Vermont Legislature SmartTranscripts:

[Rep. Thomas Burditt (Vice Chair)]: We are live.

[Jack McCullough (Vermont Legal Aid)]: Alright. Welcome back to the House of

[Rep. Martin LaLonde (Chair)]: Patricio Committee. That's Thursday morning, April ninth, and continuing our consideration of s one ninety three, an act related to establishing a forensic

[Rep. Martin LaLonde (Chair)]: facility for certain criminal justice involved persons. And I guess we will be starting with Jack McCullough from Vermont Legal Aid. So if you could identify yourself for the record and proceed. Thanks for being here this morning. Well, good morning, and thank you for having me today.

[Jack McCullough (Vermont Legal Aid)]: My name is Jack McCullough. I've been a lawyer for Mount Eagle eight since 1982, and I've been the director of our mental health law project since 1994, '95, something like that. And at our project, we represent everybody in the state who is involved in any kind of involuntary mental health procedure. That includes people who are facing commitment to one of our psychiatric hospitals, people who are receiving court ordered treatment out in the community, and as of a few years ago, people who are in criminal cases who have been found either not guilty by reason of insanity or, which is much more common, incompetent to stand trial and are then facing the next step of the process, which is called hospitalization here, even though it doesn't ordinarily result in a person being hospitalized. We have serious concerns with this bill. I understand the impetus behind the bill. I understand that I know that if a family member or a loved one has been victimized, injured, or perhaps even killed, you'd want to have the most severe punishment that could be visited on that person. And so that's why this bill really has a flavor of lock them up and throw away their key. But we must always keep in mind that in the eyes of the law, everybody affected by this bill is innocent. They have not been adjudicated guilty. These are innocent people. And it's the presumption of innocence that protects all of us. To go back about the history of this a little bit, we can trace this push back to the time several years ago when Chittenden state's attorney declined to prosecute, dismissed charges against people who had been found incompetent to stand trial, who had been determined, or had there been opinions, that those people were insane at the time of the alleged offense, and she concluded that it would not be possible to secure a conviction of those people. This is a politically unpopular decision, and the governor decided that they should be prosecuted by the attorney general. Eventually, a number of those defendants either went to trial and were convicted or pled guilty to the charges. And if you think that proves the necessity of this bill, you have it exactly backwards. What it proves is that given proper psychiatric treatment, defendants charged with serious crimes may eventually become competent to face those charges, even under our current system. None of those defendants were sent to some kind of special competency restoration facility or got some kind of competency restoration treatment, what they got was treated well. The same kind of psychiatric treatment that people in our system who are committed to the custody of the Department of Mental Health receive now. They're just like the people I've represented for thirty years who have been charged with a crime or who have been determined to be a danger to themselves or others. They are either restored to competency or, what's more important, restored to the point where they no longer pose a danger to themselves or a threat to society. So we do not need this bill to accomplish the legitimate public safety interests that it is said to advance. This is made especially evident by the fact that so many of the provisions of this bill are duplicative of provisions that we already have in Title 18, only with a new slant intended to make the process less fair, less favorable to an impartial adjudication of the issue. We don't need this bill to protect the public. We already have that. Everyone who's committed to our psychiatric hospitals is there based on the determination that they have a mental illness and they pose a danger to themselves or others. Everybody on an order of non hospitalization is there based on a determination that outpatient treatment is adequate to meet their needs and to protect the public. This bill proposes to the same certain people in the most restrictive, most expensive setting possible with no show that it is needed. Now I will mention go over a number of specific concerns we have with the bill. First, section one, new section forty eight fifteen a, a scope of the of people covered by this bill, I think it's too easy. It seems like a very high bar none of who's going to be subject to these conceivers. I'm very concerned. It's too easy to scope a high bar like this, and over time, there's going to be inevitable pressure to bring the bar lower and lower and expand the people who will be publicized. Second, what are the competency restoration services at the drug club? We don't really know. How is it different than treatment people receive now? Where's the evidence that it was effective or any more effective than what our system provides now. There's the evidence that we have the ability to do this, and where's the evidence that it can only be provided in a locked facility? It's all nonexistent. Where is this facility going to be, and how much will it cost? I've heard from the Department of Mental Health that they anticipated that this is only going to bring in maybe half a dozen people a year. However, I'm not unless you assume that they could magically do their what they're gonna do and get the person out of the system within a year, it's six people this year, six people the next year, and it's a blank check. It's unlimited to how many people are going to be affected by this, and how many people the state of Vermont is going to support in some new correctional unit. Why is the Department of Corrections the appropriate agency to provide these services? Is it because anyone thinks they have such an outstanding record of providing psychiatric care? Throughout the bill, are points where somebody, board or the Department of Corrections or maybe some doctor, is supposed to determine whether there's a likelihood that at some point in the future, the defendant will be able to be restored to competency. How are they supposed to make this determination, and what's the evidence that it's even possible to do so? There are a number of places in the bill where there are significant due process concerns. Whenever the government is depriving someone of their liberty, the government has to show that it is justified. In a number of sections of this bill, it unconstitutionally shifts the burden to the defendant, who at every stage in the process is innocent, that they are not attained to. Now this burden appears in section one of the bill, in proposed 4815 a b two b, and two different places in section three of the bill, amendments two of the new section 13 b s a forty eight nineteen a. Yeah. Yeah. Go ahead, Karen. What what was the second section three, the forty eight nineteen a subsection c, and forty eight nineteen a subsection e one b?

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

[Rep. Karen Dolan (Member)]: I'm just curious. I apologize. I stepped out for a minute. If the preference is to go through all the testimony first, and then we're also going to walk through the bill, or if this is where you wanna make edits to it, or if this is the point where you just wanna mention these things, but not necessarily go through the bill. Because because other you know what I'm trying to say? Like, should we be noting all these things, or should we stop and look at, like, what is the concern with that language? I'll try to get

[Jack McCullough (Vermont Legal Aid)]: you this in writing. That might be more helpful. I just had a couple of trials last week, at least one so far this week. So but I will get there. That's helpful. I appreciate that. Okay. Thank you.

[Rep. Karen Dolan (Member)]: But I think knowing the areas of concern, but then understanding why those are concerning areas for you.

[Jack McCullough (Vermont Legal Aid)]: So this is kind of a higher level. Right. Another serious Duke job that's concerned is that the bill exempts these proceedings from the rules of evidence. And this is a real problem. The reason we have the rules of evidence is essentially to exclude unreliable evidence and ensure accurate fact finding. The only reason to exempt these hearings from the rule of evidence is to get the scales in favor of the prosecution, and we should not exempt these proceedings from the plaintiffs' Another big concern is that the criminal division is not really the right place for these proceedings to be held. We have many years' history of having the mental health cases, psychiatric testimony, psychiatric concerns dealt with in the family division. And one of the things that we're able to do with that is have confidential proceedings. And there is a provision in the bill that says medical records are exempt from public disclosure under the Public Records Act. But even setting aside the records, in one of these cases, the great bulk of the testimony is testimony about the person's psychiatric treatment, the other psychiatric condition. That shouldn't be in a public hearing in the criminal division. It should be dealt with in the family division where they're already where they've been doing it for years. There's a concern about the there's a section that provides for victim input. I understand that victims and offendants have feelings about what should happen to an offender, But they don't have the knowledge or the expertise to provide to the court to determine the kinds of liberty issues that are involved in this bill, and they should have no role in the proceedings. So can I just back up for

[Rep. Martin LaLonde (Chair)]: a second? Just had a question on the criminal division not being the

[Jack McCullough (Vermont Legal Aid)]: right report, but it the criminal division that has the hearing under Title 13, Section 4,820, if somebody is found incompetent to stand trial or not guilty by reason of insanity? That's in the criminal court to hear from them. It is, and that's an issue with the current law. But, yeah, the initial hearing at the point, the initial hearing, it's called the hospitalization hearing, does take place in criminal the division. It's pretty unusual. So yeah, that's a concern already. So if there's a subsequent hearing, then that moves over to family division? Yeah, because at that point, the person is committed to the caring custody of the Department of Mental Health, and the process goes along just like any other person who's committed. The department has to file an application for continued treatment, and there's a hearing in the family division if it's contested. And under this bill, it would continue with the jurisdictions. I would stay in the criminal court, yeah. Angela?

[Rep. Angela Arsenault (Member)]: Excuse me. I just wanted to push back a little bit on the assertion that victims should have no role in the proceedings. That's a pretty big statement, I think. And the way that it's I read it in on page 10

[Rep. Barbara Rachelson (Member)]: section division?

[Rep. Angela Arsenault (Member)]: G, at any hearing under the section, the victim may express the victim's views concerning the offense and preferences for the person's placement in care, and the court may consider the victim's testimony. So in no way is the victim determining anything. Do you still see a problem with victim voice and the court having the option to consider that testimony?

[Jack McCullough (Vermont Legal Aid)]: Well, I don't see how they can provide evidence that's really relevant to anything reports to China. In law, we have a concept of something that is more prejudicial and provocative. The evidence, what the victim has to say, is likely to be highly emotional, but it doesn't shed any light on what the proper disposition of the person is.

[Rep. Martin LaLonde (Chair)]: So can't we trust that I mean, this isn't before a jury, this is before a judge. So being

[Jack McCullough (Vermont Legal Aid)]: able, I mean, I'd be more concerned if that was before a jury, but that's not what the case is here.

[Rep. Barbara Rachelson (Member)]: I understand that. I'm just wondering about if the victim's role is in the sentencing period.

[Jack McCullough (Vermont Legal Aid)]: Yeah, I think that's a very good point. And of course, these people are not being sentenced because they're Not physically. Exactly. And I actually oddly, I had one hospitalization hearing in Chittenden County where one of the victims came and testified. His testimony was actually the opposite. He was saying, I understand what this woman was going through, she didn't have any malicious intent. I think she should get a break or she shouldn't be judged harshly. It still doesn't add to the analysis of what her needs are for treatment.

[Rep. Angela Arsenault (Member)]: Yeah, I understand that. I'm just having a hard time with that,

[Rep. Barbara Rachelson (Member)]: the notion that victims shouldn't become voice. I understand what you're saying, but it's also

[Jack McCullough (Vermont Legal Aid)]: I understand, yeah. Let's see. Where else I Closing in on the end. There's a couple of detailed provisions that I'll just mention briefly. There's a point in section three forty eight nineteen eighty one where it says the hearing is supposed to happen within forty eight hours, and that's just not enough time to eat yourself to prepare for a hearing.

[Rep. Ian Goodnow (Member)]: Do you have a suggestion for how much time you would say would be appropriate?

[Jack McCullough (Vermont Legal Aid)]: I would look at 18. Title 18, the statute provides for it in ten days or twenty days if there's an independent psychiatric span. But of course, I think that all these proceedings could be covered in other Title 18 anyone. And one final thing I should say, something I liked about the development was it's fair. Right? Section two, dismissal of misdemeanor charges. Of course, I think this is a great idea. We support this. Too many resources spent on minor charges. I did tell you about the client we had, the state's attorney was facing extended proceedings because a person saw a bag of chips. But cases wind up pending on inactive status for years. There's just no point to that. And so there may be some cases where it doesn't make sense to dismiss misdemeanor charges, but mostly, I think the approach under section two makes a lot of sense.

[Rep. Ian Goodnow (Member)]: Are you sort of done with your

[Jack McCullough (Vermont Legal Aid)]: I am still done with it.

[Rep. Ian Goodnow (Member)]: Yeah, I think I have a more general question. So really appreciate the testimony, and I get where you're coming from. The one thing that I'm curious from your your perspective on this bill is talking to deputy state attorney Ian Bianchi yesterday. Something that sort of seemed to be happening is kind of limbo that certain defendants get into where they're held under a 7,553 hold because of the alleged crime. They are found or there's litigation around whether they are competent or not, but there isn't really any mechanism to release them. So they are sitting in jail on a seven fifty five-three fold while they are continually litigating their competency for years and years and years. I think attorney Bianchi said six years was one of the defendants that he's got a case with right now. This bill proposes some kind of off ramp to get defendants out of that limbo so that they are either restored to competency and they can get their day in court that they have a right to, or they go down this other structured path where they're probably not going to get restored or their restoration's not going look the same way it needs to. So given that, is there anything in that that is in the interest of the people that you represent?

[Jack McCullough (Vermont Legal Aid)]: I'd like to think about that because the way I haven't heard Jared's testimony yet. I'll go back and watch it. I understand this, the off ramp from jail to a different room in the jail is when the person's been determined by the court to be incompetent. So if what's happening is they're waiting for a determination of competency, does that accomplish what you're describing?

[Rep. Ian Goodnow (Member)]: I guess I'd have go I'd have to kind of understand better what Jared was saying as to whether some of those people that are sitting in the holds are considered incompetent, but that they could want to restore their confidence. I'm not really sure exactly. My understanding was just that it's really protracted and that that's part of the issue, is that these things just take forever, and there's not really work being done on restoration. And I think that's, if you're saying all of this is accomplished in Title 18 or can be, that restoration fit is not something that is I see in the current system.

[Jack McCullough (Vermont Legal Aid)]: Right. That's a very different construct. The purposes of Title 18 are really to provide psychiatric care to people who need it and to provide care that prevents that person from being a danger to themselves or others. And so it's not focused on restoration of competency. I'm skeptical about the ideas that are that's a thing that you can reliably count out to do. But you're right. It's a different idea. So my understanding is the gap that this is going to fill is that somebody might not reach the clinical level of where they should be hospitalized. So where that leaves you is in order of non hospitalization. Still finding the person's in need of treatment and that means that they're a danger to themselves or others, but public safety isn't taken into consideration when you have a low age. And so this is for an individual that doesn't quite meet the clinical standard to be hospitalized, but for public safety purposes should be held until they're restored to competence or until they're not public safety risk. So that's the gap that my understanding is supposed to fill. Is that not what's your perspective on that? Well, I was thinking as I was coming over here this morning whether I should start my testimony with the speech that I give every time I come here to talk about mental health, and decided not to do it. But the biggest gap really is that we don't spend enough money, don't give enough resources to the community system. We have You may know of it, but we have one locked residential facility, River Valley Therapeutic Community Residence. And it's locked. People can't get out. It's specifically for people who You'll meet the hospital level of care, but need to be in a locked facility to either be for their own safety or for the safety of others. And there are people who are there for that very reason, including at least one that I can think of, but probably more people who got into the system through the criminal system. If we had more recent more nonhospital

[Rep. Karen Dolan (Member)]: Is it is it one person that was through? I'm guessing people aren't pending current charges.

[Jack McCullough (Vermont Legal Aid)]: Right. Typically not.

[Rep. Karen Dolan (Member)]: Although is different from the piece that we are looking at.

[Jack McCullough (Vermont Legal Aid)]: Yeah. But Well, there are people who there could be someone could go there someone could be found incompetent to stand trial under current law, be determined, be treated to a point in the hospital where they don't hospital criteria anymore, but it's still determined that they need to be someplace locked for first day of the week, they would be eligible treatment court, even under under current law. And unlike every other part of the system, there's there's limited resources. Don't think it's ever I don't think it's ever gotten up to building all the beds they had there. I think it's a 15 or 16. Barbara, you have a question.

[Rep. Barbara Rachelson (Member)]: So the chair opened up one of the big issues. Another issue that I am concerned about primarily is hearing

[Laura Cushman (Disability Rights Vermont)]: that,

[Rep. Barbara Rachelson (Member)]: our services for people who are on orders of non hospitalization are not robust enough. Two, if somebody is not participating in services or if the providers working with them have concerns, their concerns aren't always necessarily taken seriously. And so we need a mechanism somehow of when people don't meet the hospitalization criteria necessarily, what DMH is saying, but the local providers are saying, Look, we have serious concerns. The person doesn't join up, the person isn't engaged, the person is making threatening comments. So I'm wondering how do we get at that issue? I know yesterday it was suggested that the local providers do a monthly report to DMH, and that might be part of it, but I'm wondering how we can make sure when somebody really is not following their orders for non hospitalization, what

[Jack McCullough (Vermont Legal Aid)]: you do? Yeah. Well, you know, of course, that we have a provision in the law that says that if it comes to the attention of the court that the person is not complying with their order, they can be ordered to be hospitalized. And so the question is, how does it come to the attention of the court? Well, there's tension between I think there's tension between the community providers and the Department of Mental Health and how that's being evaluated and people in this building are not satisfied with how the Department of Mental Health is responding to those situations, there should be a way to make them accountable. Because we would of course, we do litigate those cases, but it's not as many as they they used to be.

[Rep. Barbara Rachelson (Member)]: So what legal authority, if somebody is I'm just trying to put the paraphrase of what the judge said yesterday if they're not necessarily being charged yet, we're still on the competency, Is that legal authority still there if they're not following the orders of hospitalization, or those are just voluntary because there's no

[Jack McCullough (Vermont Legal Aid)]: teeth to the Well, sure. I think I see what you're getting at. A lot of the time when there's an order of non hospitalization that the parties have agreed to in a criminal case, part of the package is that the charge will be dismissed without prejudice, so they could be rebrought. But also, charges tend to be not big, serious charges. And high level charges, the state's attorneys typically would not agree to dismiss those charges, even to get the person on an order of non hospitalization. But if the person has an order, we call it an LNH, of course, the person has an LNH, and they're not showing up for their appointments, find out they're not taking their meds because the agency is in touch with the pharmacy and the pharmacy says, yep, he hasn't come to pick up his meds in three months. The department can file in court and say, we want you to revoke the order because the person's not complying. And I just had a trial in one of these cases maybe two weeks or three weeks ago, that's exactly what happened. And the the guy did get his order revoked, and he's now sitting at the Bratiboh Retreat.

[Rep. Barbara Rachelson (Member)]: So if that were sort of a fully functioning law, which I don't know why it isn't, I mean, I guess I have some ideas, would that take care of most of our concerns, do you think? I

[Jack McCullough (Vermont Legal Aid)]: think it would make a difference if we would mitigate those cases and in some of those cases we would be arguing, well, sure, they're not following the order, but they still don't need to be in the hospital. But judge would make a decision in those cases. And in our cases, we mostly don't expect to win because

[Rep. Barbara Rachelson (Member)]: Can you just say a little bit more about what tension you've seen between local providers and mental health, having been at a local mental health agency? I'm very empathetic with some of the testimony we got, but I want to make sure I'm understanding fully the tensions on this.

[Jack McCullough (Vermont Legal Aid)]: Well, I've heard it said that by community agencies that they can't get the department to ask for a revocation, file a revocation when they think it's necessary. And I certainly heard state's attorneys say, OHs are not enforceable because DMH doesn't do anything at all, and I don't necessarily agree with that. But that is something that I've heard. And what we want is an opportunity We're not saying someone shouldn't be hospitalized if they're violating the order. We want a chance to litigate the case.

[Rep. Barbara Rachelson (Member)]: Do you think there's something that could be added to the process if the local provider is saying to DMH, We want a revocation, and DMH is saying no? Do you think there's a new step we could add so that somebody, a neutral third party, perpetrates that?

[Jack McCullough (Vermont Legal Aid)]: I think DMH is probably in a better position to answer that. I'm not privy to their thought processes.

[Rep. Barbara Rachelson (Member)]: Okay. Yes. Sorry. I'm just trying

[Rep. Karen Dolan (Member)]: to go back to this River Valley piece to try to understand it because I feel like we have these different pieces that are out there. So River Valley is for folks who are on orders of non hospitalization. They don't need that, but they still need secure setting, and it's specifically around mental health needs. Yes. And you are saying that folks could be pending charges under DOC custody and be there. So how is the DOC supervision navigated? Okay.

[Jack McCullough (Vermont Legal Aid)]: I should have been fair. If you're on an O and H, you're in the custody of the Department of Mental Health. And if you're placed there in a valley, you're on an order of non hospitalization. You're in the Department of Mental Health. But if the case hasn't been dismissed, then there's still a possibility that the person might be found to competent. And we already have a provision in the statute that says that if there's a change in circumstances, the state's attorney can request a new competency evaluation and a new competency therein. And the provisor is that they need to have some evidence that that thing's gonna change because otherwise, waste it gets time. I guess I'm confused by that. Don't definitely be bringing up River Valley for the time. Okay. Our additional. There are other residential facilities that provide supportive services. They provide housing meals, take people on outings, lots of things that are The difference is that they're not locked, and certainly represent many people in those settings. But again, we need more because there are people who really need more services when they get out of the hospital than are available to them.

[Rep. Martin LaLonde (Chair)]: So just I'd like you to comment on this. This is probably oversimplifying, but maybe not. The concern I've heard is that DMH does not have a public safety obligation. It's clinical, it's mental health. And that's a big reason why something like DOC should be in the mix because they're specifically charged with ensuring public safety. So that, I mean, any comment on that? I mean, is that?

[Jack McCullough (Vermont Legal Aid)]: Well, I've heard that a lot. Not necessarily the correctional part of it, but I've heard a lot that mental health doesn't have a focus on public safety. But the statute specifically says the basis for someone being in custody is they're a danger to themselves or others. And so I think it even I've heard people from Department of Mental Health say they're not their job isn't public safety. But if you're if the predicate for committing someone is that they're danger to other people, that seems like a public safety concern. Danger to other people because of mental illness. The focus seems to be on the latter part of it.

[Rep. Martin LaLonde (Chair)]: And that actually brings me

[Jack McCullough (Vermont Legal Aid)]: to this other question that

[Rep. Martin LaLonde (Chair)]: it's not just mental illness that we look at why was a person found not competent to stand trial? Might not be mental, could be dementia, could be unless that's defined as a mental illness. So it could be traumatic brain injury, it could be developmental disability, any number of things. And so it's kind of, this is qualifying condition and it's broader than just DMH in that process. But I guess you're really more focused on just the DMH or the mental health part.

[Jack McCullough (Vermont Legal Aid)]: Yeah, although Dale provides services to developmentally disabled people too, it is possible for someone charged with a crime that has intellectual disability to be charged to be found not confident to stand trial and to get services from Dale, including being placed in a residential setting.

[Rep. Martin LaLonde (Chair)]: So does legal aid defend those? Yeah. Okay.

[Jack McCullough (Vermont Legal Aid)]: Yep. We got those two. Any other questions at this point for Jack?

[Rep. Martin LaLonde (Chair)]: And you may have heard that we're probably going to have another version probably late next week,

[Jack McCullough (Vermont Legal Aid)]: and we'll have folks back in to comment on that as well. So

[Rep. Martin LaLonde (Chair)]: right, thank you. So we'll

[Jack McCullough (Vermont Legal Aid)]: go to Laura Cushman, who's joined us by Zoom. Thanks for having me.

[Rep. Martin LaLonde (Chair)]: Yeah, thank you. Thank you for being available.

[Jack McCullough (Vermont Legal Aid)]: Welcome, Anythag.

[Laura Cushman (Disability Rights Vermont)]: Good morning, honorable chair, vice chair, and senators.

[Rep. Martin LaLonde (Chair)]: We're just representatives, not senators.

[Rep. Thomas Burditt (Vice Chair)]: I'm sorry. My

[Laura Cushman (Disability Rights Vermont)]: apologies. I'm Laura Cushman. I'm an attorney at Disability Rights Vermont. As you may know, Disability Rights Vermont is the protection and advocacy agency for the state of Vermont. The United States Congress established the P and A system. P and As receive federal grants to investigate and remedy abuse, neglect, serious rights violations that are impacting people with disabilities, whether perpetrated by state actors, private facilities, caregivers, employers, or others. Given our role as the P and A, Disability Rights Vermont is also designated governor as Vermont's mental health care ombudsman. I have previously provided in person testimony and written opposition to this bill. Disability Rights Vermont continues to stand in strong opposition to S one ninety three. While amendments have been made, this bill remains a proposal to create a specialized prison for disabled individuals who have not been convicted of crimes, violating the integration mandate of the Americans with Disabilities Act and the US Supreme Court's decision in LCV Olmstead. Disability Rights Vermont remains committed to holding the state accountable to comply with those legal mandates, which say that individuals with disabilities have the right to receive services in the most integrated setting appropriate to their needs. Regarding competency restoration within the forensic facility, Section one, thirteen BSA section 4,815 B2A of the current amended version of the bill reads, if the court finds by clear and convincing evidence that the person cannot be restored to competency, the court shall order continued commitment of the person taking into account the least restrictive conditions applicable. The bill language should be amended from taking into account the least restrictive conditions applicable to simply say, in the least restrictive conditions applicable. Because when a person with disabilities is placed in a facility for their care and treatment, that it is the least restrictive setting is not just something to consider or take into account. It is mandated by law. Indefinite commitment of a person who has not been convicted of a crime still raises cruel and unusual punishment concerns under the eighth amendment and article 18 of the Vermont constitution. A forensic facility within a prison is not the least restrictive setting and will not adequately provide treatment for the needs of the disabled people it is designed to house. The bill targets individuals with intellectual disabilities, traumatic brain injuries, or neurocognitive disorders who are found incompetent to stand trial or not guilty by reason of insanity. The bill misplaces the responsibility for these individuals to the Department of Corrections. These individuals should be under the care of the Department of Aging and Independent Living or the Department of Mental Health, but not the Department of Corrections. The proposed forensic facility is a Band Aid for our systemic failures. The need for this forensic facility arises only because Vermont lacks sufficient residential treatment, supported living options, and outpatient care in the community. A forensic facility is a carceral solution to a health care shortage. Addressing the healthcare shortage must take priority over creating yet another facility at the highest level of restriction. And the departments that traditionally have had responsibility for the care and treatment of these individuals should not be able to pass the buck of their responsibility on to the Department of Corrections to avoid fixing the issues in our current system of care. The more appropriate solution would be to invest in services for an oversight of disabled people who are on orders of nonhospitalization. Section 4819a of the bill, placement for persons acquitted of certain crimes, violates due process under the fourteenth amendment. The bill states placement shall be for an indeterminate period and shall not have a specified end date. Indeterminate duration of commitment to a forensic facility leads to unending incarceration without the procedural safeguards of a criminal sentence. Care and treatment for these accused should be prioritized over imprisonment and punishment. Under section 4819AC of the bill, a person cannot be released until they establish by clear and convincing evidence that they are no longer a risk. The burden should remain on the state to justify continued deprivation of liberty and not shift to the person who lacks capacity. We would not stand for or support this burden shifting for a person with capacity. Why would we support it for people who are mentally ill or disabled? We also disagree that the criminal court is the appropriate venue for hearings on involuntary treatment due to the sensitive and protected private information that will be shared in hearings on the public record. The family court remains the more appropriate venue for these proceedings. While the bill requires a court to find that medication is clinically appropriate and likely to aid restoration on pages three and eleven, 11, it fails to meet the strict standard from CEL v United States, which requires the government to prove that the medication is necessary to significantly further an important government interest and that no less intrusive treatments are available. Although the bill notes a person's refusal to receive service isn't grounds for release, it also limits a person's right to refuse. Forcing psychotropic medication is a severe intrusion on an individual's physical and mental integrity and fundamental freedom. Section 4,826 of the bill mandates that the Commissioner of Corrections establish a locked, secure forensic facility. Simply placing mental health evaluation and treatment under the Department of Corrections rather than the Department of Mental Health criminalizes disability. Treating justice involved individuals who are not convicted of crimes in a prison environment, regardless of a separate entryway, even if it is trauma informed, is counter therapeutic and violates the mandate of the Olmstead decision. Section six amends Vermont Rule of Evidence eleven oh one to make the rules of evidence inapplicable in proceedings concerning competency restoration or the revocation of conditional release. We argue that by limiting the applicability of evidence rules, the bill could allow for the admission of hearsay and other less reliable information in hearings that determine whether an individual remains confined in a locked facility and will dilute the reliability of the evidence and lead to unjust outcomes. Changing this rule in these cases will undermine the purpose of the rules of evidence, which is to ensure the legal proceedings are fair, efficient, and focused on reliable information. The definition of a qualifying condition in section 4826A1B is broad, including any condition, whether mental, congenital, or traumatic, however acquired or developed. This definition is void for vagueness as it could theoretically apply to a vast range of neurodivergent or cognitive conditions that do not necessarily equate to a need for locked forensic confinement. If this legislature proceeds with s one ninety three despite these up objections, it is imperative that the facility be subjected to the same oversight as all other mental health settings. Emergency involuntary procedures, or EIPs, which are restraint, seclusion, and involuntary medication, are not therapeutic. They are severe infringements on constitutional liberties. Under the current proposal, because many residents would be in DOC custody rather than DMH custody, there would be no independent oversight of these aggressive practices. To prevent abuse, the following statutory changes are nonnegotiable. Reporting requirements in 18 VSA section 7,257 must be amended. The forensic facility must be explicitly added to the list of entities required to report adverse events, death, or serious injury to the Department of Mental Health and the Mental Health Care Ombudsman. Also under 18 VSA, section 7,703 and section seven thousand two and fifty nine, every instance of restraint, seclusion, or involuntary medication must generate a certificate of need to be sent to the mental health care ombudsman, disability rights Vermont. A person's custodial status, whether Department of Corrections or Department of Mental Health, must not dictate the level of quality oversight that they receive, and minimum standards must require that forensic facility staff be trained to the same level as psychiatric unit staff when implementing EIPs. There should be no undocumented or permissible use of force by corrections officers or facility staff in a forensic facility. I ask you to consider this bill related to competency restoration and the creation of DOC, administered forensic facility from a disability perspective. So much of what I have heard said in the previous committee meetings about this bill has been imbued with a subtext that people with disabilities need fixing. I've heard not so subtle ableism embedded in the conversation and bias that has fostered a predetermination of guilt for this small population of people who cannot be convicted. So much so that the possibility of the many rights violations that I have just outlined in this testimony has been excused or disregarded.

[Rep. Thomas Burditt (Vice Chair)]: Excuse me.

[Laura Cushman (Disability Rights Vermont)]: We would not look past

[Jack McCullough (Vermont Legal Aid)]: Let finish, please.

[Laura Cushman (Disability Rights Vermont)]: We would not look past the potential for rights violations for other people. Why are we so willing to disregard them where these individuals are concerned? I ask you to please recognize and set aside any disability or mental illness bias in considering this bill. S one ninety three prioritizes restriction over restoration and risks warehousing disabled individuals in the most restrictive setting available. We urge the committee to instead invest in a coordinated continuum of care that allows individuals to receive health care in appropriate settings with adequate support, a carceral solution is not on that continuum. Thank you for inviting me today and for considering my testimony.

[Rep. Martin LaLonde (Chair)]: Yeah. Just a couple of questions then I'll go to Zach. On the oversight, you mentioned the oversight is really the reporting to the health care ombudsman and the Department of Mental Health. Is there another entity that would be doing oversight?

[Laura Cushman (Disability Rights Vermont)]: I would have to go back and look, but as far as I know, it's just the certain things get reported to the Department of Mental Health. Like I said, all critical incident reports, serious injury or death are reported to us also. CONs, which are certificates of need, that's any time an EIP is used at a facility. So that's any time restraint, seclusion, or involuntary medication are used, we receive reports of those. And I will say that when we were here two years ago, I actually testified in front of this committee when the forensic facility bill at that time was not succeeding. And the compromise that was made at that time in lieu of turning nine beds at Vermont Psychiatric Care Hospital into a forensic facility was to take the River Valley facility and allow the use of EIPs at that facility. And at that time when that was the compromise that was made and River Valley was going to be used as a secured facility that could now incorporate the use of restraint seclusion and involuntary medication, which it had not been previously, we had asked at that time also to make sure that the reports from that facility were sent to the mental health care ombudsman. And so, in the same vein, we would expect that we would get those same reports from a forensic facility.

[Rep. Martin LaLonde (Chair)]: And it's just a second question as well, that it's kind of along the lines of what I asked Jack, that's just a comment that from what we understand, what I've heard from lots of people, DMH and Dale for that matter, they do not have a charge for really public safety. And that's what this bill is really trying to get at. And that's why DOC, who has that charge, certainly involved in this. So, I mean, how would you address or comment on that?

[Laura Cushman (Disability Rights Vermont)]: Well, it wouldn't eliminate all public safety issues, but more, you know, as we were saying before and as Jack was saying, like more robust services and supports for people on orders of non hospitalization could minimize the public safety concerns. So,

[Jack McCullough (Vermont Legal Aid)]: and I and

[Laura Cushman (Disability Rights Vermont)]: I again, we have facilities. We already have a psychiatric care hospital for people who rise to the level of a need of hospitalization. And we have the River Valley facility, which for over a year wasn't serving the purpose that it was meant to serve after the bill was approved for it to include EIPs because they still hadn't constructed a seclusion room. So that for whatever purposes, whether it was permitting or construction or what have you, the facility has only recently been able to do what it had been set out to do when it was made a secured facility that could use EIPs for the care and treatment of individuals who don't rise to the level of hospitalization. And again, we're not fully utilizing the facilities we have. Certainly River Valley, a facility like River Valley could be better utilized for the safety of the public.

[Rep. Martin LaLonde (Chair)]: So just a follow-up question on the River Valley. They're not doing competency restaurant there. Correct?

[Laura Cushman (Disability Rights Vermont)]: No. But any appropriate treatment for a person who can be restored to competency will restore them to competency. I mean, what are we talking about here? Medication? If you're receiving appropriate treatment and you've been given medication that works, you will be restored to competency. There's no special magic bullet that by calling it competency restoration is gonna change the fact that appropriate care is appropriate care. And when it works and when someone can be restored to competency, if they're receiving appropriate treatment, they will be.

[Jack McCullough (Vermont Legal Aid)]: Thank you, I'll jump in.

[Rep. Zachary Harvey (Member)]: So, Laura, during your testimony, you twice made mention of someone that has been part of the conversation having bias. You've accused someone of being exhibiting ableism. So I'm curious who exactly you're referring to.

[Laura Cushman (Disability Rights Vermont)]: I'm not referring to anyone specific. There have been so many people who have provided testimony in the many hearings that I have watched in Senate Judiciary Committee. And to speak to implicit bias, people aren't consciously aware that they are disregarding the rights of people with disabilities. And so the intention is not to name or shame any specific person. It's to talk about a very pervasive bias that exists in our culture and community against people with disabilities.

[Rep. Zachary Harvey (Member)]: I think if you're to levy accusations like that, you need to articulate it in a manner like you just did and not levy it against an entire group of people. Because the way that I interpreted what you said is that you're calling people in this room either exhibiting ableism or that we're exhibiting bias. And I find that kind of use of language highly inappropriate and personally offensive.

[Laura Cushman (Disability Rights Vermont)]: Well, it was not intended to target This is the first gagering that I'm I

[Rep. Zachary Harvey (Member)]: not gonna argue with you, Laura, but I just find it highly inappropriate in that I think you really need to be very introspective about the type of language that you use when you're testifying in front of a group of people when the need for this facility is very clear and has been worked on for the better part of two decades. The administration's trying to move toward a goal of making sure that people that are in desperate need of care are getting the care that they need. And then the second question I have is you mentioned constitutionality concerns, and I'm curious if you have any facts to back that up.

[Laura Cushman (Disability Rights Vermont)]: Specifically, I I spoke to let me look back at my testimony where I talk about that.

[Rep. Martin LaLonde (Chair)]: Can you submit the written testimony?

[Jack McCullough (Vermont Legal Aid)]: I certainly certainly You

[Rep. Martin LaLonde (Chair)]: had some citations and some cases that we can then look at.

[Laura Cushman (Disability Rights Vermont)]: Of course I will. And I just want to apologize to representative. I did not mean to target. Again, I was just going to say this is the first house judiciary committee meeting that I have seen. So certainly I haven't heard anything with regard to this bill from your committee or taken from any of the representatives in the room any bias.

[Rep. Zachary Harvey (Member)]: Great. That's why I was shocked that you said So, Karen.

[Rep. Karen Dolan (Member)]: Yes, thank you for being here. I'm really trying to get at the root of this because I just feel like this is a challenging thing to crack, and I appreciate all these perspectives. And so for me, I'm trying to kind of going on that bias piece. I'm like, no, look, I don't feel like we're targeting folks with disabilities or folks with mental health. For me, it's coming down to the piece of folks found not competent to stand trial. That's the umbrella that we're working under. And so I'm wondering if that's the piece that there's discomfort with, feeling that a disability or mental health shouldn't be used as a reason to be not found competent to stand trial? Because I don't see it that we're targeting folks that way. It's basically we're saying somebody, anybody who's not found competent to stand trial should be considered for a forensic facility with these criteria. So it's not targeting anybody in particular.

[Laura Cushman (Disability Rights Vermont)]: I mean, I guess I would just say that competency, the question of competency is a mental health or cognitive, intellectual or cognitive question. So, in competency, the issue of capacity is inherently a disability question. I don't know that you can separate them because a person

[Rep. Thomas Burditt (Vice Chair)]: not lack capacity

[Laura Cushman (Disability Rights Vermont)]: a person who who does not lack capacity has some issue or concern that impacts their ability to understand

[Rep. Karen Dolan (Member)]: and

[Rep. Barbara Rachelson (Member)]: check.

[Rep. Karen Dolan (Member)]: I'm curious. Sorry.

[Laura Cushman (Disability Rights Vermont)]: That's okay.

[Rep. Karen Dolan (Member)]: If it would be categorized as mental health illness or disability. I think we've talked about, I guess, hearing impairment would fall under that. You know, if somebody doesn't understand ASL, but we talked we talked about dementia. I feel like there are other examples of it. I agree that probably a large percentage of that, but I feel like that's the piece where there is the tension, is that competency piece of it. And that it's not targeting folks. It's saying people who are not competent to stand trial, we need to come up with a plan.

[Rep. Martin LaLonde (Chair)]: So just to put it a little bit differently, people are not competent. They lack their sufficient ability to consult with their lawyer or make a reasonable degree of rational understanding to understand the system. What is underlying that certainly could be mental health, disability, brain injury, lots of different things. But we're trying to really separate and just look at that legal standard. And that's what people are bringing people into this system is that legal standard and the fact that it's an offense that has a life sense. I'm really, that's kind of the prism through which I'm just really trying to look at that. I do understand that underlying that can be mental health, can be any number of things. And I see that you also had a concern about vagueness on that terminology. I'm not sure that, I mean, if we're really tying it to the underlying legal standards of competency or not guilty by reason of insanity,

[Jack McCullough (Vermont Legal Aid)]: I guess I don't see that.

[Rep. Martin LaLonde (Chair)]: Not gonna argue on that, but I just, that's the presence where I'm really looking at, okay, so.

[Jack McCullough (Vermont Legal Aid)]: Sorry.

[Rep. Martin LaLonde (Chair)]: I'm not looking for you to comment on that. I just wanted to get just a follow-up.

[Laura Cushman (Disability Rights Vermont)]: Okay. Well, thank you. I'm happy to look in or get back to you on any questions that you might have for me. And I will submit the testimony writing today.

[Rep. Martin LaLonde (Chair)]: Yeah. I'll ask our legislative counsel to get the cases online as well that you cite to. So if you actually have the citations for those cases that you mentioned by name, if you could have that in your testimony-

[Laura Cushman (Disability Rights Vermont)]: It's there. Okay, great.

[Rep. Martin LaLonde (Chair)]: Great. Really appreciate it. Any other questions?

[Jack McCullough (Vermont Legal Aid)]: Yeah, any other questions for Laura?

[Rep. Martin LaLonde (Chair)]: No, I think we're good at this point. And as I mentioned already, we're gonna probably have another version and we're gonna let other people come back as well. But yeah, Angela.

[Rep. Angela Arsenault (Member)]: I just have one question. Laura, I was just thinking as you were talking about this was a thought I had yesterday as well that other states have forensic facilities. I wonder if you've seen any examples or are aware of any examples where these facilities exist and the rights that you mentioned are respected?

[Laura Cushman (Disability Rights Vermont)]: I mean, I can't off the top of my head tell you of any. Certainly other states do, you know, there are many different ways to do it. You know, and we've attempted some other ways in the past with other bills, trying to have one included within a hospital, trying to, like I said, creating a secured facility that is intended for the forensic population, but is not a hospital setting. I mean, we've made some attempts. I certainly think that those are more appropriate, but making sure that we're utilizing them in the way that we've intended to utilize those so that we don't need a in prison forensic facility is more advisable.

[Rep. Angela Arsenault (Member)]: Yeah. Okay, thanks. If you come across anything. Sure. Because I am very curious about you know, what you I I understand what you're saying about the need for the folks working in any such facility to be trained the same as, you know, mental health staff. And I have concerns about that. And I understand it's the idea is that they will be contracted employees, perhaps with relevant experience. But I think that part is really important. So if you come across anything where it's like, oh, these guys are kind of getting it right,

[Rep. Barbara Rachelson (Member)]: I'd love to be able to look at that.

[Laura Cushman (Disability Rights Vermont)]: Yeah. Happy to look into it.

[Rep. Karen Dolan (Member)]: Oh, thank you.

[Jack McCullough (Vermont Legal Aid)]: You're welcome. I'll

[Rep. Thomas Burditt (Vice Chair)]: give you an example, and I guess you can answer. I've had the fortunate or unfortunate I've had the ability to spend my time with some folks in a very bad situation, in a very bad way, that were originally incarcerated. They're justice involved, but they also had some mental defects, I guess you might call it. And so it seemed best that they'd be moved to a mental health facility. They were brought to the mental health facility where they were completely uncontrollable. Human contact was not even really an option. It was so dangerous. And so they brought in the Department of Corrections to help at the mental health facility. But that did not even work there. So they were brought back to the Department of Corrections. And every now and then, we have these folks that are justice involved that are in this pickle, so to speak. But they don't understand anything. And I can see if we have just simply a mental health facility, unless it has very, very special safeguards in place, that it could be problematic. Thoughts?

[Laura Cushman (Disability Rights Vermont)]: I'm not sure I understand the difference between what type of care they were receiving in this facility that they were moved

[Rep. Thomas Burditt (Vice Chair)]: to that Who was the state hospital?

[Laura Cushman (Disability Rights Vermont)]: Moved to the state hospital, and what was the Department of Corrections doing that was different? What other kind was secured? They have the ability to employ the use of restraint, seclusion. What constituted the difference in their sick were they successful? Were they any more successful in a prison environment than they were in the in the

[Rep. Thomas Burditt (Vice Chair)]: Fewer fewer people were getting injured

[Laura Cushman (Disability Rights Vermont)]: Because they were able to do more restraining in a

[Rep. Thomas Burditt (Vice Chair)]: they had to do they had a yeah, a better facility and a lot more people in training to be able to subdue a person even even opening, you couldn't open a door to feed the

[Jack McCullough (Vermont Legal Aid)]: person to give them food.

[Laura Cushman (Disability Rights Vermont)]: Yeah, I don't know enough about the situation to comment more, but I think that if the use of restraint, seclusion, and involuntary medication is allowed in the facility that they were in, then I'm not sure how the prison staff would have or could have done more than that. And I would be concerned if they were doing more than restraining, secluding, or involuntary medicating to somehow subdue humans.

[Rep. Thomas Burditt (Vice Chair)]: This this person's focus, and it's not the only one I met, was was simply when they were in their chronic condition, just simply determined to hurt people. And in the hospital or the state hospital setting, they could not even remotely control or deal with that. Corrections at least was able to get by day to day with a limited number of injuries. So, there are people out there like that.

[Laura Cushman (Disability Rights Vermont)]: Yeah. Yes. I I understand that that is that is, the the concern. Right? But then, you know, we're talking about least restrictive setting applicable to each individual, not simply because someone lacks capacity. There need to be distinctions made between the most very extreme cases that you're talking about and and every other person in the a similar situation.

[Rep. Thomas Burditt (Vice Chair)]: Right. I under I understand that, but I think we're picking the highest group or segment of the population that are gonna be in that particular likelihood of being violent?

[Laura Cushman (Disability Rights Vermont)]: It's hard to know because we were told in previous committee hearings that there are six people that they are currently that are currently being held in corrections who they think are appropriate for this facility. But we haven't seen the profiles of those six people or what exactly their needs are, their disabilities are, their treatment currently is, what's, you know, whether or not they are people with intellectual disability or traumatic brain injury who cannot be restored to competency, or whether they are people who have some mental health diagnosis that might be treatable with a medication that could restore them to capacity. So we don't we don't even know who these six people are that we've been told about or what would actually work for them best therapeutically, medically, in in and and in terms of a restrictive setting. We have no idea. You know, we're just speculating that these six people all need a forensic facility.

[Rep. Thomas Burditt (Vice Chair)]: Alicia, how to say about that? Well, no, I I I'm just thinking that now, could it also be that we could have the ability to

[Jack McCullough (Vermont Legal Aid)]: Oh.

[Rep. Thomas Burditt (Vice Chair)]: Handle this in two different locations?

[Laura Cushman (Disability Rights Vermont)]: I mean, we have two locations right now for people who have mental health diagnoses. That's the Vermont State Hospital and the River Valley facility. And for the most part, the folks that we're talking about should be able to be served in those two facilities. And anyone who is not a person with a mental health diagnosis who wouldn't necessarily qualify for either of those facilities, a person say with dementia. Not that I know that any of the people we're actually talking about, the six people who currently exist, is a person with dementia. But what they're going to need is going to be significantly different. I mean, then we are talking about potential hospitalization, but not for mental illness. This is not a Vermont State Hospital candidate necessarily because this is a person with a neurocognitive disorder, a medical condition that should be treated in a more hospital like setting.

[Rep. Thomas Burditt (Vice Chair)]: I I would mostly agree with you. I do know some of these folks, and I do I and I do know that I do agree with you. But there is the segment of you're always gonna have a couple people that needs the most secure setting you could possibly imagine. And that's just what I'm worried about. If we're setting it up for this segment of the

[Jack McCullough (Vermont Legal Aid)]: population, I think that's what we need. Thank

[Laura Cushman (Disability Rights Vermont)]: you. I mean, I appreciate, but I I'm still struggling to understand what the distinction in is between a secured residential facility and a forensic facility in a prison, except for the fact that it's bars and corrections officers. I'm not sure what a prison setting provides that a different setting would.

[Rep. Martin LaLonde (Chair)]: So thank you very much, Laura. I appreciate you being available this morning, and we'll take a ten minute break, and we should have Matt Valerio here by twenty five eleven.

[Laura Cushman (Disability Rights Vermont)]: Thank you.