Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: This Wednesday morning, April eighth. And we are going to go next to the state's attorney's viewpoint of s one ninety three as presented by Jared Bianchi and identify yourself for the record and proceed. Thank you.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Good morning, mister chair, members of the committee. Thank you for the opportunity to speak with you today. I'm here to testify in support of S 193 and its passage. I am testifying on behalf of the department. I'm happy to say that there is a unanimous support for this within the county officials that SAS represents. So some of you have testified in front of before, some of you I have not. And in any event, it's been some time. So I do wanna introduce myself. My current role is that I'm a deputy state attorney. I'm a prosecutor in Bennington County. Before taking on that role, I spent more than a decade with the attorney general's office representing the agency of human services and all of its constituent departments and administrative litigation and in state and federal trial and appellate courts. I had previously been responsible for all Act two forty eight and public guardianship matters, and I've also served on legislative study committees regarding competency, sanity, forensic care, as well as the judiciary's advisory committee on mental health. My intention today, first of all, is to talk about the need for a system of care, to go over what the system looks like now and what we hope to accomplish, that you can accomplish with this legislation. But I I invite you to stop me if you have a question, and to you know, I I engage if there is a question that teacher has put the time. I'll address it the best that I can. And I will try to get you answers. We do need a friendly customer care. Right now, fundamentally speaking, we don't have one. What we have is a civil system of care that admits some people who would traditionally be served in a forensic capacity. These the the the scope of this bill is narrow, but it is the highest acuity of need for both public safety and for for supervised occupancy and sanity care. These cases arise in every county. They are the most serious cases, and they require the most serious attention, and every state attorney and sheriff supports what this bill is trying to accomplish. And I this is just a a selection of headlines from different counties, possibly some of your own some of these would involve your own constituents. It's by no means an exhaustive list, but it's to give you a sense that while this is not the most frequent or the largest population, it is the most intense both from a prosecution perspective and from a systemic care perspective. It's important to distinguish between competency and insanity. Competency differs from sanity in a couple of ways. First, competency is a fluid concept. It is a legal ruling made by a judge who can be informed by an evaluator. But it is not the evaluator who makes that decision. It is always a judge who enters a finding and can review that finding based on new information. So the case law is very clear that competency, it's fluid. You can be competent when you commit a crime, but not competent at some stage of the trial. And I'll give you an example. I recently had a case where a young man admitted to the charge of second degree murder. He had no mental health issues whatsoever. He became ill before sentencing due to a brain infection. We were not able to proceed the sentencing at that stage because he was no longer competent. Unfortunately and tragically, he he later passed away. However, during that period, we were not able to proceed with adjudicating his case because he would not have been competent to engage constitutionally with that process. And therefore, he could not be punished for that crime by being sentenced. Where was he held in the interim? Was he Yeah. DOC? So he began at DOC, and when his medical need became too great for them, he moved to, I believe, was UVM Health Center. And that is that is typical for any number of medical needs. When a person is at DOC, but their level of need rises above what can be provided in the facility, they are simply taken to an appropriate facility. There's nothing that prohibits that. In fact, it's required of the constitution. So you can see here that this is this is just sort of the boilerplate definition of competency. That's different than not guilty by reason of insanity. Not guilty by reason of insanity, that is a spectrum of facts that needs to be resolved by a jury based on evidence presented to that jury. That is an issue that it fixes at the time of the crime that has to do with whether or not the person, for lack of a better word, can appreciate the conduct that they're engaged in, that they're really rising to that level of what we call mens rea or guilty mind. That is something that is not fluid, but it is subject to competing narratives, and that's resolved by a jury. So to be confident to stand trial, this is state versus tribal quoting what are really the what it's really a combination of the federal standard. But to be confident to stand trial, defendant must have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. And I'm going to play a video. Do I need to unmute my Yes. I hope I hope you said don't know if we've done before. Let me check on the screen here. So it's Okay. Sound. If you want yourself muted. If you turn on your top audio. The town had this issue before.

[Rep. Kevin “Coach” Christie (Ranking Member)]: We're all learning in this moment.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I apologize. No. You can also Still see the sentence better. Computer is lighter is lighter. You can have that for the people at home once we post it. Okay. So So you want me to proceed with it muted, then we can post it? Yeah. Just you do it on your laptop as well as Okay.

[Rep. Martin LaLonde (Chair)]: So just to be clear, that's gonna be on our website posted. So if people didn't hear that, they can they can look at it on

[Rep. Thomas Burditt (Vice Chair)]: our website. Thank you, mister chair.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So after posting that video, this defendant was charged with murdering a woman in the middle of Downtown Bennington in broad daylight. When our out of state evaluator this has been the subject of litigation on the assessment of competency for approximately five years now. Because, again, we do not have any opportunity for a cons competency restoration program. So when our out of state evaluator eventually and more recently spoke to this defendant, he expressed that he was incompetent, so he would be released to home. Our evaluator thought that that was a evidence of some kind of delusion because the outcome was so absurd. This is an evaluator from another jurisdiction. However, he was right. That is what had happened in an earlier serious assault that this individual had been charged with. So that's the need. I wanna move now to the bill. This might be a bit dated because there have been a lot of tenants initially prepared this for the senate version. But I think it largely is consistent. The first

[Rep. Angela Arsenault (Member)]: Yeah. Go ahead.

[Rep. Karen Dolan (Member)]: Just to get the context of it, because I appreciate having that as an example. I'm wondering if you could talk about where that person went through the system, like, in current state versus what it would look like with this bill.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yes.

[Rep. Karen Dolan (Member)]: If you can compare that

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: to Sure.

[Rep. Karen Dolan (Member)]: I think you shared a little bit of it, but I didn't fully get it.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So this person and if it's okay, what I'm gonna do probably is just speak more generally. Okay. Yeah. That a person with similar circumstances is generally held without bail. So they are incarcerated pretrial Yep. At the competency stage. Is that is pretty typical for this. You know, this is addressing a pretty a high level of crime. This is not the general population of of criminal offenders. So a person would be held without bail pretrial. That person would then be subject to an evaluation. And if the person does not have a hospital level of need, then the evaluation would occur at the facility. If they have a hospital level of need, then they would go through that hospitalization process and the evaluation could be completed there, but they would then be returned to their partial status once they no longer have that hospital level of need. There would then be an opportunity for the state, if there was an initial evaluation that suggested incompetency, the state could get their own evaluation. Eventually, would be a hearing to determine whether that person was competent. And ultimately, at some point, if the person is sound not competent, the next step is right now is what we call a hospitalization hearing. And that is really it it it it applied to only two very specific populations. People with a mental illness and people with an intellectual disability. And that would go either what we call the Act two forty eight or the Dale Commissioner route or the DMH Commissioner route. However, if that person doesn't satisfy the diagnostic criteria for jurisdiction of either of those commissioners, nothing happens Alan?

[Rep. Karen Dolan (Member)]: Can I ask the question?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yes.

[Rep. Karen Dolan (Member)]: So they don't meet the criteria for Dale or for DMH, but they're still being held?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: At a certain point, a person who is not competent is unlikely to be held in perpetuity free trial. And that is part of the issue with not having competency restoration because that period of time where they are held free trial could be utilized to help them to access the process that is due to them to put the state to its berth, and it's really accommodating those people who need those accommodations to to be able to engage in the process. It's the due process that all of us as citizens have due to us. Yep. And we wouldn't give them less process because they need that accommodation in the same way that somebody who needs I have had people found incompetent because they don't hear well, but they also don't aren't very well versed in American sign language. And so interpretation would not be effective. And so the competency restoration for that person looks like you you teach them how to communicate more clearly. And, ultimately, it's the state's burden to prove that the person is guilty, but that's that's a process that's due to that defendant to have those cases resolved. Ultimately, in a charge like this, at a certain point, if the person is not confident and the path to that does not appear to be there, they could be that they would just go.

[Rep. Karen Dolan (Member)]: Okay. So that is I feel like that's a key piece to know because I do feel like there could be the assumption that, well, they just stay in DOC custody for it. But you're saying that folks who are found incompetent could be then released in the community, and this is some of the situations that we're seeing.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: That's right. So let me give you an example of folks who do satisfy the criteria for the Commissioner of DMH. They may require a hospital level of care, at which point the Commissioner would accept them to one of the hospital type of placements like VPCH for the period for that person's but it's based on that person's medical need, essentially, on the public safety component. And also the duration of those initial orders are, I think, capped out at ninety days. If the person is below a hospital level of care, and again, that's only for a ninety day period anyway, and then whatever happens will happen. But if the person is not acute enough to require a hospital level of care, they'll be on an LNH, which will require them to check-in with their local agency. Same for the Dale Commissioner. That's a person who is supported by your local designated agency with support from the community. And unfortunately, having had the experience of the agency previously, a lot of those staff who are staffing those really high needs people are actually being asked to shoulder a level of public safety that is far in excess of what should be being addressed by human services boys. And then there's that large population where there is not a legal mechanism, there's no legal infrastructure to do anything except say, well, we try.

[Rep. Karen Dolan (Member)]: Thank you.

[Rep. Martin LaLonde (Chair)]: So before I go to Barbara, let me So they won't be held without bail and pending trial in perpetuity. But what does that mean? Are they there for years? Is there some So high period of time? How does that work?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I mean, I think a lot of that comes down to the litigation that's happening in the particular case and based on the particular facts. There the case that I had been talking to you about previously has been in litigation on the question of competency since 2021. So

[Rep. Ian Goodnow (Member)]: is he held?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yes. He is held, but we don't have a program or a place where we can focus on getting him to that trial stage. And then ultimately, the question in a case that presents these types of issues, once competency is established, it's oftentimes that you might be looking at something like an insanity defense. So we are not through the woods once we do competency restoration. If the person is restored to competency, we still have the same problem if they are ultimately adjudicated to be insane. And insanity is an important well, we'll get there. So Yeah.

[Rep. Martin LaLonde (Chair)]: Go ahead, Stephar. This question, Debbie.

[Rep. Kevin “Coach” Christie (Ranking Member)]: So on the question Karen asked you, if they're being held, are they in the general DOC? What is DOC doing with them?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: For a person who is held without bail pending competency resolution, they are our DOC has the sentence population and the pretrial population. So they would be in with, generally speaking, they would be in with the pretrial population, the detainee population.

[Rep. Martin LaLonde (Chair)]: Generally, if

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: if their level of care needs are consistent with that. So I have had cases where the person really required a closer level of custody. Uniquely, VOC is really the only agency in most places in Vermont where there's a constitutional requirement that they provide you with sufficient care. So that is a unique thing. But without the ability to engage proactively to get them competent for trial, it can become a bit of a quagmire.

[Rep. Kevin “Coach” Christie (Ranking Member)]: Because I'm thinking if somebody is struggling with significant mental health issues, being held in a free trial general population might result in somebody escalating in terms of their symptoms, as well as risk to the other.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I'm not a treating provider, so I wanna stay in my lane a little bit. I think that these are not circumstances that occur without there being a public safety need to have that person in the secure set. If we have with S193 a situation where we can maintain that security and also drive additional services to that person, that would be the ideal situation. Right now, I have heard again, I'm not a trading provider. I have heard that circumstances like that do exist. I have also heard that some people really benefit from that level of structure. So I don't know that I can give you a one size fits all.

[Rep. Kevin “Coach” Christie (Ranking Member)]: And my question wasn't coming from a place of they should be released because they're going to escalate. It was more what is that doing to the Is that causing more harm if they're not in a specialized kind of

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I have tried cases where people have been so acute. Their level of disorder was presenting in such a way that they were really unable to was very disruptive, loud, and creating really problems for the rest of the what I'll call the milieu in the facility.

[Rep. Kevin “Coach” Christie (Ranking Member)]: And I'm sure that staff is

[Rep. Martin LaLonde (Chair)]: not

[Rep. Kevin “Coach” Christie (Ranking Member)]: trained as mental health.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I don't. I won't speak to any of the operational stuff, but yeah.

[Rep. Martin LaLonde (Chair)]: But Ian?

[Rep. Ian Goodnow (Member)]: Just one other question, I think kind of on Martin's Bay. So is the mechanism for someone trying to get out if they're held on 07/1953 and they're incompetent, but there's no work really being done to get them competent if they're sitting in jail? Is it just a normal weight of the evidence hearing to get them out? And can they take into account during that the fact that they're incompetent?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So I don't want to give any suggestions to the defense bar, But

[Rep. Ian Goodnow (Member)]: Nice job. I'm just trying to No.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: The job will always maintain the discretion to order a person held pretrial or released pretrial on conditions. And at a certain point, a question of due process does arise, especially if we do not have a competency restoration mechanism. Simply warehousing people. There are cases that say you cannot do that, and at a certain point, that would be the argument. Okay, that

[Rep. Angela Arsenault (Member)]: makes sense.

[Rep. Ian Goodnow (Member)]: Thank you.

[Rep. Martin LaLonde (Chair)]: I don't mean to be

[Rep. Angela Arsenault (Member)]: Right, animal culture.

[Rep. Martin LaLonde (Chair)]: Yeah, right, you can't use that metaphor. So somebody's found incompetent, they've been held pretrial, and at some point there may be a due process concern and they'll seek to get the person released. So I just wanted to confirm I think that's it. It is.

[Rep. Ian Goodnow (Member)]: So you

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: keep in mind how long the A lot of this is happening before you have that final finding of incompetency. The person is competent until the judge makes a ruling that they are not. So the person is when they come in, usually, like, pretty soon at arraignment, there's a request for an evaluation. That will take however long it takes. It will have a report in a case that is that would get under this law, a life offense case, the state will likely want its own evaluation. The defense may also want their own evaluations. We may have conversations with experts, one another's experts. There could be a contested hearing. There could be changes in situations or passage of time that require reevaluation. All of this is happening before the person is finally adjudicated not to be competent. Even then competency, because it is fluid, can change. The person can later could be found competent, but then the issue could arise again, or the person could be found not competent and later there could be a change of circumstances where they become competent again. So it's an ongoing dialogue. But when did

[Rep. Martin LaLonde (Chair)]: that adjudication for competence, that final adjudication incompetence? They're released then? How long can they book? There's some period after that where somebody says, hey, due process. Person needs to

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: be done. I think you're looking for a level of clarity in the law that does not presently exist because we don't have a good or verified system. Think the Vermont Supreme Court in several of its decisions have said this chapter chapter, I think it's one fifty seven, is not the model of clarity. And so you're asking questions that we battle with every day, and that's why I turn to it's gonna be really what's happening in the particular facts and litigation in that particular case. At a certain point, though, there will have to be a hospitalization hearing. And at a certain point, a defense attorney is going to ask the judge to let the person

[Rep. Martin LaLonde (Chair)]: out. In the interim, they're not in a forensic facility, not having their confidence with these drugs.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: That's

[Rep. Martin LaLonde (Chair)]: correct. Not necessarily getting treatments, but possibly they are because DOC is required

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: to get levels of treatment. That's correct. However, they're providing ongoing treatment, providing medications that are prescribed, but they're not looking proactively at the situation in the way that this would presume to do. Bill.

[Rep. Karen Dolan (Member)]: Yeah, careful. It's very specific to this. But if s one ninety three was in effect, would that clarity be it'd be more clear?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think it would be very clear.

[Rep. Karen Dolan (Member)]: Yeah. That, I feel like, is a helpful piece. Thank you.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: That's a concern of the issue that we're trying to to resolve here. Okay. I'm I'm gonna skip this, if that's okay, just move to the next sort of thing. So what kinds of cases? S one ninety three generally. It covers life offenses. It does cover life offenses generally in Vermont. Those consist of murder, sexual assault, kidnapping. These are small numbers of cases, but very large impact on the community. And, you know, you've heard from some victims this morning. I also would point out that frequently the victims are members of the defendant's family. I have spoken with fathers who have received grievous energy injury from their own children. And dealing with them as a victim and a loving parent, dealing with families like you've heard from earlier, and then trying to explain to them the situation that we have for these kinds of cases in Vermont. I am it is appears to me to be retraumatizing all over again. Because when they most need the state to step in, we are not able to offer the security or clarity that that they really deserve. So the eligible population, and this would apply to any person who's not competent or who's been adjudicated insane for life events. This allows a person person specific approach to public safety, security, care, and competency restoration. And the intention there is so that we are looking at the person saying, what is keeping this person from being able to access their due process and being able to provide that the faction that gets them the specific and person centered treatment plan that they need. A lot of the language, just because I have gotten this question before, is framed around the federal statute. Of course, the federal statute, they have a much larger system of care. So there are other components, other degrees of care built within that statute or that body of statutes that we don't have things like sexually dangerous predator commitments and other permutations. This is really focused on a very small component of the federal. There's also a section which does not address it is a what's called a standalone component of this bill, which takes from other states, which create misdemeanor dismissal after a period of inactivity. That's modeled on other states. Recently or one of the more recent amendments to this body of law has been, and I think appropriately so, that the fact that a person has been through a hospitalization process does not modify their conditions, etcetera. I think this sort of allows for that closure of that loop for those cases where where where the person has not been getting any trouble and the case has not proceeded over elected.

[Rep. Angela Arsenault (Member)]: To put a very blank point on that, because when that part was explained to us during the walkthrough, I think a couple of us were like, Wait, where did this come from? Nothing's fitting. So this is a this is section two that you're referring to, I think. So is this a section that you support, state attorneys support?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Like Yeah. I I I think so I think, ultimately, we want the system to function effectively and fairly. And so it's not a question of whether whether we get more convictions out of it or fewer convictions. This is really about having a a a process that is fair, unbiased, and we think that this contributes to that. It contributes to clarity for defendants. It also does give the opportunity to say, in the interest of the death, should not be dismissed. And importantly, it's dismissal without prejudice, which means if something pops up later, we can review whether we want to revive the case.

[Rep. Angela Arsenault (Member)]: Thank you.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So why do we want to restore competency? Both defendants and the public at large do deserve a system where people who need accommodations receive them so that they can access the process that is due to them to put the state to its burden of proof on the allegation that they face. A person who can't put the state to its burden will remain forever accused but never have their date in court. Why does the bill presume placement in a forensic facility following an insanity verdict? When a person is found by a jury to have been insane, the state has already this is really so the state has already proven all of the elements of a reasonable doubt beyond reasonable doubt, all the elements of the crime. So that person has been proven to a jury of their peers to have done each of the necessary things to be convicted of murder. Then that person has gone forward and proven themselves to the jury that they are not responsible because they were insane. So those are before you ever get to the insanity verdict, the jury and this is in the model jury instructions. The jury must first find that the verdict is is that the conduct occurred and that the state has satisfied each and every part of its burden on the charts of the vets. And then they carry their own burden of proving insanity to the jury.

[Rep. Karen Dolan (Member)]: Very good question. Yeah. With I can just So that's confusing.

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

[Rep. Karen Dolan (Member)]: It's how it's worded. It's not guilty, is the first word. Wow. So in talking with some other, I know other states use different terms for that, like guilty by reason of insanity. Is that right? Could have confusing because you hear not guilty first, you're

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So you think that they've been exonerated entirely of the conduct. It a different thing, that's why I call it out in this presentation that we are not talking about the a person who's been charged but not adjudicated. This is a very specific adjudication. Title 13 requires a special jury form for this verdict, and the jury instructions require that before the jury ever reaches the question of sanity, they have to first be able to find the person beyond a reasonable doubt engaged in each of the necessary elements of the crime.

[Rep. Karen Dolan (Member)]: Which I think is important because it establishes the public safety, the danger piece of it too.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Exactly. And and they they their own defense is that they are experiencing the qualifying condition. So they are guilty but for the qualifying condition. And so both of those components, the danger is established there to a jury at the very highest standard as well as that ballpoint. So

[Rep. Ian Goodnow (Member)]: my only question on this section, as I'm just trying to understand the procedure. So competency is not a question here

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: at all.

[Rep. Ian Goodnow (Member)]: We're just talking about, so we could have a defendant who is totally competent and his charge was from five years ago. Defense successfully gets a guilty, not guilty by reason of insanity, they immediately go to the forensic facility. That's correct. If it's any charge that could hold a life imprisonment. So that could be someone who has the felony enhancement for habitual offender on DUI or subsequent DUI or something like that. Does it make sense for any case to just immediately send them to a forensic facility?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think it does. So you have to keep in mind, first of all, to develop that kind of a record, it demonstrates a couple of things. Developing the habitual offender enhancement, that requires first that you have gone through and successfully been sentenced in a series of felonies, which perhaps at that point you did not experience that qualifying condition. But if what you're saying now is I can no longer be held criminally responsible because of my qualifying condition, you're still presenting that risk to the public. And this is, again, this is not the state hospital. This is not the PCH. This is for people who experience a qualifying condition and who present a public safety risk. And I say, if a person, to use your example, is so deep into the number of DUIs that they've developed a habitual offender, that person's a public safety risk. And if we can't keep the community safe through the sentencing process, we need to use an appropriate process to do that, which is what we think this bill does.

[Rep. Ian Goodnow (Member)]: In your qualifying, they

[Rep. Martin LaLonde (Chair)]: have I'm sorry, what

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: was the term you used? Qualifying condition? Their qualifying condition in this instance is that they were found

[Rep. Ian Goodnow (Member)]: insane at

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: the time of

[Rep. Ian Goodnow (Member)]: the incident.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think that the finding of insanity establishes that there is a qualifying condition. Qualifying condition is a defined term in the bill. Yeah. Okay. So it is it is it is a broad term that we just meant to capture any type of qualifying condition, but it is a defined term in the bill.

[Rep. Ian Goodnow (Member)]: Okay. And my only other question was, do you think that the turnaround time on this is realistic?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I do not. And so we will have I we we we do have I will offer I wanted to offer to the committee. I I don't think I have time to go through specifically the edits that we have, but I want to provide them to the committee and offer if it would be of any use. I'm happy to come back and talk about them or to if anybody wants to discuss them, I'm happy to do so. Or if you want me to talk about them today.

[Rep. Martin LaLonde (Chair)]: Yeah. Yeah. We'll see about timing. We definitely want you to talk about whether today or more background testimony first.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So here here's one of the laws that I was talking about. This is the federal statute, but a lot of this is modeled on. The original draft of s one ninety three, a person who was adjudicated insane would be the burden would be on them to demonstrate that they would leave the facility. The senate decided that that would be the state's burden. Ultimately, the state is, I think, with an appropriate process, and we'll have to talk about some of the time frames and resource constraints later. But ultimately, if it's the state's burden, it's you know, we're used to having the burden be ours. That would be inconsistent with federal law. We don't think it's necessary. However, if that's critical to the success of this bill, then I would wanna upset it over that issue. Where is that exactly? You can explain where where you're looking at. You're talking about the 18 USC or the the Oh, in the in the bill. That would be in the the Page seven, line six. So it's fine to keep it, I think, with state's burden. I we we would we would ask him what we'll propose in our edits that we balance that with a rebuttable presumption, that we begin with a rebuttable presumption in these hearings, and that we have what's what I'm referring to sort of as a dilating review period. So you have, in this bill, currently drafted, a six month review period for this population. We submit that that is too frequent to be of much use to anybody. We will be doing these more or less constantly because as soon as they end, they'll be starting another round.

[Rep. Martin LaLonde (Chair)]: Set for both the insanity, if you're not guilty by reason of insanity, and the incompetency components?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So for competency folks, there is a six month period of review. We believe that that's appropriate for competency and competency restoration because of the pretrial posture. Okay. And so what I'll what I think is probably even I have a a table that I wanna go over with you, but I think of this as sort of a pretrial or short term versus the long term process. For the long term process, what we're really looking at is that forensic risk assessment that's in this bill. We want first of all, the the defendant wants to have the time to develop a record if they have been unsuccessful at prior reviews to develop a record of safety, to improve their risk assessments, and not pile up a bunch of bad ones. And from the state's perspective, and I and I I would say if I were a victim, I would feel very frustrated by having this be my every waking moment in perpetuity. What we're proposing is an initial review at something like a six month, and then for instance, a second review after a few years, and then a third review after, for instance, five years, then just keeping it at the five year frequency. I say that, but with a footnote because there are other mechanisms for review that do not require that that time expire before it occurs. I'm going to jump to that table if that's it. Yeah. So

[Rep. Kevin “Coach” Christie (Ranking Member)]: one thing that I'm curious about is why do you think the federal government doesn't have the burden on the state?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think it's for the very reason that the person for this population well, because so especially for a person who's been adjudicated insane, it has been proven that they committed that they are that danger, and it has also been proven already that they have a qualifying condition. Right? So they are dangerous, and they require a secure place to address that. That's already been established to a jury. And and then that is periodically reviewed, but it's really on them to show that they are safe because it it is a different standard. I think it's in here, actually. They don't have it as high of a burden for the person if it's a if it's not a serious offense. The high burden for the defendant comes from the severity of the offense. We don't have less severe offenses in this bill, so we won't we don't have that distinction between the two. Okay. Thank you, Nancy.

[Rep. Martin LaLonde (Chair)]: I'm gonna ask a philosophical question. So these are individuals who have been found incompetent or not guilty by reason of insanity. And for them to be released, well, they're not guilty for reason of insanity, that we're gonna look and see about whether we should release them at some point if they're public danger. We don't do that for somebody who's just been sentenced to whatever term. We don't look at the end of a ten, fifteen, twenty year sentence and say, is the risk of public safety? And that's not a determination of whether to release the person. So how is

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: this different? So there are some jurisdictions that do do that. We don't, though. That is correct. That is correct. But I'm but so so that is a that is a policy choice. I think the distinction here is that a sentence is is a punishment, whereas this is a process that is meant to ameliorate public safety risk coupled with public safety risk arising from a a condition that the person experiences. If at any point the person no longer experiences that qualifying condition such that it would not be a risk to release them, then there are mechanisms here to allow that. So I'm not sure if I addressed your question.

[Rep. Martin LaLonde (Chair)]: Well, mean, so we incarcerate people not just for punishment and often it can be

[Rep. Thomas Burditt (Vice Chair)]: for

[Rep. Martin LaLonde (Chair)]: incapacitation. Keep them because of the public safety risk. But eventually it ends at upset period. And I just kind of like to understand why this is fundamentally different. Maybe I mean, it's okay, I will ponder that. I

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: think because the aims and the analysis that's going into each of these avenues are distinct, and from a constitutional and case law perspective, they're also distinct. And I think that's probably the best I could.

[Rep. Martin LaLonde (Chair)]: I appreciate that. Yeah.

[Rep. Karen Dolan (Member)]: I appreciate the question too. And I feel like this is specifically done life sentence ones as well. I feel like there's that piece that's adding to it.

[Rep. Martin LaLonde (Chair)]: But the life sentence ones, individuals are not sentenced to life. I mean, some are. Let's go back in more detail.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So I just want to talk because we have sort of two of what I would call the big bulky sections, the the competency and then the the the insanity section. So in four eight one five a or what would be four eight one five a, entry is based on a finding of incompetency for a life offense. Competency would then be evaluated every six months. There would be a report to the court review that competency restoration services would be provided. And if the person regains competency, they return to their prior circumstances. There is a mechanism after two cycles of competency, and it could be modified, but, you know, that's just what the language is right now. After two cycles of competency evaluation, a court can assess whether restoration and by court, I mean, also the evaluators. Whether restoration is possible. And if it's unlikely, the case law says that we then need to give that person access to to the process that we would use for the other population here. That's that's expressed in four eight one nine. So if the person is not confident, but there is cause to there's cause to believe and it's it's high burden, but they're found not to be likely to storeable, then they would then go into the process for April, which has the review periods, but also the potential for supervised release at some point that could be supervised by GFC. So with the after two cycles part, aren't there situations where somebody might have a developmental or behavioral discipline, but it's pretty clear right from

[Rep. Martin LaLonde (Chair)]: the get go that they're not going be restorable and you're waiting some long time.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I'm really glad you asked that because I think there has been the perception, first of all, that developmental or intellectual disability is not susceptible to additional training and habilitation to be competent. That's not necessarily the case. Part of that diagnostic criteria is that the person has not developed sufficient skills to to engage with the community sufficiently, and we're trying to remember the name of the of the particular thing. But it really is it's a it's a what are your life skills sort of an analysis that goes into that. Education, for instance, around specific process and around the core process can be very effective in ameliorating some of that. Ultimately, though, due process requires that we not keep trying for it. So there may at some point be a time, and that's why we said, you know, two cycles. That that would be about two, six month cycles. At that point, then we need to start looking at, Okay, what's the longer term plan for this individual if they can't be restored? And so that's why it would then funnel into the longer term. Angela?

[Rep. Angela Arsenault (Member)]: So I am not that familiar enough, maybe it's obvious, with examples of conditions that would render someone incompetent, like things that would, the variety of situations that might lead to a finding that someone is incompetent. So I'm similarly unfamiliar with how a person who was found to be not restorable, how likely is that person to be able to follow orders, essentially conditions of release, as it were?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think that the difficulty with that is a very broad hypothetical. So I think, of all, the types of conditions that can render a person not competent, it can be any number of things. You you know, if we did not provide hearing assistance to a person and they could not hear the proceeding or speak to their attorney, they would be incompetent for that purpose. And if the person has a major mental illness and and they're unmedicated, they are not able to engage or actually with their attorney, they would be incompetent. I gave you an example of a person who the issue was really sign language fluency. So it really is it is that's why that's a legal decision that a judge makes that whatever the facts are, do they render that are they sufficient to suggest that person can't meet the standard for competency? In terms of the likelihood that a person can comply, I think that the the the purpose of having those conditions is also to assist the person, that they would be overseen by people who are used to seeing people in the community. And then when you have to also keep in mind that a person just for instance, who qualifies for services from UCS, either under a DMH or Dale or some other program, but also have access to those other community resources or or to be in the community. So ultimately, because the judge is the one who creates those conditions, that would be a question for the judge to make sure that you are balancing all those various interests. But I think that's the most important point is this isn't all of this has to go through a judge pretty much at every stage. All of this is steered by the court process.

[Rep. Angela Arsenault (Member)]: Right. And I guess I'm just wondering, I want the court process that we lay out here to make sense. And so this, I'm just trying to understand.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Mean, what I can say is we do we do things like this all the time. We just don't have a mechanism for it with this particular set of issues. The the courts are frequently called upon to resolve disputes between the defendant and the state about whether a person should be released pretrial after any number of serious felons, for instance. And that's when we have mothers come and testify and say, I will keep an eye on him. I will call the court if he does anything wrong. I will remove guns from my house so that he can stay with me. I have cameras on. This is basically, these are hearings I've done. So all of this is available to people who who do not have any kind of qualifying condition, but it's a process in the sense of denied the population who would be dealt with by the physical.

[Rep. Angela Arsenault (Member)]: And does the process, as laid out here, as you read it, contemplate any sort of check on the defendant's understanding of the conditions?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So, first of all, just to be clear, I will have a set of edits that I think are necessary for me to say yes to all of that. Contingent on providing those to you, because I do think that there are gonna be some some edits that are necessary just for clarity, frankly, of the text and to simplify some of the text, but also to to have a more functional process in in a final version. Because we are addressing not just a care need, but also a public safety need, there's going to be in any process, you're going to want to make sure that you are working with a person as much as possible to accommodate their their need to understand

[Rep. Martin LaLonde (Chair)]: so

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: that you're accommodating their need for understanding. That also needs to be subject to their That also Public safety requires that we keep an eye on what's happening. That we could be addressed.

[Rep. Angela Arsenault (Member)]: Yeah. So you might have an edit that will help us.

[Rep. Martin LaLonde (Chair)]: I think

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: some of that will come just from We have tried to simplify some of the language by For instance, there was an edit where I think some of the language was very similar, but not exactly precisely the same. So we have sort of taken some of that out and just suggested a cross reference so that we're not repeating the same set text twice. So hopefully, that's helpful. So the initial hearing, I would have to have forty eight hours. I don't think that that's feasible, especially because in my experience, the hearing set that quickly will either be a rubber stamp hearing or it will be continued for a lengthy period of time so that we can actually have the hearing. So we propose sixty days high to allow for the forensic risk assessment and a substantive hearing to occur. For the 4819, right now, it is set as every six months. We are proposing an initial review after the initial hearing of six months, then three years, and then every five years after that. I wanna point out that the other mechanisms for review that are in this bill, first, the person who is the director of the facility would be able to say, hey, court, we don't need to wait. This person's ready for their review. So there's that check. Also, defendant at each of these pockets of time would have the ability to file their own petition and and try to prove to the court that there's been some change even if nobody else does. So there's three mechanisms. The state has to file periodically, and that's Vermont Supreme Court case law. We have to ask for review to justify the continued detention of a person. However, there are also checks on that that the director can do so if the director believes that that's appropriate or that the defendant the defendant wants to try and carry a burden and can come forward to try to do so. Ultimately, there is a conversation here about exiting to supervised release. For instance, if a person has ameliorated their risk such that they are no longer required to be in that level of security, at a certain point, they would be able to be released, but that would also be supervised by the Department of Corrections, which has field staff which would be able to to accomplish this with existing field staff. And if the person's constellation of issues presents again after release, they they would be able to be returned to the facility, then a process a court process would attend to reviewing whether that return should be maintained or modified or what to do. So I I was also I just made aware, this might not have been from this committee, but just generally questions that folks had. So the Zoom isn't the way of my screen. There was a question asked about whether there was an incentive for for instance, if a contractor was doing this, would they have an incentive either to find people more competent or find them less competent? And ultimately, the answer is no. First, the contracts, at least in my experience while I was at DOC, the contracts for care also have quality provisions in them so that you can't just run your numbers on. However, these people are also licensed professionals. They are subject to professional ethics. There is also a judge that has to agree or disagree with a particular recommendation of these individuals, and it is all checked by the defense who can get their own evaluations. So it is not simply a report, that is the results, and then we are done. There is a lot of checks, balances, and process that attends to this. So ultimately, if you wanna be successful, you need to have your opinions be serious and respected. And that would not be a good way in my estimation to keep that contract. How does current evaluation process work for evaluations for a person not found competent? Generally speaking, the process is that a neutral evaluation is initially done by DMH, and then follow ups can be done by the defense, by the state. Under certain circumstances, DMH may have to do another one. But there are several thermal iterations of building off of the initial DMH. Where does the substantial risk of danger language come from that came from the federal statutes? Another question was asked in probably another committee. Do other states house the forensic population within their corrections? Just pulling randomly first. Most states DOC being within human services is a little bit unique. In Vermont, that is the situation. So, you know, every state has its own sort of idiosyncrasies with respect to structuring. But just for instance, from the New York division of forensic services home website, that they have prison based mental health satellite units and residential programs located within prison facilities. So, yes, it's the short answer. I can also say that there are similar structures in federal side. And we frequently are asked how many people do we think this population would represent, who could would be qualified. I think that the general estimate is probably about five give or take in a given year. Generally speaking, that would be the competency population. NGRI population is few and far between. And that's part of the reason that we have such a small population. We're not in a position to have numerous facilities like New York does. We don't have the economy of scale. But what we do have is the opportunity then to have that flexible approach, by giving the agency that flexible approach, to look at each person and to determine what their appropriate circumstance is, to look at the therapeutic milieu, and to address them without that level of bureaucracy.

[Rep. Martin LaLonde (Chair)]: Good question. Yeah. Go ahead.

[Rep. Kevin “Coach” Christie (Ranking Member)]: So I'm wondering on your last slide It doesn't matter, doesn't it? Sorry. So I don't know if you spoke to why doesn't DMH have a larger role.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Oh, I did. My apologies. So I think that they do have an appropriate role in that if a person requires, for instance, if a person in this population, this is spelled directly out the bill, if they require a hospital level of care, then they would receive that just like anybody else through DNH. But also, because the Commissioner of Mental Health, who will correct me if I'm wrong, the Commissioner of Mental Health has responsibility for a particular set of population, and this is really addressing a broader population coupled with that public safety concern.

[Rep. Kevin “Coach” Christie (Ranking Member)]: Michael, I have a question for you then, which is, so DOC operates as an autonomous department, which they are, but for example, when they contract for mental health services or contract for healthcare services, they lack, in some ways, they lack the expertise of the particular issue that they're contracting for, and so in some cases they're driven by bottom line, where in fact the quality or the range of services that is provided in the DOC.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I'm going to push back on your characterization there a little bit, if that's okay. It's been my experience both with the agency and with DOC and working with DMH that DMH is very good at what they do, but their jurisdiction is really focused on a particular type of disability. And that the DOC population that I have worked with some very skilled and knowledgeable providers who do provide those services. Now, to be clear, this would require, I think, a new level of service that is not currently being done in the facilities. But that is not to say that they would not be able to do that, that DOC would not be able to do that.

[Rep. Karen Dolan (Member)]: So in some ways,

[Rep. Kevin “Coach” Christie (Ranking Member)]: it seems like why wouldn't we involve I'm not saying that the Department of Mental Health should necessarily run the program, but in terms of weighing in on standards for the contract or even developing the RFP? Because again, I think at times not having that expertise or example with the health contract, we're ignoring our state standards for what health care should look like.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I'm going to let the agency folks address that.

[Rep. Karen Dolan (Member)]: I

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: think that my experience is that the agency folks work very closely together, even if DOC has responsibility and there's a DMH component.

[Rep. Kevin “Coach” Christie (Ranking Member)]: But there's nothing official.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: And then on that piece, I would let them speak to the best language.

[Rep. Kevin “Coach” Christie (Ranking Member)]: And when you talk about the robust services in New York State, does one option to you, given our proximity to New York and our small population contracting with a nearby state that meets the quality?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: That well could be the situation. Again, that's going to be a question that I leave for the agency folks.

[Rep. Kevin “Coach” Christie (Ranking Member)]: From where you sit, Ningoda?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: From where I sit, if we have a process and a system in place that keeps the community safe and gives us long term clarity and security for this very serious population, then we are happy. How it's implemented, so long as it accomplishes those things, we're happy. I have a quick

[Rep. Angela Arsenault (Member)]: question about that. The last fact on there, the five people per year, just trying to understand how it would work facility wise. And so in your experience, if the number is about five a year, that's five new cases every year, how many are discharged every year of the five? Do you understand

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: what I I do. I get what you're saying. Think that there are can I just use a real life example? In a case where these sorts of situations are present, there can be circumstances where both parties recognize that they have a risk. The state does not want this person walk free. The defense does not wanna take their risk for the jury, not coming back with a verdict of guilty. And so we're able to reach an agreement that realizes both of those shared risks for out. So that is one way in which these cases sort of are discharged. Ultimately, the way that that happens is frequently that the person is adjudicated to be competent, they're able to be tried and sentenced consistent with their due process rights. These types of cases last a long time by their very nature. And so I don't have a good number to say about this because this population doesn't exist in law already, tracking it is very difficult. But I think on balance, I think that there could be up years and down years. I don't expect it to sort of build over time, if that's what

[Rep. Karen Dolan (Member)]: you're asking.

[Rep. Angela Arsenault (Member)]: It's not compounding. So how does how do you conceive of how do you conceive of the facility needs in terms of some expense?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: And that's that's gonna be an operations question for for the for the folks who would be responsible for that case. I I don't wanna get too far over questions, but I appreciate it.

[Rep. Angela Arsenault (Member)]: Well, you have particular knowledge and experience that I think is right.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: And part of the answer is gonna depend on who the particular individuals are and what their security risks are. I think it could be very problematic if you build a large building for five, six, seven people. So I think the flexibility that's built into this to address those individuals, I think, is an important tool.

[Rep. Thomas Burditt (Vice Chair)]: So just to clarify, this isn't anything new. I mean, we had it before before we lost the Waterbury Complex. So it's not like we're starting from from ground zero. I mean I mean, well, what's the terminology I wanna use? The mental aspect might have changed a little bit with situations that are out there and stuff, but we do have a platform to start with, we just got to get everybody working together to get this done. And then we can always tweak it. I mean, it's, you one of my biggest frustrations with politics with government is I wanna see, like in private business, I wanna see private, I wanna see tweaking done as we go, because if we do nothing, we're not serving the people of Vermont the way they need to be done for you to do your job properly Yeah. And

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: No, I understand. And I think that that's an important point that we don't want to build the box too rigidly now while we are still developing an understanding of how this could mature.

[Rep. Thomas Burditt (Vice Chair)]: I mean, we have the facilities, we have the stuff, we start doing this, and it needs to be done. And it should have been done a long time ago, hence my frustration.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: It has been a topic in front of the legislature for a number of years, so I've been involved with it. How long have been, bro? Getting on to be about I've been practicing law for about twelve or thirteen years. And how long have been state attorney? I've been with the state's attorney's office for, let's say, could have legged it up, I mean. I think five years, and before that, was at the agency. Good job. Thank you. So to your point, this issue has been the subject of numerous studies and discussions for a number of years. This is a a very narrow ask in terms of population and and eligibility. It's only the most acute types of offenses, the most serious offenses that the proposal that we'll make will have review periods that are appropriately structured, that balance victim impact, that create a evaluator flexibility to address a person, and give the person impacted as a defendant their due process rights. I wanna speak to you that there's a component in here that gives the ability of the victims to be heard at certain hearings. I think that's important. I wanna point out to you that victims are very frequently also family members. Victims deal with and want to tell courts different things. They are not all of one mind. Some people and family members want to be heard about the need for security and certainty. Some family members want to advocate for release, but those victims should have the ability to speak to the court about what they think is appropriate for case.

[Rep. Angela Arsenault (Member)]: Rachel? Question about that specifically. The explicit That explicit right is only included in this bill under the insanity portion or section. Do you think it should also be included the

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: the competency? I think that's more complicated because that really is a legal determination based on circumstances at the time, whereas the the hearing on the continued detention under 4,819 A, that hearing is a lot more akin to whether there are sufficient conditions and the potential for community release and their forensic risk assessment. So I think that it is more appropriate there. Will frequently refer, you know, if you build it, they will come. These cases exist. You've heard from the victims today. I I have prosecuted some of these cases. There are others. I showed you some sampling of those headlines. Ultimately, this is a need and not addressing it is not good for Vermonters. And it's easy to ignore until it happens to you or somebody that you love. We owe these families a better answer. We owe these defendants a better crisis. So we will provide some suggested edits in a separate So

[Rep. Martin LaLonde (Chair)]: do you have those here now? I do. Yeah. So just just for the rest of the morning, I I think I'm gonna I understand I might be losing four of the members around 11:30 for another obligation. So we're gonna go to 11:30. I'd rather just go through with you. I apologize for the other folks. We're gonna be taking a lot of testimony for the next several days, so we'll make sure that we find

[Rep. Angela Arsenault (Member)]: I'm gonna be available until noon, I could come back on Friday.

[Rep. Martin LaLonde (Chair)]: On Friday, okay. Or, yeah, we'll look at, Yeah, we'll figure out Friday or Tuesday. Mean, this is an ongoing thing, so I apologize. But I would like to get into the language more that you need to understand.

[Rep. Ian Goodnow (Member)]: Can I ask one question before you get into your edits? For the not guilty by reason of insanity, like in a normal case where it's not a If it wasn't like a life imprisonment case, does the case just close?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So I have had one insanity. Yep. And, yes, that's the verdict. So What happens after that, is that the person goes through what the existing hospitalization process.

[Rep. Ian Goodnow (Member)]: Yeah. Okay. So and so we kinda we sort of, like, keep the docket open so that you could file all this stuff and

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yep. You get if you're under current currently, they would be assessed for either an order to scale or an order to DMH. People are more familiar with the DMH orders, so if it's okay, I'll use those as an example. Yeah. That person would be assessed to see whether they qualify for an ONH, one word optimization. That would be a ninety day order. That's that's the end of the criminal component where the state's attorney's office is involved. At that point, the commissioner then has the latitude to seek to extend orders, to do other things, but that happens in a different context that is not the Criminal Dock.

[Rep. Ian Goodnow (Member)]: So would this keep the Criminal Docket open? Essentially? Okay.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Sorry. Kept too many windows open.

[Rep. Angela Arsenault (Member)]: Okay.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Bear with me as I try to get this go. Alright. So what I've done in this and what I would if the committee would accept it, I would offer this as track changes to the as past the senate version. So one of the things we were trying to address is we think that a more verified bill will basically cut out some extra text and simply cross reference the other section. So we have sort of cut out what I would consider to be some redundant language here. This is page two, line six.

[Rep. Martin LaLonde (Chair)]: I had questions about that whole section as far as where the burden should lie for this try to prove what. Maybe you've

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: And I think some of that has been carved out. So right now, law, which would still be the case, which is not modified in any way by this, is that a person is presumed confident and less than until a court finds otherwise. And so at this stage, the person has been adjudicated not competent. So that's when we are doing these competency reviews. We're providing the competency restoration, and then there is a periodic review. My understanding is that the six month frequency is consistent with that need. And if that's not ideal, then I'd certainly take that out of it, that's my understanding. So we have excised some language here because we think that it's effectively captured in other places. For instance, we had some language here about returning the person to the facility and then it being the state's attorney's job to prove that they were not competent. Of course, typically, would not be consistent with the general flow. In order to clarify that, fundamentally, if the person is released, if they have become competent, they can be returned by initiating this process again. And then this is the next page here on line six, on page three, we talk about the cross reference for individuals who demonstrate that they are likely to be restored in a reasonable period of time, that they would go through the process and type out and believe it's 4819A. But that's the long term or the NDRI process. They would have access to that same level of review, that their competency would be reviewed in the same way that their forensic at the same time that their forensic risk were being reviewed. Just some clarifying language there about person remaining at the facility.

[Rep. Martin LaLonde (Chair)]: So just a quick question. Were these edits suggested in the Senate or these are kind

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: of new given where we've landed? These are new given where we've landed because, for instance, you know, the initial draft after an insanity determination, the the defendant had the responsibility to prove that they were held corporal release. The senate just sort of determined that that should be the state's burden. So instead of asking you to put back something in, we're we're coming with maybe another way of looking at that that concern, leaving it the state's burden, but other ways to balance the concerns of that.

[Rep. Thomas Burditt (Vice Chair)]: Just to be clear in my mind, this is your language and the sentence language has been added or taken out?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So where you see the line through Yeah. That would be deleting senate language. Where you see the line under, that would be adding to the senate. Okay. So these are edits to the senate's language. With your input? Yes. These are these are it's as past the senate, and then we are proposing these further amendments to what passed the Senate. Gotcha. Thank you. And so this is a lot of this is excised because it's recreating the process that's in the later part of the bill, and we think that you can much more clearly accomplish that by saying this other section applies. The process and the other section. So that's that's one large edit. Just verifying.

[Rep. Martin LaLonde (Chair)]: In that process, where is that process that is that? The 4819A process.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I'm scrolling down to that right now, I'll show you if that's okay. So the cross reference in the previous section is to this section here. And this section has to do with the people who have been adjudicated insane. And then it would also by cross reference, the population who is not competent and does not appear to be restorable would also have access to the same periodic review of their detention and their appropriate placement or the possibility of supervised release. So here we have added a rebuttable presumption. So instead of saying, okay, the state really thinks that it should be on the defense to to prove the case. What we've done here is instead of trying to shift the burden back off of the state, that we have said that there's a rebuttable presumption that the person qualifies, but the burden is still on the state to prove the underlying matter.

[Rep. Angela Arsenault (Member)]: Sorry. I know you're gonna share this with us, but just Was that page seven? No. So it's page six with the

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: This is six.

[Rep. Angela Arsenault (Member)]: Where were the heavy edits? Part you're saying, Get rid of this and just use 4,819.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Oh, that'll be above and I think $3.04, generally. That'll be in the competency section.

[Rep. Martin LaLonde (Chair)]: So I guess the question will be raised as whether we really wanna keep the competency separate completely from the not guilty by reason of its hand. Do you

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: mean to keep the language separate? Yeah. I think that if The case law suggests that you cannot keep a person in perpetuity if there is an unlikelihood of restoration. However, if they have a, what I'm calling qualifying condition, but in the general sense of mental illness and our public safety risk, that they can be detained for that purpose through the civil process. This is that civil process, but the concepts of competency and insanity are so distinct that we don't want to intermingle them statutorily. However, we don't need to rewrite the entire procedure in there, because one of the things is that for that population, they need to be getting access to the same process as would be accessible to children. Rebuttable presumption is our proposal to balance the burden issue a little bit. We are asking that the edit be made from forty eight hours. As I, I think, testified to earlier, that period, especially where it can be extended by the court, a forty eight hour hearing is either not going to serve much of a function or it will not happen in forty minutes. So this is existing, just the forensic risk assessment. So these are getting into now the review hearings for that long term population, the NGRI, for instance, population. And they will have a forensic risk assessment done, and the propriety their placement would be reviewed with that forensic tool in hand to understand what their risk bill is presenting as at the time of the hearing. Consistent with other parts of the competency process, it's entitled 13. We have suggested that witnesses be allowed to appear remotely. It is the case, especially if you're in one of the farther reaches of Vermont, that necessarily a lot of our state infrastructure is centrally located and asking people to, for instance, leave whatever clinical circumstance they're in to drive three hours each way and then sit in here, it's very burdensome. And so we think that that can be appropriately balanced with a provision like this, just as it is in the competency section elsewhere in 10/15. So we're just offering this. This was some new language from the senate. So the the consideration balancing these restrictions, but also public safety. And then here's where I was talking about that dilating period of review. The state's attorney and we are required to periodically review, to ask a court to review. Even if the person never moves for review themselves, the state has to periodically ask for review. Right now, as past the senate, it's every six months. That is going to require especially because these are sort of these are not cases that happen at an equal amount in every place all the time. So one county could require a great deal of additional attorney staff to do every six months a medical hearing. Also, number of evaluations required by the evaluators and the worth of those evaluations for that frequency is gonna be really problematic. However, understanding why that suggestion was made to make sure that we are appropriately assessing people and not wanting people to get lost in cracks, we're suggesting that perhaps if a first review happens after six months, after things have the dust has settled a bit, have we a first review, and then we have a longer period for the second review. And then in perpetuity thereafter, it's the longest period. And I say that again, pointing out that for each of those periods of review, the person would be able to file their own petition for review, and the and the clinicians at the facility would also be able to say, hey, we need an we need an early review. So nothing about that extended time period requires it to wait that long if the person otherwise wants the shot.

[Rep. Martin LaLonde (Chair)]: So quick question and then a couple of questions. So is that the process for somebody who's not restorable to competency that's where we're cross referencing to that where it may be six months, three years, five years?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yes, all of that would apply. So everything from the forensic risk assessment to the periodicity, all of that would be the same for

[Rep. Martin LaLonde (Chair)]: The non restorable as well as the not guilty

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: As these edits are proposed, yes.

[Rep. Martin LaLonde (Chair)]: Can we love Angela? No, thought you

[Rep. Thomas Burditt (Vice Chair)]: were presenting. Yeah, here

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: we go.

[Rep. Angela Arsenault (Member)]: Bottom of page eight, I think it was. Yeah, bottom of page eight, line 17, maybe, 19, you've added an apostrophe yes to person. Is there a missing word there or that's what?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: I think that could be a typo. Okay.

[Rep. Angela Arsenault (Member)]: Don't know if you're going for of the person's I didn't see it.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yeah. I think I I think I was. Think it's supposed to be person's just gonna put a little mark in there. It's hard to edit, but Yeah. So that's the periodicity question. And here, where the person has the ability to petition for release, we have suggested modifying that that make sure that we're not gonna do this every ninety days. This is a, you know, one shot per review period to address if there's a if the person believes that there's a change of circumstances and that they would have if they file the petition, they have. So those are the two edits that we would add to this existing section. This is probably outside my wheelhouse, but I thought if we're having all of these various AHS departments filing a report, perhaps just saying AHS. But again, this is me looking at it, not realizing I was gonna walk through it today. Just clarifying, just making general rule making authority instead of And for particular sections, I think generally speaking, the administrative agencies have probable making authority in any event. And so I think at best, trying to carve out particular sections here, muddies waters unnecessarily. So I was trying to simplify some of that. Yeah. There was a piece here about presenting nope. That's good. Sorry. And then I was a little curious. I don't understand why the effective dates are what they are because we're gonna want the effective dates to be in place so that we can start doing things like RFPs, like building

[Rep. Martin LaLonde (Chair)]: out

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: the rules, doing all the work that's necessary for implementation. Especially, 2029 implementation date seems very late, especially if you assume that you can't get a lot of that work done in advance. I'll leave that to the operations folks. That would be my 2¢.

[Rep. Angela Arsenault (Member)]: That was just the annual report.

[Rep. Martin LaLonde (Chair)]: Yeah, I think that's the annual report. So it's 2028. It's really the of close to it going to effect. Let me see if I had any other questions. Know that's hard. So I think you may have covered in one bit as far as this was on page four, and I don't know if you've you've is part of what we've got, what we deleted, where state's attorney had the burden to convince or by clear convincing evidence that the person is not competent.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: We have taken that out. That you took out or We have taken that out, along with some of that other language around that because, I mean, ultimately, the person if they had been in the facility, this was about, you know, person was confident, become not confident, and they they get returned. I mean, ultimately, seems a little bit more sensible that we would just go through the process again. So if they had been out and their competency issues arise again, the process would be the initial process through.

[Rep. Martin LaLonde (Chair)]: Yeah. I

[Rep. Angela Arsenault (Member)]: think on that same section, page two, so a lot of that you've suggested to be removed. I think this word was still in there, though, on line seven of as passed the senate.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: On page four? I'm sorry.

[Rep. Angela Arsenault (Member)]: It's page two. Okay. It says that at the request of a party, the court may order that a second or subsequent evaluation include an opinion on whether the person's competency can be restored. Is that language that seems right to you an opinion? Just seems a little unofficial.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So it's a professional opinion from the evaluator on whether

[Rep. Karen Dolan (Member)]: the judge

[Rep. Angela Arsenault (Member)]: Is that what they're called?

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: Yeah. It's an opinion because the judge is the one who makes a determination. What we are asking for is the professional opinion of the evaluator who's making the competency assessment here. It allows an opinion on an extra question after the survey.

[Rep. Martin LaLonde (Chair)]: I think

[Rep. Ian Goodnow (Member)]: just going back to the very beginning, was there any discussion in the Senate around an opportunity for an exception for

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: an individual who's charged with a life offense to be using the forensic potentially pushing a defense facility? For example, a serious felony that does not carry a life offense? Yeah. I think that I don't recall if I got that question in the sentence or not. I think that there is a sound basis, but here the question I think that ultimately I could understand why that would be appropriate, but we need to do something. Identifying this population being the most serious, I think, is critical because we need to make progress on this issue. Do I think that there is a sound argument to be made for also including other serious felonies? Yes. I just think, based on the testimony we've put before you, that that really horrible situation for Bennington's had this wouldn't actually have. Until after that's occurred. Right? And so there are other cases from around the state that I'm thinking of where a person comes into contact with a nonlife offense that would be eligible for a hold without bail for Yes. Under $7.05 $5.03 a.

[Rep. Ian Goodnow (Member)]: Yeah. That's what I was saying.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So a person could be eligible for hold without bail under seven fifty five-3A, but not be eligible under this. And that is oftentimes when an earlier interception point could be identified for this kind of care. In previous sessions and iterations of the legislature, the appetite for a broad population that's not there. Yeah. And so we have tried to identify the most discreet population we can. Do I think that a person can present very much the same issues, for instance, with an aggravated assault with a weapon. Yes.

[Rep. Martin LaLonde (Chair)]: Thank you.

[Rep. Angela Arsenault (Member)]: Paige? Sorry, I'm jumping around if we're not going anywhere. Page page 12, line sixteen and seventeen. Records shall be made available to the party from the underlined criminal case upon request. Do you the point was made this morning that that those records should also be shared with victims upon request.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So I I think that there is a way to address that without I do not I think until these records are entered into evidence, there's no need to be sharing them publicly about. At a certain point, the court process will access them. They will be evidence in a case, and then the court can determine whether or not that is, excuse me, a public document or not. I do think that there is a I would support the idea of the state's attorney being able to keep the victim apprised, the victims apprised of what is going on and being able to share with them their knowledge of the circumstances. I think that that's a distinct way that is not simply sending out documents to everybody. And as an attorney, I don't necessarily want everyone to have access to my case files. And so between the privacy concerns and the public safety concerns, I think the better way to do that is through our victim advocates who are if if we allow them, then we are able to there are times when I know things about what's going on that I cannot share with victims, and that's not great. So if we are empowered to use our victim advocates to keep victims informed about what is going on with a particular circumstance because they have an appropriate reason to know, we would support that.

[Rep. Angela Arsenault (Member)]: And do you I'm not familiar with how How does it generally work with HIPAA and like, there's the release of documents to the state's attorneys.

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: So the state's attorneys are not a covered entity, HIPAA doesn't apply. However, When we ask for records, we are asking for them frequently from almost always from a cover letter. Have to typically, there's a legal process that we can go through subpoena. So we will get those. Providing them as required by law is consistent with HIPAA. And then we're not bound by HIPAA because we are not medical providers. We're not engaged in that. We have other They're

[Rep. Angela Arsenault (Member)]: protected by HIPAA. Those protections go away as soon as it's legally shared

[Jared Bianchi, Deputy State’s Attorney (Bennington County)]: with entity that's not covered by HIPAA. So those particular protections go away, but we have other requirements for how we address people in the public sphere. And so we are really curtailed. You'll notice I'm trying to speak as little as possible about particular cases. We are not empowered to simply share any information that we have about any person out in the public. There's a whole host of things that could happen that were problematic, especially as a licensed attorney. Really what we are trying to do at that point, when we have information, we're really presenting that to the court, and then it becomes evidence in a court of law. And then the court can determine whether it's public. But I'll leave it there. Just because we are not subject to HIPAA doesn't mean that we can do whatever we want with whatever.

[Rep. Angela Arsenault (Member)]: Okay, gotcha. Thanks.

[Rep. Martin LaLonde (Chair)]: Alright. Thank you very much. If you could send both those documents to Nate, I'd appreciate that. They're adjourned until