. Martin LaLonde (Chair)]: There such a thing as a temporary suspension anywhere else with your full fender at this point?

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: No, but you could create one.

[Rep. Martin LaLonde (Chair)]: Make You could do that. Yeah, it's true.

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: I'm not sure. They just came to me as I was listening to the testimony this morning. I don't know what the counsel's position on it would be. I'm just speaking for myself. So it seemed to me that that might be a solution if you really want to include the first clause.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: There aren't that many revocations when I looked at the data from research the group, and really that data that you all got from the criminal research group, which really was so enlightening about how well this program is working, It seems to me that a more serious effort to really look at these 95 kids and what did they do and what were their outcomes And things like, what were the revocations? What were they about? And the criminal research was able to do that. They use court data regularly, and they are are remarkably good at it.

[Rep. Martin LaLonde (Chair)]: So a possibility could be still using the summons, the apprehension consistent with 50 o two zero six in in some language along the lines of, well, isn't blaming Jericho to use, but if it doesn't work, then you can do the temporary suspension.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: It failed

[Rep. Martin LaLonde (Chair)]: to We'll need to hear from some other witnesses on the concept of a temporary suspension versus a revocation.

[Rep. Kevin "Coach" Christie (Ranking Member)]: Mr. Chair.

[Rep. Martin LaLonde (Chair)]: Yeah, go ahead, coach.

[Rep. Kevin "Coach" Christie (Ranking Member)]: Judge Judge Hayes, that that was a great idea. And, you know, thinking from a practical perspective, having dealt with that population, you know, directly a number of different areas.

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: It

[Rep. Kevin "Coach" Christie (Ranking Member)]: adds to the toolkit, you know, of practitioners, you know, especially in the field Because you never know what tool is going to be the leverage one that triggers the response we're looking for. So having something, you know, that isn't, let's say, a sledgehammer, but it's more like a rubber hammer.

[Rep. Martin LaLonde (Chair)]: You

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: could also do just thinking about that, coach, you could also include warning language on the notice and the judicial summons saying, Here are some consequences. Your case may be going over to the criminal division and you may end up being sentenced. I think we could more alerts about I don't know whether those alerts work, but but there are a number of them in statute that say the notice shall include and Mhmm.

[Rep. Kevin "Coach" Christie (Ranking Member)]: And and that gets to chairman LaLonde's, you know, premise as well, you know. So hopefully if we get continued support from other witnesses that that's a good direction, that might not be a bad way to go, chair.

[Rep. Martin LaLonde (Chair)]: All right. Did you have more reports? Good choice, anything else?

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: Well, I did have on the acknowledgment of harm piece. I would just wanna double down on Judge Davenport's position on that. Think it's At this stage, they've been charged. They have not been found to have done anything. The only finding that's been made is that there's probable cause to believe they may have committed an offense. So asking them to acknowledge harm, this is so inconsistent with Fifth Amendment rights. I just really am troubled by it. And I think that any defense attorney, even with this language in the statute, will still tell them, don't, don't do it. Don't acknowledge that anything happened here. We want to preserve all of the options for your defense because there's been no trial. There's been no hearing. There's been no finding that they did anything.

[Rep. Martin LaLonde (Chair)]: Just for, I'm sorry, for further opinion, the reason why this is here is there's been recommendations or suggestions to go back to the guilty plea, the conditional guilty plea. And the idea here was something that was not that, but

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: I think you gotta pick. That would be my thought, that procedurally.

[Rep. Martin LaLonde (Chair)]: Okay. That

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: would be my preference.

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: The other thing I would add to what Chittenden said is that from the kid's perspective, from the youth's perspective, I pity the defense lawyer who has to try to explain to them, you can say this, but then we're gonna have a hearing on whether you did it or not. And the can't pay, the judge who just heard this can't take that into consideration. And the youth just says, What? What is this system? I don't know. I think more and more these days about what the system looks like from perspective of the people who go through it. And we can make all these imaginations, but it gets harder and harder to explain if you are trying to represent them.

[Rep. Martin LaLonde (Chair)]: Perhaps that's a good segue to hear from the Defender General thoughts. Yeah.

[Rep. Karen Dolan (Member)]: You very much. Thanks.

[Rep. Martin LaLonde (Chair)]: Thanks, Judge Davenport. Doctor. Valerio, if you could join us. Thank you for being here. Yeah. Yeah. I

[Matthew Valerio, Defender General of Vermont]: don't know about you. I'm not Valerio. I'm the defender general. To be clear, we as I said the first time I came through, we didn't support the original bill in any way. And that is looking for problems that shouldn't exist. This is apparently, this came into my email sometime between 09:30 and 10:00 last night. I did have a chance to look at it this morning while I was in another meeting. And, you know, one of the things I don't do that I think other folks do do is sort of negotiate ground away on these cases or on these bills and proposals because whenever I do that, it's I'm not representing one client. I'm representing thousands of clients and if I agree to give away a right or to change a procedure that's a compromise against something that's to the benefit of that client, it's not one client. It's 2,000. And what I see here, in fact, is you know, I hate to use, like, caricature, but this is putting lipstick on a pig. I didn't like it to begin with. I don't like it now. And this is trying to accommodate some of the concerns that I brought up to begin with, but it doesn't do it and creates other issues. So, you know, my original feeling about this, and I guess I will just tell you, is that I don't support any of it, and I'll deal with it in the Senate. And and it's perfectly fine. Happy to do that. The if you have any specific questions, I'll be happy to try to answer them or not. But what I see now is we have, notwithstanding any individual anecdote that might have happened three years ago, we have a system based on data that we've received that is working well. Doesn't mean it didn't work badly in one case or two cases, but we had a system before where we had 20 people a year doing youthful offender. And now we have hundreds of youths doing youthful offender. And the people who are taking advantage of it, for the most part, are doing very well in the program. And so while I I think there are procedural things that could be fixed in the regarding the youthful offender process. This does none of that and, goes after other things that basically seek to unravel the, very basis that youthful offender was designed to do deal with. And one of the big things is we wanted youth to get involved with. And as I think I heard the end of, obviously, judge Davenport's testimony, some of the overlays that go through this would leave defense counsel to say, don't do this. And and and any reasonable client looking at it with a parent or a guardian ad litem would likely say, don't do this. It will go back to having 20 people a year and youthful offender. And I've seen a bit frustrating over the last couple of years that over, you know, the last ten years, we had justice reinvestment one. We had justice reinvestment two. These various things that came out, not everything that came out of those things was good. But some of the good things that came out of one by one then reversed and repealed because the folks who didn't like it when it went in to begin with are now getting traction on on their issues again. And that's what I am kind of seeing with this, and so I don't support that. So, you know, that's that's where I am at on it.

[Rep. Martin LaLonde (Chair)]: Sorry, dad. Well, go ahead, Chris.

[Rep. Karen Dolan (Member)]: Alright. Thank you. She appreciates the perspective. I guess, like, I'm looking at this, and and I get the point of that we're making changes for a very small, portion of the group, that majority of this is very successful. And so I'm trying to look at this of what are changes that we can do that address that small portion that I realize we don't have exact data and all that on it and not impact those that are already really being successful in. So I hear the admitting harm piece, like that seems like that's pretty clear. Like that could impact those successful people from wanting to be a

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: part of it. But I

[Rep. Karen Dolan (Member)]: guess I'm having a harder time understanding how these other pieces would impact somebody who's already successful in the program from not wanting to be a part of it. If they know that if they don't come to things, they're not they're gonna potentially have to be summoned. Like, that I feel like that that's not as bad as you have to admit that you did something wrong right at the back.

[Matthew Valerio, Defender General of Vermont]: Well, yeah. I mean, one issue doesn't impact the other. You know, once but there are other issues as to the appearance. And is there a problem with what the judges do now? Is there you know, there are some folks who don't show up. There are lots of folks who don't show up all the time in in criminal court and in other courts and in family court and for child support hearings and divorce hearings and everything else. Many times and most of the time, judges you know, these folks have a good reason. And then there's a fair number of times where they have no good reason. But this is where a judge judge has discretion to use the tools that are at their disposal, get that person to court, or to make sure that their lawyer or try to get their lawyer to find them. Lawyers sometimes don't know whether whether they aren't going to show up in court, and then they've gotta figure out why. You know, you have kids who are in marginal situations at times. Some are homeless. Some are transient. Some are living with people who, you know, not family members, who don't have, like, a direct responsibility for them getting anywhere or being anywhere. There's issues with communication. There's issues with you know, do you even have the same cell phone? Do you have a cell phone? Are you share one of the things we find all the time with our clients, they share cell phones. So you call the person who actually has it in their possession. They don't tell you what's happening next. They don't have a set address. All of these are, like, good reasons why you don't show up to court. It's not a lack of wanting to show up to court. You don't even know you have to show up to court. That having been said, at some point, we figure out who they are, where they are, and we get them to court. And then there are some who are just kind of, you know, the miscreants who are just not gonna show up for anything ever. Well, those people are part of our system all over the place. It's not the majority. It's enough of a number to annoy people. Absolutely. I kind of disagree with the judges on granting family court judges the right to issue an order to bring somebody to court. The court is a unified court system. Family court judges sit in criminal court. Some judges sit in all three courts. In, you know, Madison County, the one judge sits in civil, family, and criminal. What's the difference? What hat you put on? You know, you're the judge. You want somebody there, you order them to be there. And, you know, it can their judge can issue all kind I like the ability of judges to have discretion to listen to the facts and circumstances and determine what they need to do to get this person to court. If they talk to the lawyer and the lawyer says to them, look. I know where this person is. I don't know why they happen not to be here today. Put this on for next week, and I'll get up here. That's good. It's you know, you shouldn't be revoking lethal offender status because of that. Let the judge exercise the discretion they need to to exercise. Do we not trust the judges to make decisions, like, that are within their discretion? I don't always like the decisions they make. Nobody does. But I would rather have them have the discretion to make decisions based on whatever facts and circumstances present than say you shall issue an arrest warrant or you shall, you know, shall drop the hammer, however big the hammer is, whether it's, you know, whether it's a rubber mallet or a sledgehammer, you know, let the judge make that decision. So I I don't want I I mean, I don't want the legislator legislature kind of throwing the baby out with the bathwater and going directly to this fudge hammer every time, let the judge make the decision about what's necessary. Invest the judge with that power to do what they need to do to get that person to court. I would suggest, and I see, you know, the judge both judges talked about, I guess, the, you know, the child support situation where people don't show up. To get in a situation where you end up in contempt and you are going to be subject to an arrest warrant for child support, It's a number of times. It's not just like, oh, you didn't show up. Now you're arrested. It's a number of times down the road. So we make sure this person knows they absolutely have to be there. They have something in their hand. Their lawyer has told them. Somebody else has told them. And they are just refusing to come to court kind of thing. So don't make the decision for the judge by putting it in legislation. Give them discretion to do what they need to do to bring them to court. That's all. So, you know, if I one of one of the things I hate to see, and I it's not the same thing, but it's akin to, you know, to this sort of thing. I had a client who was one of these guys who every time in November, December, when the weather started getting cold, he'd go out and steal something so he could make sure he could go to jail between December and April. And it was always some kind of retail theft. And the state's attorney would come in and say, well, you know, if you plead with a felony retail theft, we'll give you a deferred sentence. We'll put you on probation. You won't have a you won't have a won't have a crime on your record. And they and, you know, always sounds like a good deal, right, like you would make. He'd be like, no chance. I'll plead to four misdemeanors, and and I'll take, you know, I'll take ninety days of jail. And two reasons. Number one, he wanted to be housed during the cold weather. But number two was he knew he'd violate his damn probation and his his deferred would be violated, he had to put a felony on his record. When youth are making, like, this analysis, if they believe first of they've got to admit to a bunch of stuff that they didn't do so they can get into a program so they don't have anything even if they did something. Right? So whatever's alleged, maybe there's 10% of the 90 that that they were responsible for, and 90% they weren't, but they're required to say, yeah. Yeah. I I did it all, and it was so harmful. Well, some might just go along with it to get into the program. Also, you get the next step. What if what if you know that, you know, you've gotta you gotta make sure you're everywhere you're supposed to be, make all these appointments through that stuff. Otherwise, you're revoked, and you're sent back to, you know, criminal court, or you're subject to an arrest warrant. Are you if you're trying to do an analysis about, can I succeed the first time? Just like my client would say, can I succeed on a deferred sentence? They're gonna say, I'm not gonna do that. If they know that, like, what this system is going to take into account my circumstances, my transience, my homelessness, my what I have to do to survive. And I can get to court just to you know, if I know and I'm able. That is a recognition of that client's circumstances, and they're more likely to participate. To me, it's just about making sure the judges have the tools they need so they can respond under whatever factual circumstances they're presented with. So and I know they're probably, to some degree, conflating, like the original version and then the stuff that came in last night. But, conceptually, what you don't wanna do is provide harsh consequences in statutes that don't take into account the full circumstances, which would deter somebody from participating in the program at any level. And so and that's what I see see this doing for a program that's actually working.

[Rep. Martin LaLonde (Chair)]: Other questions from there? So I did have one as far as the situation where there is a motion to modify or revoke that almost 22, wouldn't it be? So we have a provision in here that says, essentially, until that motion is resolved, the jurisdiction continues. What is the downside problem with that?

[Matthew Valerio, Defender General of Vermont]: The only thing that concerns me really about that is that this sort of allows the judicial system to diddle around as long as it needs to to resolve the issue. And so a person enters into the program thinking they have a legitimate end date. And right before the end, not necessarily for a new crime, but for perhaps a violation of or a failure to comply with a noncriminal condition of the youthful offender agreement and and order, a filing is made. By the time we get around to it in court, the person's on mutual offender status for around two years. As we're you know, as the system as it tends to be backed up in backlog, what the system as it is now provides incentive for everybody to get it done before the age of 22. Now is there sort of a a nonsensical unfairness if there's something serious that had occurred before the age of 22 that we need to adjudicate? Yeah. There is. But it also is provides incentive for the state and the judiciary and to defend and counsel for the for the youth to get the thing resolved before the '22. When you take away an an actual deadline, there's no incentive for that. And down the road, this could you can just this could go on for quite some time. There's pluses and minuses to both. And, you know, of all of the things that I'm concerned about, that's one of the least. But I but there's reasons why having a a deadline are legitimate. And, you know, maybe it's one of those things where, you know, I this is one of the things where, again, I'm negotiating against myself sort of thing. But if you file something within thirty days of the termination reaching twenty two years old, maybe there should be a requirement that it be whatever that is needs to be adjudicated within ninety days or something like that. So that you can't be, you know, jerked around for eighteen months while everybody's, you know, doing other things, and this wasn't a priority for the two years you were on youthful offender, but now it became a priority thirty days before you you were going to age out.

[Rep. Martin LaLonde (Chair)]: So we could have a if there's something pending that has that So that has to be resolved by

[Matthew Valerio, Defender General of Vermont]: Yeah. Within, you know, within nine whatever. Choose a day. You know, the we have the, you know, the sixty day cases in in criminal court, you know, your speedy trial type stuff. If if there's something that needs to be resolved, then it's filed within while while it's pending for the, you know, the age 22 age out, then you have to resolve it within ninety days. Well, then choose a choose a date that seems fair. But, you know, don't make it a year. But, you you you know what I'm saying? Just so there's incentives. Like, now everybody knows, let's get on it.

[Rep. Martin LaLonde (Chair)]: Okay. Anything else for or did you have anything further, Matt? No. Okay. Thank you very much for the input. Appreciate that. So we will go to judge Zonay. I believe he's our last witness, which is good because we don't have that much time. Well, I'll be quick.

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: Tom Zonay, chief superior judge. I listened this morning, and I think my notes are correct. Agree policy

[Rep. Martin LaLonde (Chair)]: no. I'm sorry.

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: There's a lot that's going on with this bill. I'm just gonna hit a few topics that I think, are ones that if you go forward on that I I I think that could be problematic. I'll pick up on the last one that Mr. Valerio was just talking about, and that is the modification, revocation when there's a motion for that, and extending it essentially past age 22. I don't see what happens if you're seeking to modify going past 22 because then you're going to be, what's the age that it goes up to? In other words, if you're going to modify something, let's say it's on the last month, you modify it, well, if you go past 22, what's the age of YO then? Can you modify it and keep somebody on YO indefinitely? Can you add a year? There's nothing there for guidance, and so I don't know that modification should be in the same bucket as revocation.

[Rep. Martin LaLonde (Chair)]: So it should be a motion for revocation?

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: I think so, yes. Don't Unless

[Rep. Martin LaLonde (Chair)]: the plan is right. Unless we, as it is right now, it could be modified and it's gonna be another two years or whatever for them to complete program, which is presumably, that's not what we wanna do. And that's certainly-

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: But then you're giving the judges the subjective ability to raise the age to whatever they want.

[Rep. Martin LaLonde (Chair)]: Right, right. So it could be just revocation.

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: And if it's revocation, don't know that I agree completely with what I've heard this afternoon on that. If someone has violated a term of probation in adult court and their probation term is coming to an end, probation officer will file the violation and that stops it, if you will. They then can address it. The court can then address it even after the expiration. And if it's by and so this is very similar to that in my view. If there's a violation because someone absconds and they're not participating and that's filed, and then they go and they're picked up and they finally come back before the court at age 22, the court should be able to address that and decide whether or not it's going to be revoked. If it's not revoked, then by virtue of the fact that the individual has turned 22, it's over, and they're deemed to have successfully completed it, but if it is revoked, it goes back to the criminal division for sentencing. And so I don't think it's workable to add a timeframe and say you have to address it within ninety days because we don't know if the person's even going to be around.

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

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: was also Representative Arsenault had asked about good cause. She's not here, but the short answer is there's no one universal definition. It depends. Answer is, unfortunately, it depends. The court for good cause would have to look at a number of factors. Is there a legitimate explanation showing diligence, reasonable conduct? And you have to look at the particular circumstances of each case, individualized assessment. It is subjective. And so I do agree with Mr. Valerio. When you're looking at some of the provisions that talk about shall and the one size fits all model, that takes away from the ability of the courts and judges to be able to assess matters on an individualized basis, and that's what sentencing, that's what the system is geared towards, trying to assist people. It's a policy. If the legislature wants to say we're gonna have a one size fits all model, it can certainly do that, But, where the courts have the discretion and the ability to assess cases individually, that's something that according to the data that apparently mister Valerio and others have talked about today, that seems to have worked in this very realm that we're talking about here today. And I do know, I think Judge Davenport mentioned about warrants and that the family judges shouldn't be issuing warrants. I must say I can't agree for a number of reasons. I I agree with Mr. Valerio. First of all, if you're in Addison County, you're the criminal judge and the family judge. It makes no sense to say we're gonna go put on a different hat. The court, the family division is dealing with this case. I don't see a reason why the family division shouldn't be able to issue any warrants that are necessary to address the case before it. Sending it back over to the criminal division adds delay, and let's say it's not a one judge county, then it goes from one judge to another. We don't need that. We're trying to get rid of the ping pong effect. So one judge should be able to handle the case before them. That also ties in somewhat to the discussion about what I'll call the acceptance of responsibility component at the beginning when someone is now looking to be accepted and the factor about acknowledging the harm was caused by the use of alleged conduct, that is a policy decision. I would note that think Judge Davenport makes a good point when she says that it's the judge and the it's same judge who's going be hearing the case. I think that judges do have the ability, we do it all the time, to say, okay, yes, I know x, but I can't consider x. And we put that line up, we put that divider up, and we decide the case based on what we can. It's just like in a trial if you have evidence that comes in and you say, I can't consider that, or you have suppressed evidence, and you're the fact finder in the case if it's a bench trial. You don't consider it. I think the other side of it though is even accepting that the judges can do it, how does it look to the young men and the young women who are standing before the court thinking, is that judge really going to block it out? And so I just think that we have to look at the process itself and determine whether or not the individual has a comfort level who's standing before us and believes that he or she was treated fairly through the system. And again, this is a policy decision. It appears that if the legislature goes with the policy of having the acknowledgment up front, I understand from Mr. Valerio that he thinks the numbers are going to go down. They may. I also could see a circumstance where the attorneys tell their clients, okay. I want you just to stand up, look at the judge, and say, judge, I acknowledge that if I had done what they have accused me of, that there was harm caused to the victims here. Is that is that sufficient to accept? And if it if we deem that sufficient, my question is, what do we really get out of that? And so that's a question for the legislature, the policy. It is only one factor, so it's not the factors are to be weighed, not counted, and it's not disqualifying. So if a youth stands up and the attorney says I'm not gonna answer it, the judge still has to weigh in all the other factors, and a judge may well say, I understand why you don't want to. So, again, that's a policy decision and happy to answer any questions.

[Rep. Martin LaLonde (Chair)]: Yes,

[Rep. Karen Dolan (Member)]: so two questions. So this is going on page six to seven, this whole piece if the youth fails to appear at a probation revocation hearing. And I'm hearing the piece that we're adding the shall, so that's getting rid of judicial discretion in this version. I guess my question is, does the judiciary have the tool to use the summons right now?

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: We can issue summons. We also title 33, section fifty one zero eight says after being subsection B, if after being some incited or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person's appearance.

[Rep. Martin LaLonde (Chair)]: There's statute

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: that says we can issue a warrant.

[Rep. Karen Dolan (Member)]: So I guess I'm trying to find a like, what we're hearing is that there are some folks that don't show up. Right? And those are the folks that we want to get so what is the barrier right now from judges using that tool? I think I get the point of let's not force the tool, but also how do we make it so that it's better used?

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: Well, I can't speak to whether the prosecutors in certain cases are asking the judge for a warrant. In other words, a prosecutor, there may be a situation that someone has spoken to one of the other witnesses or a member of the committee and given anecdotal information, and yet in court, the prosecutor said, Judge, we're satisfied. Let the attorney try to notify them. In other words, I don't know if it's a matter of the courts or the judges saying I'm not going to issue a warrant, there's not enough here to issue a warrant, or if it's a matter of discretion being exercised by the court, perhaps even with the assent or request of the state to not go down a certain path. I acknowledge that there are certainly cases where individuals don't show up, and it's frustrating to the courts, it's frustrating to all involved, and we need to be able to take the steps to bring them in, but again, there are provisions that talk about issuing a warrant if the probation officer has the ability to put that person and detain them under the statutes. So there mechanisms to bring people in.

[Rep. Karen Dolan (Member)]: Okay. So that's helpful to know that the tool does exist out there. The other question I have is on the effective date. It says on passage, but I think it came up that we need to be extended like July 1. Is that

[Judge Amy Davenport (Ret.), Counsel to the Council for Equitable Youth Justice]: true that you would need more time

[Rep. Karen Dolan (Member)]: or does the passage work?

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: I think that a bill like this, if the legislature goes down that road, should have some time between passage and letting everyone know there's going to be a change, because it will be a change that's going to impact how people decide to go forward. And I think Mr Valerio may have said this too, that there may be, I'll use the word tweaks or statutory changes that can be made to address the individuals, Representative Dolan, that you're talking about. That okay, if we want to make it clear, if we're hearing that some judges don't think they have the authority to issue a warrant, well maybe we can put something in to make it very clear that a warrant can be issued for X, Y, and Z. There are things that could potentially be done, I'm sure, to address these issues in a way that provides clarity and gets everyone, if you will, on the same page.

[Rep. Karen Dolan (Member)]: Well, that's what I want. Like,

[Judge Katherine 'Kate' Hayes (Ret.), Council for Equitable Youth Justice]: I don't know if it

[Rep. Karen Dolan (Member)]: would be helpful if we just turned it to May even, but that's where I don't know if it's worth, like, you already know it's a tool, but is by putting this in here, like that's reinforcing, like, okay, you should really be considering this.

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: It's already in the statutes.

[Rep. Martin LaLonde (Chair)]: Yeah. So it does seem to kind of be buried in, well, not buried, but 30 three-five thousand one hundred is not in the same chapter that we're talking about. So I could see wanting to put in similar language with May. May summoned juvenile to appear before or may issue a warrant for the juvenile's apprehension and transport to the court. That would kind of follow what is in 5108. So I understand why you wouldn't want to temporarily suspend. But if we were to add as a second part of this after the summons ignored, that if the individual continues to not show without good cause, that the court may revoke the youth status. Once again, it may. To give the court the discretion. But right now, I don't think the court would have the discretion to revoke just for failure to show after the effort to crack down the youth.

[Judge Thomas 'Tom' Zonay, Chief Superior Judge]: I think there's a number of other concerns that I've heard raised about that also that the courts would have to address. Is failing to appear, is that really forfeiting your right? So is there a constitutional issue there? Those are things that the court would have to address and look at if that were to happen. That says in all cases, if you do X, Y is the result.

[Rep. Martin LaLonde (Chair)]: Or we could just have the main language with the summons and warrant and we can ask for a report of three years to make sure it gets in front of whatever committee is here at that point, whether that's working or not. Or we could, I don't wanna sunset it, but just so we can see if, well, is this working well enough or do we need to take further action and do the revocation thing? That might be the other thing to do. So it might be a choice. Anything else for Gizondo? Okay, alright. So, oh yeah, Matt, please.

[Matthew Valerio, Defender General of Vermont]: I would strongly suggest that you do it July 1. Yeah.

[Rep. Martin LaLonde (Chair)]: Yeah. We'll work with that.

[Matthew Valerio, Defender General of Vermont]: We we train in June and I have 200 lawyers present and I know the courts train in June. So, if you're going to change something, much better. Right. Yeah, definitely. I didn't know if it was a

[Rep. Martin LaLonde (Chair)]: No, no, no. Don't think that's an That's not an issue. We'll definitely do that. So we have six minutes. And Matthew, if you can get in a few, I apologize for not having put you on here. If you wanna make a few comments on this, you're welcome to join us. And I apologize that I overlooked even your questions. Welcome back. Thank you. I

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: look a little different perhaps. So I will reintroduce myself. My name is Matthew Bernstein. I'm the and family advocate for the state of Vermont. I think most of you are not new. I recognize a lot of faces, but we do individual and systemic advocacy for children and youth served by DCF as a summary primarily in child welfare and youth justice. And we have an annual report. So I I guess, you know, I wanna say something first, which I think is not directly, you know, germane to the four corners of this particular bill, but I think is relevant, and I'll keep it brief, which is, in our annual report recently published. I have paper copies here if anybody would want one. Our office analyzes DCF's spending, by, using their own numbers, and comparing that to other states, by categories. And the way we separate that out, and indeed, I think it's useful, is the upstream preventative down to the deep end. So the top the the two most preventive categories are well, one's called prevention, right, and then the other is child protective services. And the takeaway is that Vermont is is one of the states spends the least on those two upstream categories, but we spend virtually the most on the deepest end of the system. And so when it comes to, you know, some of the earlier testimony about services DCF has, I think it's important that DCF be fulfilling its duty to build preventive services in the youth justice space

[Unidentified Committee Member]: in

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: particular. The way our office sees it, they're investing a lot of their time, energy, and money to create secure settings or acute settings, which are needed in general. But I don't see an equal effort on the prevention side. So that's, you know, not directly relevant to this bill, except it's a structural problem that I think if we don't start make, making inroads on, we'll be here in ten years saying the same thing. Oh, we don't have preventive services. Have to deal with the day to day. And it's hard in state government to look long term, but just wanna make sure that that's out there. Second, in terms of the more specifics of the bill, you know, I'll defer to the to the experts, you know, who practice in this field every day. I'm an attorney. I worked primarily when I was a working attorney representing clients in child welfare. I had a lot of clients who were dual involved, but I was not their criminal defense attorney. However, you know, from a legal layperson's perspective and from speaking with folks, including, you know, folks on the prosecutorial side, you know, I I just wanna make sure that we are clearly understanding what the problem is here and narrowly addressing that in a way that balances the interests of, you know, protecting the community and, you know, and also ensuring that our youth rights are upheld. You know, I have two children. I have a five year old daughter and a nine year old son. And we work substantiation of child abuse and ensuring that my kids are safe in their settings and that if, God forbid, something were to befall them, that justice was achieved is important. And I have a close friend who was brutally assaulted by a youth in New Mexico and was instructed to sit in the courtroom for those proceedings. So I think community safety is crucial. However, sometimes I think what happens on the youth side is that we try to there's a sometimes unintentional, I think frankly, bit of paternalism here where we sort of say, these are our, and that's maybe pejorative. I think there's a feeling that these are youth and so therefore it is our job to protect them, to guide them, etcetera. And that can lead to maybe trying to solve problems in the youth justice space that we don't solve in the adult space, that we don't try to solve in the adult space. What I mean is, for example, was surprised to hear Judge Zone say that a judge has the ability to issue a warrant. And if the issue is there's a youth out there who's absconded who needs to be brought to court to face their day in court and their due process, and that tool is not being used, then that doesn't seem like this bill solves that one way or another. That sounds like a tool that already exists that judges can avail themselves of. When I was talking to some of the prosecutors earlier because in reading the youthful offender statute, just reading through it again today, it's quite complicated. But on paper, I think it appears to me like prosecutors have a lot of tools they can use when a youth is not coming to court. And so if the main issue here is that youth don't show up to court and therefore, and a judge or a prosecutor is hesitant to take punitive actions based on that, then I think that should be the narrow scope of this problem. But we don't I still just have trouble understanding the real big issue we're trying to solve here because as somebody said hours ago, you know, you're making a system that that does the best it can, and sometimes there are you know, you're you're not gonna you're not gonna catch every scenario. But what I worry is that this this bill tries to kind of do too much to solve a problem that I'm not sure how big the problem is. And I've I don't, and I have not been we've had a lot of lot going on. So I've not been following this bill as closely as I wanted to, but I I'm not totally clear on the scope of of whether this bill really remedies what it seeks to. And I'm concerned that maybe it brings in other issues, as others have said. And then just lastly, I'll say, I think that piece of I completely understand from a victim's perspective or from somebody impacted by a crime or the actions of a youth, why wanting somebody to be accountable, to apologize, to face what they've done is something that folks want. And I completely understand that. I'm not sure that this bill is the place to try to address that. And it is a very hard problem. Restorative justice is an important field, a tricky one. And my friend, the thing she wanted was for her attacker to go to jail for a long time, and that's ultimately what happened. Sometimes that's justice. But I think when you're closer to the line of a crime or alleged crime, that's much more like a youthful type of crime that verges because we're not talking about the most serious offenses here, I don't think. We're talking about the next couple of levels down. I think sexual assault was mentioned. That's obviously something that's very serious. But I'm not sure that putting into statute that a youth should verbally account for that is within the ability of this bill to solve, and I worry about all of the other problems that I created. So I appreciate your time and here for questions. And I have I'd love to hand out my annual report to whoever Great.

[Rep. Martin LaLonde (Chair)]: No. I'd love to.

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: Great. We're always We did that before quote? It well, we finished it about a month ago.

[Rep. Martin LaLonde (Chair)]: Okay. So, yeah, so I haven't seen that. But I I

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: We are doing our best. We have two people. So we're we've been a little we've been overwhelmed.

[Rep. Martin LaLonde (Chair)]: I could recall looking at

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: Should have been out earlier.

[Rep. Martin LaLonde (Chair)]: No. That's absolutely fine. It's just I'm pretty sure I looked at the most recent annual report and didn't see anything really in our jurisdiction in that Oh, okay.

[Matthew Valerio, Defender General of Vermont]: Remember it right.

[Matthew Bernstein, Office of the Child, Youth, and Family Advocate]: So no. I think we're talking about the same one, but we can talk. New one.

[Rep. Martin LaLonde (Chair)]: So okay, thank you very much. Thank you. Before we break, I don't know if I have to get a sense of where we are with this, but I'll tell you kind of where I am and if this comports with where you all are. I think there's too many problems with the youth acknowledgment of harm part that we should strike that. I'm hearing too much. I think we should, on page five, just revocation. I agree that that's what we're after. I kind of thought it was one motion of modification or revocation. But I would imagine that that would be fine. And then I heard just a slight change to the new criteria that we have and then changing the last bit to the May and putting the warrant language consistent with thirty three BS and fifty month away just to make very clear that the warrant can be issued to pick up the child. And I don't know that we need a report that might be to figure out exactly what the report is and just count on the advocates, the state's attorneys and DPS and others to be tracking if this is actually helping us solve the problem of no shows. That's kind of where I am. Any objections? Any effects Any effects of of date. So I mean, we'll run it by the rest of the Yeah. Any of them pay. Everybody, too.